GROUNDSJudge’s inferences reasonable and entitled to deferenceAppeal by accused from his conviction for driving with blood alcohol level above legal limit. Issue at trial was whether it was proven beyond reasonable doubt that accused was driver of truck that was involved in accident. Accused claimed that trial judge misapprehended evidence of paramedic who treated accused and who had conversation with him. After closing submissions were made, which dealt with identification issue, judge was given transcript of paramedic’s evidence and she retired to consider her decision. When judge returned to give her oral decision she summarized evidence she considered to be relevant to identification issue. Accused conceded that during summary judge accurately set out paramedic’s evidence. In his examination-in-chief paramedic said accused made statements that indicated that he drove his truck. In cross-examination paramedic said he could not say with certainty that accused said that he was driving. Accused submitted that during judge’s analysis of evidence she did not refer to what paramedic said in cross-examination and it was this omission that showed that she misapprehended evidence. Appeal dismissed. When judge’s reasons were read as whole they demonstrated that she was aware that it was uncertain what accused said to paramedic. In her reasons she did not only consider examination-in-chief evidence. Rather, she considered all of paramedic’s evidence along with surrounding pieces of circumstantial evidence and she drew inferences to conclude that on the whole of evidence she was satisfied that accused was driver. Judge’s inferences were reasonable and they were entitled to deference. Judge did not misapprehend evidence. R. v. Arnold (Dec. 6, 2011, Ont. S.C.J., Dawson J., File No. SCA (P) 1001/11) 98 W.C.B. (2d) 570 (6 pp.).
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RIGHT TO BE INFORMED OF SPECIFIC OFFENCEAccused’s testimony confirmed he knew his jeopardy at outsetCrown brought application for order permitting Crown to tender as part of its case audio videotaped statement of accused taken on day of his arrest “for historical sexual offences”. Complainant alleged 30 years after the fact that when he was 11 or 12 and accused, 26, was his teacher, that there had been sexual relations between them. Accused initially denied any such contact but pursuant to officer’s line of questioning, in which he purported to be sympathetic, accused admitted to less invasive instances of sexual activity initiated by enthusiastic complainant. Crown application granted, video/audio statement of accused admissible. Court found as a fact that accused knew exactly jeopardy he faced when he was told in principal’s office that he was under arrest for historic sexual assault. Accused’s testimony confirmed that he knew his jeopardy at outset and it did not change. R. v. Williamson (Nov. 17, 2011, Ont. S.C.J., Tranmer J., File No. 285/10) 98 W.C.B. (2d) 518 (53 pp.).
GROUNDSNothing to indicate trial judge engaged in unbalanced scrutiny of evidenceAccused appealed her convictions for assault, uttering threat to cause death, possession of weapon for purpose of committing offence and breach of undertaking. Accused submitted trial judge misapprehended certain portions of evidence and engaged in unbalanced scrutiny of evidence. Complainant in case was accused’s spouse. Appeal dismissed. There was nothing to indicate that trial judge misapprehended evidence or engaged in unbalanced scrutiny of evidence. Appeal court’s broad jurisdiction does not allow appeal judges to substitute their own credibility findings for those of trial judge.
R. v. Chung (Dec. 6, 2011, Ont. S.C.J., Trotter J., File No. 169/10) 98 W.C.B. (2d) 479 (5 pp.).
ARBITRARY DETENTION OR IMPRISONMENTArresting officer’s decision to place accused in cell before breathalyzer tests unjustifiedTrial of accused for drinking and driving offences. Accused was bartender. When she completed her shift she remained in bar and she consumed four glasses of wine before she drove home. Police officer pulled her over and he detected small hint of alcohol on her breath. He had her take screening device test and he was surprised when she failed. She was not handcuffed during trip to police station. At station she was placed in cell and she went through process of removing her bra, which was standard procedure. She had breathalyzer test and she gave her samples at 1214 a.m. and 1240 a.m.. She was then returned to her cell to await completion of paperwork. Documents were completed by 200 a.m.. Accused was not released until 500 a.m. because arresting officer had practice of holding charged impaired drivers until they could make good decisions. Officer did not explain to accused why she was being held in cell. Accused acquitted. Arresting officer’s decision to place accused in cell before breathalyzer tests were conducted was unjustified and it violated accused’s right under s. 9 of Canadian Charter of Rights and Freedoms. Based on accused’s rational, polite and co-operative behaviour demand that she surrender her bra violated her s. 8 Charter rights. Because this took place before breathalyzer testing occurred it had temporal and causal connection to test results. It was not reasonable that 26 minutes elapsed between taking of first and second samples and it violated statutory requirement that samples were to be taken as soon as practicable. Evidence was excluded because of improper police conduct in this matter.
