Law Times

Law Times • November 7, 2011 ing. Vehicle was found to have been purchased by accused. Accused convicted of off ences. He was not detained. Accused chose voluntarily to speak to offi cer and gave him inaccurate and unbelievable information. When he was told to remain to discuss matter he walked away. It was therefore not necessary to consider whether detention was arbitrary. When offi cer questioned accused he did not violate ss. 7 or 8 of Charter for he was engaged in preliminary discussion with him. Search was valid for it was made inci- dental to lawful arrest for which offi cer had requisite grounds. It was also valid because accused abandoned vehicle when he tried to fl ee. Even if Charter was violated evidence was admis- sible. Accused was convicted of all off ences because evidence against him, which included his cellphone, overwhelmingly pointed to his guilt. R. v. Simoes (June 17, 2011, Ont. S.C.J., Hourigan J., File No. CR 207/10) 96 W.C.B. (2d) 145 (21 pp.). ENFORCEMENT OF RIGHTS Court not satisfied that beating described by accused ever happened Accused charged with robbery, use of imitation fi rearm and masked with intent to commit robbery. Accused applied for stay of proceedings based on breach of s. 7 Charter rights. Following interview with police accused complained of hav- ing been beaten, kicked and punched. Accused complained of injury to his ear but declined desk sergeant's off er of immedi- ate medical treatment at hospi- tal. Five days later accused was seen by physician at detention center who found small hole in accused's middle ear caused two to three weeks prior to examination. Offi cers denied all allegations of physical vio- lence, abusive language and threats. Application dismissed. Court not satisfi ed on balance of probabilities that beating described by accused ever hap- pened. Beating allegedly in- volved repeated blows directed at same parts of accused's body over protracted period of time. It was not credible to suggest that attack would leave no vis- ible injuries. Accused showed no signs on booking video of any pain or distress from beat- ing, as accused was not favoring any part of his body, was not hunched over in pain and had no diffi culty speaking or walk- ing. Although court was suspi- cious about injury to accused's ear, which was consistent with single slap to side of head, it remained no more than sus- picion. Hypothetical scenario could not justify stay of pro- ceedings. R. v. Weir (July 8, 2011, Ont. S.C.J., Code J., File No. 10- 300000167-0000) 96 W.C.B. (2d) 156 (20 pp.). SEARCH AND SEIZURE Trial judge erred in holding many omissions and misstatements material to application to obtain warrant Accused acquitted of off ences in relation to grow operation discovered on execution of war- rant. Police obtaining warrant on strength of information ob- tained from anonymous tips and further investigation of premises. Trial judge held In- formation to Obtain ("ITO") warrant carelessly drafted and contained misleading statements and that police omitted material information. Trial judge exclud- ing evidence obtained at private residence pursuant to s. 24(2). Crown appeal allowed, new trial ordered. Trial judge erred by fail- ing to consider whether ITO as amplifi ed on review suffi cient to obtain warrant. Trial judge erred in holding that many omissions and misstatements were material to application to obtain warrant. Evidence should not have been excluded in any event as accused had reduced expectation of pri- vacy in warrant and any police conduct constituting a Charter breach relatively minor. R. v. Nguyen (June 21, 2011, Ont. C.A., Weiler, Blair and Ep- stein JJ.A., File No. C52057) 96 W.C.B. (2d) 164 (23 pp.). Evidence Accused CREDIBILITY Trial judge not required to comment specifically on extent and duration of restraint appealed CASELAW IDENTITY OF ACCUSED Accused's account of lending dirty jeans to friend not credible Accused charged with robbery, use of imitation fi rearm and masked with intent to commit robbery. Masked robbers entered store and attempted to rob it but fl ed when alarm was set off . Two white objects, later identifi ed as napkins, fell out of robber's pocket as he fl ed store. Accused's DNA was found on one of nap- kins. Accused had chronic aller- gies and sinusitis and constantly blew his nose. Accused testifi ed he loaned pair of dirty jeans to friend shortly before robbery. Accused found guilty. Court re- jected accused's evidence and it did not create reasonable doubt. Accused's account of lending his dirty jeans to friend was not credible. Disposition evidence that friend was kind of person who could have committed robbery had little or no weight. Only rational non-speculative conviction for unlawful confi nement. Trial judge was satisfi ed that com- plainant was coerced by threats into attending co-accused's home and that, in complying as he did, complainant was pre- vented from moving about freely for some consequential period of time. Accused argued trial judge misapprehended material aspects of defence evidence. Accused ar- gued trial judge failed to scruti- nize defence evidence and com- plainant's evidence in balanced fashion. Appeal dismissed. Trial judge was aware of constituent elements of off ence and fi ndings of fact supported conviction. Trial judge was not required to comment specifi cally on extent and duration of restraint under which