New & Notable: Putting the focus of expert evidence in the right spot...

David Murray was convicted of impaired driving causing bodily harm and dangerous driving after flipping his car into a ditch leaving himself and his 90-year-old mother hanging upside down from their seatbelts.  The Crown relied on the evidence of a toxicologist who determined Murray’s blood alcohol concentration from blood samples taken at the hospital.  In his appeal to the Ontario Court of Appeal, Murray challenged the validity of the search warrant to obtain the results of the blood testing.  He also argued that the results of the blood testing should not have been admitted nor given any weight because the hospital lab technician provided no details about the equipment used to conduct the testing or its reliability.  The Ontario Court of Appeal rejected both arguments: 2013 ONCA 173.

 

The search warrant issue

Murray argued that there was nothing in the Information to Obtain the warrant (“ITO”) to indicate that the hospital would test or had tested the appellant’s blood for blood alcohol content.

The Court of Appeal considered the following details set out in the ITO:

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New & Notable: When is it "desirable" to have a lawyer...

One jury found Warren Abbey not guilty of first-degree murder; another jury found him guilty. One jury heard nothing about the significance of Abbey’s tear drop tattoo near his eye; another jury heard from an expert on the significance of just such a tattoo among members of urban street gangs. The Ontario Court of Appeal decided that the first jury had been unfairly and erroneously deprived of that evidence and thus ordered that a second trial be held. Abbey appealed that second jury’s finding on the basis that it was unreasonable. Although Abbey had a lawyer acting on his behalf at his first trial, the Crown’s appeal therefrom and at his second trial, Legal Aid Ontario dismissed Abbey’s application to have a lawyer argue his appeal. Abbey applied to the Court of Appeal pursuant to section 684 of the Code to have counsel appointed. Watt JA dismissed that application: 2013 ONCA 206.

 

Section 684 of the Code permits a judge or panel of judges of the Appellate court to appoint counsel to act on behalf of an accused who is a party before the court. The judge or panel must be satisfied that it is “desirable and in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance” [para 29].

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Current & Curious: Systemic issues with Quebec PSRs?

Kelvin Earl McPherson was a pimp. In November of 2012 a jury found McPherson guilty of procuring a person to become a prostitute and exercising control. McPherson’s trial proceeded entirely in English.

 

Following the jury’s findings of guilt, Baltman J of the Ontario Superior Court of Justice ordered the preparation of a pre-sentence report (PSR). Sentencing was set to proceed on January 10, 2013: [2012] OJ No 5931 (SCJ).

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New & Notable: Definitely not that "new car smell"...ONCA reiterates propriety of dual purpose stops

Kwesi Morris was pulled over by the police because they wanted to verify his documentation under the Highway Traffic Act (“HTA”).  The police smelled fresh marijuana and so arrested Morris and searched him and the car.   They found drugs and a loaded handgun in the car.  Morris argued that the drugs and gun should have been tossed out as evidence by the trial judge because, according to him, the police used the HTA as a pretext for an unauthorized stop and search.  The Ontario Court of Appeal disagreed: 2013 ONCA 223.
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New & Notable: SCC at odds over "intercepting" text messages

In the area of electronic search and seizure, the criminal law struggles to keep pace with technological change. Police investigators are frequently called upon to apply, and lawyers and the courts to interpret, sections of the Criminal Code that do not reflect modern technology. In Telus Communications Co. the Supreme Court was called upon to interpret the law in exactly such a context. The concurring majority reasons depart from the conventional interpretation of the relevant wiretap and general warrant provisions in order to bolster the privacy of electronic communications by requiring the police to obtain a wiretap authorization to prospectively seize text messages stored by Telus: 2013 SCC 16.
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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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