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Law Times • February 7, 2011 when he spoke to her, her head rolled back and her speech was slurred and hard to understand. Offi cer concluded that accused was impaired by alcohol and he arrested her and informed her of her right to counsel and read her breath demand. Technician also read her breath demand. She was given fi ve opportunities to provide sample and she was then charged after her last unsuccess- ful attempt. Accused alleged that she drove erratically because she was trying to fi x her CD and because she was not familiar with area. She further claimed she did not provide sample for health reasons and because of anxiety. Video of breathalyzer session showed she was not hav- ing panic attack. Accused was convicted of refusing to provide sample but was found not guilty of impaired driving. Regarding impaired driving charge court was left with reasonable doubt that accused was impaired when she drove. In connection with refusal, accused did not try to blow long enough to provide suitable sample. Th ere was no reasonable excuse for her in- ability to do so. Crown proved this off ence beyond reasonable doubt. Accused intentionally refused to provide sample. She was not prevented from provid- ing sample due to her medical condition, namely her anxiety attack. Court did not have rea- sonable doubt about her excuse. R. v. Garant (Nov. 22, 2010, Ont. C.J., Zisman J., File No. 09-034780) 91 W.C.B. (2d) 443 (11 pp.). Costs GENERAL Accused awarded costs where he remained in jail despite order for detention at Centre for Addiction and Mental Health Accused was originally released on his own recognizance aris- ing from failure to comply with probation and was then arrested for failure to appear in court and was held in jail. Order then made that accused appear before court to determine whether or not he was unfi t to stand trial. Accused was found unfi t to stand trial on his outstanding charges and ordered detained at Centre for Addiction and Mental Health pending disposi- tion by Review Board. Accused remained in jail despite order. Review Board conducted initial hearing fi nding accused unfi t to stand trial and again accused was directed to be held at Cen- tre for Addiction and Mental Health. Accused had launched application for writ of habeas corpus ad subjiciendum with mandamus in aid very same day of Review Board's hearing. 10 days later accused was trans- ferred to Centre for Addiction and Mental Health and three days later he abandoned appli- cation but indicated intention to seek costs. Accused awarded costs including preparation for and submissions as to costs. Ac- cused did not seek to be released and simply sought compliance with and order and as such tra- ditional rule against costs did not apply. Circumstances that occurred constituted serious af- front to authority of court and serious interference with admin- istration of justice. Crown's sub- mission that nobody involved with accused's detention had done anything wrong was asser- tion that no agency or institu- tion would take responsibility for compliance with valid court order. R. v. Singer (Nov. 15, 2010, Ont. S.C.J., Kitely J., File No. M309/09) 91 W.C.B. (2d) 462 (9 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Applicant suffered both inferred and actual prejudice as result of delay Accused charged with assault and uttering death threats. Ac- cused applied for stay of pro- ceedings based on breach of s. 11(b) Charter rights. Institu- tional delay was 12 months and 14 days. Accused attempted to obtain earlier trial date but was advised that earlier dates were being held for more serious mat- ters. Application allowed, stay of proceedings granted. Trial date was clearly outside suggested range. Accused did not just ac- cept off ered trial but continued to press for earlier date. Accused demonstrated real prejudice in substantial way. Accused was engaged in completing process of board certifi cation by Medi- cal Council of Canada so that he could practice medicine in Canada. As result of outstand- ing charges, accused had his professional career sidetracked. Stress caused from delay resulted in accused becoming distracted at work and postponing his ex- aminations for fi nal certifi cation by one year. Applicant suff ered both inferred and actual preju- dice as result of delay. R. v. Faghih (Nov. 19, 2010, Ont. C.J., Vaillancourt J., File No. 48140940007388) 91 W.C.B. (2d) 456 (6 pp.). Evidence CONFESSIONS AND ADMISSIONS Accused's statement to police not admissible given serious concerns about voluntariness Application by Crown to have statement made by accused im- mediately after her arrest admit- ted at trial. Accused was charged with robbery in connection with home invasion. Two masked man forcefully entered apart- ment and robbed and terrorized occupants. Apartment surveil- lance system showed that female was involved in robbery. One of victims identifi ed woman as ac- cused. Th ree offi cers attended at home of accused, arrested her, informed of reason for arrest and advised her of her rights. One offi cer proceeded to interrogate her. Interview was not audio or video recorded. Second offi cer took notes of interview. Accused claimed that failure of police to videotape or audiotape inter- view, which would have been in- dependent record of statement, combined with important in- consistencies in evidence of in- CASELAW vestigating offi cers, cast doubt on both voluntariness and con- tent of statement. Application