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Law Times • June 10, 2013 were found to be unlawful and evidence was excluded. Judge also commented that he was not persuaded that accused made rolling stop. Appeal dismissed. Judge did not make any error of law upon which Crown's appeal could succeed. There was also no basis to conclude that judge demonstrated reasonable apprehension of bias because of manner that he questioned police witnesses. This submission was also groundless because Crown did not object to manner of questioning while it was going on. R. v. Nartey (Apr. 8, 2013, Ont. C.A., Robert J. Sharpe J.A., David Watt J.A., and Alexandra Hoy J.A., File No. CA C55721) 106 W.C.B. (2d) 10. NEW TRIAL Path of reasoning conclusory and unanalytical Appeal by accused from his conviction for assault causing bodily harm. Accused was nightclub bouncer and complainant was patron who was injured on premises. Crown claimed that accused used excessive force causing injury when he attempted to eject complainant from club. Accused's position was that complainant's injuries were accidentally caused during lawful eviction from club. Accused claimed that trial court's reasons for judgment were deficient. Appeal allowed. Conviction set aside and new trial was ordered. Reasons were brief and they consisted of 13 paragraphs that contained 35 sentences. Length of reasons was not itself yardstick of legal sufficiency but this was not short trial. Trial lasted for two days and there were seven witnesses. Court made critical factual finding that accused inflicted serious injuries on complainant's face and that his conduct was excessive. Problem was that court did not explain why and how it made this finding. It also did not explain why Crown's witnesses were believed and why accused's testimony was rejected. Reasons were not responsive to live issues at trial or to key arguments that were placed before court. Significant evidence was ignored. Path of reasoning was conclusory and unanalytical. R. v. Klooster (Apr. 18, 2013, Ont. S.C.J., Hill J., File No. Guelph 11-0067) 106 W.C.B. (2d) 13. Charter of Rights FUNDAMENTAL JUSTICE Police fabrication of evidence contravened fundamental notions of justice Crown appealed from ruling of trial judge staying 17 charges against accused for variety of offences, including human trafficking, living on avails of prostitution, and offences relating to possession and use of forged identification. Trial judge found that police had fabricated evidence to make it appear that two pieces of false identification in Page 15 CASELAW name of complainant had been found in accused's wallet at time of his arrest, and that at least one police officer then lied about it in testimony. In fact complainant had left pieces of identification at police station. Trial judge found there had been abuse of process and violation of his s. 7 Charter rights and stayed proceedings on basis that police fabrication of evidence so clearly contravened fundamental notions of justice and undermined integrity of criminal judicial process that it was necessary to dissociate court from continued prosecution of case. Appeal dismissed. Court not persuaded that trial judge made palpable and overriding errors in reaching his findings of fact and credibility. Crown could not show court that complainant stated in her disclosed statement that she was in possession of her fake driver's licence and Canadian citizenship certificate and that she turned them over to police. Trial judge paid close attention to burden of proof; it was clear he made no error when his reasons were read whole. Court found there was no logical fault in trial judge finding there was scheme to fabricate and cover up evidence but that he could not specifically identify officers involved. Trial judge took public interest in prosecution into account. R. v. Salmon (Mar. 28, 2013, Ont. C.A., J.C. MacPherson J.A., R.A. Blair J.A., and R.G. Juriansz J.A., File No. CA C53928) 106 W.C.B. (2d) 31. RIGHT TO COUNSEL Discovery of evidence was inevitable Accused individuals charged with drug offences. Accused individuals applied to exclude evidence, based on breach of s. 10(b) Charter rights. Call was not placed to duty counsel until 41 minutes after arrests. Officer testified that calls to counsel were made from telephones located in search rooms, but that she could not take accused individuals to be searched without another female assist officer. That officer was only Spanish speaker available to give secondary cautions to accused individuals contributed to delay. Once accused individuals were taken to search rooms, call was promptly made to duty counsel. Application dismissed. There were number of other officers working in secondary inspection area, and there were other telephones with outside lines within relatively close proximity to where accused individuals were waiting following their arrests. There was no reasonable or acceptable explanation for delay other than that officers were following their normal procedure and training in waiting until their detainees could be taken to be searched before placing call to duty counsel. Delay was related to shortage of female officers available to take accused individuals to be searched and not due to any real concern for officer or public safety that could not have been overcome by utilizing resources available. There was no reason why another officer could not have been tasked to place call to duty counsel shortly after arrests. Telephone booths inside search rooms could have been quickly cleared if duty counsel had called back, and facilities permitted private communication with counsel while arrestees were kept under visual observation. There was Charter breach. There was no evidence which was obtained in manner that violated Charter, as evidence was found as result of search incident to arrest. As officers were entitled to conduct search no matter what counsel said, discovery of evidence was inevitable. Exercise of accused individuals' rights to counsel was not negatively impacted by search itself. Temporal connection alone was insufficient in circumstances. Alternatively, evidence was admissible under s. 24(2) Charter analysis. Violation was relatively serious notwithstanding that officers thought they were complying with Charter. Violation had little impact on Charter-protected interests of accused individuals, as discovery of evidence was inevitable. Evidence was reliable