Law Times

Law Times • February 1, 2016 Page 15 www.lawtimesnews.com CASELAW January 2014. Defendants moved for summary judgment dismiss- ing plaintiff 's claims as statute- barred due to expiry of two-year limitation period set out in s. 4 of Limitations Act, 2002. Motion was granted. Plaintiff appealed. Appeal dismissed. There was no new test for discoverability in medical malpractice actions and motion judge did err in not applying such test. Motion judge made no error in discoverability analysis. Findings of fact were open to motion judge on eviden- tiary record and supported con- clusion that plaintiff discovered claim no later than December 2011. Motion judge did not err in finding that expert evidence was not necessary for plaintiff to conclude that there was likeli- hood of negligence. This was not inappropriate case for summary judgment. Action was statute- barred. Brown v. Wahl (Nov. 16, 2015, Ont. C.A., E.A. Cronk J.A., Glo- ria Epstein J.A., and Grant Hu- scroft J.A., File No. CA C60253) Decision at 250 A.C.W.S. (3d) 689 was affirmed. 260 A.C.W.S. (3d) 603. ONTARIO CRIMINAL CASES Appeal GROUNDS It was not court's role to grade counsel's professional con- duct outside of courtroom Accused was convicted of refus- ing breathalyzer after he failed to give proper sample after 14 to 16 attempts. Accused alleged he had ineffective counsel after counsel abandoned Charter s. 11(b) application with his con- sent and failed to call medical expert. Trial counsel was ready to call medical expert, however, expert became available at last moment and counsel claimed that accused agreed to abandon calling expert, which accused disputed. Trial counsel did not obtain written instructions from accused regarding those appel- late issues. Trial judge also did not believe version of events as described by accused. Accused appealed his conviction. Ap- peal dismissed. Judge expressly disbelieved evidence of accused regarding alleged effects of being stopped by police and any expert reports would have to be based on acceptance of accused's ver- sion of events. It was not court's role to grade counsel's profes- sional conduct outside of court- room. If accused was unhappy with manner in which his trial counsel conducted his trial, his remedy lay with Law Society of Upper Canada and its complaint procedures. R. v. Namasivayam (Nov. 24, 2015, Ont. S.C.J., Nord- heimer J., File No. 134/13) 126 W.C.B. (2d) 9. Charter of Rights LANGUAGE RIGHTS Interpreter fully captured meaning of words conveyed to and by accused Three accused charged with kid- napping, extortion and assault. Throughout trial, first and third accused used Punjabi interpreter and second accused used Tamil interpreter. On any given day of trial, two Punjabi and two Tamil interpreters provided interpreta- tion to accused. Punjabi inter- preters came into courtroom when Punjabi speaking witness testified. In that situation, jury was in position to hear questions and answers being interpreted into Punjabi language. Interpret- er at issue was fully accredited. At end of day juror forwarded hand written note advising that trans- lator had poor translation ability and requested to get another per- son. Accused brought applica- tion for mistrial. Application for mistrial was premature request and court preferred there to be audit of testimony by another in- terpreter instead and so ordered. After reviewing audited material, all three accused alleged breach of their s. 14 Charter rights and requested mistrial. Application dismissed. Guaranteed standard involved continuity, precision, impartiality, competency, and contemporaneousness. Trans- lation at issue was not perfect. Often imperfections in transla- tion related to immaterial con- cerns. There was almost noth- ing in transcript that indicated that meaning of what was being communicated by either witness or examiner was in any way dis- torted or altered; at least not in any meaningful way. Questions and answers clearly indicated that accused understood what was being said and examiner understood his responses. To extent that interpretations were not word-for-word accurate, meaning was accurate almost entirely throughout. When in- terpreter did not understand question, he asked for clarifica- tion and did this several times towards end: fact court believed may have inf luenced juror's note. Overall, while court found that interpreter was not 100 per cent accurate, he nonetheless fully captured meaning of words con- veyed to and by accused. There was no need or basis to conclude that full audit of other portions of trial was required. Juror had alerted court to potential prob- lem. Court reviewed sufficient sample of interpretation and was satisfied that translator's inter- pretation was sufficient and that he was performing his function competently. Counsel's request that court audit other aspects of trial because there was danger that same translator was not in- terpreting properly for other wit- nesses was speculation. R. v. Singh (Nov. 12, 2015, Ont. S.C.J., Coroza J., File No. CR-12-2328) 126 W.C.B. (2d) 102. SEARCH AND SEIZURE Failure to make full disclo- sure of weakness in connecting accused's residence to alleged crime rendered warrant invalid Trial judge acquitted accused of offences related to cocaine importation scheme after ex- cluding evidence seized from his residence. Trial judge held warrant invalid as ITO relied on information obtained from co-accused's cell phone in war- rantless search incident to arrest. Trial judge further held affiant failed to make full and frank disclosure of serious difficul- ties linking alleged principals of cocaine importation scheme to accused's residence. Crown's ap- peal dismissed. Trial judge erred in analysis of whether warrant- less search of cell phone incident to arrest breached s. 8 of Charter. Warrantless search of cell phone was constitutionally permissible absent exigent circumstances where certain criteria met. Un- necessary to decide whether cell phone search valid as failure to make full disclosure of weakness in connecting accused's resi- dence to alleged crime rendered warrant invalid. No evidence to support credibly based probabil- ity that accused was involved in offence and evidence of offence would be found in residence. R. v. Liew (Nov. 2, 2015, Ont. C.A., J. Simmons J.A., M. Tull- och J.A., and Grant Huscroft J.A., File No. CA C55450) 126 W.C.B. (2d) 74. Failure to file report to justice breached s. 8 of Charter M was sought for extradition by United States. American au- thorities asked Canadian police to obtain production order