dismissed. Court had number of serious concerns that raised reasonable doubt about volun- tariness of statement. Accused was in custody when statement was made. Adequate recording equipment was readily available no more than 10-minute drive away and it should have been at hand to begin with. Police de- liberately set out to interrogate accused. Th ere were no exigent circumstances. Handwritten record that was made was not adequate substitute. Statement was therefore not admitted into evidence. R. v. Burke (Nov. 29, 2010, Ont. S.C.J., Baltman J., File No. CRIMJ(P) 3903/09) 91 W.C.B. (2d) 483 (26 pp.). HEARSAY Statements made by deceased to friends admissible Crown applied to have state- ments made by deceased to three diff erent friends admitted under principled exception to hearsay in second degree murder case. Deceased was found buried on accused's property. Accused was well-liked native lacrosse player home on winter vacation. De- ceased was pregnant with a child and DNA analysis indicat- ed accused was 180,000 times more likely to be father than someone from general popula- tion. Accused pleaded guilty to manslaughter and admitted that deceased told him he was father. Crown's theory was ac- cused killed deceased to protect his reputation and maintain relationship with his girlfriend. Th ree friends would testify that deceased told them she was pregnant with accused's child and that he did not want her to have baby. Statements admit- ted. Statements were relevant to establish motive and DNA evi- dence supported truth of those conversations. Th ere was no evi- dence of collaboration between witnesses and there were suffi - cient "circumstantial indicators of reliability" to meet threshold reliability test. R. v. Hill (Nov. 22, 2010, Ont. S.C.J., Hambly J., File No. CR- 09-49-00) 91 W.C.B. (2d) 485 (21 pp.). Murder SECOND-DEGREE MURDER Crown's case so overwhelming that verdict not affected by error in jury instruction Accused appealed his convic- tion of second degree murder and sentence of no parole for 15 years. Accused shot stranger at park bench after attempting to steal marijuana from him that re- sulted in fi ght. Accused claimed he took gun from his waistband in self-defence and gun went off when they struggled. Witnesses claimed that accused's associate yelled "shoot him" and accused did. Crown presented evidence of post-event conduct of accused shaving his head and sleeping in stairwells to avoid detection as well as disposing of gun and his clothing. Accused claimed www.lawtimesnews.com Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business judge erred in not instructing jury on Crown's unproven al- legation that accused's father gave diff erent version of events after Crown decided not to call his father. Trial judge decided upon no instruction so as to not draw attention to it. Trial judge also did not instruct jury that post-off ence conduct could not be used if it rejected accused's claim of self-defence. Appeal dismissed. Th ere was no error in jury instructions as trial judge was in best position to deter- mine eff ect on jury and charge must be looked at as whole. Trial judge should not have instructed jury that post-off ence conduct could be considered regarding fi nding murder or manslaughter however even if jury interpreted charge in that manner Crown's case was so overwhelming that verdict was not aff ected. Th ere was also no error on parole eli- gibility as judge provided careful reasoning. R. v. Palmer (Nov. 29, 2010, Ont. C.A., Winkler C.J.O., Sharpe and Karakatsanis JJ.A., File No. C47592) 91 W.C.B. (2d) 511 (6 pp.). Trial CONDUCT OF TRIAL Reasonable apprehension of bias was palpable and overriding error Appeal by accused from his con- viction for speeding. Accused was lawyer whose trial was scheduled for September 29, 2009. He made disclosure request on September 24, 2009. Accused did not receive disclosure prior to trial because he faxed request to wrong Crown PAGE 19 offi ce and request was not prop- erly received until day before trial. On day of trial Crown provided accused with verbal summary of disclosure. Prior to commence- ment of trial accused requested disclosure and adjournment of trial. Presiding Justice of the Peace refused disclosure request. He then stated he was shocked and amazed that lawyer, who was in good standing, would treat this matter in such cavalier fashion. Adjournment request was con- sidered to be disingenuous and it smacked of sharp practice. Justice was disappointed with adjourn- ment request and considered it to be embarrassment and insult to court and to legal profession and it was denied. Accused was then tried and was convicted and he was fi ned. Appeal allowed. Ac- cused was not provided with suf- fi cient disclosure. If this was the only issue new trial would have been ordered. However, justice's comments caused accused to have reasonable apprehension of bias. Reasonable observer would conclude that justice was predis- posed to decide case against ac- cused. Reasonable apprehension of bias was palpable and overrid- ing error that aff ected result in this case. It was immaterial that comments were made before trial commenced. Accused was ac- quitted because it would not be in public interest or necessary for ends of justice to have new trial in this matter. Durham (Regional Municipal- ity) v. Jagtoo (Dec. 9, 2010, Ont. C.J., Beninger J., File No. 2860 999 00 89199023 00) 91 W.C.B. (2d) 427 (5 pp.). LT When More is Too Much Starting from $62.50 per month