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Law Times • march 2, 2009 side screening test. Accused was then arrested, handcuffed and searched for driving "over 80". At detachment accused was given his right to counsel and failed two breath sample analyses. No Charter breach, accused guilty of driving "over 80"; second charge dismissed. Officer's evidence that he did not see any alcohol in ac- cused's vehicle and his observa- tion of accused's driving in the parking lot led him to believe that there was no way he was able to get any alcohol, was sufficient to establish that the officer had a reasonable and honest belief that he could rely on the results of the roadside screening test. Court preferred officer's evidence that he had warned accused that if he had something to drink within the last 15 minutes his reading would be artificially inflated to accused's evidence that he re- ceived no such warning. There was no evidence led by Crown that accused was in possession of a class G2 licence. R. v. Gould (Nov. 12, 2008, Ont. C.J., Maresca J., File No. 07 964; 07 143) Order No. 008/325/008 (8 pp.). Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Federal regulation of safety of working conditions of employees had to be integral to federal competence over aeronautics This was appeal of decision of ap- plication judge granting certiora- ri setting aside decision of justice of peace, which quashed charges laid against accused. GTAA, fed- eral corporation, was managing multi-year re-development proj- ect at airport. Respondent agreed not to enforce Occupational Health and Safety Act ("OHSA") against GTAA and GTAA agreed that OHSA would apply to con- tractors doing construction on behalf of GTAA at airport. Ac- cused ED was general contractor and accused BH was subcontrac- tor. Worker employed by BH was seriously injured in fall at construction site at airport and charges were laid against ED and BH and some of its employees. On application by accused, jus- tice of peace quashed charges on constitutional grounds, holding that accused' work at airport was vital, essential and integral part of core federal aeronautics un- dertaking and that accused were immune from application of OHSA. Respondent brought cer- tiorari and mandamus proceed- ings challenging decision. Appli- cation judge found that accused' work was not vital, essential or integral to continued operation of core federal undertaking and there was no impediment to ap- plication of OHSA. Appeal dis- missed. OHSA may incidentally affect matters beyond provincial jurisdiction, including federally regulated undertakings such as GTAA. Relationship between accused' activities and GTAA must be vital, essential or integral to operation of GTAA. Federal regulation of safety of working conditions of employees of ED and BH must be integral to fed- eral competence over aeronau- tics. Most of what accused did had nothing to do with GTAA. Airport workers were not sepa- rate entity from those working on other company projects. Ex- empting accused from uniform operation of provincial labour and workplace safety legislation would not be consistent with coherent application of consti- tutional principles. There was no corporate relationship between accused and GTAA. Bulk of ac- cused' work did not take place at GTAA. Degree of physical and operational integration between accused and GTAA fell short of degree required to invoke federal jurisdiction. Extensive co-ordi- nation was required by GTAA in order to accommodate construc- tion work but co-ordination was not same as integration. OHSA applied to accused. R. v. EllisDon Corp. (Nov. 24, 2008, Ont. C.A., Winkler C.J.O., Sharpe and Juriansz JJ.A., File No. C47684) Order No. 008/331/027 (12 pp.). Evidence HEARSAY Investigative opinion evidence was properly admitted Accused appealed conviction for second degree murder. Witness testified that accused shot victim. Witness had immunity arrange- ment with police. Defence at- tacked police investigation and alleged witness was shooter. Ap- peal dismissed. No error in ruling that Crown could elicit investiga- tive opinion evidence regarding police efforts to confirm witness's evidence. Considering defence strategy, fact that accused could challenge immunity arrangement and fact that Crown not permit- ted to elicit evidence of accused's bad character, ruling fair and even-handed. Very little of evi- dence was impermissible hearsay. Probative value exceeded prejudi- cial effect. R. v. Lane (Dec. 12, 2008, Ont. C.A., Rosenberg, Simmons JJ.A. and Speyer J. (ad hoc), File No. C40346) Order No. 008/350/043 (19 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Accused rebutted presumption of care or control Trial of the accused for impaired care or control. Police encoun- tered the accused's parked vehicle which was in a parking lot. Ve- hicle was running with its lights on. Accused occupied the driver's seat, there was a female passenger in the front seat and a male was in the rear seat with some open beer. Accused testified she had no intention of driving. She and her friends decided to wait in the car to meet a friend at whose home they were going to sleep. Ignition was only turned on to start the heater. Accused not guilty. Court accepted her evidence. She did not intend to drive and rebutted the care or control presumption. There was no possibility that the vehicle could have been set into motion accidentally. There was no risk that the accused in her impaired condition would set the vehicle in motion. Her intention was not to drive but to spend the evening at the friend's house. There was no danger created by the vehicle being where it was for it was parked in a lot and not on the road. Care or control was therefore not established. R. v. Sheffield (Oct. 24, 2008, CASELAW Ont. C.J., Blouin J., File No. 4911-998-07-08979-00) Order No. 008/308/020 (4 pp.). Sentence DRIVING OFFENCES Not open to Ministry to