Law Times

Law Times • January 20, 2014 exercising his counsel rights Accused appealed his conviction for driving over .08, alleging trial judge erred in law in failing to find s. 10(b) breach, did not properly assess issue of waiver of right to counsel, and that judge erred in failing to find that Prosper warning was required. Upon his arrest after being pulled over and failing ASD test, accused was read his rights to counsel. When accused was lodged at detachment, he was asked if he wished to speak to lawyer, and he declined. When asked by counsel if officer had anything in his notes about accused waiving his right to counsel, he stated that he forgot to write that down. Officer agreed that he had no notation either way as to whether accused indicated that he wanted to speak to lawyer while he was in cruiser. Officer indicated that he did not recall accused's answer and maybe he did not ask question. Officer agreed that it was possible that accused wanted to speak to lawyer. Officer agreed that it was possible that accused could have said that he wanted to speak to lawyer during roadside phase. Officer agreed that he knew of necessity to hold off questioning if right to counsel was requested. Officer said when he asked accused second time about whether he wished to speak to lawyer that his verbatim response was "no, it's okay". Accused claimed to have asked to speak with named counsel at roadside. Appeal dismissed. Trial court found that even if accused indicated that had wanted to speak to counsel when given his rights at roadside (and trial court found that he probably did), accused thereafter did nothing that evidenced desire to speak to counsel. Trial judge's findings were supported in evidence and were not in error in finding accused had not been diligent in exercising his counsel rights. R. v. Ilyassov (Aug. 15, 2013, Ont. S.C.J., Hugh K. O'Connell J., File No. Newmarket S.C.A. No. 11-05) 109 W.C.B. (2d) 643. RIGHT TO JURY TRIAL Nothing precluded judge from making finding on fact on which jury could not agree Determination, for purpose of sentencing, whether sentencing judge could make finding of fact on question that jury was unable to decide. Accused and his common-law partner brought their seriously ill seven week old son to hospital. Child was assessed and it was discovered that he had serious injuries which included skull fracture from ear to ear and other head injuries. Accused was charged with aggravated assault, assault and failing to provide necessaries of life. Jury returned guilty verdict on charge of failing to provide necessaries of life. Jury was unable to reach unanimous verdicts on other two counts. Issue arose concerning factual basis for sentencing. Jury had been instructed that they could Page 15 CASELAW only find accused guilty of failing to provide necessaries if they were satisfied that accused inflicted child's head trauma. Verdict necessarily carried with it finding that accused did inflict that trauma. It did not, however, resolve issue of whether infliction of trauma was intentional. Finding that trauma was inflicted intentionally could be aggravating circumstance on sentencing for failure to provide necessaries offence. Accused claimed that judge had no jurisdiction to make finding on question of fact that jury was unable to decide. Accused also submitted that under s. 11(f) of Canadian Charter of Rights and Freedoms he had constitutional right to have question determined by jury. Judge decided that pursuant to s. 724 of Criminal Code it was open to him to find to make finding in relation to whether force was inflicted intentionally or accidentally. Where jury verdict did not resolve matter of fact that was relevant to determination of appropriate sentence, s. 724(2) (b) of Code provided that it was obligation of judge to attempt to make determination in that regard on basis of evidence adduced at trial. Jury deadlock regarding count of aggravated assault indicated inability to come to unanimous decision in relation to accused's intent at time trauma was inflicted. There was nothing in s. 724 that precluded judge from making finding on fact on which jury could not agree. Process of proving accused's intent when he inflicted trauma did not engage s. 11(f) of Charter. Based on medical evidence adduced at trial and accused's after-fact conduct, Crown proved beyond reasonable doubt that trauma was inflicted intentionally. R. v. Rosa (Oct. 30, 2013, Ont. S.C.J., MacDonnell J., File No. null) 109 W.C.B. (2d) 704. Indians ABORIGINAL RIGHTS Sheriff made direct contact with bands in order to compose onreserve jury roll Accused charged with sexual interference and sexual assault. At commencement of trial accused raised constitutional question with respect to s. 6(8) of Juries Act (Ont.) and challenge to array pursuant to s. 629(1) of Criminal Code. Accused was member of First Nations constituency. Jury panel list did not appear to be populated by anyone of Aboriginal heritage. As result, trial was adjourned to allow accused to file appropriate materials and to permit Crown to respond to challenge and constitutional question. Issue was manner in which information was gathered and related processes with respect to names of First Nations persons living on reserves for purpose of obtaining representative panel from which jury may be selected. Question required determination as to whether sheriff was guilty of partiality, fraud or wilful misconduct in obtaining representative panel for purpose from which jury may be selected. Although accused abandoned his application, court found it of such importance as to be ruled on anyway. Court services director explained that those of Aboriginal background who lived off reserve would have been captured by court system's data, however, those individuals living on reserve would not be so depicted. Relevant witnesses testified to difficulty getting new information for on reserve band member and lack of cooperation by relevant band authorities. Application dismissed. Sheriff, most senior representative, participated and made direct contact with bands in order to assess and compose on-reserve participation in jury roll. Many of these general issues had been identified, and there had been attempts by senior management to remedy situation. Documentation filed and viva voce evidence provided satisfied court that, in years post 2008, Ministry of Attorney General began demonstrably increased efforts to obtain names of eligible band members, albeit