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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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Criminal Law

Charter of Rights and Freedoms

Life, liberty and security of person [s. 7]

Trial judge erred in holding that s. 7 of Charter was infringed

Detective pretending to be 15 arranged to meet accused after replying to accused’s Craig’s List ad seeking men under 35 wanting fellatio. At lead investigator’s request, documents from accused’s vehicle indicating he was HIV positive were used to prepare media release (release) with accused’s name, address, occupation, church affiliation and HIV status. At trial, accused admitted luring but sought stay under s. 24(1) of Canadian Charter of Rights and Freedoms on basis of, among other things, breach of rights under s. 7. Trial judge found accused guilty of luring and held, among other things, that release violated s. 7 because disclosure of medical information was not authorized or permitted by Municipal Freedom of Information and Protection of Privacy Act or Police Services Act (PSA). Trial judge dismissed application for stay, finding no evidence release aggravated consequences of accused being charged with luring, no evidence to support conclusion that indiscriminate and unlawful disclosure was ongoing institutional problem, and that prejudice suffered by accused could be addressed by stern rebuke and reduction of sentence. Accused appealed dismissal of stay application; Crown appealed sentence. Appeal from conviction dismissed; appeal from sentence allowed. Trial judge erred in holding that disclosure of HIV status in release engaged and infringed s. 7. Section 7 protection against deprivations of or intrusions upon personal security was not absolute. State conduct had to have serious and profound effect on psychological integrity. Trial judge’s holding that s. 7 was engaged and infringed anytime police violated individual’s reasonable expectation of privacy by unlawfully circulating individual’s private medical data did not reflect controlling standard. Finding was at odds with factual conclusion that release would have no effect on accused’s career independent of effect of luring charge. Real issue was not whether actions of police were authorized or prohibited by statute but whether release met threshold of serious and profound effect on accused’s psychological integrity. There was no evidence chief or designate authorized disclosure or reasonably believed accused posed risk of harm to others and that disclosure would reduce risk. Disclosure of HIV status in release about arrest was not so disconnected from law enforcement concerns over existence of potential victims as to render disclosure unreasonable violation of accused’s security of person or informational privacy.
R. v. Gowdy (2016), 2016 CarswellOnt 20589, 2016 ONCA 989, David Watt J.A., G.J. Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 15706, 2014 ONCJ 592, M.S. Block J. (Ont. C.J.). (Ont. C.A.); varied (2014), 2014 CarswellOnt 18004, 2014 ONCJ 696, M.S. Block J. (Ont. C.J.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge erred in invoking s. 24(1) of Charter

Accused edited 74 child pornography films during three years working for co-accused employer. Accused was kept for three days due to adjournment Crown obtained to prevent destruction of evidence on computer although concern was eliminated before three days passed. Accused claimed he was not given his OCD medication on first or second day in custody, was tripped and hit on back of head, was kept in cell overnight dressed only in boxer shorts with no mattress or covers, was given little to drink or eat, and that guards told other inmates of reason for his arrest. Trial judge held that loss of three days’ liberty due to adjournment was arbitrary detention violating accused’s rights under s. 9 of Canadian Charter of Rights and Freedoms and that state agents’ treatment of accused infringed accused’s rights under s. 7 of Charter but declined to enter stay of proceedings. After accused pleaded guilty and was convicted of making child pornography, trial judge sentenced accused to conditional sentence of 21 months to be served in community. Trial judge noted that accused had no criminal record, that nature of charge was at lower end of spectrum, that term of imprisonment would not be proportionate to accused’s role, that accused’s risk of suicide in jail was very high, and held that this was exceptional case requiring override of mandatory one-year prison term for offence. Crown appealed. Appeal allowed; sentence set aside and substituted with 21-month imprisonment sentence, operation of which was to be stayed given accused’s completion of conditional sentence and absence of penological principle or state interest in his re-incarceration. Trial judge erred in finding that accused’s rights under ss. 7 and 9 of Charter were infringed. Trial judge erred in invoking s. 24(1) of Charter to impose sentence outside statutory limits for offence. Trial judge assessed state-imposed psychological stress subjectively based on effects on accused who was susceptible to anxiety and stress due to OCD, rather than on objective basis as required by s. 24(1). Trial judge could have fashioned effective remedy for state conduct within confines of Part XXIII of Criminal Code. If significant bodily harm and repeated assaults on accused in Supreme Court of Canada case did not meet threshold of “exceptional case” for application of s. 24(1) to reduce sentence to outside statutory limits, this case clearly fell short of that threshold.
R. v. Donnelly (2016), 2016 CarswellOnt 20585, 2016 ONCA 988, David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 15683, 2014 ONSC 6472, Nordheimer J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Police breached accused’s Charter rights

