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Charter of Rights


Inducements made to accused to get her to provide statement

Application by Crown to admit two statements made by accused to police. Accused was charged with second degree murder. Accused’s first statement was made to one of two police officers who responded to 9-1-1 call at accused’s building. In parking garage officers found accused, witness who made 9-1-1 call and deceased who was not breathing. One officer had brief conversation with accused and asked her for her name and if she was from specific apartment. Accused provided her name and she said she was from that apartment. She also told officer that deceased attacked her and she defended herself. Officer testified that accused was hysterical and distraught and he calmed her down, by telling her she was not in trouble and by placing his hand on her shoulder to reassure her and he was able to obtain information from her. He also testified that accused was not suspect when he questioned her. Second statement was lengthy statement that was videoed and audiotaped at police station. Crown applied for ruling on voluntariness of first statement and statement made at station. It conceded that second half of statement made at station could not be proven to be voluntary and Crown did not seek to introduce it. Accused claimed that entire statement at station was involuntary and that both statements should be excluded on basis that accused’s rights under Canadian Charter of Rights and Freedoms were infringed. Application allowed in part. First statement was admissible as it was given voluntarily. Her Charter rights were not breached when she gave that statement because she was not detained when she provided it. Statement taken at station was not proven to have been given voluntary and it was inadmissible. Inducements were also made to accused to get her to provide statement. Prior to interview accused was left in cold room with inadequate clothing for 10 hours before interview and she was given water and no food. At that interview accused was questioned in aggressive manner and she repeatedly told interviewing officers that she did not want to answer any questions and she had been advised by counsel not to do so. Officers ignored her and they continued with interview. If conclusion on voluntariness was wrong, statement at station was still inadmissible because several of accused’s Charter rights were violated and admission of statement would bring administration of justice into disrepute.
R. v. Dupuis (May. 2, 2014, Ont. S.C.J., M. Forestell J., File No. 13-40000614-0000) 113 W.C.B. (2d) 433.

Charter of Rights


Constellation of facts provided ample grounds for accused’s arrest

Accused appealed conviction. Issue was constitutionality of arrest that took place at door to accused’s apartment. Appeal dismissed. Despite some confusion in trial judge’s terminology between grounds for detention and grounds for arrest, findings of fact by trial judge, including marijuana smoke, accused’s suspicious conduct, and visible drug paraphernalia, provided ample grounds for accused’s arrest. Constellation of facts, viewed reasonably and cumulatively by someone with experience of officer in question, provided ample grounds for accused’s arrest. As arrest was lawful and, therefore, not breach of s. 9 of Charter, subsequent conduct of police, although clearly improper, could not have impacted on admissibility of evidence in question.
R. v. Meiz (Mar. 17, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55769) 113 W.C.B. (2d) 406.



Nothing to suggest uneven scrutiny of evidence

Accused appealed conviction for several offences, including possession of loaded prohibited weapon. Accused argued that trial judge failed to consider third branch of test in R. v. W.D., reversed burden of proof, and exposed defence evidence to higher degree of scrutiny than Crown’s evidence. Appeal dismissed. Nothing in trial judge’s reasons supported accused’s arguments. Trial judge addressed evidence by reference to several specific factual issues that arose in evidence. Trial judge thoroughly reviewed evidence, clearly appreciated where defence and Crown evidence conflicted, and gave various reasons for accepting Crown evidence in relation to those factual issues. Trial judge considered inconsistencies in evidence of various police officers who described melee that occurred, but explained in detail why those inconsistencies did not undermine credibility of witnesses. There was nothing to suggest uneven scrutiny of evidence. Several parts of accused’s evidence were, on their face, incredible, and it hardly took any unwarranted degree of scrutiny to reject that evidence.
R. v. Francois (Mar. 27, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55431) 113 W.C.B. (2d) 326

Charter of Rights


Purpose of activity in question was not simply to communicate political idea or voice protest

