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Page 18 November 30, 2015 • Law Times www.lawtimesnews.com cused's daughter. Accused had pleaded guilty to same charges some four years earlier and suc- cessfully moved to strike those pleas. Matter then proceeded through courts until second guilty pleas were entered in January 2014. Five months later, accused again moved to strike her guilty pleas but this time her motion failed. Accused ap- pealed from refusal to strike pleas. Appeal dismissed. Trial judge found accused to be ar- ticulate and smart and had no doubt but that accused knew exactly what she was doing when she pleaded guilty and she knew consequences of her ac- tion. Trial judge did not observe any reluctance to engage in plea process whatsoever at time it was taken. Trial judge's obser- vations were fully warranted on record. R. v. Kirpichova (Sep. 17, 2015, Ont. C.A., Doherty J.A., M.H. Tulloch J.A., and Grant Hu- scroft J.A., File No. CA C58952) 124 W.C.B. (2d) 542. SENTENCE APPEAL Sentence properly reflected upward trend for cases involv- ing drunk driving causing death Accused appealed his sentence of six years' incarceration im- posed after he pleaded guilty to criminal negligence causing death and driving without in- surance. Accused drank con- siderable amount of alcohol while socializing at bar and woman he had met for first time accepted his invitation to go for ride on his motorcycle. Two people, person who was serving accused and another patron of bar, urged accused not to drive. Few minutes later, ac- cused, going wrong way on one- way street, locked his brakes and crashed. Accused suffered various injuries and woman with him died on spot. Sen- tencing judge found accused's level of intoxication, over 160 milligrams in 100 millilitres of blood, to be most significant contributing factor to cause of crash. Appeal dismissed with exception that accused was entitled to 12 days' additional credit for pre-sentence custody. Crown conceded that calcu- lation of pre-trial credit was inaccurate and that accused was entitled to 12 days of ad- ditional credit. Court saw no error in principle in sentencing judge's treatment of accused's guilty plea, his consideration of applicable aggravating fac- tors or his understanding of accused's arguments. Nor was sentence imposed manifestly unfit for this accused and this offence. Sentencing judge could not be faulted for way in which he treated accused's evidence about his drinking. Accused decided to offer explanation for having consumed too much al- cohol. It was open to sentencing judge to interpret evidence as nuanced attempt by accused to def lect responsibility for extent of his inebriation. While it may not have been necessary for sen- tencing judge to particularize identified categories as he did, when his reasons were consid- ered as whole, court saw no ba- sis to conclude that he erred in his consideration of aggravat- ing circumstances applicable in this case. It was clear that fourth category, absence of environ- mental explanations or con- tributing causes for crash, was not aggravating factor and trial judge erred in principle in con- sidering it, and court did not understand Crown to suggest otherwise. Sentence was there- fore not accorded full deference, but court found sentence im- posed was not unfit, ref lecting gravity of risk accused took and tragic consequences that f lowed from accused taking that risk. Sentence also ref lected upward trend for sentences involving drunk driving causing death that corresponded to society's heightened recognition of need for sentences in these cases that focused on general deterrence and protection of public. R. v. Carreira (Sep. 22, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and Da- vid Brown J.A., File No. CA C59381) Decision at 116 W.C.B. (2d) 649 was reversed in part. 124 W.C.B. (2d) 543. Arson ELEMENTS OF OFFENCE Section 433(a) of Criminal Code does not include offence in s. 434 Crown applied for ruling in jury trial that "arson with dis- regard for human life" pursuant to s. 433(a) of Criminal Code included offence of "arson caus- ing damage to property", pursu- ant to s. 434 of Criminal Code or, alternatively, amendment to indictment. Application dismissed. No Criminal Code provisions expressly provided that s. 434 was included in s. 433(a). Section 433(a) did not necessarily include commission of s. 434 offence. Parliament fo- cussed on protection of human life without regard to property in s. 433(a) and on protection of property without regard to human life in s. 434. Crown did not use wording that amplified indictment to include essential elements of s. 434. Jury would be charged only in relation to s. 433(a), which included offence of mischief, but not in relation to s. 434. Enactment that creat- ed s. 433(a) offence made it clear that one of its essential elements was "intentionally or recklessly causing damage to property" by fire or explosion. Section 430(1) (a) of Criminal Code speci- fied that anyone who "wilfully damages property" regard- less of method used, commits mischief, and s. 429(1) of Code made it clear that "wilfully" in- cludes both knowingly doing act and recklessness. Enactment that created s. 433(a) offence made it apparent that mischief formed essential constituent of that offence and fairly informed accused in every instance that he or she would have to meet not only s. 433(a) offence but also that included offence. R. v. Sickles (Oct. 2, 2015, Ont. S.C.J., I.F. Leach J., File No. 11610) 124 W.C.B. (2d) 590. Disclosure GENERAL Accused's application for court to consider legal aid file without disclosure to Crown was dismissed Application by accused for court to consider his Legal Aid Ontario file without it being disclosed to Crown. Accused brought application for order for state to pay for his lawyer's services. He was charged with multiple counts that pertained to improper disclosure on pub- lic filings for company in which he was officer. Accused applied for legal aid and application was denied. He claimed that file was privileged and could not be dis- closed. Crown did not oppose accused redacting portions of file that contained privileged information. Application dis- missed. Crown's undertaking about redacting file made it highly unlikely that accused would prejudice his defence by disclosing unredacted por- tions of file to Crown. Crown also agreed not to use any fresh disclosure made by accused on this application at trial by cross- examining him about it. This helped ensure some protection to accused. Risks associated with filing