Accused was convicted of dangerous driving causing bodily harm and assault with weapon, namely motor vehicle. Charges arose out road rage incident involving accused and van driver, who cut accused’s car off, got out of his van, and approached accused. Accused drove forward, striking van driver. Following his arrest for dangerous driving, accused spoke to duty counsel, but after interview officer told him that he was also going to be charged with assault with weapon, accused asked to contact his own lawyers. Interview officer attempted to contact accused’s lawyers, but upon being told that accused had spoken to duty counsel, officer concluded that accused had had opportunity to consult with counsel and continued interview. Accused appealed convictions, alleging that trial judge erred in failing to find that his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were breached and in failing to exclude evidence of police interview under s. 24(2) of Charter. Appeal allowed. In determining whether accused’s jeopardy had changed, trial judge erred in focusing on facts that charges arose from same circumstances, offences carried same maximum penalty, and new charge was hybrid offence. Assault with weapon charge significantly increased accused’s alleged moral blameworthiness as it required proof that he acted intentionally to harm van driver, rather than that his driving constituted marked departure from norm, and it markedly increased potential penalty. It would be speculative to assume that advice from duty counsel, and accused’s reaction to that advice, would necessarily have been same regardless of any advice about additional charge. Trial judge erred in failing to find that police breached accused’s rights under s. 10(b) of Charter, and his s. 24(2) analysis attracted no deference. New trial ordered.
R. v. Moore (2016), 2016 CarswellOnt 19828, 2016 ONCA 964, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).

Criminal Law

Narcotic and drug control

Evidence

Reasonable and probable grounds for arrest were objectively established

Following 911 call, dispatch radioed officers with information of person with gun. Dispatch alerted officers that suspects had firearm and were in silver four-door Dodge sedan. Two occupants of vehicle were light-skinned black males who appeared to be under 24 years of age. Officer stopped Dodge sedan at issue and initiated high risk takedown. Officer handcuffed accused and told him that he was under arrest for possession of firearm. Accused was found to have marijuana and cocaine on his person. Accused brought unsuccessful application to have cocaine excluded from evidence. Accused was convicted of possession of cocaine for purpose of trafficking. Accused appealed decision to include evidence of cocaine. Appeal dismissed. When officers first encountered suspect vehicle, it was being driven at high rate of speed. Everything that officers saw was consistent with information that 911 callers had given. There was no reason to discount information. Officers had every reason to believe that occupants of suspect vehicle were in possession of handguns. Reasonable and probable grounds for arrest were objectively established.
R. v. Carelse-Brown (2016), 2016 CarswellOnt 19894, 2016 ONCA 943, K. Feldman J.A., E.E. Gillese J.A., and M.L. Benotto J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Detention and release after trial

