Case Law
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Jury
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CONTAMINATION
Trial judge has jurisdiction to conduct post-verdict inquiry into extrinsic matters
Motion for mistrial or stay of proceedings. Two accused charged with possession of heroin for purpose of trafficking. Jury reached verdict that accused were both guilty; jury was discharged and accused were remanded for sentencing. Shortly afterward Court Services Officer assigned to jury found document in jury room in plain view when cleaning up. Document was sitting on top of binder used by one juror for notes. Document contained excerpt from online article criticizing American jury’s acquittal of Casey Anthony of murder of her daughter, accusing juries of “ignorance, failure to use common sense, and inability, or disinclination to properly weigh evidence”. Subsequent paragraphs were taken from model jury instructions published by Canadian Judicial Council online. Charge to jury which court delivered to jury in writing, was based upon Ontario Specimen Jury Instructions (Criminal) as modified by trial judge. One accused sought mistrial; other sought inquiry to create record in timely fashion for consideration on appeal. Trial judge generally has no jurisdiction to hear motion for mistrial once jury has been discharged, or to enter stay of proceedings. But even if functus trial judge could not interfere with verdict, inquiry would create a record for court’s consideration on appeal. Trial judge does have jurisdiction to conduct post-verdict inquiry into extrinsic matters but not on matters intrinsic to jury’s deliberative process. Whether case rose to level of miscarriage of justice would be for Court of Appeal to decide. Given that at least one juror was conducting independent legal research and bringing it into jury room, inquiry warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other jurors. Questions for jurors could be formulated to avoid violating jury secrecy rule. It was necessary to proceed with an inquiry.
R. v. Bains (Feb. 12, 2013, Ont. S.C.J., F. Dawson J., File No. CRIM J(F) 1423/11) 105 W.C.B. (2d) 728.
Trial judge has jurisdiction to conduct post-verdict inquiry into extrinsic matters
Motion for mistrial or stay of proceedings. Two accused charged with possession of heroin for purpose of trafficking. Jury reached verdict that accused were both guilty; jury was discharged and accused were remanded for sentencing. Shortly afterward Court Services Officer assigned to jury found document in jury room in plain view when cleaning up. Document was sitting on top of binder used by one juror for notes. Document contained excerpt from online article criticizing American jury’s acquittal of Casey Anthony of murder of her daughter, accusing juries of “ignorance, failure to use common sense, and inability, or disinclination to properly weigh evidence”. Subsequent paragraphs were taken from model jury instructions published by Canadian Judicial Council online. Charge to jury which court delivered to jury in writing, was based upon Ontario Specimen Jury Instructions (Criminal) as modified by trial judge. One accused sought mistrial; other sought inquiry to create record in timely fashion for consideration on appeal. Trial judge generally has no jurisdiction to hear motion for mistrial once jury has been discharged, or to enter stay of proceedings. But even if functus trial judge could not interfere with verdict, inquiry would create a record for court’s consideration on appeal. Trial judge does have jurisdiction to conduct post-verdict inquiry into extrinsic matters but not on matters intrinsic to jury’s deliberative process. Whether case rose to level of miscarriage of justice would be for Court of Appeal to decide. Given that at least one juror was conducting independent legal research and bringing it into jury room, inquiry warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other jurors. Questions for jurors could be formulated to avoid violating jury secrecy rule. It was necessary to proceed with an inquiry.
R. v. Bains (Feb. 12, 2013, Ont. S.C.J., F. Dawson J., File No. CRIM J(F) 1423/11) 105 W.C.B. (2d) 728.
Charter of Rights
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ENFORCEMENT OF RIGHTS
Reasonable expectation of privacy to common areas of condominium building
Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused, who lived in condominium building unit, was charged with drug offences. Detective entered building on several occasions without permission as part of ongoing drug investigations. Accused was subject of investigation because of his dealings with drug dealer. On January 21, 2011 detective entered building through side door that was not properly closed. He saw dealer enter accused’s apartment through window and he departed with box. Box was found to contain marijuana and cocaine. Police obtained warrant to search accused’s residence and drugs and drug paraphernalia were located there. Detective acknowledged that he could not enter private property without permission but he maintained that he could enter in furtherance of police investigation. Application allowed. Accused had reasonable expectation of privacy to common areas of condominium building since he had ownership interest in his unit. His rights under s. 8 of Charter were violated by warrantless search of common areas. Police had no statutory authority to conduct that search. Search was unreasonable. Police also had no constitutionally unrestricted right to trespass on private property to conduct search. Detective’s search was unreasonable intrusion upon accused’s right to privacy. Police acted in bad faith because they did not bother to find out what they were allowed to do under Trespass to Property Act (Ont.), which was law they were supposed to know about without hesitation. Search was warrantless because when illegally obtained evidence was excised from information to obtain there was no basis to obtain warrant. Admitting evidence found in search of home with warrant devoid of legally obtained grounds would bring administration of justice into disrepute.
