Law Times

Law Times • February 4, 2013 Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Decision to hold accused based exclusively on breath readings Accused, charged with impaired driving and driving "over 80," applied for stay of proceedings. Accused was arrested by offduty police officer who allegedly saw him driving erratically on busy highway. After speaking with Spanish-speaking duty counsel, accused provided his first breath sample registering reading of 202. His second sample was provided 20 minutes later, producing reading of 192. Based on his breath readings, officer decided to lodge accused in cells at about 100 a.m.. Officer testified that he usually released people when their BAC was around 100 and that he used commonly used elimination guideline of 15 mg. per cent per hour so he thought he would detain accused for about six hours. Accused advised officer that he had work in morning and asked if he could take taxi home or have friend pick him up but was denied. Decision to lodge accused resulted in him being strip searched and, due to shift changes, held until about 1030 in morning. Breach established, but stay not granted. Court found decision to hold accused was based exclusively on breath readings and officer's opinion of risks generally associated with those readings. Court did not accept that it was due to any specific concern he observed relating to accused nor that he was concerned that accused may drive, or that he did not understand release documents, or issues related to his work following day. Courts have permitted detention until someone sobers up but have instructed police to consider all circumstances and not just breath readings. More informed and objective assessment would likely have led to his release. Despite breach, case was not one of clearest of cases in which stay was justified. R. v. Carrion-Munoz (Aug. 28, 2012, Ont. C.J., Borenstein J.) 104 W.C.B. (2d) 35. ENFORCEMENT OF RIGHTS Accused did everything in their power to move case forward Application by two accused for stay of proceedings because they were not tried within reasonable period of time, contrary to s. 11(b) of Canadian Charter of Rights and Freedoms. Accused were arrested and charged on November 12, 2010. Charges were based on allegation that one accused fraudulently passed himself off as immigration consultant and that accused exploited vulnerable victims. Time period of 21 months elapsed between their arrest and their second trial date of July 17, 2012. Predominant reason for delay was abject failure of police to provide Crown with timely Page 15 CASELAW disclosure. Application allowed. Delay of 13 months and one week was directly attributable to Crown and to institutional delays. Accused did everything in their power to move case forward and they suffered prejudice caused not merely because of charges but because of delay. Allegations against accused were serious and State should have done better. Section 11(b) was violated and only remedy was stay. R. v. Morou (Sep. 10, 2012, Ont. C.J., Taylor J.) 104 W.C.B. (2d) 44. FUNDAMENTAL JUSTICE Interests of justice required special consideration in decisions impacting aboriginal offenders Surrender of aboriginal persons. Minister of Justice ordering two accused surrendered to U.S. for separate offences related to drug importation. First offender being youthful aboriginal person with no record. Second offender being aboriginal person with drug addiction. Both accused facing systemic factors rooted in Canada's historic discrimination. Evidence before minister that first offender would face lengthy sentence, have ties with aboriginal community severed if surrendered. If prosecuted in Canada, first offender would be sentenced with special consideration given to aboriginal offenders in mind, sentence would be fraction of sentence mandated in U.S. jurisdiction. Evidence second offender would face much higher sentence in U.S. Aboriginality would not be taken into account in sentencing. Possible to prosecute each accused in Canada given circumstances of alleged offences. Minister holding aboriginality, principles governing treatment of aboriginals in criminal justice system did not impact on decision of whether decision to surrender reasonable limit on s. 6(1) Charter right. Minister holding aboriginality impacted on consideration of accuseds' s. 7 Charter right, s. 44 of Extradition Act, but that surrender would not shock conscience in light of importance of Canada's treaty obligations. Applications to review minister's decision ordering surrender allowed, decisions set aside. Minister erred by refusing to apply principle that interests of justice required special consideration in decisions impacting aboriginal offenders. Minister erroneously posited choice as being surrender, allowing accused to escape surrender altogether as accused could be prosecuted in Canada. Surrender of each accused would shock conscience, be unjust or oppressive in contravention of s. 7 Charter right s. 44 of Extradition Act. Minister erred by failing to conduct independent assessment of whether accused could be prosecuted in Canada, such that surrender did not reasonably limit their s. 6(1) Charter right. Appropriate remedy was to not remit matter to minister for reconsideration, as only one solution possible in light of devastating impact surrender would have on accused. United States of America v. Leonard (Sep. 21, 2012, Ont. C.A., Doherty, MacPherson and Sharpe JJ.A., File No. CA C52373; C53726; C54112) 104 W.C.B. (2d) 91. categories of Known persons. No provision of Part VI of Criminal Code supported creation of two classes of known persons in authorizations, not required for authorization. R. v. Mahal (Oct. 5, 2012, Ont. C.A., Watt, Armstrong JJ.A. and Then R.S.J. (ad hoc), File No. CA C53224) 104 W.C.B. (2d) 98. Indictment and Information Motor Vehicles PREFERRING INDICTMENT Authority to prefer direct indictment applicable to accused electing trial in provincial court Accused being charged on information for terrorism offences along with two co-accused. One co-accused seeking preliminary inquiry, jury trial. Accused wishing to be tried in provincial court. Effect of co-accused's election was to force accused to jury trial in superior court. Accused successfully applying for severance from co-accused to have