Law Times

Law Times • June 1, 2015 Page 15 www.lawtimesnews.com dismissed. Plain reading of s. 684(1) indicated that it only cre- ates jurisdiction for judges sit- ting as Ontario Court of Appeal justices to have such authority to entertain s. 684(1) type ap- plications. Court was not sitting in that capacity. Accused's ap- peal was neither complex and did not involve serious charges within context of Rowbotham application. Although there had been delays in appeal to date they were largely product of ac- cused's own conduct and not inherent complexity. Accused's arguments concerning denial of Legal Aid at first instance did not relate at all to merits of his appeal, complexity of matters raised in appeal, nor seriousness of charges faced by accused. Ac- cused's appeal involved straight- forward matter and accused was not facing sufficiently serious consequences to require Char- ter remedy of requiring state to provide funding for counsel. Accused could proceed to have fair appeal without assistance of counsel paid for by state. R. v. Schell (Mar. 26, 2015, Ont. S.C.J., F. Bruce Fitzpatrick J., File No. Thunder Bay CR-13- 0085-AP) 120 W.C.B. (2d) 311. SENTENCE APPEAL Sentence for manslaughter varied to increase pre-trial custody credit Accused appealed his sentence of 8 years' incarceration, less credit for time served on 1:1 ba- sis imposed upon conviction for manslaughter. Accused attend- ed at hotel room of prostitute. Prostitute identified accused as person possibly responsible for robbing other prostitutes at gunpoint and called her pimp. Pimp attended at scene and fight ensued between accused and pimp, which ended with accused fatally shooting pimp in chest. Leave to appeal grant- ed; sentence varied to increase amount of pre-trial custody credit to total of 39 months. Pre-trial custody ground was conceded by Crown . Sentenc- ing judge did not have benefit of Supreme Court of Canada's decision in R. v. Summers. Sen- tencing judge concluded that pimp brought gun to hotel as part of plan to ambush accused and explicitly rejected Crown's much higher position on sen- tence because he found that ag- gravating features that Crown urged court to find, namely that accused attended at ho- tel with loaded gun to commit robbery, were absent. In fash- ioning appropriate sentence, sentencing judge took into ac- count fact that accused did not bring gun to hotel room. Sen- tence was midway that suggest- ed by parties. Sentence also ac- corded with sentences imposed in comparable manslaughter cases. In circumstances of this case, including aggravating fac- tors such as accused's criminal record, fact that he was on pro- bation at time of shooting, and fact that shooting took place in public place, court was of view that sentence imposed was fit subject to adjustment in credit for time spent in pre-sentence custody. R. v. Derby (Mar. 13, 2015, Ont. C.A., David Watt J.A., P. Lau- wers J.A., and C.W. Hourigan J.A., File No. CA C59766) Deci- sion at 109 W.C.B. (2d) 601 was varied. 120 W.C.B. (2d) 317. Constitutional Law COURTS Judge had no jurisdic- tion to declare that Koran was supreme law Application by accused CE for order that applicable law for trial should be Koran and not Criminal Code. Accused RJ and CE were charged with various terrorism-related of- fences. RJ retained counsel and CE was self-represented. CE re- fused to be represented because he would not be represented by any counsel who accepted Criminal Code and not Koran as governing law for trial. He was unable to find counsel who would agree with this position. Application dismissed. Judge had no jurisdiction to declare that Koran was supreme law for purposes of Canadian criminal trial. He was bound to uphold Constitution as supreme law of Canada and to uphold rule of law as part of that Constitution. R. v. Jaser (Jun. 26, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-10000655-0000) 120 W.C.B. (2d) 339. Jury EMPANELLING Orders made appointing addi- tional jurors, permitting chal- lenges for cause, excluding jurors and requiring static triers Two accused faced number of terrorism-related offences, in- cluding conspiracy to commit murder for benefit of terror- ist group. Motion was brought jointly, by Crown and by coun- sel for one of accused, seeking rulings on following three is- sues relating to jury selection: whether to appoint "additional jurors"; whether to permit chal- lenge for cause in relation to pre-trial publicity and racial/ religious prejudices and, if so, what questions to permit; whether method for determin- ing any challenges for cause would be "rotating triers" or "static triers". Parties agreed that challenges for cause were necessary and appropriate, in relation to pre-trial publicity and racial/religious prejudices. Only dispute was as to number and form of questions. Crown sought appointment of two "additional jurors", in order to minimize risk of mistrial. Or- der made appointing two "ad- ditional jurors"; order made permitting challenge for cause in relation to pre-trial publicity and racial/religious prejudices, in form of six questions and two preambles; Order made exclud- ing all jurors both sworn and unsworn, and requiring "static triers" pursuant to s. 640(2.2) of Criminal Code. Trial was expected to be fairly lengthy and involved contentious is- sues relating to terrorism of- fences and Islamic extremism. It could be anticipated that jury selection would be difficult and there was risk of losing jurors during course of trial. There were sensitive witnesses who would testify in this case and whose testimony raised secu- rity issues. Each accused would have two additional peremp- tory challenges, in accordance with s. 634(2.01), for total of 14 peremptory challenges each. Crown would have 28 peremp- tory challenges, pursuant to s. 634(4). Court found there were six questions that were appro- priate. First three questions address pre-trial publicity and last three questions addressed racial/religious prejudices. Both sets of questions include preambles. Six questions that court settled on were amal- gam of what parties proposed. Court satisfied, in present case, that juror impartiality was fun- damental reason for need to ex- clude prospective jurors. This was case dealing with volatile issues of great public concern, where unknown number of prospective jurors were likely to hold strong views that could taint other jurors, whether sworn or unsworn. Limited order protecting only prospec- tive jurors from tainting, but ignoring far greater danger of tainting sworn jurors, would