New & Notable: An unassailable approach to a difficult body of evidence

KM was convicted of sexual assault and sexual interference. The victim was his eldest daughter. He appealed. He raised two grounds on appeal: first, that the trial judge failed to consider all of the evidence, including contradictions in her own evidence, in assessing the complainant’s credibility; and second, that the trial judge relied upon evidence that lacked materiality to support the victim’s evidence. The Court of Appeal dismissed his appeal: 2012 ONCA 319. 
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New & Notable: You don't need a balaclava to shovel snow in Kitchener...

Pierre Robert used to be a member of the Bloods gang. He had a 9mm handgun. He didn’t have a license to possess the handgun nor, of course, for the prohibited 15 round cartridge magazine found with the gun. He lived in his mom's basement. He kept his gun there, above the bar located in the basement, wrapped in a balaclava. The police found that gun. Robert was charged. He sought to exclude the evidence of that discovery from his trial. He did not succeed: 2012 ONSC 2672.   

 

 

When Robert was 15, his brother, Daniel, and his father were convicted of attempted murder of Robert’s mother, Ms Aylott. In 2010, the brother, Daniel, was released on parole and required to reside at a halfway house. When he didn’t report to the facility one night a Canada wide warrant was issued... read more...

New & Notable: Successful, albeit unconstitutional reliance on a "hunch"

Nicolaas Bruyere was driving in his car with a passenger. They had some cocaine in the car. The police stop him. The police thought that another fella, Hyatt, was in the car. The police believed that Hyatt had just been involved in a drug deal at a nearby hotel. Hyatt was not in the car. The trial judge found that the stop was a section 9 violation but admitted the evidence under section 24(2). Bruyere appealed; the Ontario court of appeal allowed the appeal and ordered a new trial: 2012 ONCA 329.
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New & Notable: Finders Keepers...

Bob Stevens had a semi-automatic firearm.  The police found out about it.  They obtained a search warrant to search his residence for the firearm.  When they attended his house to execute the warrant in a "stealth search" Stevens was observed to throw something in a white sock out his window into a neighbour's yard.  The police retrieved the sock and found a firearm inside.  Stevens was charged.  At trial Stevens was convicted and appealed; the Court of Appeal dismissed his appeal: 2012 ONCA 307.

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New & Notable: Finders Keepers...

Bob Stevens had a semi-automatic firearm.  The police found out about it.  They obtained a search warrant to search his residence for the firearm.  When they attended his house to execute the warrant in a "stealth search" Stevens was observed to throw something in a white sock out his window into a neighbour's yard.  The police retrieved the sock and found a firearm inside.  Stevens was charged.  At trial Stevens was convicted and appealed; the Court of Appeal dismissed his appeal: 2012 ONCA 307.

 

At trial Stevens sought to exclude the gun by attacking the warrant.  Bhabha J declined to consider the validity of the warrant, instead, finding that Stevens had abandoned the firearm.  Bhabha J did note, however, that there were deficiencies in the warrant and did - despite finding no expectation of privacy due to abandonment - conduct an analysis under 24(2).
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Current & Curious: Why is the accused out in the hall anyway?

DB had a niece.  His niece had a daughter, SP, the complainant.  DB was alleged to have sexually assaulted SP on one occasion and interfered with her on another.  The charges arose out incidents that occurred in the summer of 2007 including an incident that occurred when they were at a cottage.  SP alleged that on that occasion she had gone for a ride with DB in the bush and he performed oral sex on her.  DB testified at trial and denied the allegations.  He was cross-examined by the Crown.  He was convicted.  He appealed: 2012 ONCA 301.

 

On appeal DB argued, inter alia, that his trial was unfair because he was excluded from the courtroom.  During cross-examination DB was excluded briefly while counsel and the trial judge discussed an area of examination that was contentious. 

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New & Notable: Now that I think about it, maybe the jury should be told...

Timothy Belisle apparently did not like Norman Anderson.  Belisle went with two others, Barry and Tester to visit Anderson at his home; also at the home was Anderson’s partner, Jean Brunetti.  While they were in the garage Belisle suddenly pulled a knife and stabbed Anderson.  Anderson later died from the single stab wound.  Belisle was charged with first-degree murder.  He was convicted.  He appealed: 2012 ONCA 303.

 

On appeal Belisle argued, inter alia, that the trial judge erred in failing to instruct the jury on post-offence conduct and by failing to provide a Vetrovec instruction in relation to Barry and Tester.  Counsel at trial did not request either of those instructions.

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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.

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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].

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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. 

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