Case Law
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Courts
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STAY OF PROCEEDINGS
Courts could not condone deliberate use of violence and threats as investigative technique
Accused applying for stay of robbery and forcible confinement convictions as result of police brutality. Uncontested evidence of accused was that police repeatedly and severely beat him to obtain statement following arrest for offences. Crown having stayed charges against co-accused as similar beatings resulted in serious permanent injury. Trial judge holding police conduct egregious but stay not warranted as no impact on trial fairness and no permanent injuries sustained by accused. Accused’s appeal allowed and stay of convictions entered. Trial judge erred by failing to analyze residual category of impact of systemic ramifications and effect of police misconduct on repute of administration of justice. Courts could not condone deliberate, systemic use of violence and threats as investigative technique. Fact that police offered no response to uncontested evidence and no actions taken to bring officers to account made need for court to stay convictions more compelling. State actors had engaged in serious criminal conduct with apparently no accountability.
R. v. Singh (Dec. 12, 2013, Ont. C.A., Doherty J.A., Blair J.A., and Watt J.A., File No. CA C55486) 110 W.C.B. (2d) 695.
Courts could not condone deliberate use of violence and threats as investigative technique
Accused applying for stay of robbery and forcible confinement convictions as result of police brutality. Uncontested evidence of accused was that police repeatedly and severely beat him to obtain statement following arrest for offences. Crown having stayed charges against co-accused as similar beatings resulted in serious permanent injury. Trial judge holding police conduct egregious but stay not warranted as no impact on trial fairness and no permanent injuries sustained by accused. Accused’s appeal allowed and stay of convictions entered. Trial judge erred by failing to analyze residual category of impact of systemic ramifications and effect of police misconduct on repute of administration of justice. Courts could not condone deliberate, systemic use of violence and threats as investigative technique. Fact that police offered no response to uncontested evidence and no actions taken to bring officers to account made need for court to stay convictions more compelling. State actors had engaged in serious criminal conduct with apparently no accountability.
R. v. Singh (Dec. 12, 2013, Ont. C.A., Doherty J.A., Blair J.A., and Watt J.A., File No. CA C55486) 110 W.C.B. (2d) 695.
Abduction
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IN CONTRAVENTION OF CUSTODY ORDER
Indictment did not charge accused with detaining or harbouring son
Appeal by accused from conviction for abduction of his son in contravention of custody order. Son was born on May 15, 1990. Indictment charged that between April 30 and July 1, 1995 accused took away his son in contravention of custody order, with intent to deprive son’s mother of possession of her son. Custody order was made by provincial court judge on May 11, 1995 and it gave mother interim custody. Sometime between December 1994 and May 1995 accused sent son to Iran, where he remained for 12 years. Accused claimed he sent son in December 1994 and mother consented since she co-signed son’s passport application. Crown claimed that accused was guilty either because he sent son in May 1995, shortly before or after custody order was made; or he failed to return son once order was made. Accused’s defence that he had consent had air of reality to it and trial judge properly instructed jury about it. However, he also instructed jury that it could convict accused either of two bases advanced by Crown. These bases were that he arranged to send son to Iran in contravention of custody order, or that he failed to return son to mother in compliance with court order. Appeal allowed. Conviction set aside and new trial was ordered. Judge instructed jury that it could convict on second basis, which was not particularized in indictment, and that basis should not have been left with jury. Indictment charged accused only with taking son away and not with detaining or harbouring him. Court had jurisdiction to amend indictment but it would not do so because amendment would prejudice accused because it would require accused to meet evidence not presented at trial.
