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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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Charter of Rights

ENFORCEMENT OF RIGHTS

Police failed to ascertain whether second strip search was necessary

Accused charged with importing cocaine into Canada. Accused applied for stay of proceedings or exclusion of evidence based on breach of s. 8 Charter rights. Upon her arrival at airport from Jamaica, officers discovered that accused had approximately 1.2 kilos of cocaine hidden in her bra. Customs officers conducted strip search of accused and shortly thereafter transferred custody of her to police. Accused was transferred to detachment and placed in cell, where female officer conducted further strip search of her. Door of cell remained open to hallway and search was video recorded by security camera located in cell. Officers did not discuss circumstances of case and whether strip search was necessary. No supervisory authorization was sought for strip search. After strip search accused provided statement that was video and audio recorded. Accused testified that she felt uncomfortable in circumstances, but that search had no real impact on her or her recorded statement. Accused argued second strip search by police was unreasonable. Accused argued that even though there was no causal connection between search and statement, statement should have been excluded. Search was not challenged until after jury had watched and listened to accused’s recorded statement. Application allowed, evidence excluded, mistrial ordered. Other male officers did not view any part of search and there was no one else in detachment at time of search. Officers were unfamiliar with, or unaware of, any written policy or protocol regarding strip searches, but knew that they were routinely done in drug importation cases. Police failed to ascertain from customs officers whether strip search had been conducted and whether second search was necessary. Suspicion that drugs may be hidden somewhere else did not validate conducting strip search. There were no reasonable grounds for second search since accused was in custody from time of first strip search and would not have had opportunity to acquire or hide on her person any other contraband. Strip search was unreasonable and violated accused’s s. 8 Charter rights. Given facts of case, especially circumstances and timing of bringing of application, stay was not justified. While accused’s statement was taken shortly after search, it was not causally connected to search. Strip search and accused’s statement were integral part of same transaction, there existed temporal connection, and s. 24(2) Charter analysis was appropriate. Charter-infringing conduct was very serious, as strip search was very significant violation of right to privacy and accused’s right to be protected from unreasonable search. Given that accused had attempted to re-enter Canada with cocaine on her person, impact of breach was less significant. Breach did not impact on accused’s demeanour or attitude when her statement was recorded. If statement was excluded, Crown still had case. There was heightened interest in prosecution of this case. Seriousness of breach overwhelmed other two considerations that favoured admission of statement. Actions of officers in relation to second search, while not intentional, reflected troubling lack of knowledge of law and principles to be applied to strip searches. While public had interest in adjudication of case on its merits, educated public would have demanded better police practices. Breach was so significant that accused’s recorded statement ought to have been excluded. As statement had already been viewed by jury, only recourse was to declare mistrial.
R. v. Foster (Dec. 12, 2014, Ont. S.C.J., Thomas A. Bielby J., File No. Crim J(F) 296/13) 118 W.C.B. (2d) 489.

Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Crown not required to disprove hypothetic theories not grounded on evidence

Accused appealed conviction for impaired care or control and refusal to provide breath sample. Witness observed tractor trailer driving in erratic manner. Witness testified that truck pulled up to gas pump and that he saw accused, who was swaying and unstable on his feet, trying to put card into pump. When police arrived, witness pointed out accused as driver of truck and then left scene. Officers testified that accused had red-rimmed eyes, slurred speech, and was unsteady on his feet. Officer testified that accused admitted that truck was his and that he was driving it. Officer made demand for breath sample into his approved roadside screening device but accused did not provide suitable sample. Breath technician, who also noted signs of impairment, demanded breath sample into breathalyzer, which accused refused to provide. No keys to truck, vehicle registration, or insurance particulars were ever found on accused or elsewhere. Accused argued that trial judge erred in ruling that only reasonable inference was that he was operator of truck or that he had care and control of it. Accused argued that witness did not see him driving truck or exit its cab. Accused argued that trial judge erred in not considering whether he was gas station attendant or passenger in truck, as either scenario was reasonably plausible explanation and inference that could have been drawn. Accused argued that inference drawn by trial judge was matter of conjecture or speculation and was not reasonable inference on evidence in its totality. Appeal dismissed. Crown was not required to disprove hypothetic theories not grounded on evidence. While accused’s admission that he was driver of truck could not be used to determine identity beyond reasonable doubt, it could be used in regards to reasonable and probable grounds. Given evidence as to erratic driving of truck, fact that accused, who exhibited signs of impairment, was refuelling it, and accused’s admission that he was driver, police had reasonable and probable grounds to make breath demand. Crown did not need to prove beyond reasonable doubt that accused was driver in order to argue that reasonable and probable grounds for demand existed. Trial judge was correct in ruling that reasonable and probable grounds were overwhelming. Trial judge found that there was no other reasonable explanation as to why accused was refuelling truck other than that he had care and control of it. Gas area of truck stop was self-serve facility, finding inconsistent with suggestion that accused could have been gas attendant. Reasonable inference, other than that accused had care and control of truck, would have been matter of conjecture or speculation and would not have raised reasonable doubt. Trial judge did not err and had evidence before him from which he could have drawn facts necessary to support his decision.
R. v. Pozniak (Jan. 5, 2015, Ont. S.C.J., Thomas A. Bielby J., File No. SCA(P) 700/13) 118 W.C.B. (2d) 507.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

