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Criminal Law

Pre-trial procedure

Search without warrant

Totality of circumstances supported conclusion that arrest was lawful

Officer observed accused’s vehicle speeding and pulled him over. Officer saw police scanner above driver’s-side window visor and noticed that body of vehicle was higher than usual. When asked for his license and registration, accused checked his window visor and advised that he could not locate them. Officer requested that he check glove box, and while accused was leaning over saw money accused appeared to have been sitting on and unsheathed hunting knife next to driver-side door. Accused was arrested for possession of weapon dangerous to public peace and pat down search revealed bag of cocaine. Later strip search revealed more small bags of cocaine. voir dire was held on admissibility of evidence under section 8 and section 9 of the Canadian Charter of Rights and Freedoms. Evidence was admissible and accused was convicted of possession of cocaine for the purposes of trafficking and possession of a weapon dangerous to the public peace. Accused unsuccessfully appealed to Newfoundland and Labrador Court of Appeal, which found that arrest was lawful. Accused appealed. Appeal dismissed. Arrest was lawful since arresting officer had reasonable and probable grounds to believe that accused had committed indictable offence. Totality of the circumstances, not mere presence of knife, supported trial judge’s conclusion that arrest was lawful.

R. v. Diamond (2016), 2016 CarswellNfld 422, 2016 CarswellNfld 423, 2016 SCC 46, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellNfld 518, 2015 NLCA 60, B.G. Welsh J.A., M.F. Harrington J.A., and C.W. White J.A. (N.L. C.A.).

Criminal Law


Criminal Code process for admission of evidence of prior sexual history is mandatory

Accused was convicted of sexual assault causing bodily harm, unlawful confinement, uttering death threat, threatening bodily harm while committing sexual assault, overcoming resistance by choking, and assault. Accused appealed convictions on basis of treatment of certain evidence under s. 276(1) of Criminal Code. Appeal dismissed. Complainant testified that she would not have consented to have sex with accused because she had decided not to resume sexual activity within three months of having given birth, but she told hospital nurse that she had been sexually active and had intercourse two weeks before incident. Trial judge did not allow defence counsel to cross-examine complainant on that conflict in her evidence under s. 276 of Code, holding that proposed cross-examination would go to credibility. During pre-trial period, accused applied under s. 276(2) for leave to cross-examine complainant on conflict in her evidence about her willingness to engage in intercourse at that particular time but adjourned it. Process prescribed by s. 276 for admission of evidence of prior sexual history is mandatory. Since defence application under s. 276 was not pursued, that ground of appeal had no merit.
R. v. Vassell (2016), 2016 CarswellOnt 16564, 2016 ONCA 786, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.).

Criminal Law


Trial judge considered many strands of circumstantial evidence

Accused and 15-year-old deceased travelled on accused’s snowmobile, which failed to properly negotiate turn in road and collided with tree. Deceased was killed as result of collision. Single issue at trial was identity of driver of snowmobile. Accused was found guilty of impaired driving causing death, driving with excessive alcohol causing death, and driving while disqualified. Accused’s blood alcohol reading was over legal limit. Trial judge entered convictions on counts of impaired driving causing death and driving while disqualified, and stay on count of driving with excessive alcohol causing death. Accused appealed convictions. Appeal dismissed. Trial judge did not err in failing to consider exculpatory portions of parts of accused’s 911 call, in which he said he crashed his snowmobile, and of his statement to police officer at hospital. Those utterances were relevant to issue of identity of driver, and trial judge was entitled to accept or reject that evidence in whole or in part. Reading reasons as whole, trial judge did not found his conviction on some lesser standard than proof beyond reasonable doubt. Trial judge considered many strands of circumstantial evidence and then assessed their cumulative effect. Piecemeal analysis invited by accused was inconsistent with approach to circumstantial evidence required by authorities. Complaint that trial judge erred by permitting Crown to split its case by calling reply evidence failed. Evidence did not exceed what law permits. It was conceded that if impaired operation convictions were sustained, conviction for driving while disqualified could not be impeached as unreasonable.
R. v. Cook (2016), 2016 CarswellOnt 16445, 2016 ONCA 794, David Watt J.A., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.); affirmed (2012), 2012 CarswellOnt 2492, 2012 ONSC 985, J.S. O’Neill J. (Ont. S.C.J.).


