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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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Disclosure

GENERAL

Accused not permitted to use inadvertently-disclosed videotape of complainant’s therapy session in support of application for production

 Ruling to address consequences arising from inadvertent disclosure of videotaped therapy session involving eight-year-old sexual assault complainant. Accused charged with four counts each of sexual assault, sexual interference, and sexual exploitation. Soon after abuse was disclosed, complainant began seeing therapist. Therapist forwarded confidential records to Crown, including DVD recording of therapy session, which was mistakenly disclosed to defence. Accused sought to rely on DVD to gain access to rest of complainant’s therapeutic file, pursuant to ss. 278.1 to 278.9 of Criminal Code. Crown argued that defence counsel was in “wrongful possession” of DVD as result of Crown’s negligence. Crown argued that, notwithstanding that DVD had already been disclosed, it was still “record” within meaning of s. 278.1 of Code and thus subject to procedure set out in ss. 278.2 to 278.9 of Code. Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility. Accused argued that he was entitled to use inadvertently-disclosed DVD in support of third-party records application, and to question complainant at trial. Alternatively, accused argued that complainant’s counselling records ought to have been disclosed to him because remaining materials available on application established that they were likely relevant. Accused was not permitted to use DVD in support of his application to obtain complainant’s therapeutic file. Conduct of defence counsel was blameless, but this did not mitigate serious and illegal violation of complainant’s privacy rights. Before any use could be made of DVD, whether at trial or as basis for obtaining further private records, DVD had to be returned and future production determined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of complainant. Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser. Accused was simply being denied that to which he was not entitled in first place, and there was no unfairness in this result. Once improperly-disclosed interview was removed from equation, accused was left to rely upon differences in complainant’s account from police interviews and her evidence at preliminary inquiry. Although allegations of complainant had broadened somewhat since starting therapy, that was not sufficient basis to order production of therapeutic records. It was mere speculation that materials would have been found in complainant’s therapeutic records that would have shed light on why her allegations had become arguably broader since attending therapy sessions. Incremental disclosure was quite common in case like this. Complainant’s expectation of privacy was extremely high.
R. v. Gray (May. 26, 2015, Ont. S.C.J., Trotter J., File No. null) 121 W.C.B. (2d) 553.

Charter of Rights

SEARCH AND SEIZURE

Request for consent to search not to be deemed commencement of search

Trial judge convicting accused of offences relating to seizure of marijuana from his vehicle. Officer asked accused to consent to search after learning he had connection to drug trafficking. Accused produced bag of marijuana after officer’s initial inquiry and further marijuana uncovered on search incident to arrest. Trial judge held initial request for accused to consent not “search” or s. 8 of Charter as accused voluntarily and unilaterally produced marijuana. Accused’s appeal from conviction dismissed. Trial judge correctly held there was no “search” for purpose of s. 8 of Charter. Any request by officer for consent to search not to be deemed commencement of search. No search for s. 8 purpose took place as no evidence accused felt compelled to consent or that search was inevitable whether consent given.
R. v. Sebben (Apr. 21, 2015, Ont. C.A., G.R. Strathy C.J.O., Doherty J.A., and E.E. Gillese J.A., File No. CA C59397) 121 W.C.B. (2d) 545.

Disclosure

DUTY ON CROWN

Jury rolls likely relevant to attribution of delay

Accused challenged representativeness of jury pools. Accused sought disclosure of jury rolls for preceding year. Application for disclosure granted. Jury rolls were third party records outside control of prosecution. Jury rolls were likely relevant to attribution of delay for s. 11(b) Charter application that will ultimately be brought by accused and should be disclosed.
R. v. Madahbee-Cywink (Jul. 25, 2014, Ont. S.C.J., Varpio J., File No. 12-0003, 12-0034, 13-0003, 13-0013, 13-0018, 13-0025) 121 W.C.B. (2d) 248.

Appeal

SENTENCE APPEAL

Parity principle does not require that all co-accused receive equal sentences

Accused appealed from his sentence of 12 months’ incarceration followed by 12 months’ probation imposed on conviction for possession of over three kilograms of marijuana for purpose of trafficking. Leave to appeal granted; appeal dismissed. Parity principle does not require that all co-accused receive equal sentences. It was not court’s function to minutely reassess relative roles and culpability of various offenders. Sentencing judge in this case expressly considered parity principle and recognized it would tend to drive quantum of sentence down. Sentencing judge also considered whether conditional sentence was appropriate for accused. Sentence was well within range and in absence of error of principle in sentencing judge’s analysis, there was no basis to interfere.
R. v. Lin (May. 4, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and C.W. Hourigan J.A., File No. CA C58717) 121 W.C.B. (2d) 216.