and essential to Crown's case, and society had strong interest in trial on merits. Admission of evidence would not have brought administration of justice into disrepute. R. v. Lozano (Mar. 28, 2013, Ont. S.C.J., F. Dawson J., File No. 2086/12) 106 W.C.B. (2d) 38. SEARCH AND SEIZURE No evidence accused had ability to regulate access to phone Application to exclude evidence. Masked gunman robbed pharmacy, fled on foot and was chased by uniformed police. As he ran he discarded semi-automatic handgun, his shoes, balaclava and cell phone. He eluded capture that night. Civilian picked up phone and handed it to police officer. Detective conducted warrantless search of information from cell phone. He copied down every contact and every sent or received text message for two days. Information retrieved from cell phone related to accused. Accused arrested for robbery and other related offences. Accused required to establish he had standing to challenge search and seizure. Accused not present at time of search and seizure; he did not have control or possession of phone at time. There was no evidence he had possession or control of phone at any time that night. Phone was registered to apparently fictitious name. There was no evidence it was ever owned by accused. There was circumstantial evidence linking accused to historical use of phone in texts and contacts. There was no direct evidence www.lawtimesnews.com accused personally sent or received texts. Even if accused sent or received texts there was no evidence as to whether other persons also used phone. There was no evidence accused had ability to regulate access to phone. Phone was not password locked. There was no evidence accused had subjective expectation of privacy. Accused failed to meet threshold for application under s. 8 Charter. Application dismissed. R. v. Mawut (Feb. 15, 2013, Ont. S.C.J., B.P. O'Marra J., File No. 12-5-0000-409-0000) 106 W.C.B. (2d) 40. Evidence CREDIBILITY Trial judge turned trial into contest of credibility between two witnesses Accused appealed conviction for assault against his spouse. Trial judge commented that accused had agreed with large portions of complainant's evidence and that he had applied physical force to complainant without her consent. Accused argued trial judge misapprehended his evidence, failed to apply principle of reasonable doubt to issues of credibility, and improperly shifted burden of proof. Appeal allowed, conviction quashed, new trial ordered. While decision was thoughtful and careful, it provided grounds for accused's contention that he was required to explain away complainant's testimony. Trial judge erred in his analysis of witnesses' credibility after finding that accused acknowledged that assault had occurred. Trial judge pulled up short of full W. (D.) analysis, and it was not clear whether he allowed for possibilities that accused's evidence could be believed in part or whole or not at all, without having to compete with complainant's evidence, and whether whole of accused's evidence raised reasonable doubt as to his guilt. Trial judge did not consider scenario advanced by accused that incident with complainant was loving attempt by him to try to "fix" their marriage rather than intentional application of force. Trial judge did not indicate why he believed part of accused's evidence that supported complainant's testimony and why he rejected part that did not support her testimony. Trial judge turned trial into contest of credibility between two witnesses, with result that burden of proof was shifted onto accused. There was no indication whether accused's evidence, considered in context of evidence as whole, raised reasonable doubt as to his guilt. R. v. Philippeaux (Mar. 27, 2013, Ont. S.C.J., L. Ratushny J., File No. 10-6663) 106 W.C.B. (2d) 56. IDENTITY OF ACCUSED Accused made voluntary admission to police Accused was charged with conspiracy to rob; robbery while armed with firearm; assault; wearing disguise with intent; possession of property obtained by crime; and possession of cocaine. Grocery store was robbed with owner striking one robber on side of head and robbers were subsequently chased by customer to subway station. Police were called and arrested accused and co-accused at subway station where accused voluntarily blurted out in swear words that he had messed up. Accused had wound to side of head, put up his hoodie when police arrived and turned away when asked to empty his pockets. Accused claimed that they found duffle bag filled with cigarettes and $103 cash as well as gun that was in possession of co-accused. Co-accused confessed to police in statement. Accused was wearing similar dark clothing as described by owner of grocery store. Accused found guilty. Accused was always in sight of either owner of store or customer who chased him. Accused made voluntary admission to police and his putting up hoodie was also indicative of his guilt. Accused was wearing similar clothing, had head wound and goods on his possession and statement by coaccused was also conclusive of his guilt. R. v. Gomez (Mar. 28, 2013, Ont. S.C.J., G.R. Strathy J., File No. 13-70000197-0000) 106 W.C.B. (2d) 94. Indictment and Information JOINDER AND SEVERANCE No danger that moral prejudice would be factor in judge only trial Accused, charged with historic sexual offences against his nieces, sisters, applied to sever charges contained within three-count indictment so that trials would proceed separately regarding each complainant. Accused submitted that potential for prejudice and lack of factual nexus were such that interests of justice dictated that counts in indictment should be severed. One complainant was 13 and second was 12 when allegations occurred, in each case in context of family visit. Application dismissed. Given factual background and nature of allegations, court found that there was no real danger that reasoning prejudice or moral prejudice would be factors in judge only trial. Legal nexus was same in that all three charges involved same offence; there had not been any suggestion of any defence that might be considered in one count and not others. There was no suggestion that accused wanted to testify with respect to one count but not others. Crown intended to apply to adduce similar fact evidence. R. v. B. (I.) (Apr. 10, 2013, Ont. S.C.J., R. Dan Cornell J., File No. 361/12) 106 W.C.B. (2d) 70. LT

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