Law Times

Law Times • February 8, 2016 Page 15 www.lawtimesnews.com CASELAW ONTARIO CRIMINAL CASES Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Provisions of Controlled Drugs and Substances Act violated s. 12 of Canadian Charter of Rights and Freedoms Accused pleaded guilty to pro- duction of marijuana and theft of hydro in relation to large, so- phisticated grow operation in home. Crown sought manda- tory minimum sentence of three years' imprisonment, which ap- plied to production of over 500 plants where aggravating factor in s. 7(3)(c) of Controlled Drugs and Substances Act, that produc- tion constituted potential public safety hazard in residential area, was established. Accused applied for declaration that mandatory minimum sentences for produc- tion were unconstitutional and of no force or effect. Applica- tion granted. Crown established aggravating factor in s. 7(3)(c). Three-year sentence would not be grossly disproportionate in accused's case. Accused involved in operation and not merely gar- dener. Reasonable hypotheticals established possibility for gross disproportionality in other cas- es. Section 7(3)(c) violated s. 12 of Canadian Charter of Rights and Freedoms because offender could be subject to mandatory minimum sentence based on circumstances unknown to him or her. Offender's specific level of moral culpability in relation to potential public safety haz- ard was irrelevant. Absent proof of knowledge of potential risk, result would be grossly dispro- portionate sentences. Section 7(2)(b)(i) and (ii) of act violated s. 12 of Charter because offender with medical marijuana produc- tion licence could be subject to mandatory minimum sentence for unknowingly exceeding au- thorized number of plants. Im- pugned provisions failed mini- mal impairment and propor- tionality tests and not be saved by s. 1. R. v. Vu (Oct. 20, 2015, Ont. S.C.J., Durno J., File No. 74/14) 126 W.C.B. (2d) 178. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Convictions for drug offences were unreasonable Accused was convicted of drug offences in relation to bag accused was seen handling by police, and which later was found to contain drugs. Accused ap- pealed those convictions. Appeal allowed; conviction quashed; ac- quittal entered. Verdict was un- reasonable and could not stand. Assuming that it was open to tri- al judge to find that bag that ac- cused placed in second man's car at about 9:10 a.m. was same bag that police retrieved from an- other man's car some three and one-half hours later, court was satisfied there was no evidence upon which reasonable trier of fact could infer that drugs found in bag at about 12:30 were in bag some three and one-half hours earlier when accused placed it in second man's car. Bag was in motel room for two hours and 20 minutes. Crown led no evidence concerning access to bag while it was in motel room. Crown also led no evidence as to who or what was in motel room when second man and his companion exited motel room and went to car with bag. In absence of any evidence about who had access to bag over that two-hour and 20-minute period, court thought it was unreasonable to conclude that Crown had proved beyond reasonable doubt that contents of bag had not changed between 9:10 a.m. and 12:30 p.m. when police seized bag. Trial judge erred in approaching his task by looking for evidence from which he could infer that contents of bag had changed. Trial judge was required instead to look for evidence that would satisfy him beyond reasonable doubt that contents of bag had not changed. Difference between these two approaches was fundamental to correct application of criminal burden of proof. R. v. Wu (Nov. 13, 2015, Ont. C.A., Doherty J.A., John Laskin J.A., and M. Tulloch J.A., File No. CA C59564) 126 W.C.B. (2d) 146. Jury EMPANELLING Accused presented no evi- dence to depart from standard Parks test Accused was black man charged with killing Asian man and sought to put multiple choice question to jury rather than standard Parks test of yes or no answer in regards to discovering if potential jurors had racial bias. Multiple choice question would have range from strongly agree to not being sure if juror would be affected by racial circumstances of accused and complainant. Application dismissed except in part. Accused presented no evi- dence to depart from standard Parks test that required yes or no answer to potential of racial bias. Primary limitation of Parks question was that jurors might be unaware that they could pro- vide other answers other than standard yes or no. Jurors in this case should be asked standard Parks question but they would also be instructed that they must answer question honestly and provide as much detail as they saw fit. R. v. Brooks (Nov. 20, 2015, Ont. S.C.J., Barnes J., File No. CRIMJ(P)158/13) 126 W.C.B. (2d) 159. Sentence CONDITIONAL SENTENCE Custodial sentence was required for Internet luring conviction Accused was convicted of Inter- net child luring of 12-year-old girl. Accused induced complain- ant to make and transmit por- nographic pictures, insert items in her vagina, masturbate and participate in sexually explicit chats, all for his sexual gratifica- tion. Accused, aged 24, did these acts repeatedly over span of six months. Accused was given con- ditional sentence of two years. Crown appealed. Leave to appeal granted and sentence converted into custody. Conduct of ac- cused was far more harmful than arranging sexual encounter with adult police officer believing she was child. Accused took advan- tage of naive child and objectives of denunciation and deterrence. Custodial sentence required de- spite accused's youth, remorse, prospects for rehabilitation and absence of threat to society. R. v. Rafiq (Nov. 12, 2015, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and Speyer J. (ad hoc), File No. CA C58792) 126 W.C.B. (2d) 194. DISCHARGE Conditional sentence granted on appeal from sentence for trafficking marijuana Accused was convicted of traf- ficking marijuana. He placed advertisement on website to sell marijuana. Undercover police officer responded to ad, and transaction