That officer targeting accused not only inference to be drawn from conduct

Accused appealed his conviction for driving “over 80.” At trial accused argued that he was arbitrarily detained in breach of s. 9 of Charter when he provided breath sample into approved screening device. Accused argued arresting officer erroneously believed that he had two previous drinking and driving convictions and had engaged in campaign of watching and stopping him for several months before arrest. Accused and two witnesses testified that this was third time same officer had stopped accused within six or seven hours and that he had frequently driven by locations where accused and his truck were located. While officer testified that he stopped accused because his rear licence plate light was out, accused argued officer’s motivation for stopping him was his mistaken belief about accused’s record and that trivial offence like not having tail light out was not sufficient grounds to make stop. Trial judge disagreed, noting that question was “so what?” if officer was harassing accused because he accepted officer’s evidence light was out and found that this provided him with grounds to stop accused. Officer testified that he did not realize accused’s vehicle was that of person he dealt with earlier until after he had pulled truck over. Officer said that he ran accused’s name on CPIC after he had arrested him for driving with consumed excess alcohol and that record he obtained showed 1990 and 1997 convictions for impaired driving. It was not until he was in midst of cross-examination that officer was told accused had no record. Appeal dismissed. Trial judge’s decision was not unreasonable. Officer swore he was unaware of criminal record, wrongly attributed to accused, until after his arrest on excess alcohol charge. Officer remembered stopping accused earlier on seatbelt infraction and had no memory of incident where he pulled over another vehicle, in which accused was passenger, but in which female bartender had been driving. There was no dispute that officer would drive through Legion parking lot, in his words, to show police presence that could make people think twice about driving after drinking. While it was possible officer was targeting accused, that was not only inference to be drawn from that conduct. If it were determined that officer had one improper purpose for stopping accused in addition to Highway Traffic Act (Ont.) violation, it would have rendered stop unlawful. Court agreed with accused that trial judge erred in that regard. However, insurmountable hurdle for accused was trial judge’s reasonable finding officer was not improperly targeting accused.
R. v. Sherrard (Nov. 10, 2014, Ont. S.C.J., Durno J., File No. Guelph CR-13-0250-AP) 118 W.C.B. (2d) 23.

Appeal

FRESH EVIDENCE

Judge might have come to different conclusion had doctor’s report been available

Accused appealed from finding that he was not criminally responsible (NCR) after he pleaded guilty to criminal harassment, assault causing bodily harm, utter death threat and failing to comply with recognizance. Accused relied on report of doctor, prepared shortly after proceedings concluded. In this report, doctor did not support claim of NCR with respect to number of offences. This report was not available to judge at hearing when he found accused NCR. Report was thorough and very helpful in shedding more light on accused’s circumstances. Appeal allowed; new trial ordered on NCR issue only. With her usual fairness, Crown conceded that doctor’s report should be admitted as fresh evidence and that new trial should be ordered, but limited solely to NCR issue. Court accepted this concession as reasonable. Had doctor’s report been available to judge at hearing, he may well have come to different conclusion.
R. v. Alexander (Nov. 27, 2014, Ont. S.C.J., Trotter J., File No. 54/14) 118 W.C.B. (2d) 58.

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.
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