Law Times

Law Times • march 27, 2017 Page 15 www.lawtimesnews.com disability (LTD) beneficiaries were dismissed. LTD claimants were bound to prior agreement that their claims were to rank as unsecured claims that shared pari passu with other unsecured claims against Canadian debt- ors and that any claim for prior- ity treatment had been released. Plan was not contrary to ss. 7 and 15 of Charter of Rights and Freedoms with respect to LTD claimants. Nortel Networks Corp., Re (2017), 2017 CarswellOnt 1120, 2017 ONSC 700, Newbould J. (Ont. S.C.J. [Commercial List]). Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] Trial judge erred in holding that accused's Charter rights were breached Accused's son was under in- vestigation for murder. Police obtained wiretap authorization naming four "principal known persons" including accused and his son. Accused was believed to have knowledge of his son's involvement in murder and to have blocked police access to his son during initial investigation. As result of intercepted com- munications, police formed belief accused was involved in drug trafficking. On arresting him, police discovered large quantity of cash and heroin in car in which accused was trav- elling. At trial on drug charges, accused challenged validity of wiretap authorization. Trial judge granted application, or- dered exclusion of seized heroin and cash, and accused was ac- quitted. Crown appealed. Ap- peal allowed. Acquittal was set aside and new trial was ordered. Test which reviewing judge was to apply was whether, in light of record amplified on review, ITO contained sufficient reli- able evidence that might rea- sonably be believed on basis of which authorizing justice could have concluded that conditions precedent required to be estab- lished were met. Threshold for naming person in affidavit and authorization as "known per- son", within meaning of s. 185(1) (e) of Criminal Code, was not onerous. Trial judge's ultimate conclusion that "all we have is the simple fact of a father and son relationship and nothing else" resulted from his assess- ment of evidence in piecemeal fashion. When evidence was assessed cumulatively, taking into account larger context, it went much further: (i) accused's son was prime suspect in mur- der; (ii) son lived with accused; (iii) son worked at his father's pizza business and continued to do so after murder; (iv) in- formation obtained by police led them to believe two of son's friends were present with him at time of murder; (v) day after murder, at least one of those friends visited pizza shop when son was not there, but accused was; (vi) accused was less than candid in what he told officers who visited his pizza store; and (vii) accused's driving on two occasions strongly suggested he was aware he was under police surveillance. Trial judge erred in holding that accused Charter rights were breached because ITO did not contain sufficient evidence to meet "may assist" standard. R. v. Hafizi (2016), 2016 Car- swellOnt 19469, 2016 ONCA 933, E.E. Gillese J.A., Paul Rou- leau J.A., and David Brown J.A. (Ont. C.A.); reversed (2014), 2014 CarswellOnt 8547, 2014 ONSC 3547, Robert N. Beau- doin J. (Ont. S.C.J.). EXTRAORDINARY REMEDIES Habeas corpus Habeas corpus hearing adjourned pending outcome of bail review Accused was detained awaiting trial on number of counts un- der Immigration and Refugee Protection Act in respect of ad- vising on immigration matters as non-lawyer without authori- zation to do so. She was origi- nally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015 she was arrested and charged with breaching bail and committing further offences under Act. Fol- lowing revocation hearing, her bail was cancelled in November 2015 and she was detained on all charges on December 8, 2015 following show-cause hearing. Preliminary hearing was com- menced for each of May 2014 charges and September 2015 charges. Before receiving deci- sion on preliminary hearings, Crown preferred direct indict- ment on December 11, 2016, with respect to all charges un- der Act. Direct indictment was filed under s. 577 of Criminal Code. Original charges, includ- ing breach of bail charges, were stayed on January 5, 2017. While detained, accused initiated multiple proceedings including two-part habeas corpus applica- tion. Proceedings commenced by accused were dismissed and she remained in custody pend- ing trial under new indictment. Accused appealed denial of ha- beas corpus relief. Decision of application judge was set aside for failure to give adequate rea- sons and new bail review hear- ing was to be held forthwith. New habeas corpus hearing adjourned pending outcome of bail review. Under s. 523(1.2) of Code, previous detention order continued to apply in respect of new indictment. Purpose and effect of s. 523(1.2) of Code are to continue previous detention order and make it apply to new indictment. Any stay of original charges has no effect on ongo- ing status of original detention order. Accused had now spent 18 months in custody. Over 16 months had passed since her re-arrest on charges that she breached her bail. While new charges she allegedly commit- ted while on bail were pro- ceeding, charges that she failed to comply with bail had been stayed. Maximum sentence for five of counts with which ac- cused was charged was two years and five years for sixth count. Accused had been in custody for further six months since dismissal of habeas corpus application and had two further bail reviews. Serious liberty is- sue now existed and this issue was best addressed in context of bail review. Although ac- cused had argued issue before it did not appear to have been fully considered. More time had passed and breach of bail charges had now been stayed, and these were new factors that may well affect considerations of judge when determining is- sues on bail review. R. v. Codina (2017), 2017 CarswellOnt 1109, 2017 ONCA 93, K. Feldman J.A., Paul Rou- leau J.A., and K. van Rensburg J.A. (Ont. C.A.). NARCOTIC AND DRUG CONTROL Offences Accused had no reasonable explanation of privacy in fob data On third occasion of surveil- lance, police observed accused engaged in counter-surveillance manoeuvres while driving from his residence to underground garage. Police continued to fol- low and observed him pull up to loading docks in isolated area behind mall, remove small box from