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Criminal Law

Sentencing

Types of sentence

Accused receiving intermittent imprisonment for sexual assault conviction

Accused worked as model and then as modelling agent for decades. Accused was convicted of four counts of sexual assault and one count of sexual interference. Accused sexually assaulted three male complainants. Accused was 46 years old and he did not have criminal record. Accused had excellent reputation in modelling community but he was unable to work in his field because of charges, which ruined his reputation. Accused suffered from diabetes. Accused sentenced to 30 days’ intermittent imprisonment, less 2 days’ credit for time served and to 18-month conditional sentence.
R. v. Anderson (2017), 2017 CarswellOnt 3473, 2017 ONSC 1322, McWatt J. (Ont. S.C.J.).

Criminal Law

Extradition proceedings

Extradition from Canada

USA granted extradition of accused on charges relating to international fraud investigation

USA alleged that accused participated in fraudulent scheme in which victims in the United States were induced by false representations to send funds to bank or wire transfer facility in Lagos, Nigeria. USA sought extradition of accused on charges relating to international fraud investigation. Application allowed. Accused was committed into custody pursuant to section 29 of Extradition Act, to await surrender for offence set out in Authority to Proceed. Record of the Case (“ROC”) and Supplementary record of the Case (“SROC”) contained admissible evidence that person who collected wire transfers of funds sent by PB was accused, that victims in United States were induced to send these funds via wire transfer by false representations, that PB was associated with and was receiving instructions from one JH who also instructed accused, that Western Union and MoneyGram transfers went from victims to PB and then to accused, and that number of direct transfers went from fraud victims to accused via MoneyGram and Western Union. All of this evidence supported prima facie case that accused possessed money obtained by or derived from indictable offence. In addition, evidence in ROC and SROC established identity of accused as person who possessed wire transfers derived from fraud and whose extradition was sought by USA. Passport obtained by bank in Lagos, Nigeria contained name and birthdate of accused. Booking photo taken by police upon accused’s arrest was same person as person before court. There was evidence available for trial on all of essential elements of offence for which he was sought . Based on material in record, jury properly instructed could convict accused of parallel Canadian offence . Test for committal was therefore met.
United States of America v. Omoruyi (2017), 2017 CarswellOnt 3823, 2017 ONSC 1480, E.M. Morgan J. (Ont. S.C.J.).

Criminal Law

Offences

Extortion

Accused receiving suspended sentence for extortion conviction

Accused attended offices of paralegal agency and threatened B that complaint to Law Society of Upper Canada would be made regarding Z’s conduct that would result in Z being disbarred and agency being shut down. Accused also suggested that this fate could be avoided were he paid $25,000, a figure he subsequently agreed to reduce to $10,000. Accused re-elected to proceed to trial by judge alone and has pleaded guilty to crime of extortion contrary to s. 346(1.1)(b) of Criminal Code. Sentencing hearing held. Having considered carefully submissions of both parties, age and character of offender, nature of offence and circumstances surrounding commission, this was appropriate case to exercise discretion under s. 731(1)(a) of Criminal Code to suspend passing of sentence while directing that accused be released on certain conditions of probation for period of 18 months. There were mitigating circumstances present. Accused was young man who had just completed university education. Accused’s youth was subject to unusual stresses associated with breakdown of parent’s marriage and father’s financial distress. Accused was attempting to launch legal career under the cloud of what will very certainly be challenging circumstances for many years to come as result of conviction regardless of what sentence may be imposed. Accused had no criminal record or record of involvement with police.
R. v. Fattore (2017), 2017 CarswellOnt 5587, 2017 ONSC 2410, S.F. Dunphy J. (Ont. S.C.J.).

Criminal Law

Offences

Dangerous driving causing bodily harm

Police officer convicted of dangerous driving for collision while speeding to emergency

Accused OPP constable responding to emergency call about serious motor vehicle accident entered small village, travelling at 178 km/h in 50 km/h zone, and entered intersection where he collided with complainant’s vehicle. Complainant suffered cracked ribs and concussion, and property damage resulting from collision was extensive. Accused was found guilty of dangerous driving causing bodily harm. Trial judge found that accused’s conduct amounted to marked departure from standard of care of reasonable police officer. Accused fined $2,500. It was aggravating that accused, police officer sworn to uphold laws of province, committed criminal offence. Facts were also aggravating, given his extremely high rate of speed through village in mid-afternoon leading to collision causing bodily harm. It was accepted that accused was remorseful. Deterrent sentence must emphasize community disapproval of act and brand it reprehensible. Gravamen of offence was disregard for public safety. Accused’s motive being protection of public safety substantially mitigated his moral culpability. His act became criminal only because he responded in disproportionate manner. Sentence must attempt to balance accused’s level of culpability and need to denounce and deter with other relevant circumstances, including fact that complainant made illegal left turn into path of accused’s police vehicle. Accused did not need specific deterrence or rehabilitation. However, discharge sought by defence would be contrary to public interest as it would not satisfy general deterrence or denunciation. Proportionate sentence was $2,500 fine with appropriate surcharge and driving prohibition of 12 months.
R. v. Porto (2017), 2017 CarswellOnt 4880, 2017 ONSC 733, Bruce Thomas J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Other Charter issues

