Law Times

Law Times • June 8, 2015 Page 15 www.lawtimesnews.com tion would have direct bearing on wife's entitlement to spou- sal support. Motion granted. If wife was terminated for cause, argument could be made that this must be taken into account when determining any spousal support award because perhaps wife was not making efforts to remain employed or to seek new employment in order to be self-sufficient. If she was termi- nated without cause, argument could be made that her unem- ployment resulted through no fault of her own and that she was entitled to spousal support payable by husband. Informa- tion that G received in order to advise representatives of com- pany was entirely relevant to wife's application for spousal support. There was strong infer- ence that lawyers who worked together shared confidences. Family law application should proceed without any concern that advice that G provided to company would be shared with wife's counsel. Snider v. Snider (Feb. 26, 2015, Ont. S.C.J., M.E. Vallee J., File No. FC-12-1766-01) 252 A.C.W.S. (3d) 155. Torts MALICIOUS PROSECUTION Plaintiff failed to establish prosecu- tion was initiated by defendant Plaintiff and defendant were friends and partners in Paki- stani restaurant business until they had falling out in 2005. In 2007, defendant reported to po- lice that plaintiff had threatened to burn down his house. Plain- tiff was arrested and charged with conspiracy to commit ar- son. He was held in custody for three days before being released on bail. His bail terms included posting bond of $100,000 and required that he have no contact with defendant or restaurant. Plaintiff was not permitted to leave his home unless accom- panied by his surety. As result, business failed in 2011 and plaintiff had to sell his house to survive. His health and his reputation in Pakistani com- munity suffered. On Novem- ber 5, 2008, criminal charge against plaintiff was withdrawn at preliminary hearing. Plain- tiff commenced action against defendant seeking damages for malicious prosecution. Action dismissed. To satisfy first ele- ment of test for malicious prose- cution, plaintiff had to establish that prosecution was initiated by defendant. In exceptional circumstances, private citizen may be treated as prosecutor. Defendant desired and intend- ed that plaintiff be prosecuted. He went to authorities with in- criminating information that defendant had threatened to burn down his house. However, police conducted independent investigation before deciding whether to lay charge against plaintiff. Decision to initiate prosecution was within discre- tion of, and exercised by, police. Plaintiff failed to prove first ele- ment of test on balance of prob- abilities. Chaudhry v. Khan (Mar. 20, 2015, Ont. S.C.J., O'Connor J., File No. CV-09-1093-00) 252 A.C.W.S. (3d) 175. ONTARIO CRIMINAL CASES Evidence REBUTTAL EVIDENCE Trial judge did not improperly rely on reply evidence called by Crown Accused appealed convic- tion for criminal harassment. Complainant testified that she became uncomfortable with accused's romantic interest in her, and advised him that she wanted no further communi- cation. Although accused was placed on strict conditions by his employer to avoid contact with complainant, he contin- ued to appear in places where she would go. Accused testi- fied that events described by complainant had occurred, but indicated that he did not under- stand that his contact with her was unwanted, as she continued to politely respond to his emails from time to time. Accused tes- tified that complainant had in- vited him to dinner party at her house. In cross-examination, Crown put to accused that he had approached another din- ner guest to see if he might go to dinner hosted by complainant, and told accused that he would call her as reply witness. Crown called other dinner guest in re- ply, and no objection was made by defence counsel, who cross- examined her by suggesting to her that accused may have per- ceived that invitation to dinner came from complainant. Trial judge found that complainant and dinner guest were cred- ible witnesses and that accused was not. Trial judge found that accused knowingly harassed complainant. Accused argued that trial judge improperly re- lied on reply evidence called by Crown which should not have been admitted, as it was purely collateral. Appeal dismissed. While dinner guest's account of way in which accused managed to attend complainant's dinner party had marginal relevance in Crown's case, accused's tes- timony that complainant had invited him took on new sig- nificance in light of his testi- mony in regards to harassing behaviour, which he similarly characterized as "at invitation of " complainant. It was unfor- tunate that defence counsel did not object to reply evidence, but in all of circumstances, trial judge did not err in permitting Crown to call evidence. Even if evidence were collateral, it played minimal role in assess- ment by trial judge of accused's credibility. In face of over- whelming evidence of accused's criminally harassing behaviour, there was no substantial wrong or miscarriage of justice in ad- mitting reply evidence. R. v. Alton (Apr. 8, 2015, Ont. S.C.J., Miller J., File No. 79/14) 120 W.C.B. (2d) 460. Preliminary Inquiry PROVINCIAL REGULATION Leave to appeal from convictions under Compulsory Automobile Insurance Act (Ont.) granted Accused was convicted of two offences under Compulsory Automobile Insurance Act (Ont.). Paralegal pleaded guilty for accused, in accused's ab- sence, and made representa- tions on sentence. Trial took place in English. Accused ap- pealed. During appeal to Ontar- io Court of Justice, accused was assisted by interpreter. Court dismissed appeal. Accused ap- plied for leave to appeal. Appli- cation granted. Section 131(2) of Provincial Offences Act (Ont.) provides that no appeal shall be granted unless Court of Appeal considers that in particular cir- cumstances of case, it is essen- tial in public interest or for due administration of justice that leave be granted. It was unclear whether accused had asked for bilingual appeal before Ontario Court of Justice before present- ing appeal. Accused insisted on fact that he had automobile insurance coverage and argued that provincial court judge should have proposed bilingual appeal. Crown maintained that accused did not have right to bi- lingual appeal according to stat- utes and