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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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Evidence

HEARSAY

Prejudice from inability to cross-examine could be reduced through specific jury instruction

Accused charged with assault causing bodily harm. Crown applied to admit portion of statement prepared by witness within days of incident in question under past recollection recorded exception to hearsay rule. Witness was in charge of security at bar and observed some interactions that occurred between accused and complainants. Witness testified that accused was punching or stomping one or both individuals, but that he could not remember angles or exactly who was doing what. Witness testified that he did not have current memory of details of accused’s participation in actual beating and, in this regard, had been relying on what he had stated in statement he provided to his employers and to police shortly after assault occurred. Witness testified that when he typed statement, he was not under influence of alcohol and he wrote statement to best of his knowledge and tried to be honest at time. Witness testified that he wrote statement when events of evening were freshest in his memory and that, at time he wrote statement, he was certain about what he wrote. Application allowed. Witness’s memory loss was genuine, as it had been three years since assault occurred. Witness had continued to work as head of security at bar since incident and had witnessed many confrontations and fights. Witness vouched for reliability of his written statement. Witness’s evidence was highly probative, as it was evidence from independent and uninvolved observer as to what happened during attack in alley. Prejudice that arose from inability of defence counsel to fully cross-examine witness on his observations at time of attack, due to absence of current memory, could be reduced through specific jury instruction to effect that past recollection recorded was lower form of evidence to which jury should give extra cautious scrutiny. Defence counsel had ability to cross-examine witness on his vantage point when observations were made and extent to which his view was blocked due to presence of many men in small space.
R. v. Louangrath (Mar. 5, 2014, Ont. S.C.J., Aitken J., File No. 11-10657) 116 W.C.B. (2d) 164.

Arson

PROOF OF OFFENCE

Occurrence of two fires in house at same time could not be explained by accident

Accused appealed conviction for arson. Accused’s neighbour saw her leaving her home shortly before he observed smoke coming from house, and on entering house, neighbour discovered contents of pot burning on stove. Fire investigators discovered iron in second floor closet, sitting in middle of pile of burned clothing. Serious quantity of paint had been sprayed throughout main floor of house, on walls, flooring, furniture, and other objects. Accused had financial motive for fire. After her release from custody, accused went to see her landlord and admitted to having started fire. Upon her arrest, accused was advised of her right to counsel, was cautioned, and consulted with counsel. Officer repeatedly told accused that she would be released from custody whether she gave statement or not. After lengthy, videotaped interview, accused admitted that she had started fire, stating that she was depressed and suicidal as result of her family’s financial situation. Accused argued that trial judge misapprehended evidence by reasoning that her statement was likely to be true because she provided accurate details, by finding that landlord’s evidence about her apology was reliable, as landlord had suffered other losses not compensated by insurance, and by finding that fires were started in two locations in the second floor bedroom, and reasoning that therefore fires were intentionally set. Appeal dismissed. Having found that accused’s confession was voluntary, trial judge was entitled to consider whether it was reliable and consistent with objective evidence and opinion of fire investigator. It was never suggested to landlord in cross-examination that she had motive to lie because she had not been paid by insurance company or fully compensated for damage. Trial judge referred to fact that two separate fires were started in house, one upstairs in bedroom closet and other downstairs in kitchen, which was alone sufficient to support conclusion that occurrence of two fires in house at same time could not have been explained by accident. If there was misapprehension of evidence, alleged error did not play essential part in reasoning process. Fact of two fires on two separate floors was sufficient to rule out accident.
R. v. Sousa (Jul. 21, 2014, Ont. C.A., G.R. Strathy C.J.O., K. Feldman J.A., and David Watt J.A., File No. CA C56227) 116 W.C.B. (2d) 162.

Breathalyzer

PRESUMPTION
Expert evidence highlighted importance of accuracy and reliability
Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.
R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.PRESUMPTION
Expert evidence
highlighted importance of
accuracy and reliability
Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.
R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.

