Law Times

www.lawtimesnews.com Law Times / February 11/18, 2008 Page 15 A.C.J.O., Gillese and Watt JJ.A., File No. C45514) Order No. 007/331/010 (5 pp.). ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Evidence supported conviction under s. 254(5) of Criminal Code Accused appealed conviction under s. 254(5) of Criminal Code. Accused testified that she was unable to provide breath sample due to nervousness or anxiety. Appeal dismissed. Reasons suf- ficient for appellate review. Trial judge's misapprehension of one piece of evidence overcome by problems in accused's evidence, including admission about num- ber of drinks consumed. Judge focused on key issue of whether Crown failed to establish beyond reasonable doubt that accused voluntarily failed to provide suit- able sample. Judge accepted police officer's evidence that accused did not follow his instructions about providing sample. Evidence sup- ported verdict. R. v. Ralph (Nov. 16, 2007, Ont. S.C.J., Charbonneau J., File No. 06-7219) Order No. 007/323/188 (3 pp.). Charter Of Rights EQUALITY RIGHTS No basis for discrimination allegation by HIV-positive accused Applicant was charged with two counts of first degree mur- der and 13 counts of aggravated sexual assault for knowingly hav- ing unprotected sex with many complainants and thereby causing complainants to be HIV-positive. Applicant alleged that due to his Ugandan heritage and physical dis- ability, his equality rights were vio- lated. There was no basis for saying statistical source of infection expe- rienced by complainants is African or Ugandan. Charge before court is not what applicant is, but what he did, that is conducting himself in an illegal manner. Application was dismissed. R. v. Aziga (Dec. 18, 2007, Ont. S.C.J., Lofchik J., File No. 07/1347) Order No. 007/361/037 (18 pp.). Courts STAY OF PROCEEDINGS Stay pending provision of state-funded counsel refused Accused charged with numer- ous offences including kidnap- ping and conspiracy to import cocaine. Accused applied for stay of trial until state-funded counsel provided. Application dismissed. Accused failed to establish that he was indigent. Accused and his mother owned house listed for sale for $1.199 million and had recent- ly declined offer of $8000,000. Mortgage of $600,000 placed on house. Furthermore, at bail hear- ing, accused had been willing to pay for expensive electronic brace- let monitoring scheme. R. v. Milani (Nov. 1, 2007, Ont. S.C.J., Marrocco J., File No. 07/FD00128) Order No. 007/309/156 (4 pp.). Evidence CIRCUMSTANTIAL EVIDENCE Whole of circumstantial evidence supported conviction for aggravated assault Accused appealed conviction for aggravated assault. Victim was accused's domestic partner. Case against accused entirely circumstan- tial. Appeal dismissed. Verdict not unreasonable. Trial judge alive to frailties of evidence of eyewitnesses to argument of persons outside accused's apartment where blood later found. Evidence considered as whole sufficient to support convic- tion. Other evidence included trail of blood from accused's residence to location of victim and victim's blood found on accused. R. v. Sinobert (Nov. 16, 2007, Ont. C.A., Cronk, Juriansz and Watt JJ.A., File No. C45878) Order No. 007/331/013 (3 pp.). FEDERAL COURT Immigration EXCLUSION AND EXPULSION Lack of full and frank disclosure militated against equitable relief Applicant Argentinian mother of four children. Applicant failed in refugee claim and ordered removed to U.S. from where she entered. Motion for stay dis- missed in 2004. Applicant failed to appear for removal and war- rant was issued. Applicant located and detained. Applicant did not disclose whereabouts of children. Counsel did not disclose prior failed motion or arrest warrant. Motion brought eleven days after applicant detained. Applicant argued pending humanitarian and compassionate application stronger than first application. Applicant argued irreparable harm if returned since abusive husband may seek her out. Application denied. No reason for delay in application. Duty on applicant seeking equi- table relief to disclose all relevant facts. No substantial evidence led of real risk from husband. Lack of full and frank disclosure militated against equitable relief. De Donaire v. Canada (Minister of Citizenship and Immigration) (Nov. 15, 2007, F.C., Hughes J., File No. IMM-4700-07) Order No. 007/330/176 (5 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency PROPERTY Conveyance of assets was reviewable transaction under Bankruptcy and Insolvency Act (Can.) Plaintiff brought motion for sum- mary judgment against principal defendant's husband and his com- pany ("M"). Parties had formed company ("A") to provide relo- cation services to corporate cli- ents. Defendant misappropriated $11,000 from A and upon discov- ery by plaintiff resigned but con- tinued to carry on business of A as sole proprietor servicing same cus- tomers. Plaintiff brought derivative action in name of A against defen- dant (first action). Husband incor- porated M and defendant worked for M and performed same func- tion as she did for A. Customers of A became customers of M. Plaintiff subsequently commenced second action against defendant, husband, and M claiming dam- ages for fraudulent conveyance of assets from A to defendant to M and for conspiracy. Defendant's defence in first action was struck out and judgment granted in favor of