Law Times

Law Times • June 16, 2014 Page 15 www.lawtimesnews.com In 2005, father gave one prop- erty to daughter and advised son that he intended to give him other property. Father ar- ranged for title to be transferred to him and son as joint tenants. In 2006, father's health began to deteriorate and he moved in with daughter. In 2009, father changed ownership of property. Property was transferred to fa- ther, joint tenancy was severed, and tenancy-in-common was created with son. Father then transferred his half-interest in property to daughter. Son only learned of transactions after father died. Daughter brought application for partition and sale of property. Son sought to set aside transactions but was unsuccessful. Trial judge con- cluded that father's promise to son in 2005 and creation of joint tenancy did not create in- ter vivos gift and held that son had not established that 2009 transactions were result of un- due inf luence. Son appealed. Appeal dismissed. There was no legal authority to support son's proposition that creation of joint tenancy completed fa- ther's promise of property to son. By putting title into joint tenancy, with right to deprive son of half of property through severance, father defeated any finding that irrevocable inter vivos gift was created. There was no reason to interfere with trial judge's finding that 2009 transactions were not obtained though undue inf luence. Trial judge's findings of fact were amply supported by evidence. There was no evidence to sup- port that father's change of heart came about by daughter's undue inf luence. Son was only entitled to one-half of proceeds of sale of property. Kavanagh v. Lajoie (Mar. 11, 2014, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and M.L. Benotto J.A., File No. CA C56655) Decision at 225 A.C.W.S. (3d) 251 was affirmed. 238 A.C.W.S. (3d) 239. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Warrantless search of car justified since it was incident to accused's arrest Appeal by accused from his conviction for possession of marijuana for purpose of traf- ficking. On Oct. 25, 2008, at 10:20 p.m. accused was stopped for speeding and in course of obtaining his documentation police officer noticed that ac- cused appeared to be inordi- nately nervous. Police officer performed computer search on accused and discovered that he was on bail and that he was subject to a 10 p.m. and 5 a.m. curfew. There was employment exception for curfew. Accused was f lagged for violence and he was escape risk. Police officer also discovered that accused drove rental car. Another of- ficer attended and first officer told him there were grounds to arrest accused for breach of recognizance. When accused was told he was under arrest for breach of his bail conditions he refused to get out of car and he had to be forcibly removed. Accused was discovered to be in possession of cellphone. Based on accused's criminal history officers decided to con- duct safety search in area of car around driver's seat. First officer searched vehicle and noticed strong smell of raw marijuana and he also discov- ered second cell phone and large amount of cash in jacket. Accused was then arrested for possession of marijuana and trunk was searched and 18 pounds of packaged marijuana in duff le bag was found inside. He was then charged with pos- session for purpose of traffick- ing. At trial accused applied to exclude contraband as evidence because it was obtained in vio- lation of s. 8 of Canadian Char- ter of Rights and Freedoms. Application was dismissed, evidence was admitted and it formed basis for conviction. Appeal dismissed. First officer was not required to investigate and to rule out all possible ex- planations for accused being out past his curfew before he arrested him. He had reason- able and probable grounds to arrest accused for breach of re- cognizance and these grounds were justifiable from objec- tive point of view. Warrantless search of front of car was justi- fied since it was incident to ac- cused's arrest for breach of bail. This search was reasonable and it was valid because it was con- ducted for legitimate purpose, which was officer safety. Judge was entitled to accept first offi- cer's evidence about marijuana smell. Since arrest for marijua- na possession was valid first of- ficer was entitled to search rest of car and it was lawful search incident to arrest. Marijuana was discovered in circumstanc- es in which accused's Charter rights were not infringed. R. v. Valentine (Feb. 26, 2014, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and Glo- ria Epstein J.A., File No. CA C54329) 112 W.C.B. (2d) 210. Accused's DNA only one of several factors that established culpability Appeal by accused from con- victions for robbery while us- ing imitation firearm, disguise with intent and possession of weapon for dangerous purpose. Two men, who each wore black balaclavas, robbed bank of $4,500. One of men wore black gloves and brandished gun, which was partially covered by white cloth. Both men then f led to nearby transit station. With- in 45 minutes of robbery police officer discovered toy gun with white cloth over it and black balaclava on top of trash in garbage bin in transit station. Officer seized items and put them in his pocket. Accused's DNA was on these items. Sole issue at trial was identity and Crown's case was entirely cir- cumstantial as there was no eyewitness identification of accused. Trial judge concluded that only reasonable infer- ence from evidence was that accused was masked assailant who robbed bank teller while pointing imitation firearm at her. Appeal dismissed. Judge's reasons confirmed that he was alert to presence of DNA pro- files other than that of accused and to suggested limitations of DNA evidence. Accused was major or sole contributor to DNA that was discovered. Judge did not impermissibly reverse burden of proof and he properly applied relevant case law. He also provided sufficient reasons that readily revealed basis of verdict against accused. Accused's DNA was only one of several factors that resulted in conclusion that Crown es- tablished accused's culpability for crimes that were charged. Verdict against accused was reasonable for evidence against him was uncontradicted and there were no reasonable in- ferences that were inconsistent with accused's guilt. R. v. Ibrahim (Feb. 28, 2014, Ont. C.A., E.A. Cronk J.A., David Watt J.A., and K. van Rensburg J.A., File