Law Times

Law Times • October 21, 2013 not disclose reasonable grounds to arrest male or to issue warrant. Court previously decided that male lacked standing to challenge search of his home. Crown also conceded that arrest, detention and search of male violated his ss. 8 and 9 rights. He further conceded that search of home violated female's s. 8 rights. Crown made these concessions based on failure of redacted ITO to reveal currency or source of informant's information that male possessed marijuana or firearm. Application allowed in part. Male's application was dismissed and female's application was allowed. Despite considerable negative impact on male's rights, state conduct, which was not at serious end of continuum, and high societal interest in having matter adjudicated on merits led to conclusion that evidence should be admitted against male. Regarding female, if evidence was excluded prosecution against her would fail. However, profound incursion on her right to privacy in her home outweighed reliability of seized evidence and its importance to Crown's case. Admission of evidence against female would negatively affect long-term reputation of administration of justice and it would bring it into disrepute. Evidence against female from search of home was therefore excluded. R. v. Ivy (Jul. 4, 2013, Ont. S.C.J., K. Corrick J., File No. CR12500008520000) 108 W.C.B. (2d) 324. Evidence CONFESSIONS AND ADMISSIONS Detective's intention to obtain incriminating statements from accused Application by Crown to admit portion of statement made by accused to police, after he was arrested, that it claimed was made voluntarily. Accused was charged with possession for purpose of trafficking of number of drugs and with possession of cash, which was obtained from commission of crime. Police attended residence where they located and seized drugs and cash. At time of seizure no one lived in home, which was owned by accused and his mother. Accused was arrested when he surrendered himself to police. He was informed of his right to counsel and he was then taken to interview room where he provided statement that was subject of this application. Detective, who interviewed accused, acknowledged that he did not advise accused of his right to silence and he did not tell him that statement could be given in evidence. Portion of statement that Crown wanted to rely upon dealt with accused's denial that there was heroin in house and denial was evidence that accused was aware as to what drugs were being kept in his home. Application dismissed. Statement was not taken in oppressive manner and there was no evidence of police trick- Page 19 CASELAW ery. However, detective cloaked rationale for interview on need to obtain information for accused's bail report. It was clear from very early on in interview that accused intended to exercise his right to remain silent and it was also detective's intention to obtain incriminating statements from accused. There was significant inducement by detective to get accused to make such statements and quid pro quo offered by detective was better opportunity to obtain bail. Absence of caution was serious issue in this case. There was no clear evidence that accused understood that this evidence could be used against him. Taking into account significance of inducement and failure to provide caution and considering these issues in context of all circumstances of statement, court was left with reasonable doubt regarding voluntariness of statement. Statement was therefore not admissible in trial of this action. R. v. Dunstan (Jun. 18, 2013, Ont. S.C.J., M. McKelvey J., File No. CR-11-8626) 108 W.C.B. (2d) 341. Sentence CONDITIONAL SENTENCE Accused substantially rehabilitated and unlikely to re-offend Sentencing of accused after he pleaded guilty to three counts of possession of controlled substances for purpose of trafficking and one count of possession of property obtained by crime. Police searched home of accused's parents, where he lived, and in his bedroom they found 1.7 kilograms of ecstasy, 80.4 grams of ketamine and 418.3 grams of marijuana. They also found $3,260 in Canadian currency and $570 in American currency, which was derived from his drug dealing activity. Accused was mid-level drug dealer. When search warrant was executed on April 29, 2010 accused was 25 years old and he was currently 29. Accused was born in Hong Kong in 1984 and he emigrated to Canada with his family in 1997. Accused studied fashion arts and one of his teachers provided letter to court in which she stated that accused had rare creative genius for fashion design. He was employed in fashion design industry and he was recognized as having great potential. Accused did not have criminal record and he was not in any trouble since his arrest three years ago. For each count accused was sentenced to imprisonment of two years less one day. Sentences were to be served concurrently in community and conditional sentence would be followed by two years of probation. Accused was also subject to 10-year firearms prohibition. He was substantially rehabilitated and it was unlikely that he would re-offend. Conditional sentence would be consistent with fundamental purpose and principles of sentencing. R. v. Choi (Aug. 2, 2013, Ont. S.C.J., MacDonnell J., File No. null) 108 W.C.B. (2d) 385. PREVENTIVE DETENTION Accused had criminal record including 22 offences for crimes of aggression Crown applied for order pursuant to s. 752.1(1) of Criminal Code remanding accused for assessment to aid in determining application to have accused declared dangerous offender, or alternatively, long-term offender. Accused was found guilty of two counts of attempted murder with firearm and two counts of discharging firearm with intent to wound. During drug transaction, accused fired gun directly at two complainants sitting in vehicle. Accused had criminal record with young offender and adult convictions, which included 22 criminal offences since 2003 for crimes of aggression, breaches of court orders, obstruction of police, drug possession, drug trafficking, and multiple firearmrelated offences. Application allowed. Accused's convictions were serious personal injury offences. Threshold for ordering assessment in circumstances was low one. Crown satisfied its onus for assessment to be ordered, as it was within realm of possibility that accused might have been found to be dangerous offender. Accused constituted threat to life, safety, or physical or mental well-being of other persons. Accused's conduct was pattern of repetitive behaviour that had demonstrated failure on his part to restrain his behavior. Accused's past conduct suggested