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Law TiMes • March 16, 2009 Accused appealed verdict that he was not criminally responsible. Accused was charged for having made harassing phone calls to, among others, a probation officer and an Assistance Crown Attorney. Accused was remanded to the Centre for Addiction and Mental Health and had a long history of mental illness, and it had been established he suffered from para- noid schizophrenia. Accused had a relatively lengthy criminal record, largely related to verbal and physi- cal harassment. Not criminally responsible verdict was rendered by the trial judge with the consent of accused. Appeal dismissed. No basis present on which to permit accused to withdraw his consent to the not criminally responsible verdict. No evidence accused's consent was involuntary, equivo- cal or not fully informed. No basis on which to doubt the reasonable- ness of the verdict. Accused did not challenge the assessment re- port nor did he offer any evidence to the contrary. R. v. Ohenhen (Dec. 12, 2008, Ont. C.A., Gillese, Armstrong and Rouleau JJ.A., File No. C47378) Order No. 008/350/038 (3 pp.). INSANITY No basis to permit withdrawal of consent to not criminally responsible verdict Election Offences Accused was the unsuccessful Conservative Party candidate for a Mississauga riding in the 2006 Federal election. He appealed con- viction of 19 counts under s. 31(1) of the Mississauga Sign Bylaw. Accused admitted that 19 of his election signs were still up after the 48 hour grace period after the election. Argued that 4-5000 signs had been put up originally and that he had tasked workers to col- lect them. Due diligence defence. Appeal allowed and acquittals entered. Steps accused had taken were overwhelmingly successful, reasonable, and sufficient in the circumstances. R. v. Defaria (Dec. 10, 2008, Ont. C.J., Duncan J.) Order No. 009/014/111 (7 pp.). GENERAL Convictions for violations of sign bylaw reversed Evidence Accused appealed conviction for sexual exploitation. Complainant alleged that accused rubbed skin between her legs, under her un- derwear. Accused denied inappro- priate conduct. Appeal dismissed. In assessing complainant's testi- mony, trial judge not required to apply same criteria applicable to adult witness. Trial judge properly considered complainant's evidence in context of her age. R. v. C. (H.) (Jan. 20, 2009, Ont. C.A., Rosenberg, Armstrong and Watt JJ.A., File No. C45623) Order No. 009/021/235 (13 pp.). CREDIBILITY Child complainant's evidence properly considered in context of her age Extradition And Fugitive Offenders EVIDENCE Evidence of proposed witness would not assist court in determining issue of committal for extradition extradition was being sought by the United States of American for conspiracy to traffic marijuana, to admit evidence from his father. Some of the co-accused co-operat- ed with the American authorities. Father's proposed evidence was that he met with two of the co- accused who co-operated with the authorities and had the impres- sion they had falsely implicated the accused to help themselves in the United States. Such evidence suggested that they were prepared, for money, to recant evidence they had given under oath. Application dismissed. Father would not be heard from as a witness. His evi- dence would not assist the Court in deciding the question of the ac- cused's committal for extradition. Even if the two co-accused were prepared to recant their evidence for a price, this would have an im- pact on their credibility but would not render their evidence so de- fective or manifestly unreliable that it would be unsafe to con- vict the accused on it. Accused's counsel would be able to cross- examine the two co-accused in the American trial and would be able to call the father as a witness. Determination of the extent to which the evidence impacted on the credibility of these men was not for the Extradition Court to decide. That was a function for the trier of fact in the American trial. Father's evidence was also problematic as he was not an impartial witness. In addition to credibility and reliability con- cerns the evidence was hearsay. United States of America v. Gill (Dec. 17, 2008, Ont. S.C.J., Spies J., File No. EX-21/07) Order No. 008/358/104 (12 pp.). Interception Of Private Communications AUTHORIZATION Authorization was invalid but evidence not excluded Accused charged with counselling to commit murder. Application to exclude statements pursu- ant to ss. 8 and 24(2) of the Charter. Wiretap recording by undercover officer wherein ac- cused asked officer to kill ex-wife and her boyfriend. Application denied. Authorization granting wiretap was invalid. Affidavit to obtain authorization was too gen- eral to form basis of authorization. Evidence not excluded. Statements were not conscriptive evidence but themselves constituted the of- fence. Affidavit was deficient but no attempt by affiant to deceive the court. Even if statement was excluded undercover officer could give evidence from memory and notes of what the accused said to him. Recordings were best evidence. Exclusion of recordings would defy common sense. R. v. Lalumiere (Dec. 19, 2008, Ont. S.C.J., Hambly J., File No. CJ 6482) Order No. 009/020/133 (31 pp.). Prisons INMATES' RIGHTS Challenge to emergency involuntary transfer was denied Application by the accused, whose Inmate applied to challenge his emergency involuntary transfer from a medium security facility to a maximum security facility by way of habeas corpus ad Subjiciendum with Certiorari in aid thereof. After a small disturbance in the medium security institution, CASELAW emergency response team mem- bers upon reaching accused's cell, claimed his behaviour had been inciting of the other inmates and disrespectful to the emergency re- sponse team. Application denied. Despite