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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

Drug offences

Possession for purpose of trafficking

Trial judge erred in holding that defence had onus to establish honest belief defence

Accused was found in marijuana grow operation. Accused claimed his boss had licence to operate marijuana operation. Boss had licence for another nearby location, but did not have licence to grow marijuana at location at issue. Accused was convicted of unlawfully producing marijuana and possession of marijuana for purposes of trafficking. Accused appealed. Appeal allowed. Trial judge erred in law in holding that defence had onus to establish honest belief defence, and was wrong to place any onus on accused and to hold that defence could only be made out by evidence that accused had seen licence. Trial judge convicted on basis that accused aided and abetted his boss in cultivation of marijuana, and focused not on whether accused was licensed to cultivate marijuana, but rather on his belief that his boss was licensed to cultivate marijuana. Trial judge may or may not have rejected honest belief defence.
R. v. Johnson (Aug. 18, 2016, Ont. C.A., Doherty J.A., K.M. van Rensburg J.A., and L.B. Roberts J.A., CA C59776) 132 W.C.B. (2d) 239.

Charter of Rights

Enforcement of rights

Society’s interest in adjudication on merits strongly favoured admission of evidence

Officer observed car street racing and pursued it to dead-end street. Accused was seen in distance walking away from car. Backup officers engaged in investigative detention and performed pat-down search of accused’s pockets that revealed keys to car. Accused was eventually arrested for careless driving and pursuant to outstanding warrants. Police used keys to search car and found loaded handgun. Accused was charged with firearms-related offences. Trial judge found that while police did not comply with duties under s. 10 of Canadian Charter of Rights and Freedoms, there were no breaches of ss. 8 and 9, and that gun evidence should not be excluded. Trial judge found that firearm would have inevitably had been discovered regardless of any breaches of s. 10(a) or (b). Accused was convicted. Accused appealed. Appeal dismissed. There was no error in trial judge’s conclusion regarding s. 10 breaches or in his analysis that, had there been s. 8 breach, handgun should not have been excluded. Any breach by police was not deliberate and accused had very limited privacy interest in vehicle that he did not own and had apparently abandoned. Society’s interest in adjudication on merits strongly favoured admission.
R. v. Ellis (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C57843) Decisions at 106 W.C.B. (2d) 674 and 106 W.C.B. (2d) 779 were affirmed. 132 W.C.B. (2d) 226.

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