Law Times

Page 14 January 21, 2013 Law Times • CASELAW piecemeal basis. Officer had ASD that provides evidence of blood alcohol reasonable and probable grounds and failure to invoke roadside screening provisions was irrelevant. R. v. Pabla (Sep. 18, 2012, Ont. S.C.J., Fragomeni J., File No. SCA(P)1690/12) 103 W.C.B. (2d) 814. Parole CALCULATION OF SENTENCE Accused's failure to acknowledge responsibility and lack of remorse provided insight into character Accused sought reduction of 25 years without parole after being convicted of two counts of firstdegreemurder. Accused cited his good conduct while incarcerated and conclusions reached by correction officials that he was low risk to public safety. Crown argued that accused showed no remorse and still denied responsibility and that murders were horrific with extensive use of violence. Application denied. Accused's failure to acknowledge responsibility for murders and his lack ofremorse provided insight into his character and would lead jury to concludethat he was not sufficiently rehabilitated to be released into society. In addition, nature of crimes and circumstances surrounding their commission with high levels of violence demonstrated callousness and cold-blooded manner. Accused failed to satisfy onus that application had substantial likelihood to succeed if put before jury. R. v. Crick (Oct. 9, 2012, Ont. S.C.J., Karam J.) 103 W.C.B. (2d) 826. Perjury and Related Offences ATTEMPTING TO OBSTRUCT JUSTICE Not stretch for accused to have made serious but unintentional mistake when testifying Accused, police officer, was charged with perjury, obstruction and breach of trust following evidence he gave in court regarding traffic stop he made. Accused testified during trial that, after cautioning her, he took statement from woman charged. He testified that statement was in his handwriting. Voir dire was held regarding statement and it was ruled admissible and woman charged was acquitted. Woman testified that she was not person who was operating white pickup truck in issue because she had been in hospital at time and provided note from her doctor to that effect, with result that presiding JP dismissed charges citing reasonable doubt. Accused was charged on basis that statement he alleged he took was false. Another officer testified at trial that it was he who took statement which was corroborated by handwriting evidence. Accused testified that he made mistake and thought he had taken statement personally. Charges dismissed. While accused made mistakes in matter, so did two other officers and Crown. Had any one of mistakes or omissions not been made, identity of officer who took statement would have easily been determined. Court accepted explanation of accused and believed his testimony; given mistakes already made. It was not stretch for accused to have made very serious but unintentional mistake when he was testifying. Accused's notebook supported contention that he had in fact interviewed woman. R. v. Sadler (Sep. 12, 2012, Ont. S.C.J., Bielby J., File No. CR 11307-000) 103 W.C.B. (2d) 827. Sentence DRUG OFFENCES Accused utterly failed to have insight into harm he caused others by importing cocaine Accused sentenced to eight years and six months' imprisonment, in addition to four and one half months credit for presentence custody, for importing cocaine. Customs officials found two kilograms of high-grade cocaine in luggage of accused's female travel companion. Accused was architect of plan to import large quantity of cocaine from Panama to Canada, and he co-opted his girlfriend into being drug mule. At time of commission of offence accused was on release for other offences and other related offences. Accused was 36 years old and had criminal record which included convictions for possession, possession for purpose of trafficking, and trafficking of controlled substances. Accused was born in Canada but raised in Jamaica. Since commission of offence accused had become extremely religious, wanted to assist other individuals, and was responsible for integrating new inmates in institution to ensure they were getting along. While accused recognized harm he had caused to his children, he utterly failed to have insight into harm he had caused his girlfriend and others by importing cocaine. Mandatory weapons prohibitions, DNA order. R. v. Stephenson (July 5, 2012, Ont. C.J., Kastner J., File No. 108615) 103 W.C.B. (2d) 858. Trial ACCUSED NOT REPRESENTED BY COUNSEL Court not satisfied accused unable to retain counsel privately Accused charged with single count of "fraud over". He allegedly defrauded employer of about $1.3 million over five-year period. He initially pleaded not guilty but quickly changed his plea to guilty and admitted facts establishing he had defrauded company of $303,000. He disputed remaining $1 million fraud. Accused admitted altering name of payee and forging authorizing initials, making company cheques payable to him. Crown sought on Gardiner hearing to prove remaining $1 million involved unauthorized cheques payable to accused or deposited directly into joint account with his wife, as well as unauthorized purchase of goods and services for his personal benefit. Accused had been refused Legal Aid and exhausted his appeals. Application dismissed. Accused not indigent. Issues on Gardiner hearing were relatively simple and accused was capable of handling them. Hearing would be short and, with some assistance from court his right to fair trial would not be compromised. During lengthy time on bail, accused worked and earned income that could be utilized for his defence. He had leased expensive vehicle, payments for which were $36,000 over three years. He obtained funds from his family to retain counsel for two-day bail hearing. Court not satisfied accused unable to retain counsel privately. While hardship, circumstances did not meet legal test for Rowbotham application. R. v. Angelis (Oct. 16, 2012, Ont. S.C.J., Code J., File No. 1170000264-0000) 103 W.C.B. (2d) 909. Weapons STORAGE IN CARELESS MANNER Judge erred by not regarding rehabilitative prospects as mitigating factor Accused appealed his conviction and sentence of three months consecutive on four counts of careless storage of firearms. Accused was convicted by jury who acquitted him on other charges. Accused alleged trial judge misdirected jury on careless storage of firearms under s. 