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Drug recognition expert’s opinion evidence was admissible without voir dire

Accused was suspected of drug impaired driving. Drug recognition expert (DRE) performed drug recognition evaluation. Accused was charged with driving while impaired by drug. At trial, Crown relied on s. 254(3.1) of Criminal Code to establish admissibility of DRE’s testimony without voir dire. Judge allowed DRE to testify as expert without voir dire, then acquitted accused. On appeal, acquittal was overturned and new trial ordered. At second trial, judge held s. 254(3.1) did not allow for automatic admissibility of DRE’s evidence and acquitted accused. Crown appealed. Judge held s. 254(3.1) rendered DRE’s opinion automatically admissible. Accused appealed. Court of Appeal held DRE’s opinion evidence was admissible without voir dire and dismissed appeal. Accused appealed. Appeal dismissed. Section 254(3.1) does not provide for automatic admissibility of DRE opinion evidence. Because s. 254(3.1) does not speak to admissibility, common law rules of evidence apply. Trial judge erred in concluding that because DRE was not expert in scientific foundation of various elements of test, none of his opinion evidence was admissible. DRE is expert for purpose of applying 12-step evaluation. Where requirements for admissibility of expert evidence at common law are met and probative value of evidence outweighs prejudicial effect, trial judge is not required to hold voir dire to determine admissibility.
R. v. Bingley (2017), 2017 CarswellOnt 2406, 2017 CarswellOnt 2407, 2017 SCC 12, 2017 CSC 12, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellOnt 8987, 2015 ONCA 439, E.A. Cronk J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from conviction or acquittal

Verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code

Accused was convicted of sexual assault causing bodily harm. It was admitted that accused engaged in anal intercourse with complainant who had no independent memory of event. Crown’s case was composed of complainant’s assertion that she would never engage in anal intercourse, series of texts and conversations between her and accused, her testimony as to her condition after event, photographs of bruising to body and doctor’s evidence regarding injuries. At trial, accused claimed it was complainant who initiated vaginal sex with him in front seat of car and that he was nervous about having sex in public place and that he did not want to have anal intercourse, claiming he thought it was dirty, but eventually agreed to complainant’s request. Accused was not successful in appeal of conviction. Accused appealed. Appeal dismissed. Trial judge did not reach decision by illogical or irrational reasoning process, and verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code.
R. v. Olotu (2017), 2017 CarswellSask 74, 2017 CarswellSask 75, 2017 SCC 11, 2017 CSC 11, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2016), 2016 CarswellSask 453, 2016 SKCA 84, Jackson J.A., Whitmore J.A., and Ryan-Froslie J.A. (Sask. C.A.).

Criminal Law

Dangerous offenders

Indeterminate sentence

Accused’s proposed release and treatment plan could not protect public adequately

Accused was declared dangerous offender and indeterminate sentence was imposed after accused pleaded guilty to aggravated assault, sexual assault, forcible confinement and uttering threats. At sentencing hearing, accused submitted further 10 years imprisonment followed by 10 year supervision order would adequately protect public, however, sentencing judge concluded accused’s proposed release and treatment plan could not protect public adequately. Accused appealed sentence on same grounds. Appeal dismissed. Accused’s letter expressing remorse and desire to make contribution to community during remaining years was appreciated; however, court’s function was to correct errors committed by court below and sentencing judge committed no error in his analysis or conclusion.
R. v. Siscoe (2017), 2017 CarswellOnt 1932, 2017 ONCA 133, J.C. MacPherson J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge did not overemphasize seriousness of offences

Accused was convicted of possession of loaded prohibited firearm, possession of cocaine for purpose of trafficking, and dangerous driving following high risk, vehicular police take-down triggered by confidential informant’s tip. Trial judge found that police violated accused’s rights under ss. 7 to 10 of Canadian Charter of Rights and Freedoms, but admitted evidence of handgun and drugs seized from accused’s vehicle incident to arrest on basis that admission of evidence would not bring administration of justice into disrepute. Accused appealed convictions, alleging that trial judge erred in his s. 24(2) Charter analysis. Appeal dismissed. Trial judge did not overemphasize seriousness of offences by placing particular significance on public interest in prosecution of firearm charges. Trial judge committed no error in his consideration of Grant factors and, absent error, his weighing of those factors was entitled to deference. While impact of breaches on accused’s Charter rights favoured exclusion of evidence, societal interest in adjudicating case on merits tipped balance in favour of admission. Trial judge did not give undue weight to that factor and fact that firearm was involved. He did not err in viewing fact that police obtained two warrants to search different vehicle associated with accused as being indicative of good faith. His factual assessment of officers’ conduct and his conclusion that they acted in good faith was entitled to deference. Trial judge accepted officers’ testimony that they considered informant’s tip that accused was in possession of firearm to be reliable. Judicial officers concluded that informant’s tip provided reasonable and probable grounds to believe that accused was in possession of firearm and that it would be found in his vehicle.
R. v. Allen (2017), 2017 CarswellOnt 2710, 2017 ONCA 170, E.A. Cronk J.A., Paul Rouleau J.A., and B.W. Miller J.A. (Ont. C.A.).

