Law Times

Law Times • November 30, 2015 Page 19 www.lawtimesnews.com received good deal of informa- tion about accused, vehicles and locations. Fact that this information did not lead to contact with accused on previ- ous occasions was neutral and did not establish that accused did or did not engage in drug activities on those occasions. Trial judge was entitled to find that informant's past reliability weighed in favour of his cred- ibility relating to triggering tip in this case. Tips from proven reliable informants require less corroboration than tips from anonymous sources or untried informant. Confidential infor- mant appeared to have been top notch and in this case pro- vided quite specific informa- tion: name of drug courier, car, drugs involved, date, time and location. Police were able to corroborate much of this infor- mation before arrest. R. v. Zettler (Sep. 14, 2015, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Miller J.A., File No. CA C58469) 124 W.C.B. (2d) 494. Sentence PREVENTIVE DETENTION Sentencing judge did not fail to apply Gladue principles Accused, having been sentenced to indeterminate sentence as dangerous offender, appealed sentence and sought to be sen- tenced to determinate sentence as long-term offender. Accused contended that sentencing judge erred in finding that there was no reasonable possibility that his risk to re-offend could eventually be controlled in community and that error was made because sentencing judge failed to apply Gladue prin- ciples. Sentencing judge also reviewed accused's history of offending, which included fol- lowing convictions: two counts of sexual assault from 1992; ut- tering threats against his spouse from 1997; sexual assault and forcible confinement of his spouse from 1998; and predi- cate offence of sexual assault of his daughter over period of three years, beginning when she was 15 and culminating in 2009 with physical assault following argument. Appeal dismissed. Sentencing judge's reasons were lengthy and detailed and it was she who ordered Gladue report. Sentencing judge reviewed Gla- due report as well as correction- al records of accused's progress during his prior incarcerations, which addressed his participa- tion in number of programs for sex offender treatment and alcohol treatment. Reports noted some apparent progress but significant relapse upon re- lease. Accused was also found to be manipulative, seeming to co-operate in programs, then later denying offences. Ac- cused refused to participate in assessment. Significantly, though doctor opined that ac- cused's risk could be manage- able in community assuming he would accept medication, there was no evidence that ac- cused was prepared to do so. In light of accused's treatment history, including his partici- pation in Aboriginal program- ming, sentencing judge refused to accept that availability of any programs specifically for Ab- originals would be useful for risk reduction in accused's case. Conclusion reached by sentenc- ing judge was fully supported by evidence. R. v. H. (J.W.) (Sep. 15, 2015, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Miller J.A., File No. CA C56269) 124 W.C.B. (2d) 631. Sexual Offences SEXUAL ASSAULT Accused found not guilty where complainant was not credible Accused was charged with sexual assault, aggravated as- sault and obstructing justice. Accused conceded that com- plainant did not know about his HIV status, but stated that his viral load was negligible and that he used condom. Ac- cused was schizophrenic as was witness who testified that complainant agreed to three- some and became angry when she later learned of HIV status of accused. Medical evidence indicated that viral loads of ac- cused were low and accused testified that he always used condom as that was how he was instructed by his doctor. Complainant alleged at late stage that accused attempted to bribe her into saying he used condom even though that con- versation occurred before ac- cused was charged and officer was surprised by allegation despite complainant claiming to tell police earlier. Complain- ant claimed she misspoke when she said things would have gone differently had she known ac- cused had HIV. Accused found not guilty. Complainant was not credible in her testimony and was caught in numerous lies. She was not believable in regards to bribery allegation as charges should not have been laid in such circumstances. It was accepted that complain- ant would not have consented if she knew accused had HIV however medical evidence con- firmed there was no risk given viral loads and use of condom by accused. R. v. H. (W.) (Oct. 2, 2015, Ont. S.C.J., E.M. Morgan J., File No. 15828/14) 124 W.C.B. (2d) 643. Weapons USE OF FIREARM WHILE COMMITTING INDICTABLE OFFENCE Trial judge erred in interpreta- tion of s. 85(2) of Criminal Code Trial judge convicted accused of possession of imitation weapon for purpose dangerous and use of imitation firearm while committing indictable offence. Accused brandished imitation firearm at group he believed had robbed him. Ac- cused used imitation firearm to strike one person and in- timidate others. Trial judge found accused armed himself with imitation firearm before using it to confront, strike and intimidate others with it. Trial judge held conviction of posses- sion for purpose dangerous of- fence could constitute predicate indictable offence necessary for conviction under s. 85(2) of Criminal Code. Trial judge held accused "used" weapon for pur- pose of s. 85(2) by striking one person and intimidating oth- ers. Appeal from conviction al- lowed in part and conviction on s. 85(2) offence set aside. Trial judge erred in interpretation of s. 85(2). Impugned conduct of beating one person and intimi- dating others with weapon did not constitute "use" for purpose of s. 85(2) as use did not facili- tate commission of predicate indictable offence. Predicate indictable offence of possession for purpose dangerous offence was complete after accused armed himself well before "us- ing" imitation firearm. R. v. Andrade (Jul. 6, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and C.W. Hou- rigan J.A., File No. CA C59097) Decision at 111 W.C.B. (2d) 896 was reversed in part. 124 W.C.B. (2d) 645. FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Use of psychological risk assessment tools violated Aboriginal offender's rights under s. 7 of Charter Plaintiff was 53-year-old Ab- original offender. Plaintiff was adopted by Caucasian fam- ily when he was six months old. Plaintiff