procedures relating to provincial offences. Case raised issue which was particular to accused and which concerned linguistic rights of appellants in instances related to provincial offences, such as whether fran- cophone appellants had right to bilingual appeal. It was in pub- lic interest and for due admin- istration of justice that applica- tion should be granted. R. c. Halich (Feb. 3, 2015, Ont. C.A., K. van Rensburg J.A., In Chambers, File No. CA M44068) 120 W.C.B. (2d) 410. Sentence WEAPONS OFFENCES Accused sentenced to four and a half years' imprisonment for two weapons possession offences Sentencing of accused for pos- session of loaded restricted firearm and possession of fire- arm knowing that he was not holder of licence or registra- tion certificate. Accused was at club where several shots were fired. Patrons of club ran from it when gunfire began and ac- cused also ran from club. Ac- cused was stopped and was searched short distance from club and he was found to be in possession of loaded hand- gun. None of shots that were fired were from accused's gun. Accused was 27-years old and he had criminal record that included robbery charges. He was single and he had no chil- dren and his girlfriend was sup- portive of him. Accused was released from penitentiary in 2008 and he was convicted of possession of controlled sub- stance. Other than drug con- viction in 2008 he had no en- counters with criminal justice system until he was charged with these offences. Accused was about to begin placement working as counsellor when he was arrested. He planned to continue with his career plan when he completed his sen- tence. Accused was in pre-trial custody for 18 months and one week and he was credited with 27.5 months. It was aggravat- ing factor that he was subject to firearms prohibition when he committed offences. He was sentenced to four and one-half years of imprisonment and af- ter credit was deducted he had to serve 26.5 months. Accused was also subject to lifetime weapons prohibition and DNA order and his gun and ammu- nition were forfeited. R. v. Morgan (Mar. 31, 2015, Ont. S.C.J., M. Forestell J., File No. CR/14/70000/4310000) 120 W.C.B. (2d) 507. Threatening And Intimidation GENERAL Convictions for criminal harassment and breach of trust not unreasonable Accused appealed his convic- tions of criminal harassment and breach of trust on grounds verdict was unreasonable. Ac- cused admitted to being in love with complainant and to driving by her house regularly in hopes of seeing her, ignor- ing her repeated requests that he not contact her. Accused also admitted to having used police resources to get in- formation about her and her boyfriend and using that in- formation to find them. Trial judge rejected accused 's argu- ment that he was only engaged in glancing at complainant and found that he was op- pressively looking at her. Trial judge's reasons for convicting on breach of trust rested on his finding that information sought and obtained by ac- cused from resources available to him as police officer was to facilitate criminal harassment. Appeal dismissed. Trial judge stated governing legal prin- ciples including those describ- ing essential elements of both charges. Findings of fact were well supported by evidence and verdict was reasonable and there was also no merit to W.(D.) argument regarding credibility. R. v. Shorey (Apr. 2, 2015, Ont. C.A., H.S. LaForme J.A., David Watt J.A., and Gloria Epstein J.A., File No. CA C58018) 120 W.C.B. (2d) 511. Weapons PROHIBITED WEAPONS Fact that pin was 'sold out' sug- gested that firing pin could be readily sourced and available Accused charged with robbery, assault causing bodily harm, unauthorized possession of loaded prohibited firearm, pos- session of firearm knowing its possession was unauthorized, possession of firearm contrary to prohibition order, and pos- session of marijuana in amount exceeding 30 grams. Accused had pleaded guilty to robbery, assault causing bodily harm, and possession of marijuana. Position of Crown was that ac- cused brought gun to robbery and used it to pistol whip vic- tim, who suffered broken jaw. Accused f led scene and when he was confronted by police, he ran, tossing gun into some bushes. Position of defence was that accused grabbed bag from victim, drug dealer, and f led scene. When accused opened bag, he found marijuana and gun. When accused was con- fronted by police, he ran, toss- ing gun into some bushes. Of- ficers saw accused, victim and another man assisting accused in confrontation and fighting over bag. Both officers testified they saw accused with gun in his hand that he was using to pistol whip victim. After short f light, and calls for backup, ac- cused was arrested for robbery and possession of firearm. Gun was found by second officer and backup officer lying in grassy area south of shipping con- tainer. There was no issue that firing pin in gun was defective and rendered gun incapable of discharging projectile ca- pable of causing serious bodily injury or death to person. Ac- cused convicted of weapons related offences. Court rejected evidence of accused that this was spur of moment plan to rob drug dealer of marijuana at gram level and found this was well-orchestrated plan to rob drug dealer of large amount of marijuana using tool of trade, loaded firearm. Court found that accused's evidence lacked common sense and ring of truth. It defied logic that victim would keep gun inside bag con- taining large amount of drugs, where gun would be difficult to access and could be stolen in process of taking bag of drugs. Two officers were in position to have clear view of robbery and lighting and visibility were good. Court accepted accuracy of officers' observations, their recollection, and their ability to describe confrontation. Court accepted expert evidence that weapon was prohibited firearm and that firearm at issue was common gun manufactured in United States. Fact that pin was "sold out" suggested that firing pin could be readily sourced and available. Combined with evidence of relative ease with which pin could be installed, court concluded that accused had capacity by himself or with assistance of others and within reasonable time to adapt gun for firing by replacing pin. R. v. Agtual (Mar. 6, 2015, Ont. S.C.J., Dunnet J., File No. CR- 14-40000 560 0000) 120 W.C.B. (2d) 516. LT CASELAW

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