R. v. Sadeghi-Jebelli (Dec. 12, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C55732) 110 W.C.B. (2d) 657.
Indictment did not charge accused with detaining or harbouring son
Appeal by accused from conviction for abduction of his son in contravention of custody order. Son was born on May 15, 1990. Indictment charged that between April 30 and July 1, 1995 accused took away his son in contravention of custody order, with intent to deprive son’s mother of possession of her son. Custody order was made by provincial court judge on May 11, 1995 and it gave mother interim custody. Sometime between December 1994 and May 1995 accused sent son to Iran, where he remained for 12 years. Accused claimed he sent son in December 1994 and mother consented since she co-signed son’s passport application. Crown claimed that accused was guilty either because he sent son in May 1995, shortly before or after custody order was made; or he failed to return son once order was made. Accused’s defence that he had consent had air of reality to it and trial judge properly instructed jury about it. However, he also instructed jury that it could convict accused either of two bases advanced by Crown. These bases were that he arranged to send son to Iran in contravention of custody order, or that he failed to return son to mother in compliance with court order. Appeal allowed. Conviction set aside and new trial was ordered. Judge instructed jury that it could convict on second basis, which was not particularized in indictment, and that basis should not have been left with jury. Indictment charged accused only with taking son away and not with detaining or harbouring him. Court had jurisdiction to amend indictment but it would not do so because amendment would prejudice accused because it would require accused to meet evidence not presented at trial.
R. v. Sadeghi-Jebelli (Dec. 12, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C55732) 110 W.C.B. (2d) 657.
Civil Procedure
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GENERAL
No contractual duty to edit broadcast in favourable manner
Plaintiffs made business proposal on reality show “Dragon’s Den”. Plaintiffs alleged that version of proposal that was broadcast had been edited in such way as to completely misrepresent merits of business plan. Plaintiffs alleged that defendant’s conduct amounted to gross and reckless negligence, intentional misconduct, malice and bad faith. Plaintiffs brought action based on breach of contract, defamation, negligence and injurious falsehood. Defendant brought motion for summary judgment. Motion judge concluded that comprehensive release amounted to express and unambiguous release of all claims advanced in statement of claim and that there was no reason not to give effect to release. Plaintiffs appealed. Appeal dismissed. Motion judge was correct to conclude that no trial was needed to assess effect of release, as there were no material facts in dispute. Release gave defendant sole discretion to edit recording as it saw fit and to portray factual, fictional or defamatory image of plaintiffs. There was no stand-alone duty of good faith independent from terms expressed in contract. In circumstances there could be no contractual duty to edit broadcast in favourable manner. Misconduct complained of was not extraneous to contract or outside scope of release and exclusion clause but it fell squarely within terms of release. Giving effect to consent and release did not defeat objectives of agreement between parties.
MHR Board Game Design Inc. v. Canadian Broadcasting Corp. (Dec. 3, 2013, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and G. Pardu J.A., File No. CA C57441) Decision at 229 A.C.W.S. (3d) 994 was affirmed. 235 A.C.W.S. (3d) 83.
No contractual duty to edit broadcast in favourable manner
Plaintiffs made business proposal on reality show “Dragon’s Den”. Plaintiffs alleged that version of proposal that was broadcast had been edited in such way as to completely misrepresent merits of business plan. Plaintiffs alleged that defendant’s conduct amounted to gross and reckless negligence, intentional misconduct, malice and bad faith. Plaintiffs brought action based on breach of contract, defamation, negligence and injurious falsehood. Defendant brought motion for summary judgment. Motion judge concluded that comprehensive release amounted to express and unambiguous release of all claims advanced in statement of claim and that there was no reason not to give effect to release. Plaintiffs appealed. Appeal dismissed. Motion judge was correct to conclude that no trial was needed to assess effect of release, as there were no material facts in dispute. Release gave defendant sole discretion to edit recording as it saw fit and to portray factual, fictional or defamatory image of plaintiffs. There was no stand-alone duty of good faith independent from terms expressed in contract. In circumstances there could be no contractual duty to edit broadcast in favourable manner. Misconduct complained of was not extraneous to contract or outside scope of release and exclusion clause but it fell squarely within terms of release. Giving effect to consent and release did not defeat objectives of agreement between parties.
