Law Times

Page 16 September 16, 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. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Person who retained paralegal not now entitled to effective assistance of counsel Appeal by accused from his conviction for two counts of assault against his wife. Accused retained licensed paralegal to represent him at trial. Accused was found not to be credible while his wife was. In his reasons for convicting accused and throughout trial, trial judge was critical of paralegal's representation of accused. Accused sought new trial because he claimed he did not receive effective representation at trial. Accused submitted that since Law Society of Upper Canada assumed regulation of paralegals, he was entitled to same representation as if he retained lawyer, or alternatively, to new standard that was middle ground in quality of representation between counsel and former test for agents that applied before Law Society assumed regulation. Appeal dismissed. Accused's submission was rejected. Person who retained paralegal was not now entitled to effective assistance of counsel. Despite Law Society's regulation of paralegals there remained clear distinction between representation that accused person was entitled to when he retained lawyer versus when he retained paralegal. Accused knew he did not retain lawyer, he knew paralegal had less legal training than lawyer, and he knew that paralegal would charge less than lawyer. Paralegal's level of representation was not increased by representations he made about his competency and his promises that accused would be acquitted. There was constitutional right to effective representation by counsel but there was no similar right when accused retained paralegal. Accused did not suffer miscarriage of justice and he was not prejudiced by paralegal's representation, even though there were points where he provided ineffective assistance at some points during trial. R. v. Bilinski (Jun. 14, 2013, Ont. S.C.J., Durno J., File No. 1247/11) 107 W.C.B. (2d) 432. Charter of Rights ENFORCEMENT OF RIGHTS No hint of defiance on officer's part, rather ignorance and inadvertence Accused appealed convictions for offences related to seizures of drugs and money. Officer swore in information to obtain ("ITO") search warrant that there was no Justice of the Peace available at time that telewarrant was obtained, but candidly admitted that he did not take any steps to ascertain truth of statement, nor did he know it to be true at time. Officer's statement turned out to have been true as matter of fact. This was officer's first ITO, he had not received training in drafting it, and he did not know statutory requirements for ITO or telewarrant. Draft ITO was reviewed by officer's supervisor for spelling and grammar only. Trial judge accepted officer's evidence that it made sense to carry out warrant immediately since accused was in custody and there was no Justice of the Peace available until next day. Trial judge concluded that there had been no breach of Charter and that request for telewarrant was reasonable. Accused argued that trial judge erred in failing to exclude evidence, as ITO was insufficient and false, and that execution of search warrant constituted unreasonable search and seizure contrary to s. 8 Charter rights. Appeal dismissed. Officer's approach to his task was somewhat casual, and his lack of knowledge and training was troubling. Context provided circumstantial guarantees that statement that Justice of the Peace was not available was true in fact. There was nothing in context to suggest to officer that statement might not be true, as it was later in evening. Assuming without deciding that accused's argument had merit, evidence would not have been excluded under s. 24(2) of Charter in any event. Had officer made simple inquiry about availability of Justice of the Peace, he would have been assured that none was available and that telewarrant was in fact necessary. Search would have been inevitable. There was no hint of defiance on officer's part, rather it was instance of ignorance and inadvertence. Bulk of drugs were found in stash house, in which accused's expectation of privacy would not have been high. Evidence of drugs and money obtained as result of execution of telewarrant was highly reliable. There was no Charter reason to exclude evidence obtained on execution of telewarrant. R. v. Lacelle (Jun. 12, 2013, Ont. C.A., R.A. Blair J.A., Alexandra Hoy J.A., and P. Lauwers J.A., File No. CA C54433) 107 These cases may be found online in BestCase and other electronic resources from www.carswell.com. To subscribe, please call 1-800-387-5164. W.C.B. (2d) 455. SEARCH AND SEIZURE Accused took inadequate steps to ensure her privacy in public place Application by accused to exclude evidence against her because her privacy rights under ss. 7 and 8 of Canadian Charter of Rights and Freedoms were violated. Accused was charged with importing four kilograms of cocaine from St. Lucia. Canadian Border Services Agency ("CBSA") was informed that accused would be bringing in drugs and they placed her under surveillance. Evidence accused sought to exclude was cell phone conversation she had while she waited for her luggage. Accused spoke in low voice but CBSA plainclothes officer who stood near her overheard conversation. She was upset because her red suitcase had green ribbon on it and she was directed to proceed to secondary inspection. Application dismissed. Accused took inadequate steps to ensure her privacy in public place. No privacy interests were involved and accused did not have