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Criminal Law

Appeal from conviction or acquittal

Accused’s essential argument did not qualify for leave to appeal

Accused was convicted of driving with excessive alcohol after she was stopped by police officer for speeding. Officer noted signs of impairment, including odour of alcohol, and accused admitted that she had been drinking. Accused’s summary conviction appeal was dismissed. Accused argued, for first time, that her rights under ss. 9 and s. 10(b) of Canadian Charter of Rights and Freedoms had been breached. Appeal judge refused to exercise his discretion to allow arguments not raised at trial to be advanced at appeal level, finding that evidence at trial amply justified decision of trial counsel not to pursue any Charter remedies. Accused applied for leave to appeal. Application dismissed. Accused’s argument at trial that breath tests were not taken as soon as practicable was rejected. Appeal from summary conviction appeal must involve question of law alone. Accused’s essential argument that she was treated unfairly did not qualify for leave to appeal as it did not raise question of law alone. Even if it did, circumstances were not such as to meet requirements in R. v. R. (R.).
R. v. Hart (2016), 2016 CarswellOnt 17367, 2016 ONCA 739, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.); leave to appeal refused (2016), 2016 CarswellOnt 3490, 2016 ONSC 1620, B.P. O’Marra J. (Ont. S.C.J.).



Confessions rule requires that oppressive conditions be caused or created by state

Accused presented himself at police station and claimed to have burned down his mother’s house. Police gave accused required warnings and advised of right to counsel. On voir dire trial judge held confession to be inadmissible as involuntary as accused, who was homeless, made it in order to be sent to jail. Trial judge held that fact that accused was homeless meant that he was suffering under oppressive conditions. Accused was acquitted. Crown appealed. Appeal allowed and new trial ordered. No nexus between threat or promise and confession as accused came to police detachment with express purpose of confessing to arson. Act of supplying accurate factual information to accused does not constitute inducement. Trial judge found that conduct of police was “unimpeachable” and “blameless” so not possible that oppression was a factor. Under confessions rule oppressive conditions must be caused or created by state.
R. v. Fernandes (2016), 2016 CarswellOnt 16289, 2016 ONCA 772, Doherty J.A., S.E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from sentence
Trial judge improperly recorded absence of remorse as aggravating factor

Accused was sentenced to five years and three months imprisonment. Accused appealed from conviction and sentence. Appeal allowed in part. On sentence appeal, accused was entitled to pre-trial custody credit on 1.5:1 basis. Trial judge explicitly, and improperly, recorded absence of remorse as aggravating factor. Credit for 305 days of pre-sentence custody awarded. On remorse issue, sentence reduced by three months, to five years. No issue arose with forfeiture order or order made under s. 161 of Criminal Code. Trial, including sentence, was completed under 30 month ceiling suggested in 2016 Supreme Court of Canada judgment, and did not breach s. 11(b) of Charter of Rights and Freedoms.
R. v. Kidd (2016), 2016 CarswellOnt 15971, 2016 ONCA 757, MacPherson J.A., Epstein J.A., and Lauwers J.A. (Ont. C.A.).


Summary conviction appeals

Appeal had no apparent merit

Accused was found in driver’s seat of vehicle from which steam or smoke was emanating, with her head down. Responding police officer detected strong odour of alcohol coming from accused as she walked away, as well as slurred speech and red and bloodshot eyes. Accused was convicted of impaired driving. Her appeal from conviction was dismissed. Accused applied for leave to appeal. Application dismissed. Leave should be granted sparingly in such circumstances. Appeal had no apparent merit. Trial judge’s factual finding that accused’s conduct created realistic risk of danger to persons or property was amply supported by evidence. Accused admitted that she entered her vehicle with intention of driving it. She drank alcohol while in driver’s seat, with keys in ignition and car turned on. Passer-by found her at wheel and unresponsive. Accused had not identified any error of law by summary conviction appeal judge.
R. v. Stacey (Jul. 6, 2016, Ont. C.A., Paul Rouleau J.A., C.W. Hourigan J.A., and G. Pardu J.A., C61653) Leave to appeal decision at 127 W.C.B. (2d) 536 was refused. 132 W.C.B. (2d) 580.



