Law Times

Law Times • December 6, 2010 marijuana, was rejected. Police stopped car because computer searches on vehicle's licence plate showed that its owner and driver each had criminal record for fi rearms and drugs. Offi cers did not smell any marijuana. Police did not have reasonable or probable grounds to search vehicle. Given that there was no smell warrantless search of vehi- cle was unlawful and it violated s. 8. Evidence was excluded as its admission would bring ad- ministration of justice into dis- repute. R. v. Dinwall (Oct. 1, 2010, Ont. S.C.J., Belobaba J., File No. 1-598734) 90 W.C.B. (2d) 450 (9 pp.). Evidence HEARSAY Statement admitted under past recollection hearsay exception Application by Crown to intro- duce excerpts from audio state- ment that was given by victim to police on September 7, 2008. Accused was charged with sever- al off ences as result of allegedly shooting victim on September 4, 2008. Victim underwent ma- jor surgery to treat his wounds on September 4 and surgery continued into morning of Sep- tember 5. Police were unable to interview victim until evening of September 7 when his un- sworn statement was recorded. Victim could no longer recall making recorded statement but he asserted that what he said was true and accurate. Crown sought to introduce excerpts under hearsay exception of past recollection recorded. Applica- tion allowed. Statement was ad- mitted under past recollection hearsay exception. Statement was recorded in reliable way. Record was in its original state. At time record was made it was suffi ciently fresh and vivid to be probably accurate. Statement was given voluntarily. Victim knew he was speaking to police offi cers. Victim had no present memory of recorded evidence. His memory loss was genuine. Accused failed to show, on bal- ance of probabilities, that rel- evant portions of statement were otherwise inadmissible. Excerpts were suffi ciently reli- able to be put before jury. R. v. M. (C.) (Aug. 30, 2010, Ont. S.C.J., Th orburn J., File No. YO-9/09) 90 W.C.B. (2d) 463 (12 pp.). PREVIOUS RECORD OF ACCUSED Accused's criminal record only partly excluded from evidence Accused charged with second degree murder. Accused applied for order to exclude his criminal record from evidence. Accused had convictions in 2005 for pos- session of prohibited or restrict- ed fi rearm and possession of scheduled substance for purpose of traffi cking and convictions in 2007 for assault, use of imita- tion fi rearm during commission of indictable off ence and pos- session of scheduled substance. Accused was involved in struggle with deceased at party and shots were fi red which caused death of deceased. If he testifi ed, accused's evidence would be that he did not attend party with gun, that gun came out during struggle and that his actions were in self- defence. Crown conceded that drug convictions were of little or no probative value. Application allowed, in part. Previous convic- tions were not directly related to accused's honesty or trustworthi- ness, but were in near or recent past and could not be regarded as remote. Accused's criminal record as to gun possession was relevant and had probative value as to accused's credibility. As core issue was who brought gun and who fi red it, accused's credibility should be assessed fully by jury having regard to his past pos- session or use of fi rearm. Cross- examination of Crown witnesses by defence counsel challenged not only accuracy and reliability of their evidence, but also their truthfulness in that it was force- fully put to them that they had knowingly lied to police. Balanc- ing probative value of evidence and considering attack made on Crown witnesses' credibility, it would not be proper to insulate accused from his criminal past, as this would present distorted view to jury. Evidence of past gun possession would be accom- panied by clear limiting direc- tion as to use that could be made of it. Other convictions did not bear directly on accused's cred- ibility as to possession of gun at material time and their admis- sion would be of no assistance to jury. Admission of other con- victions would enhance risk that jury would misuse that portion of accused's record and conclude that he was overall person of bad character. R. v. Gill (Oct. 12, 2010, Ont. S.C.J., Daley J., File No. CRIMJ(P) 3807/09) 90 W.C.B. (2d) 467 (13 pp.). Sentence DRIVING OFFENCES Court bound by Court of Appeal ruling that s. 255(5) of Criminal Code not law of Ontario Accused pleaded guilty to dan- gerous driving and "over 80". Accused applied for order that non-proclamation in Ontario of s. 255(5) of Criminal Code was infringement of his s. 15(1) rights under Canadian Charter of Rights and Freedoms and that curative treatment provisions should be "read in". Accused had been convicted of several previous off ences of drinking and driving and dangerous driv- ing. Accused was alcoholic who went into residential treatment after his pleas were entered. Ap- plication dismissed. Court was bound by Court of Appeal rul- ing in R. v. Alton that curative treatment sections, not having been proclaimed in Ontario, were not law of Ontario. It was diffi cult for court to envisage that Court of Appeal was not considering same discrete and insular minority of alcoholics as was being considered in R. v. Pickup, which was relied upon by accused. Diff erence was one of nomenclature rather