The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50555
Law Times • February 9/16, 2009 Accused acquitted. Court had a reasonable doubt that the accused assaulted the complainant. Her evidence was imprecise regarding things that one would expect her to know with more certainty. She exaggerated at times. Court did not particularly believe everything that the accused said. However, he gave a plausible explanation for what happened and the unsure- ness of the complainant's testimo- ny raised concerns. R. v. Alasti-Faridani (Nov. 27, 2008, Ont. C.J., Bovard J., File No. 12002004) Order No. 008/339/123 (6 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Detention minor and almost simultaneous with arrest Appeal by the accused from her conviction for driving with a blood alcohol level above the le- gal limit. Accused claimed that the police improperly detained her before they had reasonable and probable grounds to do so and violated her rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Any evi- dence obtained after her deten- tion should have been excluded and the accused should have been acquitted. Accused stopped to buy gasoline. Owner of the gas station believed she was in- toxicated because of her alcoholic odour, her slurred speech and the fact that she was very talk- ative and flirtatious. He called the police when she left and they followed her. Accused exhibited signs of impairment and one of the officers grabbed her elbow as he thought the accused tried to evade him and then arrested her. Appeal dismissed. Trial judge did not err in the facts he took from the evidence. Detention was not arbitrary. Police would have been derelict in their duty if they al- lowed the accused to walk away. Detention was minor and was almost simultaneous with the arrest of the accused. R. v. Maley (Nov. 20, 2008, Ont. S.C.J., McCartney J., File No. CR-08-041-AP) Order No. 008/351/023 (6 pp.). FREEDOM OF THE PRESS Deleterious effects of ban outweighed salutary effects Accused young person was charged with offences arising from Boxing Day shootout be- tween two groups of young men in downtown Toronto. Event was extensively publicized in media. Trials of other persons were to follow that of accused. Crown sought publication ban on trial of accused. Application dismissed. Concern over trial publicity was well founded. Most prospective jurors would have some knowl- edge of events. Publication ban was not necessary to protect right to fair trial of other accused. Al- ternative means including show cause procedure and proper in- struction of jurors existed to ensure trial fairness. Deleterious effects of ban outweighed salu- tary effects. Publication ban was contrary to public's right to know and to evaluate administration of justice through news media's un- encumbered exercise of Charter freedom of press. R. v. S-R. (J.) (Sep. 2, 2008, Ont. S.C.J., Nordheimer J.) Order No. 008/302/024 (27 pp.). TRIAL WITHIN REASONABLE TIME No error in s. 11(b) Charter analysis by Summary Conviction Appeal Court Accused applied for leave to ap- peal the decision of the Sum- mary Conviction Appeal Court to set aside a stay entered at trial on the basis of breach of s. 11(b) Charter of Rights and Freedoms and to remit the matter to trial court for sentencing. Leave to appeal denied. Accused could not show that any prejudice was caused to him by the procedure followed by the Summary Con- viction Appeal Court judge in rehearing the s. 11(b) applica- tion on the merits. Court saw no error in the s. 11(b) analy- sis performed by the Summary Conviction Appeal Court judge. It was abundantly clear that de- lay in the process was an integral part of defence tactics through- out the case. R. v. Ferguson (Oct. 28, 2008, Ont. C.A., Doherty, Feldman and MacFarland JJ.A., File No. C44124) Appeal from 66 W.C.B. (2d) 583 dismissed. Order No. 008/325/023 (3 pp.). Constitutional Law VALIDITY OF LEGISLATION Section 67(6) of Youth Criminal Justice Act (Can.) was contrary to s. 7 of Charter to extent that it provided lesser procedural benefit Accused young person was charged with second degree mur- der, several counts of attempted murder and various weapons offences. Accused elected trial by judge. Crown required that trial proceed as jury trial, pursu- ant to s. 67(6) of Youth Crimi- nal Justice Act. Accused applied for order declaring s. 67(6) un- constitutional for violating his rights under Charter. Application granted. Accused was entitled to "enhanced procedural protec- tion" under Act. Enhanced pro- tection was s. 7 Charter princi- ple of fundamental justice. Act's definition of "Attorney General" permitted trial-election override to be made by Crown counsel, unlike s. 568 of Criminal Code, which was parallel provision in case of adults and which re- quired decision to be made by Attorney General or Deputy At- torney General. Provision in Act provided lesser procedural ben- efit and was contrary to s. 7 of Charter to that extent. R. v. S-R. (J.) (Sep. 15, 2008, Ont. S.C.J., Nordheimer J.) Order No. 008/302/022 (13 pp.). Defences SELF-DEFENCE Trial judge erred by failing to properly instruct jury on defence of accident, but properly instructed jury on self-defence Accused fought with wife and pinned her down on floor. Wife died while pinned down. Ac- cused and wife had deteriorated relationship and were planning divorce. Wife was having affair and accused thought she was try- ing to poison him. Accused was charged with murder. Accused argued that actions were in self- defence and that he was attempt- ing to make her divulge antidote to poison. Trial judge left s. 37 of Criminal Code to jury but refused to leave either s. 34(1) or (2) with CASELAW jury. Jury found accused guilty of murder. Appeal allowed. Trial judge erred by failing to properly instruct jury on defence of acci- dent, but properly instructed jury on defence of self-defence. Sec- tion 37 of Code provided broad justification for self-defence. Trial judge's instruction on s. 37 put accused's claim at least as well as it could have been put under s. 34(1). Accused was not preju- diced by failure to leave s. 34(1) with jury. No air of reality of claim under s. 34(2). No objec- tive basis for belief that