Law Times

Law Times • apriL 10, 2017 Page 19 www.lawtimesnews.com Accused was convicted of pos- session of loaded prohibited firearm, possession of cocaine for purpose of trafficking, and dangerous driving following high risk, vehicular police take- down triggered by confiden- tial informant's tip. Trial judge found that police violated ac- cused's rights under ss. 7 to 10 of Canadian Charter of Rights and Freedoms, but admitted evidence of handgun and drugs seized from accused's vehicle incident to arrest on basis that admission of evidence would not bring administration of justice into disrepute. Accused appealed convictions, alleg- ing that trial judge erred in his s. 24(2) Charter analysis. Ap- peal dismissed. Trial judge did not overemphasize seriousness of offences by placing particu- lar significance on public inter- est in prosecution of firearm charges. Trial judge committed no error in his consideration of Grant factors and, absent er- ror, his weighing of those fac- tors was entitled to deference. While impact of breaches on ac- cused's Charter rights favoured exclusion of evidence, societal interest in adjudicating case on merits tipped balance in favour of admission. Trial judge did not give undue weight to that factor and fact that firearm was involved. He did not err in view- ing fact that police obtained two warrants to search different ve- hicle associated with accused as being indicative of good faith. His factual assessment of offi- cers' conduct and his conclusion that they acted in good faith was entitled to deference. Trial judge accepted officers' testimony that they considered informant's tip that accused was in possession of firearm to be reliable. Judicial officers concluded that infor- mant's tip provided reasonable and probable grounds to believe that accused was in possession of firearm and that it would be found in his vehicle. R. v. Allen (2017), 2017 Car- swellOnt 2710, 2017 ONCA 170, E.A. Cronk J.A., Paul Rouleau J.A., and B.W. Miller J.A. (Ont. C.A.). DANGEROUS OFFENDERS Indeterminate sentence Accused's proposed release and treatment plan could not protect public adequately Accused was declared danger- ous offender and indetermi- nate sentence was imposed after accused pleaded guilty to aggravated assault, sexual as- sault, forcible confinement and uttering threats. At sentencing hearing, accused submitted further 10 years imprisonment followed by 10 year supervision order would adequately pro- tect public, however, sentenc- ing judge concluded accused's proposed release and treatment plan could not protect public adequately. Accused appealed sentence on same grounds. Appeal dismissed. Accused's letter expressing remorse and desire to make contribution to community during remaining years was appreciated; however, court's function was to correct errors committed by court be- low and sentencing judge com- mitted no error in his analysis or conclusion. R. v. Siscoe (2017), 2017 Car- swellOnt 1932, 2017 ONCA 133, J.C. MacPherson J.A., Paul Rou- leau J.A., and David Brown J.A. (Ont. C.A.). OFFENCES Murder Jury would not have been misled by instructions In 2011, accused was convicted of second degree murder when drug deal went bad. Jury found accused was one of two gun- men involved while second was never apprehended. Accused had been associated with gang called Five Point Generals. Fire- arm used to kill deceased was found three months later in pos- session of other person who was associated with different gang. At trial accused unsuccessfully sought to introduce evidence that someone else had posses- sion of firearm. Crown objected and accused was unsuccessful on his request to admit evidence respecting alternate suspect. Police officer, who was qualified to provide expert evidence on gang culture, testified it would be very rare for gang member to retain gun used in crime. Accused appealed. Appeal dis- missed. Only evidence linking alternate suspect to crime was possession of gun and it was open to trial judge to conclude that possession three months after shooting in context of case had almost no probative value of issue of shoorter's identity and that admitting alternative suspect evidence would unnec- essarily complicate trial. Trial judge accepted expert evidence regarding gang member practic- es relating to guns used to com- mit crimes and she was entitled to find possession of gun three months after was not probative of alternate suspects connection to crime and proposed alternate suspect evidence failed to reach standard required for admis- sibility. Reasons of trial judge did not ref lect assumption that accused was involved in kill- ing but focused on connection between proposed suspect and crime. Jury was instructed on party liability including joint principals, common purpose and aiding. Jury instructions and decision tree made it clear that accused had to be principal or joint principal with required mental state to be convicted of second degree murder. Al- though reference to aiding may have been unnecessary, jury charge, read as whole, would not have misled jury. R. v. Pierre (2017), 2017 Car- swellOnt 1937, 2017 ONCA 140, Robert J. Sharpe J.A., Paul Rou- leau J.A., and M.L. Benotto J.A. (Ont. C.A.). OFFENCES Robbery Evidence provided basis upon which reasonable trier of fact could convict Accused was convicted of rob- bery. At trial, complainant testified he knew accused and recognized him when he pulled robber's mask off, recognized accused's voice as well as can of mace in possession of robber. Other evidence submitted was that robber's name was name of accused. Accused appealed on grounds verdict was unsafe. Ap- peal dismissed. Evidence pro- vided basis upon which reason- able trier of fact could convict. Reasons demonstrated grasp of evidentiary record and appreci- ated danger inherent in identifi- cation evidence. R. v. Freeland (2017), 2017 CarswellOnt 1767, 2017 ONCA 137, Doherty J., Laskin J.A., and Roberts J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal Denunciation sentence for accused's attempted intimidation of vulnerable witness was necessary Accused was convicted and sentenced to 8 months impris- onment followed by 18 months probation. Accused appealed conviction and sentence. Appeal dismissed. Intent was identified as issue and trial judge's conclu- sion that throat cutting gesture was supported by complainant and her