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Law Times • December 9, 2013 to find his documents. Officer testified that engine was running. Trial judge did not accept testimony of accused's friends as being credible since most of them were intoxicated. She did, however, accept officer's testimony. Appeal dismissed. Since key was in ignition and engine was running there was realistic risk of danger. There was no miscarriage of justice for there was evidentiary basis on which judge could make findings that she did. She detailed her reasons for not accepting defence witnesses as being credible or reliable. R. v. Summers (Oct. 2, 2013, Ont. S.C.J., M.J. Donohue J., File No. CR12-341-0000AP) 109 W.C.B. (2d) 344. RIGHT OF APPEAL Intention of statute was to prevent persons from using disabled persons permits Accused applied for leave to appeal decision which dismissed appeal of his conviction for displaying disabled person permit not in accordance with regulations, contrary to s. 27(1)(b) of Highway Traffic Act (Ont.). Parking officer saw vehicle parked in no parking zone, with disabled person parking permit displayed. Officer saw accused enter vehicle, inspected permit, and discovered that it was issued to accused's mother, who was not present or in area at time. Accused argued that Crown had to prove that he was person who placed or "displayed" permit in car window, and that it was insufficient to prove only that he returned to and entered vehicle which had disabled permit on dash. Crown conceded that accused raised question of law, but argued that it was neither in public interest nor for due administration of justice that leave be granted. Application dismissed. While decided cases in Ontario Court of Justice did not deal directly with point raised by accused, they did speak to requirements for conviction and there was no conflict in decisions for court to resolve. Word "display" was capable of more than just its active meaning. As intention of statute was to prevent persons other than those to whom permits were issued from using permits, interpreting statute to require officer to actually see violator place permit in window would have defeated this intention. It was neither essential in public interest nor necessary for due administration of justice to grant leave to appeal on facts. R. v. Ferranti (Sep. 27, 2013, Ont. C.A., MacFarland J.A., In Chambers, File No. CA M42631) 109 W.C.B. (2d) 398. Assault ASSAULTING PEACE OFFICER Rational common sense that people generally knew contents of bags they carried Trial of accused on charges of possession of methamphetamine for purpose of trafficking Page 15 CASELAW and for assaulting police officer. At issue was whether Crown proved that accused had knowledge that shopping bag that he carried in hotel contained one pound of methamphetamine, which was worth $16,000, and whether accused pushed officer who approached him in hotel lobby. Accused was electrician who did work for two men on house that they owned. He finished work and when he tried to collect unpaid balance, he was told to meet one of owners at hotel. One of owners gave accused bag to deliver it to other owner and accused claimed he had no idea what it contained. Accused was arrested by police when he was about to be paid and before he could give bag to other owner. He denied that he tried to run from police and he did not push officer who approached him. Accused convicted of both offences. He had control of bag and it was in his sole custody for six hours. Crown proved that accused had knowledge that bag contained methamphetamine. Court was satisfied that accused's explanation as to how he came to have control of methamphetamine and his denial that he pushed officer were not true. Officers who dealt with accused were credible witnesses and there were no deficiencies in police investigation that undermined its credibility and completeness. None of accused's attacks on officers' evidence were persuasive. Inference that accused had knowledge of illegal contents of bag was only reasonable inference in this case. It was rational common sense proposition that people generally knew contents of bags they carried, especially where contents were valuable. R. v. Reid (Oct. 9, 2013, Ont. S.C.J., M.A. Code J., File No. 12-90000243-0000) 109 W.C.B. (2d) 354. Charter of Rights ENFORCEMENT OF RIGHTS Accused had to live apart from family for over three years Application by accused for stay of proceedings because he claimed his right under s. 11(b) of Canadian Charter of Rights and Freedoms to be tried within reasonable time was violated. On May 20, 2010 accused was arrested and he was charged with four counts of trafficking in cocaine. He was released on bail on May 25, 2010 and he was required to live with his sureties, who were his mother and his older sister. Prior to his arrest accused lived with his common law wife and their four children. Accused had to live three years and four months apart from his wife and children and he found this to be very difficult. He worked as truck driver and he wanted to attend college to upgrade his employment status but he did not do so because of pending charges. Accused was committed for trial on March 19, 2012 and he first appeared in Superior Court on April 25. On July 5 his trial was scheduled for December 17, 2012 because that was earliest date Crown was available. On December 17 accused requested adjournment of trial because transcript from second day of preliminary inquiry was only provided that morning. Transcript had been ordered on August 21, 2012. Matter was remanded to December 19, 2012 to set new trial date. Presiding judge on December 17 instructed parties that new trial date was to be set within three months to avoid s. 11(b) problems. On December 19 trial was set to commence on September 23, 2013, even though accused's counsel was available for trial on February 25, 2013. Total delay from date accused was charged to commencement of trial was just over three years and four months. Delay in Superior Court was 14 months. These were lengthy periods of delay, particularly since charges were not complex. Accused never waived his s. 11(b) rights. Application allowed and proceedings were stayed. Accused was not at fault for nine month delay between February 25 and September 23 and this period was systemic or institutional delay. Delay in Superior Court of 14 months in getting