Law Times

Law Times • aPril 27, 2015 Page 19 www.lawtimesnews.com Trial of accused on charges of possession of marijuana and cocaine for purpose of traf- ficking. Police conducted sur- veillance of accused and of particular apartment. Accused entered apartment unit and he was there for over four hours. When he left he was followed by members of surveillance team and he was arrested. Vehi- cle he drove was not owned by him but search of vehicle inci- dental to arrest produced items related to accused. Police seized keys from accused and these keys were vehicle's ignition key and for front door to apartment unit. They also found 41.76 grams of cocaine in vehicle. This quantity of cocaine was not consistent with personal use but it was consistent with possession for purpose of traf- ficking. Police executed search warrant on unit and they found large quantity of illegal drugs, such as marijuana, cocaine and crack cocaine and items related to sale of drugs. There were no documents found inside unit that were in accused's name or were related to him. Accused admitted that he intended to traffic in cocaine that police discovered in his vehicle. He denied any involvement to drugs and related items found in unit. However, officer saw him enter unit alone with key in his possession. He was born in Jamaica and he was Cana- dian citizen. Accused was cur- rently 38 years old and he was in relationship with woman who was mother of his three children. He had lengthy and related criminal record. Ac- cused convicted of possession of marijuana and cocaine for purpose of trafficking. He was not credible and court rejected his evidence that he had no knowledge or control of illicit contents of unit. R. v. Barnes (Oct. 17, 2014, Ont. S.C.J., O'Marra J.) 119 W.C.B. (2d) 481. Fraud PROOF OF OFFENCE Appeal from conviction for fraud allowed based on mis- apprehension of evidence Accused appealed her convic- tion for fraud. Only real issue was credibility. Accused admit- ted that she had cashed cheques made payable to herself over and above her own pay cheques and had electronically trans- ferred sums of money from company to her personal credit cards, all she said at behest of complainant, her employer, who wanted to get money out of his company undetected. Accused said that in each in- stance whether by cheque or electronic transfer she handed over cash to complainant, ex- cept for some amounts that he allowed her to keep. Complain- ant gave blanket denial that he had asked accused to do this and further denied that she ever handed over cash to him. Co-worker had been called by defence. Co-worker had certain animus towards accused. How- ever, in co-worker's evidence, he said that on two occasions, he had witnessed accused pres- ent cheques for signature to him (at that time witness had signing authority) and because of amounts of cheques $7,500 and $10,000 he questioned complainant about them and was told by complainant that he knew "all about it" and in- structed co-worker to sign cheques. Further, on one of those occasions, co-worker ac- tually witnessed accused hand over cash to complainant and him peeling off couple of bills and handing them back to her. Co-worker testified that com- plainant had asked him to do same thing, write cheques to himself, cash them and return cash to complainant but co- worker refused to do so. Trial judge accepted co-worker's evi- dence on this latter point and found him to be credible wit- ness. Trial judge then went on to say that he could not deter- mine one way or other if com- plainant asked accused to get cash out of his business by us- ing cheque, but having been re- buffed by co-worker, trial judge did not accept that complain- ant would continue to ask ac- cused to clandestinely remove money both electronically and by cheque. Appeal allowed; convictions quashed and new trial ordered. There were number of problems with trial judge's statement. Evidence of co-worker was critically impor- tant exculpatory evidence from witness trial judge found to be credible. This was not strong case for Crown. Trial judge had said he could not determine "one way or the other" if com- plainant asked accused to get cash out of his business using cheques. Yet, nowhere in his reasons did trial judge address this evidence and his failure to do so on these facts constituted misapprehension of evidence which amounted to error in law. Failure to address this im- portant evidence impacted on trial fairness and rendered ver- dict unsafe. R. v. Wirkkunen (Feb. 23, 2015, Ont. C.A., J. MacFarland J.A., M. Tulloch J.A., and G. Pardu J.A., File No. CA C56673) 119 W.C.B. (2d) 491. Mental Illness DETENTION No error in concluding that detention order was necessary to approve housing for accused Accused appealed disposition of Review Board ordering he be detained at General Foren- sic Unit with condition he be allowed to live in approved community accommodation. Accused was found not crimi- nally responsible on count of threatening death or bodily harm (involving his mother) and three counts of assault and had been subject to disposi- tions of board since that time. Disposition under appeal was made pursuant annual review. Board considered that accused required ongoing supervision but accepted that he was ready to live in community. How- ever, there was waiting list for housing programs. Although accused's mother testified that she was willing to have him live with her in her one-bedroom apartment and that she would supervise him, board noted that she was both victim of of- fences and had also minimized their severity. Appeal dis- missed. Board concluded that detention order was necessary to approve housing for accused and court saw no error in this regard. Giving board power to require approval of accommo- dation was only possible under detention order. It was apparent that board considered relevant criteria including accused's liberty interest and made least onerous and restrictive disposi- tion. Board left accused's cur- rent privileges and supervisory terms in place and added term allowing accused overnight passes into community for up to seven days at time, in order to facilitate greater commu- nity access. Board's decision re- vealed no legal errors and was reasonable given evidence that was before board. Boucher, Re (Mar. 2, 2015, Ont. C.A., David Watt J.A., S.E. Pepall J.A., and Grant Huscroft J.A., File No. CA C59101) 119 W.C.B. (2d) 494. Search and Seizure INFORMATION FOR