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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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Charter of Rights

ENFORCEMENT OF RIGHTS

Breach of rights was extremely serious and reflected pattern of systemic neglect

Accused charged with first degree murder. Accused arrested late at night on weekend following shooting. Police interviewed accused following afternoon rather than taking them to court. Officers testified that they believed weekend bail court would be closed. Officer in charge forgot to call justice of peace to attend station and remand accused. Accused applied to exclude statements on basis that they were not brought before justice within 24 hours. Crown conceded that accuseds’ s. 9 Charter right was violated but argued that statements should be admitted pursuant to s. 24(2). Application allowed and statement excluded. Breach of accuseds’ right was extremely serious and reflected pattern of systemic neglect of Charter rights. Police disregarded clear requirements of Criminal Code. Statements were not important part of Crown’s case. Admission of statements would bring administration of justice into disrepute.
R. v. Mendez (Jan. 22, 2014, Ont. S.C.J., M. Forestell J., File No. 12-30000346-0000) 111 W.C.B. (2d) 442.

Appeal

PROCEDURE

Deportation order was serious but unusual consequence of conviction

Accused’s application for extension of time to file appeal of his conviction that was dated May 18, 2012. Accused’s trial was supposed to start on May 18 and he was self-represented. He was charged with several offences, which included assault with weapon, forcible confinement and breach of recognizance. Matter had to be adjourned for four to six weeks. Accused did not want to wait that long and he decided to plead guilty that day. Presiding judge told accused he would have to accept facts that underpinned charges and accused responded that he understood and he was prepared to do so. He also told judge that his decision to plead guilty was fully voluntary. Accused was sentenced to 102 days of pre-sentence custody and to 15 months of probation. He was permanent resident of Canada and he was not yet Canadian citizen. On January 17, 2013 Immigration and Refugee Board advised accused that deportation order would be issued because he was convicted of serious criminal behaviour. Accused appealed that order. In April 2013 accused was again charged with criminal offences and this time he hired lawyer to represent him. He was advised at that time that he could have appealed convictions that led to deportation order. Accused filed this application in July 2013 and he claimed he was unaware of immigration consequences of his decision to plead guilty. Application allowed. Accused would have 30 days to file notice of appeal. He did not have reason to believe that appeal was necessary until January 17, 2013 when he received his deportation notice. It was not until April 2013 that he learned that appeal was possible and it was then that he formed intention to appeal. Consequently, his decision to appeal was made within timeframe that was reasonable in specific circumstances of this case. Delay that occurred between April and July 2013 was not held against accused because it resulted from erroneous legal advice. Delay between January and April 2013 was reasonable because accused was focused on appealing deportation order. As for merits of appeal deportation order was very serious but unusual consequence of conviction. Crown would not be prejudiced by appeal and extension of time to appeal would not be inappropriate.
R. v. Cimpaye (Jan. 7, 2014, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 11-A10371) 111 W.C.B. (2d) 414.

Breaking and entering

PROOF OF OFFENCE

Similar fact evidence admitted due to high degree of similarity found in three break-ins

Trial of accused for six offences in connection with three break-ins into three restaurants during July 2012. For each restaurant accused was charged with break and enter and commit theft and with possession of instrument suitable for breaking into place. Video surveillance from each restaurant showed that person who wore black balaclava over face and black jacket entered premises. In two cases person took cash from safe but in third case person was unable to break into safe. Crown claimed that accused was perpetrator and it brought similar fact evidence application based on third incident for which there was witness who saw perpetrator leave restaurant. Police found balaclava after third break-in and DNA taken from it matched accused’s sample that was contained in national DNA bank. Accused convicted of all offences. His evidence was not credible. Court was satisfied that accused was person who was seen by witness. Similar fact evidence was admitted to show that accused broke into first two restaurants due to high degree of similarity found in three break-ins. Probative value of this evidence outweighed its potential prejudice. Ample evidence existed to show that accused was perpetrator in all three incidents. For third break-in accused was not convicted of break, enter and commit theft but rather of break and enter with intent since he could not obtain cash from safe.
R. v. Marini (Jan. 16, 2014, Ont. S.C.J., E. Gareau J., File No. 7348/12) 111 W.C.B. (2d) 301.

Appeal

SENTENCE APPEAL

Where accused re-offends while on release principle of denunciation must be given more significance

Accused sought leave to appeal his sentences of 18 months’ imprisonment for first count, and 30 months’ imprisonment on second count imposed after he pleaded guilty to two counts of possession of cocaine for purposes of trafficking. Accused was in possession of $1,130 cash, small amount of marijuana, Percocet pills, digital scales, cell phones, and some 95.5 grams of cocaine. Accused was released on undertaking and while he was awaiting trial, was found in possession of 288.5 grams of cocaine, 79 ecstasy pills and $540 in cash. Sentencing judge recognized and took into account that accused’s youth, lack of previous record, gambling addiction, rehabilitation efforts, remorse, and guilty pleas were mitigating factors and alluded to danger that lengthy term of imprisonment could impair rehabilitation and reintegration of accused as responsible member of community. However, sentencing judge considered it aggravating factor that accused committed second offence while released on undertaking and awaiting disposition of first offence. Leave to appeal granted; appeal dismissed. Where accused re-offends while on release, sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Court saw no basis for accused’s submission that sentences on two offences should have been concurrent. Court not persuaded that sentencing judge made any error or that sentence was unfit.
R. v. Woods (Dec. 12, 2013, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and M.L. Benotto J.A., File No. CA C56640) Decision at 105 W.C.B. (2d) 777 was affirmed.  111 W.C.B. (2d) 279.

