Law Times

Page 12 March 18, 2013 Law Times • 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. SUPREME COURT OF CANADA Breathalyzer PRESUMPTION New provisions created possibility trier of fact could have reasonable doubt but be bound to convict Accused charged with over 80. Accused challenged new provisions in Criminal Code that restricted defence's ability to contest reliability of breathalyzer results. Trial judge found that new provisions did not preclude defence from calling evidence of her alcohol consumption to rebut breathalyzer results. Trial judge rejected accused's evidence and convicted her. Appeal allowed in part. Statutory presumption violates right to be presumed innocent if accused could be convicted even if trier of fact had reasonable doubt. New provisions created possibility that trier of fact could have reasonable doubt that instrument malfunctioned but be bound to convict. Section 258(1)(c) and (d.01) infringed s. 11(d) of Charter. Objective of impugned provisions to give breathalyzer test results weight consistent with scientific value was pressing and substantial. Provisions included three separate and cumulative new requirements accused must satisfy to rebut presumptions of accuracy and identity. First, accused must raise doubt that breathalyzer instrument functioning and operated properly. This requirement was justified pursuant to s. 1. Second requirement for evidence that determination that blood alcohol level exceeded legal limit resulted from malfunction or improper operation of instrument imposed excessive burden on accused and was not justified. Third requirement not justified as no rational connection between objective and requirement of adducing evidence that blood alcohol level of accused would not have exceeded legal limit at time when offence allegedly committed. Pursuant to s. 258(1)(d.1), presumption of identity of test results showing that blood alcohol level of accused exceeded legal limit with his or her actual blood alcohol level at time of alleged offence could be rebutted only if evidence adduced by accused showed his or her consumption of alcohol consistent not only with blood alcohol level under legal limit at time of offence, but also with test results. Accused would only be required to testify where defence alleged very unusual alcohol consumption pattern. Trial judge erred by permitting accused to rebut presumption of accuracy by presenting evidence to contrary defence but error did not affect conviction as he did not believe accused. R. v. St-Onge Lamoureux (Nov. 2, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33970) Decision at 95 W.C.B. (2d) 45 was reversed. 104 W.C.B. (2d) 825. Charter of Rights FREEDOM OF EXPRESSION Terrorism provisions directed at violence and threats of violence Accused charged with seven terrorism-related offences. Accused alleged to have designed and built remote detonator in association with terrorists in United Kingdom and Afghanistan. Trial judge held that definition of terrorism in Criminal Code violated s. 2 of Canadian Charter of Rights and Freedoms by requiring Crown to prove that impugned conduct was committed for political, religious, or These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. ideological purpose. Trial judge held that this would have chilling effect on those who shared beliefs but not methods with accused terrorists. As remedy trial judge severed motive clause from definition of terrorism. Accused argued unsuccessfully at trial that his acts were intended to take part in legitimate armed conflict in Afghanistan and fell within armed conflict exception in definition of terrorist activity. Court of appeal dismissed accused's appeal and found that trial judge erred in finding motive clause unconstitutional. Accused's appeal dismissed. Terrorism offences were not overbroad. Terrorism provisions in Criminal Code were directed at violence and threats of violence which are not protected expression under s. 2. No evidence that provisions would create chilling effect. No evidentiary foundation to argument that accused's acts related to armed conflict and were consistent with international law. R. v. Khawaja (Dec. 14, 2012, S.C.C., McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ., File No. 34103) Decision at 273 C.C.C. (3d) 415, 97 W.C.B. (2d) 97 was affirmed. 104 W.C.B. (2d) 900. FREEDOM OF RELIGION Removal of Niqab favoured where liberty of accused at stake Accused charged with historical sexual offences. Complainant at preliminary inquiry asserted religious obligation to wear Niqab covering her face while testifying. Accused sought order requiring her to remove it and argued that it impeded his ability to cross-examine her. Preliminary inquiry justice ruled that complainant was required to remove Niqab. On complainant's application for certiorari, application judge ordered new more extensive hearing. Court of Appeal also remitted issue to preliminary inquiry justice for fuller hearing. Complainant's appeal dismissed. Complainant was required to show that her wish to wear Niqab in court was based on sincere religious belief. Ability to see witness's face is important feature of fair trial for accused. Preliminary hearing judge should explore accommodations and if none were available must weigh salutary effects of permitting Niqab against deleterious effects. Where liberty of accused is at stake and witness's evidence is important to case removal of Niqab was favoured. R. v. S. (N.) (Dec. 20, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33989) Decision at 262 C.C.C. (3d) 4, 90 W.C.B. (2d) 623 was affirmed. 104 W.C.B. (2d) 824. ONTARIO CRIMINAL CASES Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Direct and circumstantial evidence fell well short of establishing requisite knowledge Accused charged with one count of possession of crack cocaine for purpose of trafficking, one count of possession of cannabis marijuana, and with possessing proceeds of crime under $5,000. Issue for trial was whether accused possessed cocaine and marijuana at time of his arrest and whether he had knowledge and control of drugs found in his apartment. Officers testified that in pursuing informant's tip they observed 12 short meetings at accused's apartment building lasting one half hour or less except for one meeting, when accused was seen having BBQ on his balcony for two friends. All short visits happened when accused was at home people arrived, entered without knocking, and left looking at their hands, and gave indicia of drug transactions. Accused claimed that marijuana, except for small quantity, was his own but that exotic dancer who lived with him was crack cocaine addict crack cocaine found was hers and he denied being trafficker of either crack cocaine marijuana. Officers seized 378.3 grams of marijuana in accused's apartment; accused admitted that all marijuana found in his apartment was his except for 2.2 grams of it. Accused testified that he was heavy smoker of marijuana and that he had just purchased larger amount than usual due to unusually good deal friend had offered him. Accused guilty of simple possession of marijuana only. Court agreed that accused had control of apartment but could not ignore that he was sharing his apartment with exotic dancer addicted to cocaine. One quantity of crack cocaine, one to two grams, was small and not likely to be quantity for trafficking but for personal use; other 5.2 grams were found in shoe box in bedroom where exotic dancer lived as well. Court found that lack of packaging material for marijuana was significant. Accused testified in forthright manner without hesitating and generally gave answers that were plausible. Messy apartment description fit in with typical lifestyle of construction worker having open relationship with exotic dancer, and could have accounted for lack of rolling papers found. Even in combination, direct and circumstantial evidence relevant to issue of knowledge fell well short of es- IT'S BACK Fill out our short survey for a chance to win 1 of 5 Kobo mini e-readers! Canadian Lawyer's most requested survey takes just minutes to complete at www.canadianlawyermag.com/surveys and will provide valuable information about what the nation's lawyers are charging for many common transactions and legal services. Survey closes April 8, 2013. 2013 Survey_LT_Mar18_13.indd 1 www.lawtimesnews.com LEGAL FEES SURVEY 13-03-14 1:26 PM

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