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Law TiMes • March 1, 2010 of three months for pretrial con- ference date was attributed to Crown. Accused accepted earli- est available trial date. Institu- tional delay for trial date was 11 months. Although much of prej- udice claimed by accused was at- tributable to mere fact of charges, passage of time significantly am- plified impact on accused. Hav- ing balanced prejudice to accused against societal interest in law en- forcement, court found in favour of accused. R. v. Donaldson (Jan. 6, 2010, Ont. C.J., Horkins J., File No. 4817-998-08-70017181-00) 86 W.C.B. (2d) 22 (10 pp.). Evidence SIMILAR FACT EVIDENCE Evidence admitted to extent that it showed similarities in acts Accused young person charged with several counts of including robbery, using imitation firearm, masking face with bandana, possession of property obtained by crime and failure to comply with terms of release. Robber- ies were committed by group of young men using fake shotguns. Main issue at trial was identity. Crown brought application for admission of similar fact evi- dence in relation to separate rob- beries in order to prove identity of accused. Evidence admitted to extent that it showed simi- larities in acts. Judge satisfied that probative value of evidence outweighed prejudice. Alibi evidence not admitted. Accused found guilty on basis of evidence and testimony. R. v. L. (I.) (Dec. 15, 2009, Ont. C.J., File No. Barnes J.) 86 W.C.B. (2d) 99 (10 pp.). Sentence PREVENTIVE DETENTION There was reasonable prospect of containing accused's risk in community Crown applied to have accused designated dangerous offender and for imposition of sentence of detention in penitentiary for indeterminate period. Accused was found guilty of two counts of sexual assault, one count of sexual assault causing bodily harm and one count of unlaw- ful confinement against three complainants. Accused was 51-years old with substantial criminal record and history of crack cocaine addiction. Appli- cation dismissed. Accused de- clared long-term offender and sentenced to imprisonment of three years and four months in addition to pretrial custody to be followed by period of long- term supervision of ten years. There was no indication that accused required 24 hour day monitoring nor any suggestion that accused required programs that could not be provided within federal correctional sys- tem. Court was satisfied that by time accused would not be subject to long-term supervi- sion, ageing process could rea- sonably be expected to have had significant ameliorating impact on his risk. Since his arrest on matters before court, accused had been diagnosed with HIV and Hepatitis C. Court accept- ed that accused had not used crack cocaine for four and half years since entering custody and realized that return to crack us- age, combined with his medi- cal condition, would kill him. Court was satisfied there was reasonable prospect of contain- ing accused's risk in commu- nity. Court gave accused 1.5 to 1 credit for 4.5 years of pretrial custody as giving him 2 for 1 credit would not have allowed court to sentence accused long enough to allow him to receive long-term offender designa- tion. R. v. Dorsey (Dec. 14, 2009, Ont. S.C.J., MacDonnell J., File No. 0201/06) 86 W.C.B. (2d) 81 (35 pp.). DRIVING OFFENCES Sentence for drinking and driving offences excessive Accused alleged his right to trial within reasonable time had been violated and appealed con- viction and sentence. Accused guilty of impaired driving and "over 80" and sentenced to fine of $2,000 and two year driv- ing prohibition. Delay was 16 months and 22 days. Defence made no effort to obtain disclo- sure from Crown and refused to set trial date before having complete disclosure. Accused failed to establish on balance of probabilities that right to trial within reasonable time had been violated. Sentence varied. Accused was 41-years old at time of sentence and had previ- ous alcohol related conviction 16 years prior. Sentence was ex- cessive. Fine reduced to $1,200 and driving prohibition to 12 months. Appeal against convic- tion dismissed. R. v. Zunic (Dec. 30, 2009, Ont. S.C.J., Thomas J., File No. 2680/08) 86 W.C.B. (2d) 21 (42 pp.). Interception Of Private Communications REVIEW OF AUTHORIZATION Alleged errors in affidavit not indicative of malfeasance or incompetence Crown appeal from trial judge's decision to exclude intercepted communications pursuant to s. 24(2) of Charter. Trial judge holding that police affiant in- tentionally omitted information and misled issuing justice. Trial judge's findings were palpable and overriding errors. Some of trial judge's findings of omis- sions were themselves or over- stated materiality of affiant's omission. Trial judge imported elements of intent, incompe- tent or disrespect for court to affiant's conduct with no evi- dence for contentions regarding affiant's state of mind. Alleged material errors in affidavit not indicative of malfeasance or incompetence. Crown appeal allowed. R. v. Ebanks (Dec. 2, 2009, Ont. C.A., MacPherson, Blair and Rouleau C47397) Appeal from 74 W.C.B. (2d) 360 allowed. 