Law Times

Law Times • August 19, 2013 powers of reference under Rule 54 of Rules of Civil Procedure (Ont.), but preferable procedure was for judge to make those determinations. In general, disputes regarding validity or effect of retainer agreement, including contingency fee agreement, should be determined by judge. Motion judge erred in failing to recognize that heart of dispute revolved around nature, validity and terms of retainer agreement. Order referring client's bill for assessment should have been set aside and motion judge erred in failing to do so. Interests of justice required order to be set aside. Cookish v. Paul Lee Associates Professional Corp. (Apr. 30, 2013, Ont. C.A., Doherty J.A., Laskin J.A., and Blair J.A., File No. CA C55638) Decision at 216 A.C.W.S. (3d) 1003 was reversed. 227 A.C.W.S. (3d) 1181. ONTARIO CRIMINAL CASES Appeal NEW TRIAL Judge's errors were all linked to credibility of principals at trial Appeal by accused from his conviction for three firearms offences. Three plainclothes police officers, who investigated gunshots that were fired in apartment building, pursued accused and found him hiding under car. Officers' version of events was that accused assaulted them when he was found and he resisted being arrested. After altercation concluded officers noticed restricted firearm on ground by car. Accused claimed he surrendered to police but they beat him. He was later taken to hospital to be treated for injuries he sustained in altercation. He denied having any firearm in his possession. Accused was charged with three firearms offences and with two counts of assaulting police officers in execution of duty. He was only convicted of firearms offences. Appeal allowed and new trial was ordered. Trial judge made several errors. He permitted introduction of good character evidence about senior officer involved in this investigation that violated rule against oath-helping. He failed to give jury limiting instruction about accused's tattoo. He redacted from medical evidence filed at trial accused's version as to how his injuries were caused and yet he allowed Crown to rely on his lack of complaint to impeach accused's version of events. Jury was confronted with conflicting versions of relevant events and their verdict indicated that they did not accept either version in its entirety. They had reasonable doubt about whether accused assaulted officers but they were satisfied that accused possessed gun and it was only evidence of arresting officers that linked accused to firearm. Judge's errors were all linked to credibility of principals at trial. Page 15 CASELAW In another case where credibility of witnesses occupied place of lesser prominence and evidence of guilt was overwhelming errors would not have affected result. However, evidence in this case, as jury's verdict demonstrated, was not overwhelming and court was not satisfied, that but for errors, jury's verdict would have been same. R. v. Tash (Jun. 7, 2013, Ont. C.A., R.G. Juriansz J.A., David Watt J.A., and Gloria Epstein J.A., File No. CA C50566) 107 W.C.B. (2d) 109. Assault ASSAULT WITH WEAPON Reasonable doubt that accused used more force than reasonable Trial of accused police officer for having injured victim during encounter with police while he attended demonstration on June 26, 2010. There was no issue that accused was one of many police officers who were present that day. Issue was whether accused used unreasonable force against victim. Victim claimed that he was struck as he was taking pictures and he was knocked to ground. He felt several more blows before he was dragged away by police. Victim was unable to say precisely where he was hit, by whom, with what or what injury each impact caused and he was also unable to say who struck initial blow. Amateur photographer named W witnessed entire interaction between victim and police and he took pictures of it. These included two pictures of accused, who W identified as perpetrator of assaults. Accused claimed he approached victim and told him to leave or he would be arrested. He wanted to help him but victim was removed by arrest team before he could do that. Accused acquitted. W was unreliable witness and he was not credible. It was not proven that accused hit victim with his shield and baton while victim was on ground. It was further not proven that accused assaulted victim by throwing him onto grassy area. Accused and other officer did not hurl victim on grass. Force used to move accused was not proven to be excessive for there was another officer who was holding victim and it was impossible to determine how much force was applied by each. There was reasonable doubt that accused used more force than was reasonable in moving victim. R. v. Weddell (May. 31, 2013, Ont. S.C.J., Ellies J., File No. 0329/12 JJ) 107 W.C.B. (2d) 114. Charter of Rights ENFORCEMENT OF RIGHTS Evidence so unreliable it undermined existence of reasonable and probable grounds Application by accused to exclude evidence against him because he claimed that his rights under s. 8 of Canadian Charter of Rights and Freedoms were vi- olated. Accused was being tried on charges related to possession of three prohibited firearms and ammunition, possession of heroin and cocaine for purpose of trafficking, possession of crime proceeds and breach of probation order. Evidence he sought to exclude consisted of guns, ammunition, drugs and money seized on execution of warrant to search his residence. Police officer swore information to obtain search warrant ("ITO") and he stated that he had reasonable and probable grounds to believe that drugs would be found in accused's apartment. ITO, which resulted in issuance of warrant, was based on information provided by two confidential informants and upon observations that he and another officer made in course of their surveillance of building and apartment. Application allowed. Police officer' evidence was confusing and improbable and police officer made it up as he went along. Evidence of other officer was credible and it highlighted problems that existed with police officer' evidence. There were two fundamental deficiencies with ITO that could not be remedied. These were absence of corroboration of drug trafficking associated with accused's apartment and absence of corroboration of connection between accused and apartment. Evidence put before justice of peace was so unreliable that it undermined existence of reasonable and probable grounds. Warrant could not be sustained. Result was that search was warrantless, it was unreasonable and it infringed accused's rights under s. 8. Evidence was