This Week at the Ontario Court of Appeal: 11-10-26

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

Tut v. RBC General Insurance Company

This case revolved around a motor vehicle accident and insurance coverage issues. The respondent, Nagraj Singh Tut (Nagraj) received permission from his mother, Gurmeet (other named respondent) to drive his friends home the morning after celebrating his 20th birthday. The respondent was involved in an accident while attempting to pass another vehicle using the gravel shoulder on the highway. No charges were laid as a result of the accident.  However, reports indicated that the respondent had a blood alcohol level of 26.8mmol/L when the accident occurred.  With only a G2 driver's license, the respondent was not permitted at law to have a blood alcohol concentration greater than zero. The respondents were both covered by an RBC automobile insurance policy. After the accident, the appellant, RBC denied coverage to Nagraj since at the time of the incident he was not "authorized by law to drive". The appellant denied Gurmeet coverage because they stated that she ought to have known the morning of the accident that Nagraj was not authorized at law to drive.

The application judge stated that RBC could not deny insurance coverage to the respondents on the basis of statutory condition 4(1), Automobile Insurance, O. REG. 777/93. The appellant appealed and sought to have the application judge's decision set aside and the application for coverage dismissed with costs.

In dismissing the appellant's appeal, the Court rejected their assertion that s.6(1) Highway Traffic Act, creates an absolute liability offence. The Court applied the four factors in Kanda to determine whether the stated provision could be considered an absolute liability offence. The Court ultimately upheld the application judge's decision that s.6(1) was a strict liability offence.  In referencing the Supreme Court of Canada's decision in R. v. Sault Ste Marie, the Court stated, 

    ...careless driving is an offence of strict liability and it is open to an accused to show that they had a   

    reasonable  belief in the facts, which, if true, would have rendered the act innocent.  

Additionally, the Court stated that the application judge did not err in finding that the respondent had a reasonable belief that his blood alcohol level was zero.  They stated that the respondent received between 6-9 hours of sleep and thus had reason to believe that his blood alcohol content was reduced to zero before driving his vehicle. Further, the Court stated that the appellant did not have a prima facie case against Gurmeet, as she did not see her son nor any of his friends drinking any,alcoholic beverages before she left the house that evening.

R. v. Drabinsky

This case concerned an application for bail pending the determination of the appellant's application for leave to appeal to the Supreme Court of Canada from the order of the Court dismissing his appeal from conviction.

In March 2009, Drabinsky was convicted to two counts of fraud and was sentenced to seven years imprisonment in August 2009. The Court dismissed the appellant's appeal as to his conviction in September 2011. It did, however,  reduce his sentence to five years. The appellant has been on bail during his track through the criminal justice system and has been in full compliance with his bail requirements.  He has been in custody since September 2011.

The Court dismissed the application for bail pending appeal to the Supreme Court.  If the appellant was to succeed in his bail application, he had to demonstrate under s. 679(3) Criminal Code, that his application for leave to appeal to the Supreme Court was not frivolous, that he would surrender himself into custody in accordance with the terms of any release orders and that his detention was not necessary in the public interest. The Court had no concerns that the appellant would surrender himself into custody. Further, the Court was satisfied that the appellant's claim was not frivolous.

The principal issue of contention in the Court's view concerned whether the appellant's detention was not necessary in the public interest. The Court had to determine whether the principle of enforceability of a court order should yield to the principle of reviewability.  The Court noted the distinction between the two principles.  The principle of enforceability provides the public with confidence in the Criminal Justice System, especially in cases where serious violent crimes have been committed.  On the other hand, if Courts fail to observe the principle of reviewability of a conviction, then theoretically an accused could serve months of his/her sentence waiting appellate review only to have his conviction quashed on that review.