accused had no way of saving himself but for his actions against wife. Trial judge did not err in not leaving s. 34 with jury. R. v. Mathisen (Nov. 5, 2008, Ont. C.A., Laskin, Gillese JJ.A. and Whalen J. (ad hoc), File No. C44720) Order No. 008/315/018 (31 pp.). Evidence HEARSAY Justice erred in characterizing officers' testimony as hearsay Appeal by the Crown from the acquittal of the accused on a charge of failing to comply with probation. Accused was previ- ously convicted of an offence under the Trespass to Property Act (Ont.) for a ticket scalping offence. Probation order required him not to commit the same of- fence. During the term of the order two police officers saw the accused selling tickets outside of sporting venues on two occasions and asking who needed tickets. Justice of the Peace acquitted the accused because the evidence of the officers as to what the accused said was hearsay. Appeal allowed. Acquittal set aside. New trial was ordered. Justice erred both in characterizing the officers' testi- mony as hearsay as to what the accused said and in ruling that the evidence had to be qualified, which meant that the Crown had to prove its voluntariness. Crown did not tender evidence of the accused's question to prove the truth of its contents. It was the fact that the accused spoke these words that had evidentiary sig- nificance. Making of this state- ment formed part of the actus reus of the offence. Justice should have admitted the statement and considered whether, in light of other evidence, the accused en- gaged in illegal ticket specula- tion and whether he breached his probation. Reference to the voluntariness rule was also mis- conceived. Justice's analysis was totally flawed and resulted in a perverse finding. R. v. McDougal (Dec. 5, 2008, Ont. C.J., Fairgrieve J., File No. 4860 05 TA023840) Order No. 008/351/030 (5 pp.). PREVIOUS RECORD OF ACCUSED Prejudicial effect of past robbery convictions would attract faulty propensity reasoning In the context of a robbery and double murder trial defence brought an application to pre- vent crown from cross-examining accused on his prior criminal record. Accused had received 11 young offender convictions in one year. Two charges of break enter and theft edited to theft, two charges of robbery edited to theft, charge of dangerous opera- tion of a motor vehicle excised www.lawtimesnews.com from the record. Majority of the convictions reflected solely on ac- cused's credibility because they were crimes of dishonesty and in- tegrity. Offence of dangerous op- eration of a motor vehicle neither attracted to a large degree pro- pensity reasoning nor reflected on accused's character but given the cumulative effect of the overall re- cord upon the jury's assessment of his honesty it was not to be placed before the jury. The prejudicial effect of past robbery convictions would attract faulty propensity reasoning on the part of the jury that outweighed their probative value and were therefore reduced to recognize the lesser included offences of theft to counteract the faulty reasoning but allow the jury to consider accused's credibility. Offence of theft was not at all sim- ilar to the grave allegations in the case. Leaving five counts of theft would not create a compounding effect such that it would lead to faulty propensity reasoning while the reduction in the five counts of theft would leave an imbalanced picture for the jury. R. v. C. (R.) (Dec. 1, 2008, Ont. S.C.J., Archibald J.) Order No. 008/344/090 (5 pp.). Jury EMPANELLING Accused not permitted to proceed with sequential replacement of jurors as provided for under s. 640(2) of Criminal Code Application by accused to derogate from s. 640(2.2) of the Criminal Code and proceed with the se- quential replacement of jurors as provided for under s. 640(2) of the Code. Application dismissed. Simple statutory interpretation deemed that once exclusion order PAGE 15 granted pursuant to s. 640(2.1), (2.2) required that challenges be tried by two permanent jurors. The process of sequential replacement of triers was subject to modifica- tion by Parliament so long as fair process was maintained. Previous procedure for trying challenges did not achieve a "substantive gloss" which displaced the pre- sumption of retrospectively of procedural amendments. R. v. Morgan (Sep. 30, 2008, Ont. S.C.J., McIsaac J., File No. 238/08) Order No. 008/275/039 (3 pp.). Prosecutor IMPROPER CONDUCT Crown could not resile from clear, unequivocal position on significant factual issue Change of position. Accused charged with offences arising from shoot-out. At pretrial, de- fence agreed to forego bringing abuse of process application in light of Crown's confirmation that it would take particular position at trial respecting possession of handgun. At commencement of trial, Crown resiled from position. Accused applied for relief under s. 24(1) of Charter. Application allowed. Absent compelling ex- planation, Crown could not resile from clear, unequivocal position on factual issue of significant im- portance to defence, taken with knowledge that defence would rely upon it. Permitting Crown to change position would infringe accused's right to fair trial. Crown bound to stated position unless witness gave credible evidence to contrary which could not reason- ably have been anticipated. R. v. S-R. (J.) (Oct. 27, 2008, Ont. S.C.J., Nordheimer J.) Order No. 008/323/233 (18 pp.). LT Obtain Copies of Judgments from CaseLaw on Call Rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book Please send via: [ ] Mail [ ] Fax [ ] Courier Case Name Case Order Number (9 digits) No. of pages Via FAX Cost per page $2.50* Minimum charge $10* Via Courier Cost per page $0.60* Minimum charge $10* Plus courier charges Attn.:_______________________________Firm: _______________________ Address: _______________________________________________________ City/Prov.: ________________________________Postal Code: _____________ Canada Law Book Account # _________________________________________ VISA/MasterCard/AMEX # ___________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: _______________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.1745 *Add 13% PST & GST on all orders