Law Times

Law Times • January 26, 2015 Page 15 www.lawtimesnews.com Application granted. Umpire's de- cision quashed, and matter remit- ted for redetermination based on finding that respondent was not entitled to benefits. To constitute misconduct, behaviour had to be willful. Umpire concluded that respondent's violent act was not deliberate. Fact that respondent acted on impulse was not relevant to decision as to whether there was misconduct. Violence in work- place could not be sanctioned by entitlements to benefits. Purpose of law was to protect workers who lost employment involuntarily, not those who were unemployed because of their fault. Canada (Procureur général) c. Kaba (Sep. 11, 2013, F.C.A., Noël J.A., Johanne Trudel J.A., and Mainville J.A., File No. A-33-13) 245 A.C.W.S. (3d) 854. ONTARIO CRIMINAL DECISIONS Breathalyzer ADMISSIBILITY OF CERTIFICATE Judge erred in ruling alcohol standard solution raised doubt Crown appealed acquittal of ac- cused for over 80 after judge had doubt about certificate based on alcohol solution evidence. There were no Charter motions or objections as to admissibility of certificate nor evidence that Intoxilyzer 8000c had malfunc- tioned or was operated improp- erly. Application allowed, guilty verdict entered. Presumptions of s. 258(1)(c) of Criminal Code were applicable due to lack of any objection or evidence of malfunction therefore judge erred in ruling alcohol standard solution raised doubt. Case in- volved one issue only which made proper verdict guilty. R. v. Widdis (Jul. 30, 2014, Ont. S.C.J., D. Salmers J., File No. Os- hawa 13448/13) 116 W.C.B. (2d) 457. PROOF OF BLOOD- ALCOHOL LEVEL Errors affected trial judge's credibility assessment of accused Accused claimed he drank two shots of whisky at relative's house and then another 5 or 6 ounces of whisky just before going home. Accused claimed his wife was driving home, but after fight, left him in vehicle near home. Police officer found accused in driver's seat, with engine running. Accused had red-rimmed eyes, smelled of al- cohol and was unsteady on his feet. Accused's breath sample was over legal limit. Accused charged with and convicted of impaired driving and driving over 80. Accused appealed. Ap- peal allowed; new trial ordered. Trial judge did not reject ac- cused's evidence that his wife was going to be driving home. Trial judge erred in misstating prior case law by stating that people do not normally drink large amounts of alcohol shortly before driving or getting into motor vehicle. Prior case only stated that people do not nor- mally drink large amounts of alcohol shortly before driving. Trial judge also erred in finding that if accused's marriage was problematic, last thing accused would want to do is aggravate his wife by recklessly consum- ing such amount of alcohol, knowing that wife disapproved. Trial judge erred in relying on video of accused in breathalyzer room as evidence of impair- ment when police found him in vehicle, because video was taken more than one hour after ac- cused was found in vehicle. Er- rors affected trial judge's cred- ibility assessment of accused. R. v. Purewal (Jun. 13, 2014, Ont. S.C.J., Durno J., File No. 2211/12) 116 W.C.B. (2d) 477. Charter of Rights SEARCH AND SEIZURE Reasonable justification for late-night, dynamic entry Police received information from confidential informant that ac- cused was in illegal possession of firearm. Informant's motiva- tion was monetary compensa- tion but was told that informa- tion had to be proven to be reli- able and accurate and result in arrest. Informant had criminal history but had provided reli- able information to police on two previous occasions. Officer swore Information to Obtain and obtained warrant to search accused's residence and busi- ness. Police executed warrant at residence in early morning and discovered loaded handgun behind dresser in bedroom. Ac- cused charged with four offenc- es. Accused applied to exclude firearm from evidence on basis of breaches of s. 8 of Canadian Charter of Rights and Freedoms. Application dismissed. Issuance of search warrant was not result of any violation of s. 8. Detailed narrative provided by informant was compelling and credible and aspects of information were corroborated. Based on record before issuing justice, as ampli- fied and excised on review, there was sufficient information that could have permitted justice to conclude that there were reason- able