Law Times

Law Times • December 7, 2009 evidence and a law such as the one at issue that admits it but declares that it is insufficient in itself to provide a defence. Court found that accused's ar- gument was that he had a con- stitutional right to lead and suc- ceed on what Parliament had declared to be an insufficient or meritless defence and there was no principle of fundamental justice that supported that con- tention. Amendments did not make the Carter defence unat- tainable. Court accepted expert evidence that where two samples of breath were analyzed by the relevant approved instrument that was apparently functioning normally and such normal func- tion was verified by the test re- cord, where the result was 90 or greater, it would not be possible that the subject was under 80 at the time of testing. No credible hypothesis had been suggested whereby an undetectable error could escape detection with all of the machine's checks in place. Evidence supported the validity of the presumption in question and the statutory scheme there- fore did not infringe the pre- sumption of innocence. Court found that the ability to rebut the presumption had not been eliminated or inappropriately impeded. R. v. Powichrowski (Oct. 27, 2009, Ont. C.J., Duncan J.) Order No. 009/301/008 (37 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Admitting evidence would invite perception that Charter did not apply to persons with known criminal records and associations Application by the accused to exclude evidence against him because his rights under the Canadian Charter of Rights and Freedoms were violated. Accused was known to police because he had multiple convic- tions for weapons' possession and he associated with criminal gang members. He was stopped for a speeding infraction. He was not suspected of any par- ticular crime. Accused was searched and was found with a kitchen paring knife. Search was not motivated by officer safety. Accused was charged with pos- session of a concealed weapon, breach of a probation order and failing to comply with a recog- nizance. Application allowed. Search was unlawful. It became arbitrary at the time it no longer facilitated the speeding investi- gation. Breach was serious. Im- pact on the accused of the pro- longed detention and the search was profound. Admitting the evidence would invite the per- ception that the Charter did not apply to persons with known criminal records and associa- tions. Evidence was excluded so the administration of justice would not be brought into dis- repute. Charges were dismissed as the excluded evidence was the only evidence against the accused. R. v. McFarlane (Oct. 20, 2009, Ont. C.J., Block J.) Order No. 009/295/029 (6 pp.). Courts ABUSE OF PROCESS Assistant Crown Attorney who prosecuted first trial not to participate as counsel for Crown at second trial Accused was charged with sec- ond degree murder, attempted murder and two counts of dis- charging a firearm with intent to kill. Charges arose out of a shooting that occurred out- side a bar. Surveillance footage showed a bouncer at the bar chase accused after he appar- ently participated in a purse snatching. Footage showed bouncer return with somebody in a headlock and after that per- son was released he pulled out a gun and fired it at the bouncer as he ran back into the bar. Two more shots were fired, each of which hit bystanders, one of whom died. After four days of deliberations, the jury was un- able to reach a verdict and a mistrial was declared. A second trial was scheduled but in the interim accused commenced an application seeking a stay of proceedings based on claims certain post mistrial conduct of the Assistant Crown Attorney ("ACA"), who had prosecuted the first trial, constituted an abuse of process. The jury had borrowed the ACA's computer and when it was returned to him he opened excel files the jury members had made them- selves to assist their understand- ing of the case. The request for a stay of proceedings was aban- doned but the issue remained whether accused had established that the ACA should be barred from representing the Crown at the second trial. Application al- lowed, direction that ACA not participate as counsel for the Crown at the second trial of ac- cused. Computer file folder en- titled "Jury Work" which ACA found on his desktop had not been an exhibit at trial. All of the material was well within the boundaries of "the deliberation process", all of it was protected by a guarantee of secrecy and ACA had no right to exam- ine it. Anything short of bar- ring the ACA would send the wrong message to both the justice system participants and the general public. R. v. Johnson (Oct. 22, 2009, Ont. S.C.J., MacDonnell J., File No. CR-07-PR000846) Order No. 009/299/003 (8 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Action arising from manufacture of operative part of heart defibrillators was partially and conditionally certified Plaintiffs claimed defendants manufactured and sold defective electronic wires which were op- erative part of implantable heart defibrillators. Plaintiffs brought motion to certify action as class proceeding. Plaintiffs claimed CASELAW defendants conspired to con- ceal defect from regulators and failed to warn doctors and persons implanted with heart defibrillators. Action was