Law Times

Law Times • OctOber 27, 2014 Page 15 www.lawtimesnews.com Mother taught at elementary school in Brampton. Mother saw that daughter was having social problems at school in Missis- sauga, and younger son was hav- ing academic difficulties. Mother unilaterally transferred children from school in Mississauga to her school in Brampton. Mother claimed she tried to contact father week earlier by phone but he be- came angry and hung up. Father had recently re-located home to be closer to children's home and Mississauga school in order to reduce travel time during access visits. Court order required par- ties to bring any dispute regarding custody or access, including chil- dren's education, to court for reso- lution if it could not be resolved by mediation. Father brought motion to have mother found in contempt of court order. Motion granted. By unilaterally transfer- ring children's schools without consent of father who shared cus- tody and without leave of court, mother wilfully breached court order. Limited evidence did not allow court to assess whether transfer of children to new school was necessary or appropriate. Transfer added to distance father and children were required to travel when he exercised access and it deprived father of oppor- tunity to challenge mother's deci- sion that transfer of schools was in children's best interests. Court was reluctant to order further change in schools until Office of Children's Lawyer (OCL) provid- ed assessment. Mother's unilateral transfer of children to new school in violation of court order with negative impact to father's access was material change of circum- stances that required fresh con- sideration of what arrangements were in children's best interests. Order was varied. Pending assess- ment by OCL, it was in children's best interests that negative impact of transfer on father's access be remedied by interim variation of older son's residence to father and increase in father's weekend ac- cess to two other children. Skura v. Fibingr (Feb. 14, 2014, Ont. S.C.J., Price J., File No. Brampton FS-08-3792) 241 A.C.W.S. (3d) 326. Courts JUDGES Reasonable person could expect trial judge would follow law Deputy director of titles granted possessory title to claimant of waterfront land to which objec- tor held title. Objector appealed. Order made at first trial was set aside on appeal and new trial was ordered. Outcome of second trial was determined in favour of claimant and she was declared owner in fee simple of disputed land. Claimant was awarded sub- stantial indemnity costs of two proceedings fixed at $490,000, inclusive of HST. Claimant ap- plied for order that objector's lawyer to be personally ordered to pay costs pursuant to Rule 57.07 of Rules of Civil Proce- dure (Ont.), due to involvement of expert. Lawyer requested that judge recuse herself on basis of reasonable apprehension of bias. Application dismissed. Trial judge was in best position to de- termine costs under Rule 57.07(1) because only he or she could fully appreciated basis for considering award of costs against solicitor. Request that judge recuse herself in middle of determining costs of trial was unusual and proce- durally problematic. There must be some initial assessment by trial judge that factors existed to justify invoking Rule 57.07, and judge did not approach issue with completely unfettered mind but only after carefully consid- ering whether prima facie case was made out. Costs endorse- ment identified bias on part of objector's expert and finding was procedurally necessary and was open to trial judge to make. Informed, reasonable and right- minded person could not con- clude that endorsement logically pointed to inability to fairly de- cide Rule 57.07 costs issue. Rea- sonable person could expect that trial judge, who was presumed to be impartial, would follow law and consider all arguments as to whether conduct in issue was sat- isfied Rule 57.07. Apprehension of bias was not reasonable. Bailey v. Barbour (Jun. 18, 2014, Ont. S.C.J., S.E. Healey J., File No. CV-10-249) Additional reasons to 239 A.C.W.S. (3d) 574. 241 A.C.W.S. (3d) 282. Criminal Law CIVIL FORFEITURE Convictions for possession of drugs probative of source of funds Police officer observed accused and girlfriend in heated argu- ment. When officer asked if ev- erything was okay, accused swore at officer, swung dog's leash over his head and approached officer. Officer threatened to stun him with taser and accused desisted. Accused was arrested for assault- ing police officer. Accused was searched and $10,000 cash was found in pocket of jeans. Money was seized and accused was re- leased from custody after being charged with public intoxica- tion. Attorney General applied for forfeiture order of money on grounds that it was proceeds of unlawful activity or instrument of unlawful activity or both. Ap- plication granted. In light of na- ture of drug trade, presence of significant amount of cash found late at night on accused after he had been in bar, bundled in way it was, was strong circumstantial evidence from which inference could be made that money was proceeds of drug trafficking, in- strument of drug trafficking or both. Accused's convictions for possession of drugs were proba- tive of source and purpose of funds that were found. Accused failed to provide satisfactory ex- planation as to manner in which he came to possess $10,000 and reason why he had cash in his pockets. Money was proceeds of unlawful activity or instrument of unlawful activity and was for- feited to Crown. Ontario (Attorney General) v. $10,000.00 in Canadian Cur- rency (In Rem) (Feb. 10, 2014, Ont. S.C.J., Ellies J., File No. CV- 12-5531) 241 A.C.W.S. (3d) 360. Injunctions INTERLOCUTORY RELIEF Berm violated by-law relating to encumbrances Property owner's property con- sisted of 48 acres of land with family home. Owner's property had series of berms. Owner's pre- decessor in title had constructed one berm. Constructed berm al- legedly caused pooling in ditches beside road. Municipality com- menced action against owner for injunction requiring him to remove constructed berm. Municipality brought motion for interim and interlocutory injunction requiring owner to remove constructed berm. Mo- tion granted. Circumstances re- quired statutory injunction to be issued pursuant to s. 440 of Mu- nicipal Act, 2001 (Ont.). Munici- pality had not performed work that caused pooling as alleged by owner. Owner's evidence was unreliable overall. Constructed berm was causing pooling. Ditch was part of road over which mu- nicipality had jurisdiction. Con- structed berm violated by-law re- lating to encumbrancing of roads as well