Law Times

Law Times • November 25, 2013 judge refused to permit accused's counsel to cross-examine complainants on their victim impact statements. Summary conviction appeal judge dismissed appeal from conviction but allowed appeal from sentence on ground that trial judge had erred by refusing to permit cross-examination on victim impact statements and remitted matter to trial court to hold fresh sentencing hearing. Crown sought leave to appeal on ground that summary conviction appeal judge had no jurisdiction to remit matter for fresh sentencing hearing and that he also erred in finding that trial judge should have permitted cross-examination on victim impact statements. Leave to appeal granted; appeal allowed; original sentence restored. It was conceded that summary conviction appeal judge erred in remitting matter to trial judge to hold fresh sentencing hearing: summary conviction appeal judge had no jurisdiction pursuant to relevant provisions of Criminal Code governing summary conviction appeals to make such order. Appeal judge erred in finding err on part of trial judge. Counsel for accused failed to identify with sufficient clarity fact or facts contained in victim impact statements that were disputable and that request to cross-examine was not specious or empty as required. Trial judge did not appear to have placed any significant reliance on victim impact statements when determining appropriate sentence. Sentence was within appropriate range. R. v. T. (B.) (Aug. 26, 2013, Ont. C.A., Robert J. Sharpe J.A., Gloria Epstein J.A., and P. Lauwers J.A., File No. CA C56434) Decision at 104 W.C.B. (2d) 896 was reversed. 109 W.C.B. (2d) 143. Charter of Rights SEARCH AND SEIZURE Accused had no reasonable expectation of privacy in his licence plate Accused, charged with impaired driving, driving over .08, and breach of recognizance by being in care or control of vehicle, applied for exclusion of evidence. Police were patrolling through privately owned commercial parking lot and were conducting random queries of licence plates. One of those queries revealed that vehicle in parking lot was owned by accused. That accused was out on bail for other charges, and that one of his release conditions was that he not operate or have care or control of motor vehicle. Police stopped accused's motor vehicle as it was about to exit parking lot. Accused was arrested for breach of recognizance and later for impaired operation of motor vehicle. Accused provided two breath samples which recorded 150. Page 19 CASELAW Application dismissed; accused convicted. Accused had no reasonable expectation of privacy in his licence plate or in information that police received following query of licence plate. There was no evidence that accused had subjective expectation of privacy and no cause to conclude that objectively reasonable person would have expectation of privacy. Licence plate was affixed to vehicle for all persons to plainly see. Information revealed by query was limited to who owned vehicle as well as accused's outstanding charges and bail conditions. Accused had no control over that information and no authority or ability to restrict other person's access to that information. R. v. McGill (Sep. 11, 2013, Ont. S.C.J., Conlan J., File No. CR-13-31) 109 W.C.B. (2d) 161. TRIAL WITHIN REASONABLE TIME All material required for disclosure available 15 months prior to charges being laid Three accused, charged with sexual assault, applied for stay of proceedings. While all three accused were now charged in one indictment, one accused was originally charged separately from other two and explanation given by officer in charge was that police could not get hold of one accused, and thus charged him later (he was actually charged four days after other two accused were arrested). Time between circumstances giving rise to offences, and charging of accused, was approximately 23 months. Total time from charge to scheduled trial was 27.5 months. Accused submitted total institutional and Crown delay was 23 months; Crown submitted institutional and Crown delay was 17 months and 18 days. Application allowed; charges stayed. Officer in charge acknowledged that all material required for disclosure was available at least 15 months prior to the charges being laid; despite this fact there had been procedural delay on disclosure issues after charges were laid. Court accepted Crown's suggestion that period between laying of charges and holding of judicial pre-trial should be divided between Crown and defence. Court found total time of Crown and institutional delay to be 19 months, just outside guideline 18 months. Court found all three accused had suffered differing levels of prejudice, from first accused whose prejudice was simply inherent prejudice from being charged to third accused, who had been unemployable since charges, was in financial debt to his father, and suffered from depression while in struggle against testicular cancer. R. v. McShane (Sep. 6, 2013, Ont. S.C.J., Gray J., File No. Brampton 157/13) 109 W.C.B. (2d) 168. Criminal Records Probative value of accused's criminal record outweighed any prejudice in permitting jury to hear about it Application to exclude criminal record. Accused charged with aggravated assault by wounding and two counts of weapons dangerous; one with sword and one with knife. Allegedly accused used knife to stab victim in stomach and used Samurai Sword to make gashes in victim's bedroom door. Both accused and victim almost 18 at time of events. Accused pleaded not guilty. At trial with jury Crown called victim and his girlfriend as witnesses. Defence spent considerable amount of his cross-examination of victim on his criminal record. On over 20 individual charges and sentences imposed, he repeatedly highlighted that victim had repeatedly breached court orders and lied to police. Victim also admitted that he had three outstanding, as yet untried charges for driving while disqualified. Defence made much of his victim's repeated convictions of obstruct justice involving lies to police and ultimately got admission from victim that he would lie when he needed to. At conclusion of Crown's case, accused applied to exclude his adult criminal record which had single conviction for first degree murder which occurred one and a half years