reasonable expectation of privacy. By her conduct she lost privacy she wanted. R. v. Levy (Jun. 24, 2013, Ont. S.C.J., Wein J., File No. 1502/11) 107 W.C.B. (2d) 456. argued that he no longer had confidence in Crown's ability to provide full disclosure. Application dismissed. Accused did not prove any prejudice or negative impact on ability to make full answer and defence. There was no evidence that police practices regarding disclosure in this case were oppressive or that they could have been characterized as abuse of process. There was no violation of s. 7 of Charter arising from late disclosure. There was no evidence that information relating to alleged criminal activities of third party existed or that police on this investigation could find it. Officers were not aware of information to obtain in unrelated case naming third party as drug trafficker and had no way of searching for such information without further particulars. Lack of response to accused's request for unspecified information to obtains was not in itself in any way infringement of accused's s. 7 Charter rights, nor did it add weight to lack of disclosure issue to show systemic problem with disclosure and police bias. R. v. Reese (Jun. 5, 2013, Ont. S.C.J., P.C. Hennessy J., File No. 001/12) 107 W.C.B. (2d) 459. FEDERAL COURT Courts Civil Procedure ABUSE OF PROCESS No evidence that police practices regarding disclosure were oppressive Accused charged with first degree murder. Accused applied for stay of proceedings, alleging that negligent disclosure practices and disclosure refusals demonstrated bad faith and constitute abuse of practice contrary to his s. 7 rights under Canadian Charter of Rights and Freedoms. When Crown counsel was reviewing electronic brief prepared by investigating officer, she noticed reference to notebook. Crown counsel searched e-brief for photos of contents of notebook, but they were not there. Crown counsel tracked down missing material over weekend and discovered that certain material had not been transmitted to Crown nor disclosed to defence. While subject material had been listed at least twice in initial disclosure provided to defence, no further disclosure was requested by defence. Ultimately there was mistrial and trial was now scheduled anew. Accused argued that contents of notebook were helpful to defence of third party suspect. Accused STANDING Connection of union with workers and industry tenuous at best Motion by Minister of Citizenship and Immigration to strike out application by applicant union USW for leave and judicial review of decision or decisions of officer or officers of Human Resources and Skills Development Canada, to issue Labour Market Opinions ("LMO") under s. 203 of Immigration and Refugee Protection Regulations (Can.), allegedly determining that offers of employment by Royal Bank of Canada ("RBC"), and entities known as IGate, to unknown number of workers from India to work in regulatory and financial applications in Toronto, Ontario, would likely result in neutral or positive effect on labour market in Canada. Minister brought motion to strike out application on ground applicant lacked standing to bring application. Applicant was not person directly affected by LMO and did not represent any workers at RBC. Nature of standing asserted by applicant was public interest standing. Motion granted. While application raised serious issue no constitutional www.lawtimesnews.com issues or challenges to underlying legislation were raised. Connection of applicant union with workers and industry at issue was tenuous, at best. Issue was judicial review of single LMO, not broad-ranging enquiry into administration of foreign workers programme. Applying "purposive" approach, even in liberal and generous manner, with respect to matters that were to be judicially determined, interest of applicant union was too remote. Court declined in these circumstances to exercise discretion and grant applicant union public interest standing. USW v. Canada (Minister of Citizenship and Immigration) (May. 13, 2013, F.C., Roger T. Hughes J., File No. IMM-2755-13) 228 A.C.W.S. (3d) 668. Human Rights Legislation DISCRIMINATION Investigator did not consider whether withholding stimulants was reasonable Applicant was federal inmate who suffered from attention deficit/hyperactivity disorder. Applicant made complaint of failure to accommodate applicant's disability. Commission decided not to refer applicant's complaint to tribunal. Doctor was not interviewed. Application for judicial review was allowed. Report was inadequate. Recommendation to commission that complaint not be referred to tribunal was flawed. Decision did not meet requirements of procedural fairness. Investigator was unaware of answers to questions. Investigator believed incorrectly that applicant would take nothing but Ritalin. Investigator did not consider whether withholding stimulants was reasonable given policies or practices, which would have allowed medical staff to administer them without risk they would be diverted to other inmates. Brazeau v. Canada (Attorney General) (May. 23, 2013, F.C., Sandra J. Simpson J., File No. T-1318-12) 228 A.C.W.S. (3d) 795. Immigration REFUGEE STATUS Obvious that applicant not rational throughout course of hearing Application for judicial review of denial of refugee claim. Applicant was citizen of Pakistan who filed refugee claim based on fear of persecution from known and unknown individuals. Refugee Protection Division ("RPD") subsequently received application for procedural accommodation of applicant as

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