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law Times • July 11, 2011 R. v. Gibbons (Apr. 27, 2011, Ont. C.J., Greene J., File No. 4817 998 09 70007394 00) 94 W.C.B. (2d) 251 (12 pp.). Defences SELF-DEFENCE On evidence accused's attack on victim was pre-emptive Accused appealed his convictions for attempted murder, aggra- vated assault and uttering death threat. Crown conceded appeal for aggravated assault based on Kienapple principle. Main issue on appeal was whether trial judge erred in refusing to leave self-efence to jury. Aggravated assault conviction set aside, ap- peal otherwise dismissed. Trial judge was correct as on evidence accused's attack on victim was pre-emptive. Th ere was no evi- dence to explain why accused did not call police or seek assist- ance of another individual who had successfully intervened in prior dispute between two men or why he did not simply dis- play machete to scare off victim, particularly in light of striking disparity between two weapons: 10 inch steak knife compared to 23 inch machete with 18 inch blade. R. v. Cham (Apr. 21, 2011, Ont. C.A., Weiler, Blair and Epstein JJ.A., File No. C50406) 94 W.C.B. (2d) 278 (3 pp.). Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Suggestion that cocaine in controlled package was not from original package was not substantiated Accused picked up FedEx pack- age ostensibly sent from Tourist Board of St. Lucia which ori- ginally contained 425 grams of cocaine before it was altered by police for controlled delivery. Accused found guilty. Sugges- tion that cocaine in controlled package was not from original package was simply not sub- stantiated by any evidence and discrepancies with respect to of- fi cer's testimony on that subject were acceptably explained. Re- peated visits by accused to FedEx were indicative of strong interest in picking up package. Manner of accused's driving after the fact, which indicated wish to be un- discovered by anyone who may have seen him pick up package, provided strongest evidence of knowledge. R. v. Edwards (Apr. 21, 2011, Ont. S.C.J., Wein J., File No. CRIMJ(F)690/10) 94 W.C.B. (2d) 255 (14 pp.). Evidence BURDEN OF PROOF Court would not accept "usual practice" of offi cer as proof that device was working properly Accused was charged with speed- ing and objected to offi cer using electronic notes to refresh mem- ory, amending speed upward to actual speed captured by device and proof device was working properly based on usual prac- tice of offi cer. Crown provided accused with advance notice it would be seeking amendment to speed. Offi cer testifi ed that electronic notes were typed but sent at relevant time and could only be opened on "read only" basis after he initially sent them. Offi cer testifi ed that he had in- dependent memory of events but did not specifi cally remember testing radar unit on that night. Offi cer further testifi ed that he never recorded testing unit in his notes because he always tested it at end of each and every shift. Accused found not guilty. Elec- tronic notes were admissible as courts do allow great leeway to refresh memory and must keep up with times. Amendment was also proper given ample notice to accused. Court would not ac- cept "usual practice" of offi cer as proof that device was work- ing properly. Offi cer could have simply indicated in his notes that device was tested and working properly and failure to do that resulted in prosecution failing to prove its case. Durham (Regional Municipality) v. Zhu (Apr. 6, 2011, Ont. C.J., Le Blanc J., File No. 2860 999 00 1450322Z) 94 W.C.B. (2d) 276 (16 pp.). Extraordinary Remedies CERTIORARI Committal for fi rst degree murder quashed Two accused were ordered to stand trial for fi rst degree mur- der after preliminary inquiry. Accused moved to quash that or- der on grounds there was no evi- dence adduced at preliminary in- quiry that murder of victim was planned and deliberate on part of either of them. Accused were boyfriend and girlfriend. Th ere was altercation outside motel in which victim punched male ac- cused in face and slapped female accused. Group of fi ve men, see- ing victim slap female accused, chased him down and beat him. Somebody then placed body of victim on train tracks where he was then run over although for- ensic testing confi rmed he was already dead when train struck him. It was open to jury to infer that voices and statements over- heard by motel guests were at- tributable to accused and, from language used, basis for fi nding intention to kill. Committal for fi rst degree murder quashed. Evi- dence of accused hugging while group beating took place could not equate to planning or delib- eration. Statements attributed to accused were made during pro- cess of assaulting victim and as such did not proceed act. R. v. Ivall (Apr. 28, 2011, Ont. S.C.J., Stach J., File No. CR-10- 084) 94 W.C.B. (2d) 269 (13 pp.). Robbery PROOF OF OFFENCE Circumstantial evidence was |overwhelming against accused Accused was charged with rob- bery and possession of dangerous weapon regarding attack against 14-year-old boy. Complainant told police that three persons, two Black and one Indian, fi rst beat him and then robbed him of his backpack. Complainant CASELAW saw accused put his shoes in his backpack and also testifi ed that accused held knife to him after being directed to do so