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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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Defences

Duress

Accused did not have safe avenue of escape from threat posed by boyfriend

Accused’s mother removed bag that contained semi-automatic firearm and some bullets from trunk of accused’s car. Firearm and ammunition belonged to accused’s boyfriend and boyfriend threatened to kill accused, accused’s daughter and other family members if firearm was not returned to him and if it was delivered to police. Bag ended up in mother’s car and accused grabbed bag and fled in her own car to home of acquaintance and she asked him to hold gun and ammunition for her. Accused had been instructed by boyfriend to deliver gun and ammunition to acquaintance. Police recovered firearm and bullets. Accused was charged with illegal possession of firearm and ammunition and other related charges. Accused claimed that she lacked requisite mens rea because her boyfriend physically abused her and threatened to kill her and other family members. Accused acquitted. Crown did not dispute that accused was physically abused by boyfriend or she may have feared him. However, it claimed that she chose to remain with him to protect him. Crown also claimed that she had multiple avenues to escape his clutches. There was explicit threat of present or future death or bodily harm to accused or to other persons. Accused reasonably believed that boyfriend would carry out threat. Accused did not have safe avenue of escape. There was close temporal connection between threat and harm threatened. There was no evidence that accused was involved in conspiracy with boyfriend to commit illegal act and she knew that threats and coercion would be logical results of such activity. Defence of duress was therefore made out.
R. v. Markoff (Dec. 14, 2015, Ont. S.C.J., André J., CR-14-174-00) 127 W.C.B. (2d) 502.


Prostitution

Procuring

Accused convicted of human trafficking offences

Accused was charged with nine counts including counts relating to human trafficking. Complainant C was 21-year old exotic dancer and escort who agreed to do escort work for accused so they could earn more money. After few days, accused told C that he would keep 100 per cent of proceeds, and his behaviour turned nasty. C claimed that accused beat her repeatedly, usually for not earning at least $800 per day, and that he made her work when she was sick or exhausted. Accused convicted of human trafficking offences. C exaggerated her evidence to increase perception that she was victim throughout relationship and that accused controlled all of her behaviour through violence and threat of violence, but much of her evidence was accepted. Accused soon started to exercise control over C by assaulting her or threatening to hurt her if she did not do as he said, making her believe that she made him react as he did, and making her financially dependent on him. C was not under accused’s complete control every moment, but on numerous occasions he exercised control over her and directed her actions. If C did not earn daily quota set by accused, she was beaten or told to earn more, even when she was exhausted or sick. Accused effectively controlled what C did to get her to continue working so she earn more money for him. C was compliant because she feared being beaten. Accused was guilty of trafficking, contrary to s. 279.01(1) of Criminal Code, through exercising control over C’s movements for purpose of exploiting her. Accused knew that money he received from C resulted from his exercising control over her movements for purpose of exploiting her as escort and dancer, and was fully aware that C worked as much as she did and handed over all of her earnings to him because she feared being beaten if she did not live up to his expectations. Accused was guilty of receiving material benefit from trafficking, contrary to s. 279.02(1) of Code. Accused withheld C’s SIN card as form of control over her to ensure that she returned to him with her birth certificate and continued to earn money for him through dancing and escorting. Accused was also guilty of withholding documents to facilitate trafficking, contrary to s. 279.03.
R. v. S. (R.R.) (Dec. 18, 2015, Ont. S.C.J., Aitken J., 13-A12648) 127 W.C.B. (2d) 541.


Evidence

Hearsay

Even without admission of hearsay statement, judge would have accepted complainant’s evidence

Accused faced charges arising from three alleged sexual assaults on complainant, who was 13 years old at time of assaults and was sister of accused’s then-partner. Crown asked mother about telephone conversation she had with her daughter sister of complainant, where sister told her mother that she saw accused on top of complainant. Crown said at time that hearsay statement from sister was being tendered for narrative purposes only. However, at end of trial, Crown changed his position and argued that statement could be used to prove sister’s state of mind and that she was present during third event. Trial judge ruled in favour of Crown and referred to statement in his reasons for conviction on third incident, but stated he was convinced even without this circumstantial evidence. Crown conceded that trial judge erred in admitting into evidence and relying on sister’s hearsay statement to mother but argued decision could be saved by curative proviso. Accused appealed his convictions. Appeal dismissed. Trial judge explicitly stated that even without hearsay statement he would have accepted evidence of complainant that her relationship with her sister changed because her sister believed she had consented to sexual contact with accused. Accused’s denial of any change in their relationship was not credible because complainant went into foster care following incident and was not visiting her sister. As well, there was evidence from mother of change in relationship between her daughters. There was no basis to reject trial judge’s statement of his view and his findings. It was therefore proper case to apply proviso.
R. v. H. (M.R.) (Dec. 7, 2015, Ont. C.A., F. Feldman J.A., Eileen E. Gillese J.A., and David Watt J.A., CA C55928) 127 W.C.B. (2d) 328.

