Law Times

Law Times • may 4, 2009 sentence and challenged con- stitutionality minimum sentence. Accused stipulated of minimums violated s. 12 of the Charter of Rights. Applica- tion dismissed. This court was not appropriate forum to make these claims. Within criminal justice system trial court was appropriate forum. Accused sentence would already be served if court elected to hear constitutional claims. Convic- tion and remainder of sentence to proceed as scheduled. R. v. Roach (Feb. 19, 2009, Ont. C.A., Doherty, Cronk and Armstrong JJ.A., File No. M37273; C48106) Order No. 009/054/018 (5 pp.). that mandatory mandatory FUNDAMENTAL JUSTICE Performing stunt by driving more than 50 kilometres per hour a sought an Order declaring s. 3(7) in the Races, Contests and Stunts, O. Reg. 455/07 of the Highway Traffic Act (Ont.) as unconstitutional and of no force or effect because it ex- posed an offender to custody for the breach of an absolute liability offence. Application denied. In the absence of ex- plicit language, coupled with the existence of a very strong presumption in favour of strict liability offences that was not refuted, Court found the of- fence to be one of strict liabil- ity and therefore there was no Charter breach. R. v. Bond (Dec. 10, 2008, Ont. Prov. Offences. over stunt by the speed driving limit, Desjardins J.P.) Order No. 009/041/250 (10 pp.). Evidence Accused for luring child. Accused had sexually explicit conversations over internet with undercover police officer posing as 13-year- old girl. Accused testified that from beginning, he believed he was communicating with an adult. Appeal allowed and new trial ordered. Trial judge erred in stating that accused's credibility had to be assessed "bearing in mind that his ex- planation comes long after dis- closure was available to him." Accused's enjoyment of consti- tutional right to disclosure had no bearing on his credibility. Judge also appeared to shift burden of proof to accused and erred in stating that witnesses were "presumed to tell the truth". Erroneous approach to credibility assessment tainted conclusions. Judge would not necessarily have disbelieved ac- cused's evidence absent errors. R. v. Thain (Mar. 13, 2009, Ont. C.A., Sharpe, Armstrong and Watt JJ.A., File No. C47602) Order No. 009/076/035 (11 pp.). CREDIBILITY Judge's erroneous approach to credibility assessment tainted conclusions appealed conviction WITNESSES Ct., Accused, charged with per- forming more than 50 km/hr over speed limit was strict liability offence Ruling with regard to quali- fication of computer expert that Crown sought to call as witness. Accused charged with distributing Officer qualified to testify as computer expert at child pornography trial phy from work computer. E- mail was sent from computer that accused had access to us- ing the "warehouse account" to personal e-mail of accused and contained two files that constituted child pornography. Accused alleged that someone else used his computer at work to distribute pictures. Various people that worked with ac- cused testified that they did not witness anyone else besides him using his computer but that it was possible for some- one to have used his account. Officer qualified as expert witness. Officer's experience, education, and training made him qualified to testify as ex- pert witness. He was self em- ployed as computer repairman for three years, took courses in computer forensic investiga- tion, and attended and com- pleted several intense courses in the field. Lack of published articles, books, articles, degree did not preclude his qualifica- tion as an expert. R. v. Baxter (Jan. 16, 2009, Ont. C.J., Bovard J., File No. 12006090-000) Order No. 009/029/069 (17 pp.). child pornogra- Industrial Safety Offences GENERAL Accused acquitted of offences under Occupational Health and Safety Act (Ont.) CASELAW R. v. Bartram (Jan. 29, 2009, Ont. C.J., Lane J.) Order No. 009/041/249 (19 pp.). Motor Vehicles DANGEROUS DRIVING Conviction for dangerous operation causing death upheld on appeal Accused charged as "supervisor" with three offences under Occu- pational Health and Safety Act, R.S.O. 1990, c. O.1 ("OSHA"). Charged related to carbon mon- oxide exposure that injured crew of workers for Toronto Transit Commission ("TTC"). Crew was exposed while working in tunnel and three sustained criti- cal injuries. Previous work re- fusal was commenced relating to ventilation and air quality issues. Workers were supplied with por- table fans and hoses as a result. Accused was General Superin- tendent of department that in- cluded over 400 TTC employees including injured crew. Accused acquitted on all three charges. Although Accused was a super- visor as defined by OSHA and thus charged with making sure workers work in a safe manner and use protective equipment, he took every precaution reason- able in the circumstances for pro- tection of workers. Actus reus of offence had been established but Accused showed due diligence on balance of probabilities. Ac- cused reasonably believed work- place hazard had been addressed through usage of portable fans due to the previous work refusal accommodation. Judge satisfied that Accused subjective belief in efficacy of policies in effect was objectively reasonable in the cir- cumstances. Training deficien- cies that contributed