Law Times

Law Times • February 27, 2017 Page 15 www.lawtimesnews.com appealed from finding that blog posts were libellous and from quantum of damages award. Appeal dismissed. Although de- scribing person as liar when dis- cussing matter of public interest or discourse was more likely to be found to be comment rather than fact, it was open to trial judge to find that defendant's characterization of plaintiff as liar was stated as matter of fact, and not comment. She properly instructed herself that distinc- tion between fact and comment must be determined from per- spective of reasonable reader. Trial judge was also mindful that context is important in analysis. There was no basis for interference in trial judge's find- ing that words were held out as fact and not comment. Al- though trial judge erred in her characterization of defendant's blog statement that plaintiff was anti-Semite as statement of fact rather than opinion, defence of fair comment could not apply if statement was made, as trial judge found, with malice. Trial judge was entitled to find that plaintiff did not act as co-coun- sel in British Columbia human rights commission proceed- ings. Plaintiff pled malice and, on record, trial judge concluded that defendant transferred his animosity toward E to plaintiff. Trial judge was entitled to make that finding. Awan v. Levant (2016), 2016 CarswellOnt 20530, 2016 ONCA 970, K. Feldman J.A., Janet Sim- mons J.A., and Paul Rouleau J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 16776, 2014 ONSC 6890, W. Matheson J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Charter remedies [s. 24] Trial judge erred in invoking s. 24(1) of Charter Accused edited 74 child por- nography films during three years working for co-accused employer. Accused was kept for three days due to adjournment Crown obtained to prevent de- struction of evidence on com- puter although concern was eliminated before three days passed. Accused claimed he was not given his OCD medi- cation on first or second day in custody, was tripped and hit on back of head, was kept in cell overnight dressed only in boxer shorts with no mattress or cov- ers, was given little to drink or eat, and that guards told other inmates of reason for his arrest. Trial judge held that loss of three days' liberty due to adjournment was arbitrary detention violat- ing accused's rights under s. 9 of Canadian Charter of Rights and Freedoms and that state agents' treatment of accused in- fringed accused's rights under s. 7 of Charter but declined to enter stay of proceedings. After accused pleaded guilty and was convicted of making child por- nography, trial judge sentenced accused to conditional sentence of 21 months to be served in community. Trial judge noted that accused had no criminal re- cord, that nature of charge was at lower end of spectrum, that term of imprisonment would not be proportionate to accused's role, that accused's risk of suicide in jail was very high, and held that this was exceptional case requiring override of manda- tory one-year prison term for of- fence. Crown appealed. Appeal allowed; sentence set aside and substituted with 21-month im- prisonment sentence, operation of which was to be stayed given accused's completion of condi- tional sentence and absence of penological principle or state interest in his re-incarceration. Trial judge erred in finding that accused's rights under ss. 7 and 9 of Charter were infringed. Trial judge erred in invoking s. 24(1) of Charter to impose sentence outside statutory limits for of- fence. Trial judge assessed state- imposed psychological stress subjectively based on effects on accused who was susceptible to anxiety and stress due to OCD, rather than on objective ba- sis as required by s. 24(1). Trial judge could have fashioned ef- fective remedy for state conduct within confines of Part XXIII of Criminal Code. If significant bodily harm and repeated as- saults on accused in Supreme Court of Canada case did not meet threshold of "exceptional case" for application of s. 24(1) to reduce sentence to outside statu- tory limits, this case clearly fell short of that threshold. R. v. Donnelly (2016), 2016 CarswellOnt 20585, 2016 ONCA 988, David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 15683, 2014 ONSC 6472, Nordheimer J. (Ont. S.C.J.). CHARTER OF RIGHTS AND FREEDOMS Life, liberty and security of person [s. 7] Trial judge erred in holding that s. 7 of Charter was infringed Detective pretending to be 15 arranged to meet accused after replying to accused's Craig's List ad seeking men under 35 wanting fellatio. At lead inves- tigator's request, documents from accused's vehicle indicat- ing he was HIV positive were used to prepare media release (release) with accused's name, address, occupation, church affiliation and HIV status. At trial, accused admitted luring but sought stay under s. 24(1) of Canadian Charter of Rights and Freedoms on basis of, among other things, breach of rights under s. 7. Trial judge found ac- cused guilty of luring and held, among other things, that release violated s. 7 because disclosure of medical information was not authorized or permitted by Mu- nicipal Freedom of Information and Protection of Privacy Act or Police Services Act (PSA). Trial judge dismissed application for stay, finding no evidence re- lease aggravated consequences of accused being charged with luring, no evidence to support conclusion that indiscriminate and unlawful disclosure was ongoing institutional problem, and that prejudice suffered by accused could be addressed by stern rebuke and reduction of sentence. Accused appealed dismissal of stay application; Crown appealed sentence. Ap- peal from conviction dismissed; appeal from sentence allowed. Trial judge erred in holding that disclosure of HIV status in release engaged and infringed s. 7. Section 7 protection against deprivations of or intrusions upon personal security was not absolute. State conduct had to have serious and profound ef- fect on psychological integrity. Trial judge's holding that s. 7 was engaged and infringed any- time police violated individual's reasonable expectation of pri- vacy by unlawfully circulating individual's private medical data did not ref lect controlling standard. Finding was at odds with factual conclusion that re- lease would have no effect on accused's career independent of effect of luring charge. Real is- sue was not whether actions of police were authorized or pro- hibited by statute but whether release met threshold of seri- ous and profound effect on ac- cused's psychological integrity. There was no evidence chief or designate authorized disclosure or reasonably believed accused posed risk of harm to others and that disclosure would reduce risk. Disclosure of HIV status in release about arrest was not so disconnected from law enforce- ment concerns over existence of potential victims as to render disclosure unreasonable viola- tion of accused's security of per- son or informational privacy. R. v. Gowdy (2016), 2016 CarswellOnt 20589, 2016 ONCA 989, David Watt J.A., G.J. Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 15706, 2014 ONCJ 592, M.S. Block J. (Ont. C.J.). (Ont. C.A.); varied (2014), 2014 CarswellOnt 18004, 2014 ONCJ 696, M.S. Block J. (Ont. C.J.). OFFENCES Misleading justice It was open to trial judge to infer requisite intent Accused entered hotel room where his girlfriend, sex trade worker, was in apparent dispute with customer. Gun was dis- charged during ensuing alterca- tion and accused was charged with attempted murder. Key is- sue at trial was whether accused or customer had gun. During preliminary inquiry, accused passed note to his girlfriend (co- accused) asking her to say that gun was customer's, which she gave to her lawyer despite ac- cused's request that she destroy it. Accused was acquitted of at- tempted murder and robbery, but was convicted of possessing loaded restricted firearm, ag- gravated assault, and attempted obstruction of justice. Accused appealed convictions on ground that he did not know co-accused was going to testify, so requisite intent was not established. Ap- peal dismissed. Trial judge con- sidered all of circumstances of note-passing including fact that it was in court, during prelimi- nary inquiry. Accused's letter to co-accused, saying that she should claim customer pulled gun, ref lected consciousness of guilt. It was open to trial judge to infer that accused had requi- site intent. There was no basis for appellate intervention. Convic- tions upheld. R. v. Williams (2016), 2016 CarswellOnt 20094, 2016 ONCA 937, Pardu J.A., Benotto J.A., and Brown J.A. (Ont. C.A.); affirmed (2015), 2015 Carswel- lOnt 11958, 2015 ONSC 4869, Gray J. (Ont. S.C.J.). OFFENCES Murder Appeals from second degree murder convictions were dismissed Accused GB and NB were charged with killing of 10-year- old SB, GB's son and NB's step- son. Overwhelming medical and photographic evidence showed that SB was malnour- ished and suffered from pneu- monia and skin infection, had clearly been physically abused for many months, and in final 12 hours of his life was brutally beaten. Both accused admit- ted to abusing SB but blamed each other for final assault. Ac- cused were convicted of second degree murder. Both accused appealed their convictions. Ap- peals dismissed. Trial judge did not improperly deny GB's mid- trial application for severance of joint trial. GB argued that prejudice accrued to his ability to make full answer and defence due to late disclosure of cer- tain photographs. It was abun- dantly clear from trial judge's nuanced reasons that he fully understood GB's "unfairness" assertion. There was no reason- able possibility that severance could have affected verdict at new trial by creating reason- able doubt as to GB's guilt. Trial judge did not err in concluding that NB's statements in both her pre-arrest telephone interview with police officer and her post- arrest interview at police station were voluntary. NB argued that trial judge erred in finding that she was not "suspect" at time of telephone statements. Trial judge did not make any review- able error in finding that NB knew beyond doubt she could incriminate herself by speak- ing officer, and in concluding that no warning was required because it was not yet known whether SB's death was homi- cide. Officer's statement to NB that her lawyer, with whom she had already spoken, would not attend remainder of interview at station in person did not negate NB's capacity to make mean- ingful choice between speaking and refusing to speak. There was sufficient evidentiary sup- port for trial judge's conclusion that NB consciously and delib- erately decided to speak to po- lice and that her statements were voluntary. R. v. Boothe (2016), 2016 Car- swellOnt 20584, 2016 ONCA 987, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.). OFFENCES Obscenity and pornography Crown's case was overwhelming Police seized two laptop com- puters and two external hard drives from accused's home, forensic examination of which disclosed 29 videos and 431 pictures of child pornography. Accused was convicted of pos- session of child pornography and making child pornogra- phy available via peer-to-peer software program. Trial judge found that accused knew he was storing child pornography and there was no evidence he took steps to block sharing of files. Accused appealed convictions. Appeal dismissed. Trial judge was alive to R. v. W. (D.) test in her reasons. While she accepted accused's evidence that he had taken steps on four occasions to delete child pornography he re- ceived, she did not accept infer- ence that that meant significant volume of child pornography re- maining on his devices was there without his knowledge. There was compelling evidence to sup- port her conclusion regarding accused's knowledge. Trial judge did not misapprehend evidence. Her conclusion that majority of images found on one device had not been deleted was consistent with evidence that majority of images were accessible; her re- jection of accused's evidence that he obtained child pornog- raphy on four occasions only did not ref lect misunderstanding of his evidence; and she did not ignore his defence of innocent possession. Trial judge's reasons for judgment clearly explained why accused was found guilty of offences charged. Crown's case was overwhelming. Trial judge clearly explained her reliance on sophisticated indexing and or- ganization of child pornography material on his devices, explicit names of files, and fact that most of child pornography had not been deleted. R. v. Tweedle (2016), 2016 CarswellOnt 20534, 2016 ONCA 983, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.). CASELAW

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