Family Law

Division of family property

Practice and procedure

Trial Judge was entitled to wholly prefer evidence of one expert

Parties separated after 40-year marriage, leading to protracted matrimonial litigation. Trial judge found in favour of husband on most issues, ordering wife to pay $140,000 equalization and costs in amount of $109,248. Wife appealed. Appeal dismissed. Weight to be given by experts’ opinions was wholly within province of trial judge who gave cogent reasons for preferring husband’s expert over wife’s expert valuator of farm equipment. Trial judge’s failure to strictly follow correct approach on whether to award unequal share of net family property did not affect outcome. Financial issues were not complex. Wife held title to matrimonial home with equity of about $250,000 while husband owned farm equipment that his appraiser valued at $83,800. Since husband’s expert opinion was accepted, it was apparent that there would be substantial equalization payment from wife.
Keresturi v. Keresturi (2017), 2017 CarswellOnt 2434, 2017 ONCA 162, G.R. Strathy C.J.O., John Laskin J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9635, 2015 ONSC 3565, R.J. Harper J. (Ont. S.C.J.).

Alternative Dispute Resolution

Judicial review of arbitration awards

Grounds for review

Arbitration award was set aside

Parties all worked in real estate business and entered verbal agreement to work together to sell property and split commissions. Dispute arose about commission for one property, with applicant taking position he should receive all commission and respondents asserting commission should be equally split amongst all three parties. Agency offered to provide arbitration. Both manual and arbitration agreement entered into by parties provided arbitration would be final and binding. Parties all made submissions and questioned each other. Arbitration award provided that commission would be equally split between parties, but there was complete absence of reasons. Applicant brought application to set aside arbitration award. Application granted. Since Arbitration Act came into force, phrase “final and binding” may be insufficient to exclude right of appeal. Respondents’ argument that arbitration was so simple and informal that reasoning could be inferred was not accepted. Parties made submissions and were examined, yet there was no record of this evidence or argument. Arbitration committee must have preferred respondents’ evidence but there was no explanation why. Absence of reasons offended s. 38 of Arbitration Act and common law requirements. Applicant was entitled to know why his position did not prevail and to assess his options. If appeal resulted, court needed reasons to review, and members of public, particularly those in real estate, would benefit from explanation of how dispute was resolved. As there was no information about committee members, their availability for recall or whether they kept any notes, merely remitting matter for reasons was not viable option.
Peters v. D’Antonio (2016), 2016 CarswellOnt 21243, 2016 ONSC 7141, Bruce Thomas J. (Ont. S.C.J.).

Labour and Employment Law

Public service employees

Termination of employment

Adjudicator’s determination was unreasonable

Grievor was federal public servant, whose last assignment involved working as civilian clerk at RCMP district office. RCMP management spoke to grievor about certain issues, and when that did not lead to improvement in her performance and behaviour, levied three and then 10-day suspension. Security review process culminated in revocation of grievor’s reliability status, and termination followed as grievor’s position required that she possess valid reliability status. Seven grievances filed by grievor were referred to adjudication, and adjudicator dismissed grievances. Grievor’s application for judicial review was dismissed. Grievor appealed. Appeal allowed. Six of grievor’s grievances were remitted for re-determination. Adjudicator’s determination that grievor was not subject of disguised discipline was unreasonable. Security review process was used as means to terminate grievor’s employment because her supervisors were dissatisfied with her workplace performance and behaviour. Grievor should have been accorded right to have reasons for her termination reviewed under cause standard. Interpretation of Public Service Labour Relations Act adopted by adjudicator deprived grievor of this right and, if allowed to stand, would largely hollow out protection from dismissal without cause afforded to employees under Act.
Bergey v. Canada (Attorney General) (2017), 2017 CarswellNat 276, 2017 FCA 30, M. Nadon J.A., Johanne Gauthier J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 1511, 2015 CarswellNat 8344, 2015 FC 617, 2015 CF 617, Roger T. Hughes J. (F.C.).

