Law Times

December 12, 2016

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Law Times • December 12, 2016 Page 15 was over legal limit. Trial judge entered convictions on counts of impaired driving causing death and driving while disqualified, and stay on count of driving with excessive alcohol causing death. Accused appealed convictions. Appeal dismissed. Trial judge did not err in failing to consider exculpatory portions of parts of accused's 911 call, in which he said he crashed his snowmobile, and of his statement to police of- ficer at hospital. Those utterances were relevant to issue of identity of driver, and trial judge was entitled to accept or reject that evidence in whole or in part. Reading reasons as whole, trial judge did not found his conviction on some lesser standard than proof beyond rea- sonable doubt. Trial judge consid- ered many strands of circumstan- tial evidence and then assessed their cumulative effect. Piecemeal analysis invited by accused was inconsistent with approach to cir- cumstantial evidence required by authorities. Complaint that trial judge erred by permitting Crown to split its case by calling reply evidence failed. Evidence did not exceed what law permits. It was conceded that if impaired opera- tion convictions were sustained, conviction for driving while dis- qualified could not be impeached as unreasonable. R. v. Cook (2016), 2016 Car- swellOnt 16445, 2016 ONCA 794, David Watt J.A., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.); affirmed (2012), 2012 CarswellOnt 2492, 2012 ONSC 985, J.S. O'Neill J. (Ont. S.C.J.). OFFENCES Sexual assault Criminal Code process for admission of evidence of prior sexual history is mandatory Accused was convicted of sexual assault causing bodily harm, unlawful confinement, uttering death threat, threatening bodily harm while committing sexual assault, overcoming resistance by choking, and assault. Accused appealed convictions on basis of treatment of certain evidence under s. 276(1) of Criminal Code. Appeal dismissed. Complainant testified that she would not have consented to have sex with ac- cused because she had decided not to resume sexual activity within three months of having given birth, but she told hospital nurse that she had been sexually active and had intercourse two weeks before incident. Trial judge did not allow defence counsel to cross-examine complainant on that conf lict in her evidence un- der s. 276 of Code, holding that proposed cross-examination would go to credibility. During pre-trial period, accused applied under s. 276(2) for leave to cross- examine complainant on conf lict in her evidence about her will- ingness to engage in intercourse at that particular time but ad- journed it. Process prescribed by s. 276 for admission of evidence of prior sexual history is manda- tory. Since defence application under s. 276 was not pursued, that ground of appeal had no merit. R. v. Vassell (2016), 2016 Car- swellOnt 16564, 2016 ONCA 786, J.C. MacPherson J.A., Glo- ria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal Accused's application for appointment of counsel for appeal was granted Accused appealed his conviction and sentence for sexual assault. Accused brought application un- der s. 684 of Criminal Code for appointment of counsel for ap- peal. This was renewal of previ- ous application that was denied on financial grounds because accused`s girlfriend had salary of $31,000 and some assets at time of accused's bail application. Girl- friend filed further affidavit that clarified that even at time of appli- cation she no longer had $31,000 income and she was not able to provide financial assistance to accused. Based on this evidence accused asked court to reconsider his request. Application granted. Accused was not financially able to retain counsel and he did not have loved ones or family who could help him. It was in inter- ests of justice to grant application. Accused had arguable case on appeal. Accused also required as- sistance of lawyer to properly and effectively present his case. R. v. Lubin (2016), 2016 Car- swellOnt 16368, 2016 ONCA 780, K. Feldman J.A., In Cham- bers (Ont. C.A.). Accused's appeal from conviction was granted Accused was convicted of theft under $5,000 and possession of property obtained through crime. During night of February 18, 2015, motor vehicle was taken and around same time and vi- cinity, there was attempted break in of jewelry store and robbery of large amount of drugs from phar- macy. When motor vehicle was