Law Times

Law Times • aPril 13, 2015 Page 19 www.lawtimesnews.com quished rights to right of way. Order enjoining applicant from restricting exercise of right of way of respondents was to con- tinue. Applicant was purchased with notice. Applicant cleared laneway for her own purposes and respondent followed suit. There was no inconsistent or excessive use that extinguished right. Applicant's use of provid- ing access for her patients was greater than that of respondent's. City's stipulation as result of ap- plication for minor variance could not impact respondent's right to right of way. Stella Psarakis Medicine Profes- sional Corp. v. Gonnsen (Jan. 16, 2015, Ont. S.C.J., Whitten J., File No. 13-41075) 250 A.C.W.S. (3d) 162. SImILAR FACTS There was objective improbability of coincidence that complainants would have independently concoct- ed stories with such similar features Accused charged with sexual of- fences against his sisters. Crown applied to admit similar fact evi- dence, in that evidence in counts related to first complainant be admissible with respect to counts related to second complainant, and vice versa. Complainants were blood relatives, timeframe during which assaults were al- leged to have occurred was simi- lar, some of assaults alleged by both complainants took place in family home and family trailer, on some occasions, both com- plainants alleged that their eyes were covered, and with both complainants accused allegedly acknowledged that what he was doing was wrong and promised complainants that he would stop. Accused argued that simi- larities were not significantly similar, but were rather general or generic in nature. Applica- tion allowed. While there was limited evidence of discussions between complainants, there was virtually no evidence of any discussions or sharing of evi- dence upon which Crown relied as similarities. It was speculative to assert that any opportunities for collusion between complain- ants resulted in intentional or unintentional collaboration or tainting. There was no air of reality to allegation of collusion about relevant details. There was evidentiary connection between accused and alleged similar acts and jury might have found that there was pattern of similar be- haviour that confirmed each complainant's evidence that acts took place. Proposed evidence was capable of being reasonably believed and supporting infer- ence Crown was asking jury to make. Evidence was sufficiently probative to warrant admis- sion. Although there were some differences, circumstances sur- rounding incidents and specific details provided by complain- ants were compelling. There was objective improbability of coincidence that complainants would have independently con- cocted stories with such similar features. There was no appre- ciable moral prejudice. Risk of reasoning prejudice was very limited given multiple counts and requirement that each must be decided. Prejudice did not outweigh probative value. R. v. M. (S.) (Apr. 8, 2014, Ont. S.C.J., J. McNamara J., File No. Ottawa 11-5098) 119 W.C.B. (2d) 274. Extraordinary Remedies HAbEAS CORPUS Decision to reclassify and trans- fer inmate to maximum security institution was unlawful Application by prison inmate for order for habeas corpus with certiorari in aid to determine le- gality of his reclassification and transfer from medium security to maximum security institu- tion. Applicant was 28-year old first offender who was serving 14 year sentence for one count of possession of cocaine and one count of importing cocaine. He unsuccessfully attempted to import 167 kilograms of co- caine from United States, that was worth $14 million, in his tractor-trailer. Applicant's sen- tence commenced in April 2013 and he was classified as medium security. Investigation was con- ducted by prison authorities in 2014 regarding drug overdoses in which one inmate died. Au- thorities were informed that applicant was one of persons responsible for financing, intro- ducing and distributing drugs, mainly heroin, within institu- tion. As result of investigation applicant was transferred. Ap- plication allowed. Warden or delegate had to give inmate writ- ten notice of proposed transfer, including reasons for decision. Inmate was then to be afforded reasonable opportunity to pre- pare representations. Warden or delegate was then to meet with inmate to explain reasons for proposed transfer. Inmate was then to be given opportunity to make representations in person, or in writing. Authorities made proper disclosure to applicant regarding reclassification and transfer issues, having regard to their obligation to protect safety of informants and security of institution. Principle of proce- dural fairness regarding disclo- sure of information to applicant was not breached. However, meeting with warden or delegate did not occur and meeting was particularly important because reclassification and transfer de- cisions were not unanimous. Furthermore, authorities did not give applicant reasonable opportunity to make rebuttal representations in connection with proposed transfer and ap- plicant wanted to make such representations in person. To be lawful and reasonable deci- sion to transfer inmate to higher security penitentiary had to be procedurally fair. Two funda- mental rights of inmate, namely regarding hearing and opportu- nity to make rebuttal represen- tations, which were specifically provided for in legislation, were infringed. Decision to reclassify and transfer inmate was unlaw- ful and it was quashed. Janjanin v. Canada (Attorney General) (Feb. 17, 2015, Ont. S.C.J., Gary W. Tranmer J., File No. Kingston CR-14-398-MO) 119 W.C.B. (2d) 277 Prison authorities lawfully withheld from inmate information necessary to protect safety of informants Application by prison inmate for order of habeas corpus with certiorari in aid to challenge his reclassification from medium to maximum security and his transfer from medium security institution to maximum secu- rity penitentiary. Applicant was serving sentence of nine years and seven months for drug re- lated offences. These offences were committed for benefit of criminal organization. Investiga- tion was conducted at medium security institution regarding multiple drug overdoses at that institution, including one which led to death of inmate. Authori- ties received information that applicant was leading member of group of inmates who imported drugs into institution and dis- tributed them there. Application dismissed. Respondent acted in procedurally fair and lawful way and in reasonable manner. There were reasonable grounds to be- lieve that disclosure of informa- tion that was withheld would jeopardize safety of informants and warden of medium security institution withheld from appli- cant