matter to trial was outside guidelines and it was unreasonable. Crown should have complied with judge's direction and scheduled trial within three months of first date. Failure to do so resulted in violation of accused's right under s. 11(b). Accused was significantly prejudiced and he suffered great deal from unreasonable delay because he had to live apart from his family for over three years. Stay was appropriate remedy in this case. R. v. Smith (Oct. 9, 2013, Ont. S.C.J., Hainey J., File No. 1290000241-0000) 109 W.C.B. (2d) 362. Evidence HEARSAY Statements admissible not for truth but for circumstances in which said Crown sought to admit to prior consistent statements made by complainant to her boyfriend and mother in 2011 when she was 16 years old. Complainant was now over 18 years old but accused was charged with assaulting her when she was under 16 years. Complainant gave detailed narrative to her boyfriend when he asked what was bothering her and subsequently told her mother which led to charges being laid. Accused accepted that statement to mother could be allowed for narrative purposes as to how charges came about but argued statement to boyfriend was prejudicial. Both statements admissible as narrative. Evidence of boyfriend was expected to include his observations of significant changes in demeanor of complainant prior to disclosure being made and his www.lawtimesnews.com credibility might be significantly affected if he could not provide full story. How complaint first came to be made may have probative value in assessing credibility of complainant as well and both prior consistent statements were admissible as narrative and to assist in assessment of the credibility. Statements of complainant were not admissible for truth of what she said but for circumstances in which she said it. R. v. Ozawagosh (Oct. 9, 2013, Ont. S.C.J., Robbie D. Gordon J., File No. 397/12) 109 W.C.B. (2d) 426. PREVIOUS RECORD OF ACCUSED Accused had 35 prior criminal convictions Accused charged with numerous sexual offences involving two young victims. Accused applied to exclude some of his prior criminal convictions from evidence at trial. Accused had 35 prior criminal convictions commencing as youth in 1988 and ending most recently in 2006. Accused argued that youth convictions, assault-related convictions, narcotics convictions, and 1994 conviction for dangerous driving should have been excluded from evidence. Crown argued that none of convictions ought to have been excluded. Application allowed, in part. There had been no attack by defence, before jury, on police investigation, nor had there been any attack on general character of complainants. Youth convictions were not too dated, and they showed pattern of dishonest behaviour on part of accused over just two years before his first adult conviction. Assaultrelated convictions were not too similar to offences facing accused, and convictions for assault with weapon and assault causing bodily harm were significantly different than sexual charges being tried here. Dangerous driving conviction had minimal probative value in that it had very little to do with honesty and credibility, and its admission would have been unduly prejudicial to accused. Convictions for failing to stop at scene of accident and robbery were crimes of dishonesty and were properly admissible. Serious drug convictions, other than simple possession, were relevant to credibility and ought to have been admitted. R. v. W. (L.) (Sep. 26, 2013, Ont. S.C.J., Conlan J., File No. 17/13) 109 W.C.B. (2d) 382. Sentence CHILD PORNOGRAPHY No excuse or rationale which would permit or condone this type of behaviour Accused was sentenced to two years less one day plus three years' probation after being found guilty of one count of manufacturing child pornography, one count of making child pornography available and two counts of possession of child pornography. Accused received concurrent two year and one year sentences concurrently for making and possession counts of child pornography respectfully. Accused had 53 images of child pornography on his computer and violated trust of his stepdaughter by taking topless photograph of her while she was sleeping. Court noted that although taking of this photograph was not most egregious example of production of child pornography, contents of victim impact statement made it abundantly clear as to devastating effect that it has had on stepdaughter who wanted to kill herself. Court acknowledged that accused was victimized as child which may have explained his lack of remorse but concluded that no matter what his background or upbringing, there could be no excuse or rationale which would permit or condone this type of behaviour. Aggravating factors were distribution of child pornography through use of file sharing software and that sexual activities depicted in pictures and videos were extremely disturbing. Only real mitigating factor was that collection was small by objective standards and most of it had been deleted. R. v. Marien (Oct. 4, 2013, Ont. S.C.J., R. Dan Cornell J., File No. 304-12) 109 W.C.B. (2d) 410. SUPREME COURT OF CANADA Charter of Rights SEARCH AND SEIZURE Late ticket purchase in cash consistent with behaviour of drug couriers Accused charged with possession of cocaine for purpose of trafficking. Accused bought one-way plane ticket on day of flight and paid in cash. Accused checked locked suitcase on flight. Police believed that accused's late ticket purchase in cash was consistent with behaviour of drug couriers. Police accordingly conducted dog sniff search of accused's suitcase together with other randomly selected bags. Dog indicated presence of drugs in accused's bag and in nearby cooler. Accused arrested and bag forced open revealing 3 kilograms of cocaine. Trial judge allowed accused's application to exclude seized cocaine on basis that search violated his right under s. 8 of Canadian Charter of Rights and Freedoms. Court of Appeal found search reasonable and ordered new trial. Appeal dismissed. Police had a reasonable suspicion that accused was drug courier based on totality of circumstances. Sniffer dog was demonstrated to be reliable. Search was not unreasonable. R. v. Chehil (Sep. 27, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34524) Decision at 97 W.C.B. (2d) 173 was affirmed. 109 W.C.B. (2d) 367. LT

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