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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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Appeal had no practical consequences for estate of accused

Accused was convicted of speeding. Accused died after leave to appeal was granted. Motion was made for order substituting personal representative or other person as appellant for deceased on appeal from conviction. Appeal abated and judgement below stayed. Assuming, without deciding, that court had jurisdiction, it was declined. Appeal concerned traffic ticket carrying fine of $95. Appeal had no practical consequences for estate of accused. Issue was not evasive of judicial review, given vast number of traffic tickets issued annually in province. Appeal involved interpretation of form prescribed by regulation. Decision in this matter would have province-wide implications for validity of convictions under Part I of Provincial Offences Act (Ont.). Without better factual record it would not be in interests of justice to hear appeal.
R. v. Hicks (Apr. 21, 2016, Ont. C.A., G.R. Strathy C.J.O., E.E. Gillese J.A., and G. Pardu J.A., CA M45895 (C59588)) 129 W.C.B. (2d) 531.


Fresh evidence

Accused failed to meet requirements for admission of fresh evidence

Accused was convicted of two counts each of sexual interference and invitation to sexual touching and one count each of sexual exploitation, sexual assault (stayed via Kienapple), and possession of child pornography. Convictions related to accused’s step-granddaughter. Accused appealed his convictions and on appeal sought to adduce fresh expert evidence in relation to colour of his pubic hair, indicating that it was brown and had not been dyed. Application dismissed. Accused failed to meet requirements for admission of fresh evidence. Evidence could have been adduced at trial with due diligence, it did not bear upon decisive or potentially decisive issue at trial, and although it was credible, taken with other evidence, it could not reasonably be expected to have affected result. Although complainant’s evidence concerning colour of accused’s pubic hair was inconsistent, trial judge acknowledged and addressed that inconsistency, and there was ample evidence to support accused’s convictions.
R. v. F. (A.) (Apr. 12, 2016, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and Grant Huscroft J.A., CA C58002) 129 W.C.B. (2d) 647.

Charter of Rights

Arbitrary detention or imprisonment

Cumulative effect of officer’s observations amounted to reasonable and probable grounds

Accused was convicted of possession of 48 pounds of marijuana for purpose of trafficking. Accused was driver of vehicle that was pulled over by police officer on highway. In cardboard box in cargo area of vehicle, police located several bags of packaged marijuana. Genesis of traffic stop was report from another police officer about unsafe driving and observations by arresting officer who followed vehicle for several kilometers. Both occupants seemed nervous. Accused kept looking back towards two large black suitcases in rear of vehicle. There were several cell phones on console. Officer detected strong smell of raw marijuana from vehicle. As he walked by vehicle to return to his cruiser, officer noticed cardboard box with Ziploc bags protruding from it containing material of shape and size of marijuana. Officer returned to vehicle driven by accused and arrested accused and her passenger. Accused was convicted of possession of marijuana for purposes of trafficking. Accused appealed her conviction. Appeal dismissed. Traffic stop and demand for documentation was fully justified under s. 216(1) of Highway Traffic Act (Ont.). Trial judge made no error in concluding that investigating officer had reasonable and probable grounds to arrest accused for possession of marijuana. Cumulative effect of officer’s observations amounted to reasonable and probable grounds to arrest accused. It followed that search of vehicle incident to lawful arrest and carried out in reasonable manner was constitutionally valid.
R. v. Pham (Apr. 7, 2016, Ont. C.A., David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A., CA C59824) 129 W.C.B. (2d) 325.