Automobile insurance

All disputes concerning entitlement to accident benefits are governed by scheme

Dispute resolution process under Insurance Act. Insured W was injured during incident when garage door fell on him after moving vehicle out of garage. Insurer A Co. denied insured’s application for accident benefits on ground that incident was not “accident” as defined by s. 3(1) of Statutory Accident Benefits Schedule (SABS). Insured applied for mediation as contemplated by dispute resolution process scheme under s. 279 of Insurance Act. Insurer brought application for determination of whether insured was involved in “accident” as defined by s. 3.1 of SABS on basis that it was preliminary issue that had to be determined before scheme applied. Application judged dismissed application. Judge held that scheme governed all disputes concerning entitlement to accident benefits, including whether claimant was involved in accident and qualified as insured person under SABS. Judge found that this was not appropriate case for application. Insurer appealed. Appeal dismissed. Judge was correct in holding that it governed all disputes concerning entitlement to benefits, including whether claimant was involved in accident. Scheme established comprehensive alternative process to courts. While court proceedings might provide more expeditious process where it was determined claimant did not qualify as insured person, court proceeding would be duplicative where claimant did qualify as insured person. Having regard to purposes of Act and scheme, “insured person” as it appeared in scheme can reasonably be read as encompassing all persons claiming entitlement to benefits under SABS whether or not it was ultimately determined that they were entitled to benefits.
Ayr Farmers Mutual Insurance Co. v. Wright (2016), 2016 CarswellOnt 16494, 2016 ONCA 789, Simmons J.A., E.E. Gillese J.A., and C.W. Hourigan J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 15632, 2015 ONSC 6219, P.R. Sweeny J. (Ont. S.C.J.).

Conflict of Laws


There was no error in analysis of juridical advantage

Plaintiff signed employment contract in Ontario, but worked for over one year in New York. Plaintiff was dismissed for cause and brought wrongful dismissal action in Ontario. Defendant brought motion to stay plaintiff’s action on basis that, relative to New York State, Ontario was forum non conveniens. Motion was dismissed. Defendant appealed. Appeal dismissed. There was no error in master’s analysis of juridical advantage. Master’s analysis included finding that Ontario law would likely apply and that New York State was “at will” jurisdiction that does not recognize, and would not be accustomed to applying, principles of wrongful dismissal and right to reasonable notice that are familiar to judges in Ontario. This was legitimate factor to take into account, and there was nothing to contrary in Supreme Court of Canada decision cited by defendant. Master merely recognized existence of juridical advantage for plaintiff to have case decided by judge who is accustomed to applying governing legal concepts that are simply not part of New York law. Ontario Court of Appeal has recognized that juridical advantage may be particularly relevant where claims are simply unknown under U.S. law.
Machado v. Catalyst Capital Group Inc. (2016), 2016 CarswellOnt 16911, 2016 ONSC 6719, Molloy J. (Ont. Div. Ct.); affirmed (2015), 2015 CarswellOnt 15650, 2015 ONSC 6313, Master D.E. Short (Ont. S.C.J.).

