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Evidence

CONSCIOUSNESS OF GUILT

Trial judge erred by leaving post-offence conduct as probative on issue of intent to kill

Jury convicted accused of second degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual relations at his home. Accused testified he inadvertently smothered deceased during effort to restrain her when his retreat from her attack failed. Pathologist being unable to pinpoint cause of death. Accused having engaged in extensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Police uncovered considerable forensic evidence in home notwithstanding accused’s efforts to clean. Accused fleeing from and lying to police about having been responsible for death when first arrested. Accused raised defences of self-defence and provocation. Crown arguing evidence suggested prolonged and brutal attack of deceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Appeal allowed and new trial ordered. Trial judge erred by leaving post-offence conduct of flight and lies to police as probative on issue of intent to kill. Evidence had no probative value on intent as person responsible for manslaughter just as likely to flee and lie to authorities. Trial judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative to intent. Evidence only probative of intent if jury first accepted Crown’s theory deceased had been victim of prolonged, bloody attack by accused. Curative proviso did not apply as issue of intent and evidence of post-offence conduct central issues at trial.
R. v. Rodgerson (May. 8, 2014, Ont. C.A., Doherty J.A., K. Fledman J.A., and J.C. MacPherson J.A., File No. CA C56484) 113 W.C.B. (2d) 232.

Appeal

NEW TRIAL

Non-expert witness could give evidence that person was intoxicated

Appeal by Crown from acquittal of accused on charge of operating motor vehicle while drug impaired. Accused was arrested and he was taken before police officer who was drug recognition expert (DRE), who concluded that accused was drug impaired. Trial judge found that DRE’s opinion was to be received without conducting voir dire. Accused was acquitted, Crown successfully appealed and new trial was ordered. At new trial Crown sought to call DRE to give evidence without voir dire. Accused objected to this approach and judge found that voir dire was necessary. Voir dire was conducted, judge refused to qualify DRE as expert and his opinion was not allowed. DRE could not even give lay opinion on issue of accused’s possible impairment. Acquittal that was subject of this appeal resulted. Appeal allowed. DRE’s opinion could be given in court without voir dire. Non-expert witness could give evidence that person was intoxicated and police officer, without qualification, could give evidence that accused was intoxicated or impaired. No specific qualifications were required. DRE should have been able to give his lay opinion regarding accused’s condition. DRE should have been able to give his evidence. New trial was ordered because it was only alternative in this case.
R. v. Bingley (May. 22, 2014, Ont. S.C.J., McLean J., File No. 09-2086) 113 W.C.B. (2d) 198.

Conflict of Laws

SERVICE EX JURIS

Mother permitted to proceed with undefended trial as father properly served

Parties were married on March 7, 1987, and separated on May 13, 1995. Parties had two children born on Jan. 15, 1990, and Feb. 16, 1993. Court issued final order on Dec. 18, 2008, which terminated child support for oldest child, adjusted child support payable for youngest child, and addressed outstanding arrears. Mother now brought motion to change final order. Father lived in state of Georgia. Motion to change was served on father in Georgia. Father failed to respond within 30 days required under Family Law Rules (Ont.). Motion proceeded on undefended basis. Motion granted. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to case. Convention must be complied with for service of family law proceedings within contracting states. Process server employed by mother was authorized, within State of Georgia, to serve court documents anywhere in Georgia. Father was served in manner that was authorized by Convention, and service in that way was permissible in Ontario. Service was acceptable. Since father was properly served with motion to change and appropriate documents, and had not responded, mother was permitted to proceed with undefended trial. Based on her affidavit material, court was persuaded mother was entitled to order sought.
Pitman v. Mol (Apr. 24, 2014, Ont. S.C.J., Gray J., File No. 4060/08) 240 A.C.W.S. (3d) 63.

