Tuesday, March 15, 2011

This Week at the Ontario Court of Appeal: 11-03-04

Each week, Wise Law Blog will review recent decisions from the Ontario Court of Appeal. This instalment reviews decisions over the previous two weeks.

Capmor Financial Services Corporation v. Sibilia
. A case where the the respondent owed arrears on an equipment lease which the appellant was the lessor, but the appellant argued that the limitation period had expired since the default on the lease as the respondent was counterclaiming for storage fees. At trial, the judge accepted the respondent's argument that the act of signing onto an existing lease as a jointly and severally liable co-lessee was equivalent to him signing a separate lease on the same terms.

The Court of Appeal disagreed. They pointed out that the legal effect of joint and several liability was described as "were two or more persons join in the same instrument in making a promise to the same person" (Justice Felmdan's emphasis) and that there was nothing in the lease that suggested that it was intended to operate as two individual and separate leases. They characterized the signing on as a co-lessor as an agreement to deal with a previous lessor's default rather than a new contract. As a result, the limitation period was applied and the respondent's counterclaim failed. Read-the-whole-case rating: 2.

R. v. Khan. The accused was charged with drug trafficking, conspiring to traffic and participating in a criminal organization, after being arrested in a large gang investigation in May 2006. His preliminary inquiry was not held until October 2007, at which point the Crown withdrew the participation charge and deferred his committal for trial to February of 2008. The accused was committed and remanded to a pre-trial in June 2008; his trial was scheduled for March 2009. His trial was then delayed by a combination of sick Crown counsel and an unavailable judge due to a conflict.

A June 2009 date was offered, but defence counsel requested a later date due to their request for transcripts with which they planned to support an s.11(b) Charter motion. Defence counsel were then unavailable for trials in later June and August 2009 due to their schedules; trial was scheduled for November 23, 2009. Mr. Khan filed an application to stay his proceedings based on violation of his s.11(b) Charter right to a speedy trial in October 2009; the trial judge approved it and ordered the proceedings stayed. The Crown appealed.

The Court of Appeal overturned the stay. Although agreeing that the 41 months between his charge and his trial was sufficient to consider reasonableness (as it was much longer than the generally accepted guideline for maximum allowable delay spent getting to trial of fourteen to eighteen months at the outside), they pointed out that in order to assess that reasonableness it was necessary to take into account the reasons for the delay.

The application judge had considered the initial twenty months Mr. Khan spent waiting for his committal trial reasonable, and the Court of Appeal agreed. Although it was a long time spent, the Court felt that in a large and complex criminal investigation - such as the one that led to Mr. Khan's arrest - that a longer intake and committal process was not unreasonable due to the complexity of bail proceedings and disclosures in such instances. They assessed that out of the twenty months, slightly over three of them could be characterized as needless delay, but again characterized this as forgivable given the circumstances.

Regarding the twenty-one months Mr. Khan spent in process for the Superior Court, the Court felt that this too was reasonable. They pointed out that delays on the part of defence scheduling could not be counted against the time taken for Mr. Khan's case to reach trial, and that the judge in conflict was at the time agreed upon by both sides as one that could create a reasonable apprehension of bias; hence the mistrial and retrial date were mutually agreed upon. They concluded by stating that where the trial judge had assigned fault to the Crown for the entire 21-month delay in the Superior Court, the Court of Appeal only found slightly more than eight months of institutional delay in the Superior Court. This delay was found largely to be the result of reasonable (if outsized) delays from an extremely complex investigation.

Adding the Ontario Court and Superior Court delays together, the Court of Appeal found a total delay of over eleven months, which did not surpass the general guidelines for acceptable delay. Read-the-whole-case rating: 3.

Starson (Re). Mr. Starson, a professor, appealed the disposition of the Ontario Review Board, as he sought a conditional or absolute discharge from his detention at the Centre for Addiction and Mental Health. The Court noted that Mr. Starson - a gifted physicist - suffers from schizoaffective disorder marked by "grandiose delusions and auditory hallucinations," and since entering CAMH's care has been successfully treated with antipsychotics, but each time he has been permitted to live part-time in the community has been marked with difficulties and deterioriation in his condition.

