Law Times

LAW TIMES / AUGUST 11-18, 2008 Inc. (Apr. 11, 2008, Ont.S.C.J., Daley J., File No. 61582/01) Or- der No. 008/108/024 (33 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS No error in assessment of seriousness of breach Accused driving in rented vehicle was pulled over by police officer and arrested for driving while his licence was suspended. Arresting officer searched vehicle, includ- ing two sealed boxes which were stored in cargo area. Large quan- tity of cocaine found in boxes. Accused applied under s. 24(2) of the Canadian Charter of Rights and Freedoms to have evidence excluded based on breaches of his ss. 8 and 9 Charter rights. Trial judge described officer's behav- iour as "brazen and flagrant", found accused was arbitrarily de- tained, search was not conducted in good faith and was unreason- able, and found that officer's ex- planation for stopping vehicle and detaining accused was "contrived and defied credibility". Trial judge did not exclude evidence, finding that breaches were extremely se- rious, but not in most egregious category of Charter breaches. Ac- cused appealed his conviction. Appeal dismissed (Cronk J.A. dissenting). Trial judge did not err in his assessment of serious- ness of breach. There was ample evidence to support conclusion that breaches were not most egregious. Officer's evidence did not reveal that he had carefully thought-out plan or practice to breach Charter. Moreover, from accused's perspective, effects of breaches were not particularly serious and effect of search on accused's privacy interest was not great because search was of car. Trial judge did not err in his con- sideration of effect of admitting or excluding evidence on reputa- tion of administration of justice. While his juxtaposition of "ar- resting officer's behaviour" with "criminality involved" may have been slight mischaracterization of Collins test, it was not error of law. Further, admitting evidence in this case did not amount to judicial condonation of police misconduct. Reasonable member of community could have found that excluding from evidence very large quantity of drugs as result of police conduct in this case would have brought administration of justice into greater disrepute than admitting evidence. R. v. Harrison (Feb. 11, 2008, Ont. C.A., O'Connor A.C.J.O., MacPherson and Cronk JJ.A., File No. C45780) Order No. 008/045/071 (41 pp.). RIGHT TO COUNSEL Right to counsel was withheld Accused sought to exclude state- ment and two firearms seized from his home. Accused was charged with unlawful possession and care- less storage of sawed-off shotgun. Police questioned accused immedi- ately after telling him of his right to counsel. Accused's right to counsel was withheld. There was violation of s. 10(b). The police also entered into accused's dwelling without warrant. Accused's statements were excluded as were seized firearms. R. v. Gebara (June 3, 2008, Ont. S.C.J., Ray J., File No. 05-G12802) Order No. 008/157/045 (20 pp.). Evidence HEARSAY Accused charged with sexual as- sault. Crown applied to admit prior statements of complainant at accused's second trial. First trial ended in mistrial. Complainant became emotionally distressed during testimony at second trial and could not continue. State- ments sought to be admitted in- cluded: videotaped statement to police; preliminary inquiry testi- mony; and testimony from first trial. Application granted. Ne- cessity requirement established. Evidence of forensic psychiatrist that complainant unable to testify about offence due to depression and anxiety accepted. Requiring complainant to continue testify- ing could put health in serious jeopardy. Most reliable statement was evidence from previous trial, given inherent safeguards includ- ing full cross-examination of com- plainant. Evidence met threshold reliability requirement. Evidence could be fairly tested in context of evidence as a whole. Evidence also admissible under s. 715(1)(c) of Criminal Code. R. v. Antonatos (Apr. 23, 2008, Ont. S.C.J., Hackland J., File No. 06-G-6257) Order No. 008/119/202 (10 pp.). Complainant's evidence from first trial admitted under principled exception Accused was charged with sexual assault of his nephew allegedly taking place between 1994 to 2004. Crown brought applica- tion to have evidence of all three children be admitted as similar fact evidence. Other charges were against two nieces. Similar fact evidence went beyond suggesting accused had specific disposition to sexually assault young girls. Ev- idence was relevant to actus reus of offences. Trial was judge-alone so no moral prejudice would as- cribe to accused based upon trial judge's analysis. Crown's applica- tion was granted. R. v. B. (M.) (May 27, 2008, Ont. S.C.J., Spies J.) Order No. 008/168/086 (22 pp.). SIMILAR FACTS Similar fact evidence of children admitted in sexual assault trial Motor Vehicles LICENCES No jurisdiction to grant order as no interlock program established in Ontario CASELAW PROVINCIAL REGULATION Accused convicted of making left turn not in safety Trial of the accused for turn- ing not in safety, contrary to s. 142(1) of the Highway Traffic Act (Ont.). Charge resulted from a collision that occurred between a car driven by the accused and a motorcyclist. Motorcyclist died as a result of the collision. Pros- ecution alleged that the accused failed to first see that he could make a left turn in safety before he turned in front of and across the path of the oncoming mo- torcyclist. Accused claimed he had been prudent in looking and waiting for oncoming traffic. He proceeded cautiously and only initiated the turn when he rea- sonably believed it was safe to do so. Accused also claimed he did not see the motorcyclist until it was too late to react. He started to make his turn when the light for himself and the motorcyclist changed to amber and he believed that the motorcyclist would stop for that light. Accused convicted. Offence