Law Times

Law Times • apriL 18, 2016 Page 15 www.lawtimesnews.com CASELAW cars. Plaintiff asserted he suffered some physical soreness and seri- ous psychiatric injury. Plaintiff brought action for assault and negligence. Action dismissed. Arrest was lawful. Plaintiff was speeding and officer had reason- able grounds to believe that plain- tiff was intentionally evading po- lice. Plaintiff 's assertion that offi- cer twisted his arm was rejected. Officer handcuffed plaintiff with minimal force. No assault or neg- ligence was involved. Officer was not negligent for failing to check his lights before setting out in car because there was no reason to do so. Officer was not negligent in operation of lights. Police were not negligent for not telling of- ficer that someone from vehicle called 911 saying they were being followed by someone they did not take for police officer. Police siren was audible on tape of 911 call. Plaintiff could see f lashing lights from behind when officer pulled in front of plaintiff 's vehicle. Housser v. Niagara Regional Police Services Board (Jan. 25, 2016, Ont. S.C.J., J.A. Ramsay J., Welland CV-3446-11) 263 A.C.W.S. (3d) 813. Ontario Criminal Cases Appeal GROUNDS Accused's conviction for assault causing bodily harm against infant son upheld on appeal Accused was convicted of two counts of assault causing bodily harm to his two-month-old in- fant son. Infant suffered 12 rib fractures. Fractures were in- curred on two occasions during course of hospital stay. Accused appealed both convictions. Ac- cused claimed that verdict on first count was unreasonable or that trial judge failed to prop- erly apply principles of W. (D.). Regarding second count ac- cused claimed that judge erred in her application of mens rea for assault causing bodily harm and that she misapplied test for implied consent in context of parent-child relationship. Ap- peal dismissed. Regarding first conviction verdict regarding first set of fractures was rea- sonable. There was no error in judge's factual findings. Based on nature of fractures and due to lack of history of impact or acci- dent, expert evidence supported conclusion that fractures were not accidentally inf licted. Judge properly found accused's evi- dence to not be credible since it was inconsistent with expert evi- dence. Judge was therefore en- titled to find that accused caused fractures to his son. W. (D.) was properly applied. Regarding sec- ond conviction even if judge ac- cepted accused's evidence that he attempted to administer CPR, force administered could not be excessive and defence of implied consent did not apply since ac- cused use excessive force. Judge, therefore, did not err in law. Judge acted properly when she quoted expert evidence, for it was shorthand way of accepting that evidence R. v. W. (B.) (Feb. 2, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA 59172) 128 W.C.B. (2d) 2. Charter of Rights SEARCH AND SEIZURE Judge was not under any obli- gation to raise issue of s. 8 breach on his own motion Police officer stopped accused and he smelled strong odour of alcohol on accused's breath. Ac- cused failed roadside test and she was arrested for driving over 80. Accused's two breath samples were over limit. These two samples were taken more than two hours after offence. At trial, accused brought no appli- cation under Canadian Charter of Rights and Freedoms and she called no evidence. Accused's only attack on Crown was that samples were not taken as soon as practicable. Trial judge acquit- ted accused because he held that Crown could not prove its case using breath readings and toxi- cologist's report because it did not prove that breath samples were taken as soon as practicable. Judge raised Charter issue on his own motion. Appeal allowed. Acquittal quashed and convic- tion entered. Judge made finding of fact that breath samples were not taken as soon as practicable. This amounted to breach of s. 8 of Charter. However, this was relatively trivial breach for there was only delay of 46 minutes in taking breath samples. Delay did not result in any issue regarding accuracy of toxicologist's report based on those samples. There was no evidence of bad faith of police or evidence of prejudice to accused that resulted from that delay or any impact on her Char- ter rights. Argument to exclude breath samples was weak. Judge was not under any obligation to raise issue of s. 8 breach on his own motion. Even if judge had obligation to consider s. 8 breach on his own motion, judge would likely have decided that it was too late for issue to be considered, given prejudice to Crown that arose from fact that there was no timely Charter application. Furthermore, had judge decided on his own motion to consider Charter application at end of case, he very likely would have decided that evidence should not be excluded. Exclusion of evidence would have brought ad- ministration of justice into disre- pute. This was one of those clear- est of cases where, but for error of law made by judge, only conclu- sion was that Crown had proven its case beyond reasonable doubt and that accused was guilty. R. v. Li (Nov. 13, 2015, Ont. S.C.J., N.J. Spies J., 5/15) 128 W.C.B. (2d) 4. Courts JURISDICTION Judge lacked jurisdiction to direct accused to bring dis- qualification motion Accused was arrested on two drug charges. Lawyer named H was retained to act as Crown counsel to prosecute these charg- es. Proceedings occurred in Ontario Court of Justice (OCJ). Accused elected to be tried by Superior Court judge alone and matter was put over to set date for preliminary hearing. Coun- sel subsequently appeared before OCJ judge in remand court to set date for hearing and matter was adjourned. Exchange then oc- curred between judge, defence counsel and H, who was Crown counsel, regarding fact that de- fence counsel put H on her wit- ness list and that she intended to call H as witness at preliminary hearing. H complained that this would disqualify him from act- ing as prosecutor. Response of defence counsel was that she in- tended to challenge veracity and integrity of arresting officer and that H had relevant evidence. Judge stated that if defence coun- sel had evidence to advance that would remove prosecutor from case proper procedure was to bring motion to disqualify H as Crown counsel. OCJ judge directed accused to bring such motion. Accused applied for certiorari in Superior Court of Justice to quash this order. Ap- plication granted. OCJ was statu- tory court which derived its ju- risdiction from Criminal Code and Code gave jurisdiction to judges of OCJ when they