Philip H. Patterson

The Ontario Land Tribunal held a case management conference regarding appeals of Official Plan Amendment, Zoning By-law Amendment, and Site Plan applications for a mixed-use residential development in Markham.

The Tribunal granted party status to the York Region District School Board on consent.

The Tribunal also granted a motion to modify the subject applications to include both the West and East Parcels and a three-tower concept development proposal, finding the modifications maintained the essential nature of the original applications.

Procedural directions were given and a hearing date was set.

The defendant, Jay Singh Toor, brought an application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in his impaired driving case.

The defence argued the delay from arrest (May 16, 2020) to the anticipated end of trial (January 19-21, 2022) exceeded the 18-month presumptive ceiling established in R. v. Jordan.

The Crown contended that the s. 11(b) clock began when the information was sworn (September 7, 2020) and that there was defence-caused delay.

The court, following R. v. Kalanj, confirmed that the s. 11(b) clock starts when the information is sworn.

After deducting defence delay (approximately 7.5 weeks), the net delay was calculated to be under 15 months, falling below the 18-month ceiling.

The court also considered the COVID-19 pandemic as an exceptional circumstance impacting court operations.

The application for a stay of proceedings was dismissed, as the delay was not found to be markedly longer than it reasonably should have been, especially given the pandemic context, and no s. 7 Charter violation was established.

This was a Case Management Conference (CMC) before the Ontario Land Tribunal regarding multiple appeals against the City of Vaughan's failure to make decisions on Official Plan Amendments, Zoning By-law Amendments, and Draft Plans of Subdivision.

The Tribunal approved two Procedural Orders on consent to govern the phased hearings for the Yonge Steeles Corridor Secondary Plan appeals and the Solmar Inc./Eastwood Holdings Corp. appeals.

The Tribunal also granted party status to a neighbouring landowner and scheduled future CMCs to address remaining appeals.

The Ontario Land Tribunal held a Case Management Conference regarding appeals of the City of Toronto's Central Waterfront Secondary Plan and Port Lands Official Plan Modification.

The parties presented a draft Procedural Order and thematic Issues List.

The Tribunal directed the parties to finalize the Procedural Order, attempt to resolve specific built form issues, and scheduled a five-week hearing for May and June 2022.

The defendant was found sleeping in a parked van and charged with impaired operation and having a blood alcohol content (BAC) over 80 mg.

The trial addressed three contested issues: reasonable grounds for arrest (s. 8 Charter), failure to provide a Prosper warning (s. 10(b) Charter), and proof beyond reasonable doubt for both charges.

The court found objectively reasonable grounds for arrest and dismissed the s. 8 application.

It determined that a Prosper warning was not legally required under the circumstances, or was functionally met, and the defendant's waiver of counsel was informed and unequivocal, leading to the admission of breath samples and a conviction for the over 80 BAC charge.

However, the court acquitted the defendant of impaired operation, finding reasonable doubt regarding actual impairment due to alternative explanations for roadside indicia and the absence of driving evidence.

The defendant applied under sections 7 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of his refusal to provide a breath sample.

The defendant claimed he was assaulted when police attempted to forcibly remove his wedding ring at the police station before the breathalyzer test.

The court found that while the attempt to remove the ring constituted an unreasonable assault, the use of force was minimal and momentary.

The court held that the words of the refusal constitute the actus reus of the offence and cannot be excluded under section 24(2).

The motion was dismissed.

The accused was charged with impaired operation of a motor vehicle and operation with blood alcohol content over 80 milligrams per 100 millilitres of blood.

The Crown relied on breath test readings of 136 and 131 milligrams and expert evidence extrapolating the accused's blood alcohol content at the time of driving.

The court found that while the arrest was supported by reasonable and probable grounds, the Crown failed to prove the absence of bolus drinking, rendering the expert opinion unreliable.

Additionally, the evidence of impairment was inconsistent and frail, with minimal evidence of bad driving.

The accused was acquitted on both counts.

The applicants were charged with dangerous driving on April 14, 2013, and brought a motion to stay the proceedings for unreasonable delay under section 11(b) of the Charter.

The information was sworn on May 9, 2013, with the first trial date set for May 30, 2014 (over one year later).

An adjournment was granted on April 11, 2014, because a Crown witness needed to be in England.

The second trial date was set for November 28, 2014.

However, on the trial date, the Crown advised that it would not be calling the witness whose unavailability had prompted the adjournment.

The court found that the delay exceeded the Morin guidelines of 8-10 months for provincial courts and that the adjournment was unnecessary.

The charges were stayed.

The accused applied to exclude intercepted communications between them from use in a search warrant information, wiretap authorization affidavit, and at trial, arguing the communications were protected by marital privilege under s.4(3) of the Canada Evidence Act.

The court held that marital communications privilege is testimonial in nature and does not prevent the interception of communications or their use in investigative affidavits, though they generally cannot be compelled in court testimony without the recipient spouse’s consent.

The accused further argued that limiting the privilege to legally married spouses violated s.15 of the Charter by excluding common-law partners.

The court found the accused had not established that their relationship was analogous to marriage and therefore they could not benefit from the privilege in any event.

The application to excise the communications was dismissed and the intercepted communications were held admissible.