Law Times

Law Times • January 31, 2011 of life imprisonment with in- eligibility for parole until 18 years. Accused sought to reduce ineligibility to 12 years. Appeals dismissed. Fresh evidence ac- cused sought to admit did not comply with test for admissibil- ity. Co-accused was not able to have credibility tested as he did not testify who was with him on night or off ence nor waive his solicitor-client privilege. Evi- dence could not have aff ected trial judge's decision. Guilty plea was not qualifi ed and he was represented by experienced counsel. Sentence not demon- strably unfi t. R. v. Mitchell (Oct. 21, 2010, Ont. C.A., Weiler, MacPherson and Armstrong JJ.A., File No. C45713) 91 W.C.B. (2d) 319 (11 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused detained at roadside for half-hour before police formed grounds to arrest him Application to exclude evidence. Offi cers who had pulled accused over did not have an ASD with them and had to wait for one to be brought to scene 18 minutes after demand. Offi cers did not advise accused of his right to counsel while they waited for ASD in separate cars. When it arrived, accused made several unsuccessful attempts to pro- vide sample but then stumbled from curb, leading offi cers to conclude he was impaired and they arrested him. Th ey then advised him of his right to coun- sel, made further breath demand and transported him to station where he eventually provided two breath samples that were both over legal limit. Accused charged with impaired driving and driving over 80. Accused acquitted of impaired charge. Application allowed. Th ere was no bad faith on offi cers' part. Offi cer candidly admitted, she did not realize that 18 minutes had passed while waiting. Given delay at roadside, test not ad- ministered forthwith and road- side test was unlawful. Breach resulted in accused being de- tained at roadside for half hour before police formed grounds to arrest him. Evidence should be excluded. R. v. Vijayam (Nov. 15, 2010, Ont. S.C.J., Borenstein J.) 91 W.C.B. (2d) 352 (7 pp.). TRIAL WITHIN REASONABLE TIME Proceedings stayed after delay of over 39 months Application to stay proceed- ings due to unreasonable de- lay. Accused charged with fi ve counts including aggravated assault and assault causing bodily harm arising from knife fi ght. Charges were laid in De- cember 2007; case was expect- ed to go to trial April 2011. Overall period of delay 39 and half months. Approximately 10 and half months attribut- able to inherent requirements of case. 29 months systemic delay. Period of unjustifi ed sys- temic delay 23 months, or just under two years. 16 months reasonable period of systemic delay. No delay attributable to Crown; unjustifi ed delay institutional. Accused was un- der "house arrest" for only two and half months when she was arrested on new drug charges, in substantial violation of her bail terms. Restrictions on ac- cused's liberty interests for past 32 months due to terms of her release order on drug charges as much as on aggravated assault charges. No room on court's trial lists to set earlier date. Sys- temic delays building mainly because of lengthening of tri- als generally and increase in very large "project" cases with multiple accused and numer- ous pretrial applications. Trial held in April 2011 would vio- late s. 11(b) Charter. Charges stayed pursuant to s. 24(1) of Charter. R. v. Richards (Nov. 19, 2010, Ont. S.C.J., Code J.) 91 W.C.B. (2d) 360 (21 pp.). Release From Custody JUDICIAL INTERIM RELEASE Release of accused charged with alcohol-related driving offences upheld on review Crown brought application to review order of Justice of the Peace releasing accused and re- quest that order be vacated and accused be detained. Accused charged with two alcohol re- lated driving off ences. Accused had adult criminal record. Ac- cused's surety was his sister who was present in court but not cross-examined. Application dismissed. Structured release order was created that provided supervised treatment of ac- cused's mental health issues in hopes that it would eliminate his criminal conduct. Refusal of Crown request to cross-examine surety did not amount to error justifying vacating release order. R. v. Renaud (Oct. 4, 2010, Ont. S.C.J., Th omas J., File No. CR-10-2083-BR) 91 W.C.B. (2d) 366 (10 pp.). Sexual Offences SEXUAL ASSAULT Not proven that assaultive conduct was sexual in nature Trial of accused for sexual of- fences and for common assault. Accused was a teacher. In early nineties he taught EM and be- tween 2004 and 2006 he taught or coached JM, BF and KF. In connection with EM, BF and KF accused was charged with sexual assault and touching per- son under age of 14 for sexual purpose. In connection with BF accused was charged with sexu- ally touching her when he was in position of trust or author- ity towards her. He was also charged with assaulting JM. Ac- cused was convicted of assault- ing JM, BF and KF. Although his conduct was suspicious and perhaps more, it was not prov- en that assaultive conduct was sexual in nature. Accused's be- haviour progressed from minor touchings to rough-housing and