located, police found balaclava in car which led police to accused and drugs through DNA. To es- tablish accused's participation, Crown relied on DNA and close proximity of attempted break in and robbery to where motor vehicle was taken. Accused ap- pealed. Appeal granted. Based on limited evidence presented at trial, inference that accused was in contact with balaclava during theft of motor vehicle was not reasonable. Evidence of accused's DNA on balaclava only demon- strated likelihood accused wore garment at some point and fell short of connecting him to theft. Proximity was of no relevance given trial judge was not satisfied that accused was connected to other thefts. There was insuffi- cient evidentiary footing for trial judge to conclude accused's guilt was only reasonable conclusion available on totality of evidence. While evidence supported infer- ence that accused had worn bala- clava at some point, there was in- sufficient evidence to support in- ference that he was wearing it or otherwise was in possession of it at time motor vehicle was stolen. R. v. Grayston (2016), 2016 CarswellOnt 16439, 2016 ONCA 784, J.C. MacPherson J.A., Glo- ria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.). It was not in interests of justice to grant relief to accused Accused was convicted of assault with intent to resist arrest and of carrying concealed weapon. Ac- cused did not appear for hearing of his appeal from conviction because, without knowledge of either presiding judge or Crown, he was in custody pending sen- tencing so his. Accused's appeal to summary conviction appeal court (SCAC) was dismissed as abandoned. Five years later, ac- cused's application for leave to re- open his appeal was dismissed. Accused applied for leave to ap- peal. Application dismissed. Ap- plication alleged question of law in relation to decision of SCAC as required for appellate court to have jurisdiction to consider it. Order constituted either decision in respect of appeal under s. 822 of Criminal Code or under s. 834 of Code, such that appellate court had jurisdiction under either s. 839(1)(a) or (b) of Code. SCAC judge considered history of appli- cant and of proceedings such that this issue did not raise question of law. Relying on confusing mate- rials before her and oral submis- sions, SCAC judge treated appli- cation as request for extension of time. Reading materials as whole, application was more in nature of request to reopen appeal but test for extension was applied to it such that this ground of appeal involved question of law. It was not in interests of justice to grant relief to accused as, quite apart from extensive delay and lack of reasonable explanation for delay, merits of proposed appeal did not favour reopening of appeal. Re- cord before trial judge supported convictions. Trial judge provided self-represented accused with reasonable guidance throughout trial. While court had jurisdic- tion and question of law was raised, leave to appeal should not be granted. R. v. Tung (2016), 2016 Car- swellOnt 16440, 2016 ONCA 782, S.E. Pepall J.A., K. Feldman J.A., and Janet Simmons J.A. (Ont. C.A.). Counsel was assigned to represent accused on his appeal Accused, who had been in cus- tody since 2009, was convicted in 2013 along with co-accused S of two counts of second degree murder, two counts of kidnap- ping, and one count of commit- ting offence for organized crime. On his murder convictions, ac- cused was sentenced to two life sentences without eligibility for parole for 23 years. Sentencing judge found that S was "upper echelon" drug dealer and accused worked for his criminal organi- zation. Accused appealed and applied under s. 684(1) of Crimi- nal Code to have G assigned as his counsel for his appeal. Appli- cation granted. Appeal was suf- ficiently complex and important that it was in interests of justice for accused to have lawyer. Ac- cused swore under oath that he did not have financial means to retain lawyer. He applied for legal aid for his appeal but was refused on financial grounds. While government's resources to fund legal representation are limited, if it is in interests of jus- tice for appellant to have lawyer to argue appeal but he cannot afford to retain one, then denial of s. 684(1) order will adversely affect his fair appeal rights. Ac- cused was not candid about his sources of income before he was incarcerated seven years earlier, but his disclosure of his current financial means had been "clear and transparent". Accused had shown that he