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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

SEARCH AND SEIZURE

Reasonable justification for late-night, dynamic entry

Police received information from confidential informant that accused was in illegal possession of firearm. Informant’s motivation was monetary compensation but was told that information had to be proven to be reliable and accurate and result in arrest. Informant had criminal history but had provided reliable information to police on two previous occasions. Officer swore Information to Obtain and obtained warrant to search accused’s residence and business. Police executed warrant at residence in early morning and discovered loaded handgun behind dresser in bedroom. Accused charged with four offences. Accused applied to exclude firearm from evidence on basis of breaches of s. 8 of Canadian Charter of Rights and Freedoms. Application dismissed. Issuance of search warrant was not result of any violation of s. 8. Detailed narrative provided by informant was compelling and credible and aspects of information were corroborated. Based on record before issuing justice, as amplified and excised on review, there was sufficient information that could have permitted justice to conclude that there were reasonable grounds to justify issuing warrant. Telewarrant procedure appropriately employed by police. There was reasonable justification for late-night, dynamic entry. Police did not use excessive force in execution of warrant.
R. v. Boussoulas (Sep. 25, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 0206/12) 116 W.C.B. (2d) 474.

Breathalyzer

ADMISSIBILITY OF CERTIFICATE

Judge erred in ruling alcohol standard solution raised doubt

Crown appealed acquittal of accused for over 80 after judge had doubt about certificate based on alcohol solution evidence. There were no Charter motions or objections as to admissibility of certificate nor evidence that Intoxilyzer 8000c had malfunctioned or was operated improperly. Application allowed, guilty verdict entered. Presumptions of s. 258(1)(c) of Criminal Code were applicable due to lack of any objection or evidence of malfunction therefore judge erred in ruling alcohol standard solution raised doubt. Case involved one issue only which made proper verdict guilty.
R. v. Widdis (Jul. 30, 2014, Ont. S.C.J., D. Salmers J., File No. Oshawa 13448/13) 116 W.C.B. (2d) 457.

Drug Offences

POSSESSION FOR PURPOSE OF TRAFFICKING

Defied logic that accused would have left contraband in fridge

Accused charged with possession of cocaine for purpose of trafficking. Accused signed tenancy agreement for apartment unit as sole occupant. For two weeks following signing of agreement, repairs were made to unit. Number of workers had access to unit, and landlord was not present during entirety of time that workers were inside unit. When landlord entered apartment with worker who was going to repair fridge, he found empty BlackBerry box located on shelf in freezer and 75 dime bags of cocaine inside. Accused testified that she did rent apartment and that she had moved certain personal items into it on day of discovery. Accused denied that she had any knowledge or control over cocaine located in freezer. Accused acquitted. Accused’s evidence was not rejected and left court with reasonable doubt. Accused did not hesitate in response to questions and was logical in her explanation of sequence of events. There were no inconsistencies in accused’s evidence and no meaningful contradictions with other evidence. Whether or not accused stayed overnight in unit was of no moment, as she had plenty of opportunity to store cocaine in freezer if she was inclined to do so. There was no evidence that groceries had been purchased and placed in freezer portion of fridge to demonstrate that accused had accessed it. It was not unusual that accused testified that she did not open freezer to determine if it was working, as she was in process of moving in to unit. Accused’s denial that she had either knowledge or control over contents of BlackBerry box was consistent with her conduct. It defied logic that accused would have left contraband, all on its own, in fridge knowing that it would have been observed by appliance repair person who was attending to seal it. Accused did not hesitate in turning over her key to landlord, and there was no attempt to return to unit to remove contraband from freezer, as one might have expected if accused knew it was there. Found during search were four BlackBerry boxes and two BlackBerry phones, but no other evidence that would have led to inference that accused was involved in drug trafficking was found. There were number of people who had access to unit from date that accused agreed to rent unit to date of discovery of cocaine. While it was true that accused was often in unit where cocaine was found, there was no evidence that she knew that she had it in her physical possession.
R. v. Mitchell (Oct. 1, 2014, Ont. S.C.J., Kelly J., File No. CR/13/90000/6410000) 116 W.C.B. (2d) 378.

