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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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Appeal

FRESH EVIDENCE

Trial judge outlined concerns about implausibility of accused’s testimony

Accused appealed her conviction for importing cocaine. Charge of importing related to accused’s arrest when she returned to Canada from week in Panama. About two pounds of cocaine were discovered in her suitcase. Accused maintained that she had no knowledge that cocaine was in her possession. Accused travelled to Panama with man who paid her $2,000 to accompany and entertain him for week. That man also paid for her airfare and accommodations. According to accused, while in Panama, she and man she was with met up with woman named “Nancy” who spent time with them during their stay there. Prior to accused’s return to Canada, that woman asked accused to carry some clothes and souvenirs for her back to Canada and accused agreed. Accused testified that as she and man were packing their suitcases, he asked her to transport bottles of what appeared to be health care products and accused agreed. Upon arrival in Canada, accused was searched at customs. Cocaine was discovered in health care bottles and accused was arrested. Accused sought to admit fresh evidence, which consisted of photographs of woman said to be “Nancy” taken from camera found in accused’s possession at time of her arrest. Accused asserted that it is relevant because trial judge disbelieved her testimony about Nancy, including fact of Nancy’s existence, and this was significant reason why he rejected her evidence as whole. Application denied. Rather than disbelieving accused on basis that Nancy did not exist, trial judge considered accused’s entire account of her relationship with Nancy. Trial judge outlined his concerns about implausibility of accused’s testimony relating to Nancy: accused made no inquiry and had no knowledge of Nancy’s prior connection to man accused was with in Panama, she was unaware of Nancy’s surname, she gave no thought to effect of taking shoes and other items from Nancy on maximum weight allowance for her luggage, and vagaries of any plan to return items to Nancy. Court agreed with Crown that nature of fresh evidence, photographs of woman only accused could identify as Nancy, related to non-essential aspect of accused’s testimony at trial. Nancy was merely part of accused’s story that trial judge found did not make sense. Photograph of woman purporting to be Nancy would not have rectified implausibility of accused’s testimony. Trial counsel, in cross-examination on her affidavit, said that she made decision not to tender photographs into evidence at trial as it was her view that they were unnecessary and of no value. Trial counsel was correct.
R. v. Harris (Oct. 27, 2014, Ont. C.A., E.A. Cronk J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C55199) Decision at 98 W.C.B. (2d) 706 was affirmed. 117 W.C.B. (2d) 369.

Motor Vehicles

SPEEDING

Offence notice failed to describe manner in which notice was to be delivered

Accused applied for leave to appeal judgment dismissing his appeal from conviction for speeding. Accused was served with offence form on January 30. Accused applicant’s notice was received on February 18, but conviction was entered by justice of peace on that date. On Feb. 28, 2014, accused received letter dated Feb. 24, 2013, which stated that his request for trial date was received after 15 day period had lapsed and conviction had been registered. Central issue concerned calculation of period of time for him to file his notice of intention to appear in court, before he could be “deemed not to dispute” charge. Accused argued his conviction was premature based on application of R. 4 of Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings (“Regulation 200”). Provincial Offences Appeal judge rejected applicability of R. 4. Judge found that person issued speeding ticket is strictly responsible for effecting delivery of “exercise of option” within 15 days. Leave to appeal granted; conviction stayed pending appeal. It was arguable that period of “at least” 15 days under s. 9(1)(a) of Provincial Offences Act (Ont.) should have excluded January 30, day of service, and February 14, 15th day. February 15, 16 and 17 should have also been excluded from calculation of “at least 15 days” from date of service. Accordingly, last day for delivery of Offence Notice was arguably Tuesday, February 18, day of accused’s conviction. It appeared therefore, that accused’s appeal on this ground may have had some merit. Offence Notice received by accused, which appeared to have been standard form, did not specify manner of delivery, other than to identify address of court office. Arguably, Offence Notice did not comply with statute because it failed to describe manner in which notice was to be delivered, if it was sent by mail. Appeal raised issues concerning application of Regulation 200 and calculation of time limits there under, and compliance of prescribed form with Act. Based on its plain and unambiguous meaning, R. 5 merely allowed individuals to safely assume receipt date of notices delivered by mail. It did not affect notice deadline: accused’s argument on R. 5 rejected.
R. v. Hicks (Oct. 29, 2014, Ont. C.A., G.R. Strathy C.J.O., In Chambers, File No. CA M44141) Leave to appeal from 115 W.C.B. (2d) 611 was allowed.  117 W.C.B. (2d) 284.