Trial

ACCUSED NOT REPRESENTED BY COUNSEL

Accused could not afford to retain counsel to extent necessary to ensure fair trial

Accused charged with four counts of trafficking in cocaine and oxycodone and possession of proceeds of crime. Accused applied for appointment of state-funded counsel. Legal Aid had denied funding to accused, as his income of $13,200 per year exceeded its financial cut-off. Accused had grade nine education and had entered workforce as labourer when he was 14 years old. Accused had received disclosure, and said that he could not make much of it. Allegations involved sales of drugs to undercover operators, and issues were potentially defence of entrapment and Charter claims. Crown had indicated to accused that his offences should have attracted four-year sentence in penitentiary. Accused argued that complexity of case arose from tactical decisions involving possibility of calling co-charged individuals as witnesses at trial. Crown argued that accused had means to pay counsel, but refused to allocate his own money properly for that purpose. Application allowed. Although it appeared that accused’s chances for bail on review were low, it could not be said that they were non-existent. Court could not accept that accused should have had to give up everything he had, including his apartment, in order to satisfy court that he was doing everything he could to fund lawyer. There was evidence that accused had, over time, satisfied outstanding accounts owing to Legal Aid, and it could not be said that he had not been mindful of his duty to contribute financially to his own defence when that had been required of him. Given accused’s modest level of education, his working background as labourer, difficulties inherent in mounting entrapment defence, and likelihood of significant sentence of imprisonment upon conviction, case would have been complex for accused to defend, and carried serious consequences for him. For accused not to have counsel at trial would have resulted in trial unfairness, as accused would not have been able sufficiently to understand case he had to meet or to present any defences available to him, and would have been subject to very serious consequences upon conviction. This was rare case where court was satisfied that accused, because of length and complexity of proceedings, or for other reasons, could not afford to retain counsel to extent necessary to ensure fair trial.
R. v. Davidson (Apr. 22, 2015, Ont. S.C.J., A.D. Kurke J., File No. 7483/14) 121 W.C.B. (2d) 97.

Appeal

RIGHT OF APPEAL

Leave to appeal denied where case turned on application of well-established legal test to specific fact situation

Crown applied for leave to appeal judgment dismissing Crown’s appeal from acquittal of accused on charge of driving with excessive alcohol. Leave to appeal denied. Legal test for determining whether breath tests were administered “as soon as practicable” was well established. This case turned on application of that well established test to very specific fact situation. It was far from clear to court that appeal raised question of law alone. However, even if it did, question as framed would not have any significance beyond this case. Neither trial judge, nor Summary Conviction Appeal Court purported to hold that any delay associated with allowing detainee to contact parent would run afoul of “as soon as practicable” requirement. Instead, trial judge and Summary Conviction Appeal Court looked at totality of circumstances in context of “as soon as practicable” requirement in deciding whether officer acted reasonably.
R. v. Crewson (Apr. 17, 2015, Ont. C.A., Doherty J.A., Cronk J.A., and Hourigan J.A., File No. CA C59450) Leave to appeal from 115 W.C.B. (2d) 223 was refused.  121 W.C.B. (2d) 23.

Evidence

HEARSAY

Propensity reasoning could be controlled by limiting instructions and cross-examination

Crown sought to admit statements accused made to acquaintances of victim and victim’s ante-mortem statements as prior discreditable conduct in relation to first-degree murder charge. Accused had threatened victim but not by name with witnesses clearly believing accused was referencing victim. Ante-mortem statements involved victim wanting to move out due to problems with accused as Crown’s theory was accused despised victim who was living with accused. Threats were alleged to be relevant to animus, identity and motive and critical to rebut defences of provocation, intoxication, third-party suspect and self-defence, should these defences be raised. Evidence admissible. Evidence was clearly probative and accused would have opportunity to cross-examine witnesses. Issue was not whether admitting statements would increase chance that accused would be convicted, but whether statements would be improperly used by jury. Propensity reasoning could be controlled by both limiting instructions and cross-examination. Jury could be reminded that they must consider all evidence; that they were not to determine guilt or innocence based on threats alone and that just because accused made threats did not mean he was bad person.
R. v. Martineau (Apr. 22, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CR-12-00002982) 121 W.C.B. (2d) 38.
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