The Court agreed with the Ontario Review Board's decision, citing threatening behaviour committed by him in late 2009 (although they also noted that he had since stabilized) and the general concern that his condition could once again take a turn for the worse. However, the Court did express additional concern about Mr. Starson's outstanding medication consultation, and counsel for the hospital promised that the next ORB review would be presented with the results of that consultation so that recommendations permitting Mr. Starson to manage his illness while living in the community could be implemented. Read-the-whole-case rating: 2.

Ward v. Ward. An appeal from an application in a family law matter where a judge had found a Memorandum of Agreement ("MoA") dealing with their matrimonial dispute invalid. The Wards had prepared the MoA pursuant to a previous marriage contract, but Ms. Ward was unhappy with the results of the MoA and applied for the declaration. The trial judge found that the MoA was "at best an outline to arrive at a binding separation agreement," and also expressed concern about the husband's failure to provide a financial statement, the handwritten nature of the document, Ms. Ward's problems with depression, and variations in the husband's year-to-year income.

The Court of Appeal disagreed and set aside the judge's order, restoring the MoA as a valid domestic contract. Considering the nature of the document, Justice Lang stated that given that the MoA purported in the preamble to be a binding contract, and further that the parties first reached agreement in the contract on all major issues and then afterwards acted as if it were a binding agreement by conducting themselves in accordance with it.

The Court also noted that if the MoA had been intended to be merely an agreement to agree, the document could have stated explicitly that the parties would have to reach consensus on the terms, rather than the parties' lawyers reaching consensus on satisfactory language. Regarding the judge's other concerns, the Court felt that none of these were significant enough to set aside the MoA and that Ms. Ward's issues with the contract were negated by her conduct in cooperating with it. Read-the-whole-case rating: 3.5 for family lawyers, 2 for everyone else.

R. v. Bottineau. The appeal in the Jeffrey Baldwin case, where his grandparents locked him and his sister Judy in a dungeonlike room for about four years, only removing them from their room to feed them on occasion. Ms. Bottineau and her husband, Mr. Kidman, were charged with first degree murder and forcible confinement when Jeffrey died as a result of this abuse; they were convicted and sentenced to 22 and 20 years without parole, respectively.

They appealed on conviction and sentence. Their first appeal was on the basis that Jeffrey's death occurred as a result of a series of omissions on the part of Bottineau and Kidman, rather than a series of actions, and that state of mind could not be proven regarding omissions, making the first degree murder charge impossible. The Court forcefully disagreed with this argument, calling the distinction between action and omission "often one of semantics," and showing how Jeffrey's treatment at the hands of his grandparent had an obvious and inevitable result.

Mr. Kidman further appealed on the ground that Ms. Bottineau was primarily responsible for the care of Jeffrey, as she ran the household and his involvement was minimal, and that the trial judge erred in failing to take that into account. The Court made short work of this appeal, pointing out that Mr. Kidman clearly knew about Jeffrey's circumstances, that there was evidence that he did not care about Jeffrey, and that he had lied to the police about Jeffrey's death. Given this evidence, although Ms. Bottineau may have possibly been more emphatically linked to Jeffrey's death, Mr. Kidman's conduct did not remove him from the trial judge's use of the common sense inference: he should have been able to prevent Jeffrey's death and chose not to do so.

Ms. Bottineau further appealed on the grounds that her mental state was not taken properly into account when she was being judged and sentenced. The Crown and defence had agreed that she was of well below average intelligence (although the Crown and defence differed in opinion as to whether Ms. Bottineau was mentally retarded, with the Crown disagreeing and the defence agreeing with that assessment). The Court felt that this submission was insufficient to remove Ms. Bottineau's mens rea via the common-sense inference; the way that Jeffrey and Judy were treated as compared to Ms. Bottineau's other two grandchildren (who were also mistreated, but not nearly so dramatically) was evidence that Ms. Bottineau understood what reasonable care for children should entail, and that she had chosen not to give Jeffrey and Judy that care.

Another ground for appeal was raised as to whether Ms. Bottineau and Mr. Kidman's mistreatments of Jeffrey could constitute a single transaction for a first-degree murder charge (as the Crown contended and trial judge accepted), or whether it was instead a series of incidents, no single one of which could both attach mens rea and actus reus. The Court accepted the Crown's position, pointing out that the conduct of the accused was a significant factor in Jeffrey's death.

