Law Times

Law Times • October 28, 2013 cused's car where trunk opened, at which time he placed duffle bag inside trunk. Accused's vehicle was pulled over by police and he was arrested. Trial judge held that Crown failed to prove that accused knew that there were drugs in duffle bag given that drugs were never mentioned in verbal and text communications entered into evidence, there was no evidence of what was discussed in earlier brief conversation between accused and individual, and there was some evidence that accused owed individual money. Trial judge held that despite all surveillance on apartment, accused was never seen there prior to day in question, nor was there any evidence he knew it was stash house or that individual and second individual were allegedly in drug business. Crown argued that trial judge erred in application of co-conspirator's exception to hearsay rule by requiring that Crown prove accused's participation in conspiracy beyond reasonable doubt at stage one of Carter test. Crown argued that trial judge erred by applying reasonable doubt standard to individual pieces of evidence, as opposed to determining whether, on whole of evidence, Crown had proven charge beyond reasonable doubt. Appeal dismissed. Trial judge erred in stating that there was insufficient evidence to establish first element of Carter test, that conspiracy existed. Even assuming that trial judge would have concluded that accused was probably member of conspiracy, hearsay statement that Crown relied on would not have changed result. Hearsay conversation relied upon by Crown was, at best, ambiguous as to whether it implicated accused. While conversation did reference delivery of drugs, which was followed immediately thereafter by placing of drugs in accused's car, conversation was also reasonably capable of meaning that drugs were to be delivered to someone with name different from that of accused. Crown did not satisfy court that there was "reasonable degree of certainty" that outcome of trial would have been different but for error of law. Trial judge did not improperly apply reasonable doubt standard to each piece of evidence. Trial judge was cognizant of proper test to be applied, and merely pointed out frailties in Crown's case. Trial judge did not err in consideration of evidence. R. v. Kaizer (Sep. 11, 2013, Ont. C.A., S.T. Goudge J.A., J.M. Simmons J.A., and M. Tulloch J.A., File No. CA C55578) 108 W.C.B. (2d) 420. SENTENCE APPEAL Judge would have sentenced accused differently if he had correct information Appeal by accused from sentence imposed on him after he pleaded guilty to three counts of break and enter with intent, one Page 15 CASELAW count of misleading police and one count of failing to attend court. Accused was sentenced to four months consecutive on each of break and enter counts, 60 days concurrent with respect to misleading police and 45 days consecutive with respect to failing to attend court. Global sentence was 13.5 months in jail. Accused appealed against portion of sentence that pertained to three counts of break and enter with intent and regarding overall quantum of incarceration. His co-perpetrator, whose criminal record was not as serious as that of accused, faced three counts of break and enter with intent and he pleaded guilty to one count of break and enter with intent and he was sentenced to 90 days in jail to be served intermittently and to concurrent sentence of 90 days intermittent for possession of burglary tools. However, during accused's sentencing, Crown erroneously informed judge that co-perpetrator was sentenced to four months' incarceration and judge used that information to formulate accused's sentence for three break and enters. Appeal allowed. Judge would have sentenced accused to three months consecutive for each break and enter if he had been provided with correct information. Therefore, global sentence for break and enters was reduced to nine months. Since sentence regarding other two counts remained unaltered global sentence was reduced from 13.5 months to 10.5 months. R. v. Carrine (Sep. 4, 2013, Ont. S.C.J., A.J. Goodman J., File No. 805) 108 W.C.B. (2d) 433. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Court would not tolerate fishing expedition of officer Accused sought to exclude admissions and evidence including loaded handgun based on various Charter breaches. Officer stopped accused after claiming he smelled marijuana but did not smell marijuana when he came to vehicle. Officer noticed four air fresheners and called other officers to scene which arrived 10 minutes later. Second officer also did not smell marijuana but one claimed to smell it from trunk. Accused was ordered outside vehicle to search and was not cautioned nor given opportunity to speak to counsel. Accused did produce vial of marijuana on his person that was in sealed smell proof container after exiting vehicle. Search of vehicle led to discovery of loaded handgun in console. Evidence excluded. Court would not tolerate fishing expedition of officer that breached Charter ss. 7, 8, 9 and 10 rights of accused. Society cannot permit officers randomly stopped people and subjecting them to intense scrutiny and searches without justification. R. v. Kirmani (Aug. 16, 2013, Ont. S.C.J., B. Glass J., File No. 13146/12) 108 W.C.B. (2d) 556. Evidence IDENTITY OF ACCUSED Complainant's eyewitness identification fell short Accused charged with sexual assault, threatening to cause death, and robbery. Complainant was sitting on bench waiting for bus when man approached her from behind, grabbed her neck, punched her repeatedly in face, and threw her onto ground. Assailant uttered threats to harm complainant, then pulled down her pants and underwear and inserted his fingers into her vagina before grabbing her purse and walking away. Complainant testified that she got good look at man's face and that she was able to clearly see his features because of light from illuminated bus stop and overhead street light. Police found white baseball hat that attacker had been wearing beside bench at bus stop. Accused was not excluded as major source of DNA on hat. Complainant viewed two photo lineups after offence and did not identify anyone in photos as attacker. Years later, after DNA evidence appeared, police decided not to have complainant view photo lineup that included photograph of accused because she had told them that she did not think she could pick