Civil Practice and Procedure



Motion to amend statement of claim in patent infringement action was dismissed

Plaintiffs sought leave in Federal Court to amend their statement of claim in patent infringement action to add three individuals as additional defendants and to add claim for joint and several liability. Motion was dismissed by prothonotary of Federal Court. Appeal was dismissed. Plaintiffs appealed. Appeal dismissed. Federal Court did not err in law in identifying and applying legal principles concerning amendment of pleadings, in its understanding of case law regarding personal liability of directors and officers, or with respect to legal principles to be applied regarding personal liability of third parties. There was no palpable and overriding error. Federal Court took into account all relevant pleadings. Facts set out in proposed pleading did not establish type of conduct necessary for personal liability. Pleaded facts were to effect that each of corporate defendants infringed plaintiff’s patent, but these were not sufficient to support claim for joint and several liability.
NOV Downhole Eurasia Ltd. v. TLL Oilfield Consulting Ltd. (2017), 2017 CarswellNat 277, 2017 FCA 32, David Stratas J.A., Mary J.L. Gleason J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2276, 2016 CarswellNat 3772, 2016 FC 685, 2016 CF 685, B. Richard Bell J. (F.C.).

Criminal Law



New evidence about witness testimony was admitted on appeal

Accused and co-accused were convicted of second degree murder and assault with weapon arising out of shooting outside of casino following altercation between deceased and complainant’s group and accused and co-accused’s group. On appeal from convictions, accused applied to admit new evidence about testimony given by eyewitness S during co-accused’s retrial and two statements given by S to police, but not disclosed to accused until after his first appeal had been dismissed. S had stated that man with ponytail, identified as accused, was not shooter. Appeal judge held that weighed against evidence of identification based on inferences drawn from arguably ambiguous statements made afterwards by accused, S’s eyewitness evidence that man with ponytail was not man who shot deceased bore directly on identity of shooter and could therefore be of critical importance at any retrial. S’s police statements, or at least his KGB statement, could well have raised reasonable doubt as to accused’s identification as one of shooters in mind of trial judge, particularly given paucity of other evidence upon which that judge relied to assure himself of that element. New evidence was admitted, accused’s appeal was allowed, and new trial was ordered. Appeal by Crown dismissed. In all of circumstances, court was satisfied that S’s KGB statement was admissible, was reasonably capable of belief, and could reasonably have affected outcome.
R. v. Brown (2017), 2017 CarswellAlta 255, 2017 CarswellAlta 256, 2017 SCC 10, 2017 CSC 10, Abella J., Moldaver J., Karakatsanis J., Gascon J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 1190, 2016 ABCA 192, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Myra Bielby J.A. (Alta. C.A.).

Civil Practice and Procedure

Limitation of actions

Real property

Claimant could not establish uninterrupted adverse possession over disputed lot

In 1930, disputed area escheated to Crown. Appellants, M family, commenced action seeking declaration that provincial Crown did not own land and could not transfer it to city, and petitioned for declaration of ownership of land in fee simple in possession. M family claimed that C family lived on disputed area starting in 1909 and G family moved into C home and lived there until 1922. Municipality brought summary trial application seeking dismissal of related action. Trial judge found there was approximate four-year period between last evidence of C arguably living on disputed area and first evidence of G family as residents in area. In second hearing, M family produced further evidence pursuant to s. 11 of Land Title Inquiry Act. Municipality’s motion for summary judgment was granted. M family successfully appealed. Municipality appealed. Appeal allowed. Decisions of chamber­s judge was restored. Given chambers judge’s finding — untainted by palpable and overriding error — that M family had not established uninterrupted adverse possession over disputed lot from 1916 through 1920, it was unnecessary to address submissions of municipality and of Attorney General of British Columbia regarding whether M family’s claim was defeated for lack of registration. GM held no interest in disputed lot and therefore no interest therein passed to M family.
Nelson (City) v. Mowatt (2017), 2017 CarswellBC 400, 2017 CarswellBC 401, 2017 SCC 8, 2017 CSC 8, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellBC 611, 2016 BCCA 113, Saunders J.A., Chiasson J.A., and Harris J.A. (B.C. C.A.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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