R. v. White (Apr. 5, 2013, Ont. S.C.J., Paul F. Lalonde J., File No. 11-5242) 105 W.C.B. (2d) 693.
Reasonable expectation of privacy to common areas of condominium building
Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused, who lived in condominium building unit, was charged with drug offences. Detective entered building on several occasions without permission as part of ongoing drug investigations. Accused was subject of investigation because of his dealings with drug dealer. On January 21, 2011 detective entered building through side door that was not properly closed. He saw dealer enter accused’s apartment through window and he departed with box. Box was found to contain marijuana and cocaine. Police obtained warrant to search accused’s residence and drugs and drug paraphernalia were located there. Detective acknowledged that he could not enter private property without permission but he maintained that he could enter in furtherance of police investigation. Application allowed. Accused had reasonable expectation of privacy to common areas of condominium building since he had ownership interest in his unit. His rights under s. 8 of Charter were violated by warrantless search of common areas. Police had no statutory authority to conduct that search. Search was unreasonable. Police also had no constitutionally unrestricted right to trespass on private property to conduct search. Detective’s search was unreasonable intrusion upon accused’s right to privacy. Police acted in bad faith because they did not bother to find out what they were allowed to do under Trespass to Property Act (Ont.), which was law they were supposed to know about without hesitation. Search was warrantless because when illegally obtained evidence was excised from information to obtain there was no basis to obtain warrant. Admitting evidence found in search of home with warrant devoid of legally obtained grounds would bring administration of justice into disrepute.
R. v. White (Apr. 5, 2013, Ont. S.C.J., Paul F. Lalonde J., File No. 11-5242) 105 W.C.B. (2d) 693.
Bankruptcy and Insolvency
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ARRANGEMENTS
Monetary loss suffered by shareholder did not diminish assets available to creditors
Shareholders commenced class action against corporation, auditors and others. Shareholders alleged: corporation misrepresented assets and financial situation; and auditors and underwriters failed to detect misrepresentations. Shareholders sought damages of $9.2 billion. Corporation obtained protection under Companies’ Creditors Arrangement Act (Can.). As yet uncertified class actions were stayed. Supervising judge granted claims procedure order in May 2012. Auditors and underwriters filed individual proofs of claims against corporation for contribution and indemnity for any amounts order to pay under class actions. Corporation applied for order auditors’ and underwriters’ claims were equity claims under Act. Supervising judge’s July 2012 decision granted order. Auditors and underwriters appealed. Appeal denied. Claims for contribution and indemnity are equity claims under s. 2(1)(e) of Act. Parliament’s intention that monetary loss suffered by shareholder did not diminish assets available to general creditors. “Equity claim” was not confined by definition or definition of “claim” to claims advanced by holder of equity interest. Parliament could have but did not limit claims for contribution or indemnity to those made by shareholders. Logic of s. 2(1)(a) to (e) supported notion that s. 2(1)(e) referred to claims for contribution or indemnity by others than shareholders. Definition of equity claim in Act sufficiently clear to alter pre-existing common law. If shareholder sued auditors and underwriters for loss, and defendants claimed contribution or indemnity against debtor, assets available to general creditors would be diminished.
Sino-Forest Corp., Re (Nov. 23, 2012, Ont. C.A., S.T. Goudge J.A., Alexandra Hoy J.A., and S.E. Pepall J.A., File No. CA C56115, C56118, C56125) Decision at 218 A.C.W.S. (3d) 489 was affirmed. 225 A.C.W.S. (3d) 601.