Breathalyzer

Refusal to provide sample

Officer was not obliged to afford accused further opportunity to comply with screening device demand

Police officer pulled over accused’s vehicle and made Approved Screening Device (ASD) demand, explaining and demonstrating procedure of providing suitable breath samples. After three failed attempts to provide suitable breath sample, officer cautioned accused about consequences of failing to provide suitable sample. Accused told officer that he could not provide suitable sample because of heart condition, and also mentioned claustrophobia. Officer allowed accused to step out of vehicle before fifth attempt. Officer advised accused on sixth attempt that it was his last chance. After sixth failure, officer contacted paramedics who performed some checks before releasing him at scene. Accused was convicted of refusing to provide breath sample. Accused appealed. Appeal dismissed. Officer was not obliged to afford accused further opportunity to comply after administration of medical attention. Officer did not conclude that accused’s excuses were legitimate enough to warrant medical attention but rather, based on his observations, concluded accused was merely seeking excuse for not blowing into ASD. Officer acted out of abundance of caution rather than any belief that complaints were legitimate. Information that accused did not have heart problems conveyed by paramedics negated any obligation to offer accused last chance to provide sample. In first three attempts, accused sucked in air rather than blowing out into ASD and in other three, he placed mouth on mouthpiece but did not blow in. There was ample evidence to support trial judge’s conclusion that accused intentionally failed to comply with officer’s repeated demands. Officer advised on sixth attempt that he was being given last chance to blow. Accused’s refusal to blow into ASD was final and unequivocal. Accused’s failure to request another chance showed he was not particularly interested in being given one. Trial judge did not misapprehend evidence in concluding that accused failed to comply with ASD demand.
R. v. Camalalingham (Jan. 25, 2016, Ont. S.C.J., André J., Brampton SCA(P) 612/14) 127 W.C.B. (2d) 231.


Defences

Entrapment

Words spoken by undercover officer were part of bona fide inquiry

Accused was convicted of trafficking in cocaine after selling drugs to undercover officer with accused subsequently seeking stay based on entrapment. Initial comments by undercover officer in first cell phone contact after receiving anonymous information about accused were essentially “I hear you sell drugs” to which accused immediately responded that he had both cocaine and heroin for sale. Application dismissed. Evidence of undercover officer was uncontradicted that he initially asked accused if he sold drugs. Accused chose not to testify either on trial or on stay application and did not meet onus to prove entrapment on balance of probabilities. Words spoken by undercover officer were part of bona fide inquiry and legitimate investigatory step. Response by accused added confirmation to anonymous source information. When accused offered to sell both cocaine and heroin in response to request for cocaine he was not importuned.
R. v. Charles (Dec. 23, 2015, Ont. S.C.J., B.P. O’Marra J., CR-15-90000141-0000) 127 W.C.B. (2d) 132.


Defences

De minimis non curat lex

No error in application of de minimus principle in assault case

Accused and female complainant were in relationship. Accused asked complainant if he could borrow her car to drive to work. Complainant refused because accused was suspended driver but she offered to drive him to work. Accused refused offer and he grabbed complainant by her shoulders, pushed her down onto couch and told her that relationship was over if she did not give him keys. Complainant threw keys on couch and left home. Accused chased complainant and he caught her and put his arms around neck. Witness saw accused choking complainant and he told him to let her go. Accused denied that he choked complainant. Trial judge found that accused’s version of events was contradicted by evidence of complainant and witness and he rejected accused’s evidence. Judge also found that principle of de minimis non curat lex did not exonerate accused for even though pressure he inflicted on complainant’s neck lasted for only 10 seconds it was serious because it started to interfere with complainant’s breathing. Accused appealed conviction for assault. Appeal dismissed. Judge did not err in his application of de minimis principle.
R. v. Wojcik (Nov. 17, 2015, Ont. S.C.J., André J., SCA(P) 471/14) 127 W.C.B. (2d) 101.


Disclosure

General

Application for production of sexual assault centre records was granted

Accused was charged with sexual offences against his now 38-year-old daughter when she was between ages of two and ten-years old. Complainant initiated charges one year ago explaining that she began to relive abuse at age of 18, in form of nightmares and flashbacks, causing her to seek counselling from sexual assault centre. Complainant also testified that since providing her statement to police, she had number of new memories come back to her, including that abuse started when she was just baby. Crown advised that it intended to call expert evidence at trial related to delayed memory recall in children who had been abused. Accused sought production of sexual assault centre records, pursuant to s. 278.3 of Criminal Code. Application granted. Accused established that records were likely relevant to issue at trial and that their production to court was necessary in interests of justice. Application succeeded at first stage that records be reviewed by court after which decision will be made whether they should be disclosed.
R. v. B. (P.) (Nov. 20, 2015, Ont. S.C.J., Baltman J., CRIMJ (P)890/15) 127 W.C.B. (2d) 87.


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