Law Times

March 20, 2017

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Law Times • march 20, 2017 Page 15 Hampton Securities Ltd. v. Tassone (2017), 2017 Carswel- lOnt 831, 2017 ONCA 69, Janet Simmons J.A., David Brown J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3734, 2016 ONSC 1743, Stinson J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law OFFENCES Assault Totality of evidence allowed trial judge to reach conclusion Accused was convicted at judge- alone trial, on charge of aggra- vated assault. Accused claimed that judge did not properly ana- lyze evidence of disreputable witnesses. Accused claimed trial judge misapprehended evidence of complainant and his witness. Accused claimed that trial judge made inconsistent findings as to complainant's perception of in- cident. Accused finally claimed that trial judge's finding that witness was not assailant, while accused was, was improper. Ac- cused appealed from convic- tion. Appeal dismissed. Trial judge did not rely on disreputa- ble witnessed to determine that stabbing took place by accused. Trial judge properly considered these witnesses' evidence to de- termine that accused was one of assailants. This evidence was corroborated by complainant's blood being found on accused's pants. Other witnesses' evidence was properly construed by trial judge. This evidence did not name accused as assailant, but excluded another person as one of assailants. This was corrobo- rated by testimony of complain- ant. Trial judge properly accept- ed complainant's testimony, to establish number and gender of assailants. Totality of evidence allowed trial judge to reach con- clusion that accused was active participant in assault. R. v. Pashazahiri (2017), 2017 CarswellOnt 570, 2017 ONCA 60, K.M. Weiler J.A., S.E. Pepall J.A., and G.T. Trotter J.A. (Ont. C.A.). OFFENCES Breaking and entering and related offences Trial judge's mistakes warranted appellate intervention Accused was convicted of break and enter with intent to commit indictable offence, two counts of break and enter and committing indictable offence, and three counts of possessing break-in instruments. Charges arose from three break-ins at fast-food restaurant. Crown's similar fact evidence application in relation to two break-ins, in which safe was broken into and money stolen, was allowed. In respect of third break-in, no theft was committed because perpetrator was unable to access safe. DNA and witness evidence implicated accused. Accused appealed con- victions. Appeal allowed. Trial judge erred with respect to use he made of accused's criminal record and his evaluation of evidence was f lawed in material respects. Trial judge concluded that several aspects of accused's testimony strained belief, in- cluding his explanation for his DNA being on balaclava worn by perpetrator. Essentially, trial judge reasoned that if accused were truly innocent and was in wrong place at wrong time, his decision to remain in alley where suspect van was parked was undermined by his "criminal past and life experiences". Trial judge's use of accused's criminal record went well beyond lim- ited use permitted by Canada Evidence Act. Trial judge con- sidered that accused had cast on his right arm at time of break- ins, but rejected his submission that due to his injury, he could not swing axe or use any of tools used in break-ins. Trial judge ig- nored relevant evidence that he was required to consider before rejecting accused's evidence on that point. Trial judge also mis- apprehended evidence in saying that there were glass particles on accused's shirt and running shoes. Trial judge's misuse of accused's criminal record, and cumulative effect of his mistakes in assessing evidence, warranted appellate intervention. New trial ordered. R. v. Marini (2017), 2017 Car- swellOnt 519, 2017 ONCA 46, Karen M. Weiler J.A., S.E. Pepall J.A., and G.T. Trotter J.A. (Ont. C.A.); reversed (2014), 2014 Car- swellOnt 416, 2014 ONSC 86, E. Gareau J. (Ont. S.C.J.). OFFENCES Dangerous driving causing bodily harm Expert was entitled to give evidence about cause of accident Accused was convicted by jury of dangerous driving causing bodi- ly harm. Accused appealed. Ap- peal dismissed. Argument that trial judge erred in instructing jury on fault component of dan- gerous driving was not accepted. Focus of fault requirement is on foresight of risk created by man- ner of accused's driving. While it was true that expert was asked about "fault", his answer spoke about cause of accident. He was entitled to give evidence about cause of accident as long as it was based in physical evidence that had been placed before jury and was properly within ambit of his expertise. No risk was seen that jury might have been misled by expert's evidence or trial judge's instructions on that evidence. Accused had relatively minor Highway Traffic Act record, and trial judge, without objection, had instructed jury that it might take those convictions into account if it saw fit in assessing accused's credibility. Instruction, while un- necessary, could not have preju- diced accused. There was basis upon which jury could find that accused by travelling at such high rate of speed in residential area at night met requirements for dan- gerous driving. It was also open to jury to find that accused was racing at time of accident. R. v. Ally (2017), 2017 Car- swellOnt 783, 2017 ONCA 67, Doherty J.A., R.A. Blair J.A., and P. Lauwers J.A. (Ont. C.A.). OFFENCES Terrorism Trial judge did not err in application of parity principle Accused was convicted of con- spiring to terrorist activity and participating in activities of ter- rorist group. Trial judge found that accused, aged 26, was in- volved in terrorist group dedi- cated to facilitating violent Jihad and to conducting attacks in Canada. Trial judge concluded that accused had learned his les- son in four years since his arrest, and that he was at very low risk to reoffend and become involved in any further terrorist activity. Accused was sentenced to 12 years' imprisonment, comprised of five years for conspiracy and seven years consecutive for par- ticipating in activities of terrorist group. Crown appealed, seeking 20-year sentence with delayed parole eligibility; accused cross- appealed, seeking sentence of five to eight years. Appeal and cross-appeal dismissed. Trial judge did not err in his assess- ment of gravity of offences and offender's actions, or treat him as less culpable than his co-ac- cused who was