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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

Trial within reasonable time

Crown did not rebut presumption that delay was unreasonable

In 2016, Supreme Court of Canada issued decision creating new regime for unreasonable pre-trial delay under s. 11(b) of Canadian Charter of Rights and Freedoms (“new s. 11(b) regime”). New s. 11(b) regime established rebuttable presumption that delay over 30 months in Superior Court was unreasonable. For transitional cases involving charges brought prior to new 11(b) regime, Supreme Court of Canada made allowance for account to be taken of previous 11(b) regime. Accused was charged prior to new s. 11(b) regime, and total delay until trial date in Superior Court was approximately 36 months. Accused brought application seeking stay of proceedings based on pre-trial delay. Application granted. Subject delay remained at 36 months, well above 30-month ceiling under new s. 11(b) regime, and was therefore presumptively unreasonable. Twelve-month delay during preliminary hearing was not deducted from subject delay as it could not be attributed to defence. Fact that it was defence witnesses that were being examined during this 12-month delay did not mean delay was attributable to defence. Examinations of defence witnesses covered legitimate topics and were not frivolous, excessive or irrelevant. Crown did not rebut presumption that subject delay was unreasonable by showing exceptional circumstances under new s. 11(b) regime. Crown did not prove that subject delay was justified based on previous s. 11(b) regime. Case at bar was simple and straightforward, with preliminary hearing that took only two days and trial that was expected to take no more than five days.
R. v. Zammit (Aug. 10, 2016, Ont. S.C.J., K.P. Wright J., CR-16-9227) 132 W.C.B. (2d) 331

Drug offences

Possession for purpose of trafficking

Trial judge erred in holding that defence had onus to establish honest belief defence

Accused was found in marijuana grow operation. Accused claimed his boss had licence to operate marijuana operation. Boss had licence for another nearby location, but did not have licence to grow marijuana at location at issue. Accused was convicted of unlawfully producing marijuana and possession of marijuana for purposes of trafficking. Accused appealed. Appeal allowed. Trial judge erred in law in holding that defence had onus to establish honest belief defence, and was wrong to place any onus on accused and to hold that defence could only be made out by evidence that accused had seen licence. Trial judge convicted on basis that accused aided and abetted his boss in cultivation of marijuana, and focused not on whether accused was licensed to cultivate marijuana, but rather on his belief that his boss was licensed to cultivate marijuana. Trial judge may or may not have rejected honest belief defence.
R. v. Johnson (Aug. 18, 2016, Ont. C.A., Doherty J.A., K.M. van Rensburg J.A., and L.B. Roberts J.A., CA C59776) 132 W.C.B. (2d) 239.

Charter of Rights

Enforcement of rights

Society’s interest in adjudication on merits strongly favoured admission of evidence

Officer observed car street racing and pursued it to dead-end street. Accused was seen in distance walking away from car. Backup officers engaged in investigative detention and performed pat-down search of accused’s pockets that revealed keys to car. Accused was eventually arrested for careless driving and pursuant to outstanding warrants. Police used keys to search car and found loaded handgun. Accused was charged with firearms-related offences. Trial judge found that while police did not comply with duties under s. 10 of Canadian Charter of Rights and Freedoms, there were no breaches of ss. 8 and 9, and that gun evidence should not be excluded. Trial judge found that firearm would have inevitably had been discovered regardless of any breaches of s. 10(a) or (b). Accused was convicted. Accused appealed. Appeal dismissed. There was no error in trial judge’s conclusion regarding s. 10 breaches or in his analysis that, had there been s. 8 breach, handgun should not have been excluded. Any breach by police was not deliberate and accused had very limited privacy interest in vehicle that he did not own and had apparently abandoned. Society’s interest in adjudication on merits strongly favoured admission.
R. v. Ellis (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C57843) Decisions at 106 W.C.B. (2d) 674 and 106 W.C.B. (2d) 779 were affirmed. 132 W.C.B. (2d) 226.


False pretences by bankrupt

Defendant contravened s. 198 of Bankruptcy and Insolvency Act (Can.) by fraudulently disposing of firm assets

