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Law Times • December 14, 2015 Page 15 www.lawtimesnews.com breached because there was no unequivocal waiver of right to counsel, excluded breath sample evidence pursuant to s. 24(2) of Charter, and entered acquit- tal. Appeal allowed; conviction restored. Appeal judge erred in law by failing to first consider whether accused had invoked his s. 10(b) rights, because it is only in circumstances where de- tainee has invoked his rights that issue of waiver arises. Trial judge found as fact accused did not in- voke his right to speak to coun- sel. is finding was open to trial judge on evidence and as result there was no basis for appellate interference. While arresting of- ficer asked accused second time whether he wished to contact counsel, officer testified that it was his standard practice to ask more than once, and at no point did he believe accused wished to speak with lawyer. Trial judge indicated she did not believe accused's explanation for why he declined to contact counsel when he was asked at police sta- tion. Further, trial judge found interactions between police and accused were polite and non- confrontational, that arresting officer did not mislead accused as to his rights, and accused was not confused. R. v. Owens (Sep. 28, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59914) Deci- sion at 118 W.C.B. (2d) 256 was reversed. 125 W.C.B. (2d) 150. Criminal Negligence PROOF OF OFFENCE Accident reconstruction was not "pure speculation" Accused appealed certiorari quashing his discharge on count of criminal negligence causing death. Accused was mechanic who passed 17-year-old truck without inspection when it fishtailed causing accident that killed young woman. OPP ac- cident reconstructionist's opin- ion was based on his observa- tions, judgment and experience of many years that condition of truck caused accident. Testimo- ny indicated witness saw vehicle fishtail; previous owner stated that steering wheel "wandered" and had "little bit of play"; that purchaser of truck was planning on installing new steering sha and fact that driver and purchas- er thought to blame accident on steering shortly aer accident. Appeal dismissed. ere was evidence on which reasonable jury, properly instructed, could find that appellant was signifi- cant contributing cause of young woman's death. OPP reconstruc- tion was not "pure speculation" and there was supporting evi- dence includes testimony of wit- nesses that truck had steering issues before collision. R. v. Ramono (Oct. 14, 2015, Ont. C.A., Hoy A.C.J.O., Weiler J.A., and Pardu J.A., File No. CA C60044) 125 W.C.B. (2d) 174. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Evidence of surveillance tar- get raised reasonable doubt Accused charged with posses- sion of marijuana for purposes of trafficking. Crown said that during course of police surveil- lance targeting individual who was suspected of trafficking in large quantities of marijuana, target was seen handing accused one of three large garbage bags full of that controlled substance, aer which accused walked short distance with that garbage bag before dropping it as police approached to arrest two men. Defence said evidence showed that accused was innocent, in- sofar as he was handed and agreed to carry relevant garbage bag merely as courtesy, with- out knowing what was inside. In that regard, defence relied in particular on testimony of sur- veillance target. While nothing was taken from accused upon arrest, target was found with cell phone, $1,440 in cash and what appeared to be "debt list". Par- ties agreed that bag accused was holding contained 8.511 kgs of marijuana, consistent with pos- session for purpose of traffick- ing, but that there was no odour emanating from three garbage bags containing marijuana. Ac- cused acquitted. ere were number of aspects of target's tes- timony that militated in favour of its acceptance. For most part, target gave his evidence in what appeared to be natural, sponta- neous and unprepared manner; e.g., without hesitation or pauses suggesting evasion or reflection for purpose of fabrication. Not- withstanding witness exclusion order, target's testimony was remarkably consistent with evi- dence of police witnesses con- cerning movements and events observed. From fact that target had turned off his car, removed its keys, and taken two garbage bags into his own hands aer accused was walking away from vehicle, court thought it clear that target clearly was intending to leave vehicle and go some- where nearby and nearest des- tination apparently was apart- ment building towards which accused already was walking. Possibility of target having and employing "safe spot" or "stash house" in his drug trafficking activities found support in tes- timony of officer, who acknowl- edged in cross-examination that he was familiar with concept of "stash house". ere were fac- tors which stopped court short of saying target's testimony was believed, but found it did, in very "close call", raise reasonable doubt. Even if one completely disregarded testimony of target, there was nothing in evidence and circumstances relied upon by Crown that would raise pro- bative value of evidence beyond level of suspicion, in terms of whether accused knew what he was carrying inside garbage bag handed to him by target, or that accused was wilfully blind to fact that garbage bags contained drugs. R. v. Cao (Sep. 28, 2015, Ont. S.C.J., I.F. Leach J., File No. 11311) 125 W.C.B. (2d) 163. Evidence OPINION EVIDENCE Evidence of gang expert inadmissible Two accused charged with first degree murder. It was al- leged first accused had issue with deceased arising from fact that first accused's girlfriend le him in favour of deceased while first accused was in jail on other charge. When accused came out of jail, he tried to reconcile with his girlfriend but she was not in- terested. It was alleged that first accused was upset with deceased arising out of this situation such that he threatened to do harm to deceased. Parties were all pres- ent in parking lot when deceased was shot dead. Crown sought to lead evidence