Law Times

Page 13 Law Times • January 21, 2013 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. ONTARIO CRIMINAL CASES Administrative Law BIAS No juristic reason that judge hearing trial should disqualify herself from hearing bail application Accused sought mistrial based on alleged bias of judge after he was denied bail in middle of trial where accused was charged with sexual interference. Judge issued bench warrant against accused after he absconded during middle of trial when Crown discovered accused had contacted mother of complainants by email contrary to his bail condition. Application dismissed. Accused's emails to mother of complainants were clearly relevant to only bail application. Neither evidence tendered at bail hearing in regard to emails, nor any comments judge made about them in context of decision to deny bail, could play any role whatsoever at trial proper. Any judge of Superior Court could hear bail application with timeframe limited to any time before trial of charge. There was no juristic reason that judge hearing trial should disqualify herself from hearing application, during trial, regarding release or detention of accused. R. v. Mailman (Sep. 17, 2012, Ont. S.C.J., Aitken J., File No. 096668) 103 W.C.B. (2d) 911. Appeal SENTENCE APPEAL Judge erred in principle when he rejected joint submission Appeal by accused from sentence imposed on him after he was convicted of impaired driving and driving with blood alcohol level above legal limit. Trial judge rejected joint submission and imposed additional term, which was additional year Heydary-Caselaw_LT_Jan14_13.indd 1 driving prohibition and community service. Appeal allowed. Judge erred in principle when he rejected joint submission. Joint submission appeared to be favourable to accused but it reflected host of factors which included money forfeited by accused despite withdrawal of drug charges, foregoing trial where there were triable issues and making full restitution for damages caused to other car. Sentence was set aside and sentence based on joint submission was accepted. Accused was sentenced to 35 days' custody after he was credited with time served for pre-trial custody and he was prohibited from driving for one year. R. v. Miljanovic (Sep. 27, 2012, Ont. C.A., Sharpe, Simmons and Epstein JJ.A., File No. CA C55344) 103 W.C.B. (2d) 733. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused was singled out for focused investigation from moment officers approached him Accused charged with weapons offence. Accused applied to exclude evidence based on breach of s. 9 Charter rights. While conducting late-night patrol, officers noticed suspicious individuals huddled in dark corner of plaza. As officers entered parking lot, individuals dispersed and accused walked away from officers. Officer testified that he jumped out of car, spoke to accused, and noticed that accused appeared to be "blading" with his hand in his jacket. Officer testified that accused was fidgety, rarely made eye contact, and looked scared. Accused provided officers with his name and address, and officers became aware that he was bound by recognizance. Officer conducted pat-down search of accused and immediately felt what he believed was gun. Of- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. ficers seized gun and arrested accused. Seized item was air cartridge ball bearing gun. Officer testified that he did not consider accused to be detained until he advised him that he was going to be searched. Application allowed, evidence excluded. From moment that officers approached him, accused was singled out for focused investigation. Although total interaction was only approximately five minutes, within first 30 seconds of encounter officers had taken control of accused and were determined to either elicit or locate incriminating evidence. Any reasonable person in circumstances of accused would have concluded by reason of officers' conduct that he had no choice but to comply with police directives and submit to search. Officers were suspicious of some kind of criminal activity but they could not say what kind of criminal activity or that suspicion was directed at any particular offence. Notwithstanding evidence that accused was "blading" throughout encounter, neither officer testified that he had reasonable suspicion that suspected crime was possession of any kind of weapon. Investigative detention exceeded power authorized by R. v. Mann. Facts known to police at time of detention did not ground reasonable suspicion that accused was connected to recent or ongoing criminal offence. Officers' hunch that accused was involved in some kind of criminal activity did not pass objectively reasonable test for suspicion of particular offence. Accused's detention was arbitrary. Officers' behaviour displayed serious disregard for accused's Charter rights. Officers' misconduct was serious because of multiplicity of breaches, as no less than four Charter rights were breached in one brief encounter with young black man who was simply standing outside strip mall with two oth- www.lawtimesnews.com ers at night. Although search was not extremely intrusive and did not involve significant restraint, it nonetheless invaded accused's bodily integrity and autonomy. Evidence of BB gun was real and reliable, and was central to Crown's case. There was no suggestion that BB gun was loaded so, while charge was serious, it was certainly not in category of most serious charges. Evidence excluded. R. v. Stewart (July 23, 2012, Ont. C.J., Oleskiw J.) 103 W.C.B. (2d) 750. Mental Illness ADVISORY REVIEW BOARD Board erred in application of test that required balancing of level of risk and level of harm Accused was found not criminally responsible (NCRMD) on account of mental disorder on two counts of assault with weapon and single counts of mischief over $5,000, uttering threats to cause death or bodily harm, possession of weapon for dangerous purpose, and assaulting police officer. Accused appealed disposition of Review Board made ordering his continued detention with terms and conditions. Accused became violently belligerent with his brother and when police finally arrived he punched officer. Accused's treatment team believed that his history of substance use and brain injury were factors in his conduct. Accused was 30 years old at time and was frequently smoking marijuana. Accused sustained traumatic brain injury when he fell from seventh floor balcony. Before index offences accused had twice been admitted to mental health unit. Accused had been alcoholfree, and had not been assaultive or threatened violence since NCRMD finding. Accused had occasionally been verbally aggressive and had opposed vari- ous rules imposed by hospital but he attributed that to frustration with his continued, and in his view unnecessary, detention. Appeal allowed, matter returned to board for re-hearing with direction that board request hospital to re-score accused's actuarial risk based on his current diagnosis. Board erred in its application of test that required balancing of level of risk and level of harm. While both hospital and board concluded that accused continued to represent significant threat to safety of public, neither specifically adverted to serious risk of serious physical or psychological harm to individuals in community and it was unclear that most current evidence before board supported such finding. Gacek, Re (Sep. 11, 2012, Ont. C.A., Juriansz, Watt and Hoy JJ.A., File No. CA C54473) 103 W.C.B. (2d) 805. Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Failure to invoke roadside screening provisions irrelevant Accused appealed his conviction of over 80 after officer arrested him for impaired driving without having him provide breath sample. Accused was stopped pursuant to R.I.D.E. program and officer observed his bloodshot, red rimmed eyes, smell of alcohol and admission of one drink after initial denial. Officer observed accused fumble with mouthpiece and arrested him. Appeal dismissed. There was no minimum time period nor mandatory questioning that must occur before officer could objectively have reasonable grounds. There was no requirement that roadside sample be taken and officer allowed to make assessment based on totality of circumstances. Court should not examine circumstances on 13-01-09 2:33 PM

• Cover