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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

ARBITRARY DETENTION OR IMPRISONMENT

Lack of reliability concerning initial tip increased obligation of officers

Accused sought to exclude evidence regarding his arrest for cocaine trafficking. Police received anonymous tip and put accused under surveillance and observed him have four meetings which police suspected were drug transactions. Accused was long term resident of community, knew lots of people and was observed to meet in place such as department store and hockey game. Application granted, evidence excluded. Court did not find reasonable and probable grounds for arrest, various meetings could be accounted for by other explanations and all of them appeared to be neutral in nature. Lack of any reliability concerning initial tip and accused’s lack of criminal record increased obligation of officers in their investigation to at least observe hand to hand transaction or, where drugs were later found, face to face meeting. It was especially necessary considering fact that accused appeared to have been long time resident of community who knew many people with meetings having possible innocent explanation.
R. v. Biadi (Apr. 22, 2014, Ont. S.C.J., McDermot J., File No. CR-12-00004914-0000) 112 W.C.B. (2d) 771.

Appeal

GROUNDS

Misapprehended evidence relied on to make crucial credibility assessments at trial

Trial judge convicted accused of sexual assault of neighbour’s five-year-old daughter. Complainant testified during horseplay where accused blew on children’s stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Forensic expert testified deposits of accused’s DNA found in complainant’s underwear but not from external vaginal swab. Forensic expert testified secondary transference of DNA to underwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to underwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster credibility of complainant and reject evidence of accused. Appeal allowed and new trial ordered. Trial judge critically misapprehended forensic evidence by stating deposit could only have been through oral sex and wholly ignored negative result of vaginal swab. Misapprehended evidence relied on to make crucial credibility assessments at trial. Correctly apprehended forensic evidence tended to bolster accused’s admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant’s evidence oral sex occurred.
R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788.

Arson

ELEMENTS OF OFFENCE

Arson was specific intent offence and appropriate to consider evidence of intoxication

Trial judge acquitted accused of arson after considering evidence of accused’s intoxication. Accused stayed at girlfriend’s residence following breakup and drinking to excess while agitated. Accused woke up and left bacon cooking on “high” while intoxicated and leaving residence to return to fire. Trial judge considered defence of accident and accused’s intoxication after concluding arson was specific intent offence. Trial judge finding reasonable doubt accused had ability to understand fires could be likely outcome of actions. Crown’s appeal dismissed. Trial judge correct that arson was specific intent offence and appropriate to consider evidence of intoxication. Offence of arson required proof of subjective mental elements of intent or recklessness. Parliament intended to distinguish arson in s. 434 from accidental fires by including offence of arson by negligence in s. 436.
R. v. Tatton (Apr. 8, 2014, Ont. C.A., S.T. Goudge J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C57550) 112 W.C.B. (2d) 643.

Appeal

NEW TRIAL

Unresolved concerns about secondary evidence affected its probative value

Appeal by accused from judgment that convicted him of stealing under $5,000 from his employer. Accused worked for fast food restaurant and proceeds of sale for November 20, 2009, in amount of $2,653, were missing. Accused was manager on November 21, 2009 and one of his tasks was to ensure that previous day’s revenues were delivered to bank night deposit chute. He was last person from restaurant to have possession of deposit package. Accused claimed he took package to chute, dropped it in and he returned to restaurant for day. Video recording of chute was destroyed but Crown advanced secondary best evidence from three witnesses who claimed to have viewed video recording and they did not see accused at chute. One of witnesses, who worked for landlord of premises where bank was located and who had control of video recordings, confirmed that video was not altered or changed at times it was viewed. Trial judge relied heavily on testimony from these three witnesses in deciding to convict. Appeal allowed. Judge did not err in admitting testimony regarding contents of video. There were, however, unresolved concerns about secondary evidence that affected its probative value. Destruction of recording inherently prejudiced defence. Recording brought possible vindication. Witnesses were not trained investigators and there were serious deficiencies regarding their testimony. Judge did not advert to this issue and ruling on weighing of probative value and prejudicial effect in relation to secondary evidence would have to be made on retrial. Judge also misapprehended evidence and this resulted in miscarriage of justice. Cumulative effect of errors raised issues of trial fairness and, since accused did not receive fair trial, new trial was required.
R. v. Lapensee (Apr. 8, 2014, Ont. S.C.J., Rick Leroy J., File No. 13-39) 112 W.C.B. (2d) 639.

Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Ample grounds upon which to make intoxilyzer breath demand

