Law Times

Law Times • November 19, 2012 for declaration that registered easement covered limited uses, for order requiring neighbours to restore her property, and for permanent injunction restrain- ing neighbours from interfer- ing with her use of her property. Owner and neighbours had pur- chased building lots served by common laneway. In order to access laneway, neighbours had been granted right of way over part of owner' bours constructed home without making provision to park motor vehicles on their property. Neigh- bours regularly parked on owner' s property. Neigh- property. Neighbours excavated part of owner' s tablish driveway from common laneway to their home. Neigh- bours also installed retaining wall on owner' s property to es- granted. Easement was valid con- tractual easement. Relevant part of easement was "for the purpose of vehicle traffic over the common lane in order to access their lots" s property. Application Neighbours did not have unre- stricted easement. Easement had to be construed having regard to circumstances existing at time easement was granted. Neighbour should have known from circum- stances existing at time that they could not do what they intended to do. Neighbours could have con- structed home in such way as to fit most of their driveway on their property but they had not given it any thought. Allowing neigh- bours to keep driveway on owner' . property would have amounted to expropriation without compensa- tion. Adili v. Donn (July 17, 2012, Ont. S.C.J., Cavarzan J., File No. CV- 10-24003) 218 A.C.W.S. 456 (31 pp.). s (3d) COURT OF APPEAL FEDERAL Courts Federal judge erred in failing to give effect to doctrine of collateral attack This was appeal of Federal Court Judge' ABUSE OF PROCESS ing respondents' appeals from prothonotary' thonotary struck out notices of application filed by respondents in Federal Court. Notices of ap- plication challenged issuance of search warrants under s. 487 of Criminal Code (Can.). Notices of application were struck out as abuse of process. On appeal judge set aside prothonotary' s decision allow- s decision. Pro- decision. Appeal allowed. Nei- ther prothonatary nor judge di- rectly addressed doctrine of col- lateral attack. Search warrants issued by provincial authorities were orders. Orders must be challenged in forum in which they were made. Whether CRA' s practice of obtaining search warrants exclusively under s. 487 of Code was legal should be decided by court having ju- risdiction over warrants. Fact that respondents' applications were not obviously doomed to failure on merits did not make s them any less of collateral attack. Federal judge erred in law in failing to give effect to doctrine of collateral attack in deciding whether respondents' notices of application should be allowed to proceed. Siggelkow v. Canada (Attorney General) (Apr. 24, 2012, F.C.A., Pelletier, Gauthier and Stratas JJ.A., File No. A-267-11) Deci- sion at 205 A.C.W.S. (3d) 7 was reversed. 102 W.C.B. (2d) 415 (10 pp.). FEDERAL COURT Ruling on admissibility of evi- dence. Two Canadian citizens were found to have allowed two foreign nationals to use their pass- ports and to have provided false information in support of replace- ment applications. Citizens' pass- ports were revoked for five years. Citizens commenced application for judicial review. Citizens filed affidavit evidence outlining their difficulty with English and lack of understanding of statements prepared on their behalf during investigation. Affidavit evidence also noted their son could have stolen passports and that they did not know foreign nationals who were caught with their pass- ports. Citizens wished to cross- examine investigators prior to hearing. Evidence admissible in part. Only parts of affidavits relat- ing to citizens' language difficul- ties were admissible. Language difficulties went to procedural fairness, which was type of issue for which evidence could be filed on judicial review. Finding actual breach of procedural fairness was not prerequisite to considering this evidence. Evidence relating to son and foreign nationals went to merits of decision and so was not admissible. This evidence could have been placed before adjudica- tor. Admitting this evidence at this stage would have been completely inimical to judicial review process. There was no basis for allowing cross-examination of investiga- tors. Slaeman v. Canada (Attorney General) (May 25, 2012, F.C., Gleason J., File No. T-1337-11) 218 A.C.W.S. (3d) 253 (27 pp.). Language difficulties went to procedural fairness Administrative Law JUDICIAL REVIEW ONTARIO CRIMINAL CASES Appeal Appeal by Crown from deci- sion of summary conviction appeal judge that set aside ac- cused' Accused was "present" by virtue of designation GROUNDS with blood alcohol level above legal limit. On third date sched- uled for accused' s conviction for driving not appear because counsel did s trial she did CASELAW not remind her of it. Counsel contacted accused but she failed to attend because of her em- ployment obligations. About 21 months earlier accused signed designation form. In it she des- ignated her counsel to appear on her behalf in proceedings where her attendance was not required by law or judicial order. Trial judge was unimpressed with ac- cused' assignment of priority work obligations. Judge then ar- raigned accused in absentia and entered not guilty plea on her behalf. Crown elected to pro- ceed by summary conviction. Since outstanding disclosure request was not answered judge granted adjournment request by accused' s failure to attend and her to her new trial date for three months later. Trial proceeded as sched- uled and accused was convicted. Appeal was allowed because trial judge erred in exercising his discretion to proceed in ab- sence of accused. Conviction was quashed and new trial was ordered. Appeal allowed. Leave to appeal was granted. Merits of appeal were strong. Issues raised extended well beyond circum- stances of this case. Reasons of appeal judge reflected legal er- ror and they could not stand. Since designation was filed ap- pearance of designated counsel was equivalent to accused being present, unless presiding judge ordered otherwise. Appeal judge erred when she concluded that physical absence of accused on date of arraignment and entry of guilty plea contravened her right to be present under s. 650(1) of Criminal Code. Accused was "present" by virtue of designa- tion. Even if physical presence of accused was required