Law Times

Law Times • March 23, 2015 Page 15 www.lawtimesnews.com by not holding off performing breath tests to give reasonable opportunity to consult with counsel before breath tests were administered. Trial judge found that seriousness of infringe- ment by officer was attenu- ated by later Charter-compliant conduct of breath technician and, therefore, only modestly favoured exclusion of breath test readings from evidence. Trial judge denied accused's ap- plication to exclude breath test results and admitted evidence. Accused argued that trial judge erred in finding that his state- ment to breath technician con- stituted clear and unequivocal waiver. Accused argued that trial judge erred when he misap- prehended accused's evidence in material fashion with respect to meaning of impugned utter- ance, thus resulting in unfair trial and miscarriage of justice. Appeal allowed, new trial or- dered. Accused's assertion of his right to counsel was inherent in trial judge's adverse inference against Crown that accused did not clearly and unequivocally waive his rights to counsel with officer. Accused's statement to breath technician was equivocal and capable of supporting many interpretations. In circumstanc- es, it was incumbent on breath technician to explore matter further to get clarification fol- lowing accused's statement and to give Prosper warning. Trial judge erred in finding that there was waiver of right to counsel prior to taking of breath tests. In circumstances, starting with his experience with officer and con- tinuing with breath technician, accused's statement was not expression of waiver, but rather one of frustration, or even of res- ignation. Court's findings raised question of whether result of Grant analysis would have been same. R. v. Swaine (Dec. 8, 2014, Ont. S.C.J., James A.S. Wilcox J., File No. 002/14 AP) 118 W.C.B. (2d) 29. Fraud PROOF OF OFFENCE Trial judge failed to explain why potentially exculpatory evidence did not raise reasonable doubt Accused appealed his convic- tions for six counts of fraud and theft. Accused was fuel delivery truck driver. Allegations were that accused was delivering fuel to third party while purporting to deliver to customers of his employer. Evidence consisted of number of GPS and Geocoder records regarding location of ac- cused's delivery truck at certain times, plus other machine-gen- erated delivery slips/invoices, as well as charts prepared from those records, which purported to show that accused's truck was delivering fuel to third party at times when customers of em- ployer were being invoiced. Ap- peal allowed; accused acquitted. There were number of errors of law that undermined safety of verdict. One was that trial judge failed to explain why po- tentially exculpatory evidence did not raise reasonable doubt. This evidence included signed delivery acknowledgements from customers for deliveries at relevant times. Court ob- served that if signatures were "equally consistent" with guilt and innocence, trial judge had to explain why they did not raise reasonable doubt. When Crown at trial conceded that exhibit 7 did not, as had been originally suggested, support particular fraudulent delivery, trial judge accepted concession but found that he would have found mat- ter proved as continuing event, based on all evidence, without explaining why evidence in ex- hibit 7 did not taint reliability of all rest of similar evidence. Trial judge also did not advert to many other inconsistencies and discrepancies in documents tendered, which raised ques- tions about reliability of evi- dence and which he did not ad- dress. Key among those was fail- ure of Crown to prove that GPS and machine-generated delivery slip system were time synchro- nized. This was critical factor on which Crown's case for con- viction was based. While trial judge acknowledged that devic- es were not checked daily (in fact evidence was that they were not checked at all during relevant period), he concluded that re- cords themselves, without more, provided confirmation that they were sufficiently in sync, one with other to establish their accuracy. Trial judge based that conclusion on finding, based on statements by witnesses, that on all but impugned deliveries, times corresponded. However, witnesses did not testify that they personally checked records of all other deliveries. Moreover, Crown did not tender all other records, which in fact had been lost by employer before trial. Absent direct evidence which could be tested by accused of ac- curacy and reliability of records relied on by Crown to prove case, convictions could not be sustained. R. v. Sosnowski (Nov. 26, 2014, Ont. C.A., K. Feldman J.A., J. Simmons J.A., and S.E. Pepall J.A., File No. CA C54629) 118 W.C.B. (2d) 56. Sexual Offences SEXUAL ASSAULT Implausible account gave rise to credibility issue Accused charged with sexual assault, two counts of sexual interference, and two counts of invitation to sexual touching in relation to his stepdaughter. Al- leged incidents occurred when complainant was 10 years old. Charges were based on two separate incidents wherein ac- cused was alleged to have had complainant masturbate him until ejaculation (at least on sec- ond occasion). Accused denied allegations and stated that com- plainant never liked him and resented him from start because of break-up of her mother's re- lationship with her father. Ac- cording to accused, there were always several persons in home at time of alleged incidents. As many as 12 persons, at times, lived at home in first incident, and more than half dozen lived at second house. Accused ac- quitted. Court did not believe accused's denials and was not left in reasonable doubt by them. Accused testified in relatively antagonistic and frequently non-responsive manner and took every opportunity at trial to take cheap-shots at mother of complainant. Some of accused's testimony was just plain silly and unbelievable. Court found it absurd accused's claims as to complainant's mothers insta- bility and degree of distance he claimed was between him and other members of family unit, to such degree complainant was virtual stranger to him. Ac- cused, at times, was inconsistent in his evidence. Most of points court found implausible were transparent attempts by accused to make charges against him seem absolutely impossible. Ac- cused had history of crimes of dishonesty. Court found com- plainant was likely victim of sexual abuse at hands of accused but was left with reasonable doubt. Court was concerned with lack of corroborating evi- dence. Living circumstances were such that one might expect