Law Times

Law Times • March 18, 2013 tablishing requisite knowledge. R. v. Ndalo (Nov. 1, 2012, Ont. S.C.J., Lalonde J., File No. 10G8643) 104 W.C.B. (2d) 836. International Law TREATIES Likely that volume and breadth of relevant data was enormous Attorney General of Canada applied for order pursuant to s. 15 of Mutual Legal Assistance in Criminal Matters Act (Can.) sending mirror-imaged copies of 32 computer servers to authorities in U.S.. American prosecutors alleged that individuals and corporate accused were parties to offence of criminal infringement of copyright, conspiracy to infringe copyright, money laundering and racketeering in that corporate accused facilitated wrongful dissemination of copyright protected material such as movies and music. Websites in question purportedly had 50 million daily users and caused losses in area of half a billion dollars. Accused submitted that volume of data on servers was equivalent of that contained on 100 laptop computers, and that court should either refuse sending order or in alternative make order under s. 15(2) of Act compelling servers seized to "be brought before court in form of report from independent forensic examiner who could inform court as to nature of information contained on 32 servers". Application for sending order adjourned without fixed return date, returnable on seven days' notice for determination if counsel were unable to agree as to how scope of relevant material was to be defined. Given nature of allegations, it was likely that volume and breadth of data relevant to prosecution as whole was enormous; financial, web traffic and transactional information were all likely to be relevant. Crown indicated that if court ordered servers brought before court, counsel would consult as to whether some consensual means could be established for sorting irrelevant from potentially relevant data on servers. United States of America v. Equinix Inc. (Jan. 9, 2013, Ont. S.C.J., Pardu J., File No. M-911/12) 104 W.C.B. (2d) 848. Mental Illness ADVISORY REVIEW BOARD Reasonable for board to determine accused would have more freedom in secure facility Accused sought to set aside finding of Review Board that he posed significant threat to safety of public and ordering him detained on Secure Forensic Service. Review Board reasoned that decision was also least restrictive and onerous on accused as he was under constant supervision in General Forensic Service. Secure Forensic Service would allow accused Page 13 CASELAW more freedom due to higher staff to patient ratio and that if accused were to refuse to take medication again staff would be better protected. Board held accused was not suitable candidate for community living nor conditional discharge given his potential for threatening behaviour, his untreated illness, his lack of insight into his illness and his determination to keep his body free of medication and to be self-sufficient. Expert evidence indicated it was very unlikely that accused would abide by restrictions or conditions imposed upon him and that it would be completely unrealistic that he could function well in community. Appeal dismissed. Board did not engage in speculation or circular reasoning by noting staff would be better protected if accused were to relapse again as it would be additional incidental benefit. It was reasonable for Board to determine that accused would have more freedom in secure facility as he may not have to be under constant supervision there due to higher staff to patient ratio. Board properly considered evidence from expert and its concern regarding accused was not unreasonable. MacLean, Re (Dec. 19, 2012, Ont. C.A., Doherty, MacPherson and Blair JJ.A., File No. CA C55624) 104 W.C.B. (2d) 850. Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Highly unlikely accused able to accurately keep track of how much alcohol he consumed Trial of accused for impaired driving. After he consumed several beers in bar accused was involved in accident with taxi cab which his vehicle hit. Accused claimed he did not cause accident for he was in his lane when taxi hit him. He then turned onto one way side street where he travelled short distance in wrong direction before meeting police car. Police car had to mount curb to avoid colliding with accused. Officer saw that accused swayed from side to side as he walked and he was unsteady on his feet. There was strong odour of alcoholic beverage on his breath and his eyes were red. Accused was rambling and made no sense to her. He was then arrested for impaired driving. Accused convicted. Court could not accept that taxi driver was at fault for collision for driver and his passenger were credible witnesses and they testified that accused's vehicle hit taxi hard. Officer was credible witness and her observations, which were reliable, were much more consistent with impairment by alcohol rather than mere shock or nervousness after accident. Despite accused's claim that he only consumed three beers it was highly unlikely that accused was able to accurately keep track of how much alcohol he consumed. Accused was also not in reliable position to evaluate his ability to drive and since alcohol had effect on his ability to socialize, it also had effect on his ability to think and function. Looking at totality of circumstances Crown proved that accused's ability to drive was impaired by alcohol. R. v. Khanjian (Nov. 26, 2012, Ont. C.J., Pringle J.) 104 W.C.B. (2d) 860. Professions BARRISTERS AND SOLICITORS Credibility findings in case involving allegations of "racial profiling" did not infuse appeal with merit Accused applied for an order to compel Federal Minister of Justice to provide him with funding to appeal his conviction for possession of cocaine for purposes of trafficking for which he was sentenced to 15 months' imprisonment. Crown did not dispute that accused lacked financial means to retain counsel and capacity to argue appeal. Officer's came across accused in apparent drug transaction in his vehicle with white female passenger in parking lot of residential unit in high drug traffic area. Accused claimed officers approached and assaulted him for no reason and that drug and paraphernalia evidence was fabricated by police. Accused submitted that he should have