Law Times

Law Times • February 9, 2015 Page 15 www.lawtimesnews.com children were showing signs of acute anxiety and withdrawal. However, overarching concern of society centred on real dif- ficulty in protecting children from recurring chronic do- mestic violence occurring be- tween parents. Parents argued that society failed in its duty to support their family unit with appropriate services which ad- equately recognize bonding and attachment between them and their children. Order granted. Court cited inability parents had demonstrated in learning how to change their behaviour and conform to instruction and counselling they had received from Society workers and, over time, so many other sources. Neither parent put forward mer- itorious plan which would lead court to believe that there was chance of positive change which could lead to reduction of con- tinuing real risk to children or, alternatively, intervention of any other relative or family member to assist. Evidence did show that children had responded well to their foster care placement and demonstrated real progress and improvement. In circumstances, any return of children to moth- er was impossible. Order was granted committing children to care of society as wards of Crown. Children's Aid Society of London and Middlesex v. T. (B.J.) (Mar. 13, 2014, Ont. S.C.J., Henry Vogelsang J., File No. C48/10- 06) 246 A.C.W.S. (3d) 605. SUPPORT Father's layoff from employment did not constitute intentional unemployment Parties were married for five years and had one child. Mother had custody of child. Both par- ties had remarried. Parties en- tered into separation agreement where father agreed to pay child support of $519 per month based on income of $73,441 per year. Father was laid off from his job when plant he worked at closed. Father accepted severance pack- age. Father started apprentice- ship in plumbing and it would take few years before he was at former income level. Father brought motion to change child support. Motion granted. Father acted in good faith when his long-term employment ended. It was reasonable and prudent for father to accept severance pack- age. Father acted in good faith in trying to find other employment after he was laid off. It could not be concluded that there were more promising job opportu- nities that he should have pur- sued instead of apprenticeship. Father's layoff from long-term employment did not constitute intentional unemployment. It was not father's fault he lost job and loss of job was material change in circumstances. Father did not act irresponsibly, reck- lessly or maliciously in assessing his options after he received lay- off notice. It was reasonable for father to consider learning new trade and to select plumbing. Father applied himself diligently and with commitment to pur- sue sensible and financially vi- able career plan. Father had not disregarded his family respon- sibilities. Father was ordered to pay guideline support of $325 per month based on income of $35,000 per year plus his pro- portionate share of s. 7 expenses. Tillmanns v. Tillmanns (Nov. 21, 2014, Ont. S.C.J., Pazaratz J., File No. F1865/11) 246 A.C.W.S. (3d) 639. Police DISCIPLINE Divisional Court had no juris- diction to consider issue raised in judicial review application Applicant was constable with police service. Applicant was on duty and was allegedly involved in physical altercation with son. Chief of police initiated investi- gation and suspended applicant with pay. Criminal charges were not laid against applicant. More than one year after investiga- tion, chief of police applied for and obtained permission from police governing authority to serve applicant with notice of formal discipline hearing. Po- lice governing authority ex- tended time for service of no- tice of discipline proceedings upon applicant. Applicant did not receive notice of applica- tion. Applicant applied for order quashing decision. Application was granted. Divisional Court held that failure to give appli- cant notice of application to extend time for service of notice breached standards of proce- dural fairness. Police governing authority, chief of police and police service maintained that Divisional Court had no juris- diction to hear judicial review application because dispute over applicant's entitlement to notice of application to extended time for service of notice of discipline proceedings was dispute related in discipline and was matter that fell within ambit of collec- tive agreement. Police govern- ing authority, chief of police and police service appealed. Appeal allowed. Although jurisdiction- al argument was not raised in court below, it was considered by appellate court because it was potentially determinative of dis- pute, it could be fully considered without adding anything to re- cord and it did not prejudice applicant in any manner that could not properly be addressed by costs order. Divisional Court had no jurisdiction to consider issue raised in judicial review application. Arbitrator appoint- ed under collective agreement had exclusive jurisdiction to de- termine whether applicant was entitled, as matter of procedural fairness, to notice of application for extension of time to bring discipline proceedings against him. George v. Anishinabek Police Ser- vice (Aug. 15, 2014, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and Paul Rouleau J.A., File No. CA C57883) Decision at 226 A.C.W.S. (3d) 868 was reversed. 246 A.C.W.S. (3d) 702. Professions BARRISTERS AND SOLICITORS Respondent corporation, not inventor, retained applicant`s legal services Applicant alleged that respon- dent retained its legal services in patent application and pro- tection and was liable to pay accounts. No written retainer agreement was signed between parties. Respondent alleged that legal services were retained by inventor personally. Inventor was senior officer and directing mind of respondent corpora- tion. Applicant brought appli- cation for assessment of unpaid accounts. Application granted. Although communication was made through inventor, in- voices for several patent appli- cations were addressed to and paid by respondent corporation. Evidence demonstrated that re- spondent corporation, not in- ventor, retained applicant's legal services and was liable to unpaid accounts. Gowling Laf leur Henderson LLP v. Transpharm Canada Inc. (Oct. 21, 2014, Ont. S.C.J., Kane J., File No. Ottawa 12-54168) 246 A.C.W.S. (3d) 703. ONTARIO CRIMINAL DECISIONS Charter of Rights SEARCH AND SEIZURE Sufficient facts justified issuance of search warrants