even mauling his students. He was convicted of common as- sault because complainants did CASELAW not expressly or by implication consent to his conduct. R. v. Plews (Nov. 18, 2010, Ont. S.C.J., Hill J., File No. 2916/08) 91 W.C.B. (2d) 420 (114 pp.). FEDERAL COURT Courts ABUSE OF PROCESS Motion was abuse of process Motion by applicant for leave to appeal prothonotary order granting respondents' motion to strike out application for judicial review and dismissing applicant's motion. Judicial re- view application stemmed from complainant of unjust dismissal made by respondent. Adjudica- tor released decisions on merits of unjust dismissal complain- ant. Applicant sought judicial review of adjudicator's decision. Motion dismissed. Motion was abuse of process. Applicant was not allowed to maintain mul- tiple proceedings dealing with same issues before court, with attending risk of confl icting decisions that could only bring administration of justice into disrepute. Esgenoopetitj (Burnt Church) First Nation v. Canada (Hu- man Resources and Skills De- velopment Program) (Nov. 29, 2010, F.C., de Montigny J., File No. T-279-10; T-280-10) 195 A.C.W.S. (3d) 397 (20 pp.). Immigration EXCLUSION AND EXPULSION Member erred in ordering respondent's release Member ordered release of re- spondent from detention on terms. Member found Minis- ter did not make reasonable ef- forts to determine respondent's identity. Minister's application for judicial review was allowed. Member did not address what Minister did, was doing or intended to do was rationally connected to purpose of s. 58(1)(d) of Immigration and Refugee Protection Act (Can.). Member failed to consider rel- evant issues in reasonable ef- forts analysis. Member made unreasonable and incorrect fi ndings. Member erred in not considering competing factors and reached unreasonable con- clusion. Canada (Minister of Citizenship and Immigration) v. XXXX (Nov. 5, 2010, F.C., Phelan J., File No. IMM-5427-10) 195 A.C.W.S. (3d) 517 (15 pp.). INADMISSIBLE AND REMOVABLE CLASSES Applicant was given intelligible explanation for refusal of visa Applicant was denied perma- nent resident visa as member of family class. Applicant was found inadmissible on grounds of organized criminality. Ap- plication for judicial review was dismissed. Offi cer was not precluded from relying on PIF as long as balance of evidence is considered as well. In face of ev- idence that contradicts PIF, of- www.lawtimesnews.com fi cer must weigh other evidence that contradicted PIF. Applicant was given intelligible explana- tion for refusal of visa. Ruz v. Canada (Minister of Citi- zenship and Immigration) (Nov. 18, 2010, F.C., Heneghan J., File No. IMM-5599-09) 195 A.C.W.S. (3d) 531 (8 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Commission's decision supported by findings of fact made in two comprehensive investigation reports Commission dismissed ap- plicant's complaint of dis- crimination against former employer. Commission deter- mined evidence did not sup- port allegation of discrimina- tion. Commission determined evidence did not support that respondent refused to hire or terminated applicant's em- ployment on grounds of sex, family status or marital status. Application for judicial review was dismissed. Th ere was no ba- sis on which to conclude com- mission relied on insuffi cient or defi cient investigation report. Commission's decision was sup- ported by fi ndings of fact made in two comprehensive investiga- tion reports. Investigator gathers suffi cient evidence to support fi ndings made. Any defi cien- cies in fi rst investigation report were fully addressed in second investigation report. Commis- sion responsibly conducted in- vestigation in accordance with its statutory jurisdiction and PAGE 15 could determine on basis of evidence before it that there was no basis on which to proceed to next stage. Commission did not violate principles of proce- dural fairness by conducting supplemental investigation. Gerrard v. Canada (Attor- ney General) (Nov. 17, 2010, F.C., de Montigny J., File No. T-2136-09) 195 A.C.W.S. (3d) 397 (21 pp.). Intellectual Property Industrial And PATENTS Motion for order that re-determination take place on existing record was dismissed Motion by applicant for order that re-determination of mat- ter take place on existing re- cord. Board determined that price of drug sold by applicant was excessive and imposed cer- tain remedies requiring appli- cant to pay over $2 million to Crown. Applicant's application for judicial review was allowed and matter was sent back to board for re-determination. No directions were given as to how re-determination was to be conducted. Motion dis- missed. Present motion eff ec- tively required court to exercise continuing supervisory juris- diction over steps board could take in course of conducting its re-determination, which was not proper function of court. Teva Neuroscience G.P.-S.E.N.C. v. Canada (Attorney General) (Nov. 29, 2010, F.C., Hughes J., File No. T-470-08) 195 A.C.W.S. (3d) 533 (15 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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