Law Times

LAW TIMES / JUNE 16, 2008 admissions into evidence would be unfair applied here. R. v. Smith (Apr. 4, 2008, Ont. S.C.J., McCartney J., File No. CR-03-06) Order No. 008/098/087 (7 pp.). CONSCIOUSNESS OF GUILT Trial judge erred in inferring guilt from accused's post-offence travel abroad Accused appealed conviction for criminal negligence causing death; criminal negligence caus- ing bodily harm; impaired driv- ing causing death; and impaired driving causing bodily harm. Offences arose from collision. Crown alleged accused entered wrong lane after driving reck- lessly in treacherous conditions, while impaired. Accused claimed inevitable accident. Accused left country during investigation of accident. Appeal dismissed. Trial judge erred in inferring guilt from accused's post-offence con- duct. In rejecting accused's ex- planation for travel, trial judge seemingly ignored evidence of investigating officer that accused co-operative and communicated with police while abroad. Infer- ence unwarranted. Nonethe- less, curative proviso applied to sustain convictions as verdicts would necessarily have been same absent error. R. v. Davies (Mar. 28, 2008, Ont. C.A., Moldaver, Feld- man and Armstrong JJ.A., File No. C46667) Order No. 008/091/037 (13 pp.). IDENTITY OF ACCUSED Robbery conviction based on identification by complainant was unreasonable Accused appealed conviction for robbery. Identification was issue at trial. Accused found in possession of imitation gun on street several stores from site of robbery. Gun did not match description given by complain- ant. Complainant gave generic description of robber and made in-dock identification of ac- cused. Appeal allowed. Verdict unreasonable. Dock identifica- tion of almost no value. No de- tail in complainant's description to distinguish accused and parts of description did not match accused's appearance. Other evidence connecting accused to offence insufficient. R. v. Ellis (Feb. 4, 2008, Ont. C.A., Doherty, Borins and Lang JJ.A., File No. C46621) Order No. 008/043/141 (3 pp.). Identification evidence raised suspicions but insufficient to sustain conviction Accused charged with robbery. Complainant alleged she caught suspect taking money from till of her coffee shop. Complainant told friend next door and they saw suspect enter nearby build- ing. Friend told parking enforce- ment officer, who testified that he saw accused exit building and was told by complainant and friend that he was suspect. Of- ficer followed accused until ap- prehension by police. Friend did not testify. Complainant gave description of suspect. Colour of hair described did not match ac- cused's. Complainant also made in-dock identification of ac- cused. Accused found not guilty. Chain of observation of suspect not unbroken. Complainant testified that she did not see sus- pect exit nearby building. Offi- cer's testimony about statements of friend were inadmissible for truth of contents. Discrepancy in hair colour description could not be reconciled. In-dock iden- tification on its own was of min- imal value without articulation of foundation for conclusion. Evidence raised suspicions but insufficient to sustain convic- tion. R. v. Zlataric (Mar. 31, 2008, Ont. C.J., Horkins J.) Order No. 008/094/118 (10 pp.). PRIVILEGE Prima facie privileged letters from family law proceedings admissible at criminal trial Accused sought to admit evi- dence during cross-examination of witness. Evidence was letters between accused's lawyer and witness's lawyer in relation to family law proceedings. Crown admitted that absent claim of settlement privilege, letters ad- missible to impeach witness's credibility. Evidence admissible. Letters were communication in furtherance of settlement and prima facie privileged. However, binding judgment of Ontario Court of Appeal concluded that privilege did not exist in context of criminal trial. It appeared that where evidence could assist ac- cused in making full answer and defence, this trumped policy consideration founding settle- ment privilege. R. v. L. (C.) (Apr. 3, 2008, Ont. S.C.J., Charbonneau J., File No. 05-CR-1179) Order No. 008/098/085 (6 pp.). Indictment And Information VALIDITY Failure to confirm form of release on information results in loss of jurisdiction Appearance notice not con- firmed. Crown appealed order quashing information accused for against failing to provide breath sample. Information quashed based on failure of jus- tice of peace to confirm prom- ise to appear as required by s. 508(1)(b)(i) of Criminal Code. Appeal dismissed. Trial judge correct in finding he was obliged to quash information. Principle in R. v. Gougeon (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), that failure to confirm form of release on information results in loss of jurisdiction, continued to be law in Ontario. Court of Appeal had to change law if dif- ferent approach taken in other provinces was to be adopted. R. v. Smith (Feb. 5, 2008, Ont. S.C.J., Belobaba J., File No. 28/07) Order No. 008/038/306 (6 pp.). Extradition And Fugitive Offenders SURRENDER No power to order surrender for offences where committal not ordered Person sought applied for judicial review of Minister's decision sur- rendering him to United States on charges related to health in- surance fraud. Company oper- ated by person sought and his wife alleged to have submitted numerous fraudulent claims to health insurance companies for CASELAW cosmetic procedures. Evidence of patients and employees, billing records, patient files and other documents