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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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Charter of Rights

Right to counsel

Police officer failed to satisfy his obligations respecting right to counsel

Crown asked court to grant leave to appeal on basis that it raised important questions about detainee’s obligation of diligence in s. 10(b) Charter application. Leave to appeal denied. On findings of trial judge, ratified by summary conviction appeal judge, police officer failed to satisfy his obligations to afford accused not only reasonable opportunity to contact counsel of his choice but also to facilitate that contact. In light of those failings, it was unsurprising that trial judge accepted accused’s evidence that he felt he had no choice but to speak with duty counsel. Accordingly, this matter did not meet R.R. test and leave was denied.
R. v. Vernon (Mar. 14, 2016, Ont. C.A., Feldman J.A., Gillese J.A., and Huscroft J.A., CA C60937) Leave to appeal decision at 124 W.C.B. (2d) 241 was refused. 129 W.C.B. (2d) 110.


Charter of Rights

Cruel and unusual treatment or punishment

Prospect of deportation did not render sentence grossly disproportionate

Accused was found to be only occupant of home that contained marijuana grow operation. Jury found accused guilty of marijuana production and possession of marijuana for purpose of trafficking. There were close to 500 plants in basement and accused was subject to mandatory minimum sentence of one year of imprisonment pursuant to s. 7(2)(b)(iii) of Controlled Drugs and Substances Act (Can.). Crown conceded that accused was gardener. Accused was permanent resident from China and would be deported if sentenced to at least six months of imprisonment. Accused was sole support of family and imposition of mandatory minimum sentence would be devastating. Accused brought application for declaration that s. 7(2)(b)(iii) was of no force and effect because it constituted cruel and unusual punishment within meaning of s. 12 of Canadian Charter of Rights and Freedoms. Application dismissed. Prospect of deportation could not transform otherwise constitutionally acceptable sentence into one that was grossly disproportionate. Without mandatory sentence appropriate range of sentence would be between six and 12 months. Since mandatory sentence was at top of range it was not grossly disproportionate and did not violate s. 12. Sentence was also not grossly disproportionate to reasonable hypothetical offender.
R. v. Li (Mar. 11, 2016, Ont. S.C.J., L. Bird J., Oshawa OCJF 13708/14) 129 W.C.B. (2d) 123.


Evidence

Identity of accused

Not every case in which the Crown leads identification evidence as part of its case requires a caution

Accused was convicted of several robbery-related offences. Issue at trial was identification. Accused appealed his convictions on ground that trial judge erred by failing to provide instruction to jury on frailties inherent in identification evidence. Crown’s case consisted of identification evidence from complainant, powerful circumstantial evidence that connected accused to robbery and out-of-court statement recanted at trial made by friend of accused that indicated that accused confessed to him. Judge was not asked to give jury any special caution in respect of identification evidence. No objection to charge was made at conclusion of judge’s instructions. Not every case in which Crown led identification evidence as part of its case required caution. Even if failure to give instruction amounted to error of law, this was clear case for application of curative proviso. Circumstantial evidence on its own was overwhelming.
R. v. Oswald (Feb. 19, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C57068) 129 W.C.B. (2d) 3.

Appeal

Sentence appeal

Earned remission applies to provincial, not federal system

Accused was sentenced to global four and half years’ incarceration following his convictions of four firearms offences related to handgun found in residence of mother of accused’s children. Accused successfully appealed his conviction on charge of possessing firearm knowing it was obtained by crime. Trial judge granted accused 25.5 months’ credit for pre-sentence custody at rate of 1.5-to-1. However, trial judge reduced credit by two months to reflect accused’s “bad behavior.” This behaviour resulted in assault charge while accused was in custody. Accused appealed sentence. Appeal allowed in part; pre-sentence custody increased by two months. Successful appeal of fourth count (possession of weapon obtained by crime) did not result in reduction of sentence being appropriate. All of counts on indictment, and two resulting convictions, related to possession of Beretta. Accused had long criminal record and sentence imposed was well within appropriate range, regardless of success of his appeal on count four. Trial judge’s comments during sentencing submissions indicated that he misunderstood concept of earned remission. Earned remission applies to provincial, not federal system. In federal system, under which accused was currently serving his sentence, he was entitled to statutory release after period determined under s. 127 of Corrections and Conditional Release Act (Can.). Statutory release date is generally day on which offender completes two thirds of his sentence. Consequently, credit for pre-sentence custody was increased by two months.
R. v. Jean (Feb. 22, 2016, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and M.L. Benotto J.A., CA C58965) Decision at 118 W.C.B. (2d) 706 was varied. 129 W.C.B. (2d) 60.


