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Attempts

GENERAL

Accused incapable of planning and deliberation required to tell convincing lie

Trial of accused for attempting to obstruct justice. Individual attended at police station on April 5, 2011 and he informed officer that he was responsible for large marijuana grow-op that police discovered in October 2010. Owner of property was arrested at site and he was charged. Owner was released from custody pursuant to recognizance. Accused was owner’s younger brother and he was named as surety on recognizance for $50,000. Owner lived with accused after his release. Several hours after individual confessed to crime he admitted that he was not involved in grow-op and he was promised $25,000 by owner if he confessed to being person who used property for growing marijuana. He only visited property once, on March 27, 2011, to familiarize himself with property before he confessed to police. Individual claimed that he was accompanied and driven to property by accused. Owner could not accompany him because his recognizance did not permit him to visit property. Accused denied knowing that marijuana was grown on property and he denied meeting individual prior to court proceedings in this matter. Accused convicted. Individual’s evidence had internal consistency that underscored its reliability. It was supported by facts and other evidence and it was credible and truthful. Court would not make adverse finding of credibility against individual solely because he had criminal record. Individual was simple man who lacked ability to set up and operate sophisticated grow-op and it would not have taken two officers who interviewed him too long to come to that realization. He was incapable of planning and deliberation that was required to tell convincing lie.
R. v. Yeung (Sep. 4, 2014, Ont. S.C.J., E.J. Koke J., File No. CR-12-26-0000) 115 W.C.B. (2d) 435.

Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Police were at stage of ‘reasonable grounds to suspect’

Accused appealed convictions for refusing to provide breath sample, assault with intent to resist arrest, four counts of assaulting police officer, and one count of carrying concealed weapon. Officers testified that accused was stopped for speeding and became uncooperative when officer called for approved screening device. According to officers, accused was belligerent and assaulted then when they tried to make arrest. Accused testified that he fully cooperated with police but refused to provide breath sample until he contacted his lawyer. Accused testified that officers hit him. Trial judge did not believe accused’s evidence that he told officers that he agreed to provide breath sample but wanted to speak to lawyer first. Accused argued that trial judge erred in finding that police had grounds to demand breath sample. Appeal dismissed. Accused had been driving at very high speed and made “rolling stop” at stop sign. Officer noticed strong smell of alcohol on accused’s breath, glossy eyes, and accused had admitted that he had consumed alcohol. Police were only at stage of “reasonable grounds to suspect”, not higher standard. There was ample evidence to support finding of trial judge that there were reasonable grounds to suspect presence of alcohol in accused’s body.
R. v. Marriott (Aug. 19, 2014, Ont. S.C.J., R.F. Goldstein J., File No. 81/12) 115 W.C.B. (2d) 341.

Appeal

SENTENCE APPEAL

Legislation did not allow judges to avoid consequences imposed on accused

Crown appealed four decisions in which sentencing judges made exemptions to accused and did not order them to pay victim fine surcharges. Crown’s four appeals were granted and four rulings by trial judges as to victim fine surcharge were set aside; accused ordered to pay victim fine surcharges. In absence of constitutional issue having been raised before trial court, Crown and all defence counsel essentially agreed that there was no alternative but to allow appeals. Each ruling demonstrated effort by trial judge to avoid consequences imposed on accused by new legislation in s. 737 of Criminal Code mandating imposition of victim fine surcharge. Each of trial judges obviously viewed new legislation as detracting from fair application of sentencing principles. Problem was that applicable legislation did not allow them this discretion. Each of rulings, as consequence, amounted to legal error.
R. v. Nicholson (May. 15, 2014, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-13183, 13-13506, 13-12947, 13-12990) Decision at 113 W.C.B. (2d) 590 was varied.  115 W.C.B. (2d) 318.

Defences

ENTRAPMENT

Opportunity to commit offence was given in context of reasonable suspicion

Accused was found guilty of internet luring. Accused applied for stay of proceedings on basis of entrapment by police. Male police officer pretending to be female communicated electronically over several months with accused in response to two advertisements which he had placed in “casual encounters” section of Craigslist. Accused had sought females over age of 18 with whom he proposed to smoke marijuana and have sex. “Female” stated very early on in electronic exchanges that “she” was 14 years old, but accused asserted that he believed she was 16 or older. Accused argued that what was communicated to him by officer in his guise as “female” amounted to providing of opportunity to commit offence in circumstances where there was neither reasonable suspicion that he was already engaged in criminal activity nor making of bona fide inquiry. Accused argued that there was inducement. Application dismissed. Court was not persuaded that “words” of “female” took what was communicated by officer over line from mere neutral investigation into territory of providing opportunity commit offence. After “female” indicated that she was 14, accused made explicit reference to oral sex and, at that point, reasonable suspicion that accused was already engaged in criminal activity had come into existence. Communications between accused and “female” went on for months. Providing of opportunity to commit offence took place in context of reasonable suspicion, and entrapment was not made out. Internet was considered to be universal and investigation was not done in anything other than bona fide context. Police did not induce crime, as average person would likely have ended communication moment that “female” stated her age to be 14.
R. v. Argent (Jul. 17, 2014, Ont. S.C.J., Parayeski J., File No. CR-4301) 115 W.C.B. (2d) 33.

