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Charter of Rights

RIGHT TO BE INFORMED OF SPECIFIC OFFENCE

Officer had no excuse for not advising accused passenger was deceased

Accused charged with impaired driving causing death, causing death while driving “over 80”, criminal negligence causing death, and dangerous driving causing death. Breath technician said she made “conscious decision” not to tell accused about death out of safety concerns, having been attacked by drunk person in past resulting in injuries requiring surgery. Breath technician acknowledged that, while in breath room, she was armed, as were two other officers. Officer asked others involved if accused had been advised that he was facing charge involving fatality. When officer heard accused had not been so advised, he went into interview room to speak to accused, and told him that his passenger had died and that he was facing much more serious charge of impaired driving causing death. Officer asked accused if he wished to speak to lawyer and accused declined but officer persisted and told him that charge was much more serious and that he would probably go to jail after which accused opted to speak with duty counsel. First breath sample excluded. Court agreed accused’s rights had been breached. It was completely unreasonable for police officer to think that person, who was completely covered by tarp, and unattended by any EMS personnel, might still be alive. If officer had any doubt, he could have asked one of paramedics. Officer had no excuse for not advising accused passenger was deceased. If police had wished to wait for official confirmation, they should have refrained from attempting to elicit evidence from accused in meantime. Accused’s conduct at scene and at police station belied actual awareness of passenger’s death. While court believed breath technician’s reasons she gave for not informing accused of fatality, it was not acceptable reason for failing to inform accused of true state of affairs. After accused was properly apprised of his jeopardy and persuaded of potential penal consequences of the situation, he did call lawyer. This turn of events spoke to obvious inadequacy of previous information provided to accused. Short of finding bad faith, conduct of four officers involved was wilful or seriously reckless. Actions of officer who informed accused of passenger’s death were Charter-compliant and severed link between earlier breach and collection of second sample.
R. v. Karafa (May. 21, 2014, Ont. S.C.J., Trotter J., File No. null) 114 W.C.B. (2d) 68.

Appeal

NEW TRIAL

Evidence of prior conduct in context of harassment charge presumptively admissible

Appeal by Crown from acquittal of accused on charge of criminal harassment. Complainant was former employee of accused. She left his employ on bad terms in 2010 because he provided poor reference for her when she applied for another job. After complainant left accused called her on numerous occasions and he left messages in which he said he missed her. Accused called in total of between 20 and 30 times and this forced her to change her phone number. He waited for her outside her home and he left gifts for her at home of her parents. Gifts continued even after she changed her phone number. Complainant went to police and they warned accused not to have any further contact with her. She was working at restaurant on March 27, 2013 and accused attended restaurant and he tried to get her attention and she ignored him. When complainant went to her car accused sped towards her in his vehicle. Accused followed her in his vehicle and complainant called her boyfriend on her cell phone. Trial judge found that there had been no overt threat and he described restaurant encounter as innocuous. Appeal allowed. Acquittal set aside. Judge erred in excluding content of telephone calls placed by accused to her prior to March 27 incident. Evidence of prior conduct in context of criminal harassment charge was presumptively admissible. Previous interactions between accused and complainant, that set backdrop for charge, had to be heard and evaluated to assess reasonableness of complainant’s fear. Judge also erred in his treatment of restaurant encounter, in which he excluded relevant evidence. His description of restaurant encounter, which he termed as being innocuous was illogical. Based on evidence that judge did accept, his acquittal was unreasonable. New trial was ordered to enable all of relevant evidence to be before court.
R. v. Deary (Jun. 18, 2014, Ont. S.C.J., Healey J., File No. CR-13-231-AP) 114 W.C.B. (2d) 5.