as regulation relating to f low of water. Expert evidence established risk of harm from pooling. There were no special circumstances preventing issu- ance of injunction. There was no need to address irreparable harm and balance of convenience in context of statutory injunction. York (Regional Municipal- ity) v. DiBlasi (May. 28, 2014, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CV-13-113912- 00) 241 A.C.W.S. (3d) 437. ONTARIO CRIMINAL DECISIONS Appeal NEW TRIAL Evidence of prior conduct in context of harassment charge presumptively admissible Appeal by Crown from acquittal of accused on charge of criminal harassment. Complainant was former employee of accused. She left his employ on bad terms in 2010 because he provided poor reference for her when she ap- plied for another job. After com- plainant left accused called her on numerous occasions and he left messages in which he said he missed her. Accused called in total of between 20 and 30 times and this forced her to change her phone number. He waited for her outside her home and he left gifts for her at home of her par- ents. Gifts continued even after she changed her phone number. Complainant went to police and they warned accused not to have any further contact with her. She was working at restaurant on March 27, 2013 and accused at- tended restaurant and he tried to get her attention and she ignored him. When complainant went to her car accused sped towards her in his vehicle. Accused followed her in his vehicle and complain- ant called her boyfriend on her cell phone. Trial judge found that there had been no overt threat and he described restaurant en- counter as innocuous. Appeal al- lowed. Acquittal set aside. Judge erred in excluding content of telephone calls placed by accused to her prior to March 27 inci- dent. Evidence of prior conduct in context of criminal harass- ment charge was presumptively admissible. Previous interactions between accused and complain- ant, that set backdrop for charge, had to be heard and evaluated to assess reasonableness of com- plainant's fear. Judge also erred in his treatment of restaurant encounter, in which he excluded relevant evidence. His descrip- tion of restaurant encounter, which he termed as being in- nocuous was illogical. Based on evidence that judge did accept, his acquittal was unreasonable. New trial was ordered to enable all of relevant evidence to be be- fore court. R. v. Deary (Jun. 18, 2014, Ont. S.C.J., Healey J., File No. CR-13-231-AP) 114 W.C.B. (2d) 5. Charter of Rights RIGHT TO BE INFORMED OF SPECIFIC OFFENCE Officer had no excuse for not advis- ing accused passenger was deceased Accused charged with impaired driving causing death, causing death while driving "over 80", criminal negligence causing death, and dangerous driving causing death. Breath technician said she made "conscious deci- sion" not to tell accused about death out of safety concerns, having been attacked by drunk person in past resulting in in- juries requiring surgery. Breath technician acknowledged that, while in breath room, she was armed, as were two other officers. Officer asked others involved if accused had been advised that he was facing charge involving fatality. When officer heard ac- cused had not been so advised, he went into interview room to speak to accused, and told him that his passenger had died and that he was facing much more serious charge of impaired driv- ing causing death. Officer asked accused if he wished to speak to lawyer and accused declined but officer persisted and told him that charge was much more serious and that he would probably go to jail after which accused opted to speak with duty counsel. First breath sample excluded. Court agreed accused's rights had been breached. It was completely un- reasonable for police officer to think that person, who was com- pletely covered by tarp, and un- attended by any EMS personnel, might still be alive. If officer had any doubt, he could have asked one of paramedics. Officer had no excuse for not advising accused passenger was deceased. If police had wished to wait for official confirmation, they should have refrained from attempting to elicit evidence from accused in mean- time. Accused's conduct at scene and at police station belied actual awareness of passenger's death. While court believed breath technician's reasons she gave for not informing accused of fatality, it was not acceptable reason for failing to inform accused of true state of affairs. After accused was properly apprised of his jeopardy and persuaded of potential penal consequences of the situation, he did call lawyer. This turn of events spoke to obvious inadequacy of previous information provided to accused. Short of finding bad faith, conduct of four officers involved was wilful or seriously reckless. Actions of officer who informed accused of passenger's death were Charter-compliant and severed link between earlier breach and collection of second sample. R. v. Karafa (May. 21, 2014, Ont. S.C.J., Trotter J., File No. null) 114 W.C.B. (2d) 68. Sentence BREAK AND ENTER Accused betrayed friend- ship with victim Sentencing of accused after he was convicted of breaking and entering with intent. Accused broke and entered into female victim's home. They were friends at that time but accused did not have permission to be inside her home. When accused broke into home he intended to com- mit indictable offence of theft. Security camera captured what accused did inside victim's bed- room, which was to rummage through her furniture and to handle her private and personal effects, which included her bras and underwear. Accused did not steal anything. He was 55 years old and as result of his ar- rest he was separated from his wife, who commenced divorce proceedings. Accused had two very old but related convictions on his criminal record. He had solid and steady employment as tradesman but after he was ar- rested he lost his job. Accused was very depressed since his ar- rest and he was on medication. He was sentenced to 90 days' imprisonment, to be served on intermittent basis. Once that sentence was completed accused was to be subject to three-year probation order. Accused was also subject to DNA order and to weapons prohibition. His con- duct was deplorable, he betrayed his friendship with victim and he committed gross breach of trust. Conditional sentence was inappropriate for applicable con- siderations of denunciation and general deterrence could not be adequately addressed through such sentence. R. v. L. (W.) (Jun. 6, 2014, Ont. S.C.J., C.J. Conlan J., File No. 13-110) 114 W.C.B. (2d) 87. LT CASELAW

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