Law Times

Law Times • September 30, 2013 any benefit to appellant. There was no evidence to support board's conclusion that without treatment, appellant's psychosis would continue unabated. Board's finding of incapacity was unreasonable. Appellant had contradicted respondent on almost every substantive issue and it was unclear how any of appellant's evidence could have corroborated respondent's evidence. Anten v. Bhalerao (Jul. 29, 2013, Ont. C.A., Laskin J.A., Rosenberg J.A., and Tulloch J.A., File No. CA C55186) Decision at 211 A.C.W.S. (3d) 1001 was reversed. 229 A.C.W.S. (3d) 870. ONTARIO CRIMINAL DECISIONS Charter of Rights ARIBTRARY DETENTION OR IMPRISONMENT Accused had no extra right to privacy being passenger in vehicle Accused was passenger in vehicle that was stopped by police pursuant to drug investigation and sought to exclude drugs found in vehicle and in satchel he was carrying. Police used confidential information, recorded conversations, text messages and surveillance evidence that accused and others were in possession of crystal methamphetamine, heroin and other drugs for purpose of trafficking them to another person. Evidence admissible. Accused had no extra right to privacy being passenger in vehicle. Police had ample evidence to make arrest and search of vehicle and satchel was lawful search pursuant to arrest. Court found as well that even if Charter breach was found it would not have excluded evidence considering all evidence that police had against accused breach of his rights would not be serious. Crystal methamphetamine was addictive drug, having corrosive effect on community. Police investigation was very professional and competent and public rightly expects to be protected by police and courts. R. v. Panagos (Jul. 18, 2013, Ont. S.C.J., P.B. Hambly J., File No. CJ 7473) 108 W.C.B. (2d) 122. Disclosure GENERAL Failure to produce indictment may prevent accused from obtaining benefits in U.S. prosecution Accused was to be extradited for money laundering and international drug trafficking that was alleged to have taken place nine years ago. Accused sought order requiring Attorney General of Canada provide her with U.S. indictment that charges her with those criminal offences. Minister has indictment in his possession but to date has refused that request and Attorney General has vigorously sought to defeat this application. Ap- Page 19 CASELAW plication allowed. Failure to produce indictment at this time may prevent her from obtaining potential benefits in U.S. prosecution against her from early and informed exercise of those statutory rights. It would deny her rights to fundamental justice under s. 7 of Charter and in that way cause her rights to fair extradition proceeding in Canada in all of its potential aspects and particulars to be violated, including in particular right to exercise ss. 70-72 rights to consent to committal, or surrender, or to waive extradition on informed basis. Court concluded that it would frustrate Parliament's intent to provide incomplete disclosure to expedite extradition process to put persons sought in position where they may not be able to make meaningful and informed decisions to consent to committal, to consent to surrender, or to waive extradition under ss. 70 to 72 of Extradition Act (Can.). United States of America v. Nguyen (Jul. 19, 2013, Ont. S.C.J., Michael G. Quigley J., File No. Toronto E 17/13) 108 W.C.B. (2d) 132. Mental Illness ADVISORY REVIEW BOARD Condition that permitted community living in coming year was inappropriate Appeal by patient from disposition of Ontario Review Board which ordered that she was to be detained in secure forensic unit at mental health hospital until her condition improved to extent that she could be transferred to general forensic unit. Appellant suffered from several mental disorders and her treatment course was complicated by her non-compliance with outpatient care and medication. Appellant continued to pose significant risk to public safety. In months before review hearing appellant experienced frequent, rapid and unpredictable declines into aggressive, manic behaviour, which rendered her threat to public. During her episodes of acute mania appellant became psychotic and she behaved in impulsive, aggressive and sometimes violent ways. Appellant's treatment team no longer regarded community living as being appropriate for her. Appeal dismissed. It was on basis of this evidence that board concluded that condition that permitted community living in coming year was inappropriate. Board's disposition was reasonable and it was well within realm of its expertise. It also considered mandatory requirements of s. 672.54 of Criminal Code. Board in its hybrid order considered both appellant's liberty interests and least onerous and restrictive disposition possible in light of appellant's recent and serious deterioration. Smith, Re (Jul. 3, 2013, Ont. C.A., J.C. MacPherson J.A., Paul Rouleau J.A., and P. Lauwers J.A., File No. CA C56607) 108 W.C.B. (2d) 134. Motor Vehicles DANGEROUS DRIVING Even if accused crossed line, that may not have met standard of marked departure Accused charged with dangerous driving causing death and three counts of dangerous driving causing bodily harm. Crown alleged accused was distracted by receiving or sending text, at which point his car drifted into northbound lane striking deceased with front driver's side of his vehicle. He continued in oncoming lane while other motorcycles in deceased's group tried to avoid him and other riders. Deceased died from his injuries. Other injured motorcyclists suffered from serious road rash, broken limbs and torn ligaments. Some of injuries continued to affect day-to-day enjoyment of life of those victims. Defence alleged that accused was driving normally. Accused was not texting or using his phone, although he had it with him. Accused was neither fatigued nor impaired. Either as result of momentary inattention on part of accused or action on part of one of the riders, deceased's motorcycle came into contact with accused's vehicle. Various witnesses at scene testified to accused claiming to have been suffering mechanical or steering problems with his car that day. Witnesses in another sedan testified they saw one of bikers wobble in his own lane, crash on ground and start to spin. They recalled accident not being accused's fault. Most other witnesses saw accused's