to offence were responsibility of TTC and not accused. Accused appealed from convic- tion for dangerous operation of motor vehicle causing death based on issues of causation. Accused was involved in motor vehicle accident that resulted in death of bicyclist. Vehicle ac- cused was driving should not have been certified as fit for op- eration. Front and rear braking systems had significant defects that did not allow vehicle to stop properly. Accused was not an experienced driver and had only been driving vehicle for less than a month prior to accident. Appeal dismissed. Standard for liability was that accused's con- duct be at least contributing cause of deceased's death outside de minimus range. Crown did not have to establish anything beyond that threshold. Accused acknowledged that manner in which he drove vehicle was dangerous and there was no in- tervening acts. Faulty certifica- tion and braking malfunction was contributing factor but did not absolve accused of liability. Causation was essential element of Crown's case. Despite brevity of reasoning in case correct test was applied with respect to cau- sation issue. R. v. L. (K.) (Feb. 13, 2009, Ont. C.A., Sharpe, Armstrong and Watt JJ.A., File No. C44439) Order No. 009/048/047 (7 pp.). Accused was charged with im- paired operation and offences "over 80." Issue raised at trial was whether accused had care or control of vehicle at time of arrest. Officers found accused in car in now bank passed out. Accused was alone in vehicle with his hands on the steering wheels. Conditions on road were bare and dry and location was straight and flat. Accused admitted he bought a six pack of beer. He testified that his intention was to sit there until someone came along to help him. Presumption of care and control met. Accused occupied driver's seat with intention to put vehicle in motion and did not physically give up occupan- cy until discovered by police. Accused did not establish that he did not originally occupy ve- hicle with intention of putting it into motion. Fact that vehicle was inoperable irrelevant. R. v. Kelly (Feb. 12, 2009, Ont. C.J., Selkirk J., File No. 08- 0438) Order No. 009/054/061 (12 pp.). IMPAIRED DRIVING AND "OVER 80" Accused had care and control of vehicle Trial of the accused for driving with a blood alcohol level over www.lawtimesnews.com formation of reasonable suspi- cion Demand did not have to be contemporaneous with the legal limit. Accused sought to exclude the breathalyzer evi- dence on the basis that his rights under the Canadian Charter of Rights and Freedoms were vio- lated. Police officer stopped the accused because he was driving in an erratic manner. Accused admitted to having consumed some drinks and his eyes were slightly bloodshot. Officer asked the accused to come to his vehicle. He made the road- side screening demand to him in his vehicle and administered a roadside test to him that he failed. Accused claimed his Charter rights were violated because the officer did not read the demand to him while at or beside his car but he waited until the accused was in the of- ficer's cruiser to make the de- mand. Accused convicted. De- mand did not have to be made contemporaneously officer forming a reasonable suspicion but only had to be made as soon as was reasonably possible in the circumstances. It did not offend any test of immediacy that the formal de- mand was not made until the accused was in the cruiser since the officer proceeded with the requirements of the investiga- tion and did not deviate from that process. Delay in this case, from walking to the cruiser and receiving the demand, was four minutes. It was not prob- lematic. Results of the breath tests were admitted into evi- dence and it was proven be- yond a reasonable doubt that the accused committed the offence since his blood alco- hol level was 120. with the PAGE 19 R. v. Rusaw (Mar. 4, 2009, Ont. C.J., Bourque J., File No. 08-02546) Order No. 009/071/027 (17 pp.). Proceeds Of Crime FORFEITURE Crown not entitled to forfeiture of currency as proceeds of unlawful activity Respondent's vehicle was stopped to inquire about whereabouts of vehicle's plates. There was outstanding unen- dorsed order for respondent's arrest on charge of possession of marijuana. Constable mistak- enly believed warrant was for trafficking. Constable searched respondent and vehicle find- ing $700, marijuana and brass knuckles. Respondent told con- stable there was approximately $26,000 in packsack behind driver's seat. Respondent was charged with possession of controlled substance and pos- session of prohibited weapon. Respondent pleaded guilty and received absolute discharge on both counts. Applicant sought order Case Image filler 12/20/06 11:23 AM Page 1 Crown in right of Ontario as proceeds of unlawful activ- ity. Application was dismissed. Money was to be returned to respondent. Evidence relied on by Crown depended on infer- ences to be drawn from certain circumstances. There were no contextual facts. Crown did not discharge onus of proof. Ontario (Attorney General) v. Cuenca (Feb. 10, 2009, Ont. S.C.J., Shaw J., File No. CV-06-0172) Order No. 009/068/019 (19 pp.). to forfeit $25,709 to LT Obtain Copies of Judgments to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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