Law Times

Page 18 OctOber 6, 2014 • Law Times www.lawtimesnews.com CASELAW arrest and subsequent detention were arbitrary and it constituted breach of s. 9 of Charter. Once in custody he was not informed of his right to counsel, he was denied opportunity to exercise right to counsel when he asked for it and he was held in cus- tody in onerous conditions for 14 hours, during eight of which he remained in zip-tie hand re- straints. He was released and he was not charged. Accused was charged several months later for June 26 incidents after investigator reviewed surveil- lance video evidence taken on that date and he compared it to pictures of accused that were in camera that police seized and to picture of accused that police took when he was arrested on June 27. Application dismissed. Charter-infringing state con- duct was serious and impact of breaches on accused's Charter- protected interests were signifi- cant. However, accused's arrest and his custody occurred dur- ing extenuating and exigent cir- cumstances. If stay was granted it would disregard fact that people who smashed windows at G20 also threatened com- munity's right to function in free and democratic way. Abuse that accused suffered would not be perpetuated or aggravated by permitting matter to proceed to trial. Accused failed to demon- strate that this was one of those clearest of cases in which stay was required. R. v. McCormic (May. 21, 2014, Ont. S.C.J., Clark J., File No. CR-13-10000835-0000) 113 W.C.B. (2d) 630. Charter of Rights BENEFIT OF LESSER PUNISHMENT Abolition of acceleration of day parole constituted 'punishment' Accused pleading guilty to drug offences prior to coming into force of Abolition of Early Parole Act (AEPA) which abol- ished accelerated day parole for non-violent offences. Section 10 of AEPA providing abolition applied retrospectively. Accused being sentenced to eight years after AEPA came into force and eligibility for day parole thereby delayed by almost one year. Ac- cused's application pursuant to s. 11(i) of Charter allowed and retrospective application of AEPA of no force and effect. Abolition of acceleration of day parole constituted "punish- ment" for purpose of s. 11(i). Ac- cused had settled expectation he would qualify for early day pa- role at time plea entered. Delay in parole eligibility subjected ac- cused greater punishment than he had expected. Oraha v. Canada (Attorney Gen- eral) (May. 9, 2014, Ont. S.C.J., W. Tausendfreund J., File No. Kingston CV-13-250-00) 113 W.C.B. (2d) 682. SEARCH AND SEIZURE Hydro consumption records did not disclose personal information Accused were charged with production of marijuana, pos- session for purpose of traffick- ing and possession of property over $5,000 obtained by crime. Search warrant was obtained based on hydro consumption records and Crown expert testi- fied house was akin to residen- tial grow operation. Accused sought order excluding evi- dence from search warrant de- claring numerous sections of provincial and federal privacy acts unconstitutional, along with utilities company's practice of passing on to police unsolic- ited hydro consumption records of its customers. Legislation did not create any search or seizure powers but did prescribe narrow circumstances in which institu- tions may choose to disclose personal information. Accused argued they had reasonable ex- pectation of privacy in hydro consumption records and s. 8 of Charter protected them from unjustified state intrusions on private homes. Accused fur- ther argued Crown should have had to call officer instead of expert on grow operations. Ac- cused found guilty. There were no Charter breaches as hydro consumption records did not disclose personal information. Consumption data released to police did not go to biographical core of personal, intimate details of lifestyle and personal choices of accused and they could not reasonably have had objective expectation of privacy. Crown expert was valid choice to testify and evidence found established offences. R. v. Orlandis-Habsburgo (May. 22, 2014, Ont. S.C.J., Arrell J., File No. 12-3882) 113 W.C.B. (2d) 638. Evidence ADMISSIBILITY Allegations/recantations ques- tions clearly relevant to credibility of complainant's allegation Accused appealed conviction. Issue was admissibility of evi- dence that complainant had on two prior occasions alleged that she had been sexually assaulted, only to later recant those allega- tions. Appeal allowed, convic- tion quashed, new trial ordered. Evidence of allegations/recan- tations did not engage s. 276 of Criminal Code, as it did not involve evidence of sexual ac- tivity. Allegations/recantations questions were clearly relevant to credibility of complainant's allegation against accused. Rele- vance was not such that it could be said evidence had minimal probative value. Questions re- garding complainant's prior allegations/recantation were proper questions to put to com- plainant on cross-examination. Evidence of recantations, at least to extent that evidence of recan- tations came from witness, was not collateral and was prop- erly subject of further evidence. Cross-examination of com- plainant on alleged recantations to witness could have assisted not only in assessing complain- ant's general credibility, but very reliability of her statement to witness that she had just been sexually assaulted by accused. Defence could have led evidence from witness to contradict complainant if complainant in cross-examination denied making recantations to witness. Trial judge properly excluded evidence of officer regarding one of two incidents that led to s. 276 Code hearing. Officer's evidence about his investigation and his opinion as to complain- ant's veracity had nothing to do with whether complainant had made allegation of sexual as- sault that she subsequently re- canted. There was no merit in unreasonable verdict argument, as there was ample evidence to support finding of guilt. It was combination of allegation and recantation that made evidence relevant to complainant's cred- ibility. Court could not say that error made with respect to al- legations/recantations evidence was harmless in context of re- cord. R. v. Green (Jan. 28, 2013, Ont. C.A., Doherty J.A., Janet Sim- mons J.A., and M. Tulloch J.A., File No. CA C53413) 113 W.C.B. (2d) 653. Mens Rea MURDER No subjective mens rea requirement for second degree murder provided Accused appealed dismissal of application for certiorari to quash his committal for second degree murder. Crown