Law Times

Law Times • June 6, 2016 Page 15 www.lawtimesnews.com CASELAW stantive offences of possession for purpose of trafficking and production. Accused was con- victed of conspiracy charges, and stays were entered on substantive counts. Accused appealed. Ap- peal allowed; conspiracy convic- tions quashed; stay lifted on sub- stantive counts. As to conspiracy, evidence did not give rise to in- ference of existence of common agreement, or mutual criminal objective, between accused, S and marijuana grow operators to produce marijuana or possess marijuana for purpose of traf- ficking. Trial judge found that accused knew his products were destined for marijuana grow op- erations, and that S was acting under his instructions. These findings were sufficient to sup- port conviction for aiding pro- duction of marijuana and aid- ing possession of marijuana for purpose of trafficking in relation to delivery of growing supplies to Montreal, where substantial grow operation was found with- in eight days of delivery. Accused loaded customer van with sup- plies, and grow operation was discovered at that customer's location within 30 days; convic- tion could be supported on basis of trial judge's findings. R. v. Nguyen (Mar. 3, 2016, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Pardu J.A., CA C56689, C57666) Decision at 105 W.C.B. (2d) 409 was reversed. Decision at 111 W.C.B. (2d) 224 was affirmed. 128 W.C.B. (2d) 577. PREVIOUS RECORD OF ACCUSED Trial judge deleted weapons and firearms convictions to ensure that propensity reasoning did not seep into deliberation process Trial judge was asked to ex- clude accused's convictions of attempted murder, weapons- related offences and all assault convictions, and to have robbery conviction described as convic- tion for theft. Trial judge deleted weapons offence and substi- tuted assault conviction for that of attempted murder. Accused was found guilty of possession of loaded prohibited firearm. Accused appealed. Appeal dis- missed. Despite conclusion that accused had attacked character of officer who located weapon, trial judge deleted all weapons and firearms convictions to en- sure that propensity reasoning did not seep into deliberation process. Trial judge did not err in characterization of nature of trial counsel's attack on officer. Trial judge's location of balance between probative value and prejudicial effect was entitled to substantial deference. R. v. Grizzle (Mar. 7, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and G. Pardu J.A., CA C58579) 128 W.C.B. (2d) 648. Fraud ELEMENTS OF OFFENCE Evidence was unequivo- cal that accused was active participant in fraudulent scheme with her husband Accused's business ran real estate investment firm. Two accused, husband and wife, were charged with two counts of defrauding public over $5,000 related to vari- ous real estate deals and to various loans that were given in exchange for promissory notes. Accused were each convicted on both counts. Accused wife appealed convictions and sentence. Appeal dismissed. On real estate fraud, trial judge found that accused and her husband repeatedly repre- sented to potential investors that they could make large sums of money with relatively small initial investments and that these claims were false. Trial judge found that accused was active participant in fraudulent scheme as she oc- cupied management or executive positions in various corporations involved in fraud. On promis- sory note fraud, trial judge found that while there was no evidence that female accused was directly involved in negotiation of prom- issory notes, there was evidence that she aided her husband. There was no error in trial judge's factual findings or reasoning. Verdict was not unreasonable. It could not be said that verdict was unsup- ported by evidence. Evidence was unequivocal that female accused was active participant in fraudu- lent scheme with her husband. She actively participated in mar- keting various fraudulent trans- actions and made statements in support of husband's credibility to prospective investors, in face of obvious misleading informa- tion. Female accused assisted with promotional materials that she knew were deceptive. There was clear evidence that she knew that promissory notes were useless, or at least that she was wilfully blind to their fraudulent nature, yet aid- ed her husband anyway. R. v. Dhanaswar (Mar. 1, 2016, Ont. C.A., M. Tulloch J.A., M.L. Benotto J.A., and L.B. Roberts J.A., CA C59461) De- cisions at 119 W.C.B. (2d) 492 and 119 W.C.B. (2d) 411 were af- firmed. 128 W.C.B. (2d) 590. Mental Illness GENERAL Jury rejected accused's men- tal disorder defence Not criminally responsible (NCR). Deceased woman was found dead in kitchen of home that she shared with accused, who was her only child. Ac- cused was found guilty of sec- ond degree murder. For sev- eral months prior to murder accused engaged in bizarre and alarming behaviour. Accused raised defence of mental dis- order under s. 16 of Criminal Code and NCR hearing ensued. Jury rejected accused's mental disorder defence and he was again found guilty of second degree murder. Accused was sentenced to life imprisonment with no eligibility for parole for 12 years. Accused appealed conviction. Appeal dismissed. Jury's verdict was reasonable and it was available to it on evi- dence before it. Fresh evidence provided by accused could not reasonably be expected to have affected verdict and accused did not adequately explain his fail- ure to tender post-conviction psychiatric assessment evidence at his NCR hearing. R. v. Richmond (Feb. 18, 2016, Ont. C.A., E.A. Cronk J.A., G.J. Epstein J.A., and Da- vid Brown J.A., CA C52528) 128 W.C.B. (2d) 544. Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Application to exclude medi- cal file on basis of violation of privacy rights under s. 8 of Canadian Charter of Rights and Freedoms was granted Accused and passengers were involved in accident. Passen- ger told police officer that ac- cused had consumed one beer and two drinks over extended three hour period. Accused was charged with causing bodily harm to his two passengers while driving with excessive blood alcohol. Investigator ob- tained accused's medical file. Accused brought application to exclude medical file on basis of violation of privacy rights un- der s. 8 of Canadian Charter of Rights and Freedoms. Applica- tion granted. It was impossible to conclude that officer had reasonable grounds to believe that accused committed of- fence, making it unreasonable search. There was no link be- tween presence of alcohol in driver's system involved in col- lision on one hand and concen- tration of alcohol on other. Po- lice officer admitted to having no training or expertise in field of distribution and elimination of alcohol from bloodstream, other than he had reasons to believe there was excessive al- cohol based on his police expe- rience. R. c. Quesnel (Mar. 8, 2016, Ont. S.C.J., Pelletier J., JA-14- 334) 128 W.C.B. (2d) 599. Sentence FRAUD AND FALSE PRE- TENCES Sentencing judge erred by not imposing penitentiary sen- tence for convictions on 25 counts of fraud over $5,000 Accused was involved in a ponzi scheme. Some victims lost their homes, some had de- clared bankruptcy, and some had had their retirement years ruined. Sentencing judge held that accused entered scheme for pure greed, but was victim of mastermind. Accused was sen- tenced to 23-month conditional sentence for 25 counts of fraud over $5,000. Crown appealed, sentence of four years' imprison- ment imposed. Sentencing judge erred in characterizing accused as victim, which was inconsis- tent with jury's verdict. Given size of fraud, lengthy time period over which it took place, motiva- tion of greed, breach of trust, and number of victims, penitentiary sentence was required. R. v. McGill (Feb. 22, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C60340) 128 W.C.B. (2d) 625. PRINCIPLES Failure of trial judge to state that principle of totality was considered disentitled decision to deference Accused was convicted of mis- chief, causing disturbance, and breach of probation. Accused claimed to be engaging in social experiment that resulted in sev- eral subway trains running late and causing delays. Global sen- tence imposed was 20 months in jail less credit for 8 months of pre-trial custody, followed by 2 years' probation. Accused submitted that trial judge erred in not providing reasons for making sentences consecutive and not concurrent, and failed to consider principle of total- ity. Accused appealed sentence. Appeal dismissed. Accused had lengthy criminal record involv- ing mischief and assault, dating back to 1986. At time of offences, accused was on probation for mischief, criminal harassment, failure to comply with proba- tion, and wilful promotion of hatred. Trial judge was entitled to impose consecutive sentences based on distinct legally pro- tected interests involved. While failure of trial judge to state that principle of totality was consid- ered disentitles decision to def- erence, sentence imposed was appropriate. Aggravating factor was that offence was motivated by bias, prejudice or hate based on race, national or ethnic origin or religion. Totality principle did not warrant interference with sentences imposed. R. v. Brazau (Mar. 7, 2016, Ont. S.C.J., B.P. O'Marra J., CR- 15-5000000600-AP) 128 W.C.B. (2d) 629. SEXUAL OFFENCES To rely on conduct which was subject of acquittal as aggravating factor would undermine finding of innocence associated with acquittal Accused was convicted of in- decent assault in relation to his daughter when she was between ages of seven to nine years of age. Indecent assault, which oc- curred sometime between 1978 and 1980, consisted of fondling and digital penetration of his daughter's vagina. Accused was first time offender who had four children, including complain- ant daughter. Accused incurred injuries in 1987 motor vehicle accident and suffered additional health issues including knee pain and diabetes. Accused ac- cepted limited responsibility for his actions and injury would af- fect complainant in serious way for rest of her life. Accused was sentenced to 18 months' im- prisonment to be followed by two years' probation, less credit of 47 days representing his pre- sentence custody of 31 days and 1.5 day credit for each day served. Terms of probation included that accused report to probation of- ficer as directed upon release, attendance of any assessment, counselling or treatment as di- rected, signing of any release necessary to verify assessment or counselling, never to be alone with anyone under age 16 with- out another adult present, and that he never attempt to commu- nicate with or come within 200 metres of complainant without her written consent. It would be inappropriate to take into ac- count finding that second sexual assault occurred. Alleged offence was tried and accused was found not guilty because of defect in indictment. To rely on conduct which was subject of acquittal as aggravating factor would under- mine finding of innocence asso- ciated with acquittal. There was nothing in present case to justify conditional sentence. Offence was egregious. It involved seri- ous breach of trust of accused's daughter, who was seven- to nine-years old. Level of blame- worthiness of accused was ex- tremely high. Custodial sentence was necessary to denounce un- lawful conduct and deter others from committing serious offenc- es. None of mitigating factors indicated that deviation from general requirement of term of incarceration was indicated. R. v. T. (M.D.) (Feb. 25, 2016, Ont. S.C.J., M.K. McKelvey J., Oshawa 13691/14) 128 W.C.B. (2d) 635. Trial CHARGE TO JURY Judge declined to include instruction on consciousness of innocence in charge to jury Accused, while operating taxi, struck and killed victim who was riding on skateboard. Accused was charged with second degree murder. Accused requested that judge include instruction on consciousness of innocence in charge to jury. Judge declined. Defence counsel was not pre- vented from calling evidence of after-the-fact conduct of accused at trial. Court declined to give instruction to effect that evi- dence constituted some evidence of consciousness of innocence. Regarding accused's call to 9-1- 1, it must have been obvious to him at time he hit victim that he could not escape undetected. Further, it would have been obvi- ous to accused that victim was gravely injured and it was in his best interests that accused call for emergency help. Call to 9-1-1 and question regarding victim's medical condition while being booked at police station were equally consistent with accused having accidentally hit victim or done so by accident. Accused's remark regarding whether vic- tim had struck taxi with his hand did not show that accused believed there could be trace evi- dence on vehicle. Evidence did not warrant instruction on con- sciousness of innocence. R. v. Ibrahim (Mar. 4, 2016, Ont. S.C.J., R.A. Clark J., 13- 70000774) 128 W.C.B. (2d) 647.

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