her attacker out of photo lineup. During preliminary hearing in 2012, and at trial, complainant identified accused as person who had attacked her. Accused denied assaulting complainant, and testified that he had been smoking crack cocaine on evening in question before returning to his parents' house and sleeping in car. Accused admitted that baseball hat found at scene of attack was his, but testified that he had been wearing it that night and had lost it either at bar or at crack house. Accused found not guilty. Complainant's description of attacker shortly after incident was inconsistent with accused's physical description, including fact that accused was missing one of his front teeth. Composite image prepared by complainant was dissimilar to accused in numerous ways. That complainant saw accused for first time two years after incident at his preliminary inquiry rendered her in-dock identification of accused then and at trial extremely unreliable. Complainant's eyewitness identification evidence alone fell short of establishing that accused was man who assaulted, threatened, and robbed her. Circumstances raised suspicion that accused attacked complainant. Accused was credible witness and gave his evidence in honest and straight-forward manner. Accused's evidence was internally and externally consistent, and was not shaken in cross-examination. Court accepted accused's evidence. Accused's statements to officer www.lawtimesnews.com were not sufficiently compelling to overcome weaknesses in complainant's eyewitness identification evidence. Circumstantial evidence relied upon by Crown was not sufficiently compelling to overcome weaknesses in complainant's eyewitness identification evidence. R. v. Plourde (Jul. 30, 2013, Ont. S.C.J., Hainey J., File No. 1270000699) 108 W.C.B. (2d) 478. Motor Vehicles IMPARIED DRIVING AND "OVER 80" No risk that accused was about to resume control of his vehicle Appeal from conviction and sentence. Accused was observed entering convenience store and collapsing. Clerk immediately called 9-1-1 at request of accused. Accused told paramedics and police at scene that he had been taking crack cocaine all day. Before being transported to hospital, accused asked police officer to take care of his vehicle and gave keys to officer. Accused charged with impaired operation of motor vehicle, per s. 255(1) of Criminal Code. Trial judge found accused not guilty of impaired driving but guilty of lesser and included offence of care and control while impaired by drug. Appeal allowed. While accused was travelling to gas station, there was his evidence that somebody else had been driving. Trial judge seemed to have been satisfied that Crown had not proven beyond reasonable doubt that accused had been operating vehicle at that point. However, once accused collapsed inside of store there was no evidence of any act or conduct attributable to accused that would have allowed court to conclude that there was risk of any danger. No evidence there was any risk that accused was about to resume control of his vehicle. There was no evidentiary basis for finding of guilt made by trial judge. Conviction and sentence set aside and acquittal entered. R. v. Morrone (Sep. 5, 2013, Ont. S.C.J., Robert N. Beaudoin J., File No. Ottawa 11-5930) 108 W.C.B. (2d) 489. Sentence ROBBERY Accused played central role in brandishing imitation machine gun Court rejected accused's appeal of his 24 month sentence and probation after being convicted of six counts of robbery, two counts of unlawful confinement, one count of being masked with intent and one count of using imitation firearm while committing robbery. Robbery stemmed from serious armed robbery of grocery store by four masked men in which accused was found to be carrying imitation machine gun. Offence committed involved planning, other perpetrators, use of what appeared to be more dan- gerous weapons and robbery and confinement of many more people. Trial judge did not err in giving significant weight to general deterrence and denunciation despite accused's age and lack of criminal record. Judge also considered rehabilitation but given high moral blameworthiness of accused sentence was not unfit. Accused played central role in brandishing imitation machine gun while victims were rounded up and that had to be reflected in sentence. R. v. Dirie (May. 13, 2013, Ont. C.A., M. Rosenberg J.A., Gloria Epstein J.A., and P. Lauwers J.A., File No. CA C54815) 108 W.C.B. (2d) 537. Weapons GENERAL Accused neither registered tenant nor resident of premises Accused charged with possession and unsafe storage of loaded prohibited firearm, and possession and unsafe storage of ammunition. When accused was arrested on suspicion of drug trafficking, he had keys which opened deadbolt lock of door of residence. Police searched residence and found 9 mm Ruger firearm loaded with 11 rounds of 9mm Luger ammunition in closet in main entrance hallway. Round of ammunition was in chamber of gun, and safety was in "off " position. Police also found drugs, drug paraphernalia, firearm cleaning kit, men's clothing, and accused's personal documents inside residence. Experts testified that, based on surveillance evidence, accused appeared to be using residence as "stash house". Accused found not guilty. Court was not persuaded that only rational inference that could be drawn from circumstantial evidence was that accused had knowledge and control of firearm. Accused was neither registered tenant nor resident of premises, and items in house known to be connected to accused were located in single location within computer room on main floor. There was no evidence that men's clothing or shoes found in closet or basement were connected to accused, or that any men's clothing was found in master bedroom. Court was unable to conclude that accused was only male who had connection to or access to residence, which was only under surveillance for approximately twelve hours on single day. Limited period of time of surveillance was insufficient to conclude that accused was only male with connection to residence. Fact that accused sold marijuana or stored drugs in residence did not inevitably lead to conclusion that he possessed firearm, as not every drug trafficker possessed firearm. There was no forensic evidence connecting accused to firearm. R. v. Bailey (Jul. 12, 2013, Ont. S.C.J., K. Corrick J., File No. CR12500008520000) 108 W.C.B. (2d) 555. LT

• Cover