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Law Times • march 23, 2009 entered. Dissenting judge correct in concluding that circumstantial evidence had insufficient weight to support conviction for last assault and that given this conclusion, un- necessary to deal with similar fact evidence issue. R. v. Lacroix (Dec. 4, 2008, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein Appeal from 80 W.C.B. (2d) 801 allowed. Order No. 008/343/046 (10 pp.). JJ., File No. 32445) Limitations Appellant lost her widow's pen- sion benefits when she remarried. Subsequent legislative amend- ments ultimately provided for compensation to continue in case of remarriage occurring on or after April 17, 1985, date equality rights guaranteed by s. 15 of Canadian Charter of Rights and Freedoms came into effect, but appellant did not qualify based on date of remarriage. Special Act later pro- vided for lump sum payment to persons in appellant's position but rather than applying for payment appellant brought action based on s. 15 of Charter, seeking order reinstating pension and declaring that legislative amendments and special Act of no force or effect. Court of Queen's Bench dismissed action as statute-barred under s. 3(1)(j) of Limitation of Actions Act (Sask.) ("LAA"). Court of Appeal confirmed that claims for personal relief barred but ordered reinstatement of prayers for relief relating to declaratory action un- der s. 52 of Constitution Act, 1982 (Can.). Appeal to Supreme Court of Canada dismissed. LAA applies to personal claims. Appellant had no cognizable legal right upon which to base her claim until s. 15 of Charter came into effect on April 17, 1985. New cause of ac- tion did not arise when remedial legislation adopted. Limitation period did not apply anew to each pension payment appellant did not receive. Six-year limitation pe- riod set out in s. 3 of LAA applies. Appellant's personal claims com- menced almost decade out of time and statute-barred. Ravndahl v. Saskatchewan (Jan. 29, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ., File No. 32225) Appeal from 159 A.C.W.S. (3d) 746, 43 C.P.C. (6th) 201, [2007] 10 W.W.R. 606, 408 W.A.C. 162, 299 Sask. R. 162 dis- missed. Order No. 009/033/001 (22 pp.). Limitation of Actions Act (Sask.) applied to plaintiff's claims ONTARIO CRIMINAL CASES Breathalyzer PRESUMPTION — "EVIDENCE TO THE CONTRARY" Amendments to s. 258(1) of Accused charged with driving "over 80" and applied for declara- tion that s. 258(1)(c), (d.01) and (d.1) of the Criminal Code as amended, which came into force after accused was charged but be- Criminal Code applied retrospec- tively fore his trial, did not apply retro- spectively. Application dismissed. Amendments did not alter the burden on Crown to prove ac- cused's blood/alcohol readings be- yond a reasonable doubt but clari- fied the presumption of accuracy as it pertained to the certificate of analysis while preserving the right of accused to challenge that ac- curacy and rebut the presump- tion by raising a reasonable doubt. Amendments did not alter the essential elements of the offence. Amendments were evidentiary in nature and no vested right was af- fected by them and they therefore applied retrospectively. R. v. Onyszkanycz (Nov. 24, 2008, Ont. S.C.J., Miller J., File No. CRIMJ(P)2117/07) Order No. 008/332/059 (15 pp.). Courts JURISDICTION New trial ordered where judge retired during adjournment Accused was convicted for driv- ing "over 80". Judge retracted his statement on a finding of guilt and adjourned sentence to a latter date allowing accused to drive over the summer until new legislation came into effect allowing accused to participate in an interlock device program anticipated to be in oper- ation by the fall. Judge was of the view that a conviction should be registered at time accused was sen- tenced after adjournment. Judge retired during adjournment. New trial ordered. Section 669.2(3) of the Criminal Code sets out that where the trial was commenced but no adjudication was made, in circumstances where a judge hear- ing a case retires before the case is concluded, the provincial court judge before whom the proceed- ings are continued shall commence the trial again as if no evidence has been taken. There had been no adjudication as judge convicted ac- cused and then retracted the find- ing of guilty deliberately because a finding of guilt would have result- ed in an immediate driving prohi- bition for accused. Court lacked legal authority to proceed in the manner the previous justice would have preferred. R. v. Pirabakaran (Nov. 25, 2008, Ont. C.J., Lipson J.) Order No. 008/332/052 (3 pp.). Drug Offences POSSESSION Government's regulatory response had remedied unconstitutional aspect of s. 4(1) of Controlled Drugs and Substances Act (Can.) CASELAW and Freedoms for violating ac- cused's liberty interest. There was complete absence of evidence that either accused or any other person was being deprived of reasonable access to marihuana for medical purposes. Accused failed to estab- lish threshold infringement of s. 7 of Charter. Government's regula- tory response had remedied un- constitutional aspect of s. 4(1). R. v. Long (Dec. 9, 2008, Ont. S.C.J., Frank J., File No. SCA132/07) Appeal from 75 W.C.B. (2d) 688 allowed. Order No. 008/345/093 (10 pp.). Indictment And Information Application by the accused F to sever one count of failure to com- ply with a probation order and two counts of failure to comply with a prohibition order from the other charges in this proceeding. Accused faced charges of robbery, two counts of robbery with a firearm, use of a firearm without excuse with the intention to obtain mon- ey, sexual assault with a firearm and