alleged that accused was party to mur- der because he facilitated entry to victim's apartment building by two intruders. Accused was not present during robbery that led to victim's death. Accused was committed to stand trial on charge of second degree mur- der after contested preliminary inquiry. Accused argued that there was no admissible evi- dence adduced before prelimi- nary inquiry judge on which it could have been concluded that he had subjective foresight that principal offender would kill victim in carrying out robbery. Appeal allowed, second degree murder committal quashed, manslaughter committal substi- tuted. Home invasion robbery was inherently dangerous, and there was evidence that accused knew of principal's violent pro- pensities. There was no admissi- ble evidence that accused knew that intruders went to robbery with weapon, and he was not present at robbery itself. Evi- dence at preliminary inquiry, fully considered in context of drug "rip-off " robbery, did not provide some evidence of sub- jective mens rea requirement for second degree murder. R. v. Scott (May. 1, 2013, Ont. C.A., E.E. Gillese J.A., M.H. Tulloch J.A., and P.D. Lauwers J.A., File No. CA C56323) 113 W.C.B. (2d) 685. Mental Illness GENERAL Court deeply concerned by hos- pital's apparent failure to comply with terms of disposition Accused appealed disposition of Review Board which ordered that he be detained in secure unit, with early review of dis- position to take place within six months. Accused was found not criminally responsible on account of mental disorder in respect of criminal harassment and breach of recognizance. While board unanimously found that accused remained significant threat to public safe- ty, minority would have ordered that he be detained in secure unit but with potential for trans- fer to general unit with commu- nity living privileges. Accused argued that disposition was un- reasonable and that he should have been granted absolute dis- charge. Accused alternatively sought conditional discharge or detention order in general unit with community living privi- leges. Six-month review had commenced at time of hearing, but had not finished. Appeal dismissed. While appeal may not have technically been moot, through review process un- derway, in short order accused would have had decision on re- lief he sought. Board was in best position to decide matter be- cause, through review process, it would have had accused's most current and complete medical information. Legal threshold on which board had to be satisfied was whether accused was signif- icant threat to public safety. Al- though it appeared that amicus conceded that legal threshold regarding threat to public safety had been met, accused had not conceded matter and board had to decide whether legal thresh- old had been met. Court was deeply concerned by hospital's apparent failure to comply with terms of disposition, as it took five months to move accused to secure unit. Board, too, should have been troubled by hospital's apparent failure to comply with its order and needed to take steps to determine why delay oc- curred and to ensure that it did not happen again. Simopoulos, Re (Nov. 15, 2013, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and M. Tulloch J.A., File No. CA C56767) 113 W.C.B. (2d) 670. Release from Custody RELEASE PENDING APPEAL Despite mootness concerns, public interest favoured contin- ued enforcement of sentence Application by accused for bail pending his conviction appeal. Accused was convicted of one count of break and enter and commit robbery and one count of robbery. He received cus- todial sentence of three years. Complainant observed vehicle that pulled into driveway of his home and two men, one white and one Asian, exited vehicle and they entered complain- ant's home looking for narcot- ics. Complainant's hands were bound with duct tape and he was assaulted. Police stopped as- sailants' vehicle and they found one white man and three Asian men inside. Owner of vehicle, who drove it, identified accused as being Asian man who accom- panied white man into house. Trial judge recognized that driv- er had strong motive to identify someone other than himself as person who entered house, be- cause conviction would have re- sulted in his deportation. Judge was satisfied that accused was Asian man who entered home. By time appeal was heard and determined accused would have served substantial portion of his sentence. Refusing this ap- plication might render his ap- peal moot, which would thereby cause him unnecessary hard- ship. Appeal was not yet perfect- ed so it could not be expedited. Application dismissed. Convic- tions constituted serious crimes against complainant. Grounds for conviction appeal were only marginally arguable. Despite mootness concerns, public in- terest favoured continued en- forcement of sentence and not judicial interim release. Appeal could be scheduled quickly on expedited basis once it was per- fected. R. v. Kaguyutan (May. 12, 2014, Ont. C.A., P. Lauwers J.A., In Chambers, File No. CA M43762, C58710) 113 W.C.B. (2d) 692. FEDERAL COURT Citizenship APPEAL Judge did not raise discrep- ancy in declared absences with foreign national Foreign national was stateless individual who was born in Ku- wait and who became perma- nent resident of Canada on June 7, 2003. Foreign national applied for citizenship on August 8, 2008. Foreign national had in- terview before judge on April 18, 2013. Foreign national did not submit passport which covered period from September 10, 2004 to May 4, 2009, so that absences were not verifiable. Judge noted credibility concerns regarding discrepancy between absences listed on foreign national's orig- inal application (354 days) and his residence questionnaire (34 days). Judge was not satisfied that foreign national had proven that he was physically present in Canada for 1,095 days during relevant period and denied ap- plication. Foreign national ap- pealed. Appeal allowed; applica- tion referred back to another cit- izenship judge for re-determi- nation. While judge's decision was not unreasonable, decision hinged on negative credibility finding, based on discrepancy in declared absences, however judge did not raise this dis- crepancy with foreign national. Given necessary procedural fairness afforded to applicants in citizenship applications and centrality of this issue to foreign national's claim, there had been breach of procedural fairness.

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