Law Times

Law Times • November 22, 2010 of Natural Resources) (Sep. 30, 2010, Ont. S.C.J., Shaw J., File No. CV-10-0223) 193 A.C.W.S. (3d) 270 (5 pp.). Limitations REAL PROPERTY Defendant was owner by adverse possession Parties owned adjacent prop- erties. Defendants fenced in property. Property inside fence included portion of plaintiff 's property. Plaintiff claimed own- ership based on legal title. De- fendants claimed ownership based on adverse possession. Plaintiff 's action was dismissed. Defendant was granted decla- ration defendant was owner by adverse possession. Vesting order was to issue with respect to prop- erty. From 1979 forward utiliza- tion of property by defendants was constant and continuous. Evidence showed activities car- ried out on property were open and notorious. Defendants es- tablished actual possession of portion of disputed property. By 1990 defendants established actual possession for ten years. Defendants intended to exclude true owners from possession and did so eff ectively. Hanchiruk v. Oliveira (Sep. 8, 2010, Ont. S.C.J., Haines J., File No. 49/08) 193 A.C.W.S. (3d) 289 (14 pp.). Torts LIBEL AND SLANDER Plaintiff failed to rebut presump- tion of qualified privilege Motion by defendant doctor for summary judgment dis- missing plaintiff 's libel action against her. Plaintiff was suing for events surrounding birth of her granddaughter. Defendant was the mother's family doctor and referred her to obstetrician- gynaecologist when she learned mother was pregnant. Plaintiff and mother attended hospital with baby shortly after birth and reported that baby was vomiting after feeding. De- fendant noted baby was losing weight, requested urgent con- sultation with paediatrician and told mother to bring baby back to emergency room if vomit- ing persisted after fours hours. Defendant asked nursing staff to follow up with mother. Next day, nurse advised defendant that she had called mother to ask about baby's health and mother told her baby was still vomiting, but refused to bring her back to hospital. Defendant was con- cerned baby needed medical treatment to prevent dehydra- tion and contacted Children's Aid Society ("CAS") about mother's refusal to seek medi- cal treatment. Plaintiff alleged defendant made defamatory statements to CAS. Defendant argued that she did not make defamatory statements and, if she did, she was protected by qualifi ed privilege. Motion al- lowed. Defendant was a health care professional with a duty to report children in need of pro- tection under Child and Family Services Act (Ont.). Defendant's statements to CAS were made in good faith and prompted by reasonable concerns about baby. Plaintiff failed to adduce any evidence to rebut presumption of qualifi ed privilege. Ryabikhina v. Leong (Oct. 5, 2010, Ont. S.C.J., Belobaba J., File No. 08-CV-353006PD2) 193 A.C.W.S. (3d) 326 (4 pp.). ONTARIO CRIMINAL CASES Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE No minimum time period or man- datory question required for officer to form reasonable grounds Accused charged with impaired driving. Arresting offi cer re- sponding to report of erratic driving and fi nding motor ve- hicle accident involving ac- cused. Offi cer immediately ar- resting accused, making breath demand. Offi cer testifying that reasonable grounds were based on report of intoxicated driver, other indicia of impairment and eff ects of accident. Accused unsuccessfully arguing offi cer did not have objectively rea- sonable, probable grounds to make breath demands. Accused convicted. Summary convic- tion court reversing conviction. Crown appeal allowed, convic- tion restored. Grounds to make breath demand are formed on consideration of totality of cir- cumstances. No minimum time period or mandatory question required for offi cer to form rea- sonable grounds. Trial judge was entitled to rely on offi cer's years of experience in fi nding breath demand reasonable. R. v. Bush (Aug. 17, 2010, Ont. C.A., Blair, LaForme JJ.A. and Durno J. (ad hoc), File No. C48968) 90 W.C.B. (2d) 279 (35 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Trial judge underemphasized seri- ousness of police conduct Police obtaining warrant to search accused's residence for guns and stolen property based on information of confi dential informant. Police conducting surveillance of accused's home, vehicle. Offi cer drafting search warrant application adding er- roneous detail about surveillance observations that mistakenly strengthened link of accused to stolen property. Police seiz- ing gun, counterfeit money, stolen property from accused's residence. Trial judge holding police's conduct in carelessly drafting warrant constituted unreasonable search of accused's residence. Trial judge holding evidence should be admitted at trial. Appeal from convictions allowed. Trial judge erred in analysis of s. 24(2) of Charter by underemphasizing serious- ness of police conduct. Careless insertion of erroneous informa- tion into warrant application makes breach more serious. CASELAW Trial judge failed to consider impact of breach on accused's Charter-protected interest to be free from illegal search in his residence. Society's interest in court dissociating itself from signifi cant police carelessness outweighs interest in adjudica- tion in merits, notwithstanding