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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

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.).

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.).

Criminal Law

Offences

Dangerous driving causing death

Judge did not misunderstand or misapply legal standard for dangerous driving

Accused’s vehicle crashed into front entrance of department store when she was reversing out of parking spot. Two people were injured, and two children lost their lives. Trial was held of accused charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. Trial judge convicted accused of lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm. Judge held that accused’s manner of driving was marked and substantial departure from what was expected of reasonable driver. Judge found that accused intended to slam on brakes, but applied pressure to gas pedal to point it was compressed right to floor, and did not take any corrective measures. Accused appealed. Appeal dismissed. Judge did not misunderstand or misapply legal standard for dangerous driving and found that accused’s failure to take corrective action was marked departure from standard of care. Judge did not misapprehend evidence regarding accused’s driving behaviour and corrective action. Judge’s finding that accused’s foot could not have become caught in pedal as described by accused was reached by applying common sense and considering all evidence. Verdict was not unreasonable.
R. v. Burger (2017), 2017 CarswellOnt 1350, 2017 ONCA 101, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9492, 2015 ONCJ 349, Jonathon C. George J. (Ont. C.J.

Criminal Law

Family law

Support


Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).

Criminal Law

Extraordinary remedies

Habeas corpus

Habeas corpus hearing adjourned pending outcome of bail review

Accused was detained awaiting trial on number of counts under Immigration and Refugee Protection Act in respect of advising on immigration matters as non-lawyer without authorization to do so. She was originally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015 she was arrested and charged with breaching bail and committing further offences under Act. Following revocation hearing, her bail was cancelled in November 2015 and she was detained on all charges on December 8, 2015 following show-cause hearing. Preliminary hearing was commenced for each of May 2014 charges and September 2015 charges. Before receiving decision on preliminary hearings, Crown preferred direct indictment on December 11, 2016, with respect to all charges under Act. Direct indictment was filed under s. 577 of Criminal Code. Original charges, including breach of bail charges, were stayed on January 5, 2017. While detained, accused initiated multiple proceedings including two-part habeas corpus application. Proceedings commenced by accused were dismissed and she remained in custody pending trial under new indictment. Accused appealed denial of habeas corpus relief. Decision of application judge was set aside for failure to give adequate reasons and new bail review hearing was to be held forthwith. New habeas corpus hearing adjourned pending outcome of bail review. Under s. 523(1.2) of Code, previous detention order continued to apply in respect of new indictment. Purpose and effect of s. 523(1.2) of Code are to continue previous detention order and make it apply to new indictment. Any stay of original charges has no effect on ongoing status of original detention order. Accused had now spent 18 months in custody. Over 16 months had passed since her re-arrest on charges that she breached her bail. While new charges she allegedly committed while on bail were proceeding, charges that she failed to comply with bail had been stayed. Maximum sentence for five of counts with which accused was charged was two years and five years for sixth count. Accused had been in custody for further six months since dismissal of habeas corpus application and had two further bail reviews. Serious liberty issue now existed and this issue was best addressed in context of bail review. Although accused had argued issue before it did not appear to have been fully considered. More time had passed and breach of bail charges had now been stayed, and these were new factors that may well affect considerations of judge when determining issues on bail review.
R. v. Codina (2017), 2017 CarswellOnt 1109, 2017 ONCA 93, K. Feldman J.A., Paul Rouleau J.A., and K. van Rensburg J.A. (Ont. C.A.).
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