Law Times

July 22, 2013

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Law Times • July 22, 2013 Harvey v. Elgin Condominium Corp. No. 3 (Mar. 4, 2013, Ont. S.C.J., I.F. Leach J., File No. 5007/10) 226 A.C.W.S. (3d) 1184. LAND TITLES Respondent was in anticipatory breach and agreement was at end Application to determine validity of caution registered against property. Applicant agreed to sell property to respondent. Closing date was extended five times with respondent paying further deposit each time. On fifth extension, applicant indicated that if deposit was not paid by set date, agreement would be at an end and property would be re-listed for sale. Respondent did not pay further deposit. Applicant agreed to sell property to third party. Respondent registered caution on title to property on grounds that he was still entitled to close property based on oral agreement. Application allowed. There was documented extension agreement between parties indicating that agreement was at end if further deposit was not paid by set date. When he failed to pay further deposit, respondent was in anticipatory breach and agreement of purchase and sale was at end. Caution was to be deleted from title. Pereira v. Quatsch (Feb. 21, 2013, Ont. S.C.J., D.A. Broad J., File No. 14-2013) 226 A.C.W.S. (3d) 1187. ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Sentence imposed entirely fit after largest GHB seizure in Canadian history Accused applied for leave to appeal sentence of five years' imprisonment, after one year' credit for pre-trial custody and stringent conditions of pre-trial release, imposed after he was convicted of conspiracy to traffic in 4-Hydroxybutanoic acid ("GHB"). Accused submitted that trial judge erred by treating as aggravating factor on sentencing fact that GHB is commonly used to put into drinks of unsuspecting third parties, mainly women, so as to render them unable to effectively resist others who seek to take sexual advantage of them. Leave to appeal granted; appeal dismissed. In facilitating payment for GHB, accused was willing participant in conspiracy to utilize GHB in whatever manner might follow, including its potential use as date-rape drug. Quantity of GHB seized was enormous: approximately 600 litres; at time of trial, it was largest GHB seizure in Canadian history. Trial judge made no error in his sentencing analysis and sentence imposed was entirely fit. R. v. Sansalone (Apr. 10, 2013, Ont. C.A., Janet Simmons J.A., E.A. Cronk J.A., and E.E. Gillese Page 15 CASELAW J.A., File No. CA C54341) 106 W.C.B. (2d) 483. Breathalyzer REFUSAL TO PROVIDE SAMPLE No innocent explanation for inability to provide breath sample Accused appealed his conviction for refusing to provide breath sample. Accused was driving home after playing golf and attending bar, his car struck two vehicles that were stopped in front of him at red light. Police investigated and charged him with impaired operation, dangerous operation and failing to provide breath sample. He was convicted of only refusal count. Occupants of other two cars testified accused appeared intoxicated. One conceded he could have been in shock. Officer believed accused's ability to drive was impaired by alcohol because his eyes were bloodshot and glassy, his speech was slow and slurred, he was somewhat unsteady on his feet, and he had surprising odour of alcohol on his breath; accused told officer he had been at tavern where he consumed non-alcoholic beer. Officers at detachment called paramedics out of medical concerns for accused. Accused became combative with paramedics and police. He refused to let paramedics treat him or check his blood sugar. While at hospital accused refused to allow any blood to be drawn. He also refused to provide urine sample when asked after he was finished with breath technician. Officer testified that as soon as breath demand was read, accused started to breathe very rapidly and started to yell that he was in intense pain. He then calmed down; when given opportunity to provide sample, he did not breathe into mouthpiece. Accused gave conflicting version of events to that of officer witness and insisted neck pain impeded his efforts to provide sample. Appeal dismissed. Trial judge found that in examination-inchief and in cross-examination, accused prevaricated continuously, was argumentative and, on at least one occasion, angry with Crown Counsel. It could not be suggested that record was devoid of any bases upon which trial judge could have reached that conclusion. Court was unable to see where trial judge conflated issues or reversed onus. There was evidence upon which trial judge could have convicted. Even factoring in unusual circumstances of case, court was not persuaded trial judge had to acquit. Trial judge finding that accused's sudden inability to breathe was inexplicable, did not put onus on accused. Since accused's evidence was denial that he deliberately quit breathing when given mouthpiece, there was no innocent explanation for inability to breath. Conclusion that there was no explanation was fair comment on record and not reversal of onus. R. v. Butler (Apr. 30, 2013, Ont. S.C.J., Durno J., File No. Orangeville 46/11) 106 W.C.B. (2d) 491. Charter of Rights ENFORCEMENT OF RIGHTS Trial judge erred in ordering trial counsel's removal from record partway through trial Accused was charged with one count of fraud over $5000. Accused applied for order pursuant to ss. 7 and 24(1) of Canadian Charter of Rights and Freedoms conditionally staying charges against him pending state providing funding for his defence. Accused allegedly drew benefits from WSIB to which he was not entitled over period from 1981 to 1998. Accused was previously tried and found guilty. During first trial, accused's application for state funding was dismissed and his trial counsel was removed from record. At continuation of first trial, accused's further attempt to obtain state funding was refused and he continued trial representing himself. Court of Appeal allowed accused's conviction appeal, holding that judge erred in ordering trial counsel's removal from record partway through trial, for what effectively amounted to non-payment of legal fees. Documentary disclosure which had already been provided consisted of 5000 pages of documents and on original trial there were 300 exhibits. Accused was 68 or 69 years old and suffered from range of health problems including high blood pressure, diabetes, pain from motor vehicle accident, and glaucoma. Accused's legal aid certificate for second