Law Times

Law Times • November 24, 2014 Page 19 www.lawtimesnews.com heard accused attempting to start van half dozen times. Po- lice arrived shortly afterwards and observed that van appeared to have collided with fire hy- drant, which was completely broken off of its base. Accused was in driver's seat and was trying to start car, but without success. Car made "clicking" sound as accused turned key. None of officers could deter- mine why van would not start. When accused got out of his van, he was intoxicated and was arrested for impaired driving. Trial judge found Crown failed to prove realistic risk of danger to persons or property. Appeal allowed; accused convicted. Ac- cused failed to rebut presump- tion. Evidence incontrovertibly established accused's intention to drive. Accused made at least eight attempts to start van. Trial judge erred in finding that, even though presumption stood un- rebutted, Crown was required to prove realistic risk of danger. That risk is embedded in pre- sumption. Trial judge's finding that starter engine had been damaged, rendering vehicle in- operable, was speculative. With someone so determined to start van, as accused was that night, and with no real evidence that vehicle was inoperable, there was clearly realistic risk of dan- ger. R. v. Blair (Sep. 16, 2014, Ont. S.C.J., Trotter J., File No. 17/13) 115 W.C.B. (2d) 601. Trial judge erred in concluding that there was no realistic risk of danger to persons or property Crown appealed accused's ac- quittals on charges of impaired and "over 80" after trial judge determined accused was not in care and control of vehicle. Two officers were dispatched to deal with male who was sleeping behind wheel of his "disabled" motor vehicle on exit ramp leading from highway. Upon their arrival, officers observed accused's vehicle parked in middle of off-ramp, in live lane of traffic. Accused was asleep in driver's seat of his vehicle, which was reclined. Doors of accused's vehicle were open and paramedics, who were al- ready on scene, were talking to accused and trying to rouse him. They were having "hard time" waking him up. Officers observed that keys were still in the ignition, but engine was off and transmission of vehicle was in park. When accused first woke up, he was "very groggy and sleepy" and he was unable to speak. Accused did not re- spond when asked if he knew where he was but responded affirmatively when asked if he had had any alcohol to drink. Accused was then arrested, read his rights to counsel and breath demand. Accused gave BAC readings of 153 and 163. Toxicologist projected ac- cused's blood-alcohol concen- tration to have been 150 to 200 mgs. Accused testified that he was not intoxicated and merely fell asleep while awaiting tow truck to come due to fact his ve- hicle had broken down and was inoperable. Appeal allowed; accused convicted. Trial judge committed palpable and over- riding error in concluding that, when police arrived on scene, there was no realistic risk of danger to persons or property. All but one of 14 Szymanski factors suggested that accused was in "care or control" of his vehicle. Only factor that sug- gested otherwise was that en- gine of accused's vehicle was not running as it was inoperable. Jurisprudence collectively held in cases where vehicle is inop- erable, necessary realistic risk of danger may well be created by inherently dangerous loca- tion of stationary, incapacitated vehicle on or near roadway, in combination with alcohol- impaired accused who might realistically escalate that inher- ent risk of danger by his or her negligent or accidental conduct in relation to vehicle. Parking of MTO truck simply showed that driver of that truck was so concerned about risk of danger inherent in location of accused's vehicle that he or she tried to as- sist other motorists in avoiding that road hazard. R. v. Balogun-Jubril (Sep. 15, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 96/13) 115 W.C.B. (2d) 602. Search and Seizure PROCEDURE No rule that no reasonable expectation of privacy in apartment building hallway Accused, charged with mul- tiple drug trafficking and other related offences, arising out of search of apartment accused was alleged to have used as stash house, applied to cross- examine affiant and two sub- affiants of ITO for search war- rant. As result of undercover operations, particular suspect- ed drug dealer was targeted for surveillance. That surveil- lance eventually encompassed some of day-to-day activities of accused. As result of their sur- veillance of accused and associ- ate, police began to suspect that apartment within large apart- ment building was being used as place to store drugs. Apartment building had multiple f loors with multiple apartments on each. Ac- cess to its interior was controlled via buzzer system at building's otherwise locked front door. Two detectives somehow entered building without being invited in by anyone. Once inside, de- tectives made observations con- necting accused to apartment. Observations made involving ac- cused's connection to apartment were included in ITO which formed basis for application for search warrant to search that premise. Those detectives were sub-affiants. Application al- lowed. While court agreed with Crown that Charter protects people and not places and that concept of reasonable expecta- tion of privacy was paradigm through which search issues are analyzed, court could not agree that law contained automatic rule that there was no reason- able expectation of privacy in apartment building hallway. Dispute would turn on balanc- ing of two interests: yet to be determined reasonable expec- tation of privacy (if any) that accused had with respect to free enjoyment of private property, weighed against societal inter- est in proper and effective law enforcement. Circumstances re- lating to investigators' possible trespass upon private property were material and relevant with respect to both sides of that led- ger. On one hand, perception by police (or lack thereof ) of any legal prohibition standing in way of their entry into building could be informative of objec- tive reasonableness of anyone claiming reasonable expectation of privacy therein. On other, court's assessment of conduct of law enforcement personnel could involve consideration of issues relating to presence or absence of good faith on part of authorities. R. v. Cheikhezzein (Sep. 16, 2014, Ont. S.C.J., Kevin B. Phillips J., File No. 12-G1005, 12-G1002, 12-G20060, 12-G20061) 115 W.C.B. (2d) 616. LT CASELAW 2015 ONTARIO LAWYER'S PHONE BOOK With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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