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Law Times • June 8, 2009 Ottawa Hospital v. O.P.S.E.U., Local 464 (Feb. 23, 2009, Ont. S.C.J. (Div. Ct.), Hack- land R.S.J., Swinton and Kara- katsanis JJ., File No. 500/08) Appeal from 93 C.L.A.S. 148 dismissed. Order No. 009/061/029 (4 pp.). Planning COMMUNITY IMPROVEMENT Leave to appeal granted on question of conversions to condominiums Application by city for leave to appeal from decision by board allowing appeal by respondent realty company allowing respon- dent to convert affordable rental apartment into condominium. Application granted. Question of rental conversions to condo- miniums in Toronto was of suf- ficient importance that leave to appeal should be granted. There was some reason to doubt rea- sonableness of board's decision. Board failed to consider and apply factors in specific policy relating to conversion as re- quired by s. 51(24) of Planning Act (Ont.). Toronto (City) v. R&G Re- alty Management Inc. (Mar. 5, 2009, Ont. S.C.J. (Div. Ct.), Karakatsanis J., File No. 340/08) Order No. 009/076/001 (4 pp.). Privacy Legislation GENERAL Decisions of Commissioner order- ing disclosure of documents arising out of criminal investigations were upheld on judicial review Applications for judicial review of two decisions of Information and Privacy Commissioner or- dering Ministry of Community Safety and Correctional Servic- es to disclose certain documents arising out of criminal inves- tigations. Ontario Provincial Police ("OPP") executed search warrant at home of J. and her partner. During execution of warrant police seized two fire- arms and then charged J. and her partner with firearm related charges which were subsequent- ly withdrawn. J. subsequently filed access to information re- quest with Ministry seeking access to all information relat- ing to her Firearms Possession Licence. Request was denied under various exemptions and J appealed to IPC. IPC upheld Ministry's decision not to dis- close certain of records in issue but ordered Ministry to disclose balance of documents finding that records in question did not fall within s. 19(b) of Freedom of Information and Protection of Privacy Act (Ont.). Minis- try applied for reconsideration and upon further review IPC found that portions of certain records were exempt on basis of solicitor-client privilege pursu- ant to s. 19(a) of Act but IPC also upheld earlier decision to disclose balance of records. Re- cords included video of execu- tion of search warrant, photo- graphs, e-mail correspondence among police officers and po- lice officers' notes. IPC rejected submissions that some of these additional records were copies of records contained in Crown brief prepared for use in pros- ecution of J. and were therefore exempt from disclosure under s. 19(b). Second application re- lated to video statement made by J.D. which IPC found was not prepared by or for Crown counsel for use in litigation. As video statement was taken by OPP for purpose of investigat- ing J.D. and deciding whether or not to lay charges against another person, s. 19(b) did not apply. IPC rejected Min- istry's request for reconsidera- tion. Applicant contended that IPC erred in interpretation of s. 19(b) in that once copies of police records arising from investigation were found in Crown brief after criminal or quasi-criminal charges are laid, records were exempt pursuant to s. 19(b) as they were "pre- pared" for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation. Both dismissed. Applicant's applications inter- pretation of s. 19 of Act was inconsistent with terms of that provision and failed to take into account other provisions of Act which provided exemp- tions that directly addressed interests of police in effective law enforcement. IPC orders to disclose disputed records in possession of Ministry were correct. Fact that copies of po- lice records were in possession of Crown counsel did not ex- empt records from disclosure by Ministry of Community Safety and Correctional Services, even though same documents in pos- session of Ministry of Attorney General would likely have been protected by Branch 2 of s. 19. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (Mar. 6, 2009, Ont. S.C.J. (Div. Ct.), Hackland R.S.J., Swin- ton and Karakatsanis JJ., File No. 29/07; 30/07) Order No. 009/069/031 (7 pp.). ONTARIO CRIMINAL CASES Disclosure DUTY ON CROWN Application for disclosure of documentation relating to breathalyzer machine was fishing expedition Accused individuals charged with "over 80". Application by accused individuals for further disclosure of documentation re- lating to breathalyzer machine. Application dismissed. Court required to interpret Criminal Code provisions reasonably and to try to understand what Parlia- ment's purpose was with regard to new Criminal Code amend- ments. Conclusion of many studies that self-reporting alco- hol consumption was not reli- able. Expert witness for defence, W, repeatedly used term "qual- ity assurance" and said that dis- closure requests were relevant to CASELAW ensure the scientific process had been followed. Evidence of W was not about checking reliabil- ity because machine itself went through 40 internal checks and operator went through proce- dure to