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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

Offences

Sexual assault

There was no basis to interfere with sentence

Accused and complainant met at social gathering at mutual friend’s home. Complainant fell asleep on couch. Trial judge found accused engaged in sexual intercourse with complainant while she slept, without her consent, knowing that she was not consenting. Accused was convicted of sexual assault and sentenced to incarceration of 30 months. Accused appealed conviction and sought leave to appeal sentence. Appeal dismissed. Leave to appeal sentence granted. Appeal of sentence dismissed. Trial judge’s credibility analysis was reasonable and supported by evidence, she properly instructed herself, and she did not improperly shift burden of proof onto accused. Forensic evidence was neutral. There was no basis to interfere with sentence, which was within range.
R. v. Sanderson (2016), 2016 CarswellOnt 18094, 2016 ONCA 866, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).

Criminal Law

Narcotic and drug control

Offences

Sentence at upper end of range was not warranted

Accused delivered one-kilogram brick of cocaine contained in grocery bag to man. Accused was 44-year old first offender who was gainfully employed at time of his arrest. Jury convicted accused of trafficking. Trial judge sentenced accused to eight years’ imprisonment less credit of 24 days for time spent in pre-disposition custody. Accused appealed sentence. Appeal allowed. Sentence was reduced to term of five years. Trial judge erred in making findings of fact that prior transactions between accused and man who supplied him with brick involved cocaine or methamphetamine in absence of evidence to support such conclusion and using that finding as aggravating factor on sentence. Trial judge erred in failing to give effect to principle of parity in light of sentences imposed on two others involved. Trial judge erred in imposing sentence of imprisonment at upper end of range of sentence without taking into account that accused was first offender. Evidence did not warrant sentence at upper end of range of sentence applicable to accused’s offence for first offender. Trial judge did not have benefit of Gladue report which was received as fresh evidence on hearing of appeal. Report and errors warranted reduction in sentence.
R. v. McIntyre (2016), 2016 CarswellOnt 17506, 2016 ONCA 843, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).


Criminal Law

General principles

Incomplete crimes

Appeal from conviction for counselling murder was dismissed

Murder. Accused was convicted of two counts of sexual assault causing bodily harm and single counts of breach of recognizance and counselling murder, offence that was not committed. Accused allegedly solicited fellow jail inmate to kill complainant in sexual assault and breach of recognizance counts so that she could not testify against him, but parties did not conclude agreement about how killing was to be carried out at that time. Putative killer, career criminal, testified that accused’s plan was for complainant to die of apparent accidental drug overdose while accused was in jail. Accused appealed conviction for counselling murder. Appeal dismissed. Trial judge did not err in finding that accused “proactively” engaged in conversation about killing complainant in jail yard, or in erroneously relying on evidence of later discussions to confirm evidence of unsavoury prosecution witness. Counselling commission of offence that is not committed is inchoate or preliminary crime complete when solicitation occurs, even if person incited rejects solicitation or merely feigns assent. Trial judge’s findings respecting unrecorded discussion in jail yard established essential elements of counselling offence. Those findings were open to trial judge to make on evidence of principal Crown witness. Trial judge did not misapprehend or err in considering as confirmatory of evidence of putative killer portions of conversations surreptitiously recorded later in jail. He found, as he was entitled to do, that offence was complete when accused and putative killer met, at accused’s invitation, in jail yard.
R. v. Devitt (2016), 2016 CarswellOnt 18092, 2016 ONCA 871, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.).


Criminal Law

Offences

Sexual assault

Fresh evidence was relevant to complainant’s credibility

Accused was convicted of sexually assaulting and uttering death threats to his former partner over period of 26 months. Complainant claimed accused forced himself on her three times but he insisted sex was consensual. To bolster his defence, accused raised issue of Facebook message sent in February 2009 by complainant to his new partner and current wife. At trial in 2011, complainant maintained she had no memory of sending message and testified she did not think she did so. Following Crown objecting on procedural grounds, trial judge ruled against further cross-examination and directed jurors to set aside evidence they had heard about post. Accused appealed and requested permission to introduce fresh evidence, with Crown not objecting. Appeal allowed; Conviction quashed and new trial ordered. Submissions of expert forensic analyst of computer belonging to accused’s current wife turned up relevant message on her Facebook account with no manipulation of date and content. Message was sent around midpoint in time period of sexual assault allegations and court held it would not be unfair to say message recounted several incidents of sexual activity between accused and complainant and made it clear that sexual activity was consensual on complainant’s part. Further, message was found to have come from computer address associated with complainant’s brother and when complainant was interviewed about results of investigation, she acknowledged sending message. Had message been allowed at trial, it could have affected accused’s conviction. Fresh evidence was relevant to complainant’s credibility on issue of consent, which was only controversial element at trial. At request of Crown and defence, court stayed new trial order.
R. v. B. (A.) (2016), 2016 CarswellOnt 17301, 2016 ONCA 830, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).