Monetary loss suffered by shareholder did not diminish assets available to creditors
Shareholders commenced class action against corporation, auditors and others. Shareholders alleged: corporation misrepresented assets and financial situation; and auditors and underwriters failed to detect misrepresentations. Shareholders sought damages of $9.2 billion. Corporation obtained protection under Companies’ Creditors Arrangement Act (Can.). As yet uncertified class actions were stayed. Supervising judge granted claims procedure order in May 2012. Auditors and underwriters filed individual proofs of claims against corporation for contribution and indemnity for any amounts order to pay under class actions. Corporation applied for order auditors’ and underwriters’ claims were equity claims under Act. Supervising judge’s July 2012 decision granted order. Auditors and underwriters appealed. Appeal denied. Claims for contribution and indemnity are equity claims under s. 2(1)(e) of Act. Parliament’s intention that monetary loss suffered by shareholder did not diminish assets available to general creditors. “Equity claim” was not confined by definition or definition of “claim” to claims advanced by holder of equity interest. Parliament could have but did not limit claims for contribution or indemnity to those made by shareholders. Logic of s. 2(1)(a) to (e) supported notion that s. 2(1)(e) referred to claims for contribution or indemnity by others than shareholders. Definition of equity claim in Act sufficiently clear to alter pre-existing common law. If shareholder sued auditors and underwriters for loss, and defendants claimed contribution or indemnity against debtor, assets available to general creditors would be diminished.
Sino-Forest Corp., Re (Nov. 23, 2012, Ont. C.A., S.T. Goudge J.A., Alexandra Hoy J.A., and S.E. Pepall J.A., File No. CA C56115, C56118, C56125) Decision at 218 A.C.W.S. (3d) 489 was affirmed. 225 A.C.W.S. (3d) 601.
Arbitration
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APPOINTMENT OF ARBITRATOR
Arbitration provisions not restricted to matters referred to in agreement
Parties were shareholders in corporation. Corporation’s principal asset was five-storey office building. Dispute arose whether payments, distributions and loans were fairly and equitably shared amongst shareholders. Single shareholder requested other four purchase his shares in corporation. Parties reached May 2009 buyout agreement regarding single shareholder’s shares. Buyout provisions included preparation of opinion of fair market value and review of corporation’s financial transactions. Single shareholder objected reports not prepared in accordance with instructions to agreed-upon firm. Single shareholder refused to tender shares. Remaining shareholders served notice of application pursuant to January 1987 shareholders agreement. Single shareholder refused to assist in appointment of arbitrator. Application for order that dispute proceed to arbitration, and appointing single arbitrator. Application granted. Arbitration provisions of shareholders agreement not restricted to matters referred to in agreement. Applicants’ conduct to single shareholder not so oppressive as to destroy the underpinnings of the arbitration provisions. Dispute arguably one covered by arbitration clause. Dispute directed to proceed to single arbitrator. As to determination of arbitrator’s jurisdiction, court deferred to arbitrator. November 2010 notice of application constituted dispute to be arbitrated. Specific arbitrator appointed.
Aubrey Falls Investments Ltd. v. Kozak (Oct. 5, 2012, Ont. S.C.J., E.J. Koke J., File No. 421/11) 225 A.C.W.S. (3d) 700.
Arbitration provisions not restricted to matters referred to in agreement
Parties were shareholders in corporation. Corporation’s principal asset was five-storey office building. Dispute arose whether payments, distributions and loans were fairly and equitably shared amongst shareholders. Single shareholder requested other four purchase his shares in corporation. Parties reached May 2009 buyout agreement regarding single shareholder’s shares. Buyout provisions included preparation of opinion of fair market value and review of corporation’s financial transactions. Single shareholder objected reports not prepared in accordance with instructions to agreed-upon firm. Single shareholder refused to tender shares. Remaining shareholders served notice of application pursuant to January 1987 shareholders agreement. Single shareholder refused to assist in appointment of arbitrator. Application for order that dispute proceed to arbitration, and appointing single arbitrator. Application granted. Arbitration provisions of shareholders agreement not restricted to matters referred to in agreement. Applicants’ conduct to single shareholder not so oppressive as to destroy the underpinnings of the arbitration provisions. Dispute arguably one covered by arbitration clause. Dispute directed to proceed to single arbitrator. As to determination of arbitrator’s jurisdiction, court deferred to arbitrator. November 2010 notice of application constituted dispute to be arbitrated. Specific arbitrator appointed.