Administrative Law

BIAS

Judge’s comments indicated partiality to evidence given by police officers

Applicant brought application for declaration that certain moneys that she had advanced to daughter and respondent, who was daughter’s common law husband, towards purchase of house were not gift, but loan that constituted unregistered mortgage on home. Although application was supported by one document, meaning and intent of that document was in dispute, as were the facts that had to be found in order to determine whether declaration should be granted. Trial judge dismissed application. Trial judge accepted respondent’s contention that loan had been gift, which was made in return for free room and board. Daughter and respondent were police officer. Trial judge expressed concern about making finding that police officer was untruthful. Applicant appealed on basis that application judge erred in failing to find that trial was necessary in circumstances, and on basis that impugned comments by application judge created reasonable apprehension of bias. Appeal allowed. Applying test for reasonable apprehension of bias, it was clear that reasonable observer would conclude that it was more likely than not that, consciously or unconsciously, application judge would not impartially decide whom to believe. Application judge’s comments indicated partiality to evidence given by police officers. Even though he gave other reasons for deciding whose evidence he believed, those reasons were tainted by comments. Decision was set aside and new trial ordered.
Laver v. Swrjeski (Apr. 17, 2014, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and Gloria Epstein J.A., File No. C57052) 240 A.C.W.S. (3d) 2.

Citizenship

APPEAL

Strict physical presence test was principled approach to take

Foreign national was citizen of United States who entered Canada in 2001, and became permanent resident on Jan. 22, 2008. In February 2010, foreign national applied for Canadian citizenship. Citizenship judge noted that foreign national declared 156 days of absences from Canada in her citizenship application, but 205 days on her Residence Questionnaire and that foreign national was physically present in Canada for 958 days according to her citizenship application, but 909 days according to her Residence Questionnaire. Citizenship judge determined that foreign national failed to meet requirement that she be physically present in Canada for at least 1,095 days out of four years immediately preceding her application for citizenship. Foreign national appealed, contending that judge ought to have conducted qualitative assessment of evidence submitted which showed quality of her ties to Canada and that such an assessment would have allowed her to meet residency requirement, despite not satisfying physical presence test. Appeal dismissed. Based on plain and ordinary reading of Citizenship Act (Can.), strict physical presence test was principled approach to take. Discrepancy between dates cited by judge was explainable, however, in light of fact that neither absences cited on foreign national’s citizenship application or her Residence Questionnaire added up to 1,095 days of physical presence in Canada, this explanation was irrelevant to citizenship judge’s conclusion. Judge’s decision was not unreasonable.
Donohue v. Canada (Minister of Citizenship and Immigration) (Apr. 28, 2014, F.C., Michael D. Manson J., File No. T-1824-13) 240 A.C.W.S. (3d) 21.

Appeal

GROUNDS

Undisclosed documents went to pivotal issue of whether accused would have testified

Accused applied for judicial review of decision of Minister of Justice refusing to grant remedy regarding two convictions for fraud imposed and upheld on appeal. Accused was lawyer who joined two of his clients in starting family restaurant franchise, and sold shares in partnership. Project began to fall apart when popularity of restaurant was less than expected and its revenues declined, limited partnership was petitioned into bankruptcy by bank, and Securities Commission launched inquiry resulting in civil action and criminal charges. Accused was convicted of two counts of concealing information from investors. Accused put forward as grounds for his application non-disclosure of significant evidence at trial, including evidence that had been available to Crown, and new evidence allegedly discrediting certain witness testimony. Two key items of undisclosed evidence were detailed admissions of guilt by accused’s partners to Securities Commission and pre-trial agreement struck between those partners and investors in relation to action against accused for professional malpractice. Accused and his counsel at time of trial, gave evidence in support of application that they would have conducted defence strategy very differently had this information been known to them. Accused would have testified in his own defence and counsel would have attacked credibility of witnesses more aggressively. Instead, formal counsel stated he had deliberately avoided challenging evidence of elderly investors for fear of being seen to be too harsh on victims. Application granted with costs; matter returned to Minister for reconsideration. Minister’s delegate found that there was “reasonable possibility” that accused would have testified in his own defence and that his counsel may have changed his approach in cross-examining investors if Settlement Agreements and Assignment Deal had been disclosed at trial. Minister disagreed with these conclusions but did not interview witnesses or read volumes of documents assembled in investigation. Question to be decided was whether accused received fair trial as result of non-disclosure, not whether outcome would have been affected. Witnesses, accused’s partners and investors, were at heart of Crown’s case on counts on which accused was convicted. Undisclosed documents also went directly to pivotal issue of whether accused would have testified if he had known of them. Decision lacked justification, transparency and intelligibility and did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law.
Ross v. Canada (Minister of Justice) (Apr. 7, 2014, F.C., Richard G. Mosley J., File No. T-1790-10) 113 W.C.B. (2d) 196.