86 W.C.B. (2d) 48 (21 pp.). CASELAW Threatening And Intimidation Appeal CRIMINAL HARASSMENT Complainants' fears reasonable from conviction and sentence. Accused's wife moved out of matrimonial home and into home of their daugh- ter and son-in-law, M. Move planned for when accused away for fear he would be violent if present. Accused made threats and harassed daughter and M on pretext of getting furniture back. M received letters, phone calls and emails to his employer, accused parked on street nu- merous occasions. Police told accused to stay away from M's home and property but accused persisted. Accused convicted of criminal harassment. Judge sus- pended passing of sentence and imposed 15 months' probation. Accused appealed seeking con- ditional or absolute discharge. Appeal dismissed. Accused had actual knowledge that he was harassing M and was wilfully blind as to whether he was ha- rassing daughter. Complain- ants' fears reasonable. No error in principle, failure to consider relevant factors or over-empha- sis or under-emphasis on ap- propriate factors. Sentence well within range imposed on simi- lar offenders. R. v. Vandoodewaard (Nov. 26, 2009, Ont. S.C.J., Durno J., File No. 3050/08) 86 W.C.B. (2d) 90 (37 pp.). Trial CHARGE TO JURY Trial judge did not err in instructions to jury at murder trial Accused charged with sec- ond degree murder of their son. Considerable evidence of prior abuse of son tendered by Crown. Trial judge instructed jury that liability of accused de- pended on connection to fatal assault. Both accused made out- of-court statements tendered at their joint trial. Accused argued on appeal that jury charge would have misled jury into believing they could compare these out- of-court statements in assess- ing their credibility. Accused's appeal against conviction dis- missed. Trial judge did not err in failing to specifically instruct jury not to convict based solely on prior abuse. This instruc- tion could have been given but its absence was not reversible non-direction in circumstances of this case. Trial judge properly told jury that statements of each accused were not admissible in any way against other accused. R. v. Dooley (Dec. 22, 2009, Ont. C.A., Doherty, Simmons and Juriansz JJ.A., File No. C39151; C38298) 86 W.C.B. (2d) 3 (75 pp.). JJ.A., File No. CONDUCT OF TRIAL Application for severance dismissed Accused, facing charges of con- spiracy to traffic in cocaine, possession of firearms, transfer- ring firearms and possession of proceeds of crime, attempted to revisit application to sever his trial in light of new case law. Accused wished weapons www.lawtimesnews.com offences and drug offences, which were based on different evidence, to be tried separately. Application dismissed. Court was of view there was strong factual nexus between weapons and drug charges. Public stor- age locker searched was directly linked to both sets of charges and there was in fact overlap between guns and drugs in terms of surveillance evidence. It would have been impossible in many instances to parse po- lice observations between those relevant firearm charges and those relating to drug conspir- acy charge. There would have been significant duplication of evidence between two proposed trials. Current trial would have been declared mistrial if sever- ance were granted and much of groundwork behind trial would have needed to be duplicated. R. v. Lucas (Dec. 9, 2009, Ont. S.C.J., Nordheimer J.) 86 W.C.B. (2d) 91 (8 pp.). Crown entitled to change its strategy Accused charged with murder. Crown stating that it intended to reserve accused's police state- ment for cross-examination and would not adduce it during Crown's case. Statement found to be voluntary following voir dire. Crown then changing po- sition and seeking to lead state- ment. Accused's application for order prohibiting change of po- sition dismissed. Crown's state- ment of intent did not amount to undertaking or agreement. Crown was entitled to change its strategy. Defence suffered no PAGE 19 prejudice from change of posi- tion and no remedy was war- ranted. R. v. C. (I.) (Jan. 4, 2010, Ont. S.C.J., Clark J.) 86 W.C.B. (2d) 92 (45 pp.). PLEAS Accused's guilty pleas were unequivocal and voluntary Application by accused to strike his guilty pleas. Accused pleaded guilty to one count of marijuana production, one count of pos- session of marijuana for purpose of trafficking, one count of theft of hydro-electricity, one count of money laundering, three counts of income tax evasion and one count of GST evasion. He claimed he was fundamen- tally misled by his former lawyer. Application dismissed. Accused's claim that he did not understand nature and consequence of his pleas was rejected. His former counsel was experienced defence counsel and would not have mis- led accused. Accused claimed that lawyer promised him that if he pleaded guilty he would get him conditional sentence. Court accepted lawyer's claim that he never made such prom- ise. Accused knew exactly what he was doing when he pleaded guilty. He made informed and tactical decision to plead guilty. He only sought to revisit this decision when his wife got angry at him because of it. Pleas were unequivocal and voluntary and were valid. R. v. Trac (Dec. 22, 2009, Ont. S.C.J., Brown J., File No. 04- 6654) 86 W.C.B. (2d) 97 (9 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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