Law Times

Law Times • apriL 3, 2017 Page 15 www.lawtimesnews.com OFFENCES Dangerous driving causing death Judge did not misunderstand or misapply legal standard for dangerous driving Accused's vehicle crashed into front entrance of department store when she was reversing out of parking spot. Two people were injured, and two children lost their lives. Trial was held of ac- cused charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. Trial judge convicted accused of lesser included offences of dan- gerous driving causing death and dangerous driving causing bodi- ly harm. Judge held that accused's manner of driving was marked and substantial departure from what was expected of reasonable driver. Judge found that accused intended to slam on brakes, but applied pressure to gas pedal to point it was compressed right to f loor, and did not take any cor- rective measures. Accused ap- pealed. Appeal dismissed. Judge did not misunderstand or misap- ply legal standard for dangerous driving and found that accused's failure to take corrective action was marked departure from stan- dard of care. Judge did not mis- apprehend evidence regarding accused's driving behaviour and corrective action. Judge's finding that accused's foot could not have become caught in pedal as de- scribed by accused was reached by applying common sense and considering all evidence. Verdict was not unreasonable. R. v. Burger (2017), 2017 Car- swellOnt 1350, 2017 ONCA 101, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 Car- swellOnt 9492, 2015 ONCJ 349, Jonathon C. George J. (Ont. C.J.). OFFENCES Sexual interference Sentencing judge's errors resulted in imposition of sentence that was too low Accused, aged 25, raped 11-year- old girl whom he befriended at park and with whom he then communicated via text messages and telephone. Complainant sent personal pictures of herself, in- cluding nude picture, to accused, who invited her to friend's house where he kissed her, removed her clothes, put his penis in her mouth, and then penetrated her vaginally. Accused pleaded guilty to sexual interference under s. 151 of Criminal Code and was sentenced to 30 months' impris- onment, less 15 months' credit for pre-sentence custody. Crown ap- pealed sentence. Appeal allowed. Sentencing judge failed to give proper effect to principle of deter- rence, to consider evidence that accused had sought out young girl, and to consider evidence that offence had significant impact on her. It was not open to sentencing judge to decline to give effect to principle of deterrence and fo- cus on objective of rehabilitation because he did not think that de- terrent sentences were effective. His conclusion that there was no evidence that accused sought out young girl was clear error. In his analysis of aggravating factors, sentencing judge did not refer to evidence of significant impact of offence on complainant, who was hospitalized twice for sui- cidal ideation and self-harm and had to take drugs to protect her- self from pregnancy and disease. Sentencing judge failed to con- sider separate and distinct aggra- vating circumstance prescribed under s. 718.2(a)(iii.1) of Criminal Code. Errors resulted in imposi- tion of sentence that was too low. Lengthier sentence was required due to age of complainant, fact that accused sought her out, planning evident on date of of- fence, fact that accused ignored and overcame complainant's re- sistance and struck her when she cried out in pain from being pen- etrated, and significant impact of offence on her. Crown sought sentence of four years. With 15 months' credit for pre-sentence custody, sentence of 33 months was imposed to achieve effective sentence of four years. R. v. Al-Shimmary (2017), 2017 CarswellOnt 1615, 2017 ONCA 122, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from sentence Appellate intervention was justified Three-year-old complainant dis- closed to mother that accused had "peed" in her mouth on multiple occasions. Accused was convicted of invitation to touch- ing person under age of 14 for sexual purpose and sentenced to four years to run consecutively to 28 month sentence imposed in companion sexual assault case. Accused appealed from convic- tion and sentence. Conviction appeal dismissed; sentence ap- peal allowed in part, to reduce sentence by four months. Trial judge imposed sentence that ex- ceeded Crown's position of glob- al six year maximum without providing parties with oppor- tunity to make further submis- sions. This was error in principle that resulted in procedural un- fairness and had impact on sen- tence such that appellate inter- vention was justified. Frequency that abuse occurred, namely ten times, over seven months period in proportion to complainant's age of 36 months was substan- tial. Nature of offence was seri- ous, invasive, and degrading nature of offence was added to by accused's demand that she swallow his semen. Accused was large man who used angry tone towards frightened complainant. Accused, who was called "uncle" by complainant, was in position of trust at low end of spectrum. Fit sentence was global sentence of six years for this offence and companion case. Sentence of 44 months consecutive would be imposed for this case. R. v. B. (R.) (2017), 2017 CarswellOnt 943, 2017 ONCA 74, Karen M. Weiler J.A., S.E. Pepall J.A., and B.W. Miller J.A. (Ont. C.A.). It would not be in interests of justice to reopen sentence appeal Applicant accused was convicted on charges of sexual assault and voyeurism charges and was sen- tenced to six years in jail. Trial judge took into account 17 "real" months of pre–sentence cus- tody, which did not include eight months of pre–sentence custody previously credited on domestic assault conviction. Appeal from sexual assault and voyeurism conviction was dismissed and sentence appeal was allowed only to extent of increasing credit that accused received for 17 months of pre–sentence custody served up to full 1.5:1 credit. credit. Subsequently, accused's convic- tion appeal on domestic assault charge was allowed. Court con- cluded that it would not be in best interests of justice to order new trial, in light of fact that ac- cused had already served his sentence of eight months in jail. Accused brought application to reopen sentence appeal on sexual assault and voyeurism charges. Application brought on basis of change in circumstances that oc- curred one year after appeal was adjudicated on merits; accused had been successful in having convictions for domestic assault and breach of probation