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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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Contempt Of Court

GROUNDS

Mother’s denial of access completely without merit

Motion by father for order finding mother to be in contempt of court. Parties had two children and separated. Minutes of Settlement provided that parties share joint-custody, that children live primarily with mother and that father have specified access to children. Father alleged that mother was in breach of terms of access. Mother did not appear at hearing. Motion granted. Mother denied father access to children from 2008 to present, contrary to judgment. Mother breached terms of judgment by failing to advise father of children’s addresses; failing to provide telephone access to the children; failing to consult and advise father as to change of schooling for children; failing to provide children’s report cards; and failing to advise father about child’s autism diagnosis. Mother’s denial of access was completely without merit.

Mitchell v. Landriault (Aug. 11, 2011, Ont. S.C.J., Pierce J., File No. FS 35/00) 96 W.C.B. (2d) 206 (11 pp.).

Appeal

GROUNDS

Complainant’s evidence remained reliable and credible

Appeal from conviction. Accused was convicted of two counts of sexual assault, sentenced to 60 days’ imprisonment and 12 months’ probation. When appeal argued, he had served entire term of both his incarceration and probation. Trial judge found that accused placed his hand on complaint’s chest above her breast and that he put his hand on complainant’s ankle while he masturbated; accused massaged shoulder of complainant for sexual purpose and touched her thighs and spread her legs for sexual purpose. Trial judge reviewed evidence of accused and provided reasons why she rejected it. She was alive to frailties of complainant’s evidence. Trial judge’s reasons were not lacking in proper analysis. While trial judge did not specifically mention the third test of W. (D.), it was clearly in her mind in assessing evidence as whole. She was alive to concerns about why complainant acted in way that she did and whether those concerns were able to be explained in a manner that allowed justice to conclude that complainant’s evidence remained reliable and credible. Appeal dismissed.

R. v. Oyebade (Aug. 15, 2011, Ont. S.C.J., Gilmore J., File No. 09-05487) 96 W.C.B. (2d) 193 (6 pp.).

Appeal

FRESH EVIDENCE

No credible explanation for reason for witness’ recantation two years after the fact

Accused convicted of robbery. Crown’s case resting on evidence of two unsavoury witnesses identifying accused. Two years after trial, Crown witness providing sworn affidavit recanting his trial testimony implicating accused. Application to adduce recantation as fresh evidence dismissed and appeal dismissed. While admissibility and due diligence criteria met, recantation was incredible and unworthy of belief. No credible explanation for reason for witness’ recantation two years after the fact. Affidavit contained false statements and witness’ attitude to veracity of its contents ambivalent. Recantation could not reasonably be expected to affect assessment of witness’ trial testimony implicating accused in robbery.

R. v. Snyder (June 10, 2011, Ont. C.A., Doherty, Feldman and Epstein JJ.A., File No. C48284) 96 W.C.B. (2d) 121 (28 pp.).

Charter Of Rights

ENFORCEMENT OF RIGHTS

Impact of breaches on Charter-protected interests of accused were significant

Accused applied to for stay of proceedings or exclusion of evidence based on unreasonable search and seizure. Accused also alleged she was unlawfully detained and that police failed to make provision for her personal needs over course of search. Stay not appropriate remedy. Case involved incidents of past misconduct. While police misconduct should not be condoned it did not rise to level of granting stay in case. Evidence not admitted. Casual disregard for rights of accused could not be condoned. Impact of breaches on Charter-protected interests of accused were significant. Those factors outweighed interests of having case determined on its merits. Admission of evidence would bring administration of justice into disrepute.

R. v. Phillips
(June 21, 2011, Ont. S.C.J., Gordon J., File No. 01/10) 96 W.C.B. (2d) 79 (8 pp.).

Appeal

GROUNDS

Sufficient evidence of fugitive’s conduct to support inference that he was person who created false documents

Appeal by fugitive from order that committed him for extradition to Hungary to be prosecuted for fraud over $5,000. Fugitive was alleged to have engaged in ongoing fraudulent scheme in which he defrauded banks of $49,000 by submitting false car leasing agreements with information he had access to as managing director of car dealership. He was also alleged to have defrauded banks and individuals of $35,800 by entering into loan agreements that he did not intend to pay and by using collateral that he did not own. Extradition judge found evidence was sufficient to justify fugitive’s committal for fraud over $5,000. Appeal dismissed. Available evidence certified in Records of the Case was sufficient to justify fugitive’s committal. Contrary to fugitive’s submission there was sufficient evidence of fugitive’s conduct to support inference that he was person who created false documents or who entered into fraudulent transactions with injured parties. Judge, therefore, did not err in ordering fugitive’s committal.

Republic of Hungary v. Toth (
July 26, 2011, Ont. C.A., Laskin, Rosenberg and Karakatsanis JJ.A., File No. C52445; C53192) Decision at 96 W.C.B. (2d) 24 affirmed. 96 W.C.B. (2d) 23 (14 pp.).

Evidence

CIRCUMSTANTIAL EVIDENCE

Motive relevant by making it more likely accusedcommitted crime

Accused doctor convicted of manslaughter in death of wife. Cause of death multi-drug toxicity caused by legal levels of two anesthetics. Accused testifying he injected wife with acceptable levels of anesthetic for therapeutic purposes. Defence theorizing death caused by deceased administering further doses of anesthetic, consuming alcohol. Crown theorizing death caused by criminal negligence. Crown alternatively theorizing accused committed manslaughter by unlawful act of aggravated assault by intentionally administering harmful amount of anesthetic. Trial judge charging jury on both theories of liability. Crown relying on evidence of declining state of marriage as evidence of motive to commit manslaughter by intentional assault. Appeal from conviction dismissed. Trial judge did not err by admitting evidence of motive even though accused not charged with murder. Though not essential element of criminal responsibility, motive relevant by making it more likely accused committed crime. Motive piece of circumstantial evidence showing accused intentionally injected wife with anesthetic.

R. v. Roncaioli (May 13, 2011, Ont. C.A., Laskin, Armstrong and LaForme JJ.A., File No. C48861) 95 W.C.B. (2d) 583 (23 pp.

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.).
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