Sunday, June 19, 2011

This Week At The Ontario Court of Appeal: 11-06-09

Each week Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Ontario (Labour) v. Black & McDonald Limited. An appeal from an Ontario Court of Justice trial where charges laid under the Occupational Health and Safety Act were dismissed and the Crown then appealed, and appealed again when the first appeal failed.

Black & McDonald was hired as a subcontractor to construct concrete pipe in underground trenches. In the process of doing so, they constructed a wooden framework to pull pipe sections into place. One day, a piece of the wooden framework snapped and struck a worker in the head, killing him. The Crown charged Black & McDonald with five counts of violating the OHSA: failing as a constructor to ensure that a project was designed to support and resist all loads and forces to which it is likely to be subjected, failing as a constructor to ensure that every employee and worker complied with OHSA standards, failing as a constructor to take every precaution possible for the protection of a worker, failing as an employer to ensure that a project was designed to support and resist all loads and forces, and failing as an employer to take every precaution possible for the protection of a worker.

At trial, the judge dismissed the first, second and fourth counts for being "duplicitious," "disingenuous," "convoluted," and that "in some instances barely discloses an offence." The Crown appealed to the Superior Court, where the Superior Court judge agreed with the trial judge and further overturned the convictions on the third and fifth counts. The Crown appealed again.

The Court of Appeal set aside the dismissals and ordered a new trial. They stated that the trial judge had confused a duplicitous count (one that joins separate and distinct offences in the same count) with a duplicative count (one that overlaps another distinct count). The Court stated unequivocally that a single incident could obviously give rise to multiple offences. The Court also felt that the counts were drafted precisely enough that the defendant corporation knew the charges against it, and noted that the defendant did not ask for further particulars than it was provided.

Finally, the Court stated that the trial judge did not have discretion to outright reduce the number of counts, as he had attempted to do, as the employer standard of conduct and the constructor standard of conduct were two different standards and therefore overlapped but were not duplicative. They further noted that under the common law, even if the multiple counts were duplicative, the end result could not be an acquittal but instead only a conditional stay. Read-the-whole-case rating: 2.

R. v. Soules. Mr. Soules was involved in a four-car accident. During police questioning after the accident, the constable believed that Mr. Soules might have been impaired, and when he subsequently made an approved screening device demand, Mr. Soules failed his breath check test and was arrested for operating a vehicle while impaired.

Mr. Soules was summarily acquitted on the basis that his statements while being investigated by the constable were compelled and inadmissible, and in the absence of those statements there was no reasonable suspicion for the approved screening device demand. The trial judge also held that the breath results would further have been excluded on the basis that Mr. Soules did not receive a Prosper warning. The Crown appealed; the summary conviction appeal judge upheld the acquittal. The Crown appealed again.

The Court of Appeal granted leave to appeal the summary conviction on the basis that the case raised important questions of law about the police-driver relationship and whether Charter rights demanded reinterpretation, and also on the Crown's contention that the ruling, as it stood, had the potential to "cripple the investigation of drinking and driving offences where a collision has occurred."

The Court considered this case in light of the decisions in R. v. Powers and R. v. White, two impaired-driving cases where, following a collision, a driver had thought he reasonably was compelled to report the accident and details thereof, and as a result provided inadmissible information to a police officer. The Crown, seeking to distinguish this case from those precedents, cited R. v. Thomsen, an impaired-driving case where a motorist's participation in an ASD test was viewed as admissible to support an officer's breath demand. However, Justice LaForme disagreed with this comparison, specifically suggesting that Powers was the proper precedent because Thomsen was a situation that did not involve a compelled answer by the motorist. The Court therefore dismissed the appeal on the grounds that Mr. Soules' testimony was inadmissible due to his s.7 Charter rights against self-incrimination. Read-the-whole-case rating: 3.
- Christopher Bird, Toronto
Visit our Toronto Law Firm website:

Post a Comment