New & Notable: What's that bulge in your pocket...the final word from the SCC

The bottom line

Aucoin was stopped by Cst. Burke for motor vehicle legislation infractions.  The officer felt it necessary to have Aucoin sit in the rear of the cruiser while the ticket was issued.  Before securing Aucoin in the rear of the cruiser, Cst. Burke did a pat down search and detected a package, which Aucoin said was ecstasy, in Aucoin’s pocket.  Aucoin was arrested and found to be in possession of a large quantity of cocaine and pills. 

In a previous post, Dallas discussed the Nova Scotia Court of Appeal ruling in Aucoin: 2011 NSCA 64. The Supreme Court of Canada heard the appeal from that ruling. The majority, authored by Moldaver J, held that is was not reasonably necessary for the officer to place him in the police cruiser and accordingly, that searching for security reasons before placing him there could not be justified and was a violation of s. 8 of the Charter.  However, the majority went on to hold that the evidence was admissible pursuant to s. 24(2) of the Charter: 2012 SCC 66

 

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New & Notable: The Dangers of Not Confronting a Witness in Cross-Ex: The "Rule" in Browne v Dunn Applied

Paul and Michelle Frost were married at one time. They were partners in life and according to the Crown’s case, partners in various sexual assaults against three young girls who lived in their home from time to time.

Some of the charges involved Mr. Frost alone, some involved Mrs. Frost alone and some involved both. They were tried together before a judge alone and were convicted of most of the offences. They both appealed both the convictions and the sentences: 2012 ONCA 807.

During the course of the trial Paul Frost testified. He denied the allegations of one of the complainants stating that there was no sexual activity. In relation to the allegations of the second complainant, he explained that the touching was inadvertent. In response to the third complainant he testified that not only was the sexual activity consensual but that some of it had been initiated by the complainant.

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New & Notable: Rejected claim of self-defence does not lead to claim of provocation

Curt Dagenais shot and killed two police officers. He tried to kill another. He was convicted after trial of two counts of first-degree murder. He had alleged that he acted in self-defence. The jury clearly rejected this claim. He appealed. His appeal was dismissed: 2012 SKCA 103.

 

Dagenais had been at his mother’s home and had been in a dispute with his family including his sister. He had swung her and then almost hit her when he drove away. He went to the RCMP detachment attempting to get his sister evicted from the home. The RCMP would not assist him. He was not happy. He told them “I am not not done with you guys yet”. Shortly thereafter his family called the RCMP to report what had happened. The RCMP decided they had grounds to arrest Dagenais and set out to do so.

The RCMP learned that Dagenais was in his truck across from his mother’s home. Officers Cameron and Bourdages attended in a police truck. Officer Knopp attended in a separate cruiser. As they attempted to arrest Dagenais he fled. The police gave chase. The chase continued until Dagenais went down a trail into the woods. Officer Knopp, who was trailing into the chase came upon the scene. She saw the police truck had t-boned Dagenais’ truck. She then heard a bang and saw a hole in her windshield; she felt heat on the side of her face. She had been shot. Another shot struck her windshield. She saw Dagenais with a rifle. She returned fire. Dagenais fled the scene.  

Officers Bourdages and Cameron had both been shot in the head and killed.

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New & Notable: Ontario Court of Appeal opines, yet again: guns and drugs don't mix

Wong was convicted of ten gun and drug related offences.  One of them was possession of a loaded firearm (s. 95(1) of the Criminal Code), which carried a mandatory minimum 3 year jail sentence.  He received a global sentence of 3 years on all of the gun and drug charges.  The Ontario Court of Appeal overturned his conviction on the s. 95(1) charge on the basis that the trial judge erred in finding that possession of an unloaded firearm with readily accessible ammunition was included in the offence of possession of a loaded firearm. [2012 ONCA 432]  Not surprisingly, Wong sought to appeal his sentence.  With the mandatory minimum sentence no longer at play, he argued that a 3 year sentence was excessive and sought a conditional sentence.  The Court of Appeal said no: 2012 ONCA 767.

 

The trial judge was clear in his reasons that the overall length of sentence was determined by the mandatory minimum.  Wong argued that he was 23, had no record and had been on house arrest for one and a half years pending trial.  He said that his drug trafficking only lasted for 2-3 days and that he was not a danger to society [paras 5 and 7].

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New & Notable: Strong message to those who sexually abuse children

Mr. Merrick was in his mid 60’s when he fondled the genitalia of a 10 year old boy he babysat.  He did this “countless” times to the boy over the following four years.  He was caught and pleaded guilty to a single count of touching a person under 14 for a sexual purpose (s. 151(a) of the Criminal Code).  He appealed his 5 ½ year sentence arguing that his actions did not constitute a “major sexual assault.”  The Alberta Court of Appeal didn’t buy the argument: 2012 ABCA 319.

Earlier this year, the Ontario Court of Appeal also grappled with sentencing in child sexual assault cases but in a case where there could be no argument about whether the offender’s actions constituted a “major sexual assault.”  Over a three year period, on a near daily basis, Mr. D.M. sexually abused his 15 year old niece who was completely dependent on him.  The abuse started as sexual touching and culminated in sexual intercourse 2-3 times per week.  The trial judge found that the mitigating factors put the appropriate sentence at the low end of the range and sentenced Mr. D.M. to 3 years.  The Ontario Court of Appeal found that sentence to be manifestly unfit and sentenced him to 7 years, the sentence sought by the Crown at trial: 2012 ONCA 520.

 

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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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