Law Times

Page 14 November 18, 2013 Law Times • CASELAW did not deal with disclosure of underlying agreements or portions thereof. Stamatopoulos v. Harris (Jul. 18, 2013, Ont. S.C.J., Carole J. Brown J., File No. 05-CV-283449 PD1) 231 A.C.W.S. (3d) 347. PLEADINGS Impugned sentence entirely divorced from underlying causes of action Motion by nurse for order striking out sentence from statement of claim as scandalous. Physician provided fertility services through clinic. Patient and her spouse attended clinic for fertility treatment. Nurse became primary contact person for patient and spouse at clinic. Spouse became intimately involved with nurse. Spouse disclosed relationship with nurse shortly after patient became pregnant. Patient suffered miscarriage. Patient commenced action against nurse, physician, and clinic for damages for, inter alia, breach of fiduciary duty. Motion granted. Sentence referring to nurse being married and having two children was scandalous, and was therefore struck out. Impugned sentence was entirely divorced from any underlying causes of action. Impugned sentence was clearly irrelevant and intended to add colour. Impugned sentence could not possibly advance claim one iota. Statement of claim already contained sufficient detail to define issue of whether fiduciary duty arose out of nurse-patient relationship. Marital and familial situation of nurse could not add anything of utility to landscape in which legal issue of fiduciary duty needed to be explored. Leung v. Shanks (Jul. 24, 2013, Ont. S.C.J., J.R. McCarthy J., File No. Newmarket CV-11107341-00) 231 A.C.W.S. (3d) 540. Conflict of Laws JURISDICTION Grave risk children would be put into intolerable situation if returned to Croatia Father applied under Hague Convention to have his two children, aged five and three, returned to Croatia. Father was born in Canada but had resided in Croatia for 31 years. Mother of children was of Croatian descent and was born in United States. She also previously lived in Canada for nine years while married to Canadian citizen. Parties met in Croatia and were married there on October 21, 2006. They resided there and their children were born in Croatia. Father argued that he was persuaded to go on vacation to North America and that during vacation it developed that mother wanted to settle in Ontario, but he never shared that intention. Mother asserted that they were both dissatisfied in Croatia and interested in relocating to North America. Purpose of trip was to search for opportunities in North America and they ultimately decided to become resident in Ontario. Application dismissed. Trial judge found that as of February 2012, parties shared common intention to reside, and were habitually resident, in Ontario. As such, Hague Convention was not applicable. In any event, trial judge was satisfied that there was grave risk that children would be put into intolerable situation if they were to return. Father had engaged in physical abuse of mother and oldest child, and just as significantly psychological abuse. Further, given small town family resided in while in Croatia and father's relationships with local officials, risks that existed could not be mitigated by recourse to social service agencies. Cacic v. Cacic (Jul. 16, 2013, Ont. S.C.J., Sproat J., File No. 6739/12) 231 A.C.W.S. (3d) 443. ONTARIO CRIMINAL DECISIONS Appeal FRESH EVIDENCE Son's proposed evidence relevant to issues of complainant's credibility Jury convicting accused of sexual assault following trial where only consent in issue. Assault allegedly taking place while complainant and accused on boat with accused's young son. Complainant testifying accused urged her to lie down with him after which he sexually assaulted her. Accused testifying complainant offered to lie down with him and initiated sexual contact. Complainant testifying she left boat hurriedly and while upset. Son available and able to testify at trial to version of events that contradicted complainant and corroborated accused. Son would have testified complainant was amiable while leaving boat. Accused instructing counsel not to call son as witness to protect best interests of son. Accused proffering evidence of son as fresh evidence on appeal. Fresh evidence admitted and appeal allowed. Son's proposed evidence was relevant to issues of complainant's credibility. While son's evidence contained some inconsistencies and discrepancies was reasonably capable of belief. Decision not to call son at trial not tactical but made to protect child's best interests. Would be contrary to ends of justice not to receive son's evidence as only evidence other than that of accused and complainant on only live issue. R. v. G. (P.) (Aug. 21, 2013, Ont. C.A., M. Rosenberg J.A., R.G. Juriansz J.A., and Gloria Epstein J.A., File No. CA C54825) 109 W.C.B. (2d) 7. SENTENCE APPEAL No in public interest to put roadblock in way of accused's professional career Appeal from sentence; application for conditional discharge. Accused pleaded guilty to unstated offence. Accused had unsuccessfully argued for condi- tional discharge, was sentenced to fine and to unstated period of probation. Accused was youthful offender, 20, when he committed offence. Sentencing judge found conditional discharge was in accused's best interest. Finding not challenged on appeal. Five years had passed since offence. Appeal allowed; accused conditionally discharged. New, positive, material before court was not before sentencing judge. Accused had agreed to compensate victim for his injuries, thus recognizing responsibility. Accused had complied with terms of his probation without incident, paid fines imposed and successfully completed two years of medical school. Not contrary to public interest to grant conditional discharge. Not in public interest to put roadblock in way of accused's professional career. Leave to appeal sentence granted, appeal allowed and sentence varied to discharge, conditional on payment to victim amount agreed to by accused. R. v. MacDonald (Apr. 25, 2013, Ont. C.A., Laskin J.A., Cronk J.A., and Hoy J.A., File No. CA C54616) 109 W.C.B. (2d) 16. Charter of Rights ENFORCEMENT OF RIGHTS Case not sufficiently serious or complex that representation by counsel essential to fair trial Accused charged with failure to stop for police, contrary to Highway Traffic Act (Ont.). Accused applied for stay of proceedings pending provision of funding