Attempts

GENERAL

Accused incapable of planning and deliberation required to tell convincing lie

Trial of accused for attempting to obstruct justice. Individual attended at police station on April 5, 2011 and he informed officer that he was responsible for large marijuana grow-op that police discovered in October 2010. Owner of property was arrested at site and he was charged. Owner was released from custody pursuant to recognizance. Accused was owner’s younger brother and he was named as surety on recognizance for $50,000. Owner lived with accused after his release. Several hours after individual confessed to crime he admitted that he was not involved in grow-op and he was promised $25,000 by owner if he confessed to being person who used property for growing marijuana. He only visited property once, on March 27, 2011, to familiarize himself with property before he confessed to police. Individual claimed that he was accompanied and driven to property by accused. Owner could not accompany him because his recognizance did not permit him to visit property. Accused denied knowing that marijuana was grown on property and he denied meeting individual prior to court proceedings in this matter. Accused convicted. Individual’s evidence had internal consistency that underscored its reliability. It was supported by facts and other evidence and it was credible and truthful. Court would not make adverse finding of credibility against individual solely because he had criminal record. Individual was simple man who lacked ability to set up and operate sophisticated grow-op and it would not have taken two officers who interviewed him too long to come to that realization. He was incapable of planning and deliberation that was required to tell convincing lie.
R. v. Yeung (Sep. 4, 2014, Ont. S.C.J., E.J. Koke J., File No. CR-12-26-0000) 115 W.C.B. (2d) 435.

Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Police were at stage of ‘reasonable grounds to suspect’

Accused appealed convictions for refusing to provide breath sample, assault with intent to resist arrest, four counts of assaulting police officer, and one count of carrying concealed weapon. Officers testified that accused was stopped for speeding and became uncooperative when officer called for approved screening device. According to officers, accused was belligerent and assaulted then when they tried to make arrest. Accused testified that he fully cooperated with police but refused to provide breath sample until he contacted his lawyer. Accused testified that officers hit him. Trial judge did not believe accused’s evidence that he told officers that he agreed to provide breath sample but wanted to speak to lawyer first. Accused argued that trial judge erred in finding that police had grounds to demand breath sample. Appeal dismissed. Accused had been driving at very high speed and made “rolling stop” at stop sign. Officer noticed strong smell of alcohol on accused’s breath, glossy eyes, and accused had admitted that he had consumed alcohol. Police were only at stage of “reasonable grounds to suspect”, not higher standard. There was ample evidence to support finding of trial judge that there were reasonable grounds to suspect presence of alcohol in accused’s body.
R. v. Marriott (Aug. 19, 2014, Ont. S.C.J., R.F. Goldstein J., File No. 81/12) 115 W.C.B. (2d) 341.

Appeal

SENTENCE APPEAL

Legislation did not allow judges to avoid consequences imposed on accused

Crown appealed four decisions in which sentencing judges made exemptions to accused and did not order them to pay victim fine surcharges. Crown’s four appeals were granted and four rulings by trial judges as to victim fine surcharge were set aside; accused ordered to pay victim fine surcharges. In absence of constitutional issue having been raised before trial court, Crown and all defence counsel essentially agreed that there was no alternative but to allow appeals. Each ruling demonstrated effort by trial judge to avoid consequences imposed on accused by new legislation in s. 737 of Criminal Code mandating imposition of victim fine surcharge. Each of trial judges obviously viewed new legislation as detracting from fair application of sentencing principles. Problem was that applicable legislation did not allow them this discretion. Each of rulings, as consequence, amounted to legal error.
R. v. Nicholson (May. 15, 2014, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-13183, 13-13506, 13-12947, 13-12990) Decision at 113 W.C.B. (2d) 590 was varied.  115 W.C.B. (2d) 318.

Defences

ENTRAPMENT

Opportunity to commit offence was given in context of reasonable suspicion

Accused was found guilty of internet luring. Accused applied for stay of proceedings on basis of entrapment by police. Male police officer pretending to be female communicated electronically over several months with accused in response to two advertisements which he had placed in “casual encounters” section of Craigslist. Accused had sought females over age of 18 with whom he proposed to smoke marijuana and have sex. “Female” stated very early on in electronic exchanges that “she” was 14 years old, but accused asserted that he believed she was 16 or older. Accused argued that what was communicated to him by officer in his guise as “female” amounted to providing of opportunity to commit offence in circumstances where there was neither reasonable suspicion that he was already engaged in criminal activity nor making of bona fide inquiry. Accused argued that there was inducement. Application dismissed. Court was not persuaded that “words” of “female” took what was communicated by officer over line from mere neutral investigation into territory of providing opportunity commit offence. After “female” indicated that she was 14, accused made explicit reference to oral sex and, at that point, reasonable suspicion that accused was already engaged in criminal activity had come into existence. Communications between accused and “female” went on for months. Providing of opportunity to commit offence took place in context of reasonable suspicion, and entrapment was not made out. Internet was considered to be universal and investigation was not done in anything other than bona fide context. Police did not induce crime, as average person would likely have ended communication moment that “female” stated her age to be 14.
R. v. Argent (Jul. 17, 2014, Ont. S.C.J., Parayeski J., File No. CR-4301) 115 W.C.B. (2d) 33.
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