Charter of Rights

RIGHT TO COUNSEL

Trial judge relied on evidence which was not admissible

Accused appealed conviction for “over 80”. After hearing screeching sounds of tires and sound of car hitting something, officer arrived at scene 30 to 60 seconds later and saw that vehicle had hit pole. Officer saw woman and two males standing around outside of vehicle. Males told officer that they had arrived after accident and had not seen who was driving vehicle. Officer overheard accused tell two males that she was “okay”. Accused testified on Charter application that, prior to being advised of her rights and being provided caution, she was asked by officer whether she was driving and that she admitted to driving because she felt compelled to do so. Accused was arrested for impaired driving. During Charter submissions, Crown conceded that officer breached accused’s Charter rights and that her statements were inadmissible at trial. At trial, only evidence available to trial judge as to whether Crown had proven charges beyond reasonable doubt was officer’s evidence. Trial judge concluded that when someone was asked whether they were okay, not being driver was very unusual phenomenon. Trial judge stated that accused admitted to officer that she was driver and further relied on her statements to officer as to where she had been and that she “may have hit something”. Appeal allowed, conviction quashed, acquittal entered. Trial judge should not have considered and relied on any evidence of accused, as it was only admissible evidence on Charter application. Trial judge’s comment that accused did not deny that vehicle was hers was either inadmissible evidence from accused’s evidence on Charter application or adverse finding based on her right to silence, either of which was improper at law. Trial judge relied on evidence which was not admissible in determining whether Crown established beyond reasonable doubt that accused was driver of vehicle. Trial judge relied on circumstantial evidence that accused was driver of vehicle when, in absence of any direct evidence, it could not be said that only reasonable inference of circumstantial evidence was that accused was driver. Errors were central to reasoning process and disposition by trial judge. When evidence was thoroughly reviewed, there was not sufficient evidence at trial capable of supporting finding beyond reasonable doubt that accused was driver. Verdict was unreasonable.
R. v. Unelli (May. 28, 2014, Ont. S.C.J., Ricchetti J., File No. SCA(P) 335/13) 113 W.C.B. (2d) 737.

Arrest

LEGALITY

Accused’s arrest and custody occurred during extenuating and exigent circumstances

Application by accused for stay of proceedings because he claimed that his rights under Canadian Charter of Rights and Freedoms were violated. During unrest that occurred during June 2010 Toronto G20 Economic Summit, accused, who was American citizen, was charged with wearing disguise with intent to commit indictable offence and with three counts of mischief, as result of his participation in that unrest. Crown claimed that accused was member of group that engaged in campaign to damage property at various locations in city. On June 26, 2010 accused was alleged to have smashed windows in bank, at commercial emporium and at police headquarters. He was, however, arrested for unrelated matter on June 27, 2010 and officer arrested him because he was ordered to do so by superior officer. Crown conceded that this arrest was unlawful. When he was arrested he was searched and his possessions were seized without articulable cause, contrary to s. 8 of Charter, and his arrest and subsequent detention were arbitrary and it constituted breach of s. 9 of Charter. Once in custody he was not informed of his right to counsel, he was denied opportunity to exercise right to counsel when he asked for it and he was held in custody in onerous conditions for 14 hours, during eight of which he remained in zip-tie hand restraints. He was released and he was not charged. Accused was charged several months later for June 26 incidents after investigator reviewed surveillance video evidence taken on that date and he compared it to pictures of accused that were in camera that police seized and to picture of accused that police took when he was arrested on June 27. Application dismissed. Charter-infringing state conduct was serious and impact of breaches on accused’s Charter-protected interests were significant. However, accused’s arrest and his custody occurred during extenuating and exigent circumstances. If stay was granted it would disregard fact that people who smashed windows at G20 also threatened community’s right to function in free and democratic way. Abuse that accused suffered would not be perpetuated or aggravated by permitting matter to proceed to trial. Accused failed to demonstrate that this was one of those clearest of cases in which stay was required.
R. v. McCormic (May. 21, 2014, Ont. S.C.J., Clark J., File No. CR-13-10000835-0000) 113 W.C.B. (2d) 630.

