New & Notable: Calculating the appropriate fare for attempt murder

Mark Boissonneault shot Terry McLeod.  He was charged with attempted murder and possession of a firearm.  McLeod was sitting in his taxi.  He was with another man, Gordon, who owned the cab.  Boissoneault approached McLeod, pressed the gun to his side and shot him. 

 

At trial Boissonneault took the position that the gun discharged accidentally.  He was convicted.  The trial judge sentenced him to 17 years jail – 14 years on the attempted murder and 3 years consecutive on the possession charge.  He appealed: 2012 MBCA 40.

Read More

Current & Curious: 92 B&Es over 21 years and a conditional sentence!

James Duerksen had a fetish for woman’s lingerie.   Over a span of 21 years he broke into 92 homes.  He had targeted these homes as ones where women lived.  While in the homes he steal lingerie.  Sometimes he masturbated in the home.  The offences occurred in Manitoba and Alberta.  Duerksen pleaded guilty.  He received a conditional sentence of two years less a day.  The Crown appealed: 2012 MBCA 41.

 

On appeal the court outlined the relevant facts as follows: 

The 92 infractions occurred in three different communities and spanned over 21 years. The facts surrounding all of these offences are strange and disconcerting because of the intrusive and sexualized nature of the accused’s behaviour. The accused would identify a home inhabited by a woman, wait until the residents were at church and then enter the home to steal the woman’s lingerie. In some cases, he masturbated with the undergarments while still in the home. Moreover, the psychological report done on the accused postulated that his acts arose from a desire for power over the women whose undergarments he stole [para 3].

Read More

New & Notable: Letting trial judge's do their job...

RP was married to GL.  GL had a sister, ML.  ML, who was 13 at the relevant time, would babysit from time to time for RP and GL.  RP was 27 at the time.  Some 30 years later RP was tried for indecent assaults committed against ML.  RP was convicted by the trial judge.  He appealed to the Quebec Court of Appeal; a majority of that court found the verdict was unreasonable and entered an acquittal: 2010 QCCA 2237.  The Crown appealed.  A majority of the Supreme Court overturned that decision and restored the conviction: 2012 SCC 22.

 

Deschamps J, on behalf of the majority, noted that the case revolved around the credibility of the witnesses.  The sole legal issue on appeal was the reasonableness of the verdict. 

Read More

Comment: Setting the record straight on "perjury"

Perjury is a criminal offence.  It is a very serious offence.  It has the potential to impact on the search for the truth in a criminal trial.  When detected it should be denounced and deterred in the most unequivocal terms. Sadly, it occurs.  Indeed, it occurs everyday in courts across Canada.  Often it is accused who lie.  Undoubtedly, it has happened that an officer has lied.   
In a recent article - Police who lie: How officers thwart justice with false testimony - the Toronto Star alleged, however, that thier "nationwide" investigation showed that "judges are frequently finding that police officers lie under oath".
Read More

Pending & Prominent: SCC to consider dangerous driving

At 7:30pm Frederick Belanger was driving on an undivided stretch of highway near Baie-Comeau, Quebec. It was dark. The posted speed limit was 90km/hr. Belanger found himself behind a pickup truck travelling in the same direction. The truck was travelling at a rate of speed of 90-95km/hr.

 

Despite the solid double line on the roadway, Belanger decided to pass the truck. As he manoeuvred around the truck Belanger found himself facing an oncoming vehicle. Both swerved toward the same side in an effort to avoid the collision. Instead they met head on.  The driver was killed instantly. Belanger sustained an injury to his ankle and his passenger suffered a broken femur.
Read More

New & Notable: Prejudiced? Prove it.

On July 25, 2002 Ching “Billy” Law was attacked at an internet café called Virtual Domain. The main perpetrator was a young offender, SE. SE had a machete and in his attack almost severed Law’s hand. The attack involved several other men. Lau and Li were alleged to be two of them. Prior to trial the accused brought a motion for a stay of proceedings based on unreasonable delay. The motion was dismissed. They appealed. That ground of appeal was dismissed (although the appeal against conviction was allowed on other grounds): 2012 ONCA 291.
Read More

New & Notable: What does "practicable" mean anyway?

Krishna Naidu was involved in a collision.  Naidu drove through a stop sign.  Perhaps because his BAC was 130 mg%.  Constable Hodgins arrived at 2:42.  He read a screening demand at 2:52.  Naidu failed at 2:53 or 2:55. Hodgins arrested Naidu and made a breath demand at 3:07.  That 12 or 14 minutes became the subject of the trial and ultimately a ruling from the Court of Appeal: 2012 BCCA 150 (SCCA: 2010 BCSC 851).

 

During those 12 or 14 minutes the officer arrested Naidu, handcuffed him, sat him in the cruiser, spoke to him about pain in his wrist, ran his licence with ICBC and check him on CPIC and finally read him his Charterrights. 

 

Naidu argued, inter alia, that the CPIC and ICBC checks were not necessary and took the demand outside the ASAP window.  On summary conviction appeal Kelleher J noted that the 2008 amendments to section 254(3) saw the removal of "forthwith" from that section.  This was relevant, held Kelleher J, and points toward a more flexible approach to the issue.  Ultimately Kelleher J agreed with the trial judge that the conduct of the officer was reasonable and the steps taken during that 12 to 14 minutes were connected to the stop and arrest and did not result in the demand being made ASAP.

The Court of Appeal dismissed a further appeal by Naidu.

While making a demand as soon as one forms the requisite grounds for the demand is always best practice, Naidu confirms that so long as you are performing tasks associated with the arrest and processing of the accused - and are able to articulate those steps - which are reasonable, the demand made thereafter will be ASAP.  

New & Notable: Age is only a number, even for Dangerous Offenders

Marc Charbonneau was found to be a dangerous offender by Aitken J. He appealed. He argued that had he been given an 8 year sentence and 10 years of supervision, he would have been 67 and the risk he posed at that age would have been so reduced as to be manageable. The Court of Appeal disagreed; it upheld the dangerous offender designation: 2012 ONCA 282.
Read More

New & Notable: How much is a 1998 Chevy Blazer worth?

David Mihalyko had a 1998 Chevrolet Blazer. He also had an injured foot. He was presribed Oxycontin for his foot. On September 19, 2010 he needed some gas for his Blazer but he did not have any money; he did have his Oxys. He decided to sell some Oxys for gas money. He approached a woman, he thought was a prostitute, to see if she knew anyone who wanted Oxys. She was an undercover officer. Ultimately he sold $60 worth of Oxys to an undercover officer. He was charged and convicted. Forfeiture of the Blazer was sought under the Seizure of Criminal Property Act. The Queen's Bench refused to order forfeiture. That order was appealed. The Saskatchewan Court of Appeal allowed the appeal: 2012 SKCA 44.
Read More