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Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.

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Criminal Law

Offences

Sexual assault


Trial judge considered complainant’s mental development

Accused was convicted of sexual assault and touching complainant under age of 14 for sexual purpose.Accused was found to be dangerous offender and sentenced to indeterminate term of imprisonment. Accused appealed convictions and sentence. Appeals dismissed. Accused did not establish that trial judge was uneven in scrutiny of his testimony and of complainant’s. Trial judge’s reasons revealed keen awareness of issues raised about complainant’s credibility and reliability. Complainant did not get free pass from trial judge but, in some respects at least, her evidence was confirmed by other testimony and findings including condition of her cervix and anus and DNA deposits around fly of accused’s pants and crotch area of complainant’s clothes. Trial judge provided reasons for rejecting accused’s testimony that were firmly grounded in evidence and in manner in which accused testified, and there was nothing unfair, unreasonable or hypercritical in trial judge’s approach or findings. Balance of trial record did not suggest that accused’s testimony was subjected to more demanding level of scrutiny than complainant’s. Trial judge’s reasons did not reflect either inappropriately superficial level of scrutiny of complainant’s evidence or diminution of standard of proof. Despite recognized issues with complainant’s evidence, trial judge accepted her evidence on central issue of whether sexual assault occurred as truthful. Trial judge considered complainant’s mental development, understanding and ability to communicate but did not weaken standard of proof by situating evidence in that context. Trial judge was entitled to reach conclusion he did.
R. v. Radcliffe (2017), 2017 CarswellOnt 2870, 2017 ONCA 176, David Watt J.A., S.E. Pepall J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2009), 2009 CarswellOnt 3711, P.F. Lalonde J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2010), 2010 CarswellOnt 7882, 2010 ONSC 5829, Paul F. Lalonde J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Continuation of questioning after accused expressed wish to see lawyer was breach of Charter rights

Accused was arrested in connection with recently-committed robbery and stated that he wanted to speak to duty counsel. Police officer continued to question him, prompting accused to give exculpatory statement about his whereabouts. Accused spoke to duty counsel before police interview in which he gave substantially same exculpatory statement as he had before. At trial, police interview statement was admitted while accused advanced similar alibi except that he claimed to have been with spouse shortly before with robbery instead of woman named S. Accused was convicted of robbery and related offences. Accused appealed. Appeal allowed. Connections between first statement and interview led to conclusion that interview statement was tainted. Trial judge did not apply test from precedent, focusing on whether there was causal link between statement and interview and not considering temporal or contextual considerations. Officer’s failure to hold off from questioning after accused expressed wish to see lawyer was breach of s. 10(b) of Canadian Charter of Rights and Freedoms. On review of entire course of events from breach to interview, it was part of same transaction or course of conduct. There was close contextual link as, from accused’s perspective, interview after four hours in police custody with about five minute conversation with counsel, was continuation of earlier questioning as accused noted he was repeating what he had already told police. If police wanted fresh start, they should have made clear to accused that his decision whether or not to speak to them should not be influenced by anything he had already said to them.
R. v. Hamilton (2017), 2017 CarswellOnt 2871, 2017 ONCA 179, K. Feldman J.A., E.E. Gillese J.A., and S.E. Pepall J.A. (Ont. C.A.).

Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Collective agreement made matter arbitrable

Insured received long-term disability (LTD) benefits from insurer under group policy through her employment on basis of collective agreement. When benefits were terminated, insured brought action against insurer. Insurer brought motion to dismiss action on basis that court lacked jurisdiction. Motion judge granted motion and dismissed action on ground of lack of jurisdiction. Judge held that collective agreement made matter arbitrable. Insured appealed. Appeal dismissed. Fact that LTD benefits were paid under insurance policy did not change fact that insured’s entitlement to LTD benefits was provided by collective agreement. Collective agreement established insured’s rights to LTD benefits and covered terms, amount, definition of total disability, and referred to policy. Jurisdiction over dispute belonged to arbitrator.
Barber v. Manufacturers Life Insurance Co. (2017), 2017 CarswellOnt 2631, 2017 ONCA 164, H.S. LaForme J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