sentenced to 24 years' imprisonment. Trial judge did not err in his application of parity principle. There was no reversible error in his assess- ment of gravity of offences and accused's participation in them. He did not err in his approach to rehabilitation, remorse, and risk of reoffending, and accused's position as relatively youthful first offender. Trial judge con- cluded that accused's rehabilita- tive prospects were promising, but that denunciation and deter- rence were more important fac- tors than rehabilitation in sen- tencing in terrorism cases. Trial judge did not err in his applica- tion of totality principle. Un- der s. 83.26 of Criminal Code, concurrent sentences are not available for terrorism offences arising out of same events. Trial judge did not make findings of fact inconsistent with accused's acquittal on explosives charge under s. 81(1)(d) of Code, or err in using terrorism as statutory aggravating factor. Global sen- tence of 12 years revealed no reversible error, was entitled to deference, and was fit sentence in circumstances. Further, there was no reason to interfere with trial judge's disposition concern- ing accused's parole eligibility. R. v. Ahmed (2017), 2017 CarswellOnt 945, 2017 ONCA 76, Gloria Epstein J.A., S.E. Pep- all J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 14865, 2014 ONSC 6153, Colin McKinnon J. (Ont. S.C.J.). POST-TRIAL PROCEDURE Appeal from sentence Trial judge did not err in failing to address terms of pre-sentence release as potential mitigating factor NP was convicted of aggra- vated assault and sentenced to 22 months' imprisonment. Incident arose out of home in- vasion robbery where D, long- time acquaintance of NP, broke into NP's home. NP, one of housemates, and another friend prevented D's escape, and NP struck him with shovel, causing significant injuries. NP appealed conviction and sought leave to appeal sentence. Leave to ap- peal sentence granted, however sentence appeal dismissed. NP was on form of house arrest that required him to be in place of residence 24 hours a day except in presence of surety or with her written, dated permission. NP's surety was mother and evidence from the pre-sentence report was that the two had very close relationship. There was nothing to indicate that terms of release prejudiced or imposed undue hardship on NP. Trial judge did not err in principle in failing to address terms of NP's pre-sen- tence release as potential miti- gating factor. No error in prin- ciple that would warrant inter- ference with 22 month sentence, which, as acknowledged by NP, was within appropriate range for aggravated assault of this type by first offender. R. v. Pomanti (2017), 2017 CarswellOnt 521, 2017 ONCA 48, Robert J. Sharpe J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.). SENTENCING Validity of sentence Total sentence imposed was illegal Accused pleaded guilty to im- paired driving, resisting peace officer, dangerous driving, f light while being pursued by peace officer, driving while dis- qualified and failing to provide breath sample. Sentencing judge sentenced accused to 90 days' imprisonment concurrent to other charges on resisting police officer, and four years' impris- onment globally for all other offences, on top of 13 months of pre-plea custody. Judge im- posed lifetime driving prohibi- tion, victim fine surcharges and DNA order. Accused appealed. Appeal allowed. Judge gave ac- cused 1.5 to 1 credit for 273 days of pre-sentence custody, which he mistakenly calculated as 13 months rather than 13 months and 19 days. Maximum global sentence that would have been justified was five years, as that was statutory maximum for each offence. Total of credit for pre-sentence custody plus sentence actually imposed ex- ceeded maximum sentence and so sentence was illegal by one month and 19 days. Circum- stances of offences were aggra- vating. Accused was alcoholic with mental health issues and lengthy criminal record. This was not case calling for maxi- mum sentence, since accused's previous longest sentence was equivalent to 18 months. Ap- propriate sentence was four years' imprisonment, less 13 months and 19 days' credit for pre-sentence custody. R. v. Walker (2017), 2017 CarswellOnt 710, 2017 ONCA 39, Robert J. Sharpe J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.). Evidence PROOF Proof of specific issues Trial judge did not engage in propensity reasoning Two perpetrators, masked with bandanas and wearing hats, robbed victim of money he had received that day in presence of his girlfriend. Complainant vic- tim and girlfriend identified ac- cused, who was known to them, as one perpetrator. Other perpe- trator L, who spoke and wielded knife, pleaded guilty and identi- fied accused as second perpetra- tor. L testified at accused's trial that he could not remember anything about offence or who was with him. Accused was convicted of break and enter and robbery. Accused appealed. Appeal dismissed. Trial judge did not err in his approach to identification evidence by rul- ing that this was case of recog- nition and, despite need for cau- tion mentioned in reasons, ac- cepting complainants' evidence that silent perpetrator reacted to being called by accused's nick- name. Trial judge did not err in refusing to consider accused's argument, raised during clos- ing, that girlfriend's mention of accused's brown eyes in 911 colour was inconsistent with ac- cused's actual eye colour. There was no evidence during trial that accused had blue eyes and potential inconsistency was not put to girlfriend in cross-exami- nation. Accused's prior associa- tion with L, who admitted his involvement, and both their as- sociation with people who knew about victim's money supported reliability of identification. Trial judge did not rely on rejection of L's trial evidence as proof of accused's guilt, and did not use transcript of L's guilty plea as ev- idence against accused. Verdict was based on identification evi- dence and rejection of accused's evidence. It was open for trial judge to conclude that accused intentionally evaded police. Trial judge did not engage in propensity reasoning but used evidence of accused's affiliation with gang-like group for proper purpose of determining wheth- er it supported identification evidence and connection to L at time of robbery. R. v. Campbell (2017), 2017 CarswellOnt 890, 2017 ONCA 65, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.). CASELAW

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