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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Breathalyzer

Proof of blood-alcohol level

Claim of error or malfunction of approved screening device had no air of reality

Accused brought disclosure application at trial for impaired driving and driving “over 80.” Accused sought records concerning history and performance of device used to measure his blood alcohol concentration. Records sought were not subject of first party records disclosure. Records had no association with offence with which accused was charged and were not created or located as part of investigation of accused. Records were not in possession of Crown but generated by and in exclusive control of police service and were thus third party records. Test of “likely relevance” for production of third party record not met. Nothing in routine disclosure provided to accused suggested error or malfunction in administration of breath test. Claim of operator error or instrument malfunction had no air of reality.
R. v. Jackson (Dec. 2, 2015, Ont. C.A., H.S. LaForme J.A., David Watt J.A., and Gloria Epstein J.A., CA C58751, C58754) 128 W.C.B. (2d) 460.


Appeal

Grounds

Judge’s incomplete and unhelpful response to jury’s question compromised trial fairness

Ac  cused was charged with possession of cocaine for purpose of trafficking, and for importing and trafficking cocaine. Accused’s first trial before judge and jury ended in mistrial when jury could not arrive at verdict. Crown re-prosecuted again before judge and jury. At second trial jury convicted accused on possession and importing charges but it failed to arrive at verdict on trafficking charge. During deliberations jury asked, if they found accused guilty of importing cocaine, if they had to find him guilty of trafficking. Trial judge discussed question with both counsel and he then told jury that if they found accused guilty of importing they did not have to find him guilty of trafficking. Jury was entitled to take different views of evidence so that they could convict accused on one charge but not on other charge. Accused appealed conviction. Appeal allowed. Effect of answer was to tell jury, for first time, that evidence could support different verdicts on importing and trafficking charges. This conflicted with judge’s earlier repeated instructions regarding central issue in this case and legal consequences that would flow from jury’s determination of that issue. Judge provided no elaboration or guidance to jury on this alternate and late-breaking theory of case and he did not relate it to evidence or to parties’ positions at trial. Judge also failed to caution jury against engaging in impermissible verdict compromise based on expediency, frustration or desire to resolve case. It was dangerous and inappropriate to leave jury entirely adrift to assess alternate and conflicting bases of culpability on its own, without any reference to evidence and parties’ positions. Of particular concern, judge failed to provide any explanation to jury for conflict between his earlier instructions and his response to their question. New trial was necessary because judge’s incomplete and unhelpful response to question compromised trial fairness and may have led to unsafe verdicts.
R. v. Lapps (Feb. 23, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C59288) 128 W.C.B. (2d) 315.


Abduction

Child under 14 years

Accused not permitted to introduce evidence regarding validity of apprehension warrant

It was alleged that accused, without lawful authority, took child out of possession of and against will of children’s aid society, guardian of child, contrary to s. 280 of Criminal Code. Accused were charged with abducting person under age of 16. Accused brought application to be permitted to ask questions and introduce evidence regarding validity of apprehension warrant, to argue that apprehension warrant should be found invalid, and to argue that, if apprehension warrant was found invalid, accused were lawfully entitled to take child. Application dismissed. Child and Family Services Act (Ont.) provided adequate remedial mechanism to party seeking to “undo” ongoing effects of apprehension warrant that was sufficient to validate society’s demand for interim compliance with such judicial order to promote and ensure rule of law. There was no basis for relaxing rule barring collateral attacks on such judicial orders. Doing so in circumstances of this case would be destructive of rule of law insofar as it would jeopardize orderly and functioning administration of justice in relation to child protection matters and bring that system of justice into disrepute.
R. v. Plumstead (Feb. 19, 2016, Ont. S.C.J., I.F. Leach J., 15-552) 128 W.C.B. (2d) 311.


Charter of Rights

Right to counsel

Statutory compulsion to answer questions at border does not constitute detention

Border services officer was suspicious when accused told her that she had brought fruit juice into Canada and upon observing unusual behaviour of accused as she removed cans of fruit juice from her luggage. Officer conducted more intrusive inquiry and tested juice cans for drugs. Cans tested positive for cocaine. Accused was arrested for importing cocaine and officer gave accused caution and right to counsel. Accused sought to exclude statements to officer on basis that they were obtained in violation of ss. 7 and 10 of Charter. Statements admissible. There was no Charter breach. Statutory compulsion to answer questions at border does not constitute detention under s. 10(b) of Charter. Person is not detained when border official asks routine questions and conducts routine searches. Accused was not detained simply because of her look-out status and was subjected to same routine questioning and searches as anyone else referred for secondary inspection. Officer had strong particularized suspicion to warrant more intrusive form of inquiry after showing accused X-ray images of cans and accused asked “What’s in it?.” Only at that point was accused was detained and ss. 7 and 10(b) rights were engaged.
R. v. Sinclair (Feb. 3, 2016, Ont. S.C.J., Barnes J., CRIMJ(F)354/10) 128 W.C.B. (2d) 140.


