Law Times

Law Times • may 30, 2016 Page 15 www.lawtimesnews.com CASELAW of ability to defend himself be- cause of financial hardship. If costs had been appropriate, sig- nificantly more modest amount would have been sufficient to ac- complish purposes of order for costs in this context (i.e. to con- trol of trial process, discipline f lagrant and marked failures to disclose and provide some ele- ment of indemnity for costs ac- tually incurred). Costs awarded went well beyond any account rendered to Legal Aid Ontario, another public institution. R. v. Singh (Feb. 8, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and G. Pardu J.A., CA C58840) Decisions at 121 W.C.B. (2d) 454 and 121 W.C.B. (2d) 536 were reversed. 128 W.C.B. (2d) 453. Mental Illness DETENTION Board's acceptance of unre- dacted statements into evidence did not taint its disposition Patient was found not criminally responsible on account of mental disorder on charges of attempt- ing to commit murders while using firearm; uttering threat to cause death or bodily harm; en- gaging in threatening conduct to person or family members (x4); breaking and entering with intent; resisting or obstructing public or peace officer; posses - sion of firearm in motor vehicle (x2); possession of weapon for dangerous purpose; and rob- bery using firearm. Board's ini- tial disposition required patient to be detained in general foren- sic unit with accompanied com- munity privileges. At first an- nual review hearing, following joint submission, board ordered patient to be transferred from forensic unit to Hospital, since treatment impasse appeared to have been reached in forensic unit. Hospital and patient pre - sented joint submission as to appropriate disposition, which continued detention order but allowed patient to reside in ap - proved accommodation. Board rejected proposed disposition that patient be permitted to live in community in approved ac - commodation. Board did not accept doctor's recommended disposition and stated that it be- lieved that public safety would be compromised with term per- mitting community living at any time over next 12 months based on patient's relatively short stay at hospital. Patient appealed board's disposition. Appeal dis - missed. Hearing did not proceed on basis of true joint submission. There were number of contextu- al factors in this case that made it clear to board and to parties that some issues were contested. Board saw its task as working from its prior disposition. But that prior disposition, only five months previous, found patient remained significant threat. Board needed evidence before departing from its prior un - derstanding. Patient could not reasonably have expected that board would simply adopt pro- posed disposition. Board gave adequate notice to parties that it had concerns with proposed disposition in any event. Notice was adequate, procedurally fair and in compliance with Osawe. While victim impact statements contained impermissible ma - terial that was inf lammatory in nature, board's acceptance of unredacted statements into evidence did not taint its dis - position. There was no reason to assume board did not simply disregard non-compliant por- tions in its deliberations. Board's disposition was reasonable and fully supported by record. Klem, Re (Feb. 12, 2016, Ont. C.A., Lauwers J.A., David Watt J.A., and C.W. Hourigan J.A., CA C60756) 128 W.C.B. (2d) 490. Obscenity CHILD PORNOGRAPHY Misapprehension of evidence did not fatally infect convictions on child pornography counts Accused was convicted under Criminal Code and Customs Act (Can.) for offences involv- ing child pornography. Crown conceded that trial judge misap- prehended evidence of computer expert that there was "Sort Need- ed" folder in main "Pictures" folder as well as in "Guy Pics" folder. Accused appealed his convictions. Appeal dismissed. This error did not fatally infect convictions on child pornogra - phy counts. Trial judge identified other similarities between struc- tures of files and folders accused acknowledged creating. Accused also admitted accessing "Guy Pics" subfolder which contained several folders containing sexu - ally explicit materials including "Text Reading" subfolder that contained contraband mate- rial. When accused opened "Guy Pics" subfolder, "Text Reading" subfolder would have been ap- parent. Submission that trial judge could only convict if there was concrete evidence that ac- cused had looked at contents of "Text Reading" subfolder was rejected. Trial judge rejected accused's explanation for how contraband found its way on to computer. That finding, com - bined with evidence of organ- isation and nature of folder files and subfolders and evidence that "Text Reading" subfolder was obvious when "Guy Pics" folder was opened, was sufficient to jus - tify trial judge's inference that ac- cused had knowledge of contents of "Text Reading" subfolder. R. v. Phung (Feb. 26, 2016, Ont. C.A., Robert J. Sharpe J.A., M.L. Benotto J.A., and Grant Huscroft J.A., CA C59147) 128 W.C.B. (2d) 463. Preliminary Inquiry DISCHARGE OF ACCUSED Preliminary inquiry judge commit- ted jurisdictional error in discharg- ing accused on forgery counts Accused, husband and wife, operated medical clinic, with husband being licensed medical practitioner and his wife being nurse. Charges arose out of what was alleged to be abuse of Health Canada's Medical Marihuana Li- censing Scheme. Crown alleged that accused operated lucrative fraudulent scheme that involved submission of forms required un - der Marihuana Medical Access Regulations (Can.) for patients who sought access to marihuana for medical purposes. At end of preliminary inquiry, accused were committed for trial on fraud and possession of proceeds counts, as well as on account of trafficking in controlled sub - stance as other indictable offence in respect to same transaction, but were discharged on forgery counts. In Superior Court of Jus - tice, reviewing judge concluded that Crown had established juris- dictional error on basis that pre- liminary inquiry judge had failed to consider whole of evidence ad- duced at inquiry against essential elements of offence of forgery. Accused appealed from order quashing their discharge at con - clusion of preliminary inquiry on several counts of forgery and remitting case to preliminary inquiry judge for consideration of whole of evidence including essential elements of offence of forgery. Appeal dismissed. Re - viewing judge did not err in con- cluding that preliminary inquiry judge committed jurisdictional error in discharging accused on forgery counts. Jurisdictional er - rors were three-fold. As result of his