revoke accused's license in unusual circumstances of case Upon second conviction for im- paired driving, accused's license suspended pursuant to Highway Traffic Act (Ont.). cused found guilty of third drink- ing and driving offence. Pursu- ant to plea discussions, Crown agreed for purpose of sentencing it would treat offence as second offence. Registrar reinstated ac- cused's license in 2003, being satisfied that accused met re- quirements of s. 41.1(1) of Act. In 2005, Ministry of Transporta- tion discovered error in record- ing of accused's convictions and issued lifetime suspension notice under s. 41(1)(h) of Act. Ac- cused's application for judicial review was allowed. Ministry's appeal dismissed. In unusual circumstances of case, s. 41(1)(h) did not foreclose accused's claim as it failed to take into account fact that in entering guilty plea, everyone proceeded on basis that conviction would be treated as second conviction. Through un- related error, Ministry proceeded on same basis. It was not open to Ministry to revoke license in circumstances. Automatic man- datory suspension provisions in s. 41(1) explicitly made subject to reinstatement provisions. Re- spondent entitled to act on basis that he had valid license after re- instatement. F. (A.) v. Ontario (Ministry of Transportation) (Dec. 3, 2008, Ont. C.A., Rosenberg, Sharpe and Blair JJ.A., File No. C48679) Appeal from 75 W.C.B. (2d) 40 dismissed. Order No. 008/343/095 (7 pp.). MANSLAUGHTER Accused with significant record sentenced to seven and a half years' imprisonment for manslaughter Accused sentenced to seven and a half years' imprisonment after a jury trial found him not guilty of second degree murder but guilty of manslaughter. Accused and victim were both part of a series of binge drinking parties going on in a small community. Accused and victim got into an argument, that escalated into pushing and shoving and then into a fist fight and beyond when accused introduced a knife into the tussle. Victim's death was caused by a single stab wound to his left chest resulting in his bleeding to death. Sentencing judge concluded jury must have concluded that owing to his ex- tensive consumption of alcohol, accused had not formed the in- tent necessary for second degree murder. Accused was aboriginal. Accused was 25 years old from a difficult upbringing. Accused did not accept responsibility for his actions. Accused had spent much of his youth in foster care and had started sniffing gasoline at a very young age and contin- ued to make addiction driven decisions. Accused was diagnosed as being very prone to bouts of sudden anger particularly when accused consumed intoxicants. Accused had an extensive record as a young offender and as an www.lawtimesnews.com In 1999, ac- adult with no fewer that 12 adult convictions for violent assaults including three causing bodily harm, four involving assault on a police officer on duty and one for aggravated assault with four of the convictions recorded in the most recent calendar year. Ac- cused had 10 convictions for fail- ing to comply and was on proba- tion when the stabbing occurred. Court took accused's intoxication as a mitigating factor in sentenc- ing but gave it less weight than it otherwise might have in view of accused's long time knowledge of his propensity for violence when drinking. R. v. K. (C.) (Nov. 13, 2008, Ont. S.C.J., CR-07-095 , File No. CR-07-095) Order No. 008/324/133 (24 pp.). MURDER Parole ineligibility period set at 13 years for case involving extreme violence with no apparent motive Accused was sentenced to life imprisonment after he pleaded guilty to second degree murder. Six people, including accused were having a small impromptu gathering at victim's apartment. Accused was friends with co- accused and another person at the party. A fight broke out between victim and co-accused over victim taking beer from co-accused's case and trying to hide them. Co-accused pinned victim up against the wall and threatened to kill him. The other mutual friend broke up the fight before leaving with the two women present. Victim wanted accused and co-accused to leave but co-accused was ada- mant about wanting to fight victim and both accused and co- accused talked about tying up PAGE 19 Case Image filler 12/20/06 11:23 AM Page 1 victim so they could stay in the apartment longer and continue drinking. Co-accused handed accused a kitchen knife, which he put beside the couch. Co-ac- cused and victim started fighting and accused got involved and beat victim severely. When they stopped victim started to get up and co-accused suggested they needed to kill victim because he might get the police. Both men hit victim again, accused put victim in a headlock and co- accused stabbed him. When one knife broke, co-accused used a second knife and began to saw victim's throat with a knife when victim fell to the ground. Both men tried to hide evidence link- ing them to the scene and even- tually went home. Accused was arrested when he returned to the scene with his other friend from the party to attempt to remove any further forensic evidence. Accused wrote a letter of apolo- gy to victim's family, provided an inculpatory statement and assist- ed officer's find evidence. Victim died due to two fatal stabs to the heart and the bones in his face had been crushed by accused's stomping. Parole ineligibility period set for 13 years. Case in- volved extreme violence with no apparent motive. Extensive case law referred to by Crown and defence supported the conten- tion that the appropriate range in the case was between 12 and 15 years. Accused was only 18 at time of offence and despite his lengthy criminal record there was no psychiatric evidence pre- sented that he was a psychopath or anything similar. R. v. M. (D.C.) (Nov. 14, 2008, Ont. S.C.J., Wein J., File No. CRIM(P)2087/07) Order No. 008/325/011 (10 pp.). 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