grounds to justify issuing warrant. Telewarrant procedure appropriately employed by po- lice. There was reasonable justi- fication for late-night, dynamic entry. Police did not use excessive force in execution of warrant. R. v. Boussoulas (Sep. 25, 2014, Ont. S.C.J., Kenneth L. Camp- bell J., File No. 0206/12) 116 W.C.B. (2d) 474. TRIAL WITHIN REASONABLE TIME Trial judge erred in concluding vigorous defence inconsistent with seeking trial within reasonable time Accused was charged with im- paired driving and driving over 80. Information was sworn on April 13, 2010 and trial began Sept. 6, 2011. Trial was continued three times by August 27, 2012, at which point accused brought application to stay charges on basis of unreasonable delay con- trary to s. 11(b) of Charter. Trial judge dismissed application and accused was convicted. Accused appealed convictions and ruling on s. 11(b) of Charter. Appeal al- lowed on other grounds. Parties' estimation of trial taking three- quarters of one day was problem- atic, given that interpreter was being used and accused wanted to play one-hour video, and trial took approximately 12.5 hours to complete. However, it could not be ignored that on two of trial continuation dates, trial judge heard urgent family law matters in morning. Trial judge erred in only considering accused's underestimation for trial time and in indicating that it did not matter if he micro-analyzed time periods. Trial judge erred in con- cluding vigorous defence was inconsistent with seeking trial within reasonable time and in applying "exquisite agony" stan- dard for prejudice. Total delay from information to Charter ap- plication, being 2 years, 4 months and 15 days, was sufficient to re- quire examination of delay. Of that time, total institutional and Crown delay was 11.5 months. Delay in obtaining continuation dates was apportioned consid- ering multiple causes. Despite some additional specific preju- dice to accused, proceedings should not have been stayed, as this was not straightforward case and delay was within constitu- tionally tolerable time. R. v. Purewal (Jun. 13, 2014, Ont. S.C.J., Durno J., File No. 2211/12) 116 W.C.B. (2d) 477. Drug Offences IMPORTING Accused had knowledge and control of cocaine in his trailer Trial of accused on one charge of unlawfully importing cocaine into Canada and one charge of possession of cocaine for pur- pose of trafficking. Accused drove his tractor trailer from California into Canada. Trailer contained 54 bins of oranges and it also contained 69 kilograms of cocaine that was discovered by border officers during dog train- ing exercise. Accused claimed he had no knowledge of cocaine, which was hidden in two bins of oranges at back of trailer. Accused convicted of both of- fences. Crown proved elements of offences beyond reasonable doubt. Given physical evidence and resulting inferences, neither accused's testimony, nor any other evidence, raised reasonable doubt. His testimony did not correspond to physical evidence in this case. Accused had knowl- edge and control of cocaine in his trailer, that he intended to import drug into Canada and that he possessed it for purpose of trafficking. He also intended to stop trailer and unload co- caine before he arrived at facility where oranges were to be deliv- ered. Accused's evidence was not credible and accused was evasive and defensive when he answered questions. R. v. Singh (Sep. 22, 2014, Ont. S.C.J., Pomerance J., File No. CR- 10-2123) 116 W.C.B. (2d) 484. Evidence CREDIBILITY Trial judge filed to consider circumstances of touching and whether for sexual purpose Accused appealed conviction for sexual assault and sexual interfer- ence. Accused was close friend of complainant's family. Following sand fight at beach, accused took complainant into shower and helped him wash off. Accused also had his clothes off while in shower. In videotaped statement, complainant indicated that ac- cused rubbed his skin very hard to get sand off, including his neck, upper chest, mid-chest, lower abdomen, and crotch area. Accused argued that verdict was unreasonable because Crown did not prove that touching was for sexual purpose. Accused ar- gued that trial judge erred in not following W.D. analysis. Appeal allowed, verdict set aside, con- victions vacated, verdict of not guilty entered. Trial judge gave dangerously incomplete sum- mation of required W.D. analy- sis. Trial judge used imputed dishonesty in