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Bankruptcy

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.


Appeal

Grounds

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

Powers

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.


Breathalyzer

Time element

Demand for alcohol screening device sample was made forthwith

Accused was convicted of driving “over 80.” Accused applied for leave to appeal summary conviction appeal decision upholding his conviction, arguing that trial judge erred in finding that arresting officer’s demand that accused provide sample of breath into alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relating to whether ASD sample has been taken “forthwith” are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to administration of justice beyond four corners of this case. No error was found in summary conviction appeal judge’s conclusion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for accused to consult with counsel during 13-minute delay. Evidence supported arresting officer’s assumption that nearby officer would deliver ASD shortly.
R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325.


Defences

Self-defence

Self-defence only available if actions were reasonable in circumstances

Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, possession of weapon for purpose dangerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transaction (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complainant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complainant in effort to defend his girlfriend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly admitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered conviction on aggravated assault charge. Defence is only available if actions of accused were reasonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if accused’s evidence was accepted in its entirety, once he wrestled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused’s conduct went far beyond what could be considered reasonable or necessary. No error was seen in trial judge’s consideration of this defence.
R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Decision at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395.












Charter of Rights

Right to interpreter

Onus is upon claimant of right seeking not to testify in language of judicial proceeding

At outset of criminal trial, court was advised that Punjabi interpreter would be required for complainant. Punjabi interpreter was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada’s official languages. As trial progressed, it became evident that complainant understood, and was able to communicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one-half hours. Second, complainant did not visibly experience discomfort while testifying. Third, complainant indicated preparedness to investigating officer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact’s ability to make credibility determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if required. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms presumes that witness will testify in one of Canada’s official languages absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding.
R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317.
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