Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
Read MoreNew & Notable: Forfeiture clarified
Alphide Manning was driving while impaired on April 1, 2010. At the time, Manning had three convictions for impaired driving offences. He also had an outstanding charge for impaired driving from July 2009. Manning eventually pleaded guilty to both of those matters - as a result he had five impaired driving related offeces on his record.
The Crown sought, in addition to some jail time and a driving prohibition, an order of forfeiture under s 490.1. The trial judge declined to make that order relying on 490.41(3). That request was initially denied; the SCC has just rectified that misstep: 2013 SCC 1.
Current & Curious: Threats Redux
Today the Supreme Court released its decision in O'Brien: 2013 SCC 2. Yesterday I posted about this case and commented on the possible impact of the Court's ruling: Finding fear in all the right places.
Two aspects of the ruling are interesting. First, the legal analysis. Fish J, for the majority held that "it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered feel intimidated by them or be shown to have taken them seriously" [para 13]. Rothstein J, for the minority agreed. As I noted in my post yesterday, this is an interesting point. That all members of the Court agreed, and with little real analysis, that the subjective view of the recipient of the threat is not determinative is somewhat notable. It has been held and accepted by many that this is not only an important but fundamental aspect of a threats charge. Regardless, as I noted in my earlier post - whether it was always the law or is now the law - this is a beneficial and legally sound view of the elements of a threats charge.
Second, the dispute between the majority and minority relates to the interpretation of the trial judge's ruling. The trial judge held as follows:
So I have to consider the evidence of Ms. [W] when I consider the mental element or the mens rea. Normally the mens rea is taken from the words of the accused, absent any explanation from the accused, and as I pointed out at the outset you have chosen not to testify, as is your right. But the evidence in this case is somewhat unusual in the sense that Ms. [W] has told the court that she was not concerned about the threats, that you shoot your mouth off, if I can use the vernacular, that she did not want you charged, she did not take the threat seriously. And so it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt. So despite my concerns I am entering an acquittal on the charges of utter threats, …
While the majority found that it was open to the trial judge to consider W's perception, the minority felt the trial judge asked the wrong question - and acquitted on the basis of W's perception. With respect, it looks like that is exactly what the trial judge did. Perhaps, in fairness, the learned trial judge was of the same view as many others, that the recipient's view is highly probative and indeed, determinative. At any rate, that is not the law - at least not any more.
DGM
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].
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.
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.
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).
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.
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.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.