Law Times

Law Times • may 16, 2016 Page 15 www.lawtimesnews.com of his older brother. Deceased was severely disabled and func- tioned at mental age of five- to seven-year old and was com- pletely dependent on accused for all facets of his care and wellbe- ing. Facts of case were horrific. Accused was able to act with inhumanity and cruelty towards his incapacitated brother so as to have extra thousand dollars per month. Due to accused's lack of insight into gravity of his ac- tions, sentencing judge unable to assess level of risk he posed to safety of community as be- ing other than high. Accused appealed sentence. Appeal al- lowed; accused given additional 619 days' credit for pre-sentence custody; appeal otherwise dis- missed. Counsel for accused submitted that in impugned paragraph trial judge used lack of remorse as aggravating fac- tor. However, when properly read together with subsequent paragraph, it indicated that trial judge regarded accused's lack of insight into seriousness of his crime, as evinced by ab- sence of remorse, as aggravat- ing factor because of its impact on accused's potential danger to community. Aggravating cir- cumstances of this case clearly called for sentence outside of ex- isting range. Accused had taken deceased from facility where he was well cared for and loved and imposed neglect and abuse on victim as soon as he was re- moved and which continued for eight years until deceased fi- nally died from combined effect of starvation, pneumonia and over 30 infected massive bed- sores, some of which had gone right to deceased's bones. De- ceased weight 57 pounds when he died. Sentence was long, but it was not clearly unreason- able. Sentence was appropriate. Parties agreed that in light of S.C.C. decision in R. v. Sum- mers, released after trial judge's reasons, trial judge should have given accused 1.5 days' credit for each day he was in custody prior to sentencing. On that cal- culation, accused was entitled to additional 619 days and total credit for pre-sentence custody of five years, and one month. R. v. Hawley (Feb. 17, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C58928) Decision at 109 W.C.B. (2d) 236 was varied. 128 W.C.B. (2d) 323. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Police have no statutory author- ity to randomly stop motor- ists in private parking lot Accused charged with over 80. Accused stopped in large parking lot by police officers as part of R.I.D.E. program. Ac- cused acknowledged consum- ing alcohol and failed roadside screening test. Accused's breath samples analyzed as over legal limit. Defence sought exclusion of breath samples on basis that accused's detention violated s. 9 of Charter. Trial judge dismissed application and convicted ac- cused. Appeal from convic- tion dismissed. Police have no statutory authority to randomly stop motorists on private park- ing lot. Police's common law authority to conduct sobri- ety checks without reasonable grounds extends to parking lots. R. v. Vander Griendt (Oct. 28, 2015, Ont. S.C.J., F. Dawson J., Brampton SCA(P) 415/14) 128 W.C.B. (2d) 330. FUNDAMENTAL JUSTICE Provisions of regulation regard- ing bookmaking and other gam- ing offences not overbroad Six accused were charged with various criminal organization offences, including s. 202 of- fence of bookmaking for ben- efit of criminal organization, contrary to s. 467.12 of Crimi- nal Code. Certain of accused were also charged with being member of criminal organiza- tion and knowingly instructing person to commit s. 202 offence of bookmaking for benefit of criminal organization, contrary to s. 467.13 of Criminal Code. Accused applied for declaration that provisions of Regulation, deeming bookmaking and cer- tain other gaming offences to be "serious offences" for purposes of Criminal Code's "criminal organization" provisions, be found to violate s. 7 of Charter. Application dismissed. In all of hypotheticals offered by ac- cused, there was at least one, if not more, missing elements that would be required to sustain charge relating to gaming of- fences and/or criminal organi- zation offences. To satisfy mens rea requirement of s. 467.12 jurisprudence was such that Crown must prove that accused knowingly dealt with criminal organization. Accuseds' over- breadth argument ascribed in- appropriately narrow purpose to relevant provisions and had interpreted them in manner that was inconsistent with Parlia- ment's actual intent Commis- sion offence provision (s. 467.12) made it offence to commit in- dictable offence for benefit of, at direction of, or in association with criminal organization. Like participation offence, mental element means that provision only applies to those who know- ingly and purposefully take ac- tive part in organized crime. Ac- cused must not only have requi- site intention to commit under- lying indictable offence, but also must have knowledge of crimi- nal organization and must have committed offence for benefit of, at direction of, or in associa- tion with that group. Relatively innocent conduct of individual peripherally coming into con- tact with criminal organization could not render that individual subject to any criminal orga- nization charges. Lack of over- breadth negated accuseds' gross disproportionality argument and, more importantly, dis- proportionality was precluded because criminal organization provisions did not impose man- datory minimum sentences. Im- pugned provisions of Regulation captured conduct they were in- tended by Parliament to capture, and penalized proportionately those it intended to penalize. R. v. Hair (Feb. 4, 2016, Ont. S.C.J., M.F. Brown J., CR-15- 40000148-0000) 128 W.C.B. (2d) 348. Section 719(3.1) of Criminal Code declared of no force and effect to extent that it denied enhanced credit to offend- ers whose bail was cancelled Accused pleaded guilty to as- sault causing bodily harm. Accused's bail had been can- celled after breach. Accused accordingly was disentitled to enhanced credit for pre-sen- tence custody by operation of s. 719(3.1) of Criminal Code. De- fence challenged constitution- ality of section. Section 719(3.1) declared of no force and effect to extent it denied enhanced credit to offenders whose bail was can- celled. Impugned section pro- duces unjustifiably differential outcomes between offenders. Section could not be saved