Current & Curious: A drastic but unfortunate shift in the law of disclosure

Vincent Quesnelle was charged with several offences including sexual assault on two different complainants, TR and LI; the assault on TR was alleged to have occurred on December 29, 2006 and the assault on LI was alleged to have occurred on March 5, 2007.

 

Prior to trial there was a radio documentary created about TR “and the prosecution of certain alleged assaults against her”. TR and one of the detectives who assisted in the present case were interviewed for the show. That detective indicated that she came across “four or five occurrences in relation to sexual assaults” related to TR.

The defence learned of this radio documentary and sought the occurrence reports related to TR. The trial judge held that those records were “records” within the meaning of section 278.1 and where not subject to disclosure under the Stinchcombe regime.

Quesnelle was convicted. He appealed: 2013 ONCA 180.

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New & Notable: No animals were harmed in the making of this offence

TT was a mother. TT decided to take on a raw vegan diet. She imposed this diet on her children. The consequences of that decision lead to serious health issues for her children; it also lead to criminal charges: 2012 ONSC 4346.
 

TT is the biological mother of 3 children, born between 2005 and 2009. In 2008 TT adopted a raw vegan diet for the family. This diet "mandated not consuming animal or animal by-products, including eggs, milk and cheese" [para 3]. As such TT "fed her children only raw vegetable, sprouted rice, fruit, nuts, coconut water, herbal tonics and supplements.

Their feeding was highly regimented and TT strictly controlled portion size. She did not seek medical advice on the appropriateness of the raw vegan diet for infants and small children.  Further, the children did not have a family doctor, nor did they have immunizations” [para 3].

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Current & Curious: Unfit, yet undisturbed...

Mohammed Butt pleaded guilty to one count of sexual interference contrary to section 151 of the Code. Almost a year after his guilty plea he was sentenced to 14 days in jail, the mandatory minimum prescribed by the Code, and three years probation. The Crown appealed this sentence: 2012 ONSC 4326.

 

Butt had lured the twelve-year-old male victim off the street into his apartment under the pretext that he was a fortune-teller. Once at the apartment Butt began to read the victim’s palm and made notations on a notepad. Butt told the boy that he was lucky and invited him to lie down on a blanket so that he could read his feet. Butt then began to rub the boy’s genitals over his clothes making the young boy fearful. Butt performed fellatio on the boy. When the boy stated that he was late for camp, Butt removed his own shirt, cupped his breast and told the boy that he was a woman.

When the victim ultimately made his way to camp he notified the staff of what had just happened.

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Current & Curious: When you are driving around with a gun in your pants you would be well advised to keep within the speed limit!

Courtney Newell was charged with possession of a loaded handgun and marijuana. The only issue at trial was whether the police infringed Newell’s Charter rights: 2012 ONSC 2947.

 

Two Toronto police officers were patrolling a neighbourhood on bicycle where there had recently been several complaints about young people smoking marijuana in the area. At about 10 am they heard tires squealing. Both saw a Ford Focus travelling at a high rate of speed and with music blaring. There were children and pedestrians in the area; they decided to investigate.

Newell was the driver. No one else was in the car. Police approached and asked Newell for his license and registration, to which Newell responded that the vehicle was a rental in his fiancée’s name. Officers informed Newell of why he was being stopped and noticed that that Newell was sweating heavily, shaking and appeared nervous. Officers were able to confirm that the vehicle was a rental.

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New & Notable: Judging impairment does not require "expertise"

Jason Henry was impaired. He was driving. He was convicted of driving while impaired by drug. He appealed that conviction. The appeal was dismissed: 2013 ONSC 1214.

 

One of the issues on appeal was the trial judge’s reliance on the evidence of some witnesses (non-experts) that Henry was impaired.

It is trite law that lay persons (non-experts) can offer an opinion on the issue of impairment by alcohol: R v Graat, 1982 SCR 819. This same view has been expressed in relation to impairment by drug – that is, that lay persons can provide an opinion that a person appeared impaired by a drug: R v Polturak, 1998 CarswellAlta 145 (CA).

Since the enactment of Bill C-2 and the provisions of the Criminal Code that provide for “drug recognition experts” to perform tests to determine if a person’s ability to operate a motor vehicle is impaired by a drug, some courts have had difficulty with this issue.

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Current & Curious: Conspiracies - you can't join as a party once it starts, but it's not too late to join the conspiracy!