after present charges. Application dismissed. Fact that accused committed first degree murder 18 months after offences in this case not relevant. Issue was his credibility as witness in this trial and fact that he had been convicted for first degree murder was highly probative. Record consisted of only one conviction and because it was first degree murder, that put its probative value at highest in these types of circumstances. In light of vigorous cross-examination of victim on his criminal record, serious imbalance would arise if accused testified and jury believed he had unblemished past. Probative value of accused's criminal record outweighed any prejudice in permitting jury to hear about it. Crown could crossexamine accused on his criminal record, if he elected to testify. Decision moot as accused elected not to testify. R. v. S. (C.) (Sep. 17, 2013, Ont. S.C.J., Spies J., File No. YC50000-13) 109 W.C.B. (2d) 175. Courts STAY OF PROCEEDINGS Accused failed to establish that counsel was necessary to ensure fair trial Accused charged with two counts of conspiracy to commit fraud over $5,000, two counts of fraud over $5,000, and two counts of laundering proceeds of crime. Accused applied for stay of proceedings pending www.lawtimesnews.com funding for him to retain counsel to defend him. Trial before judge sitting without jury was scheduled to start in ten days time and would last six to eight weeks. There were number of documents which were likely to be placed in evidence at trial, proof of which would require number of weeks of testimony. Accused conceded that actus reus of crimes alleged was not in issue, except to extent that any potential inferences of criminal state of mind might be sought therefrom. Accused had extensive legal training and experience, as he had practiced law in Ontario for 25 years and had acted in criminal cases, including fraud cases. Accused testified that he had no assets and only very small monthly income from occasional work in area of law clerking. Accused argued that his trial would be so complex that it would prejudice his right to fair trial if he was required to represent himself. Application dismissed. Fact that documents on which Crown would rely had been available to accused for approximately two years and that they would not be put in issue by accused helped in delineating extent to which volume thereof would result in complex trial. While defence counsel would be of assistance to accused and court in long trial, accused failed to establish that counsel was necessary to ensure fair trial. There was little complexity arising from number of documents. Accused knew better than anyone what his knowledge and intention were in respect of acts in issue. Accused's legal training and his 25 years of counsel experience equipped him to meet demands of trial to far greater degree than almost any other accused person who was representing himself in his criminal trial. Accused was educated person, well-spoken, and capable of communicating effectively. If accused chose to testify in his defence he had little need of counsel to prepare him or to prepare questions which addressed issues, as he was well-equipped to do this for himself. Accused had put forward nothing except his word of his indigence. R. v. Barna (Aug. 30, 2013, Ont. S.C.J., John Macdonald J., File No. CR133000018200MO) 109 W.C.B. (2d) 169. Extradition and Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Existence of dual purpose cannot render extradition proceeding abuse of process Fugitive challenged committal order on basis that his committal for extradition would constitute abuse of Canadian court's process because Japanese authorities intended, in addition to prosecuting offence in which extradition was sought, to question fugitive qua witness in unrelated matter. Desire to question fugitive clearly precipitated extradition request but it was accepted that Japanese authorities had valid basis to pursue charge and intended to pursue charge on which extradition was sought. Appeal dismissed; committal order affirmed. Existence of dual purpose, assuming both are legitimate, cannot render extradition proceeding abuse of process. Extradition judge had no evidence before him on which any finding could be made about manner in which fugitive would be treated: there was no basis upon which it could be said that extradition proceeding was abuse having regard to potential for mistreatment of fugitive if surrendered. Treatment of fugitive upon surrender was subject matter of submissions before Minister and subsequent inquiries by Minister who satisfied himself that fugitive would not be mistreated and sought certain undertakings from Japanese authorities. There was no application for judicial review of decision of Minister. Japan v. He (Sep. 23, 2013, Ont. C.A., Doherty J.A., Tulloch J.A., and Lauwers J.A., File No. CA C56017) Decision at 103 W.C.B. (2d) 770 was affirmed. 109 W.C.B. (2d) 182. Fraud DEFRAUDING CREDITORS Argument of accused undermined as he was person who profited from fraudulent transactions Accused was charged with four counts of fraud over $5,000 arising from sale of two homes. It was alleged that accused, through use of corporation, orchestrated sale of these properties, at inflated prices, to socalled straw purchasers who were called to give evidence for Crown. Purchasers obtained mortgage funds from bank and mortgages soon went into default resulting in combined losses of $267,082 to CMHC and bank. Funds that were advanced by bank were distributed to various corporations and individuals, with accused receiving substantial portion. Accused acknowledged that fraud occurred but argued he was engaged only in perfectly legitimate business of flipping properties and was deceived by others. Accused found guilty. Court noted that others may have been involved in fraud however argument of accused was undermined as he was person who profited greatly from fraudulent transactions. Court reasoned that others made have also been complicit in fraud but from all of circumstances, it was found that accused intended to do what he achieved, knowing that he was deceiving lenders. R. v. Fiorilli (Sep. 24, 2013, Ont. S.C.J., Trotter J., File No. I-415/12) 109 W.C.B. (2d) 184. LT

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