than of substance. R. v. Hobbs (Aug. 26, 2010, Ont. C.J., Cooper J., File No. 08-1587) CASELAW 90 W.C.B. (2d) 490 (6 pp.). Professions BARRISTERS AND SOLICITORS Application for removal refused where no breakdown of solicitor-client confidence and no evidence that accused wanted counsel removed Application by counsel for cor- porate and individual accused to be removed from record. Accused were charged under s. 31(1)(c) of Travel Industry Act, 2002 (Ont.). Alleged off ence was that accused continued to accept bookings and payments from consumers for travel ser- vices after registration of cor- porate accused as travel agent was suspended. Application was made after court refused to adjourn trial. Court refused to grant application because there was no breakdown of solicitor- client confi dence and there was no evidence that accused wanted counsel to be removed. Counsel took it upon himself to remove himself from proceedings. Trial proceeded in absentia since nei- ther accused nor their counsel were present. Ontario (Travel Industry Council of Ontario) v. Baldwin Travel and Tours Ltd. (Sep. 9, 2010, Ont. C.J., Dudar J.P.) 90 W.C.B. (2d) 510 (9 pp.). Sexual Offences SEXUAL ASSAULT Trial judge's credibility findings entitled to deference Accused appealed conviction for sexual assault. Accused argued trial judge erred in rejecting his explanation for how com- plainant's DNA came to be on his underwear. Accused argued trial judge erred by applying more stringent standard to his evidence than to evidence of complainant and her boyfriend. Accused argued that evidence of vaginal bleeding should have been aff orded much less weight given that complainant refused to permit pelvic examination in clinic. Appeal dismissed. Ac- cused's explanation for how complainant's DNA was on his underwear was farfetched and trial judge was entitled to re- ject it. Trial judge approached evidence of all witnesses who were intoxicated at time of of- fence with same degree of cau- tion. Trial judge explained why she rejected uncorroborated and inconsistent evidence of accused and her fi ndings of credibility were entitled to deference. Trial judge did not treat complain- ant's statement to nurse as bol- stering complainant's testimony. Complainant testifi ed that fol- lowing assault she was bleeding vaginally and trial judge was en- titled to accept her testimony. R. v. Gray (Oct. 7, 2010, Ont. C.A., Weiler, MacPherson and Armstrong JJ.A., File No. C50392) 90 W.C.B. (2d) 504 (3 pp.). Threatening And Intimidation CRIMINAL HARASSMENT www.lawtimesnews.com Accused's conduct could not objec- tively be interpreted as threat Accused appealed conviction for criminal harassment. Accused and complainant had been in unstable relationship. During their last telephone conversa- tion complainant told accused that she did not want to see him any longer, but gave no indica- tion that she felt threatened or intimidated. Accused went to complainant's condominium residence and asked that she be called to the lobby. When com- plainant came to lobby and saw accused she became distraught and hysterical and requested that police be called. Trial judge found that accused was obsessed and that he knew complainant did not want to have anything to do with him. Trial judge found that complainant subjectively felt harassed and had reasonable fear for her safety. Appeal allowed, acquittal entered. Trial judge did not explain how accused's being at condominium would convey message that would intimidate, coerce, or frighten complainant. Nothing manifestly threatening in accused's conduct as it took place in public and he did not say or do anything. While their past history explained why com- plainant was afraid, it did not explain how it was that accused made and intended to make threat. Accused's conduct could not objectively be interpreted to be threat. Th at accused was obsessed and knew that com- plainant did not want to have anything to do with him did not mean that he knew that she was afraid or intimidated by his pres- PAGE 19 ence. Complainant never told accused that he frightened her during their phone call, which was their last direct contact be- fore incident. R. v. Benjamin (Oct. 21, 2010, Ont. S.C.J., Perell J., File No. SCA 157/09) 90 W.C.B. (2d) 507 (10 pp.). Trial ADJOURNMENT There was risk that witnesses' memories would further erode over period adjournment Application by accused to ad- journ their trial. Accused con- sisted of corporation and indi- vidual. Th ey were charged with off ence under s. 31(1)(c) of Trav- el Industry Act, 2002 (Ont.). Alleged off ence was that accused continued to accept bookings and payments from consumers for travel services after regis- tration of corporate defendant as travel agent was suspended. Application dismissed. Request for adjournment was previously denied at trial confi rmation hearing. Off ences were alleged to have occurred in 2006. Re- scheduling would take matter into next calendar year. Matter had protracted history with nu- merous adjournment requests by accused. Prosecution had 10 witnesses present and there was risk that their memories would further erode over period of any adjournment. Ontario (Travel Industry Council of Ontario) v. Baldwin Travel and Tours Ltd. (Sep. 9, 2010, Ont. C.J., Dudar J.P.) 90 W.C.B. (2d) 510 (9 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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