R. v. Bouchard (Nov. 24, 2011, Ont. C.J., Fraser J., File No. 110260) 98 W.C.B. (2d) 318 (8 pp.).
GROUNDSAccused unable to understand nature or object of proceedingsAppeal by accused from finding that he was not criminally responsible on account of mental disorder. Finding as made after accused pleaded guilty to one count of criminal harassment and two counts of failing to comply with his recognizance of bail. Appeal dismissed. Medical evidence addressed accused’s inability to understand nature or object of proceedings, his inability to understand possible consequences of proceedings and his inability to communicate with counsel. Trial judge was alert to and he addressed his mind to issue of fitness. He was entitled to rely upon medical evidence. Accused was represented by counsel at trial and neither Crown or defence raised any challenge or expressed any concern about accused’s fitness to stand trial. There was no error in law by judge and there was no miscarriage of justice. R. v. Krivicic (Nov. 14, 2011, Ont. C.A., Blair, Juriansz JJ.A. and Pepall J. (ad hoc), File No. C50605) 98 W.C.B. (2d) 279 (15 pp.).
ARBITRARY DETENTION OR IMPRISONMENTAccused failed to provide that racial profiling influenced officersApplication by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged after he was found in possession of loaded shotgun in public park. He claimed that police did not have reasonable and probable grounds to arrest him and that he was target of racial profiling. Two police officers noticed accused riding his bicycle on sidewalk. He did not appear to have destination and he was looking at officers. He was not carrying anything. Officers followed him and when they saw him near tennis court they saw that he had duffle bag slung on his back. Officers believed that he stole bag and they arrested him for possession of stolen property. One officer searched him and found two shotgun shells in his pocket. Bag was half open and officer could see shotgun that was partially wrapped in T-shirts. Application dismissed. Accused failed to prove that racial profiling influenced officers’ action and that it resulted in arbitrary detention. Even though accused was black he was not improperly targeted. Accused’s actions rose to the point of appropriate police curiosity that gave them reason to follow him and what they saw next gave them reason to arrest him. Officers had both subjective and objective reasons to arrest accused. Arrest was lawful and search was lawful as incident to that arrest. Even if Charter was violated evidence was admissible because admitting it would not bring administration of justice into disrepute. R. v. Rainford (Nov. 25, 2011, Ont. S.C.J., Lemon J., File No. CRIMNJ(P) 932/11) 98 W.C.B. (2d) 100 (14 pp.).
GROUNDSJudge’s ultimate findings not compromised by problematic commentsAppeal by accused from his conviction on charges of sexual interference and uttering death threat. Accused committed these offences against 8-year-old daughter of his partner. Complainant was 16 at time of trial. Accused was 44-years old at time of trial and he denied allegations against him. He claimed that trial judge failed to assess reliability of complainant’s evidence, he relied on irrelevant considerations in assessing complainant’s credibility and he applied different standards to evidence of complainant and appellant. Appeal dismissed. Judge’s reasons were thorough, detailed and thoughtful. They were responsive to live issues that arose from evidence. They met test for sufficiency. Judge did not fail to properly assess both credibility and reliability of complainant’s evidence. He adequately addressed concerns that arose from her testimony. Regarding reliance on irrelevant factors, judge made some comments that might be regarded as unhelpful or out of place in proper assessment of credibility. However, considering evidence as a whole and judge’s reasons in their entirety integrity of his ultimate findings were not compromised by problematic comments. Judge did not hold accused’s evidence to higher standard than complainant’s evidence.
R. v. C. (F.) (Nov. 30, 2011, Ont. S.C.J., Trotter J., File No. 218/09) 98 W.C.B. (2d) 81 (11 pp.).
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Ontario Criminal
For a snippet of this week's stories, check out the Ontario Legal News Update. 
For a snippet of this week's stories, check out the Ontario Legal News Update. 
Several big names are joining the new Arbitration Place in Toronto, which held its official launch last week. Reporter Kendyl Sebesta talks to some of… 