car and hand it to another driver. Police moved in, discov- ered box of cocaine from trunk and arrested accused and driver. Accused was convicted on drug trafficking. Accused appealed from conviction. Appeal dis- missed. Trial judge made no er- ror in concluding that accused had no reasonable explanation of privacy in fob data, fact that accused attended at 11th f loor or ultimate information that po- lice were able to conclude from this date, which was accused's use of unit. Act of retrieval in response to narrow and specific request from police did not, on this record, make property manager state agent as fob data and surveillance video were recorded in ordinary course. There were reasonable grounds for arrest. Fact that accused was not charged when engaging in conduct that bore some of same marks of illegality did not ren- der his conduct on that day any less suspicious and could not immunize him from reasonable suspicion on future occasions. Trial judge made no error in not adverting to October 2010 transaction in concluding both that there were reasonable and probably grounds to arrest ac- cused and that reasonable per- son would in position of detec- tive would have also concluded that there were reasonable and probably grounds for arrest. R. v. Saciragic (2017), 2017 CarswellOnt 1107, 2017 ONCA 91, K. Feldman J.A., M.L. Ben- otto J.A., and B.W. Miller J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from sentence Sentence was not manifestly unfit Accused, on way to bring mari- juana to friend, discarded item as he ran from police. Police of- ficer tackled accused and found firearm nearby. Accused was convicted of weapons offences and sentenced to 43 months of imprisonment. Accused ap- pealed from conviction and sen- tence. Appeal dismissed. Trial judge's finding of aggravating factor that accused was engaged in low level commercial drug trafficking was open to him on evidence that accused was in possession of large amount of cash and loaded handgun. Both suggested accused was in business of selling drugs rather than delivering them to friend as favour. Trial judge was alive to accused's youth, absence of criminal record and relatively positive prospects and imposed sentence within established range for this kind of offence even for relatively young first of- fender. As trial judge found, ac- cused not only f led from police while armed with loaded hand- gun which was very dangerous but disposed of weapon where it could easily have been found by young children. Trial judge did not err in principle in imposing sentence that was not manifestly unfit. R. v. Mansingh (2017), 2017 CarswellOnt 832, 2017 ONCA 68, Doherty J.A., R.A. Blair J.A., and P. Lauwers J.A. (Ont. C.A.); affirmed (2016), 2016 Carswel- lOnt 189, 2016 ONSC 94, R.F. Goldstein J. (Ont. S.C.J.). No basis for appellate interfere with sentence Jury found HK guilty of con- spiracy to import and importing heroin. Trial judge imposed con- current sentences of 16 years in penitentiary, less pre-disposition credit of 4 months. HK appealed convictions on several grounds. He also sought leave to appeal sentences imposed upon him. Appeal from conviction dis- missed; leave to appeal sentence granted, but appeal from sen- tence dismissed. Sentence im- posed was consistent with prec- edent. It ref lected no error in law or in principle. No basis upon which we are entitled to inter- fere. Even if court were to accept that trial judge erred in reference to HK's travel to and from India for drug importation purposes, consideration of reasons for sen- tence as a whole revealed that HK was sentenced for role in recruiting courier, not for some higher or more culpable level of involvement. G pleaded guilty, a factor that greatly inf luenced sentencing decision in his case. HK cannot claim benefit of such mitigation. R. v. Kler (2017), 2017 Car- swellOnt 833, 2017 ONCA 64, E.A. Cronk J.A., R.G. Juriansz J.A., and David Watt J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Detention and release after trial Board erred by imposing mandatory order on hospital Escorted visits. Accused had mental illness caused by severe head injury as child and had been detained at high security unit of mental health centre (hospital) since March 1989 fol- lowing commission of sexual assaults. Ontario Review Board ordered accused's continued detention but granted him two escorted passes of four hours each per year to have meal at his mother's home. Amended dis- position removed hospital's dis- cretion regarding escorted visits. Hospital appealed disposition allowing escorted passes. Ap- peal allowed. Board must bal- ance twin goals of public safety and fairness to detained person, but hospital requires f lexibility to implement disposition in ac- cordance with day-to-day needs of detained person. Efficacy and propriety of any visit by accused to his mother would depend on his clinical state, availability of staff, consent and convenience of his mother, and any other relevant circumstances. Board erred in failing to appreciate that hospital was already required to implement discretionary order if circumstances permitted it. By making order mandatory, with no discretion accorded to hospital to implement it only if and when circumstances per- mitted for benefit of accused and while ensuring public safe- ty, Board erred in law and acted unreasonably. Board also erred by imposing order that affected accused's mother directly by re- quiring her participation with- out notice to her or her consent. Board did not misapprehend evidence of accused's treating psychiatrist that accused's risk could be managed if he were es- corted to his mother's home and that such visits would likely be therapeutic for him. Board erred by imposing mandatory order on hospital to take accused for up to two escorted visits to his mother's home for meal, rather than make order with imple- mentational discretion by hos- pital. Mandatory part of order was set aside and original order with discretion to hospital was reinstated. Scott, Re (2016), 2016 Car- swellOnt 21221, 2017 ONCA 94, K. Feldman J.A., J.C. MacPher- son J.A., and C.W. Hourigan J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 6363, K. Chown Alt. Chair, S. Kert Mem- ber, D.H. Braden Member, C.D. Webster Member, and J. Cyr Member (Ont. Review Bd.). CASELAW

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