Yet another ground for appeal addressed Ms. Bottineau's journals, which were found during a search of their residence when the police were authorized to search for notes prepared by her at a house meeting. Defence counsel argued that this lay outside the scope of the search warrant.

The Court disposed of this line of argument readily, pointing out that the Criminal Code allows warranted officers to lawfully seize anything they reasonably believe would qualify as evidence in respect of an offense. However, the Court also pointed out that even if the journals had been improperly seized, the Crown's case against the grandparents was not dependent on the journals as evidence; they were merely one element of many, demonstrating Ms. Bottineau and Mr. Kidman's ill-treatment of their grandchild.

A further ground of appeal raised was on Mr. Kidman's statement to police (where he lied about Jeffrey's care). The defence submitted that the statement was involuntary since Mr. Kidman had been informed at the time that he was a "person of interest" rather than a suspect, and that police had acted as if he were a suspect without warning him of his Charter rights to counsel. The Court noted that although police had not informed him that he was a suspect and did not inform him with the standard caution, they did tell him prior to the interview (which he willingly attended) that the statement would be under oath, that his grandson's death was "suspicious," that he did not have to make a statement if he so chose, that there would be criminal consequences for lying to them, and that if he were a witness at trial his statement could be used against him. Although this was not a standard caution, said the Court, it was enough to inform Mr. Kidman of the seriousness of his circumstances and the consequences of his statement. Moreover, Mr. Kidman should have been able to conclude that anything he said could be used in a prosecution against him, given the officers telling him that they considered Jeffrey's death suspicious and that as one of Jeffrey's caregivers he would be a natural suspect.

Finally, both Ms. Bottineau and Mr. Kidman appealed their convictions on the forcible confinement of Judy on the grounds that they were merely exercising their authority as parents. The Court called this "patently preposterous" for reasons which are obvious. They also dismissed an attempt by Mr. Kidman to again portray his lesser amount of direct involvement in the children's punishments as a lack of knowledge. Read-the-whole-case rating: 5 if you can stomach some of the horrific details involved.

R. v. Turpin. An appeal in the conviction of a police officer who was charged with assault causing bodily harm. Mr. Turpin appealed based on a judge's interpretation of an audio surveillance recording.

On the audio surveillance recording, Mr. Turpin could be heard engaging another man, Mr. Egan, verbally while Mr. Turpin had him in custody in a questioning room following an arrest for causing a disturbance (Mr. Egan was intoxicated at the time).

Part of the recording was inaudible; the rest of it was transcripted. It was alleged that Mr. Turpin made threats to Mr. Egan during their interaction; Mr. Turpin characterized his language as "tactical." One of the statements Mr. Turpin made was agreed upon by all parties as being "I’m going to punch your teeth right through the back of your head." (More words may have been uttered, but all parties agreed that this statement was made.) He also forced Mr. Egan to the ground on two occasions, causing some minor injuries. Mr. Egan did not press charges, but Mr. Turpin was eventually charged as a result of an internal police investigation.

The trial judge found Mr. Turpin guilty. In her reasons, she stated that she had listened to the recording of Mr. Turpin many times over, and where Mr. Turpin had testified that he had said "if you don't knock it off, I'm going to punch your teeth right through the back of your head," she instead was certain that he had actually said "when we're off camera, I'm going to punch your teeth right through the back of your head." She stated that Mr. Turpin had therefore misrepresented the contents of the threat to the court and rejected his evidence, and convicted him.

Mr. Turpin appealed on the basis that the trial judge erred by not allowing him to respond to her assessment of his words, thus removing his right to make full answer and defence. The Court of Appeal agreed and ordered a new trial. The Court stated that it was clear that the judge's theory of what Mr. Turpin said was one never advanced at trial in any respect; although it was proper for the judge to review the recording, the fact that it would have been unusual for her to re-open the trial once she had doubts as to the content of the recording did not preclude the necessity of her doing that in this case. Read-the-whole-case rating: 2.5.
- Christopher Bird, Toronto
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