DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
CHARTER OF RIGHTS
& FREEDOMS
EXCLUSION OF EVIDENCE – The
court admitted evidence seized in a
search of appellant even though his
detention and arrest were arbitrary
and unlawful.
Appeal from conviction for breaches of
a recognizance and possession of a prohibited weapon. A patrolling officer had
noticed a vehicle parked on a street. He
was subsequently called to a location where
an assault had occurred which was allegedly
committed by three Hispanic males. The
officer noticed the same vehicle he had
seen parked earlier and observed four Hispanic males in the vehicle. He followed the
vehicle and stopped it in order to further
investigate the assault. After performing a
CPIC search, the officer noted that appellant, a passenger in the vehicle, was in
breach of his bail condition by not complying with his curfew. He arrested him.
Appellant was searched and the officer
found a set of brass knuckles on him and a
cell phone, which also breached his bail.
Appellant argued that the evidence should
have been excluded because he was arbitrarily detained.
HELD: Appeal dismissed. Although
appellant’s detention and arrest were arbitrary and unlawful, the evidence should
not be excluded under subs. 24( 2) of the
Charter. The officer had no reasonable
grounds to suspect that any of the occupants in the vehicle were implicated in the
assault. The stopping of the vehicle was
unlawful. The search incidental to the
arrest was also in violation of the Charter.
While the Charter violation in this case was
more than a mere technical breach, it did
not amount to a severe or deliberate act.
Because the evidence obtained was real, it
was highly reliable and central to the
Crown’s case. There was an over-arching
societal concern to insure that the conditions of release were respected. The administration of justice would be called into
disrepute if the evidence were excluded.
R. v. Moran, [2010] O.J. No. 1356,
Ont. S.C.J., Gans J., Mar. 31/10. Digest
No. 3001-001 (Approx. 7 pp.)
SEARCH AND SEIZURE – A search
conducted by police breached s. 8 of the
Charter but the evidence seized during
the search was admitted into evidence.
Application for exclusion of firearms
and ammunition seized and observations
made by police officers during the execu-
tion of the search warrant on the basis that
there were insufficient grounds in the
information to obtain to justify its issuance
and that excessive force was used during
the search. Police officers observed appli-
cant throw a firearm out of a second storey
bedroom window during the execution of
the search warrant. Two additional fire-
arms were located in the home. The infor-
mation disclosed that a confidential
informant advised police that three guns
were located in the house occupied by
applicant. How the confidential informant
knew this fact was not disclosed. The affi-
davit also disclosed that applicant was
associated with a gang which dealt in nar-
cotics and guns and which was violent.
TRIAL WITHIN A REASONABLE
TIME – The trial judge did not err in dis-
missing accused’s application for a stay
due to unreasonable delay.
Appeal from conviction for conspiracy
to traffic in cocaine. Accused argued that
the trial judge erred in dismissing his
application for a stay due to unreasonable
delay Accused and three co-accused were
charged in 2004. A trial was scheduled to
commence in April 2006 but had to be
postponed when a co-accused re-elected
trial by judge and jury. The trial began in
April 2008 and was completed in June
2008. Accused did not take issue with the
27-month inherent time requirement but
argued that the judge erred in finding that
he had waived seven months of the delay
because his counsel was unavailable for
trial and in failing to infer prejudice by
reason of the length of the overall delay.
HELD: Appeal dismissed. The trial
judge erred in law in finding that the lack
of availability of accused’s counsel for a
proposed fall 2007 trial date amounted to
waiver because the direct cause of the
need for a new trial date was the re-elec-
tion by the co-accused. The judge also
erred in finding that accused contributed
to some of the delay by failing to take
affirmative action to expedite matters,
and by failing to put the Crown on notice
the delay was becoming unreasonable.
Accused, however, did not point to any
evidence that might have demonstrated
how the delay in fact prejudiced his ability
to make full answer and defence. The risk
of prejudice to accused’s right to make full
answer and defence was minimal. While
some prejudice could have been inferred
from the prolonged delay, it did not extend
beyond what most accused individuals
experienced when faced with criminal
proceedings. The judge did not err in find-
ing that the interests of society to have a
serious charge proceed to trial outweighed
the interests of accused for a trial within a
reasonable time.
CIVIL PROCEDURE
DELAY – While a delay of 15 years in
prosecuting an action was inordinate,
respondents were not seriously preju-
diced by the delay.