Accused individuals appealed conviction for attempting to commit mischief. Accused individuals were engaged in series of demonstrations and attempted to block cattle trucks from removing herd of cattle from institution after cancellation of prison farm program. Trial judge found that while demonstration was peaceful and was clearly political, objective was not simply to express displeasure but to stop removal of cattle, which institution was legally entitled to do. Accused individuals argued that trial judge erred in finding that their actions constituted attempted mischief and erred in finding that it was not within “limits of tolerance in democratic society”, such that it did not constitute criminal wrongdoing. Accused individuals argued that they were engaged in peaceful expression of protest and that their conduct was protected pursuant to s. 2(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Trial judge’s decision was supported given findings of fact. Accused individuals’ conduct was not Charter-protected. Purpose of activity in question was not simply to communicate political idea or to voice protest, but to halt removal of cattle. Evidence before trial judge was sufficient to allow him to conclude that conduct of accused individuals crossed line and constituted criminal wrongdoing. Trial judge was entitled to conclude that conduct of accused individuals was to block cattle trucks and stop closure of prison farm, as opposed to expressing idea. Trial judge did not directly address s. 2(b) Charter argument largely because accused individuals at trial argued de minimis and necessity. Full reading of trial judge’s decision indicated that he did turn his mind to constitutional right of freedom of expression pursuant to s. 2(b) of Charter, and that he made specific findings of fact sufficient to conclude that actions of accused individuals were not protected by s. 2(b) of Charter. Trial judge’s decision was correct and supported by evidence.
R. v. McCann (May. 13, 2014, Ont. S.C.J., John M. Johnston J., File No. CR-12-15, 12-153, 12-152) 113 W.C.B. (2d) 345.



Trial judge erred by leaving post-offence conduct as probative on issue of intent to kill

Jury convicted accused of second degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual relations at his home. Accused testified he inadvertently smothered deceased during effort to restrain her when his retreat from her attack failed. Pathologist being unable to pinpoint cause of death. Accused having engaged in extensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Police uncovered considerable forensic evidence in home notwithstanding accused’s efforts to clean. Accused fleeing from and lying to police about having been responsible for death when first arrested. Accused raised defences of self-defence and provocation. Crown arguing evidence suggested prolonged and brutal attack of deceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Appeal allowed and new trial ordered. Trial judge erred by leaving post-offence conduct of flight and lies to police as probative on issue of intent to kill. Evidence had no probative value on intent as person responsible for manslaughter just as likely to flee and lie to authorities. Trial judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative to intent. Evidence only probative of intent if jury first accepted Crown’s theory deceased had been victim of prolonged, bloody attack by accused. Curative proviso did not apply as issue of intent and evidence of post-offence conduct central issues at trial.
R. v. Rodgerson (May. 8, 2014, Ont. C.A., Doherty J.A., K. Fledman J.A., and J.C. MacPherson J.A., File No. CA C56484) 113 W.C.B. (2d) 232.



Non-expert witness could give evidence that person was intoxicated

Appeal by Crown from acquittal of accused on charge of operating motor vehicle while drug impaired. Accused was arrested and he was taken before police officer who was drug recognition expert (DRE), who concluded that accused was drug impaired. Trial judge found that DRE’s opinion was to be received without conducting voir dire. Accused was acquitted, Crown successfully appealed and new trial was ordered. At new trial Crown sought to call DRE to give evidence without voir dire. Accused objected to this approach and judge found that voir dire was necessary. Voir dire was conducted, judge refused to qualify DRE as expert and his opinion was not allowed. DRE could not even give lay opinion on issue of accused’s possible impairment. Acquittal that was subject of this appeal resulted. Appeal allowed. DRE’s opinion could be given in court without voir dire. Non-expert witness could give evidence that person was intoxicated and police officer, without qualification, could give evidence that accused was intoxicated or impaired. No specific qualifications were required. DRE should have been able to give his lay opinion regarding accused’s condition. DRE should have been able to give his evidence. New trial was ordered because it was only alternative in this case.
R. v. Bingley (May. 22, 2014, Ont. S.C.J., McLean J., File No. 09-2086) 113 W.C.B. (2d) 198.



Jury well equipped to understand and determine issue of planning and deliberation

Appeal by accused from conviction for first degree murder. Accused was tried by judge and jury for first and second degree murder. Victim was woman with whom accused once lived in common law relationship. At trial Crown’s position was that killing amounted to planned and deliberate murder and accused killed her because he could not accept her independence. On appeal accused conceded liability for second degree murder but he claimed that trial judge erred in her instructions on evidence that related to issue of planning and deliberation. Appeal dismissed. Appeal did not turn on judge’s legal instruction on planning and deliberation, which accused described as impeccable. Rather, it turned on whether judge adequately addressed evidence so that jury was equipped to understand and determine issue of planning and deliberation for purposes of first degree murder conviction. Judge invited jury to consider evidence that could support inference of planning and deliberation. She fairly reviewed evidence and she was not required to review every competing inference that could be drawn from piece of circumstantial evidence. Judge was also not obligated to review all of evidence. Jury was well equipped to understand and determine issue of planning and deliberation and whether accused should be convicted of first degree murder. Charge to jury was fair and there was no miscarriage of justice.
R. v. McPherson (Mar. 26, 2014, Ont. C.A., S.T. Goudge J.A., S.E. Pepall J.A., and E.A. Cronk J.A., File No. CA C49298) 113 W.C.B. (2d) 95.
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