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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Trial judge erred in holding that accused’s Charter rights were breached

Accused’s son was under investigation for murder. Police obtained wiretap authorization naming four “principal known persons” including accused and his son. Accused was believed to have knowledge of his son’s involvement in murder and to have blocked police access to his son during initial investigation. As result of intercepted communications, police formed belief accused was involved in drug trafficking. On arresting him, police discovered large quantity of cash and heroin in car in which accused was travelling. At trial on drug charges, accused challenged validity of wiretap authorization. Trial judge granted application, ordered exclusion of seized heroin and cash, and accused was acquitted. Crown appealed. Appeal allowed. Acquittal was set aside and new trial was ordered. Test which reviewing judge was to apply was whether, in light of record amplified on review, ITO contained sufficient reliable evidence that might reasonably be believed on basis of which authorizing justice could have concluded that conditions precedent required to be established were met. Threshold for naming person in affidavit and authorization as “known person”, within meaning of s. 185(1)(e) of Criminal Code, was not onerous. Trial judge’s ultimate conclusion that “all we have is the simple fact of a father and son relationship and nothing else” resulted from his assessment of evidence in piecemeal fashion. When evidence was assessed cumulatively, taking into account larger context, it went much further: (i) accused’s son was prime suspect in murder; (ii) son lived with accused; (iii) son worked at his father’s pizza business and continued to do so after murder; (iv) information obtained by police led them to believe two of son’s friends were present with him at time of murder; (v) day after murder, at least one of those friends visited pizza shop when son was not there, but accused was; (vi) accused was less than candid in what he told officers who visited his pizza store; and (vii) accused’s driving on two occasions strongly suggested he was aware he was under police surveillance. Trial judge erred in holding that accused Charter rights were breached because ITO did not contain sufficient evidence to meet “may assist” standard.
R. v. Hafizi (2016), 2016 CarswellOnt 19469, 2016 ONCA 933, E.E. Gillese J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); reversed (2014), 2014 CarswellOnt 8547, 2014 ONSC 3547, Robert N. Beaudoin J. (Ont. S.C.J.)

Criminal Law

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 convictions. Appeal allowed. Trial judge erred with respect to use he made of accused’s criminal record and his evaluation of evidence was flawed in material respects. Trial judge concluded that several aspects of accused’s testimony strained belief, including 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 limited use permitted by Canada Evidence Act. Trial judge considered 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 ignored relevant evidence that he was required to consider before rejecting accused’s evidence on that point. Trial judge also misapprehended 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 CarswellOnt 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 CarswellOnt 416, 2014 ONSC 86, E. Gareau J. (Ont. S.C.J.).

Criminal Law

Offences

Assault

Totality of evidence allowed trial judge to reach conclusion

Accused was convicted at judge-alone trial, on charge of aggravated assault. Accused claimed that judge did not properly analyze 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 incident. Accused finally claimed that trial judge’s finding that witness was not assailant, while accused was, was improper. Accused appealed from conviction. Appeal dismissed. Trial judge did not rely on disreputable witnessed to determine that stabbing took place by accused. Trial judge properly considered these witnesses’ evidence to determine 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 corroborated by testimony of complainant. Trial judge properly accepted complainant’s testimony, to establish number and gender of assailants. Totality of evidence allowed trial judge to reach conclusion 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.).

Criminal Law

Extradition proceedings

Extradition from Canada

Application for bail pending appeal of extradition order was dismissed

United States alleged that accused coerced two sisters living in Virginia into performing sadistic sexual acts with each other in front of webcam while accused watched and captured images on his computer for pleasure. Accused was arrested on domestic charges in 2012 and released on bail. Accused was subsequently arrested under Extradition Act and Canadian charges were withdrawn. Accused’s application for bail in relation to extradition proceedings was dismissed and accused was committed for extradition to United States. Accused was ultimately discharged on appeal, based on finding there was insufficient evidence for committal for offence of child luring. United Stated advised they conducted search of accused’s computer and as result, 80 new alleged victims were located, 70 of whom were in United States, and accused was once arrested and once again committed for extradition to United States. Accused commenced appeal of order. Accused brought application under Act for bail pending appeal of order committing him for extradition to United States. Application dismissed. Appeal was not frivolous; however, accused failed to show he was not flight risk. Strength of case against accused increased as was magnitude of accused’s alleged wrongdoing. Accused was well-versed in travel. Detention was necessary in public interest. Evidence against accused demonstrated ongoing systematic pattern of intimidating threatening and exploiting vulnerable children; risk of re-offending was not met by proposed plan of supervision. Accused’s continued detention was necessary to maintain public’s confidence in administration of justice.
United States of America v. Viscomi (2016), 2016 CarswellOnt 20375, 2016 ONCA 980, Eileen E. Gillese J.A., In Chambers (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms
Unreasonable search and seizure [s. 8]