Charter of Rights

ARIBTRARY DETENTION OR IMPRISONMENT

Officers knowingly arrested accused based solely on suspicious circumstances

Accused charged with possession of narcotics for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. First officer testified that they saw two men walking in suspicious manner. First officer testified that they approached vehicle and he saw male kneeling down beside open car door with cash in his hand, and accused standing beside him. First officer testified that as soon as cruiser stopped, second officer instantly jumped out and yelled out to men that they were under arrest. First officer testified that after pat-down search, he found series of narcotics in accused’s bag. Second officer testified that they were driving by vehicle when they saw three men by driver’s door in close proximity. Second officer testified that he became suspicious that drug deal was underway, so they turned cruiser around and drove up behind vehicle. Second officer testified that he immediately got out of his car and placed all three men under arrest. Second officer testified that in one to two seconds after they pulled up beside vehicle, before he placed men under arrest, he saw man sitting in car with $50 dollar bill, pill bottle, and baggie with drugs in his hands, another man kneeling down beside car in front of black scale, holding $50 dollar bill in his hand, and accused standing nearby, holding backpack. Accused testified that his friend was supposed to be driving him home, but told him that he had to stop off on way to drop off tools for his friend. Accused testified that as they approached vehicle, his friend handed bag to him, then bent down to tie his shoe, and suddenly two police officers were upon them and they were arrested. Accused testified that there was no scale present, that no money changed hands, and that bag containing drugs that he was left holding belonged to his friend, even though his two cell phones were found inside. Application allowed, evidence excluded. Accused’s evidence was not credible. Accused was at scene to participate in drug transaction, which substantially undermined his credibility. Officers’ observations were highly unreliable. Officers gave highly inconsistent accounts about where and how they were alerted to event. Money officers claimed to have seen had disappeared. Even if scale was on ground outside vehicle, it was very unlikely that officer had been able to observe it in two seconds that elapsed between when cruiser pulled up beside vehicle and when arrest was effected. Given that three men were huddled within few feet of each other, it was implausible that in very brief timeframe officer had managed to view man several feet away holding pill bottle and bag with drugs. Evidence gaps were significant and troubling and went well beyond normal discrepancies one expected to find. Officers operated essentially on hunch. Instead of setting up post nearby and watching for grounds, officer charged in prematurely. Police did not have, on any objective basis, reasonable and probable grounds to arrest accused. Accused’s arrest was unlawful and search incidental to arrest violated s. 8 of Charter. Officers knowingly arrested accused based solely on suspicious circumstances, and their handling of evidence was remarkably sloppy. Breach was serious. Impact of breach on accused’s Charter-protected rights supported exclusion of evidence. Given that accused was grabbed, pushed against vehicle, searched, and handcuffed in highly public area, this was significant intrusion on his Charter rights. Drugs that were seized were reliable and objective evidence, which favoured their admission. Given serious nature of breach and its impact on accused’s protected Charter rights, admission of evidence would have brought administration of justice into disrepute.
R. v. Palmer (Oct. 7, 2014, Ont. S.C.J., Baltman J., File No. CRIMJ(F)2329/12) 116 W.C.B. (2d) 349.

Appeal

SENTENCE APPEAL

Open to trial judge to conclude purpose of sentencing could only be served by life sentence