MHR Board Game Design Inc. v. Canadian Broadcasting Corp. (Dec. 3, 2013, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and G. Pardu J.A., File No. CA C57441) Decision at 229 A.C.W.S. (3d) 994 was affirmed. 235 A.C.W.S. (3d) 83.
Arbitration
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STAY OF PROCEEDINGS
Not appropriate to deny stay simply because of wrongful dismissal claim
Defendant retained plaintiff for sales and marketing services as independent contractor, but plaintiff eventually purchased shares and became employee. Plaintiff’s employment was terminated, and plaintiff alleged defendant misled him about nature of employment and value of shares. Plaintiff commenced action seeking to have purchase transactions and shareholders agreement set aside and declared void, and wrongful dismissal damages. Shareholders agreement contained clause stating any dispute about interpretation or implementation of provisions was to go to arbitration. Motion by defendant to stay all causes of action other than wrongful dismissal on basis they fell under agreement to arbitrate. Motion allowed. Dispute not clearly outside scope of arbitration agreement. Claims for declaration of value of shares, and order requiring defendants to purchase or redeem shares held by plaintiff would require interpretation of provisions of shareholders agreement, and plaintiff also sought to set agreement aside. Not appropriate to deny stay simply because of wrongful dismissal claim. While wrongful dismissal claim involved similar facts, it was different cause of action in context of distinct contractual agreement only between parties. Action, other than wrongful dismissal claim, stayed pending determination by arbitrator of whether matters were subject to arbitration.
Moffatt v. Maher (Oct. 21, 2013, Ont. S.C.J., Chiappetta J., File No. 13-CV-478808) 235 A.C.W.S. (3d) 19.
Not appropriate to deny stay simply because of wrongful dismissal claim
Defendant retained plaintiff for sales and marketing services as independent contractor, but plaintiff eventually purchased shares and became employee. Plaintiff’s employment was terminated, and plaintiff alleged defendant misled him about nature of employment and value of shares. Plaintiff commenced action seeking to have purchase transactions and shareholders agreement set aside and declared void, and wrongful dismissal damages. Shareholders agreement contained clause stating any dispute about interpretation or implementation of provisions was to go to arbitration. Motion by defendant to stay all causes of action other than wrongful dismissal on basis they fell under agreement to arbitrate. Motion allowed. Dispute not clearly outside scope of arbitration agreement. Claims for declaration of value of shares, and order requiring defendants to purchase or redeem shares held by plaintiff would require interpretation of provisions of shareholders agreement, and plaintiff also sought to set agreement aside. Not appropriate to deny stay simply because of wrongful dismissal claim. While wrongful dismissal claim involved similar facts, it was different cause of action in context of distinct contractual agreement only between parties. Action, other than wrongful dismissal claim, stayed pending determination by arbitrator of whether matters were subject to arbitration.
Moffatt v. Maher (Oct. 21, 2013, Ont. S.C.J., Chiappetta J., File No. 13-CV-478808) 235 A.C.W.S. (3d) 19.
Administrative Law
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JUDICIAL REVIEW
No authority to suspend applicant’s participation in program for more than six weeks
Application by prison inmate for judicial review of decision of Deputy Commissioner of Corrections. Commissioner denied applicant’s third level grievance over his suspension from full-time employment at medium security institution where he was incarcerated. Applicant was at work on May 11, 2011 when another inmate was cleaning panel saw and floor with compressed air. Applicant told other inmate to stop because room was filling up with dust in air. Argument ensued, during which other inmate headbutted applicant and he then punched him several times. Applicant fell on floor and he was unconscious. Security was called and applicant was taken to health care. Applicant was suspended for six months since he was involved in fight. Decision was made because applicant refused to participate in program assignment and it was made even though applicant was found not to be aggressor. It was upheld as it went through grievance process. Application allowed. Commissioner claimed that authority for suspending applicant was contained in s. 104(1) of Corrections and Conditional Release Regulations (Can.) but he did not properly or reasonably exercise statutory authority to suspend applicant under that provision. Applicant did not refuse to participate in program by virtue of his actions on May 11 and it was unreasonable to reach that conclusion and to suspend him. There was also no authority to suspend applicant’s participation in program for more than six weeks. Decision was also unreasonable because applicant followed his correctional plan, he fulfilled his shop steward duties at time of incident and he was victim and not aggressor. Given that applicant’s record in workplace was excellent it was unreasonable that six-month suspension was ordered. Applicant was to be reinstated retroactively with payments due and owing to him from date of suspension of May 11, 2011.
