Law Times

Page 14 December 3, 2012 Law Times • caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. ONTARIO CRIMINAL CASES Appeal GROUNDS Defence counsel should not have raised fitness issue in absence of accused Accused charged with criminal harassment and uttering death threat. Accused went to his ex-wife's apartment after she left their son at home with male friend. Accused pounded on door and demanded to see his son. Ex-wife contacted police and they escorted accused away. Accused then made many calls to complainant over several days calling her names and saying that if anything happened to their son she would "leave earth". At outset of trial defence counsel raised issue of accused's fitness before accused was brought to court and referred to solicitor-client communications. Accused was assessed and found to be fit. Following accused's conviction defence counsel requested assessment of accused's mental health and criminal responsibility. Defence counsel was instructed not to pursue NCRMD defence but Crown sought NCR hearing. Psychiatrist at hearing testified that accused suffered from alcoholinduced dementia and so did not appreciate that his actions were morally wrong because he believed he was protecting his son. Trial judge found that accused was not criminally responsible by reason of mental disorder. On appeal accused testified that NCRMD defence was first raised contrary to his instructions and alleged that his counsel had been incompetent. Accused gave confusing and contradic- Heydary_LT_Dec3_12.indd 1 tory answers on instructions he gave when cross-examined on appeal. Appeal dismissed. Accused was not prejudiced by defence counsel's performance. Defence counsel should not have raised fitness issue in absence of accused or disclosed privileged communications but finding that accused was fit negated any prejudice. Accused failed to show that defence counsel raised NCRMD issue without instructions and counsel opposed NCRMD finding when his instructions changed. R. v. Szostak (July 19, 2012, Ont. C.A., Rosenberg, Cronk and LaForme JJ.A., File No. C49582) Decision at 75 W.C.B. (2d) 21 was affirmed. 103 W.C.B. (2d) 111 (44 pp.). Trial judge erred in relying on officers' opinions Appeal by accused from conviction for trafficking cocaine. Issue at trial was identity. Trial judge was unable to identify accused as trafficker captured in surveillance photographs. Accused claimed that judge erred in relying upon opinion of police officers that accused was trafficker in photographs. Appeal allowed. Conviction set aside. Verdict was not supported by evidence. Judge erred by relying on officers' opinions. They did not have any greater expertise, particular advantage or special knowledge that enabled them to identify accused as perpetrator. R. v. Cranham (June 28, 2012, Ont. C.A., Laskin, Blair and Hoy JJ.A., File No. C53083) 103 W.C.B. (2d) 13 (6 pp.). Breach of Trust By Public Official GENERAL Accused intended to use her public office for purpose other than public good These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Trial of accused after she was charged with six counts of fraud on government contrary to s. 121(1)(a)(ii) of Criminal Code; nine counts of fraud on government under s. 121(1) (d) of Code; 12 counts of breach of trust by public officer under s. 122 of Code; and one count of bribery under s. 120(a) of Code. Accused was employed as acting manager with Citizenship and Immigration Canada during 2003 and 2004. She was friendly with her esthetician and her husband. Accused and husband formed joint enterprise to make money by helping immigrants with their immigration files. Husband let it be known in Lebanese community that for price he could make things happen with immigration files because he had someone helping him within Immigration. That person was accused. Husband met with clients, he learned about their circumstances and he then got accused to help him process file as quickly as possible. Accused remained anonymous. She accessed client's file and determined what needed to be done to move file forward. She then used her managerial role to get result that client would not otherwise receive or she would use her position to speed up process to get desired result earlier than normal. Charges pertained to 10 files. Crown provided overwhelming amount of evidence to prove that accused was guilty as charged. When submissions were made accused's counsel advised that he had nothing to say regarding evidence that supported charges. Accused convicted of all offences with exception of bribery. That charge was dismissed because Crown failed to prove that accused was public officer under www.lawtimesnews.com s. 120(a). Under s. 121(1)(a) (ii) Crown had to prove that accused was official who demanded or who agreed to accept benefit of any kind. Under s. 121(1)(d) Crown had to prove that accused was party to offence and that she was official who husband claimed to have influence with and that she demanded or who agreed to accept any kind of benefit. Accused had to do something which encouraged husband to commit this offence. She had knowledge of elements of this offence and she intentionally helped husband in commit it. Crown proved elements of offences under s. 121(1)(a)(ii) and(d). Court decided that all evidence tendered at trial was similar fact evidence that could be considered in regard to each count. Statements that husband made to clients could be taken as describing accused's role in joint venture. Such statements were admissible for truth of their contents on basis of co-conspirator's exception to hearsay rule. Conspiracy existed and accused was member of it. Husband's acts and declarations were admissible as evidence against accused. Regarding breach of trust offences under s. 122, commission of offences was done in connection with duties of accused's office and accused breached standard of responsibility and conduct demanded of her by nature of her office. Her conduct also represented serious and marked departure from standards expected of individual in her position of public trust. Accused also acted with intention to use her public office for purpose other than public good. R. v. Serre (June 22, 2012, Ont. S.C.J., Aitken J., File No. 0530104) 103 W.C.B. (2d) 29 (86 pp.). Breathalyzer REFUSAL TO PROVIDE SAMPLE Police could not force accused to accompany them to station Accused charged with refusing to provide breath sample. Accused was pulled over by police and failed roadside screening device test. Accused arrested for over 80 and given formal intoxilyzer demand. Accused asked to speak with counsel when informed of his right to counsel. Following lengthy conversation with police officer accused said that he did not want to accompany police to give breath sample. Accused arrested for refusing to provide sample and released from scene on promise to appear after calling for ride. Trial judge found that offence was complete at roadside and police could not force accused to accompany them to station to speak with counsel and provide sample. Appeal from conviction allowed and acquittal entered. Police had authority to transport accused to station. Demand at roadside is continuing demand for sample to be provided at station. Effect of demand is suspended until accused has invoked his s. 10(b) rights and has had opportunity to consult with counsel at station. Accused's refusal was provisional not final or definitive and Crown failed to prove actus reus of offence. R. v. Mandryk (July 19, 2012, Ont. S.C.J., Code J., File No. 1110000061-00AP) 103 W.C.B. (2d) 35 (25 pp.). Customs and Excise Offences GENERAL Accused falsely described goods as parts when they comprised complete vehicle Accused appealed convictions for making false or deceptive 12-11-27 1:49 PM

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