Law Times

Law times • OctOber 1, 2012 on death of wife. Sorkos v. Sorkos Estate (June 4, 2012, Ont. S.C.J., Tausend- freund J., File No. 61228) 216 A.C.W.S. (3d) 1054 (8 pp.). Application by applicant for order declaring that testator died on day he disappeared or, in alternative, declaration that testator was "absentee" and or- der appointing applicant ESTATE ADMINISTRATION Not appropriate to make declara- tion of death committee of property of tes- tator. Testator disappeared in 2007, and had not been seen or heard from by any acquain- tance, friend, or member of his family since. Applicant was brother of testator. In 2006, tes- tator executed will, appointing applicant as sole executor and trustee. Application granted. It was declared that testator was absentee, and applicant was ap- pointed committee of testator' as property. It was not appropriate to make declaration of death. There was no suicide note or any other direct statement or demonstration of decision of testator to commit suicide. Puffer (Re) (June 20, 2012, Ont. S.C.J., Lederer J., File No. 05- 30/12) 216 A.C.W.S. (3d) 1055 (7 pp.). s ONTARIO CRIMINAL CASES Assault Accused and complainant expe- rienced conflict during univer- sity class. Complainant testified that he was shoved by accused, who also spit gum into his face. Complainant testified that ac- cused followed him outside and asked several times if he wanted to fight. Complainant testified that when he approached ac- cused to talk, accused punched him in face numerous times with closed fist. Complainant testified he was struck in head at least ten times by weapon that was black, baton-like, and extended about three feet. Ac- cused testified that he acted in self-defence. Accused denied using weapon and indicated that complainant' ASSAULT WITH WEAPON Accused's response disproportionate and intended to punish caused by ring he was wearing. Accused found guilty. It is ques- tionable that complainant' s injuries were juries were caused solely by ac- cused' s in- supported material inference that accused introduced blunt instrument into his struggle with complainant when he lost upper hand. Accused' s ring. Nature of injuries tion that he was merely insult- ing and immature in class mini- mized his anger over perceived affront. Accused' s asser- was disproportionate and in- tended to punish, and he could not benefit from s. 34(2) or s. 35 of Criminal Code. Court did not have reasonable doubt s response that accused was aggressor and initiated struggle with punch. Court did not have reasonable doubt that, when challenged, accused resorted to use of blunt instrument and excessive force to overcome challenge to his ag- gression. R. v. Sritharathas (May 30, 2012, Ont. C.J., Feldman J.) 101 W.C.B. (2d) 583 (8 pp.). Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officer' Accused charged with posses- sion of oxycodone and posses- sion of oxycodone for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. Officers saw accused and his brother outside of variety store and pulled up to curb to speak to them. Officers asked for identification and accused provided false name. Officer testified that accused was shiſt- ing and cantering his body away and there was bulge in his right sleeve. Officer testified that as accused pulled his arm back, bag of pills fell below his sleeve and became visible. Accused testified that he attempted to hide his tattoos from police to conceal his identity. Accused testified that as he tried to hide his tattoos, officer grabbed his leſt forearm, pushed up his sleeve, and pulled out bag of drugs. Application allowed, evidence excluded. Accused was clear and detailed witness, did not exaggerate his evidence, and was not shaken in cross- examination. Officer' evasive and misleading s testimony was ny on her interaction with ac- cused was not credible. Officer hedged her testimony, was ner- vous, and was not fully frank. When officer observed accused being half-heartedly co-opera- tive and evasive, she took mat- ters into her own hands, took accused by his arm, and pushed up his sleeve. Officer conducted unauthorized and illegal search of accused. At no point did of- ficers tell accused or his brother that they were free to go. While officers may have started out making general inquiries of two men, it quickly evolved into fo- cused investigation into them. Marked cruiser blocked ac- cused' s testimo- did not leave, even though he had provided officers with false name, supported his testimony that he did not feel free to do so. Reasonable person in accused' s path. Fact that accused CASELAW false identity, that did not ex post facto turn arbitrary de- tention into investigative de- tention. Accused' right was infringed. Breaches were both serious, as officers were not acting within limits of their authority. Officer' s s. 9 Charter in looking at accused's arm were s actions deliberate, and her testimony was evasive and misleading. There was strong need to dis- sociate court from officer' duct in order to preserve public confidence in and ensure state adherence to rule of law. Ac- cused' s con- his body or not was over-ridden by officer' that breaches were serious and multiple, admission of evidence would bring administration of justice into disrepute. R. v. Assiu (May 25, 2012, Ont. C.J., Nakatsuru J.) 101 W.C.B. (2d) 595 (10 pp.). Accused charged with posses- sion of cocaine, marijuana, psi- locybin, MDMA, oxycodone, morphine, methamphetamine, and ketamine for purpose of trafficking. Accused applied for stay of proceedings based on breach of s. 11(b) Charter rights. Accused wished to obtain sealed search warrant before having Crown pretrial. There was mis- communication regarding date of Crown pretrial that caused delay. Total length of time from arrest to trial date was 20 months. Application dismissed. Neutral intake period was 4 months 27 days given that there were two co-accused with mul- tiple drugs seized, bail hearings, and counsel did not attend at time case was initially spoken to. It should not have taken Crown so long to obtain search war- rant and Information to Obtain, and it had to take responsibility for some of that delay. Lack of disclosure did not prove insur- mountable obstacle to conduct of Crown pretrial. Accused' Accused did not prove he had suffered actual prejudice REASONABLE TIME TRIAL WITHIN circumstance would conclude that he had no choice but to comply with officers. When officers told accused that they were to check his identifica- tion, reasonable person would have assumed he was