New & Notable: Justice delayed...to avoid the penitentiary

Daniel McCue was sought by the police.  Shortly after they found him McCue fled from them. The chase took them through several back yards but he was eventually apprehended. A search of the route of the chase led to the discovery by the police of a loaded nine-millimeter semi-automatic handgun. 

 

The accused was charged with numerous firearm offences including two breaches of separate firearm prohibitions. He was also charged with a mischief to property from earlier the same day unrelated to the possession of the gun. After a trial, the accused was sentenced to two years less a day in the reformatory having been given credit on a 1:1 basis for 367 days of custody prior to sentencing. The Crown launched a sentence appeal.

R v McCue 2012 ONCA 773 raises a few interesting questions. One is whether it is appropriate for a court to adjourn a case to allow an in-custody accused to accumulate further “dead time” in order to avoid a penitentiary-length sentence. Another is how this offence should be characterized.

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New & Notable: Inherent risks almost invariably will be realistic risks

Donald Boudreault was impaired. He was sitting in his car. He was arrested and charged. He was acquitted. That acquittal was upheld by the Supreme Court – even if the Court appears to have been less than impressed with the acquittal: 2012 SCC 56.

 

Boudreault was drinking at a bar. After drinking he went to Danye Dubois’ home. Dubois had driven Boudreault to her home. After being there some time Boudreault asked Dubois to call a cab for him, she did.

 

Boudreault and Dubois waited, for a significant period of time, for a taxi and it had not yet arrived. Dubois apparently told Boudreault to go outside, as she wanted to go to sleep. It was cold outside. Boudreault decided to get in his car to wait for the taxi. 

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New & Notable: One high watermark leads to another...

The afternoon of June 21, 2009 was a fateful one for Lawrence Bush and his three friends.  Bush drank, did drugs, drove and, as a result, killed his friend.  For this, he received a 12 year prison sentence.  He thought that was too high.  The Ontario Court of Appeal disagreed and upheld the highest sentence in the land to date for impaired driving and criminal negligence causing death: 2012 ONCA 743. 

The facts were “egregious”; the driving was “outrageous.”  Bush, on bail for an impaired driving charge, had been legally barred from driving since 1985 and was convicted 10 days earlier, for the 8th time, of driving while his license was suspended.  Despite this, he chose to drive a car, in the middle of the day, down country roads, for over an hour at speeds of 170 km/hr, all the while drinking and continuing to take narcotics.  The sheer stupidity included driving at 110 km/hr with Bruno, a passenger who was also drunk and high, “hood surfing” on the hood of the car.  The car ended up in the ditch.  Unfortunately for all, it didn’t stay there.

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New & Notable: There is not really an offence of armed robbery

Jerome Moore was acquitted after a judge alone trial in the Superior Court. The indictment specifically charged that he “did, while armed with a firearm, to wit: a handgun, rob Steve Howland, contrary to Section 344 of the Criminal Code.” In light of the limited opportunity of the witness to observe the accused, the trial judge was not satisfied beyond a reasonable doubt that Moore pointed the firearm or was even armed and on this basis acquitted him of the charge.

 

In R v Moore, 2012 ONCA 770, the Court of Appeal confirmed that the Criminal Code does not actually create an offence of armed robbery. Rather, s.343 creates an offence of robbery and describes the four ways that robbery may be committed. In order to engage the mandatory minimum provisions, the Crown is simply required to prove, as mater of sentence that the accused used a firearm in the commission of the robbery.

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New & Notable: A call to use step 6 of Garofoli

Jason Rocha was investigated in 2008 by the Toronto Police Service for drug and weapon offences. In pursuit of their investigation, the police sought search warrants for Rocha’s restaurant and residence. This issuance of these warrants was almost exclusively based on information provided by a single confidential informant (CI). At trial, the defence challenged whether the warrants should have issued and sought  the exclusion of evidence due to a breach of section 8 of the Charter.

