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PAGE 18 ant with respect to thermostat. Chai v. York Condominium Corp. No. 325 (Apr. 15, 2009, Ont. S.C.J. (Sm. Cl. Ct.), Mun- govan D.J., File No. SC-08- 00066102-0000) 187 A.C.W.S. (3d) 1182 (20 pp.). Wills And Estates ESTATE ADMINISTRATION Resident of New Brunswick granted certificate of appointment of estate trustee Ruling on whether s. 5 of Estates Act (Ont.), prevented issuance of certificate of appointment of estate trustee to applicant. Ap- plicant lived in New Brunswick. Section 5 of Act provides that letters of administration shall not be granted to person not residing in Ontario. Certificate of appointment of estate trustee was issued to applicant. When read together, ss. 6 and 29(1) and (2) of Act authorized court to appoint as estate trustee non- resident of Ontario who had consent of majority of persons resident in Ontario otherwise entitled to apply for certificate and who had posted security in amount of full value of estate. Armstrong Estate (Re) (Apr. 17, 2010, Ont. S.C.J., Brown J., File No. 01-0125/09) 187 A.C.W.S. (3d) 1212 (4 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT WITH WEAPON Complainant's evidence at trial was inconsistent with earlier statement Accused charged with assault, two counts of assault while using knife and pool cue as weapons and one count of un- lawful confinement relating to one complainant on one date and another charge of assault regarding same complainant next day. Accused was father of complainant's child and they had been living together at time of incidents. Complainant was eight months pregnant at time of alleged assaults. Complain- ant originally claimed accused kicked her in stomach during argument but later claimed to have said this only to get accused out of her home and that he had never physically assaulted her. All five counts dismissed. Com- plainant's evidence at trial was inconsistent both with taped 9-1-1 telephone call and with audiotaped statement. Com- plainant recanted all allegations of physical contact between her and accused. For reasons that were not clear, police officers who attended at home were not advised that pool cue had been used as weapon, they did not look for pool cue and none of photographs showed one. There was no physical evidence of al- leged beatings with exception of colouring on complainant's cheeks which could easily have been due to complainant's high colouring and not result of slap. REFUSAL TO PROVIDE SAMPLE Accused embarked upon course of conduct designed to prevent proper sample of his breath from being analyzed Accused charged with refusing to provide sample of his breath after officer pulled over accused's vehicle because he had been "driving in circles" after being seen leaving night club. Officer smelled alcohol and burnt mar- ijuana coming form inside ve- hicle and when asked accused, who was alone, advised that he had previously smoked some marijuana. Accused admitted to drinking one beer and officer called for approved screening device ("ASD") to be delivered but did not read breath de- mand. When ASD arrived of- ficer read breath demand which accused claimed he understood. Officer testified that during each of accused's attempts to provide proper sample into ASD he would either not blow hard enough or long enough or he would put his tongue on tip of mouthpiece or he would not form proper seal around mouthpiece. When ASD was again provided to accused with new mouthpiece he refused to do anything until he talked to lawyer but was informed by po- lice that he was not allowed to call lawyer at that point in time. When accused continued to re- fuse to blow he was arrested for refusal. Accused then pleaded to be allowed to provide breath sample and was given four fur- ther opportunities to blow into ASD but did not provide suit- able sample and was again ar- rested. Accused guilty. Evidence clearly established that officer conveyed to accused that he had to accompany officer to his po- lice cruiser and provide sample of his breath immediately. There is no requirement that demand convey it is made pursuant to Criminal Code. Officer's delay in making demand while wait- ing for ASD did not create any delay that would have afforded reasonable or realistic oppor- tunity to consult with counsel. Court found accused embarked upon course of conduct that was designed to prevent proper sample of his breath from being analyzed by ASD. Court found accused was attempting to em- bellish his previous testimony when he added in cross-exam- ination that he was having dif- ficulty breathing. Accused took completely inconsistent posi- tions on critical issues. Court accepted officers' evidence that they did not observe anything to indicate that accused was having difficulty breathing or that he was unable to blow into ASD because of being unable to breath properly. R. v. Marunza (Apr. 30, 2010, There was no police evidence of hole in wall as should have been there on complainant's original version of events. R. v. Freitas (Apr. 22, 2010, Ont. S.C.J., Lauwers J., File No. 09-00963) 87 W.C.B. (2d) 768 (15 pp.). Breathalyzer CASELAW Ont. C.J., West J., File No. 09- 04923) 87 W.C.B. (2d) 775 (13 pp.). Charter Of Rights SEARCH AND SEIZURE Gunshot residue test constituted search incidental to arrest Accused, charged with various firearms offences relating to shooting incident, applied to exclude evidence obtained fol- lowing his arrest. Accused al- leged among other things that police used excessive force dur- ing his arrest, resulting in cut to his chin, blood from which was used to provide DNA profile to match hairs found in bag con- taining two loaded firearms, one of which was linked to shooting incident in question. Accused tested positive for gunshot resi- due on his hands after tests were performed on him while at hos- pital and waiting to be seen by doctor. Accused's blood covered shirt was seized and gunshot residue tests were performed without his having been given opportunity to consult counsel. Accused attempted to flee when he first saw police in his apart- ment building. Police obtained consent to search room accused had tried to flee into and found black canvas bag containing two guns with tuft of accused's hair. Accused matched description given to police of shooter except for fact that his hair was not in corn rows but officers testified his hair was in state that sug- gested he had recently removed braids. Accused was searched after his arrest and found in possession of crack cocaine and was so charged. Application dis- missed. As hour and half had passed since shooting