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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Trial

ACCUSED NOT REPRESENTED BY COUNSEL

Accused could not afford to retain counsel to extent necessary to ensure fair trial

Accused charged with four counts of trafficking in cocaine and oxycodone and possession of proceeds of crime. Accused applied for appointment of state-funded counsel. Legal Aid had denied funding to accused, as his income of $13,200 per year exceeded its financial cut-off. Accused had grade nine education and had entered workforce as labourer when he was 14 years old. Accused had received disclosure, and said that he could not make much of it. Allegations involved sales of drugs to undercover operators, and issues were potentially defence of entrapment and Charter claims. Crown had indicated to accused that his offences should have attracted four-year sentence in penitentiary. Accused argued that complexity of case arose from tactical decisions involving possibility of calling co-charged individuals as witnesses at trial. Crown argued that accused had means to pay counsel, but refused to allocate his own money properly for that purpose. Application allowed. Although it appeared that accused’s chances for bail on review were low, it could not be said that they were non-existent. Court could not accept that accused should have had to give up everything he had, including his apartment, in order to satisfy court that he was doing everything he could to fund lawyer. There was evidence that accused had, over time, satisfied outstanding accounts owing to Legal Aid, and it could not be said that he had not been mindful of his duty to contribute financially to his own defence when that had been required of him. Given accused’s modest level of education, his working background as labourer, difficulties inherent in mounting entrapment defence, and likelihood of significant sentence of imprisonment upon conviction, case would have been complex for accused to defend, and carried serious consequences for him. For accused not to have counsel at trial would have resulted in trial unfairness, as accused would not have been able sufficiently to understand case he had to meet or to present any defences available to him, and would have been subject to very serious consequences upon conviction. This was rare case where court was satisfied that accused, because of length and complexity of proceedings, or for other reasons, could not afford to retain counsel to extent necessary to ensure fair trial.
R. v. Davidson (Apr. 22, 2015, Ont. S.C.J., A.D. Kurke J., File No. 7483/14) 121 W.C.B. (2d) 97.

Appeal

RIGHT OF APPEAL

Leave to appeal denied where case turned on application of well-established legal test to specific fact situation

Crown applied for leave to appeal judgment dismissing Crown’s appeal from acquittal of accused on charge of driving with excessive alcohol. Leave to appeal denied. Legal test for determining whether breath tests were administered “as soon as practicable” was well established. This case turned on application of that well established test to very specific fact situation. It was far from clear to court that appeal raised question of law alone. However, even if it did, question as framed would not have any significance beyond this case. Neither trial judge, nor Summary Conviction Appeal Court purported to hold that any delay associated with allowing detainee to contact parent would run afoul of “as soon as practicable” requirement. Instead, trial judge and Summary Conviction Appeal Court looked at totality of circumstances in context of “as soon as practicable” requirement in deciding whether officer acted reasonably.
R. v. Crewson (Apr. 17, 2015, Ont. C.A., Doherty J.A., Cronk J.A., and Hourigan J.A., File No. CA C59450) Leave to appeal from 115 W.C.B. (2d) 223 was refused.  121 W.C.B. (2d) 23.

Evidence

HEARSAY

Propensity reasoning could be controlled by limiting instructions and cross-examination

Crown sought to admit statements accused made to acquaintances of victim and victim’s ante-mortem statements as prior discreditable conduct in relation to first-degree murder charge. Accused had threatened victim but not by name with witnesses clearly believing accused was referencing victim. Ante-mortem statements involved victim wanting to move out due to problems with accused as Crown’s theory was accused despised victim who was living with accused. Threats were alleged to be relevant to animus, identity and motive and critical to rebut defences of provocation, intoxication, third-party suspect and self-defence, should these defences be raised. Evidence admissible. Evidence was clearly probative and accused would have opportunity to cross-examine witnesses. Issue was not whether admitting statements would increase chance that accused would be convicted, but whether statements would be improperly used by jury. Propensity reasoning could be controlled by both limiting instructions and cross-examination. Jury could be reminded that they must consider all evidence; that they were not to determine guilt or innocence based on threats alone and that just because accused made threats did not mean he was bad person.
R. v. Martineau (Apr. 22, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CR-12-00002982) 121 W.C.B. (2d) 38.

Defences

INSANITY

No error in jury charge on NCR defence in murder trial

Accused charged with two counts of first-degree murder. Accused drowned her two young daughters. Defence position was that accused was driven by psychotic delusions and not criminally responsible due to mental disorder (“NCR”). Defence expert testified that accused believed her actions were necessary to protect children from estranged husband. Crown expert testified that accused was motivated by anger at her husband and understood her actions were morally wrong. Appeal from convictions dismissed. Charge to jury on standard to apply contained no error. Charge correctly told jury that issue was whether accused was incapable of knowing her actions were contrary to society’s morality.  
R. v. Campione (Feb. 2, 2015, Ont. C.A., R.A. Blair J.A., S.E. Pepall J.A., and P. Lauwers J.A., File No. CA C54939) 121 W.C.B. (2d) 131.