Sentence appeal

Total sentence imposed was not unreasonable

Upon conviction for series of firearms offences accused was sentenced to total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions. Accused was found to have fired several shots from high powered rifle into home of complainant. Accused submitted that trial judge erred in imposing consecutive sentences on count 3 (mischief by willfully damaging dwelling house by discharging firearm into dwelling house and endangering life) and count 1 (intimidating justice system participant in order to impede her in performance of her duties), submitting that same conduct gave rise to both charges and provided factual basis for both convictions and that sentences should have been concurrent. Accused appealed his sentence. With exception of victim surcharge issue appeal dismissed. Trial judge had discretion to impose consecutive sentences on two charges. Whether consecutive or concurrent sentences were to be imposed, totality of sentences imposed was what ultimately mattered. No doubt sentence imposed on charge of intimidating justice system participant (three years) would have been much higher but for concerns over totality of sentences imposed in light of accused’s age and absence of any prior significant criminal involvement. Total sentence imposed was not unreasonable. Although trial judge waived victim fine surcharges, order imposing surcharges was signed by clerk of court. Crown agreed that this order must be quashed.
R. v. Abbasi (Mar. 18, 2016, Ont. C.A., Doherty J.A., Janet Simmons J.A., and K.M. van Rensburg J.A., CA C60162) Decision at 118 W.C.B. (2d) 216 was affirmed. 129 W.C.B. (2d) 411.
Appeal allowed and sentence requested by Crown at trial imposed
Accused was sentenced to effective sentence of 16 months after he pleaded guilty to number of driving offences and possession of stolen property. Crown asked for five months, in addition to seven months pre-trial custody. Trial judge imposed further nine months so that accused could attend Ontario Correctional Institute (“OCI)”, where minimum of nine months was required for admission. Accused then was rejected from OCI. Accused appealed sentence. Appeal allowed; sentence set aside and sentence of five months, in addition to seven months of pre-trial custody, imposed. Despite accused’s lengthy and serious record, he showed genuine remorse before trial judge and court, and was sincere in his desire to straighten out. In light of fact that trial judge imposed sentence four months higher than Crown requested in order to help accused get treatment at OCI, which never materialized, appeal should be allowed and sentence requested by Crown at trial imposed.
R. v. Horgan (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and S.E. Pepall J.A., CA C61747) 129 W.C.B. (2d) 308.

Charter of Rights

Right to counsel

Police officer failed to satisfy his obligations respecting right to counsel

Crown asked court to grant leave to appeal on basis that it raised important questions about detainee’s obligation of diligence in s. 10(b) Charter application. Leave to appeal denied. On findings of trial judge, ratified by summary conviction appeal judge, police officer failed to satisfy his obligations to afford accused not only reasonable opportunity to contact counsel of his choice but also to facilitate that contact. In light of those failings, it was unsurprising that trial judge accepted accused’s evidence that he felt he had no choice but to speak with duty counsel. Accordingly, this matter did not meet R.R. test and leave was denied.
R. v. Vernon (Mar. 14, 2016, Ont. C.A., Feldman J.A., Gillese J.A., and Huscroft J.A., CA C60937) Leave to appeal decision at 124 W.C.B. (2d) 241 was refused. 129 W.C.B. (2d) 110.

Charter of Rights

Cruel and unusual treatment or punishment

Prospect of deportation did not render sentence grossly disproportionate

Accused was found to be only occupant of home that contained marijuana grow operation. Jury found accused guilty of marijuana production and possession of marijuana for purpose of trafficking. There were close to 500 plants in basement and accused was subject to mandatory minimum sentence of one year of imprisonment pursuant to s. 7(2)(b)(iii) of Controlled Drugs and Substances Act (Can.). Crown conceded that accused was gardener. Accused was permanent resident from China and would be deported if sentenced to at least six months of imprisonment. Accused was sole support of family and imposition of mandatory minimum sentence would be devastating. Accused brought application for declaration that s. 7(2)(b)(iii) was of no force and effect because it constituted cruel and unusual punishment within meaning of s. 12 of Canadian Charter of Rights and Freedoms. Application dismissed. Prospect of deportation could not transform otherwise constitutionally acceptable sentence into one that was grossly disproportionate. Without mandatory sentence appropriate range of sentence would be between six and 12 months. Since mandatory sentence was at top of range it was not grossly disproportionate and did not violate s. 12. Sentence was also not grossly disproportionate to reasonable hypothetical offender.
R. v. Li (Mar. 11, 2016, Ont. S.C.J., L. Bird J., Oshawa OCJF 13708/14) 129 W.C.B. (2d) 123.


Identity of accused

Not every case in which the Crown leads identification evidence as part of its case requires a caution

Accused was convicted of several robbery-related offences. Issue at trial was identification. Accused appealed his convictions on ground that trial judge erred by failing to provide instruction to jury on frailties inherent in identification evidence. Crown’s case consisted of identification evidence from complainant, powerful circumstantial evidence that connected accused to robbery and out-of-court statement recanted at trial made by friend of accused that indicated that accused confessed to him. Judge was not asked to give jury any special caution in respect of identification evidence. No objection to charge was made at conclusion of judge’s instructions. Not every case in which Crown led identification evidence as part of its case required caution. Even if failure to give instruction amounted to error of law, this was clear case for application of curative proviso. Circumstantial evidence on its own was overwhelming.
R. v. Oswald (Feb. 19, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C57068) 129 W.C.B. (2d) 3.
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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?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.