New & Notable: 10 Years Imposed on Roks by OCA

Adrian Roks recently had his second-degree murder conviction overturned by the Ontario Court of Appeal: R v Roks, 2011 ONCA 526.  I blogged about this case in a post entitled "The Paperback Novelist Strikes Again". 
The Court of Appeal has now exercised its power under section 686(3)(b) of the Code and imposed a sentenced for the manslaughter conviction it substituted in place of the second-degree murder conviction: R v Roks, 2011 ONCA 618.  Roks received the equivalent of a ten year sentence less pre-sentence custody and time served prior to the Court of Appeal's ruling [paras 27-28].
 
DG Mack

New & Notable: Setting the Record Straight on Jarvis

In the recent decision of R v Woodward, 2011 ONCA 610 the Ontario Court of Appeal set the record straight about its previous decision in R v Jarvis, 2006 CarswellOnt 4863 (CA). It also sent a clear message about the appropriate principles and range of sentencing in luring and child sex assault cases.

Thomas Edward Charles Woodward was charged with offences including luring (172.1(1)(c)), sexual touching (151(a)) and sex assault (271) in relation to his Internet luring and sexual contact with a young person. This young person was 12 years old and lived with her parents. In August or September 2006 Woodward sent a private text message to the complainant – he was 30 years old at the time. The text message originated through a chat site that the complainant could access via her mobile phone. The text message asked the complainant if she would sleep with him for $57 million. The complainant did not reply. A subsequent text message again asked the complainant if she wanted to have sex; this time she replied [para 7].

That response led to further texts numbering in the hundreds. These texts ultimately led to a meeting [para 8]. In the lead up to this meeting Woodward had offered the complainant increasing amounts of money to sleep with him; he even let her listen in on a call that was purportedly with a Bank of Montreal employee who indicated that Woodward had $300 million in his account. This lead the complainant to believe that Woodward had that kind of money and influenced her decision to meet him as her family was experiencing financial problems [para 10]. 

When the complainant met with Woodward he purportedly called the Bank of Montreal and transferred money into an account in her name. Thereafter he initiated sexual acts with the complainant including having her perform fellatio on him and having sexual intercourse with her [para 12]. 

 

Woodward was convicted after trial by Justice Nicklas. The judge ultimately sentenced Woodward to six and a half years jail. He appealed.

On appeal the appellant the court outlined the ground of appeal relating to the sentence as follows:

The appellant submits that the six-and-one-half year sentence he received manifestly exceeds the “range of reasonableness for a one-time isolated incident with no overt threats or violence and no abuse of trust or authority.” He points to a number of authorities, including some from this court, involving offenders who engaged in online sexually explicit conversations with undercover police officers posing as children under the age of 14 [para 53].

One of the cases relied upon by the appellant was Jarvis. With respect to Jarvis, Moldaver JA – on behalf of the court – noted that the reliance appears to be based on para 31 of that decision wherein Rosenberg JA offered the following: “decisions of trial courts that were placed before us suggest that the range of sentence for this offence [luring] generally lies between twelve months and two years” [para 54].

Moldaver JA then turned to discuss whether that comment properly set a range. After suggesting that was not the intention of Jarvis, Moldaver JA then offered the following clear statement about the future impact of Jarvis:

Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime [para 58].

Moldaver JA ultimately upheld the six and a half year sentence imposed by Justice Nicklas and concluded with the following quotable quote:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant’s past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive [para 75]; [emphasis added].


DG Mack

News: Interesting and Unique Read at Criminal Justice Blog

I recently did a lecture on wrongful convictions in the context of forensic sciences.  Coincidentally, I was just referred to another blog that has a list of "10 Infamous Inmates Who Were Wrongly Convicted".  I checked out the site and there are a few other very interesting blogs too.  Most recently there is one on "10 Teachers Who Turned Into Infamous Criminals"; check out the story on Albert Fentress, #2 on the list. 
Check out other posts including "10 Incredible Facts About the Criminal Brain" and the lighter post on "How to Survive Prison".  I have included a link to the blog post in my links page: "Criminal Justice Degrees Guide Blog".