reliable, highly probative nature of evidence seized. Canadian. R. v. Dhillon (Sep. 9, 2010, Ont. C.A., Weiler, Goudge and Sim- mons JJ.A., File No. C50629) 90 W.C.B. (2d) 283 (20 pp.). Evidence EXHIBITS Exhibit released for publication with article Applicant reporter sought to publish photograph of accused with broken jaw for his upcom- ing article regarding injuries or deaths after civilians interact with police. Accused in that case had his charges stayed after court found overwhelming evidence that his jaw was broken in police custody. Police offi cer has been charged with aggravated assault and objected, as intervener in this case, to publication of pho- tograph on grounds it would af- fect his right to fair trial. Crown took no position on matter but suggested that photograph be released along with publication ban. Police offi cer's trial had not yet reached preliminary inquiry stage. Exhibit released for pub- lication with article. Th ere was little possibility that photograph would taint upcoming jury as there was no dispute that ac- cused's jaw was broken. Exhibit released only for use in upcom- ing article and publication ban was not necessary with that limit. Police offi cer's prosecution was at early stage and article was going to be written regardless. Photograph was not to be used for improper purpose. R. v. Tran (Oct. 1, 2010, Ont. S.C.J., Durno J., File No. CRIM MOT(P) 626/10) 90 W.C.B. (2d) 300 (14 pp.). Murder ATTEMPTED MURDER Requiring two separate trials for murder and attempted murder would have significant negative policy ramifications As included off ence to second degree murder. Accused charged with second degree murder. Ac- cused alleged to have shot de- ceased in abdomen with sawed- off shotgun. Deceased died of a blood clot more than a month later and fi ve days after being released from hospital. One ex- pert witness testifi ed that blood clot could have been caused by cocaine ingestion rather than by complications from the gunshot wound. Trial judge declined to leave attempted murder as avail- able verdict and told jury they must acquit if they had reason- able doubt on causation. Ac- cused convicted of second degree murder. Appeal allowed. Section 660 of Criminal Code provid- ing that attempt available verdict where completed off ence not proven. Nothing in s. 662's de- scription of available verdicts for murder charges limiting or qual- www.lawtimesnews.com Starting from $62.50 per month ifying broad language of s. 660. Requiring two separate trials for murder and attempted mur- der to determine culpability for single act would have signifi cant negative policy ramifi cations. R. v. Sarrazin (Sep. 9, 2010, Ont. C.A., Doherty, Moldaver and Epstein JJ.A., File No. C47693; C48209) 90 W.C.B. (2d) 308 (76 pp.). Search And Seizure VALIDITY OF WARRANT Trial judge failed to consider infor- mation to obtain as a whole Accused acquitted of off ences related to possession of shot- gun and ammunition. Police found murder victim who had been sexually assaulted in black bag together with items con- nected to rooming house in which accused lived. Accused had separate room in basement of house with lock. Police had information that accused had used black bag when moving in. Accused had criminal record for violence. Items found with de- ceased were connected to other resident of rooming house who had outstanding charges includ- ing aggravated sexual assault. Police obtained warrant to search entire rooming house in- cluding accused's room and dis- covered sawed-off shotgun and ammunition. Other resident of rooming house later convicted of the murder. Trial judge found that information to obtain was insuffi cient to justify search of accused's separate residence. Tri- al judge excluded seized evidence pursuant to s. 24(2) of Charter. PAGE 15 Crown's appeal allowed. Trial judge misapprehended evidence and failed to consider informa- tion to obtain as a whole. Totality of evidence including accused's criminal record and use of black bag together with evidence that murder took place in rooming house was suffi cient to justify is- suance of warrant. R. v. Campbell (Sep. 13, 2010, Ont. C.A., Doherty, Juriansz and Karakatsanis JJ.A., File No. C49978) 90 W.C.B. (2d) 286 (43 pp.). Sentence DRIVING OFFENCES Five-year sentence not unfi t for conviction for impaired driving causing death Accused convicted of impaired and dangerous driving causing death. Accused killing pedestrian on roadside after losing control of vehicle. Trial judge fi nding ac- cused's level of impairment and rate of speed "signifi cant" and sentencing accused to fi ve years in custody. Sentence appeal dis- missed. While sentence of fi ve years for fi rst off ender at higher end of range, sentence is not unfi t or a signifi cant departure from sentences previously im- posed. Substantial penalties for drinking and driving off ences involving death refl ect predomi- nant sentencing principles of community denunciation and general deterrence. R. v. Junkert (Aug. 12, 2010, Ont. C.A., O'Connor A.C.J.O., Armstrong and Watt JJ.A., File No. C50739) 90 W.C.B. (2d) 331 (18 pp.). LT When More is Too Much Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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• Libel Ruling Appealed
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