Law Times

Law Times • January 23, 2012 pliance considered in light of purpose of timely notice pro- vision which is to give insurer opportunity to investigate merits of claim, negotiate set- tlement, and if necessary, de- fend action. Insurer had that opportunity but chose not to exercise it. Notice from owner case of imperfect compliance, not non-compliance. Walker v. Sovereign General Insurance Co. (Sep. 19, 2011, Ont. C.A., O'Connor A.C.J.O., Laskin and MacPherson JJ.A., File No. C52325) Decision at 191 A.C.W.S. (3d) 81 was af- firmed. 207 A.C.W.S. (3d) 562 (17 pp.). Limitations DISCOVERABILITY Plaintiff knew true identity of defendants on date of accident or shortly thereafter Motion by defendants for summary judgment in mo- tor vehicle accident claim on basis of expiry of limitation period. Plaintiff commenced action on second anniver- sary of accident against one individual. Plaintiff eventu- ally discovered they had com- menced action against wrong person and abandoned claim against him. Detailed infor- mation provided in three sep- arate Self-Reporting Collision Report forms prepared by the three drivers involved in col- lision on date of accident. Motion granted and claim dismissed. Plaintiff knew or ought to have known true identity of defendants on date of accident or shortly there- after. Plaintiff was in posses- sion of all the information she needed to very quickly ascertain true identity of de- fendants on date of accident or shortly thereafter based upon reality that plaintiff per- sonally involved in accident and its aftermath, the many factual details outlined in the Self-Reporting Collision Report form by the plaintiff and the ready availability of the Self-Reporting Collision Report forms generated by the other participants in the accident. Plaintiff knew or ought to have known no later than date statement of claim issued against individual there was sufficient evidence of cause of action alleging plaintiff had sustained seri- ous and permanent injuries as result of accident. Reasonably discoverable that injuries met threshold of constituting per- manent serious impairment of an important bodily func- tion. Assertion in statement of claim against individual akin to admission that plaintiff viewed injuries from accident as serious and permanent and had thereby discovered po- tential cause of action at least by time of issuance of state- ment of claim if not earlier. Sheikh v. Pinheiro (Oct. 17, 2011, Ont. S.C.J., Campbell J., File No. 07-CV- 335303PD2) 207 A.C.W.S. (3d) 791 (13 pp.). ONTARIO CRIMINAL CASES Assault ASSAULTING PEACE OFFICER Reasonable doubt that accused knew there was officer in police cruiser Accused was charged with assaulting peace officer and two counts of obstructing peace officers in relation to his protest activities at G20. Accused had pleaded guilty to two counts of mischief over $5,000 that related to his willfully damaging two police cars while participat- ing in those protests. It was alleged that accused used a wooden stick to both damage a police cruiser and assault by gesture officer stuck inside one of those vehicles during onslaught by a number of as- sailants. Surveillance cameras captured accused kicking in window of second police car. It was alleged accused will- fully obstructed unnamed po- lice officer in his or her duty to identify suspects by block- ing cameras while protestors were seen to be randomly breaking windows of down- town commercial premises. Second count of obstruct po- lice alleged that by participat- ing with others in confining officer in first police cruiser while attacking it, accused obstructed him in execution of his duty. Assault peace of- ficer and two obstruct police charges dismissed. Court was left with reasonable doubt that accused knew there was officer in police cruiser when he joined group that attacked it. Accused admitted to block- ing cameras but it was not shown that any of cameras he interfered with were in service to police. R. v. Cote (Sep. 7, 2011, Ont. C.J., Feldman J.) 97 W.C.B. (2d) 433 (7 pp.). Charter of Rights RIGHT TO COUNSEL Police failed to fulfil duty to provide reasonable opportunity for accused to consult counsel of choice Application to exclude evi- dence. Motorist observed accused swerving into lanes without signaling, causing motorist to change lanes to avoid a collision. Motorist phoned police. Accused ig- nored officer's police lights and siren for almost a kilo- meter while officer mouthed and signaled to him to pull over. Once stopped, officer observed extreme odour of alcohol emanating from ve- hicle and that accused's eyes were red and bloodshot. CASELAW Accused was arrested for im- paired driving. At station, officer phoned lawyer of ac- cused's choice and left mes- sage. Officer then phoned duty counsel. Accused repeat- edly and forcefully asked to speak to his own lawyer. Duty counsel phoned back and ac- cused spoke to duty counsel. Another call was placed to accused's lawyer of choice. Accused provided sample of his breath 10 minutes later. Application granted. Accused's rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were not infringed. Officer had reason- able and probable grounds for arresting accused, based on extreme smell of alcohol in accused's car when she opened door alone. Accused's right to counsel of choice un- der Charter s. 10(b) was in- fringed. Police failed to fulfill their duty to provide reason- able opportunity for accused to consult counsel of his choice. Sarcastic and dismis- sive comments by officer