No. CA C54280) 112 W.C.B. (2d) 211. Breaking and Entering GENERAL Accused intended to commit theft of item which piqued his sexual curiosity Accused was charged with break and enter with intent. Complainants had hired ac- cused to fix some windows in their house and shortly thereaf- ter some personal items includ- ing vibrator went missing and accused had key. Complainants subsequently installed cameras in their house and told accused they would be away next day when accused no longer had key from them. Accused was caught on camera holding pair of underwear in bedroom of complainant on day in ques- tion when everyone was away. Accused testified he had no criminal intent and thought he had consent to enter home and was only satisfying his sex- ual curiosity. Accused found guilty. Court was satisfied that accused intended to commit serious crime when he entered home of complainant. Accused intended to commit theft of some item which piqued his sexual curiosity as he put it in his testimony as court reasoned he intended to keep trophy from his exploits. Court did not believe accused as it was clear that accused did not have per- mission to enter home on day in question. R. v. L. (W.) (Mar. 18, 2014, Ont. S.C.J., Conlan J., File No. CR13-110) 112 W.C.B. (2d) 222. Evidence CONFESSIONS AND ADMISSIONS Detective using detention in manner abusive of accused's rights Accused charged with first de- gree murder. Crown applied to admit statements made by ac- cused during videotaped police interview following his arrest. Accused was arrested and was formally interviewed by detec- tive for period of approximately six and one-half hours. Ac- cused was properly cautioned, given his rights to counsel, and had opportunity to speak to both duty counsel and his law- yer of choice prior to interview. Although accused expressed on numerous occasions that he did not want to speak to detec- tive about incident, he shared certain information with offi- cer. Accused was curious about what evidence investigators had that may have incrimi- nated him and led to him be- ing suspect. Three hours after beginning of interrogation, ac- cused complained that he was in need of some rest because he had been detained in police custody for 24 hours. Accused repeated on several occasions that he did not wish to speak any further to police and that he wished to follow advice of his lawyer to remain silent. Ac- cused asked to be returned to his cell at 1:05 a.m., more than three and one-half hours after interrogation began. Detective threatened to keep accused in interview room "all night" to get his way, and at some points after ultimatum he engaged in further discussions with detec- tive. Accused argued that there was "constellation of factors" which created atmosphere of oppression for all of interview. Accused argued that there was series of subtle inducements suggested to him that should have created reasonable doubt concerning voluntariness of statement. Application allowed, in part. For first three and one- half hours of interrogation all of accused's statements to de- tective were free and voluntary, as he was on subtle mission to determine what police inves- tigation had unearthed about his involvement in homicide. Accused was using his right to silence as "f lag of convenience" to provoke more information from detective during first phase of interview, and was impervious to all of induce- ments proffered by detective that could have compromised voluntariness of any of his ad- missions. Court was not satis- fied beyond reasonable doubt that similar dynamic did not prevail after approximately 1:05 a.m., when accused wished to be returned to his cell. As ac- cused had possibly exhausted his attempts to negotiate any more with detective after 1:05 a.m., it left open chance that his equivocal assertions of wish to remain silent had become unequivocal. Court was not convinced beyond reasonable that what had originally been unoppressive and benign rela- tionship based upon principles of equality of arms had not de- teriorated into situation where detective was using detention in manner abusive of accused's rights and fairness of criminal process. Crown was permitted to lead circumstances of inter- rogation up to 1:05 a.m. R. v. Mohamed (Feb. 28, 2014, Ont. S.C.J., McIsaac J., File No. Newmarket CR-11-01457) 112 W.C.B. (2d) 247. Indictment and Information JOINDER AND SEVERANCE Appropriate jury instruction would prevent danger of reasoning prejudice Accused charged with numer- ous counts of sexual assault against his ex-wife and step- children. Accused applied for severance of count concerning his ex-wife. Accused argued that count concerning ex-wife was distinct and separate from other counts, which only in- volved children, and nature of evidence might unneces- sarily prejudice him. Accused argued that severance would not prolong total time required for trial, and that ex-wife's evi- dence would be separate and distinct since sexual issues concerning her would not re- quire repetition during trial of balance of counts. Application dismissed. Risk that jury might use reasoning prejudice when hearing evidence of sexual as- sault and touching against one of children, as well as sexual assault against ex-wife, could be adequately dealt with by appropriate jury instructions. Even if severance were granted, jury would hear evidence about sexual assault and touching on child in any event. Accused was not likely to give evidence on count concerning ex-wife but not others. Consent or mistak- en belief as to consent was rel- evant to count concerning ex- wife since sexual conduct was admitted, whereas occurrence of sexual incidents involving children was issue regarding other counts. All counts in- volved family members and all were alleged to have taken place in family home. That fam- ily dynamic in household was abusive would likely be com- mon evidence, and majority of it would likely come from ex- wife. Only person who would testify twice would be ex-wife, and total length of trial would not be unduly affected as result of severance. Accused failed to meet burden on him to show balance was tipped in favour of severance. Only live factor was danger of reasoning prejudice, and appropriate jury instruc- tion would prevent prejudice to accused. R. v. C. (A.) (Mar. 10, 2014, Ont. S.C.J., Timothy Ray J., File No. 12-SA5072) 112 W.C.B. (2d) 255. LT CASELAW

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