plaintiff. Judgment included declaration that it arose out of fraud or misappropriation while acting in a fiduciary capacity and was not stayed or released by dis- charge under Bankruptcy and Insolvency Act (Can.). Defendant subsequently made an assignment in bankruptcy. Motion dismissed. Defendant's misappropriation of funds and customer contacts, contracts, and goodwill of A did not render husband or M auto- matically liable to plaintiff in same amount as judgment against defendant. Typical remedy for defendant's fraudulent conveyance was to set aside transaction and allowing judgment against bank- rupt would circumvent trustee and procedures under Bankruptcy and Insolvency Act. Conveyance of assets by defendant to M and her husband was a reviewable transaction under Bankruptcy and Insolvency Act and trustee could obtain judgment for under value transfer or plaintiff could seek to have right assigned to him. Coe v. Meade Destination Services Inc. (Nov. 1, 2007, Ont.S.C.J., Sproat J., File No. CV-07-0174- 00) Order No. 007/309/069 (7 pp.). Contempt Of Court GROUNDS Respondent in contempt of orders to provide financial disclosure Applicant brought motion for order that respondent was in con- tempt of previous court orders on grounds that he failed to make full financial disclosure and failed to make a $25,000 payment on account of interim disbursements. Respondent brought motion seek- ing order that applicant was in con- tempt of earlier orders. Respondent submitted that disclosure was delayed because he believed that it had already been provided. Motion granted. Respondent deliberate- ly and willfully disobeyed court order by failing in a timely man- ner to make financial disclosure as ordered and for late payment of $25,000. Providing disclosure on a "dribs and drabs basis" and particularly with no cross-reference to disclosure request not contemp- tuous itself, but was cumbersome and inefficient. Hobbs v. Hobbs (Nov. 27, 2007, Ont.S.C.J., Sproat J., File No. FS-06-056747-00) Order No. 007/333/062 (12 pp.). SUPREME COURT OF CANADA Trial CHARGE TO JURY No error in judge's charge to jury on intoxication defence in murder trial Accused charged with murder- ing common-law wife T. Accused returned home after night of heavy drinking. Neighbours heard accused cursing as he tried to enter locked house where T was inside. T found stabbed to death next morning and accused found drunk in bedroom. Accused testified that he was unable to remember events due to alcohol consumption. Defence expert testified about effect of alcohol on judgment and brain function. Jury found accused guilty of second degree murder. Accused appealed, alleging defi- ciencies in trial judge's jury charge. Conviction upheld and accused appealed. Appeal dismissed. (Per Bastarache J. majority) No obliga- tion on trial judge to specifically link credibility of accused with reason- able doubt. Credibility not in issue here. Trial judge's obligation only to provide concise and fair sum- mary of evidence. Not all evidence of either side presented. Defence did not raise any concerns with adequacy of summary. Concerns about omission tempered by fact that trial judge repeatedly told jury they were to consider whole of evidence. Trial judge properly pre- sented issue of whether accused had requisite intent to kill or cause bodily harm with foresight that likely consequence was death. On functional review of charge, jury properly understood that main question was whether accused was so intoxicated that he could not foresee that stabbing T would result in death. Clear and specific linkage between foreseeability and intoxication not necessary so long as charge as whole conveyed need to address effect of drunkenness on foreseeability. Trial judge did not give jury impression that, if they were satisfied that accused was capable of voluntary action, then defence of intoxication no longer relevant. No error in instruction regarding common sense infer- ence. Trial judge not required to go further than to link inference to evidence of intoxication. No injustice caused to accused by one- step charge only instructing jury to consider actual intent. In future charges on intoxication, one-step charge focusing on whether accused possessed actual intent should be used. Trial judge's review of R's evidence not inadequate. Trial judges need only summarize and present to jury what was clearly stated by expert witness. R's tes- timony not particularly helpful in determining central issue of whether accused lacked requisite intent. Trial judge not obligated to attempt to clarify expert's tes- timony by posing further ques- tions. Appellate courts should not attempt to fill in gaps or make inferences that end up changing evidence that jury is to consider. Trial judge did not mislead jury with respect to sig- nificance of R's evidence regard- ing alcoholic amnesia. Without link between loss of capacity for judgment and evaluation of appropriateness and loss of abil- ity to foresee consequences of one's actions, it was acceptable for trial judge to stipulate that amnesia was no defence. (Fish, Binnie, LeBel and Charron JJ. dissenting). R. v. Daley (Dec. 13, 2007, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31616) Appeal from 212 C.C.C. (3d) 290, 71 W.C.B. (2d) 223 dismissed. Order No. 007/351/001 (97 pp. Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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