Law Times

Law Times • December 3, 2018 Page 13 www.lawtimesnews.com FOCUS Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 © 2018 Thomson Reuters Canada Limited 00252GP-92504-NK Print + ProView L7798-8513BE-65203 $187 Softcover + ProView approx. 1300 pages July 2018 Annual volumes supplied on standing order subscription Multiple copy discounts available ProView only A08126-18ON-65203 $156 Print only L7798-8513-65203 $156 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New in this edition Legislative Updates • Provincial Offences Act amended by the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 and by the Stronger, Fairer Ontario Act (Budget Measures) 2017 (Bill 177) • Red Light Camera System Evidence, O. Reg. 277/99 amended by O. Reg. 373/17 Case Law Updates • York (Regional Municipality) v. Tomovski (2018 Ont. C.A.) • R. v. Boukaras (2017 Ont. C.J.) • R. v. Balanzin (2017 Ont. C.J.) • Oshawa (City) v. 536813 Ontario Ltd. (2017 Ont. C.J.) • R. v. Madussi (2016 Ont. C.J.) New Edition The 2018 Annotated Ontario Provincial Offences Act Murray D. Segal and The Honourable Justice Rick Libman, Ph.D. Now also available as an eBook on Thomson Reuters ProView® Discover the complete collection of ProView eBooks at store.thomsonreuters.ca/proview Find a complimentary training session at cpdcentre.ca Benefi t from this legal research tool focused on the scope and exercise of police powers Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 JUSTICE MICHELLE FUERST, SCOTT FENTON AND SUSAN MAGOTIAUX SEPTEMBER 2018 | ISSUE 9 1. ODOUR OF FRESH MARIJUANA, PRIOR CONVICTION dence to permit the issuing justice to find reasonable and proba- INSUFFICIENT GROUNDS TO OBTAIN SEARCH ble grounds to believe there would be evidence of an offence. WARRANT As stated in R. v. Shiers, 2003 NSCA 138, 2003 CarswellNS 434, in the context of an application for a search warrant under Facts: Police were called to a rural, residential property in re- the Controlled Drugs and Substances Act, the question is sponse to a complaint about trespassing pigs. The investigation whether there was material in the ITO from which, the issuing shifted to encompass allegations of assault and threats. Police justice, drawing reasonable inferences, could have concluded attended at the home of the appellant to arrest him. The officers that there were reasonable grounds to believe that controlled spoke with a woman standing in the open doorway of the appel- substances, offence-related property, or any thing that would lant's garage. While speaking with her, the officers detected a afford evidence of an offence under the act, was at the location strong smell of fresh marihuana. The officers observed a closet specified in the warrant. in the garage emanating light. On entering the garage and open- ing the closet door, police discovered 42 marihuana seedlings. The strong smell of marihuana can be one of the grounds for The officers determined not to charge the appellant with any issuing a search warrant: R. v. Lao , 2013 ONCA 285, 2013 offences as a result of the presence of the seedlings as they CarswellOnt 5105. However, the smell of marihuana, on its own, recognized that the search may not have been lawful. Instead, may not be sufficient. In Lao, there was evidence of additional the officers applied for a warrant to search the appellant's hallmarks of a grow-op, including that the house appeared to be property. uninhabited, as the windows were covered and the shingles were peeling and the house consumed large quantities of elec- The officers advised the lead investigator that the smell in the tricity in a repeated cycle, consistent with high-intensity grow garage was "much stronger" than the odour emanating from the lights. See also R. v. Wiley , [1993] 3 S.C.R. 263, 1993 Car- seedlings, prompting the further investigation and application for swellBC 504, R. v. Grant, [1993] 3 S.C.R. 223, 1993 CarswellBC the search warrant. The Information to Obtain ("ITO") the search 1168, and R. v. Plant, [1993] 3 S.C.R. 281, 1993 CarswellAlta warrant detailed the seizure of the 42 seedlings and information 94, in which the strong odour of marihuana was but one factor from police databases, including that in 2007, the appellant was for the issuing judge to consider, along with information obtained suspected of cultivating marihuana. The ITO also disclosed that from confidential informants and/or information with respect to in 2009, in a different jurisdiction, the appellant was again sus- electricity consumption at the property. pecting of running an indoor marihuana grow-op and in 2009, was convicted of possession. Accordingly, the ITO contained The trial judge erred in dismissing the appellant's application the statement that "it is evidence that [the appellant] has a long under s. 8 of the Charter as the ITO failed to disclose sufficient history involving illicit drugs, in particular marihuana, dating back evidence of a grow-op. The only information provided in addition nearly 20 years." to the odour of marihuana was dated information, mined from police databases. With respect to the appellant's 2009 convic- The execution of the search warrant lead to the seizure of eight tion for possession, there was no information that property asso- marihuana plants and some dried marihuana. At trial, the appel- ciated with a grow-op was seized along with the marihuana, nor lant alleged a breach of his rights under s. 8 of the Charter, in was there any information that the marihuana seized were that the ITO