Law Times

Law Times • January 23, 2017 Page 15 www.lawtimesnews.com Ontario Criminal Cases Criminal Law GENERAL PRINCIPLES Incomplete crimes Appeal from conviction for counselling murder was dismissed Murder. Accused was convicted of two counts of sexual assault causing bodily harm and single counts of breach of recognizance and counselling murder, offence that was not committed. Accused allegedly solicited fellow jail in- mate to kill complainant in sex- ual assault and breach of recogni- zance counts so that she could not testify against him, but parties did not conclude agreement about how killing was to be carried out at that time. Putative killer, career criminal, testified that accused's plan was for complainant to die of apparent accidental drug over- dose while accused was in jail. Accused appealed conviction for counselling murder. Appeal dismissed. Trial judge did not err in finding that accused "proac- tively" engaged in conversation about killing complainant in jail yard, or in erroneously relying on evidence of later discussions to confirm evidence of unsavoury prosecution witness. Counsel- ling commission of offence that is not committed is inchoate or pre- liminary crime complete when solicitation occurs, even if per- son incited rejects solicitation or merely feigns assent. Trial judge's findings respecting unrecorded discussion in jail yard established essential elements of counsel- ling offence. Those findings were open to trial judge to make on evi- dence of principal Crown witness. Trial judge did not misapprehend or err in considering as confirma- tory of evidence of putative killer portions of conversations surrep- titiously recorded later in jail. He found, as he was entitled to do, that offence was complete when accused and putative killer met, at accused's invitation, in jail yard. R. v. Devitt (2016), 2016 Car- swellOnt 18092, 2016 ONCA 871, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.). NARCOTIC AND DRUG CONTROL Offences Sentence at upper end of range was not warranted Accused delivered one-kilogram brick of cocaine contained in grocery bag to man. Accused was 44-year old first offender who was gainfully employed at time of his arrest. Jury convicted accused of trafficking. Trial judge sentenced accused to eight years' impris- onment less credit of 24 days for time spent in pre-disposition custody. Accused appealed sen- tence. Appeal allowed. Sentence was reduced to term of five years. Trial judge erred in making find- ings of fact that prior transactions between accused and man who supplied him with brick involved cocaine or methamphetamine in absence of evidence to sup- port such conclusion and using that finding as aggravating factor on sentence. Trial judge erred in failing to give effect to principle of parity in light of sentences im- posed on two others involved. Trial judge erred in imposing sen- tence of imprisonment at upper end of range of sentence without taking into account that accused was first offender. Evidence did not warrant sentence at upper end of range of sentence applicable to accused's offence for first offend- er. Trial judge did not have benefit of Gladue report which was re- ceived as fresh evidence on hear- ing of appeal. Report and errors warranted reduction in sentence. R. v. McIntyre (2016), 2016 CarswellOnt 17506, 2016 ONCA 843, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.). OFFENCES Driving/care and control with excessive alcohol Appeal judge was wrong in upholding finding of s. 8 Charter breach Accused was stopped by police conducting RIDE program and admitted to consuming alcohol 10 hours earlier. Officer, trained breath technician, smelled alco- hol on accused's breath but did not observe any signs of impair- ment. Accused failed roadside screening test and was charged with driving with excessive blood alcohol. Trial judge held that of- ficer unreasonably suspected that accused still had alcohol in his body, and that taking of roadside breath sample violated accused's rights under s. 8 of Canadian Charter of Rights and Freedoms. Accused was acquitted. Sum- mary conviction appeal court upheld acquittal. Crown appealed on basis that appeal judge and trial judge erred in concluding that facts did not amount at law to reasonable grounds to suspect that accused had alcohol in his body under s. 254(2) of Criminal Code. Appeal allowed. Appeal judge was wrong in upholding finding of s. 8 Charter breach. It is not necessary that person show signs of impairment to found ba- sis for making roadside breath de- mand. Officer need only have rea- sonable grounds to suspect that person has alcohol in their body. Standard of "reasonable grounds to suspect" involves possibili- ties, not probabilities. Absence of indicia of impairment did not negate possibility that accused had alcohol in his system, which was raised by odour of alcohol on his breath and his admission of drinking. Fact that, on accused's version of timing of his alcohol consumption, alcohol may have been eliminated from his body did not negate reasonableness of officer's grounds for suspecting presence of alcohol in accused's body. Appeal judge and trial judge were clearly wrong in holding otherwise. New trial ordered. R. v. Schouten (2016), 2016 CarswellOnt 18095, 2016 ONCA 872, Janet Simmons J.A., G. Pardu J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 510, 2016 ONSC 378, B.W. Abrams J. (Ont. S.C.J.). OFFENCES Impaired driving/ care or control There was no room for appellate interference Accused was convicted of having care or control of his vehicle while impaired. Trial judge found that accused was inebriated; he had called tow truck to fix lock on his car so that he could gain entry to it with his keys; he planned to have his wife come and pick him up but did not tell her where or when to do so; and he continued to drink in bar while waiting for tow truck. Trial judge found there was realistic risk of danger because accused could change his mind and decide to drive home while inebriated. Summary conviction appeal court overturned convic- tion. Appeal by Crown allowed. On merits, appeal court's deci- sion could not stand. Trial judge's key findings were fully supported by evidentiary record. It was not open to appeal court to interfere with those findings and to sub- stitute its own findings and as- sessment of evidence for those of trial judge, but that is what it did. Appeal court did not accept trial judge's factual finding that ac- cused's alternate plan to get home had not been implemented, or his finding of realistic risk that ac- cused could change his mind and drive. Trial judge's reasons made it