Law Times

Law Times • June 22, 2015 Page 15 www.lawtimesnews.com corporation and requirements of chief building officer. Mu- nicipality proved beyond rea- sonable doubt that corporation was in breach of court order. Corporation was also in breach of emergency order. Munici- pality was entitled to recover expenses of $28,381.18 plus any landfill costs incurred to dis- pose of debris and garbage to remediate site. South Bruce (Municipality) v. 1260964 Ontario Inc. (Apr. 8, 2015, Ont. S.C.J., Emery J., File No. Walkerton 86/13) 252 A.C.W.S. (3d) 446. Real Property EASEMENTS Conclusion that easement of necessity existed over gravel road was incorrect in law Plaintiffs owned residential lakefront lot 16. Lot 16 was one of series of lakefront proper- ties created by subdivision plan from portion of lot 20. Subdivi- sion plan created road allow- ance running from balance of lot 20 and most of lakefront properties, which gave them ac- cess to municipal road, but no road had been built on road al- lowance. Plaintiffs had been us- ing gravel road that cut across lot 20 for access. Defendant owned lot 20 and road allow- ance. Plaintiffs brought claim for adverse possession over L- shaped portion of road allow- ance that bordered on lot 16. Trial judge granted claim and found that easement of neces- sity existed over gravel road on lot 20 that they used for access. Defendant appealed. Appeal al- lowed in part. Trial judge's con- clusion that easement of neces- sity existed over gravel road on lot 20 was incorrect in law. One of prerequisites for easement of necessity was that it must be necessary to use or access property and if access without it was merely inconvenient then easement would not be implied. Trial judge found that necessity was established because rock bluff prevented passage over road allowance, but there was no evidence that established that rock bluff was located on road allowance. Trial judge erred in relying on fact that de- fendant no longer owned parts of road allowance to prove ne- cessity. Trial judge disregarded admissions of parties and made findings that were contractor to admitted facts. Gravel road met definition of access road under Road Access Act (Ont.), and was declared to be access road. Trial judge's conclusion that plaintiffs owned L-shaped portion of road allowance by way of adverse possession was reasonable and was supported by evidence. Evidence sup- ported conclusion that whole of L-shaped portion was ex- clusively occupied and used by plaintiffs. Trial judge correctly read and interpreted terms of agreement between defendant and plaintiffs' predecessor in title. Trial judge did not make any palpable and overriding error or extricable error of law. Agreement granted permission to plaintiffs' predecessor in title to use parts of lot 20 to access her property, but not L-shaped portion in issue. McClatchie v. Rideau Lakes (Township) (Apr. 9, 2015, Ont. C.A., Doherty J.A., Paul Rou- leau J.A., and David Watt J.A., File No. CA C58477) Decision at 237 A.C.W.S. (3d) 1033 was reversed in part. 252 A.C.W.S. (3d) 584. ONTARIO CRIMINAL CASES SENTENCE APPEAL Judge erred in failing to refer to mitigating factors Accused appealed total sen- tence of three years' incarcera- tion imposed for two counts of assault, two counts of mischief, and two counts of breach of probation, all committed as part of one set of circumstanc- es. Leave to appeal sentence granted; sentence of imprison- ment imposed set aside and two-year sentence of imprison- ment substituted. Court agreed that accused's lengthy crimi- nal record, domestic context of these offences and fact that accused was on probation for offences in relation to his do- mestic partner, who was one of complainants, were factors that required stiff sentence. How- ever, sentence proposed by de- fence counsel at trial, two years plus one day's imprisonment, was stiff sentence. Sentencing judge erred by failing to refer to mitigating factors that were present and factor them into sentence he imposed. In par- ticular, accused pleaded guilty; he was taking steps towards rehabilitation while incarcer- ated; and he expressed some insight into his problems in his comments to court. Sentencing judge's failure to refer to these mitigating factors and his fail- ure to articulate why three year sentence was justified in face of them was error in principle. R. v. Pelley (Apr. 7, 2015, Ont. C.A., Janet Simmons J.A., M. Tulloch J.A., and Grant Hu- scroft J.A., File No. CA C59403) 121 W.C.B. (2d) 9. Defences INSANIT Y No error in jury charge on NCR defence in murder trial Accused charged with two counts of first-degree mur- der. Accused drowned her two young daughters. Defence posi- tion was that accused was driv- en by psychotic delusions and not criminally responsible due to mental disorder ("NCR"). Defence expert testified that accused believed her actions were necessary to protect chil- dren from estranged husband. Crown expert testified that accused was motivated by an- ger at her husband and under- stood her actions were morally wrong. Appeal from convic- tions dismissed. Charge to jury on standard to apply contained no error. Charge correctly told jury that issue was whether ac- cused was incapable of know- ing her actions were contrary to society's morality. R. v. Campione (Feb. 2, 2015, Ont. C.A., R.A. Blair J.A., S.E. Pepall J.A., and P. Lauwers J.A., File No. CA C54939) 121 W.C.B. (2d) 131. Evidence HEARSAY Propensity reasoning could be controlled by limiting instruc- tions and cross-examination Crown sought to admit state- ments accused made to ac- quaintances of victim and vic- tim's ante-mortem statements as prior