largely without success. Efforts presented indicated direct, repeated attempts to contact and dialogue with various band chiefs leading up to development of 2012 jury panels: for reasons unknown to court, band members and chiefs chose not to participate, respond or cooperate. Based on evidence, court did not find that anyone working on behalf of provincial jury center, or for that matter Ministry of Attorney General, was culpable of partiality, fraud or wilful misconduct. R. v. Kennedy (Oct. 15, 2013, Ont. S.C.J., A.J. Goodman J., File No. 11-069) 109 W.C.B. (2d) 675. Mens Rea WEAPONS OFFENCES Judge did not make finding that other accused intended to assist in commission of firearms offences Three accused appealed their convictions for importation of firearms into Canada after pleading guilty to importation of alcohol. First accused was only one who had travelled to United States and her DNA evidence was found on clothing that was used to conceal weapons. First accused had received and sent numerous text messages to person who provided weapons and alcohol and was wired money by other accused. Trial judge gave herself Vetrovec warning regarding testimony of key witness and found many inconsistencies in evidence of first accused. Evidence against second and third accused was entirely circumstantial as there was no proof that they had sent certain text messages from their www.lawtimesnews.com phone but they were present when guns and alcohol were in trunk of rental car driven by second accused. Second and third accused argued that trial judge's reasons contained no mention, express or implied, of their mens rea or state of mind concerning smuggling or presence of firearms. Trial judge also made no finding that second and third accused knew of first accused's intention to smuggle firearms or that either or both of them was wilfully blind to this plan. Appeal allowed for second and third accused only. Evidence was overwhelming against first accused but erred in not addressing mens rea in regards to other accused. Judge did not make any finding that they intended to assist first accused in commission of firearms offences, as opposed to only alcohol-related offences. Necessary mens rea for aiding or abetting first accused could not be assumed nor extrapolated from state of mind of first accused. Mens rea component of aiding or abetting was essential element of party liability under s. 21(1)(b) or (c) of Criminal Code and it was unclear whether judge decided they knew or were wilfully blind about first accused's intention to smuggle firearms. R. v. Taylor (Oct. 31, 2013, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C54969, C55172, C55287) 109 W.C.B. (2d) 720. Mental Illness DETENTION Patient had decompensated significantly since his absolute discharge was ordered On joint recommendation of parties and evidence received at hearing, panel of Review Board was satisfied that patient was no longer significant threat to safety of public and directed that patient be discharged absolutely. Patient had been found not criminally responsible for charges of aggravated assault, assault with intent to resist arrest, assault causing bodily harm, and simple assault. Patient's underlying mental disorder was schizophrenia, possibly personality disorder (anti-social type), and polysubstance dependence (crack, cocaine, heroin, cannabis and alcohol). Few weeks later, patient returned to some of his old habits, taking drugs, like cocaine and marijuana, drinking alcohol, ceasing his prescribed medication and missing appointments at Forensic Outpatient Service at Centre for Addiction and Mental Health ("CAMH") where he had been treated for his major mental disorder for some time. Patient became psychotic, hostile, verbally aggressive, and threatening. Patient returned to CAMH when mental health authorities invoked provincial mental health legislation to have him arrested and confined there involuntarily. Attorney General applies for or- der under s. 672.76 of Criminal Code suspending disposition of absolute discharge pending determination of appeal and substituting conditional discharge without s. 672.55 of Criminal Code treatment condition. Patient took position that as he intended to stay at CAMH voluntarily, orders requested were not necessary. Order granted. Patient displayed signs of mania and was incapable of making treatment decisions about antipsychotic and mood-stabilizing medication and had decompensated significantly since his absolute discharge was ordered. Patient's in-patient psychiatrist and person in charge of CAMH were both of view that patient currently represented significant threat to safety of public because of his mental disorder. Evidence of patient's behaviour since discharge was in nature of fresh evidence, and would not have been available at discharge hearing. Conditional discharge proposed was least onerous and least restrictive disposition to patient in circumstances. Furlan, Re (Oct. 11, 2013, Ont. C.A., David Watt J.A., In Chambers, File No. CA M42828) 109 W.C.B. (2d) 677. FEDERAL COURT Industrial and Intellectual Property COPYRIGHT No requirement for consent to be granted in writing Plaintiff was retained as freelancer to compose, arrange, perform, produce and record music for curriculum for teaching in elementary schools. There was no written contract. Plaintiff sought damages for breach of copyright. Parties agreed plaintiff owned copyright to original compositions. Action dismissed. Plaintiff consented to use of his music, granting implied licence to defendant and actively facilitated defendant's use of plaintiff 's music. At all times plaintiff understood that his work was commissioned for use in curriculum. Plaintiff acknowledged during discovery and at trial that he permitted defendant to use music for purposes of curriculum. Defendant did not exceed scope of licence. When licence was granted for consideration it could be not be revoked unilaterally. There was no requirement for consent to be granted in writing. There was joint authorship of songs by parties and joint copyright ownership of songs. Defendant was maker of sound recording and owner copyright. Defendant did not agree to pay plaintiff royalties. Plaintiff would have been awarded $17,400 as damages if infringement had been found. Pinto v. Bronfman Jewish Education Centre (Sep. 11, 2013, F.C., Donald J. Rennie J., File No. T-1070-07) 233 A.C.W.S. (3d) 454. LT

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