Assault

ASSAULTING PEACE OFFICER

12 months illegal sentence where Crown proceeded summarily but conviction upheld

Accused appealed his conviction and concurrent 12 month sentences for assault police officer and breach of probation. Police were called after accused was causing disturbance at hospital but let him go until they discovered that their computer showed he needed permission letter to be away from house arrest. Police sought out accused who was abusive and spat on police and he was initially arrested for breach of recognizance. It was subsequently discovered that police computer was not up to date as accused no longer needed letter and was just on probation. Appeal against sentence only allowed. Sentence was changed to six months as 12 months was illegal sentence where Crown proceeded summarily but conviction was upheld. Information relied on to make arrest may turn out to be inaccurate or unreliable, after further investigation. Where police rely on information that turned out to be false or unreliable, lawfulness of antecedent arrest depended on whether it was reasonable, in circumstances that existed at time. Police reasonably believed accused was in default of his recognizance which justified arrest and spitting on police was assault.
R. v. Boston (Jul. 28, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-30000-112AP) 115 W.C.B. (2d) 9.

Charter of Rights

RIGHT TO BE INFORMED OF SPECIFIC OFFENCE

Officer had no excuse for not advising accused passenger was deceased

Accused charged with impaired driving causing death, causing death while driving “over 80”, criminal negligence causing death, and dangerous driving causing death. Breath technician said she made “conscious decision” not to tell accused about death out of safety concerns, having been attacked by drunk person in past resulting in injuries requiring surgery. Breath technician acknowledged that, while in breath room, she was armed, as were two other officers. Officer asked others involved if accused had been advised that he was facing charge involving fatality. When officer heard accused had not been so advised, he went into interview room to speak to accused, and told him that his passenger had died and that he was facing much more serious charge of impaired driving causing death. Officer asked accused if he wished to speak to lawyer and accused declined but officer persisted and told him that charge was much more serious and that he would probably go to jail after which accused opted to speak with duty counsel. First breath sample excluded. Court agreed accused’s rights had been breached. It was completely unreasonable for police officer to think that person, who was completely covered by tarp, and unattended by any EMS personnel, might still be alive. If officer had any doubt, he could have asked one of paramedics. Officer had no excuse for not advising accused passenger was deceased. If police had wished to wait for official confirmation, they should have refrained from attempting to elicit evidence from accused in meantime. Accused’s conduct at scene and at police station belied actual awareness of passenger’s death. While court believed breath technician’s reasons she gave for not informing accused of fatality, it was not acceptable reason for failing to inform accused of true state of affairs. After accused was properly apprised of his jeopardy and persuaded of potential penal consequences of the situation, he did call lawyer. This turn of events spoke to obvious inadequacy of previous information provided to accused. Short of finding bad faith, conduct of four officers involved was wilful or seriously reckless. Actions of officer who informed accused of passenger’s death were Charter-compliant and severed link between earlier breach and collection of second sample.
R. v. Karafa (May. 21, 2014, Ont. S.C.J., Trotter J., File No. null) 114 W.C.B. (2d) 68.

Appeal

NEW TRIAL

Evidence of prior conduct in context of harassment charge presumptively admissible

Appeal by Crown from acquittal of accused on charge of criminal harassment. Complainant was former employee of accused. She left his employ on bad terms in 2010 because he provided poor reference for her when she applied for another job. After complainant left accused called her on numerous occasions and he left messages in which he said he missed her. Accused called in total of between 20 and 30 times and this forced her to change her phone number. He waited for her outside her home and he left gifts for her at home of her parents. Gifts continued even after she changed her phone number. Complainant went to police and they warned accused not to have any further contact with her. She was working at restaurant on March 27, 2013 and accused attended restaurant and he tried to get her attention and she ignored him. When complainant went to her car accused sped towards her in his vehicle. Accused followed her in his vehicle and complainant called her boyfriend on her cell phone. Trial judge found that there had been no overt threat and he described restaurant encounter as innocuous. Appeal allowed. Acquittal set aside. Judge erred in excluding content of telephone calls placed by accused to her prior to March 27 incident. Evidence of prior conduct in context of criminal harassment charge was presumptively admissible. Previous interactions between accused and complainant, that set backdrop for charge, had to be heard and evaluated to assess reasonableness of complainant’s fear. Judge also erred in his treatment of restaurant encounter, in which he excluded relevant evidence. His description of restaurant encounter, which he termed as being innocuous was illogical. Based on evidence that judge did accept, his acquittal was unreasonable. New trial was ordered to enable all of relevant evidence to be before court.
R. v. Deary (Jun. 18, 2014, Ont. S.C.J., Healey J., File No. CR-13-231-AP) 114 W.C.B. (2d) 5.
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