detained. When detention began, there were no reasonable grounds to suspect that accused was con- nected to particular crime and that detention was reasonably necessary in circumstances. Although accused gave officer s position not to conduct pretrial until search warrant was provid- ed was unwarranted and he had to shoulder some of responsibil- ity for that delay. Time taken to hold judicial pretrial was part of inherent requirements of case. Court could not accept first date that defence counsel indicated it was available and prepared to go to trial. No notice of application had been served and defence would not have been able to comply with Rules of Court. De- fence could not have been prop- erly ready for trial at time indi- cated. Most realistic assessment of time required by defence to be ready and available for trial was one month. Total inherent delay was 8 months 19 days, defence delay was 2 months 11 days, Crown delay was 2 months 12 days, and institutional delay was 6 months 22 days. Total Crown and institutional delay was 9 months 4 days, which was with- in guidelines. There was no actu- s www.lawtimesnews.com s choice to expose part of s deliberate act. Given al prejudice to accused's fair trial interests or security of person. While house arrest condition restricted accused' PAGE 19 officer's evidence or evaluate his credibility. Appeal given that there were exceptions to condition degree could not be more specifically assessed. Ac- cused did not prove that he had suffered actual prejudice. Delay was not so long and unreason- able that prejudice was inferred. Offences were serious and soci- ety had interest in seeing charges tried on their merits. R. v. Shea (May 25, 2012, Ont. C.J., Nakatsuru J.) 101 W.C.B. (2d) 598 (13 pp.). s freedom, Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Accused charged with impaired care or control and "over 80" care or control. Police found accused in driver' presumed to be in care or control Accused in driver's seat and in parking lot of bar. Keys were in ignition and engine was running. Accused was in normal driving position except that his head was back and his eyes were closed. It took couple of attempts to wake accused and when he did wake he stared and made no attempt to open window or door. Accused exhibited indicia of impairment and was arrested for impaired care or control. When questioned between tests by breath techni- cian he said that he planned to drive when he felt okay. Accused testified he was tired and nearly broke so he went to his car to sleep. Accused testified that he planned to sleep in car overnight until morning when he would either go to his mother' s seat of vehicle parked his friend's place. Accused found guilty. Accused was in driver's s or to seat and was presumed to be in care or control. Even if accused' evidence was accepted, it was insufficient to rebut presump- tion. Court did not believe that accused was living out of his car or that he would not drive until sufficient time had passed that he would be clearly sober. It was most probable that accused in- tended to drive when he believed he was okay to do so. Apart from presumption, accused was in de facto care or control. Even if ac- cused had initial intention to not drive, there was real risk that he would change his mind. R. v. Almeida (May 22, 2012, Ont. C.J., Duncan J.) 101 W.C.B. (2d) 624 (8 pp.). s Accused appealed conviction for driving while operating hand-held communication de- vice. Accused argued that device was not proven beyond reason- able doubt to be hand held wire- less communication device, or that it was capable of receiving or transmitting telephone com- munications at time of offence. Accused argued that justice of peace failed to properly analyze phone accessible to accused without blue tooth devices Justice satisfied that cell PROVINCIAL REGULATION Defence counsel never submit- ted that credibility was issue or set out reasons for concerns for justice of peace to consider before decision was made. Of- ficer' dismissed. dicted and not compromised by cross-examination. Justice did not err in relying on officer' s evidence was uncontra- testimony, even though she did not specifically say she found it to be credible. Officer' that accused was holding cell phone was corroborated by exis- tence of cell phone or flip phone in centre console. Reliance on common dictionary meaning of cell phone would allow jus- tice to infer that cell phone was wireless communication device as set out in legislation. Officer saw accused with his leſt hand to his leſt ear, with cell phone in his hand, and talking. While of- ficer did not inspect phone, jus- tice was satisfied that cell phone was accessible to accused with- out blue tooth devices or hands free devices. Reasonable infer- ence could be drawn by justice that accused was talking on cell phone which was not only ca- pable of receiving and transmit- ting, but which was actually do- ing so at time. R. v. Gill (May 4, 2012, Ont. C.J., Ready J.) 101 W.C.B. (2d) 629 (13 pp.). s opinion Verdict Ruling on ambiguous jury ver- dict. Accused was found guilty by jury of sexual assault and assault. Crown told jury that they could find that accused committed sexual assault by touching com- plainant' Different routes to conviction could lead to different penal liabilities UNANIMITY digitally, or having sexual inter- course with her, all without her consent. Accused argued jury' s breasts, penetrating her guilty verdict was ambiguous and that trial judge had to determine facts independently to arrive at proper and fit sentence. There was ambiguity in verdict given Crown' s routes to conviction could lead to different penal liabilities upon sentence. Court determined facts regarding sexual assault focus- ing specifically on evidentiary matters raised by defence. Jury did not believe accused' s submissions. Different that he did not commit offence. Main issue in trial was consent. Digital penetration occurred without consent. Complainant testified that sexual assault was one continuous incident mov- ing from touching her breasts to digital penetration to sexual inter- course. Incident was single event and complainant' s evidence tablished with clarity that she was not consenting at any time. For purposes of sentencing, accused engaged in digital penetration and intercourse, both without com- plainant' s evidence es- R. v. Roberts (June 4, 2012, Ont. S.C.J., Coats J., File No. 23/11) 101 W.C.B. (2d) 663 (7 pp.). LT s consent. s

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