Criminal Law

Extraordinary remedies

Application for judicial review was dismissed

Conviction review. Applicant was convicted of first degree murder, after son, son’s then-wife, and another witness testified that they saw applicant kill deceased. Applicant applied for conviction review on basis of son’s later confession that he murdered deceased. Criminal Conviction Review Group concluded on preliminary assessment that son’s confession was not reasonably capable of belief. Group, acting as delegate for Minister of Justice, found that there was no new and significant evidence providing reasonable basis to conclude that miscarriage of justice likely occurred and decided not to proceed to investigative stage of review process. In reconsideration decision after alleged inconsistencies were raised with respect to wife’s current recollection, Group refused to compel wife’s examination and cross-examination under oath. Applicant’s application for judicial review was dismissed. Applicant appealed. Appeal dismissed. Minister followed methodology appropriate to purposes of legislative framework during preliminary assessment phase, carefully considering information offered in support of application. Minister went further, interviewing wife as witness to crime but declining to investigate further or to examine her under oath. Minister had firm evidentiary basis for decision that confession was not reasonable basis for concluding miscarriage of justice likely occurred. At applicant’s trial, jury had cellblock confession by son to murder, supported by motive, but still found that applicant was murderer. Minister could not find independent corroborating evidence demonstrating that son committed murder, as opposed to making confessions Minister had acceptable and defensible basis for conclusion. Minister’s failure to disclose note detailing interview with wife did not work procedural fairness because it was not material and did not support need for further exploration of matter, as wife confirmed her earlier testimony that applicant committed killing. Legislative standards permitted Minister to take into account credibility of information, such as son’s confession, supporting application.
Winmill v. Canada (Minister of Justice) (2016), 2016 CarswellNat 5309, 2016 FCA 250, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2146, 2015 CarswellNat 6014, 2015 FC 710, 2015 CF 710, René LeBlanc J. (F.C.).

Civil Practice and Procedure

Class and representative proceedings

Common question in original order was restored

Plaintiff brought motion to certify as class proceeding action relating to denial of sickness benefits under Employment Insurance Act to individuals who were receiving parental benefits under Act when they became ill. Judge certified class proceeding for negligent implementation of Act in original order. Attorney General of Canada and Canada Employment Insurance Commission brought motion for reconsideration of original order. Motion was granted and amendments were made in amending order. Plaintiff appealed amendment in amending order that deleted common question that asked whether defendants who owed duty breached that duty of care. Appeal allowed. Common question in original order was restored. Certification judge certified question of whether Commission or Service Canada owed duty of care in administering Act and if so, content of duty and which defendant owed duty despite her statement that it would require individual assessment to determine who owed duty. It could not be said that manifest intention of certification judge was not to certify subject question related to whether Commission or Service Canada, who would have been found to have owed duty as result of earlier common questions, breached that duty. This common question was conditional, directly and indirectly, on other questions that had been certified. It was not clerical error or mistake to include this common question in original order.
McCrea v. Canada (Attorney General) (2016), 2016 CarswellNat 5814, 2016 FCA 285, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.).

Privacy and Freedom of Information

Collection of personal information

Mortgagee was compelled to disclose discharge statement

Creditor loaned homeowners $35,000. Homeowners defaulted on loan. Creditor obtained judgment against homeowners but required discharge statement (statement) from bank holding mortgage on homeowners’ property (mortgagee). Mortgagee refused to provide statement without homeowners’ consent under Personal Information Protection and Electronic Documents Act (PIPEDA). Creditor obtained orders to examine homeowners in aid of execution. Motion judge refused both of creditor’s motions to compel mortgagee to disclose statement, considering himself bound by 2011 appellate decision. Majority of Court of Appeal dismissed creditor’s appeal, holding that s. 7(3)(c) exception did not apply, that statement was “personal information” homeowners did not impliedly consent to disclosure of, and that creditor could obtain statement by obtaining examination order under R. 60.18(6)(a) of Rules of Civil Procedure. Dissenting judge would have ordered mortgagee to provide statement. Creditor appealed. Appeal allowed; statement was ordered disclosed. Order sought by creditor was “order made by court” under s. 7(3)(c), statement fell within s. 7(3)(b) exception to consent requirement, and homeowners impliedly consented to statement’s disclosure. PIPEDA did not interfere with courts’ ability to make orders or with rules regarding record production or debt collection disclosure. Requiring creditor to bring another motion flew in face of increasing concerns about access to justice. Judgment creditor who served debtor with motion to obtain disclosure was entitled to order for disclosure and should not be required to undergo further procedure to realize debt. Homeowners also impliedly consented to disclosure to creditor when they gave mortgage. Information in statement was less sensitive than other financial information and was generally available to public except that statement disclosed current balance at single point in time. In determining individual’s reasonable expectations under PIPEDA, whole context was important, including legitimate business interests of other creditors. Statement was not just private matter between mortgagee and mortgagor. Finally, disclosure to person requiring information to exercise established legal right was different from disclosure to curious party with no legal interest in property.
Royal Bank of Canada v. Trang (2016), 2016 CarswellOnt 18044, 2016 CarswellOnt 18045, 2016 SCC 50, 2016 CSC 50, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellOnt 17254, 2014 ONCA 883, Alexandra Hoy A.C.J.O., John Laskin J.A., Robert J. Sharpe J.A., E.A. Cronk J.A., and R.A. Blair J.A. (Ont. C.A.).