not admitted for doing so would bring administration of justice into disrepute. Accused was acquitted as Crown offered no other evidence. R. v. Brown (May. 17, 2013, Ont. S.C.J., G.R. Strathy J., File No. 1230000114) 107 W.C.B. (2d) 118. Evidence IDENTITY OF ACCUSED Impossible to assess fairness of photo array used by police Victim was shot in chest at closerange by man he had known for many years. Victim picked accused out of photo lineup. Police lost photo lineup in 13 years it had taken to bring accused to trial. Crown applied to admit evidence of out-of-court identification from photo lineup. Accused argued that process was fundamentally flawed and that loss of evidence created significant prejudice to him in challenging results of photo lineup. Application dismissed. It was impossible to assess fairness of photo array used by police. There was palpable prejudice to defence's ability to challenge evidence. Even if original photo array were still intact and available, process was fundamentally flawed in that there was no video or audio of process, it was conducted by officer actively involved in case who knew who www.lawtimesnews.com suspect was, and photos were presented as package and not sequentially. Despite valiant effort to reconstruct original photo array, Crown was unable to reproduce even specific dated photo of accused that was included. Appropriate and fair remedy was to exclude evidence. R. v. Thomas (Mar. 13, 2013, Ont. S.C.J., B.P. O'Marra J., File No. 328/12) 107 W.C.B. (2d) 149. Sexual Offences SEXUAL ASSAULT Defence of honest but mistaken belief in consent had no air of reality Accused appealed conviction for sexual assault. Intoxicated complainant fell asleep in bedroom of house while others continued to drink. Witness noticed accused's absence and discovered him having sexual intercourse with complainant, who was fully clothed from waist up, had winter coat on and purse across her torso, and had her pants partially off. Witness testified that complainant seemed stunned, began crying, and looked confused. Complainant testified that she was sleeping in bedroom when she felt dark figure over top of her. Complainant felt pressure in her vaginal and pelvic areas, which was uncomfortable but did not seem real, as if it were dream. Accused testified that he was on his way to bathroom when he met complainant in hallway, they started kissing, and then moved to bedroom where they had consensual sexual intercourse. Trial judge held that at time that witness first assisted complainant into bed, complainant was without capacity to consent to sexual activity, including sexual intercourse with accused. Trial judge did not believe accused's testimony about what happened between him and complainant, nor that sexual intercourse was consensual. Accused argued that trial judge made findings of fact based on conjecture and misapprehensions of evidence, failed to properly apply R. v. W. (D.), and failed to consider his honest but mistaken belief in consent. Appeal dismissed. Trial judge was entitled to take into consideration evidence of how long accused and complainant had known each other, her state of dress when she was having intercourse, and accused's omission of detail respecting how complainant got from being upright in hallway onto bed with him, along with all of other evidence concerning her physical condition in assessing credibility of witnesses. Trial judge made reasonable inferences from evidence and did not engage in impermissible speculation. Simply because trial judge weighed two individual pieces of evidence differently did not mean that he applied greater scrutiny to evidence of accused than of complainant. Findings trial judge made were open to him. Trial judge applied correct burden and standard of proof, and did not treat case as turning on whose evidence he accepted. Trial judge provided extensive reasons for why he found complainant lacked capacity to consent, and explained why he believed Crown had proven guilt beyond reasonable doubt. As there was no error in trial judge's finding that complainant was incapable of consenting to sexual activity and finding that accused knew this, defence of honest but mistaken belief in consent had no air of reality. R. v. Colbourne (May. 7, 2013, Ont. C.A., K.M. Weiler J.A., E.E. Gillese J.A., and Alexandra Hoy J.A., File No. CA C54866) 107 W.C.B. (2d) 210. Sentence DRUG OFFENCES Parole ineligibility increased as offences committed inside criminal organization Sentencing of accused after he was convicted after trial of four counts of conspiracy to traffic and possess narcotics, three counts of participating in a criminal organization, five counts of trafficking and possession of cocaine, seven counts of trafficking and possession of marijuana, three counts of possessing proceeds of crime, one count of extortion, six counts of agreeing to loan money at criminal rate of interest and 10 counts relating to weapons offences. He was also leader of criminal organization that conspired to distribute narcotics through operation of bar. He was convicted of possession of crime proceeds after $133,000 was found in safe in his home. Handgun, ammunition and loaded revolver were found in his home. Accused was involved in loan sharking and he was found guilty of making loans at criminal rate of interest. He was also found guilty of one count of extortion for threats he made to individual who repaid his loan to him. Accused was born in January 1968 and his adult criminal record started in 1986 and it included similar offences. Some of counts were stayed because of Kienapple principle. Accused sentenced to global sentence of 19 years' imprisonment for all of offences. He was also subject to DNA order and to lifetime weapons prohibition order. He was high level drug dealer who cut up one kilogram cocaine bricks into large quantities of one gram decks. His drug operation was sophisticated. Accused's parole ineligibility was increased by 50% for he rendered detection difficult and tremendous amount of police resources were required to investigate this case. Accused conscientiously focused on maximizing his profit, and in so doing he victimized large number of persons. He operated through structure of corporation and individuals to minimize risk to himself. Fact that offences were committed inside criminal organization made it necessary to increase parole ineligibility. Denunciation and deterrence were paramount applicable considerations. R. v. Saikaley (May. 21, 2013, Ont. S.C.J., Lalonde J., File No. 10-G30391) 107 W.C.B. (2d) 180. LT

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