Law Times

Law Times • OcTOber 17, 2016 Page 15 www.lawtimesnews.com CASELAW apply to appellants' signs but held that City did not owe duty of care to appellants in its en- forcement of 2002 Bylaw and, in any event, appellants failed to prove that enforcement of 2002 Bylaw caused them any significant damage. Appel- lants' appeal dismissed. Appel- lants' negligence claim came down to untenable assertion that because 2002 Bylaw did not apply, City was a fortiori negligent in enforcing bylaw against appellants without first obtaining judicial determina- tion of its validity. Invalidity of bylaw could not be equated with liability in negligence for enforcing bylaw. There was no evidence from which it could be inferred that City acted un- reasonably in enforcement of 2002 Bylaw. Appellants did not seek injunctive relief against City's enforcement. Nor did City act unreasonably when it defended its bylaw with rea- sonable argument in favour of its enforceability even though that argument ultimately failed. 118143 Ontario Inc. v. Mis- sissauga (City) (Aug. 11, 2016, Ont. C.A., Doherty J.A., M. Tulloch J.A., and M.L. Benotto J.A., CA C60721) Decision at 255 A.C.W.S. (3d) 751 was af- firmed. 269 A.C.W.S. (3d) 563. Real Property EASEMENTS Application judge erred by failing to apply test of strict necessity Appellant W owned lakefront property. After severing prop- erty and granting Part 1 to appellant L family, only land access for Part 2, which W re- tained, was roads on property of L family and of appellant resort. Part 2 became water– access only lot. However, W continued to obtain access to her home through resort lands. No easements were ever grant- ed, and road access had never been issue. When W defaulted on two mortgages on her prop- erty, first mortgagee applied for declaration that easement of necessity existed over prop- erties of L family and resort. Application granted in part. Application judge concluded that water access to Part 2 did not preclude easement of ne- cessity. He found that water access "does not offer viable, or practical, means of access to and egress from Part 2." He concluded that easement of ne- cessity over Part 1 arose when Part 2 became landlocked and W had no legal entitlement to cross any adjoining lands to get to her property. W and her neighbours appealed. Appeal allowed. Strong test of strict necessity ensures that grant- ors are not permitted to dero- gate from terms of their grant of land. If they want to reserve easement, they should do so explicitly at time they make grant. Easement of necessity will be found only if it was nec- essary in order for grantor to be able to use his or her property at time of grant. Water access to property defeats claim of necessity, regardless of conve- nience. At time of grant, there was no legal entitlement to ac- cess to Part 2 across relevant lands, and W did not reserve easement through Part 1. Ap- plication judge's error f lowed from his conclusion that ne- cessity test had moved from strict necessity to "practical necessity." Fact that Part 2 had never been accessed by water was irrelevant, as was fact that water access was inconvenient or impractical. Water access was available, so Part 2 was not rendered unusable when grant was made. Application judge erred by failing to apply test of strict necessity. Avail- ability of water access meant that test of necessity at time of grant was not met. Application judge also erred in law in hold- ing that easements of necessity are creatures of public policy. Accordingly, easement of ne- cessity could not be implied for benefit of Part 2. Toronto-Dominion Bank v. Wise (Aug. 16, 2016, Ont. C.A., K.M. Weiler J.A., C.W. Hourigan J.A., and Grant Hu- scroft J.A., CA C60961) Deci- sion at 257 A.C.W.S. (3d) 973 was reversed. 269 A.C.W.S. (3d) 571. Ontario Criminal Cases Appeal GROUNDS Trial judge's finding was not based on misapprehension of evidence After traffic stop, accused and passenger were arrested for failing to comply with their re- spective recognizances. Police officers returned to police car while they checked identifica- tion and to allow accused to search for letter from surety, observing movement by ac- cused and passenger within vehicle. Accused provided forged note from surety. After accused and passenger exited car, officers observed handle of handgun sticking out from under f loor mat in back of car. Accused was convicted of possession of loaded pro- hibited firearm, unauthorized possession of firearm in mo- tor vehicle, careless storage of firearm, and failure to comply with weapon prohibition order while passenger was acquitted of possession charges. Accused appealed. Appeal dismissed. Trial judge found that move- ments of accused and passen- ger during traffic stop were confined to front seat of car and did not include any reach- ing into backseat area. Ac- cused argued that trial judge erred in concluding evidence eliminated possibility of hast- ily discarded handgun and de- prived him of theory that pas- senger hid handgun without accused's knowledge during traffic stop. Trial judge's find- ing was open to him on record and was not based on misap- prehension of evidence. Police officers' evidence was that ac- cused and passenger moved side-to-side and that any movement forward and back was confined to front seat. There was no direct evidence that accused or passenger had ever reached into back of car. Obvious implication of trial judge's finding was that move- ments were made in search for surety's note or in forging note that was provided to police. Theory that co-accused hid gun without accused's knowl- edge was both speculative and implausible. R. v. Bonilla-Perez (Jul. 6, 2016, Ont. C.A., S.E. Pepall J.A., M. Tulloch J.A., and G. Pardu J.A., CA C59123) Deci- sion at 112 W.C.B. (2d) 558 was affirmed. 