Aubrey Falls Investments Ltd. v. Kozak (Oct. 5, 2012, Ont. S.C.J., E.J. Koke J., File No. 421/11) 225 A.C.W.S. (3d) 700.
Taxation
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Worker was double-dipping with employer’s consent
Appeal by worker from determination by Minister that worker was not engaged in insurable employment. Worker was employed by corporation wholly owned by his brother. Minister determined that worker was not engaged in insurable employment on basis that he was related to his employer and terms and conditions of his employment were not substantially similar to arm’s length terms. Appeal dismissed. In essence, worker was double-dipping with employer’s consent, which was not indicative of arm’s length dealing. Evidence was lacking in detail regarding amount of time worker spent on various duties, which was crucial here as some duties, such as deliveries, were typically lower-paying than sales representative’s job. Minister also raised various other facts that supported determination, including that large pay raise and large salary advance would not be given at beginning of employment in arm’s length relationship.
Zhang v. Minister of National Revenue (Feb. 20, 2013, T.C.C. [Employment Insurance], J.M. Woods J., File No. 2012-2508(EI)) 225 A.C.W.S. (3d) 865.
Appeal by worker from determination by Minister that worker was not engaged in insurable employment. Worker was employed by corporation wholly owned by his brother. Minister determined that worker was not engaged in insurable employment on basis that he was related to his employer and terms and conditions of his employment were not substantially similar to arm’s length terms. Appeal dismissed. In essence, worker was double-dipping with employer’s consent, which was not indicative of arm’s length dealing. Evidence was lacking in detail regarding amount of time worker spent on various duties, which was crucial here as some duties, such as deliveries, were typically lower-paying than sales representative’s job. Minister also raised various other facts that supported determination, including that large pay raise and large salary advance would not be given at beginning of employment in arm’s length relationship.
Zhang v. Minister of National Revenue (Feb. 20, 2013, T.C.C. [Employment Insurance], J.M. Woods J., File No. 2012-2508(EI)) 225 A.C.W.S. (3d) 865.
Taxation
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INCOME TAX
Expenses incurred to perform pro bono services not deductible
Appeal by taxpayer from reassessment by Minister. Taxpayer was lawyer who was member of bar in Ohio, New York, and Massachusetts. In 2009, taxpayer was employed by corporation. Taxpayer filed income tax return under Income Tax Act (Can.), for 2009 taxation year. Taxpayer reported that he earned no business income and he incurred business expenses of $10,520. Minister disallowed expenses in total amount of $8,242 for continuing legal education courses, travel, meals, office, supplies, and telephone. Appeal dismissed. There was no evidence on which it could be concluded that taxpayer had law practice. Positions which taxpayer held as director of corporation were offices. Taxpayer was limited to deductions permitted by s. 8 of Act. There was no provision in s. 8 that would allow taxpayer to deduct costs of his continuing education courses and related travel and meal expenses from his office and employment income. Expenses taxpayer incurred to perform pro bono services were not deductible.
Jamieson v. R. (Feb. 18, 2013, T.C.C. [Informal Procedure], Valerie A. Miller J., File No. 2011-3994(IT)I) 225 A.C.W.S. (3d) 860.
Expenses incurred to perform pro bono services not deductible
Appeal by taxpayer from reassessment by Minister. Taxpayer was lawyer who was member of bar in Ohio, New York, and Massachusetts. In 2009, taxpayer was employed by corporation. Taxpayer filed income tax return under Income Tax Act (Can.), for 2009 taxation year. Taxpayer reported that he earned no business income and he incurred business expenses of $10,520. Minister disallowed expenses in total amount of $8,242 for continuing legal education courses, travel, meals, office, supplies, and telephone. Appeal dismissed. There was no evidence on which it could be concluded that taxpayer had law practice. Positions which taxpayer held as director of corporation were offices. Taxpayer was limited to deductions permitted by s. 8 of Act. There was no provision in s. 8 that would allow taxpayer to deduct costs of his continuing education courses and related travel and meal expenses from his office and employment income. Expenses taxpayer incurred to perform pro bono services were not deductible.
Jamieson v. R. (Feb. 18, 2013, T.C.C. [Informal Procedure], Valerie A. Miller J., File No. 2011-3994(IT)I) 225 A.C.W.S. (3d) 860.
