Law Times

Law Times • January 6, 2014 Ont. S.C.J., D.A. Broad J., File No. C-456-09) 232 A.C.W.S. (3d) 535. PHYSICAL DEFECTS Plaintiffs relied on real estate agent and not on anything defendant said Plaintiffs sought reimbursement from defendant for cost of furnace. Plaintiffs purchased home from defendant. Prior to completion plaintiffs hired home inspector. Home inspector found that furnace inducer was leaking and told plaintiffs they should have furnace internally inspected by licenced inspector. Plaintiffs proposed amendments to agreement including that furnace would be serviced by registered furnace repair technician. Defendant did not agree to have furnace serviced. Plaintiffs alleged that agent agreed to pay for furnace inspection following closing and they agreed to complete transaction without internal inspection of furnace. After closing furnace had to be shut down and plaintiffs had to purchase replacement furnace. Action dismissed. There was duty on vendor to disclose latent defect that rendered premises dangerous. Defect in furnace was dangerous. However, plaintiffs failed to establish that it was more likely than not that defendant knew of problem with furnace. Plaintiffs relied on real estate agent when they closed transaction without having furnace further inspected and not on anything defendant said. Crone v. Kilmer (Sep. 9, 2013, Ont. S.C.J., Stephen Bale D.J., File No. Oshawa 82571/13) 232 A.C.W.S. (3d) 539. ONTARIO CRIMINAL DECISIONS Assault ASSAULT WITH WEAPON Trial judge did not close his mind to other version of events Accused appealed his conviction for assault with weapon upon his wife. Accused and complainant got into argument because accused wanted complainant's mother to move out of their home. Although complainant told 9-11 operator that accused had hit her with stick, she subsequently stated she had injured her arm by running into pillar out front of home. Accused submitted that trial judge took judicial notice that complainant's injuries were inconsistent with her testimony at trial, namely that she received injury by accident after running into pillar and that Crown was required to call expert evidence in this regard and as such trial judge could not make such finding in absence of expert evidence. Appeal dismissed. Court could not find and conclude that trial judge was taking judicial notice of nature of actual injury. Trial judge was analyzing complainant's trial testimony regarding accused pursuing her out of house and that she went running out of house blindly and hit stone pillar. Page 15 CASELAW Trial judge was entitled to make this finding of credibility and he was entitled as trier of fact, to reject complainant's trial testimony and he gave reasons for doing so. Trial judge did not close his mind to other version of events. R. v. Palani (Oct. 9, 2013, Ont. S.C.J., Fragomeni J., File No. SCA(P) 2175/12) 109 W.C.B. (2d) 445. Charter of Rights SEARCH AND SEIZURE Dynamic entry reasonable to preserve evidence Accused argued that evidence obtained from search warrant should be excluded based on ITO being insufficient, warrant being executed at night and use of force in dynamic entry. Previous police handler had used informant numerous times in past on multiple drug investigations where information provided by informant had always proven reliable. ITO also indicated that informant was cautioned by police as to consequences of leading them into false investigation and warned that consideration would not be given to informant if firearm was not located. Informant did have record for dishonesty and was motivated for profit. Police did confirm identity of accused regarding his physical description and address, had prior record and was observed at that address. Officer testified that dynamic entry was required to preserve evidence of firearm sought to be found. Motion dismissed. Court found no issue with search warrant being executed at night and use of dynamic entry as it was reasonable to take such effort to preserve evidence. Police did not have to confirm specific criminal activity alleged by confidential informant and did take extensive efforts of confirming number of details from information. Court also would not have excluded evidence if breach were found as use of force was minimal and evidence reliable. R. v. Browne (Sep. 18, 2013, Ont. S.C.J., Hainey J., File No. 1290000137-000) 109 W.C.B. (2d) 456. Evidence CREDIBILITY Trial judge erred by using accused's equivocal statements against him in face of vague allegations Trial judge convicting accused of sexually assaulting daughter. Daughter's evidence that accused molested her on one occasion contained inconsistencies as to nature and extent of touching. Complainant testifying incident occurred only once. Crown leading statements of accused to police on arrest where alleged assault on daughter not equivocally denied. Accused testifying and denying allegations. Accused testifying equivocal statements to police came about because unsure of what allegations were and accused had been drinking heavily in prior years causing memory loss. Accused testifying did not strongly deny allegations right away without knowing their specific content out of respect for complainant. Defence calling friend of complainant who testified complainant told her she was molested more than once. Trial judge discounting accused's evidence as equivocal denials to police would have been expected if denial was true. Trial judge finding no inconsistencies in complainant's trial evidence. Appeal allowed and new trial ordered. Trial judge erred by using accused's equivocal statements to police against him in face of vague allegations. Trial judge erred by applying higher standard of scrutiny to defence evidence than to complainant's which contained unresolved inconsistencies. R. v. W. (J.S.) (Sep. 30, 2013, Ont. C.A., J. Laskin J.A., M. Tulloch J.A., and G.R. Strathy J.A., File No. CA C56284) 109 W.C.B. (2d) 471. HEARSAY Circumstances would have impressed upon complainant seriousness of utterances Accused appealed his conviction for assault with weapon upon his wife. Accused and complainant got into argument because accused wanted complainant's mother to move out of their home. Although complainant told 9-1-1 operator that accused had hit her with stick, she subsequently stated she had injured her arm by running into pillar out front of home. Accused submitted that trial judge erred in admitting complainant's 9-1-1 call for truth of its contents under principled exception to hearsay rule. Accused pointed out complainant had motive to