Law Times

Law Times • December 10, 2012 ments were not paid as rule or usual or customary. Whether bonuses were to be taken into account in calculating pension depended on terms of employment agreement and terms of plan. What was said by employees of plan in telephone conversations had no bearing on issue. If OHA wanted confirmation from plan that bonuses were pensionable it ought first to have provided copy of employment agreement to plan. Once employment agreement was provided, OHA received plan's position that bonuses were not pensionable. Shaw v. Healthcare of Ontario Pension Plan (July 2, 2012, Ont. S.C.J. (Comm. List), Newbould J., File No. CV-11-9469-00CL) 219 A.C.W.S. (3d) 213 (16 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS "Holding" device had to be interpreted in manner that had regard to design and function Appeal by accused from her conviction for holding or using hand-held wireless communication device contrary to s. 78.1(1) of Highway Traffic Act (Ont.). Police officer charged accused after he saw her holding her cell phone while she stopped at red light. Accused testified that she drove home from work when her phone dropped to floor. She could not pick it up because she was driving. When she arrived at red light she had opportunity to safely retrieve her phone and she did so. It was then that officer approached her and ticketed her. She did not use phone and did not intend to use it. JP convicted her because she held phone. That was sufficient to convict her for offence was made out if accused either held phone or used it. Appeal allowed. Accused acquitted. At issue was statutory interpretation of phrase "while holding or using a hand-held wireless communication device or other prescribed device" contained in s. 78.1(1). Accused submitted that "holding" was to be interpreted in context that legislature prohibited "using" of such device. "Using" referred to use of device to receive or to transmit telecommunications. "Holding" had to be similarly interpreted in that "holding" was for purpose of receiving or transmitting telecommunications. This interpretation was not accepted. Section 78.1 was enacted to promote road safety by banning use of use of cell phones and other hand-held electronic devices. Primary focus of provision was use of such devices. Legislature also prohibited "holding" such devices for purpose of road safety. Manual manipulation of device even when not being used posed its own safety concerns. In addition, holding phone in hand, even if phone was not be- Page 15 CASELAW ing used, could interfere with driver's physical dexterity while driving. Court, however, agreed with accused that "holding" had to be interpreted contextually, not only with respect to other words used in provision but also with due regard to objective of legislature. Crown went too far when it extended prohibition to mere touching of phone or to using device even if unrelated to its design or function. "Holding" or "using" of device had to be interpreted in manner that had regard to device's design and function. To be "holding" device more was required than merely touching or briefly handling phone. It was not necessary to prohibit driver from merely touching phone just to hand it to passenger or to move it within car. Accused did not commit offence because she only moved her phone from floor to seat when it was safe to do so. Justice accepted accused's testimony in this regard and erred by convicting her since her momentary holding of phone was not "holding". R. v. Kazemi (June 20, 2012, Ont. C.J., Nakatsuru J.) 103 W.C.B. (2d) 131 (8 pp.). Assault ASSAULT CAUSING BODILY HARM Parties' behaviour was that of mutual provocation Trial of accused for offence of assault causing bodily harm. Accused and complainant were both 16 years old and they had dispute. They agreed to meet and to fight each other. At their meeting, there was some discussion about avoiding fight via apology. Complainant, however, did not want to apologize and accused and complainant got into fist fight. Complainant got worst of it. He suffered bruise to his cheek, cut to top of his head and his two front teeth were smashed back from their normal position. Teeth could not be replaced. They were supported by wires and further dental surgery would be required. Accused convicted. He did not act in self-defence. Parties' behaviour was that of mutual provocation to engage in behaviour that involved application of force to one another. Both intent to cause and causing of actual bodily harm were necessary to vitiate consent. Neither party assaulted other or could believe that they had been assaulted until bodily harm beyond trifling or transient had been caused. That only became case when accused struck blow that injured complainant's teeth. R. v. W. (A.) (July 12, 2012, Ont. C.J., Blacklock J., File No. 11Y438) 103 W.C.B. (2d) 143 (17 pp.). Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Evidence established accused could not have been drinking 15 minutes prior to roadside test Crown appealed accused's acquittals for impaired driving and driving "over 80". At trial evidence of intoxilyzer readings of 240 and 239 and observations of officers at police station, recorded on video tape, in which, according to the judge, the accused clearly looked impaired, his speech clearly sounded slurred, he was not steady and he was leaning against wall to hold himself up. Trial court found that officer did not have reasonable grounds to make breath demand when accused was stopped at RIDE program and failed ASD test on grounds that officer should have delayed roadside test for 15 minutes in order to eliminate any possibility of recent drinking and residual mouth alcohol. Appeal allowed, acquittals set aside, new trial ordered. On evidence of accused and his wife they had left concert they were attending approximately 17 minutes before RIDE stop and 27 minutes before the roadside screening test. There was simply no basis on facts to question reliability of roadside test results on basis of recent drinking and residual mouth alcohol and there was statutory duty that officer administer roadside test "forthwith". Evidence positively established that accused could not have been drinking in 15 minutes prior to roadside test. On fair reading of evidence officer honestly believed roadside test was reliable, as trial judge found, and any failure on his part to delay test for few more minutes was, at