discreditable conduct in relation to first-degree mur- der charge. Accused had threat- ened victim but not by name with witnesses clearly believing accused was referencing victim. Ante-mortem statements in- volved victim wanting to move out due to problems with ac- cused as Crown's theory was ac- cused despised victim who was living with accused. Threats were alleged to be relevant to animus, identity and motive and critical to rebut defences of provocation, intoxication, third-party suspect and self- defence, should these defences be raised. Evidence admissible. Evidence was clearly probative and accused would have oppor- tunity to cross-examine wit- nesses. Issue was not whether admitting statements would increase chance that accused would be convicted, but wheth- er statements would be improp- erly used by jury. Propensity reasoning could be controlled by both limiting instructions and cross-examination. Jury could be reminded that they must consider all evidence; that they were not to determine guilt or innocence based on threats alone and that just be- cause accused made threats did not mean he was bad person. R. v. Martineau (Apr. 22, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CR-12- 00002982) 121 W.C.B. (2d) 38. Extradition and Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Extradition judge did not err in refusing to conduct inquiry into foreign law Appeal by fugitive from order that committed him for extra- dition to United States to stand trial for offences of murder and for interfering with dead hu- man body. Fugitive was accused of committing murder in Unit- ed States in 1998. Several days after murder was committed fugitive's sister and brother-in- law gave police statements that implicated fugitive in murder. This evidence was essential to American murder prosecution. However, these witnesses since swore affidavits in which they denied making police state- ments. They returned to Chi- na and they had no intention of testifying against fugitive. United States certified that this evidence was available for trial and it gave details how this was so. Fugitive sought to introduce expert opinion of Chinese law professor who stated that under Chinese law authorities did not have power to compel witnesses to testify in American proceed- ings. Extradition judge held that it was not her role to con- duct inquiry into foreign law and she made committal order because she concluded that evi- dence was available for murder prosecution. Appeal dismissed. It was not role of extradition judge to determine issues of foreign law, absent exceptional circumstances, which did not apply to this case. Extradition judge therefore did not err in refusing to conduct inquiry into foreign law. United States of America v. Huang (Apr. 16, 2015, Ont. C.A., G.R. Strathy C.J.O., Doherty J.A., and E.E. Gillese J.A., File No. CA C58817) 121 W.C.B. (2d) 4. CHARGE TO JURY Non-direction by judge to jury fatal to sexual inter- ference convictions Accused appealed his convic- tions of sexual interference committed against four-year old and five-year-old daughters of his girlfriend. Appeal was primarily based on trial judge failing to instruct jury that evi- dence of one complainant was not admissible on counts relat- ing to other and that it could not use propensity reasoning to support its verdicts. Appeal al- lowed, new trial ordered. Non- direction by judge to jury on issue argued on appeal was fatal to sexual interference convic- tions. Silence about what jury could not do with evidence of one complainant in relation to that of other led to unsustain- able verdict. Given similari- ties between allegations, there was real danger that absent adequate warning, jury might improperly consider evidence of one of complainants as cor- roborative of that of other. R. v. M. (J.R.) (Apr. 8, 2015, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and C.W. Hourigan J.A., File No. CA C58274) 121 W.C.B. (2d) 95. FEDERAL COURT OF APPEAL Murder SECOND DEGREE MURDER Denial of ministerial review of conviction for second- degree murder upheld Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of convic- tion for second-degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife's car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of base- ment stairs. Wife had died in fire from carbon monoxide poi- soning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother f lames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused's application was based upon three new arson experts' opin- ions that challenge trial judge's conclusion that fire was inten- tionally set with accelerant. All three experts were of view that, contrary to Crown expert's opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert's opin- ion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was pres- ent. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused inten- tionally killing victim. Appeal dismissed. Minister's decision was reasonable. Decision noted that accused failed to immedi- ately notify anyone of victim's presence in home while fire- fighters were attempting to ex- tinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for mo- ment that new expert evidence conclusively proved that ac- cused did not set fire in any way. Evidence, much of it admitted by accused, showed that he fac- tually and legally caused wife's death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife's injuries were severe to such degree she may have died from them without fire inter- vening. Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was af- firmed. 121 W.C.B. (2d) 56. LT CASELAW

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