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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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Trial judge erred by leaving post-offence conduct as probative on issue of intent to kill

Jury convicted accused of second degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual relations at his home. Accused testified he inadvertently smothered deceased during effort to restrain her when his retreat from her attack failed. Pathologist being unable to pinpoint cause of death. Accused having engaged in extensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Police uncovered considerable forensic evidence in home notwithstanding accused’s efforts to clean. Accused fleeing from and lying to police about having been responsible for death when first arrested. Accused raised defences of self-defence and provocation. Crown arguing evidence suggested prolonged and brutal attack of deceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Appeal allowed and new trial ordered. Trial judge erred by leaving post-offence conduct of flight and lies to police as probative on issue of intent to kill. Evidence had no probative value on intent as person responsible for manslaughter just as likely to flee and lie to authorities. Trial judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative to intent. Evidence only probative of intent if jury first accepted Crown’s theory deceased had been victim of prolonged, bloody attack by accused. Curative proviso did not apply as issue of intent and evidence of post-offence conduct central issues at trial.
R. v. Rodgerson (May. 8, 2014, Ont. C.A., Doherty J.A., K. Fledman J.A., and J.C. MacPherson J.A., File No. CA C56484) 113 W.C.B. (2d) 232.



Non-expert witness could give evidence that person was intoxicated

Appeal by Crown from acquittal of accused on charge of operating motor vehicle while drug impaired. Accused was arrested and he was taken before police officer who was drug recognition expert (DRE), who concluded that accused was drug impaired. Trial judge found that DRE’s opinion was to be received without conducting voir dire. Accused was acquitted, Crown successfully appealed and new trial was ordered. At new trial Crown sought to call DRE to give evidence without voir dire. Accused objected to this approach and judge found that voir dire was necessary. Voir dire was conducted, judge refused to qualify DRE as expert and his opinion was not allowed. DRE could not even give lay opinion on issue of accused’s possible impairment. Acquittal that was subject of this appeal resulted. Appeal allowed. DRE’s opinion could be given in court without voir dire. Non-expert witness could give evidence that person was intoxicated and police officer, without qualification, could give evidence that accused was intoxicated or impaired. No specific qualifications were required. DRE should have been able to give his lay opinion regarding accused’s condition. DRE should have been able to give his evidence. New trial was ordered because it was only alternative in this case.
R. v. Bingley (May. 22, 2014, Ont. S.C.J., McLean J., File No. 09-2086) 113 W.C.B. (2d) 198.



Jury well equipped to understand and determine issue of planning and deliberation

Appeal by accused from conviction for first degree murder. Accused was tried by judge and jury for first and second degree murder. Victim was woman with whom accused once lived in common law relationship. At trial Crown’s position was that killing amounted to planned and deliberate murder and accused killed her because he could not accept her independence. On appeal accused conceded liability for second degree murder but he claimed that trial judge erred in her instructions on evidence that related to issue of planning and deliberation. Appeal dismissed. Appeal did not turn on judge’s legal instruction on planning and deliberation, which accused described as impeccable. Rather, it turned on whether judge adequately addressed evidence so that jury was equipped to understand and determine issue of planning and deliberation for purposes of first degree murder conviction. Judge invited jury to consider evidence that could support inference of planning and deliberation. She fairly reviewed evidence and she was not required to review every competing inference that could be drawn from piece of circumstantial evidence. Judge was also not obligated to review all of evidence. Jury was well equipped to understand and determine issue of planning and deliberation and whether accused should be convicted of first degree murder. Charge to jury was fair and there was no miscarriage of justice.
R. v. McPherson (Mar. 26, 2014, Ont. C.A., S.T. Goudge J.A., S.E. Pepall J.A., and E.A. Cronk J.A., File No. CA C49298) 113 W.C.B. (2d) 95.