complainant was operat- ing. Once trial judge accepted complainant's evidence as to reason he accompanied accused to co-accused's home, physical restraint and duration compo- nents of off ence were made out. Trial judge was alive to frailties in complainant's evidence and was satisfi ed that complainant was telling truth. Trial judge was on solid ground in concluding that defence witnesses were se- lective in what they remembered and were sometimes unbeliev- able. Reasons of trial judge dis- closed no error in assessment of Crown witnesses as compared to defence witnesses. To extent, if any, that trial judge may have misapprehended defence evi- dence, misapprehensions were not material and would not have aff ected reasoning process that led to verdict. R. v. Shi (July 5, 2011, Ont. C.A., Moldaver, MacPher- son and Epstein JJ.A., File No. C52681) 96 W.C.B. (2d) 159 (6 pp.). inference was that accused was second robber. Napkins must have been somewhere near sur- face of jeans. Only rational and non-speculative inference was that robber had recently used napkin or that he wanted it close at hand and he had not put it away securely, such that it fell when he fl ed from store. Crown proved accused's guilt beyond reasonable doubt. R. v. Weir (July 8, 2011, Ont. S.C.J., Code J., File No. 10- 300000167-0000) 96 W.C.B. (2d) 156 (20 pp.). Search And Seizure VALIDITY OF WARRANT Three informants corroborated each other with respect to describing individual who was target of warrant Accused charged with weap- ons off ences and possession of cocaine for purpose of traffi ck- ing. Accused applied to quash telewarrant and to exclude evi- dence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Offi cer received confi dential information from four informants that accused was traffi cking in cocaine from apartment. Offi cer made no at- tempt to establish reliability of information supplied by confi - dential informants. Police seized weapons, cocaine, cellphones and cash from apartment. Ac- cused argued offi cer did not have reasonable and probable grounds to believe he had committed of- fence and that items sought would be at place searched. Ac- cused argued warrant was prod- uct of misleading statements, material non-disclosure, false information, conclusory state- ments and prejudicial inferences. Application dismissed. Th ree of informants corroborated each other with respect to describ- ing individual who was target of warrant in terms of gender, age, height, skin colour, body build and fact that drug dealing activi- ties were ongoing in apartment. Given that surveillance did not reveal anything of consequence, negative results of surveillance would not have provided issu- ing Justice of the Peace ("JP") with any useful or enlightening www.lawtimesnews.com information. No obligation on investigating offi cers to disclose information supplied to JP of surveillance. Taken as whole, information before JP was cor- roborative of all four informants. No Charter breach and no basis to exclude evidence. R. v. Moran (July 28, 2011, Ont. S.C.J., Edwards J., File No. CR- 10-163) 96 W.C.B. (2d) 167 (5 pp.). Sentence KIDNAPPING Accused was ringleader in Accused respect to unlawful confinement appealed concurrent sentences of 18 months' im- prisonment, in addition to 4 months spent in pre-sentence custody, for assault and un- lawful confi nement. Assault conviction was quashed on ap- peal. Accused argued sentence was disparate to sentence im- posed on co-accused. Appeal dismissed. Unlike accused, co- accused was fi rst off ender and was found to have been fol- lower. Accused had record for assault causing bodily harm, robbery, disguise with intent, possession of illicit drugs and failing to attend court. Accused was ringleader in respect to un- lawful confi nement. Sentences imposed by trial judge were not out of line. While conviction for assault was quashed, assault was minor one and, in circum- stances, sentence of 18 months for unlawful confi nement was fi t. Restitution order set aside given that Crown did not ask PAGE 19 for it and trial judge made no inquiry into accused's ability to pay. R. v. Shi (July 5, 2011, Ont. C.A., Moldaver, MacPher- son and Epstein JJ.A., File No. C52681) 96 W.C.B. (2d) 159 (6 pp.). Trial Accused CHARGE TO JURY Failure of counsel to object was of particular significance appealed conviction for manslaughter. Patholo- gist testifi ed that deceased was stabbed once and that, while wound superfi cially appeared to be chest wound, it was in fact neck wound. Accused argued trial judge erred by failing to in- struct jury that expert's opinion on mechanics of stab wound was unchallenged. Appeal dis- missed. Trial judge fairly re- viewed pathologist's comments regarding witness's description of stabbing. Given that defence counsel specifi cally referenced to jury fact that trajectory of wound did not correspond with witness's account of stabbing, it was highly unlikely that jury rejected pathologist's evidence. Accused raised concern for fi rst time on appeal. When assessing adequacy of trial judge's review of evidence, failure of counsel to object was of particular signifi - cance. R. v. Kokopenace (July 29, 2011, Ont. C.A., Goudge, LaForme and Rouleau JJ.A., File No. C49961) 96 W.C.B. (2d) 183 (18 pp.). When More is Too Much 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. 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