until time officers encountered accused, it was reasonable for police to discount discrepancy between suspect's hairstyle and that of accused. Accused fit general de- scription of suspect and was in same building to which suspect had reportedly fled. Accused was observed at or near door of same unit suspect had report- edly entered and fled when he saw police. One of officers on scene shortly after accused was arrested knew accused went by nickname given for suspect in police report and that accused was subject to weapons prohi- bitions. Gunshot residue test constituted search incidental to arrest and did not violate ac- cused's s. 8 rights, nor did sei- zure of his bloody tank top. R. v. Reid (Apr. 27, 2010, Ont. S.C.J., Garton J., File No. 25/08) 87 W.C.B. (2d) 795 (30 pp.). Warrant should not have been issued Two accused, husband and wife, were charged on two count in- dictment relating to marijuana grow op. Evidence excluded and acquittals on two counts made. Warrant was authorized on strength of Information to Ob- tain ("ITO") that was carelessly drafted, materially misleading and factually incomplete. Mis- leading statements contained in ITO included that affiant had training in grow ops, loca- www.lawtimesnews.com tion of prior execution of search warrant, stating that lawn was poorly maintained throughout summer when there was no such indication in his notes, stating that affiant was experienced in detection of heat from roof (ob- tained during fly-over) and his belief of electrical theft when there was no such evidence. Affiant did not investigate two sources for reliability, criminal records or whether they were acting vindictively. There was significant list of relevant omis- sions in ITO that would have been problematic for obtaining warrant. Court found warrant should not have been issued. There was no situation of ur- gency or necessity in obtaining warrant and officer could have waited until he gathered further evidence. R. v. Nguyen (Apr. 20, 2010, Ont. S.C.J., Ferguson J., File No. 12082/09) 87 W.C.B. (2d) 796 (13 pp.). TRIAL WITHIN REASONABLE TIME Accused's desire to expedite trial never found a voice in court Accused arrested and charged with driving "over 80" sought stay of proceedings. Parties agreed that total time period of 25 months and one day be- tween swearing of information and second trial date warranted scrutiny. First trial date was set 12 months and four days after accused was charged with no s. 11(b) Charter application filed with respect to that date. Ac- cused sought and obtained trial adjournment because her coun- sel had been ordered to appear in Superior Court to continue jury trial in another matter. Ap- plication dismissed. Unfortu- nately, accused's desire to expe- dite her trial never found a voice in court. If court was wrong in finding implicit waiver on part of accused it would have attrib- uted delay to actions of defence or to combination of defence delay and neutral time. Delay in rescheduling second trial date was not unreasonable. Court was satisfied that there was minimal if any inferred or actu- al prejudice to accused. Accused failed to bring her allegations of prejudice to attention of either Crown or court until filing of instant application. Prejudice to accused was primarily related to charge and to delay resulting from accused's own decision to defer her trial until her counsel of choice was available. Delay in case was not significantly above upper limits in Morin. R. v. Kahlon (Mar. 15, 2010, Ont. C.J., Marin J., File No. 309715) 87 W.C.B. (2d) 799 (12 pp.). Drug Offences POSSESSION Cocaine found near scene was not coincidence Accused was charged with pos- session of crack cocaine for pur- pose of trafficking, obstructing peace officer and two counts of breach of recognizance. Police received call about unwanted car left in private parking lot. Police encountered accused re- June 21, 2010 • Law Times turning to vehicle and accused refused to answer questions and ran. Officer chased accused and observed him throw white baggy on two separate occa- sions only to have it blow back to accused. Officer lost sight of accused and tracked him to roof of shed. Police claimed ac- cused fought all efforts to come down from roof but eventually got him down by spray. Police subsequent found bag of co- caine which matched descrip- tion of what officer believed ac- cused attempted to throw away earlier. Accused claimed he ran from police as he was always harassed by them because of his appearance. Accused claimed that cocaine found was coinci- dence and accused did not fight officers when they tried to get him down from roof. Accused had lengthy history of crimi- nal convictions. Accused guilty. Court did not believe accused's testimony as his story was not credible. Court did not accept that cocaine found near scene was coincidence after officer saw accused attempt to throw away similar looking package. R. v. Crawford (Apr. 30, 2010, Ont. S.C.J., Warkentin J., File No. 04-G9731) 87 W.C.B. (2d) 808 (12 pp.). Evidence IDENTITY OF ACCUSED There were concerns regarding photo identification of suspects Two accused were charged with robbery after holding up com- plainant at gunpoint. Com- plainant was paid $200 to de- liver two passports to persons at address. Complainant was robbed of passports, his GPS, cellphone and wallet when he arrived at his destination and met two perpetrators in his vehicle. Videotape showed shotgun blast fired through windshield at that time. Com- plainant observed two perpe- trators run towards apartment. Police suspected accused A was one of two perpetrators and showed him photograph of ac- cused A which resulted in posi- tive identification. Accused A's residence was searched which led to discovery of complain- ant's GPS, cellphone and live rounds of ammunition. Ac- cused A subsequently arrested 11 hours later in company of accused B with like passports in accused A's possession. No gun- shot residue or fingerprints be- longing to either accused were found at crime scene. Com- plainant also picked out ac- cused A from subsequent photo lineup. Complainant identified accused B from photo lineup of 12 persons and complainant picked out two photos before narrowing it down to accused B. Officer knew accused B was suspect and asked if other pho- tograph should be eliminated. Officer did not try to influence complainant in picking photo as officer looked down and away at relevant time. Complainant initially lied to police about be- ing paid to deliver passports. Accused A guilty, accused B not guilty. There were concerns re- garding photo identification of