General contracting firm was formed by defendant in early 2006. Defendant was controlling and directing mind and had previously been bankrupt, and his wife was sole shareholder. Defendant was made aware of cash flow problems by senior managers and liens by contractors began to appear in September 2007. Defendant made clear to senior management of firm throughout 2007 that he had plans for projects in Syria and Lebanon, and that he had arranged plan with Syrian government. Defendant drafted contract of purchase and sale of firm to bookkeeper at end of November. In order to free up planned $2 million to send to Lebanon/Syria, firm had taken and kept significant amounts from company under “factoring scheme” that should have gone to subcontractors, and borrowed $500,000 from company. Total of $1.7 million was sent to bank account in defendant’s name in Lebanon. In January 2008, senior manager received phone call from defendant telling him that money was frozen, was not going to be returned to Canada and that senior manager was to call bonding companies and shut firm down. Losses arising from failure to return money to Canada amounted to approximately $3.8 million. Defendant was charged with various charges under Criminal Code and was also charged under Bankruptcy and Insolvency Act (Can.). Defendant was found guilty of all charges. Financial statements were intentionally falsified by defendant in order to misrepresent to all potential lenders, creditors, and financial institutions that firm was profitable so that he could obtain credit. It was found beyond reasonable doubt that firm was insolvent from at least July 2007. Bankruptcy was necessary for orderly management of assets of firm and competing claimants where it was clearly insolvent. Since firm became bankrupt after clearly being insolvent, he contravened s. 198 of Act when he fraudulently disposed of assets of firm that also included firm proceeds of house sale and firm receivables factored by lender. Defendant knowingly created, directed or connived at fabrication of false financial statements and false deposit slip intending that they be relied upon so as to obtain credit and bonding.
R. v. Eid (May. 2, 2016, Ont. S.C.J., Timothy Ray J., Ottawa 12-20041) 132 W.C.B. (2d) 142.



Trial judge’s finding was not based on misapprehension of evidence

After traffic stop, accused and passenger were arrested for failing to comply with their respective recognizances. Police officers returned to police car while they checked identification and to allow accused to search for letter from surety, observing movement by accused and passenger within vehicle. Accused provided forged note from surety. After accused and passenger exited car, officers observed handle of handgun sticking out from under floor mat in back of car. Accused was convicted of possession of loaded prohibited firearm, unauthorized possession of firearm in motor vehicle, careless storage of firearm, and failure to comply with weapon prohibition order while passenger was acquitted of possession charges. Accused appealed. Appeal dismissed. Trial judge found that movements of accused and passenger during traffic stop were confined to front seat of car and did not include any reaching into backseat area. Accused argued that trial judge erred in concluding evidence eliminated possibility of hastily discarded handgun and deprived him of theory that passenger hid handgun without accused’s knowledge during traffic stop. Trial judge’s finding was open to him on record and was not based on misapprehension of evidence. Police officers’ evidence was that accused and passenger moved side-to-side and that any movement forward and back was confined to front seat. There was no direct evidence that accused or passenger had ever reached into back of car. Obvious implication of trial judge’s finding was that movements were made in search for surety’s note or in forging note that was provided to police. Theory that co-accused hid gun without accused’s knowledge was both speculative and implausible.
R. v. Bonilla-Perez (Jul. 6, 2016, Ont. C.A., S.E. Pepall J.A., M. Tulloch J.A., and G. Pardu J.A., CA C59123) Decision at 112 W.C.B. (2d) 558 was affirmed. 132 W.C.B. (2d) 107.



Police entry was not unlawful

Neighbour of male accused heard him threaten to kill female and called 9-1-1. Police arrived and woman refused to allow them to enter. Police were about to break open door when woman appeared at door and she stepped outside to speak to them. Police entered home without permission and observed marijuana and other drugs and they also found accused. Trial judge decided that police entry was unlawful, he excluded seized drugs as evidence and acquitted accused. Crown appealed acquittal. Appeal allowed. Police acted within law when they entered premises as they did. Judge erred and new trial was necessary.
R. v. Lowes (June 22, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and D.M. Brown J.A., CA C57703) 131 W.C.B. (2d) 449.

Charter of Rights

Enforcement of rights

Police were negligent in not waiting to obtain warrant before search

Police officers suspected that accused was casing gas stations for robbery and wanted to detain him for investigative purposes. When police identified themselves to accused he ran away. Police officer searched car accused left behind and found handgun and Taser. Accused was charged with several firearms offences. Trial judge found that officers had reasonable grounds to detain accused and reasonable grounds to conduct search of car. Trial judge also accepted that accused had abandoned his vehicle within meaning of s. 221(1) of Highway Traffic Act (Ont.) (“HTA”) and that police therefore had authority to conduct inventory search of vehicle. Trial judge found that in event he was wrong about constitutionality of search that gun and Taser should nevertheless not be excluded under s. 24(2) of Canadian Charter of Rights and Freedoms. Accused was convicted. Accused appealed. Appeal allowed; accused acquitted. Trial judge’s s. 24(2) analysis was flawed and not entitled to deference. Admission of evidence would bring administration of justice into disrepute. There was no evidence of wilful misconduct on part of police officers, but they were negligent in not waiting to obtain warrant before beginning search. Police conduct could not be categorized as inadvertent and it fell closer to more serious end of spectrum. There was no common law authority for search, nor any basis for finding vehicle to have been abandoned within meaning of s. 222(1) of HTA. Taser and handgun were reliable and objective pieces of evidence and Crown’s case could not succeed if they were excluded.
R. v. Dunkley (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C59524) Decision at 111 W.C.B. (2d) 822 was reversed. 131 W.C.B. (2d) 471.

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