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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

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.).


Youth offenders

Youth Criminal Justice Act

Youth court judges are not required to give credit for pre-sentence custody

Accused young person, age 17, fired volley of shots into crowd, injuring three persons. Crown applied to have accused sentenced as adult under s. 72(1) of Youth Criminal Justice Act (YCJA). Defence counsel opposed Crown’s application and urged sentencing judge not to give accused credit for about 15 months he spent in pre-sentence custody to buttress submission that youth sentence would be sufficient to hold accused accountable for his behaviour. Sentencing judge found that Crown had not rebutted presumption of diminished moral blameworthiness, and that maximum sentence of three years available under YCJA would be sufficient to hold accused accountable. Sentencing judge declined to give accused credit for about 15 months of pre-sentence custody so that fit sentence reflecting statutory principles in YCJA could be imposed. Accused appealed, submitting that sentencing judge erred in denying him credit for pre-trial custody. Appeal dismissed. While youth court judge must consider pre-sentence custody in sentencing, credit which will be given in particular case is discretionary. YCJA mandates youth sentencing judges to impose least restrictive sentence capable of achieving purposes in YCJA, and to impose sentence most likely to rehabilitate and reintegrate young person into society. Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet those objectives. While parity principle applies in context of youth sentencing, R. v. Summers does not affect discretion of youth court judges to take pre-sentence custody into account in whatever manner judge concludes will result in sentence that will hold young person accountable. Sentencing judge did not err in acceding to defence submissions, sentencing accused as young person and considering pre-sentence custody, but opting not to give credit for pre-sentence custody.
R. v. B. (M.) (2016), 2016 CarswellOnt 16259, 2016 ON CA 760, J.C. MacPherson J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

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.).

Evidence

Voluntariness

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.).
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