Extraordinary Remedies

MANDAMUS

Justice had absolutely no business or jurisdiction to quash this certificate of offence

Regional Municipality applied for order of mandamus and certiorari against order of justice of peace quashing Certificate of Offence for failure to specify section of Highway Traffic Act (Ont.) (HTA) prohibiting offence of speeding. Certificate did allege offence of speeding 70 kms in 60 kms zone and that it was contrary to HTA. Justice of peace quashed Certificate of Offence because it failed to include section of HTA for speeding. No reasons for this disposition were recorded other than “no section number for offence.” Application allowed. Cursory internet or library search would have quickly cured this defect and accused was deemed not to dispute charge. Because justice of peace was dealing with this Certificate of Offence pursuant to s. 9(2) of Provincial Offences Act (Ont.) (POA) as result of this ademption, she was required to determine in her office without benefit of submissions from either side whether it was complete and regular on its face. Without benefit of any reasons, justice concluded that it was not. Despite this deficiency, it was evident that justice did so in face of not only compelling, but binding, authority to contrary. If justice was not aware of this authority, she should have been. Justice had absolutely no business or jurisdiction to quash this “perfectly good certificate of offence”. Case was yet another in long line of hyperactive and inappropriate interventions by justice of peace in this region and elsewhere in province that continually permitted form to trump over substance. These inappropriate interventions had not only created certain degree of chaos in Provincial Offences Court, they also displayed profound misunderstanding of role of stare decisis in our legal system. Once Superior Court has spoken on issue, lower courts are bound to follow those dictates whether they like them or not. This, of course, includes justices of peace of this province, especially so in context of their extraordinary ex parte deliberations exercised pursuant to s. 9(2) of POA where they enjoyed ungoverned and unobserved scope to quash proceedings.
York (Regional Municipality) v. Martinez (Oct. 29, 2014, Ont. S.C.J., McIsaac J., File No. Newmarket CV-14-117733-00) 117 W.C.B. (2d) 285.

Drug Offences

IMPORTING

Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility

Accused appealed his convictions for importing cocaine and possession of cocaine for purpose of trafficking. Canada Border Services discovered approximately 53 kilograms of cocaine concealed in load of electronic games contained in commercial trailer driven by accused, long-haul truck driver. Accused testified at trial and denied any knowledge of cocaine in his trailer. Accused contended that trial judge erred by failing to confine his use of officer’s opinion evidence to proper limits of that evidence. Opinion at issue addressed use of commercial vehicles for transportation of contraband, including drugs. Opinions described were mostly general in nature. However, officer also offered several case-specific opinions, some of which bore directly on accused’s credibility and his alleged knowledge of cocaine in his vehicle. Appeal allowed; new trial ordered. Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility and key question of accused’s knowledge of presence of cocaine in his vehicle. In circumstances where no formal admission of facts in report had been made, it was not open to trial judge to rely on report for truth of its contents. Officer’s opinion on accused’s alleged association with organized criminal elements, his knowledge of cocaine in his trailer, and his credibility, strayed beyond proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to accused. These opinions concerned core, indeed pivotal, questions before trial judge. Officer’s personal opinions on these issues were not necessary. Suggestion that trial judge did not rely on inadmissible evidence was rejected. Reasons were replete with references, direct and indirect, to accused’s case-specific opinions, including, especially, those pertaining to likelihood that accused knew of presence of cocaine in his vehicle and his credibility. In embarking on his assessment of accused’s credibility, trial judge expressly indicated that he regarded report as benchmark against which accused’s testimony was to be tested. Trial judge’s reliance on impugned evidence permeated his reasons making curative proviso inapplicable. There was dissenting opinion that would have dismissed accused’s conviction appeal but allowed his sentence appeal.
R. v. Singh (Nov. 10, 2014, Ont. C.A., John Laskin J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C56314) 117 W.C.B. (2d) 149.