The decision of the Ontario Court of Appeal released on October 24, 2012 highlights the very real difficulties facing trial courts called upon to review the merits of an information to obtain a search warrant where it is based on information from a CI: 2012 ONCA 707.

The concurring decision by Juriansz J places a bold challenge at the feet of Crown counsel to make best use of the vastly underutilised tool available to them:  step 6 from Garofoli.

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New & Notable: SCC trims the fat from 258

On Friday November 2, 2012 the Supreme Court released two decisions which had been long awaited: R v St-Onge Lamoureux, 2012 SCC 57; R v Dineley, 2012 SCC 58. While the decisions deal with different issues (constitutionality of 258(1)(c), (d), (d.01) and (d.1) in the case of the former and the retrospectivity of those provisions in the case of the latter) they are linked and both have a notable impact on “over 80” prosecutions.

 

In St-Onge Lamoureux the majority, authored by Deschamps J, struck out the second and third prong of the 258(1)(c) presumption as set out in Bill C-2 passed in July 2008. In Dineley – which will be the subject of a later post – the majority, also authored by Deschamps J, held that those same amendments – as they stood after St-Onge Lamoureux – did not apply retrospectively.

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New & Notable: Sometimes it pays to tell your side of the story

Never get into a car with a stranger

Phung and Cong Tran were drug dealers.  They did a deal with Peter Tran, not related to Cong Tran, to buy two kilos of cocaine.  On the night of the deal, they picked him and the drugs up in Toronto and drove to Richmond Hill.  Peter Tran’s girlfriend, Emily Le, was along for the ride.  She should have stayed home; her boyfriend ended up dead and she was shot twice, but lived to tell the tale.

 

Cong Tran drove the foursome to Richmond Hill.  There was some talk in the car about the fact that his brother had been stabbed less than a week earlier.  Cong Tran missed the turn off to Ms. Le’s destination and the group ended up in a secluded area, unfamiliar to Peter Tran and Ms. Le.  Cong Tran, Peter Tran and Ms. Le got out of the car.  Phung took over the wheel and left, saying he had to go get something at a nearby uncle’s house.  He was gone for quite some time and Cong Tran eventually called him to question his whereabouts.

 

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Comment: The right to know a little more

The Right to Know is a column in the Ottawa Citizen written by a group of lawyers from the Edelson, Clifford D’Angelo Law Firm. The column is said to be aimed at informing the public “on their rights and obligations…under the law”.

 

In the past I posted a blog (Lack of Knowledge is bad, Imperfect Knowledge may be Worse) on one of the articles written in this column (Meeting the Police: An Informed Citizen won’t be intimidated). A recent article, authored by Solomon Friedman (Judges have broad range of sentencing options), warrants similar comment.

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New & Notable: Finding privacy in the wrong places

Richard Cole was a teacher. Ironically, one of his duties was that he was responsible for “policing use by students of their networked laptops” [para 14]. In a similar way, school board technicians could access his computer. While performing routine maintenance activities one day a technician found nude and partially nude photographs of an underage female student [para 18].

 

The central issue before the Supreme Court was whether Cole had a reasonable expectation of privacy in the laptop. The Court found that he had. The warrantless search of it by the police was therefore a violation of section 8. The evidence, however, ought not to be excluded: 2012 SCC 53.

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New & Notable: Just blow if you really aren't driving...

Jeffrey MacKenzie got out of the driver's side door of a car that was on the shoulder of the 401 express lanes in Toronto. He later would say he was not the driver. Nonetheless, a tow truck driver saw him get out of the driver's seat and when police arrived he was standing in front of the car talking on his phone. 
The tow truck driver advised the police that MacKenzie was the driver - something he admitted under cross-examination was an assumption based on what he had observed. The officer made further observations including bloodshot eyes, smell of alcohol and slurred speech. 
The officer ultimately made a demand pursuant to section 254(2) of the Code. MacKenzie refused. He was charged with refusal. At trial Caldwell J considered, inter alia, whether the Crown had to prove that MacKenzie was in fact the driver: 2012 ONCJ 424.
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