WARRANT Information provided by confi- dential informant was compelling Accused, charged with pos- session of cocaine, ketamine, and MDMA for purposes of trafficking, applied to quash warrant and for exclusion of evidence. Police executed telewarrant at accused's third f loor apartment and found and seized 2.2 grams of co- caine powder, 15.55 grams of ketamine powder, and 23.68 grams of MDMA. Police also seized weigh scales and other drug-trafficking parapherna- lia, documents in accused's name, cell phone, $3,105 in Canadian funds, and $93 in American funds. Accused ar- gued that affiant, in his prepa- ration of Information to Ob- tain (ITO) telewarrant, sought to mislead justice and failed in his obligation to provide full, fair and frank disclosure of information in ITO. ITO was based in significant measure upon information obtained from confidential informant. Confidential informant had long criminal record, was fully immersed in criminal drug culture, had never been used by police before and, while prom- ises or inducements were made by police in relation to pro- vided, confidential informant was motivated by self-interest in providing this information about accused's drug-dealing activities to police. Application dismissed; evidence admissible. Court found that conclusion by justice was inevitable. While personal credibility of confi- dential informant was fairly and objectively described as very poor, his information de- tailing drug-trafficking activity of accused was compelling, and significant aspects of his infor- mation were confirmed and corroborated by subsequent police investigation. Confiden- tial informant provided police with detailed information as to how he personally purchased quantities of powdered cocaine and marihuana from accused at his apartment over previous 30 day period, general frequen- cy of those purchases, and how he saw accused on several occa- sions in possession of not only cocaine and marihuana, but also ketamine, MDMA cap- sules, scales for weighing drugs, and "baggies" for packaging drugs. Confidential informant provided police with detailed information about how ac- cused ran his drug-trafficking operation from his apartment, specific location in apartment where drugs were stored, and his method of packaging drugs. Police had attended apartment and smelled marijuana coming from apartment and noticed persons coming and going who did not seem to know accused by name and received infor- mation from other tenants of apartment that accused's resi- dence was only problem apart- ment, always smelling of mari- juana, and always with persons coming and going. R. v. Daniels (Jan. 15, 2015, Ont. S.C.J., Kenneth L. Campbell J., File No. 13/9-704) 119 W.C.B. (2d) 517. Sentence ASSAULT 20-month sentence for burn- ing child upheld on appeal Court dismissed appeal and upheld 20-month sentence for aggravated assault for burning her 10 year old son with hot iron. Appellate court agreed judge committed error in prin- ciple for not considering immi- gration consequences of sen- tence over 6 months however held error did not affect sen- tence decision. Sentence pro- posed by accused of 5 months would not have met principles of denunciation and deterrence and sentence imposed was within acceptable range. R. v. F. (N.) (Jan. 27, 2015, Ont. C.A., K.M. Weiler J.A., David Watt J.A., and Gloria Epstein J.A., File No. CA C57468) 119 W.C.B. (2d) 520. CRIMINAL NEGLIGENCE Accused sentenced to one year's incarceration plus two years' probation for failing to provide necessaries to elderly victim Two accused, husband and wife, sentenced to one year's incarceration followed by two years' probation after they were convicted of two counts of fail- ing without lawful excuse, to provide necessaries of life to wife's mother, person under their charge who was unable by reason of illness or mental dis- order to withdraw herself from such charge and to provide her- self with such necessaries of life, and they did thereby cause or were likely to cause permanent injury to her health. Victim suffered from severe demen- tia, from other serious medical conditions and was incapable of making decisions for herself. Paramedics and police received call to attend unit to assist vic- tim and found place in com- plete squalor. When first re- sponders entered victim's bed- room they found victim naked on bare mattress in room with blacked out windows, covered in her own vomit and in filthy condition. Also observed was victim's emaciated condition, dehydration and what later was diagnosed at hospital as frac- tured right hip. On examina- tion, doctor found victim suf- fered from dehydration, severe anemia, emaciation, G.I. bleed- ing and sub-capital fracture of right hip. Doctor observed vic- tim's body wasting and testified wasting did not take place over few days but would take lon- ger: weeks or months. Victim had broken her hip in fall in accused's care and paramedics were not called for several days. Victim's condition had eventu- ally become stable, but barely, before she contracted terminal pneumonia and died at age 77. Husband was 47 years old with criminal convictions that court found dated and irrel- evant, and otherwise positive work history and community support. Wife was 49 years old and had no criminal record, but seemed to lack insight, be- lieving she had done best she could for her mother and had done nothing wrong. Rather than co-operate with Com- munity Care Access Centre, Patient Health Care Team and doctor, accused frustrated any attempts by their health care professionals to assist either victim or accused. Instead, ac- cused, with victim in their care, engaged in disappearing act. Accused also isolated victim from her other family members who could not find her. Court found wife was not remorseful and lacked insight. While hus- band's pre-sentence report was neutral and somewhat posi- tive, wife's pre-sentence report was generally negative. Court rejected any characterization that conduct of accused was only misjudgment as opposed to criminal conduct. Accused did not give up Power of Attor- ney until forced to. Court also rejected argument on behalf of husband that while he was clearly responsible, he was less responsible because of limited and lesser active role which he played in care of victim. R. v. Davy (Jan. 16, 2015, Ont. S.C.J., DiTomaso J., File No. Barrie CR-13-115) 119 W.C.B. (2d) 525. LT CASELAW

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