Law Times

Law Times • march 7, 2016 Page 15 www.lawtimesnews.com CASELAW audoin J., File No. 06-CV-35434) 261 A.C.W.S. (3d) 763. ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Accused should have received enhanced credit for pre-trial custody Accused was convicted of three counts related to his possession of unauthorized prohibited fire- arm and cartridge magazine. Accused was sentenced to global term of imprisonment of four years, less credit for 402 days, allowed on 1.25 times' basis as 500 days. Accused appealed sen- tence. Appeal allowed. Parties agreed that accused should have received credit of 603 days for 402 days of his pre-trial custody on 1.5 times' basis based on Su- preme Court of Canada decision that was released after imposi- tion of sentence. Sentence was otherwise fit. Trial judge prop- erly considered that principles of denunciation and deterrence had to be given substantial weight in sentencing accused for his gun-related offences, especially in light of his aggravating prior gun-related convictions. R. v. Bediako (Nov. 19, 2015, Ont. C.A., David Watt J.A., Da- vid Brown J.A., and L.B. Roberts J.A., File No. CA C59029) 126 W.C.B. (2d) 525. Accused's criminal record amply justified trial judge's bleak con- clusion on rehabilitation Accused sentenced to 10 years' incarceration after credit for 75 days' pre-sentence custody upon conviction for conspiracy to commit unlawful confine- ment, possession of firearm, and breach of prohibition order. Ac- cused alleged trial judge overem- phasized accused's convictions in 2000 for armed robbery and forcible confinement and failed to properly consider principle of rehabilitation. Accused appealed sentence. Appeal dismissed. There was nothing wrong with trial judge taking into account previous armed robbery/forcible confinement convictions and re- ferring to "raw brutality towards the victims" in that incident. This was particularly so in light of fact that trial judge was sentencing accused for aborted kidnapping and confinement of wealthy per- son with view to extracting mon- ey from him. Proposed criminal activity in 2010 was similar in purpose, and in likely violence, to criminal activity that led to his convictions in 2000. Trial judge said that accused's record was not record of someone who had rea- sonable prospects for rehabilita- tion and that there was no reason to believe that accused had pros- pects for rehabilitation. Court disagreed that this conclusion was too harsh. Although there were longer and more serious criminal records than accused's, armed robbery/unlawful con- finement offences for which he was convicted in 2000, and espe- cially facts underlying those con- victions, and imminent criminal activity which led to 2012 convic- tions, taken together, amply justi- fied trial judge's bleak conclusion on rehabilitation. R. v. Blazevic (Nov. 18, 2015, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Pardu J.A., File No. CA C55656) Deci- sion at 99 W.C.B. (2d) 398 and 99 W.C.B. (2d) 387 were affirmed. 126 W.C.B. (2d) 611. Charter of Rights ENFORCEMENT OF RIGHTS Right to counsel was breached but breach was not deliberate Accused sought to exclude his confession to participation in home invasion of elderly person on grounds his right to coun- sel was denied. Accused sought to contact certain counsel who was in court and spoke to offi- cer without speaking to counsel approximately 40 minutes later. Officer testified that he did not believe accused wanted to speak to any counsel at that point but acknowledged that accused did not specifically say that he did not want to talk to requested counsel. Application dismissed. Charter right to counsel was breached as accused did not ex- pressly waive right to counsel but breach was not deliberate. Forty-minute period may not have been unreasonably short in circumstances but fact that there was no follow up call to counsel's office and apparently no effort to get cell number in circumstances where accused was completely dependent on police to make contact with counsel amounted to breach. Evidence not excluded despite its significance due evi- dence being reliable in relation to particularly heinous type of crime. Robbing elderly and vul- nerable complainants by forced entry into their homes violated sense of safety and security and could have negative consequenc- es for complainants long after crime had been committed. R. v. Dufault (Dec. 15, 2015, Ont. S.C.J., Martin James J., File No. 14-1333) 126 W.C.B. (2d) 536. Disclosure GENERAL Defence established that child protec- tion records were likely relevant to credibility and reliability of children Two accused charged with al- legedly abusing, physically, their two children. Charges included assaults with weapons includ- ing wooden type kitchen utensil, black leather belt, mustard bottle and wooden spoon. Records in question had been deposited with court and remained sealed. Accused alleged that records in question were likely relevant to issue at trial, namely, cred- ibility and reliability of children complainants. Records would show, submitted accused, that children had history of making false allegations of abuse. Ac- cused, represented by different counsel, jointly applied to court for disclosure of records in pos- session of Bruce Grey Child and Family Services (BGCFS), both before and after alleged offences dates, related to allegations made by children that they were abused by other persons. Court to unseal records and review them then give to counsel judicial summary of those records before reassem- bling to address second stage of application, namely, whether all or some of records ought to be disclosed to defence. Court rejected defence assertion that records were likely relevant to competence of children, or either of them, to testify. Defence was confusing issue of competence with those of credibility and reli- ability. Defence had established on balance of probabilities that records were likely relevant to credibility and reliability of chil- dren and had potential impeach- ment value, regardless of fact that some of records had already been disclosed to counsel for one of accused in ongoing child pro- tection proceeding. It was clear from evidence that children had made similar allegations against other persons, including foster parents and another individual. There was case specific evidence that those similar allegations against other persons had been recanted, at least partially, by children. There was case specific evidence that those similar al- legations against other persons were false, or at least they were investigated and determined to be unfounded. R. v. C. (J.) (Dec. 15, 