New & Notable: Defining section 127

June 11, 2012 Dallas Mack

Linda Gibbons is a staunch anti-abortionist. On October 8, 2008 she was protesting with a sign outside an abortion clinic. This protest was in contravention of an interlocutory injunction issued in 1994 by Adams J barring such protests within a certain distance of abortion clinics. Gibbons was charged with breaching a court order under section 127 Criminal Code. She sought to quash the information arguing that section 127 had no application as the Ontario Rules 60.11 and 60.12 were a “punishment or other mode of proceeding”. Her motion was dismissed, a decision upheld by the Supreme Court: 2012 SCC 28.

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

June 11, 2012 Dallas Mack

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.

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

May 20, 2012 Dallas Mack

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.

New & Notable: Finders Keepers...

May 17, 2012 Dallas Mack

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.

New & Notable: Finders Keepers...

May 16, 2012 Dallas Mack

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).

Current & Curious: Why is the accused out in the hall anyway?

May 14, 2012 Dallas Mack

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.

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

May 14, 2012 Dallas Mack

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.

New & Notable: Calculating the appropriate fare for attempt murder

May 14, 2012 Dallas Mack

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.

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

May 14, 2012 Dallas Mack

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].