There was reason to question accuracy of information

Two accused, SI and SH, were subject of telewarrant. Both accused were found in separate units of same condo building, with drugs, firearms, and ammunition present. Both accused challenged validity of warrant, with SH testifying that he had no knowledge of items in apartment unit which was not his. SI did not testify. Accused moved unsuccessfully to cross-examine affiant of warrant. SH was found guilty only as to count of firearm possession, with other material not proven to be in his control. SI was found guilty on all counts. SI was sentenced to 10 years’ imprisonment, with SH being sentenced to 6 years imprisonment. Accused claimed that s.8 violation under Charter of Rights and Freedoms should have been found, by trial judge. SI also claimed that sentence was unfit. Both accused appealed from convictions. Appeal allowed. Cross-examination should have been permitted. There was reason to question accuracy of information, with affiant expressing some doubt as to contents. Proper corroboration was not present.
R. v. Shivrattan (2017), 2017 CarswellOnt 329, 2017 ONCA 23, Doherty J.A., C.W. Hourigan J.A., and L.B. Roberts J.A. (Ont. C.A.).

Youth Offenders

Youth Criminal Justice Act

Crown did not rebut presumption of diminished moral culpability

Accused young persons T and M were involved in planning shooting of 16-year-old deceased, and were convicted of first degree murder. M and T were accepted for intensive rehabilitative custody and supervision (IRCS) orders, if sentenced as youth. Youth court judge granted Crown’s application to have adult sentences imposed and gave M and T life sentences with 10 years’ parole ineligibility. M and T had served 2.5 years of their adult sentences. M and T appealed. Appeals allowed; sentences varied. Adult sentences were set aside and youth sentences were substituted, of ten years with IRCS order, six years of which were to be in custody, for M, and ten years with IRCS order, four years of which were to be in custody, for T. Judge erred in concluding that IRCS program would not accomplish necessary rehabilitation by relying on speculative concerns about M and T’s willingness to cooperate with IRCS orders and other inaccurate assumptions about implementation and enforcement of such orders. It was appropriate to exercise discretion to impose maximum youth sentences on top of time served of adult sentence. Crown did not rebut presumption of diminished moral culpability of T or M. T and M were 16 years old at time of offence and resided in community of disadvantaged youths. T and M’s participation in crime did not evidence level of maturity or independent judgment and foresight beyond that of adolescent, but evidenced immaturity, impulsiveness, or other ill-considered motivation. T and M could be held sufficiently accountable for their criminal conduct by imposition of ten-year youth sentence with IRCS order on top of time spent serving adult sentences. Ten-year youth sentence with IRCS order would provide intensive treatment and counselling and was best sentence to meet sentencing objectives of protecting public and rehabilitation.
R. v. W. (M.) (2017), 2017 CarswellOnt 327, 2017 ONCA 22, Gloria Epstein J.A., S.E. Pepall J.A., and K. van Rensburg J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 7925, 2014 ONSC 3436, Nordheimer J. (Ont. S.C.J.).

Criminal Law

Offences

Murder

Non-direction by trial judge amounted to misdirection

CW and SH were in dispute over relationship and wanted to fight. Accused was CW’s brother. Accused was asked by CW to go to parking lot and watch out for him during fight. When accused arrived in parking lot, he saw CW and SH fighting. Instead of getting out of his vehicle to help his brother, accused drove truck towards both men. Accused accelerated, then applied braked. Truck fishtailed and struck SH and crushed him against wall. Accused then left area without offering any assistance to SH. Accused was convicted of second degree murder. Accused appealed. Appeal dismissed, and conviction of manslaughter substituted in place of conviction of second degree murder. Charge to jury did not adequately equip jury to determine nature and extent of accused’s liability for death of SH. Failure of trial judge to make clear role of accident constituted non-direction amounting to misdirection in circumstances of case.
R. v. Ward (2016), 2016 CarswellOnt 20379, 2016 ONCA 984, R.G. Juriansz J.A., David Watt J.A., and L.B. Roberts J.A. (Ont. C.A.).
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