Law Times

Law Times • June 21, 2010 both suspects. Accused A's iden- tifi cation confi rmed by corrob- orating evidence of stolen items in his possession. Offi cer should not have known that suspects were in photo lineups and elimination question should not have been asked. Court not satisfi ed that accused B guilty beyond reasonable doubt even though he was probably guilty beyond civil standard of mea- sure. Identifi cation of accused B enhanced by fact he was with accused A and ultimately picked by photo lineup but not suffi cient to convict. R. v. B. (R.) (Apr. 21, 2010, Ont. C.J., Borenstein J.) 87 W.C.B. (2d) 841 (13 pp.). Extradition And Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Accused committed for extradition to United States for fraud Accused sought by United States in extradition proceeding of accused for off ence of fraud over $5,000. Accused involved in telemarketing scheme where he marketed services to Ameri- cans with bad credit. He took fees on promise of giving them credit cards. Accused and his employees were not authorized to market credit cards and none of victims ever received them. Accused used or deposited fees collected totalling approximate- ly seven million US dollars. Committal ordered. Evidence on record provided strong evi- dence that could lead reason- able jury properly instructed to conclude that accused was directly or indirectly involved in off ence. Accused was person sought for extradition. Canada (Attorney General) v. Orphanou (Apr. 28, 2010, Ont. S.C.J., Wilson J., File No. 27/08) 87 W.C.B. (2d) 819 (19 pp.). Mental Illness REVIEW Court of Appeal entitled to review validity of Community Treatment Order Accused found not guilty by reason of insanity of attempted murder and possession of pro- hibited weapon in 1981. Be- gan living in community in 2006 and granted conditional discharge by Review Board in 2008. Accused appealed con- ditional discharges citing fresh evidence that he was subject to Community Treatment Order in 2010. Crown argued Com- munity Treatment Order was invalid because it was imposed more than three years after ac- cused was patient in psychiatric facility. Appeal allowed, absolute discharge ordered. Court of Ap- peal entitled to review validity of Community Treatment Order. Order was valid because accused was still subject to detention or- der until 2008 and so qualifi ed as "patient" under Mental Health Act. Accused's compliance with Community Treatment Order was admissible fresh evidence establishing that absolute dis- charge was appropriate. R. v. Stanley (May 3, 2010, Ont. C.A., Sharpe, Blair and Mac- Farland JJ.A., File No. C50744; C51695) 87 W.C.B. (2d) 821 (13 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" There was no risk of accused putting car in motion or doing anything else to car which would pose risk of danger to public Accused charged with impaired driving and driving "over 80". Due to admissions by counsel for accused only issue in case was whether accused was in care or control of his motor vehicle at time police offi cers arrived on scene. Offi cers arrived on scene after report of possible impaired driver and found accused stand- ing outside his vehicle while it was being loaded on tow truck. Accused advised offi cers that he had hit curb with his passenger side tires, slashing them both and causing tires to become fl at. Accused admitted to having had couple drinks and offi cer observed that there was faint odour of alcohol coming from accused's mouth. Accused was standing 10 feet from his ve- hicle when police arrived and never went back into vehicle and made no attempt to move it. Accused was given ASD test, failed it and was arrested. Ac- cused acquitted on both charg- es. As accused was not in driver's seat when police arrived Crown had to adduce evidence of actual care or control. Court accepted accused's assertion that he did not intend to drive car and that he contacted CAA to tow his car to his home. Accused had already relinquished control of his car to tow truck operator when police arrived. Th ere was no risk of accused putting car in motion or doing anything else to car which would pose risk of danger to public. R. v. Narinesingh (Apr. 30, 2010, Ont. C.J., West J., File No. 09-07954) 87 W.C.B. (2d) 825 (5 pp.). There was real risk that accused could have set vehicle into motion Accused was found asleep re- clined in driver's seat of his em- ployer's truck. Keys were in ig- nition and engine was running. Vehicle was located in parking lot and it was admitted that at time, accused was intoxicated and his ability to operate motor vehicle was impaired. Accused testifi ed that he went to park- ing lot intending to drink and then sleep it off before driving away and that he would never drive drunk. Accused convict- ed. Court was not persuaded that evidence of accused, even if believed, displaced presump- tion of care or control of being found in driver's seat. Accused testifi ed that had he awoke at 5 a.m. that he would have as- sessed if he could have driven and that would have been 12 minutes after he provided suit- able breath sample reading in excess of three and half times legal limit. Assessment of one's sobriety when one is register- ing such high readings demon- CASELAW strates existence of real risk of assessing incorrectly one's so- briety and on that basis choos- ing to drive. Accused clearly