was serving two life sentences for second degree murder and attempted mur- der, and was sentenced to 15 months' imprisonment to be served concurrently for escape from lawful custody convic- tion. Plaintiff spent 30 years in federal correctional facilities. Plaintiff was eligible for full parole since 1999 but never had parole hearing. Commis- sioner of Correctional Services Canada used psychological risk assessment tools ("actu- arial tests") during plaintiff 's incarceration. Plaintiff waived his right to each parole hearing alleging he was unlikely to be granted parole because he was assessed as too great risk of re- offending in part due to results of actuarial tests. Actuarial tests were alleged to be unreliable in regard to Aboriginal prisoners and use of such tests resulted in significant adverse impact on plaintiff. Plaintiff asserted use of assessment tools violated his rights under s. 7 of Canadian Charter of Rights and Free- doms. Action allowed. Court intended to issue final order en- joining use of assessment tools in respect of plaintiff and other Aboriginal inmates until defen- dant conducted study confirm- ing reliability of those tools in respect to adult Aboriginal of- fenders. In interim, defendant was enjoined from using results of assessment tools in regard to plaintiff. Use of assessment tools violated plaintiff 's rights under s. 7 of Charter without justification under s. 1. Contin- ued use of assessment tools was overbroad of purpose and ob- jective of the legislation and of CSC's decision making respon- sibilities. Assessment tools were used without qualification or caution despite long-standing concerns about their reliability. Ewert v. Canada (Sep. 18, 2015, F.C., Michael L. Phelan J., File No. T-1350-05) 258 A.C.W.S. (3d) 320. Employment PUBLIC SERVICE Commission's denial of per- mission for prosecutor to seek nomination in federal elec- tion was upheld on appeal Applicant's request for permis- sion and leave of absence to seek nomination in federal election denied by Public Service Com- mission. Applicant was pros- ecutor in Regulatory and Eco- nomic Prosecutions and Man- agement Branch of Public Pros- ecution Service of Canada. Ap- plicant's supervisor claimed no concern if applicant returned to work if not elected but Direc- tor of Public Prosecution (DPP) had concerns about impair- ment or perceived impairment of applicant's ability to perform duties both before election and upon her return to work. DPP claimed that partisan political activities by prosecutors under- mine prosecutorial function. Commission not satisfied that being candidate would not im- pair or be perceived as impair- ing applicant's ability to per- form duties in politically im- partial manner. Applicant's ap- peal dismissed. Charter rights engaged were right to run for office, freedom of expression and freedom of association. Is- sue was whether Commission's decision ref lected proportion- ate balancing of Charter rights in light of statutory objectives. Commission's decision did not amount to blanket prohibition on all federal prosecutors but based on consideration of appli- cant's specific duties. DPP clear- ly expressed view that political involvement not appropriate for federal prosecutors. Implicit in scheme of Public Service Employment Act that right to engage in political activity may have to give way to objective of ensuring employees perform duties in politically impartial manner. PSEA requires com- mission to recognize and bal- ance employee's right to engage in political activities and objec- tive of maintaining principle of political impartiality in public service. Although commission did not identify rights at stake as Charter rights, decision and process ref lected that commis- sion considered all submissions and impact of refusal which would limit applicant's rights. Commission understood factu- al context, recognizing that ap- plicant had authority to exercise significant discretion relative to other public servants. Commis- sion properly viewed exercise of discretion in context of govern- ment employees and reason- ably found that applicant would have increased visibility as re- sult of seeking candidacy. Com- mission entitled to attach more weight to submissions of DPP but considered other informa- tion. Commission concluded that no measures could address risk to political partiality or perception of political partial- ity. Commission's decision re- f lected proportionate balancing and was reasonable. Taman v. Canada (Attorney General) (Oct. 13, 2015, F.C., Catherine M. Kane J., File No. T-60-15) 258 A.C.W.S. (3d) 327. Sentence CONTEMPT OF COURT Solicitor-client costs and fine imposed for contempt of injunction Judge ruled that respondent in- fringed applicant's trademark HIGH TIMES, contrary to ss. 19 and 20 of Trademarks Act. Judge determined that respon- dent directed public attention to its goods, services or business in way that caused or was likely to cause confusion between its goods, services or business and those of applicant, contrary to s. 7(b) of act. Judge permanently enjoined respondent from sell- ing, distributing or advertising goods or services in associa- tion with applicant's registered trademark or trademark likely to be confused with that of ap- plicant. Respondent continued to use trademark and name HIGH TIMES. Respondent pleaded guilty to five counts of contempt. Acts of contempt were objectively and subjec- tively serious. Respondent's behaviour challenged judicial authority of court and public's confidence in administration of justice. Aggravating factors included seriousness of acts of contempt and unexplained de- lay in compliance. Mitigating factors included this being first offence, guilty plea and fact that respondent's business was rela- tively small and unsophisticat- ed. Respondent had not accept- ed responsibility or apologized. Applicant was diligent in efforts to rectify contemptuous con- duct, which warranted award of solicitor-client costs. Applicant was awarded solicitor-client costs of $62,500, payable jointly and severally by respondent and officer and director. Given his- tory of trademark infringement and primary consideration of general deterrence, it was ap- propriate to order respondent and officer and director were to pay fine of $50,000 on joint and several basis. Trans-High Corp. v. Hightimes Smokeshop and Gifts Inc. (Jul. 27, 2015, F.C., Simon Fother- gill J., File No. T-1004-13) 124 W.C.B. (2d) 501. LT CASELAW

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