Law Times

PM #40762529 $5.00 • Vol. 29, No. 25 August 6, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Samples from suspected impaired boater scrutinized Dirk Derstine says case law supports a dissenting judgment in a recent Ontario Court of Appeal ruling. Photo: Robin Kuniski DEPOSIT RULING Forfeited after real estate deal fails P4 MENTAL HEALTH Regulators showing progress P7 FOCUS ON International & Cross-Border Law P8 BY SHANNON KARI For Law Times T he legality of taking extra blood samples from a sus- pected impaired boater by an emergency room tech- nician for "police use" is headed to the Supreme Court of Canada as a result of a strongly worded dissent at the Ontario Court of Appeal. The court ruled 2-1 to uphold the conviction of Christie Ann Culotta for the impaired operation of a vessel causing seriously bodily harm, stemming from an August 2013 incident on Lake Muskoka. The majority judgment, writ- ten by Justice Ian Nordheimer with Justice William Hourigan concurring, described the Char- ter breaches as "technical," not in bad faith and also that there was "vindication" for the police con- duct in the blood alcohol results. In dissent, Justice Gladys Pardu described the violations as serious and grounds to quash the convic- tion and order a new trial. "The affront to human dignity embodied in a police officer's 'co- opting a lab technician' into taking blood samples for police purposes when the technician was taking blood samples to carry out a phy- sician's orders is so serious that in my view, the hospital records of the analysis of the appellant's blood should be excluded," wrote Pardu in the ruling issued July 25. "There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by in- serting themselves into an accused person's medical care is a grave misstep," she wrote. The dissent means that there is an appeal "as of right" to the Supreme Court. Dirk Derstine, who acted for Culotta, says he believes the case law supports the dissenting judg- ment. "Generally, you have more protection the more intrusive the search. Here, the state was meta- phorically sucking the blood out [of my client] unconstitutionally. Police can't seize blood first and get permission later," says Derst- ine, co-founder of Derstine Pen- man in Toronto. Scott Cowan, a Goderich, Ont.- based defence lawyer who regu- larly acts for clients in the Mus- koka region, says courts need to See Police, page 2 Toronto lawyers against proposed city council cut BY MARK CARDWELL For Law Times S ome Toronto lawyers are voicing their opposition to a plan by the province to reduce the number of councillors elected in the City of Toronto. Rocco Achampong, a former student president of the University of Toronto who has been in private practice in Toronto since 2010, is against the new Ontario premier's plan to cut the number of city councillors in Toronto in half on the eve of a municipal election. Under Bill 5, which the new Conservative government tabled July 30 at Queen's Park, the num- ber of councillors would be re- duced to 25. The controversial bill has been met with widespread opposition and anger. Last week, Achampong filed a court action to try and derail Ford's plan. "This is government by fiat," says Achampong, a former may- oral candidate who finished sixth in the city's last mayoral race, well behind winner Rob Ford. "This is not a publicity stunt. These are live issues. I'm standing up for the people of Toronto. I'm a lone-man army." Achampong is now running for one of 47 councillor seats in the October election, which officially began on May 1. The City of To- ronto is also investigating if a legal challenge is possible, and council will meet on Aug. 20 to get insight from the City of Toronto's solicitor on "the validity and constitution- ality of any Provincial legislation, including its potential violation of the rights of the citizens of Toronto to fair and effective representation, the practicality of conducting the election, the City Clerk's capacity to implement the changes, and any errors or f laws in the legislation." Renatta Austin, lawyer with the Eglinton West Law Office and a candidate for Ward 13, says she supports a legal challenge to the bill by the city. "In my view, the City of Toronto See Moral, page 2 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM Rocco Achampong says he has filed a court action to try to stop Premier Doug Ford from cutting the number of city councillors in Toronto. © Steve Carty Celebrating In-House Counsel Sept. 20, 2018 | Arcadian Court, Toronto Keynote Speaker: The Right Honourable David Johnston, C.C. Governor General of Canada (2010 - 2017) Chair, Rideau Hall Foundation, Executive Advisor, Deloitte FORGING A STRONGER FUTURE www.innovatio-awards.com Signature Sponsor Cocktail Sponsor Silver Sponsor Untitled-2 1 2018-08-02 3:03 PM

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