un- der s. 1. Section was arbitrary and drew distinction between offenders that had nothing to do with circumstances of offence. R. v. Norman (Nov. 6, 2015, Ont. S.C.J., R.F. Goldstein J., 2011-7-726) 128 W.C.B. (2d) 339. VIDEO AND AUDIO EVIDENCE Crown permitted to admit child complainant's video statement at trial Accused was charged with sex- ual assault, sexual interference, invitation to sexual touching, and exposing his genitals, when complainant was five years old or under. Accused was in relation- ship with complainant's mother. Police interviewed complain- ant and her mother on video. Crown applied for order under s. 715.1(1) of Criminal Code to introduce complainant's video statement at trial. Application granted. Video recording must be made within "reasonable time" after alleged offence, and complainant must adopt con- tents of video statement at trial. Defence submitted that there was no evidence when alleged of- fence occurred and thus no time to start timeline to determine reasonableness. Contextual as- sessment is required in making determination. Rationale for de- lay and impact on witness' abil- ity to recall events are important factors to consider. Same exact- ing standard is not imposed on children as on adults. Video re- cording was made when com- plainant was five years old, one day after disclosure was made to her mother. Timeline started to run in May 2013, 21 months before date of last overnight visit by accused. Based on entirety of evidence, video recording was made within "reasonable time" after alleged offence. Accused told complainant to keep activi- ties "secret." Complainant was powerless and her delay in re- porting was entirely reasonable in circumstances. Admission of video recording would not inter- fere with proper administration of justice. Complainant was now only six-years old and remained child in need of protection af- forded by s. 715.1 of Code. Re- sidual discretion to exclude vid- eo statement was not exercised. Complainant's video statement conformed to s. 715.1(1) and was admissible, subject to complain- ant adopting it while testifying. R. v. S. (K.) (Feb. 26, 2016, Ont. S.C.J., S.J. Woodley J., 13955/15) 128 W.C.B. (2d) 361. PROFESSIONS Barristers and solicitors Application to remove counsel of record for accused was dismissed Accused was committed to trial on firearm and drug offences after police discovered in apart- ment loaded prohibited firearm, 28 grams of crack cocaine and indicia of drug trafficking. In- vestigation involved application to search two apartments, one of which was apartment where fire- arm and drugs were found. In- formation to Obtain (ITO) con- tained information from confi- dential informants (CIs) and ITO was sealed pursuant to justice of peace who authorized search. Pursuant Crown's obligation to provide disclosure, Crown ob- tained order to unseal search war- rant packet and to provide copies of ITO to Crown for purpose of editing and disclosing them to accused. Unvetted copy of ITO was disclosed to former defence counsel. Crown learned that for- mer counsel was in possession of unvetted copy. Before Crown be- came aware of this, former coun- sel provided copy of ITO and oth- er documents to accused. Police retrieved copies of unvetted ITOs from former counsel and from ac- cused. Former counsel removed herself from this case because of conf lict of interest and file was transferred to current counsel who worked in same office. Cur- rent counsel subsequently served and filed application under s. 8 of Canadian Charter of Rights and Freedoms on Crown and court. Application record included un- vetted copy of ITO, along with numerous pieces of information that could identify CIs. Court order was granted to seal applica- tion record and all copies of ITO were to be surrendered to Crown. Crown brought application to remove counsel of record for ac- cused. Application dismissed. This case was unusual because accused was in possession of all of information that counsel had. Ac- cused even had more information than counsel for he was aware of identity of two informants and he even had one of informants confirm to him that informant provided information to police. Crown also claimed that counsel did not intend to maintain con- fidentiality of information that she obtained about identity of CIs. There was no case law which provided that expressed intent as to way counsel intended to pro- ceed with defence was grounds for removal as counsel of record. R. v. Moxam (Feb. 23, 2016, Ont. S.C.J., Lofchik J., Hamilton 14- 4846) 128 W.C.B. (2d) 378. Sentence THREATENING Sentence for expressing ter- rorist sentiments on social media unduly emphasized denunciation and deterrence Accused sent out messages on his Twitter account expressing terrorist sentiments. Accused pleaded guilty to threatening to cause death or bodily harm. Ac- cused was sentenced to 365 days in prison less credit for 166 days pre-sentence custody, at rate of 1.5:1, resulting in credit of 250 days. Accused also received 30 days consecutive on theft count. Accused served his custodial sentence. Accused appealed sen- tence. Appeal allowed; sentence varied to four months in custody, which, on enhanced basis of 1.5:1 constituted six months in custo- dy. There was public interest in exercising law-making function by entertaining otherwise moot appeal. There were problems with naming public sensitivity to terrorism as ground for de- nunciatory sentence. There was no evidence accused was aware of shooting on Parliament Hill or that utterance was linked to those events. There was no "lo- cal condition" inviting judicial notice in sentence. Accused's communication came only to attention of couple of terrorists and police unit. Sentence undu- ly emphasized denunciation and deterrence. Sentence was outside acceptable range. Threat was naive and unsophisticated, in keeping with brain injury of ac- cused, his cognitive abilities and Gladue factors. Sentence should not have exceeded time served, having regard to other offences for which he was also sentenced. R. v. Boissoneau (Feb. 1, 2016, Ont. S.C.J., H.M. Pierce J., Thunder Bay CR-15-0031) 128 W.C.B. (2d) 399. CASELAW encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 2075 Kennedy Rd., Toronto, Ont. M1T 3V4 E-mail: gabrielle.giroday@tr.com

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