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Drug Offences


Defied logic that accused would have left contraband in fridge

Accused charged with possession of cocaine for purpose of trafficking. Accused signed tenancy agreement for apartment unit as sole occupant. For two weeks following signing of agreement, repairs were made to unit. Number of workers had access to unit, and landlord was not present during entirety of time that workers were inside unit. When landlord entered apartment with worker who was going to repair fridge, he found empty BlackBerry box located on shelf in freezer and 75 dime bags of cocaine inside. Accused testified that she did rent apartment and that she had moved certain personal items into it on day of discovery. Accused denied that she had any knowledge or control over cocaine located in freezer. Accused acquitted. Accused’s evidence was not rejected and left court with reasonable doubt. Accused did not hesitate in response to questions and was logical in her explanation of sequence of events. There were no inconsistencies in accused’s evidence and no meaningful contradictions with other evidence. Whether or not accused stayed overnight in unit was of no moment, as she had plenty of opportunity to store cocaine in freezer if she was inclined to do so. There was no evidence that groceries had been purchased and placed in freezer portion of fridge to demonstrate that accused had accessed it. It was not unusual that accused testified that she did not open freezer to determine if it was working, as she was in process of moving in to unit. Accused’s denial that she had either knowledge or control over contents of BlackBerry box was consistent with her conduct. It defied logic that accused would have left contraband, all on its own, in fridge knowing that it would have been observed by appliance repair person who was attending to seal it. Accused did not hesitate in turning over her key to landlord, and there was no attempt to return to unit to remove contraband from freezer, as one might have expected if accused knew it was there. Found during search were four BlackBerry boxes and two BlackBerry phones, but no other evidence that would have led to inference that accused was involved in drug trafficking was found. There were number of people who had access to unit from date that accused agreed to rent unit to date of discovery of cocaine. While it was true that accused was often in unit where cocaine was found, there was no evidence that she knew that she had it in her physical possession.
R. v. Mitchell (Oct. 1, 2014, Ont. S.C.J., Kelly J., File No. CR/13/90000/6410000) 116 W.C.B. (2d) 378.

Charter of Rights


Officers knowingly arrested accused based solely on suspicious circumstances

Accused charged with possession of narcotics for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. First officer testified that they saw two men walking in suspicious manner. First officer testified that they approached vehicle and he saw male kneeling down beside open car door with cash in his hand, and accused standing beside him. First officer testified that as soon as cruiser stopped, second officer instantly jumped out and yelled out to men that they were under arrest. First officer testified that after pat-down search, he found series of narcotics in accused’s bag. Second officer testified that they were driving by vehicle when they saw three men by driver’s door in close proximity. Second officer testified that he became suspicious that drug deal was underway, so they turned cruiser around and drove up behind vehicle. Second officer testified that he immediately got out of his car and placed all three men under arrest. Second officer testified that in one to two seconds after they pulled up beside vehicle, before he placed men under arrest, he saw man sitting in car with $50 dollar bill, pill bottle, and baggie with drugs in his hands, another man kneeling down beside car in front of black scale, holding $50 dollar bill in his hand, and accused standing nearby, holding backpack. Accused testified that his friend was supposed to be driving him home, but told him that he had to stop off on way to drop off tools for his friend. Accused testified that as they approached vehicle, his friend handed bag to him, then bent down to tie his shoe, and suddenly two police officers were upon them and they were arrested. Accused testified that there was no scale present, that no money changed hands, and that bag containing drugs that he was left holding belonged to his friend, even though his two cell phones were found inside. Application allowed, evidence excluded. Accused’s evidence was not credible. Accused was at scene to participate in drug transaction, which substantially undermined his credibility. Officers’ observations were highly unreliable. Officers gave highly inconsistent accounts about where and how they were alerted to event. Money officers claimed to have seen had disappeared. Even if scale was on ground outside vehicle, it was very unlikely that officer had been able to observe it in two seconds that elapsed between when cruiser pulled up beside vehicle and when arrest was effected. Given that three men were huddled within few feet of each other, it was implausible that in very brief timeframe officer had managed to view man several feet away holding pill bottle and bag with drugs. Evidence gaps were significant and troubling and went well beyond normal discrepancies one expected to find. Officers operated essentially on hunch. Instead of setting up post nearby and watching for grounds, officer charged in prematurely. Police did not have, on any objective basis, reasonable and probable grounds to arrest accused. Accused’s arrest was unlawful and search incidental to arrest violated s. 8 of Charter. Officers knowingly arrested accused based solely on suspicious circumstances, and their handling of evidence was remarkably sloppy. Breach was serious. Impact of breach on accused’s Charter-protected rights supported exclusion of evidence. Given that accused was grabbed, pushed against vehicle, searched, and handcuffed in highly public area, this was significant intrusion on his Charter rights. Drugs that were seized were reliable and objective evidence, which favoured their admission. Given serious nature of breach and its impact on accused’s protected Charter rights, admission of evidence would have brought administration of justice into disrepute.
R. v. Palmer (Oct. 7, 2014, Ont. S.C.J., Baltman J., File No. CRIMJ(F)2329/12) 116 W.C.B. (2d) 349.