Criminal Law

General principles

Jurisdiction

Fresh evidence of identity documents was not admissible

Based on age of accused. Four deceased family members were found in car submerged in water in canal system. Three other family members, S, T, and H, were each convicted of four counts of first degree murder. Accused contended that H should not have been tried with other accused, his parents, because he was too young to be tried as adult. H sought to admit fresh evidence as to proof of age. Accused appealed. Appeals dismissed. Fresh evidence of three identity documents was not admissible and effect was not to be given to remedies sought as consequence of their proposed reception. When deceased were killed, H was not “young person” as defined in s. 2(1) of Youth Criminal Justice Act. Jurisidictional challenges advanced first time on appeal were exceptional, all more so when information necessary to ground challenge was within peculiar knowledge of accused and his parents who, when asked, said he was 18. Compelling evidence was not provided to show that H was “young person”. Since proposed evidence did not go to findings of fact essential to determination of guilt or adjudicative fairness, greater emphasis was placed on avoiding “gaming the system” by challenge to jurisdiction on appeal after adverse verdict at trial. Principal evidence tendered for admission, tazkira document, would not be admissible under adjectival law if tendered on jurisdictional challenge at trial. As proof of H’s age, document was hearsay, its author and time of relevant entry being unknown, and even double hearsay if source was unknown “local representative”. Birth date of December 31, 1991 was asserted solely on basis of “new” document and despite lengthy history of consistent and repeated representations, some in sworn declarations to gain entry into various countries including Canada, that H was born on December 31, 1990.
R. v. Shafia (2016), 2016 CarswellOnt 17126, 2016 ONCA 812, David Watt J.A., P. Lauwers J.A., and G. Pardu J.A. (Ont. C.A.).


Criminal Law

Offences

Trial judge considered many strands of circumstantial evidence

Accused and 15-year-old deceased travelled on accused’s snowmobile, which failed to properly negotiate turn in road and collided with tree. Deceased was killed as result of collision. Single issue at trial was identity of driver of snowmobile. Accused was found guilty of impaired driving causing death, driving with excessive alcohol causing death, and driving while disqualified. Accused’s blood alcohol reading was over legal limit. Trial judge entered convictions on counts of impaired driving causing death and driving while disqualified, and stay on count of driving with excessive alcohol causing death. Accused appealed convictions. Appeal dismissed. Trial judge did not err in failing to consider exculpatory portions of parts of accused’s 911 call, in which he said he crashed his snowmobile, and of his statement to police officer at hospital. Those utterances were relevant to issue of identity of driver, and trial judge was entitled to accept or reject that evidence in whole or in part. Reading reasons as whole, trial judge did not found his conviction on some lesser standard than proof beyond reasonable doubt. Trial judge considered many strands of circumstantial evidence and then assessed their cumulative effect. Piecemeal analysis invited by accused was inconsistent with approach to circumstantial evidence required by authorities. Complaint that trial judge erred by permitting Crown to split its case by calling reply evidence failed. Evidence did not exceed what law permits. It was conceded that if impaired operation convictions were sustained, conviction for driving while disqualified could not be impeached as unreasonable.
R. v. Cook (2016), 2016 CarswellOnt 16445, 2016 ONCA 794, David Watt J.A., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.); affirmed (2012), 2012 CarswellOnt 2492, 2012 ONSC 985, J.S. O’Neill J. (Ont. S.C.J.).


Criminal Law

Offences

Criminal Code process for admission of evidence of prior sexual history is mandatory

Accused was convicted of sexual assault causing bodily harm, unlawful confinement, uttering death threat, threatening bodily harm while committing sexual assault, overcoming resistance by choking, and assault. Accused appealed convictions on basis of treatment of certain evidence under s. 276(1) of Criminal Code. Appeal dismissed. Complainant testified that she would not have consented to have sex with accused because she had decided not to resume sexual activity within three months of having given birth, but she told hospital nurse that she had been sexually active and had intercourse two weeks before incident. Trial judge did not allow defence counsel to cross-examine complainant on that conflict in her evidence under s. 276 of Code, holding that proposed cross-examination would go to credibility. During pre-trial period, accused applied under s. 276(2) for leave to cross-examine complainant on conflict in her evidence about her willingness to engage in intercourse at that particular time but adjourned it. Process prescribed by s. 276 for admission of evidence of prior sexual history is mandatory. Since defence application under s. 276 was not pursued, that ground of appeal had no merit.
R. v. Vassell (2016), 2016 CarswellOnt 16564, 2016 ONCA 786, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.).


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