Law Times

Law Times • JuLy 9, 2012 of Superintendent. Plaintiffs claimed damages for, among other things, allegedly wrongful refusal by Ministry to process application. During examina- tion for discovery, defendants refused to answer several ques- tions about what legal advice they had received with respect to their Ministry' plaintiffs. Defendants' position was that answers were privileged solicitor-and-client communica- tions. Appeal allowed. Master' s dealings with order was set aside. There was no waiver of privilege in circum- stances of current case. Master was incorrect in her analysis of whether defendants had waived privilege associated with their communications with Ministry' lawyers. Creative Career Systems Inc. v. Ontario (Jan. 4, 2012, Ont. S.C.J., Perell J., File No. 09-CV-381807) 213 A.C.W.S. (3d) 590 (10 pp.). s Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Trial of accused on one count each of possession of cocaine for purpose of trafficking, pos- session of crime proceeds, careless storage of ammuni- tion and knowing that firearm was obtained by commission of offence. He was also charged with three counts of possess- ing loaded prohibited firearm. Police executed search war- rant at apartment occupied by accused and his mother. Police found eight grams of crack cocaine and $865 in cash. Loaded handgun, 50 rounds of ammunition and $2,000 in cash were found in locked safe in his bedroom closet. Accused con- victed of possession of cocaine for purpose of trafficking and possession of crime proceeds. He admitted that cocaine found on him was for sale and cash was partly from drug sales. He was convicted of only one of counts of possessing loaded prohibited firearm. Accused was not cred- ible and his claim that he did not know gun and ammunition were in safe was rejected. Other two counts were duplicative and they were stayed. Accused was acquitted of careless storage of ammunition and knowing that firearm was obtained by com- mission of offence due to lack of sufficient evidence. R. v. Charles (Apr. 13, 2012, Ont. S.C.J., Molloy J., File No. 7-542/11) 100 W.C.B. (2d) 413 (24 pp.). Claim accused did not know gun and ammunition in safe rejected Appeal by accused from deci- sion that set aside its acquittal for failing to report discharge of contaminant into natural envi- ronment contrary to s. 15(1) of Environmental Protection Act (Ont.). Accused was contracted Discharge of fly-rock was discharge of contaminant that caused adverse effect Environmental Law GENERAL s to carry out controlled blasting at highway widening project. It sent fly-rock into air, which damaged residential home and vehicle in driveway. Incident occurred on November 26, 2007. It was reported to Ministry of Labour and to Ministry of Transport. No one reported incident to Ministry of Environment and it did not learn about it until May 2008. Accused was charged in October 2009. Trial judge dis- missed charge on basis that Act was never intended to capture discharge that occurred because it did not directly affect natural environment and it only caused property damage. On appeal judge set aside acquittal because nothing in Act limited its appli- cation to natural environment or to Appeal dismissed. Plain mean- ing of relevant provisions of Act, proper understanding of broad purposes of Act and application of applicable case law estab- lished that discharge of fly-rock was discharge of contaminant that caused adverse effect under Act. Accused environmental reported incident to Ministry of Environment pursuant to s. 15(1). Ontario (Minister of Environment) v. Castonguay Blasting Ltd. (Mar. 16, 2012, Ont. C.A., MacPherson, Simmons and Blair JJ.A., File No. C53611) Decision at 92 W.C.B. (2d) 507 affirmed. 100 W.C.B. (2d) 426 (34 pp.). should have Evidence Trial of accused on one count of break and enter dwelling house and committing theft, two counts of possession of stolen property, such property consisting of van and safe and one count of breach of recognizance for violating cur- few since his surety was not with him. Accused acknowledged that he was subject to recognizance. He admitted that van was sto- len. There was residential break and enter in which items were stolen. One of stolen items was safe which was subsequently being seen dumped in a ravine by two men. At issue was whether Crown proved accused' IDENTITY OF ACCUSED Doctrine of recent possession sufficient to convict accused beyond reasonable doubt. Two independent witnesses identified accused in photo lineups. They were individual who owned home that was broken into, and individual who was construc- tion worker and who identi- fied accused as one of two men who dumped safe into ravine. Accused convicted of all offences. It was reasonable to infer that same man who walked away from individual' four and then entered stolen van was same person who dumped stolen safe. Doctrine of recent posses- sion applied as court could draw inference from unexplained pos- session of recently stolen goods that possessor stole them. Both individuals were careful and pre- cise witnesses. Identification evi- dence and doctrine of recent pos- s home s identity event. CASELAW session were sufficient to convict accused of break and enter and of possession of stolen van and safe. Accused was also convicted of breach offence because his surety was not with him when he broke into individual' he disposed of safe. R. v. Shumski (Feb. 29, 2012, Ont. C.J., Baldwin J., File No. 11-2162; 11-2436) 100 W.C.B. (2d) 434 (17 pp.). s home and when Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Trial of accused for impaired driving. Crown sought to introduce evidence of Drug Recognition Expert and report of Centre of Forensic Sciences related to urine sample obtained from accused on issue of drug impairment. Police officer who was designated as Expert testi- fied that he was not doctor and he could not give accurate infor- mation about person' No indication as to quantities of drugs found in accused' s system pressure. Expert was one of two police officers who discovered accused asleep in his car while engine was running. Engine had been running for consid- erable period of s blood were no beer bottles or other bottles of alcohol inside vehicle and officer did not smell alcohol on accused' time. There performance on tests con- ducted on him was mixed. He was arrested for impaired care and control. Officer informed him of his rights and gave him Drug Recognition Evaluation Demand, which accused con- sented to. Accused spoke to duty counsel and