Law Times

Law Times • December 7, 2015 Page 15 www.lawtimesnews.com medical doctor. Defendant col- lege commenced investigation into medical doctors employed by plaintiff and five staff medi- cal doctors resigned. Plaintiff claimed that investigation con- ducted by college was unlaw- ful and was done in bad faith. Plaintiff claimed college pres- sured medical doctors into re- signing and college caused it to suffer economic loss because it depended on medical doctors for provision of the therapy. Defendants brought motion to strike out statement of claim or summarily dismiss action. Mo- tion granted; action dismissed. As pleaded, statement of claim was not broad enough to include tort of intentional interfer- ence with economic relations. When read as whole, statement of claim included tort of mis- feasance in public office. State- ment of claim was not struck out as disclosing no reasonable cause of action. Statement of claim was not abuse of process. However, evidence provided by plaintiff was not sufficient to survive defendants' request for summary dismissal. There were no genuine issues as to whether conduct of college was unlawful or whether it acted in bad faith. College had statutory duty to govern and regulate medical doctors and it had broad in- vestigative powers. There were certain risks associated with the therapy that brought it within purview of college. There was no evidence that college en- gaged in unlawful investigation that went beyond its public duty and mandate. Plaintiff could not articulate any bad faith that occurred. Hyperbaric Oxygen Institute of Canada Inc. v. College of Physi- cians and Surgeons of Ontario (Oct. 9, 2015, Ont. S.C.J., J.R. Henderson J., File No. St. Cath- arines 54641/13) 258 A.C.W.S. (3d) 507. ONTARIO CRIMINAL CASES Assault AGGRAVATED ASSAULT Accused convicted of aggravated assault in relation to burning of complainant with boiling water Two accused, male and female, were both charged with ag- gravated assault, assault with weapon, aggravated sexual as- sault and unlawful confine- ment. Complainant was ur- gently brought from her place of residence that she shared with both accused to hospi- tal suffering from serious and horrendous wounds, including critical third-degree burns to 18 per cent of her body. While it was true that complainant maintained that she purposely caused all of injuries to herself "to punish herself " throughout first part of her examination- in-chief, upon being cross-ex- amined she reversed that posi- tion and testified about abuse inf licted upon her by both ac- cused. Crown submitted com- plainant's original charade that she had inf licted injuries to herself made no sense and reli- able medical evidence was in- consistent with any theory that injuries were either self-inf lict- ed or accidental. Complainant claimed three instances where male accused poured boiling hot water on her. Complainant testified that female accused was present but not always directly involved. Burns to complain- ant were serious and required her to remain in hospital for 13 days and was left with perma- nent scars. Both doctors testi- fied that pain associated with inciting burn injury at time of injury would be one of most ex- cruciating, uncomfortable pain that one could possibly imag- ine. Although one doctor ad- mitted that it was theoretically possible, in his opinion patient would have almost involuntary ref lex to move away from what was causing pain. Both ac- cused convicted of aggravated assault. Female accused's testi- mony was not credible when it came to her lack of knowledge about complainant's various injuries. While complainant's recantations were problematic, even taking her self-harm sce- nario at its highest, her version was neither logical nor consis- tent with nature, mechanism and position of burn injuries sustained. Court rejected com- plainant's testimony of self- harm and accepted that she was inf licted with boiling water by accused. Court rejected female accused's evidence and found that she was either principal or party to acts perpetrated upon complainant. Court found two accused had exclusive oppor- tunity and did in fact, indi- vidually or in tandem applied boiling hot water on complain- ant's right thigh, back, neck, shoulder and in her groin area. Court found injuries clearly met definition of maiming. Court reached conclusion that there were at least two distinct incidents where both accused deliberately and intentionally poured boiling water on com- plainant's body resulting in burn injuries. R. v. Anderson (Sep. 22, 2015, Ont. S.C.J., A.J. Goodman J., File No. 11173) 125 W.C.B. (2d) 12. Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Sentencing judge erred by concluding that victim surcharge violated s. 12 of Charter Accused pleaded guilty to seven charges, including as- sault, and was sentenced to six months conditional sentence followed by six months' proba- tion. Sentencing judge deter- mined accused was to pay $700 victim surcharge pursuant to s. 737(2) of Criminal Code. At sentencing hearing, accused ar- gued s. 737(1) of Code violated his rights protected by ss. 7, 12, and 15 of Canadian Charter of Rights and Freedoms, and chal- lenged its constitutional valid- ity. Sentencing judge concluded that victim surcharge consti- tuted "punishment", under- took constitutional analysis in accordance to s. 12 of Charter, and established that victim sur- charge violated s. 12 of Charter and that s. 737(1) of Code was inoperative. Crown appealed. Appeal allowed. Sentencing judge erred by concluding that victim surcharge violated s. 12 of Charter. Sentencing judge erred as there was insufficient evidence to support his con- clusions concerning impact of victim surcharge on accused in question and on other of- fenders. Sentencing judge com- mitted error by speculating ac- cused's future circumstances and psychological impact that surcharges would have on ac- cused. It was not appropriate to attribute consequences of unbearable stress as reason- ably foreseeable circumstance by hypothetical offender. Stress imposed by payment of victim surcharge did not constitute cruel and unusual punishment. Sentencing judge erred in con- cluding that victim surcharge was grossly disproportionate sentence incompatible with human dignity. However, sen- tencing judge did not commit error undertaking functional- ist approach in concluding that victim surcharge constituted "punishment" and "treatment" within meaning of s. 12 of Charter, for it imposed penalty upon accused, penalty which he had to pay to state. R. c. Larocque (Sep. 29, 2015, Ont. S.C.J., Laurie Lacelle J., File No. 13-1346) Decision at 117 W.C.B. (2d) 130 was re- versed. 