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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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Criminal Law

Extraordinary remedies

Habeas corpus with certiorari in aid

Application in nature of habeas corpus with certiorari in aid was dismissed


Accused was convicted on charge of importing cocaine as person charged with offence under s. 6(1) of Controlled Drugs and Substances Act. Accused brought application in nature of habeas corpus with certiorari in aid before judge of Superior Court of Justice which was dismissed. Accused appealed. Appeal dismissed. Limited exception to general unavailability of habeas corpus as remedy against denial of judicial interim release was beyond accused’s grasp. Further, accused has not attempted to comply with notice requirements applicable to challenges under s. 52 of Constitution Act. To permit her to invoke habeas corpus to achieve same result would be to allow her to mount indirect attack on integrity of the legislation, a course that was not open to her. 

R. v. Passera (2017), 2017 CarswellOnt 5311, 2017 ONCA 308, David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.).

Criminal Law

Pre-trial procedure

Disclosure of evidence

Temporary publication ban over certain material was appropriate

Justice issued production order directing media company and reporter to produce certain documents and data pertaining to communications with or concerning accused, individual charged but not arrested yet for six terrorism offences and who was believed to have left Canada to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media company about accused’s involvement with ISIS. Articles were based in large part on communications between reporter and accused through text messaging service. Applicants’ application for order setting aside sealing order was dismissed. Trial judge found sealing order to remain in force for two weeks to permit parties to exercise right of appeal after which access would be permitted to copy of Information to Obtain (ITO) that had been redacted to prevent disclosure of information that was subject to national security claims, information that could disclose identity of specific person and information contained in paragraphs relating to investigative procedures. Trial judge found accused knew before he left Canada that he was under investigation by Canadian security authorities such that there was little risk accused would alter his behaviour on social media. Trial judge found police ought not to be required, as part of price of obtaining production order, to publicly disclose investigative steps that they proposed to take in future. Trial judge found information regarding two individuals was not redacted as those individuals were already well known to media and because far from suggesting that these two persons had any kind of connection to, involvement with or sympathy for terrorists or terrorism, contents of relevant paragraphs clearly demonstrated opposite. Trial judge found information regarding another individual was redacted as they were in different position and had told officer that if they had known that their identity would be made public at this stage of process, they would not have talked to police. Trial judge found that person’s implicit concern for safety was reasonable concern. Trial judge found publication of portions of the ITO concerning accused’s alleged involvement with ISIS and setting forth statements he was alleged to have made would put his right to fair trial in jeopardy, not only because of potential impact of that information on impartiality of jury but also because of its capacity to stigmatize him. Trial judge found based on binding jurisprudence it was not open to accept that as matter of principle allowing access but prohibiting publication was not reasonable alternative. Applicants appealed. Appeal allowed in part. Reasonableness was proper test when considering constitutionality of order. More interventionist standard of review should not be applied when media is target of order. Trial judge made no misapprehension of evidence, considered relevant factors, and made no extractable legal error. Balancing of competing interests favoured making production order. Trial judge took into account possible chilling effect and noted that source did not request confidentiality. Crown not required to show that material sought essential to prosecution. When production orders or search warrants are issued, often there is no prosecution underway and investigation is in formative stage, so that what is necessary to prove case is not known. Reasons for redacting identity of specific individual were reasonable. Certain matters of police procedure should not have been redacted as they steps were obvious. Temporary publication ban over certain materials was appropriate, and parties invited to make further submissions regarding which material should be subject to ban. Temporary order had less deleterious effect on open court principle.
R. v. Vice Media Canada Inc. (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 4901, 2016 ONSC 1961, MacDonnell J. (Ont. S.C.J.).

