Law Times

Law Times • April 8, 2013 that complainant contracted for and received was significantly less than amount of money she paid to accused, such that it amounted to fraud. Accused overcharged complainant by at least $85,000 on $320,000 contract. Based on industry standards accused took advantage of complainant by grossly overcharging her and he cheated her out of bulk of her life savings. Accused knew he took advantage of complainant, he was not honest with her, he cheated her and he intended to defraud her. Regarding theft charge accused converted money to his own use that belonged to complainant, he had no legal right to keep her money, he kept such money fraudulently and without colour of right and he meant to deprive her of more than $5,000 of her money. R. v. Singer (Nov. 1, 2012, Ont. S.C.J., Hainey J.) 104 W.C.B. (2d) 1038. Motor Vehicles IMPAIRED DRIVING AND "OVER 80" No opportunity to provide accused with ability to contact counsel in private Trial of accused for impaired driving and for driving with blood alcohol level above legal limit. Motor vehicle that was owned by accused struck tree and vehicle was completely destroyed. Upon arrival of police accused was only person on scene associated with car. Accused was arrested for impaired driving and breath demand was made. She was informed of her right to counsel and she responded that she wanted to talk to lawyer immediately. Accused was not given opportunity to speak to counsel. She was transported to hospital because she suffered significant injuries. Injuries included shattered pelvis and broken heel bone. Breath samples were never obtained but police obtained search warrant and they seized samples of accused's blood that were taken for medical purposes. Blood samples were analyzed and accused was also charged with driving over legal limit. Accused claimed she did not drive car and she sought to exclude results of analysis of her blood because her rights under ss. 8 and 10(b) of Canadian Charter of Rights and Freedoms were violated. Accused was found guilty of both offences and conviction would be entered for one of them based on Crown's discretion. Crown proved that accused was driver. Accused's evidence that she was not driver was not believable. Her Charter rights were not violated. Right to counsel was not violated for, because of her injuries which required immediate treatment, extreme pain she was in and need to sedate her, there was no reasonable opportunity to provide accused with ability to contact counsel in private and, in any event, police refrained from eliciting information from Page 15 CASELAW her after she expressed desire to speak to counsel. There were sufficient grounds to issue warrant and s. 8 was not breached. Seizure of samples was lawful and evidence of result of analysis was admissible. Crown proved that when accused struck tree her ability to drive was impaired by alcohol and her blood alcohol level was above legal limit. R. v. Miller (Dec. 14, 2012, Ont. C.J., Gee J., File No. 11-001156) 104 W.C.B. (2d) 1014. Ample evidence to find fault despite contributory condition of other driver Accused charged with seven offences arising from automobile accident. Two motor vehicles were involved: pickup truck driven by sole occupant, and car driven by accused, which contained five other persons. Three passengers in rear of car received varying degrees of serious injuries, as did accused. Two persons in passenger front seat were both deceased as result of accident injuries. Accident occurred at night in unlit rural area. Unusual skid pattern caused accident technical traffic collision investigator to form opinion that front and rear brakes on one side of accused's car may not have been working properly. Tires on car were poor quality with tread depth on rear two tires poorest. Neither driver nor any passengers were using seatbelts. Driver of pickup truck exhibited observable signs of intoxication. Paramedic formed opinion accused had consumed alcohol prior to her examination of him as result of inability to locate what part of his body was in pain, slow speech, odour of alcohol, unfocussed eyes, and sweating. Witnesses observed containers of beer in car, with odour of alcohol very prevalent at scene. Passengers reported night of heavy drinking. Accused described as speeding. Estimate of speed at point of impact of 100 kph was conservative. Blood alcohol concentration of accused at time of collision was between 66 and 144 mgs of alcohol in 100 mls of blood. Blood alcohol concentration of driver of pickup between 205 and 274. Accident occurred at or about 237 a.m. and blood sample taken from accused at approximately 825 a.m. same morning. Anecdotal evidence of many witnesses was consistent and compelling. There was ample evidence to find fault sufficient that accused bear criminal responsibility, despite contributory condition and behaviour of other driver. Expert's opinion unequivocal and uncontradicted. No evidence of bolus consumption of alcohol by accused before event. R. v. Martin (Nov. 26, 2012, Ont. C.J., Thibideau J., File No. 10003018) 104 W.C.B. (2d) 1047. Murder SECOND DEGREE MURDER Court not satisfied that "but for" actions of accused, deceased would not have been stabbed Accused charged with second degree murder following altercations after boat cruise in which both of deceased died of stab wound received; accused was also charged with manslaughter regarding second deceased. Animosity had started between two groups of men over incident on boat cruise. Three other individuals faced similar charges arising out of same events. Deceased on murder count had initiated confrontation with accused, after which he was found to have been stabbed in abdomen twice; nobody saw actual stabbing or knife. Crown submitted conduct of accused in leaving parking lot immediately after stabbing of second deceased and leaving in someone else's car was circumstantial evidence of guilt. Most witnesses saw what they believed was fist fight between parties before it became apparent deceased had been stabbed. Several of witnesses admitted to having previously lied under oath. Accused acquitted. Court was satisfied accused initiated unlawful assault on deceased, but did not find that he had stabbed him, and did not find that assault was in itself dangerous or that risk of non-trivial harm was objectively foreseeable. Court found that stabbing of deceased occurred when accused was pulled from fight. Another of individuals present admitted to police and in his evidence at