best, minor breach. R. v. Rudd (June 12, 2012, Ont. S.C.J., Code J., File No. 133/11) 103 W.C.B. (2d) 150 (7 pp.). Charter Of Rights RIGHT TO INTERPRETER Accused's preference to have trial in Tibetan not sufficient given ability to speak and read English Accused sought Charter right to Tibetan interpreter in driving over-80 charge. Accused spoke both Tibetan language as well as English. Accused had job where he was required to speak English language. Crown produced DVD tape of police interview with accused in which English language was spoken. Application dismissed. Court considered all evidence and low threshold for s. 14 Charter requirement but ruled that accused did not meet necessity requirement. Accused's preference to have trial in Tibetan language was not sufficient given his ability to speak and read English. R. v. Wangchuk (May 30, 2012, Ont. C.J., Brown J.) 103 W.C.B. (2d) 158 (11 pp.). Conspiracy CONSPIRACY TO EFFECT UNLAWFUL PURPOSE Agreement to import drugs does not occur without agreed upon provisions for payment Two accused charged, along with three others, with conspiracy to import cocaine and conspiracy www.lawtimesnews.com to launder proceeds of crime for benefit of, at direction of, or in association with, criminal organization. Crown alleged that accused conspired with another individual to bring five kilograms of cocaine into Canada inside flower containers through Federal Express parcel service. Crown relied upon intercepted conversations between accused inside one accused's vehicle to support charge. In conversations in question funding of drugs was allegedly discussed as was method of importing them from Costa Rica. Charge dismissed. There were several deficiencies in evidence which made it difficult to find conspiracy on facts. Although there was good deal of discussion about particular project, no agreement was ever reached to actually proceed with project. Where intent and fact of agreement are not explicit, court must determine if there is some credible evidence to support inference that parties had agreed to move cocaine from outside country to point inside Canada where intended recipients were agreeable to receiving drugs. Agreement to import drugs does not occur without agreed upon provisions for payment. R. v. Dixon (June 18, 2012, Ont. S.C.J., Taliano J., File No. 1778/11) 103 W.C.B. (2d) 169 (31 pp.). Murder FIRST DEGREE MURDER Charge to jury very confusing and could not be remedied by curative proviso Accused appealed his first degree murder charge alleging judge made numerous errors in charge to jury. Victim was killed by third party who arrived at residence with accused who was charged with aiding and abetting him. Judge instructed jury that intention necessary for murder was if third party intended to cause bodily harm to deceased that would likely kill him, whether or not third party knew that this was likely. Judge also did not properly instruct jury as to timing as to when third party intended to kill deceased and whether accused knew of intention in advance. Judge also instructed jury that they could consider any of her post offence conduct evidence which included flight and not helping deceased, texting deceased afterward and disposing of knife could be used to determine culpability if they reflected her consciousness of having done what she was charged with. Appeal allowed, new trial ordered. Charge to jury was in error in three issues which could not be remedied by curative proviso. Instruction permitted jury to find that third party murdered deceased without having subjective intention required by law. It was important to bring to jury's attention question of when third party's intention was formed and to assist jury with those parts of evidence that might help them with that issue. Only if intention was formed at time when accused could have known of it could question of whether she in fact knew of his intention be considered. Charge was very confusing and if jury did consider post-offence conduct evidence other than quick flight and failure to assist in addressing central issue, it ought not to have done so. R. v. McIntyre (May 30, 2012, Ont. C.A., Goudge, Feldman and Armstrong JJ.A., File No. C52478) 103 W.C.B. (2d) 193 (15 pp.). Search And Seizure DESCRIPTION OF GOODS TO BE SEIZED Gun found in ordinary search process and not found in breached terms of warrant Accused applied to exclude loaded handgun from evidence at trial. Accused was originally charged with 18 counts divided between bawdy house charges and three firearm charges which arose from execution of search warrant at accused's residence and seizure of firearm found in door panel of vehicle located in garage at residence. Accused submitted that police did not properly execute warrant since they searched and seized items from residence that issuing Justice had specifically not permitted them to search for, namely money, video surveillance equipment, and corporate records other than records obviously pertaining to spa. Application dismissed. Crown rightly conceded that by seizing money, jewelry, surveillance equipment, and corporate records that did not pertain to spa, police did not properly execute warrant. Court did not conclude on evidence that police acted in bad faith in seizing items not included or inferentially excluded by telewarrant. Gun was found in ordinary search process and not found in breached terms of warrant and would not be excluded on that basis. R. v. Caranci (June 14, 2012, Ont. S.C.J., Lauwers J., File No. 0910404) 103 W.C.B. (2d) 156 (17 pp.). Sentence DRIVING OFFENCES Accused knew he was prohibited from driving but chose to operate snowmobile while impaired Accused was sentenced to four years for impaired driving causing and six months consecutive for driving while disqualified after court gave him credit for two months in pretrial custody. Court emphasized that accused knew he was prohibited from driving but chose to operate snowmobile while impaired and struck maple tree killing his passenger. Accused still had not admitted he was driver and thus was not credited with remorse. Accused had sole custody of four-year-old and was planning to marry and was subject to form of house arrest for past three years. Bail release conditions were taken as mitigating circumstance. R. v. Cook (May 17, 2012, Ont. S.C.J., O'Neill J., File No. CR 2009-15) 103 W.C.B. (2d) 210 (17 pp.). LT

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