Charter of Rights

Arbitrary detention or imprisonment

Reasonable suspicion may be grounded in constellation of factors

Accused was detained by police in front of his residence for investigation of trespass and liquor-related provincial offences. Altercation ensued in which accused shoved and kicked officers and ran into residence. Police arrested accused and subsequent search of his backpack revealed handgun. At trial, accused alleged numerous infringements of his Charter rights and brought application to exclude from evidence handgun and for stay of proceedings. Trial judge dismissed application. Among other things, trial judge found that accused had been lawfully detained for brief investigation for offences under Trespass to Property Act (Ont.), and Liquor Licence Act (Ont.). Accused was convicted of various firearms and weapons offences and of assaulting police. Trial judge had found police had grounds to detain accused based upon manner in which accused had turned to first available doorway and urgently tried to gain entry by turning door handle and knocking, accused did not have key to unit that he was trying to enter, accused was carrying partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in courtyard, accused’s very nervous demeanour, including trembling hand when he produced his health card and his manner of standing with his backpack up against wall, and complaint from property manager that there were trespassers in courtyard area, particularly during evenings after 8:00 p.m., and that someone appeared to be letting them in. Accused appealed his convictions. Appeal dismissed. Actions noted may have been lawful and each of facts, if considered in isolation, may have been insufficient. However, when totality of facts was viewed together, they were capable of grounding reasonable suspicion that accused may be engaged in trespass or liquor-related offences. Reasonable suspicion may be grounded in constellation of factors, even if any one of those factors on its own would not have been sufficient.
R. v. Darteh (Feb. 22, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C59386) Decision at 112 W.C.B. (2d) 325 was affirmed. 128 W.C.B. (2d) 558.


Appeal

Sentence appeal

Despite successful appeal for some offences, overall sentence was not affected and remained fit

Police officers executed search warrant on suspected drug operation. Police found accused JM and co-accused in basement bedroom. JM was subject to two prohibition orders since he was convicted of firearms offences. In that bedroom police found loaded handgun near JM. Handgun contained 14 bullets in magazine and one in chamber. Police found marijuana, five working cell phones, three digital scales, accounting list, ammunition and $3,000 in bundled cash. JM was convicted of possession of loaded prohibited firearm, possession of firearm knowing its possession was unauthorized, possession of prohibited device, being high capacity magazine, possession of crime proceeds, possession of marijuana for purpose of trafficking, and breaching two firearm prohibition orders. JM was sentenced to nine and one-half years’ imprisonment, less credit for pre-sentence custody. JM received eight and one-half years for possession of loaded firearm and one additional year for breaches of two prohibition orders. Sentences for other charges were to run concurrently and they did not impact on total sentence. Convictions for possession of crime proceeds and marijuana quashed and acquittals were entered. Accused appealed sentence. Appeal dismissed. Despite successful appeal for crime proceeds and marijuana offences overall sentence was not affected and it remained fit.
R. v. Mullings (Mar. 1, 2016, Ont. C.A., Robert J. Sharpe J.A., M.L. Benotto J.A., and Grant Huscroft J.A., CA C58150) 128 W.C.B. (2d) 538.


Charter of Rights

Search and seizure

Police entering and remaining in wrong apartment was negligent and violated accused’s rights

Trial judge excluded evidence seized from accused’s apartment pursuant to s. 24(2) of Charter and acquitting her of drug offences. Police had mistakenly entered accused’s basement apartment while executing warrant to search neighbouring apartment of suspected drug dealer. Police remained in accused’s apartment and searched after realizing she was drug dealer initially targeted in warrant. Police obtained second warrant to search accused’s apartment during course of search. Trial judge held first warrant invalid for failing to accurately describe premises to be searched. Trial judge held police conduct in remaining in accused’s residence rendered search pursuant to both first and second warrants unlawful. Trial judge held police conduct in entering wrong apartment negligent and crossing into flagrant violation of accused’s rights by remaining in apartment. Crown’s appeal dismissed. First warrant was invalid by failing to adequately describe premises to be searched. Second warrant was invalid as obtained on strength of information illegally obtained by police by staying in residence after realizing warrant did not authorize their presence. Trial judge overstated importance of mistake but was correct subsequent conduct of remaining in apartment without authorizing very serious. Impact on accused’s Charter-protected interests clearly very serious. Society’s interest in justice system distancing itself from flagrant violation of accused’s rights outweighed adjudication of case on merits.
R. v. Ting (Jan. 20, 2016, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C58999) 128 W.C.B. (2d) 452.


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