Law Times

Law Times • June 28, 2010 to declare mistrial because of reasonable apprehension of bias. Accused was passenger in vehicle that police stopped for making illegal turn. Police wanted to ask accused further questions when altercation occurred. Accused was handcuff ed and searched and it was then that handgun was dis- covered. Voir dire was held before trial judge to determine admissi- bility of handgun evidence. Judge preferred testimony of offi cer who struggled with accused and found that accused started fi ght. Handgun evidence was found to be admissible. Addendum was issued to this decision to correct testimony that was attributed to offi cer. Application dismissed. Is- suance of ruling on voir dire did not render judge functus offi cio and there was no error in issuing addendum. Even though reasons did not contain all evidence ad- duced or all cases referred to by counsel reasons contained in ruling and addendum were suf- fi cient. Relevant legal positions were considered and applied. Key fi nding of fact on voir dire was that accused assaulted offi cer and that assault resulted in search in which handgun was discovered. Assault broke causal connection between any breach of Canadian Charter of Rights and Freedoms that may have occurred and dis- covery of handgun. In any event criteria of s. 24(2) of Charter were not met. As such loaded handgun would not be excluded from trial evidence. Th ere was no failure to consider accused's evidence and there was no fundamental misun- derstanding of that evidence. Rea- sons did not support fi nding of reasonable apprehension of bias. Informed, reasonable and right- minded person who reviewed this matter would not conclude that there was reasonable apprehen- sion of bias in this case. R. v. Blackwood (Apr. 6, 2010, Ont. S.C.J., Th orburn J.) 87 W.C.B. (2d) 909 (14 pp.). Evidence HEARSAY Deceased's statements sufficiently reliable for admission Accused charged with fi rst degree murder. Crown alleged accused pushed his wife off cliff , while accused testifi ed that she fell ac- cidentally. Accused was having aff air with woman who had his child. Crown led statements of deceased in which she com- plained to friends that accused threatened her and brandished knife at her and that she slept with machete for her protection. Accused spoke to friends and ac- knowledged holding knife dur- ing argument but denied threats. Accused convicted. Accused's appeal dismissed. Trial judge entitled to fi nd statements suffi - ciently reliable for admission. De- ceased was close with recipients of statements. Statements made spontaneously and close in time to events described. Statements were relevant to deceased's fear of accused and evidence of his mo- tive and animus. R. v. Polimac (May 12, 2010, Ont. C.A., Winkler C.J.O., Do- herty and Feldman JJ.A., File No. C46344) 87 W.C.B. (2d) 916 (49 pp.). Extradition And Fugitive Offenders EVIDENCE One of two persons sought was ordered to be extradited to Republic of Hungary Application by Republic of Hun- gary for extradition of fugitives P and L for their alleged involve- ment in fraudulently obtaining commercial quantities of oil. Corresponding Canadian of- fence was fraud, contrary to s. 380(1) of Criminal Code. Ap- plicant claimed that fugitives or- dered large quantities of oil from two companies and did not pay for it after it was delivered. P and L were husband and wife. Ap- plication allowed in part. P was ordered to be extradited. Appli- cation to extradite L was denied. New evidence that P sought to introduce was not permitted as it did not demonstrate that record of case was manifestly unreliable. In case of P there was available reliable evidence to show that he engaged in fraudulent activ- ity and he was aware of depriva- tion that would result from such conduct. Regarding L there was no evidence from which reason- able person would conclude that she was involved in fraudulent activity and that she intended to deprive two companies of money due to them for payment of oil that they delivered. It was not reasonable inference to conclude that L had knowledge of fraud at time it was committed. Hungary (Republic) v. Pataki (Apr. 28, 2010, Ont. S.C.J., Th orburn J., File No. CR-09- 90000026-00MO) 87 W.C.B. (2d) 921 (17 pp.). Gaming And Betting GENERAL Application for declaration as to legality of video game was dismissed as premature and speculative Applicant corporation had rights to import and distribute video game in Ontario. Game was in- tended to be played by ordinary adult at bingo hall. Applicant sought declaration that game was legal in Ontario or alternatively order for trial of issue. If video game was found to be "game" within meaning of s. 197(1) of Criminal Code it would be il- legal. "Game" defi ned as game of chance or mixed chance and skill. Application dismissed. Ap- plication premature and specula- tive. No action had been taken in connection with video game. Trial of issue at this stage would be academic. In any event, appli- cant failed to discharge burden to show that video game was game of pure skill. On applicant's own evidence, game appeared likely to be game of mixed chance and skill. 