Law Times

lAw Times • April 14, 2014 Page 19 www.lawtimesnews.com to make additions, deletions or amendments to rules and regu- lations. Agreement was clear and unambiguous and respondent was authorized to change pet free provision. Respondent act- ed in good faith in dealing with change to pet free provision and decision was not arbitrary. Re- spondent obtained input from residents through residents' ad- visory association. Respondent did not act arbitrarily or in bad faith when it changed pet free policy, but it acted on reasonable grounds in making change. Giroux v. I.O.O.F. Senior Citi- zen Homes Inc. (Dec. 30, 2013, Ont. S.C.J., DiTomaso J., File No. Barrie CV-13-0694) 236 A.C.W.S. (3d) 509. Sale of Land AGREEMENT OF PURCHASE AND SALE Outcome of appeal was favourable so vendor's bonus entitlement was triggered Purchaser agreed to buy vendor's vacant land. Purchaser intended to construct retail shopping cen- tre anchored by supermarket. Purchase was conditional on ob- taining amendments to munici- pality's official plan and zoning bylaw. Application for amend- ments was denied, but purchaser appealed. Parties modified pur- chase agreement to provide for unconditional purchase plus "bo- nus" of $550,000 if there was "fa- vourable decision of the purchas- er's appeal". Ontario Municipal Board approved settlement that allowed retail pharmacy in lieu of supermarket. Purchaser refused to pay bonus. Vendor brought action for damages for breach of contract. Action allowed. Ven- dor was entitled to bonus. Upon reading agreement as whole, giving meaning to all terms and avoiding interpretation that would render bonus clause in- effective, proposal approved by board fell within meaning of "fa- vourable decision of the purchas- er's appeal". Outcome of appeal was key to interpreting bonus provision. Basis for settling ap- peal was reasonable, appropriate, and embodied principles of good community planning. Purchaser had urged this outcome upon board. Outcome might not have been purchaser's first choice, but it was lesser included outcome that still le hope for approval of supermarket in future. Outcome of appeal was favourable so ven- dor's bonus entitlement was trig- gered. Trenwith Investments Inc. v. First Capital Acquisition Corp. (Jan. 9, 2014, Ont. S.C.J., Moore J., File No. CV-10-396669) 236 A.C.W.S. (3d) 514. ONTARIO CRIMINAL DECISIONS Appeal PROCEDURE Deportation order was serious but unusual consequence of conviction Accused's application for exten- sion of time to file appeal of his conviction that was dated May 18, 2012. Accused's trial was supposed to start on May 18 and he was self-represented. He was charged with several offences, which included assault with weapon, forcible confinement and breach of recognizance. Matter had to be adjourned for four to six weeks. Accused did not want to wait that long and he decided to plead guilty that day. Presiding judge told accused he would have to accept facts that underpinned charges and ac- cused responded that he under- stood and he was prepared to do so. He also told judge that his decision to plead guilty was fully voluntary. Accused was sen- tenced to 102 days of pre-sen- tence custody and to 15 months of probation. He was permanent resident of Canada and he was not yet Canadian citizen. On January 17, 2013 Immigration and Refugee Board advised ac- cused that deportation order would be issued because he was convicted of serious criminal behaviour. Accused appealed that order. In April 2013 accused was again charged with criminal offences and this time he hired lawyer to represent him. He was advised at that time that he could have appealed convictions that led to deportation order. Ac- cused filed this application in July 2013 and he claimed he was unaware of immigration conse- quences of his decision to plead guilty. Application allowed. Ac- cused would have 30 days to file notice of appeal. He did not have reason to believe that appeal was necessary until January 17, 2013 when he received his deporta- tion notice. It was not until April 2013 that he learned that appeal was possible and it was then that he formed intention to appeal. Consequently, his decision to ap- peal was made within timeframe that was reasonable in specific circumstances of this case. Delay that occurred between April and July 2013 was not held against accused because it resulted from erroneous legal advice. Delay between January and April 2013 was reasonable because accused was focused on appealing depor- tation order. As for merits of ap- peal deportation order was very serious but unusual consequence of conviction. Crown would not be prejudiced by appeal and ex- tension of time to appeal would not be inappropriate. R. v. Cimpaye (Jan. 7, 2014, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 11-A10371) 111 W.C.B. (2d) 414. SENTENCE APPEAL Accused deliberately withheld medical assistance in order to protect herself from blame Accused appealed her sentence of ten years and two months' im- prisonment, aer nine months' credit for pre-sentence custody, imposed aer she was convicted of manslaughter by failing to provide necessaries of life to her 19-month-old son. With excep- tion of correction to pre-sen- tence credit, appeal dismissed. Crown conceded that calcula- tion of credit for pre-sentence custody in this case was inac- curate and that accused was en- titled to eight months' additional credit. Court saw no error in principle in sentencing judge's consideration of aggravating and mitigating factors applicable or in her treatment of challenged victim impact statement. Nor was sentence imposed unfit or outside appropriate range for this offender and this offence. Circumstances of infant's death were heart-wrenching and hor- rific: he sustained severe scald- ing burns to 40% of his body. Accused, who had sole charge of him at time, failed to take him to doctor or hospital. Accused eventually called 9-1-1 over 12 hours aer his injury. By that time, victim was already dead. Sentencing judge accepted that victim's burns could have been accidental and sentenced ac- cused on that interpretation of facts. Sentencing judge accepted that accused did not intend victim should die and that she hoped that he would not die. But, on sentencing judge's find- ings, accused's hopes in this re- gard had little to do with her son and everything to do with her own self-interests. Sentencing judge found that accused did in- tend to withhold and, in fact, did deliberately withhold medical assistance for her son in effort to protect herself from blame and consequences of her actions. Sentencing judge's findings