Appeal

GROUNDS

Jury well equipped to understand and determine issue of planning and deliberation

Appeal by accused from conviction for first degree murder. Accused was tried by judge and jury for first and second degree murder. Victim was woman with whom accused once lived in common law relationship. At trial Crown’s position was that killing amounted to planned and deliberate murder and accused killed her because he could not accept her independence. On appeal accused conceded liability for second degree murder but he claimed that trial judge erred in her instructions on evidence that related to issue of planning and deliberation. Appeal dismissed. Appeal did not turn on judge’s legal instruction on planning and deliberation, which accused described as impeccable. Rather, it turned on whether judge adequately addressed evidence so that jury was equipped to understand and determine issue of planning and deliberation for purposes of first degree murder conviction. Judge invited jury to consider evidence that could support inference of planning and deliberation. She fairly reviewed evidence and she was not required to review every competing inference that could be drawn from piece of circumstantial evidence. Judge was also not obligated to review all of evidence. Jury was well equipped to understand and determine issue of planning and deliberation and whether accused should be convicted of first degree murder. Charge to jury was fair and there was no miscarriage of justice.
R. v. McPherson (Mar. 26, 2014, Ont. C.A., S.T. Goudge J.A., S.E. Pepall J.A., and E.A. Cronk J.A., File No. CA C49298) 113 W.C.B. (2d) 95.

Family Law

DOMESTIC CONTRACTS

Absence of witness to husband’s signature did not preclude wife from relying on contract

Parties cohabited from 2007 to 2012 in wife’s home and had one child. Wife had significantly greater assets and income than husband. In 2008, wife asked husband to sign domestic contract. Husband took contract to lawyer for legal advice. Husband claimed he signed contract without witness. After parties separated, husband brought application alleging that wife had been unjustly enriched as result of contributions he made to her home. Motion judge concluded that husband’s claims were prohibited by domestic contract and claims were dismissed. Husband appealed motion judge’s decision. Appeal dismissed. Section 55(1) of Family Law Act (Ont.), provided that domestic contract was unenforceable unless it was made in writing, signed by parties and witnessed. Strict requirements of s. 55(1) may be relaxed where court was satisfied that contract was executed by parties, terms were reasonable and there was no oppression or unfairness in circumstances that surrounded negotiation and execution of agreement. Both parties signed contract and wife’s signature was witnessed. Both parties certified that they received independent legal advice before they signed contract. There was full financial disclosure before contract was executed. Both parties were educated and sophisticated and there was no duress, lack of capacity, vulnerability or other circumstance that would vitiate contract. Absence of witness to husband’s signature did not preclude wife from relying on domestic contract as defence to husband’s claims. Domestic contract was clear and unambiguous when it was read as whole and parties contracted for separate property regime. Wife was entitled to do what she wanted with husband’s rent payments and her acceptance and use of them did not repudiate contract.
Gallacher v. Friesen (May. 15, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and G.R. Strathy J.A., File No. CA C57663) 239 A.C.W.S. (3d) 967.