clear that his risk assessment was based on his consideration of several relevant factors, including accused's state of intoxication. His factual finding of realistic, clear and present risk was open to him on record, and was also reason- able on facts of case. While appeal court questioned adequacy of trial judge's reasons as support for interfering with his ruling, parties did not challenge sufficiency of his reasons on summary convic- tion appeal. Reading trial judge's reasons in context of record, it was apparent why he decided as he did. There was no room for ap- pellate interference based on any perceived material deficiency in trial judge's reasons. Conviction restored. R. v. Johnston (2016), 2016 CarswellOnt 17436, 2016 ONCA 834, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.). OFFENCES Murder Trial judge properly instructed jury Shortly after accused got into al- tercation with AR at pub, male with semi-automatic handgun fired shots outside bar. Six people were injured and innocent by- stander was killed. Sole issue at trial was identity of shooter. Ac- cused was found guilty of second degree murder and four counts of aggravated assault. Accused appealed conviction. Appeal dismissed. Trial judge noted that two of witnesses who testified to seeing shooting, AR's uncle NR and his cousin DM, lied to po- lice when they said they did not know who AR was. Trial judge did not bolster credibility of NR in her charge to jury by referring to consistency of his testimony at preliminary inquiry with his trial testimony. Trial judge's remarks were made in context of defence suggestion that NR's evidence was fabricated to help his situa- tion concerning separate charges against him, and merely pointed out that NR's evidence was con- sistent with statements he made at preliminary inquiry. Evidence of officer did not constitute im- permissible oath-helping as rule had no application in this case. Officer did not testify as to hon- esty or veracity of witnesses. His evidence came in cross-exami- nation, in explaining why neither NR or DM was charged with obstruction of justice or perjury. In any event, trial judge properly instructed jury about its respon- sibility in assessing credibility of witnesses. Trial judge properly instructed jury concerning use they could make of evidence of post-offence conduct, and did not fail to alert jury sufficiently to dangers associated with eyewit- ness identification. She carefully reviewed evidence and cautioned jury about dangers of mistaken identification. There was no basis on which to find any error in trial judge's decision. R. v. Weese (2016), 2016 Car- swellOnt 17378, 2016 ONCA 449, David Watt J.A., M. Tulloch J.A., and Grant Huscroft J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal New trial was ordered Complainant was attacked by group of guests at accused's birth- day party. After complainant's roommates extricated him from attack and placed him in car, someone reached in and stabbed complainant in eye. Police of- ficer, after first contact with in- jured complainant at his mother's house, coincidentally ran into accused at gas station and asked questions that prompted her de- nial of having seen complainant that night. In initial statements, complainant and roommates did not identify accused as attacker. At trial, all three testified at trial that it was accused who stabbed complainant. Accused was con- victed by jury of aggravated as- sault. Accused appealed. Appeal allowed. Trial judge made three errors of law. Trial judge failed to provide timely corrective in- struction regarding Crown's im- proper reference to inadmissible evidence, to properly instruct jury on use that could be made of ac- cused's gas station statement, and to instruct jury on possibility of collusion amongst complainant and roommates. Errors were not minor in their nature or effect. Cumulative effect resulted in un- fair trial. Trial judge recognized prejudicial effect of inadmissible evidence to which Crown referred in excluding it, yet gave no specific corrective instruction. Only ad- missible evidence from accused before jury was gas station state- ment on which no proper instruc- tion for its use was given. Crown's case turned on jury accepting evi- dence given by three eyewitnesses but trial judge did not give neces- sary instruction on possible collu- sion that was important aspect of their credibility. It would not be appropriate to apply curative pro- viso of s. 686(1)(b)(iii) so new trial would be ordered. R. v. Clause (2016), 2016 Car- swellOnt 18034, 2016 ONCA 859, Robert J. Sharpe J.A., David Watt J.A., and David Brown J.A. (Ont. C.A.). PRE-TRIAL PROCEDURE Arrest Objective grounds for arrest existed Police investigation was trig- gered by tip from confidential informant about accused selling heroin. Police connected accused with apartment and vehicles. Surveillance officers observed two incidents of individuals ap- proaching or entering accused's vehicle for brief interaction, with one officer noting that each one carried object on approach or en- try that was not visible on exiting. Police stopped accused's vehicle, arresting him at gunpoint and discovering significant amounts of cash and heroin on search of vehicle. Accused was convicted of possession of heroin for pur- poses of trafficking. Accused was sentenced to four years' impris- onment. Accused appealed from conviction, applied for leave to appeal and appealed from sentence. Application for leave granted; appeals dismissed. Ex- istence of reasonable and prob- able grounds was anchored in factual findings of trial judge and entitled to deference. Trial judge proceeded on basis that informa- tion emanating from confiden- tial informant was weak such that "tip" was more or less equiv- alent to anonymous tip such that it did not provide compelling source of information. Although tip did not in itself justify arrest, it was sufficiently persuasive to warrant further investigation. Tip and police information ty- ing accused to apartment and ve- hicles provided initial tableau of information against which sur- veillance officers' observations of incidents could be assessed, based on arresting officer's ex- perience. Record supported trial judge's determination that, on totality of circumstances, objec- tive grounds for arrest existed. R. v. Anang (2016), 2016 Car- swellOnt 17666, 2016 ONCA 825, K.M. Weiler J.A., R.A. Blair J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 20613, Brian P. O'Marra J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 20614, Brian P. O'Marra J. (Ont. S.C.J.). CASELAW

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