Criminal Law

Post-trial procedure
Appeal from conviction or acquittal

Accused’s appeal from conviction for forgery and fraud was dismissed

Accused was bookkeeper/accountant for large company. In eight-week period 97 cheques, totalling over one million dollars, were issued with forged signature of company’s vice president. Accused was convicted of forgery and fraud. Accused appealed conviction on basis, inter alia, that verdict was unreasonable. Appeal dismissed. Basis of grounds of appeal was complainant’s evidence that he agreed he signed some cheques to fraudulent payees during period when forged cheques were all signed. Accused submitted that trial judge was not entitled to discount that evidence and explain why he did not accept it, but had to treat it as raising reasonable doubt and require Crown to rebut defence of complicity. Trial judge thoroughly reviewed evidence and analyzed in particular accused’s credibility in light of that testimony. He concluded that in light of rest of complainant’s evidence and whole of evidence, evidence could be explained by passage of time, witness’ anger at being defrauded, and language difficulties. There was no error in trial judge’s approach. He was entitled to accept all or some of witness’ evidence. He gave clear reasons for his conclusions. His findings were accorded deference. There was no basis on which to set aside verdict.
R. v. Atwal (2017), 2017 CarswellOnt 3919, 2017 ONCA 228, K. Feldman J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 10648, 2015 ONSC 4425, Hill J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 9515, 2016 ONSC 3668, Hill J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Challenge to validity of search warrants was dismissed

Accused was convicted of several offences involving possession of firearm and dangerous weapon. Accused’s applications under ss. 7, 8, and 9 of Canadian Charter of Rights and Freedoms, including his s. 8 application to exclude evidence obtained pursuant to search warrants obtained under Criminal Code and Controlled Drugs and Substances Act, were dismissed. Warrants were based on information provided by confidential informant (CI), computer checks of police databases, and surveillance. Crown conceded that judicial summary of redacted information to obtain (ITO) could not support authorization of warrants. Crown’s application to have judge consider unredacted ITO was granted, accused’s s. 8 application was dismissed, evidence obtained in searches was admitted, and accused was convicted. Accused appealed convictions, challenging validity of search warrants on basis that they violated his s. 8 Charter rights. Appeal dismissed. Application judge did not err by not permitting accused to challenge sub-facial validity of redacted portions of ITO. Read as whole, application judge’s reasons made it clear that accused was permitted to make, and did make, sub-facial challenge to warrant. Application judge dismissed accused’s sub-facial challenge, finding that ITO did not omit any material facts concerning surveillance or that information provided was misleading. Application judge found that ITO was not misleading and that police conducted adequate investigation to corroborate CI’s tip. He dismissed accused’s request for additional information on basis that further disclosure could disclose CI’s identity. Judicial summary explained nature of redacted information and was sufficient to permit accused to challenge credibility of CI, whether information provided by CI was compelling, and whether CI’s information was corroborated.
R. v. Thompson (2017), 2017 CarswellOnt 3240, 2017 ONCA 204, J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Challenge to validity of search warrants was dismissed

Accused was convicted of several offences involving possession of firearm and dangerous weapon. Accused’s applications under ss. 7, 8, and 9 of Canadian Charter of Rights and Freedoms, including his s. 8 application to exclude evidence obtained pursuant to search warrants obtained under Criminal Code and Controlled Drugs and Substances Act, were dismissed. Warrants were based on information provided by confidential informant (CI), computer checks of police databases, and surveillance. Crown conceded that judicial summary of redacted information to obtain (ITO) could not support authorization of warrants. Crown’s application to have judge consider unredacted ITO was granted, accused’s s. 8 application was dismissed, evidence obtained in searches was admitted, and accused was convicted. Accused appealed convictions, challenging validity of search warrants on basis that they violated his s. 8 Charter rights. Appeal dismissed. Application judge did not err by not permitting accused to challenge sub-facial validity of redacted portions of ITO. Read as whole, application judge’s reasons made it clear that accused was permitted to make, and did make, sub-facial challenge to warrant. Application judge dismissed accused’s sub-facial challenge, finding that ITO did not omit any material facts concerning surveillance or that information provided was misleading. Application judge found that ITO was not misleading and that police conducted adequate investigation to corroborate CI’s tip. He dismissed accused’s request for additional information on basis that further disclosure could disclose CI’s identity. Judicial summary explained nature of redacted information and was sufficient to permit accused to challenge credibility of CI, whether information provided by CI was compelling, and whether CI’s information was corroborated.
R. v. Thompson (2017), 2017 CarswellOnt 3240, 2017 ONCA 204, J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.).

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.).
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