Law Times

Law Times • may 29, 2017 Page 15 www.lawtimesnews.com CASELAW plan such as that proposed to be in place on accused's release. R. v. Hess (2017), 2017 Car- swellOnt 3806, 2017 ONCA 220, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.). DEFENCES Self defence Accused relying on self-defence in stabbing complainant acquitted of assault charges Accused and complainant had history of antagonism and there had been some altercations be- tween them. Complainant and female named M lived in hous- ing complex until their four-year relationship ended. Accused lived with his wife and children in same complex and after his marriage ended he started re- lationship with M. When in- cident that gave rise to charges occurred accused was staying at M's home and she was eight months pregnant with his child. Complainant visited complex because he and M had child to- gether and it was on one of these visits that fight occurred. Ac- cused was charged with assault with weapon and aggravated as- sault. Accused acquitted. Com- plainant was indisputable ag- gressor and he put one or both of his hands around accused's neck and punched him. Complain- ant then pushed accused down steps and he then climbed on top of him and choked him. Ac- cused called out to his friends to get complainant off of him but no one came to his assistance. Accused only used knife as last resort to get complainant off of him. Stabbing was reasonable in circumstances as accused was defending himself. R. v. Climent (2017), 2017 CarswellOnt 5317, 2017 ONSC 1895, B.A. Allen J. (Ont. S.C.J.). Defences of self-defence and duress having no air of reality Two accused entered victim's home and assaulted him. Ac- cused DM asked jury to consid- er defences of self-defence and duress whereby jury could infer that DM entered house with- out knife but, once in kitchen, he pulled knife from block of knives in response to threat. De- fences applied to weapons dan- gerous and assault with weapon charges. Trial of accused was held. Accused ZT was found guilty of breaking and entering as well as two counts of assault. He was found not guilty of ut- tering threat. DM was found guilty of Breaking and Enter- ing. Defences of self-defence and duress were not available to DM since defences did not have air of reality. With respect to both self-defence and duress, there must be some evidence capable of supporting inference that ac- cused reasonably believed that he was being threatened. In this instance, there was no evidence capable of supporting such find- ing. AP's evidence was that he was trying at all times to be con- ciliatory towards aggressive sus- pect that entered the house with knife. AP's evidence was consis- tent. AP was not cross-examined on this point and AP's credibil- ity was not challenged. AP did testify that, while in kitchen, he moved towards suspect. There was no evidence, however, to suggest that this movement could reasonably have been in- terpreted as being threatening. R. v. Torcaso (2017), 2017 CarswellOnt 5632, 2017 ONSC 833, Varpio J. (Ont. S.C.J.). NARCOTIC AND DRUG CONTROL Offences Trafficking even small amounts of heroin should result in prison sentence Accused was 23-year-old woman with no criminal record who was born in Ethiopia. Accused was employed as housekeeper at time of sentencing. Police ob- served accused sell 6.32 grams of heroin to co-accused, and both of them were arrested. Accused was convicted of trafficking heroin. Parties made sentencing submis- sions. Accused sentenced to two years and two months' impris- onment. Court of Appeal has repeatedly indicated that traf- ficking even small amounts of heroin should result in peniten- tiary unless there are exceptional circumstances. There were no such exceptional circumstances in case at bar. Primary sentenc- ing objectives were protection of public, denunciation, and gen- eral deterrence. Accused was not entitled to reduction in sentence because of 29 months it took for her trial to proceed. Accused and co-accused were subject to same procedures they elected to pursue leading to trial date. Accused's sentence should not ref lect fact that her involvement in traffick- ing of heroin was "one off ". Con- tent of intercepted calls indicated that accused had ongoing role of supplying heroin on earlier occa- sions and was part of distribution chain for commercial gain. There was little by way of mitigation, but it was accepted that accused raised herself up from difficult origins and displayed willing- ness to work hard to assist herself and other family members. Ac- cused had obvious rehabilitative potential, which was taken into account. It was aggravating fac- tor that accused's involvement in trafficking heroin was motivated by monetary gain. R. v. Abdella (2017), 2017 CarswellOnt 4560, 2017 ONSC 1002, A.J. O'Marra J. (Ont. S.C.J.). Accused convicted of importing cocaine based on circumstantial evidence Accused returned from Jamaica by air with two suitcases. Ac- cused did not declare fruits, vegetables or alcohol on her dec- laration card even though she brought them with her. Accused was sent for secondary inspec- tion and nine cans of vegetables were discovered and were put into x-ray machine. Seven cans were found to have dark spots and one of cans was opened and was found to contain liquid co- caine. Spots were holes that were made in cans, which were used to remove original contents and to replace them with cocaine. Contents of nine cans were test- ed and seven of cans contained liquid cocaine. Total amount of cocaine was 2,319 grams and it was worth between $103,500 and $185,520. Accused was charged with importing cocaine into Canada. Accused convict- ed. There was no direct evidence that accused knew that cans contained controlled substance. Crown relied on circumstantial evidence and issue was whether such evidence, viewed logically and in light of human experi- ence, was reasonably capable of supporting inference other than guilt of accused. Other theories or possibilities were speculative and were not based on evidence or on reason and common sense. Consequently, only rea- sonable inference from evidence was that accused knew that cans contained cocaine. R. v. Bryan (2017), 2017 CarswellOnt 5514, 2017 ONSC 2244, Ricchetti J. (Ont. S.C.J.). OFFENCES Sexual assault Crown's similar fact application granted Accused was charged with three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching in relation to complainant, accused's step- daughter. Complainant