fabricate, to have accused removed from home, which would have pre-empted accused's intention of removing complainant's mother from home. Accused submitted complainant admitted she lied in statement and that she "abused the system". Complainant acknowledged that she did not know there would be consequences for providing false statement to 9-1-1 operator. Complainant was not under oath nor were consequences of lying explained to her. Statement was not made contemporaneous to incident but was made ten minutes later after complainant had time to reflect on events. Appeal dismissed. Trial judge was correct in admitting 9-1-1 call. Trial judge considered all of factors relating to threshold reliability, considered all of surrounding circumstances including observations made by officers at time of their response to call. Trial judge found that there was accurate recording of what was said in call and noted in his ruling that complainant was present and available for purposes of cross-examination. Trial judge determined that there were circumstances which would have impressed upon complainant, to some degree, in her mind seriousness of utterances knowing that she was calling police. R. v. Palani (Oct. 9, 2013, Ont. S.C.J., Fragomeni J., File No. SCA(P) 2175/12) 109 W.C.B. (2d) 445. www.lawtimesnews.com Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Accused aware that prescription medications could cause drowsiness Accused appealed her conviction for impaired driving. Accused conceded she was driving while impaired but claimed impairment was caused by prescribed medication, affects of which were unknown to accused. Accused submitted that trial judge erred in law, by applying to evidence unreasonably narrow interpretation of principles relating to mens rea in impaired driving cases, specifically, principle that, where impairment is produced as result of using drug in form of medicine on doctor's order or recommendation, and its effect was unknown to patient, presumption of "voluntary intoxication" was rebutted. Accused submitted trial judge was in error when he found that accused was aware of, and comprehended, warning labels on prescription medications she had taken on day at issue (these labels warned that medications may cause drowsiness and affect ability to drive) and by finding that, on day in question, accused was aware that her medication was affecting her differently than she had experienced on prior occasions. Appeal dismissed. There was clear evidence at trial that accused was aware that at least two of her prescription medications could cause drowsiness. Evidence concerning label issue was reasonably capable of supporting trial judge's finding. There was evidence supporting trial judge's finding that accused felt unusually tired before she decided to drive. Trial judge had no doubt that accused was able to appreciate possibility that she was impaired and nevertheless chose to drive; that judgment was not unreasonable and was supported by trial evidence. R. v. Hoskins (Sep. 23, 2013, Ont. S.C.J., F. Bruce Fitzpatrick J., File No. Thunder Bay CR-12-0134AP) 109 W.C.B. (2d) 481. Robbery PROOF OF OFFENCE Court persuaded evidence given so close to event was reliable Two accused were charged with robbery and like offences involving manner and similarity of all three robberies. Robberies were committed with vehicle approaching pedestrians, shows of gun, taking money and cell phones and timing of all three occurring in less than one hour. Third perpetrator testified against two accused and his evidence was unshaken when he gave names and cell phone number to police immediately after event at time when his description to police about his own involvement lined up with that of victim witnesses. Witness did give further testimony which minimized his involvement that was contrary to testimony of victims. Accused found guilty. Manner and similarity of robberies supported understand- ing that three men were working in concert together to achieve one goal of robbing pedestrians. Court was satisfied about identity as first identification of accused was on night of robberies after his arrest in his self-inculpatory statement. Court cautioned itself on dangers inherent in identification evidence and in evidence of separately charged accused awaiting trial, but was persuaded evidence given so close to event was reliable. Court made that finding despite rest of evolving story describing himself as innocent pawn which contradicted evidence of victims. R. v. Babbington (Sep. 19, 2013, Ont. S.C.J., M.J. Donohue J., File No. CR-12-00002345-00) 109 W.C.B. (2d) 487. Search and Seizure INFORMATION FOR WARRANT Material non-disclosure of extent of distress that victim underwent at time of photo lineup Accused, charged in relation to series of robbery/stabbings, applied for exclusion of evidence. Victim, in hospital, picked accused's photo out of photo lineup and identified him as individual who struck victim with knife or another object. Application allowed; evidence obtained through execution of search warrant excluded. ITO here, when stripped of materially inaccurate and incomplete information, did not provide sufficient reliable information in totality of circumstances to satisfy test. In totality, accused did not fit generic description of four suspects provided by victim in ITO and affiant could easily have verified this by walking down hall and looking at accused. Fact victim was in physical distress and had identified four people from lineup, which officers involved had never seen before, and other issues with photo lineup were not brought before justice. Court excised erroneous conclusions such as that accused was arrested wearing clothing matching description of clothing worn by perpetrator and that he matched description of perpetrator. There was material non-disclosure of extent of distress that victim was undergoing at time of photo lineup. There was material non-disclosure of fact that victim picked total of four suspects out of the lineup and that at the time of photo lineup presentation, accused was only suspect included in photo lineup. There was no disclosure of one officer's concerns that there were problems with lineup and there was no disclosure of same officer's concerns that it was very unusual and rare that four people would be identified. Through lack of diligence, police did not provide justice of peace with details of accused's alibi. R. v. Martin (Sep. 26, 2013, Ont. S.C.J., Skarica J., File No. Brampton CR-12-1935) 109 W.C.B. (2d) 488. LT

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