Law Times

Law Times • may 2, 2016 Page 15 www.lawtimesnews.com occasion, he had blue and white box which surveillance team observed accused take from P's vehicle. Accused unsuccessfully applied to exclude evidence of marihuana and cocaine found in box. Accused appealed convic - tions. Appeal dismissed. Police did not lack reasonable and prob- able grounds for accused's arrest independent of evidence ille- gally obtained in building. Trial judge properly concluded that, even after excluding informa- tion gathered during warrantless entries into building, combined information from informants, totality of investigation, collec - tive observations by police of ac- cused's vehicle and location, and interaction between accused and P, satisfied both subjective and objective components of test for reasonable and probable grounds for arrest. R. v. Labelle (Feb. 8, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C58138) 128 W.C.B. (2d) 136. Charter of Rights RIGHT TO COUNSEL Statutory compulsion to answer questions at border does not constitute detention Border services officer was suspi- cious when accused told her that she had brought fruit juice into Canada and upon observing un- usual behaviour of accused as she removed cans of fruit juice from her luggage. Officer conducted more intrusive inquiry and tested juice cans for drugs. Cans tested positive for cocaine. Accused was arrested for importing cocaine and officer gave accused caution and right to counsel. Accused sought to exclude statements to officer on basis that they were ob - tained in violation of ss. 7 and 10 of Charter. Statements admissi- ble. There was no Charter breach. Statutory compulsion to answer questions at border does not con- stitute detention under s. 10(b) of Charter. Person is not detained when border official asks rou- tine questions and conducts rou- tine searches. Accused was not detained simply because of her look-out status and was subjected to same routine questioning and searches as anyone else referred for secondary inspection. Officer had strong particularized suspi - cion to warrant more intrusive form of inquiry after showing accused X-ray images of cans and accused asked "What's in it?." Only at that point was accused was detained and ss. 7 and 10(b) rights were engaged. R. v. Sinclair (Feb. 3, 2016, Ont. S.C.J., Barnes J., CRIMJ(F)354/10) 128 W.C.B. (2d) 140. SEARCH AND SEIZURE Dog sniff was conducted as part of routine border inspection Accused arrived at international airport on f light from Guyana. Sniffer dog "alerted" border ser- vices officer ("BSO") by sitting down near accused in pre-pri- mary inspection area line up. As result, accused was referred for secondary customs inspection once she retrieved her checked baggage, in which cocaine was found. Accused was charged with importing cocaine. At trial, accused claimed that she did not know or suspect that cocaine was concealed in suitcase she had been given. Accused brought ap - plication to exclude evidence on basis of several alleged breaches of Canadian Charter of Rights and Freedoms. Application judge accepted that accused's s. 10(b) right to counsel had been vio - lated and that border service of- ficer violated accused's s. 8 rights when she conducted post-arrest strip search. However, applica- tion judge concluded initial sniff- er dog search at border was not Charter breach and second strip search conducted by R.C.M.P. after accused was transported to cells at airport detachment did not violate her s. 8 right. Appli - cation judge excluded some, but not all, of challenged evidence. After trial by different judge and jury, accused was convicted and sentenced to five years and nine months' imprisonment, less two months' credit for pre-trial custody. Accused was convict - ed. Accused appealed. Appeal dismissed. Person's reasonable expectation of privacy when en- tering Canada at international border crossing is different from when travelling within Canada. Dog sniff in this case was con - ducted as part of routine border inspection, intended to prevent and control importation of illicit substances into country. Such routine border searches, when carried out in reasonable man - ner, cannot be said to encroach on traveller's reasonable expec- tation of privacy and therefore do not violate s. 8. Dog sniff was deployed by BSO as part of rou- tine check of passengers entering Canada on f light known to carry drugs and appellant was not even aware of dog alert. Dog sniff did not violate accused's s. 8 Charter rights. Second strip search was also justified. R. v. Jackman (Feb. 11, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., John I. Laskin J.A., and L.B. Roberts J.A., CA C57678) 128 W.C.B. (2d) 127. Disclosure REMEDIES Any issues related to alleged breach of s. 7 of Charter would have to be addressed on appeal Accused was found guilty of sexual offences by jury. Accused alleged non-disclosure of coun- selling records relevant to com- plainant's credibility. Before sen- tencing, accused applied for leave to enter voir dire on issue of ma- terial non-disclosure and related relief, including recommenda- tion that Attorney General direct stay of proceedings pursuant to s. 579(1) of Criminal Code. Appli- cation dismissed. Defence coun- sel was clearly aware that there were missing pages from records before complainant testified. Crown had advised that efforts to obtain missing pages were unsuccessful. Defence counsel did not pursue available rem - edies. Determination of counsel to conduct cross-examination of complainant without missing pages was well-considered and explicit. Court must now accept and act on verdicts as returned by jury. Court was functus of - ficio. Authority of court to stay proceedings based on abuse of process was distinct from Attor- ney General's authority to direct stay. Not court's role to direct or recommend how Attorney Gen- eral should exercise its discre- tion and authority. Any issues related to alleged breach of s. 7 of Canadian Charter of Rights and Freedoms would have to be ad - dressed on appeal. Court could not embark on inquiry as to whether trial was unfair related to mitigation of sentence. R. v. B. (P.) (Jan. 14, 2016, Ont. S.C.J., B.P. O'Marra J., CR- 14-10000708-0000) 128 W.C.B. (2d) 135. Evidence WITNESSES Application to compel Crown to call witnesses was granted Accused's trial on charges of second degree murder and ag- gravated assault was about to be- gin. Central issue was whether accused