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Law Times • JuLy 21, 2014 Page 15 www.lawtimesnews.com 1716243 Ontario Inc. v. Muskoka Standard Condominium Corp. No. 54 (Mar. 24, 2014, Ont. S.C.J., C.A. Gilmore J., File No. Barrie CV-13-0816, CV-13-1172) 238 A.C.W.S. (3d) 1035. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS No evidence that accident was caused by mechanical failure Appeal by accused from his con- victions for impaired and dan- gerous driving. Accused drove large 18-wheel tractor trailer in residential neighborhood above speed limit and, after he went through red light and made turn, truck tipped over on its side. Police officer, who followed truck, saw accused emerge from it and he staggered on his feet and smelled strongly of alco- hol. Other officers who arrived made similar observations. Ac- cused did not challenge trial judge's findings regarding im- paired and dangerous driving. Only alleged error was correct- ness of judge's ruling that ac- cused's application under s. 7 of Canadian Charter of Rights and Freedoms should be dismissed. Charter issue concerned failure of police to preserve accused's vehicle. Truck should have been preserved so that it could be tested to determine whether de- fective brakes or steering were contributing causes of accident. Judge did not rely on accident itself, or make any findings as to cause of accident, as indicia of impaired or dangerous driving. After police completed their in- vestigation they handed custody of truck over to towing compa- ny. Truck was scrapped because owner of truck and insurance company did not want to pay storage fees. Appeal dismissed. Section 7 application was based on alleged breaches of right to disclosure and right to fair trial. Judge's conclusion, that there was no unacceptable negligence and, therefore, no breach of s. 7 right to disclosure was based on six considerations. These con- siderations were relevant to fault analysis that had to be conduct- ed on s. 7 Charter application that concerned unacceptable negligence by state actors. There was no evidence that mechani- cal failure caused accident and, even if there was some failure, it would not have dismissed alco- hol as contributing cause of ac- cident. Accused's employer, who owned truck, had been given timely notice that it would be sold as scrap, and accused and his counsel had notice, before truck was sold, where it was lo- cated. Judge made reasonable findings of fact and they sup- ported his conclusion that there was no unacceptable negligence by police. Accused's right to fair trial was not violated since there was no evidence that accident was caused by mechanical fail- ure, and stay of proceedings, which was only remedy sought by accused, was not appropriate in this case. Judge, therefore, did not err in dismissing Charter application. R. v. Hassan (Mar. 3, 2014, Ont. S.C.J., M.A. Code J., File No. CR-12-70000132-00AP) 112 W.C.B. (2d) 534. Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Ample grounds upon which to make intoxilyzer breath demand Accused appealed her convic- tions for impaired driving and refusing to give breath sample. Citizen testified that accused side-swiped his car. After speak- ing to him and providing half of her information that was scrib- bled on piece of paper, accused left scene before police arrived. Officer happened to drive by accident scene, saw accused leave collision and followed her to find out what had happened. Despite officer putting on his siren and emergency f lashing lights, accused did not pull over for roughly 500 metres. Officer noted indicia of impairment and arrested accused. Accused was driven to station where she was given numerous opportunities to provide suitable breath sam- ple into intoxilyzer, but failed to do so. Accused contended that at its highest, officer had reason- able suspicion accused had al- cohol in her body which would justify demand for breath sam- ple into approved screening de- vice; he did not have reasonable and probable grounds to make demand. Trial judge found fol- lowing factors provided ad- equate basis for arresting officer to have reasonable and probable grounds to conclude accused's ability to operate motor vehicle was impaired by consumption of alcohol: time of day (approxi- mately 1:00 a.m.), accused's abrupt departure from collision scene, her obnoxious and ag- gressive demeanour, her purple lips, her red and sleepy eyes, smell of alcohol on her breath and her attempt to avoid breath- ing directly at officer. Appeal dismissed. Fact officer did not say "magic words" of accused's ability to operate motor vehicle being impaired by consump- tion of alcohol was not fatal. It was implicit in officer's evidence that he had requisite reasonable and probable grounds to make intoxilyzer breath demand and arrest accused. There was am- ple evidence upon which trial judge could reach conclusion he did. While some of those indicia might be explained by factors unrelated to consump- tion of alcohol, combination of indicators provided sound basis upon which officer reasonably concluded there were reason- able and probable grounds to believe that her ability to oper- ate motor vehicle was impaired by consumption of alcohol. In addition, while not mentioned by trial judge, objectively offi- cer could also have considered accused's slurred speech, her refusal to blow into officer's face and failure to stop for 500 me- tres after officer activated his si- ren and emergency lights. When considered together, there were ample grounds upon which to make intoxilyzer breath de- mand. R. v. Grant (Mar. 11, 2014, Ont. S.C.J., Durno J., File No. 1848/12) Decision at 100 W.C.B. (2d) 51 was affirmed. 