Johnson v. Canada (Commissioner of Corrections) (Dec. 3, 2013, F.C., Michael D. Manson J., File No. T-2136-12) 110 W.C.B. (2d) 647.
No authority to suspend applicant’s participation in program for more than six weeks
Application by prison inmate for judicial review of decision of Deputy Commissioner of Corrections. Commissioner denied applicant’s third level grievance over his suspension from full-time employment at medium security institution where he was incarcerated. Applicant was at work on May 11, 2011 when another inmate was cleaning panel saw and floor with compressed air. Applicant told other inmate to stop because room was filling up with dust in air. Argument ensued, during which other inmate headbutted applicant and he then punched him several times. Applicant fell on floor and he was unconscious. Security was called and applicant was taken to health care. Applicant was suspended for six months since he was involved in fight. Decision was made because applicant refused to participate in program assignment and it was made even though applicant was found not to be aggressor. It was upheld as it went through grievance process. Application allowed. Commissioner claimed that authority for suspending applicant was contained in s. 104(1) of Corrections and Conditional Release Regulations (Can.) but he did not properly or reasonably exercise statutory authority to suspend applicant under that provision. Applicant did not refuse to participate in program by virtue of his actions on May 11 and it was unreasonable to reach that conclusion and to suspend him. There was also no authority to suspend applicant’s participation in program for more than six weeks. Decision was also unreasonable because applicant followed his correctional plan, he fulfilled his shop steward duties at time of incident and he was victim and not aggressor. Given that applicant’s record in workplace was excellent it was unreasonable that six-month suspension was ordered. Applicant was to be reinstated retroactively with payments due and owing to him from date of suspension of May 11, 2011.
Johnson v. Canada (Commissioner of Corrections) (Dec. 3, 2013, F.C., Michael D. Manson J., File No. T-2136-12) 110 W.C.B. (2d) 647.
Partnership
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GENERAL
Defendants could only require plaintiffs to sell in accordance with compliant offer
Motion judge granted partial summary judgment in commercial dispute about exercise of shotgun buy-sell provision in partnership agreement. Defendants’ buy-sell offer contained two alternatives and plaintiffs could accept either. Motion judge found that buy-sell offer did not perfectly comply with shotgun buy-sell provision, but it was valid and enforceable. Plaintiffs appealed. Appeal dismissed. In deciding whether defendants’ shotgun buy-sell offer met strict compliance test, commercially reasonable expectations of sophisticated parties in factual context must be considered. It was open to offerors to include alternative in buy-sell offer for plaintiffs’ consideration even if alternative offer was not contemplated by partnership agreement. Inclusion of alternative in shotgun buy-sell offer that did not comply strictly with shotgun buy-sell provision in partnership agreement did not affect enforceability of buy-sell offer provided that compliant alternative was also included. Buy-sell offer was valid and enforceable since it contained compliant alternative, which plaintiffs were free to accept, and mere inclusion of other alternative did not invalidate buy-sell agreement or render it unenforceable. Court would not enforce shotgun buy-sell offer that was not strictly compliant with buy-sell provision, but it would enforce compliant buy-sell offer. That accorded with commercially reasonable expectation of parties. Defendants could only require plaintiffs to sell in accordance with compliant offer. Buy-sell offer was sufficiently compliant with shotgun buy-sell provision in partnership agreement to meet strict compliance standard. Strict compliance was not perfect compliance. Motion judge did not err in fixing applicable measure of damages as plaintiffs’ full compliance with compliant buy-sell offer, as that reflected commercially reasonable expectation of parties in context of triggered shotgun buy-sell offer under partnership agreement.