Aboriginal Peoples
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SELF-GOVERNMENT
Power to suspend respondent by resolution alone not supported by inherent power
Appellants appealed Federal Court’s decision allowing judicial review. Appellant First Nation Council decided to suspend respondent without pay from his office as councillor. Council did so upon hearing of sexual assault charge against respondent, which remained pending. Council also received complaints that respondent sent explicit text messages and photographs to victim of sexual assault and to another woman. Council expressed decision in resolution. Respondent applied for judicial review. Federal Court found that council’s resolution failed to include particulars of respondent’s conduct it relied upon in making decision as required by Election Code, that decision to suspend respondent as councillor was not supported by any ground set out in Code and it expressed concern that council did not act in procedurally fair manner. Federal Court set aside resolution and restored respondent to office of councillor pending outcome of criminal trial. Appeal dismissed. Applicable standard of review was reasonableness. Council’s power to suspend respondent by way of resolution alone was not supported by inherent power. Even if custom or inherent power existed, Code ousted it. Federal Court wrongfully narrowed meaning of words in s. 101.3.7 of Code. Potential breadth of wording “sufficiently serious to warrant cause in all the circumstances” could be given full effect by council. It was open to council to take view that, if established by evidence, respondent’s conduct could fall within s. 101.3.7 of Code. However, council did not have power to suspend respondent from office by passing resolution alone. In doing so, it reached outcome that was outside range of acceptable and defensible. Decision to suspend respondent as councillor by way of resolution alone was unreasonable. Decision was quashed.
Orr v. Fort McKay First Nation (Oct. 30, 2012, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-450-11) Decision at 209 A.C.W.S. (3d) 207 was affirmed. 225 A.C.W.S. (3d) 584.
Power to suspend respondent by resolution alone not supported by inherent power
Appellants appealed Federal Court’s decision allowing judicial review. Appellant First Nation Council decided to suspend respondent without pay from his office as councillor. Council did so upon hearing of sexual assault charge against respondent, which remained pending. Council also received complaints that respondent sent explicit text messages and photographs to victim of sexual assault and to another woman. Council expressed decision in resolution. Respondent applied for judicial review. Federal Court found that council’s resolution failed to include particulars of respondent’s conduct it relied upon in making decision as required by Election Code, that decision to suspend respondent as councillor was not supported by any ground set out in Code and it expressed concern that council did not act in procedurally fair manner. Federal Court set aside resolution and restored respondent to office of councillor pending outcome of criminal trial. Appeal dismissed. Applicable standard of review was reasonableness. Council’s power to suspend respondent by way of resolution alone was not supported by inherent power. Even if custom or inherent power existed, Code ousted it. Federal Court wrongfully narrowed meaning of words in s. 101.3.7 of Code. Potential breadth of wording “sufficiently serious to warrant cause in all the circumstances” could be given full effect by council. It was open to council to take view that, if established by evidence, respondent’s conduct could fall within s. 101.3.7 of Code. However, council did not have power to suspend respondent from office by passing resolution alone. In doing so, it reached outcome that was outside range of acceptable and defensible. Decision to suspend respondent as councillor by way of resolution alone was unreasonable. Decision was quashed.
Orr v. Fort McKay First Nation (Oct. 30, 2012, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-450-11) Decision at 209 A.C.W.S. (3d) 207 was affirmed. 225 A.C.W.S. (3d) 584.
Employment Insurance
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OVERPAYMENTS
Irrelevant referees found applicant did not knowinglygive inaccurate information
Applicant was employed by British Columbia labour contracting firm until 1997 lay-off. Following applicant’s lay-off, firm was investigated by Employment Insurance Commission and Canada Revenue Agency. Investigation led to recalculation of claims and imposition of penalties. Seventy-six labourers, including applicant, appealed EIC’s insurability ruling to Tax Court. Applicant appealed penalties imposed by commission to Board of Referees. Referees allowed applicant’s appeal against penalty imposed for making false or misleading statements. Relying on referee’s favourable decision, applicant requested commission write-off benefits overpayment resulting from firm’s errors. Commission refused request, on basis applicant was responsible for error stated in benefits application. Applicant requested judicial review. Application dismissed. Section 56 of Employment Insurance Regulations (Can.), applied. No dispute applicant’s application for benefits contained error with respect to duration of employment. Parliament’s clear intention to place full responsibility for error or misrepresentation on benefits application on applicant. Irrelevant that referees found applicant did not knowingly give inaccurate information. Applicant’s failure to correct employer’s error on record of employment gave rise to overpayment of benefits. Had applicant submitted correct information, investigation would have revealed employer’s error and overpayment would not have occurred.
