Law Times

PAGE 22 dence to make improvements for future tenants. Defendant refused to co-operate in severance process and changed locks on premises excluding plaintiff. Plaintiff reg- istered construction lien for im- provements. Parties agreed to re- instate transaction. Lien expired. Plaintiff consented to dismissal of action. Plaintiff brought cur- rent action. Amended statement of claim included improvements that were previously included in construction lien. Defendant brought motion for dismissal. Motion was dismissed. Previous order was not bar to current pro- ceedings. Section 38 of Construc- tion Lien Act (Ont.), permitted claims to proceed. Action was within time requirements. Hewitt v. Rennie (Feb. 27, 2008, Ont. S.C.J., McGarry J., File No. 51608) Order No. 008/063/206 (3 pp.). Mortgages EQUITABLE MORTGAGE Mortgage set aside where title to property taken by fraud Daughter wished to mortgage property further but applicant did not. Daughter proffered powers of attorney for parents authorizing daughter to enter into transaction on their behalf. Power of attorney for applicant was forgery. Mortgage in fa- vour of First National was paid. Net proceeds of mortgage were advanced to daughter. Appli- cant obtained judgment against daughter. Respondent sought declaration respondent held equitable mortgage over appli- cant's one-third interest in con- dominium. Applicant sought declaration that respondent's charge was void because it was obtained by fraud. Applicant's application was allowed. Ap- plicant was entitled to have re- spondent's mortgage set aside. Daughter took title to property by fraud. Respondent's applica- tion was allowed in part. Bank was to have equitable charge against property. If parties did not agree to sale of property to applicant, applicant could apply to court for directions. There was to be reference to determine entitlement of all interested par- ties to net proceeds of sale of property. O'Brien v. Royal Bank of Canada (Feb. 22, 2008, Ont. S.C.J., Corbett J., File No. CV-07- 3632-00; CV-07-3145-00) Or- der No. 008/057/023 (8 pp.). Municipal Law BY-LAWS No conflict between fence by-law and zoning by-law Appellants argued township's fence by-law conflicted with Region's zoning by-law. Appel- lants argued region was superior planning authority and fence by-law did not validly operate to restrain height of appellants' fence. Appeal was dismissed. There was no conflict between two by-laws. Provisions of zon- ing by-law did not apply to fenc- es of kind at issue in case. There was no basis to challenge validity of township's fence by-law. Suprun v. Bryla (Feb. 8, 2008, Ont. C.A., Cronk, Gillese and Armstrong JJ., File No. C47675) Order No. 008/045/064 (2 pp.). Professions PHYSICIANS AND SURGEONS Finding of no misconduct by treating physician upheld on review Applicant was treated by phy- sicians. Applicant made com- plaint of inadequate care. Board upheld investigation and decision of committee concluding there was no mis- conduct on part of applicant's treating physician. Applica- tion for judicial review was dismissed. Absence of reasons for refusal to identify assessor was not unfair to complainant. Mere membership in CMPA alone did not indicate likeli- hood of bias or impropriety. Walker v. Ontario Professions (Health Appeal and Re- view Board) (Feb. 19, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Lane and Swinton JJ., File No. 340/06) Order No. 008/063/182 (7 pp.). Real Property EASEMENTS Unconditional right of way specifically set out in description of land conveyed Appeal was dismissed except to extent judgment was varied to delete paragraph 1(a). There was ample evidence to support find- ings and conclusion. Clause was unambiguous. Unconditional right of way was specifically set out in description of land con- veyed. It was open to trial judge to find appellant did not have respondent's permission to use facilities for purpose of 40 to 50 person reunion. Parties agreed trial judge made inadvertent er- ror in granting declaration in ac- cordance with paragraph 1(a) of application. BCM International (Canada) Inc. v. Joannette (Feb. 29, 2008, Ont. C.A., Lang, MacFarland and LaForme JJ.A., File No. C45150) Appeal from 41 R.P.R. (4th) 218 dismissed. Order No. 008/063/181 (2 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS No error in conclusion that c onviction reasonable Appeal by accused from dis- missal of appeal from