Law Times

Law Times • may 9, 2011 outpatient cardiac consultation should take place after patient's discharge and before due date. Claims against respirologist and radiologist were dismissed. Claim against obstetrician was allowed. Respirologist and ra- diologist met required standard of care. Obstetrician who was Most Responsible Practitioner/ Physician ("MRP") in case did not meet degree of care and skill which could reasonably be expected of normal prudent practitioner of same experi- ence and standing. It was more probable than not that but for failure of obstetrician to carry out responsibility as MRP life of patient would have been saved. Manary v. Strban (Feb. 23, 2011, Ont. S.C.J., Kent J., File No. C801-04) 198 A.C.W.S. (3d) 851 (19 pp.). Real Property WATER AND WATERCOURSES Title to river bed did not pass River went through prop- erty owned by applicants. Applicants applied to be reg- istered as owners including river bed. Ministry of Natural Resources objected. Deputy Director of Titles upheld ob- jection that applicants did not own river bed. Appeal was dismissed. Application was denied. River was navigable. Evidence proved river was nav- igable in 1835 and it had name and known location. River was not mentioned in grant and so by retroactive certainty im- posed by Beds of Navigable Waters Act (Ont.), title to river bed did not pass. Simpson v. Ontario (Ministry of Natural Resources) (Feb. 18, 2011, Ont. S.C.J., Eberhard J., File No. 08-0693) 198 A.C.W.S. (3d) 859 (32 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Accused not arbitrarily detained but unreasonably searched Accused charged with attempt- ed murder and various weap- ons and assault charges. He ap- plied for exclusion of evidence under Canadian Charter of Rights and Freedoms. Accused claimed his rights under ss. 8 and 9 were breached and that he was arbitrarily detained and unreasonably searched. Accused was apprehended as suspect in shooting. Evidence was found on his person that matched description of shoot- er. Evidence admitted. Accused was not arbitrarily detained but he was unreasonably searched. Accused was properly detained due to shooting and observa- tions made by police moments after. Subsequent search of ac- cused's pockets unreasonable as police should have restricted search to pat down. On bal- ance evidence not excluded as introduction would not bring administration of justice into disrepute. No serious breach as accused was not subject to strip search or search in home. Evidence highly reliable and important to determination on merits. R. v. Walker-King (Feb. 28, 2011, Ont. S.C.J., Th orburn J., File No. 115/11) 93 W.C.B. (2d) 158 (13 pp.). TRIAL WITHIN REASONABLE TIME Electing to be represented by busy counsel who was unavailable for several months inconsistent with desire for timely trial Application by accused for stay of proceedings because he claimed his right under s. 11(b) of Canadian Charter of Rights and Freedoms to be tried within reasonable period of time was violated. Accused was charged with forcible confi nement, assault and choking of his former do- mestic partner. Period of 32 months passed since accused was arrested on May 28, 2008. Accused claimed he was preju- diced because of bail condi- tions. He had to live with his mother and sister in their small home. It aff ected his re- lationship with his daughter because she did not visit him because there was not enough room and she did not get along with her father's sister. Application dismissed. When accused, on January 9, 2009, joined Crown in requesting adjournment of preliminary inquiry he waived his s. 11(b) rights. Waiver was not invali- dated by subsequent events. It was not conditional for it was never expressly qualifi ed. Crown did not breach any agreement with accused that would cause waiver to be in- validated. Once matter made it into Superior Court accused was not available for nine trial dates off ered over nine-month period because his lawyer was not available due to con- fl icting trial commitments. Unavailability of his counsel of choice and resulting de- lay was attributed to defence. Electing to be represented by busy counsel who was unavail- able for several months was inconsistent with desire for timely trial. Delay between May 10, 2010 and February 7, 2011 was attributable to accused. Accused did not suf- fer actual prejudice. Some of complaints were not of suf- fi cient magnitude to amount to constitutional prejudice. Some of complaints resulted from circumstances that were independent of his bail condi- tions. Th us, relationship with his daughter was not altered because of bail order. Order did not restrict accused's abil- ity to be with his daughter. She chose not to visit him and that was not product of order itself. Some of complaints re- sulted from accused's actions in breaching his original bail order. Total delay attribut- able to Crown and to limita- tions placed on institutional CASELAW resources was 14 months and nine days. Th is was not unrea- sonable time frame given that