Law Times

September 28, 2015

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Law Times • sepTember 28, 2015 Page 15 ONTARIO CRIMINAL CASES Appeal RIGHT OF APPEAL Notice of constitutional ques- tion is not simply technicality Three accused applied for leave to appeal their convictions of attempt to commit mischief in course of peaceful protest at Frontenac Penitentiary. Trial judge found that accused had attempted to block cattle trucks from leaving institution. Ac- cused received conditional dis- charge. Basis of accuseds' appli- cation and appeal was that courts below erred in finding that their peaceful protest was not pro- tected expression under s. 2(b) of charter. Application for leave to appeal dismissed. Accused did not serve notice of constitutional question as required by s. 109 of Courts of Justice Act. Charter argument was not made at first instance and in fact accused, who were self-represented, disclaimed charter argument. Although ac- cused were represented on sum- mary conviction appeal, sum- mary conviction appeal judge give little consideration to s. 2(b) argument, concluding that trial judge's findings of fact were suf- ficient to conclude that accuseds' conduct was not protected by charter. Notice of constitutional question is not simply techni- cality. Jurisprudence confirmed that notice is mandatory: to put government on notice that leg- islation is being challenged and to give it full opportunity to support its validity and to en- sure that court has benefit of full factual record. Court had no jurisdiction to grant relief in absence of notice or in absence of circumstances discussed in Paluska, none of which existed here. Accused conceded that re- cord before court did not permit assessment of charter arguments or to grant charter remedy. In ab- sence of grounds to grant leave on charter arguments, court was not prepared to grant leave on ac- cuseds' alternative submissions as to trial judge's failure to apply charter values to defence submis- sions. R. v. McCann (Jun. 15, 2015, Ont. C.A., G.R. Strathy C.J.O., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C58917) Leave to appeal from 113 W.C.B. (2d) 345 was refused. 123 W.C.B. (2d) 219. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Reasons for wanting to stop vehicle were racially motivated and not legitimately connected to highway safety concerns Police officer claimed that she observed Mercedes vehicle driving erratically. Accused driver, 23-year-old black male, was approached by officers af- ter parking in lot and exiting vehicle. Accused was arrested for careless driving and failing to identify himself and hand- cuffed to cruiser. During search of vehicle, loaded firearm was found in purse in backseat pas- senger foot well. Accused was charged with weapons offences. Accused's sister testified that she owned purse and had been in relationship with drug dealer who carried gun and had bor- rowed purse. Accused brought application to exclude evidence based on breaches of, inter alia, s. 9 of Charter of Rights and Freedoms. Application granted. Officer's reason for wanting to stop vehicle was that driver was young black male in area known for gangs, drugs and guns and vehicle was Mercedes. Crown acknowledged no dual purpose to arrest, investigation and search. Highway Traffic Act stop was ruse or pretext to investigate suspected, non-spe- cific criminal activity. Officer stated that when she saw vehicle, she immediately thought it was stolen or involved in illegal ac- tivity. Police treated incident as dangerous, explosive situation and not traffic stop. Reasons for wanting to stop vehicle were ra- cially motivated and not legiti- mately connected to highway safety concerns. No articulable cause for stop. Stop violated s. 9 and accused's arrest for care- less driving unlawful. Arrest for failing to identify also unlawful as accused not given reasonable opportunity to provide identifi- cation. In f lagrant and unique circumstances, admission of firearm would bring adminis- tration of justice into disrepute. R. v. Smith (Jun. 11, 2015, Ont. S.C.J., J. Wilson J., File No. 12- 30000101-0000) 123 W.C.B. (2d) 234. SEARCH AND SEIZURE No error in conclusion that inves- tigative necessity requirement met Trial judge convicted four accused of numerous fraud-related offenc- es arising out of credit card skim- ming scheme. All four accused participated in business that