New & Notable: The Common Sense Inference

Adrian John Walle shot and killed Jeffrey Shuckburgh. He was standing about five feet away from him when he shot him. The bullet pierced Shuckburgh’s heart.

 

Walle was convicted (at a second trial) in a judge alone trial by Hart J of second-degree murder. He appealed unsuccessfully to the Alberta Court of Appeal. On appeal to the Supreme Court he argued that the trial judge erred in considering the impact of intoxication or his mental capacity on the issue of the common sense inference and his foresight of the consequences of his actions. The Supreme Court dismissed the appeal: 2012 SCC 41.

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New & Notable: Dressed to the fives...

Jarrett Strong had a belt. His belt had an interesting buckle; it was a set of brass knuckles. The officer arresting Strong for breaching his probation noticed the buckle and charged Strong with possession of a prohibited weapon without a license (section 92(2)). At trial Strong argued that it was not a weapon, “but a belt buckle he purchased in a retail store that resembled brass knuckles”. Strong testified that he purchased it as “it looked ‘cool’” and that he “never used or intended to use the item as a weapon but only as a belt buckle, that it was not designed to be used as a weapon, and that he had not tried the item on his hand” [para 2]. The trial judge rejected his evidence; Strong was found guilty.

 

Strong appealed: 2012 BCCA 279.

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New & Notable: Clarifying alleged ambiguities in jury verdict

Winston Roberts was with charged with assault and sexual assault. At trial the complainant testified that the sexual assault was a continuous incident which involved digital penetration, fondling and intercourse. In the Crown’s closing submission jurors were told that they were not required to be ad idem as to how they reached their verdict but rather they were only required to deliver a unanimous verdict.

 

The jury found the accused guilty as charged. At the sentencing hearing an issue arose as to what facts Roberts should be sentenced upon: 2012 ONSC 3271.

 

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New & Notable: Seriously though, why would you have an AK-47 knock off in your trunk?

Rajinder Dhillon owned a BMW. On August 15, 2006 he was at a parking lot where there was alleged to be a fight. He arrived there in his BMW. In the trunk of his BMW was a Norico assault rifle (an AK-47 knock-off). The police responded to the alleged fight. Cst Doucette was one of the officers. He investigated the matter and concluded that there had been no fight. He noticed, however, the location of the BMW as unusual. Dhillon stepped forward as the owner of that vehicle. After a brief exchange Cst Doucette asked to look in the trunk. Dhillon opened the trunk. Cst Doucette found the rifle. Read more...

New & Notable: The co-accused had a change of heart, albeit too late

Clarence Gardipy and three other men broke into Justin Scott’s home and tried to rob him. They were later arrested and charged. One of the men, Sean Gardipy (Clarence’s cousin) gave a statement to the police implicating the others. At their trial he was subpoenaed to testify. He refused to be sworn.  The Crown succeeded in tendering his statement. Gardipy was convicted. He appealed. His appeal was dismissed: 2012 SKCA 58.

 

Gardipy decided he was going to rob Justin Scott. He went with three other men to Scott’s house for this purpose. One of those men was his cousin, Sean Gardipy. The men broke into Scott’s home and threatened and beat him in an effort to find his “stash” and rob him. Scott ultimately made an escape and the men fled. They were arrested after a brief investigation

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New & Notable: Defining dangerous driving

Randy Roy was headed home from work at the sawmill. He was giving his colleague Mark Harrington a ride home as well. In order to get home Roy decided to take a side road which met up with a major highway that they would take. When Roy reached the intersection of the side road and highway he had to stop and then turn left onto the highway. When he reached that intersection the weather conditions were not good. Visibility was limited due to for and the side road was snow-covered and slippery.

 

Roy turned onto the highway. He clearly did not see the tractor-trailer headed down the highway in the same direction he intended to go. The driver of the tractor-trailer noticed Roy’s headlights, but by the time he realized that Roy had pulled in front of him it was too late. The tractor trailer slammed into Roy’s vehicle. Harrington was killed.

 

Roy was charged with dangerous driving causing death. He was convicted. He appealed. Cromwell J, on behalf of a unanimous Supreme Court allowed the appeal and entered an acquittal: 2012 SCC 26.

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New & Notable: Enforcing Rules for the sake of the Rules!

Gordon Rambissoon was charged with impaired and “over 80”. At trial he sought to exclude evidence – including the breath readings – based on alleged violations of his rights under sections 8 and 10(b) of the Charter:  The alleged violations were based on the timing of the ASD demand by the police.

 

Knazan J found that there was a breach. Turning to section 24(2) – at the time just months after R v Grant, 2009 SCC 32 had been released – Knazan J held that the evidence should not be excluded, noting, inter alia, that trivial nature of the breach.

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New & Notable: Defining section 127

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.

 

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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...