Accused appealed his sentence of life imprisonment imposed upon his conviction for criminal negligence causing death. Accused was 43-year-old man with extensive criminal record spanning 24 years. Accused commenced crime spree by stealing vehicle while subject to lifetime driving prohibition. Accused became involved in high speed police pursuit late at night during which he drove down wrong side of road and collided with another vehicle. Driver of that vehicle died and five other occupants were injured resulting in, amongst other charges, criminal negligence causing death and five counts of criminal negligence causing bodily harm. Appeal dismissed. Clearly sentence went beyond range of sentences established by appellate courts for this kind of offence. Trial judge was aware of range and only departed from it after giving careful consideration to extraordinary nature of this case, both as it related to serious and tragic circumstances and consequences of offence and appalling facts as they relate to accused’s criminal and dangerous conduct throughout his adult life. Parity principle was only one of several principles which must be taken into account in fixing appropriate sentence which best served fundamental purpose of sentencing. It was open to trial judge to conclude that in egregious circumstances of this case that fundamental purpose could be served only by imposition of life sentence. It must be left to Parole Board to determine if, when, and on what terms accused should be allowed to return to community.
R. v. Smith (Sep. 26, 2014, Ont. C.A., Doherty J.A., Pepall J.A., and Tulloch J.A., File No. CA C56234) Decision at 102 W.C.B. (2d) 516 was affirmed.  116 W.C.B. (2d) 223.

Appeal

CROWN APPEAL

Under common law exemplifications admissible without formal notice to accused

Appeal by Crown from acquittal of accused on one charge of wilfully obstructing peace officer in execution of his duty and on two charges of failing to comply with recognizance. Police stopped vehicle in early morning hours of Feb. 25, 2013. Vehicle contained five males and when accused was asked for his identification because of his seatbelt infraction he orally provided police with false name. Crown claimed that accused lied to police because he was bound by two recognizances that required him to be within confines of his residence at that time of night. Police soon discovered his true identity and existence of recognizances. Crown provided package of documents to establish accused’s guilt on failure to comply charges. These documents were certified by local registrar of Superior Court of Justice and they displayed court’s red seal and they were known as exemplifications. Accused was acquitted of two failures to comply charges after judge ruled that documentary evidence tendered by Crown was inadmissible because Crown was alleged to have not met statutory requirement for notice pursuant to s. 28 of Canada Evidence Act. Accused successfully applied for directed verdict of acquittal for obstruction charge because trial judge concluded that there was no evidence that name that accused provided to police was false name. Appeal allowed. New trial was ordered before different trial judge. Under common law exemplifications were admissible without formal notice to accused and judge erred in law by requiring notice. This conclusion required new trial to be ordered for both failures to comply charges. Regarding obstruction charge judge erred when he concluded that there was no evidence that name that accused provided police was false. There was evidence upon which reasonable jury, properly instructed, could return guilty verdict for this charge and new trial was also required for this offence.
R. v. Bailey (Sep. 23, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 106/13) 116 W.C.B. (2d) 218.

Evidence

HEARSAY

Prejudice from inability to cross-examine could be reduced through specific jury instruction

Accused charged with assault causing bodily harm. Crown applied to admit portion of statement prepared by witness within days of incident in question under past recollection recorded exception to hearsay rule. Witness was in charge of security at bar and observed some interactions that occurred between accused and complainants. Witness testified that accused was punching or stomping one or both individuals, but that he could not remember angles or exactly who was doing what. Witness testified that he did not have current memory of details of accused’s participation in actual beating and, in this regard, had been relying on what he had stated in statement he provided to his employers and to police shortly after assault occurred. Witness testified that when he typed statement, he was not under influence of alcohol and he wrote statement to best of his knowledge and tried to be honest at time. Witness testified that he wrote statement when events of evening were freshest in his memory and that, at time he wrote statement, he was certain about what he wrote. Application allowed. Witness’s memory loss was genuine, as it had been three years since assault occurred. Witness had continued to work as head of security at bar since incident and had witnessed many confrontations and fights. Witness vouched for reliability of his written statement. Witness’s evidence was highly probative, as it was evidence from independent and uninvolved observer as to what happened during attack in alley. Prejudice that arose from inability of defence counsel to fully cross-examine witness on his observations at time of attack, due to absence of current memory, could be reduced through specific jury instruction to effect that past recollection recorded was lower form of evidence to which jury should give extra cautious scrutiny. Defence counsel had ability to cross-examine witness on his vantage point when observations were made and extent to which his view was blocked due to presence of many men in small space.
R. v. Louangrath (Mar. 5, 2014, Ont. S.C.J., Aitken J., File No. 11-10657) 116 W.C.B. (2d) 164.
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