for his defence. Crown indicated that, upon conviction, sentence involving incarceration would be sought. Accused was 62 years old and had grade 12 education. Accused was receiving employment insurance and obtained his food from food bank. Legal Aid refused accused's funding request and he had exhausted all appeals. Accused did not approach any of his siblings to borrow funds for his defence, as he had no prospect of paying them back. Accused received estimate of cost for defence from proposed counsel, but acknowledged that he did not approach any other lawyers or paralegals to determine whether he would be able to obtain representation at lower cost or on payment plan. Crown argued that accused's fair trial rights would not be breached in absence of representation by counsel. Application dismissed. Trial relating to charges faced by accused would be relatively brief, and issues discrete. Minimum sentence of 14 days upon conviction was far from most serious range of possible sentences of incarceration. Accused demonstrated understanding of nature of charges, was able to put forward his own version of underlying facts in understandable and coherent manner, and demonstrated ability to participate effectively in court proceeding. Despite possibility of Charter application and importance of www.lawtimesnews.com effective cross-examination to successful defence, case was not sufficiently serious or complex that representation by counsel was essential to fair trial. R. v. Rau (Sep. 9, 2013, Ont. S.C.J., D.A. Broad J., File No. CNJ Misc. 7836) 109 W.C.B. (2d) 113. Evidence CONFESSIONS AND ADMISSIONS Jury entitled to evidence of emotional state of accused Accused charged with second degree murder. Accused applied to introduce into evidence exculpatory audio and videotaped statement that he made to police immediately following his arrest and about 20 minutes after deceased was stabbed. Accused's defence was self-defence. Statements were not introduced as part of Crown's case but Crown intended to rely on them in cross-examination of accused. In Crown's case, evidence was adduced of accused's flight from scene of stabbing, which it sought to rely on as post-offence conduct consistent with guilt. Crown argued that accused's statement was not spontaneous, as it was made after accused had 20 minutes to think about events in circumstances where he would inevitably have expected to have been arrested. Application allowed. Issue was not length of time between events and making of statement, but rather probative value of statement. Statement had substantial probative value, as it was capable of rebutting or neutralizing evidence of post-offence conduct consistent with accused's guilt. Statement was relevant to accused's state of mind or emotional state, and was evidence of consistency capable of enhancing accused's credibility. Where evidence of emotional state and consistency of main Crown witness had been admitted, jury was entitled to similar evidence of emotional state and consistency of accused. It would have been unfair to leave jury with evidence of accused's flight from scene without providing them with evidence that he co-operated with police. R. v. Oram (Sep. 12, 2013, Ont. S.C.J., M. Forestell J., File No. CR12-40000-52100) 109 W.C.B. (2d) 51. Sentence ASSAULT Sentence not so long to prevent accused from rebuilding relationship with children upon release Sentencing of accused after he was convicted of robbery, use of imitation firearm, unlawful confinement of robbery victim JM and assault of JM with weapon. Accused was one of two men who invaded JM's home on November 8, 2010 and committed offences. Both men were armed with handguns and portions of offenders' faces were covered. JM pursued offenders' vehicle and he remembered enough of licence plate number to have car linked to accused. JM knew accused because he visited his home to buy and smoke marijuana. Accused was 30 years old and he was father of nine-year old son. At time of sentencing hearing his girlfriend was seven months pregnant. Accused had criminal record and as young offender he was charged with robbery, among other things. He was again convicted of robbery in 2001. His last conviction was for uttering threats in June 2007. He provided many reference letters from his employer and from others that attested to his positive contributions to community. It was hard to reconcile person who committed crimes for which he was being sentenced with person described in letters. Accused was sentenced to four years' imprisonment for each of robbery, unlawful confinement and assault with weapon charges, to be served concurrently. For use of imitation firearm he was sentenced to one year of imprisonment, to be served consecutive to other offences. Global sentence was five years and it was at low end of range for sentences for crimes of this nature. Sentence provided for significant amount of penitentiary time to satisfy principles of denunciation and deterrence. It was also not so long to prevent accused from rebuilding his relationship with his children upon his release. R. v. Oswald (Sep. 12, 2013, Ont. S.C.J., Bielby J., File No. CRIMJ(P) 1540/11) 109 W.C.B. (2d) 90. Trial CONDUCT OF TRIAL Out-of-court communication to judge of unproven information irrelevant to issues in trial Application for mistrial. Accused charged with possession of three prohibited firearms and ammunition, possession of heroin and cocaine for purposes of trafficking, possession of proceeds of crime and breach of probation. Early in trial, before jury empanelled, court security had advised judge that weapon had been found previous day in accused's possession in courthouse cells. Judge advised counsel that he had no other information, that it had no bearing on anything other than court security, he did not expect submissions, but felt counsel should be aware. Defence counsel advised she wished to consider issue of whether out-of-court communication of security issue could give rise to reasonable apprehension of bias or could be prejudicial to accused. Next day she brought application for mistrial. Counsel for accused submitted communication should have been made in open court and in presence of accused, but acknowledged there was no issue of actual bias. Application dismissed. Communication related to collateral matter, albeit one that did not put accused in

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