par- tially and conditionally certified as class proceeding. Motion to certify claim in conspiracy was adjourned sine die and plaintiff was granted 20 days to amend statement of claim to properly plead claim in conspiracy. State- ment of claim disclosed cause of action in negligence, waiver of tort and claims of Family Law Class Members and provincial health insurers. Additional class for claims of provincial health insurers was to be added and leave granted to amend state- ment of claim. Common is- sues of quantification of waiver of tort claim was to be divided from and follow common issues trial of other common issues. Proposed common issue with respect to punitive damages was not certified as common issue. Litigation plan was to be amended. Robinson v. Medtronic, Inc. (Oct. 20, 2009, Ont. S.C.J., Perell J., File No. 07-CV-341755CP) Order No. 009/295/027 (41 pp.). Constitutional Law CHARTER OF RIGHTS Paralegal status not enumerated or analogous ground under s. 15 of Charter Applicant sought declaration rules made by society to govern paralegals pursuant to Access to Justice Act, 2006 ("Bill 14"), were of no force and effect be- cause Bill 14 infringed equality rights under s. 15 of Canadian Charter of Rights and Free- doms. Application was dis- missed. Bill 14 did not infringe s. 15 of Charter. Paralegal status was not enumerated or analo- gous ground protected under s. 15 of Charter. Role of Lieuten- ant Governor in granting royal assent to Bill 14 was governed by constitutional convention and was not subject to judicial review. Attorney General did not advise Lieutenant Gover- nor regarding granting of royal assent to Bills. Babineau v. Ontario (Lieuten- ant Governor) (Oct. 8, 2009, Ont. S.C.J. (Div. Ct.), Cun- ningham A.C.J.S.C., Swinton and Smith JJ., File No. 462/07) Order No. 009/287/021 (4 pp.). Torts MALICIOUS PROSECUTION Plaintiff proved claim for malicious prosecution Plaintiff purchased defendant's gas station. Part of property was leased by corporate plain- tiff from defendants as oper- ating gas station. Defendant retained automobile repair business. Plaintiff had office in same premises from which gas business was run. Plaintiff's one-time payment of $225,000 was characterized in agreement as "Basic Rent". Agreement provided for Basic Rent pay- ments of $8,000 per month. Gas station business operated www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM at loss. Plaintiff was in arrears of rent. Defendant's counsel never received copy of insur- ance certificate. Defendants advised plaintiffs defendants were re-entering premises and were terminating lease for de- fault in payment of rent. Crim- inal charges were laid against individual plaintiff including charge for assault. Plaintiff was found not guilty of charges. Plaintiffs claimed breach of contract and negligent mis- representation in relation to sales and profit of gas station business. Plaintiffs brought action for malicious prosecu- tion against defendants S. and B.. Plaintiffs were awarded $364,180 in damages for tor- tious conduct and misrepresen- tations. Plaintiff was awarded $20,000 for tortious conduct and malicious prosecution pay- able jointly and severally by de- fendants S. and B.. Individual plaintiff had insurance cover- age throughout time plaintiff operated gas station. Original rent payment of $8,000 per month and any escalation of those payments per month un- der lease was true rent being paid. Defendant knew compa- ny was not making profit when defendant placed ad in news- paper for its sale. Ad defendant put in newspaper was reckless or negligent misrepresentation amounting to fraud. S. and B. acted in concert in coming up with stories about incident with plaintiff leading to plain- tiff's arrest. Defendants con- spired to prevent plaintiff from returning to gas station and to prevent plaintiff from having PAGE 15 tenancy reinstated. Plaintiff proved claim against S. and B. for malicious prosecution. Dardha v. Theodore (Oct. 16, 2009, Ont. S.C.J., Greer J., File No. 04-CV-269885CM2) Order No. 009/299/035 (38 pp.). NEGLIGENCE Actions arising from mid-air collision not struck out for failure to disclose reasonable cause of action Three individuals died in mid- air collision. Widows brought actions claiming damages for negligence. Safety review before accident identified 17 specific risks and made six recommen- dations to address risks. Defen- dants brought motions to strike out statements of claim. Allega- tions in specified paragraphs sought to redress Canada for failure to enact regulations or to adopt policies for prevention of accidents of kind that occurred and were struck out. Neither action was struck out for fail- ing to disclose reasonable cause of action. Canada owed duty of care to deceased to enforce non- discretionary regulations under Aeronautics Act (Can.). Speci- fied paragraphs could be con- strued as addressing operational negligence. It was not possible without full evidentiary record to conclude plaintiffs could not possibly succeed. Particulars of negligence were to be provided in both actions. Sumere v. Transport Canada (Oct. 8, 2009, Ont. S.C.J., Low J., File No. CV-08-00359520-0000; CV-08-00359857) Order No. 009/286/013 (4 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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