did not have suf- ficient means to obtain legal as- sistance and had no other source to obtain funding. Accused had met financial eligibility criterion. G ordered to be assigned to rep- resent accused on his appeal. R. v. Le (2016), 2016 Carswel- lOnt 16563, 2016 ONCA 798, John Laskin J.A., In Chambers (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from sentence Leave to appeal was granted regarding sentence Accused was convicted at trial of sexual assualt. Accused was sentenced to 8 months impris- onment and 3 years probation. Accused intended to appeal con- viction and sentence, but did not perfect appeal in time. Appeal court dismissed appeal as aban- doned. Appeal court dismissed's accused's application to re-open appeal. Accused applied for leave to appeal appeal court's order. Accused also sought leave to file fresh evidence. Application was allowed, with fresh evidence be- ing admitted in part. Appeal was allowed in part, as to sentence. There was no arguable ground of appeal on issue of conviction. However, sentence was affected by possibility of it being in inter- est of justice to reduce sentence. This was true as consequences of sentence for deportation were at issue. Leave to appeal was grant- ed only on issue of sentence. R. v. Mir (2016), 2016 Car- swellOnt 16639, 2016 ONCA 795, K. Feldman J.A., Janet Sim- mons J.A., and S.E. Pepall J.A. (Ont. C.A.). Trial judge did not examine accused's evidence piecemeal Age of accused. Accused appealed conviction and sentence for mur- der. Sentence appeal dismissed. Trial judge gave thorough reasons for finding that accused was at least 16 and half years old. Trial judge did not examine accused's evidence piecemeal, but looked at it cumulatively over period of time. He was statutorily entitled to consider accused's appearance, but did not give his assessment of that appearance too much weight. Accused's appearance was one of considerations that bore on his age. Young person's criminal record and his peer group are relevant considerations. Taken as whole, evidence from when accused came to Canada over- whelmingly showed that he was over 16. Trial judge's ruling was not unreasonable. R. v. Conteh (2016), 2016 CarswellOnt 16640, 2016 ONCA 808, John Laskin J.A., Robert J. Sharpe J.A., and Grant Huscroft J.A. (Ont. C.A.). TRIAL PROCEDURE Charging jury or self–instruction Trial judge failed to properly instruct jury on eyewitness identification Eyewitness identification. Two brothers, Sr and Sz, were stabbed in barroom brawl. Accused ad- mitted to police that he was at bar, was involved in fight, and was in possession of knife for period of time during fight, but denied stabbing either of broth- ers. Accused was convicted of aggravated assault with respect to Sz and was acquitted of same charge with respect to Sr. Con- viction turned on eyewitness ev- idence of Sz, who testified that he was stabbed from side and when he turned, he saw accused beside him holding knife. Accused ap- pealed, claiming conviction was based on uncorroborated eye- witness testimony of single wit- ness and jury should have been cautioned about frailties associ- ated with eyewitness identifica- tion. Appeal allowed. Central issue was whether it was accused who stabbed Sz. Crown's argu- ment that no special instruction was needed on eyewitness iden- tification relied on untenable distinction between eyewitness identification of accused, which requires specific jury charge, and eyewitness observation of ac- cused committing actus reus of offence, which does not. Further, fact that accused admitted being in bar, participating in fight, and being in close proximity to Sz did not resolve question of whether he stabbed Sz or enhance reli- ability of Sz's evidence that he saw accused thrusting knife to- wards him. Trial judge was obli- gated to specifically call to jury's attention dangers of eyewitness identification. There was neither general nor specific instruction addressing frailties of eyewitness identification in circumstances of this case. Jury charge should have drawn attention to circum- stances under which identifica- tion of accused was made. Fail- ure to properly instruct jury on eyewitness identification, both generally and with reference to facts of case, went beyond mere minor wrong or substantial ir- regularity. New trial ordered. R. v. Virgo (2016), 2016 Car- swellOnt 16561, 2016 ONCA 792, B.W. Miller J.A., David Watt J.A., and P. Lauwers J.A. (Ont. C.A.). CASELAW

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