New & Notable: Identifying the admissibility threshold for recognition evidence

Yohannes Berhe was convicted of offences related to having exposed his genitals in public to a person under the age of 16. At trial the Crown called a witness, a Toronto Transit Commission officer, who recognized Berhe – presumably his face – from previous dealings. Behr was convicted and appealed: 2012 ONCA 716.

 

On appeal Berhe complained that the trial judge did not conduct a voir dire on the recognition evidence. The Court of Appeal agreed that this constituted an error and ordered a new trial.

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Current & Curious: 3 years or not, a minimum is clearly needed

The Ontario Court of Appeal is soon to release a significant decision on the constitutional validity of the mandatory minimum set out in section 95 (3 years). In the meantime, trial courts continue to have drastically divergent views on the appropriate sentence for this offence. While that is, in part, undoubtedly a function of the different circumstances of the offenders and offences, it may also be seen as evidence of why a mandatory minimum was and continues to be necessary.

Vader is an example at one end of the spectrum; in that case the court imposed a 5.5 year sentence where the offender was caught driving around with an "arsenal" of weapons - a sentence which is hard to criticize: 2013 ONSC 109. On the other end of the spectrum, Laponsee is a curious case where the court imposed a 12-month conditional sentence where the offender had brought a firearm and ammunition to the airport - a sentence which is somewhat easier to criticize.

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New & Notable: The nuances of Gladue

The regrettable impact of Canada’s criminal justice system upon the First Nations cannot be denied. Parliament has attempted to address the problem of the overrepresentation of aboriginal offenders in Canadian prisons through section 718.2(e) of the Code. In turn, the Supreme Court of Canada has interpreted and applied that section in cases such as R. v. Gladue and R. v. Wells. In R. v. J.N., the Ontario Court of Appeal is called upon to address a case on the periphery of the issue: 2013 ONCA 251.

 

J.N. was convicted of the sexual assault, sexual interference and invitation to sexual touching for the prolonged sexual abuse of his step-daughter. Although J.N.’s lawyer requested a Gladue report be prepared to assist in the sentencing, Aboriginal Legal Services did not prepare one, as the aboriginal identity of the offender could not be confirmed. He was sentenced at trial to seven years in the prison less two years of pre-trial custody for a total of five years. 

Ultimately, the Court of Appeal in J.N. upheld the sentence but the case is noteworthy for two different facets. 

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New & Notable: Dude, where's my car?

Winston Ellis had a handgun. Ellis carried that handgun in a hidden compartment by the gearshift in an Acura.  Ellis had no lawful purpose or permit for that handgun.  Ellis also had a bunch of outstanding warrants. Given those particular circumstances you would think that Ellis would not have been racing that Acura in the downtown core of the City of Toronto, but that is exactly what led to police noticing Ellis and ultimately finding his gun. Ellis was charged with three criminal offences in relation to that hidden gun; at his trial he sought to have the gun excluded from evidence claiming that his section 8, 9 and 10 Charter rights had been violated. Much like Mr Vader and Mr Newell whom I recently blogged about, that argument failed: 2013 ONSC 908.

 

It was early in the morning, when Ellis decided to race an Acura against another vehicle. Perhaps Ellis thought no one would be around, perhaps he didn’t care. Sgt Martin saw and cared; he called for backup and followed as the vehicles raced through a residential area. The racing vehicles parted ways and Sgt Martin could only follow one; he stayed with the Acura. Ellis sped away from the marked police cruiser and found himself on a dead end street; he abandoned the car in a driveway and fled on foot through the backyard of the property.

Minutes later Sgt Martin located the Acura and spotted Ellis and another man, Gonzalez, walking past the dead-end street and looking back towards the car. The backup arrived on scene and intercepted Ellis and his friend. Officers conducted a pat down search and found the keys to the Acura in Ellis’ pocket; at that point officers returned the keys to Ellis. They testified that the keys were returned because the search was for safety reasons and in the officers’ opinion the keys did not pose a threat. Officers also discovered that Ellis had a number of outstanding warrants, that he was affiliated with a gang and that he may be armed and dangerous.

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Current & Curious: It's a "no brainer"...oh but you should decide on your own!?

Denroy Berbeck attempted to smuggle some cocaine into cocaine by swallowing capsules full of cocaine. He was caught. At trial he claimed he acted under duress. He was acquitted. The Crown appealed. The appeal was dismissed by the Court of Appeal, which held that the trial judge was merely offering advice, not direction, in telling the jury was a "no brainer": 2013 ONCA 241.

 

While ‘vacationing’ in Jamaica, Berbeck swallowed a bunch of capsules filled with cocaine. He then got on a plane and returned home to Toronto. Canada Border Services Agency (CBSA) officers were suspicious when they discovered that a visibly nervous Berbeck had gone to Jamaica for only four days, that he was travelling alone and that he had purchased his ticket with cash. An ion scan of some of Berbeck’s personal effects revealed the presence of cocaine. After several hours in CBSA custody, a couple of calls to duty counsel and after numerous interactions with CBSA officers Berbeck finally admitted to having swallowed the cocaine capsules. Berbeck was arrested and taken to hospital as a precaution. Shortly after being discharged from the hospital Berbeck expelled the pellets of cocaine.

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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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