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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

Detective could rely on summary of information given to him by another officer

Two accused appealed their convictions on trafficking cocaine and possession of cocaine for purposes of trafficking. Both accused were arrested following police observations of what they perceived to be drug transaction between two. Accused was seen to enter residence that was target of drug investigation and seen to leave with shoebox in hand. Confidential informant had told police man who lived at that residence was large scale drug dealer. Police followed accused as he left and about 15 minutes later, stopped his car for second accused who got in his car, then got out of car two minutes later, holding same shoebox, and drove away. Second accused was followed, stopped and arrested at gunpoint. Shoebox was located and contained one kilogram of cocaine. Second accused’s appeal was dismissed as abandoned as he had not surrendered into custody. Accused took issue with trial judge’s failure to exclude evidence and finding police had reasonable grounds to arrest. Appeal dismissed. Detective who ordered second accused’s arrest had received confidential information communicated that surveillance target was significant drug-dealer. Detective could rely on summary of information given to him by another officer in deciding whether he had grounds to make arrest. Target was observed at address where first accused went into and emerged few minutes later with shoebox. Shoebox was later seen in second accused’s possession and took it in his car and then left. Detective who ordered second accused’s arrest, made most of these observations in person, and was informed of arrest by his fellow investigating officers.
R. v. Italiano (Feb. 26, 2015, Ont. C.A., M. Tulloch J.A., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C56934) 120 W.C.B. (2d) 19.

Assault

COMMON ASSAULT

Conviction for assault,
unlawful confinement and breach of recognizance upheld on appeal

Accused appealed convictions for assault, unlawful confinement, and breach of recognizance. Accused and complainant were in intimate relationship from 2001 to 2009. Complainant testified that, during argument, accused grabbed her by throat and threw her down on couch, striking her head on ashtray. Complainant testified that accused prevented her from leaving her apartment to go to hospital. In weeks after incident, complainant gave second statement to police, retracting her allegations against accused. At trial, complainant recanted her earlier recantations, claiming that she made them at accused’s request and because he threatened to distribute explicit photographs of her. Trial judge accepted complainant’s evidence that she had been in “abusive relationship” with accused. Trial judge accepted that, in making allegations against accused, complainant might have been motivated by jealousy arising from recent reappearance of one accused’s previous girlfriend. Trial judge held that Crown had demonstrated that there was direct touching and application of force to complainant’s neck. In subsequent trial on other charges, complainant gave yet another account of incident, where she made no allegation of being choked, nor did she suggest she had been forcibly confined. In subsequent trial, Crown successfully brought application to admit complainant’s prior statements and her testimony at current trial for truth of their contents. Accused was acquitted of charges at subsequent trial, partly due to complainant’s contradictory and confused testimony. Accused argued that verdict was unreasonable. Appeal dismissed. Despite highly problematic nature of complainant’s testimony, there was basis in evidence upon which trial judge could have convicted. Court was not persuaded that trial judge’s ultimate conclusion was tainted by his “abusive relationship” observation. Although other judges may have found inconsistencies in complainant’s evidence to be fatal, court could not say that trial judge erred in approaching evidence in manner that he did.
R. v. Honigan (Mar. 19, 2015, Ont. S.C.J., Trotter J., File No. SCA-13-73-4) 120 W.C.B. (2d) 15.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Overholding detention to accommodate shift scheduling breached s. 9 of Charter

Accused, charged in seven-count indictment with offences relating to robbery, applied to exclude in-custody statements to police and stolen wallet he possessed when arrested. Accused was charged with one count of possession of weapon, two counts of uttering threats, two counts of forcible confinement, one count of being unlawfully in dwelling house and one count of conspiracy to commit indictable offence. Accused alleged he was over held during period immediately following his arrest and until his first statement; that he was not taken before justice within 24 hours, and was over held again after his statement to detective. Accused submitted delay in processing him was unreasonable. Accused was interrogated through noon hour next day of his arrest and interrogating detective decided not to charge accused with regards to marijuana charges on which he was originally arrested. Accused was detained on those drug charges according to Crown for 16.5 hours. Application allowed; statement and wallet excluded from evidence. Court accepted that from police perspective, circumstances of offences were not urgent and services of drug unit detective in middle of night served little purpose. It was relatively minor drug arrest. Officer in charge should have released accused on his recognizance. Possession of marijuana for purpose of trafficking is not crime that, of itself, merits continued detention. Instant circumstances fell into paradigm for timely release in accordance with legislation. Accused was detained overnight to accommodate combination of police service policy and unavailability of detective. Policy was laudable so long as resources were in place to honour Charter and Criminal Code requirements. Investigation was essentially done. Overholding detention to accommodate shift scheduling is unreasonable and breached accused’s s. 9 right to not be arbitrarily detained. Accused was not taken before justice of peace pursuant to s. 503 of Code or within 24 hours of arrest. That too was arbitrary detention. But for arbitrary detention, accused would not have been exposed to seizure and tracing of wallet and inculpatory statement under interrogation with detective. There was direct cause and effect. Cumulative breaches weighed balance in favour of exclusion.
R. v. Mohammed (Feb. 9, 2015, Ont. S.C.J., Rick Leroy J., File No. Ottawa 11-10307) 119 W.C.B. (2d) 484.

