Law Times

Law Times • January 9, 2017 Page 15 www.lawtimesnews.com ter, S failed to address purchasers' concerns or establish new closing date. Transaction did not close by March 31, 2012 and neither party tendered on other. Purchasers brought claim for return of their deposits in accordance with para. 19 of APS, which provided that in event APS was terminated through no fault of purchasers, all deposit monies were to be returned. Claim allowed. Trial judge concluded that transac- tion did not close by deadline of March 31, 2012 through no fault of purchasers. Trial judge held that purchasers raised valid con- cern about increase in common expenses, and although S extend- ed closing "until we sort this out", he took no steps whatsoever to do so. S never advised purchasers that their concern was untenable, that it did not amount to material change, or that they were obli- gated to close transaction. Ven- dor appealed. Appeal dismissed. Trial judge found correctly that APS did not contain time of es- sence clause and that agreed statement of facts did not provide that parties agreed time was of es- sence. Amending agreements do contain provision that "time shall continue to be of the essence", but these provisions contradict original APS. In view of absence of time of the essence provision in original agreement, or any ref- erence to such clause in agreed statement of facts, this term was not given effect in amend- ing agreements. Trial judge was correct that APS ended in ac- cordance with para. 19 of APS because despite vendor's assur- ances it never provided purchas- ers with revised occupancy state- ment. Purchasers could hardly be obliged to set new closing date without this revised statement. Ram v. Talon International Inc. (2016), 2016 CarswellOnt 16672, 2016 ONCA 807, John Laskin J.A., Robert J. Sharpe J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 14115, 2015 ONSC 5660, T.A. Heeney R.S.J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law GENERAL PRINCIPLES Jurisdiction Fresh evidence of identity documents was not admissible Based on age of accused. Four deceased family members were found in car submerged in wa- ter in canal system. Three other family members, S, T, and H, were each convicted of four counts of first degree murder. Accused contended that H should not have been tried with other accused, his parents, be- cause he was too young to be tried as adult. H sought to admit fresh evidence as to proof of age. Accused appealed. Appeals dis- missed. Fresh evidence of three identity documents was not ad- missible and effect was not to be given to remedies sought as consequence of their proposed reception. When deceased were killed, H was not "young per- son" as defined in s. 2(1) of Youth Criminal Justice Act. Jurisidic- tional challenges advanced first time on appeal were exceptional, all more so when information necessary to ground challenge was within peculiar knowledge of accused and his parents who, when asked, said he was 18. Compelling evidence was not provided to show that H was "young person". Since proposed evidence did not go to findings of fact essential to determination of guilt or adjudicative fairness, greater emphasis was placed on avoiding "gaming the system" by challenge to jurisdiction on ap- peal after adverse verdict at trial. Principal evidence tendered for admission, tazkira document, would not be admissible under adjectival law if tendered on ju- risdictional challenge at trial. As proof of H's age, document was hearsay, its author and time of relevant entry being unknown, and even double hearsay if source was unknown "local representa- tive". Birth date of December 31, 1991 was asserted solely on basis of "new" document and despite lengthy history of consistent and repeated representations, some in sworn declarations to gain en- try into various countries includ- ing Canada, that H was born on December 31, 1990. R. v. Shafia (2016), 2016 Car- swellOnt 17126, 2016 ONCA 812, David Watt J.A., P. Lauw- ers J.A., and G. Pardu J.A. (Ont. C.A.). OFFENCES Sexual assault Fresh evidence was relevant to complainant's credibility Accused was convicted of sexu- ally assaulting and uttering death threats to his former part- ner over period of 26 months. Complainant claimed accused forced himself on her three times but he insisted sex was consen- sual. To bolster his defence, ac- cused raised issue of Facebook message sent in February 2009 by complainant to his new part- ner and current wife. At trial in 2011, complainant maintained she had no memory of sending message and testified she did not think she did so. Follow- ing Crown objecting on proce- dural grounds, trial judge ruled against further cross-examina- tion and directed jurors to set aside evidence they had heard about post. Accused appealed and requested permission to introduce fresh evidence, with Crown not objecting. Appeal al- lowed; Conviction quashed and new trial ordered. Submissions of expert forensic analyst of computer belonging to accused's current wife turned up relevant message on her Facebook ac- count with no manipulation of date and content. Message was sent around midpoint in time period of sexual assault allega- tions and court held it would not be unfair to say message re- counted several incidents of sex- ual activity between accused and complainant and made it clear that sexual activity was consen- sual on complainant's part. Fur- ther, message was found to have come from computer address associated with complainant's brother and when complainant was interviewed about results of investigation, she acknowledged sending message. Had message been allowed at trial, it could have affected accused's convic- tion. Fresh evidence was relevant to complainant's credibility on issue of consent, which was only controversial element at trial. At request of Crown and defence, court stayed new trial order. R. v. B. (A.) (2016), 2016 Car- swellOnt 17301, 2016 ONCA 830, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal There was substantial body of confirmatory evidence In 2012, accused was convicted of first degree murder, sexual assault causing bodily harm and kidnapping. Eight year old girl was lured into accused's car while walking home from school and driven out of town to farmer's field where offences oc- curred. At trial, co-accused, who pleaded guilty to first degree murder of girl, claimed she killed girl which was contrary to agreed statement of facts at her trial. Accused appealed. Appeal dis- missed. There was no evidence upon which properly instructed jury acting reasonably could find