125 W.C.B. (2d) 17. Evidence IDENTIT Y OF ACCUSED Officer's photo lineup identifi- cation evidence admissible Accused charged with two counts of trafficking and two counts of possession of pro- ceeds of crime. Undercover police officer purchased co- caine from man he knew only as "James". Undercover officer was shown photographic line- up and identified fourth photo shown to him as man who sold him drugs. Defence had re- ferred to lineup procedure in this case as deeply f lawed and tainted because of following: it was unclear what instructions, if any, undercover officer was given before he started viewing photos; record was sparse and unclear as to what comments undercover officer made as he viewed photos; undercover of- ficer was not asked to view any further photos after he identi- fied fourth one as man who sold him drugs; process was not recorded on video or audio; photo of accused in lineup may have been taken in 2007 when he was 15 years old (accused was 18 years old when he was arrested); and witness under- cover officer was present at po- lice briefing when single pho- tograph of suspect was passed around among officers. Crown conceded that photo lineup process was f lawed but submit- ted that there was no tainting of identification, and there was other evidence that confirmed identification beyond reason- able doubt. Officer's photo lineup identification evidence admissible. Court satisfied that based on uncontradicted evidence on this specific issue that undercover officer did not look at photo at briefing. Thus, showing of photograph to oth- er officers did not taint subse- quent identification made by undercover officer. Decision to not record process on video was ill-advised. There were con- cerns of undercover officer ap- pearing on such recording but Criminal courts have evolved various safe guards to protect sensitive disclosure material and prevent improper dissemi- nation. Notwithstanding con- cerns about lack of video record court was satisfied that process in this case was not tainted, although it was f lawed. Other evidence linking accused was undercover officer's evidence of his meetings with accused, offi- cers put suspect, who matched accused's description, under surveillance, which linked him to apartment that belonged to accused's mother, and where accused was arrested. R. v. Carter (Sep. 17, 2015, Ont. S.C.J., B.P. O'Marra J., File No. CR-13-90000708-0000) 125 W.C.B. (2d) 29. Extraordinary Remedies PROHIBITION Application to quash decision refusing to order intoxilyzer dis- closure materials was dismissed Accused charged with impaired driving. Accused applied for order of prohibition with cer- tiorari in aid seeking to have court quash decision which re- fused to order intoxilyzer dis- closure materials. In dismiss- ing disclosure application, trial judge held that evidence before court was uncontradicted, and only data capable of showing instrument's malfunction was actual internal test data of ac- tual test. Trial judge held that Crown had to disclose all rel- evant information in its pos- session or control, except privi- leged information, and that police were third parties. Trial judge held that logs and main- tenance records of intoxilyzer were not used by investigative arm of police and were main- tained as part of breath testing program, therefore, they con- stituted third-party records. Accused argued that trial judge exceeded or lost jurisdiction by failing to conduct proper, or any, Stinchcombe analysis, thus wrongly concluding that sought after disclosure did not constitute first-party records which ought to have been dis- closed by Crown. Accused argued that trial judge ex- ceeded jurisdiction and erred in concluding that sought af- ter disclosure was third-party records and that he had not demonstrated that materials sought were likely relevant. Application dismissed. Certio- rari and prohibition were dis- cretionary remedies and court should have generally declined to grant remedy where there was adequate appellate remedy. Trial had been delayed for al- most one year to accommodate first disclosure motion to trial judge and current application to court, and pursuit of rem- edy currently sought had not resulted in "court efficiency". It could not have been seriously contended that trial judge's decision amounted to palpable infringement of constitutional right in circumstances where there were two decisions of court in disagreement on issue, with appeal to Ontario Court of Appeal and decision under reserve. Trial judge decided to follow decision in R. v. Mer- cer, which she was entitled to do. Trial judge's finding that evidence of other experts was not before court did not result in error that caused lost of ju- risdiction, and was supported by view taken by other judges, in other courts. On evidence, trial judge was entitled to find that materials sought were not "likely relevant", as they were not probative of accuracy of subject tests or operability of instrument. R. v. Doucet (Oct. 9, 2015, Ont. S.C.J., B.W. Abrams J., File No. 13-13266) 125 W.C.B. (2d) 38. Sentence SEXUAL OFFENCES Five-year sentence for sexual offences against 14-year-old daughter upheld on appeal Crown appeal of five years sen- tence to accused was dismissed. Accused pleaded guilty to nu- merous sexual offences against his 14-year-old daughter of sexual touching; two counts of invitation to his daughter to touch his body with her mouth for sexual purpose; and sexual intercourse. Accused's daugh- ter was troubled and sent to him by her mother with ac- cused immediately initiating daily sexual intercourse with her over six-week period. Ac- cused had prior record of sexual assault with children and breach of trust was noted by sentencing judge. Offences were attenuated to some ex- tent, relative to other cases of sexual abuse by parent, by fact that accused really had no prior relationship with his daughter before she came to live with him. Sentence was at low end of range as accused did not em- ploy physical violence, threats of violence or extortion, he pled guilty and expressed remorse and desire for treatment. R. v. Y. (W.) (Oct. 9, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., K.M. Weiler J.A., and G. Pardu J.A., File No. CA C59782) 125 W.C.B. (2d) 104. LT CASELAW

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