Law Times

Law timeS • September 19, 2011 level with road was built up to eight metres above road level. Grading plan was designed by engineering fi rm and approved by municipalities. Th ere was no suggestion contractor failed to comply with plan. When con- tractor ceased operations for the winter, work was substantially completed. After fi rst accident, municipalities and engineer had snow fencing installed. How- ever, fencing was not installed along brow of cut until after second accident. Municipalities opposed motion and argued contractor was liable in negli- gence and nuisance. Motion al- lowed in part. As plaintiff s had settled, it was evident the resi- dential development, combined with winter snow conditions and absence of snow fencing, contributed to accidents. It was the very nature of contractor's work that caused the danger. Work changed topography of land and contractor owed duty of care to users of road. How- ever, contractor's obligation to install snow fencing arose only if directed to by engineer. En- gineer never requested such in- stallation prior to fi rst accident and then advised contractor it would install the fencing. Con- tractor did not breach standard of care and contract did not re- quire indemnifi cation for mu- nicipalities' negligence. Th ird party and cross-claims were framed in negligence but left open possibility of other relief. Snow itself was a nuisance and plaintiff s suff ered special dam- age. Evidence suggested grading could have caused the drifting snow, so there was a genuine is- sue for trial. Negligence claim against contractor dismissed but balance of claim, including but not limited to claim based on nuisance, would proceed to trial. Beatty v. Waterloo (Regional Mu- nicipality) (June 8, 2011, Ont. S.C.J., MacPherson J., File No. C-398A-03; C-507AA/03) 203 A.C.W.S. (3d) 445 (21 pp.). ONTARIO CRIMINAL CASES Evidence ADMISSIBILITY Data on memory stick not password protected so lower expectation of privacy existed Accused charged with posses- sion of instruments of forging, possession of fraudulent credit card data, possession of credit cards obtained by commission of off ence and possession of a counterfeit mark. Application by accused to exclude evidence obtained as a result of search and seizure from his person, vehicle and USB drive on basis that his rights pursuant to ss. 8 and 9 of Canadian Charter of Rights and Freedoms was infringed. First search was patdown of accused following his arrest for driving with suspended driver's licence. Second search was of his vehicle both before and after he was ar- rested for possession of stolen credit cards. Th ird search was of his vehicle at location where it was towed. First two searches reasonable as they were done in- cident to a lawful arrest. Search of USB unreasonable. Police should have obtained a warrant to search contents. Application dismissed. Failure to obtain a warrant not a serious breach of Charter. Data on memory stick not password protected so lower expectation of privacy existed. Exclusion of evidence would impair truth seeking function of trial. Admission of evidence would not bring administration of justice into disrepute. R. v. Tuduce (May 3, 2011, Ont. S.C.J., Taylor J., File No. CJ 6947) 95 W.C.B. (2d) 247 (15 pp.). Breathalyzer TIME ELEMENT Breath tests were not taken as soon as practicable Accused charged with impaired driving and driving "over 80" after offi cer noticed his vehicle on roadway in unusual circum- stances and followed his car into parking lot where he made ob- servations leading to accused's arrest. Breathalyzer results excluded, accused acquitted. Court found on evidence that there was unexplained delay of 31 minutes and that breath tests were not taken as soon as prac- ticable. R. v. Ho (May 10, 2011, Ont. C.J., Gorewich J., File No. 10- 01945) 95 W.C.B. (2d) 231 (10 pp.). Obscenity CHILD PORNOGRAPHY Accused systematically accessed child pornography web sites Accused charged with posses- sion of child pornography and accessing child pornography. Investigation revealed child pornographic images on ac- cused's computer, numerous emails with child pornographic sites, favourite access internet site containing child porno- graphic images and signifi cant computer registry that con- tained numerous child porno- graphic images and websites. Credit card receipts were found on computer that indicated that purchases of child pornogra- phy pictures had been made from websites. Accused found not guilty of possessing child pornography, guilty of access- ing child pornography. Accused did not have separate cache of fi les that he possessed or DVD collection containing child por- nography. Reasonable doubt about whether accused know- ingly retained possession of child pornography via website access and email links as matter of law. Court rejected accused's testimony that he did not access pictures. Accused was principle user of computer and had di- rect control over it. Evidence indicated frequent download of child pornographic pictures and one video and satisfi ed court beyond reasonable doubt that accused systematically accessed child pornographic websites. Reasonable inference