Pending & Prominent: Finding fear in all the right places?

Kelly O’Brien has a short fuse, something his ex-girlfriend, W, knew well. W suspected O’Brien of cheating on her. She told him of her suspicions over the phone while O’Brien was incarcerated at Headingly Correctional Centre. O’Brien denied the accusation and W responded that in light of his infidelity she was taking steps to abort his baby. At the time W was 20 weeks pregnant.  O’Brien was upset at the prospect of the abortion, he tried to talk W out of it, he begged her not to kill his baby. She persisted with the threat and taunted him with her plan to send him the ultrasound photo. When O’Brien asked why she was doing this, W responded “Why not? Why not hurt you, hey? Maybe you should hurt?”

O’Brien was enraged and he provided an explicit explanation of what he was going to do upon his release, which included the following:

…I’ll be on the 25th… on the 25th you’re getting a bullet in your fucking head you fucking little whore, man, o.k.? O.k. And the guards just heard me so I’ll probably going to get charged for that. So I’m going to fucking kill you, you little bitch when I get outta here man. O.k., you fucking hear me? You’re dead, you fucking whore. I mean it man. Watch your windows. I’m going to shoot your windows out, bitch  [para 6]. 

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New & Notable: Where there is no will, there is no way...

Christopher Ramgadoo pled guilty to aggravated sexual assault, sexual interference, unlawful confinement, attempted choking and breach of probation as a result of his sexual attack of a 13-year old girl.  At the ensuing dangerous offender hearing, Crown and defence agreed that Ramgadoo satisfied the statutory criteria for a dangerous offender designation (s. 753(1)).  The only issue was whether the risk he posed could be controlled in the community (s. 753.1). 
The trial judge found that it could not and imposed an indeterminate sentence.  On appeal, Ramgadoo argued that the trial judge had failed to consider the “burn out” effect of his eventual aging on his risk of reoffence and whether making compliance with a medication regime a condition of a long-term supervision order would render his risk to reoffend manageable in the community.  The appeal was recently dismissed by the Ontario Court of Appeal: 2012 ONCA 921.
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New & Notable: Here's hoping he gets this message

In November 2011, Agnieszka Mikulska sought a roommate in an ad on the internet.  Within a month, her worst nightmare had come true.  Patrick Doherty had responded to the ad.  Ms. Mikulska chose someone else – perhaps not surprisingly, another woman.  Doherty began a shocking stalking campaign that resulted in his March 2012 conviction for criminal harassment, two counts of attempting to obstruct justice and two counts of breaching a court order.   He was sentenced to 5 ½ years in jail.  He appealed.  He lost: 2012 ONCA 855.

 

The harassment started shortly after Ms. Mikulska made her decision not to live with Doherty.  It started with verbal abuse, threatening comments, multiple phone calls, showing up at her home and leaving notes.  Shaken, Ms. Mikulska called police.  The police intervened with Doherty and told him to stay away from her.

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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).

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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.

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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.
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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.

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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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