Law Times

Law times • OctOber 17, 2011 refer to evidence of criminal his- tory in his reasons for conviction. Majority of Court of Appeal set aside convictions on basis that trial judge erred in admitting evidence of the accused's bad character. Appeal allowed and convictions restored. Admis- sion of accused's criminal histo- ry was harmless error. Reasons for conviction were clear that trial judge relied solely on DNA evidence and not on propensity evidence in convicting accused. R. v. O'Brien (June 9, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Abella, Rothstein and Cromwell JJ., File No. 33817) Decision at 90 W.C.B. (2d) 32 reversed. 95 W.C.B. (2d) 553 (25 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Complainant's explanation for delayed complaint plausible in circumstances Accused and complainant had been involved in relationship. Complainant testifi ed that when she attempted to leave accused's house, he pushed her onto couch and pinned her hands. Complainant testifi ed accused choked her to point she felt unable to breathe. Com- plainant went to police about 10 days after incident after fam- ily friend told her abuse would not otherwise stop. Accused de- nied allegations. Accused found guilty. Complainant testifi ed in straightforward manner with- out embellishment or animus. Complainant's explanation for delayed complaint was plausible in circumstances. Complainant was not seriously challenged on material issues of fact. Com- plainant was credible and reli- able. Accused's suggestion that complainant left his home in anger because of photos on dis- play made little sense. Accused, likely fueled by alcohol, man- handled complainant as she de- scribed. R. v. Narain (July 5, 2011, Ont. C.J., Feldman J.) 95 W.C.B. (2d) 561 (7 pp.). Evidence CIRCUMSTANTIAL EVIDENCE Motive relevant by making it more likely accused committed crime Accused doctor convicted of manslaughter in death of wife. Cause of death multi-drug tox- icity caused by legal levels of two anesthetics. Accused testifying he injected wife with acceptable levels of anesthetic for thera- peutic purposes. Defence theo- rizing death caused by deceased administering further doses of anesthetic, consuming alcohol. Crown theorizing death caused by criminal negligence. Crown alternatively theorizing accused committed manslaughter by unlawful act of aggravated as- sault by intentionally admin- istering harmful amount of anesthetic. Trial judge charging jury on both theories of liabil- ity. Crown relying on evidence of declining state of marriage as evidence of motive to commit manslaughter by motive even intentional assault. Appeal from convic- tion dismissed. Trial judge did not err by admitting evidence of though ac- cused not charged with murder. Th ough not essential element of criminal responsibility, motive relevant by making it more like- ly accused committed crime. Motive piece of circumstantial evidence showing accused in- tentionally injected wife with anesthetic. R. v. Roncaioli (May 13, 2011, Ont. C.A., Laskin, Armstrong and LaForme JJ.A., File No. C48861) 95 W.C.B. (2d) 583 (23 pp. Municipal Law BY-LAWS Accused's gravel-covered rear yard was "paved" for purposes of zoning by-law Accuseds' rear yard was covered with gravel and was kept clear of snow. Property standards offi cer attended and took pho- tographs of rear yard showing vehicles parked there. Accused were charged with contravening zoning by-law for having drive- way in rear yard of their prop- erty, which did not lead to a ga- rage. Accused brought motion for non-suit based on whether gravel-covered area was "paved" for purposes of zoning by-law. Accused had been told to re- move driveway twice before. Driving and parking of motor vehicles on required residential landscaping areas was not per- mitted under by-law, except on driveways which led to a garage. Accuseds' yard did not have a garage. Residential landscaping includes rocks and stones, but not if motor vehicles are ca- pable of being parked on those rocks or stones. For purposes of by-law, accused's gravel-covered rear yard was a "paved" rear yard. Motion for non-suit dis- missed. Brampton (City) v. Mair (July 6, 2011, Ont. C.J., Quon J.) 95 W.C.B. (2d) 623 (26 pp.). Sentence DRUG OFFENCES Sentence reflected society's abhorrence for guns in the city Sentencing of accused after he was convicted of 40 off ences for possession of illegal weapons and narcotics. Police executed search warrant on apartment in which accused was one of oc- cupants. Th ey discovered three fully loaded handguns, two sawed-off shotguns, two rifl es and abundance of ammunition, some of which was packaged for sale. Th ere was also signifi cant amount of crack cocaine and thousands of dollars in cash. Ac- cused was 21 and he commit- ted off ences when he was 19. He had substantial and related criminal record of 45 convic- tions that was built up over three-year period. Global sen- tence of 13 years of imprison- CASELAW ment was imposed. It consisted of nine years for possession of handguns, nine years concurrent for possession of long guns, six months consecutive for posses- sion of ammunition for purpose of