legal assistance because appeal engaged legal principles to be applied in "racial profiling" cases. Accused also proposed to renew on appeal his argument that trial judge should have drawn adverse inference from Crown's failure to call passenger as witness. Application dismissed. It was clear trial judge did not fail to consider circumstantial evidence before her and, in particular, fact that police did not investigate female passenger she remarked that this was unusual but found she was unable to infer from failure of woman to testify that she would have supported either accused's version of events or officers' version. Trial judge's analysis and her reasons for rejecting accused's testimony were unimpeachable; there was no merit in appeal that sought to revisit trial judge's credibility findings; that credibility findings were made in a case involving allegations of "racial profiling" did not infuse appeal with merit. There was no evidence before court of any attempt to exclude evidence by Charter application at trial. (Oct. 5, 2012, Ont. C.A., Juriansz J.A. in Chambers, File No. CA M41715 (C54979)) 104 W.C.B. (2d) 866. Search and Seizure INFORMATION FOR WARRANT Court satisfied that information www.lawtimesnews.com supplied by confidential informant was compelling Accused, charged with possession of cocaine for purpose of trafficking, possession of cocaine, possession of marihuana for purpose of trafficking and possession of marihuana, applied for exclusion of evidence seized from his residence via warrant. Affiant received information that accused was trafficking in cocaine and marijuana and attempted to verify informant's information. Affiant found that while accused had no criminal convictions, he had outstanding charges, some for related offences, and some of which alleged he used same street name informant said he did. Affiant surveilled accused's residence, confirmed he lived there and that his car was make and licence plate number informant stated, and observed what he alleged were hand to hand drug transactions and other activity suggestive of criminality by accused. Confidential informant's information had been accurate in past and had resulted in successful arrests and convictions. Application dismissed. Court found informant was credible and reliable based on past performance. Court was satisfied that information supplied by confidential informant was compelling informant provided name, address, physical description and street name of accused, and also provided specific information regarding type of drugs being sold and regarding vehicle driven by accused; informant had personally observed drugs at residence and had purchased drugs directly from accused there on more than one occasion. Affiant's conclusions of what he saw while observing accused were simply his best evidence as a trained police officer who had experience witnessing such transactions as to what he believed that he saw. Affidavit included relevant information regarding accused's activities and fact that his brother lived with him was of no moment. Court found ITO did not contain prejudicial information but that if it excised those statements alleged to have been so, warrant still stood. Had there been a breach, court would not have excluded. R. v. Johnson (Nov. 13, 2012, Ont. S.C.J., Hourigan J., File No. J(F)1019/11) 104 W.C.B. (2d) 873. ONTARIO CIVIL CASES Appeal NO SUBSTANTIAL WRONG Appellant made second offer despite knowledge of problems without demand for warranties Appeal by plaintiff from trial judge's decision dismissing her claim for $21,000 damages against vendor. Home purchased was 100 years old and respondent was in process of converting it from duplex to single family home. Appellant visited house and made offer conditional on home inspection. Home inspector found number of concerns with drain, pipes, roof and moisture. Parties negotiated reduced price but could not reach agreement. However, appellant later made renewed offer, which was accepted. Offer indicated there were no warranties being made by respondent since appellant had opportunity to inspect home. Shortly after closing, appellant encountered problems with worsening ceiling damage and sewer backup. Her contractor opened walls and found water damage, insulation wrapped in plastic bags, unconnected water pipes and electrical problems. Appellant alleged breach of contract and negligent misrepresentation. Appellant argued trial judge erred in finding no negligent misrepresentation and gave inadequate reasons. Trial judge found that, even if misrepresentations had occurred, appellant was not induced to enter agreement so elements of tort were not made out. Appeal dismissed. Reasons adequate to permit appellate review. Trial judge set out and applied correct test. It would have been preferable for trial judge to discuss each of five misrepresentations alleged, but it was not strictly necessary for him to do so, given finding appellant was not induced. Trial judge gave several reasons for that finding appellant had inspection done, showed clear desire to buy, knew age of home, had renovation plans and made second offer despite knowledge of problems, without demanding any warranties. There was no palpable and overriding error. While appellant failed to establish fraud, respondent was not open and forthright, so not entitled to substantial indemnity costs. Appellant to pay $5,000 costs. Annis v. Barbieri (Nov. 19, 2012, Ont. S.C.J. (Div. Ct.), Swinton J., File No. 401/11) 222 A.C.W.S. (3d) 849. Civil Procedure COSTS Actions of respondents high-handed, aggressive, and designed to intimidate Respondent landlord locked applicant out of leased premises. Applicant tenant wished to re-enter premises. Applicant brought application for relief from forfeiture. Parties entered consent order to resolve application. Costs on substantial indemnity scale were warranted. Actions of respondents from time of lockout were high handed, aggressive and designed to intimidate applicant. Respondent rejected suggestions to resolve dispute without litigation. Actions of respondent left applicant no choice but to launch application. Respondent did not withdraw allegations of operation of brothel which were

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