what occurred could have been cor- rected by curative proviso in s. 686(1)(b)(iv) of Code. Appeal judge, however, did not consider that provision. Section 686(1)(b) (iv) applied because accused' s counsel and fixed tual absence from arraignment was procedural irregularity. Trial judge had jurisdiction over class of offence for which accused was being charged. Accused suffered no prejudice from arraignment and entry of her plea that oc- curred in her absence for no evi- dence was adduced and matter was adjourned. Appeal judge' s ac- order was set aside and original conviction and sentence im- posed at trial was restored. R. v. Cole (May 25, 2012, Ont. C.A., Watt J.A., File No. C54302) 102 W.C.B. (2d) 534 (10 pp.). s Charter of Rights Application by accused to ex- clude his statements made dur- ing his transport from Quebec to Ontario, to undercover of- ficers and to detective in Sud- bury police station. Accused was charged with first degree mur- der. He was provided with medi- cation but aſter several days in Fact accused not provided with medication did not affect voluntariness of statements SELF-INCRIMINATION www.lawtimesnews.com jail he attempted suicide. Ap- plication dismissed. Statements were given voluntarily. Accused' message to detective was clear. He wanted cigarettes and he was clear that cigarettes would allow him to calm down and tell truth. Accused did not suffer from any condition that deprived him of exercising choice whether or not to speak to detective. Any lack of medication did not deprive ac- cused of ability to choose wheth- er or not to speak to detective. Accused was also not subjected to oppressive circumstances that caused him to provide state- ments. Even though he was de- tained in holding cell for five days leading up to interview he was clothed and fed and he was taken to hospital at his request. Fact that accused was not pro- vided with his medication did not affect voluntariness of his statements for he had not been taking them for several months before interview occurred. Ac- cused' s 7 of Canadian Charter of Rights and Freedoms was not breached based on failure to provide his medication, either with regard to statements he made to un- dercover officers or to detective. Accused did not display any symptoms of mental illness or of serious psychological stress during trip to Sudbury or during interview with detective. He was coherent and articulate during those times. There was no con- nection between police conduct, accused' s right to silence under s. evidence he sought to exclude. Even if s. 7 was breached evi- dence was admitted for to do so would not bring administration of justice into disrepute. R. v. Lavallee (May 7, 2012, Ont. S.C.J., Gauthier J., File No. 7/10) 102 W.C.B. (2d) 495 (27 pp.). s suicide attempt and Accused appealed disposition of Review Board, which ordered that he remain subject to con- ditional discharge. In 1985, ac- cused was found not guilty by reason of insanity of one count of second degree murder. At time of offence accused was in transient psychotic state sec- ondary to alcohol. Accused had spent some 15 years in various psychiatric facilities, and bal- ance of time in community on conditional release. Accused' Board's decision entered into realm of speculation Mental Illness REVIEW current diagnoses were alco- hol and substance abuse, in full and sustained remission, and personality disorder with nar- cissistic and antisocial traits. Accused' s psychiatrist and treating hos- pital supported his request for absolute discharge. Influenced by accused' s outpatient forensic conviction in 2008, Board con- cluded that, absent supervision, there was real likelihood that ac- cused' s lifestyle and assault would escalate to level where he posed significant risk of physical and/or psychological harm to s behaviour in community PAGE 15 others. Accused argued he was entitled to absolute discharge. Appeal allowed, accused dis- charged absolutely. Board' position was unreasonable and could not be supported by evi- dence. Board' s dis- undue emphasis on relatively trivial conduct, ignored opinion of treating psychiatrist, and en- tered into realm of speculation. Legal threshold of significant threat s decision placed not satisfied and decision could not stand. Assault was minor in nature, as altercation ensued be- tween accused and neighbour over cat, and there was no indi- cation of any physical or psycho- logical harm. With exception of conviction for assaulting police officer in 1999, which occurred when accused was not yet drug and alcohol free, there had been no other convictions for assaul- tive behaviour since index of- fence. Accused' to safety of public was tion reflected lack of financial resources, not choice in setting that exposed him to greater risk of conflict with law. Accused' s accommoda- to live result of conducting himself ap- propriately, and not his father' supervision. Board provided no basis for its rejection of psy- chiatrist' s good behaviour was s that accused would not revert to drug or alcohol use. There had been no concerning incidents since s unequivocal opinion and there was no evidence that he posed real risk of serious physical or psychological harm to individuals in community. Vancurenko (Re) (July 20, 2012, Ont. C.A., Laskin, Cronk and Hoy JJ.A., File No. C54732) 102 W.C.B. (2d) 498 (7 pp.). accused's 2010 hearing, Sentence Accused was given concurrent sentences of 42 months for two counts of making child por- nography as well concurrent sentences of 2 years for posses- sion of child pornography and 1 year concurrent for viewing and possessing digital file of child pornography. Denuncia- tion and general deterrence were primary objectives with large volume of pornography found on his computer. Accused, aged 45, was first-time offender who was gainfully employed in tele- vision industry. There was no presentence report or evidence that accused sought counselling or showed remorse. Aggravat- ing factors were accused actively downloading content, storing it permanently under innocent name and sharing it with oth- ers on internet. Videos were of graphic nature of young girls en- gaging in various sexual acts in- cluding rapes. Court noted that accused had lost his employ- ment and lived with his parents over last four years. R. v. Pelich (July 10, 2012, Ont. S.C.J., Dunnet J., File No. 10- 50000653-0000) 102 W.B.C. (2d) 515 (8 pp.). CHILD PORNOGRAPHY No evidence that accused sought counseling or showed remorse LT

• Cover