some corroborative evidence to exist, but there was none. Man- ner of testimony of complainant seemed somewhat rehearsed. Evidence of complainant suf- fered from inconsistencies on non-peripheral, highly material matters which were relevant to credibility. What complain- ant conveyed to police officer (regarding third incident) was, at very least, misleading. Com- plainant was inconsistent in her description of how third alleged incident came to end. Court was concerned about implausibil- ity of some of evidence of com- plainant which surrounded al- leged incidents of sexual touch- ing. Implausible account gave rise to credibility issue. Court found it difficult to comprehend that young girl could be hysteri- cal and bang on bedroom door for several minutes, while cry- ing and screaming, with nobody in busy house awakening except for accused. R. v. S. (A.) (Dec. 3, 2014, Ont. S.C.J., Conlan J., File No. CR 14- 73) 118 W.C.B. (2d) 99. FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Board not properly constituted and did not have jurisdiction to accept and decide petition Previous Appeal Board consist- ed of three members whose term had not expired. One member of Previous Appeal Board died and one resigned because of health issues. Mayor was elect- ed. Complaint was received with respect to mayor and com- plainant's wife engaging in tex- ting of sexually explicit nature. Band council resolution (BCR) was passed to present petition to remove mayor from office. Third member of Previous Ap- peal Board was mother of com- plainant's wife and two other members could not be reached. Complaints and Appeal Board of Band Council (New Appeal Board) was appointed to hear petition. Applicants asserted petition and BCR did not con- form to requirements. New meeting was held and present BCR was passed authorizing filing of new BCR with same allegations and goal of remov- ing mayor. New Appeal Board conducted hearing but did not allow mayor to see second BCR. There was dispute as to whether mayor was permitted in hear- ing room for first hour and half. When mayor was present he was not allowed to see evi- dence presented against him. New Appeal Board declared elected mayor ineligible to hold office of Mayor and appointed second in mayoral elections to serve as mayor. Applicants as- serted New Appeal Board was not properly constituted. Ap- plicants sought judicial review. Application granted. New ap- peal Board was not properly constituted and did not have jurisdiction to accept and de- cide petition. Process followed in establishing New Appeal Board was improper and un- reasonable. It was incumbent on respondents to make every effort to contact at least remain- ing two Board members to participate in meetings before taking any action to remove or replace them. Respondents did not do so and were unreason- able in removing and replacing two members of Previous Ap- peal Board. Not giving mother of wife of complainant oppor- tunity to address her alleged conf lict of interest was unfair and unreasonable. Apparent ur- gency in dealing with perceived improper relationship between mayor and complainant's wife did not excuse summary dis- solution of Previous Appeals Board, subsequent meeting of New Appeal Board to dis- cuss respondents' petition and evidence needed for petition to succeed. Actions were taken in absence of mayor and without his knowledge. Process was not totally independent or free from bias. Process taken for removal of mayor was fatally f lawed. Tait v. Johnson (Nov. 20, 2014, F.C., Michael D. Manson J., File No. T-1821-14) 247 A.C.W.S. (3d) 738. Immigration INADMISSIBLE AND REMOVABLE CLASSES Board's decision was unintelligible Foreign national was citizen of Philippines who had come to Canada under live-in caregiver program. Foreign national had defaulted on loan from bank in United Arab Emirates which led to criminal conviction in absentia in that country for ut- tering in bad faith dud cheque. Inadmissibility report was is- sued against him and Immigra- tion Division of Board ordered him deported. Foreign national made refugee claim. Minister intervened, contending that foreign national should be ex- cluded from protection for se- rious non-political criminality pursuant to s. 98 of Immigra- tion and Refugee Protection Act (Can.). Board found that foreign national was excluded by s. 98 of Act and Article 1F(b) of Convention. Board conclud- ed that offence was sufficiently similar to offence of fraud in that it could be prosecuted in Canada under paragraph 380(1)(a) of Criminal Code (Can.), and maximum penalty for that was 14 years, so Board held that it was serious crime. Board found that sentence of 18 months' imprisonment in UAE was within acceptable international standards. Board accepted foreign national's sub- mission that this could have been civil matter in Canada. As there were serious reasons to consider that foreign national had committed serious non- political crime, Board con- cluded foreign national was ex- cluded from protection by s. 98 of Act. Foreign national applied for judicial review. Applica- tion allowed; matter returned to another panel of Board for redetermination. Board's deci- sion was unintelligible. Hav- ing found that foreign national could not have been convicted for his conduct in Canada, Board could not simultane- ously presume that offence was serious because he could have been convicted, yet that was what Board did. Entire decision was thereby tainted since Board had already applied presump- tion of seriousness when as- sessing other factors. By doing so, it had put burden on foreign national to prove that offence was not serious. Board found that penalty of 18 months' in- carceration was not in viola- tion of accepted international standards, however, there was no evidence that defaulting on loan was crime in any other countries, let alone what pen- alties might be imposed for it. Since burden of proof should have still been on Minister if s. 380(1)(a) of Code was not equivalent offence, this finding was made without any evidence to support it. Further, while length of sentence actually im- posed was not always pertinent it was strange that Board only assessed whether sentence was severe by international norms and not whether 18 months was long enough sentence to indicate that foreign national's actual conduct was serious. For all those reasons, Board's deci- sion was unreasonable. Notario v. Canada (Minister of Cit- izenship and Immigration) (Dec. 2, 2014, F.C., John A. O'Keefe J., File No. IMM-2229-13) 247 A.C.W.S. (3d) 916. LT CASELAW

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