Law Times

Law Times • May 25, 2015 Page 15 www.lawtimesnews.com in investigative detention of ac- cused in relation to robbery. To condone unlawful search and improper investigative deten- tion would bring administra- tion of justice into disrepute. Seriousness of offence and reli- ability of evidence, while impor- tant, did not outweigh factors that pointed to exclusion. R. v. Jinje (Mar. 27, 2015, Ont. S.C.J., Nordheimer J., File No. Toronto 14-40000338-0000) 120 W.C.B. (2d) 226. SEARCH AND SEIZURE Exigent circumstances justi- fied warrantless seizure Application by Crown to re- tain seized hard drive of laptop computer, pursuant to s. 490(3) of Criminal Code. Accused sought return of hard drive on basis that seizure was warrant- less and it breached s. 8 of Ca- nadian Charter of Rights and Freedoms. Police were informed that child pornography images were uploaded into internet ac- count and seven people, who were all from accused's family, lived at address associated with account. Search warrant was ob- tained for that home, to permit seizure of all electronic devices found there. Prior to execut- ing warrant, police saw accused leave carrying backpack and they arrested him and seized his backpack, which contained laptop, thumb drive and his iPhone. Addendum to warrant was obtained to permit search of devices seized from accused. Several computers were seized when warrant was executed but they were returned, as were ac- cused's thumb drive and iPhone, since they contained no child pornography. Accused refused to provide password for hard drive and police retained it as they attempted to crack 26-digit alpha-numeric password, which was very secure. Password was not yet cracked and police were unable to conclude their inves- tigation. Application allowed. Warrant was insufficient to al- low accused to be searched and seizure was warrantless. Ac- cused's arrest was not lawful. However, search was not ren- dered unlawful merely because it was search incidental to un- lawful arrest. Police had reason- able and probable grounds to believe that laptop might con- tain evidence based on grounds used to obtain original warrant. They knew that laptop had been in home. Police were concerned that if they delayed seizure of laptop while they obtained ad- ditional warrant, there was risk that other inhabitants of home would alert accused and he would delete evidence from his hard drive. Once laptop was seized police did not go further until they obtained addendum. There were exigent circum- stances that justified warrant- less seizure and s. 8 was not violated. Even if s. 8 was violated hard drive would not have been returned. Section 490(3) was satisfied for investigation was complex and retention of hard drive was warranted. Extension of 12 months was granted. R. v. Seguin (Mar. 24, 2015, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 15-13189) 120 W.C.B. (2d) 234. Courts JURISDICTION Service of summons on accused who lived in United States was effective Accused who lived in United States sought order prohibit- ing Provincial Offences Court from continuing proceeding against him under Environ- mental Protection Act (Ont.) on grounds service of summons on him by registered mail was not sufficient. Section autho- rizing service on non-residents of province provided that sum- mons shall be deemed to have been duly served seven days af- ter it has been sent by registered mail to person's last known or usual place of abode. Applica- tion dismissed. Court reasoned by necessary implication, im- pugned section authorized ser- vice anywhere outside of On- tario, including United States of America. Court indicated that interpretation accorded with context, object and scheme of statute in which section was found and clearly ref lected in- tention of legislature. By add- ing words "including outside Canada", legislature made even clearer object and scheme of legislation as section was in- tended to provide for service of summons on individuals and corporations charged with pro- vincial offence in most efficient, inexpensive manner that would, at same time, ensure as much as possible that summons came to attention of accused. R. v. Tenny (Mar. 26, 2015, Ont. S.C.J., Ellies J., File No. CV-14- 6022) 120 W.C.B. (2d) 239. Defences ENTRAPMENT Application for stay on grounds of entrapment dismissed Accused applied for stay on grounds of entrapment of pro- ceeds and possession for pur- pose of trafficking charges claiming police provided op- portunity for him to commit crime without acting on rea- sonable suspicion or bona fide enquiry. Accused testified to his innocence at trial, asked officer what he needed in drug buy- ing scenario and also carried drugs to pre-arranged meeting place after receiving phone call. Application dismissed. Court questioned whether defence could be raised when accused testified as to his innocence and concluded that defence should only be raised after conviction noting finding of entrapment after conviction did not invali- date arrest entitling accused to acquittal. Court also concluded that actions of accused after phone call in carrying drugs to pre-arranged meeting place could not be said to be result of officer providing accused with opportunity to commit crimes of possession of drugs and pro- ceeds. Accused committed of- fences of his own free will as he chose to carry back pack with assortment of drugs and large amount of money. R. v. Ahmad (Mar. 13, 2015, Ont. S.C.J., B.A. Allen J., File No. 13-90000334) 120 W.C.B. (2d) 240. Obscenity CHILD PORNOGRAPHY Conviction for possession of child pornography upheld on appeal Accused appealed his convic- tion of possession of child por- nography on grounds trial judge did not adequately address whether he had knowledge of folder entitled movies that was deleted from his computer. Ac- cused was acquitted of charge of accessing child pornography with judge basing conviction primarily on his assessment of evidence regarding cached files resulting from internet search- es and accused being only one with opportunity to delete files before police arrived for search. Accused owned computer but there were multiple users how- ever judge placed great emphasis that files were deleted after ac- cused learned that police would visit his home following day to talk with him. Appeal dis- missed. There was no merit to appeal as judge provided proper reasons noting that accused had only opportunity to delete files and would have had to knowl- edge