Law Times

Law Times • June 23, 2014 Page 15 www.lawtimesnews.com of truck. Accused, who claimed not to have been drinking, failed ASD test and was taken to de- tachment. Accused gave BAC readings of 138 and 121. Appeal allowed; new trial ordered. In his reasons for judgment trial judge sufficiently outlined basic factual foundation of case and, with rea- sonable clarity, articulated issues by outlining respective positions of parties. However, thereaf- ter, trial judge did not expressly analyze evidence or issues raised by parties. Nor did trial judge expressly draw any factual infer- ences, or clearly make any find- ings of fact (or determinations of credibility) from evidence he reviewed. Beyond brief, conclu- sory statement as to verdicts trial judge had reached, no further analysis was provided by trial judge. Such reasons were simply not legally sufficient. Reasons by trial judge did not articulate any logical connection between evidence and law and verdicts. While trial judge held that ac- cused was guilty of first charge, trial judge did not expressly find either that accused was in "care or control" of motor vehicle; or that ability of accused to operate motor vehicle was impaired by alcohol. Both of these key factual issues were contested by accused at trial, constituted essential el- ements of alleged offence, and yet were left unresolved by trial judge. It was only by implica- tion, reasoning backwards from verdict, that one could conclude that trial judge must have silently drawn these factual conclusions. Reasons contained no explana- tion as to why trial judge implied- ly drew those factual conclusions. It was not enough for trial judge simply to recall evidence ac- curately, rehearse arguments of parties, and then announce his or her verdicts. R. v. Tong (Mar. 24, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 83/13) 112 W.C.B. (2d) 310. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Suspicions about bail breaches did not convert investigation into ruse Property manager of housing complex had reported general concerns about drug dealing and trespassing on premises to po- lice. Four police officers attended complex. Officers claimed ac- cused walked quickly toward house carrying partially-full li- quor bottle, then rapidly knocked on door. Officers alleged that accused smelled of liquor, had bloodshot eyes and appeared very nervous. Officers asked ac- cused if he lived there and if he had been drinking. Physical al- tercation ensued when officer asked accused about backpack he was carrying. Officers admit- ted to punching and kneeing ac- cused to get him to stop resisting. Once accused was handcuffed, officer searched backpack and found semi-automatic handgun. Accused was charged with 11 counts, including four counts of assaulting police and five weap- ons offences. Accused applied for exclusion of evidence based on, inter alia, breach of s. 9 of Charter. Application dismissed. Predominant purpose for ac- cused's detention was Provincial Offences Act (Ont.) investigation into liquor and trespassing issues and not mere ruse or pretext for criminal investigation. Objective basis existed for investigation. Officers' suspicions about possi- ble bail breaches did not convert investigation into ruse. Grounds relied on by officers to detain ac- cused were sufficient. Accused was not generally credible or reli- able witness. Circumstances pro- vided reasonable suspicion to be- lieve accused may possibly have committed provincial offence. Officers had legitimate grounds to brief ly detain accused and determine whether he was resi- dent or trespasser who had been drinking in courtyard of com- plex. Detention not unduly long. Evidence established that ac- cused pushed one officer in chest and kicked another in groin, then tried to close door on officers and continued to resist arrest. Offi- cers had grounds to enter dwell- ing and arrest accused. Force used during arrest caused no significant injuries and was nec- essary and reasonable. R. v. Darteh (Feb. 7, 2014, Ont. S.C.J., M.A. Code J., File No. 13-50000278- 0000) 112 W.C.B. (2d) 325. ENFORCEMENT OF RIGHTS Without video accused unable to fully cross-examine or put inconsistencies to complainant Application by accused, who was charged with sexual assault of his spouse, which occurred on Sept. 14, 2007. Accused claimed that his rights under ss. 7 and 11(d) of Canadian Charter of Rights and Freedoms were breached by police negligence in failing to retain videotaped statement made by spouse concerning her allegations of spousal abuse. He submitted that his right to fair trial and right to make full an- swer and defence was irrepara- bly prejudiced by negligent ac- tions of police. Abuse allegedly occurred during their domestic relationship which lasted from 2004 through to 2011. On Dec. 2, 2007 complainant recanted her allegations to accused's then de- fence counsel and she informed him that on September 14 she was not assaulted by accused but by her ex-boyfriend. On Nov. 3, 2011 complainant informed po- lice that it was accused who sexu- ally assaulted her. Crown failed to prove that its duty to disclose 2007 video was not breached by its loss or destruction due to un- acceptable negligence. Accused and Crown agreed that central trial issue was complainant's credibility. Without video ac- cused was unable to fully cross- examine, put inconsistencies to complainant and challenge her narrative. Stay was granted as there was no alternative remedy that would cure prejudice to ac- cused's ability to make full an- swer and defence. R. v. Whyte (Jul. 11, 2013, Ont. S.C.J., A. Sosna J., File No. 13098/12) 112 W.C.B. (2d) 328. RIGHT TO COUNSEL Assets seized from accused could be used to pay for private counsel Application by accused for or- der staying proceedings against him until Attorney General for Ontario made arrangements to pay for his defence. Accused was charged with more than 75 offences, which included weap- ons offences, proceeds of crime and trafficking and conspiracy charges related to various drugs. Crown indicated that it would seek 18 to 24 years of imprison- ment if accused was convicted. Accused was refused legal aid funding and his appeals were also denied. He claimed he did not have means to fund counsel privately and he did not possess education, confidence or legal training to defend this serious, complex and lengthy case on his own. He further submitted that he would be unable to obtain fair trial without assistance of coun- sel and he requested finding that his rights under ss. 7 and 11(d) of Canadian Charter of Rights and Freedoms would be breached without assistance of state-fund- ed counsel. Accused's mother lent him money to pay for coun- sel for his bail hearing but she was unable and unwilling to as- sist accused in paying for his le- gal defence. Accused's