for subscriber information asso- ciated with IP address. Police subsequently obtained Criminal Code search warrant for M's resi- dence. No report to justice was filed following execution of war- rant. American authorities used evidence obtained through these orders in record of case seeking extradition. M argued that her Charter rights were violated and sought disclosure of evidence obtained in Canada. Extradi- tion judge found no air of reality to Charter claims and ordered extradition. Appeal allowed and case remitted to extradi- tion judge. Accused's rights were not breached by obtaining of Criminal Code search warrant. Authorities were not required to seek search warrant pursuant to Mutual Legal Assistance in Criminal Matters Act instead. Failure to file report to justice breached s. 8. Case was remitted for extradition judge to assess ef- fect of breach. United States of America v. Mathurin (Aug. 26, 2015, Ont. C.A., K.M. Weiler J.A., K. Feld- man J.A., and M.L. Benotto J.A., File No. CA C57793) Decision at 106 W.C.B. (2d) 623 was reversed in part. 126 W.C.B. (2d) 23. Evidence HEARSAY Crown's application to admit victim's hearsay statements was allowed Accused was charged with first- degree murder of his mother. Victim suffered from multiple sclerosis and her husband cared for her until his death. Accused then moved into parents' apart- ment to care for victim. Victim and accused were alone in apart- ment when fire broke out and victim was completely immobile and she was killed in her bed. Accused managed to escape un- harmed. Crown brought applica- tion to permit it to call victim's hearsay statements. It claimed that statements were relevant for accused had animus towards his mother and means and motive to kill her, which he did by set- ting fire to apartment. Applica- tion allowed. Crown established threshold reliability and ques- tion of ultimate reliability had to be left with jury. Evidence of prior discreditable conduct was highly relevant as it would pro- vide important context of na- ture of relationship of accused with deceased. It could support inference that he bore animus towards his mother and that he had motive and intent to kill her. These issues were central to this case. Admission of proposed statements into evidence would have little prejudicial effect on accused. To minimize any po- tential prejudice to accused jury would be instructed in mid-trial and when final instructions were given not to rely on prior dis- creditable conduct as proof that accused was type of person who would commit murder and who was guilty. Probative value of evidence generally outweighed prejudicial effect. R. v. Goudreau (Aug. 26, 2015, Ont. S.C.J., Patrick Smith J., File No. 12-M7872) 126 W.C.B. (2d) 42. Jury DELIBERATIONS Extraneous information brought to jury room did not cause miscarriage of justice Jury convicted two accused of possession of heroin for purpose of trafficking. Court services of- ficer discovering document in jury binder post-verdict referring to high profile acquittal in U.S. trial and reproducing aspects of specimen jury instructions. Evidence on post-verdict inquiry revealing foreman had prepared document but few jurors reading it, little discussion about it ensu- ing and most jurors discounting document. Accuseds' appeals from conviction dismissed. Ex- traneous information brought to jury room did not cause mis- carriage of justice. Jury secrecy rule prevented access to direct evidence of effect of materi- als on deliberations. Evidence demonstrated most jurors did not read document in full and little discussion ensuing about it. Extraneous information about highly publicized U.S. trial likely forming part of knowledge and life experience jurors brought to deliberations. Information did not relate in any way to accused or live issues at trial. Jurors pro- vided with correct instructions about confining deliberations to their proper subject matter. R. v. Bains (Oct. 7, 2015, Ont. C.A., David Watt J.A., S.E. Pep- all J.A., and Grant Huscroft J.A., File No. C56717, C56714) 126 W.C.B. (2d) 57. Sentence IMPRISONMENT Pre-sentence custody could not influence consideration of what total sentence should be Accused pleaded guilty to two bank robberies. First was com- mitted in Montreal and second occurred in Ottawa. Accused also pleaded guilty to using imi- tation firearm in Montreal rob- bery. Accused was 40 years old and had related criminal record which commenced when he was 20 years old. Accused had been incarcerated for all but four of last 21 years. Accused sentenced to total of eight years' imprison- ment. Breakdown of sentence was five years for Montreal rob- bery, five years concurrent for Ottawa robbery and mandatory minimum of three years consec- utive for use of imitation firearm. Pre-sentence custody could not inf luence consideration of what total sentence should be accord- ing to principles of proportional- ity and totality. Amount of pre- sentence custody credit could be divided up and allocated among different offences, although same amount of time could not be allo- cated more than once among of- fences as that would contravene maximum available credit under s. 719(3.1) of Criminal Code. R. v. Savard-Cote (Nov. 17, 2015, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-9209) 126 W.C.B. (2d) 89. Trial WITNESSES Only part of witness's pre- liminary inquiry testimony could be read into record Two accused were charged with attempted murder with prima- ry witness who could identify them being unable to be located. Crown applied under s. 715(1) of Criminal Code and/or under principled exception to hearsay rule to have preliminary inquiry testimony of witness read into record even though Crown had him declared hostile witness at that time. Crown produced no further evidence of his suspected whereabouts and made it clear that witness was drug dealer with long criminal record, and that he exhibited unreliability and instability that that lifestyle implied. Defence counsel argued that there was no other direct evidence implicating accused nor was there forensic evidence in that regard. Crown applica- tion dismissed, except in part. Testimony of witness only read into to point that Crown applied to declare him to be hostile wit- ness. Testimony given by witness at preliminary inquiry contained little probative value and read- ing that testimony to jury would impose high cost in prejudice to trial process. R. v. Williams (Nov. 9, 2015, Ont. S.C.J., E.M. Morgan J., File No. CR-14-30000824) 126 W.C.B. (2d) 45.

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