bragging online. Mitigating factors
included the lack of prior convictions, the
offender’s previous good character, his
early guilty pleas, his three months of
sobriety following drug treatment, and his
compliance with strict bail conditions for
19 months. Denunciation and deterrence
were the paramount sentencing principles.
R. v. Allen, [2012] B.C.J. No. 282,
British Columbia Supreme Court, S.S.
Stromberg-Stein J., January 20, 2012.
SENTENCING – Criminal Code
offences – Offences against rights of
property – Theft over $5,000 – Fraudulent transactions relating to contracts
and trade – Fraud over $5,000.
Sentencing of Kaziuk following his convictions for theft over $5,000 and fraud
over $5,000. On April 12, 2007, Kaziuk
fraudulently used his mother’s power of
attorney to put a mortgage on her property
in the amount of $98,000. On September
18, 2008, he fraudulently used his mother’s
power of attorney to put a mortgage on her
property in the amount of $65,000. Kaziuk’s
mother was 86 years old at the time of
offences. She had lived in one of two condos
that she owned mortgage-free. She also
owned a residence in Miami that was mortgage-free. She had significant monies in her
bank account (over one million dollars), and
she had a car and credit cards. Due to
Kaziuk’s actions, she now had no car and no
money in her bank account. On September
12, 2011, she was evicted from her condominium because of the fraudulent mortgages put on her properties without her
consent or knowledge. The banks seized her
condominium units. She lost everything
and now lived in a homeless shelter. Kaziuk
was 57 years old. He explained that he committed fraud out of “financial misfortunes
and an ongoing state of depression.” He had
a total of 69 convictions for crimes of dishonesty, including uttering forged documents, false pretences, fraud over $5,000,
possession of instruments for forgery, theft
over $5,000, fraudulent use of credit card
data, and larceny. He had also been convicted of similar crimes in the United States.
HELD: Kaziuk was sentenced to 10
years’ imprisonment for theft over $5,000,
and 10 years concurrent for fraud over
$5,000. The Crown also proved a charge of
theft by a person holding power of attorney,
and that Kaziuk used the same fraudulent
scheme to defraud his lawyer out of monies
on two separate occasions in February
2009. Furthermore, during the course of
the trial, the Crown proved that Kaziuk
attempted to obstruct justice by influencing
his mother’s testimony at trial. These charges were not laid but were significant aggravating factors on sentencing. This was a
despicable breach of trust fraud. Kaziuk’s
mother was extremely vulnerable, and she
was now homeless due to his actions. He
wiped her out financially and broke her
heart. Prior penitentiary terms had not
deterred him. There was no chance of restitution or rehabilitation. Kaziuk was incapable of feeling empathy and had no conscience. Given the gravity of the offences,
Kaziuk’s blameworthiness, and the need to
protect the community, a total sentence of
10 years’ imprisonment was appropriate.
R. v. Kaziuk, [2012] O.J. No. 296,
Ontario Court of Justice, L.M. Baldwin
J., November 17, 2011., January 24, 2012.
CONSTITUTIONAL ISSUES – Can-
adian Charter of Rights and Freedoms
– Legal rights – Protection against
unreasonable search and seizure –
Remedies for denial of rights.
EVIDENCE – Witnesses – Compe-
tency – Mental competency – Hearsay
rule – Exceptions – Statements by
incompetent persons – Mentally disabled.
Appeal by the Crown from the decision
upholding the acquittal of the accused on
a charge of sexual assault. The Crown
alleged that the accused sexually assaulted
his partner’s 19-year-old daughter. The
complainant, now 26, had the mental age
of a three- to six-year-old. The prosecu-
tion sought to call the complainant to
testify about the alleged assaults. It also
sought to adduce evidence through her
school teacher and a police officer of what
she told them. A voir dire was held to
determine whether she could be allowed
to testify. The trial judge ruled that she
was incompetent to testify because she
had “not satisfied the prerequisite that
she understands the duty to speak the
truth”, which the trial judge took to be
required by s. 16( 3) of the Canada Evi-
dence Act. A second voir dire was held to
decide on the Crown’s application for
admitting the complainant’s out-of-court
statements. The judge held that her hear-
say evidence was inadmissible because it
was “unreliable, and its admission would
seriously compromise the accused’s right
to a fair trial.” The accused was subse-
quently acquitted.
CIVIL LIABILITIES – Of school
staff – Injuries and property damage
– On school premises – Physical injur-
ies – Negligence.
Appeal by the plaintiff from the dismissal
of her action in negligence. The appellant
was struck on the head with rollerblades by
a fellow student in the school playground at
lunchtime in 1990. The trial judge found
that a supervising teacher was present in the
schoolyard at the time of the incident and
that there was no breach of the school’s duty
of care owed to the appellant. The appellant
argued that this finding was inconsistent
with the fact that no report of the incident
was ever made by any supervising teacher.
The trial judge also found as a fact that the
incident was not reported to anyone at the
school until several years later. The evidence
surrounding the incident was sparse.
HELD: Appeal dismissed. On the facts
as found by the trial judge, the incident
could well have occurred without any negligence on the part of a supervising teacher.
In light of the absence of any evidence
about what happened immediately before
the appellant was hit and the absence of
any reliable evidence about the events subsequent to the blow, it could not be said
that the failure of a supervising teacher to
see the incident and attend to assist the
appellant demonstrated that there was no
supervising teacher on duty. Far too little
was known about the circumstances surrounding the incident to draw an inference
of negligence. In the absence of any evidence as to the circumstances surrounding
the incident, it could not be said that the
mere fact that a student was in possession
of rollerblades on school property, even if
in contravention of school policy, established that the incident was caused by a
failure to adequately supervise the playground and enforce school policies.
Rollins (Litigation guardian of) v.
English Language Separate District
School Board No. 39, [2012] O.J. No.
646, Ontario Court of Appeal, D.H.
Doherty, J. M. Simmons and G. J. Epstein
JJ.A., February 16, 2012.
FAMILY LAW
MARITAL PROPERTY – Equalization or division – Considerations – Conduct of parties – Contribution of parties
– Duration of marriage – Constructive
and resulting trusts.
Appeal by Rubin from the dismissal of
her action for a constructive trust remedy
based on unjust enrichment. The appellant
and the respondent cohabited between
2003 and 2009. Each had children from a
prior marriage. The appellant’s teenaged
children lived with the couple. The appellant worked as a pharmaceutical sales rep
and earned between $50,000 and
$100,000 per year. The respondent was a
psychiatrist based at a university who
earned between $500,000 and $1 million
per year during cohabitation. Post-separa-tion, the appellant brought an action for,
among other things, a 50 per cent share in
the increased value of six of the eight properties owned by the respondent, four of
which were purchased in the course of the
relationship. One of the newly-purchased
properties was the home in which the
appellant and her children lived. The appellant did not make a financial contribution
to the purchase of the properties. The