132 W.C.B. (2d) 107. Charter of Rights FUNDAMENTAL JUSTICE Right to security of person also includes protection of psychological integrity Accused excreted four pack- ages of drugs while detained. Police had obtained general search warrant that authorized accused's detention until he had bowel movement signifi- cant enough to satisfy moni- toring officers that no pack- ages existed within accused's rectum. Accused was detained at police station for total of 43 hours before being brought be- fore justice of peace. Over pe- riod of his detention, accused underwent severe withdrawal symptoms because of his ad- diction. Except for police su- pervision, no provision was made for his condition to be monitored. At his trial, accused brought application under Ca- nadian Charter of Rights and Freedoms to exclude drugs from admission into evidence under s. 24(2). He alleged that general warrant was unlaw- ful and that he had been sub- ject to arbitrary detention and imprisonment under s. 9, that manner in which bedpan vigil search was carried out violated his rights under s. 8, and that his right to security of person had been violated under s. 7. Trial judge held that accused's Charter rights were not violat- ed and that, even if they were, he would not have excluded evidence. Accused was con- victed and sentenced. Accused appealed both his conviction and sentence. Appeal allowed. Convictions set aside. Right to security of person also includes protection of psychological integrity of individual. Police were aware that accused was addict. As accused began to show symptoms of withdrawal, police made no provision for measures to ease his discom- fort such as having doctor as- sess him for prescription medi- cation, or provide for medical administration of ordinary Tylenol. There was no ques- tion that police simply failed to minimize accused's discom- fort during his detention. Only medical plan police had was that if officers observed signs of medical distress, they would call ambulance or take accused directly to hospital. They did not know, however, what risks to accused's health would arise if drugs from packet were to break apart in his rectum. Po- lice have duty to take reason- able steps to ensure that ac- cused's safety and security of person are not compromised as result of nature of search. Rea- sonable steps can only be taken if police inform themselves as to risks of procedure they are carrying out. Failure of police to ensure that serious repercus- sions to accused's health would not ensue from his prolonged detention, or from any pos- sible delay in obtaining medi- cal treatment in event of emer- gency, was aggravating circum- stance that makes manner of search and seizure even more unreasonable. R. v. Poirier (Jul. 20, 2016, Ont. C.A., K.M Weiler J.A., Janet Simmons J.A., and G.J. Epstein J.A., CA C60530) Deci- sion at 115 W.C.B. (2d) 505 was reversed. 132 W.C.B. (2d) 167. Provincial Offences GENERAL Accused did not overcome presumption of regularity Accused owned residential property. Accused convicted of two breaches of the Build- ing Code Act, 1992 (Ont.) for failure to comply with two separate Property Standards Orders. Accused's motion to prohibit proceedings based in irregularities in summonses and improper service was dis- missed. Accused appealed. Ap- peal dismissed. Accused chal- lenged summonses, but did not overcome presumption of regularity. Issue of improper service should have been dealt with in Provincial Offences Court (Ont.). Appeal of motion to prohibit proceedings was moot as conviction had already been entered. R. v. de Boerr (Jun. 29, 2016, Ont. C.A., David Watt J.A., Gloria Epstein J.A., and K.M. van Rensburg J.A., CA C57200) 132 W.C.B. (2d) 162. Sexual Offences SEXUAL ASSAULT Trial judge thoroughly addressed evidence Concerns about something wrong having occurred at motel were first raised by two motel employees, when they observed complainant be- ing taken out of motel by two older men. Employees were concerned that complainant was young, she looked drunk or drugged, she was haphaz- ardly dressed in way her pant- ies could be seen, and she could not walk by herself, whereas two men with her were fully clothed and sober. Accused was first interviewed by police, called in to provide DNA sam- ple and was charged with sex- ual assault. Complainant was 17-years old at time of offence while accused was 25-years old. Accused claimed to have had previously had consensual sex- ual relations with complainant, who denied this and insisted she had boyfriend who was not accused. While it was ac- cused's position that nothing untoward had happened when parties drank in hotel room, af- ter she got home, complainant told her mother she thought she might have been raped, she was brought to hospital to get tested, and gave statement to police. It was determined ac- cused could not be excluded as donor of male DNA profile from semen on vaginal swab. Complainant had met two men she was with and drank in ho- tel suites before. Complainant could not recall exactly what had happened, having lost consciousness and all memory about 30 minutes after par- ties started drinking. Accused claimed he believed complain- ant to be over 18-years old, her having been drinking when they met. Accused convicted of sexual assault. Trial judge found accused's evidence at tri- al was diametrically opposed to his statements to police, having originally held position parties did not have sex. Trial judge found accused presented as very difficult witness: his over- all approach was to lie about what happened, in hope that allegations and even charge would just go away; when ac- cused realized that he was mix- ing up his answers or when he thought that he was not being believed, he would backslide to suggestion of not understand- ing. Trial judge found accused had admitted, eventually, that he and other man had sex with complainant after she passed out but believed consent could be presumed from fact parties had sex before and complain- ant had come to drink with two older men in motel room. Trial judge found complainant was unconscious and unable to consent to sex. Court did not believe accused's claim to have had previous sexual relations with complainant and Trial judge found court did believe complainant that they were only friends, and that they only saw each other periodically and in presence of others. Accused appealed. Appeal dismissed. Trial judge properly too into account that accused gave evidence through interpreter, and certain questions were not confusing merely because they elicited incriminating re- sponse. Trial judge thoroughly addressed evidence. R. v. Shahbaz (Aug. 16, 2016, Ont. C.A., Doherty J.A., K. van Rensburg J.A., and L.B. Roberts J.A., CA C59065) De- cision at 110 W.C.B. (2d) 910 was affirmed. 132 W.C.B. (2d) 199.

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