failed to disclose sufficient grounds for the issuance plants and not dried. Accordingly, the trial judge erred in failing of the warrant and sought the exclusion of the evidence seized to find a breach under s. 8 of the Charter. under s. 24(2). The trial judge disagreed, the appellant was convicted, and appealed. Turning to the test in R. v. Grant , 2009 SCC 32, 2009 Carswell- Ont 4104, the evidence ought to be excluded. The breach in this Held: Appeal allowed, acquittals entered. case was serious, given the defective grounds underpinning the As detailed in R. v. Garofoli, [1990] 2 S.C.R. 1421, 1990 Cars- warrant. The officers involved over-valued the information avail- wellOnt 119, and R. v. Morelli, 2010 SCC 8, 2010 CarswellSask able via the database searches, without subjecting it to more 150, the ITO had to contain sufficient credible and reliable evi- careful scrutiny. Moreover, the conclusory statement with re- Publications Mail Agreement # 40065782 Order # A20212-18-65203 $197 Annual subscription newsletter – Print Email delivery of electronic version available upon request A20212-18 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get a comprehensive look at important jurisprudential developments relevant to the scope and exercise of police powers. Discover the latest trends in Police Powers • Explore key topics regarding powers of detention, arrest, and search and seizure in light of the Charter • Stay current with trends in police powers by accessing relevant articles and case commentaries • Get helpful case law, and learn about modifi cations to police procedure through timely legislative updates Also available on CriminalSource Police Powers Newsletter Justice Michelle Fuerst, Scott K. Fenton, and Susan Magotiaux © 2018 Thomson Reuters Canada Limited 00254GN-94252-NP that we are still operating this in-person cattle call system of running around a courthouse to hurry up and wait in a line to accomplish simple tasks," says Lund. There have been some im- provements at the Brampton courthouse, says Lund, as a result of a pretrial framework overseen by Justice Katherine McLeod. "The intensive judicial pre- trial process has demonstrated success by increasing early reso- lution of matters, reducing day of trial collapse and ensuring accu- rate time estimates to minimize trial continuations," Lund says. As well, in some jurisdictions such as Ottawa, there are judges instead of justices of the peace handling bail hearings, as a re- sult of a pilot project introduced by the former Liberal govern- ment. "This has changed the culture of bail. It has been very positive," says Russomanno. LT of applying a standard number. "Lockdowns represent a modern form of the harsh Dick- ensian conditions that moti- vated the Victorian movement towards prison reform," wrote Justice Robert Goldstein last year in his sentencing judgment in R. v. Nsiah. "Lockdowns are a regres- sive form of punishment that represents the opposite of an enlightened penal regime. On an individual level, it is notable that many of the people in the Toronto South — a remand cen- tre — are charged with an of- fence but presumed innocent," he added. "A prisoner who experiences lockdown is entitled to remis- sion beyond the 1.5:1 credit for pre-sentence custody that is routinely granted. I would not use a mathematical formula. The Court of Appeal in Downes did not attempt to create a for- mula, leaving it to the discretion of sentencing judges," Goldstein said. In R. v Dibben, Justice John McMahon awarded an addi- tional 14 months of credit to an accused subjected to nearly 400 days of lockdowns in pretrial custody. Earlier this year, Justice Jane Kelly awarded 16 months of what she referred to as "Duncan credit" in R. v. Ward-Jackson, a case where the accused had been held in pretrial custody for more than three years. In London, the Elgin-Mid- dlesex Detention Centre is fac- ing a class action and a number of civil suits because of the con- ditions at the facility. In late October, a Superior Court judge ordered the prov- ince to pay more than $1 million in total damages to a former in- mate who was severely beaten in custody. Carolynn Conron, a London, Ont.-based defence lawyer, says that, despite the allegations in the civil actions, she's not aware of it leading to enhanced pretrial Continued from page 10 Continued from page 11 Lockdowns are a 'regressive form of punishment' credit for former inmates in the criminal courts. "I think this is something that should be factored in and it is good that judges have this discretion," says Conron, who is also the London director for the Criminal Lawyers' Association. She says criminal lawyers in the region should bring applica- tions on sentencing to ref lect the conditions at the detention cen- tre, which she has been told are still poor. "They used to have a wood- working area. It is now a segrega- tion annex. The gym area is only for the guards," says Conron. LT Some improvements Have delays improved at the OCJ? Oct. 2017- Sept. 2018 Jan. 2016- Dec. 2016 Average days to disposition (all cases) 146 142 Average court appearances 7.5 7.1 Percentage of cases with- drawn before/at trial 50 48 Impaired driving average days to disposition 203 198 Impaired driving average court appearances 6.3 6.2 Source: Ontario Court of Justice Carolynn Conron says criminal lawyers in the London region should bring applica- tions on sentencing to reflect the condi- tions at the detention centre.

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