2015, Ont. S.C.J., Conlan J., File No. CR-14- 265-0000) 126 W.C.B. (2d) 548. Evidence IDENTITY OF ACCUSED Jury could legitimately con- clude on basis of all evidence that accused was killer Accused was convicted of sec- ond-degree murder of elderly deceased who was severely beaten to death. Identity of killer was at issue with accused initially ly- ing to police about being at de- ceased's residence but was caught spending over $1,400 from her credit card. Accused argued trial judge erred in failing to caution against reasoning by propensity, in failing to give limiting instruc- tion with respect to demeanour evidence and in inviting jury to rely upon accused's callousness to find he was type of person to have committed this offence. Accused further argued trial judge further erred in refusing to give "no pro- bative value" instruction on some of post offence conduct. Accused appealed. Appeal dismissed. In circumstances where identity of killer was in issue, trial judge was not required to tell jury that, be- cause of repugnant nature of his conduct after killing, they could not infer that accused committed murder. Jury could legitimately conclude that accused's use of deceased's credit card after kill- ing established that he had been in her apartment at time of kill- ing in addition to fingerprint he left there in victim's blood and in combination with all of evidence established that he was her killer. It was for jury to decide whether evidence of accused's post-of- fence conduct was related to com- mission of offence charged rather than to something else and if any weight should be accorded to evi- dence in final determination of guilt or innocence. R. v. Hamade (Nov. 20, 2015, Ont. C.A., MacPherson J.A., Tull- och J.A., and Pardu J.A., File No. CA C56253) 126 W.C.B. (2d) 569. Murder FIRST DEGREE MURDER No error in trial judge's charge to jury on mens rea for first degree murder Accused planned to rob clerk after night of drugs and alcohol when his plan went awry. Ac- cused dragged clerk down stairs causing her to fall, after which accused prevented her from get- ting up and started strangling her with headscarf she had been wearing. Clerk continued mak- ing some noise causing accused to punch and kick her in head four or five times shattering her upper and lower jaw bones, breaking her nasal bone and par- tially tearing off her ear. Accused stopped attack after clerk stopped making noise and she died two days later. Accused was willing to plead guilty to manslaughter but was convicted by jury of first degree murder. Accused alleged trial judge erred by leaving un- lawful confinement to jury as basis for first degree murder; er- roneously gave jury impression that accused conceded that he had intent required for murder and; did not appropriately relate relevant evidence to mens rea issue in his charge. Accused ap- pealed. Appeal dismissed. Trial judge presented all relevant issues to jury and essentially took first definition of intent of "means to cause death", away from jury, likely because of accused's testi- mony that he did not intend to cause death. Trial judge properly instructed jury to focus on sec- ond branch, meaning to cause bodily harm likely to cause death, which was favourable to accused, as it would have been open to jury to infer from his acts that accused had requisite intent to kill despite his denials. R. v. Smith (Dec. 2, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., John Laskin J.A., and G. Pardu J.A., File No. CA C57351) 126 W.C.B. (2d) 568. Trial CHARGE TO JURY Trial judge erred in instruc- tion on provocation Jury convicted accused of second degree murder for strangula- tion death of his pregnant sexual partner. Accused testified at trial that he choked deceased causing her death after heated argument about pregnancy caused him to "snap". Trial judge leaving de- fence of provocation based on sudden reaction to angry out- burst of deceased. Appeal from conviction allowed and new trial ordered. Trial judge erred by in- structing jurors to consider re- spective sizes and athletic build of accused in considering ordi- nary person component of prov- ocation. Accused's strength not characteristic bearing inherent relevance to degree of self-con- trol expected of ordinary person. Accused's provocation claim was rage-based rather than fear- based. Accused not claiming re- action to deceased was justified or reasonable. R. v. Hill (Sep. 15, 2015, Ont. C.A., Doherty J.A., E.E. Gillese J.A., and D.M. Brown J.A., File No. CA C55423) Decision at 96 W.C.B. (2d) 111 was reversed. 126 W.C.B. (2d) 551. Weapons PROHIBITION ORDERS In unusual and unique circum- stances, there was no evidence upon which weapons prohibition order could properly be made Accused sentenced for assault. Accused applied for leave to ap- peal sentence, particularly weap- ons prohibition order. Leave to appeal granted; appeal allowed; weapons prohibition order de- leted; and term of probation order prohibiting possession of weapons deleted; otherwise, sen- tence stood. Trial judge did not have benefit of much of evidence relevant to suitability of firearms prohibition orders. Summary conviction appeal court had evi- dence and upheld orders made at trial. In unusual and unique circumstances of this case, court was satisfied that there was no evidence upon which order could properly be made. Court emphasized following: assault was very minor and accused received conditional discharge; accused had no record, no weap- on was involved, incident was isolated one involving alterca- tion with strangers on roadway, accused used his firearms ex- clusively for competitive shoot- ing, was very alive to and well- schooled in all matters relating to safe use of firearms; and there was no suggestion that accused had not always fully complied with all of restrictions relating to possession, transfer and use of firearms. Court accepted that accused had manifested some anger control issues. Accused had, however, addressed those issues by taking anger manage- ment course. Court noted as well that accused's anger control problems had not manifested themselves in any prior crimi- nal conduct much less conduct involving firearm. Court also considered that in view of ac- cused's long-time participation in competitive shooting require- ment that he dispose of all of his weapons when prohibition order was made was particularly puni- tive in accused's unique circum- stances. R. v. Lucchese (Dec. 11, 2015, Ont. C.A., Doherty J.A., S.E. Pep- all J.A., and M. Tulloch J.A., File No. CA C60172) Decision at 120 W.C.B. (2d) 113 was reversed. 126 W.C.B. (2d) 527.

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