the fact the Tribunal did not specifically address the de- nials provided by inmate, there was no doubt a reviewing court would be able to conclude why a transfer took place. Conduct of accused on the date in question was simply the incident that trig- gered the assessment and transfer but the index offence accused was in for was a serious and potentially violent one, the inmate since his arrival in the penitentiary system had assaulted three peace officers and uttered threats and had been found guilty of a number of mi- nor offences within the institu- tion. Administration had followed the requirements of all applicable statutes and the only deficiency might be the failure to address the inmate's denials of conduct which, in the circumstances, did not move the decision from a reason- able and fair decision to one that was unreasonable. Brooks v. Canada (Attorney General) (Dec. 19, 2008, Ont. S.C.J., Belch J., File No. CR- 08-189-MO) Order No. 008/358/079 (11 pp.). Sexual Offences SEXUAL ASSAULT Identity not established beyond reasonable doubt Accused charged with sexual assault, attempting to choke complainant to enable him to commit sexual assault and theft of a cell phone while using vio- lence. Complainant left work in the morning after an overnight shift and entered a bus shelter to wait for the bus. While com- plainant was on her cell phone with her mother a man entered the bus shelter and proceeded to try and force complainant to give him oral sex. The attacker eventually took the cell phone that was still in complainant's hand and left. Accused found not guilty. Court was concerned that when complainant first viewed the photo lineup in dispute and came upon accused's picture she first answered "no" and later that she "wasn't sure" if accused's pic- ture was the same as the attacker and that subsequent comments or questions from a detective might have been construed by complainant as pressure or en- couragement to come to a 100% certain identification. The sug- gestion to use something to cover up a part of the photograph by the detective was not offered or suggested to be done for other photographs which complain- ant indicated looked like the at- tacker. Complainant's change of mind from "no" to "it's him" within a couple of minutes was difficult to accept as a credible identification. There was an in- cident in which complainant was mistaken in her identification of the attacker just a few days after the attack which led Court to seriously question whether com- plainant had a good look at the attacker and could identify him with any real degree of certainty. Opportunity to see the face of the attacker during the brief attack would have been very brief in the circumstances, attack would have been stressful on complainant www.lawtimesnews.com potentially impacting her ability to accurately recollect her attack- er, it was dark at the time of the attack and complainant admitted she was not good at estimating heights making her description of attacker's height unreliable. There was no evidence accused had an earring like the one seen by complainant and neither ac- cused's photo lineup photograph or his person demonstrated the bulging eyes described by com- plainant and the most significant facial features of the attacker were not present in the photo of ac- cused or seen in him in court. A number of factors caused Court to question the reliability of com- plainant's recollection. Computer generated composite complainant assisted creating had some simi- larities with accused but a lot of differences and a number of the photo lineup photographs closer resembled the composite than accused's picture. While accused clearly fabricated an alibi that he was out of the country at the time of the attack it was unclear he even knew the date of the offence and may have fabricated the alibi to expedite getting a pardon and visa to return to Canada and any in- ference of guilt resulting from the fabrication was weak. There was more than sufficient reasonable doubt that accused was the person who attacked complainant. R. v. Johnson (Dec. 8, 2008, Ont. S.C.J., Ricchetti J., File No. 1868/07) Order No. 008/345/086 (33 pp.). Release From Custody RELEASE PENDING APPEAL Public interest favoured denial of bail pending appeal PAGE 19 Application by the accused for bail pending his appeal from conviction for second degree murder. Appeal was brought af- ter the accused's third trial for the first degree murder of his wife. He was convicted of sec- ond degree murder after that trial. Accused raised two grounds of appeal. He argued that the trial judge erred in failing to order disclosure of the identity of a confidential police informer and that the verdict of second degree murder was unreasonable. Application dismissed. Police in- former ground of appeal was tenu- ous. Ground of appeal based on the unreasonableness of the verdict was also not substantial based on the record which consisted of the charge to the jury, counsels' ad- dresses and trial counsel's opinion to legal aid. Interest in enforceabil- ity outweighed the interest in re- viewability. Accused was now twice convicted of murder. Crown's case was circumstantial but it was not insubstantial. Even though neither ground of appeal was frivolous they were not very strong. At this time the public interest favoured deny- ing bail pending appeal. It was only in unusual circumstances where the grounds of appeal appeared to be strong that an appellant was released pending the appeal of a conviction for first or second de- gree murder. This was not one of those cases. Accused could renew this application if the preparation of the transcript was unreason- ably delayed and there was further material as to the strength of the grounds of appeal. R. v. Klymchuk (Dec. 16, 2008, Ont. 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