was planning and preparing to reassess his sobriety and make decision as to whether he would elect to drive at some later time and had therefore not aban- doned all intentions to drive. Th ere was real risk that accused through inadvertence or negli- gence could have set his vehicle into motion. R. v. Adario (Apr. 21, 2010, Ont. C.J., Robertson J., File No. 315938) 87 W.C.B. (2d) 826 (10 pp.). Obstructing Peace Officer PROOF OF OFFENCE It must be clear on evidence that accused knows that what he is doing is interfering with police officer in execution of his duty Accused was charged with wil- fully obstructing peace offi cer who was attempting to execute search warrant by intention- ally impeding his way. Offi cers had received judicial authoriza- tion for unannounced dynamic entry to night club they had been investigating. Accused was six feet 10 inches, 450 pound doorman who blocked front en- trance of club when police were running up the stairs and yell- ing they were police there to ex- ecute warrant. Police had to put accused on ground to gain ac- cess to club. Accused not guilty. Accused had radio set in one ear and ear plug to lessen bass dam- age from club in other ear and very well may not have heard police identifying themselves. Obstructive act cannot consti- tute illegal act simply because it occurs. It must be clear on evi- dence that accused knows that what he is doing is interfering with police offi cer in execution of his duty. Court did not fi nd accused deliberately commit- ted any positive acts intended to obstruct offi cer in course of his duty and found that his con- duct was not wilful. Even if ac- cused had wanted to get down on ground, there was nowhere for him to go. R. v. Kiradziev (Apr. 29, 2010, Ont. C.J., Zuker J.) 87 W.C.B. (2d) 831 (20 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Sufficient evidence existed for committal of accused for first degree murder Accused brought application to quash committal to stand trial on fi rst degree murder and for committal of manslaughter to be substituted. Accused con- tended there was no evidence that he intended to cause death or intended to cause bodily harm or was reckless whether or not death ensued. Accused was involved in motor vehicle incident with police offi cer. Despite being told to stop and advised that deceased was offi - cer accused continued to drive car and maneuver it so that door upon which offi cer was clinging hit tree. Impact with tree caused offi cer's death. Ap- www.lawtimesnews.com 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. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! For more information visit canadalawbook.ca plication dismissed. Reasonable jury properly instructed could draw inference from evidence that accused intended to cause bodily harm and had subjec- tive knowledge that his actions could cause death. Preliminary hearing judge did not commit jurisdictional error in conclud- ing that suffi cient evidence ex- isted for committal of accused. R. v. Jiwa (Apr. 16, 2010, Ont. S.C.J., Brown J., File No. 07/06394) 87 W.C.B. (2d) 832 (13 pp.). Search And Seizure FORFEITURE Application for forfeiture of funds seized from accused was dismissed Accused charged with drug of- fences and possession of pro- ceeds of crime. Crown eventu- ally withdrew charges. Director of Civil Forfeiture applied un- der Civil Remedies Act, 2001 (Ont.) for forfeiture of funds seized from accused at time of arrest. Application dismissed. Affi davit in support of applica- tion contained no evidence as to whether currency was "proceeds of unlawful activity" or "an in- strument of unlawful activity", nor belief to that eff ect. Court could not infer that currency sorted in bundles and seized from accused along with other paraphernalia was indicative of money being proceeds of sale of drugs. Assertions of reasonable and probable grounds in Di- rector's factum had to be based on evidence. Court could not draw adverse inferences from accused's failure to respond to PAGE 19 application or failure to assert lawful origin for money. Di- rector had onus of establish- ing that currency qualifi ed for forfeiture. Ontario (Attorney General) v. $9,616.98 in Canadian Cur- rency (In Rem) (Apr. 28, 2010, Ont. S.C.J., Kiteley J., File No. 08-CV-351161-PD1) 87 W.C.B. (2d) 842 (7 pp.). Sentence CAUSING BODILY HARM WITH INTENT Conditional sentence demonstrably unfit Accused pleaded guilty to ad- ministering destructive thing with intent to cause bodily harm and criminal harassment. Accused sentenced to 18-month conditional sentence for repeat- edly administering corrosive chemical to complainant's be- longings, causing serious bodily harm. Chemical administered as campaign of harassment af- ter romantic relationship with complainant terminated. On Crown appeal, sentence var- ied to two years less one day' imprisonment. Intentional en- dangerment of complainant's safety serious personal injury off ence such that conditional sentence unavailable. Condi- tional sentence demonstrably unfi t given wilful causation of serious harm, signifi cant breach of trust, deliberate campaign of harassment of complainant. R. v. Carr (Apr. 8, 2010, Ont. C.A., Weiler, Simmons and Watt JJ.A., File No. C51205) 87 W.C.B. (2d) 856 (8 pp.). LT When More is Too Much Starting from $62.50 per month

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law