likelihood that he could have caused death or injury or severe psychological damage to another person in future, as he carried loaded firearms in public places. Accused had demonstrated substantial degree of indifference to reasonably foreseeable consequences of his past behavior. R. v. Wong (Aug. 9, 2013, Ont. S.C.J., McWatt J., File No. CR120000111-00) 108 W.C.B. (2d) 394. Trial PROCEDURE (GENERAL) Procedure tainted fairness of process and undermined legitimacy of remedy Crown appealed accused's acquittal on numerous gun-related charges. Police suspected that accused was armed by way he was walking, and accused ran from police when they instructed him to stop. Following accused's arrest, police found loaded handgun lying on snow in alley where accused had been. Officers had not seen accused throw gun away, but gun was dry despite recent precipitation in area, suggesting that it had only been in alley for short time. Fingerprint found on gun did not belong to accused. Trial judge rejected accused's explanation for not stopping for police, and found that manner in which he was moving was consistent with carrying www.lawtimesnews.com concealed firearm. Trial judge held that fact that officers had not seen accused discard gun was not enough, by itself, to create reasonable doubt. Following one day's adjournment at end of evidence and submissions, trial judge found accused guilty of majority of offences with which he was charged and matter was adjourned for sentencing. On return date, several months later, trial judge indicated that he had not given adequate consideration of totality of frailties of evidence, and that cumulation of evidence led to reasonable doubt. Trial judge re-opened matter of guilt and entered acquittals. Crown argued that trial judge did not have jurisdiction to re-open case, but even if he did, procedure was flawed and decision was wrong. Appeal allowed, acquittals entered, new trial ordered. Judge who had made finding of guilt was empowered to vacate adjudication of guilt at any time before sentence was imposed. While power to reopen was only to be exercised in exceptional circumstances, it was not limited to application by one of parties. In judge-alone trial, judge was not required to sentence someone who he or she believed had not been proved guilty beyond reasonable doubt. Having formed and voiced second thoughts about accused's guilt, trial judge had duty not to convict. It was error in law to enter acquittal without providing parties opportunity to make submissions. Parties were entitled as matter of natural justice to address circumstances in which guilty verdict could have been set aside and appropriate remedy. Circumstances of trial judge's decision to vacate guilty verdict and enter acquittal gave rise to question about his objectivity, legitimacy of decision-making, and was highly contentious. Trial judge erred in law in entering acquittal. In circumstances, trial judge could not have realistically received and considered submissions, as he should have, on very issue that he had already decided. Procedure adopted by trial judge not only tainted fairness of process but undermined legitimacy of remedy. Trial judge was not required to continue to verdict and, in doing so, failed to take into account impact that this course of action had on perception of administration of justice. R. v. Griffith (Aug. 9, 2013, Ont. C.A., Rosenberg J.A., Juriansz J.A., and Gloria Epstein J.A., File No. CA C55310) 108 W.C.B. (2d) 408. Weapons CARRYING CONCEALED WEAPON Evidence of officers so inconsistent court not satisfied as to how shotgun shells were found Accused charged with carrying concealed knife, possessing shotgun without licence, storing shotgun in careless manner, possessing firearm without licence, having possession of shotgun for purpose dangerous to public peace, and possessing loaded prohibited firearm without licence. Police received report of three suspicious men in apartment stairwell. Officer testified that apartment door opened and accused tried to flee when he saw him. One officer testified that he located knife on accused during pat-down search, while another officer testified that he saw knife in accused's pants as accused ran towards him, and he subsequently arrested accused for possession of concealed weapon. Officers entered apartment because of safety concerns, removed three other individuals from inside, then went back in and looked around. Officer looked under bed and saw shotgun and machete. Before he was placed in cruiser, accused was searched again and police found bandana with two shotgun shells in his back pocket. Accused testified he opened door in response to knock, then officers grabbed him and threw him to floor. Accused testified that he did not try to run from officers or resist. Accused denied knowledge of shotgun shells in his bandana or shotgun. Accused found guilty of carrying concealed knife, acquitted on all other charges. Officers' evidence was preferable to that of accused. Accused was leaving his apartment dressed for outdoors as officers walked down hall. As accused testified that knife was in his jacket pocket, and given evidence that it was concealed, accused was guilty of that charge. Although it was clear that items were in accused's bedroom, given wide discrepancy in evidence of police officers, court was not persuaded beyond reasonable doubt that accused could have been found in possession of weapons. Other men in bedroom had plenty of time to leave weapons in manner detrimental to accused. Court did not accept that officers, having just recently brought situation under control, would then carry on to frame accused in such oblique way as putting shotgun shells in his pocket. While it was unlikely on balance of probabilities that shells were planted on accused, on basis of proof beyond reasonable doubt, and in face of accused's denial, possibility could not have been excluded. Without shotgun shells there was nothing to persuade court beyond reasonable doubt that accused was in possession of shotgun. Evidence of officers was so inconsistent that court could not have been satisfied beyond reasonable doubt as to how shotgun shells were found. Officer testified that he had to crouch down to see shotgun under bed, but photos showed shotgun in such place that one need not crouch down to see it, which was significant discrepancy. Given inconsistencies, court could not rely on Crown evidence to find that offences had been made out beyond reasonable doubt. R. v. Smart (Aug. 9, 2013, Ont. S.C.J., G.D. Lemon J., File No. Brampton CRIMJ(P) 1967/12) 108 W.C.B. (2d) 409. LT

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