father and girlfriend were unable to provide assistance with his legal costs. Application dismissed. Accused did not meet burden of satisfy- ing court that he used every pos- sible means to retain counsel and he did not make full disclosure of his financial circumstances. Assets that were seized from ac- cused could be used to pay for private counsel and accused was entitled to apply for release of those assets. R. v. Kizir (Mar. 19, 2014, Ont. S.C.J., Lalonde J., File No. Otta- wa 12-G20060) 112 W.C.B. (2d) 332. Interception of Private Communications ADMISSIBILITY OF EVIDENCE Accused failed to establish expectation of privacy in phone calls from penitentiary Application by accused to exclude from trial evidence recordings of two telephone conversations he had as penitentiary inmate. Conversations were intercepted and recorded on April 12, 2010 and they were seized by Toronto police on April 28, 2010 pursuant to search warrant. Accused had no issue with seizure of record- ings but he argued that record- ing of conversations violated his rights that were protected by s. 8 of Canadian Charter of Rights and Freedoms. Accused was on trial for charges of robbery, threatening death, use of fire- arm, assault and intimidation. Offences were alleged to have occurred while accused served penitentiary sentence. Crown al- leged that accused orchestrated, from penitentiary, gun-point home invasion on April 4, 2010 at residence of his former partner. On April 12 partner reported to police that accused called her and threatened to kill her. Police informed penitentiary officials of partner's allegation and accused's telephone calls were intercepted. Application dismissed. Accused failed to establish on balance of probabilities that he had subjec- tive expectation of privacy in his phone calls, and in any event, such expectation in all of circum- stances would not be objectively reasonable. He knew that his telephone communications were subject to being monitored and recorded. Also, calls were not pri- vate for accused did not call part- ner directly. Accused called his sister, who in turn called partner. At times during recorded calls, accused spoke to his sister and his sister remained on line as he spoke to partner and to another person. R. v. Cain (Feb. 13, 2014, Ont. S.C.J., Corrick J., File No. CR-12- 30000219-0000) 112 W.C.B. (2d) 335. Mental Illness GENERAL Mental health centre and prison officials would face similar obstacles controlling behavior Mental health centre brought motion for order suspending placement decision made by Re- view Board and for order that ac- cused remain in prison pending centre's appeal of board's deci- sion. Accused was dual status of- fender: he was found not crimi- nally responsible for attempted murder, assault with weapon and possession of weapons for dan- gerous purpose and thus came under board's jurisdiction; five years later he was convicted of additional criminal offences and sentenced to term of imprison- ment. Those offences included unprovoked attack on fellow patient with water bottle, attack on another patient with pool cue, and death threats against staff members. Board's decision came subsequent several acts of self harm by accused, during which experts gave evidence that due to accused spending most of his time in isolation, his mental health was at risk of deteriorating further. Board held placement hearing for accused and ordered that accused be transferred back to mental health centre. Major- ity held that accused's needs were best met by pilot program at mental health centre that ac- cused had been participating in until his criminal convictions and transfer. Mental health cen- tre appealed board's decision, challenged board's jurisdiction to make placement decision and contended that majority's deci- sion was unreasonable. Appeal did not yet have date. 34 year old accused was extremely danger- ous man who had lengthy history of criminal activity, which began when he was 13, has continued unabated and had escalated in severity. Accused's score on Violence Risk Appraisal Guide placed him in highest of nine categories for risk of violent re- cidivism and he was assessed as psychopath. Motion dismissed, but mental health centre's appeal to be expedited. Mental health centre had not persuaded court of any compelling reasons that would justify suspending board's decision. Lacking transcript, court had to accept majority's decision and, on its face, its deci- sion seemed reasonable. Majority addressed and took into account public safety considerations from transfer to mental health centre and concluded that risk to staff and to patients or inmates was equal, whether accused was at mental health centre or in prison. Court had no basis to doubt rea- sonableness of majority's con- clusion and evidence seemed to suggest that mental health centre and prison officials would face similar obstacles in trying to con- trol accused's violent behaviour. Board lacking jurisdiction would be issue for appeal. Concern ac- cused's mental health would be disrupted due to transfer was speculation and contradicted by mental health treatment official's evidence. Waypoint Centre for Mental Health Care v. R. (Mar. 7, 2014, Ont. C.A., John Laskin J.A., In Chambers, File No. CA M43304 (C58047)) 112 W.C.B. (2d) 358. Trial ACCUSED NOT REPRESENTED BY COUNSEL Accused did not have to be represented in order to have fair trial Accused charged with mischief and criminal harassment. Ac- cused applied for appointment of counsel. Accused was 28 years old and had criminal record for assaulting police officer. Ac- cused was stay-at-home mom, left grade 12 when she was preg- nant with her first child, was in common-law relationship, and was on social assistance. Issue was whether accused's right to fair trial would have been ma- terially compromised if she did not have lawyer. Accused argued that criminal harassment charge was of such complexity that she needed assistance of lawyer in or- der to have fair trial. Application dismissed. Although accused might have needed to bring mo- tion for third party records, she would have had benefit of pre- trial where judge would have ad- vised her as to steps to take in or- der for her to bring such motion. This was not lengthy trial nor were proceedings complex. Ac- cused did not have any mental or physical health issues. There was no evidence that accused could not understand charges and, given her past criminal record, she had at least some experience with criminal justice system. Al- though it was not ideal to have anyone represent themselves in criminal proceedings, accused did not have to be represented in order to have fair trial. R. v. Degray (Mar. 10, 2014, Ont. S.C.J., Lafrance-Cardinal J., File No. 13-C1695) 112 W.C.B. (2d) 410. LT CASELAW

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