Appeal from an order dismissing appellant’s claim against its former accountants
for want of prosecution. The claim was for
breaches of fiduciary duty, statutory duty,
contract, constructive trust and civil conspiracy. Appellant commenced its action in
1994. Criminal charges against two of the
accountants arising from the same set of
facts intervened to delay the progress of the
action until 2001. Lengthy examinations
for discovery of one of the accountants took
place in 2002. In 2006, the accountants
sought to have appellant’s claim dismissed
for want of prosecution. Although the
judge found the post-2001 delay inexcusable, he declined to dismiss the action
because the accountants had not shown
they had been prejudiced by the delay.
After the decision, there was some progress
on the action until the fall of 2008. Appellant missed a couple of deadlines for providing documents and satisfying undertakings. The accountants threatened another
dismissal application but then discovered
that counsel for appellant had been out of
the office, recovering from injuries he sustained in an accident, from November
2008 to February 2009. After his return,
counsel for appellant still failed to meet
extended deadlines for production and the
accountants applied to have the action dismissed. The judge again found the delay
inordinate, but this time found the accountants had been prejudiced. He also noted
the detrimental effect to the administration of justice that such delay caused.
HELD: Appeal allowed. The delay of
more than 15 years was clearly inordinate.
It was not the duty of the accountants or
the case management judge to ensure the
case moved ahead expeditiously. A significant amount of the delay was inexcusable.
The judge erred in finding the serious level
of prejudice necessary to the accountants
to warrant dismissing the action. The
impairment of their memories of the relevant events over time, while prejudicial,
was not enough to constitute serious prejudice. There was no evidence any witnesses
had died or were unavailable for other reasons. The accountants’ costs and the loss of
their professional reputations was not a
basis to dismiss the action based on prejudice occasioned by delay.
International Capital Corp. v. Robin-
son Twigg & Ketilson, [2010] S.J. No.
198, Sask. C.A., per Richards J.A. (Jack-
son and Ottenbreit JJ.A. concurring),
Apr. 06/10. Digest No. 3001-004
(Approx. 15 pp.)
CONTEMPT OF COURT
CIVIL CONTEMPT – Three property
owners were found in contempt of an
order that they cease operating their
properties as lodging houses.
Application for an order finding
respondent property owners, C, W and M,
in civil contempt. A previous order
required the property owners to cease
using their properties as lodging houses
contrary to a city bylaw. Respondents submitted that they made every effort to comply with the order and had achieved compliance. C and W allowed four previous
tenants to remain in the home on a rent-free basis. The occupants paid utilities
and otherwise maintained the property. M
contended that he now rented the entire
home to a group of individuals as a family
unit rather than on a room by room basis.
Applicants sought a declaration that
respondents were in contempt. In respect
of M’s property, applicants sought a writ
of sequestration directing the sheriff to
take possession to collect all rental payments in respect of the property.
HELD: Application allowed. Apart
from the payment of rent, the home owned
by C and W continued to function as it did
at the time of the original order. There was
significant consideration that flowed to
them under the current arrangement.
Despite the changes to the arrangement, C
and W were in breach and contempt of the
order. They were fined $10,000, reflecting
disapproval with their conduct, balanced
with the fact that they no longer profited
from the arrangement. M offered no documentation that substantiated his alleged
new approach to the order. In the original
hearing, that approach was specifically
rejected by the judge, finding that a common lease did not change the property’s
use as a lodging house. M was in breach
and contempt of the order. M was fined
$47,150, reflecting that he generated significant revenue from his arrangement.
His evasiveness and failure to satisfy the
costs award from the previous hearing
warranted an order of sequestration.
Neighbourhoods of Windfields Lim-
ited Partnership v. Death, [2010] O.J.
No. 1304, Ont. S.C.J., Lauwers J., Apr.
01/10. Digest No. 3001-005 (Approx.
14 pp.)
DAMAGES
WRONGFUL DISMISSAL – The
court assessed damages payable to plain-
tiff for the denial of the opportunity to
exercise stock options when he was
wrongfully dismissed.
Assessment of damages accruing to
plaintiff, who was wrongfully dismissed, by
having been denied the opportunity to
exercise certain stock options. Plaintiff
would have had an opportunity to exercise
a stock option that was part of his remuneration package during the notional notice
period to which he was conceded to be
entitled. The option, which would have
