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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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Proof of offence

Discreditable conduct evidence was relevant to motive

Either residence’s owner or accused started fire in hole in basement stairway wall of owner’s 150-year old farmhouse. Accused and complainant, in romantic relationship at time, were only people at house that day. Crown alleged accused started fire at issue to avoid having to disclose to complainant that she did not have closing funds she claimed she had for property parties were supposed to buy together. That, in turn, would have risked exposing accused’s lies about her marriage, money she claimed to be receiving from her husband’s death and sale of their matrimonial home. Accused appealed her conviction for arson, arguing that trial judge reversed burden of proof, improperly allowed discreditable conduct evidence, and misapprehended evidence. Appeal dismissed. Discreditable conduct evidence was relevant to motive and properly admitted. Trial judge did not reverse burden of proof and impugned statements reflected he was responsive to defence arguments. While complainant had opportunity to set garage fire, trial judge rejected only apparent motive he would have had to start that fire: namely, to collect home insurance. That finding was based on accepting complainant’s evidence that he would not have benefitted from insurance claim, and was entitled to deference. Accused had motive to set house fire as trial judge found and even on her evidence, accused had about two to three minutes of opportunity to start garage fire. Trial judge found that accused was not credible witness on central issues of case such that misapprehension of impugned evidence would not have played central role in trial judge’s reasoning process resulting in conviction.
R. v. Bos (June 7, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C56169) Decision at 103 W.C.B. (2d) 242 was affirmed. 131 W.C.B. (2d) 223.


Demand for breath (blood) sample

There was no breach of s. 8 of Charter in breath sample demand

Accused was charged with impaired driving offences, stemming from car accident which injured three occupants of another vehicle. Other charges were stayed or dismissed, leaving three counts of impaired driving causing bodily harm. Accused was convicted at trial of these charges. Accused claimed that statements he made to police at scene should not have been admitted as evidence. Accused claimed he was compelled to make statements before being able to consult with counsel. Accused claimed that no proper breath sample demand was made, and that breath sample results should not be admitted. Accused appealed from conviction on this basis. Appeal dismissed. Accused was under no reasonable belief at time of statement that he was compelled to report accident. Accused was not told by officer he had to make statement. Accused did not apply at trial to exclude statements under applicable sections of Canadian Charter of Rights and Freedoms. This ground of appeal failed as result. Third officer inadvertently failed to read breath sample demand to accused at scene. Demand was only made after technician reminded officer of need to do so, at police station. Technician’s demand for breath sample was based on reasonably formed grounds, and was done within three-hour time limit from offence. As technician had no prior notice of what had taken place, demand was made as soon as practicable. There was no breach of s. 8 of Charter in demand that was made.
R. v. Guenter (July 19, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C55574) 131 W.C.B. (2d) 129.


Sentence appeal

Trial judge’s determination of credit for pre-trial custody was entitled to deference

Accused was engaged with his son in criminal joint venture that involved large amount of cocaine and was arrested pursuant to major police operation. While on judicial interim release, accused was arrested and charged with new offences and was detained in custody on new charges and charges currently before court for total of 608 days. Accused was convicted of trafficking in cocaine. At sentencing hearing, accused brought application that s. 719(3.1) of Criminal Code violated s. 7 of Canadian Charter of Rights and Freedoms. Accused’s Charter application was granted; accused was sentenced to 5.5 years’ imprisonment, less credit of 730 days. Portion of s. 719(3.1) of Code that removed ability to determine credit for pre-sentence custody violated s. 7 of Charter and was of no force and effect in this proceeding only. Accused was given some credit for his pre-sentence custody as he might have lost eligibility for early release and parole, but not at rate of 1.5-to-1. Accused had extensive criminal record, he did not avail himself of any available programs while in remand, and he was sanctioned for violent assault on another prisoner while in jail. Accused was given 730 days’ credit for pre-sentence credit, which was approximately 1.2 days’ credit for each day of pre-sentence custody. Accused appealed. Appeal dismissed. While sentence was clearly at high end of range, there was no error in principle. Trial judge considered circumstances of accused including his very lengthy criminal record and aggravating fact that offence was committed with his son. Trial judge’s determination of credit for pre-trial custody was entitled to deference.
R. v. Jupiter (June 1, 2016, Ont. C.A., J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A., CA C61092) Decision at 123 W.C.B. (2d) 287 was affirmed. 131 W.C.B. (2d) 185.