accused's pre-trial statement to lead to inference that he just could not admit that he touched complainant for sex- ual purpose. There was omission of any testing examination af- ter trial judge rejected accused's evidence. Second step in W.D. appeared to have been omitted. Instead of seriously consider- ing whether accused's evidence raised reasonable doubt, trial judge found accused guilty by relying on what he found to be accused's lies and complainant's out-of-court statement, where officer pointed to complainant's penis when complainant had not indicated he was touched there. Trial judge failed altogether to consider circumstances of touch- ing and whether it was for sexual purpose. Trial judge erred in fail- ing to follow W.D. analysis and conf lated disbelief of accused's evidence with guilt. Verdict was unreasonable in that evidence of sexual element in any touching was insufficient, if not totally ab- sent. R. v. Zimmerman (Sep. 30, 2014, Ont. S.C.J., Howden J., File No. Cobourg 695/11) 116 W.C.B. (2d) 562. Motor Vehicles IMPAIRED DRIVING AND 'OVER 80' Result would not have been different even if trial judge had not made self-reporting error Accused appealed conviction for "over 80". On his way to report for his intermittent sentence, ac- cused's vehicle struck another vehicle from behind. Accused testified that after accident, but prior to providing breath samples, he "chugged" most of mickey of whiskey, which ac- counted for high blood alcohol content readings. Accused testi- fied that he was not drunk when he drove. Trial judge did not believe accused and said that his story was preposterous. Not being left in state of reasonable doubt, trial judge convicted ac- cused based on rest of evidence. Accused argued that trial judge misapprehended, erred in tak- ing judicial notice of surrender times at institution, and erred in using his compelled state- ments to evaluate his credibility. Appeal dismissed. Trial judge made no errors that were mate- rial to outcome. Finding that ac- cused's evidence was not cred- ible and did not raise reasonable doubt was amply supported by evidence. If accused had en- gaged in intervening drinking, he should have displayed pro- cess of gradual intoxication, and would not have been so intoxi- cated just few minutes after sup- posedly downing most of mick- ey of whiskey that officer was able to form sufficient grounds to arrest him for impaired driv- ing. Trial judge was correct that accused's story defied ordinary human experience. Only person who could have corroborated accused's story would have been his "buddy" whom he regularly drove to institution, but accused claimed not to know his last name, did not have forward- ing address, and his cell phone was apparently disconnected. Trial judge did not use accused's criminal record to incriminate accused, but rather to evaluate accused's credibility. Accused knew something about drink- ing and driving, something about how police operate, and something about Highway Traf- fic Act (Ont.) offences, and trial judge was entitled to take that into account when evaluating his credibility. Trial judge deliv- ered reasons from bench after hearing submissions, and was not held to standard of perfec- tion. Toxicologist's evidence was capable of supporting defence theory, but it did not lead inexo- rably to finding that exculpated accused. Trial judge very clearly rejected accused's evidence, in- dependent of toxicologist, and any error with respect to toxicol- ogist's evidence was not material to reasoning process. Factual er- ror regarding surrender times at institution was harmless, as trial judge did not rely on this factual error in assessing accused's cred- ibility. Accused's statement to police that he had smoked mari- juana played virtually no role in trial judge's credibility analysis. Even in absence of accused's lie about marijuana, trial judge un- doubtedly would have come to same conclusion about accused's credibility, and same verdict. It would have been speculation for court to find that exclusion of accused's admission that he was driver would have led to differ- ent result at trial. There was pos- itive evidence from more than one witness identifying accused as driver. Result would not have been different even if trial judge had not made self-reporting er- ror. R. v. Kahl (Sep. 24, 2014, Ont. S.C.J., R.F. Goldstein J., File No. LT CASELAW

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