Law Times

Law Times • December 1, 2008 of tractor-trailer as well as alleged owner-lessor of the tractor-trailer. Motion allowed in part. Motion for order adding owner allowed. Although statutory limitation pe- riod for claim against owner had expired and discoverability did not apply, owner had constructive notice of claim before expiration of limitation period. Driver, also a defendant, was officer and direc- tor of owner. Thus, constituted special circumstances to rebut nor- mal presumption of prejudice by adding defendant after expiration of limitation period. Motion for order adding lessor as party dis- missed. Lessor-lessee relationship alone does not justify conclusion lessor had constructive notice of plaintiffs' original claim. Motion for an order under s. 258.3(1) of the Act extending time for service on lessor denied but granted as regards to owner. Gladstone v. Canadian National Transportation (Aug. 8, 2008, Ont. S.C.J., Master Hawkins, File No. 02-CV-239818CM 4) Order No. 008/238/080 (18 pp.). Professions PHYSICIANS AND SURGEONS Investigator could compel physician to provide information Appeal from decision allowing application by plaintiff for order to return $5,000 US. Plaintiff entrusted money to man who at- tempted to carry $50,000 U.S. out of country without comply- ing with statutory requirement to report exportation of currency in excess of $10,000. Money was seized. Trial judge declared that plaintiff had ownership interest in $5,000 U.S. that was not af- fected by currency seizure. Ap- peal allowed. Decision was set aside. Plaintiff failed to exercise all reasonable care within meaning of s. 33(c) of Proceeds of Crime (Money Laundering) and Terror- ist Financing Act (Can.). Vito v. Canada (Oct. 3, 2008, Ont. C.A., Weiler, Simmons and Rouleau JJ.A., File No. C46989) Order No. 008/280/293 (11 pp.). Substitute Decisions Applicants sought judicial review of respondent's issuing summons pur- suant to s. 76(1) of Health Profes- sions Procedural Code (Ont.) be- ing Schedule 2 of Regulated Health Professions Act, 1991 (Ont.). Three applicants were general prac- titioners who practiced cosmetic surgery. Fourth applicant was an- aesthesist who assist in procedure where patient died. Respondent commenced investigation and is- sued summons, which applicants refused to obey. Applicants claimed that investigators had no power to compel them to be interviewed or to observe their surgical procedures. Applications dismissed. Section 76 of Code permitted investigator to inquire into and examine practice of member to be investigated and to enter at any reasonable time place of practice of member and to examine anything found there that was rel- evant to investigation. In context of medical practice, inquiry into and examination of member's practice reasonably included observation of member's competence that required observation of member. There were circumstances where observation was necessary to evaluate skill and competence of physician. Pursuant to s. 76 of Code investigators had power to require observation of sur- gery conducted by member under investigation. Pursuant to s. 76(1) of Code investigator had all pow- ers of commission under Part II of Public Inquiries Act (Ont.). Section 7 of Act permitted commission to summon witnesses to give evidence. Incorporation of Part II of Act permitted investigator to compel physician to provide information during course of investigation. Gore v. College of Physicians and Surgeons of Ontario (Sep. 26, 2008, Ont. S.C.J. (Div. Ct.), Lederman, Kiteley and Swinton JJ., File No. 160/08; 161/08; 162/08) Order No. 008/275/067 (15 pp.). Real Property OWNERSHIP Plaintiff failed to exercise all reasonable care under Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) Wife sought order that husband was absentee pursuant to s. 2(1) of Absentees Act (Ont.). Wife last spoke with husband in October 2007. Husband had not con- tacted anyone else in family and missed several important holidays. Evidence presented that police suspected husband was loan shark who had been killed. Wife also proposed that she be appointed committee of property of husband to manage and pay daughter's educational and living expenses. Application granted. Husband declared absentee. Wife appoint- ed committee of his property. Wife ordered to provide Public Guardian and Trustee with list of husband's known assets and liabilities within six months. Lu (Re) (Sep. 15, 2008, Ont. S.C.J., Brown J., File No. 05- 42/08) Order No. 008/261/064 (2 pp.). PROPERTY Applicant's husband declared an absentee and applicant appointed committee ONTARIO CRIMINAL CASES Charter Of Rights Application by accused to have breath sample results excluded. Earlier ruling had found a breach of s. 8 of the Charter. Crown had not met its onus of proof to demonstrate that the demand for a breath sample had been made within three hours of the time of the alleged offence, as was the stat- utory requirement. Application denied. Admitting the evidence would affect trial fairness but it was minimally intrusive, essential to control the problem of drinking and driving, and entirely reliable. The breach was not sufficiently serious to automatically warrant exclusion. Exclusion would be more likely to bring the admin- istration of justice into disrepute since the evidence was crucial to the prosecution of the charge, it was reliable, the breach was nei- ther flagrant nor wilful, and there was no institutional indifference to individual rights. ENFORCEMENT OF RIGHTS Breach of s. 8 not sufficiently serious to warrant exclusion CASELAW