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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

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 Accused was subsequently arrested under Extradition Act and Canadian charges were withdrawn.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.).

Criminal Law

Charter of Rights and Freedoms

Life, liberty and security of person [s. 7]

Trial judge erred in holding that s. 7 of Charter was infringed

Detective pretending to be 15 arranged to meet accused after replying to accused’s Craig’s List ad seeking men under 35 wanting fellatio. At lead investigator’s request, documents from accused’s vehicle indicating he was HIV positive were used to prepare media release (release) with accused’s name, address, occupation, church affiliation and HIV status. At trial, accused admitted luring but sought stay under s. 24(1) of Canadian Charter of Rights and Freedoms on basis of, among other things, breach of rights under s. 7. Trial judge found accused guilty of luring and held, among other things, that release violated s. 7 because disclosure of medical information was not authorized or permitted by Municipal Freedom of Information and Protection of Privacy Act or Police Services Act (PSA). Trial judge dismissed application for stay, finding no evidence release aggravated consequences of accused being charged with luring, no evidence to support conclusion that indiscriminate and unlawful disclosure was ongoing institutional problem, and that prejudice suffered by accused could be addressed by stern rebuke and reduction of sentence. Accused appealed dismissal of stay application; Crown appealed sentence. Appeal from conviction dismissed; appeal from sentence allowed. Trial judge erred in holding that disclosure of HIV status in release engaged and infringed s. 7. Section 7 protection against deprivations of or intrusions upon personal security was not absolute. State conduct had to have serious and profound effect on psychological integrity. Trial judge’s holding that s. 7 was engaged and infringed anytime police violated individual’s reasonable expectation of privacy by unlawfully circulating individual’s private medical data did not reflect controlling standard. Finding was at odds with factual conclusion that release would have no effect on accused’s career independent of effect of luring charge. Real issue was not whether actions of police were authorized or prohibited by statute but whether release met threshold of serious and profound effect on accused’s psychological integrity. There was no evidence chief or designate authorized disclosure or reasonably believed accused posed risk of harm to others and that disclosure would reduce risk. Disclosure of HIV status in release about arrest was not so disconnected from law enforcement concerns over existence of potential victims as to render disclosure unreasonable violation of accused’s security of person or informational privacy.
R. v. Gowdy (2016), 2016 CarswellOnt 20589, 2016 ONCA 989, David Watt J.A., G.J. Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 15706, 2014 ONCJ 592, M.S. Block J. (Ont. C.J.). (Ont. C.A.); varied (2014), 2014 CarswellOnt 18004, 2014 ONCJ 696, M.S. Block J. (Ont. C.J.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge erred in invoking s. 24(1) of Charter

Accused edited 74 child pornography films during three years working for co-accused employer. Accused was kept for three days due to adjournment Crown obtained to prevent destruction of evidence on computer although concern was eliminated before three days passed. Accused claimed he was not given his OCD medication on first or second day in custody, was tripped and hit on back of head, was kept in cell overnight dressed only in boxer shorts with no mattress or covers, was given little to drink or eat, and that guards told other inmates of reason for his arrest. Trial judge held that loss of three days’ liberty due to adjournment was arbitrary detention violating accused’s rights under s. 9 of Canadian Charter of Rights and Freedoms and that state agents’ treatment of accused infringed accused’s rights under s. 7 of Charter but declined to enter stay of proceedings. After accused pleaded guilty and was convicted of making child pornography, trial judge sentenced accused to conditional sentence of 21 months to be served in community. Trial judge noted that accused had no criminal record, that nature of charge was at lower end of spectrum, that term of imprisonment would not be proportionate to accused’s role, that accused’s risk of suicide in jail was very high, and held that this was exceptional case requiring override of mandatory one-year prison term for offence. Crown appealed. Appeal allowed; sentence set aside and substituted with 21-month imprisonment sentence, operation of which was to be stayed given accused’s completion of conditional sentence and absence of penological principle or state interest in his re-incarceration. Trial judge erred in finding that accused’s rights under ss. 7 and 9 of Charter were infringed. Trial judge erred in invoking s. 24(1) of Charter to impose sentence outside statutory limits for offence. Trial judge assessed state-imposed psychological stress subjectively based on effects on accused who was susceptible to anxiety and stress due to OCD, rather than on objective basis as required by s. 24(1). Trial judge could have fashioned effective remedy for state conduct within confines of Part XXIII of Criminal Code. If significant bodily harm and repeated assaults on accused in Supreme Court of Canada case did not meet threshold of “exceptional case” for application of s. 24(1) to reduce sentence to outside statutory limits, this case clearly fell short of that threshold.
R. v. Donnelly (2016), 2016 CarswellOnt 20585, 2016 ONCA 988, David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 15683, 2014 ONSC 6472, Nordheimer J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Police breached accused’s Charter rights

Accused was convicted of dangerous driving causing bodily harm and assault with weapon, namely motor vehicle. Charges arose out road rage incident involving accused and van driver, who cut accused’s car off, got out of his van, and approached accused. Accused drove forward, striking van driver. Following his arrest for dangerous driving, accused spoke to duty counsel, but after interview officer told him that he was also going to be charged with assault with weapon, accused asked to contact his own lawyers. Interview officer attempted to contact accused’s lawyers, but upon being told that accused had spoken to duty counsel, officer concluded that accused had had opportunity to consult with counsel and continued interview. Accused appealed convictions, alleging that trial judge erred in failing to find that his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were breached and in failing to exclude evidence of police interview under s. 24(2) of Charter. Appeal allowed. In determining whether accused’s jeopardy had changed, trial judge erred in focusing on facts that charges arose from same circumstances, offences carried same maximum penalty, and new charge was hybrid offence. Assault with weapon charge significantly increased accused’s alleged moral blameworthiness as it required proof that he acted intentionally to harm van driver, rather than that his driving constituted marked departure from norm, and it markedly increased potential penalty. It would be speculative to assume that advice from duty counsel, and accused’s reaction to that advice, would necessarily have been same regardless of any advice about additional charge. Trial judge erred in failing to find that police breached accused’s rights under s. 10(b) of Charter, and his s. 24(2) analysis attracted no deference. New trial ordered.
R. v. Moore (2016), 2016 CarswellOnt 19828, 2016 ONCA 964, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).
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