pro- vided devices for skimming and Crown alleged they knew they were sold to fraudsters. Police obtaining authorizations to inter- cept communications of accused after investigation mounted when devices from business recovered in forgery schemes. Trial judge permitted cross-examination of affiant on investigative necessity and probable cause but dismissed s. 8 Charter of Rights and Free- doms application concluding s. 186(1) complied with. Accused's appeals from convictions dis- missed. Trial judge's conclusion investigative necessity require- ment met contained no reversible error. Practically speaking no oth- er reasonable method of investi- gation available in circumstances of particular investigation. Police did not need to exhaust every in- vestigative procedure for require- ment to have been met. Not case that ultimate goal was to pros- ecute accused under s. 342.01(1) for which authorization could not have been granted. Irrelevant to review of whether investiga- tive necessity met that evidence gathered in relation to one offence could be relevant and material to another. Trial judge's rulings hat probable cause requirement met contained no error. Ample evidence in affidavit as amplified to support reasonably grounded belief authorization judge could have concluded known persons were conspiring to commit credit card fraud. Evidence disclosed de- vices and equipment sold by busi- ness capable of use in fraud and specifically designed to appeal to fraudsters. Conduct alleged was not dated as business continued to operate and make devices avail- able on ongoing basis. Open to authorizing judge to infer current criminality from past criminality R. v. Beauchamp (Apr. 17, 2015, Ont. C.A., E.A. Cronk J.A., R.A. Blair J.A., and David Watt J.A., File No. CA C51916, C51918, C51949, C52248) Deci- sion at 87 W.C.B. (2d) 564 was varied. Decision at 85 W.C.B. (2d) 643 was affirmed. 123 W.C.B. (2d) 262. No err in finding that offi- cer had grounds to believe accused was imminent threat when search took place Accused charged with posses- sion of firearm. Police stopped accused on street to ask his name and if he had outstanding war- rants. While police filled out report another man approached and criticized them for harassing accused. Accused then turned his body sideways leading police to believe he was armed. Ac- cused refused to show his hands and police patted his sides feel- ing firearm. Trial judge found accused was arbitrarily detained but that search was reasonable. Trial judge admitted gun pursu- ant to s. 24(2). Accused's appeal from conviction dismissed. Trial judge did not err in finding that officer had grounds to believe ac- cused was imminent threat when search took place. R. v. Fountain (May. 19, 2015, Ont. C.A., John Laskin J.A., H.S. LaForme J.A., and Paul Rouleau J.A., File No. CA C57877) Decision at 108 W.C.B. (2d) 118 was affirmed. 123 W.C.B. (2d) 244. Courts ABUSE OF PROCESS Appropriate to order new trial to air allegations of abuse of process Accused faced weapons and drug charges based on seizures from two residences. Defence intended to assert theory that third party forced accused to store seized items under du- ress. Accused brought abuse of process application assert- ing Crown had offered condi- tional sentence in exchange for statement accused and defence counsel knew duress allegations false. Trial judge dismissed ac- cused's abuse of process applica- tion concluding that settlement privilege applied and there was no exception. Trial judge held privilege not waived simply because accused's father pres- ent. Trial judge held application failed as no extrinsic evidence of Crown misconduct. Trial judge held offer did not interfere with accused's relationship with counsel because ultimately re- jected. Appeal from convictions allowed and new trial ordered. Exception to settlement privi- lege applied in circumstances as accused had demonstrated countervailing public interest in investigating allegation of Crown misconduct. Trial judge erred by concluding extrinsic evidence needed to overcome threshold required for court to look behind exercise of Crown discretion. Burden met due to rare and exceptional nature of offer that purported to interfere with accused's relationship with his counsel. Alleged offer gave rise to potential conf lict of inter- est as accused defence counsel of suborning perjury. Appropriate to order new trial to air