T and R apparently did not like their mother. This was not the usual situation where children are sometimes unhappy with their parents. T and R had much stronger feelings. T and R wanted to kill their mother.

 

T and R had a plan to kill their mother. They intended to ply her with alcohol and drown her in the bathtub.

T had a friend, JF. JF became aware of this plan. Thereafter JF became actively involved in discussing the plan and offering to assist therein. In particular, JF offered to provide an alibi; JF also advised T that she should give her mother 5 Tylenol 3’s as this would knock her out.

T and R killed their mother. R was charged with conspiracy to commit that murder. He was convicted. He appealed. His appeal was dismissed: 2013 SCC 12.

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New & Notable: What a difference a day makes

Being convicted and sentenced for a criminal offence has many consequences.  Some, like loss of liberty, are easily identifiable.  Others can be more properly characterized as collateral.  For Hoang Pham it was a collateral consequence that led to his appearance before our nation’s highest court: 2013 SCC 15. 

 

Mr. Pham, a non-citizen, was a drug dealer with a criminal record.  After being convicted of two drug offences, a joint submission was placed before the court for a two-year penitentiary sentence.  The sentencing judge agreed and the offender was sentenced to two years.  Unbeknownst to any of the parties, under the Immigration and Refugee Protection Act [IRPA], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her.

Upon coming to this realization, Mr. Pham appealed his sentence, asking for a reduction of one day to allow him to appeal the deportation order.  The Alberta Court of Appeal upheld the sentence holding that a reduction in sentence would only seek to undermine the IRPA and that the offender “had abused the hospitality afforded to him by Canada”.  Mr. Pham appealed to the Supreme Court.

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New & Notable: Strip searches and reliance of police on internal policy

Sang Eun Lee was arrested by the police and taken to the local station for breathalyzer tests. When a pat down search was conducted and it was discovered that she was wearing an underwire bra, she was told to remove it. She complied with the request, taking off her shirt and sweater along with the bra exposing her breasts for a brief period of time to the female officer who was present.

 

At trial, Ms. Lee was unsuccessful in establishing that the police conduct amounted to an unreasonable strip search contrary to section 8 of the Charter. She appealed her conviction and the finding of the trial judge: 2013 ONSC 1000.

Contrary to the trial judge, Fuerst J., sitting as a summary conviction appeal court judge, found that the conduct of the police did amount to a strip search:

Unfortunately, the trial judge failed to consider that the court’s definition of a strip search is not limited to removal of clothing to inspect a person’s private areas. The court’s definition of a strip search is two pronged: “[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments” [emphasis added]. On the trial judge’s own findings, Constable Martin directed the appellant to remove her bra so that the police could visually inspect that undergarment, and then store it. This is not a case like R. v. Backhouse (2004), 194 C.C.C. (3d) 1 (Ont. C.A.) where the accused’s clothing was seized because it might yield forensic evidence of the crime charged. Constable Martin’s direction to the appellant to remove her bra fell squarely within the definition of a strip search [para 37].

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New & Notable: If it ain't broke, don't fix it...

Like many people in this modern age, Kevin Fearon carried a cell phone. Unlike many people, the police discovered this fact when they arrested him for robbery while armed with a firearm. A search of the cell phone was conducted which resulted in the police discovering photographs of a gun and cash. The police also discovered an incriminating text message.

 

The initial search by the police was followed by further searches of the phone over the next two days and, periodically, over the following months. At trial, the Crown relied only upon the results of the initial search incident to arrest.  On appeal following his conviction, Mr. Fearon argued that the conduct of the police in searching his phone was outside the ambit of a lawful search incident to arrest. Additionally, Fearon asked the Ontario Court of Appeal to carve out a cell phone exception to the doctrine of search incident to arrest: 2013 ONCA 106.

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New & Notable: Second guessing Crown discretion

Frederick Anderson was convicted of impaired driving. It wasn’t the first time. He had prior convictions. The Crown filed notice to seek an increased penalty. Anderson argued that this violated his rights under sections 7 and 15 of the Charter. The central basis of this application was that Anderson was aboriginal – and that the Crown gave no reasons for filing notice.
The trial judge found that the Crown’s decision to file notice violated sections 7 and 15 of the Charter and set aside the notice. With respect to section 7 the judge noted, inter alia, that “the Crown would be required to give adequate reasons for relying on section 727 notice” [para 7].
The Crown appealed: 2013 NLCA 2.
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