this matter, while not complex was scheduled to proceed as three week jury trial. R. v. Wallis (Feb. 22, 2011, Ont. S.C.J., Pomerance J., File No. 09-CR-1840) 93 W.C.B. (2d) 167 (27 pp.). Murder SECOND DEGREE MURDER Each witness essentially identified accused, undermining any suggestion that they were all mistaken After leaving club, victim and friend were approached at ATM by woman asking for $20. Th ey reacted with vulgar comments and as they tried to move away they were attacked by group of woman's friends. Two people in group had knives and vic- tim was stabbed four times in chest. Accused guilty of second degree murder. It was obvi- ous from number, nature and location of stab wounds that, whoever stabbed victim either meant to kill him or was reck- less whether he lived or died. Accused had two particularly identifying features, dreadlocks and long skirt, identifi ed by many witnesses. Each witness, from their own vantage points, essentially identifi ed accused, undermining any suggestion that they were all mistaken. R. v. Kish (Mar. 1, 2011, Ont. S.C.J., Nordheimer J.) 93 W.C.B. (2d) 195 (40 pp.). Sentence SEXUAL OFFENCES Not rare case where conditional sentence should be imposed Accused sentenced to six months' imprisonment and two years' probation following guilty plea to sexual assault. Accused made his 17-year-old daughter lie on bed while he touched her breasts and digitally penetrated her vagina. Accused was 42-years old and had no criminal record. Accused was aware that his daughter had recently been victim of another sexual assault. Accused had not taken any steps to seek out pro- fessional assistance in order to gain insight into why he com- mitted such gross breach of trust. Positive remarks about accused's character were made by victim's mother, accused's current romantic partner and, to lesser this extent, by victim herself. Th is was not rare case where conditional sentence should be imposed for off ence of nature. DNA order, SOIRA order for 10 years. R. v. G. (D.) (Mar. 2, 2011, Ont. C.J., Cole J.) 93 W.C.B. (2d) 216 (11 pp.). Sentence with significantly denunciatory component required Accused sentenced to two years' imprisonment and three years' probation following guilty plea to sexual assault. Accused had intercourse with complainant while she was unconscious in her bed following evening of drinking. Complainant had no www.lawtimesnews.com memory of event. Two weeks prior to incident complainant awoke following evening of drinking to fi nd accused at- tempting to remove her shirt. Accused was 32-years old and had very minor record. Since he had been charged with of- fence, accused had signifi cantly reduced his alcohol consump- tion. Accused's attitudes to- wards women indicated that he was in considerable need of exposure to programming that would show him how wrong and dangerous his attitudes were. Sentence with signifi - cantly denunciatory compo- nent required given gravity of off ence, degree of responsibil- ity of accused, unconscious state of complainant and loca- tion where sexual assault took place. Reformatory term would not adequately express societal denunciation for accused's act. DNA order, SOIRA order and weapons prohibition for 10 years. R. v. Laz-Martinez (Mar. 2, 2011, Ont. C.J., Cole J.) 93 W.C.B. (2d) 217 (14 pp.). WEAPONS OFFENCES Sentence of 12 months to be served in community for unauthorized possession of firearm Police attended at accused's apartment in response to com- plaint from community about smell of marijuana. Offi cers found small quantity of mari- juana on table and accused admitted to having loaded 45 calibre revolver. Accused plead- ed guilty to unauthorized pos- session of fi rearm. Accused, 20, PAGE 15 18 at time of off ence, had no criminal record and had abided by strict bail terms since arrest. Accused had taken some coun- selling and high school cours- es. Sentence of 12 months to be served in community, six months in residence at all times and thereafter curfew from 900 p.m. to 600 a.m.. Weapons prohibition for 10 years. Forfeiture of gun. R. v. Canepa (Jan. 4, 2011, Ont. S.C.J., Nordheimer J., File No. 10-500000015-0000) 93 W.C.B. (2d) 224 (14 pp.). Threatening And Intimidation Accused UTTERING THREATS Court in doubt whether accused meant to intimidate or be taken seriously and his wife had stormy arranged marriage. His wife had taken their child, left him in California and started custody proceedings in Ontario. She alleged serious domestic abuse. After hearing denying him unsupervised ac- cess, accused was angry and when asked to sign papers, told his wife's lawyer, "Th is is how wives get killed". Few sec- onds later he said, "that's not a threat". Accused charged with uttering death threat. Charge dismissed. Accused did utter threat. Court in doubt how- ever whether accused meant to intimidate or be taken seri- ously. R. v. Zemaryalai (Jan. 12, 2011, Ont. C.J., Sparrow J.) 93 W.C.B. (2d) 228 (7 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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