failure to properly define es- sential elements of forgery, pre- liminary inquiry judge conclud- ed that there was no evidence that accused had made "false docu- ment" in completing various Medical Practitioner's Forms in province in which husband was not authorized to practise medi - cine. This amounted to failure to test evidence adduced against actual elements of forgery. Pre- liminary inquiry judge failed to consider whole of evidence adduced in reaching his conclu- sion to discharge accused. Judge's focus was on textual analysis of Medical Practitioner's Form, not evidence adduced on inquiry. In resting his conclusion to dis - charge accused in part at least be- cause of "difficulty" in drawing inferences proposed by Crown, preliminary inquiry judge ex- ceeded his jurisdiction. Whether inference is easy, hard or difficult to draw is of no moment to de- cision on committal. Provided inferences advanced by Crown are within field of available in- ferences and provide evidence of each essential element of offence, committal follows. R. v. Kamermans (Feb. 9, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C60752) Deci - sion at 122 W.C.B. (2d) 367 was affirmed. 128 W.C.B. (2d) 502. Release From Custody FAILURE TO APPEAR Not essential that original arrest- ing officer provide in-court identification of accused Accused was convicted of two counts of failing to appear. At trial Crown did not lead evi- dence from police officer who issued promise to appear. In- stead, Crown called officer who received accused when he later turned himself in and placed him under arrest. Crown also relied on documentary evi - dence, being signed promise to appear and two certificates that addressed accused's failure to appear. After Crown closed its case defence counsel moved for directed verdict on basis that there was no proof of identity of person named in promise to appear. Trial judge denied ap - plication for, because there was signature on promise to appear before court, there was some evidence on accused's identity. Accused appealed conviction. Appeal dismissed. At time of di - rected verdict motion there was evidence upon which reasonable jury could return guilty verdict. Onus was on Crown to prove that person named in informa - tion and who was before court was person who was subject of promise to appear. There were different ways this fact could be established. It was not essential that original arresting officer provide in-court identification of accused where other circum - stantial evidence provided evi- dence on this issue. In this case, there were several different com- ponents of evidence which, taken together, afforded some evidence that accused was person identi- fied in promise to appear. Judge, therefore, did not err in dismiss- ing motion for directed verdict. R. v. St. Pierre (Mar. 1, 2016, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and M.L. Benotto J.A., CA C61042) 128 W.C.B. (2d) 414. Statutes INTERPRETATION Presumption against retrospec- tive application of sentencing sanction to fraud offenses Trial judge convicted accused of theft and fraud for depleting assets of elderly complainant's estate while exercising power of attorney. Trial judge imposed ef - fective jail sentence of two years less one day for fraud and theft convictions. Trial judge made order pursuant to s. 380.2(1) that accused not ever to seek or con - tinue employment or volunteer work giving him control over money or real property. Section 380.2(1) applied only to fraud offences and coming into force after elements of fraud had been committed by accused. Appeal from sentence allowed in part and s. 380.2(1) order struck. Jail sentence was fit in light of egre - gious, ongoing breach of trust against very vulnerable victim. Presumption against retro- spectivity applied to s. 380.2(1). No suggestion in language of s. 380.2(1) of parliamentary inten- tion to apply sanction to frauds committed before enactment of section. Section 380.2(1) was punishment imposed as conse - quence of conviction and pre- sumption against retrospectivity therefore applied. R. v. Hooy- er (Jan. 19, 2016, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M. Tulloch J.A., CA C59492) 128 W.C.B. (2d) 515. Trial CHARGE TO JURY Appeal from conviction allowed in part where charge to jury deficient on two counts Accused was convicted by jury of offences of conspiring to import drugs, possess proceeds of crime and offering to transfer firearm. Crown's case being based largely on intercepted communications between accused and others. Crown successfully arguing two intercepted calls between ac - cused and unknown person was arrangement to transfer firearm. Appeal from conviction allowed in part and new trial ordered on two firearms counts. Jury charge was adequate and sufficiently related evidence to issues on all but two firearm counts. Charge on firearms counts was deficient as failed to set out law on offence of transferring by offer. Jury not instructed that law required ac - cused meant offer to be genuine. Jury's questions evincing confu- sion and struggle with elements of firearms offences. R. v. Duncan (Dec. 31, 2015, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and K. van Rens - burg J.A., CA C56046, C55993) Decision at 101 W.C.B. (2d) 568 was varied. 128 W.C.B. (2d) 527. Weapons LICENCES AND PERMITS Purpose of Firearms Act, 1995 regime was to limit access to dangerous weapons Registrar of Firearms refused ac- cused's application to re-register two handguns in 2007. Appli- cant had registered handguns under Criminal Code provisions in 1980 and 1986. Handgun licences having been grandfa - thered pursuant to s. 12(6) of Firearms Act, 1995 giving ap- plicant until 2002 to re-register. Applicant failed to apply for re- registry until 2007 and hand- guns unlicensed from 2003 to 2007. Provincial Court judge upholding Registrar's refusal as applicant's handguns not con - tinuously registered pursuant to Firearms Act. Applicant was granted leave to appeal Superior Court decision upholding Pro - vincial Court judge. Appeal dis- missed. Registrar's decision rea- sonable as applicant had not tak- en advantage of re-registration provisions of Firearms Act, 1995. Registrar required to refuse ap- plicant's application as he was ineligible to hold licence under s. 12(6) due to lapse in registration of handguns. Result was desir - able as purpose of Firearms Act, 1995 regime was to limit rather than expand access to dangerous weapons. R. v. Vivares (Jan. 5, 2016, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Par - du J.A., CA C60254, M44923) 128 W.C.B. (2d) 529.

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