traffi cking, two years con- secutive for traffi cking in crack cocaine and one and half years for possessing fi rearm while pro- hibited. Accused was in custody for 20 months for these charges and he received 40 months credit. He therefore had to serve nine years and eight months in prison. Accused was subject to DNA order, lifetime weapons prohibition and forfeiture order of what was seized. Sentence re- fl ected society's abhorrence for guns in the city. It also served as denunciation and deterrence for those who contemplated such possession. Length of sentence constituted specifi c deterrence for accused. Sentence also took into account accused's criminal record and need of disabuse him of notion that lifestyle he chose was acceptable. R. v. Lambert (July 14, 2011, Ont. S.C.J., Kelly J., File No. 10/50000302/0000; 11/ 50000143/0000) 95 W.C.B. (2d) 647 (20 pp.). FEDERAL COURT Human Rights Legislation Employer DISCRIMINATION Applicant did not present persuasive evidence employer's explanation mere pretext for discrimination screened be refugee. Respondent was found not to be excluded de- spite lengthy record of criminal convictions in United States. Minister's application for judi- cial review was allowed. Board failed to apply principles set out in case law. Board failed to ap- ply facts of crime to Canadian criminal law. Board looked for equivalent criminal provisions to those of United States off enc- es. Board erred in consideration of contextual matters. Finding on issue of well-founded fear was unduly brief and did not touch on credibility. Reasons were not adequate. Canada (Minister of Citizen- ship and Immigration) v. Diaz (June 21, 2011, F.C., Phelan J., File No. IMM-4878-10) 204 A.C.W.S. (3d) 125 (8 pp.). Sentence FORFEITURE ORDERS Applicant's onus to satisfy delegate that seized currency not proceeds of crime Application to set aside forfei- ture order that was made by manager of the Appeals Divi- sion of Recourse Directorate on behalf of Minister of Public Safety and Emergency Prepared- ness. Applicant was at Vancou- ver International Airport, on his way to China, when Canada Border Services Agency offi cer who conducted currency ex- port searches, seized variety of currencies in his possession that amounted to $53,000. Offi cer suspected that funds were crime proceeds. Agency applicant out of two job competitions for indeterminate position as customs inspector. Applicant claimed employer discriminat- ed against applicant on grounds of race and ethnic origin. Appli- cant argued employer's conduct was pretext for discrimination. Tribunal dismissed complaint after hearing. Tribunal made as- sumption applicant presented prima facie case of discrimina- tion. Tribunal found employer's explanation to be reasonable. Tribunal found applicant did not present persuasive evidence employer's explanation was mere pretext for discrimination. Application for judicial review was dismissed. Tribunal stated correct legal test and applied relevant legal principles cor- rectly. Tribunal's treatment of evidence was not unreasonable. Applicant sought to reweigh evidence. Tribunal did not err in treatment of evidence. Tribu- nal's conclusion was not unrea- sonable based on evidence. Tri- bunal's reasons were adequate. Turner v. Canada (Attorney General) (June 24, 2011, F.C., O'Reilly J., File No. T-1094- 10) 204 A.C.W.S. (3d) 121 (17 pp.). Immigration INADMISSIBLE AND REMOVABLE CLASSES Board failed to apply facts of crime to Canadian criminal law Respondent was found to www.lawtimesnews.com adjudicator recommended to manager, who PAGE 15 was Minister's delegate, that Pro- ceeds of Crime (Money Laun- dering) and Terrorist Financing Act (Can.) was violated and that seized currency was to be con- fi rmed as forfeited. Delegate ac- cepted these recommendations. Application dismissed. Delegate did not impose impossible bur- den of proof on applicant and she did not merely rubber stamp adjudicator's recommendations. Rather she exercised her own discretion and decision-making authority. Applicant was repeat- edly and consistently asked to provide suffi cient details to es- tablish legal origin of currency. Since he failed to do so he had to bear the consequences. Appli- cant claimed that delegate made her decision without regard to the fact that the currency was a collection of non-reportable cur- rency. Th is submission ignored fact that it was applicant's onus to satisfy delegate that seized cur- rency was not proceeds of crime. Her decision not to exercise her discretion in his favour was rea- sonable. Neither the offi cer nor delegate erred in their applica- tion of the Act. Delegate's deci- sion was made in accordance with principles of natural justice. Non-disclosure of certain privi- leged documents did not breach his rights of procedural fairness. Applicant was also given numer- ous opportunities to respond to issues in this case. Mamnuni v. Canada (Minister of Public Safety and Emergency Preparedness) (June 22, 2011, F.C., Crampton J., File No. T-1515-10) 95 W.C.B. (2d) 654 (33 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. 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