New & Notable: Yet another message from a Court of Appeal...how many more do we need?

James is yet another decision which illustrates the seriousness of the consequences which flow from sexual assault perpetrated against a child. In recent blogs the approach by appellate courts in Ontario, Saskatchewan and Alberta has been discussed [see Strong Message to Those Who Sexually Abuse Children and Yet Another Court of Appeal Sending a Strong Message about Sexual Assault]; now Manitoba can be added to that list: 2013 MBCA 14.

 

James was at various times a scout, hockey coach and general manager of various teams in the Western Hockey League.  James recruited Theoren Fleury and Todd Holt. Both young men left their homes and families to pursue their dream of becoming professional hockey players. The boys were billeted to families in the communities in which they played – James selected the families. Two nights per week the boys were required to stay with James ostensibly for the purpose of academic tutoring – no such tutoring ever took place.

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New & Notable: Mind the gap

P.G. was convicted after trial of grooming and then sexually assaulting two young boys: 2012 ONSC 900.  It was not the first time that he had been convicted of these types of offences.

 

After the finding of guilt, the crown brought a dangerous offender application, asking the court to sentence the offender to an indeterminate period of custody.

The application was justified.  P.G. met much of the established Dangerous Offender criteria.  He was a diagnosed pedophile, a life-long condition with no cure.  He denied his offences and denied that he had an attraction to children.  He had not undergone any treatment since his last offences nor did he propose any treatment plan moving forward.  All of this spoke to his dismal prospects for rehabilitation and the likelihood of recidivism.

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Current & Curious: Ants in his pants?

In the summer of 2007 Clinton Williams was the driver in a serious high-speed single motor vehicle accident. His three passengers, all friends of his were killed in the crash. Williams suffered serious injuries to his brain and body. In the fall of that same year Williams was arrested and charged with three counts of dangerous driving causing death. Prior to the commencement of his trial in September 2012 Williams sought an order that he was unfit to stand trial: 2012 ONSC 5851.

 

Two expert witnesses testified on behalf of the defence and two testified on behalf of the Crown. Although, all experts agreed that Williams had sustained a significant injury the Crown maintained that Williams failed to discharge his burden that on a balance of probabilities he was unfit; Quigley J of the Ontario Superior Court of Justice agreed:

[I am not] persuaded on a balance of probabilities that Mr. Williams is not fit to stand trial, as that legal standard is understood, in the face of the very strong evidence of performance of Mr. Williams on tests administered by Dr. Swayze and on the evidence adduced by the Crown that is strongly suggestive of malingering. I do not make a specific finding of malingering although there is certainly evidence that could support such a finding. There is no need to do that. It is sufficient for these purposes to indicate that the defence evidence has not persuaded me on this application that Mr. Williams is unfit applying the tests that I am required to apply.

Considering the whole of the evidence, I am satisfied that it is at least as likely as not, if not substantially more likely than not, that Mr. Williams is fit to stand trial. Since I am not persuaded that he is unfit to stand trial, the presumption of fitness in the Code must operate [paras 132-133].

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New & Notable: It is practicable to properly set up the Intoxilzyer

Blake Cote was convicted of driving with a blood alcohol concentration “over 80”. Cote was convicted at trial; he appealed.


He argued that the trial judge erred in law by “failing to consider the evidence as to unexplained delay on the part of the police in taking” samples of his breath. Specifically, on appeal, Cote urged Daley J, sitting as a summary conviction appeal court, to find that the trial judge erred in his consideration of the period of time between the time when the breath technician arrived at the station and the time when the technician began to change the alcohol standard solution in the Intoxilyzer. His appeal was dismissed: 2012 ONSC 5247.

Cote was stopped by police at 12:54 after he was observed running a stop sign. The officer who pulled him over formed a suspicion that Cote had consumed alcohol and asked that a roadside screening device be brought to the scene. The device arrived at 1:01 and Cote registered a fail.

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New & Notable: Recognizing the need for a real world Charter...

