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Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge did not overemphasize seriousness of offences

Accused was convicted of possession of loaded prohibited firearm, possession of cocaine for purpose of trafficking, and dangerous driving following high risk, vehicular police take-down triggered by confidential informant’s tip. Trial judge found that police violated accused’s rights under ss. 7 to 10 of Canadian Charter of Rights and Freedoms, but admitted evidence of handgun and drugs seized from accused’s vehicle incident to arrest on basis that admission of evidence would not bring administration of justice into disrepute. Accused appealed convictions, alleging that trial judge erred in his s. 24(2) Charter analysis. Appeal dismissed. Trial judge did not overemphasize seriousness of offences by placing particular significance on public interest in prosecution of firearm charges. Trial judge committed no error in his consideration of Grant factors and, absent error, his weighing of those factors was entitled to deference. While impact of breaches on accused’s Charter rights favoured exclusion of evidence, societal interest in adjudicating case on merits tipped balance in favour of admission. Trial judge did not give undue weight to that factor and fact that firearm was involved. He did not err in viewing fact that police obtained two warrants to search different vehicle associated with accused as being indicative of good faith. His factual assessment of officers’ conduct and his conclusion that they acted in good faith was entitled to deference. Trial judge accepted officers’ testimony that they considered informant’s tip that accused was in possession of firearm to be reliable. Judicial officers concluded that informant’s tip provided reasonable and probable grounds to believe that accused was in possession of firearm and that it would be found in his vehicle.
R. v. Allen (2017), 2017 CarswellOnt 2710, 2017 ONCA 170, E.A. Cronk J.A., Paul Rouleau J.A., and B.W. Miller J.A. (Ont. C.A.).

Criminal Law


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 accused 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 dangerous driving causing death and dangerous driving causing bodily 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 floor, and did not take any corrective measures. Accused appealed. Appeal dismissed. Judge did not misunderstand or misapply legal standard for dangerous driving and found that accused’s failure to take corrective action was marked departure from standard of care. Judge did not misapprehend evidence regarding accused’s driving behaviour and corrective action. Judge’s finding that accused’s foot could not have become caught in pedal as described by accused was reached by applying common sense and considering all evidence. Verdict was not unreasonable.
R. v. Burger (2017), 2017 CarswellOnt 1350, 2017 ONCA 101, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9492, 2015 ONCJ 349, Jonathon C. George J. (Ont. C.J.

Criminal Law

Family law


Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).

Criminal Law

Extraordinary remedies

Habeas corpus

Habeas corpus hearing adjourned pending outcome of bail review

Accused was detained awaiting trial on number of counts under Immigration and Refugee Protection Act in respect of advising on immigration matters as non-lawyer without authorization to do so. She was originally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015 she was arrested and charged with breaching bail and committing further offences under Act. Following revocation hearing, her bail was cancelled in November 2015 and she was detained on all charges on December 8, 2015 following show-cause hearing. Preliminary hearing was commenced for each of May 2014 charges and September 2015 charges. Before receiving decision on preliminary hearings, Crown preferred direct indictment on December 11, 2016, with respect to all charges under Act. Direct indictment was filed under s. 577 of Criminal Code. Original charges, including breach of bail charges, were stayed on January 5, 2017. While detained, accused initiated multiple proceedings including two-part habeas corpus application. Proceedings commenced by accused were dismissed and she remained in custody pending trial under new indictment. Accused appealed denial of habeas corpus relief. Decision of application judge was set aside for failure to give adequate reasons and new bail review hearing was to be held forthwith. New habeas corpus hearing adjourned pending outcome of bail review. Under s. 523(1.2) of Code, previous detention order continued to apply in respect of new indictment. Purpose and effect of s. 523(1.2) of Code are to continue previous detention order and make it apply to new indictment. Any stay of original charges has no effect on ongoing status of original detention order. Accused had now spent 18 months in custody. Over 16 months had passed since her re-arrest on charges that she breached her bail. While new charges she allegedly committed while on bail were proceeding, charges that she failed to comply with bail had been stayed. Maximum sentence for five of counts with which accused was charged was two years and five years for sixth count. Accused had been in custody for further six months since dismissal of habeas corpus application and had two further bail reviews. Serious liberty issue now existed and this issue was best addressed in context of bail review. Although accused had argued issue before it did not appear to have been fully considered. More time had passed and breach of bail charges had now been stayed, and these were new factors that may well affect considerations of judge when determining issues on bail review.
R. v. Codina (2017), 2017 CarswellOnt 1109, 2017 ONCA 93, K. Feldman J.A., Paul Rouleau J.A., and K. van Rensburg J.A. (Ont. C.A.).

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


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



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.).
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