un- dermined reasonable efforts. Accused's right to instruct counsel was infringed when officer would not wait past approximately 10 minutes that had elapsed since sec- ond call to accused's lawyer and in insisting that accused provide breath sample with- out providing reasonable ex- planation as to why he would not wait. To admit test results would bring administration of justice into disrepute. R. v. Samatar (Oct. 7, 2011, Ont. S.C.J., Knazan J.) 97 W.C.B. (2d) 443 (17 pp.). Extradition and Fugitive Offenders BAIL Fugitive willing to abandon family members to avoid prosecution Fugitive sought for extradi- tion by United States ("U.S.") for allegations that he was ar- chitect of immigration fraud that was perpetrated for 13 years wherein the fugitive and his co-conspirators filed fraudulent applications to U.S. Department of Labor on be- half of foreign nationals who paid for applications. Fugitive applied for release pending his extradition hearing. Fugitive ordered detained. Evidence indicated fugitive leſt U.S. fol- lowing execution of search warrants, but continued to be involved in scheme remotely. Court did not find fugitive's testimony credible with re- spect to timing or motiva- tion for his move to Canada. Fugitive continued to work for his old law firm remotely de- spite being suspended by the bar, raising issues of his poten- tial conduct while subject to orders of court. Fugitive, hav- ing been raised in U.S., was a Canadian citizen but had very tenuous roots to Canada and while his new wife resided in www.lawtimesnews.com Canada, she was not a citizen and most of her ties were to Mexico. Nature of allegations supported inference that fugi- tive had access to significant funds and that he had means to access false documents and was therefore flight risk. Fugitive had no criminal re- cord but had admittedly been involved in a four-year fraud scheme in the past. Court could not conclude that plan of release was adequate. While sureties appeared well mean- ing, success of plan rested on honesty and reliability of fugitive. Fugitive had shown himself to be willing to aban- don family members to avoid prosecution. United States of America v. David (Oct. 25, 2011, Ont. S.C.J., Forestell J., File No. Ex-209/11) 97 W.C.B. (2d) 461 (11 pp.). Murder FIRST DEGREE MURDER No realistic possibility that jury would have come to different conclusion Accused was convicted of first-degree murder in con- nection with killing of his brother and attempted mur- der in respect of attempted slaying of his stepfather. Accused appealed his convic- tion for first-degree murder. Accused submitted that trial judge erred in refusing to sever his trial from trial of his co-accused so that he could call co-accused as a witness once he learned that co-ac- cused was not going to testify on his own behalf. Appeal dismissed. Court did not be- lieve that it was reasonably possible that verdict would have been different had jury heard from co-accused and been told that it was he and not accused, who instigated plan to kill accused's family. Evidence that co-accused au- thored plan was highly sus- pect and even if he was au- thor of plan there was ample evidence that accused was glad to go along with it. Co- accused's evidence that vic- tim's comments were made in taunting tone of voice could not realistically have affect- ed verdict. Trial judge's im- pugned remarks during his instruction to jury on why hearsay evidence was being allowed to accused's benefit did not in any way telegraph the trial judge's view of the weight that should be given to hearsay evidence. There PAGE 15 was no realistic possibility that jury would have come to a different conclusion had they been told that they could act on accused's statements to find reasonable doubt on is- sues of planning and delib- eration and intent, regardless of their findings concerning medical evidence that was called in support of those defences. Accused had a fair trial and his conviction for first-degree murder was am- ply supported by evidence. R. v. Madden (Oct. 20, 2011, Ont. C.A., Moldaver, Cronk and Karakatsanis JJ.A., File No. C48178) 97 W.C.B. (2d) 468 (9 pp.). FEDERAL COURT Prisons AGREEMENTS FOR TRANSFER TO PENITENTIARY Objectives of international transfer of offenders scheme could not be achieved through transfer Application by Canadian prison inmate, who was in- carcerated in an American prison after he was con- victed of conspiracy to dis- tribute more than five kilo- grams of cocaine, for judi- cial review of a decision of Minister of Public Safety and Emergency Preparedness. Minister refused to approve applicant's application un- der International Transfer of Offenders Act (Can.) to be transferred to Canada to serve remainder of his sen- tence. Reason was that objec- tives of international transfer of offenders scheme could not be effectively achieved through applicant's trans- fer. Application dismissed. Minister properly exercised his discretion. Minister weighed purposes of Act, ap- plicant's positive and negative circumstances and relevant factors. One could reason- ably conclude, based on in- formation contained in re- cord, that there was a factual basis for Minister's decision and he was entitled to act as he did. Applicant was not denied procedural fairness. Court therefore deferred to Minister's decision. Newberry v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 3, 2011, F.C., Shore J., File No. T-1649-10) 97 W.C.B. (2d) 470 (19 pp.). LT

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