Law Times

Law Times • August 5, 2013 ONTARIO CRIMINAL CASES Appeal GROUNDS Trial counsel failed to follow accused's instructions that he wanted to testify Application to introduce fresh evidence and appeal from conviction. Accused convicted of possession of weapon for dangerous purpose and aggravated assault following road rage incident. He was sentenced to 90 days' incarceration, to be served intermittently, plus three years' probation. Accused appealed from his convictions on ground of ineffective assistance of counsel. He argued trial counsel failed to follow his instructions that he wanted to testify. Application to introduce fresh evidence granted, appeal allowed and new trial ordered. Record of trial proceedings and fresh evidence filed by accused indicated that despite repeated efforts by both accused and Crown, and direct orders of court, accused's trial counsel failed to respond to accused's allegations against him and failed to provide trial brief or any associated documents to accused or Crown. Throughout, accused instructed trial counsel that he wished to testify at trial. Had he been permitted to testify at trial, accused's testimony would have challenged complainant's credibility; challenged evidence of alleged eyewitness to assault; sought to corroborate other defence evidence led at trial; and cast some doubt on Crown's assertion that accused was not acting in self-defence. Accused required assistance of Tagalog interpreter at trial and did not understand some remarks by his trial counsel and trial judge. After accused's trial, his trial counsel was disbarred by Law Society of Upper Canada based in part on complaints from other clients that he failed to obtain or follow their instructions. In absence of some explanation or response from accused's trial counsel, accused's claim that he instructed his counsel that he wished to testify and was prevented from doing stood uncontradicted. R. v. Eroma (Mar. 28, 2013, Ont. C.A., J. Simmons J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C52330) 106 W.C.B. (2d) 684. SENTENCE APPEAL Judge engaged in evidence gathering that only supported one view Appeal by Crown from sentence imposed on accused after she pleaded guilty to impaired driving and to driving with blood alcohol level above legal limit. Crown sought to file notice of application for increased penalty because accused had previous conviction for impaired driving. Sentencing judge, on her own volition, gathered transcripts from other guilty pleas in im- Page 15 CASELAW paired driving cases and, based on those decisions, she refused to accept notice. Accused was fined $1,800, she was subject to two years' probation and twoyear driving prohibition was also imposed. Fine was paid. Appeal allowed. Accused was sentenced to 30 days in custody and Crown was to repay fine within 30 days. Sentence was based upon errors in principle and it was demonstrably unfit. Judge relied upon case law for proposition that it was open to her to consider reasonableness of Crown's decision to file notice. In doing so she erred in principle. Court of Appeal made it clear that trial judge could review prosecutor's exercise of discretion to determine if decision to prove notice offended principle of fundamental justice and violated s. 7 of Canadian Charter of Rights and Freedoms or was abuse of process. That analysis did not engage review of reasonableness of prosecutor's decision. Judge also erred in principle when she decided to engage in fact finding exercise by gathering transcripts and by relying upon that information. This was not situation of sentencing judge not being satisfied that she had sufficient evidence and directing that witnesses be called to bridge that evidentiary gap. Such conduct was permissible. Judge went beyond accepted practice of conducting legal research and she engaged in evidence gathering, such evidence only supported one view. That conduct was impermissible. Moreover, her research was unreliable and misleading. Crown's decision to prove notice did not violate s. 7 and it was not abuse of process. Sentence imposed was demonstrably unfit as it failed to impose mandatory minimum sentence of 30 days' incarceration. R. v. Neumann (May. 29, 2013, Ont. S.C.J., Hourigan J., File No. CR129/11) 106 W.C.B. (2d) 697. Breathalyzer PROOF OF BLOODALCOHOL LEVEL Accused did not take opportunity of adjournments to retain expert to give evidence Accused appealed his convictions for impaired driving and driving over .08 (impaired conviction conditionally stayed). Accused testified to having only drank two beers, and that just before driving he had used asthma medication that was conceded by Crown to contain 34% dehydrated alcohol. Accused submitted that video recording of second breath test, which he claimed would have shown he was sober, was intentionally destroyed. Accused submitted that trial judge erred by failing to find that lack of yearly maintenance established that intoxilyzer was operating improperly. Appeal dismissed. Accused did not take opportunities of adjournments made for that purpose to retain expert to give evidence on his theory asthma medication affected readings. There was no indication either way which party, if any, would be assisted by lost videotape of second breath test, if it had been available. Trial judge made it clear to accused that expert was required: effects of Primatene Mist were not so notoriously known that reasonable person could not dispute it or that it was capable of immediate and accurate demonstration by resorting to readily accessible resources of indisputable accuracy. Qualified expert referred to his manual and indicated that although preventative maintenance inspection should be performed, absence of such inspection did not mean that instrument was either improperly serviced, or that it could not be relied upon to produce accurate and reliable readings of individual's blood alcohol concentration. He was satisfied that instrument was operating properly and was suitable for use. His opinion was corroborated by two exhibits which indicated that appropriate testing was done. R. v. Bajwa (May. 6, 2013, Ont. S.C.J., Fragomeni J., File No. SCA(P) 1691/12) 106 W.C.B. (2d) 743. Charter of Rights SEARCH AND SEIZURE Telewarrant sufficient to authorize subsequent search of contents of phone one year after seizure Application by two accused, who were husband and wife and who were charged with importation of heroin, conspiracy to import heroin and possession of heroin for purposes