Trial judge erred in admitting hearsay evidence

Accused and deceased lived next to each other in rooming house and regularly used crack cocaine, often together. Accused stabbed deceased several times with knife and chased her friend G down hall with knife. Accused was charged with first degree murder. Trial judge admitted hearsay statement allegedly made by deceased to G that accused had stalked and beaten her, and statement by another rooming house resident P to police that accused was possessive and jealous of deceased, under principled exception to rule against hearsay evidence. Jury acquitted accused of first degree murder but convicted him of included offence of second degree murder. Accused appealed conviction. Appeal allowed. Trial judge erred in admitting hearsay evidence in support of Crown’s contention that deceased’s murder was motivated by accused’s anger and jealousy over her relationship with G. Crown did not demonstrate that hearsay evidence on which it relied was sufficiently reliable to justify its admission under principled exception to rule against hearsay evidence. Improperly admitted hearsay evidence was important feature of Crown’s case as it related to accused’s alleged animus towards deceased. That animus was central to Crown’s case on issue of intent. It could not be said that verdict would necessarily have been same had evidence been excluded. There was no suggestion that deceased’s statement to G, offered by Crown for proof of its contents to show that accused had previously assaulted, stalked, and was obsessed with deceased, fell within any of traditional exceptions to rule against hearsay evidence. Trial judge materially misapprehended evidence that was central to his ultimate assessment of reliability of deceased’s hearsay statement. Similarly, P’s statement should not have been admitted. P’s opinion about nature of deceased’s relationship with accused was not admissible under principled exception against hearsay evidence. Improper admission of P’s statement exacerbated prejudice suffered by accused through improper admission of deceased’s statement to G. New trial ordered.
R. v. Dupe (Sep. 2, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C54443) 132 W.C.B. (2d) 472.

Drug offences


Food and Drugs Act (Can.) supported inclusive interpretation of definition of “drug”

Between March 2008 and January 2010, accused marketed and sold products that contained 1-Benzyl-Piperazine (“BZP”), substance similar to amphetamine. During that time, BZP was not listed under any schedule in Food and Drugs Act (Can.) (“FDA”) or Controlled Drugs and Substances Act (Can.). Health Canada warned accused that it considered BZP to be drug, and requested that he apply for necessary approvals and licences. Accused was eventually charged with regulatory offences under FDA and regulations. Accused’s application for directed verdict was dismissed. Accused was convicted. Accused appealed. Appeal dismissed. Definition of “drug” in FDA applies to all substances manufactured, sold, or represented for use in modifying organic functions, regardless of whether substance is intended for medicinal, therapeutic or recreational use. Legislative history and relevant Hansard evidence suggested that intention of legislature was that definition of “drug” would extend beyond merely therapeutic or medicinal uses. Greater statutory context and its legislative history did not support accused’s restrictive interpretation. FDA supported inclusive, rather than restrictive interpretation of definition of “drug”. BZP was advertised as preventing addiction to other more harmful substances, and statement fell squarely within offence set out in s. 3 of FDA.
R. v. Wookey (Aug. 5, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C58019) Decision at 105 W.C.B. (2d) 94 was affirmed. 132 W.C.B. (2d) 336.

Charter of Rights

Trial within reasonable time

Crown did not rebut presumption that delay was unreasonable

In 2016, Supreme Court of Canada issued decision creating new regime for unreasonable pre-trial delay under s. 11(b) of Canadian Charter of Rights and Freedoms (“new s. 11(b) regime”). New s. 11(b) regime established rebuttable presumption that delay over 30 months in Superior Court was unreasonable. For transitional cases involving charges brought prior to new 11(b) regime, Supreme Court of Canada made allowance for account to be taken of previous 11(b) regime. Accused was charged prior to new s. 11(b) regime, and total delay until trial date in Superior Court was approximately 36 months. Accused brought application seeking stay of proceedings based on pre-trial delay. Application granted. Subject delay remained at 36 months, well above 30-month ceiling under new s. 11(b) regime, and was therefore presumptively unreasonable. Twelve-month delay during preliminary hearing was not deducted from subject delay as it could not be attributed to defence. Fact that it was defence witnesses that were being examined during this 12-month delay did not mean delay was attributable to defence. Examinations of defence witnesses covered legitimate topics and were not frivolous, excessive or irrelevant. Crown did not rebut presumption that subject delay was unreasonable by showing exceptional circumstances under new s. 11(b) regime. Crown did not prove that subject delay was justified based on previous s. 11(b) regime. Case at bar was simple and straightforward, with preliminary hearing that took only two days and trial that was expected to take no more than five days.
R. v. Zammit (Aug. 10, 2016, Ont. S.C.J., K.P. Wright J., CR-16-9227) 132 W.C.B. (2d) 331
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