Mangat v. Canada (Attorney General) (Dec. 3, 2012, F.C., Douglas R. Campbell J., File No. T-1026-10, T-1027-10, T-1028-10, T-1030-10, T-1031-10) 225 A.C.W.S. (3d) 717.
Irrelevant referees found applicant did not knowinglygive inaccurate information
Applicant was employed by British Columbia labour contracting firm until 1997 lay-off. Following applicant’s lay-off, firm was investigated by Employment Insurance Commission and Canada Revenue Agency. Investigation led to recalculation of claims and imposition of penalties. Seventy-six labourers, including applicant, appealed EIC’s insurability ruling to Tax Court. Applicant appealed penalties imposed by commission to Board of Referees. Referees allowed applicant’s appeal against penalty imposed for making false or misleading statements. Relying on referee’s favourable decision, applicant requested commission write-off benefits overpayment resulting from firm’s errors. Commission refused request, on basis applicant was responsible for error stated in benefits application. Applicant requested judicial review. Application dismissed. Section 56 of Employment Insurance Regulations (Can.), applied. No dispute applicant’s application for benefits contained error with respect to duration of employment. Parliament’s clear intention to place full responsibility for error or misrepresentation on benefits application on applicant. Irrelevant that referees found applicant did not knowingly give inaccurate information. Applicant’s failure to correct employer’s error on record of employment gave rise to overpayment of benefits. Had applicant submitted correct information, investigation would have revealed employer’s error and overpayment would not have occurred.
Mangat v. Canada (Attorney General) (Dec. 3, 2012, F.C., Douglas R. Campbell J., File No. T-1026-10, T-1027-10, T-1028-10, T-1030-10, T-1031-10) 225 A.C.W.S. (3d) 717.
Civil Procedure
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DISCOVERY
None of undisclosed parts of officers’ notebooks relevant
Defendant brought motion to set aside prothonotary’s order. Plaintiff alleged that defendant unlawfully seized her Croatian passport, her Croatian identity card and two photographs during primary inspection at Calgary International Airport. Plaintiff claimed she gave items to officer when she was re-entering Canada. Part of officer’s notebook had been produced. On plaintiff’s motion, prothonotary ordered defendant to produce the officer’s entire original notebook, as well as notebooks of officer’s supervisors. Motion granted. It had to be determined whether prothonotary made error of law. In order to obtain inspection of complete notebooks of officers, they must be show to be relevant within meaning of Rule 222(2) of Federal Court Rules (Can.). Prothonotary made reviewable error by stating that full notebooks of officers had to be produced for inspection. Prothonotary had stated that she was not satisfied that remainder of officer’s notebook was likely relevant. Evidence disclosed that neither supervising officer had any notation with respect to incident in notebooks. They were merely officer’s supervisors on day in question. They did not have any contact with plaintiff. None of undisclosed parts of officers’ notebooks were relevant within meaning of Rule 222(2). There was no evidence to suggest that other entries in officer’s notebook had anything to do with present case. Only document relevant to case was entry made in notebook on day of incident. It was not necessary to list supervising officers’ notes for date of incident, as they were not relevant to matter at issue.
Stubicar v. Canada (May. 7, 2012, F.C., John A. O’Keefe J., File No. T-2102-10) 225 A.C.W.S. (3d) 663.
