Law Times

Law Times • May 4, 2015 Page 15 www.lawtimesnews.com find that presumption of resulting trust had been rebutted and that daughter took property by way of gift. Presumption of resulting trust was not rebutted. Property formed part of estate and its dis- position was governed by terms of 2004 will. Daughter was obligated to sell property and pay $70,000 each to grandchildren and failure to do so was breach of trust. Mroz (Litigation guardian of) v. Mroz (Mar. 16, 2015, Ont. C.A., Doherty J.A., E.E. Gillese J.A., and P. Lauwers J.A., File No. CA C58622) Decision at 239 A.C.W.S. (3d) 269 was affirmed. 250 A.C.W.S. (3d) 719. ONTARIO CRIMINAL DECISIONS Breach of Trust by Public Official GENERAL Police officer committed breach of trust by submitting false accident reports Trial of accused, who was sus- pended police officer, for 46 offences related to fraud, mak- ing false documents, breach of trust and obstruction of justice. Charges related to nine mo- tor vehicle accident reports (MVAR) prepared by accused in 2010. MVARs resulted in in- surers paying claims and incur- ring costs that totalled over $1 million. Accused joined police force in 1992 and prior to 2010 he never prepared MVAR with- out attending at scene. Accused did not attend at scene before he prepared MVARs that were subject of charges. He relied on information received from tow truck driver and from childhood friend. In seven cases he did not speak to any of drivers or pas- sengers. In some cases MVAR indicated that traffic ticket was to be issued to at fault driver and these tickets were basis of obstruction charges. Crown claimed that accused was paid $6,000 per MVAR and accused understood that MVARs were for fake accidents and were to be used to defraud insurers. Ac- cused claimed that he prepared MVARs as favours for friends and he believed accidents to be real and that information was ac- curate. At no time was he paid for MVAR. Accused convicted of all offences, with exception of four charges of attempting to obstruct justice, because no ticket showed up in system for accused never put them in basket to be pro- cessed. For each MVAR accused was charged with being party to offence by fraudulent means by obtaining funds in excess of $5,000. He made false docu- ment, knowing that it was false and he intended them to be acted upon. Accused further commit- ted breach of trust by creating and submitting false MVAR. He prepared nine MVARs with- out attending scene or speaking to drivers and passengers. His notes were intentionally decep- tive in that they indicated that he was on scene and that he dealt directly with drivers. Accused intentionally provided mislead- ing information to dispatch and this resulted in unit history being inaccurate as to his location at time of purported accidents. At fault driver was charged in order to avoid detection by senior of- ficers. He failed to submit tickets to be processed in court system to facilitate fraudulent scheme and to lessen risk of detection. R. v. Watson (Feb. 13, 2015, Ont. S.C.J., Sproat J., File No. CR (P) 13-0097) 119 W.C.B. (2d) 594. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Overholding detention to accommodate shift scheduling breached s. 9 of Charter Accused, charged in seven-count indictment with offences relating to robbery, applied to exclude in- custody statements to police and stolen wallet he possessed when arrested. Accused was charged with one count of possession of weapon, two counts of uttering threats, two counts of forcible confinement, one count of being unlawfully in dwelling house and one count of conspiracy to com- mit indictable offence. Accused alleged he was over held dur- ing period immediately follow- ing his arrest and until his first statement; that he was not taken before justice within 24 hours, and was over held again after his statement to detective. Accused submitted delay in processing him was unreasonable. Accused was interrogated through noon hour next day of his arrest and interrogating detective decided not to charge accused with re- gards to marijuana charges on which he was originally arrest- ed. Accused was detained on those drug charges according to Crown for 16.5 hours. Appli- cation allowed; statement and wallet excluded from evidence. Court accepted that from po- lice perspective, circumstances of offences were not urgent and services of drug unit detective in middle of night served little pur- pose. It was relatively minor drug arrest. Officer in charge