R. v. Oleksiuk (Sep. 2, 2008, Ont. C.J., Zisman J., File No. 06- 8252) Order No. 008/255/115 (5 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Officer's observations not Appeal by the accused from his conviction for impaired driving. Officer stopped the accused due to erratic driving. He smelled alcohol on the accused's breath and asked him to exit his vehicle. Purpose was to see the accused's physical state and his balance. When the accused exited he was unsteady on his feet. At issue was the admissi- bility of the officer's observations when he told the accused to get out of the car. Accused submitted the evidence was admissible to explain the officer's grounds for belief but it could not be led as positive evi- dence of guilt. Crown conceded that the officer's observations were not properly admissible on the is- sue of guilt or innocence. Appeal allowed. Conviction quashed. New trial ordered. Reasons for judgment left open the possibil- ity that the trial judge considered the evidence of the accused's stumbling as positive evidence of guilt. Result would not have nec- essarily have been the same in the absence of such evidence. Error caused substantial wrong or mis- carriage of justice. R. v. Martin-Dicesare (Sep. 2, 2008, Ont. S.C.J., Pomerance J., File No. CR-07-1128-OOAP) Order No. 008/255/121 (4 pp.). properly admissible on issue of guilt or innocence Parties CHARGE TO JURY Trial judge's instructions on second- ary participation in first degree murder were flawed of Rights and Freedoms, alleging breaches of s. 8. Police obtained warrants under s. 487 of Crimi- nal Code for records of all cell phone traffic in area just prior to robbery of jewellery store ("Tower Dump Warrants"). Police then obtained warrants for accused's cell phone data ("Subscriber Re- cords Warrants") and for search of accused's residences ("Residen- tial Warrants"). Stolen property discovered in residences. Applica- tion allowed in part. Accused had reasonable expectation of privacy in cell phone records. Contractual obligations between accused and service providers and enactment of Personal Information Protec- tion and Electronic Documents Act (Can.) supported expectation. Records could reveal personal and biographical information about users. Execution of all warrants violated s. 8, issued without rea- sonable and probable grounds. No credibly probative evidence in information to obtain Tower Dump Warrants that cell phone was used in robbery. Evidence de- rived from Tower Dump Warrants could not be used to obtain sub- sequent warrants. Evidence from Tower Dump Warrants excluded. Evidence from Subscriber Records Warrants and Residential War- rants not excluded. Fact that po- lice could have obtained records lawfully under s. 492.2 of Code favoured admission. R. v. Mahmood (Oct. 9, 2008, Ont. S.C.J., Quigley J., File No. CRIMJ(P) 0108/07; CRIMJ(P) 1952/07) Order No. 008/288/071 (96 pp.). DRIVING OFFENCES Accused sentenced for Criminal Code and PAGE 15 provincial driving offences Accused sentenced to concurrent sentence of 28 days time served in pre-sentence custody with two-for-one credit followed by an additional 45 days' imprison- ment for Criminal Code charg- es. Accused received suspended sentence for provincial offences charges. Accused received one year driving prohibition. Sen- tence of accused to be served consecutively to other sentences accused was currently serving. Accused pleaded guilty to pos- session of stolen licence plate, driving while disqualified, im- personating another individual for the purpose of avoiding being charged with a criminal offence, breaching probation, operating motor vehicle without insur- ance, failing to surrender permit for motor vehicle, and breach of recognizance. Accused released on earlier offences so more in- formation could be obtained before sentencing and breached terms of release the following day by driving motor vehicle. Accused had extensive youth re- cord including offences involv- ing motor vehicles and had other matters before the court involv- ing theft and driving offences. Accused was an Aboriginal and s. 718.2(e) considered. Accused lived with mother and stepfa- ther, worked part-time, attend- ed counselling and reported to probation officer, and acquired some educational credits in jail. Accused was drug addict and his girlfriend recently gave birth to their child which motivated him to change his life. R. v. Monture (July 30, 2008, Ont. C.J., Harris J., File No. 07-858; 07-859; 08-356; 07- 069) Order No. 008/267/011 (12 pp.). LT Obtain Copies of Judgments Accused appealed convictions for first degree murder and attempted murder. Accused drove friend to apartment where friend shot three victims, killing two. Appeal al- lowed and new trial ordered. Trial judge's instructions on second- ary participation in first degree murder were flawed. Judge mis- directed jury by stating that basis for constructive first degree mur- der could be established "whether or not the person means to cause death", as long as person intends to cause bodily harm to facilitate forcible confinement and victim dies. Judge erroneously defined murder as "an unlawful or inten- tional killing". Judge failed to fully articulate essential elements nec- essary for liability as secondary participant in planned and delib- erate first degree murder and in attempted murder and failed to relate evidence to those issues. R. v. Almarales (Oct. 10, 2008, Ont. C.A., Sharpe, Cronk and Watt JJ.A., File No. C43143) Or- der No. 008/288/061 (29 pp.). 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