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Law TiMes • March 19, 2012 pamphlets were wholly inade- quate way of warning customers of risk that might have affected their entire livelihoods. Hydro company should have had direct contact with potentially vulner- able customers to advise them of increased risk. Failure to do so constituted breach of required standard of care. Nonetheless, evidence was not sufficient to establish connection between tingle voltage and poor milk pro- duction in this case. Cowan v. Hydro One Networks Inc. (Oct. 31, 2011, Ont. S.C.J., Gordon J., File No. 3686/01) 209 A.C.W.S. (3d) 955 (85 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Judge applied erroneous standard to as soon as practicable requirement Appeal by Crown from acquit- tal of accused on one count of impaired care and control of motor vehicle and for one count of impaired care and control when accused's blood alcohol level was above legal limit. Trial judge concluded that accused, who was asleep, was in care and control as he was found in driv- er's seat with his seat belt on and keys were in ignition. Accused was acquitted of impaired count because evidence was incon- sistent as to whether accused was impaired by alcohol. Judge also watched video of accused in police station and he saw no signs of impairment. He there- fore had reasonable doubt in relation to this count. Regarding over 80 count two readings were both 160 and judge found that tests were properly administered using reliable piece of equip- ment. Only issue was whether samples were taken as soon as was practicable. It was on this issue that judge had reasonable doubt and it was sole basis for acquittal. Appeal allowed in part. Acquittal for impaired care and control was upheld. Judge thoroughly reviewed evidence, which was inconsistent on issue of alcohol impairment. He was entitled to have reasonable doubt and there was no proper basis for appeal regarding this count. Acquittal for over 80 count was set aside. Accused was convicted and matter was remitted to trial judge for sentencing. Judge erred in law for he applied erroneous standard to as soon as practi- cable requirement and he failed to apply correct standard. If he applied correct legal test to facts he would have convicted accused as all other elements of this offence had been proven. R. v. Furlong (Nov. 15, 2011, Ont. S.C.J., Cod e J., File No. 11-30000034-00AP) 98 W.C.B. (2d) 404 (7 pp.). Assault AGGRAVATED ASSAULT Accused contradicted himself throughout three accounts he gave of altercation Accused was charged with aggra- vated assault, unlawful confine- ment and utter threats to kill against one complainant and two counts of uttering threats to kill against two 15 and 29-year- old daughters of complainant. Crown argued that accused gave three different versions of events as his video statement failed to mention complainant's injuries to head and that she had fall- en upon leaving his apartment. Accused also wrote 20 page let- ter to Crown alleging that com- plainant fell down stairs and at trial accused assumed com- plainant had fallen as he saw her pull herself up while climb- ing stairs. Complainant testi- fied that accused beat choked her after telling him she wanted to go home and refused to let her leave. Complainant admit- ted to drinking that three or four beers that night and was alco- holic. Complainant managed to flee accused's apartment and arrived home naked being afraid of accused. Audio statement was played in which complainant told police that she fell down stairs. Police testimony confirmed com- plainant's injuries and dismissed that accused could suffer her injuries falling on doorknob as she also initially claimed. Police expert in domestic assault cases confirmed that complainant was acting and suffered injuries from domestic assault. Complainant testified that accused threatened to kill her and her daughters if she called police. Daughters gave straightforward testimony con- firming complainant's condition but did not hesitate to contradict TRAFFICKING Officer's identification of accused by photograph tainted Accused was charged with drug trafficking after he allegedly sold $40 worth of crack cocaine to undercover police officer. Accused challenged identifica- tion evidence as arresting officer only recognized accused after seeing briefing package and offi- cer's central notes did not record identification at relevant time. Officer's notes only contained height, weight and clothing of suspect which was also in brief- ing package. Accused was identi- fied by photograph after trans- action seen by officer only 10 minutes earlier. Accused found not guilty. Court not satisfied with identification evidence as officer's identification of accused by photograph was tainted by fact that he knew that all pho- tographs in briefing book were of people police suspected were drug dealers. Court also placed no weight on dock identifica- tion of accused as he was only person seated in prisoner's dock in courtroom when officers were asked to point him out. R. v. King (Nov. 24, 2011, Ont. S.C.J., Corrick J., File No. CR-10- 90000614-0000) 98 W.C.B. (2d) 430 (6 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Judge