should have released accused on his re- cognizance. Possession of mari- juana for purpose of trafficking is not crime that, of itself, merits continued detention. Instant cir- cumstances fell into paradigm for timely release in accordance with legislation. Accused was detained overnight to accom- modate combination of police service policy and unavailabil- ity of detective. Policy was laud- able so long as resources were in place to honour Charter and Criminal Code requirements. Investigation was essentially done. Overholding detention to accommodate shift scheduling is unreasonable and breached accused's s. 9 right to not be ar- bitrarily detained. Accused was not taken before justice of peace pursuant to s. 503 of Code or within 24 hours of arrest. That too was arbitrary detention. But for arbitrary detention, accused would not have been exposed to seizure and tracing of wallet and inculpatory statement under in- terrogation with detective. There was direct cause and effect. Cu- mulative breaches weighed bal- ance in favour of exclusion. R. v. Mohammed (Feb. 9, 2015, Ont. S.C.J., Rick Leroy J., File No. Ottawa 11-10307) 119 W.C.B. (2d) 484. ENFORCEMENT OF RIGHTS Police were only negligent in failing to advise of full extent of investigation Trial judge convicted accused af- ter dismissing accused's applica- tion to exclude evidence of drug and weapon charges for breach- ing ss. 8, 10(a), (b) of Charter. 9-1-1 operator received truncated 9-1-1 call and officers dispatched to residence. Police remained at scene of residence to ensure safety of any occupants even though locked and in darkness. Accused stood in fenced in rear yard of residence using cell phone. Po- lice told accused he was detained while they investigate breach un- der Trespass to Property Act and advised of right to speak to coun- sel. Police advised they would conduct pat-down search after accused's movements raised sus- picion he was carrying gun. Police recovered gun and drugs during search conducted after accused attempted to f lee. Trial judge held investigative detention and search were lawful and s. 8 of Charter not breached. Trial judge found s. 10(a) and (b) breached for failure to advise of 9-1-1 call investigation and to give information to imple- ment right to counsel. Trial judge admitted evidence pursuant to s. 24(2), holding police only negli- gent and impact on Charter inter- est minimal as accused gave no statement. Appeal from convic- tions dismissed. Investigative de- tention lawful as police executed common law duty to protect life and property when investigating 9-1-1 call. Detention also justi- fied for potential breach of s. 9(1) of Trespass to Property Act. Ac- cumulation of factors included accused's suspicious movements and attempted f light justified search for safety reasons. Applica- tion of s. 24(2) of Charter correct as police were only negligent in failing to advise of full extent of investigation. Items would have been discoverable under search incident to arrest for breach of Trespass to Property Act. R. v. Peterkin (Jan. 12, 2015, Ont. C.A., K. Feldman J.A., David Watt J.A., and K. van Rensburg J.A., File No. CA C57756) Deci- sion at 105 W.C.B. (2d) 524 was affirmed. 119 W.C.B. (2d) 574. Corrupting Children CHILD LURING Accused's account was con- trived and implausible Trial of accused on charge of child luring. Accused posted ad on Internet in which he was looking for young boy for sexual relations. Undercover officer re- sponded to ad and he posed as fictitious 15-year old boy named AD. There followed several com- munications between accused and officer, many of which were sexually explicit. No meeting oc- curred between them. Accused claimed he never believed that AD was 15 and he believed him to be adult who posed as teen- ager. He also testified that he did not intend to meet AD in person and, therefore, he did not intend to facilitate sexual offence. Ac- cused convicted. His testimony was neither worthy of belief, nor capable of raising reasonable doubt. Accused reconstructed history in his evidence to escape criminal liability. His account was contrived and implausible and it could not be reconciled with what he did and said at time of offence. Crown proved essen- tial elements of luring beyond reasonable doubt. There was evidence that accused believed he was communicating with per- son under 16. His claim that he believed AD to be adult was not credible. Accused intended to facilitate commission of sexual offence with