Law Times

Law Times • July 27, 2015 Page 15 www.lawtimesnews.com CASELAW LIABILITY IN TORT Plaintiff had right to expect police to arrest individual before he com- mitted another drive-by shooting Plaintiff was shot in drive-by shooting in area of Scarbor- ough by violent criminal R. R was known to police as danger- ous member of criminal gang that was in gang war with rival criminal gang. Defendants C and B were police officers that were leading investigation into R in connection with previous drive-by shootings in area. Po- lice knew that if R entered area he would likely be armed and would pose real threat. Two court orders prohibited R from entering Scarborough and se- nior officers had ordered R to be arrested if he entered Scar- borough. Police were watching R that day but did not arrest him because they were not told about senior officers' arrest or- der. B did not agree with order and declined to pass it on. R shot plaintiff. Plaintiff and mother sued police for compensation for injuries they suffered due to negligence of police. Plaintiffs had previously brought action but judge struck out statement of claim on basis that it was plain and obvious that action would fail, as plaintiff was not readily known to police as target of foreseeable harm and there was no special relationship of proximity. Plaintiffs amended statement of claim to remedy defects and now pleaded that defendants knew that R drove into area intending to kill young black male who might be mem- ber of rival criminal gang and that police knew plaintiff be- cause they believed he was gang member or shared character- istics with gang members. De- fendants applied to strike out negligence claims. Application dismissed. It was now pleaded that police knew plaintiff to be person who shared character- istics with next likely victim of R and that addressed judge's concern that plaintiff had not pleaded he was known to police or that there was greater con- cern that he would be potential victim. There was no indetermi- nate liability to indeterminate number of people in this case. There was limited number of people in describable class who were geographically confined and were likely to find them- selves in R's sights. There was no government policy balancing or quasi-judicial decision making. Plaintiff had vital physical safety interest in actions of police and had right to expect police to ar- rest R before he committed an- other drive-by shooting. Police knew drive-by shooting was imminent and was likely to oc- cur in defined area. There were good reasons to find duty of care on facts alleged. Harm pleaded was reasonably foreseeable and parties were sufficiently close such that police ought to have been considering plaintiffs as being within recognizable class of people who should be entitled to claim compensation. If facts claimed by plaintiffs were true then it was just and fair to hold defendants liable to account for wrongful conduct by ordering them to pay money to plaintiffs to compensate them for their losses that defendants caused or contributed to by their negli- gence. There was no overriding public law reason to limit liabil- ity. It was not plain and obvious that claim as pleaded could not succeed. Patrong v. Banks (May. 14, 2015, Ont. S.C.J., F.L. Myers J., File No. CV-11-439127) 253 A.C.W.S. (3d) 957. ONTARIO CRMINAL CASES Charter of Rights SEARCH AND SEIZURE Request for consent to search not to be deemed commencement of search Trial judge convicting accused of offences relating to seizure of marijuana from his vehicle. Of- ficer asked accused to consent to search after learning he had connection to drug traffick- ing. Accused produced bag of marijuana after officer's initial inquiry and further marijuana uncovered on search incident to arrest. Trial judge held initial request for accused to consent not "search" or s. 8 of Charter as accused voluntarily and unilat- erally produced marijuana. Ac- cused's appeal from conviction dismissed. Trial judge correctly held there was no "search" for purpose of s. 8 of Charter. Any request by officer for consent to search not to be deemed com- mencement of search. No search for s. 8 purpose took place as no evidence accused felt compelled to consent or that search was in- evitable whether consent given. R. v. Sebben (Apr. 21, 2015, Ont. C.A., G.R. Strathy C.J.O., Doherty J.A., and E.E. Gillese J.A., File No. CA C59397) 121 W.C.B. (2d) 545. Disclosure GENERAL Accused not permitted to use inadvertently-disclosed videotape of complainant's therapy session in support of application for production Ruling to address consequences arising from inadvertent dis- closure of videotaped therapy session involving eight-year-old sexual assault complainant. Ac- cused charged with four counts each of sexual assault, sexual interference, and sexual exploi- tation. Soon after abuse was disclosed, complainant began seeing therapist. Therapist for- warded confidential records to Crown, including DVD record- ing of therapy session, which was mistakenly disclosed to defence. Accused sought to rely on DVD to gain access to rest of complainant's therapeutic file, pursuant to ss. 278.1 to 278.9 of Criminal Code. Crown argued that defence counsel was in "wrongful possession" of DVD as result of Crown's negligence. Crown argued that, notwith- standing that DVD had already been disclosed, it was still "re- cord" within meaning of s. 278.1 of Code and thus subject to pro- cedure set out in ss. 278.2 to 278.9 of Code. Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility. Accused argued that he was en- titled to use inadvertently-dis- closed DVD in support of third- party records application, and to question complainant at trial. Alternatively, accused argued that complainant's counselling records ought to have been dis- closed to him because remain- ing materials available on appli- cation established that they were likely relevant. Accused was not permitted to use DVD in sup- port of his application to obtain complainant's therapeutic file. Conduct of defence counsel was blameless, but this did not miti- gate serious and illegal violation of complainant's privacy rights. Before any use could be made of DVD, whether at trial or as basis for obtaining further private re- cords, DVD had to be returned and future production deter- mined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of complainant. Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser. Accused was simply being denied that to which he was not entitled in first place, and there was no unfairness in this result. Once improperly- disclosed interview was re- moved from equation, accused was left to rely upon differences in complainant's account from police interviews and her evi- dence at preliminary inquiry. Although allegations of com- plainant had broadened some- what since starting therapy, that was not sufficient basis to order production of therapeu- tic records. It was mere specu- lation that materials would have been found in complain- ant's therapeutic records that would have shed light on why her allegations had become ar- guably broader since attending therapy sessions. Incremental disclosure was quite common in case like this. Complainant's expectation of privacy was ex- tremely high. R. v. Gray (May. 26, 2015, Ont. S.C.J., Trotter J., File No. null) 121 W.C.B. (2d) 553. Sentence CONDITIONAL SENTENCE Convicted person did not have right to employment or education during term of conditional sentence Accused appealed conditional sentence of 23 months and three years' probation for two counts of sexual assault. Ac- cused worked as practitioner of alternative Chinese medicine, and committed sexual assaults against two of his female pa- tients. Accused had no criminal record. Accused argued that trial judge failed to consider evidence relevant to sentence in not permitting exception for work or education purposes. Appeal dismissed. Trial judge gave thoughtful reasons for sentence and traditional jail term of same length would not have been error in principle or demonstrably unfit. Principles of deterrence and denunciation were properly viewed as para- mount, but court also consid- ered rehabilitation. Convicted person did not have right to em- ployment or education during term of conditional sentence. Where exceptions to house ar- rest were permitted, court clear- ly had authority to limit hours of work or type of work. Trial judge's decision not to permit exception for work or education was entitled to significant ap- pellate deference. There was no error in principle and trial judge did not fail to consider evidence relevant to sentence. R. v. Zhou (Jun. 4, 2015, Ont. S.C.J., B.P. O'Marra J., File No. 14-10000105-00AP) 121 W.C.B. (2d) 594. ONTARIO CRMINAL CASES Charter of Rights SEARCH AND SEIZURE Request for consent to search not to be deemed com- mencement of search Trial judge convicting accused of offences relating to seizure of marijuana from his vehicle. Of- ficer asked accused to consent to search after learning he had connection to drug traffick- ing. Accused produced bag of marijuana after officer's initial inquiry and further marijuana uncovered on search incident to arrest. Trial judge held initial request for accused to consent not "search" or s. 8 of Charter as accused voluntarily and unilat- erally produced marijuana. Ac- cused's appeal from conviction dismissed. Trial judge correctly held there was no "search" for purpose of s. 8 of Charter. Any request by officer for consent to search not to be deemed com- mencement of search. No search for s. 8 purpose took place as no evidence accused felt compelled to consent or that search was in- evitable whether consent given. R. v. Sebben (Apr. 21, 2015, Ont. C.A., G.R. Strathy C.J.O., Doherty J.A., and E.E. Gillese J.A., File No. CA C59397) 121 W.C.B. (2d) 545. Disclosure GENERAL Accused not permitted to use inadvertently-disclosed videotape of complainant's therapy session in support of application for production Ruling to address consequenc- es arising from inadvertent dis- closure of videotaped therapy session involving eight-year- old sexual assault complain- ant. Accused charged with four counts each of sexual assault, sexual interference, and sexual exploitation. Soon after abuse was disclosed, complainant be- gan seeing therapist. Therapist forwarded confidential records to Crown, including DVD re- cording of therapy session, which was mistakenly disclosed to defence. Accused sought to rely on DVD to gain access to rest of complainant's therapeu- tic file, pursuant to ss. 278.1 to 278.9 of Criminal Code. Crown argued that defence counsel was in "wrongful possession" of DVD as result of Crown's negligence. Crown argued that, notwithstanding that DVD had already been disclosed, it was still "record" within meaning of s. 278.1 of Code and thus sub- ject to procedure set out in ss. 278.2 to 278.9 of Code. Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility. Accused argued that he was entitled to use in- advertently-disclosed DVD in support of third-party records application, and to question complainant at trial. Alterna- tively, accused argued that com- plainant's counselling records ought to have been disclosed to him because remaining ma- terials available on application established that they were likely relevant. Accused was not per- mitted to use DVD in support of his application to obtain complainant's therapeutic file. Conduct of defence counsel was blameless, but this did not mitigate serious and illegal vio- lation of complainant's privacy rights. Before any use could be made of DVD, whether at trial or as basis for obtaining fur- ther private records, DVD had to be returned and future pro- duction determined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of com- plainant. Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser. Accused was simply being de- nied that to which he was not entitled in first place, and there was no unfairness in this result. Once improperly-disclosed interview was removed from equation, accused was left to rely upon differences in com- plainant's account from police interviews and her evidence at preliminary inquiry. Although allegations of complainant had broadened somewhat since starting therapy, that was not sufficient basis to order produc- tion of therapeutic records. It was mere speculation that ma- terials would have been found in complainant's therapeutic records that would have shed light on why her allegations had become arguably broader since attending therapy sessions. In- cremental disclosure was quite common in case like this. Com- plainant's expectation of priva- cy was extremely high. R. v. Gray (May. 26, 2015, Ont. S.C.J., Trotter J., File No. null) 121 W.C.B. (2d) 553. LT

• Cover