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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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Assault

COMMON ASSAULT

Complainant’s explanation for delayed complaint plausible in circumstances

Accused and complainant had been involved in relationship. Complainant testified that when she attempted to leave accused’s house, he pushed her onto couch and pinned her hands. Complainant testified accused choked her to point she felt unable to breathe. Complainant went to police about 10 days after incident after family friend told her abuse would not otherwise stop. Accused denied allegations. Accused found guilty. Complainant testified in straightforward manner without embellishment or animus. Complainant’s explanation for delayed complaint was plausible in circumstances. Complainant was not seriously challenged on material issues of fact. Complainant was credible and reliable. Accused’s suggestion that complainant left his home in anger because of photos on display made little sense. Accused, likely fueled by alcohol, manhandled complainant as she described.

R. v. Narain
(July 5, 2011, Ont. C.J., Feldman J.) 95 W.C.B. (2d) 561 (7 pp.).

Charter Of Rights

RIGHT TO COUNSEL

Accused’s circumstances and jeopardy never changed from time of arrest to time of interview

Accused charged with three counts of arson and two counts of mischief. Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. Accused was arrested after police searched his computer. Police were aware that accused’s parents were forbidding their interviewing of any of their children without either their presence, or that of counsel retained by them. Accused spoke to counsel following his arrest. Application dismissed. No evidence that counsel was dissatisfied with contact he had with accused. No concern expressed by accused during his interview that he needed more time, was dissatisfied in any way with advice received, or wished to speak to counsel again. While only 18 years and 2 months at time of his arrest, accused was considered adult and his parents were not in position to demand that his lawyer be present during interview. Accused’s circumstances and jeopardy never changed from time of his arrest to time of interview and no subsequent right or access to counsel was mandated. No breach of accused’s rights.

R. v. Gander
(June 6, 2011, Ont. S.C.J., Thomas J., File No. CR-10-00002703-00MO) 95 W.C.B. (2d) 495 (15 pp.).

Assault

COMMON ASSAULT

Accused’s evidence non-responsive, self-serving, confusing, discursive and inconsistent

Accused charged with assault, uttering death threats and forcible confinement stemming from incident with his then wife. Allegedly, after an argument, accused punched complainant in the head and when she informed him of her intention to phone police, made remarks to the effect that he would bring her back to Afghanistan where he could deal with her without any legal consequences. Complainant, with assistance of bed sheets, left apartment by climbing down from the balcony. Accused found guilty of assault and uttering death threats, not guilty of forcible confinement. Court found accused’s evidence to be non-responsive, self-serving, confusing, discursive and inconsistent and likewise found testimony from other defence witnesses wholly unbelievable or of little value. Court accepted testimony of the man who drove complainant to police station as a wholly unbiased witness whose testimony was consistent and uncontradicted. Court accepted complainant’s testimony. Case for forcible confinement not made out.

R. v. Wardak (June 9, 2011, Ont. C.J., Wright J., File No. 998-11-04214-00) 95 W.C.B. (2d) 468 (12 pp.).

Courts

JUDGES

No rational basis for conclusion that judge’s reasons contained prejudgment of witness’s credibility

Crown applied for judge to recuse himself and for mistrial on basis of reasonable apprehension of bias during trial of two accused for kidnapping and murder. Judge had earlier ruled on two applications wherein defence alleged that Crown had conducted improper interview of witness who had been co-accused. Defence had alleged that disclosure of photographs and interview itself led to witness changing his testimony from his preliminary evidence. Judge ruled that because of conduct by Crown at preparatory interview of witness, trial should continue without jury. Application dismissed. There was no rational basis for conclusion that judge’s reasons contained prejudgment of witness’s credibility or any apprehension of bias against Crown.

R. v. Spence (June 9, 2011, Ont. S.C.J., Howden J., File No. 09-225) 95 W.C.B. (2d) 383 (11 pp.).

Breathalyzer

REFUSAL TO PROVIDE SAMPLE

Judge erred by implying that it was accused’s onus to show device did not work properly

Appeal by accused from her conviction for failing to comply with demand for roadside breath sample. She narrowly avoided hitting a motorcyclist and she came to a stop against highway median. Police officer arrived at scene and smelled alcohol on accused’s breath. She demanded that accused provide breath sample into roadside screening device. Accused made 23 attempts to blow into device. Officer needed to use two devices because after 11 attempts first device displayed low battery message. Trial judge found that accused’s overall conduct clearly demonstrated intention to frustrate taking proper sample. Appeal allowed. New trial ordered. Judge did not properly apply burden of proof for he rejected accused’s evidence but did not properly assess reliability of remaining evidence which was from police officer. He also erred by implying that it was accused’s onus to show that device did not work properly. Rather, it was Crown’s onus to show that device worked properly, especially in this case where accused made unsuccessful attempts to provide breath sample.

R. v. Pinard (Apr. 7, 2011, Ont. S.C.J., Parfett J., File No. 09-2213) 95 W.C.B. (2d) 351 (7 pp.).

Drug Offences

POSSESSION FOR PURPOSE OF TRAFFICKING

Much of evidence pointed to accused being visitor in the home

Accused charged with possession for purpose of trafficking. Accused and several others were arrested during execution of search warrant. Various articles that showed accused presence in the apartment had been found including his fingerprints on a bag of marijuana. Not enough evidence existed to convict accused beyond a reasonable doubt. Much of the evidence pointed to accused being a visitor in the home. There are a number of other reasonable possibilities beyond that accused had control of drugs.

R. v. Ngo (May 12, 2011, Ont. C.J., Shamai J.) 95 W.C.B. (2d) 134 (7 pp.).

Charter Of Rights

EQUALITY RIGHTS

Law did not operate in way that undermined accused’s human dignity

Accused appealed conviction for failing to wear approved helmet while operating motorcycle, contrary to s. 104(1) of Highway Traffic Act (Ont.) (“HTA”). Accused was practicing Sikh and did not dispute that he operated motorcycle on highway without helmet. Trial judge concluded that helmets markedly reduced deaths and head injuries experienced by motorcycle riders. Trial judge found nothing in purpose or effect of legislation which was in conflict with s. 15 of Charter. Accused argued trial judge erred in failing to grant application challenging validity and Human Rights Code (Ont.) compliance of s. 104(1) of HTA, which he alleged contravened s. 15 Charter rights. Appeal dismissed. Rational and informed person would understand that law did not operate in way that undermined accused’s human dignity, that it reflected stereotypical approach toward accused for group to which he belonged, or that such individuals were less worthy of recognition or value. No breach of s. 15(1) of Charter.

R. v. Badesha
(May 20, 2011, Ont. C.J., Takach J., File No. 83382604) 95 W.C.B. (2d) 122 (42 pp.).
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