preliminary inquiry that he was carrying knife night of offences; evidence supported conclusion that he used that knife against second deceased moments after fight involving first deceased. In all of circumstances evidence pointed to that individual as person who stabbed deceased and raised reasonable doubt as to accused's responsibility for actual stabbing. Court not satisfied that "but for" actions of accused, deceased would not have been stabbed. Accused was acting in anger and impulsively and not in concert with anyone; accused did not know that other person intended to stab deceased and he did not intend to assist or encourage him in stabbing. R. v. Alexander (Dec. 12, 2012, Ont. S.C.J., Forestell J., File No. CR12- 70000609) 104 W.C.B. (2d) 1051. Sentence PREVENTIVE DETENTION No error by failure to consider "burn-out theory" of aging of accused Trial judge designating accused dangerous offender after pleading guilty to violent rape of girl as predicate offence. Only issue at hearing being whether reasonable possibility risk eventually controlled pursuant to s. 753.1. Trial judge holding no reasonable possibility given guarded opinion of defence expert, accused's history of deceiving professionals as to compliance with medication, unwillingness to accept judicial and medical intervention. Trial judge not considering whether to make www.lawtimesnews.com long-term supervision order with mandatory treatment recommendation to be enforced by National Parole Board. Accused's appeal from dangerous offender designation dismissed. No error by failure to consider "burn-out theory" of aging of accused as issue not raised by counsel, and no evidentiary basis to consider it. Trial judge did not err by failing to determine whether accused amenable to long-term supervision order with mandatory treatment order. Trial judges should consider mandatory treatment recommendation as condition of long-term supervision order in deciding whether to make dangerous offender designation. No error in failing to do so in case as accused lacked any commitment to necessary drug regimes that would sufficiently reduce risk to re-offend. R. v. Ramgadoo (Dec. 27, 2012, Ont. C.A., Feldman, Laskin and Watt JJ.A., File No. CA C52659) 104 W.C.B. (2d) 1066. ONTARIO CIVIL CASES Crown ACTIONS AGAINST CROWN While circumstances may provide context, they could not substitute written notice Motion by defendant Crown to dismiss action on basis of failure to provide notice pursuant to s. 7 of Proceedings Against the Crown Act (Ont.). Plaintiff was subject to criminal proceedings on allegations he attended home with others and assaulted number of people. Plaintiff was convicted but on his appeal, it soon became apparent that interpreter assigned to case was woefully incompetent. Judge found plaintiff 's ss. 7 and 14 Charter rights had been violated and, partly as a consequence, his right to be tried within a reasonable time was infringed. Mistrial was declared and Crown ordered to pay costs as remedy under Canadian Charter of Rights and Freedoms. Crown and plaintiff negotiated and settled with respect to costs and release was executed with respect to costs only. Plaintiff commenced notice of action in 2007 as intended class proceedings and filed statement of claim. Crown was served with both in 2008 and advised plaintiff notice was required 60 days before statement of claim was issued and it had no record of such. Plaintiff provided list of documents he claimed constituted notice application record in criminal matter served on Crown in 2006, factum served on Crown in 2006 and revised release. Crown argued none of these items constituted notice so action was nullity. Plaintiff argued notice could take any form and he had insisted on release that specifically did not release Crown from other complainants and Crown clearly knew he had complaint about interpreter services and Charter rights violation. Motion allowed. It was clear s. 7 was necessary precondition before court could entertain action against Crown, and onus was on plaintiff to establish court had jurisdiction. There was no dispute notice had to be in writing; while surrounding circumstances may provide relevant context, they could not substitute written notice. Section 7(1) required notice contain sufficient particulars to indentify occasion out of which claim arose, so plaintiff could not rely on something other than notice to provide particulars. Application and factum were filed in support of Charter claim in criminal proceedings, entirely different purpose than putting Crown on notice of civil claim. Release did nothing more than provide release with respect to costs; while it left open possibility of other civil actions and plaintiff 's counsel at time may have indicated other actions were possible, it was entirely speculative what such actions would be. Plaintiff did not provide required notice so action dismissed. Sidhu v. Ontario (Attorney General) (Dec. 7, 2012, Ont. S.C.J., Gray J., File No. CV-07-03708CP) 223 A.C.W.S. (3d) 386. Building Liens ACTION No indication plaintiff wa foregoing discovery process Plaintiff asserted lien under Construction Lien Act (Ont.), for $18,353. Defendant counterclaimed for $298,299. Plaintiff filed trial record. Plaintiff 's motion for leave to examine defendant for discovery despite having filed trial record; amendment of pre-trial timetable; and site inspection. Plaintiff 's position trial record filed only to prevent expiry of lien under s. 37, and without abandoning right to examine for discovery. Defendant objected discoveries and site inspection unnecessary. Defendant's cross-motion for order representative of plaintiff attend examination for discovery; and order plaintiff pay costs of copying defendant's productions. Examinations permitted. No indication plaintiff was foregoing discovery process. Trial record filed only to maintain timely lien claim. Rule 48.04 of Rules of Civil Procedure (Ont.), not requiring denial of leave to initiate discoveries. Site inspection permitted. Not established that inspection unnecessary, unhelpful or prejudicial. Not clear that photographs provided by defendant were properly characterized as being "before" and "after" remedial work. No order for costs of production appropriate until documents firmly settled or ascertained. Timetable established. Eurodale Developments Inc. v. Rimgate Holdings Ltd. (Oct. 29, 2012, Ont. S.C.J., MacKenzie J., File No. CV-10-1977-00) 223 A.C.W.S. (3d) 333. LT

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