Administrative Law

Prerogative remedies

Certiorari

Applicant had automatic right of appeal to provincial Civilian Police Commission

Applicant police officer was charged with discreditable conduct, unnecessary or unlawful exercise of authority and insubordination. Hearing officer found applicant guilt of some of charges and hearing date was set to determine appropriate penalty. Application’s motion requesting that hearing officer recuse himself for reasonable apprehension of bias was dismissed. Applicant applied for judicial review. Application dismissed. Application was premature as applicant had automatic right of appeal to provincial Civilian Police Commission from decision of hearing officer. Commission would have authority to consider bias argument on appeal. Exceptional circumstances were required to justify early intervention. Hearing had been held and determination made on merits. Only remaining step was penalty, with limited costs associated with completing hearing. It was appropriate to allow appeal process to play out.
Pereira v. Hamilton Police Service (2017), 2017 CarswellOnt 1443, 2017 ONSC 924, Morawetz R.S.J., Nordheimer J., and Mulligan J. (Ont. Div. Ct.).

Professions and Occupations

Barristers and solicitors

Relationship with client

Motion for removal of law firm was dismissed

In 2008 plaintiffs sought representation in respect of Canadian patent pending and possible infringement claim. One of plaintiffs, CS, contacted lawyer at law firm. Lawyer informed CS that he would have to complete standard conflict check. Lawyer informed CS that he could not act for plaintiffs due to conflict of interest. Lawyer provided CS with recommendations as to potential law firms to represent plaintiffs. Law firm was later appointed as solicitors of record for defendants in ongoing matter opposing parties. In 2015, plaintiffs brought motion for removal of law firm on basis of 2008 interactions between CS and lawyer. Prothonotary dismissed motion. Federal Court dismissed plaintiffs’ appeal. Plaintiffs appealed. Appeal dismissed. Prothonotary found lawyer established that no information was imparted which could be relevant to underlying dispute. Although lawyer could not recall in detail seven year old conversation, prothonotary found that he was seasoned lawyer accustomed to his firm’s conflict of interest review procedure. His handwritten notes taken during phone call corroborated his position that no advice or counselling was given or sought, and that information given was general in nature. Prothonotary’s conclusion was open to him on evidence provided.
Sikes v. EnCana Corp. (2017), 2017 CarswellNat 444, 2017 FCA 37, Marc Noël C.J., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2708, 2016 FC 671, B. Richard Bell J. (F.C.).

Pensions

Federal and provincial pension plans

Federal pension plans

Tribunal was not entitled to dismiss matter on merits without oral hearing

Appellant R claimed entitlement to disability-related benefits. R applied to Federal Court for relief, with application being dismissed. R also filed for judicial review of tribunal decision, finding that proper identification had not been made by R. R brought appeal and judicial review before appeals court. Appeal and judicial review dismissed. Appeal tribunal could have determined application for judicial review differently. Tribunal was not entitled to dismiss matter on merits without oral hearing, because of decision of appeal court. However, sending matter back for reconsideration would have no effect on outcome. R did have opportunity to make submissions. R conceded he would have largely reiterated written submissions at oral hearing.
Robbins v. Canada (Attorney General) (2017), 2017 CarswellNat 405, 2017 FCA 24, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 2463, 2014 CarswellNat 3438, 2014 FC 689, 2014 CF 689, John A. O’Keefe J. (F.C.).
Professions and Occupations

Evidence

Opinion

Experts

Drug recognition expert’s opinion evidence was admissible without voir dire

Accused was suspected of drug impaired driving. Drug recognition expert (DRE) performed drug recognition evaluation. Accused was charged with driving while impaired by drug. At trial, Crown relied on s. 254(3.1) of Criminal Code to establish admissibility of DRE’s testimony without voir dire. Judge allowed DRE to testify as expert without voir dire, then acquitted accused. On appeal, acquittal was overturned and new trial ordered. At second trial, judge held s. 254(3.1) did not allow for automatic admissibility of DRE’s evidence and acquitted accused. Crown appealed. Judge held s. 254(3.1) rendered DRE’s opinion automatically admissible. Accused appealed. Court of Appeal held DRE’s opinion evidence was admissible without voir dire and dismissed appeal. Accused appealed. Appeal dismissed. Section 254(3.1) does not provide for automatic admissibility of DRE opinion evidence. Because s. 254(3.1) does not speak to admissibility, common law rules of evidence apply. Trial judge erred in concluding that because DRE was not expert in scientific foundation of various elements of test, none of his opinion evidence was admissible. DRE is expert for purpose of applying 12-step evaluation. Where requirements for admissibility of expert evidence at common law are met and probative value of evidence outweighs prejudicial effect, trial judge is not required to hold voir dire to determine admissibility.
R. v. Bingley (2017), 2017 CarswellOnt 2406, 2017 CarswellOnt 2407, 2017 SCC 12, 2017 CSC 12, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellOnt 8987, 2015 ONCA 439, E.A. Cronk J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from conviction or acquittal

Verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code

Accused was convicted of sexual assault causing bodily harm. It was admitted that accused engaged in anal intercourse with complainant who had no independent memory of event. Crown’s case was composed of complainant’s assertion that she would never engage in anal intercourse, series of texts and conversations between her and accused, her testimony as to her condition after event, photographs of bruising to body and doctor’s evidence regarding injuries. At trial, accused claimed it was complainant who initiated vaginal sex with him in front seat of car and that he was nervous about having sex in public place and that he did not want to have anal intercourse, claiming he thought it was dirty, but eventually agreed to complainant’s request. Accused was not successful in appeal of conviction. Accused appealed. Appeal dismissed. Trial judge did not reach decision by illogical or irrational reasoning process, and verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code.
R. v. Olotu (2017), 2017 CarswellSask 74, 2017 CarswellSask 75, 2017 SCC 11, 2017 CSC 11, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2016), 2016 CarswellSask 453, 2016 SKCA 84, Jackson J.A., Whitmore J.A., and Ryan-Froslie J.A. (Sask. C.A.).

Criminal Law

Dangerous offenders

Indeterminate sentence


Accused’s proposed release and treatment plan could not protect public adequately

Accused was declared dangerous offender and indeterminate sentence was imposed after accused pleaded guilty to aggravated assault, sexual assault, forcible confinement and uttering threats. At sentencing hearing, accused submitted further 10 years imprisonment followed by 10 year supervision order would adequately protect public, however, sentencing judge concluded accused’s proposed release and treatment plan could not protect public adequately. Accused appealed sentence on same grounds. Appeal dismissed. Accused’s letter expressing remorse and desire to make contribution to community during remaining years was appreciated; however, court’s function was to correct errors committed by court below and sentencing judge committed no error in his analysis or conclusion.
R. v. Siscoe (2017), 2017 CarswellOnt 1932, 2017 ONCA 133, J.C. MacPherson J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge did not overemphasize seriousness of offences

Accused was convicted of possession of loaded prohibited firearm, possession of cocaine for purpose of trafficking, and dangerous driving following high risk, vehicular police take-down triggered by confidential informant’s tip. Trial judge found that police violated accused’s rights under ss. 7 to 10 of Canadian Charter of Rights and Freedoms, but admitted evidence of handgun and drugs seized from accused’s vehicle incident to arrest on basis that admission of evidence would not bring administration of justice into disrepute. Accused appealed convictions, alleging that trial judge erred in his s. 24(2) Charter analysis. Appeal dismissed. Trial judge did not overemphasize seriousness of offences by placing particular significance on public interest in prosecution of firearm charges. Trial judge committed no error in his consideration of Grant factors and, absent error, his weighing of those factors was entitled to deference. While impact of breaches on accused’s Charter rights favoured exclusion of evidence, societal interest in adjudicating case on merits tipped balance in favour of admission. Trial judge did not give undue weight to that factor and fact that firearm was involved. He did not err in viewing fact that police obtained two warrants to search different vehicle associated with accused as being indicative of good faith. His factual assessment of officers’ conduct and his conclusion that they acted in good faith was entitled to deference. Trial judge accepted officers’ testimony that they considered informant’s tip that accused was in possession of firearm to be reliable. Judicial officers concluded that informant’s tip provided reasonable and probable grounds to believe that accused was in possession of firearm and that it would be found in his vehicle.
R. v. Allen (2017), 2017 CarswellOnt 2710, 2017 ONCA 170, E.A. Cronk J.A., Paul Rouleau J.A., and B.W. Miller J.A. (Ont. C.A.).
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