of trafficking, to exclude evidence obtained from search of their home in Ajax, because their rights under s. 8 of Canadian Charter of Rights and Freedoms were violated. On April 26, 2011 authorities in England intercepted package that contained 398 grams of heroin that was on its way to Toronto. Controlled delivery was conducted on May 9, 2011 pursuant to general warrant that was issued on May 4. Package was accepted by occupant of home in Toronto and occupant, accompanied by woman and child, met one of accused in strip mall and placed package in back seat of accused's car. Three adults were arrested and occupant and woman were released. Police applied for telewarrant on May 9 and obtained it and home was searched that evening. Wife was in house when search was conducted. Police discovered heroin and several cell phones. Text messages from one of phones was not retrieved until October 17, 2012. Application dismissed. Section 8 was not violated. There were reasonable grounds for issuance of telewarrant as set out in information to obtain after irrelevant or offensive information was excised from it and there was sufficient evidence from which issuing judge could www.lawtimesnews.com reasonably infer that search of premises would reveal evidence of criminal activity that involved husband. It was not necessary to obtain second warrant to search contents of phone. Telewarrant was worded to require entry into premises within certain timeframe and thereafter to search. Only obligation was for police to enter premises within timeframe indicated in telewarrant. They could continue on premises for as long as search might take and they could continue search of items seized at any time outside of time specified in telewarrant. It was reasonable to expect that phone contained evidence related to importation because it corresponded with telephone number that was on intercepted package. Telewarrant was therefore sufficient to authorize subsequent search of contents of phone for evidence related to offence. Validity of search was not affected by fact that phone was only examined one year after it was seized. R. v. Akintunde (Apr. 30, 2013, Ont. S.C.J., K. van Rensburg J., File No. 1469/11) 106 W.C.B. (2d) 716. Costs GENERAL Mortgagee does not have unfettered right to recoup all of its costs Credit union brought motion to vary restraining order regarding property. It claimed it was entitled to costs for legal fees, appraisals and related matters. Credit Union had entered into agreement of purchase and sale to sell subject property under power of sale provisions contained in its charge, to real estate holding corporation. Developer who owned property opposed sale. Property had registered against it ongoing Restraint Order made pursuant Controlled Drugs and Substances Act (Can.) because of grow operation activity. There was hearing being conducted as to whether subject property or proceeds if sold, ought to be forfeited to Crown against interest of registered owner. There were two prior applications, one brought by real estate credit union, second brought by land developer (registered owner), which were denied on grounds it was not yet clear that those parties were innocent third parties to grow op offences. Unlike in prior applications, Crown did not oppose sale subject certain conditions it wished to see in ruling. Position that Crown took would have enabled credit union to sell property under power of sale in accordance with its Agreement of Purchase and Sale, remit all of net proceeds as defined by Restraint Order to Crown, with Crown remitting back to credit union amount owing to it for principal, interest and costs. Developer now opposed same sale it had earlier sought on basis it had received higher offer and that it and real estate holding corporation had incurred significant le- gal costs because of proceedings. Court ordered that upon receipt of funds as result of power of sale, Crown was to remit back to credit union full amount owing for principal and interest, subject to Crown's policies and procedures. Crown directed to hold balance of funds, including those identified costs owing to credit union, until there had been determination by Court of Justice and all appeal rights had been exhausted. There was no evidence properly before court that land developer had better offer; details of deal were not contained in affidavit submitted by shareholder and director of land developer. Further, offer was subject to terms and conditions which created uncertainty about whether conditions could be fulfilled. Mortgagee does not have unfettered right to recoup all of its costs without having to account to its mortgagor, and that process was best dealt with by assessment under Rule 58. It would have been academic exercise to make ruling on quantum of costs in abstract. R. v. FirstOntario Credit Union Ltd. (Mar. 15, 2013, Ont. S.C.J., G.M. Mulligan J., File No. Newmarket 12-0848) 106 W.C.B. (2d) 749. Courts JURISDICTION Reliance on true copy of ITO consistent with common sense Corporate accused appealed convictions for failing to inspect and examine at regular intervals parts and functions of elevating device. Failing to repair or replace worn or defective components of elevating device in order to prevent device from becoming unsafe for operation. Failing to ensure that elevating device was in safe operating condition. Failing to maintain log book that contained up-to-date data, and causing or permitting elevating device to be operated in unsafe condition. Charges resulted from elevator failure which injured five persons. Accused was elevator maintenance contractor at location and was charged by Technical Standards and Safety Authority ("TSSA"). Accused submitted lower court did not have jurisdiction over offences alleged in ITO because original ITO was, and remained, lost. TSSA responded that duplicate ITO was also sworn on same day and kept by TSSA. TSSA relied on duplicate ITO, as original ITO could not be found. Judge ruled that reliance on true copy of ITO was consistent with common sense and would not cause any prejudice to accused. Appeal dismissed. Court agreed with TSSA. Lower court had jurisdiction to deal with offences. If justice erred in law as alleged no substantial wrong or miscarriage of justice occurred. R. v. Fujitec Canada Inc. (Jan. 22, 2013, Ont. S.C.J., Pollak J., File No. CV-10-408344) Decision at 98 W.C.B. (2d) 64 was affirmed. 106 W.C.B. (2d) 751. LT

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