Continued detention was warranted

Accused, now 63 years old, was found not guilty by reason of insanity of using weapon while committing sexual assault and had been detained under jurisdiction of Ontario Review Board for over 30 years. At his last annual hearing, accused was unrepresented and his request for adjournment to retain counsel was denied because hearing date was marked peremptory. Hospital sought accused’s continued detention but asked Board to transfer him to another hospital because he was unmanageable. Board found that accused’s continued detention was warranted because he remained significant threat to safety of public, but refused to order his transfer to another hospital. Appeal by accused dismissed. Board erred in its approach to accused’s request for adjournment and in not specifically addressing his complaint about sleep deprivation. Peremptory designation did not exhaust Board’s discretion or preclude it from granting adjournment if one was required in interests of justice. Refusing adjournment solely because hearing date had been designated peremptory amounted to error in principle. However, in practical terms, issue was moot. On central issue of whether accused should be transferred to another hospital, Board concluded that evidence of doctors who testified as to ongoing abuse and trauma that accused had allegedly inflicted on numerous hospital staff members was outweighed by dramatic improvements in accused’s condition while at hospital. Accused insisted on being awakened for hourly checks on his condition during night, leading to ongoing sleep deprivation. Board did not address issue in its reasons. Board was obliged to explore what hospital had done to address accused’s sleep problem in more detail than it did at last hearing. Board was urged to explore issue of accused’s sleep deprivation and, if not already done, was directed to obtain independent opinion.
Conway, Re (2016), 2016 CarswellOnt 19061, 2016 ONCA 918, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3966, N.D. McRae Alt. Chair, J. Burnside Member, G. Nexhipi Member, T. Verny Member, and J. Cyr Member (Ont. Review Bd.).

Criminal Law

Narcotic and drug control

Offences

New trial was ordered

Evidence. Accused drove transport truck loaded with raspberries from California to Ontario. When Canada Border Services Agency officers opened trailer of accused’s truck at border crossing, they saw two suitcases on top of skids of raspberries, which contained 39 kilograms of cocaine. Accused was charged with importing and possessing cocaine for purpose of trafficking. Accused denied seeing luggage on load in truck. Crown led evidence that accused had considerably under-reported length of his stop in California, and evidence suggesting it was unlikely that luggage was loaded on truck at same time as berries. Accused was acquitted and Crown appealed. Appeal allowed. Trial judge erred by making findings of fact based on speculation, and relied on those findings to conclude that accused was not “only” person who would be in position to retrieve drugs. Significance of that conclusion to trial judge’s ultimate determination was readily apparent when considered in context of defence that accused was “blind courier”. Trial judge also erred by failing to consider all of evidence in relation to ultimate issue of guilt by using piecemeal approach, effectively requiring Crown to prove each individual piece of evidence beyond reasonable doubt. Failure to consider evidence as whole is error of law warranting appellate intervention. Trial judge’s legal errors clearly affected his verdict of acquittal. New trial ordered.
R. v. Knezevic (2016), 2016 CarswellOnt 18886, 2016 ONCA 914, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.).

Criminal Law

Offences

Criminal negligence causing death


Appeal of conviction for criminal negligence causing death was dismissed

Truck driven by accused drifted into oncoming traffic and collided head-on with mini-van, killing its driver. Accused was convicted of dangerous driving causing death and criminal negligence causing death. Conviction for dangerous driving causing death was stayed in accordance with R. v. Kienapple. Accused appealed conviction for criminal negligence causing death. Appeal dismissed. Accused submitted that trial judge failed to adequately explain to jury elements of criminal negligence causing death and how that offence differs from offence of dangerous driving causing death, and to adequately relate evidence to offence. Trial judge properly instructed jury on elements of criminal negligence causing death and explained difference between that offence and lesser offence of dangerous driving causing death. In response to jury question seeking clarification about difference between dangerous driving causing death and criminal negligence causing death, trial judge repeated relevant portions of his charge and added that for criminal negligence causing death, conduct must be more marked than for dangerous driving in both physical and mental elements of offence. Trial judge reviewed elements of offence of dangerous driving and summarized relevant evidence.
R. v. Bhangal (2016), 2016 CarswellOnt 17933, 2016 ONCA 857, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).
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