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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

That officer targeting accused not only inference to be drawn from conduct

Accused appealed his conviction for driving “over 80.” At trial accused argued that he was arbitrarily detained in breach of s. 9 of Charter when he provided breath sample into approved screening device. Accused argued arresting officer erroneously believed that he had two previous drinking and driving convictions and had engaged in campaign of watching and stopping him for several months before arrest. Accused and two witnesses testified that this was third time same officer had stopped accused within six or seven hours and that he had frequently driven by locations where accused and his truck were located. While officer testified that he stopped accused because his rear licence plate light was out, accused argued officer’s motivation for stopping him was his mistaken belief about accused’s record and that trivial offence like not having tail light out was not sufficient grounds to make stop. Trial judge disagreed, noting that question was “so what?” if officer was harassing accused because he accepted officer’s evidence light was out and found that this provided him with grounds to stop accused. Officer testified that he did not realize accused’s vehicle was that of person he dealt with earlier until after he had pulled truck over. Officer said that he ran accused’s name on CPIC after he had arrested him for driving with consumed excess alcohol and that record he obtained showed 1990 and 1997 convictions for impaired driving. It was not until he was in midst of cross-examination that officer was told accused had no record. Appeal dismissed. Trial judge’s decision was not unreasonable. Officer swore he was unaware of criminal record, wrongly attributed to accused, until after his arrest on excess alcohol charge. Officer remembered stopping accused earlier on seatbelt infraction and had no memory of incident where he pulled over another vehicle, in which accused was passenger, but in which female bartender had been driving. There was no dispute that officer would drive through Legion parking lot, in his words, to show police presence that could make people think twice about driving after drinking. While it was possible officer was targeting accused, that was not only inference to be drawn from that conduct. If it were determined that officer had one improper purpose for stopping accused in addition to Highway Traffic Act (Ont.) violation, it would have rendered stop unlawful. Court agreed with accused that trial judge erred in that regard. However, insurmountable hurdle for accused was trial judge’s reasonable finding officer was not improperly targeting accused.
R. v. Sherrard (Nov. 10, 2014, Ont. S.C.J., Durno J., File No. Guelph CR-13-0250-AP) 118 W.C.B. (2d) 23.

Appeal

FRESH EVIDENCE

Judge might have come to different conclusion had doctor’s report been available

Accused appealed from finding that he was not criminally responsible (NCR) after he pleaded guilty to criminal harassment, assault causing bodily harm, utter death threat and failing to comply with recognizance. Accused relied on report of doctor, prepared shortly after proceedings concluded. In this report, doctor did not support claim of NCR with respect to number of offences. This report was not available to judge at hearing when he found accused NCR. Report was thorough and very helpful in shedding more light on accused’s circumstances. Appeal allowed; new trial ordered on NCR issue only. With her usual fairness, Crown conceded that doctor’s report should be admitted as fresh evidence and that new trial should be ordered, but limited solely to NCR issue. Court accepted this concession as reasonable. Had doctor’s report been available to judge at hearing, he may well have come to different conclusion.
R. v. Alexander (Nov. 27, 2014, Ont. S.C.J., Trotter J., File No. 54/14) 118 W.C.B. (2d) 58.

Appeal

FRESH EVIDENCE

Trial judge outlined concerns about implausibility of accused’s testimony

Accused appealed her conviction for importing cocaine. Charge of importing related to accused’s arrest when she returned to Canada from week in Panama. About two pounds of cocaine were discovered in her suitcase. Accused maintained that she had no knowledge that cocaine was in her possession. Accused travelled to Panama with man who paid her $2,000 to accompany and entertain him for week. That man also paid for her airfare and accommodations. According to accused, while in Panama, she and man she was with met up with woman named “Nancy” who spent time with them during their stay there. Prior to accused’s return to Canada, that woman asked accused to carry some clothes and souvenirs for her back to Canada and accused agreed. Accused testified that as she and man were packing their suitcases, he asked her to transport bottles of what appeared to be health care products and accused agreed. Upon arrival in Canada, accused was searched at customs. Cocaine was discovered in health care bottles and accused was arrested. Accused sought to admit fresh evidence, which consisted of photographs of woman said to be “Nancy” taken from camera found in accused’s possession at time of her arrest. Accused asserted that it is relevant because trial judge disbelieved her testimony about Nancy, including fact of Nancy’s existence, and this was significant reason why he rejected her evidence as whole. Application denied. Rather than disbelieving accused on basis that Nancy did not exist, trial judge considered accused’s entire account of her relationship with Nancy. Trial judge outlined his concerns about implausibility of accused’s testimony relating to Nancy: accused made no inquiry and had no knowledge of Nancy’s prior connection to man accused was with in Panama, she was unaware of Nancy’s surname, she gave no thought to effect of taking shoes and other items from Nancy on maximum weight allowance for her luggage, and vagaries of any plan to return items to Nancy. Court agreed with Crown that nature of fresh evidence, photographs of woman only accused could identify as Nancy, related to non-essential aspect of accused’s testimony at trial. Nancy was merely part of accused’s story that trial judge found did not make sense. Photograph of woman purporting to be Nancy would not have rectified implausibility of accused’s testimony. Trial counsel, in cross-examination on her affidavit, said that she made decision not to tender photographs into evidence at trial as it was her view that they were unnecessary and of no value. Trial counsel was correct.
R. v. Harris (Oct. 27, 2014, Ont. C.A., E.A. Cronk J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C55199) Decision at 98 W.C.B. (2d) 706 was affirmed. 117 W.C.B. (2d) 369.