re- garding accused's lack of genu- ine remorse were open to her on evidentiary record. Sentencing judge held that denunciation and deterrence were main consider- ations on sentencing in this case; she did not err in doing so. Sen- tencing judge concluded, on state of record before her, that accused's rehabilitative prospects at time of sentencing were minor. Sentenc- ing judge noted that accused had shown no genuine remorse, her sorrow was entirely self-directed. Accused remained focused only on her own self-interests, lacked insight into her conduct and its consequences. Sentencing judge did not err in finding rehabilita- tion minor factor in sentencing. Sentencing judge found that ac- cused did not have major mental illness and did not suffer from any psychiatric or psychological con- dition that might explain or ex- cuse her behaviour. ese findings were amply supported by medical evidence adduced at sentencing hearing. R. v. Alexander (Jan. 13, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C55445) Decision at 98 W.C.B. (2d) 762 was varied. 111 W.C.B. (2d) 416. Charter of Rights ENFORCEMENT OF RIGHTS Breach of rights was extremely serious and reflected pattern of systemic neglect Accused charged with first degree murder. Accused ar- rested late at night on weekend following shooting. Police in- terviewed accused following aernoon rather than taking them to court. Officers testified that they believed weekend bail court would be closed. Officer in charge forgot to call justice of peace to attend station and remand accused. Accused ap- plied to exclude statements on basis that they were not brought before justice within 24 hours. Crown conceded that accuseds' s. 9 Charter right was violated but argued that statements should be admitted pursuant to s. 24(2). Application allowed and statement excluded. Breach of accuseds' right was extremely serious and reflected pattern of systemic neglect of Charter rights. Police disregarded clear requirements of Criminal Code. Statements were not important part of Crown's case. Admis- sion of statements would bring administration of justice into disrepute. R. v. Mendez (Jan. 22, 2014, Ont. S.C.J., M. Forestell J., File No. 12- 30000346-0000) 111 W.C.B. (2d) 442. Police did not corroborate informant's information Application by accused to ex- clude weapon and ammunition discovered by police. Accused was charged with six firearm re- lated offences. Police executed search warrant at basement apartment that his girlfriend rented and that accused lived at three days a week. ey were informed by confidential infor- mant that shotgun was in apart- ment and they found and seized shotgun with sawed off barrel and some ammunition. Accused and girlfriend were present when police arrived with warrant and girlfriend was also charged and arrested. Girlfriend pleaded guilty to firearm offences. Ap- plication allowed. ere was in- sufficient credible and reliable evidence that would allow court that issued warrant reasonable and probable grounds to believe that accused possessed shotgun and that it would be found at apartment. Confidential infor- mant's credibility and reliability were not established and infor- mant did not have proven track record of being useful to police. Information provided by infor- mant was uncertain and there was no compelling information that accused committed offence or that shotgun would be found. Police did not corroborate infor- mant's information. Search and seizure was therefore unlawful for it was conducted in violation of accused's right to be secure from unreasonable search and seizure. Shotgun and ammuni- tion were excluded for admit- ting this evidence would bring administration of justice into disrepute. R. v. Brown (Dec. 12, 2013, Ont. S.C.J., Allen J., File No. CR-12- 50000593-0000) 111 W.C.B. (2d) 465. Search and Seizure INFORMATION FOR WARRANT Belief evidence of grow operation would be found was absolutely baseless ree accused, charged with vari- ous drugs offences, applied for exclusion of evidence. Police had received list of suspect real estate transactions from concerned citi- zen and had begun to investigate those residences. Officer sought and obtained search warrants in respect of five residences. Aer testing residences for thermal emission and smelling presence of marijuana, police began sur- veillance on residences. Police noticed same van attending both residence, which belonged to one of accused and when police did record checks they found that accused had previous drug convictions. Execution of war- rants resulted in seized plants, grow equipment and cash. Po- lice application for warrant had been refused by justice; same day they took application to judge who granted warrants. Applica- tion allowed; evidence excluded. Second accused, who claimed to be living at residence in issue was granted standing. Accused presented evidence that he used subject property as residence and had subjective expectation of privacy. ere was no evidence of any activity, suspicious or oth- erwise, including lack of observa- tions of any items or packages be- ing taken to or from one unit. Jus- tice was correct to find there were insufficient grounds to search. In subsequent application, there was absolutely no additional in- formation provided to judge with respect to this distinct address. Assertion that belief evidence of grow operation would be found there was absolutely baseless. While there were allegations of interconnectivity between vari- ous residences, court had no hes- itation in concluding that police sought warrant for residence on what amounted to be nothing more than mere association with other individuals of Asian race, including one suspect with crimi- nal record. With regard to second residence at issue, even accepting that officers detected odour of marihuana, justice determined that evidence was insufficient to support application. Court found that changes or clarifications to ITO for presentation to judge for second residence in support of is- suance of warrant fundamentally involve editorializing or word- smithing. ere was little doubt that statements in ITO were designed to suggest to justice that there was hydro bypass and hence, potential unlawful grow- op activity. is was no draing error as in his testimony, affiant made it clear that there was no hydro bypass. Search warrant is- sued by judge was invalid for lack of jurisdiction. Affiant engaged in form of judge-shopping in this case. R. v. Bui (Jan. 3, 2014, Ont. S.C.J., A.J. Goodman J., File No. 11096) 111 W.C.B. (2d) 512. LT CASELAW

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