accused guilty solely of being ac- cessory and no air of reality that he simply assisted co-accused after she committed offences as it strained credulity to suppose accused would have helped co- accused cover up heinous crime she alone committed. Trial judge considered issuing warning to jury about danger of convicting accused solely on co-accused's testimony, however, it was re- moved at request of accused's counsel. Warning was clear that co-accused was unsavoury wit- ness and it detailed her criminal past, history of violence and con- fession to murder. Warning also included items of independent evidence that potentially con- firmed accused's evidence, but accused's counsel recognized references to independent evi- dence would not assist accused's cause. It was understood request was made for tactical reasons and after review it was decided to ac- cede to request for removal and omit warning and decision to do so could not now be impugned. Trial judge had not erred by fail- ing to tell jury it could not use removal of backseat of accused's car as evidence of guilty conduct after murder as jury was told it had to consider alternate expla- nations for accused's conduct before drawing conclusions. Co- accused gave confecting state- ments to police and others and part of her May 24, 2009 state- ment was admitted as evidence, with both sides in trial being al- lowed to question her and at trial, co-accused insisted she killed little girl . Court disagreed with submission that admitting co- accused statement was wrong because statement broke hearsay evidence rules saying co-accused did not make statement to blame someone else and minimize her own involvement. Further, co- accused's statement was made under caution and following consultation with her counsel. There was also substantial body of confirmatory evidence such as video of abduction; purchase of murder weapon and expert evi- dence on cause of death. R. v. Rafferty (2016), 2016 CarswellOnt 17138, 2016 ONCA 816, Grant Huscroft J.A., John Laskin J.A., and Robert J. Sharpe J.A. (Ont. C.A.). TRIAL PROCEDURE Rights of accused Application for appointment of counsel for appeal was granted Accused was convicted of two counts of fraud over $5,000 re- lating to mortgages obtained on residential real estate properties through fraudulent applica- tions. Accused appealed convic- tion on basis he had ineffective assistance of counsel. Accused applied for legal aid and was re- fused. Accused was denied ap- pointment of counsel on basis he was intelligent and experience, matter was not complicated and he would have assistance of duty counsel. Ontario Inmate Appeal Duty Counsel Program denied accused assistance on basis mat- ter was beyond scope of what is reasonably expected of their pro- gram, which was in their discre- tion. Accused brought applica- tion for appointment of counsel for his appeal. Application grant- ed. Accused did not have suffi- cient means to obtain private le- gal assistance and his appeal was at least partly arguable. Ontario Inmate Appeal Duty Counsel Program denied accused as- sistance basically as matter was too large for their program. Ac- cused had been previously de- nied counsel as it was expected he would have assistance of duty counsel . Program was run on pro bono basis and its decision was understandable, but its re- fusal did alter accused's situation to one where he would not have any assistance. Accused's appeal was apparently not as straight- forward as had been presumed. Appeal was not legally complex, but record was lengthy and ac- cused had limited education and had dyslexia. Without any legal assistance accused would struggle to explain why or how his trial lawyer's conduct con- stituted incompetence. Accused would not be able to effectively present his appeal without help of lawyer. Given extent of record and nature of legal issues raised, assistance of experienced crimi- nal counsel would be of great as- sistance to court. R. v. Fiorilli (2016), 2016 CarswellOnt 16921, 2016 ONCA 814, J.C. MacPherson J.A., In Chambers (Ont. C.A.). TRIAL PROCEDURE Selection of jury Threshold to rebut presumption of jury impartiality was met Accused HIV-positive man was convicted of three counts of ag- gravated sexual assault and two counts of forcible confinement in relation to four separate male complainants. Juror who was jury foreperson was producer of provocative "shock jock" ra- dio program. While trial was underway, juror appeared on program and spoke with pro- gram's two hosts. Three of them made derogatory comments about sexual activity between men, and laughed and mocked juror's oath. After trial, juror returned to program and there was more laughter about par- ticipants in trial, more derisive comments about lifestyle of par- ticipants, and discussions about jury's deliberations and sentence likely to be imposed. Accused appealed convictions, alleging that juror's actions undermined his right to fair trial. Appeal al- lowed; convictions set aside; new trial ordered. Conduct of juror created reasonable apprehen- sion of bias. Although there were safeguards in place to address potential sources of juror par- tiality, reasonable person would concluded that they failed. High threshold to rebut presump- tion of impartiality was met as result of: remarks about par- ticipants in trial, remarks about trial process, and failure of trial safeguards. Reasonable person made aware of these interrelated issues, having thought matter through, would perceive that ju- ror, consciously or unconscious- ly, would not decide fairly. Juror, who was foreperson, ignored tri- al judge's instructions not to dis- cuss case or jury's deliberations; publicly demeaned and ridi- culed accused and complain- ants, condemning their lifestyle and sexual practices, events at core of accused's trial; mocked juror's oath; and demonstrated lack of respect for participants and justice system. While lis- tener may well diminish signifi- cance of banter aired on "shock jock" program, hypothetical reasonable person would also be assessing comments of juror, one repeatedly instructed about impartiality and seriousness of his role in connection with seri- ous sexual assault offences that carried severe penalties. Reason- able observer would not merely be identifying bias, but rather bias that would likely affect ju- ror's ability to decide fairly. At issue was impression created. R. v. Dowholis (2016), 2016 CarswellOnt 16674, 2016 ONCA 801, Doherty J.A., M. Tulloch J.A., and M.L. Benotto J.A. (Ont. C.A.). CASELAW

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