included in record of case. Application allowed in part. Minister not obliged to provide reasons for decision where person sought made no submissions. On record of case, Minister had no power to order surrender for offences equating to conspiracy to launder money and witness tampering where committal for those offences not ordered. No evidence led of agreement to en- gage in money laundering, which was essential element of conspir- acy. Committal for fraud did not include finding of sufficient evi- dence of witness tampering. Sur- render for other offences upheld. United States of America v. Kissel (Mar. 28, 2008, Ont. C.A., Feldman, Sharpe and Simmons JJ.A., File No. C46346; C46925) Order No. 008/091/040 (12 pp.). Jury EMPANELLING "Police preference" question not permitted Accused applied to ask jurors whether: (i) their ability to judge evidence without bias, prejudice or partiality would be affected by fact that accused black; and (ii) they had any beliefs or opin- ions about reliability of police officers that would prevent them from judging evidence without bias, prejudice or partiality. Ap- plication allowed in part. Ac- cused permitted to ask "standard Parks" question about racial bias. However, "police prefer- ence" question not permitted. No cogent, reliable evidence to infer potential jurors who hold police in high regard might not be capable of setting aside beliefs on directions from trial judge. R. v. Favorite (Mar. 31, 2008, Ont. S.C.J., Brown J., File No. F874/07) Order No. 008/093/075 (6 pp.). Motor Vehicles DRIVING WHILE DISQUALIFIED Prohibition orders did not comply with s. 260(1)(c) of Code, as they did not advise accused of full penal consequences of breaching orders Crown appealed dismissal of ap- peal from acquittals for driving while disqualified, contrary to s. 259(4) of Criminal Code. Trial and appeal judges found prohibi- tion orders did not comply with s. 260(1)(c) of Code, as they did not specifically advise accused of full penal consequences un- der s. 259(4). Presumption of regularity not applied. Appeal dismissed. Lower court judges properly concluded that Crown failed to prove essential element of offence and that presumption of regularity rebutted. No reason to presume court clerk went be- yond terms of orders in explana- tion to accused. Conditions for application of presumption did not exist. Circumstances did not add some element of prob- ability justifying presumption. Requirement to inform offender about penal consequences of breaching order was not simply routine formality or procedural detail. R. v. Molina (Mar. 28, 2008, Ont. C.A., Gillese, Armstrong and Blair JJ.A., File No. C46154; www.lawtimesnews.com CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages C46152; C46055) Appeal from 70 W.C.B. (2d) 992 dismissed. Order No. 008/091/042 (8 pp.). IMPAIRED DRIVING AND "OVER 80" Insufficient indicia of impairment at time of arrest Accused applied to exclude evi- dence based on breach of s. 8 of Charter. Ambulance atten- dant observed accused's vehicle driving erratically, called police and followed vehicle into drive- way. Attendant notice odour of alcohol coming from accused and asked her to stay in vehicle. Officer V. arrived and observed that accused's eyes were glossy, speech slurred and accused ap- peared confused. Accused ad- mitted drinking one beer, had difficulty finding driver's licence and was unsteady on feet. Offi- cer H. also spoke to accused but did not note indicia of impair- ment. Breathalyzer technician noticed indicia of impairment. Application granted; charge dismissed. Officer H. more ex- perienced than Officer V.. In- sufficient indicia of impairment existed at time of arrest. Danger- ous to base conviction on obser- vations of ambulance attendant and admitted consumption of one beer. R. v. Sergueeva (Mar. 7, 2008, Ont. S.C.J., Lampkin J., File No. 06-08571) Order No. 008/119/029 (13 pp.). Municipal Law BY-LAWS Worker and owner violated adult entertainment by-law Accused was charged with working in adult entertainment establishment and having phys- PAGE 23 ical contact with patrons con- trary to City of Vaughan by-law s. 2-1(9.01(2)). Three officers were witnesses to incident. Evi- dence revealed patron touched accused on breast, buttocks and groin area. Owner of establish- ment was also found guilty giv- en there were no outstanding logs coupled with private areas of club which would have made it easier to permit employees having physical contact with patrons. R. v. Mijatovic (Apr. 25, 2008, Ont. C.J., Clark J.P.) Order No. 008/128/050 (26 pp.). Practice, Process And Procedure STANDING Criminal Lawyers Association granted leave to intervene in re-consideration of order fixing fees of amicus curiae Case Image filler 12/20/06 11:23 AM Page 1 Supplementary reasons to rul- ing appointing amicus curiae for unrepresented accused. Attorney General sought reconsideration of part of order fixing fees of am- icus at $150 to $200 per hour. Criminal Lawyers Association ("CLA") but not Advocates So- ciety granted leave to intervene. Decision to grant intervener sta- tus was exercise of power neces- sarily incidental to exercise of court's general jurisdiction. CLA could assist court, given its rep- resentation of defence bar and direct interest in subject matter of dispute. Connection between Advocates Society and subject matter too remote. R. v. Chemama (Mar. 27, 2008, Ont. C.J., Green J.) Supplemen- tary reasons to 76 W.C.B. (2d) 384. Order No. 008/093/064 (9 pp.). 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