by other accused. Accused was six feet fi ve inches tall and argued that complainant would have been more injured if he hit him. Police drove by shortly after at- tack and complainant pointed out accused and two others who were standing together. Accused had possession of backpack and other accused had knife on his possession. Accused argued com- plainant could not be trusted as he lied to police about being on way home from school and in- itially did not want to testify. Ac- cused found guilty. Circumstan- tial evidence was overwhelming against accused and there was no requirement for complainant to directly identify accused. Com- plainant's lie about not coming home from school was under- standable given his age and complainant did testify and was cross-examined. Accused was at all times participant in beating, pursuit and robbery of accused and Crown did not have to prove who struck specifi c blows. Accused had time to put shoes in backpack and thus also had time to give knife to co-accused. Weapons charge was stayed on Kienapple principle. R. v. C. (I.) (Apr. 14, 2011, Ont. C.J., Schwarzl J., File No. 09- 1462Y) 94 W.C.B. (2d) 287 (11 pp.). Sentence ASSAULT Accused did not disclose HIV positive status to complainant Accused sentenced to three and half years' incarceration before credit for pretrial custody after she pleaded guilty to aggravated assault, breach of probation by failing to report, two counts theft of property from depart- ment store, obstruct police by giving false name and failure to attend court. Aggravated assault charge arose out of fact accused was HIV positive, was aware of her condition and did not dis- close it to complainant who be- came involved with her sexually and was now HIV positive. Ac- cused was 23-year old Aborig- inal female with very troubled upbringing. Accused had youth and adult criminal record. Ac- cused had history of drug and alcohol abuse. R. v. Tippeneskum (Apr. 27, 2011, Ont. C.J., DiGiuseppe J., File No. 104883; 103798; 105003; 104393) 94 W.C.B. (2d) 290 (8 pp.). Sexual Offences GENERAL Orthodontist convicted of sexually assaulting dental student Trial of accused for sexual assault and for failing to comply. Victim was dental student and accused was orthodontist. Victim met him because he required accused to place braces on his teeth. Vic- tim returned to see accused on Sunday afternoon for second visit when none of accused's em- ployees was present. He claimed that in course of appointment accused touched his penis. Ac- www.lawtimesnews.com cused was subject to release con- dition on separate similar charge that he was not to conduct his practice except in presence of one of his employees. Accused convicted of both off ences. Victim was credible while ac- cused's version of events did not raise reasonable doubt. Court was satisfi ed beyond reasonable doubt that accused inappropri- ately touched victim's penis dur- ing dental appointment when no employee was present. R. v. Vellore (Apr. 14, 2011, Ont. C.J., Feldman J.) 94 W.C.B. (2d) 324 (4 pp.). SEXUAL ASSAULT Court was not satisfi ed that trial judge misapprehended evidence Accused appealed his conviction for sexual assault upon his for- mer wife. At trial it was position of accused that complainant (his then wife), deeply religious woman, had fabricated sexual assault allegations both to justify her claim for divorce and to gain advantage in family law pro- ceedings in relation to custody of parties' son. Accused allegedly came up to his wife, who he was separated from and touched her inappropriately and forced her to touch his exposed penis in church while she was trying to pray. Alleged assault happened day after complainant made claim for custody in her petition for divorce. Appeal dismissed. Trial judge's comments that com- plainant did not originally want accused charged was consistent with evidence before him. Court was not satisfi ed that trial judge misapprehended evidence when PAGE 19 he made fi nding as to when complainant became aware that accused would be charged as matter of police policy. Even if trial judge misapprehended evi- dence regarding when complain- ant became aware that her hus- band would be charged, verdict was not unreasonable one. R. v. T. (R.) (Apr. 12, 2011, Ont. S.C.J., Goodman J., File No. 160/07) 94 W.C.B. (2d) 318 (18 pp.). Weapons LICENCES AND PERMITS Taser in accused's possession was prohibited weapon Trial of accused for possessing stun gun, which was prohibited weapon, without lawful excuse and without licence. Accused was involved in verbal altercation in bar with complainant that did not escalate. Bar manager thanked accused for not getting into physical altercation inside. Accused showed him taser and told manager that complainant came very close to getting it. Ac- cused convicted. Manager was only civilian witness who was credible. Taser belonged to ac- cused and not to complainant. It was capable of injuring hu- man being. It was also capable of causing pain. Crown therefore proved that instrument in ac- cused's possession was prohibited weapon. Accused had no lawful excuse to possess it and he did not have licence for it. R. v. Krawcar (Apr. 15, 2011, Ont. C.J., Watson J., File No. 2111-998-10-F2453-00) 94 W.C.B. (2d) 329 (11 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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