Breach of Trust by Public Official

GENERAL

Police officer committed breach of trust by submitting false accident reports

Trial of accused, who was suspended police officer, for 46 offences related to fraud, making false documents, breach of trust and obstruction of justice. Charges related to nine motor vehicle accident reports (MVAR) prepared by accused in 2010. MVARs resulted in insurers paying claims and incurring costs that totalled over $1 million. Accused joined police force in 1992 and prior to 2010 he never prepared MVAR without attending at scene. Accused did not attend at scene before he prepared MVARs that were subject of charges. He relied on information received from tow truck driver and from childhood friend. In seven cases he did not speak to any of drivers or passengers. In some cases MVAR indicated that traffic ticket was to be issued to at fault driver and these tickets were basis of obstruction charges. Crown claimed that accused was paid $6,000 per MVAR and accused understood that MVARs were for fake accidents and were to be used to defraud insurers. Accused claimed that he prepared MVARs as favours for friends and he believed accidents to be real and that information was accurate. At no time was he paid for MVAR. Accused convicted of all offences, with exception of four charges of attempting to obstruct justice, because no ticket showed up in system for accused never put them in basket to be processed. For each MVAR accused was charged with being party to offence by fraudulent means by obtaining funds in excess of $5,000. He made false document, knowing that it was false and he intended them to be acted upon. Accused further committed breach of trust by creating and submitting false MVAR. He prepared nine MVARs without attending scene or speaking to drivers and passengers. His notes were intentionally deceptive in that they indicated that he was on scene and that he dealt directly with drivers. Accused intentionally provided misleading information to dispatch and this resulted in unit history being inaccurate as to his location at time of purported accidents. At fault driver was charged in order to avoid detection by senior officers. He failed to submit tickets to be processed in court system to facilitate fraudulent scheme and to lessen risk of detection.
R. v. Watson (Feb. 13, 2015, Ont. S.C.J., Sproat J., File No. CR (P) 13-0097) 119 W.C.B. (2d) 594.

Charter of Rights

FUNDAMENTAL JUSTICE

Section 127 of Criminal Code not unconstitutional

Trial judge convicted accused under s. 127 of Criminal Code for violating interlocutory injunction prohibiting anti-abortion protesting. Accused sought to stay proceedings for abuse of process due to Crown delay and other conduct in related civil proceedings. Trial judge found Crown was not intentionally delaying civil proceeding or that delay was malicious and dismissing application. Summary conviction appeal court upheld trial judge’s decision. Appeal to Court of Appeal dismissed. Trial judge’s factual findings precluded conclusion that continued prosecution was abuse of process. Abuse of process argument was collateral attack on underlying order for interlocutory injunction. Section 127 not ultra vires Parliament for delegating enforcement of federal criminal law power to provincial legislatures. No violation of s. 7 of Charter for over breadth or arbitrariness as s. 127 directed at maintaining public order and was specific intent hybrid offence with internal limitations.
R. v. Gibbons (Jan. 26, 2015, Ont. C.A., K. Feldman J.A., Janet Simmons J.A., and S.E. Pepall J.A., File No. CA C56895) Decision at 105 W.C.B. (2d) 230 was affirmed.  119 W.C.B. (2d) 478.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Officers had reasonable grounds to stop truck

Application by accused to exclude evidence on basis that his rights under Canadian Charter of Rights and Freedoms were violated. Four youths escaped from youth facility. Youths were involved in two police vehicle pursuits and there was rash of thefts from motor vehicles while youths were absent without leave. Police officers saw truck being driven by young male, who was accused, and they stopped vehicle. Officers saw accused move from driver’s seat to middle seat and girl with pigtails moved from middle rear seat into just vacated driver’s seat. One officer asked accused whether he switched seats because his driver’s licence was suspended and accused responded that it was disqualified. Accused produced identification and he was arrested after officer conducted computer search and verified that accused was disqualified driver. Application dismissed. Officers had reasonable grounds to stop truck based on information that was provided to them by other officers about escape. Seat swap, which was extremely suspicious, was fresh and distinctive ground for detaining accused and it allowed officers to make further regulatory inquiries. Crown conceded that officer breached s. 10(b) of Charter and it undertook not to rely upon accused’s admission that he was disqualified driver.
R. v. Field (Feb. 6, 2015, Ont. S.C.J., A.W. Bryant J., File No. 11384) 119 W.C.B. (2d) 461.

Sexual Offences

Sexual assault

Young complainant was credible witness

Trial of accused on charges of one count of sexual assault and one count of touching person under 14 years of age for sexual purpose. Offences were alleged to have occurred between November of 2009 and May of 2010. Female victim, named AD, was three years old at time of incidents, as she was born in August 2006. Accused was 35 years old when he was alleged to have committed offences and he was currently 39. At time of offences accused was in domestic relationship with woman named KK who was best friend of victim’s mother JB. Despite their common law relationship KK and accused occupied separate premises. AD and JB slept over at KK’s unit on many occasions. In May 2010 AD made spontaneous disclosure about things that accused did to her. On August 12, without prompting, AD made anatomically correct drawing of accused’s penis and testicles and drawing also showed something coming out of penis. She also provided further details of accused’s conduct. AD went to police on August 14 and AD provided video statement to police on August 15, 2010. AD testified that incidents happened when she and her mother slept over at KK’s home when everyone else was asleep. Accused convicted. Despite her young age AD had remarkable ability to remember specific details about these incidents. Her version of incidents never wavered at any point in time. AD was credible witness and, having made this finding, accused’s claim that he did not commit offences was rejected.
R. v. Bissonnette (Jun. 10, 2014, Ont. S.C.J., D. Cornell J., File No. null) 119 W.C.B. (2d) 426.
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