convic- tion for assault and breaching recognizance. Seven-year-old complainant grabbed outside his house by someone who had emerged from a blue car. Blue car remained parked outside complainant's house until police arrived. Accused did not entirely match complainant's description but was linked to car. Summary conviction court found verdict was reasonable and supported by evidence. Appeal dismissed. Appeal court did not err in find- ing trial reasons adequate and did not constitute error in law. No misapprehension of evi- dence. No error in conclusion that verdict reasonable. R. v. Jebreen (Feb. 7, 2008, Ont. C.A., Doherty, Borins and Lang CASELAW JJ.A., File No. C46977) Appeal from 73 W.C.B. (2d) 237 dis- missed. Facts taken from lower court summary. Order No. 008/043/140 (2 pp.). NO SUBSTANTIAL WRONG Reasons for conviction not perfect but adequate Appellant was convicted of as- sault, resist arrest, obstruct police and carrying concealed weapon. Appellant and friend were stopped by police on street. While police investigated appel- lant's identity, he bolted from bus shelter and later was ar- rested. Trial judge provided ad- equate but not perfect reasons for conviction. Appeal was dis- missed. R. v. Kinghorn (May 6, 2008, Ont. S.C.J., Frank J., File No. SCA 62/07) Order No. 008/128/017 (10 pp.). PROCEDURE Extension refused Accused applied for extension of time to appeal conviction in absentia for driving without in- surance and driving while sus- pended. Application dismissed. No substantive basis for appeal. No indication of bona fide in- tention to appeal within time frame. Not in interests of justice to re-litigate matter. R. v. Convery (Feb. 27, 2008, Ont. C.J., Nadel J.) Order No. 008/093/058 (6 pp.). Charter Of Rights RIGHT TO COUNSEL Charter breached by failure to formally arrest accused for "over 80" and read right to counsel respecting that charge Accused charged with driv- ing "over 80". Accused applied to exclude evidence based on breach of s. l0 of Charter. Ac- cused detained for prostitution- related offence and given right to counsel. Officer smelled alcohol on accused's breath and made roadside screening demand. Ac- cused failed test and was given Intoxilyzer demand. Accused spoke to lawyer at police station. Breathalyzer technician advised accused of right to counsel after accused had already spoken to lawyer. Accused admitted speak- ing to lawyer about "over 80" charge. Application dismissed. Failure of police to formally ar- rest accused for "over 80" charge and read right to counsel with respect to that charge breached s. 10(a) and (b). However, re- sults of Intoxilyzer test not ex- cluded under s. 24(2) of Char- ter. Breach inadvertent and did not prejudice accused. Accused not deprived of opportunity to speak to counsel about driving charge. R. v. Burnside (Jan. 18, 2008, Ont. C.J., Nicholas J.) Order No. 008/028/074 (3 pp.). Accused not diligent in exercising right to counsel Accused charged with impaired driving. Accused applied to ex- clude evidence based on breach- es of s. 10(a) and (b) of Charter. Ambulance attendants observed accused's vehicle driving errati- cally, called police and followed vehicle into driveway. Police of- ficer arrived and made observa- tions of accused, including that www.lawtimesnews.com she appeared confused. Officer arrested accused for impaired driving, read right to counsel and asked if she wanted to call lawyer. Accused replied by ask- ing why she would need a law- yer. Accused had strong Rus- sian accent but spoke to officer in English and officer believed she understood him. Applica- tion dismissed. Section 10(a) of Charter not breached. Eight- minute delay between accused's initial detention and her arrest satisfied requirement to inform accused "promptly" of reason for detention. Officer did not have duty to advise detainee of reason for detention in drink- ing and driving situation before asking detainee to exit vehicle. Section 10(b) of Charter not breached. Officer not required to inquire whether accused fully understood right to counsel or whether she wished to consult Russian-speaking lawyer. No evidence accused's confusion was due to language problem. Evidence indicated accused could communicate in English. Accused did not indicate prob- lems understanding. Accused not diligent in exercising right to counsel. R. v. Sergueeva (Mar. 7, 2008, Ont. S.C.J., Lampkin J., File No. 06-08571) Order No. 