Civil Procedure


Undertaking to disclose certain information to spouse was inherent to relationship

Plaintiff alleged in her statement of claim that parties began romantic relationship in July of 2002 and engaged in protected sexual intercourse. Subsequently, they began to have unprotected sex on basis of defendant’s representations that he did not have any sexually transmitted diseases and that he had recently tested negative for HIV. Parties were married in August 2003. In spring of 2012, relationship broke down. In November 2012, plaintiff tested positive for Herpes Simplex Virus-Type 2 (HSV-2). Plaintiff claimed damages for sexual assault and battery, intentional or negligent transmission of HSV-2, intentional or negligent misrepresentation and breach of fiduciary duty. Defendant brought motion to strike portions of plaintiff’s statement of claim related to allegations of breach of fiduciary duty, as failing to disclose reasonable cause of action. Motion dismissed. Statement of claim, when read as whole, pleaded necessary elements for fiduciary duty. It was open to court to find that that undertaking to disclose certain information to spouse was inherent to spousal relationship. It was not plain and obvious that per se or ad hoc fiduciary relationship alleged to arise between parties from marriage would fail. There were no public policy concerns that would militate against that finding.
Vaseloff v. Leo (Oct. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-13-493846) 245 A.C.W.S. (3d) 554.

Civil Procedure


Respondents were to submit to examination but they were merely witnesses

Applicant sued number of defendants for allegedly sending or causing to be sent unsolicited advertisements by facsimile transmission, which was tortious in state of Florida. Letters rogatory were issued in Florida court that requested co-operation of court to compel video testimony of respondents who resided in Ontario. Applicant applied for order enforcing letters rogatory. Application was granted. Applicant applied for costs. Application dismissed. Respondents were not parties to underlying Florida action or person against whom any substantive claim was being advanced. Respondents were to submit to examination but they were merely witnesses. Parties should bear own costs.
CIN-Q Automobiles Inc. v. Fleming (Oct. 8, 2014, Ont. S.C.J., Parayeski J., File No. 1445382) Additional reasons to 243 A.C.W.S. (3d) 328.  245 A.C.W.S. (3d) 530.



Public interest groups satisfied procedural requirements for intervention

Refugee claimants were Muslim citizens of Kosovo who came to Canada after entering United States. Refugee claimants unsuccessfully applied for refugee protection. Immigration and Refugee Board’s Refugee Protection Division (RPD) relied on lack of asylum claim in United States and insufficient evidence. Refugee claimants unsuccessfully appealed to board’s Refugee Appeal Division (RAD), which applied reasonableness standard of review. Refugee claimants commenced application for judicial review. Public interest groups brought motion for intervener status. Motion granted. This was apparently first case in which appellate function of RAD was focus. Given nature of case, it was apparent that issue of role and function of RAD transcended parties and particular facts of this case. Public interest groups were well established organizations dedicated to advocating on behalf of refugees. Public interest groups satisfied procedural requirements for intervention. Public interest groups, their clients, and their potential clients all had genuine interest in standard of review issue in this judicial review. Public interest groups provided different insight and perspective from that of refugee claimants. Allowing public interest groups to intervene was in interests of justice because issues in this judicial review were of potential precedential value.
Huruglica v. Canada (Minister of Citizenship and Immigration) (Aug. 22, 2014, F.C., Michael L. Phelan J., File No. IMM-6362-13) 245 A.C.W.S. (3d) 646.

Administrative Law


Switching of test once condition precedent met yielded breach of procedural fairness

Applicant was permanent resident. Applicant was abroad for vast majority of time on exchange program in Germany as part of her degree from university. Remainder of time abroad was spent visiting family in China. Citizenship Judge determined applicant did not accumulate requisite number of days of residence required and denied applicant’s citizenship application. Applicant appealed and matter was sent back for redetermination. Second judge advised applicant that if he found she was in Canada for 938 days she would receive positive decision. Judge found applicant was not in Canada for 1095 days. According to written decision and evidence applicant spent 938 days in Canada. Judge declined to make favourable recommendation for discretionary grant of citizenship. Applicant sought judicial review. Application granted. Switching of test once condition precedent was met resulted in breach of applicant’s legitimate expectation and yielded breach of procedural fairness. Applying differed citizenship test than that which was promised at hearing, when such decision was discretionary would not reach high threshold of bad faith. Applicant understood which test would be applied and governed herself accordingly.
Qin v. Canada (Minister of Citizenship and Immigration) (Sep. 10, 2014, F.C., Alan Diner J., File No. T-290-14) 245 A.C.W.S. (3d) 521.