LAO materials were very limited. Accused was to serve Crown with any materi- als he wished court to consider, subject to both undertakings made by Crown and accused's right to redact LAO file for priv- ileged contents. Vanier v. Ontario (Sep. 29, 2015, Ont. S.C.J., Varpio J., File No. CR-15-116-00M0) 124 W.C.B. (2d) 576. DNA Identification EVIDENCE Accused's guilt was not only rational conclusion to be drawn from DNA evidence Two masked males robbed bank and exited with unknown quantity of money. While f lee- ing scene, dye pack exploded and one robber was forced to discard money along with sev- eral items of clothing. Sole evi- dence linking accused to rob- bery was testimony of forensic scientist that accused's DNA was retrieved from discarded sweatshirt and baseball cap. Forensic scientist testified that there were multiple contribu- tors of DNA on both baseball cap and sweatshirt, and that major donors of DNA on each article could have originated from same source. Forensic sci- entist testified that she could not exclude accused as source of major DNA profile from sweat- shirt of baseball cap. Forensic scientist testified that she could not say when and how DNA was deposited on clothing. Accused acquitted. Court drew inference that one or both of robbers had worn baseball cap and sweat- shirt during robbery. DNA evi- dence established that accused had direct contact with cap and sweatshirt at some point in time before they were recovered at scene of robbery. Accused's DNA on clothing raised infer- ence that he was involved in robbery. DNA evidence did not indicate when and how ac- cused came into contact with cap and sweatshirt, and did not eliminate possibility that one or two others could have used cap and sweatshirt on day of robbery. Presence of accused's DNA on clothing did not sup- port conclusion that he was last user. Forensic scientist could not exclude possibility that unknown individuals whose DNA was found on clothing also wore items as opposed to merely having incidental con- tact with them. Accused's guilt was not only rational conclu- sion to be drawn from DNA evidence. While presence of high level of accused's DNA on clothing made it very likely that he was one of robbers, it did not exclude real possibility that an- other male was perpetrator. R. v. Kerr (Sep. 21, 2015, Ont. S.C.J., André J., File No. CRIMJ(P) 606/14) 124 W.C.B. (2d) 583. Prostitution PROCURING There was evidence capable of supporting conclusion that accused was actively involved in persuading complainant to engage in prostitution Accused charged with procur- ing prostitution and aiding, abetting, or compelling pros- titution. Accused applied for directed verdicts of acquittal. Complainant testified that she met accused, discussed her fi- nancial difficulties with him, and they agreed that she would start working as stripper. Com- plainant testified that accused helped her get job, instructed her as to what was expected of her, and explained how she should dance. Complainant testified that accused acted as her protection inside club, told her how to handle problems, and taught her about lap danc- ing. Complainant testified that she gave all of her money to ac- cused so that he could save it for her, and that he would give some money back to her for rent and other expenses. Com- plainant testified that it was her idea to do "extras" or sexual favours at club, and that ac- cused told her what to charge. Complainant testified that she sometimes left club to engage in sexual activity with custom- ers for payment, and that on first two occasions she called accused, told him what cus- tomer wanted and was willing to pay, obtained his approval, and then turned over all money to accused. Complainant testi- fied that when she wanted to stop working at club, accused became angry with her, told her that she owed him money, and refused to provide any of money that he had been saving for her. Application dismissed. Complainant was doing more than stripping within few days of starting at club, and evidence was capable of supporting con- clusion that accused was one who taught her how to do that. Form of contact between com- plainant and her customers met definition of prostitution. There was evidence capable of supporting conclusion that ac- cused was actively involved in persuading complainant to en- gage in prostitution when he as- sisted her, taught her how to lap dance, and do what she started to do at strip club in short or- der. There was abundance of evidence capable of supporting conviction by reasonable and properly instructed trier of fact on charge of aiding, abetting, or compelling prostitution. Ac- cused exercised direction and inf luence over complainant by telling her what to do and how much to charge when he knew she was doing lap dances and extras. Evidence supported po- tential conclusion that accused was acting for financial gain, as he took complainant's money and had not returned it to her in accordance with alleged agreement. R. v. Griffiths (Aug. 5, 2015, Ont. S.C.J., Dawson J., File No. Brampton 14-419) 124 W.C.B. (2d) 603. Search and Seizure INFORMATION FOR WARRANT Tips from proven reliable infor- mants require less corrobora- tion than tips from anonymous sources or untried informant Accused appealed his convic- tion for possession of cocaine and oxycodone for purpose of trafficking. Accused was ar- rested just outside Sudbury on basis of information provided by confidential informant. On arrest, accused's vehicle was searched. Police located 360 grams of cocaine and one thou- sand 80-milligram oxycodone pills. At trial, accused brought Charter s. 8 application seeking to exclude evidence relating to seized drugs on basis that his arrest was grounded entirely on information provided by in- formant that was not credible, compelling or corroborated. Trial judge dismissed applica- tion and found that arrest was reasonable in circumstances and, therefore, search incident to arrest was reasonable. Ac- cused appealed this ruling. Ac- cused's principal argument was that trial judge did not take suf- ficient account of fact that infor- mant's tip that triggered search was in fact his fifth tip relating to accused and potential drug activity in Sudbury. Since first four tips did not pan out, said accused, fifth tip should have provoked heightened scrutiny by police and enhanced efforts to corroborate at least some of facts contained in tip. Appeal dismissed. Police conducted CPIC, RMS and M.T.O. checks in relation to previous tips and CASELAW

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