AD. R. v. Froese (Feb. 19, 2015, Ont. S.C.J., Renee M. Pomerance J., File No. CR-13-3001) 119 W.C.B. (2d) 577. Disclosure GENERAL Disclosure of redacted ITO and accompanying judicial summaries was sufficient Application by accused for greater disclosure of ITOs used to ob- tain warrant to search accused's residence and his motor vehicle. Accused faced eight count indict- ment that charged him with vari- ous weapons and narcotic-related offences. ITOs were based on information provided by con- fidential informant. Searches resulted in seizure of large quan- tity of drugs, loaded handgun and $20,000 in cash. In order to pro- tect confidentiality of identity of informant ITOs were heavily re- dacted by Crown before they were provided to defence. Accused was not allowed to cross-examine affi- ant who swore ITOs. Court con- cluded that unredacted portions of ITOs showed that affiant had been sufficiently full, frank and fair in his disclosure of accused's antecedents and that proposed questioning would not provide any further relevant information. Application dismissed. Redacted ITOs and accompanying judi- cial summaries provided accused with sufficient awareness of na- ture of excised materials to chal- lenge ITOs by evidence or argu- ment. Crown was to apply to have judge consider so much of excised material as was necessary to sup- port authorization. Judge was to accede to that request only if satis- fied that accused was sufficiently aware of nature of excised mate- rial to challenge it in argument or by evidence. Judicial summary of excised material was to be pro- vided if it fulfilled that function. If Crown was dissatisfied with extent of disclosure and it was of view that public interest would be prejudiced it could withdraw ten- der of evidence. R. v. Travassos (Feb. 12, 2015, Ont. S.C.J., McCombs J., File No. CR-13-50000101-0000) 119 W.C.B. (2d) 476. Extraordinary Remedies HABEAS CORPUS Evidentiary record insufficient to determine court's jurisdic- tion to entertain application Application by JO who was de- tained pursuant to order made by Canada Border Services Agency (CBSA) under s. 55(1) of Immi- gration and Refugee Protection Act (Can.). Applicant brought habeas corpus application in Su- perior Court of Justice (SCJ) in which he challenged legality of his detention and his restricted access to legal materials for pur- pose of challenging his detention. He sought release or, alternatively, order to be transferred to immi- gration detention centre so that he could have more liberal access to legal materials. Applicant was citizen of Zimbabwe who immi- grated to United States in 1980. In November 2001 he entered Canada and he was arrested for using forged documents. In June 2002 he was notified that he was eligible to apply for refugee status. His application was abandoned because in July 2002 he extradited to United States to face charges of forgery and identity theft. He was convicted of these charges in March 2004. In January 2005 while applicant was on parole he was arrested by American immi- gration department and he was sent to Canada in August 2005. He was supposed to be deported to Zimbabwe but deportation was stayed because CBSA was unable to confirm his identity and true country of origin. Ap- plicant was released on bail in January 2006. He was arrested in August 2009 on charges of credit card fraud and he was re- leased. Applicant was arrested in March 2013 and again in April 2013 for various criminal offences and he was acquitted of these charges in 2014. War- rant was issued for his removal from Canada in February 2014 because he did not report to CBSA as required. He remained in custody because he was un- likely to appear for removal from Canada. Applicant was not being held for any criminal matter. Respondents claimed that application had to be dis- missed either because of res ju- dicata or because court did not have jurisdiction in this matter. Application adjourned for two months. Evidentiary record was insufficient to determine court's jurisdiction to entertain application at this time. During adjournment period applicant would have opportunity to avail himself of legal resources that would assist him in pursuing this remedy in Federal Court. Court would then be able to de- termine whether applicant did have remedy in Federal Court and whether SCJ had jurisdic- tion to entertain this applica- tion. R. v. Ogiamien (Dec. 12, 2014, Ont. S.C.J., Coats J., File No. 114/14) 119 W.C.B. (2d) 592. LT CASELAW

• Cover