ensure machine operat- ed properly. Evidence by W was about double-checking and he himself testified that Intoxilyzer 5000C was reliable instrument. W's evidence was about making sure of something Crown said it was already sure of. Quest for science was absolute cer- tainty while absolute certainty in courtroom would have been luxury. Neither luxury nor re- sources to double and triple check every piece of evidence. Presumption of accuracy in In- toxilyzer results unless evidence that machine was improperly operated or was malfunctioning. Not at point where speculation of malfunction should rule the day. W's evidence was uncon- vincing and speculative. Regu- lar maintenance of machine was required and was done. Expert witness for Crown, L, was ob- jective, humble, common sense approach witness who said as- sumption or presumptions of regularity must be made. Ex- cessive, unnecessary quality as- surance would have meant that work would never get done. Process need not be looked at in each individual case and court must make assumptions and presumptions of quality assur- ance and control. Disclosure sought by defence was fishing expedition. Evidence of L was preferable to evidence of W be- cause L saw the picture. Appli- cation failed to persuade court on balance of probabilities that disclosure was necessary for de- fence to make full answer and defence. R. v. Ament (Mar. 31, 2009, Ont. C.J., Douglas J., File No. 2318- 07; 2363-07; 1487-07; 401- 08) Order No. 009/097/039 (30 pp.). Fraud PROOF OF OFFENCE Inclusion of false statements in prospectus was act of deceit, falsehood, and dishonesty, which put pecuniary interests of public at risk Two accused each charged with two counts of fraud. Accused founded duction entertainment company. pro- Suppliers testified that they participated in "kick-back" scheme with ac- cused, involving false invoices. Vice-President of Finance and Administration ("VPFA") testi- fied that accused instructed him to book payments to suppli- ers to preproduction costs and fixed assets. Scheme resulted in overstatement of assets in fi- nancial statements. Statements included in prospectus filed for initial public offering ("IPO"). VPFA and other employees tes- tified that after company went public, they routinely made ar- bitrary adjustments to financial statements, to minimize expens- es and maximize profits. VPFA claimed that he instructed staff in accordance with accused's di- rection to make such changes. VPFA also said that he gave www.lawtimesnews.com summaries to accused showing adjustments and comparing actual income to reported in- come. Chief Financial Officer ("CFO") testified that accused reviewed summaries and direct- ed manipulations. Five years af- ter company went public, new investors assumed management control. New management ini- tiated investigation when CFO disclosed improper accounting practices. CFO and other em- ployees provided statements and were granted indemnity for legal fees. VPFA pleaded guilty to fraud, served condi- tional sentence and agreed to testify against accused. Accused alleged that Crown witnesses lied and conspired to implicate them. Accused found guilty. While evidence of VPFA and CFO had to be approached with caution, it was supported by testimony of other wit- nesses and documents. No evidence of collusion between VPFA and other employees. First count related to kick-back scheme. Evidence established that accused devised scheme and directed VPFA to book expenses so that assets mis- stated. Public relied on finan- cial statements. Inclusion of false statements in prospectus was act of deceit, falsehood and dishonesty, which put pe- cuniary interests of public at risk. Irrelevant that falsehood did not result in actual profit or loss. Second count related to accounting practices after IPO. Evidence established that accused initiated fraudulent accounting system and knew about its continuation. Motive PAGE 19 was continuation of company. When overspending led to cash shortage, accused direct- ed manipulation of financial statements to artificially inflate company's income and thereby ensure funding from investors. Falsehoods in statements put pecuniary interests of public, as potential investors, at risk. R. v. Drabinsky (Mar. 25, 2009, Ont. S.C.J., Benotto J., File No. P592/06) Order No. 009/104/003 (88 pp.). Jury EMPANELLING Court had inherent jurisdiction to order increased compensation to jurors Murder trial estimated to last six months. Numerous prospective jurors requested exclusion based on financial hardship. Members of jury pool from area particu- larly affected by economic reces- sion. Regulation prescribed jury compensation of $40 per day af- ter tenth day of service and $100 per day after forty-ninth day of service. Court had inherent jurisdiction to order increased compensation. Order justified by trial fairness concerns. Empanel- ling representative jury in timely manner otherwise impeded. Order would not override legis- lation. Statutory fees not stated to be maximum amounts. No express language in legislation removing court's jurisdiction to supplement fees. Compensation increased to $100 per day. R. v. Huard (Apr. 6, 2009, Ont. S.C.J., Thomas J., File No. CR-08-1324) Order No. 009/098/037 (7 pp.). LT