allega- tions of abuse of process with evidence of content of settle- ment discussion. R. v. Delchev (May. 28, 2015, Ont. C.A., J. Simmons J.A., Paul Rouleau J.A., and M. Tull- och J.A., File No. CA C56361) 123 W.C.B. (2d) 249. Evidence WITNESSES Trial judge erred by relying on complainant's demeanour Trial judge convicted accused of sexual assault and threatening in respect of alleged assault on sex trade worker. Complainant gave videotaped statement and pre- liminary hearing evidence but died prior to trial. Preliminary hearing evidence being admit- ted on consent and videotaped evidence admitted as principled exception to hearsay rule. Trial judge held necessity criterion met because statement provided evi- dence of complainant's demean- our. Trial judge referred to com- plainant's demeanour in assess- ing credibility. Appeal allowed and convictions overturned. Trial judge erred by admitting videotaped statement when pre- liminary hearing evidence al- ready admitted. Trial judge erred by relying on complainant's de- meanour in statement in assess- ing her credibility. Demeanour given limited weight as many fac- tors limited its reliability as gauge for assessing credibility. Factors such as pressures and artificiality of courtroom, feigned sincerity, cultural biases or stereotypes de- tracted from value of demeanour evidence. Error compounded by lack of cross-examination on complainant's demeanour. R. v. Rhayel (May. 27, 2015, Ont. C.A., G.R. Strathy C.J.O., David Watt J.A., and Gloria Epstein J.A., File No. CA C57110) 123 W.C.B. (2d) 255. Mutual Legal Assistance between States GENERAL Application to re-open orders and have inter partes hear- ing was dismissed Accused faced extradition to U.S. for sexual offences against children after Canadian charges for same offences withdrawn. Judge granted Crown's written ex parte application for Gather- ing and Sending Orders of fruits of Canadian investigation un- der Mutual Legal Assistance in Criminal Matters Act. Accused applied to re-open orders and have inter partes hearing based on alleged instances of mate- rial non-disclosure in ex parte application. Accused alleged failure to disclose likely defence challenge to Canadian search warrants and fact that defence sought disclosure to defend merits of extradition hearing was materially misleading. Ac- cused alleged warrantless sei- zure of information sent to U.S. was fact that was material and would have required inter partes hearing. Accused's application dismissed. Ex parte orders made under act subject to inter partes review pursuant to court's in- herent jurisdiction. Only if facts on which orders granted found to be different from facts proved on ex parte review should orders be disturbed. Instances of non- disclosure alleged by accused in- sufficient basis for issuing judge to have given notice and allow accused standing at inter par- tes s. 20(2) act hearing. Alleged non-disclosure of facts about "legality" of Canadian search warrants and outstanding dis- closure requests would have had no impact on decision to issue orders. Warrantless seizure of personal information not mate- rial fact that would have caused inter partes hearing as evidence inevitably admissible. Viscomi v. Ontario (Attorney General) (Sep. 11, 2014, Ont. S.C.J., M.A. Code J., File No. 14- 90000122-00MO) 123 W.C.B. (2d) 271. Trial LANGUAGE TO BE USED Committal for trial quashed and costs awarded where accused's lan- guage rights were seriously violated Accused charged with offences relating to cocaine trafficking. Six co-accused elected to be tried in English while accused elected French trial. Crown proceeded with joint bilingual preliminary hearing. Crown served notices and transcripts of tendered intercepts in Eng- lish only. At preliminary hear- ing, unilingual English-speak- ing Crown counsel questioned almost all witnesses. Trial judge rejected accused's request for bilingual court reporter. Ac- cused applied for certiorari and sought stay of proceedings. Application judge found vio- lations of accused's language rights but awarded no remedy. Appeal allowed and commit- tal for trial quashed with costs awarded to accused. Accused's language rights were seriously violated. R. v. Munkonda (May. 5, 2015, Ont. C.A., Robert J. Sharpe J.A., Paul Rouleau J.A., and Gladys Pardu J.A., File No. CA C56089) 123 W.C.B. (2d) 305. LT CASELAW

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