acted in capacity of preliminary hearing judge, case management judge or as trial judge. When OCJ judges acted in any of these capacities, they had inherent jurisdiction to control process of proceedings before them. In this case, how- ever, judge did not act in any of these capacities for he was sitting in remand court. Judge therefore lacked jurisdiction to direct ac- cused to bring disqualification motion. Even if judge had juris- diction to make order, this order denied accused right to make full answer and defence and it re- sulted in denial of natural justice to accused. Consequently, judge acted in excess of his jurisdiction. R. v. Newburgh (Aug. 7, 2015, Ont. S.C.J., G. Valin J., CR-15- 10-MO) 128 W.C.B. (2d) 38. Jury EMPANELLING Application for rotat- ing triers was granted Accused was charged with first degree murder, aggravated as- sault and indignity to dead body in connection to his 17-year- old daughter. Accused was also charged with obstruction of justice regarding investigation into death of his 14-year-old son. Accused brought application to challenge for cause prospec- tive jurors who could be biased against him because of his race. Counsel for accused requested that rotating triers be used and that court exercise its common law and inherent discretion to exclude panel of prospective or unsworn jurors during process. Application granted. Due to con- cerns about schooling of poten- tial jurors rotating triers would be permitted and unsworn jurors would be excluded during chal- lenge for cause process. R. v. Biddersingh (Oct. 6, 2015, Ont. S.C.J., A.J. O'Marra J., 15-10000564-0000) 128 W.C.B. (2d) 61. Sentence BREACH OFFENCES Accused's mobility rights were not unduly restricted by probation terms Accused's probation under s. 732.1(3)(b) of Criminal Code in- cluded condition that he was to remain in Ontario unless written permission to go outside Ontario was obtained from court or his probation officer. Accused was also required to report to his probation officer weekly unless officer directed him to report less frequently. Accused ap- pealed these conditions. Appeal dismissed. Conditions were not imposed to banish accused from British Columbia but to monitor him and to ensure that he com- plied with terms of his probation. This was particularly necessary because it was due to accused being outside of Ontario that he committed breach of probation order that formed basis of his conviction. Accused's mobility rights were not unduly restricted for he could ask for permission to leave jurisdiction. Accused could also seek variation of weekly re- porting condition. R. v. Corby (Jan. 11, 2016, Ont. C.A., K. Feldman J.A., C.W. Hourigan J.A., and L.B. Roberts J.A., CA C56852) 128 W.C.B. (2d) 13. CRIMINAL NEGLIGENCE Accused's breach of duty to workers was more than momentary lapse Accused was project manager of five workers who fell more than 100 feet to ground when swing stage on which they were working suddenly collapsed. No worker was attached to lifeline as required by both law and indus- try practice. Four of workers died and one suffered grievous inju- ries. Accused was with workers at time of collapse and had taken no steps to ensure that lifelines were available and used. Accused con- victed of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Accused sentenced to three and one-half years' imprisonment, concur- rent, on each count. Paramount objectives were denunciation and general deterrence. Signifi- cant term of imprisonment re- quired to ref lect terrible conse- quences of offences and make it unequivocally clear that persons in positions of authority in po- tentially dangerous workplaces have serious obligation to take all reasonable steps to ensure that workers will make it safely back to their homes and families at end of day. Accused's breach of duty more than momentary lapse. Accused adverted to risk, weighed it against his company's interest in keeping work go- ing and decided to take chance, which was seriously aggravating circumstance in relation to moral blameworthiness of his conduct. R. v. Kazenelson (Jan. 11, 2016, Ont. S.C.J., MacDonnell J., 13- 0000083) 128 W.C.B. (2d) 76. Trial CHARGE TO JURY Trial judge should have provided limiting instruction to jury regard- ing prior consistent statements Thirteen-year-old complainant testified that accused touched her "private parts" with his "pri- vate parts" on more than 10 occasions when she was six or seven years old, during times that accused babysat her with her younger sister at his apart- ment. Complainant was thor- oughly cross-examined on major inconsistencies present in her prior statements to her grand- mother and police that included perpetrator, nature and severity of assaults. Crown subsequently referenced complainant's prior consistent statements to rehabili- tate her credibility and reliability. Trial judge did not provide lim- iting instruction to jury regard- ing prior consistent statements. Accused was convicted of sexual interference and sexual assault, latter of which was stayed. Ac- cused appealed. Appeal allowed and new trial ordered. Prior consistent statements were po- tentially dangerous because they could mislead trier of fact into thinking that, because person said same thing on more than one occasion, it was more likely to be true. Complainant's prior statements played major role at trial as they went to core ques- tion of reliability and credibility of complainant's evidence. Lim- iting instruction was necessary to avoid real risk that jury would rely on complainant's prior state- ments for impermissiblepurpose and its omission was error of law. R. v. Warren (Feb. 5, 2016, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C52923) 128 W.C.B. (2d) 98. PLEAS Guilty plea was not informed because accused unaware of automatic licence suspension Accused pleaded guilty to crimi- nal harassment, breach of court order and dangerous driving. Accused was not aware that dan- gerous driving conviction would result in indefinite suspension of his driver's licence. Accused appealed conviction for dan- gerous driving. Appeal allowed and new trial on dangerous driving charge ordered. Guilty plea was not informed because accused unaware of licence sus- pension which automatically followed under Highway Traf- fic Act (Ont.). Suspension was legally relevant penalty. Convic- tion for dangerous driving gave rise to miscarriage of justice. R. v. Quick (Feb. 2, 2016, Ont. C.A., John Laskin J.A., E.E. Gil- lese J.A., and K. van Rensburg J.A., CA C59755) 128 W.C.B. (2d) 100.

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