provincial court trial. Attorney general preferring direct indictment following accused's successful application for severance. Accused applying for order in nature of certiorari quashing direct indictment. Accused submitting direct indictment could only be sought where accused entitled to request preliminary inquiry. Accused's application dismissed. Authority to prefer direct indictment applicable to accused wishing to elect to be tried in provincial court. Accused properly indicted directly to stand trial in superior court for same offence, proceedings in provincial court stayed. No self-standing right under s. 7 of Charter to be tried by judge alone, chooses between trial in provincial, superior courts. Canada (Attorney General) v. Sher (Aug. 21, 2012, Ont. S.C.J., Rutherford J., File No. 10-30345) 104 W.C.B. (2d) 96. IMPAIRED DRIVING AND "OVER 80" Accused did not get into car to put it in motion Accused was charged with care or control while impaired after police initially found accused standing beside car in ditch. First officer told accused to get into his car and left scene with second officer subsequently arresting accused for care or control. Officer previously tried unsuccessfully to start car although engine was warm and previously down highway there was evidence that accused had struck traffic sign. Crown alleged charge was sustained by accused being in driver's seat. Accused found not guilty. Accused rebutted presumption as he did not go into car to put it in motion but was obeying request by officer. Court noted that there was circumstantial evidence that may have led to conviction had accused been charged with operating motor vehicle while impaired but he was not so charged. R. v. Zheng (Nov. 8, 2012, Ont. C.J., Nakatsuru J.) 104 W.C.B. (2d) 110 Interception of Private Communications ADMISSIBILITY OF EVIDENCE No provision in Criminal Code to create two classes of known persons in authorizations Accused convicted of drug related offences following investigation implementing authorization to intercept private communications. Accused being included as "known" person in affidavit summarizing lengthy investigation. Accused challenging authorization, claiming he was improperly included as "known" person where affidavit contained no evidentiary foundation for inclusion. Trial judge holding low threshold for naming "known person" was met. Appeal from conviction dismissed. Section 181(1)(e) of Criminal Code enacted standard to be determined for "known" person as reasonable, probable grounds to believe intercepting communications may assist investigation. Provision did not distinguish between different www.lawtimesnews.com Practice, Process and Procedure GENERAL Accused failed to prove he had no other assets available Application by accused for release of restrained funds for purpose of paying his reasonable legal and living expenses. Accused was charged with taking secret commissions, fraud and related offences for his activities when he was employed as manager in audit division with Canada Revenue Agency. Several months before accused was arrested Crown obtained order to restrain home that accused owned with his wife. Property was sold and net proceeds of $33,830 remained subject to restraint. Charges did not yet come to preliminary hearing. Maximum amount that accused could receive was $16,915 because wife had interest in other half of funds as property was matrimonial home. Application dismissed. Accused failed to prove that he had no other assets or means available for purpose of meeting his reasonable legal expenses. His claim of impecuniosity was suspect because he failed to make full financial disclosure and Crown's evidence indicated that he had access to large amounts of money in relatively recent past. Accused also failed to prove that there was no other person who appeared to be lawfully entitled to possession of his share of restrained funds. One victim of accused's fraud against him and his company, who were defrauded of large amount of money by accused, appeared to be lawfully entitled to restrained funds. R. v. Granger (Oct. 31, 2012, Ont. S.C.J., Fuerst J., File No. 10-11463) 104 W.C.B. (2d) 120. Sentence DRIVING OFFENCES What accused had gone through likely deterred him from engaging in that behaviour again Accused sentenced to 4.5 years' incarceration before credit for pre-trial custody and 10-year driving prohibition after he pleaded guilty to two counts of impaired driving causing death. Accused was witnessed to be driving highly erratically before he lost control on bend, and his vehicle hit telephone pole resulting in death of both passengers. Total time spent in pre-plea custody amounted to 67 days for which he received 100 days' credit, as well as additional 6 months' credit for time spent in house arrest on release. Accused should not have been denied bail. Since his release, accused had been subject to strictest possible bail terms essentially being confined to his home 24 hours day. Accused had no previous criminal record. Accused was alcoholic but had not consumed any alcohol since day of accident. Court found accused was sincerely remorseful. Court found that what accused had already gone through since his arrest likely deterred him from engaging in that kind of behaviour again. R. v. Hughes (Nov. 1, 2012, Ont. C.J., George J., File No. 12572) 104 W.C.B. (2d) 151. Trial CHARGE TO JURY Terms of art must be explained, defined when used Accused convicted of sexual assault by jury. Complainant testifying accused forced himself on her while she was intoxicated, accused testifying he and complainant had consensual intercourse. Defence arguing to jury reasonable doubt concerning complainant's consent, based on frailties in her evidence, accused's account of consensual sex. Trial judge instructing jury Crown could prove accused's knowledge of lack of consent by wilful blindness, not defining term. Accused's conviction appeal allowed, new trial ordered. Error to fail to define term of art "wilfully blind." No bright line rule enjoining mention of terms of art in jury instructions. Terms of art useful to jurors when properly defined. Terms of art must be explained, defined when used. R. v. S. (J.) (Oct. 11, 2012, Ont. C.A., Winkler C.J.O., Laskin and Watt JJ.A., File No. CA C53510) 104 W.C.B. (2d) 189. LT

• Cover