Youth offenders

Youth Criminal Justice Act

Youth court judges are not required to give credit for pre-sentence custody

Accused young person, age 17, fired volley of shots into crowd, injuring three persons. Crown applied to have accused sentenced as adult under s. 72(1) of Youth Criminal Justice Act (YCJA). Defence counsel opposed Crown’s application and urged sentencing judge not to give accused credit for about 15 months he spent in pre-sentence custody to buttress submission that youth sentence would be sufficient to hold accused accountable for his behaviour. Sentencing judge found that Crown had not rebutted presumption of diminished moral blameworthiness, and that maximum sentence of three years available under YCJA would be sufficient to hold accused accountable. Sentencing judge declined to give accused credit for about 15 months of pre-sentence custody so that fit sentence reflecting statutory principles in YCJA could be imposed. Accused appealed, submitting that sentencing judge erred in denying him credit for pre-trial custody. Appeal dismissed. While youth court judge must consider pre-sentence custody in sentencing, credit which will be given in particular case is discretionary. YCJA mandates youth sentencing judges to impose least restrictive sentence capable of achieving purposes in YCJA, and to impose sentence most likely to rehabilitate and reintegrate young person into society. Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet those objectives. While parity principle applies in context of youth sentencing, R. v. Summers does not affect discretion of youth court judges to take pre-sentence custody into account in whatever manner judge concludes will result in sentence that will hold young person accountable. Sentencing judge did not err in acceding to defence submissions, sentencing accused as young person and considering pre-sentence custody, but opting not to give credit for pre-sentence custody.
R. v. B. (M.) (2016), 2016 CarswellOnt 16259, 2016 ON CA 760, J.C. MacPherson J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

Criminal Law

Appeal from conviction or acquittal

Accused’s essential argument did not qualify for leave to appeal

Accused was convicted of driving with excessive alcohol after she was stopped by police officer for speeding. Officer noted signs of impairment, including odour of alcohol, and accused admitted that she had been drinking. Accused’s summary conviction appeal was dismissed. Accused argued, for first time, that her rights under ss. 9 and s. 10(b) of Canadian Charter of Rights and Freedoms had been breached. Appeal judge refused to exercise his discretion to allow arguments not raised at trial to be advanced at appeal level, finding that evidence at trial amply justified decision of trial counsel not to pursue any Charter remedies. Accused applied for leave to appeal. Application dismissed. Accused’s argument at trial that breath tests were not taken as soon as practicable was rejected. Appeal from summary conviction appeal must involve question of law alone. Accused’s essential argument that she was treated unfairly did not qualify for leave to appeal as it did not raise question of law alone. Even if it did, circumstances were not such as to meet requirements in R. v. R. (R.).
R. v. Hart (2016), 2016 CarswellOnt 17367, 2016 ONCA 739, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.); leave to appeal refused (2016), 2016 CarswellOnt 3490, 2016 ONSC 1620, B.P. O’Marra J. (Ont. S.C.J.).

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