None of undisclosed parts of officers’ notebooks relevant
Defendant brought motion to set aside prothonotary’s order. Plaintiff alleged that defendant unlawfully seized her Croatian passport, her Croatian identity card and two photographs during primary inspection at Calgary International Airport. Plaintiff claimed she gave items to officer when she was re-entering Canada. Part of officer’s notebook had been produced. On plaintiff’s motion, prothonotary ordered defendant to produce the officer’s entire original notebook, as well as notebooks of officer’s supervisors. Motion granted. It had to be determined whether prothonotary made error of law. In order to obtain inspection of complete notebooks of officers, they must be show to be relevant within meaning of Rule 222(2) of Federal Court Rules (Can.). Prothonotary made reviewable error by stating that full notebooks of officers had to be produced for inspection. Prothonotary had stated that she was not satisfied that remainder of officer’s notebook was likely relevant. Evidence disclosed that neither supervising officer had any notation with respect to incident in notebooks. They were merely officer’s supervisors on day in question. They did not have any contact with plaintiff. None of undisclosed parts of officers’ notebooks were relevant within meaning of Rule 222(2). There was no evidence to suggest that other entries in officer’s notebook had anything to do with present case. Only document relevant to case was entry made in notebook on day of incident. It was not necessary to list supervising officers’ notes for date of incident, as they were not relevant to matter at issue.
Stubicar v. Canada (May. 7, 2012, F.C., John A. O’Keefe J., File No. T-2102-10) 225 A.C.W.S. (3d) 663.
Appeal
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Trial judge took inadmissible evidence into account in assessing credibility
Appeal from conviction. Accused was tried on two counts of assault, one count of threatening and one count of failing to comply with no-contact term of bail order. Complainant was accused’s estranged wife. Trial judge acquitted accused on all counts save for count of failing to comply. In examination-in-chief of complainant, Crown counsel introduced copies of documents from records of police in Karachi, Pakistan. First document was record of complainant’s attendance at police station in Karachi to report her concern about potential of “mishap” befalling her at hands of accused. Her fear flowed from an assault she alleged accused had committed in Pakistan previously. Second document was record of complainant’s report to Pakistan police in which she alleged that two days before, accused and two other men came to door of home where she was staying and threatened her with gun. At time of introduction of documents, it was unclear what use Crown proposed to make of them. Appeal allowed; new trial ordered. Reports complainant provided to police in Karachi were not admissible to support credibility of her allegations against accused. Trial judge was satisfied reports were true copies of police records, but that did not make them admissible. They were nothing more than prior consistent statements and presumptively inadmissible. Trial judge used complainant’s prior statements to support her credibility in relation to allegation that accused threatened her with gun. This was not harmless error. Her testimony about that incident was only evidence accused contacted her on that date in contravention of his bail order. Credibility of complainant was very much in issue, so much that trial judge was not prepared to convict on basis of her evidence on three of four counts before him. Because trial judge took inadmissible evidence into account in finding complainant credible on only count on which accused was found guilty, conviction on that count could not stand. New trial ordered on failing to comply, with suggestion to Crown to consider public interest in proceeding further.
R. v. Badar (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-0000107-00AP) 105 W.C.B. (2d) 358. LT
Appeal from conviction. Accused was tried on two counts of assault, one count of threatening and one count of failing to comply with no-contact term of bail order. Complainant was accused’s estranged wife. Trial judge acquitted accused on all counts save for count of failing to comply. In examination-in-chief of complainant, Crown counsel introduced copies of documents from records of police in Karachi, Pakistan. First document was record of complainant’s attendance at police station in Karachi to report her concern about potential of “mishap” befalling her at hands of accused. Her fear flowed from an assault she alleged accused had committed in Pakistan previously. Second document was record of complainant’s report to Pakistan police in which she alleged that two days before, accused and two other men came to door of home where she was staying and threatened her with gun. At time of introduction of documents, it was unclear what use Crown proposed to make of them. Appeal allowed; new trial ordered. Reports complainant provided to police in Karachi were not admissible to support credibility of her allegations against accused. Trial judge was satisfied reports were true copies of police records, but that did not make them admissible. They were nothing more than prior consistent statements and presumptively inadmissible. Trial judge used complainant’s prior statements to support her credibility in relation to allegation that accused threatened her with gun. This was not harmless error. Her testimony about that incident was only evidence accused contacted her on that date in contravention of his bail order. Credibility of complainant was very much in issue, so much that trial judge was not prepared to convict on basis of her evidence on three of four counts before him. Because trial judge took inadmissible evidence into account in finding complainant credible on only count on which accused was found guilty, conviction on that count could not stand. New trial ordered on failing to comply, with suggestion to Crown to consider public interest in proceeding further.
R. v. Badar (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-0000107-00AP) 105 W.C.B. (2d) 358. LT
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Ontario Legal News Update — June 10, 2013
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Ontario Legal News Update — June 3, 2013
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