2031012 Ontario Ltd. v. Cana- da (May 14, 2010, Ont. S.C.J., Chapnik J., File No. CV-09- 383103) 87 W.C.B. (2d) 924 (3 pp.). Search And Seizure RETURN OF ITEMS SEIZED Canada Revenue Agency permitted to retain items CASELAW seized until end of year Canada Revenue Agency ("CRA") commenced investi- gation of accused to determine whether he included false charita- ble donation claims in preparing tax returns for his clients. Search warrants were executed and items seized. On two occasions orders had been made permitting CRA to maintain items seized. CRA sought to retain items for further year. Accused allegedly prepared 1,908 false income returns on behalf of individuals over course of two years. Accused allegedly personally claimed charitable do- nations on fraudulent receipts for three years for amounts that rep- resented signifi cant percentages of his net income. CRA claimed investigation was of such com- plexity that further detention of one year was required. CRA per- mitted to retain items seized but only until end of year, roughly nine months. Court found in- vestigation was complex as it was neither simple tax evasion case nor straight forward false claim fi led by one taxpayer. Court was unable to fi nd any evidence of laches, bad faith or lack of re- sources. Court was unable to fi nd that record supported further one year retention. Canada Revenue Agency v. Oko- roafor (Apr. 30, 2010, Ont. S.C.J., Durno J., File No. 86/10) 87 W.C.B. (2d) 925 (17 pp.). Sentence DRIVING OFFENCES Accused sentenced to four years' imprisonment for criminal negli- gence in operation of vehicle caus- ing bodily harm to one person and death to another person Sentencing of accused after he was convicted of criminal neg- ligence in operation of vehicle causing bodily harm to one per- son and death to another person. Victims were husband and wife. On August 16, 2006 accused drove in manner that resulted in death and injury to victims. He also caused other motorists to fear for their personal safety. He was currently 47-years old. Accused was father of two children and was divorced and his pre-sentence report was negative. Accused had issues with alcohol and was con- victed of two impaired driving charges. He was also addicted to prescription pain drug. Accused committed 22 Highway Traf- fi c Act (Ont.) off ences between 1982 and 2008. His licence was suspended four times. Accused was sentenced to global sentence of four years' imprisonment. He was prohibited from driving for 15 years. Accused had to provide DNA sample. Primary sentenc- ing considerations were denun- ciation, general and personal de- terrence and protection of society. Rehabilitation also had to be con- sidered. Conditional sentence was inappropriate in circumstances of this case. Accused continued to make inappropriate decisions when it came to driving, even af- ter he committed these off ences. His conduct was very serious. He did not have to drive in criminally negligent way that he did. R. v. Spears (May 3, 2010, Ont. S.C.J., MacLeod-Beliveau J.) 87 W.C.B. (2d) 937 (20 pp.). www.lawtimesnews.com Trial CHARGE TO JURY Jury instructions in first-degree murder trial were appropriate Accused charged with fi rst de- gree murder. Crown alleged ac- cused pushed his wife off cliff , while accused testifi ed that she fell accidentally. Accused was having aff air and had child with other woman but lied about this to police. Accused instructed mistress to lie to police. Crown relied on this as post-off ence conduct. Crown further relied on accused's desire to cremate deceased and opposition to death notice being placed in paper. Accused told police that he spoke with deceased after her fall. Crown led evidence that de- ceased would already have been dead before accused could reach her. Crown alleged other aspects of accused's statements to police and other were false including his route to deceased after fall and his ability to see nearby house where he went for help. Accused convicted. Accused's appeal dis- missed. While trial judge could have withdrawn cremation and death notice evidence from jury, she expressed opinion that it had little value. Jury would not have ascribed weight to evidence. Jury entitled to fi nd that accused's statements were fabricated to avoid detection. Trial judge did not instruct jury on distinction between disbelieved statements and statements shown to be fab- ricated. Jury instructions none- theless appropriate. Trial counsel did not request such instruction R. v. Polimac (May 12, 2010, PAGE 19 Ont. C.A., Winkler C.J.O., Do- herty and Feldman JJ.A., File No. C46344) 87 W.C.B. (2d) 916 (49 pp.). Trespass Taxi service providers found guilty of trespassing at airport Five accused were charged with trespassing for entering prem- ises of Lester B. Pearson Inter- national Airport contrary to written notices that such entry was prohibited. Accused were all limousine taxi service providers at international airport that were alleged to have actively solicited fares for rides away from airport. All fi ve accused guilty as charged. Evidence established that on date or dates prior to charges before court, each of accused had been identifi ed as being on premises of airport authority and based on inquires made by in- vestigating agent each had been served with trespass notice and had subsequently been found once again on premises. Most, if not all accused had been served with multiple trespass notices. Evidence of admissions made by one of accused to police offi cer were ruled inadmissible. Ac- cused believed that their rights of access had been unreasonably or improperly abridged, there were other remedies available, which did not include breach of Provincial law but there was no evidence that such remedies had been sought. R. v. Singh (Apr. 29, 2010, Ont. C.J., Dudar J.P., File No. 09- 1969; 09-2359; 09-2584; 09- 1906) 87 W.C.B. (2d) 954 (25 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. 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. 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