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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal GROUNDS Shortcomings in trial did not result in actual miscarriage of justice Accused convicted of sexual as- sault of daughter. Majority of court of appeal setting aside conviction, holding trial funda- mentally unfair by unnecessary, prejudicial cross-examination of accused by Crown counsel. Court of appeal holding conduct of trial constituted miscarriage of justice though not specifi cally raised as ground of appeal. Ap- peal to Supreme Court of Can- ada allowed, conviction restored. Failure to raise miscarriage of jus- tice as distinct ground in notice of appeal does not deprive appeal court of jurisdiction to consider whether there was miscarriage of justice. Shortcomings in trial did not result in actual miscarriage of justice. Crown counsel's con- duct unfortunate, but did not aff ect trial judge's appreciation of evidence or render proceedings unfair. R. v. W. (E.M.) (June 17, 2011, S.C.C., McLachlin C.J.C., Bin- nie, Deschamps, Fish, Abella, Charron and Cromwell JJ., File No. 33930) Decision at 92 W.C.B. (2d) 43 reversed. 94 W.C.B. (2d) 633 (9 pp.). Trial REASONS FOR JUDGMENT Trial judge erred by failing to adequately consider whether e vidence raised a reasonable doubt Accused charged with sexual as- sault and unlawful confi nement of 13-year-old neighbour. Com- plainant testifi ed that accused forced him into his house and "humped" him. Complainant told police that accused told him to tell his parents what had hap- pened. Accused denied allega- tions. Defence led evidence that complainant's parents had used racial epithets against accused and called him a pedophile. Trial judge convicted accused. Major- ity of Court of Appeal allowed accused's appeal and ordered new trial. Crown appeal dismissed. Trial judge erred by failing to adequately consider whether evi- dence raised a reasonable doubt. R. v. Y. (V.) (May 6, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33841) Decision at 89 W.C.B. (2d) 617 affi rmed. 94 W.C.B. (2d) 718 (5 pp.). ONTARIO CRIMINAL CASES Appeal CROWN APPEAL Lesser remedy not appropriate since police had been directed many times to modify approach to strip searches Appeal by Crown from decision that stayed proceedings against accused, who was charged with impaired driving, because he was subjected to strip search dis- missed. Trial judge did not mis- direct himself or make decision that was so clearly wrong that it amounted to an injustice. Judge found that breach of accused's rights under s. 8 of Canadian Charter of Rights and Freedoms was most serious and that there had been an invasive violation August 22, 2011 • LAw times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. of accused's privacy and dignity. He concluded that lesser remedy was not appropriate since police had been directed many times to modify their approach to strip searches but they had failed to do so. Judge appreciated that he imposed most serious remedy but he made it clear why he did so. Th ere was no uncertainty by judge and, therefore, no basis to intervene. R. v. Chowdhury (Apr. 29, 2011, Ont. S.C.J., Hennessy J.) Deci- sion at 85 W.C.B. (2d) 16 af- fi rmed. 94 W.C.B. (2d) 626 (5 pp.). Charter Of Rights SEARCH AND SEIZURE Informant had no track record and was unproven Accused sought to exclude a fi re- arm seized from his home pur- suant to search warrant derived from confi dential informant on grounds police breached his s. 8 Charter rights. Accused argued information provided in ITO was insuffi cient to justify war- rant issued. Informant had never previously provided information to police, his reliability was not proven, had criminal record, was motivated that police reduce his current charges and advised no consideration would be given to his charges unless informa- tion produced results. Firearm excluded. Informant had no track record, was unproven and fact gun was found did not add to his credibility. Court was also concerned with informant's mo- tivation to reduce his charges and warning about proven results was insuffi cient to make information credible. Intruding upon person's home was serious breach of pri- vacy which was compounded by fact police had little information about accused. R. v. Castillo (May 27, 2011, Ont. S.C.J., Allen J., File No. 10-40000269-0000) 94 W.C.B. (2d) 652 (12 pp.). Defences SELF-DEFENCE Trial judge did not err in failing to correct Crown's submissions on retreat Accused convicted of manslaugh- ter in shooting death of victim in context of drug dispute. Witness testifying victim advanced on accused with wooden bat just before shooting. Crown argued that accused failed to take clear path of retreat prior to shoot- ing and that accused did not fear victim as armed only with wooden bat, not gun. Trial judge charging jury on self-defence in accordance with s. 34(2) of Criminal Code. Appeal from conviction dismissed. Issue of re- treat relevant to whether accused had reasonable apprehension of death, bodily harm or whether possible to save himself other than by killing. Retreat relevant to Crown's position that accused acted to settle dispute, not in self- defence. Trial judge did not err in failing to correct Crown's sub- missions on retreat, lack of fear of death or bodily harm. Criminal Code, s. 34(2). R. v. Cain (Apr. 14, 2011, Ont. C.A., Sharpe, MacFarland and LaForme JJ.A., File No. C45822) 94 W.C.B. (2d) 655 (10 pp.). Proceeds Of Crime FORFEITURE Withdrawal of criminal charges had no bearing on right of forfeiture Crown sought forfeiture of over $43,000 cash found in storage locker belonging to accused pur- suant to search warrant. Crown withdrew charges of proceeds CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • and judges in Canada; contact information boards, commissions and Crown corporations; legal and government contact information of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $146 • L0084-8573-26084 • One-time purchase $162 • L0084-8573 • ISSN 0084-8573 Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation Prices subject to change without notice,to applicable taxes and shipping & handling. CANADIAN LAW LIST www.lawtimesnews.com CLL - 1-4 page - 5X.indd 1 8/23/11 2:40:32 PM of crime but presented expert evidence that money was pro- ceeds of unlawful activity. Evi- dence indicated that money was bundled, drug dogs produced a "hit" on some of the money, ac- cused was unemployed but drove expensive vehicle, accused had criminal record despite denying criminal involvement and ac- cused presented no documenta- tion to support his alleged busi- ness operations. Accused argued money was from frequent casino trips but could not confi rm his assertions that he was frequent player. Accused argued it would be unfair to seize money after charges were withdrawn. Money forfeited. Withdrawal of crim- inal charges had no bearing on right of forfeiture. Expert and other circumstantial evidence all indicated that money was pro- ceeds of unlawful activity within meaning of Civil Remedies Act, 2001 (Ont.). Accused did not provide any reasonable explana- tion for storage of such money in manner in which it was stored. Ontario (Attorney General) v. Maric (June 3, 2011, Ont. S.C.J., Hainey J., File No. CV- 10-404336) 94 W.C.B. (2d) 687 (8 pp.). Sentence THEFT AND POSSESSION Evidence did not support finding of possession of bag found under microwave in apartment rented by someone else Accused appealed two theft con- victions. Accused argued fi nding of recency on fi rst count was un- reasonable. Accused argued evi- dence on second count did not support fi nding of possession of bag. Appeal on fi rst count dis- missed, appeal on second count allowed. Finding of recency was reasonably open to trial judge. Limited circumstantial evidence

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