 
DG Mack

News: Rivera Leave Application Dismissed

In a recent post I discussed the Court of Appeal's ruling in R v Rivera, 2011 ONCA 225: Comment: Roadside Statements.  In Rivera the Court of Appeal held that utterances at the roadside which are part of the actus reus on a refusal/failure charge are admissible only for the purpose of proving the offence and not for the purpose of impeaching the credibility of the accused.  
This week the Supreme Court dismissed the application for leave to appeal from that ruling.

 
DG Mack

Comment: Credibility Assessment, an Enigmatic but Deferential Process

Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.
In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.
The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].
Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].
During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.
On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence.  The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].
In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].
With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.
First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts. 
Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:
Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal [emphasis added].
While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

 
DG Mack

New & Notable: Affirming the Castle Doctrine

Cedric Forde killed Clive McNabb.  He stabbed him.  At trial he admitted he had done so.  The question that was left for consideration by the jury, however, was whether he was justified in doing so.  Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife.  In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30]. 
Forde was convicted and appealed.  On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration.  The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.

McNabb was the former spouse of Forde's common law partner.  Both were also involved in drugs.  On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.
Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde).  Forde then entered the bedroom and an argument ensued between them.  McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.
Forde was convicted of manslaughter by a jury.  He appealed.
On appeal the central issue was whether retreat was a relevant consideration under section 34(2).  After a review of English, American and Canadian authorities the court offered the following conclusion:
Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).  [Emphasis added].
 
DG Mack

New & Notable: Apparently, What you Want and What you Need is not always the Same

Antonio Jones was a drug dealer. Scott Larriviere was a client and owed Jones some money. On 18 September 2004 the two met. Larriviere was to pay Jones the money owed and then drive him to some other customers in exchange for some more drugs.

Things did not go as planned. While sitting in Larriviere's truck Jones struck Larriviere in the head with a metal bar. Larriviere suffered irreversible brain damage and ultimately died after spending a year in hospital.

Jones was charged with second-degree murder. He was convicted of manslaughter after a jury trial. He appealed. The appeal was dismissed: R v Jones, 2011 ONCA 584.
On appeal the apppellant raised two grounds of appeal. First, the appellant alleged that the trial judge erred by failing to correct a misstatement by the Crown (which was then amplified by the trial judge) about when or where two photographs of the truck were taken - the photographs were relevant to a claim of self-defence which was obviously rejected. Second, the appellant alleged the trial judge erred by not insisting the jury hear the answer to their question about when the photos were taken - the jury returned their verdict without hearing the answer.
 

With resepct to the first ground of appeal, Laskin JA, for the court, first considered if in fact there was a misstatement. After reviewing the comments of the Crown and judge, Laskin JA accepted that the comments of the Crown could have been misleading and that this might have been reinforced by the trial judge [paras 26-37]. Despite this, Laskin JA held that the initial misstatement, "at its highest" was "quite modest" [para 40]. In doing so Laskin JA noted that a trial judge is not required to correct every misstatement of fact by counsel. Moreover, he pointed out that no objection was made by counsel at the time and the trial judge instructed the jury that it is their collective memories which form the basis of their deliberations not counsel's submissions. Finally, Laskin JA noted that the jury apparently appreciated this misstatement as they asked for clarification.
With respect to the second ground or appeal, Laskin JA noted the jury question as follows: "Could you please confirm that exhibits/photographs 10(a) and 24 were taken at the crime scene?" [para 47]. The photographs in question include a photograph which showed an open ashtray with ashes in it (no ashes were strewn about the interior - offering evidence to rebut the self-defence claim) and the other photograph was a picture that showed a pair of scissors sitting precariously on the dash.
Prior to providing an answer (which would have been "I cannot confirm that the photographs were taken at teh crime scene) the jury returned with a verdict. Before accepting the verdict (something both counsel agreed could be done) the trial judge offered the following to the jury:
Okay. Thank you. Have a seat. Thank you, members of the jury. We understand you have reached a verdict. By that e also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now [para 52].
Laskin JA dismissed this ground as well. In doing so, he held as follows:
Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict [para 56].
Laskin JA went on to expressly agree with the Crown’s submission that “It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated that it was not needed” [para 57].

 
DG Mack