Law Times

Law Times • December 2, 2013 that husband and accused were contemplating separation with husband moving to his parents' home. Police became suspicious of accused initially because she stated to them that she did not have personal phone when they knew she had her own cell phone. In husband's gun locker police found tape of recorded conversation between accused and husband with husband grilling her as to where money had gone and journal indicating husband suspected accused of having affair: at this point police put accused into suspect category in their investigation. During one of many subsequent conversations with accused, officer denied that accused was prime suspect: in retrospect, officer agreed accused was not treated fairly. Statements voluntary and admissible. In impugned statements, police did not ask detailed questions and it was accused who drove most narrative. Notations officers relied on were attempts to record events that were not recorded in formal, taped portion of interview. Officer's lie was desperate effort to keep accused on board, not something of magnitude that would cause jurist to say that communications with accused were anything other than voluntary: lie did not stop accused in complaining to one officer that another officer involved had held up her husband's death certificate. Accused was strong willed individual, not intimidated by officialdom, nor hesitant to criticize police actions. R. v. Figliola (Jun. 15, 2012, Ont. S.C.J., Whitten J., File No. J-05-62) 109 W.C.B. (2d) 284. Mental Illness ADVISORY REVIEW BOARD Reasonable to accept substance abuse would lead to deterioration of accused's mental stability Accused had been found not criminally responsible by reason of mental illness on charges of criminal harassment and engaging in threatening conduct but had been subjected to disposition by board. Accused appealed board's imposition of term requiring he be drug tested. Appeal dismissed. It was reasonable for board to accept doctor's opinion evidence that substance abuse would lead to deterioration of accused's mental stability and return to conduct like index offences. Doctor had been accused's treating physician for some time and that provided doctor with ample basis to reach that conclusion. Kyvrikoseos, Re (Oct. 3, 2013, Ont. C.A., Goudge J.A., Cronk J.A., and Gillese J.A., File No. CA C56708) 109 W.C.B. (2d) 291. GENERAL During testimony accused demonstrated seriously disordered thought processes Accused appealed finding that he was not criminally responsible ("NCR") for charges of assault and threatening death. Accused screamed various profanities at bus driver and spat on him numerous times. Trial judge found Page 15 CASELAW that accused was guilty of two offences with which he was charged, and made assessment order pursuant to ss. 672.11(b) and 672.12(3)(b) of Criminal Code, at Crown's request. Accused was 38 years old at time of incident. Assessment report revealed that accused had interactions with psychiatrists in past, dating back to 2004, and had previously exhibited auditory and visual hallucinations, as well as delusional thinking. Accused had been diagnosed with schizophrenia. Report concluded that accused was fit to stand trial, and that his cognitive processes at time of incident were disorganized to such extent that he would likely have been unable to appreciate nature and quality of his actions. At hearing, accused admitted that he spat on bus driver, that he knew that it was wrong, and that he did so because he was angry. Accused indicated that he pleaded not guilty because he wanted videotape played in court so that everyone could see that driver closed bus door on his arm and tried to drive away. Trial judge found that accused was NCR. Accused argued that trial judge erred in finding that it had been established on balance of probabilities that, when he spat upon and threatened bus driver, he was incapable of knowing that his acts were wrong. Accused argued that NCR verdict was unreasonable and unsupported by evidence. Appeal dismissed. During his testimony, accused demonstrated seriously disordered thought processes, endorsing various delusions and ideas that were observed during assessment. Trial judge accepted doctor's explanation for failing to make specific inquiry of accused about his understanding of wrongfulness of his action, as she was entitled to do. Trial judge was not required to accept accused's evidence, and she explained why she rejected it. Video dramatically confirmed doctor's opinion and trial judge's conclusions. Trial judge made no errors in how she addressed NCR issue, and her findings and conclusions were amply supported by totality of evidence. R. v. Ellis (Oct. 1, 2013, Ont. S.C.J., Trotter J., File No. 146/12) 109 W.C.B. (2d) 292. Sentence SEXUAL OFFENCES Trial judge failed to provide reasons for departure from suggested sentence range Accused appealed sentence of six years imprisonment, in addition to 15.5 months credit for time spent in pre-sentence custody, for threatening death, assault, sexual assault and breach of probation. Appeal allowed, sentence of three years and eight and one half months imprisonment substituted. Trial judge made several errors in principle. Trial judge exceeded sentence sought by Crown by more than two years without giving parties opportunity to make submissions as to why range suggested by counsel was inappropriate. Trial judge failed to provide reasons for such significant departure from suggested range. Sentence was manifestly excessive. Global sentence in range of five years imprisonment, less credit for pre-sentence custody, was appropriate. There was reason to give some emphasis to rehabilitation, as accused had discontinued use of illicit drugs and had substantially reduced his consumption of alcohol after many years of drug and alcohol addiction. Trial judge's offer to provide further written reasons should decision be reviewed did not comply with obligation to provide reasons for imposing sentence substantially outside range suggested by counsel. R. v. Stewart (Sep. 26, 2013, Ont. C.A., A. Hoy A.C.J.O., M. Rosenberg J.A., and R.J. Sharpe J.A., File No. CA C55686, C55956) 109 W.C.B. (2d) 330. ONTARIO CIVIL DECISIONS Civil Procedure DISCOVERY Documents requested relevant to issue of damages Plaintiff brought motion for order requiring Ministry of Attorney General to produce Crown's brief and investigation file with respect to charges against defendant relating to motor vehicle accident that resulted in death of plaintiff 's father for which defendant was charged and