set out in s. 142(1) was a strict liability offence. Prosecu- tion proved the actus reus of the offence. Accused had to prove the defence of due diligence on a bal- ance of probabilities. He was not due diligent in first seeing that he could make the turn safely before he actually did so. Accused was a new and inexperienced driver who acted unlawfully and neg- ligently in driving his brother's motor vehicle without having a qualified driver beside him in the front seat, as he was required to do by the terms of his licence. He was negligent in turning left when his view was obstructed. He was also negligent in not seeking the motorcycle when it was visible to him at 39 meters east of his posi- tion. These circumstances dem- onstrated that he did not take all reasonable steps to first see he could turn in safety. Due to these circumstances, the accused's be- lief in a mistaken set of facts, which if true, would render his act of turning innocent, was not reasonable. Accused did not have the right of way when the light changed to amber. If the motor- cycle had been unable to stop safely it would have had the right to proceed into the intersection with caution and would have the right of way. Accused, therefore, should not have made the turn since he could not be certain that approaching vehicles would have stopped when the light changed to amber. Consequently, the ac- cused failed to establish that he took all reasonable care to ensure that he could make the turn. R. v. Hamid (May 26, 2008, Ont. C.J., Quon J.P.) Order No. 008/150/005 (51 pp.). Appellant pleaded guilty to im- paired operation and failing to remain at scene of accident. Ap- pellant had two year driving pro- hibition imposed. Appellant then sought to have s. 259(1.1) order to permit him to drive. While ap- pellant could appeal the sentence, there was no jurisdiction to grant order as there was no interlock program established in Ontario. All that had changed was legisla- tion permitting creation of pro- gram. Appeal was dismissed. R. v. Kaczala (Mar. 14, 2008, Ont. S.C.J., Durno J., File No. 1844/07) Order No. 008/079/038 (13 pp.). Sentence PREVENTIVE DETENTION Sex offender declared long-term offender Application by the Crown to de- clare the accused a long-term of- fender. It was brought after the accused was convicted of assault, sexual assault causing bodily harm, uttering a death threat and attempt- ing to choke the complainant with intent to commit the sexual assault. Complainant was a prostitute who the accused picked up and abused. Accused was 40 years old and had an extensive criminal record that www.lawtimesnews.com included similar offences. He had completed high school and was steadily employed except when he missed work due to incarcera- tion or because of substance abuse. Crown's psychiatrist and that of the accused concluded that the accused suffered from a personal- ity disorder, multiple paraphilias and substance abuse or depen- dence disorder. Both agreed that the accused met the criteria for a dangerous offender designation from a psychiatric perspective. Ap- plication allowed in part. Accused was declared a long-term offender. There was a reasonable possibil- ity of eventual control of the risk in the community if a sentence of seven years was imposed, to be fol- lowed by a long-term supervision order of 10 years. Determinate portion of the sentence would take the accused into his late forties. By then age would decrease the risk of him reoffending. At the end of the supervision period his risk of com- mitting a stranger rape would be low. During the supervision pe- riod the accused would have to follow a treatment plan recom- mended by his psychiatrist. Such would include Antabuse drugs, to curb his consumption of alco- hol, and antiandrogen drugs to reduce his sex drive. Accused was also subject to a lifetime weapons prohibition order and had to pro- vide a DNA sample. R. v. Smith (May 20, 2008, Ont. S.C.J., Garton J., File No. 0050/05) Order No. 008/157/035 (41 pp.). Application by the Crown to find the accused a dangerous offender. Accused was a diagnosed psycho- path who spent a considerable Diagnosed psychopath declared dangerous offender PAGE 19 part of his 33 years in custodial settings. He spent 13 months in secure custody as a young offender and almost 10 years in custody as an adult. When he was out of cus- tody he accumulated a criminal record of significant proportions, consisting primarily of offences of violence. Accused had not even completed grade eight. He never had a steady job. Accused had an alcohol and drug abuse problem. Application was brought after the accused pleaded to aggravated assault by wounding. Two well- qualified forensic psychiatrists testified. One was for the Crown and the other was called by the accused. Both agreed that the ac- cused was a psychopath. Neither would take the accused's word for anything. Crown's expert did not believe that the accused could be treated in the community but the accused's expert believed he could be. Application allowed. Court was satisfied beyond a reasonable doubt that the accused met the criteria to be designated a danger- ous offender. It was appropriate and necessary for the protection of the public that he was so designat- ed. Accused presented a high risk of reoffending. Court preferred the analysis of the Crown's expert and concluded that there was no reasonable possibility that the risk that the accused presented could be controlled in the community. Accused was not amenable to su- pervision and would not comply with conditions. He ignored rules at will, did as he pleased, lied with facility and was completely un- fazed at the possibility of being found out. R. v. P. (J.) (June 9, 2008, Ont. S.C.J., Bellamy J., File No. CR04-PR00635) Order No. 008/162/210 (44 pp.). LT Obtain Copies of Judgments to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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