Western Larch Ltd. v. Di Poce Management Ltd. (Nov. 29, 2013, Ont. C.A., E.E. Gillese J.A., M. Tulloch J.A., and P. Lauwers J.A., File No. CA C56453) Decision at 224 A.C.W.S. (3d) 296 was affirmed. 235 A.C.W.S. (3d) 248.
Defendants could only require plaintiffs to sell in accordance with compliant offer
Motion judge granted partial summary judgment in commercial dispute about exercise of shotgun buy-sell provision in partnership agreement. Defendants’ buy-sell offer contained two alternatives and plaintiffs could accept either. Motion judge found that buy-sell offer did not perfectly comply with shotgun buy-sell provision, but it was valid and enforceable. Plaintiffs appealed. Appeal dismissed. In deciding whether defendants’ shotgun buy-sell offer met strict compliance test, commercially reasonable expectations of sophisticated parties in factual context must be considered. It was open to offerors to include alternative in buy-sell offer for plaintiffs’ consideration even if alternative offer was not contemplated by partnership agreement. Inclusion of alternative in shotgun buy-sell offer that did not comply strictly with shotgun buy-sell provision in partnership agreement did not affect enforceability of buy-sell offer provided that compliant alternative was also included. Buy-sell offer was valid and enforceable since it contained compliant alternative, which plaintiffs were free to accept, and mere inclusion of other alternative did not invalidate buy-sell agreement or render it unenforceable. Court would not enforce shotgun buy-sell offer that was not strictly compliant with buy-sell provision, but it would enforce compliant buy-sell offer. That accorded with commercially reasonable expectation of parties. Defendants could only require plaintiffs to sell in accordance with compliant offer. Buy-sell offer was sufficiently compliant with shotgun buy-sell provision in partnership agreement to meet strict compliance standard. Strict compliance was not perfect compliance. Motion judge did not err in fixing applicable measure of damages as plaintiffs’ full compliance with compliant buy-sell offer, as that reflected commercially reasonable expectation of parties in context of triggered shotgun buy-sell offer under partnership agreement.
Western Larch Ltd. v. Di Poce Management Ltd. (Nov. 29, 2013, Ont. C.A., E.E. Gillese J.A., M. Tulloch J.A., and P. Lauwers J.A., File No. CA C56453) Decision at 224 A.C.W.S. (3d) 296 was affirmed. 235 A.C.W.S. (3d) 248.
Civil Procedure
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COMMENCEMENT OF PROCEEDINGS
Service by registered mail deemed effective 10th day after receipt issued by post office
On July 3, 2012, Canadian Food Inspection Agency served by registered mail notice of violation to applicant that he had made false or misleading statement to inspector. Notice was collected by employee of applicant on July 4, 2012. Applicant filed request for review of violation before Canadian Agricultural Review Tribunal on August 14, 2012, along with request for extension of time to file request for review of notice of violation. Tribunal denied request for review on ground that it had been filed beyond permitted 30 days after service of notice of violation. Applicant brought application for judicial review of tribunal’s decision. Application dismissed. Agriculture and Agri-Food Administrative Monetary Penalties Act (Can.) (“AAAMPA”), was enacted to achieve purpose of Health of Animals Act (Can.), under which applicant had been found in violation. Pursuant to s. 9(2) of Agriculture and Agri-Food Administrative Monetary Penalties Regulations (Can.), service by registered mail was deemed to be effective on tenth day after date indicated in receipt issued by post office. Thus, effective service upon applicant was July 13, 2012. Request for review was made on August 14, 2012, which was one day outside 30-day period set out in AAAMPA. Tribunal was correct that it did not have jurisdiction to deviate from timelines set out in AAAMPA.
Clare v. Canada (Attorney General) (Nov. 13, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-445-12) 235 A.C.W.S. (3d) 31.