that ac- CASELAW cused used credit card to pay to access pictures. R. v. Graham (June 27, 2011, Ont. S.C.J., Desotti J., File No. 1377/08) 95 W.C.B. (2d) 274 (7 pp.). Sentence PROCEEDS OF CRIME Accused extremely remorseful and first offender Sentencing of accused after he was convicted of robbery, dis- guise with intent, using imita- tion fi rearm while committing indictable off ence and posses- sion of crime proceeds. Accused robbed convenience store with fi rearm and brandished it at clerk. He did so when he was disguised by a bandana. After robbery he returned to store with all the money and he told police that a friend committed the crime. Accused was 22-years old. He worked full-time at two restaurants and he was well re- garded. Accused had no sub- stance abuse issues. He commit- ted off ences because he needed money to pay for car that he recently bought. Accused was extremely remorseful. He was fi rst off ender. Accused received global sentence of two years less one day. For robbery he received two years less one day. For using fi rearm he received two years less one day concurrent. For having face masked he received 18 months concurrent. For pos- session of crime proceeds he was sentenced to 12 months concurrent. Accused was also subject to 10-year weapons pro- hibition and he had to provide a DNA sample. R. v. Bogle (June 17, 2011, Ont. S.C.J., Dunnet J., File No. CR- 10-5-0000-774) 95 W.C.B. (2d) 317 (4 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Disciplinary tribunal unduly inverted burden of proof Applicant sought judicial review of decision from disciplinary tri- bunal that found him guilty of refusing to provide urine sample when demanded. Applicant was inmate at penitentiary and claimed to be unable to urinate in front of police offi cer and re- fused to submit to naked inspec- tion. Applicant justifi ed his im- possibility to provide sample in the presence of someone else due to fact of being sexually abused in the past. Disciplinary tribunal dismissed reasons invoked by applicant and affi rmed that he failed to make eff ort to provide sample. Application allowed. Court affi rmed that disciplinary tribunal unduly inverted burden of proof and did not show that reasons invoked by applicant were unreasonable or unfound- ed. Court reversed decision and ordered new hearing. Boissel v. Canada (Procureur General) (May 17, 2011, F.C., Lemieux J., File No. T-1351- 10) Reasons in French. 95 W.C.B. (2d) 187 (13 pp.). www.lawtimesnews.com Starting from $62.50 per month Civil Procedure COSTS Plaintiffs had not led evidence as to their financial situation with robust particularity Appeal from order of prothono- tary directing that security for costs be posted by plaintiff in patent and trade-mark infringe- ment action. Crux of matter was whether plaintiff s impecu- nious and should be granted relief from requirement to post security for costs. Prothono- tary concluded plaintiff s had not demonstrated impecunios- ity. Appeal dismissed. Order not vital to fi nal issue of case. Appeal could only succeed if prothonotary clearly wrong in exercise of discretion or clearly misapprehended facts. Protho- notary did not depart from le- gal burden of proof on balance of probabilities when he found plaintiff s had not led evidence as to their fi nancial situation with robust particularity. Plain- tiff s did not provide full disclo- sure of their fi nancial situation in order to prove they were impecunious. Material gaps in fi nancial records. Remained perfectly consistent with legal standard of proof on balance of probabilities to require broad scope of evidence on number of points with respect to fi nancial position of plaintiff s in order to discharge evidentiary burden of proof. Fraser v. Janes Family Foods Ltd. (May 19, 2011, F.C., Rennie J., File No. T-1583-09) 203 A.C.W.S. (3d) 259 (16 pp.). PAGE 19 Immigration Applicant's PERSON IN NEED OF PROTECTION Officer failed to consider cumulative persecution application to have application for perma- nent residence processed from within Canada based on hu- manitarian and compassionate ("H&C") grounds was refused. On pre-removal risk assess- ment ("PRRA") offi cer found credibility to be determinative issue. Offi cer found there was insuffi cient evidence. Offi cer concluded there was not more than mere possibility applicant would face persecution. On H&C application offi cer found discrimination and harassment applicant would face did not rise to level to constitute dis- proportionate hardship. Of- fi cer found applicant might be subjected to extortion demands but was not satisfi ed applicant would be identifi ed as wealthy. Application for judicial review was allowed for both PRRA and H&C decisions. Offi cer failed to consider cumulative perse- cution. PRRA and H&C deci- sions were made on same day by same offi cer. Offi cer should have assessed whether applicant would face more than mere pos- sibility of persecution on basis of discriminatory actions. Divakaran v. Canada (Minister of Citizenship and Immigration) (May 31, 2011, F.C., O'Keefe J., File No. IMM-3000-10; IMM-3003-10) 203 A.C.W.S. 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