Law Times

Law timeS • September 7, 2010 sisted of information concern- ing accused's alibi that was not disclosed at time of trial. Police had investigated accused's alibi and confi rmed aspects of it. Of- fi cer gave misleading evidence concerning alibi at preliminary inquiry. Accused only discov- ered this evidence in 1998. Crown sought to withdraw charge at new trial. Accused applied to prohibit Crown from withdrawing charge and to require that he be arraigned so that he could be found not guilty. Accused argued that non-disclosure of alibi evidence was continuing breach of fair trial rights that became breach of Canadian Charter of Rights and Freedoms after Charter enacted. Accused's applica- tion dismissed. Charter could not apply retrospectively to non-disclosure at time of trial. Broader disclosure obligation following enactment of Charter did not oblige Crown to review all evidence in all fi nished cases and apply new laws to them. Charter cannot be used to re- dress events that took place in 1972 prior to its enactment. R. v. Phillion (Mar. 18, 2010, Ont. C.J., Ratushny J.) 88 W.C.B. (2d) 621 (36 pp.). Courts ABUSE OF PROCESS Police provided accused with opportunity to commit crime in circumstances where crime could have been prevented Application by accused, who was charged with impaired driving and driving over legal limit, for stay of proceedings based on abuse of process that was occasioned by actions of two police offi cers. Accused and her boyfriend attended bar and then went to house party. Boyfriend was designated driv- er. Accused became upset with her boyfriend. She left party with him and he was driver. At one point she tried to jump out of vehicle. Boyfriend called police because he could longer drive vehicle with her inside of it. He alerted them to her men- tal health issues. Police arrived and had boyfriend sit in their vehicle while they conducted roadside screening test on him, which he passed. Accused re- mained in passenger seat while one offi cer spoke to her. Po- lice then left accused alone in truck. Boyfriend suggested that ignition of his vehicle should be turned off as accused might drive away. Offi cers said that she would not do such a stupid thing but she did. Police chased and apprehended her. Applica- tion allowed. Case contained some features of defence of en- trapment. It was not made out in this case but some of its ele- ments were established. Police provided accused with oppor- tunity to commit crime in cir- cumstances where crime could have been prevented. Th ey did not have any reasonable suspi- cion that accused intended to drive but she was left in posi- tion where there was irresistible temptation to operate vehicle. Average person in same state of mind as accused and who reck- lessly disregarded her own safe- ty would probably drive vehi- cle. Police were not justifi ed in providing accused with oppor- tunity to commit the off ence. Th ey should have appreciated accused's vulnerability and her potential mental health issues. Stay of proceedings was very rare. However, it was granted because this was one of cases where high threshold was met and it was clearest of cases. R. v. St. Georges (June 10, 2010, Ont. C.J., Keast J., File No. 0803-07) 88 W.C.B. (2d) 640 (14 pp.). Deputy attorney general was not required to give evidence as to reason for decision involving core Crown discretion 10 accused were charged with terrorism off ences and seven brought abuse of process appli- cation alleging s. 7 Charter vio- lation. Th ree applicants applied for subpoena of Deputy Attor- ney General of Canada and se- nior Crown counsel prosecut- ing their case. Abuse of process claimed based upon termina- tion of preliminary inquiry and preferral of direct indictment. Applicants claimed preferral was in violation of agreement governing scope of preliminary inquiry. Deputy Attorney Gen- eral had signed consent to pre- ferral. Earlier court ruling held that "recommendation pack- age" prepared by crown coun- sel for Deputy was not clearly irrelevant and contents had to be disclosed unless they were subject to solicitor-client privi- lege. Crown counsel assumed position after previous crown retired and was not involved in preliminary inquiry nego- tiation. Application dismissed. Court would not undertake a judicial review of Crown discre- tion. Deputy Attorney General could not be expected to give evidence on whether preferral had negative impact on appli- cants right to fair trial which was basis for abuse of process argument. Deputy not required to give evidence as to reason for decision as that involved core Crown discretion. Deputy also could give no evidence on undertaking regarding prelimi- nary inquiry. Crown counsel also was in no position to give evidence having not been in- volved in any negotiations and court was not going tolerate fi shing expedition. R. v. Ahmad (July 8, 2008, Ont. S.C.J., Dawson J., File No. CRIMJ(F)2025/07) 88 W.C.B. (2d) 641 (21 pp.). Evidence PRIVILEGE To extent that s. 38 of Canada Evidence Act took away presiding Superior Court judge's jurisdiction at trial, it was ultra vires Plaintiff subjected to torture and other human rights' vio- lations while in custody of foreign governments. Plaintiff and his family commencing action against federal govern- ment seeking damages. Crown disclosing approximately 500 documents to plaintiff 's lawyers CASELAW of which 290 were in redacted form. Crown inadvertently