Arrest

Legality

Subjective and objective components of test for reasonable and probable grounds for arrest were established

Accused was convicted of possession of cocaine for purpose of trafficking, possession of marijuana for purpose of trafficking, and two counts of possession of proceeds of crime. Accused’s arrest was part of police investigation undertaken as result of information received from confidential informants that P, whose employee W lived in condominium building, was high-level drug dealer. Police entered building three times without search warrant. Information obtained during three entries was excluded under Canadian Charter of Rights and Freedoms. When P exited building on third occasion, he had blue and white box which surveillance team observed accused take from P’s vehicle. Accused unsuccessfully applied to exclude evidence of marihuana and cocaine found in box. Accused appealed convictions. Appeal dismissed. Police did not lack reasonable and probable grounds for accused’s arrest independent of evidence illegally obtained in building. Trial judge properly concluded that, even after excluding information gathered during warrantless entries into building, combined information from informants, totality of investigation, collective observations by police of accused’s vehicle and location, and interaction between accused and P, satisfied both subjective and objective components of test for reasonable and probable grounds for arrest.
R. v. Labelle (Feb. 8, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C58138) 128 W.C.B. (2d) 136.


Charter of Rights

Cruel and unusual treatment or punishment

Mandatory minimum sentences declared of no force or effect

Accused was convicted of living on avails of prostitution of female person under age of 18 years, procuring under 18-year-old female to prostitution, and obtaining sexual services from female person who was under age of 18 years. First and third count carried minimum custodial sentences. Accused brought motion for declaration that mandatory minimum sentences be of no force and effect. Motion granted. Section 212(2) and (4) of Criminal Code were declared of no force or effect. Sentences would be out of line for persons within reasonably foreseeable hypothetical situation. Violation of s. 12 of Canadian Charter of Rights and Freedoms was established. Hand in hand with that consideration was denial of fundamental justice. Section 1 of Charter could not save impugned sections because they were far beyond acceptability to society.
R. v. Badali (Feb. 1, 2016, Ont. S.C.J., B. Glass J., 12-06456G) 127 W.C.B. (2d) 634.


Charter of Rights

Search and seizure

Judge was not under any obligation to raise issue of s. 8 breach on his own motion

Police officer stopped accused and he smelled strong odour of alcohol on accused’s breath. Accused failed roadside test and she was arrested for driving over 80. Accused’s two breath samples were over limit. These two samples were taken more than two hours after offence. At trial, accused brought no application under Canadian Charter of Rights and Freedoms and she called no evidence. Accused’s only attack on Crown was that samples were not taken as soon as practicable. Trial judge acquitted accused because he held that Crown could not prove its case using breath readings and toxicologist’s report because it did not prove that breath samples were taken as soon as practicable. Judge raised Charter issue on his own motion. Appeal allowed. Acquittal quashed and conviction entered. Judge made finding of fact that breath samples were not taken as soon as practicable. This amounted to breach of s. 8 of Charter. However, this was relatively trivial breach for there was only delay of 46 minutes in taking breath samples. Delay did not result in any issue regarding accuracy of toxicologist’s report based on those samples. There was no evidence of bad faith of police or evidence of prejudice to accused that resulted from that delay or any impact on her Charter rights. Argument to exclude breath samples was weak. Judge was not under any obligation to raise issue of s. 8 breach on his own motion. Even if judge had obligation to consider s. 8 breach on his own motion, judge would likely have decided that it was too late for issue to be considered, given prejudice to Crown that arose from fact that there was no timely Charter application. Furthermore, had judge decided on his own motion to consider Charter application at end of case, he very likely would have decided that evidence should not be excluded. Exclusion of evidence would have brought administration of justice into disrepute. This was one of those clearest of cases where, but for error of law made by judge, only conclusion was that Crown had proven its case beyond reasonable doubt and that accused was guilty.
R. v. Li (Nov. 13, 2015, Ont. S.C.J., N.J. Spies J., 5/15) 128 W.C.B. (2d) 4.


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