Charter of Rights

RIGHT TO FAIR TRIAL

Police used force only when accused fled from them

Trial of accused on charges of breaking and entering, possession of property obtained by crime, possession of burglar’s tools, mischief and failing to comply with probation. Accused was inside of house without permission. As he left house by rear sliding door in dark police officer in neighbouring yard yelled at him to stop as he was under arrest. Accused ran away and he was tackled to ground and was handcuffed. He claimed that after he was tackled he was immediately compliant but all of his injuries were caused by police after he was tackled. Accused sought stay of proceedings, based on alleged violations of ss. 7 and 12 of Canadian Charter of Rights and Freedoms. Alternatively, if stay was not granted, he asked that sentence that would otherwise be warranted should be reduced to reflect use of force against him. Application dismissed. Officers, who were credible, were faced with dynamic situation in which they dealt with accused who actively resisted arrest and who was potentially armed. Accused was large and strong man and it took two officers to subdue him. Officers were justified in using force to arrest accused and force that was used was not excessive. After accused was arrested officers responded to his needs. There was no breach of accused’s Charter rights under ss. 7 and 12 that jeopardized perception of trial fairness or that would bring integrity of law enforcement into disrepute. Stay was not appropriate. Sentence would not be reduced because police used force only when accused fled from them and actively resisted arrest.
R. v. Douglas (Jan. 15, 2014, Ont. S.C.J., Dunnet J., File No. CR-13-30000 189-0000) 111 W.C.B. (2d) 186.

Appeal

GENERAL

Trial judge’s observation that witnesses “looked at” accused could not have evidentiary value

Appeal from conviction. Trial judge’s observation that witnesses “looked at” accused in course of their evidence could not, standing alone, have any evidentiary value. Mere act of looking at someone, particularly accused in courtroom, too equivocal to warrant finding of fact based on it. Identity was clearly in issue during trial and Crown did not ask witnesses to provide any “in dock” identification. Further, Crown counsel at trial conceded there was no evidence of identification. Circumstantial evidence did not provide basis upon which trier of fact could reasonably conclude that accused was person who attacked victim. Appeal allowed, conviction quashed and acquittal entered.
R. v. Watt (Jan. 10, 2014, Ont. C.A., Doherty J.A., Strathy J.A., and Pardu J.A., File No. CA C55666) 111 W.C.B. (2d) 141.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Trial judge linked accused’s silence to finding that accused’s evidence lacked credibility

Accused appealed conviction for refusing to provide breath sample into approved screening device. Officer believed that accused was texting with his smart phone and stopped accused’s vehicle, but he never saw cell phone in accused’s hands. Officer saw nothing remarkable about accused’s driving before he stopped him, but noticed odour of alcohol on accused when he approached vehicle. Officer testified that accused indicated that he understood breath demand, but refused to comply. Accused testified that vehicle had been used for bottle drive and that some of alcoholic content from bottles had spilled inside car and had not yet been cleaned up, leaving strong odour in vehicle. Accused testified that officer questioned him in aggressive manner and that he kept silent when breath sample demand was made because he felt intimidated and felt that he would not be treated fairly. Trial judge held that accused was not arbitrarily detained, but found breach of his s. 9 rights under Canadian Charter of Rights and Freedoms by police over-holding him where there were no indicia of impairment. Accused argued that trial judge erred by linking rejection of his evidence to his right to silence under Charter, particularly his silence regarding reason for interior of car smelling of alcohol. Accused argued that trial judge erred by finding that officer had reasonable and probable grounds to believe that he was texting while driving and by failing to find that initial stop was arbitrary. Appeal allowed, conviction and sentence vacated, stay of proceedings entered. It was clear that trial judge linked accused’s silence regarding smell of alcohol in vehicle to major finding that accused’s evidence lacked credibility. Only two objectively discernible facts were that accused was in front seat of his car with his head illuminated from below, and his head was pointed downward while at red light. There was no evidence of bad or distracted driving or of communication device being used by accused, only appearance of such by officer whose interest was heightened to such behaviour. This was investigation that used initial stop on flimsy grounds to become immediately investigation of drinking and driving offence for which there was not even hint of articulable cause. Stop that detained accused was done on perhaps slightly more than hunch but no more than guess plus assumed facts from subjectively mounted appearance. Initial stop breached accused’s s. 9 Charter rights. This was clear case warranting stay of proceedings. Allowing process to continue in any way, considering less serious nature of charge, would have been seen by informed public as unfair in circumstances.
R. v. Mughal (Dec. 18, 2013, Ont. S.C.J., Howden J., File No. Barrie 13-026) 111 W.C.B. (2d) 59.
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