86(1) of Criminal Code by failing to instruct jury that any breach by accused of safe storage of firearms guidelines set out under relevant firearms storage regulations was insufficient to make out offence. Judge did instruct jury that they had to find marked departure from norm. Judge regarding accused's rehabilitation as neutral factor even though he attempted to comply with law and chances of reoffending were low. Judge gave no reasons for making sentences consecutive. Appeal of sentence allowed only. Conviction appeal was of no merit as charge as whole was sufficient. Judge erred by not regarding rehabilitative prospects as mitigating factor and sentence was reduced to time served. Judge provided no reasons for making sentences consecutive and deference could not be given in these circumstances. R. v. Gouliaeff (Oct. 10, 2012, Ont. C.A., Cronk, Pepall and Tulloch JJ.A., File No. CA C53582) 103 W.C.B. (2d) 915. ONTARIO CIVIL CASES Agriculture AGRICULTURAL LAND No exemption to operating pit for farm betterment projects Under contract with farmer respondent was removing topsoil, www.lawtimesnews.com levelling sand knolls, selling sand, and then restoring land with topsoil to make it arable for farming. Neither farmer nor respondent obtained licence to operate pit or quarry. Respondent was charged with operating pit without licence. Respondent was acquitted with justice of peace finding land was not pit within definition under Aggregate Resources Act (Ont.) (ARA). Appeal was allowed. Acquittal was set aside. Conviction was entered. Respondent was excavating pit. There was no specified exemption for farm betterment projects. Planning Act (Ont.), and ARA, could both apply in appropriate circumstances. Wording of s. 7 of ARA extended to actual onsite operator. R. v. Ontario Corp. 311578 (Sep. 14, 2012, Ont. C.A., Feldman, Sharpe and Ducharme JJ.A., File No. C54746) 220 A.C.W.S. (3d) 666. Civil Procedure CLASS ACTIONS Claim was exculpated by disclaimer language Plaintiffs brought motion to certify action as class action pursuant to Class Proceedings Act, 1992 (Ont.). Plaintiffs owned front-loading washing machines manufactured by defendants. Plaintiffs alleged that defendants negligently designed washing machines and negligently failed to warn of design defects and need to take remedial action. Plaintiffs alleged that defendants breached warranty that machines were fit for intended purpose. Plaintiffs alleged that defendants' failure to disclose defects was misrepresentation contrary to s. 52 of Competition Act (Can.) (CA). Plaintiffs brought action on behalf of Canadian residents, excluding Quebec, who owned 2001 to 2008 front-loading washing machine manufactured by defendants or who previously owned machine. Proposed class action was product liability claim against manufacturer for pure economic losses for allegedly negligently designed nondangerous product. Action was based on concurrent liability in contract, breach of statute, negligence and waiver of tort. Motion dismissed. Pleadings failed to disclose reasonable cause of action. It was plain and obvious that there was no express or implied contractual claim against defendants. Plaintiffs did not sue to correct defects in material or workmanship but sued because they alleged that defendants' machines had defective design. In warranty, defendants did not cover design defects and expressly excluded implied warranties. As matter of contract interpretation, it was plain and obvious that claim was not covered by express warranty; claim was exculpated by disclaimer language; and there was no overriding public policy reasons not to enforce express terms of warranty. Plaintiffs could not imply term inconsistent with express terms of contract. Section 52 of CA created offence but did not create cause of action. Alleged design defect did not make washing machines dangerous and it was plain and obvious that defendants were not under obligation to disparage own product and disclose alleged design defect. Defendants had no duty of care to disclose, no fiduciary duty to disclose and no statutory duty to disclose. Defendants were entitled to remain silent and it was plain and obvious they did not commit offence under s. 52 of CA. It was plain and obvious that there was no product liability negligence action for pure economic losses against manufacturer for negligently designing non-dangerous consumer product. Case law was settled against plaintiffs' claim. Applying test for duty of care, it was plain and obvious that pure economic loss claim in negligence was not available for carelessly designing non-dangerous product. There was prima facie duty of care, but there were policy reasons that negated duty of care. It was plain and obvious that plaintiffs failed to plead reasonable cause of action in negligence. Proposed causes of action were all untenable and it was plain and obvious that there was no predicate wrongdoing on which to base plea of waiver of tort. Plaintiffs' action failed to satisfy first criterion for certification of class action. Arora v. Whirlpool Canada LP (Aug. 16, 2012, Ont. S.C.J., Perell J., File No. 10-CV-404742CP) 220 A.C.W.S. (3d) 681. COMMENCEMENT OF PROCEEDINGS Breach of statute in and of itself did not give rise to individual cause of action Plaintiff was placed at defendant by StaffPlus which was temporary employment agency. Plaintiff worked for defendant for one month. Plaintiff claimed plaintiff was struck on head by ice cream box that fell off shelf. Plaintiff brought action for events arising out of injury. Defendant's motion to strike out statement of claim was allowed. Action was dismissed. Claim amounted to argument that defendant breached two statutes. Breach of statute in and of itself did not give rise to individual cause of action in absence of provision expressly authorizing one. There was no cause of action for breach of implied contract of employment with defendant because plaintiff was employed by StaffPlus. Rules to plead defamation were not complied with. Lawsuit was frivolous and vexatious. Ekpenyong v. Versacold Logistics (Oct. 1, 2012, Ont. S.C.J., Goldstein J., File No. CV-11-431741) 220 A.C.W.S. (3d) 683. DISCOVERY Master erred in failing to consider relevance of witness' knowledge of ongoing investigations and follow-up This was appeal of master's order

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