Current & Curious: Cell technology is simple compared to this stuff...

Courts continue to grapple with the apparently difficult issue of searching cellular phones incident to arrest. In one of the most recent rulings, Boswell J seems to forge a somewhat new and much more restrictive approach to the issue: R v Liew,2012 ONSC 1826. A curious ruling given the recent comments of the Court of Appeal in R v Manley, 2011 ONCA 128.

A nice summary of Liew and commentary can be found on Westlaw Canada's CriminalSource's newest newsletter: Police Powers Newsletter 2012-01.

In brief, Liew was arrested on grounds that he was importing cocaine. A search incident to arrest revealed a Sony Erikson cell phone. The officer decided search the phone incident to arrest. The stated purpose for this search was to find "immediate phone calls and immediate texts" [para 15]. The officer did find some recent phone calls. The search of the phone lasted approximately 7 minutes [para 17].

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News: New Issue of Mack's Criminal Law Bulletin now online!

Check out the latest MCL Bulletin on Westlaw Canada's CriminalSource. Issue 2012-16 considers recent cases which have looked at use of force by police officers in the context Charter motions pursuant to sections 7 and 12 seeking a stay of proceedings.

Coincidentally, the Supreme Court recently considered this very issue in R v Bellusci, 2012 SCC 44. Of course they shared my views on the issue.

New & Notable: $9.2 million, non-refundable expense for defence

Ripudaman Singh Malik was acquitted in the "Air India Trial". Malik spent four years in custody prior to the acquittal. The trial cost his approximately $9.2 million. After his acquittal Malik sought to have the Crown reimburse these costs.

 

Malik argued, inter alia, that the remarkable, unique and exceptional nature of the case together with the following two factors warrant the order of costs against the Crown:

 

First, that the Crown knew or ought to have known that the evidence of a central witness in the case against him was not credible. 

 

Second, that CSIS, in an act acknowledged by the Crown to have been "unacceptable negligence", erased certain surveillance intercept tape recordings.

 

Josephson J dismissed the application: 2012 BCSC 1002.

 

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New & Notable: Finding their way to the truth, regardless of the route...

Inderjit Singh Reyat lied in court. It’s not the first time someone has lied in court. Often people are charged or prosecuted for lying in court. Reyat, however, chose to lie in a very significant trial, the “Air India Trial”: R v Malik and Bagri, 2005 BCSC 350.

 

Reyat was charged with perjury. The charge particularized 19 alleged instances of false statements during his testimony at the trial. Reyat sought an instruction to the jury that they had to be unanimous as to at least one of the particulars. The trial judge refused to instruct the jury in that manner. Reyat was convicted. He appealed. That appeal was dismissed: 2012 BCCA 311.

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New & Notable: You don't have to make tea to join the tea party

Graham McMynn was kidnapped at gunpoint. He was held for eight days in three different houses. Sam Tuan Vu was in each of those houses during that time.

 

Vu along with four others were charged with kidnapping and unlawful confinement. Vu was convicted of confinement but acquitted of kidnapping: 2008 BCSC 1376. The Crown appealed. The British Columbia Court of Appeal substituted a verdict of kidnapping: 2011 BCCA 112. Vu appealed to the Supreme Court. That appeal was dismissed: 2012 SCC 40.

 

McMynn was kidnapped on April 4, 2006. He was intercepted by two cars. He was taken at gunpoint by several men. McMynn was taken to a van and then transported to a house. He was subsequently taken to two other houses.

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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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