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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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Charter of Rights

RIGHT TO COUNSEL

Police failed to fulfil duty to provide reasonable opportunity for accused to consult counsel of choice

Application to exclude evidence. Motorist observed accused swerving into lanes without signaling, causing motorist to change lanes to avoid a collision. Motorist phoned police. Accused ignored officer’s police lights and siren for almost a kilometer while officer mouthed and signaled to him to pull over. Once stopped, officer observed extreme odour of alcohol emanating from vehicle and that accused’s eyes were red and bloodshot. Accused was arrested for impaired driving. At station, officer phoned lawyer of accused’s choice and left message. Officer then phoned duty counsel. Accused repeatedly and forcefully asked to speak to his own lawyer. Duty counsel phoned back and accused spoke to duty counsel. Another call was placed to accused’s lawyer of choice. Accused provided sample of his breath 10 minutes later. Application granted. Accused’s rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were not infringed. Officer had reasonable and probable grounds for arresting accused, based on extreme smell of alcohol in accused’s car when she opened door alone. Accused’s right to counsel of choice under Charter s. 10(b) was infringed. Police failed to fulfill their duty to provide reasonable opportunity for accused to consult counsel of his choice. Sarcastic and dismissive comments by officer undermined reasonable efforts. Accused’s right to instruct counsel was infringed when officer would not wait past approximately 10 minutes that had elapsed since second call to accused’s lawyer and in insisting that accused provide breath sample without providing reasonable explanation as to why he would not wait. To admit test results would bring administration of justice into disrepute.

R. v. Samatar (Oct. 7, 2011, Ont. S.C.J., Knazan J.) 97 W.C.B. (2d) 443 (17 pp.).

Assault

ASSAULTING PEACE OFFICER

Reasonable doubt that accused knew there was officer in police cruiser

Accused was charged with assaulting peace officer and two counts of obstructing peace officers in relation to his protest activities at G20. Accused had pleaded guilty to two counts of mischief over $5,000 that related to his willfully damaging two police cars while participating in those protests. It was alleged that accused used a wooden stick to both damage a police cruiser and assault by gesture officer stuck inside one of those vehicles during onslaught by a number of assailants. Surveillance cameras captured accused kicking in window of second police car. It was alleged accused willfully obstructed unnamed police officer in his or her duty to identify suspects by blocking cameras while protestors were seen to be randomly breaking windows of downtown commercial premises. Second count of obstruct police alleged that by participating with others in confining officer in first police cruiser while attacking it, accused obstructed him in execution of his duty. Assault peace officer and two obstruct police charges dismissed. Court was left with reasonable doubt that accused knew there was officer in police cruiser when he joined group that attacked it. Accused admitted to blocking cameras but it was not shown that any of cameras he interfered with were in service to police.

R. v. Cote
(Sep. 7, 2011, Ont. C.J., Feldman J.) 97 W.C.B. (2d) 433 (7 pp.).

Assault

ASSAULTING PEACE OFFICER

Accused was entitled to resist officer

In course of robbery investigation, officers went to accused young person’s house to get his side of story. Officers were invited into house by accused’s mother. When officer entered accused’s bedroom, accused took step to follow him. In attempt to stop accused from entering bedroom second officer put his arm in front of accused. Accused pushed officer’s arm away, knocking officer off balance. Third officer intervened and accused attempted to swat him away. Officers wrestled accused to ground and placed him under arrest. Charges dismissed. No interpretation other than that officer conducted search of accused’s bedroom without consent or search warrant. No exigent circumstances existed to justify search. Officer engaged in unauthorized search of accused’s bedroom. Second officer’s attempt to prevent accused from entering bedroom was unlawful interference with accused’s liberty and property. Accused was entitled to resist officer. Resistance by accused was mild and no more than what was required to proceed past officers blocking his path. Accused’s resistance did not involve unreasonable force. Accused’s resistance to unauthorized search without using unreasonable force did not attract criminal liability.