Service by registered mail deemed effective 10th day after receipt issued by post office
On July 3, 2012, Canadian Food Inspection Agency served by registered mail notice of violation to applicant that he had made false or misleading statement to inspector. Notice was collected by employee of applicant on July 4, 2012. Applicant filed request for review of violation before Canadian Agricultural Review Tribunal on August 14, 2012, along with request for extension of time to file request for review of notice of violation. Tribunal denied request for review on ground that it had been filed beyond permitted 30 days after service of notice of violation. Applicant brought application for judicial review of tribunal’s decision. Application dismissed. Agriculture and Agri-Food Administrative Monetary Penalties Act (Can.) (“AAAMPA”), was enacted to achieve purpose of Health of Animals Act (Can.), under which applicant had been found in violation. Pursuant to s. 9(2) of Agriculture and Agri-Food Administrative Monetary Penalties Regulations (Can.), service by registered mail was deemed to be effective on tenth day after date indicated in receipt issued by post office. Thus, effective service upon applicant was July 13, 2012. Request for review was made on August 14, 2012, which was one day outside 30-day period set out in AAAMPA. Tribunal was correct that it did not have jurisdiction to deviate from timelines set out in AAAMPA.
Clare v. Canada (Attorney General) (Nov. 13, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-445-12) 235 A.C.W.S. (3d) 31.
Prostitution
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KEEPING COMMON BAWDY HOUSE
Impact of prohibition disproportionate to legislative objective
Applicants challenging common bawdy-house provision for violating principles of fundamental justice. Applicants leading evidence that bawdy-house prohibition precluded prostitutes taking effective safety measures by establishing “in call” service. Application judge holding provision overbroad, arbitrary, grossly disproportionate, marginally advanced legislative objective of reducing social nuisance while drastically interfering with prostitute’s safety. Appeal from declaration common bawdy-house provision unconstitutional dismissed. Impact of bawdy-house prohibition disproportionate to legislative objective. Appropriate remedy was to strike down provision entirely but suspend declaration for 12 months.
Bedford v. Canada (Attorney General) (Dec. 20, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34788) Decision at 100 W.C.B. (2d) 704 was reversed in part. 110 W.C.B. (2d) 753.
Impact of prohibition disproportionate to legislative objective
Applicants challenging common bawdy-house provision for violating principles of fundamental justice. Applicants leading evidence that bawdy-house prohibition precluded prostitutes taking effective safety measures by establishing “in call” service. Application judge holding provision overbroad, arbitrary, grossly disproportionate, marginally advanced legislative objective of reducing social nuisance while drastically interfering with prostitute’s safety. Appeal from declaration common bawdy-house provision unconstitutional dismissed. Impact of bawdy-house prohibition disproportionate to legislative objective. Appropriate remedy was to strike down provision entirely but suspend declaration for 12 months.
Bedford v. Canada (Attorney General) (Dec. 20, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34788) Decision at 100 W.C.B. (2d) 704 was reversed in part. 110 W.C.B. (2d) 753.
Police
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DISCIPLINE
Officers not entitled to consult with counsel before completing their notes
Police officers subject to Special Investigations Unit investigations sought assistance of counsel in completing their notes. Court of Appeal found that officers had right to basic legal advice about their rights and obligation before completing notes. Appeal by officers dismissed and cross-appeal by SIU allowed. Purpose and legislative history of SIU regulations compel conclusion that police officers are not entitled to consult with counsel at all before completing their notes.
Schaeffer v. Wood (Dec. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34621) Decision at 98 W.C.B. (2d) 232 was reversed in part. 110 W.C.B. (2d) 786.
Officers not entitled to consult with counsel before completing their notes
Police officers subject to Special Investigations Unit investigations sought assistance of counsel in completing their notes. Court of Appeal found that officers had right to basic legal advice about their rights and obligation before completing notes. Appeal by officers dismissed and cross-appeal by SIU allowed. Purpose and legislative history of SIU regulations compel conclusion that police officers are not entitled to consult with counsel at all before completing their notes.