Charter of Rights

Right to be informed of specific offence

There was no breach of accused’s s. 10(a) Charter rights

Accused was seen leaving premises in vehicle prior to tactical unit entering premises to execute search warrant and was followed. Vehicle was stopped and police went ahead with high risk takedown. Accused was arrested for firearms related offences and detained in rear of police cruiser. Accused made two utterances while in police car. Handgun was found in premises. Accused was charged with various offences related to unlawful possession of handgun and with possession of marijuana. Accused challenged voluntariness of statements and sought declaration that his Canadian Charter of Rights and Freedoms ss. 9, 10(a) and (b) rights were violated at time of his arrest. Accused applied for exclusion of evidence. Application dismissed. Accused understood charges he was facing sufficiently to propose deal whereby he would protect his girlfriend and avoid potential for other criminal activity to be discovered during search. Accused indicated his intention to speak with lawyer. Information provided by officers was sufficient to meet requirements of s. 10(a) of Charter. There was no breach of accused’s s. 10(a) Charter rights. 

R. v. Lacroix (May 6, 2016, Ont. S.C.J., Marc Labrosse J., 11A-8440) 131 W.C.B. (2d) 32.

Charter of Rights

Enforcement of rights

Superior Court has jurisdiction to consider applications that have been rendered moot

Accused pleaded guilty to producing marihuana and cannabis resin. Crown originally gave notice that it was seeking mandatory minimum sentence of six months’ incarceration, pursuant to s. 7(2)(b)(i) of Controlled Drugs and Substances Act (Can.) (“CDSA”). Accused commenced application in Superior Court challenging constitutionality of s. 7(2)(b)(i) of CDSA (“application”). Prior to hearing of application, Crown informed accused that it would not rely on notice provision contained in s. 8 of CDSA, which rendered application moot. Hearing was held to consider request by accused that court exercise its discretion to hear application. Request by accused rejected; application dismissed. Superior Court does have jurisdiction to consider applications that have been rendered moot. However, this was not one of those rare cases where court ought to consider moot issue. Recent Ontario decision provided thorough and thoughtful analysis of s. 7(2)(b)(i) of CDSA. That decision was being appealed, and appellate review would provide better forum for constitutional challenge. Defence argument that s. 7(2)(b)(i) of CDSA created inflationary floor for sentencing was not satisfactory. Hearing of application would require undue consumption of judicial resources. 

R v. Morris (June 16, 2016, Ont. S.C.J., Mulligan J., Barrie 14-036) 131 W.C.B. (2d) 18.



Accused relied on mistake of age defence

Accused, who was 40-year-old male, picked up complainants, who were two teenaged girls who were hitchhiking. One girl was 14 and one-half years old and other girl was 15 and one-half years old. Complainants expressed interest in engaging in sexual activities and accused drove to parents’ home where they had sexual intercourse. Complainants could not consent to sexual acts but trial judge allowed accused to rely on mistake of age defence and acquitted accused. Crown appealed acquittal. Appeal dismissed. There was no basis for appellate intervention with judge’s holding that accused took all reasonable steps to ascertain complainants’ ages. Furthermore, reasonable person would have been satisfied that complainants were over 16, just as complainants intended, without need for further inquiry.
R. v. Chapman (Apr. 28, 2016, Ont. C.A., E.A. Cronk J.A., M. Tulloch J.A., and K. van Rensburg J.A., CA C60515) 130 W.C.B. (2d) 403.

Motor Vehicles

Dangerous driving

Accused was repeatedly informed of dangerousness of driving

Accused drove vehicle with three passengers and got into race with another vehicle. Accused’s vehicle spun out of control and crashed. S, who was front seat passenger in accused’s car, was ejected from car and suffered serious injuries. Just prior to accident S asked accused twice to slow down but accused refused to comply. Accused was charged with three counts of dangerous driving causing bodily harm. Accused was convicted of dangerous driving related to S but was acquitted regarding other two passengers. Accused appealed conviction. Appeal dismissed. There was sufficient evidence to prove that accused’s driving was cause of S’ injuries. Even though other driver was acquitted of dangerous driving verdicts were not inconsistent. Case against accused was stronger because only accused was being repeatedly informed of dangerousness of driving.
R. v. Siddiqui (May. 13, 2016, Ont. C.A., Gloria Epstein J.A., S.E. Pepall J.A., and K.M. van Rensburg J.A., CA C60692) 130 W.C.B. (2d) 364.

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