acted in self-defence. Court ruled that defence could elicit exculpatory evidence from certain Crown witnesses. Crown announced it was no longer going to call those witnesses. Defence brought application to require that Crown call those witnesses. Application granted. This was ex - ceptional case where court could direct that witnesses be called by Crown. Refraining from calling reliable evidence on basis that it could assist accused was not per - missible Crown strategy. Three of witnesses were police officers with evidence pertaining to scene of in- cident, and other was civilian wit- ness who could testify about res gestae statements of accused. De- fence could call these witnesses, but this would disadvantage de- fence, which could not cross-ex- amine its own witnesses. Decision of prosecution to call or not call certain witnesses was matter of Crown tactics, reviewable under court's trial management author - ity. There was concern that Crown strategy could adversely affect tri- al fairness. Narrative heard by jury would be missing several critical pieces. Having trial judge call evi- dence was not preferred remedy; more appropriate remedy in this jury trial was to require Crown to call witnesses. R. v. Hillis (Jan. 15, 2016, Ont. S.C.J., Renee M. Pomer - ance J., CR-14-3232) 128 W.C.B. (2d) 146. Sentence CHILD PORNOGRAPHY Accused sentenced to nine months' imprisonment for pos- session of child pornography Accused was found to have had 5,920 photographs and 588 vid- eos of child pornography on his computer and on CD's, DVD's and USB f lash drives. Accused was found guilty of possession of child pornography. Accused sentenced to nine months' im - prisonment, plus three years of probation. Mitigating factors included accused being first time offender, that he was age 65 with only this one blemish on his record, and that those who knew him said that offence was shockingly out of character. Accused was at low risk to of - fend in sexual manner involv- ing contact with or direct visu- alization of children and low moderate risk to re-offend in sphere of pornography. Accused was willing to obtain treatment. Aggravating factors included quantity of child pornography, and images including both pre- pubescent and early pubescent children. Evidence was that ac - cused likely suffered from pe- dohebephilia. Offence was one against children. Imprisonment of 18 months sought by Crown exceeded what was required to accomplish sentencing princi - ples. Because of size of collection of child pornography, sentence had to be more than six months minimum. R. v. Lysenchuk (Feb. 9, 2016, Ont. S.C.J., D.C. Shaw R.S.J., Thunder Bay CR-13-0072) 128 W.C.B. (2d) 170. DISCHARGE Reasons for not imposing condi- tional discharge were not open to appellate intervention Accused was convicted of fraud not exceeding $5,000, for install- ing skimming device on bank machine, and was sentenced. Accused contended that he should have been discharged. Accused appealed sentence. Appeal dismissed. Although at first blush trial judge's comment about imposition of discharge not being in public interest after trial was somewhat troubling, it could not be ignored that judge imposed sentence on same date that he rendered judgment and heard submissions on sentence. This experienced judge was not "punishing" accused for having trial; such occurrence would have constituted clear error. Fair reading of reasons for sentence showed that judge directed him - self to why discharge was not in public interest. Landscape of of- fender's background and nature of offence were very much in sights of judge. Under all of cir- cumstances reasons of judge for not imposing conditional dis- charge were not open to appel- late intervention. R. v. Kulasingam (Feb. 17, 2016, Ont. S.C.J., H.K. O'Connell J., Newmarket 11- 09978-01) 128 W.C.B. (2d) 208. Trial CHARGE TO JURY Trial judge's charge to jury on motive was deficient Accused was suspect in two unsolved murders, which took place in 1983 and 2000. Police set up fictitious criminal organization, with goal of getting accused to confess to murders in "Mr. Big operation." Accused allegedly confessed to murders while working for fictitious group. Accused was charged and convicted of two counts of first-degree murder. Convictions were set aside on appeal. On re-trial for 1983 murder, mistrial was declared and charge later stayed. On re- trial for 2000 murder, accused was again convicted. After re- trial, Supreme Court of Canada ruled that confessions obtained in "Mr. Big operation" were presumptively inadmissible. Accused appealed conviction. Appeal allowed and new trial ordered. References made by Crown to 1983 murder could have prejudiced jury in their determination of guilt as to 2000 murder. Trial judge's charge to jury on motive was deficient, lending too much credence to Crown theory of case. Jury did not fully understand permitted use of certain evidence. Murder scene did not confirm witness's testimony as to accused's confession. Judge did not present key defence evidence to jury, making charge unbalanced. New trial was needed, having regard to important role of motive at trial. R. v. Jeanvenne (Feb. 5, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C57475) 128 W.C.B. (2d) 206. DIRECTED VERDICT Accused police officer charged with perjury and attempting to obstruct justice was not entitled to directed verdict of acquittal Accused was police officer who communicated by text messages with someone he believed to be new informant ("Source C"). Crown claimed that accused obstructed justice by encouraging new informant to plant firearm, that he provided false information in his sworn Information to Obtain and thereby committed perjury and that he obstructed justice by placing false sworn document before justice of peace in support of application for search warrant. Accused was charged with one count of perjury and two counts of attempting to obstruct justice. Accused brought application for directed verdict of acquittal. Accused convicted. Accused's version of events made no sense. Crown proved beyond reasonable doubt that accused committed offences as charged. Accused was not entitled to directed verdict of acquittal because there was evidence, which if believed by properly instructed jury acting reasonably, would justify convictions for these offences. R. v. Hansen (Jan. 29, 2016, Ont. S.C.J., Braid J., J-14-4855) 128 W.C.B. (2d) 156. CASELAW

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