Charter of Rights

SEARCH AND SEIZURE

Sufficient facts justified issuance of search warrants and production orders

Application by two accused to exclude evidence against them. Accused were charged with first degree murder of victim. Crown claimed that victim was first accused’s landlord and that first accused planned murder and he recruited second accused to carry it out in return for financial reward. Police arrested second accused within minutes of discovery of victim’s body. First accused was found at scene of murder and he was treated as material witness. He was later arrested at police station during interview with police. Just prior to his arrest he was being interviewed as witness. Police obtained search warrants for hotel room that second accused was staying at and for first accused’s home. At first accused’s home they found knife set that was missing knife, and missing knife was found in creek near first accused’s home. Missing knife contained victim’s blood and second accused’s DNA. Police seized several computers and other media devices. Other warrants and production orders were subsequently obtained as part of murder investigation. Police also seized victim’s eyeglasses which were found on garage floor of first accused’s home. Application dismissed. Sufficient facts were provided that justified issuance of search warrants and production orders. Use of telewarrant process did not violate accused individuals’ rights under s. 8 of Canadian Charter of Rights and Freedoms. Belief of officer, who resorted to this process because he did not think that justice of peace was available when documentation to apply for warrant was completed, was reasonable. Justice who signed telewarrant would have refused application if justice of peace was personally available to do so. There was sufficient basis provided in Information to Obtain (“ITO”) warrant to search first accused’s home. First accused failed to establish that ITO contained inaccurate information or material fact that was not disclosed. Affiant did not mislead issuing justice. First accused claimed that warrant for first accused’s home only allowed seizure and search of computers in home. This was irrelevant for police obtained multiple additional warrants to authorize search of computers. Police had basis to search first accused’s computers. First accused’s telephone subscriber information and fact that first accused held bank accounts at various institutions were properly provided to police. ITOs submitted in support of nine production orders that police obtained contained reasonable grounds to believe that documents or data that would be obtained would afford evidence respecting commission of offence. Warrant to search storage locker that was in name of first accused’s girlfriend was validly issued. Accused failed to show that warrants and production orders were invalid but even if they were, evidence obtained through them was admissible.
R. v. Nurse (Oct. 15, 2014, Ont. S.C.J., Coroza J., File No. CRIMJ(P) 339/13) 117 W.C.B. (2d) 133.

Contempt of Court

APPEAL

Fine excessive and amounted to double punishment

Accused appeal finding of contempt by court in contentious protracted estate dispute. Accused was ordered to pay out moneys but instead filed motion for passing of accounts in different venue. Judge found actions of accused amounted to contempt, prohibited from taking any further actions involving parties, ordered him to pay $10,000 fine and sentenced him to three days in jail. Appeal allowed in part with fine vacated and prohibition modified. Judge provided valid reasons for holding accused in contempt given his past actions in holding up estate. Fine was excessive and amounted to double punishment given accused was also sentenced to imprisonment. Prohibition order went too far as it barred accused from all future actions and not just those involving estate matters.
Susin v. Susin (Oct. 29, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., K. Feldman J.A., and R.A. Blair J.A., File No. CA C58399) 116 W.C.B. (2d) 597.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Questions posed and answers received played no causal role in arrest

Two accused, jointly charged with possession of cocaine for purpose of trafficking, applied for exclusion of evidence. One accused was also charged with possession of proceeds of crime. Accused were travelling in rented KIA motor vehicle and were stopped for speeding. During stop, two officers detected smell of marijuana. Questions about smell were asked by police and answers were provided by accused. One officer noticed plastic bag protruding from the pants pocket of passenger and asked about it. That accused was asked to step out of vehicle and retrieved from that pocket was small amount of marijuana after which accused was arrested for simple possession of marijuana. Driver remained in KIA and was investigated for speeding pursuant to Highway Traffic Act (Ont.) (HTA). That accused was asked to step out of KIA so that it could be searched incidental to arrest of passenger. Found beneath passenger seat of KIA was shopping bag containing significant amount of crack cocaine. Thereafter, both accused were charged with possession of cocaine for purpose of trafficking. Application dismissed. Police proceeded to stop KIA for proper regulatory purposes. Fact that they also had criminal investigative interests which, standing alone would not have justified stop, did not give rise to arbitrary detention. Police smelled marijuana, investigated and made observations and they arrested passenger. Arrest occurred within very short period of time on grounds that were developed independent of anything either of accused said in their exchange with police. Questions posed and answers received played no causal role in arrest. Grounds existed independent of this breach due to smell of marijuana and observations of baggie. Court satisfied that both officers had enough experience to identify smell of fresh marijuana in KIA that night; their actions on videotape supported such finding. Question asked (“what’s that”) by officer was more of rhetorical one based on his smell of marijuana, his questions about marijuana and his use of flashlight to direct attention of those present to baggie. Officer persisted in asking “what is that?” two more times because he remained of view that it was marijuana in that pocket. Court accepted that it was intention of police to conduct investigation for speeding pursuant to HTA. That changed when they smelled marijuana and observed baggie.
R. v. Cousins (Oct. 7, 2014, Ont. S.C.J., Kelly J., File No. CR/14/900000/550000) 116 W.C.B. (2d) 585.
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