Charter of Rights


Lack of reliability concerning initial tip increased obligation of officers

Accused sought to exclude evidence regarding his arrest for cocaine trafficking. Police received anonymous tip and put accused under surveillance and observed him have four meetings which police suspected were drug transactions. Accused was long term resident of community, knew lots of people and was observed to meet in place such as department store and hockey game. Application granted, evidence excluded. Court did not find reasonable and probable grounds for arrest, various meetings could be accounted for by other explanations and all of them appeared to be neutral in nature. Lack of any reliability concerning initial tip and accused’s lack of criminal record increased obligation of officers in their investigation to at least observe hand to hand transaction or, where drugs were later found, face to face meeting. It was especially necessary considering fact that accused appeared to have been long time resident of community who knew many people with meetings having possible innocent explanation.
R. v. Biadi (Apr. 22, 2014, Ont. S.C.J., McDermot J., File No. CR-12-00004914-0000) 112 W.C.B. (2d) 771.



Misapprehended evidence relied on to make crucial credibility assessments at trial

Trial judge convicted accused of sexual assault of neighbour’s five-year-old daughter. Complainant testified during horseplay where accused blew on children’s stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Forensic expert testified deposits of accused’s DNA found in complainant’s underwear but not from external vaginal swab. Forensic expert testified secondary transference of DNA to underwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to underwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster credibility of complainant and reject evidence of accused. Appeal allowed and new trial ordered. Trial judge critically misapprehended forensic evidence by stating deposit could only have been through oral sex and wholly ignored negative result of vaginal swab. Misapprehended evidence relied on to make crucial credibility assessments at trial. Correctly apprehended forensic evidence tended to bolster accused’s admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant’s evidence oral sex occurred.
R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788.



Arson was specific intent offence and appropriate to consider evidence of intoxication

Trial judge acquitted accused of arson after considering evidence of accused’s intoxication. Accused stayed at girlfriend’s residence following breakup and drinking to excess while agitated. Accused woke up and left bacon cooking on “high” while intoxicated and leaving residence to return to fire. Trial judge considered defence of accident and accused’s intoxication after concluding arson was specific intent offence. Trial judge finding reasonable doubt accused had ability to understand fires could be likely outcome of actions. Crown’s appeal dismissed. Trial judge correct that arson was specific intent offence and appropriate to consider evidence of intoxication. Offence of arson required proof of subjective mental elements of intent or recklessness. Parliament intended to distinguish arson in s. 434 from accidental fires by including offence of arson by negligence in s. 436.
R. v. Tatton (Apr. 8, 2014, Ont. C.A., S.T. Goudge J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C57550) 112 W.C.B. (2d) 643.



Unresolved concerns about secondary evidence affected its probative value

Appeal by accused from judgment that convicted him of stealing under $5,000 from his employer. Accused worked for fast food restaurant and proceeds of sale for November 20, 2009, in amount of $2,653, were missing. Accused was manager on November 21, 2009 and one of his tasks was to ensure that previous day’s revenues were delivered to bank night deposit chute. He was last person from restaurant to have possession of deposit package. Accused claimed he took package to chute, dropped it in and he returned to restaurant for day. Video recording of chute was destroyed but Crown advanced secondary best evidence from three witnesses who claimed to have viewed video recording and they did not see accused at chute. One of witnesses, who worked for landlord of premises where bank was located and who had control of video recordings, confirmed that video was not altered or changed at times it was viewed. Trial judge relied heavily on testimony from these three witnesses in deciding to convict. Appeal allowed. Judge did not err in admitting testimony regarding contents of video. There were, however, unresolved concerns about secondary evidence that affected its probative value. Destruction of recording inherently prejudiced defence. Recording brought possible vindication. Witnesses were not trained investigators and there were serious deficiencies regarding their testimony. Judge did not advert to this issue and ruling on weighing of probative value and prejudicial effect in relation to secondary evidence would have to be made on retrial. Judge also misapprehended evidence and this resulted in miscarriage of justice. Cumulative effect of errors raised issues of trial fairness and, since accused did not receive fair trial, new trial was required.
R. v. Lapensee (Apr. 8, 2014, Ont. S.C.J., Rick Leroy J., File No. 13-39) 112 W.C.B. (2d) 639.
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