trial had been cancelled, and he had exhausted all of his rights of appeal with respect to cancellation. Accused was not employed and his only sources of income were old-age security and guaranteed income supplement. Accused testified that he lost any businesses that he previously owned, and he had no savings or investments. Application allowed, conditional stay of proceedings granted. If accused was able to show, on balance of probabilities, that he was indigent and unable to privately retain counsel, there was no absolute rule requiring counsel to apply to be removed from record as first step before application for state funding could be made. It was not reasonable to require accused to forfeit insurance policy on his life providing for his burial costs, given his age and compromised health condition. Properties were no longer available to accused as resources that may be accessed to raise funds for his legal representation. Most important consideration was public interest in ensuring that accused was not required to embark on lengthy and complex trial without legal counsel to assist him. As it had already been demonstrated by his first trial, accused was not capable of representing himself adequately. Accused was indigent and not capable of paying for his own counsel, and fair trial was not possible without counsel. Any lack of financial prudence upon which Crown relied, should not, by itself, have resulted in refusal of remedy. R. v. Okafor (Apr. 10, 2013, Ont. S.C.J., D.A. Broad J., File No. CJ 4889) 106 W.C.B. (2d) 568. Evidence OPINION EVIDENCE Whether jury chose to accept expert's opinion evidence was for jury to decide Accused charged with possession of cocaine for purpose of trafficking. Crown sought to admit expert evidence regarding pricing and packaging of cocaine and behaviour of drug traffickers, including separating money from drugs, having multiple cell phones, and possessing large quantities of currency. Accused left residence and placed duffle bag containing cocaine in front seat of car and shopping bag containing $28,000 in cash in truck of car. Accused had three cell phones on his person when he was arrested and fourth cell phone on center console in vehicle. Expert had approximately 12 years' experience dealing with various drug investigations. Accused argued expert had lack of experience in cocaine investigations over one kilogram, and lack of experience regarding separation of drugs and money. Application allowed. Expert was qualified through his training and experience to give opinion evidence proffered. Accused's argument went to weight to be given to expert's evidence. Proposed evidence was relevant and would assist triers of fact in determining sole issue in case, which was whether accused knew that duffle bag contained cocaine. Proposed evidence dealt with what was common behaviour among drug traffickers, which was not common knowledge. There was no evidence that drug trafficking in cocaine involving quantities greater than one kilogram was any different than drug trafficking in cocaine involving smaller quantities. There was no evidence that drug trafficking in cocaine was any different than drug trafficking in other drugs. If jury concluded that expert's experience in large quantity cocaine investigations was limited and was significant, they would take that into account in determining weight to be given to his evidence. Whether jury chose to accept expert's opinion evidence on separation of money and drugs because of his limited number of investigations involving vehicles was for jury to decide. Expert's concession that other people may have multiple cell phones did not minimize relevance of his evidence that it was common for drug traffickers to use multiple cell phones at same time. Heart of expert's evidence was that cumulative effect of each of facts was consistent with drug trafficker, which added to relevance of his evidence. Expert could not provide opinion on whether he believed accused possessed cocaine for purpose of trafficking, as that would have implicitly suggested to jury that accused knew cocaine was in duffle bag, which was central issue in case. R. v. Brown (Apr. 22, 2013, Ont. S.C.J., Ricchetti J., File No. CrimJ (F) 09/3778) 106 W.C.B. (2d) 516. Robbery PROOF OF OFFENCE Trial judge's analysis did not consider other possible combinations of suspects Accused individuals appealed convictions for robbery. Two men, one taller than other, armed with gun and wearing black hoodies and disguises, robbed restaurant and drove off in van. Police had been watching van that evening and had seen it make stops, including one at accused's residence where it had picked up people. Police followed van after robbery, but lost it only to find it again minutes later parked two kilometres away. Accused individuals were close by and walking away from van when they were arrested. Accused individuals were wearing shorts and t-shirts, and no guns or bandanas were found. Accused's thumbprint was on exterior of van and his cell phone was in van. Black hoodie in van had third party's DNA on it, and DNA on two cups in van belonged to fourth person and female. There was significant height difference between third and fourth parties, as there was between accused individuals. Appeal allowed, verdicts set aside, acquittals entered. Trial judge could have inferred from evidence that accused individuals were occupants of van at time of robbery. That both or either of accused individuals robbed restaurant was not only rational inference from evidence, as there was evidence of other possible suspects. Evidence did not establish how many people were in van when it left scene of robbery, and DNA evidence suggested that there were other occupants. Other fingerprints were also found in van. Evidence established that it was possible for occupants of van to have already left scene before police arrived, as third person definitely known to be in van had already disappeared. Trial judge's analysis focused only on accused individuals as pair and on third and fourth parties as alternate pair, but did not consider other possible combinations. Slim identification evidence about relative heights and weights of robbers lost its force. That accused individuals, or one of them, entered restaurant and robbed it was not only rational inference from evidence. R. v. Bouzied (Apr. 17, 2013, Ont. C.A., R.G. Juriansz J.A., J. MacFarland J.A., and S.E. Pepall J.A., File No. CA C55072, C55583) 106 W.C.B. (2d) 538. LT

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