112 W.C.B. (2d) 540. Evidence ADMISSIBILITY No minimal requirement to have accused's evidence admitted at trial Accused charged with assault, assault causing bodily harm, and uttering death threat. Crown applied to have evidence given by witness at preliminary inquiry read in at trial pursu- ant to s. 715 of Criminal Code. At preliminary inquiry, witness testified that he intervened in initial altercation between ac- cused and complainant, and that complainant appeared un- injured at that time. Witness testified that he saw accused and complainant enter restau- rant and, short time later, he saw male running from that loca- tion. Witness was now living in Nicaragua and was therefore unavailable to testify. Witness moved to Nicaragua to manage hotel, and he left for Nicara- gua before he was subpoenaed for trial. Accused argued that no efforts were made to obtain witness's evidence by using electronic equipment either by video or telephone conferenc- ing. Accused argued that case ought to have been adjourned in order for Crown to comply with its obligation to attempt to obtain evidence by video link or other technological manner, as outlined in s. 714.1 and s. 714.2 of Code. Application allowed. There was no minimal require- ment, as suggested by accused, to have accused's evidence ad- mitted at trial. Failure of Crown to obtain or to offer alternative means to witness was only one factor for court to consider. Fact that Crown did not attempt to obtain evidence through elec- tronic means was not fatal to application. Witness was cross- examined on his evidence given at preliminary hearing, which eliminated prejudice to accused. Witness's credibility was not at issue, he had no stake in out- come, and he was not suspected of having played role in charges. Witness's evidence, as appeared from evidence heard so far and when compared to preliminary hearing transcript, seemed to be corroborated by complainant. R. v. Ahmed (Mar. 21, 2014, Ont. S.C.J., Paul F. Lalonde J., File No. Ottawa 12-A11560) 112 W.C.B. (2d) 567. Motor Vehicles DANGEROUS DRIVING Not necessary to prove that particular member of public was actually in danger Following theft of two mo- tor vehicles, two accused were charged, one accused with 16 counts and second accused with six, after they were appre- hended driving those vehicles in vicinity of waste manage- ment plant. In course of appre- hending accused in this case, approximately 60 bullets were fired at vehicles they were driv- ing. Officers testified that ac- cused drove their vehicles right at them, forcing them to open fire. Second vehicle managed to f lee scene and rammed of- ficer's vehicle head on when he attempted to block road. Ac- cused who drove first vehicle was arrested at scene and had minor injuries to his face. Ac- cused in second vehicle con- victed of dangerous driving. It was not necessary for Crown to prove that some particular member of public was actually put in danger by driving of ac- cused. Accused was driving at such high rate of speed that he was not in position to stop when he approached officer's police vehicle. Whether or not officer's vehicle was actually in eastbound lane or westbound lane was of no moment. SUV driven by accused swerved and struck vehicle. Accused's driving was marked departure from standard of reasonably prudent person having regard to all circumstances. Accused clearly did not have control of his vehicle. Accused was oper- ating at very high rate of speed, and his driving was such that he was unable to avoid collision even though police officer's car could be seen from consider- able distance. R. v. Laforme (Mar. 10, 2014, Ont. S.C.J., Gray J., File No. 16/13) 112 W.C.B. (2d) 550. Prostitution LIVING ON AVAILS OF PROSTITUTION Accused did not take all reasonable steps to ascertain complainant's age Trial of accused on charge of living on avails of prostitute who was less than 18 years old on March 6, 2011. On that date police officers responded to newspaper ad and they met complainant at hotel room. Af- ter she advised police that she was 18, she revealed her true identity and confirmed that she was 16. Complainant knew accused for one year prior to March 6, 2011. She was then in grade 10, which accused knew, and he also knew that she was 16. Complainant decided she wanted to be prostitute. She did not have identification docu- ments and she contacted ac- cused. Complainant asked ac- cused to rent hotel room for her, which she could not do because of her age, and he did so. She dealt with one to three clients per day and she charged each client $80 for one half hour. Complainant arranged to pay accused 30 per cent of her earn- ings. He agreed to arrangement and he paid for hotel room with money that she paid him. After one week she moved to differ- ent hotel and she was at that hotel when police responded to her ad. Accused convicted. Not only did court disbelieve accused's testimony that he believed that complainant was 18, but such evidence was in- capable of raising reasonable doubt about whether he knew she was under 18. Complainant was credible and she was reluc- tant to get accused into trouble. She took responsibility for her decision to engage in prostitu- tion and it was her decision to pay accused 30 per cent of her earnings. She controlled ev- erything and he did not force her to do anything. However, she repeatedly provided false information about her age and given her prior inconsistent statement, along with false in- formation that she provided about her age, Crown failed to prove that accused knew that complainant was 16 on March 6, 2011. Accused did not take all reasonable steps to ascertain complainant's age and, in fact, he took no steps to ascertain her age. He also lived on avails of prostitution at time of com- mission of offence because he rented hotel rooms for com- plainant and he received mon- ey from her to pay for rooms. In paying for rooms accused fa- cilitated complainant's work as prostitute and he enabled her to earn money for sexual services. R. v. Salmon (Mar. 11, 2014, Ont. S.C.J., Andre J., File No. CR-12- 2112) 112 W.C.B. (2d) 591. Search and Seizure FORFEITURE Father bore higher onus for poor choice to leave violent accused alone Crown sought forfeiture of $30,000 recognizance entered into by accused and his separat- ed parents in which judge based on recognizance of $20,000 on his mother and $10,000 on his father. Accused had breached house arrest while out on bail but was arrested very shortly thereafter. Accused had previ- ous conviction for manslaughter and was out on bail after com- mitting vicious assault. Mother had sought legal advice before she went on vacation with plan that father would look after ac- cused. Father instead decided to go on brief getaway with his partner which allowed accused to take advantage of situation. Forfeiture of $10,000, $7,500 and $7,500 ordered. Full forfeiture of $10,000 ordered against ac- cused with partial forfeiture or- der against both parents. Court noted that forfeiture would have been larger against mother but for her decision to get legal ad- vice but that still did not make her decision wise. Father could not benefit from legal counsel advice received by mother and bore higher onus for his poor choice to leave violent accused alone. R. v. Norman (Apr. 2, 2014, Ont. S.C.J., Trotter J., File No. null) 112 W.C.B. (2d) 596. LT CASELAW

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