Tiffany MacMillan was drunk. She was driving a boat. She killed someone. The events that ensued thereafter and the actions of the police resulted in a violation of her rights under section 10(b) of the Charter. The trial judge thought there were also breaches of sections 8 and 9 as well. The trial judge also thought the breaches were so serious that the evidence should be excluded. The trial judge was wrong on both accounts: 2013 ONCA 109.

 

MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.

As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.

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Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.

 

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

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New & Notable: A thinly veiled argument

What happens when the constitutionally protected right of an accused to confront his accuser conflicts with the constitutionally protected right of a citizen not to be discriminated against on the basis of her religion?

 

According to the Supreme Court - it depends: R v NS, 2012 SCC 72 [see previous post on NS by Dallas: Niqabs and the Criminal Justice System].

 

M---D S. & M---l S. were charged with sexually assaulting N.S.  The parties were N.S.’ cousin and uncle, respectively.  The Crown elected by indictment and a preliminary hearing commenced.

At the preliminary hearing the Crown sought to call N.S. as a witness.  N.S., a Muslim, wished to testify while wearing her niqab.  Both accused sought an order forcing her to remove her niqab when testifying so that they could they could effectively cross-examine her and so that the court could assess her demeanour.  A voir dire was conducted.

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New & Notable: Unsavoury witnesses and debt collectors

Kevin Pelletier was convicted of several offences related to his involvement in a beating and shooting. He appealed his conviction and sentence; the appeal was dismissed: 2012 ONCA 566.

 

Watt JA, in his distinct, concise and poignant way explained the circumstances of Pelletier’s appeal as follows:

The relationship between debtors and creditors is common to both licit and illicit commerce. Debtors owe. Debtors are expected to pay. Creditors are owed. Creditors expect to be paid.

Some debtors pay their debts on time and in full. Others lag behind and require reminder or encouragement to discharge their obligations. The methods used to remind debtors of their obligations and to encourage repayment vary. Some follow conventional methods. Others take different approaches.

In this case, some drug purchasers fell behind in their payments to their suppliers. To remind them of their indebtedness and to encourage repayment, their suppliers shunned dunning letters and threats of litigation in favour of a more direct approach: a baton and a handgun.

A judge found Kevin Pelletier (the appellant) guilty of several offences arising out of his role in a beating and a shooting, about a week apart, of two drug purchasers who got behind in their payments.

The appellant says that his convictions were flawed because the judge at his trial didn't take sufficient care in assessing the reliability of evidence of disreputable characters and untrustworthy eyewitnesses in reaching his conclusions of guilt. The appellant also contends that the sentence imposed by the trial judge was unfit because the judge failed to take into account that the appellant is Aboriginal [paras 1-5].

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New & Notable: SCC sends message on new offence of terrorism

Mohammad Momin Khawaja designed what he called the “hifidigimonster”. It was a remote arming device for explosives. He offered to people, that he believed were terrorists, that he would smuggle it into the United Kingdom and provide training in its use. In addition to making other offers of support to these people, he provided money for explosives for an operation in the United States or in Europe and for other projects. In a nutshell, Khawaja had become obsessed with Osama Bin Laden and his cause, and took steps to offer and provide assistance.

 

At trial, while Khawaja’s defence partially succeeded in challenging the constitutionality of several of the terrorism offences, he was nevertheless convicted of a number of terrorism offences. The trial judge sentenced Momin Khawaja to ten and a half years in the penitentiary and declined to provide any credit for time in custody prior to the imposition of the sentence on the basis that it would be incompatible with a denunciatory sentence. Parole ineligibility was set at five years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.

 

As often happens when a new criminal offence goes to court, the matter ultimately goes on to appellate review.  The Ontario Court of Appeal granted the Crown’s sentence appeal and imposed a life sentence on a non-terrorism explosives offence found in the Criminal Code. The Court also imposed a ten-year period of parole ineligibility and a series of consecutive sentences on the terrorism offences of which Khawaja was convicted: 2010 ONCA 862.

 

Ultimately, when Momin Khawaja appealed from this decision, the Supreme Court of Canada was presented with the opportunity to send a message regarding the gravity of the new terrorism offences: 2012 SCC 69.

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New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906

 

The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

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