Schaeffer v. Wood (Dec. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34621) Decision at 98 W.C.B. (2d) 232 was reversed in part. 110 W.C.B. (2d) 786.
Charter of Rights
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ARBITRARY DETENTION OR IMPRISONMENT
Officer took reasonable steps to only preserve evidence and clear out occupants
Accused sought exclusion of evidence of drugs and other items found on grounds of Charter ss. 8 and 9 breaches. Accused was under surveillance being person of interest and drove very suspiciously taking roundabout routes and was observed to exchange box with another driver and then drive away fast. Police arrested other driver and found box contained cocaine and ordered takedown of accused. Accused was arrested and search of his car revealed keys to apartment which was not principal residence of accused. Officers used information from key fob to contact property manager to ascertain to which units keys belonged. Officers ordered immediate search of apartment without warrant in order to freeze or secure premises, clear it of any occupants and not to search for evidence. Officer pulled back shower curtain to see if anyone was hiding behind it and was hit by strong smell of cocaine and saw suspicious wrapping. Officer saw closed briefcase behind bathroom door, but took no steps to open it. Collective police evidence was that they were inside unit for less than five minutes and that they entered with key. Subsequent search pursuant to search warrant revealed multiple kilos of cocaine. Evidence admitted. Court found no s. 9 breach as officers had reasonable grounds to make arrest after suspicious driving behaviour of accused and evidence found in other vehicle. There was no Charter breach in accessing key fob information as that was done pursuant to legitimate police investigation. There was Charter breach for warrantless entry of apartment but officer clearly took reasonable steps to only preserve evidence and clear out occupants. All those factors suggested that Charter infringing conduct was modest at best, and weighed towards inclusion of evidence found in unit. Court also noted evidence was substantial and real which also favoured admission and that accused was in custody in time of search of apartment that was not his principal residence.
R. v. Saciragic (Dec. 11, 2013, Ont. S.C.J., Croll J., File No. CR-12-90000719) 110 W.C.B. (2d) 525.
Officer took reasonable steps to only preserve evidence and clear out occupants
Accused sought exclusion of evidence of drugs and other items found on grounds of Charter ss. 8 and 9 breaches. Accused was under surveillance being person of interest and drove very suspiciously taking roundabout routes and was observed to exchange box with another driver and then drive away fast. Police arrested other driver and found box contained cocaine and ordered takedown of accused. Accused was arrested and search of his car revealed keys to apartment which was not principal residence of accused. Officers used information from key fob to contact property manager to ascertain to which units keys belonged. Officers ordered immediate search of apartment without warrant in order to freeze or secure premises, clear it of any occupants and not to search for evidence. Officer pulled back shower curtain to see if anyone was hiding behind it and was hit by strong smell of cocaine and saw suspicious wrapping. Officer saw closed briefcase behind bathroom door, but took no steps to open it. Collective police evidence was that they were inside unit for less than five minutes and that they entered with key. Subsequent search pursuant to search warrant revealed multiple kilos of cocaine. Evidence admitted. Court found no s. 9 breach as officers had reasonable grounds to make arrest after suspicious driving behaviour of accused and evidence found in other vehicle. There was no Charter breach in accessing key fob information as that was done pursuant to legitimate police investigation. There was Charter breach for warrantless entry of apartment but officer clearly took reasonable steps to only preserve evidence and clear out occupants. All those factors suggested that Charter infringing conduct was modest at best, and weighed towards inclusion of evidence found in unit. Court also noted evidence was substantial and real which also favoured admission and that accused was in custody in time of search of apartment that was not his principal residence.
R. v. Saciragic (Dec. 11, 2013, Ont. S.C.J., Croll J., File No. CR-12-90000719) 110 W.C.B. (2d) 525.
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Ontario Legal News Update — March 3, 2014
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Ontario Legal News Update — February 24, 2014
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Ontario Legal News Update — February 10, 2014
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