dis- closing one document without redactions. Crown giving no- tice pursuant to s. 38 of Canada Evidence Act and demanding return of document. Plaintiff 's lawyers believing Crown sys- tematically overclaiming privi- lege provided by s. 38. Plaintiff challenging constitutionality of s. 38. During interlocutory stages of civil proceeding Su- perior Court did not have ju- risdiction to rule on validity of claim for Crown privilege on grounds of national security, national defence and interna- tional relations. Jurisdiction rested exclusively with Federal Court. However, in civil pro- ceedings where party's substan- tive rights under Charter were asserted, Superior Court judge at trial had jurisdiction to rule on federal government's claim of Crown privilege on grounds of national security, national defence and international rela- tions. In context of constitu- tional enforcement claim, to extent that s. 38 took away pre- siding Superior Court judge's jurisdiction at trial, it was ultra vires. Abou-Elmaati v. Canada (At- torney General) (Apr. 8, 2010, Ont. S.C.J., Perell Sentence ROBBERY Trial judge wrongly treated range of sentence for home invasions as imposing de facto minimum sentence Accused charged with various off ences arising from home in- vasion robbery. Accused and two others pushed into apart- ment. Accused J. assaulted and robbed one resident while ac- cused M. vandalized a bedroom and stole objects and another perpetrator held knife to the throat of resident. Necklace and watch stolen by J. valued at $150 to $250. Both accused were 18-year old Status Indians with signifi cant youth records. Sentencing circles recommend- ed non-custodial sentences. Following off ence, J. took steps to improve education, stopped drinking and taking drugs, and entered relationship and fa- thered two children. Both ac- cused given total four year sen- tence. Appeals against sentence allowed. Trial judge erred by in- suffi ciently weighing accused's aboriginal heritage and views of community. Trial judge wrong- ly treated range of sentence for home invasions as imposing de facto minimum sentence. Sen- tence of two years less a day fi t for both accused, J.'s sentence to be served in the community. R. v. Jacko (June 17, 2010, Ont. C.A., Winkler C.J.O., Goud- ge and Watt JJ.A., File No. C50301; M37540; C50571) 88 W.C.B. (2d) 686 (38 pp.). TERRORISM Accused sentenced for offences in relation to conspiracy to bomb two buildings and military base as protest against Canadian actions in Afghanistan www.lawtimesnews.com J., File No. 06-CV-308130 PD3) 88 W.C.B. (2d) 643 (22 pp.). Accused was sentenced to life in prison without parole for 10 years for intending to cause ex- plosion that would likely cause serious bodily harm or death in association with terrorist group. Accused was also sentenced to 21 months in addition to his three years, seven months and 18 days of pre-sentence custo- dy, being credit of seven years and three months, for enhanc- ing or facilitating ability of ter- rorist group to carry out terror- ist activity. Accused, aged 20, pleaded guilty to both charges. Accused conspired with and re- cruited 17 others to bomb two buildings and military base as protest against Canadian actions in Afghanistan. Psychological evidence indicated accused was devoted to theoretical Muslim ideals and he had no antisocial psychopathic personality traits. Expert concluded that accused had capacity to change and had taken steps in that direction. Court relied on accused's state- ments from prisoner's box as to his current frame of thought in which he did not advance any extremist ideas. Court gave limited weight to psychologi- cal report as expert had never been involved with person who committed criminal off ences for court purposes. Accused was fi rst off ender and showed remorse but emphasis placed on general deterrence and need to denounce this crime. R. v. Amara (Jan. 18, 2010, Ont. S.C.J., Durno J., File No. 2025/07) 88 W.C.B. (2d) 670 (49 pp.). Trial COMMENT ON FAILURE OF ACCUSED TO TESTIFY Trial judge was permitted to advise jury of accused's right not to testify Accused charged with fraud and conspiracy to commit fraud. Co-accused testifi ed that accused duped him into partic- ipating in fraud. Accused did not testify. In closing address, co-accused's counsel relied on fact that his client testifi ed while accused did not. Trial judge believed he could not in- struct jury not to use accused's silence against him due to s. 4(6) of Criminal Code. Accused convicted. Appeal dismissed. Section 4(6) did not prohibit an instruction to the jury that accused's failure to testify could not be used against that ac- cused. Trial judge permitted to advise jury of accused's right not to testify. Section 4(6) ap- plies only to potentially preju- dicial comments. Obiter dicta to contrary in two Supreme Court decisions is inconsis- tent with other strong Supreme Court authority and should not be followed. Despite error, trial judge's instructions as a whole suffi cient to ensure jury would not treat accused's failure to testify as evidence against him. R. v. Prokofi ew (June 10, 2010, Ont. C.A., Doherty, Feldman, MacPherson, Blair and ansz JJ.A., File No. C42992) 88 W.C.B. (2d) 702 (26 pp.). Juri- LT When More is Too Much PAGE 15 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. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. 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