he then took breath test which showed that he had no alcohol in his blood. He pro- vided urine sample which was sent to Centre. Centre' that was written by person who was forensic scientist and toxi- cologist, revealed presence of several drugs. However, report also provided that urine findings could not be used to determine effects, which included impair- ment, of drug on individual at given time. Accused acquitted. Presumptions under s. 258 of Criminal Code were not avail- able regarding drug recogni- tion expert s report, ing Centre's report. There was s sys- testing or regard- no indication as to quantities of drugs found in accused' tem or effect of those drugs on accused' was no evidence that accused suffered from carbon monoxide poisoning. There was also insuf- ficient evidence as to whether accused' s ability to drive. There s breath. Accused's Release From Custody Application by Substantial likelihood that accused would commit further offence REVIEW OF ORDER OF JUSTICE review of order made by jus- tice of peace in October 2011 that detained him on second- ary ground which provided that detention was necessary to pro- tect members of public. Accused faced 57 charges, of which 49 were for fraud and false pretences. Application dismissed. This was reverse onus situation. Accused established material change in circumstances. Proposed stricter plan, which involved three new sureties, was materially different from plan that was presented to justice. Accused was not flight risk for he had children, property and friends in Ontario. He also had to surrender travel grounds. Detention was also not justified on tertiary ground for detain- ing accused was no necessary to maintain confidence in admin- istration of justice. However, detention was necessary for pub- lic protection. There was sub- stantial likelihood that accused would commit further offence or that he would interfere with administration of justice. Bail was denied because accused had seri- ous credibility and trustworthi- ness issues. His record included 28 convictions for crimes of dis- honesty between 1997 and 2010. Relationship between accused and each of proposed sureties was far from close and personal. There were serious doubts that accused would listen to his sure- ties or that they would force him to listen. Proposed plan depend- ed on sureties working togeth- er as a supervisory team. This would not work since proposed sureties were strangers to each other. R. v. Zderic (Apr. 10, 2012, Ont. S.C.J., Conlan J., File No. 12-CR) 100 W.C.B. (2d) 469 (21 pp.). accused for Search And Seizure INFORMATION FOR WARRANT physical co-ordination test was strong evidence of impairment. Totality of evidence, particularly lack of expert evidence on issue of impact of drugs in accused' s poor performance on urine, left Court with reasonable doubt as to whether Crown met its burden of proof. R. v. Conron (Mar. 28, 2012, Ont. C.J., Radley-Walters J., File No. 10-1564) 100 W.C.B. (2d) 457 (7 pp.). s www.lawtimesnews.com Accused, charged with number of firearm offences, possession of cocaine for purpose of traffick- ing and possession of proceeds of crime, applied for exclusion of evidence on basis that ITO was insufficient to justify warrant. Crown produced redacted ITO to protect identify of confiden- tial informer and subsequently produced some additional infor- mation. Officer did not know accused' Information provided by informant compelling would not have assisted in verify- ing that this was his cellphone and investigation was weapons based, not drug based, so there was no attempt to lure accused into sales via phone. Confidential inform- er had provided information to police on two prior occasions that led to arrests, charges, prosecu- tions and convictions. Application dismissed. Mistakes were caused by not inserting information rel- s voice so calling number PAGE 19 evant to accused into template and not having ITO proofread because police were shorthanded, which would not have misled issuing judge. Confidential infor- mant knew that giving false or bad information would not help in getting court consideration and was warned about facing criminal charges for making false reports to police. Court found that infor- mation provided by informant was compelling, particularly in regard to accused being street level cocaine dealer, make of handgun, where it was located, fact that it was loaded and fact that accused had had it in his pos- session for long time. Conclusion of reliability can still be justified even where there is only some corroboration of information supplied by informant and only some limited verification of cred- ibility. R. v. Watts (Mar. 21, 2012, Ont. S.C.J., Backhouse 11-40000148-0000) 100 W.C.B. (2d) 472 (14 pp.). Sentence Application by Crown to des- ignate accused as dangerous offender after she pleaded guilty to aggravated assault, carrying concealed weapon and failing to comply with probation. Accused stabbed victim in her chest when that victim intervened in argu- ment between accused and another person. Accused was 37 years old. She lived tortured and troubled life. Accused became Crown ward when she was 12 and she was in and out of fos- ter care and she lived in differ- ent group homes. Accused was aggressive, assaultive and suicidal when she lived in these homes. Her related criminal record com- menced in 2005. In addition to her criminal record for crimes of violence accused engaged in multiple acts of violence and aggression. Accused was over- come with rage and anger. She blamed others for her problems and she refused to accept respon- sibility for her actions. Accused often carried knife when she was angry and frustrated. She was had no insight into her behav- iour and she showed no remorse for her actions. Accused was resistant to any type of interven- tion. She did not comply with court orders and she refused to let mental health professionals help her. Application allowed. Accused was unpredictable. Her episodes of violence were fre- quent and they appeared to be escalating. There was high risk that she would reoffend and she would do so violently. Accused required extensive psychiatric and psychological counselling. She required intensive treatment to assist her in coping with daily life. There was no reasonable possibility that accused' PREVENTIVE DETENTION Accused engaged in multiple acts of violence and aggression community could be controlled. R. v. Walker (Mar. 21, 2012, Ont. C.J., Rutherford J.) 100 W.C.B. (2d) 485 (52 pp.). s risk in LT J., File No.

• Cover