not fulfil judicial function of administering justice in effec- tive manner. R. v. Jaser (Dec. 15, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-10000655-0000) 120 W.C.B. (2d) 360. Mens Rea GENERAL Breach of probation was full mens rea offence Accused appealed conviction for breach of probation. Ac- cused was placed on probation and was required to report to his probation officer. Accused continued to report until he was incarcerated on unrelated charges. Accused did not re- port to his probation when he was released from custody. Probation officer testified that he faxed request to probation liaison officer at jail asking him to instruct accused to report within two days of release, and that he received fax in return that probation liaison officer had so instructed accused. Pro- bation liaison officer did not testify. Accused was charged with failing to comply with his probation order by failing to report to his probation of- ficer as required. Trial judge rejected accused's argument that there was no evidence that he was aware that he had to re- port. Appeal allowed, new trial ordered. It appeared that trial judge convicted accused of fail- ing to comply by failing to noti- fy of change of address. Where Crown particularized indict- ment in particular way it had to prove offence as particular- ized. Admissible evidence did not support conviction on all of elements of offence. Breach of probation was full mens rea of- fence. If accused did not know that he was required to report, he could not have had intention to fail to comply. Probation li- aison officer did not testify, and fax that he had instructed accused that he was required to report was therefore hearsay. There was no admissible evi- dence that accused knew that he was required to report when he was released from custody. Trial judge found that com- mon law permitted admission of exemplification of probation order without notice, and was correct in doing so. R. v. John (Mar. 31, 2015, Ont. S.C.J., R.F. Goldstein J., File No. 102/14) 120 W.C.B. (2d) 395. Preliminary Inquiry COMMITTAL FOR TRIAL Motion to quash committal for trial on charge of attempting to obstruct justice dismissed Accused was co-accused with several others in indictment that charged her co-accused with drug conspiracy and charged her with attempting to obstruct justice by lying to pa- role officer about residence of her brother, one of co-accused. Accused moved for certiorari to quash her committal for trial by and mandamus to compel justice to re-open preliminary inquiry with directions: to per- mit accused to cross-examine affiant of Information to Ob- tain authorization to intercept private communications; and to allow her to move under s. 540 (9) of Criminal Code for order that two witnesses, parole officer and officer in charge of case, be produced for cross- examination, and to decide that motion. Between appear- ances at preliminary inquiry, accused's lawyer (not present counsel) was suspended from practice, and accused was un- represented for remainder. Ap- plication dismissed. Judge did not give blanket denial to cross- examination of affiant. Judge rejected application because accused did not meet criteria in Garofoli. Judge therefore acted within his jurisdiction and his decision was not subject to review. It was submitted that judge exceeded his jurisdiction by failing to offer unrepresent- ed accused help she needed in conducting inquiry but record did not justify such finding. By point in time judge addressed accused directly, judge was aware that accused had person- ally taken steps to challenge his decision on cross-examination of affiant by way of mandamus. Judge had no reason to think that accused had any other concerns or that she was inca- pable of expressing her views or standing up for her rights. Judge mentioned to accused specifically that she could call evidence and make submis- sions and she declined to do so. In circumstances no more was required. If accused wanted to hear from parole officer and officer in charge, that was the time to say so. There was no denial of natural justice and no excess of jurisdiction. R. v. Finlayson (Mar. 26, 2015, Ont. S.C.J., J.A. Ramsay J., File No. 4636/14) 120 W.C.B. (2d) 373. Prisons INMATES' RIGHTS Even if inmate able to make out allegations, certio- rari not available because she had avenue of appeal Inmate was in custody awaiting trial on charges. Inmate applied for writ of habeas corpus with certiorari in aid, requesting order returning her to general population from segregation, order quashing disciplinary sanctions imposed on her, and order requiring institution to permit her to examine disclo- sure in connection with crimi- nal charges outstanding against her. Inmate claimed she was in segregation because she re- fused to sign blank accident re- port. It was alleged that inmate was involved in three incidents for which she received 29 days in segregation with loss of all privileges, and additional 10 days in segregation. Inmate ar- gued that she was not accorded due process as required by reg- ulations. Inmate argued that she was not given appropriate facilities to review disclosure furnished to her or her counsel in connection with her crimi- nal charges. Inmate argued that she had not been allowed pri- vate room or sufficient time to review disclosure, and had not been provided with appropriate paper and writing implements. By time matter was argued, in- mate had been released from segregation and was in general population, and habeas corpus application was moot. Applica- tion dismissed. Even if inmate were able to make out her alle- gations, extraordinary remedy of certiorari should not have been granted because she had avenue of appeal. There was no specific time limit for appeal, and it was still open to inmate to avail herself of that avenue. Court that was in best position to make assessment of whether inmate had been deprived of opportunity to review her dis- closure to extent that her right to fair trial had been infringed was trial court seized of her criminal cases. Trial court would have been in much bet- ter position to assess whether inmate's fair trial rights had been infringed. If Canadian Charter of Rights and Free- doms had been violated, trial court would have been in posi- tion to grant appropriate reme- dy pursuant to s. 24 of Charter, and to determine what remedy should have been. R. v. Bond (Mar. 19, 2015, Ont. S.C.J., Gray J., File No. 17/15) 120 W.C.B. (2d) 375. LT CASELAW

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