Motor Vehicles

SPEEDING

Offence notice failed to describe manner in which notice was to be delivered

Accused applied for leave to appeal judgment dismissing his appeal from conviction for speeding. Accused was served with offence form on January 30. Accused applicant’s notice was received on February 18, but conviction was entered by justice of peace on that date. On Feb. 28, 2014, accused received letter dated Feb. 24, 2013, which stated that his request for trial date was received after 15 day period had lapsed and conviction had been registered. Central issue concerned calculation of period of time for him to file his notice of intention to appear in court, before he could be “deemed not to dispute” charge. Accused argued his conviction was premature based on application of R. 4 of Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings (“Regulation 200”). Provincial Offences Appeal judge rejected applicability of R. 4. Judge found that person issued speeding ticket is strictly responsible for effecting delivery of “exercise of option” within 15 days. Leave to appeal granted; conviction stayed pending appeal. It was arguable that period of “at least” 15 days under s. 9(1)(a) of Provincial Offences Act (Ont.) should have excluded January 30, day of service, and February 14, 15th day. February 15, 16 and 17 should have also been excluded from calculation of “at least 15 days” from date of service. Accordingly, last day for delivery of Offence Notice was arguably Tuesday, February 18, day of accused’s conviction. It appeared therefore, that accused’s appeal on this ground may have had some merit. Offence Notice received by accused, which appeared to have been standard form, did not specify manner of delivery, other than to identify address of court office. Arguably, Offence Notice did not comply with statute because it failed to describe manner in which notice was to be delivered, if it was sent by mail. Appeal raised issues concerning application of Regulation 200 and calculation of time limits there under, and compliance of prescribed form with Act. Based on its plain and unambiguous meaning, R. 5 merely allowed individuals to safely assume receipt date of notices delivered by mail. It did not affect notice deadline: accused’s argument on R. 5 rejected.
R. v. Hicks (Oct. 29, 2014, Ont. C.A., G.R. Strathy C.J.O., In Chambers, File No. CA M44141) Leave to appeal from 115 W.C.B. (2d) 611 was allowed.  117 W.C.B. (2d) 284.

Extraordinary Remedies

MANDAMUS

Justice had absolutely no business or jurisdiction to quash this certificate of offence

Regional Municipality applied for order of mandamus and certiorari against order of justice of peace quashing Certificate of Offence for failure to specify section of Highway Traffic Act (Ont.) (HTA) prohibiting offence of speeding. Certificate did allege offence of speeding 70 kms in 60 kms zone and that it was contrary to HTA. Justice of peace quashed Certificate of Offence because it failed to include section of HTA for speeding. No reasons for this disposition were recorded other than “no section number for offence.” Application allowed. Cursory internet or library search would have quickly cured this defect and accused was deemed not to dispute charge. Because justice of peace was dealing with this Certificate of Offence pursuant to s. 9(2) of Provincial Offences Act (Ont.) (POA) as result of this ademption, she was required to determine in her office without benefit of submissions from either side whether it was complete and regular on its face. Without benefit of any reasons, justice concluded that it was not. Despite this deficiency, it was evident that justice did so in face of not only compelling, but binding, authority to contrary. If justice was not aware of this authority, she should have been. Justice had absolutely no business or jurisdiction to quash this “perfectly good certificate of offence”. Case was yet another in long line of hyperactive and inappropriate interventions by justice of peace in this region and elsewhere in province that continually permitted form to trump over substance. These inappropriate interventions had not only created certain degree of chaos in Provincial Offences Court, they also displayed profound misunderstanding of role of stare decisis in our legal system. Once Superior Court has spoken on issue, lower courts are bound to follow those dictates whether they like them or not. This, of course, includes justices of peace of this province, especially so in context of their extraordinary ex parte deliberations exercised pursuant to s. 9(2) of POA where they enjoyed ungoverned and unobserved scope to quash proceedings.
York (Regional Municipality) v. Martinez (Oct. 29, 2014, Ont. S.C.J., McIsaac J., File No. Newmarket CV-14-117733-00) 117 W.C.B. (2d) 285.