of contents of file in order to know which file to delete. R. v. Midwinter (Mar. 9, 2015, Ont. C.A., E.E. Gillese J.A., Da- vid Watt J.A., and David Brown J.A., File No. CA C57805) 120 W.C.B. (2d) 272. Professions BARRISTERS AND SOLICITORS Crown's application to remove accused's lawyers dismissed where concerns about conflict speculative Application by Crown to re- move SM and AS as lawyers of record for accused. Accused was charged with first degree murder in fatal shooting of JB. After SM was retained by ac- cused he accepted SB as client who faced weapons charges. SB had same surname as JB but they were not related. It was ex- pected that charges against SB were going to be imminently withdrawn. Crown was con- cerned about conf lict because it intended to call SB as wit- ness at murder trial. Both SB and accused signed waivers of any conf lict that might arise. SB expressly waived his solici- tor and client confidentiality regarding any information that he gave to SM and he consented to SM using those confidences to cross-examine him. Waivers were signed after SB and accused received independent legal ad- vice from different lawyers. Ap- plication dismissed. At this stage of proceedings there was no ba- sis for concluding that there was conf lict of interest. Crown's con- cerns were speculative. R. v. St. Clair Wright (Mar. 18, 2015, Ont. S.C.J., Nordheimer J., File No. Toronto M145/14) 120 W.C.B. (2d) 276. Sentence ASSAULT Accused sentenced to eight months' imprisonment for assaults against former girlfriend Sentencing of accused after he was found guilty of assault and assault causing bodily harm. Victim of both offences was ac- cused's former girlfriend. As- sault offence was committed in late 2011 and assault causing bodily harm occurred in either March or September of 2012. At time offences complainant was 21 years old and accused was 28. Their relationship was volatile and they argued loudly and fre- quently. Two of these arguments concluded with acts of violence by accused and resulted in hospi- tal visits by complainant. Assault occurred when accused choked complainant and assault causing bodily harm resulted when ac- cused punched her in head and caused her to black out and fall to f loor. Accused was currently 32 years old. He was function- ing drug addict for he was able to maintain his employment while working long hours at two jobs. Accused had criminal record. He was given credit of four and one-half months for time served and he was also awarded two months of credit for 25 months he was governed by house arrest condition of his judicial interim release order. Accused sought to make most of his time in custody. He was sentenced to reformatory sentence of eight months' impris- onment and after credits were deducted he had to serve one and one-half months of impris- onment. Accused would then serve three years of probation, which would include 120 hours of community service. He was also subject to weapons prohibi- tion, DNA order and he had to pay $100 victim surcharge. Sen- tence properly ref lected grav- ity of two offences and would adequately deter and denounce such crimes. It would also ap- propriately recognize that ac- cused never before received sentence of imprisonment since his criminal record consisted of unrelated and non-violent of- fences. Accused was remorseful and he was making important strides towards his rehabilita- tion. R. v. Outram (Mar. 25, 2015, Ont. S.C.J., Kenneth L. Camp- bell J., File No. 13-5/751) 120 W.C.B. (2d) 283. Sexual Offences SEXUAL ASSAULT Accused's testimony that he was not with complainant during month of alleged offence was accepted Accused charged with sexual assault. Complainant was four- teen years old and accused, who was treated like uncle by com- plainant, was in his mid-thirties. Complainant testified that one night when accused was sleep- ing at their house he appeared in her room, then began touch- ing her hair and thigh. Com- plainant testified that accused pinned her arms and forced sexual intercourse upon her. Accused testified that he was never at complainant's house during month in question, and provided employment records as evidence. Accused testified that he never sexually assaulted complainant, did not touch her inappropriately, and was never alone with complainant in her bedroom. Accused found not guilty. Court believed accused's testimony. Accused provided evidence that convinced court that he was not in presence of complainant in month in ques- tion, and court accepted his explanations that he was camp- ing and then ill when he was not otherwise working. Ac- cused was not shaken in cross- examination. Certain aspects of complainant's testimony caused court concern, including claim that she did not remember ac- cused's counsel, despite having being cross-examined by him at preliminary inquiry. Com- plainant admitted that she had difficulty remembering things recently, yet she was able to very carefully recount event that oc- curred eight years ago. Context of when complainant revealed alleged event led court to dis- count her evidence, as she was clearly upset with her mother and did not accept accused as being significant person in her mother's life. Court had reason- able doubt based on totality of evidence as to whether or not accused committed sexual as- sault. R. v. Benson (Jan. 26, 2015, Ont. S.C.J., F.B. Fitzpatrick J., File No. Thunder Bay CR-14-0029) 120 W.C.B. (2d) 297. Trial CONDUCT OF TRIAL Judge's accessing and use of internet image compromised fairness of trial Appeal by accused from his conviction for assault causing bodily harm to female com- plainant. Crown claimed that accused punched complainant in mouth without provocation. After accused testified his coun- sel called another witness. Trial judge then accessed image from Google street view and ques- tioned witness about it. Judge made adverse finding of cred- ibility against accused based on image. He downloaded image after accused testified and it was not put to accused. Appeal al- lowed. Judge's use of image com- promised fairness of trial for it was unfair that accused was never shown image and he was never asked to comment about it. New trial was ordered and ac- cused was not acquitted because there was compelling evidence upon which accused could have been convicted at trial. R. v. Ghaleenovee (Mar. 17, 2015, Ont. S.C.J., Goldstein J., File No. 62-14) 120 W.C.B. (2d) 213. LT CASELAW

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