DNA Identification

WARRANT FOR SAMPLES

Admission of DNA evidence would not bring administration of justice into disrepute

Application by accused RB for order to exclude at trial forensic DNA evidence obtained through bodily substances warrant executed on RB. Three armed persons participated in home invasion and they escaped in vehicle that collided with public transit bus. Several occupants of vehicle fled and they discarded clothing nearby. Police seized clothing and had them tested for presence of DNA. Black jacket contained DNA and it matched RB’s DNA that was on convicted offender database. Warrant was obtained to have RB’s DNA tested, by pricking his finger and obtaining blood sample. Application dismissed. Police acted improperly when they failed to repeat to accused conditions set out in warrant. Even though taking blood sample by pricking accused’s finger was intrusion of bodily integrity, RB was required to comply with warrant. Accused’s rights under s. 8 of Canadian Charter of Rights and Freedoms were violated. DNA evidence, however, was not excluded, for its admission would not bring administration of justice into disrepute. Violations were minor and there was no deliberate misconduct not to inform RB right away. RB was given warrant to read and it listed all of charges he faced. He confirmed that he spoke to his lawyer about DNA warrant and he could speak to lawyer again if required. He also was aware of what would be result by providing his hand and finger to obtain sample. There was no wilful disregard of accused’s rights under s. 8.
R. v. Ahmad (Mar. 21, 2015, Ont. S.C.J., A.J. O’Marra J., File No. CR-14-10000056-0000) 120 W.C.B. (2d) 569.

Preliminary Inquiry

PROVINCIAL REGULATION

Leave to appeal from convictions under Compulsory Automobile Insurance Act (Ont.) granted

Accused was convicted of two offences under Compulsory Automobile Insurance Act (Ont.). Paralegal pleaded guilty for accused, in accused’s absence, and made representations on sentence. Trial took place in English. Accused appealed. During appeal to Ontario Court of Justice, accused was assisted by interpreter. Court dismissed appeal. Accused applied for leave to appeal. Application granted. Section 131(2) of Provincial Offences Act (Ont.) provides that no appeal shall be granted unless Court of Appeal considers that in particular circumstances of case, it is essential in public interest or for due administration of justice that leave be granted. It was unclear whether accused had asked for bilingual appeal before Ontario Court of Justice before presenting appeal. Accused insisted on fact that he had automobile insurance coverage and argued that provincial court judge should have proposed bilingual appeal. Crown maintained that accused did not have right to bilingual appeal according to statutes and procedures relating to provincial offences. Case raised issue which was particular to accused and which concerned linguistic rights of appellants in instances related to provincial offences, such as whether francophone appellants had right to bilingual appeal. It was in public interest and for due administration of justice that application should be granted.
R. c. Halich (Feb. 3, 2015, Ont. C.A., K. van Rensburg J.A., In Chambers, File No. CA M44068) 120 W.C.B. (2d) 410.

Evidence

REBUTTAL EVIDENCE

Trial judge did not improperly rely on reply evidence called by Crown

Accused appealed conviction for criminal harassment. Complainant testified that she became uncomfortable with accused’s romantic interest in her, and advised him that she wanted no further communication. Although accused was placed on strict conditions by his employer to avoid contact with complainant, he continued to appear in places where she would go. Accused testified that events described by complainant had occurred, but indicated that he did not understand that his contact with her was unwanted, as she continued to politely respond to his emails from time to time. Accused testified that complainant had invited him to dinner party at her house. In cross-examination, Crown put to accused that he had approached another dinner guest to see if he might go to dinner hosted by complainant, and told accused that he would call her as reply witness. Crown called other dinner guest in reply, and no objection was made by defence counsel, who cross-examined her by suggesting to her that accused may have perceived that invitation to dinner came from complainant. Trial judge found that complainant and dinner guest were credible witnesses and that accused was not. Trial judge found that accused knowingly harassed complainant. Accused argued that trial judge improperly relied on reply evidence called by Crown which should not have been admitted, as it was purely collateral. Appeal dismissed. While dinner guest’s account of way in which accused managed to attend complainant’s dinner party had marginal relevance in Crown’s case, accused’s testimony that complainant had invited him took on new significance in light of his testimony in regards to harassing behaviour, which he similarly characterized as “at invitation of” complainant. It was unfortunate that defence counsel did not object to reply evidence, but in all of circumstances, trial judge did not err in permitting Crown to call evidence. Even if evidence were collateral, it played minimal role in assessment by trial judge of accused’s credibility. In face of overwhelming evidence of accused’s criminally harassing behaviour, there was no substantial wrong or miscarriage of justice in admitting reply evidence.
R. v. Alton (Apr. 8, 2015, Ont. S.C.J., Miller J., File No. 79/14) 120 W.C.B. (2d) 460.
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