R. v. R. (T.)
(Aug. 23, 2011, Ont. C.J., Jones J., File No. YO 22900-00) 96 W.C.B. (2d) 444 (8 pp.).

Appeal

GROUNDS

Judge did not confuse touching with sexual touching

Appeal by accused from his conviction on one count of sexual assault on basis that trial judge misapprehended evidence. Complainant, aged 18, consumed substantial amount of alcohol when she was out with accused and other friends. She spent night at accused’s apartment and fell asleep on couch. She woke up twice to find accused touching her vagina. Complainant did not ask accused to stop because she never fully woke up and she was only half awake for several seconds. When she woke up she was unsure as to whether accused assaulted her but by time she returned home she was certain that she had been violated. Friend of accused and of complainant testified that accused admitted to her that he touched complainant and that there was no excuse for this type of behavior. Accused did not testify. Appeal dismissed. Findings of fact made by trial judge were supported by complainant’s evidence. Judge did not misstate or misapprehend the evidence. He did not make inconsistent or contradictory findings regarding complainant’s memory for he believed everything that she said and he found her to be a candid witness. At the same time, however, he properly held that her evidence had to be approached with caution in light of her intoxicated condition. Judge did not fail to distinguish sexual assaults from other instances of touching that occurred between accused and complainant. He clearly understood what constituted sexual assault and he did not confuse touching with sexual touching. Judge did not err in finding that complainant’s evidence proved allegations. He also did not fail to appreciate weaknesses in Crown’s case.

R. v. Lee
(July 15, 2011, Ont. S.C.J., Garton J., File No. 116/09) Decision at 84 W.C.B. (2d) 849 affirmed. 96 W.C.B. (2d) 438 (23 pp.).

Evidence

WITNESSES

Complainant’s prior statements never tendered in evidence

Accused charged with assaults, sexual assaults and threats against three former romantic partners. Accused’s recent partner testified that accused had repeatedly punched her in the back of the head, had assaulted her with a telephone and a chair and had forced her to perform oral sex. Two other former partners testified to various sexual assaults, assaults and threats. Accused testified and denied all allegations. Trial judge accepted evidence of recent partner in reliance on its consistency with her prior statement to police and testimony at preliminary inquiry. Appeal allowed and new trial ordered on those counts. Complainant’s prior statements were never tendered in evidence. Trial judge erred in law by basing verdict on evidence not adduced at trial.

R. v. Smith
(Aug. 26, 2011, Ont. C.A., Weiler, Blair and Epstein JJ.A., File No. C50528) 96 W.C.B. (2d) 352 (27 pp.).

Appeal

GROUNDS

No direct evidence accused subjectively knew death was likely

Accused charged with second degree murder and conspiracy to commit arson. Accused alleged to have helped plan burning of building in order to collect fire insurance proceeds. Two arsonists used excessive gasoline and caused explosion that resulted in one’s death and serious injuries to the other. Crown alleged that accused recruited arsonists and gave building’s owner an alibi. Trial judge convicted accused finding that he must have known that fire would likely cause death. Murder conviction set aside and manslaughter conviction substituted. Conviction for murder was unreasonable. No direct evidence accused subjectively knew death was likely. Accused was not at scene of fire and no evidence established that he knew anything about arsonists’ use of accelerants. Accused’s knowledge that death would likely result from fire was not only reasonable inference on evidence.

R. v. Roks (July 20, 2011, Ont. C.A., Feldman, Rouleau and Watt JJ.A., File No. C48418) 96 W.C.B. (2d) 325 (48 pp.).

Extraordinary Remedies

HABEAS CORPUS

Judge erred by failing to remand accused after cancellation of release

Accused pleaded guilty to three counts of breaching an undertaking while awaiting sentencing on underlying charges. At sentencing hearing on breach counts Crown sought cancellation of accused’s release on underlying charges. Defence argued that court had no jurisdiction to cancel release because accused had not formally been arrested pursuant to s. 524(1) or (2) of Criminal Code. Sentencing judge imposed 10-day sentence and ordered accused’s release cancelled. Matter was spoken to again two days later after judge was told she had not remanded the accused. Sentencing judge remanded accused in custody for six weeks to the date for her sentencing hearing on the outstanding charges. Application for writ of habeas corpus granted. Sentencing judge was entitled to cancel accused’s release despite lack of formal arrest pursuant to s. 524(1) or (2). Accused was lawfully detained and had received notice that Crown would bring s. 524 application so arrest or re-arrest was not required. Sentencing judge erred by failing to remand accused to next available bail court after cancellation of her release. Warrant of remand quashed.

R. v. Ramage (June 13, 2011, Ont. S.C.J., Fregeau J., File No. CR-11-006-MO) 96 W.C.B. (2d) 293 (29 pp.).
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