usurped role of jury by committing accused for second degree murder Get more online lawtimesnews.com canadianlawyermag.com Fresh Canadian legal news and analysis every day Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds www.lawtimesnews.com Visit Us Online 1-4-5X.indd 1 2/28/11 2:37:10 PM CASELAW her in some instances. Accused guilty on all counts. Court was impressed with testimony of daughters as it did not appear to be rehearsed. Court did not believe accused's testimony as he contradicted himself throughout three accounts he gave of alter- cation. Accused was very pre- cise when recounting times of events and testimony appeared to be rehearsed. Complainant's demeanor was consistent with woman who was upset and was credible. Court gave consider- able weight to police expert in domestic assault cases that con- firmed testimony of complain- ant. R. v. MacKenzie (Nov. 18, 2011, Ont. S.C.J., Lalonde J., File No. 10DV-6987) 98 W.C.B. (2d) 407 (35 pp.). Drug Offences Application by Crown for certio- rari to set aside committal for trial of accused on charge of second degree murder and to commit accused for trial on charge of first degree murder. Victim was office manager of residence for persons with mental health issues. She was stabbed several times and she died from her injuries. Accused resid- ed in home and was alleged to have committed murder. Crown claimed that preliminary inquiry judge committed jurisdictional error by failing to commit accused for first degree murder because he found there was no evidence that murder was planned and deliberate. Application allowed. Accused was committed to trial for first degree murder. Judge failed to consider certain fac- tors that indicated that totality of evidence gave rise to possible inference of planning and delib- eration. It was not necessary that inference of planning and delib- eration was only inference from evidence. It was enough that it was available inference along with other available inferences which indicated that accused acted impulsively. It was up to jury to decide whether or not to draw inference suggested by Crown. This option had to be left to jury. By committing accused for second degree murder judge usurped role of jury and made jurisdictional error. R. v. Adam (Dec. 16, 2011, Ont. S.C.J., Molloy J., File No. M37/11) 98 W.C.B. (2d) 448 (13 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Accused experienced stress and anxiety as well as financial prejudice Accused was charged with dan- gerous and impaired driving and driving over 80 and sought stay of proceeding after enduring delay of over 19 months. Accused had alleged he was assaulted by police and Crown delayed disclos- ing relevant videos by over six months causing need for second trial date. Accused claimed to have suffered real prejudice as he stated he went drinking when he learned his spouse had little time to live and long delay caused him to relive her death again. Stay granted. Court noted that total of Crown and institutional delay was 12 months with total delay attributed to defence being three MANSLAUGHTER Accused remained danger to public since did not acknowledge problem with anger and violence Sentencing of accused after he pleaded guilty to manslaughter. Accused and victim were cousins and they were both Aboriginals. They had argument and victim produced knife and confronted accused with it. Accused took knife and stabbed victim in his left arm. Victim bled to death from small knife wound. Accused was 20-years old. He was addicted to drugs and alcohol. Accused's criminal record included youth conviction for assault causing bodily harm, victim being his father, and adult charges of mis- chief and breach of recognizance. Accused was in pretrial custody for nine months. There was joint submission of between six and ten years, less nine months cred- it for time served. Fit sentence was seven years. Accused had to serve six years and three months because he was credited with nine months for time served. He had to provide DNA sample and he was subject to lifetime weap- ons prohibition. Specific deter- rence took on enhanced role in sentencing process because, since accused did not acknowl- edge his problem with anger and violence, he remained danger to public and he could reoffend. Taking of human life required deterrent and denunciatory sen- tence. However, accused's youth and his guilty plea supported prison sentence at lower end of range proposed. R. v. Kanate (Dec. 5, 2011, Ont. C.J., DiGuiseppe 112592) 98 W.C.B. (2d) 470 (10 pp.). J., File No. LT PAGE 15 months. Accused suffered actual prejudice when first trial date had to be abandoned as result of Crown providing late disclosure on day of trial. Accused experi- enced much stress and anxiety as well as financial prejudice, since trial did not proceed and counsel had to be retained for another trial date. Court balanced soci- ety's interest to prosecute charges which were not most serious against real prejudice unneces- sarily caused to accused. R. v. Perron (Nov. 1, 2011, Ont. C.J., Watson J., File No. 4521- 998-10-W49265-00) 98 W.C.B. (2d) 425 (17 pp.). Sentence

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