Law Times

PAGE 14 CaseLawLaw ONTARIO CRIMINAL CASES Charter Of Rights APPLICATION Not all of witness' police disciplinary records were considered fruits of investigation Accused charged with two counts of indecent assault and two counts of gross indecency involving two diff erent com- plainants. Accused requested disclosure of police disciplinary records, misconduct records and criminal investigation fi les of witness in this matter. Ac- cused was initially charged in relation to another complain- ant. Although those charges were dropped Crown sought to use evidence as similar fact evi- dence. Accused sought records of witness in order to make full answer and defence. Not all police disciplinary records were considered fruits of investiga- tion. Witness was not involved in current investigations against accused. His disciplinary re- cords could not be considered fruits of investigation but spe- cifi c police disciplinary records may be relevant to issue of cred- ibility. Witness may be called in current cases against accused. Disclosure appropriate. R. v. Borne (Mar. 16, 2011, Ont. S.C.J., Parfett J., File No. 09-815) 94 W.C.B. (2d) 130 (5 pp.). FUNDAMENTAL JUSTICE In rejecting accused's evidence, trial judge erred in relying on accused's failure to tell officer that she was having panic attack Accused charged with refusing to provide breath sample. Ac- cused subject to roadside breath demand and made 21 unsuc- cessful attempts to provide sample. Before accused was provided with s. 10(b) rights she gave inconsistent statements about how much alcohol she had consumed and claimed to work for police. At trial accused testifi ed that she was having panic attack at time. Trial judge relied on her failure to tell of- fi cer that she was having panic attack in rejecting her evidence. Accused was convicted and her summary conviction appeal was dismissed. Accused's appeal al- lowed and new trial ordered. Trial judge erred in relying on accused's silence to reject her evidence. R. v. Rivera (Mar. 23, 2011, Ont. C.A., Feldman, Lang and La- Forme JJ.A., File No. C50432) Decision at 83 W.C.B. (2d) 81 reversed. 94 W.C.B. (2d) 115 (41 pp.). Evidence CONFESSIONS AND ADMISSIONS While utterance admissible, weight of statement was questionable as it was not something that could in any meaningful way be described as confession Accused charged with three counts of armed robbery. Crown applied to have ac- cused's statements admitted as voluntary confession made to person in authority. After ac- cused was apprehended by of- fi cers, he was ordered to ground and repeated three times "I'm sorry! I'm sorry! I'm sorry". Ap- plication allowed. Offi cers fully identifi ed themselves as police. Utterance made by accused was admissible under principles set out in R. v. Dupe. Weight of statement was questionable as June 27, 2011 • Law Times COURT DECISIONS CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. it was not something that could in any meaningful way be de- scribed as confession. Utterance was of very little evidentiary as- sistance or probative value in reaching conclusion whether accused was guilty as charged. R. v. Ye (Apr. 12, 2011, Ont. S.C.J., Quigley J., File No. 09- 30000596) 94 W.C.B. (2d) 133 (36 pp.). Indictment And Information VALIDITY Need for confirmation of appearance notice was necessary safeguard Accused charged with impaired driving and over 80. Accused applied on trial date to quash Information as appearance no- tice was not confi rmed. Appli- cation granted. Application was timely and it was preferable that it be heard by trial judge. Need for confi rmation of appearance notice was necessary safeguard. R. v. Haight (Mar. 7, 2011, Ont. C.J., Krelove J., File No. 09- 3414) 94 W.C.B. (2d) 160 (6 pp.). Sentence BREAK AND ENTER Accused sentenced to four years in federal penitentiary after pleading guilty to committing home invasion Sentencing of accused after he pleaded guilty to committing home invasion by breaking and entering dwelling house and committing robbery and being masked while doing so. Accused was also convicted of breaching youth disposi- tion that required him to keep peace and be of good behav- iour. He was one of three in- dividuals who participated in home invasion. Accused was born in September 1991 and he had lengthy and related youth record. Off ences for which he was being sentenced for were his fi rst adult convictions. Ac- cused was sentenced to four years in federal penitentiary. Based on time spent in cus- tody, his age and fact that this was his fi rst federal sentence he had to serve two years in peni- tentiary. Imprisonment would be followed by three years of probation. Accused was also subject to DNA order and life- time weapons' prohibition. He was further not to associate with certain named individu- als until his probation com- menced. R. v. Whitaker (Mar. 7, 2011, Ont. C.J., Nadel J., File No. 10-S3338(03)) 94 W.C.B. (2d) 182 (24 pp.). ONTARIO CIVIL CASES Air Law CARRIAGE Court had jurisdiction over defendant Air France in proceeding pursuant to Article 28 of Warsaw Convention Plaintiff was unable to walk independently. Plaintiff and mother claimed defendant Air France failed to assist them to transfer plaintiff from seat to wheelchair and to bridge from plane. Mother carried plaintiff from airplane to wheelchair on bridge. Mother tripped and fell. Plaintiff claimed plaintiff suf- fered injuries as result of fall. Accident occurred in France. Defendant Air France brought motion for summary judgment on basis plaintiff s did not com- mence action within two years prescribed by Warsaw Conven- THE ONTARIO MUNICIPAL SERVICE DIRECTORY 2011 A Comprehensive Guide for reAl estAte professionAls, 2011 All the municipal services information you need for real estate searches under one cover. With introduction and historical linkages by michael l. Young, ll.B. this handy resource helps you process your real estate transactions more efficiently, saving you time and energy. published annually, the ontario municipal service directory: A Comprehensive Guide for real estate professionals, 2011 gives you up-to-date and easily accessible municipal contact information. more thAn A direCtorY Perfectbound • March 2011 • One time purchase $89 L1206-694X • On subscription $84 L1206-694X-26117 • ISSN 1206-694X • Multiple copy discounts available Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation prices subject to change without notice, to applicable taxes and shipping & handling. CANADA LAW BOOK® www.lawtimesnews.com OMSD 1-4 pg 5X.indd 1 6/8/11 3:44:57 PM tion. Defendant G. brought cross-motion for declaration that French law applied. Motion was allowed. Th ere was no gen- uine issue for trial. Action was dismissed as against defendant Air France. Plaintiff s did not commence action within two years of date of arrival at place of destination. Cross-motion was dismissed. Plain meaning of Convention and Article 29 was that two-year time frame to commence action was ele- ment of Convention cause of action and was not subject to tolling. Convention provided complete code for determining liability of carrier to passenger and law applicable to passenger claims. Common law of negli- gence was inapplicable. Court had jurisdiction over defendant Air France in proceeding pur- suant to Article 28 of Conven- tion. Application of provisions of Warsaw Convention was ap- propriate. French law did not apply to proceeding. Sakka (Litigation Guardian of) v. Societe Air France (Mar. 29, 2011, Ont. S.C.J., Shaughnessy J., File No. 61132/09) 200 A.C.W.S. (3d) 688 (9 pp.). Family Law CUSTODY Major stumbling block to Ontario exercising jurisdiction was consent order entered into less than three years earlier Application by father for order that motion for change brought by mother be dismissed on basis that Ontario did not have juris- diction to hear matter or alter- natively Ontario Court should decline to exercise jurisdiction in favour of British Columbia Supreme Court. Father con- sented in 2008 to mother mov- ing to Ontario with child on terms. Consent order provided

• Cover
• Critical View
• Child Protection
• Focus On Muicipa; & Planning Law