convicted. Defendant admitted liability for accident, but denied causing damage to plaintiff. Motion granted. Documents requested were relevant to issue of damages and it would be unfair to require plaintiff to proceed to trial without them. It was reasonable to assume that Crown file would contain statements from several witnesses to accident and police investigation notes. There was little or no prejudice to defendant by allowing plaintiff to receive and review Crown file. Objection regarding relevance or admissibility could be brought before trial judge. Taking into account that Crown consented and potential relevance of information sought, on balance, it was fair and reasonable to order production of Crown file. Vachon v. Titley (Aug. 20, 2013, Ont. S.C.J., Patrick Smith J., File No. 12-53361) 231 A.C.W.S. (3d) 921. Constitutional Law CONSTITUTIONAL LITIGATION Rules of succession not subject to Charter scrutiny Applicant brought application for declaration that Constitution Act, 1982, prevented Canada from consenting to legislation passed by Parliament in United Kingdom to change rules of succession for Crown. At meeting in Australia, Prime Ministers of 16 commonwealth nations that recognized Queen as head of state, including Canada, agreed in principle that www.lawtimesnews.com they would work to bring forward necessary measures to give effect to two changes to rules governing succession to throne. First, was to end system of male preference where younger son could displace older daughter in line of succession. Second, was to remove legal provision that anyone who married Roman Catholic should be ineligible to succeed to Crown. United Kingdom government drafted bill and government of Canada confirmed it was in agreement with bill. Bill was passed and received royal assent. Succession to the Throne Act, 2013 (Can.), would be proclaimed. Applicant relied on Canadian Charter of Rights and Freedoms, to challenge long-standing rule that prohibited Catholics and those married to Catholics from becoming monarchs. Applicant objected to proposed changes to royal succession rules that left rule in place. Applicant sought declaration that all legislative provisions or rules that prohibited Catholics and those married to Catholics from ascending to Crown of Canada were of no force and effect. Application dismissed. Court was bound by O'Donohue v. Canada (2003), 124 A.C.W.S. (3d) 63 (Ont. S.C.J.), aff'd (2005), 137 A.C.W.S. (3d) 1131 (Ont. C.A.), which held that rules of succession and requirements that they be same as Great Britain were necessary for proper functioning of constitutional monarchy. Rules of succession were not subject to Charter scrutiny and were not justiciable in sense that they were beyond review jurisdiction of court. Applicant also lacked standing. Teskey v. Canada (Attorney General) (Aug. 9, 2013, Ont. S.C.J., Charles T. Hackland R.S.J., File No. Ottawa 13-56569) 231 A.C.W.S. (3d) 950. Contracts DAMAGES Defendant obligated to conduct mechanical inspection but failed to do so Action by insured against insurer for $25,000 damages for breach of contract and negligence, including punitive damages. Plaintiff 's vehicle was damaged in rear-end collision and was repaired by one of defendant's preferred shops, so defendant guaranteed repairs. Plaintiff was dissatisfied with repairs and sought mechanical inspection. Plaintiff alleged defendant failed to carry out mechanical inspection based on fact that, when he picked vehicle up from garage two days later, it was still in parking lot and covered with snow. Defendant's appraiser's notes indicated he attended shop to inspect plaintiff 's vehicle. Continuing problems plaintiff complained of were rusted quarter panel, poor alignment, window not working, punctured tire, concealed damage, control lights on and transmissions problems. Defendant argued these problems were not caused by repairs and repairs were properly done. Action allowed in part. Plaintiff was only witness for his case and he did not call any expert evidence. Plaintiff failed to establish problems with vehicle, other than rusted quarter panel were caused by accident and repairs. Defendant conceded quarter panel was replaced during repairs and was not rust-proofed, and did not deny it had rusted. Plaintiff awarded $1,000 for quarter panel replacement. Plaintiff chose preferred repair shop on own volition and was not coerced into it by defendant. Plaintiff 's request for mechanical inspection was reasonable in light of problems, and would have resolved issue of whether repairs were properly done. Defendant was obligated to conduct mechanical inspection, but failed to do so and frustrated process by giving plaintiff the run around. Defendant's appraiser's notes stated he inspected plaintiff 's vehicle on January 14th, but plaintiff testified, and his rental car invoice confirmed, that he had already picked vehicle back up from garage on January 12th. Furthermore, appraiser admitted his notes were incomplete and not fully produced. Defendant's conduct was breach of duty of good faith and duty to provide plaintiff with peace of mind. Plaintiff awarded $2,000 damages for inconvenience. Defendant's conduct not so egregious to warrant punitive damages. Total award was $3,000. Bowen v. Aviva Canada Inc. (Jul. 29, 2013, Ont. S.C.J., J. Prattas D.J., File No. Toronto SC-11121040-00) 231 A.C.W.S. (3d) 1078. FEDERAL COURT Admiralty GENERAL Issue of enforcement of foreign judgment was central to claim Plaintiff sought summary judgment. Plaintiff was American banking institution. Plaintiff claimed that rights over vessel were uncontested. It sought to execute on its in rem rights and dispose of vessel in prompt manner. Motion dismissed. Plaintiff referred to contracts entered into and judgment obtained in foreign jurisdiction under laws foreign to this jurisdiction and affecting parties other than defendants who had owned and had been in possession of vessel. Plaintiff sought to introduce instruments through affidavit of vice-president, which it could not do. They must be proved. There was lack of evidence before court. Court was not satisfied there was no genuine issue for trial. Full hearing with evidence that was properly presented and tested needed to take place. Not only was there no proper evidence before court but issue of enforcement of foreign judgment was central to claim. Matter was not fit for summary judgment as there were genuine issues that needed to be tried. Lakeland Bank v. "Never E Nuff " (The) (Aug. 12, 2013, F.C., Yvan Roy J., File No. T-1106-12) 231 A.C.W.S. (3d) 944. LT

• Cover