Law Times

Law Times • sepTember 19, 2016 Page 15 www.lawtimesnews.com CASELAW Charter of Rights RIGHT TO INTERPRETER Onus is upon claimant of right seeking not to testify in language of judicial proceeding At outset of criminal trial, court was advised that Punjabi in- terpreter would be required for complainant. Punjabi interpret- er was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada's official languag- es. As trial progressed, it became evident that complainant under- stood, and was able to commu- nicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one- half hours. Second, complainant did not visibly experience dis- comfort while testifying. Third, complainant indicated pre- paredness to investigating offi- cer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact's ability to make credibil- ity determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if re- quired. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms pre- sumes that witness will testify in one of Canada's official languag- es absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding. R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317. Defences PROVOCATION Trial judge held that there was no air of reality to defence of provocation Deceased was beaten to death by accused, her common law husband. Following homicide, accused covered deceased with blanket, tore two pages from bible and pinned them to her chest with knife. Accused then proceeded to withdraw funds from deceased's bank account which he used to fund road trip with co-worker with whom he was having affair. Accused made two statements to police wherein he admitted to beating deceased to death with ham- mer and that he lost it when deceased insisted that if she was pregnant she would have abor- tion. Accused advanced defence of provocation, arguing that deceased's resolve to have abor- tion caused him to lose control. Trial judge held that there was no air of reality to defence and refused to put it to jury. Accused was convicted of second degree murder. Accused appealed his conviction. There was no error in trial judge's analysis of issue of provocation. In circumstances it could not reasonably be inferred that any insult occurred or ac- cused's reaction to such insult was sudden. Contextual fac- tors proposed by accused were so specific to accused that they turned ordinary person test into purely subjective one. Trial judge took factors proposed by defence into account when as- sessing ordinary person test and that even with factors included there was no suggestion that or- dinary person would have been deprived of self-control. Trial judge's only error was in finding that deceased's assertion that if she was pregnant she was hav- ing abortion could constitute insult for purposes of defence of provocation. Trial judge erred in stating that issue was whether accused perceived deceased's as- sertion as insult when test was whether ordinary person would perceive it as insult. R. v. B. (P.) (Jan. 8, 2016, Ont. C.A., David Watt J.A., C.W. Hourigan J.A., and Grant Huscroft J.A., CA C57599) 131 W.C.B. (2d) 312. Evidence CHARACTER EVIDENCE Personal opinion of witness is not evidence of general reputation for particular trait Two accused were on trial for first degree murder. Part of Crown's theory of case was that prior to murder, accused took used truck for test drive with plan to steal it. Crown alleged that accused aborted plan when truck owner, who was along on test drive, revealed that he had been in Israeli army. To advance this theory, Crown called truck owner as witness, and he testi- fied that there was change of at- mosphere in truck after he men- tioned Israeli army. Lawyer for one of accused cross-examined truck owner about test drive and elicited from him statement that accused was "a nice fellow" ("sub- ject cross-examination"). Crown counsel sought evidentiary rul- ing that subject cross-examina- tion introduced evidence of ac- cused's good character, thereby placing his character at issue. Ruling issued. It was ruled that subject cross-examination did not introduce evidence of ac- cused's good character. Subject cross-examination was derived directly from truck owner's own statement to police and was intended to neutralize impact about any change of dynamic in truck. Ancillary purpose for subject cross-examination might be subject to debate. How- ever, primary purpose of subject cross-examination was not to adduce evidence of general rep- utation but to merely rebut reli- ability of conclusory comments offered by truck owner related to Crown's theory of case. Repu- diation of Crown's case or attack on credibility of Crown witness did not put character at issue. Alternatively, truck owner's evi- dence at its highest could only be considered as personal opinion. Personal opinion of witness is not evidence of general reputa- tion for particular trait. R. v. Millard (Feb. 16, 2016, Ont. S.C.J., A.J. Goodman J., 14-4348) 131 W.C.B. (2d) 246. PRIVILEGE Accused satisfied two tests for piercing confidential informer privilege Accused was charged criminally in relation to firearms discovered when search warrant was execut- ed at storage locker he rented. Information to obtain search warrant contained physical de- scription of occupant of locker provided by confidential source. This description included term "heavy set", which did not match accused. Accused brought ap- plication to disclose identity of confidential source in order to call source as witness at trial. Application granted. Accused satisfied two tests for piercing confidential informer privilege. Accused satisfied threshold test, which required that information he sought was not available from any other source and that he was otherwise unable to raise rea- sonable doubt. Information ac- cused sought was discrete piece of evidence regarding physical description that did not match accused, and only source of that information was confidential source. Otherwise, accused was not able to raise reasonable doubt that he was possessor of firearms discovered upon execution of search warrant. Accused satis- fied stage one of "innocence at stake" test, which required him to demonstrate evidentiary basis to conclude that communication existed that could raise reason- able doubt as to his guilt. De- scription of occupant of locker provided by confidential source was part of