over- turned. Application dismissed. Trial judge's conclusion that ac- cused was "repeat offender" with "multiple victims all of whom remain fearful of him" was fully supported on information pro- vided to him in pre–sentence re- port, quite apart from domestic assault conviction. Trial judge's conclusion that accused was high risk for recidivism, neces- sitating six-year sentence, was entirely appropriate, even when domestic assault was removed from consideration. Accused's criminal antecedents, and in particular, similar level of sever- ity between this sexual assault and earlier sexual assault which attracted seven-year jail sentence, fully supported trial judge's con- clusion on sentence. It would not be in interests of justice, even if court had jurisdiction to reopen accused's sentence appeal on sex- ual assault and voyeurism con- viction, to reopen appeal. Basis of appeal was that accused should be given credit for pre–sen- tence custody served on another charge conviction for which was ultimately overturned. However, that was not supported by case law. Fair reading of trial judge's reasons ref lected that he relied quite minimally on this convic- tion in any event. It did not ma- terially impact his assessment of appropriate sentence in this case. R. v. Perkins (2017), 2017 CarswellOnt 1955, 2017 ONCA 152, G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Ben- otto J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Detention and release after trial Accused's attitude did not justify Board's refusal to recognize treatment impasse Accused was found not crimi- nally responsible (NCR) on account of mental disorder on charge of attempted murder of his psychiatrist and placed at maximum security forensic psychiatric facility. Ontario Re- view Board ordered accused's continued detention at facility. Accused appealed, seeking ab- solute discharge or, in alterna- tive, transfer to medium secu- rity institution. Appeal allowed in part. Accused's treating psychiatrist, who he refused to speak with, provided opinion detailing his major mental ill- ness, attempts to take poten- tial weapons, refusal to engage with treatment and mental health workers, and history of lengthy period of premedita- tion leading to act of extreme violence. Accused continued to pose significant threat to safety of public. Board's decision was plainly reasonable and am- ply supported by evidence. As evidence suggested that treat- ment impasse might have been reached, Board was obliged to consider that possibility. Long period of incarceration with- out treatment or progress could constitute treatment impasse, as could accused's stubborn refusal to engage with treat- ment team. Crown's argument that, no treatment impasse had been reached when capable NCR accused simply declined treatment, was inconsistent with precedents. There was no basis for optimism that treat- ment plan in place would gain traction with accused. If only way forward was for accused to consent to treatment or be de- clared incapable, and his men- tal illness precluded his consent but team had not declared him incapable, then treatment im- passe plainly existed. Accused's attitude did not justify Board's refusal to recognize treatment impasse and leave any future progress up to accused. Board's approach was wrong in law. It was not appropriate to specify modality of required indepen- dent and comprehensive assess- ment of accused, as that should be left to Board's expertise. Gonzalez, Re (2017), 2017 CarswellOnt 1347, 2017 ONCA 102, David Watt J.A., P. Lauw- ers J.A., and M.L. Benotto J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 1064, E.J. Polak Alt. Chair, J.W. Brooke Member, R. Kunjukrishnan Member, P. Firestone Member, and K.A. Maharaj Member (Ont. Review Bd.). PRE-TRIAL PROCEDURE Election Accused established he was ineffectively assisted by counsel regarding election of mode of trial Accused was convicted of break and enter with intent to commit indictable offence and sexual assault and was sentenced to 15 months. Accused appealed. Appeal allowed. Accused estab- lished he was ineffectively as- sisted by counsel regarding elec- tion of mode of trial required by s. 536 of Code. Trial counsel's evidence and transcript of ar- raignment clearly showed that counsel had prepared for trial of summary conviction offence on basis of charge screening form erroneously indicating that Crown would be proceeding summarily. Since Crown was proceeding by indictment, issue of possibility of preliminary in- quiry arose at beginning of trial. Trial counsel had no real oppor- tunity to explain advantages of options in their short conversa- tion in open court. Trial coun- sel identified break in audio re- cording of trial proceedings of about one minute, in which he merely asked if accused wanted adjournment, and conceded that he could not give accused enough information to permit him to make informed deci- sion about election. Accused's dim awareness of existence of preliminary inquiries was in- sufficient to make up for trial counsel's manifest failures. Trial counsel did not give accused cogent advice about his options or take steps to get him time he needed to consider election. Facts were sufficient to fatally undermine fairness of trial. Ac- cused did not have to prove that he would have elected Superior Court trial preceded by pre- liminary inquiry as it was not appropriate to override accused person's fundamental right to make election by predicting retrospectively that his choice would have been different. R. v. Stark (2017), 2017 Car- swellOnt 1939, 2017 ONCA 148, P. Lauwers J.A., Doherty J.A., and R.A. Blair J.A. (Ont. C.A.). SENTENCING Validity of sentence Trial judge should have investigated voluntariness of plea Accused plead guilty to charge of marijuana production. Ac- cused were sentenced to man- datory minimum sentence of nine months of imprisonment. Accused appealed. Appeal al- lowed. Trial judge should have investigated voluntariness of plea, especially since informa- tion was in English, not lan- guage of proceedings and was never read aloud in court. Ac- cused's guilty pleas were not informed because of their lin- guistic deficit and ineffective assistance of counsel. It was clear that counsel did not in- form them of aggravating fac- tors that were argued by pros- ecution and impact of these factors on sentence. R. c. Simard (2017), 2017 CarswellOnt 2320, 2017 ONCA 149, Robert J. Sharpe J.A., Paul Rouleau J.A., and M.L. Benotto J.A. (Ont. C.A.). CASELAW

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