statement made right after gesture. Throat cutting gesture was made with requisite intent f lowed inevitably from finding of nature of gesture made by accused. Denunciation sentence for accused's attempt- ed intimidation of vulnerable witness and in face of court was necessary. Trial judge correctly identified protection of judicial process and who participated was of paramount concern. R. v. Hammond (2017), 2017 CarswellOnt 1774, 2017 ONCA 144, Doherty J.A., Laskin J.A., and Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 Carswel- lOnt 5027, 2016 ONCJ 176, Richard H.K. Schwarzl J. (Ont. C.J.). POST-TRIAL PROCEDURE Detention and release after trial Ontario Review Board had no authority to make community treatment order Accused was found not crimi- nally responsible on account of mental disorder on charges of robbery, uttering threats, as- saulting causing bodily harm and other offences. Accused was diagnosed with schizophrenia, anti-social personality, cannabis use disorder, and borderline in- tellectual functioning. Accused had sought order permitting him to be placed on hospital's general forensic unit with seven day passes to visit his mother, however, Ontario Review Board (Board) found accused posed significant threat to public and that custodial order was lease onerous and restrictive disposi- tion to manage risk and ordered accused remain on secure fo- rensic unit with privileges or be transferred to general forensic unit at discretion of person in charge. Board noted accused had made progress; however, he lacked insight into his ill- ness and were concerned about his decision, which was ratified by substitute decision maker, to reduce his medication, which hospital followed. Although ac- cused's behaviour since reduc- tion in medication had only been increase in irritability and anti-social behaviour, board, based on expert evidence, found it was more likely route to psy- chotic relapse as well as accused posing moderate to high risk of violence. Accused appealed disposition seeking absolute or conditional discharge with community treatment order. Appeal dismissed. Before board, accused conceded he remained risk to public. Prospect of com- munity treatment order was not argued before board so there was no supporting evidence and no findings as to potential terms of appropriate community treat- ment order. More fundamen- tal problem was board had no authority to make community treatment order as such order was to be made by physician un- der s. 33.1 of Mental Health Act. Williams, Re (2017), 2017 CarswellOnt 2525, 2017 ONCA 161, E.A. Cronk J.A., Paul Rou- leau J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 8749, H. Bloom Alt. Chair, S. Swaminath Member, G.B. Jones Member, J. Mills Member, and P. Schur Member (Ont. Review Bd.). POST-TRIAL PROCEDURE Release pending appeal Second application for judicial interim release pending appeal was granted Accused was convicted by jury of first degree murder of his wife. It was second trial on charge, with first trial having ended in hung jury. Accused filed notice of appeal and brought unsuc- cessful application for judicial interim release pending ap- peal. Three years later, accused brought second application for judicial interim release pend- ing appeal. Application granted. One of new grounds of appeal related to trial judge's decision at second trial not to remove de- fence counsel from record. De- fence counsel had asserted that his client had discontinued pay- ment for his services and that he could not ethically represent his client, and trial judge had ruled that defence counsel's difficul- ties related to payment of his accounts and not to ethical di- lemma. Certain Supreme Court of Canada decision raised seri- ous issue about ethical dilemma component of ruling. There was now very extensive fresh evi- dence about potential third par- ty suspect. Accused had been incarcerated for four years and his appeal had not been heard. Accused was 56 years old, had no criminal record before con- viction, and his release plan was unassailable. Appeal could be heard in near future. R. v. Short (2017), 2017 Car- swellOnt 1952, 2017 ONCA 153, J.C. MacPherson J.A., In Cham- bers (Ont. C.A.). SENTENCING Miscellaneous Immigration consequences of given sentence are neither aggravating nor mitigating factors Immigration consequences. Ac- cused was at party with 19-year old complainant and took her into washroom. Complainant did not verbal resist his touch- ing and kissing until he began to anally penetrate her. Accused was convicted of sexual assault. Trial judge sentenced accused to nine months' imprisonment plus two years' probation. Im- migration consequences of ac- cused's offending were extreme- ly serious. Under s. 36(1)(a) of Immigration and Refugee Pro- tection Act ("IRPA"), permanent resident is "inadmissible" on grounds of "serious criminality". Trial judge considered immigra- tion consequences to accused but held that sentence requested by accused of six month less one day was demonstrably unfit for offence, which is serious one. Accused appealed sentence. Leave to appeal allowed. Ap- peal dismissed. Trial judge de- termined what appropriate sen- tence should be, and then con- sidered whether it would be ap- propriate to reduce sentence to avoid impact of IRPA. Approach employed by trial judge avoided need to deal with immigration consequences in circumstances when it was unnecessary. Im- migration status of offender, which is highly individualized circumstance, is not embed- ded or ref lected in sentencing ranges for various offences that have developed in this province over time. Immigration conse- quences of given sentence are neither aggravating nor mitigat- ing factors. As such, immigra- tion consequences are unlike other individualized factors that are generally considered when applying sentencing ranges. To have imposed sentence of less than six months' imprisonment would have involved reducing sentence solely for purpose of avoiding impact of IRPA. That would have resulted in demon- strably unfit sentence for "signif- icant sexual assault" involving anal penetration. R. v. McKenzie (2017), 2017 CarswellOnt 1732, 2017 ONCA 128, K.M. Weiler J.A., S.E. Pep- all J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 14574, 2015 ONSC 5671, Dawson J. (Ont. S.C.J.). CASELAW

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