Discoverability doctrine not dispositive of analysis required by Charter s. 24(2)

Nexus between impugned evidence and Charter breach. Police detained accused driver at roadside as suspect in recent hit-and-run accident. While accused was being detained, police smelled alcohol on his breath, which led to accused being tested on approved screening device and then on breathalyzer. Trial judge convicted accused of driving “over 80”. Trial judge found that accused’s right to counsel was breached at roadside, but she declined to exclude breath results pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms (Charter). Trial judge found that “nothing materially flowed” from breach of accused’s right to counsel (“nothing flowed finding”). Accused appealed. Appeal allowed; accused acquitted. Trial judge committed error in law by failing to conduct three-prong analysis required by s. 24(2) of Charter (Grant analysis). “Nothing flowed finding” did not constitute Grant analysis. “Nothing flowed finding” expressed view that breath results were not “obtained in a manner“ that infringed accused’s rights because breath results were unconnected to Charter breaches. In case at bar, there were, at minimum, clear contextual and temporal connections between breath samples and Charter breaches. If accused had been afforded right to counsel immediately upon detention, he might have said nothing, in which case alcohol might not have been detected on his breath. “Nothing flowed finding” did not constitute Grant analysis based on discoverability doctrine. Discoverability doctrine cannot be dispositive of Grant analysis, as it is only factor to be taken into account under second prong of Grant analysis.
R. v. Lima (2017), 2017 CarswellOnt 5113, 2017 ONSC 2224, Fairburn J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Notice of constitutional question

Crown bound by declaration that Criminal Code s. 151 unconstitutional

Accused was charged with sexual interference. Defence initially indicated that it would be challenging constitutionality of mandatory minimum sentence imposed for convictions on this charge but then relied upon case that held that minimum sentence under s. 151 of Criminal Code was unconstitutional and of no force and effect. Crown sought order of Mandamus requiring defence to file and serve Notice of Constitutional Question on Attorney Generals of Canada and Ontario, to allow it to defend constitutionality of mandatory minimum jail sentence of one year for offence of sexual interference under s. 151 of Criminal Code. Application dismissed. Court agreed with Crown’s enunciation of principles of stare decisis, namely that judge is not bound by decision of another judge of same court on same issue. Decision by judge of court of concurrent jurisdiction is of persuasive value only but such judgment should be followed unless subsequent judge is satisfied that it was plainly wrong. Crown was bound by declaration made by Superior Court judge, with inherent jurisdiction, that section of Criminal Code was unconstitutional, was of no force and effect, and was effectively removed from statute books, where notice of constitutional question was properly served on Attorney Generals of Canada and of Ontario. Declaration under s. 52 of Constitution Act that section of law is unconstitutional is not limited to proceeding before court. Court agreed with submission by defence that once declaration is made by judge with inherent jurisdiction that law contravenes Constitution offending section ceases to exist and is of no force and effect. Crown’s only remedy was to appeal first Superior Court judge’s declaration that section of Criminal Code was unconstitutional.
R. v. S. (J.D.) (2017), 2017 CarswellOnt 4800, 2017 ONSC 1869, R. Smith J. (Ont. S.C.J.).

Criminal Law

Extraordinary remedies

Habeas corpus with certiorari in aid

Application in nature of habeas corpus with certiorari in aid was dismissed


Accused was convicted on charge of importing cocaine as person charged with offence under s. 6(1) of Controlled Drugs and Substances Act. Accused brought application in nature of habeas corpus with certiorari in aid before judge of Superior Court of Justice which was dismissed. Accused appealed. Appeal dismissed. Limited exception to general unavailability of habeas corpus as remedy against denial of judicial interim release was beyond accused’s grasp. Further, accused has not attempted to comply with notice requirements applicable to challenges under s. 52 of Constitution Act. To permit her to invoke habeas corpus to achieve same result would be to allow her to mount indirect attack on integrity of the legislation, a course that was not open to her. 

R. v. Passera (2017), 2017 CarswellOnt 5311, 2017 ONCA 308, David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.).
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