and production orders Application by two accused to exclude evidence against them. Accused were charged with first degree murder of victim. Crown claimed that victim was first ac- cused's landlord and that first accused planned murder and he recruited second accused to carry it out in return for finan- cial reward. Police arrested sec- ond accused within minutes of discovery of victim's body. First accused was found at scene of murder and he was treated as material witness. He was later arrested at police station dur- ing interview with police. Just prior to his arrest he was being interviewed as witness. Police obtained search warrants for hotel room that second accused was staying at and for first ac- cused's home. At first accused's home they found knife set that was missing knife, and missing knife was found in creek near first accused's home. Missing knife contained victim's blood and second accused's DNA. Police seized several comput- ers and other media devices. Other warrants and produc- tion orders were subsequently obtained as part of murder in- vestigation. Police also seized victim's eyeglasses which were found on garage f loor of first accused's home. Application dismissed. Sufficient facts were provided that justified issuance of search warrants and produc- tion orders. Use of telewarrant process did not violate accused individuals' rights under s. 8 of Canadian Charter of Rights and Freedoms. Belief of officer, who resorted to this process because he did not think that justice of peace was available when docu- mentation to apply for warrant was completed, was reasonable. Justice who signed telewarrant would have refused application if justice of peace was person- ally available to do so. There was sufficient basis provided in Information to Obtain ("ITO") warrant to search first accused's home. First accused failed to establish that ITO contained inaccurate information or mate- rial fact that was not disclosed. Affiant did not mislead issuing justice. First accused claimed that warrant for first accused's home only allowed seizure and search of computers in home. This was irrelevant for police obtained multiple additional warrants to authorize search of computers. Police had basis to search first accused's comput- ers. First accused's telephone subscriber information and fact that first accused held bank ac- counts at various institutions were properly provided to po- lice. ITOs submitted in support of nine production orders that police obtained contained rea- sonable grounds to believe that documents or data that would be obtained would afford evi- dence respecting commission of offence. Warrant to search storage locker that was in name of first accused's girlfriend was validly issued. Accused failed to show that warrants and produc- tion orders were invalid but even if they were, evidence obtained through them was admissible. R. v. Nurse (Oct. 15, 2014, Ont. S.C.J., Coroza J., File No. CRIMJ(P) 339/13) 117 W.C.B. (2d) 133. Drug Offences IMPORTING Trial judge erred by relying on officer's case-specific opinions concerning accused's credibility Accused appealed his convic- tions for importing cocaine and possession of cocaine for pur- pose of trafficking. Canada Bor- der Services discovered approx- imately 53 kilograms of cocaine concealed in load of electronic games contained in commer- cial trailer driven by accused, long-haul truck driver. Accused testified at trial and denied any knowledge of cocaine in his trailer. Accused contended that trial judge erred by failing to confine his use of officer's opin- ion evidence to proper limits of that evidence. Opinion at issue addressed use of commercial ve- hicles for transportation of con- traband, including drugs. Opin- ions described were mostly gen- eral in nature. However, officer also offered several case-specific opinions, some of which bore directly on accused's credibil- ity and his alleged knowledge of cocaine in his vehicle. Ap- peal allowed; new trial ordered. Trial judge erred by relying on officer's case-specific opinions concerning accused's credibility and key question of accused's knowledge of presence of co- caine in his vehicle. In circum- stances where no formal admis- sion of facts in report had been made, it was not open to trial judge to rely on report for truth of its contents. Officer's opinion on accused's alleged association with organized criminal ele- ments, his knowledge of cocaine in his trailer, and his credibility, strayed beyond proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to accused. These opinions concerned core, in- deed pivotal, questions before trial judge. Officer's personal opinions on these issues were not necessary. Suggestion that trial judge did not rely on inad- missible evidence was rejected. Reasons were replete with ref- erences, direct and indirect, to accused's case-specific opin- ions, including, especially, those pertaining to likelihood that accused knew of presence of cocaine in his vehicle and his credibility. In embarking on his assessment of accused's cred- ibility, trial judge expressly in- dicated that he regarded report as benchmark against which accused's testimony was to be tested. Trial judge's reliance on impugned evidence permeated his reasons making curative proviso inapplicable. There was dissenting opinion that would have dismissed accused's con- viction appeal but allowed his sentence appeal. R. v. Singh (Nov. 10, 2014, Ont. C.A., John Laskin J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C56314) 117 W.C.B. (2d) 149. Motor Vehicles IMPAIRED DRIVING AND 'OVER 80' Judge cautioned himself about dangers of convicting based on uncorroborated identification evidence Accused appealed his conviction for impaired driving with pri- mary issue being identification by police of accused as driver. Officer noticed vehicle driv- ing erratically and followed it to apartment parking lot where driver got out of car and f led. Officer arrested accused on bal- cony and accused was aware that police were concerned about driver and he had possession of key for vehicle. Judge cautioned himself about dangers of con- victing based on uncorroborated identification evidence. Appeal dismissed. Judge carefully re- viewed and described evidence he accepted, was alive to dangers and there was circumstantial evidence confirming testimony of officer such as key and knowl- edge of accused. R. v. Williams (Oct. 20, 2014, Ont. C.A., E.A. Cronk J.A., H.S. La- Forme J.A., and C. William Hou- rigan J.A., File No. CA C55137) 117 W.C.B. (2d) 148. LT CASELAW

• Cover