Arbitration

AWARD

Nothing about award was contrary to principles of contract law

Applicant ordered seeds from respondent and made partial payment of $62,460.80. Respondent delivered seeds, but applicant complained about quality and respondent took them back and re-cleaned them and sought $51,330.25 balance owing. When payment was not made, respondent marketed and sold seeds to company in China without applicant’s knowledge. Applicant applied for arbitration as provided for by contract and parties agreed to be bound by decision. Arbitrator found application for arbitration was made within 30 days of breaking of negotiations, so was on time under the Normaseed Rules, which parties agreed applied to their contract. Arbitrator found both parties breached contract as applicant only paid for part of crop and respondent sold seeds without authorization. Arbitrator ordered respondent to refund money paid by applicant with interest and parties to share costs of arbitration. Application for order recognizing arbitration award, which respondent had refused to comply with on the basis arbitrator exceeded his jurisdiction in ordering return of partial payment after finding both parties breached contract. Application granted. Contract provided any breach would be settled by arbitration in accordance with Rules, so it was clearly not the case that the arbitrator exceeded his jurisdiction by arriving at decision upon finding breaches occurred. Contract did not impose limits on arbitrator beyond Rules, and Rule VIII(2)(b) stipulated equitable solution would be determined where there was dispute over quality, which was exactly what had occurred. Parties did not waive contract and nothing about award was contrary to principles of contract law. Award recognized pursuant to Article 36(a)(iii) of International Commercial Arbitration Act (Ont.).
Proseeds Marketing Inc. v. Power Seed Inc. (Apr. 11, 2014, Ont. S.C.J., Andre J., File No. Guelph 918/13) 239 A.C.W.S. (3d) 844.

Human Rights Legislation

JUDICIAL REVIEW

Complaint was vexatious because it had already been appropriately dealt with

Applicant began full-time employment with respondent employer in 1997, and he remained employed until 2009, when he was terminated for time theft. Labour arbitrator upheld applicant’s termination after grievance arbitration hearing. Applicant did not allege discrimination at arbitration proceedings. Applicant obtained psychiatric report that he claimed established he had disability at time of his termination. Applicant requested that employer reinstate him based on psychiatric report, but employer refused. Applicant bought human rights complaint alleging discrimination in employment by employer on prohibited grounds of race, colour, ethnic origin and disability. Human Rights Commission advised applicant that complaint of discriminatory acts was not linked to any prohibited ground of discrimination and closed file. Arbitrator agreed to reopen applicant’s grievance of his termination, but upheld termination. Applicant requested commission reopen complaint. Commission issued report that recommended applicant’s complaint be dismissed pursuant to s. 41(1)(d) and (e) of Canadian Human Rights Act. Commission decided not to deal with applicant’s complaint on basis that it was filed out of time and was vexatious. Applicant applied for judicial review of commission’s decision. Application dismissed. Applicant was aware of conclusions and recommendations in report and was aware of case he had to meet. Applicant made extensive submissions in response to report. Commission did not breach applicant’s right to procedural fairness. Commission’s decision with respect to timeliness was reasonable. Commission’s reasons did not leave applicant with impression that it did not consider his allegations before it rejected them. Commission’s decision that complaint was vexatious was reasonable. Notion of vexatious complaint included complaints that were res judicata, abuse of process, collateral attacks or barred by issue estoppel. Commission found that complaint was vexatious because it had already been appropriately dealt with and to allow applicant to raise new grounds of discrimination when he could have had all his human rights issues dealt with at arbitration was abuse of process and vexatious. There was no unfairness in arbitration proceedings. Commission’s reliance on finality of arbitration proceedings to conclude that complaint was vexatious did not cause unfairness or injustice.
Khapar v. Air Canada (Feb. 10, 2014, F.C., Catherine M. Kane J., File No. T-509-13) 239 A.C.W.S. (3d) 984.
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