Civil Procedure


No requirement that affirmation be made on any holy book

Plaintiff applied for judicial review of Canadian Human Rights Commission’s decision not to hear his complaint. Plaintiff attempted to file evidence with unsworn affidavits. Plaintiff was Mennonite and refused to swear affidavit on Bible that was provided by court’s registry in Winnipeg because it was not “undefiled” Bible. Plaintiff was ordered to either obtain access to “undefiled” Bible and swear on it or to make solemn affirmation to affirm his affidavit. Application for judicial review was dismissed. Plaintiff brought action against Crown seeking order declaring Federal Court Registry in Winnipeg in contempt of court, order directing court to hear application and interim order providing means of affirming or swearing his affidavit evidence that did not offend his conscience. Defendant brought motion to strike out plaintiff’s statement of claim. Prothonotary ordered plaintiff’s statement of claim to be struck out on basis that it disclosed no reasonable cause of action and was abuse of process. Plaintiff appealed. Appeal was dismissed. Plaintiff appealed. Appeal dismissed. Plaintiff misunderstood effect of “affirmation” and entire case was based on misunderstanding. Pursuant to R. 80(1) of Federal Courts Rules (Can.), affidavits were to comply with Form 80A, which indicated that affidavit may be sworn or affirmed. There was no requirement that affirmation be made on any holy book. Word “affirmation” referred to method of completing affidavit that had no religious connotation and plaintiff had no basis on which to refuse to provide necessary court documentation in support of action he commenced. Motions judge applied correct principles of law and clearly understood factual background in concluding that statement of claim disclosed no reasonable cause of action. Leave to appeal to Supreme Court of Canada was denied.
Klippenstein v. R. (Sep. 30, 2014, F.C.A., Eleanor R. Dawson Acting C.J., Karen Sharlow J.A., and David G. Near J.A., File No. A-135-14) Decision at 238 A.C.W.S. (3d) 90 was affirmed.  245 A.C.W.S. (3d) 522.



Plaintiffs could not arrest more than one ship

At marine terminal facility owned by plaintiffs, defendant’s vessel struck and damaged part of trestle that led from shore to berth. Berth became unstable until repairs were affected and parts were replaced. Plaintiffs commenced action in Supreme Court of British Columbia and arrested vessel. Parties negotiated release of vessel from arrest. Defendant issued letter of understanding (LOU) of US $26 million and in consideration of LOU plaintiffs were to agree to release vessel from arrest and to refrain from arresting any other ship defendant owned. Plaintiffs decided that clause in LOU that prevented them from arresting sister ship of vessel was not acceptable. British Columbia Supreme Court judge found that there was legally binding agreement plaintiffs entered into pursuant to which they agreed to waive right to arrest sister ships in consideration of security being provided by defendant. Judge found there was no basis to set aside agreement on ground of mistake. Judge found that, pursuant to s. 43(8) of Federal Courts Act (Can.), plaintiffs could not arrest both vessel and sister ship. Plaintiffs appealed. Appeal dismissed. Judge correctly concluded that there was no mistake that could vitiate agreement. Plaintiffs knew of uncertainties of arresting more than one ship and agreed to terms of LOU fully aware of divergent opinions on issue. Pursuant to Act, plaintiffs could not arrest more than one ship. Plaintiffs could proceed either under s. 43(2) of Act to secure arrest of offending vessel or under s. 43(8) of Act to secure arrest of sister ship. Plaintiffs elected to proceed under s. 43(2) of Act and were barred from seeking arrest under s. 43(8) of Act. By enacting s. 43(8) of Act, Parliament intended to confer on plaintiffs in Canada right to arrest sister ship in lieu of offending ship. Parliament did not intend for Federal Court to exercise jurisdiction in rem under both s. 43(2) and (8) of Act for same claim.
Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Oct. 15, 2014, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-101-14) Decision at 238 A.C.W.S. (3d) 281 was affirmed.  245 A.C.W.S. (3d) 496.



Robbery with threats of violence against person was serious personal injury offence

Accused convicted of robbery. Accused robbed drugstore by saying that he had gun. No evidence that accused actually had gun or used any force. Crown applied for dangerous offender assessment. Trial judge dismissed application on basis that offence was not serious personal injury offence. Court of Appeal dismissed Crown’s appeal. Appeal allowed. Definition of “violence” in s. 752 incorporates harm caused, attempted, or threatened. Robbery with threats of violence against person was serious personal injury offence within meaning of section.
R. v. Steele (Oct. 9, 2014, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35364) Decision at 105 W.C.B. (2d) 641 was reversed.  116 W.C.B. (2d) 427.



Improper cross-examination had no bearing on outcome of voir dire

Accused charged with possession of cocaine for purpose of trafficking and possession of proceeds of crime. Defence counsel applied to exclude evidence pursuant to s. 24 of Canadian Charter of Rights and Freedoms. Counsel asked one police witness on voir dire to comment on veracity of other officers. Trial judge excluded evidence seized from accused for violations of his Charter rights and acquitted him. Court of Appeal allowed Crown’s appeal on basis that defence counsel’s cross-examination was improper. Appeal allowed and acquittal restored. Improper cross-examination had no bearing on outcome of voir dire.
R. v. Mian (Sep. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35132) Decision at 104 W.C.B. (2d) 276 was reversed.  116 W.C.B. (2d) 334.
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