Drug Offences

IMPORTING

Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility

Accused appealed his convictions for importing cocaine and possession of cocaine for purpose of trafficking. Canada Border Services discovered approximately 53 kilograms of cocaine concealed in load of electronic games contained in commercial trailer driven by accused, long-haul truck driver. Accused testified at trial and denied any knowledge of cocaine in his trailer. Accused contended that trial judge erred by failing to confine his use of officer’s opinion evidence to proper limits of that evidence. Opinion at issue addressed use of commercial vehicles for transportation of contraband, including drugs. Opinions described were mostly general in nature. However, officer also offered several case-specific opinions, some of which bore directly on accused’s credibility and his alleged knowledge of cocaine in his vehicle. Appeal allowed; new trial ordered. Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility and key question of accused’s knowledge of presence of cocaine in his vehicle. In circumstances where no formal admission of facts in report had been made, it was not open to trial judge to rely on report for truth of its contents. Officer’s opinion on accused’s alleged association with organized criminal elements, his knowledge of cocaine in his trailer, and his credibility, strayed beyond proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to accused. These opinions concerned core, indeed pivotal, questions before trial judge. Officer’s personal opinions on these issues were not necessary. Suggestion that trial judge did not rely on inadmissible evidence was rejected. Reasons were replete with references, direct and indirect, to accused’s case-specific opinions, including, especially, those pertaining to likelihood that accused knew of presence of cocaine in his vehicle and his credibility. In embarking on his assessment of accused’s credibility, trial judge expressly indicated that he regarded report as benchmark against which accused’s testimony was to be tested. Trial judge’s reliance on impugned evidence permeated his reasons making curative proviso inapplicable. There was dissenting opinion that would have dismissed accused’s conviction appeal but allowed his sentence appeal.
R. v. Singh (Nov. 10, 2014, Ont. C.A., John Laskin J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C56314) 117 W.C.B. (2d) 149.

Charter of Rights

SEARCH AND SEIZURE

Sufficient facts justified issuance of search warrants and production orders

Application by two accused to exclude evidence against them. Accused were charged with first degree murder of victim. Crown claimed that victim was first accused’s landlord and that first accused planned murder and he recruited second accused to carry it out in return for financial reward. Police arrested second accused within minutes of discovery of victim’s body. First accused was found at scene of murder and he was treated as material witness. He was later arrested at police station during interview with police. Just prior to his arrest he was being interviewed as witness. Police obtained search warrants for hotel room that second accused was staying at and for first accused’s home. At first accused’s home they found knife set that was missing knife, and missing knife was found in creek near first accused’s home. Missing knife contained victim’s blood and second accused’s DNA. Police seized several computers and other media devices. Other warrants and production orders were subsequently obtained as part of murder investigation. Police also seized victim’s eyeglasses which were found on garage floor of first accused’s home. Application dismissed. Sufficient facts were provided that justified issuance of search warrants and production orders. Use of telewarrant process did not violate accused individuals’ rights under s. 8 of Canadian Charter of Rights and Freedoms. Belief of officer, who resorted to this process because he did not think that justice of peace was available when documentation to apply for warrant was completed, was reasonable. Justice who signed telewarrant would have refused application if justice of peace was personally available to do so. There was sufficient basis provided in Information to Obtain (“ITO”) warrant to search first accused’s home. First accused failed to establish that ITO contained inaccurate information or material fact that was not disclosed. Affiant did not mislead issuing justice. First accused claimed that warrant for first accused’s home only allowed seizure and search of computers in home. This was irrelevant for police obtained multiple additional warrants to authorize search of computers. Police had basis to search first accused’s computers. First accused’s telephone subscriber information and fact that first accused held bank accounts at various institutions were properly provided to police. ITOs submitted in support of nine production orders that police obtained contained reasonable grounds to believe that documents or data that would be obtained would afford evidence respecting commission of offence. Warrant to search storage locker that was in name of first accused’s girlfriend was validly issued. Accused failed to show that warrants and production orders were invalid but even if they were, evidence obtained through them was admissible.
R. v. Nurse (Oct. 15, 2014, Ont. S.C.J., Coroza J., File No. CRIMJ(P) 339/13) 117 W.C.B. (2d) 133.
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