New & Notable: Yet another Court of Appeal sending a strong message about sexual offences against children

Kelly Minogue had a 14 year-old son. That 14 year-old son would bring his friends over to his house, where his mom, Ms Minogue, would purchase and ply them with alcohol.  

 

Ms. Minogue had a threesome with 2 of her son’s 14 year-old friends, S and J. She had sex with J on two subsequent occasions. The third victim, L, also 14, attended the Minogue residence, to hang out with friends and drink. S got drunks and Ms. Minogue invited S to sleep in her bed where she initiated sexual contact.

At the time of the offences Minogue was 37 and recently divorced and sharing custody on an alternating weekly basis with her ex-husband. Minogue plead guilty to three counts of sexual interference.

Minogue showed little insight into her offending behaviour as reported by the author of the pre-sentence report although her risk for re-offending was reported to be low following a sexual behaviours assessment.

The sentencing judge concluded that an appropriate sentence in these circumstances was 2 years. The Crown appealed: [2012] SJ 675 (CA).

Read More

New & Notable: Justice may be blind but you don’t need to wear blinders

Richard Vader had a lot of guns and ammo.  At the time that Vader had these guns and ammo he was bound by two prohibition orders, banning him from possessing any of these items. At his trial Vader conceded that he was in fact in possession of the firearms and ammo when he was prohibited from doing so. The only issues at trial was whether Vader’s statements to police were admissible and whether the arsenal guns and ammo should be excluded from evidence due to alleged breaches of Vader’s Charter rights: 2012 ONSC 5418.

 

On October 4th, 2011 Vader was driving a pick-up truck. Given that he had seven firearms and ammunition in the truck with him, he probably should’ve replaced his burnt out headlight before going for a drive, but instead Vader was intercepted by Officer Roughley.

Read More

New & Notable: Affirming necessity to point to evidence to rebut presumption of voluntary consumption

Concerned citizens of Parry Sound called police to report Mark Jensen’s erratic driving and then continued to follow him.  When police arrived at the dock where Jensen had stopped, they found him passed out behind the wheel.  He reeked of alcohol and was clearly impaired.  His blood alcohol content was .29.  The Crown’s case was admitted.  Jensen testified and argued that he was in a state of non-insane automatism while he was driving.  He was despondent over his brother’s death, had been drinking heavily in the preceding weeks and was confused.  He had no recollection of purchasing or drinking the alcohol found in his system on the night in question.  The trial judge rejected the defence of non-insane automatism because no expert evidence was called but went on to acquit Jensen on the basis that he had a reasonable doubt as to whether Jensen had the requisite mens rea for the offences.  The Summary Conviction Appeal judge granted the Crown’s appeal and found that the trial judge erred in law because there was no evidentiary basis upon which the presumption that the accused consumed alcohol voluntarily before driving could be rebutted.  A conviction was substituted because the evidence, properly viewed, was overwhelming: 2012 ONSC 3325. The Ontario Court of Appeal denied leave to appeal: 2012 ONCA 878.
Read More

New & Notable: What to do with an eye-rolling juror?

Most trial lawyers occasionally, but inevitably, encounter a juror who demonstrates through the raising of an eyebrow or the roll of the eyes what he or she is thinking about a piece of evidence or a position taken in court. Like most murder cases, Jonathan Cioppa was being tried before a judge and jury but on Mr. Cioppa’s jury was a particularly opinionated and, even more importantly, demonstrative juror.

 

Just before the judge’s final instructions to the jury, the defence brought an application for an inquiry to be held under section 644 of the Criminal Code regarding whether the demonstrative juror should be discharged. Nordheimer J. declined to conduct an inquiry and dismissed the application: R v Cioppa, 2012 ONSC 6832.

Read More

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

 

Read More

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.

Read More

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.

Read More

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].

Read More

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.

 

Read More

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.

Read More