from gang expert to effect that group known as "Night Shi Cashiers", to which first accused was directly con- nected and second accused was indirectly connected, was street gang. Evidence inadmissible. Expert did not offer any opinion second accused would be sub- ject to direction of gang merely by having some affiliation to it. At no point in either his report or his supplementary report did Crown's expert say that first and second accused were Crips. Ex- pert never said that Night Shi Cashiers were, themselves, Crips gang. Mere fact that both ac- cused might be members of their own individual Crips gangs did not mean that one was subject to direction of other. Mere fact that two gangs both happen to be Crips gangs did not mean that they were beholden to each oth- er or would follow each other's direction. Quite contrary. Even assuming that some probative value could be found in this evi- dence, prejudicial effect would overwhelm any such value. Crown only sought to use gang evidence to show two things. One was that first accused was more upset about taking of his girlfriend, while he was incar- cerated, because he was "Boss" in gang and thus entitled to height- ened degree of respect. Other was alleged motive for second accused to follow first accused's orders to shoot deceased. Court had already dealt with why lat- ter use for this evidence was not made out through Crown's own expert. Former use for this evidence was only tangential to core of motive, that was taking of girlfriend. Its limited probative value on that issue was plainly outweighed by its very signifi- cant prejudicial effect. R. v. Campbell (Oct. 6, 2015, Ont. S.C.J., Nordheimer J., File No. 14-30000358) 125 W.C.B. (2d) 170. Sentence Sentence for possession of child pornography was reduced but long-term super- vision order was upheld Accused successfully appealed his sentence that was greater than five-year maximum for possession of child pornography and had it reduced to 4.5 years. Appeal was dismissed in regards to length of 10-year long term offender supervision order as al- though accused only possessed two small USB files, he started his collection of child pornog- raphy soon aer release and was assessed as medium to high risk to re-offend. Language used by sentencing judge in his reasons clearly indicated that he im- posed sentence containing time already served by accused being two years and 13 days with fur- ther three years' imprisonment. At time sentence was imposed, that resulted in sentence which exceeded, by 13 days, statutory maximum of five years' impris- onment which could not stand. Accused was le with only 16 days to serve of sentence aer receiving credit 1.5-to-1. Ac- cused was also sentenced to six months consecutive for breach of prohibition order and six months concurrent, on his two breach of probation offences. Denunciation and deterrence were primary factors and ac- cused had record for sexual as- sault, luring and making child pornography. R. v. Rotman (Oct. 2, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C59126) 125 W.C.B. (2d) 209. TERRORISM Life imprisonment was appropri- ate for most grave offences of conspiracy to endanger safety and conspiracy to commit murder Two accused were charged with terrorism-related offences. E was convicted of five counts while J was convicted of three counts. Court asked amicus to deal with issue of assessment for E, who was self-represented and appeared to be mentally ill. Assessment was made and doctor testified as to E's mental health and culpability in ac- tions. Crown sought two con- current life sentences for E, in addition to 30 years concurrent imprisonment. Crown sought life sentence for J and 20 years concurrent imprisonment. Am- icus claimed that sentencing of E should be delayed and that in al- ternative, E should be sentenced to 13-15 year sentence. Counsel for J submitted that 5.5 year sen- tence less 3.5 years for pre-trial custody was appropriate. Sen- tencing submissions made by all parties. E sentenced to two life sentences and 18 years concur- rent imprisonment. J sentenced to life sentence and 13 years concurrent imprisonment. Ex- pert testimony on behalf of J vio- lated necessity requirements and controverted jury's verdict, by portraying J as drug addict who was not committed to terrorism. J was poor candidate for reha- bilitation, given that he had not taken responsibility for his role in terrorist plot or renounced his jihadist beliefs. J also contin- ued to insist that he never held violent or jihadist ideology. Al- though there was no mitigating factor of remorse, Crown could not prove that J was committed to further violent or terrorist acts. J abandoned terrorist plot at late stage, although his motive was unclear. E was considered fit to stand for sentencing, as he had understanding of proceedings and jeopardy that was neces- sary. E had fully held to jihadist beliefs, and had not recognized legitimacy of trial process. E had religious beliefs that could have been indicators of mental ill- ness, but evidence showed that E was not delusional or psychotic at time of offences. Causal link was not present to show that mental illness caused E to com- mit offences. Amicus could not have E treated against his own wishes, as this could not be done by counsel if E had been repre- sented. Accused's offences were at most serious level, and they did not have mitigating factors of youth or remorse in their fa- vour. Life imprisonment was ap- propriate for most grave offences of conspiracy to endanger safety and conspiracy to commit mur- der. Determinate sentences for related offences had to be con- secutive to each other, but con- current to life sentences. Each accused received five and eight years respectively on counts of participating in terrorist activi- ties. E received additional five years on count that he alone faced. Both accused were given 1.5-to-1 credit for time already served, reducing determinate sentences by 44 months. R. v. Esseghaier (Sep. 23, 2015, Ont. S.C.J., M.A. Code J., File No. CR-13-10000655-0000) 125 W.C.B. (2d) 232. CASELAW

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