008/119/029 (13 pp.). Questioning accused before giving right to counsel violated s. 10(b) of Charter Accused was stopped by police while driving his motor vehicle. Police alleged he violated High- way Traffic Act (Ont.) regula- tions concerning tinting of ve- hicle windows and that he was traveling at excessive speeds. Ac- cused asserted he was not told of his right to counsel prior to hav- ing conversation with police in which he gave inculpatory state- ment about drugs in vehicle. By asking accused questions once officer became aware he was in- vestigating drug offence, officer had violated accused's s. 10(b) right. Statements by accused were excluded. R. v. Brown (May 5, 2008, Ont. S.C.J., Stinson J., File No. P545/07) Order No. 008/128/014 (29 pp.). RIGHT TO FAIR TRIAL Matters involving extra-judicial sanctions could not be disclosed unless stringent test in s. 123 of Youth Criminal Justice Act (Can.) satisfied Youth was charged with second degree murder and attempted murder. Youth sought records of three individuals concerning their involvement with the law. Crown opposed release of re- cords asserting Youth Criminal Justice Act (Can.) did not per- mit release of such records. Mat- ters in which individuals had extra-judicial sanctions could not be ordered disclosed under s. 119(4) of Act unless youth could satisfy stringent test under s. 123. Matter was remanded for hearing. R. v. B. (J.) (May 1, 2008, Ont. C.J., Borenstein J.) Order No. 008/128/052 (10 pp.). Disclosure DUTY ON CROWN Crown not required to disclose JUNE 16, 2008 / LAW TIMES unencrypted data on hard drive seized from accused's premises Three accused charged with 33 offences related to debit and credit card forgery. Accused ap- plied for disclosure of copy of encrypted files on hard drive seized by police under warrants to search accused's business and residential premises. Crown and accused agreed encrypted files relevant, potentially inculpa- tory and potentially exculpatory. Crown disclosed information it could de-encrypt. Application related to data Crown unable to de-encrypt. Application dis- missed. Crown only had partial possession and control because it had no knowledge of informa- tion in encrypted files. Crown properly exercised its discretion to refuse disclosure. Principled, purposive and contextual ap- proach had to be taken regard- ing disclosure obligation to en- sure fair trial. Unique feature of case was that one accused had password necessary to com- plete possession or control of information. As Crown did not have password, informa- tion not part of "case to meet" and Crown not at an advan- tage. Failure to disclose would not offend reasonable person's sense of decency and fair play. There would also be no surprise to accused. Encrypted informa- tion not "fruits of investigation" requiring disclosure as informa- tion unknown and inaccessible to Crown. Moreover, disclosure of information would impact fairness of trial to co-accused who did not have password or access to encrypted informa- tion. Reasonable possibility that encrypted files contained personal information of mem- bers of public. Crown had duty to protect public's privacy in- terests and prevent possibility of further criminal acts by re- lease of information to accused without safeguards. It would bring administration of justice into disrepute if disclosure or- dered. In circumstances, pro- viding copy of files to defence counsel on their undertakings would not adequately address need to maintain integrity of administration of justice. Ac- cused could obtain disclosure if willing to provide password to Crown. R. v. Beauchamp (Apr. 4, 2008, Ont. S.C.J., Smith J., File No. 05-G3629; 05-G3630; 05- G3625; 05-G3627) Order No. 008/100/021 (21 pp.). Evidence ADMISSIBILITY Agreed statement of facts from original trial admissible at second trial Accused charged under s. 163(1) of Criminal Code. Original convictions quashed on appeal and new trial ordered. Crown applied to admit agreed state- ment of facts which was entered at original trial. Application al- lowed. Court bound by decision in R. v. Baksh which held that agreed statement of facts in sub- sequent trial admissible as ordi- nary evidence but no longer con- clusive and could be explained, attacked or otherwise countered by defence, as with non-judicial admission. None of exceptional circumstances where permitting

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