Accused appealed her convictions for impaired driving and refusing to give breath sample. Citizen testified that accused side-swiped his car. After speaking to him and providing half of her information that was scribbled on piece of paper, accused left scene before police arrived. Officer happened to drive by accident scene, saw accused leave collision and followed her to find out what had happened. Despite officer putting on his siren and emergency flashing lights, accused did not pull over for roughly 500 metres. Officer noted indicia of impairment and arrested accused. Accused was driven to station where she was given numerous opportunities to provide suitable breath sample into intoxilyzer, but failed to do so. Accused contended that at its highest, officer had reasonable suspicion accused had alcohol in her body which would justify demand for breath sample into approved screening device; he did not have reasonable and probable grounds to make demand. Trial judge found following factors provided adequate basis for arresting officer to have reasonable and probable grounds to conclude accused’s ability to operate motor vehicle was impaired by consumption of alcohol: time of day (approximately 1:00 a.m.), accused’s abrupt departure from collision scene, her obnoxious and aggressive demeanour, her purple lips, her red and sleepy eyes, smell of alcohol on her breath and her attempt to avoid breathing directly at officer. Appeal dismissed. Fact officer did not say “magic words” of accused’s ability to operate motor vehicle being impaired by consumption of alcohol was not fatal. It was implicit in officer’s evidence that he had requisite reasonable and probable grounds to make intoxilyzer breath demand and arrest accused. There was ample evidence upon which trial judge could reach conclusion he did. While some of those indicia might be explained by factors unrelated to consumption of alcohol, combination of indicators provided sound basis upon which officer reasonably concluded there were reasonable and probable grounds to believe that her ability to operate motor vehicle was impaired by consumption of alcohol. In addition, while not mentioned by trial judge, objectively officer could also have considered accused’s slurred speech, her refusal to blow into officer’s face and failure to stop for 500 metres after officer activated his siren and emergency lights. When considered together, there were ample grounds upon which to make intoxilyzer breath demand.
R. v. Grant (Mar. 11, 2014, Ont. S.C.J., Durno J., File No. 1848/12) Decision at 100 W.C.B. (2d) 51 was affirmed.  112 W.C.B. (2d) 540.

Appeal

GROUNDS

No evidence that accident was caused by mechanical failure

Appeal by accused from his convictions for impaired and dangerous driving. Accused drove large 18-wheel tractor trailer in residential neighborhood above speed limit and, after he went through red light and made turn, truck tipped over on its side. Police officer, who followed truck, saw accused emerge from it and he staggered on his feet and smelled strongly of alcohol. Other officers who arrived made similar observations. Accused did not challenge trial judge’s findings regarding impaired and dangerous driving. Only alleged error was correctness of judge’s ruling that accused’s application under s. 7 of Canadian Charter of Rights and Freedoms should be dismissed. Charter issue concerned failure of police to preserve accused’s vehicle. Truck should have been preserved so that it could be tested to determine whether defective brakes or steering were contributing causes of accident. Judge did not rely on accident itself, or make any findings as to cause of accident, as indicia of impaired or dangerous driving. After police completed their investigation they handed custody of truck over to towing company. Truck was scrapped because owner of truck and insurance company did not want to pay storage fees. Appeal dismissed. Section 7 application was based on alleged breaches of right to disclosure and right to fair trial. Judge’s conclusion, that there was no unacceptable negligence and, therefore, no breach of s. 7 right to disclosure was based on six considerations. These considerations were relevant to fault analysis that had to be conducted on s. 7 Charter application that concerned unacceptable negligence by state actors. There was no evidence that mechanical failure caused accident and, even if there was some failure, it would not have dismissed alcohol as contributing cause of accident. Accused’s employer, who owned truck, had been given timely notice that it would be sold as scrap, and accused and his counsel had notice, before truck was sold, where it was located. Judge made reasonable findings of fact and they supported his conclusion that there was no unacceptable negligence by police. Accused’s right to fair trial was not violated since there was no evidence that accident was caused by mechanical failure, and stay of proceedings, which was only remedy sought by accused, was not appropriate in this case. Judge, therefore, did not err in dismissing Charter application.
R. v. Hassan (Mar. 3, 2014, Ont. S.C.J., M.A. Code J., File No. CR-12-70000132-00AP) 112 W.C.B. (2d) 534.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Suspicions about bail breaches did not convert investigation into ruse

Property manager of housing complex had reported general concerns about drug dealing and trespassing on premises to police. Four police officers attended complex. Officers claimed accused walked quickly toward house carrying partially-full liquor bottle, then rapidly knocked on door. Officers alleged that accused smelled of liquor, had bloodshot eyes and appeared very nervous. Officers asked accused if he lived there and if he had been drinking. Physical altercation ensued when officer asked accused about backpack he was carrying. Officers admitted to punching and kneeing accused to get him to stop resisting. Once accused was handcuffed, officer searched backpack and found semi-automatic handgun. Accused was charged with 11 counts, including four counts of assaulting police and five weapons offences. Accused applied for exclusion of evidence based on, inter alia, breach of s. 9 of Charter. Application dismissed. Predominant purpose for accused’s detention was Provincial Offences Act (Ont.) investigation into liquor and trespassing issues and not mere ruse or pretext for criminal investigation. Objective basis existed for investigation. Officers’ suspicions about possible bail breaches did not convert investigation into ruse. Grounds relied on by officers to detain accused were sufficient. Accused was not generally credible or reliable witness. Circumstances provided reasonable suspicion to believe accused may possibly have committed provincial offence. Officers had legitimate grounds to briefly detain accused and determine whether he was resident or trespasser who had been drinking in courtyard of complex. Detention not unduly long. Evidence established that accused pushed one officer in chest and kicked another in groin, then tried to close door on officers and continued to resist arrest. Officers had grounds to enter dwelling and arrest accused. Force used during arrest caused no significant injuries and was necessary and reasonable.
R. v. Darteh (Feb. 7, 2014, Ont. S.C.J., M.A. Code J., File No. 13-50000278-0000) 112 W.C.B. (2d) 325.
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