alleged that accused sexually abused her on three different occasions over three year period when she was between ages 11 and age 14. All three allegations involved accused entering room where complainant was sleeping or trying to sleep while her mother was at work and engaging in sex- ual touching. At close of its case Crown brought similar fact ap- plication. Application granted. Surrounding circumstances of accused committing acts when complainant was young person and he was in position of trust, when mother was at work, and acts being committed in family home in bedrooms and sleeping areas were sufficiently compel- ling facts to strengthen simi- larities between incidents. Over- emphasizing dissimilarities in details, like different locations of assaults, precise type of assault, or focusing on singular out- standing incidents, risked fail- ing to appreciate broader simi- larities in substance of incidents. Overall, dissimilarities between facts as between three incidents were of limited consequence to probative value. Lapse in time was not expensive and court did not find there was any time lapse that would appreciably af- fect probative value of similar facts. This was judge alone case and possibility of confusion or distraction would be restricted by relatively simple set of facts in this case. There was no issue of collusion in this case since there was only one complainant. Sim- ilar facts had sufficiently com- mon characteristics as to not fall within exclusionary rule as they were being adduced to show pat- tern of conduct by accused. R. v. F. (H.) (2017), 2017 Car- swellOnt 5216, 2017 ONSC 2132, B.A. Allen J. (Ont. S.C.J.). TRIAL PROCEDURE Charging jury or self–instruction Formal Vetrovec caution not required for unsavoury witness in judge alone trial Accused was convicted of number of offences arising out of robbery at jewellery store. Crown had led evidence of K, who alleged to have been shot by accused in prior incident, to establish that four days prior to robbery accused was in pos- session of gun used in robbery. Accused contended that trial judge failed to recognize that K was unsavoury witness de- serving of Vetrovec caution. Accused appealed. Appeal dis- missed. Trial judge was alert to K's background and inconsis- tencies in and other concern's about K's testimony. In review of K's evidence, trial judge in effect carried out Vetrovec analysis, including looking for confirma- tory evidence. In circumstances, in judge alone trial, formal Ve- trovec caution was not required. R. v. Moore (2017), 2017 Car- swellOnt 3740, 2017 ONCA 217, Paul Rouleau J.A., S.E. Pepall J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2014), 2014 Car- swellOnt 3801, 2014 ONSC 1788, MacDonnell J. (Ont. S.C.J.). YOUTH OFFENDERS Youth Criminal Justice Act Fifteen-year-old receiving adult sentence for organized and sophisticated offences Accused committed human traf- ficking, unlawful confinement, uttering threats, robbery, assault and sexual assault when she was 15-years old. Accused was ring- leader of organized and vicious human trafficking enterprise in which she forced five other teen- age girls to work as prostitutes. To control other girls accused would threaten them or commit acts of violence and also took photos of them in sexually explicit circum- stances and threatened to broad- cast or distribute them. Accused was sentenced to adult sentence of six and one half years' in custody. After credit for pre-sentence cus- tody, there were three years left to be served. Assessment showed that accused was high risk for future serious violence, had little desire to change and was not truly engaged in rehabilitation but was going through motions. Trial judge found that Crown had rebutted presumption of re- duced moral blameworthiness despite accused's age at time of offences. Trial judge ruled that youth sentence would not hold accused accountable for her ac- tions. Accused was highly inde- pendent and intelligent and had created adult world for herself and offences were extremely se- rious. As well accused's conduct in custody was not exemplary and her risk of re-offending was high. Accused appealed. Appeal dismissed. Trial judge did not err by failing to follow requirement in former s. 72 of Youth Crimi- nal Justice Act that she consider whether youth sentence was of sufficient length to hold accused accountable. Three year sentence was maximum youth sentence available in circumstances and that would not have been of suf- ficient length to hold accused ac- countable. Crown met its onus to show court that adult sentence was required to hold accused ac- countable. Three year adult sen- tence was ultimately imposed but that did not mean three year youth sentence would have been of sufficient length to hold ac- cused accountable. Accused was only 15-years old but she com- mitted organized and sophisti- cated offences targeting vulner- able victims for financial gain. Three-year sentence would not have properly ref lected accused's moral culpability. Reasons for sentence did demonstrate that trial judge did conclude that youth sentence would not be of sufficient length to hold accused young person accountable. Ef- fects of adult sentence on ac- cused's future prospects in rela- tion to expunging her record or remaining on sex offender regis- tries would not have altered trial judge's conclusion. R. v. O. (K.) (2017), 2017 CarswellOnt 5244, 2017 ONCA 106, David Watt J.A., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.). Evidence ADMISSIBILITY Discretion to exclude Complainant's videotaped statements to police not admissible for truth of contents Female complainant, who was 21 years old, was permitted to give her evidence by closed circuit tv while seated in room adjacent to courtroom. Complainant was also permitted to have support person present with her in room where she was seated. Com- plainant and support person were not to communicate with one another while complainant testified. Crown brought appli- cation to have videotaped state- ments given by complainant to police played for complainant in order to have them admitted for truth of their contents pursuant to s. 715.1 of Criminal Code. Ap- plication dismissed. On whole of record, proper administration of justice and court's common law discretion, videotaped state- ments could not be admitted. R. v. Walsom (2017), 2017 CarswellOnt 5538, 2017 ONSC 2159, Hill J. (Ont. S.C.J.).

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