the three counts he sought to sever. He agreed to waive his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms and waived the right to testify at the second trial. Application allowed. Based on the conditions that the accused agreed to it was in the interests of justice to grant his severance re- quest. Even though there was a strong factual nexus and the proba- tion order, prohibition order and extracted portions of the accused's criminal record were necessary evidence to be called in support of the charges to be severed, prejudice could result from disclosure of the accused's prior criminal record and orders that pertained thereto, in the jury trial. Risk of inconsistent verdict was minimal. R. v. Frater (Nov. 21, 2008, Ont. S.C.J., Thorburn J.) Order No. 009/006/076 (5 pp.). JOINDER AND SEVERANCE Accused's request for severance of counts was allowed Motor Vehicles PROVINCIAL REGULATION Accused's conviction for driving with radar detector upheld on appeal Application to determine whether a judicial review hearing was to be open to the public or whether some sort of publication ban should be imposed. Applicant applied for mandamus in connection with the refusal of a justice of the peace to issue process on a charge that two Ontario Provincial Police officers committed mischief in the per- formance of their policing duties. Second issue raised was whether the justice of the peace commit- ted jurisdictional error in permit- ting the Crown to cross-examine the informant on his evidence. Generally, because of the great im- portance of all judicial proceedings being open to the public, matters should generally be held in open court. Matter was therefore to be public. However, a publication ban was imposed regarding the officers' names. It was imposed since no process had been issued against the alleged accused. R. v. Parkinson (Dec. 11, 2008, Ont. S.C.J., Marshall J., File No. 11/08) Order No. 009/005/061 (8 pp.). Judicial review hearing ordered to be open to be public but ban imposed on officers' names Trial Accused was convicted of sexual assault. Accused did not testify at trial. Crown counsel in closing ad- dress observed that complainant's evidence was uncontradicted and that because "he didn't testify" ac- cused couldn't be questioned re- specting belief in consent. Appeal allowed. Mere observation that complainant's evidence was uncon- ADDRESSES TO JURY Words "but he didn't testify" violated prohibition on commenting on accused's failure to testify PAGE 15 tradicted was not comment on ac- cused's failure to testify. Words "but he didn't testify" clearly amounted to comment and violated both spirit and letter of prohibition on commenting on accused's failure to testify. Words were part of carefully structured closing address calculat- ed to draw jury's attention to fact accused did not take stand. Words amounted to invitation to jury to infer guilt from failure to testify. New trial was required. R. v. Biladeau (Dec. 9, 2008, Ont. C.A., Sharpe, Lang and Epstein JJ.A., File No. C47403) Order No. 008/345/108 (9 pp.). Young Persons EVIDENCE Victim could be cross-examined with respect to youth charges Accused charged with various rob- bery, sexual assault, and weapons charges. Accused sought to cross- examine victim regarding her past dealings with law enforcement. Victim had several incidents with police none resulting in convic- tions. In some instances charges were never laid, in others charges were withdrawn or discharged, and some records were in Youth Court Records. Victim should be cross-examined because credibil- ity is factor in proceeding. Even though guilt is a pre-condition for cross-examination, in victim's case no determination of guilt or acquittal was made. Questioning allowed in this instance. Victim can be cross-examined with re- spect to youth charges in accor- dance with exception of Canada Evidence Act, R.S.C. 1985, c. C-5. R. v. Frater (Nov. 20, 2008, Ont. S.C.J., Thorburn J.) Order No. 009/006/080 (8 pp.). LT Accused was acquitted of pos- session of marijuana, contrary to s. 4(1) of Controlled Drugs and Substances Act. Provision had previously been found unconstitu- tional for failing to provide accept- able medical exemption for persons with genuine need for marijuana. Government responded by enact- ing regulations which court found valid provided government estab- lished reasonable access to legal supply of marihuana to authorized persons. Government introduced new supply policy and amended regulations accordingly. Trial judge held that legislation rather than policy was required to remedy con- stitutional breach. Crown's appeal allowed. Trial judge asked himself wrong question. Issue was whether s. 4(1) prohibition was in breach of s. 7 of Canadian Charter of Rights Appeal by the accused from his conviction of driving a motor vehicle equipped with a speed measuring device. Police officer stopped the accused after the radar detector detector device in his ve- hicle showed that the accused was driving with a radar detector. There were no other vehicles in the vicin- ity when the officer's device was activated. Accused handed over a device known as a "Sensaro Silver Bullet radar detector". Officer held it in front of his device and it ac- tivated. Justice of the peace was satisfied that the Sensaro Silver Bullet was in fact a radar detector. Accused claimed the Justice made his decision without evidence. Appeal dismissed. There was am- ple evidence that the accused drove his vehicle with the radar warn- ing device. Officer had reasonable grounds to stop the accused. R. v. Watson (Nov. 20, 2008, Ont. C.J., Griffin J.) Order No. 008/344/185 (5 pp.). Publication Bans And Restrictions www.lawtimesnews.com