only as much information as was strictly necessary to protect that interest. Respondent proved that prison authorities provided to applicant all of information that was considered in making decisions, except such informa- tion that was lawfully withheld as was strictly necessary to pro- tect safety of informants. War- den also considered applicant's written rebuttal and he was not required to conduct further in- vestigation after he received ap- plicant's rebuttal. Notice of in- voluntary transfer recommenda- tion that was given to applicant clearly contained sufficient rea- sons for decisions. Reclassifica- tion and transfer decisions were reasonable and lawful. Emonts v. Canada (Attorney General) (Feb. 17, 2015, Ont. S.C.J., Gary W. Tranmer J., File No. Kingston CR-14-498-MO) 119 W.C.B. (2d) 278. Indictment and Information JOINDER AND SEVERANCE Severance refused where there were public interest reasons for joint trial Accused individuals R and M jointly charged with possession of numerous controlled sub- stances for purpose of traffick- ing and possession of proceeds of crime. R applied for severance of charges. M's counsel had to withdraw because of recently- discovered conf lict of interest, and there was no alternative but to adjourn trial. R argued that adjournment would have resulted in unreasonable delay, as his counsel would not have been available to deal with mat- ter again for several months. Application dismissed. It was not inconceivable that, if sever- ance were granted, each accused individual might successfully point finger at other, claiming no knowledge of fact that what was in plain view was in fact ille- gal drug. R fairly acknowledged that there were public interest reasons for joint trial. Since ac- cused individuals were alleged to have been in joint possession of drugs that were seized, to ex- tent that court could determine them now, most of factors iden- tified in R. v. Last in identifying public interest for joint trial ap- plied. Only separate factual and legal issue appeared to be voir dire with respect to statement made by M. In balancing fac- tors against general prejudice to R resulting from further delay in trial, court concluded that application ought to have been dismissed. R was not prevented from asserting breach of s. 11(b) of Canadian Charter of Rights and Freedoms if he wished to do so when case ultimately came to trial. R. v. Ross (Feb. 23, 2015, Ont. S.C.J., Spies J., File No. CR13900006110000) 119 W.C.B. (2d) 282. mental Illness DETENTION NCR accused continued to present as significant threat to safety of public Accused appealed from Re- view Board's decision from her continued hospital detention. Accused was found not crimi- nally responsible (NCR) on ac- count of mental disorder on four counts of harassing telephone calls, three counts of fail to com- ply with recognizance and two counts of fail to comply with pro- bation. Accused was also found NCR on one count of criminal harassment and had been under jurisdiction of Review Board ever since. In their most recent reasons, Review Board found that accused continued to pres- ent as significant threat to safety of public and held that least onerous, least restrictive dispo- sition was continuation of terms of current detention at general forensic unit without change. It included privilege of living in community in approved ac- commodation. However, due to poor behaviour, risk of elope- ment, and for refusal to take medication, accused currently was restricted to accompanied hospital grounds privilege. Ac- cused appealed and argued that she was entitled to absolute dis- charge because evidence before Review Board did not support board's findings. Although ac- cused conceded mental illness, she maintained that evidence only established risk of mini- mal harm, more in nature of constituting nuisance. Appeal dismissed. Court found no ba- sis to conclude that board's dis- position was unreasonable and not founded on record before it. Accepted testimony of treating psychiatrist and report of hos- pital amply supported board's finding. This said, however, given passage of lengthy period of time and particular circum- stances of accused's condition and behaviour as well as record that disclosed some progress in both her attitude and condition, due consideration ought to be given to commencing integra- tion into community. Court ob- served that accused's annual re- view was scheduled and encour- aged board to explore possibility of initiating steps in that regard. Tolias, Re (Jan. 16, 2015, Ont. C.A., Laskin J.A., LaForme J.A., and Rouleau J.A., File No. CA C59229) 119 W.C.B. (2d) 285. Sexual Offences SExUAL ASSAULT Trial judge properly disallowed s. 276 Criminal Code applica- tion to question complainant Accused appealed his convic- tion for sexual assault, sexual interference and possession of child pornography. Accused was convicted of having sexual inter- course with complainant, aged seven to eleven years old, over four year period. Complainant also told police accused showed her child pornography which was on his computer. Trial judge did allow accused to ask com- plainant about alleged sex as- sault on her by her half-sister but refused to consider whether possible false complaint affected her credibility. Trial judge also did not allow questions of com- plainant as to whether she sexu- ally assaulted her seven-year-old sister and nine-year-old friend as there was little evidence of sexual contact. Accused further alleged judge did not separately consider issue of child pornog- raphy and misapprehended evi- dence regarding use of Limewire program in which accused admitted to have downloaded child pornography. Accused also sought to admit fresh evidence that his brother was accused of sexual assault and had accessed child pornography from his computer. Appeals dismissed. There was insufficient evidence of sexual conduct to allow s. 276 Criminal Code application re- garding sexual questions about complainant's friend and sister. Judge properly considered child pornography evidence as that was testified to by complain- ant and accused admitted its use. Fresh evidence also was ir- relevant as far as to whether ac- cused used child pornography. Complainant who claimed two persons of sexual impropriety occurring at different times and in different circumstances was not more likely to be lying about either or both than complainant who accused only one person. Fact that complainant made al- legations of sexual abuse against another person was not admis- sible to assess credibility of com- plainant. R. v. C. (C.) (Feb. 2, 2015, Ont. C.A., David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C55755) 119 W.C.B. (2d) 323. LT CASELAW

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