occurred in which accused sold 110 grams of mari- juana for $750. Accused pleaded guilty and he was fined $750, with six months to pay. Accused appealed sentence. Appeal al- lowed. Accused took remark- able steps to change his way of life, which included successful treatment for his addiction to marijuana, substantial volunteer work, part-time employment, and full-time university studies. Trial judge recognized accused's progress, but he focused heavily on general deterrence. There was room to recognize that criminal record for this first time youth- ful offender was not necessary. Conviction and fine were set aside. Accused was subject to conditional discharge. R. v. D'Souza (Nov. 20, 2015, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Par- du J.A., File No. CA C57869) 126 W.C.B. (2d) 118. GENERAL No requirement that separate detention order be made following show cause hearing for accused to be "detained in custody" Accused consented to detention with no show cause hearing after bail on drug charges revoked for alleged breach of recognizance. Accused convicted of drug of- fences and seeking 1.5:1 credit for entire period of pre-sentence custody. Sentencing judge held accused detained under s. 524(8) for period following cancella- tion of bail and prior to convic- tion and exclusion in s. 719(3.1) applied. Sentencing judge gave 1.5:1 credit only for period be- fore bail revoked and prior to conviction. Appeal from sen- tence dismissed. No require- ment that separate detention order be made following show cause hearing for accused to be "detained in custody". Section 719(3.1) referred to accused "de- tained in custody" not "ordered detained in custody" under s. 524(8). R. v. Akintunde (Sep. 4, 2015, Ont. C.A., R.A. Blair J.A., M. Tulloch J.A., and C.W. Hourigan J.A., File No. CA C57743) 126 W.C.B. (2d) 184. PRINCIPLES Accused's efforts at rehabilita- tion should recognized by reduc- ing sentence to time served Accused was convicted of rob- bery and conspiracy to commit robbery and sentenced to con- current sentences of two years' imprisonment and three years' probation on each count. Sen- tencing judge emphasized lack of remorse for his small part he played in home invasion rob- bery of known drug dealer. Trial judge noted that no weapons, violence or disguises played part in home invasion that was not worst of its kind. Accused spent seven days in pre-sentence cus- tody and seven weeks in jail but was released on bail pending ap- peal since August 2012. Accused had been in community on re- cognizance for almost five years with conditions of his bail pend- ing appeal imposing 10 p.m. to 6 a.m. curfew and required him to reside with his parents. Ac- cused appealed. Leave to appeal granted with sentence reduced to time served. Fresh evidence of rehabilitation of accused was admitted. Life of accused would be devastated if he were to be sent back to jail at this point. Accused's family would be seri- ously disrupted and he would be diverted from strong direction he has taken towards rehabili- tation. It would be contrary to sentence policy to emphasize de- terrence or denunciation over re- habilitation at this point as that would ignore efforts of accused and consequent human realities of this case. R. v. Ghadban (Nov. 9, 2015, Ont. C.A., Robert J. Sharpe J.A., C.W. Hourigan J.A., and M.L. Benotto J.A., File No. CA C58474) 126 W.C.B. (2d) 189. Sexual Offences SEXUAL ASSAULT New trial ordered where trial judge's statement reflected misun- derstanding of forensic evidence Crown alleged trial judge erred in law by misapprehending fo- rensic evidence as well as mis- characterizing it as incapable of being confirmatory of evidence of complainant. Report of fo- rensic science witness indicated that large deposit of complain- ant's saliva was found in crotch of accused's underwear. There was no issue taken by defence at trial that saliva belonged to com- plainant. Crown appealed from decision of trial judge dismissing charges of sexual assault, sexual interference and sexual exploita- tion by accused on his daughter, who was four years old at time of alleged offences. Appeal al- lowed; acquittal set aside; new trial ordered. Statement by trial judge that there was no physical or forensic evidence that could buttress Crown's theory accused committed alleged offences against his daughter ref lected misunderstanding of forensic evidence and, in particular, fact complainant's saliva was posi- tively identified on accused's un- derwear. Statement also ref lect- ed misunderstanding of ability of that evidence to confirm evi- dence of complainant accused put his penis into her mouth. R. v. L. (J.) (Nov. 30, 2015, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and David Watt J.A., File No. CA C59605) 126 W.C.B. (2d) 201. Transfer of Offenders GENERAL Accused not given credit for days spent in Japanese workhouse Accused to be transferred to Canada to serve remainder of 13- year Japanese sentence for drug smuggling. Accused also serving 400 days in Japanese workhouse in lieu of payment of fine for vio- lation of Japan's customs tariff law. Application judge dismissed habeas corpus application seek- ing release on basis 400 work- house days should be credited in implementation of sentence in Canada. Appeal from decision dismissing habeas corpus ap- plication dismissed. Judgment of Japanese court provided fine for violating customs tariff separate and apart from custodial sen- tence for violating penal code. Under International Transfer of Offenders Act, only time spent "in confinement" on account of term of imprisonment imposed to be considered. Workhouse days served to purge fine im- posed not on account of penal sentence and only penal sen- tence was transferred to Canada. Haghparast-Rad v. Canada (Commissioner of Corrections) (Sep. 28, 2015, Ont. C.A., K. Feldman J.A., Paul Rouleau J.A., and David Watt J.A., File No. CA C59528) Decision at 115 W.C.B. (2d) 371 was affirmed. 126 W.C.B. (2d) 204. Lawyers with Clients Interested in Selling their Business should partner with our proven boutique M&A firm. 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