vehicle cross line before collision. Accused acquitted. Crown has not proven that accused drove in a manner that was dangerous and marked departure from standard of care of reasonable person in similar circumstances. Court accepted accused's evidence that in one brief moment, he was uncertain as to who crossed over line or who was in what lane. Court accepted that his utterances after fact with respect to his struts were his attempt to search for some understanding of why this accident occurred. Saying sorry to other witnesses was also natural reaction to tragic event, especially where accused was still questioning whether he was at fault. Even without frailties of eyewitness evidence, reasonable doubt was raised by 9-1-1 call made by independent witness, who said that sedan accused drove was not at fault and did not cross centre line. Physical evidence left reasonable doubt as to where accused's vehicle was at time of collision. Even if accused did cross line, that may not have met standard of marked departure. Evidence did not support that accused was looking down or to side for any purpose that would come close to marked departure standard. R. v. Rogers (Mar. 7, 2013, Ont. www.lawtimesnews.com S.C.J., C.A. Gilmore J., File No. Newmarket CR-11-000001570000) 108 W.C.B. (2d) 135. Prisons INMATES' RIGHTS Transfer that resulted in deprivation of prisoner's liberty was lawful Prisoner was serving life sentence for first degree murder, with no parole eligibility for 25 years, following bank robbery wherein he shot and killed victim without provocation. Prisoner applied for order granting relief in nature of writ of habeas corpus with certiorari in aid, quashing decision of warden which increased his security level and caused his involuntary transfer to maximum security institution from medium security institution. Inmate was assaulted in prison but refused to identify his attackers. Prisoner and another inmate were segregated as suspects immediately after incident. Investigator formed belief that prisoner both orchestrated and participated in assault. As result, he was transferred to maximum security facility. Information which was provided to prisoner included date and location of assault, fact that there were two aggressors, and that other aggressor had confessed to his own involvement in assault and indicated that prisoner had both orchestrated and participated in assault. Prisoner argued that warden's decisions to increase his security classification and subject him to involuntary transfer were made without due regard for procedural fairness and without due regard for his rights. Prisoner argued that, as result of not having been provided with sufficient information to allow him to respond to allegations, he was effectively denied procedural fairness at both grievance stage and rebuttal stage of administrative process. Application dismissed. Investigator had reasonable and serious belief that prisoner participated in assault. Prisoner was provided with gist of information relied upon by warden sufficient for him to know case that he had to meet, which was augmented by information that was reasonably within his personal knowledge, such as identity of complainant, approximate time of alleged assault, and identity of other person believed to have been involved in assault. Prisoner was dangerous person when he entered federal correctional system, and had been difficult to manage within federal institutions. Prisoner had six convictions for disciplinary offences in year leading up to assault. Court rejected prisoner's contention that he had always contributed to maintain good, amicable, and respectful relations with inmates and staff. There was nothing to imply that warden took any unreasonable action in respect of prisoner's reclassification. Transfer that resulted in deprivation of prisoner's liberty was lawful. Rowe v. Canada (Attorney General) (Jul. 18, 2013, Ont. S.C.J., Brian Abrams J., File No. CR12-536-MO) 108 W.C.B. (2d) 143. Sexual Offences SEXUAL CONDUCT OF COMPLAINANT Accused permitted to ask questions directed at sexual activity in hours leading to alleged assault Application by accused to crossexamine complainant, who claimed that accused, who was her taxi cab driver, sexually assaulted her. Complainant was very intoxicated when she left party and she passed out on back seat of cab. She claimed she awoke to find that cab was parked and that two of accused's fingers were inside her vagina. Next day complainant underwent medical examination. It revealed three tears immediately outside and inside her vagina and redness in her cervix. Nurse who examined complainant advised that her injuries occurred less than 48 hours before examination. DNA analysis on sample cut from crotch area of leggings that complainant wore at time of assault detected minor amount of DNA from at least three male individuals on inside of crotch area and upper leg area of leggings. Accused wanted to cross-examine complainant about other possible causes of her injuries that might raise doubt as to whether alleged assault was cause of injuries and hence whether assault occurred at all. If assault occurred it may have been perpetrated by other men at party complainant attended. Application allowed in part. Accused was permitted to ask questions directed at whether or not complainant engaged in other specific instances of sexual activity in hours leading up to alleged assault. He was not permitted to fully explore why complainant had DNA from three men on her leggings. Accused's theory was that complainant was so intoxicated at party she may have been assaulted or engaged in sexual activity that could have caused her injuries and yet not remember it. Accused was also not allowed to explore whether complainant's relationship with boyfriend was monogamous. These questions were improper because any probative value from them was outweighed by prejudice to complainant. Asking complainant about her sexual activity for two-month period prior to alleged assault was serious invasion of her privacy. Accused was allowed to ask complainant whether anything happened in 48-hour period before she was examined by nurse that could explain presence of DNA from three males on inside crotch of her tights. R. v. Nkemka (Apr. 10, 2013, Ont. S.C.J., Spies J., File No. 12-70000546-0000) 108 W.C.B. (2d) 175. LT

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