Appeal

RIGHT OF APPEAL

Court concerned that accused may not have had full and fair opportunity to argue motion

Accused applied for leave to appeal under s. 131 of Provincial Offences Act (Ont.). As result of pre-trial negotiations, accused pleaded guilty to provincial offence regarding zoning by-law. Joint submission consisted of fine of $3,500 payable over course of one year. When fine bore unexpected surcharge, accused appealed fine levied by trial justice. Matter was not perfected within 30 days of accused receiving notice from court that transcript was ready to be picked up. Accused showed up on date of appeal with transcript in hand and explained that there had been two deaths in family and that he had been in and out of town. When accused indicated that his mother could not afford to pay fine because she was old and sick, court dismissed appeal for lack of valid grounds. Accused argued that delay was largely result of tardiness in transcript preparation by court office, and that appeal should have been allowed to continue. Application allowed. Accused had right to appeal. Accused reasonably explained delay in producing transcript that led to motion, and missing transcript was available. Having reviewed transcript, court was concerned that accused, who represented his mother, may not have had full and fair opportunity to argue motion or appeal. It was in interests of due administration of justice that leave be granted.
R. v. Massara (Aug. 15, 2013, Ont. C.A., P. Lauwers J.A., In Chambers, File No. CA M42705) 113 W.C.B. (2d) 611.

Charter of Rights

ENFORCEMENT OF RIGHTS

Inducements made to accused to get her to provide statement

Application by Crown to admit two statements made by accused to police. Accused was charged with second degree murder. Accused’s first statement was made to one of two police officers who responded to 9-1-1 call at accused’s building. In parking garage officers found accused, witness who made 9-1-1 call and deceased who was not breathing. One officer had brief conversation with accused and asked her for her name and if she was from specific apartment. Accused provided her name and she said she was from that apartment. She also told officer that deceased attacked her and she defended herself. Officer testified that accused was hysterical and distraught and he calmed her down, by telling her she was not in trouble and by placing his hand on her shoulder to reassure her and he was able to obtain information from her. He also testified that accused was not suspect when he questioned her. Second statement was lengthy statement that was videoed and audiotaped at police station. Crown applied for ruling on voluntariness of first statement and statement made at station. It conceded that second half of statement made at station could not be proven to be voluntary and Crown did not seek to introduce it. Accused claimed that entire statement at station was involuntary and that both statements should be excluded on basis that accused’s rights under Canadian Charter of Rights and Freedoms were infringed. Application allowed in part. First statement was admissible as it was given voluntarily. Her Charter rights were not breached when she gave that statement because she was not detained when she provided it. Statement taken at station was not proven to have been given voluntary and it was inadmissible. Inducements were also made to accused to get her to provide statement. Prior to interview accused was left in cold room with inadequate clothing for 10 hours before interview and she was given water and no food. At that interview accused was questioned in aggressive manner and she repeatedly told interviewing officers that she did not want to answer any questions and she had been advised by counsel not to do so. Officers ignored her and they continued with interview. If conclusion on voluntariness was wrong, statement at station was still inadmissible because several of accused’s Charter rights were violated and admission of statement would bring administration of justice into disrepute.
R. v. Dupuis (May. 2, 2014, Ont. S.C.J., M. Forestell J., File No. 13-40000614-0000) 113 W.C.B. (2d) 433.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Constellation of facts provided ample grounds for accused’s arrest

Accused appealed conviction. Issue was constitutionality of arrest that took place at door to accused’s apartment. Appeal dismissed. Despite some confusion in trial judge’s terminology between grounds for detention and grounds for arrest, findings of fact by trial judge, including marijuana smoke, accused’s suspicious conduct, and visible drug paraphernalia, provided ample grounds for accused’s arrest. Constellation of facts, viewed reasonably and cumulatively by someone with experience of officer in question, provided ample grounds for accused’s arrest. As arrest was lawful and, therefore, not breach of s. 9 of Charter, subsequent conduct of police, although clearly improper, could not have impacted on admissibility of evidence in question.
R. v. Meiz (Mar. 17, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55769) 113 W.C.B. (2d) 406.
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