justification for search warrant, and it also pro- vided evidentiary basis required at stage one of test. Accused sat- isfied stage two of innocence at stake test, which required appli- cations judge to examine com- munication to determine wheth- er it was likely to raise reasonable doubt. Applications judge was satisfied that information sought was likely to raise reasonable doubt about accused's guilt as possessor of firearms. R. v. Osborne (June 13, 2016, Ont. S.C.J., Dunnet J., CR-15- 30000260) 131 W.C.B. (2d) 253. Search and Seizure INFORMATION FOR WARRANT Contents of information to obtain warrant need not comply with rules of evidence Accused was convicted of two firearms offences, possession of proceeds of crime and posses- sion of cocaine for purpose of trafficking. Guns, money and drugs were found during war- ranted search of apartment ac- cused occupied with his mother and grandmother. Substance of information in ITO came from two confidential informants in- volved in drug culture. Accused appealed his convictions, argu- ing trial judge erred in finding that police had reasonable and probable grounds to believe that firearms and drugs would be found in premises to be searched, and carelessness of author of ITO could not afford basis or ground for undermining search warrant. Appeal dismissed. Reading trial judge's reasons as whole, trial judge did not hold that ITO need not disclose rea- sonable grounds to believe that evidence sought would be found at place of proposed search. More apt characterization of tri- al judge's reasons was that she re- jected accused's submission that information provided by confi- dential informants had to shoul- der entire burden of establishing reasonably grounded belief that evidence sought would be found in apartment. Confidential in- formants provided information that accused was in possession of firearm and illicit substances at apartment. ITO indicated that police had determined that ac- cused resided in apartment and located his car in parking area. That was sufficient to establish reasonably grounded belief that evidence sought would be found in place of proposed search. Issu- ing justice and reviewing judge were both entitled to rely upon opinion of author of ITO about practices of drug dealers in con- nection with storage of drugs, firearms and assorted parapher- nalia. Contents of ITO need not be compliant with rules of evi- dence applicable at trial. R. v. Prosser (June 14, 2016, Ont. C.A., Robert J. Sharpe J.A., David Watt J.A., and David Brown J.A., CA C59645) Deci- sion at 117 W.C.B. (2d) 561 was affirmed. 131 W.C.B. (2d) 271. Sentence ROBBERY Principle of totality was taken into account Accused was adult male, and victim was female escort. Ac- cused met victim at her motel room for sex, then robbed her of cash, jewellery, and prepaid gifts cards. During course of robbery, accused pointed imita- tion handgun at victim's head and pushed her into bathtub. Accused pleaded guilty to one count of robbery and one count of use of imitation firearm. At time of sentencing, accused was 23-years old and had three-year- old daughter by woman with whom he maintained relation- ship. Parties made sentencing submissions. Accused sentenced to 33 months and one day' im- prisonment. Principles of de- nunciation and deterrence, both general and specific, had to be paramount in sentencing for these offences. Aggravating cir- cumstances included that victim was vulnerable, that crimes were planned, that imitation firearm and violence were used, and that accused was on statutory release for similar offence. Mitigating factors were accused's guilty plea, his remorse, and fact that his mother and mother of his child were supportive of him. Accused was relatively young, but he was not youthful first of- fender. Accused's rehabilitative potential could not be said to be anything more than limited on evidence before sentencing judge. Significant penitentiary sentence had to be imposed to meet needs of denunciation and deterrence. Principle of totality was taken into account. R. v. Bent (Feb. 10, 2016, Ont. S.C.J., M. Fuerst J., Newmarket CR-14-02834) 131 W.C.B. (2d) 291. Trade Offences GENERAL Section 3(1) of Smoke-Free Ontario Act was strict liability offence Section 3(1) of Smoke-Free Ontario Act prohibited sale or supply of tobacco to person un- der 19-years old. Section 3(3) provided that it was defence to charge that accused believed that that recipient was at least 19 because person produced identification and there was no reason to doubt authenticity of document. Accused was conve- nience store clerk and manager who sold package of cigarettes to test shopper. Shopper was asked to produce identification and she provided OHIP card which showed that she was 17-years old. Accused claimed she misread card and thought that shopper was two years older. Accused was convicted of offence under s. 3(1). Accused successfully ap- pealed conviction. Appeal judge found that accused believed that shopper was 19 based on human error. Judge did not consider whether accused's belief was reasonable in circumstances. Crown appealed acquittal. Ap- peal allowed. Section 3(1) was strict liability offence and s. 3(3) set out statutory due diligence defence. Defence could apply if accused held reasonable belief that customer was at least 19 and that such belief was formed after having exercised all reasonable care by requesting and reviewing prescribed form of identification. To interpret s. 3(3) as permitting defence of honest mistaken belief of fact in absence of reasonable belief or reasonable care was in- consistent with statutory provi- sions read in context and it would undermine their legislative pur- pose, which was to reduce harm of tobacco by preventing sale of tobacco products to minors. Ap- peal judge erred in finding that accused had defence to charge based solely on her human error. Onus was on accused to establish defence and it was not sufficient for her to go through motions of obtaining identification without having exercised reasonable care in reading it. Accused did not have defence under s. 3(3). Con- viction and fine imposed at first instance were restored. R. v. Pourlotfali (June 20, 2016, Ont. C.A., Janet Sim- mons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C60395) 131 W.C.B. (2d) 311.

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