The Court held that the principle of enforceability took priority. The principle of reviewability had already been recognized and given priority in the appellate process, as the appellant was on bail for over two years after he was sentenced while he pursued an appeal. Further, in applying the reviewability principle, the Court noted that the appellant had no further right of appeal. He would have to obtain leave to appeal from the Supreme Court of Canada before he could obtain any further review of his convictions, and the prospect of obtaining leave was not strong. Finally, attempting a further review of his convictions would not be meaningless as he has only served approximately one month of a five-year sentence.  Since the Supreme Court of Canada generally takes three to six months to decide leave applications, the appellant would still have considerable time to serve when the SCC decides whether it will hear his case.  Bail was denied.

R. v. Jones

The primary question raised on this appeal was, what happens when the police are lawfully searching a computer pursuant to a valid warrant for one crime when they discover evidence for another crime- are they permitted to continue the computer search for further evidence of the second crime without obtaining an additional warrant?

The police investigated the respondent, Mr. Jones for participating in a fraudulent Internet scheme. They obtained a warrant authorizing search and seizure in the respondent's residence of data associated to particular e-mail transactions, images, storage devices and computers.  They seized the respondent's computer, and during the course of examining its contents for evidence of fraud, they found evidence of child pornography. Prior to examining the respondent's computer files for further evidence of pornography without additional warrant, they sought advice from an experienced Crown lawyer, Cpl. Herrington.  He advised the  police that they could proceed with their search. Cpl. Herrington informed them that since there were no restricting terms or conditions in the warrant, the authorization permitted examination of the entire hard drive. The police discovered numerous images and videos of child pornography.

The respondent was charged with possession of child pornography.  The trial judge dismissed the charges, stating that the respondent's rights were violated under s. 8 of the Charter because the warrant was valid for the purposes of the fraud investigation alone and did not authorize a review of evidence for pornography. Moreover, the trial judge classified the advice given by the Crown lawyer to the police as "reckless and cavalier", and was symbolic of an institutional failure.  Therefore, she excluded the child pornography evidence discovered as a result of the breach. The Crown appealed the trial judge's decision.

The Court allowed the appeal for a number of reasons.  They agreed with the trial judge that the warrant itself was valid for the purposes of authorizing the search for evidence of fraud and not evidence of child pornography. The Court noted that the police could have applied for another warrant as there was no urgency here to use the warrant authorizing seizure of evidence for fraud. The Court used an analogy of illustrating a search of the home where a computer is found. A home contains many rooms, closets, files, cabinets and the like.  Just like files and compartments in a computer, each contains vast amounts of "biographical core" information. Thus, the state should not be able to roam around the content's of a person's computer indiscriminately more so than in a person's home without further authorization.

The appellant relied on the "Plain View" Doctrine and Section 489 of the Criminal Code to support its position that the police were not required to apply for a further warrant to seize any pornography. The "plain view" doctrine is a common law power that applies where the police have obtained a search warrant for one crime and in the course of executing the warrant, evidence of another crime falls into plain view.  The Court referred to similar cases involving the seizure of pornography evidence in the US and Canada where the "plain view" doctrine was applied with mixed results. The Court stated that the police were lawfully authorized to examine files as indicated under the warrant when they unexpectedly saw images that were recognizable as child pornography.  The Court noted that the "plain view doctrine" did not apply to the seized video images, as they were not sitting "in plain view" nor were the videos inadvertently or unexpectedly discovered.

In regards to s. 24(2) of the Charter, the Court held noted that the seizure of pornography files did not constitute a breach of the respondent's rights and thus the files were not inadmissible. Furthermore, the Court held that the trial judge erred in jumping from her view that the Crown's advice was "cavalier or reckless" to her conclusion that this represented a systematic failure in the office of the Crown.  The appellant did consult a senior Assistant Crown Attorney who had a vast amount of experience in the field.  Further, there was no evidence of any other incidents to justify using the word "systemic failure".

For the foregoing reasons, the Court allowed the appeal, set aside the acquittal and ordered a new trial.

- Alim Ramji, Toronto

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