New & Notable: 30 Minutes or It's Free

Animer Fatahal-Delil was a deliveryman for Pizza Pizza. He was working, delivering pizza, when he is alleged to have struck and killed Marek Suchowski. The Crown alleged that Fatahla-Delil was negligent in the operation of his motor vehicle and that his dangerous driving caused the death of Mr Suchowski. He elected trial before a judge and jury.

 

Prior to trial the Crown brought a motion to tender evidence of Pizza Pizza’s “30 minutes or its free” policy. The conduct related to the Crown’s theory that there were pizza boxes in a delivery satchel from Pizza Pizza located in an alley near the scene. The Crown alleged that this evidence supports an inference that excessive speed was a factor and one that Fatahal-Delil was concerned about following the incident, given the disposal of the pizzas.  

The defence was not prepared to admit that the 30 minutes or its free policy was in effect at the time of the incident; alternatively if it did exist it had no impact on the driver’s conduct.

O’Marra J held that this evidence of post-offence conduct would be admissible at trial: 2013 ONSC 4012.

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New & Notable: Seeing isn't believing

Richard Titchener was charged with one of count of uttering a threat to cause death or bodily harm and one count of sexual assault. Following a 9-day trial before a judge and jury, he was convicted of the sexual assault and acquitted of the uttering threat charge. Two of the witnesses for the Crown, including the victim, were deaf. They testified via a sign language interpreter who communicated their evidence in English. Titchener was convicted and appealed: 2013 BCCA 64.

 

Titchener raised three grounds for his appeal including the fact that no video recording was made of the two witnesses who testified using sign language and an interpreter. A further issue was raised in respect of the interpretation provided for the victim who had no thumbs and therefore used an improvised form of sign language.  Titchener argued that the absence of such a recording rendered the record of the proceeding insufficient thus entitling him to a new trial.

Ryan JA writing for a unanimous British Columbia Court of Appeal treated this ground of appeal as requiring three separate inquiries.

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New & Notable: Express v Implied Hearsay - does it make a difference?

Baldree is a fascinating and important case that resolves an ongoing debate in the law of evidence: Are implied assertions of a factual proposition circumstantial evidence or is it part of the “contents” of a statement for the purposes of the hearsay rule? This debate has significant practical implications for if it is characterized as hearsay, the evidence is presumptively inadmissible: 2013 SCC 35.

 

The Facts

Cornwall police attended in response to a suspected break-in at an apartment. It belonged to a certain Eric Lepage but the police were greeted at the door by Eric Baldree who allowed them to come in. Upon entering, the officers immediately detected the odour of marijuana and discovered marijuana joints and marijuana buds in an ashtray. In the closet of a spare bedroom, they discovered an open safe containing a sandwich bag containing 90 grams of cocaine and, beside the safe, another bag containing 511 grams of marijuana.

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New & Notable: The right to be informed does not ensure a protected reaction

Joseph Savard had a thing for PK, the teller at his bank. So much so that when she transferred branches he did too. Savard also had a thing for 16 year old NF who bagged his groceries at the Loblaws. When NF left, Savard focussed his attention on 16 year old TC. Neither PK, NF nor TC were interested in any kind of relationship with Savard, but this did not deter him in the least. Savard wrote a letter to TC outlining his sexual interest in both her and NF. TC immediately went to the police. Savard was arrested and charged with criminal harassment of TC.

 

Savard then contacted PK by letter confessing his sexual interest in her and seeking her assistance in dealing with his recent charge. That letter also impliedly threatened that TC’s parents would never see their daughter again. PK went to the police. Savard was charged with criminally harassing PK and NF.

Following a trial in the Ontario Court of Justice Savard was convicted and sentenced to time served of 17 months followed by three years of probation. The trial judge declined to impose a mandatory weapons prohibition and refused to make an order for Savard to provide a sample of DNA. The Crown appealed the sentence; Savard appealed the convictions: 2013 ONSC 2208.

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Current & Curious: Procuring is not a SPIO, but should it nonetheless be a route to a DO?

Mark Burton was charged with a number of sexual offences, several prostitution related offence and offences related to breaches of probation orders and an under section 810.2. Burton plead guilty to some of the breach offences and at the conclusion of the trial Trotter J acquitted him of all but the attempt to procure a person, AT, into prostitution and the breach of the 810.2 order: 2013 ONSC 2160.

 

Following these convictions the Crown sought a ruling on whether the attempt to procure conviction constituted a serious personal injury offence [SPIO], a requirement for dangerous offender application the Crown had indicated they were planning to bring. Trotter J held that it was not: 2013 ONSC 3120.

As part of the submissions on the application the Crown:

(…) emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence: see, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), Committee on Sexual Offences Against Children and Youth (Badgley Committee), Sexual Offences Against Children in Canada (Ottawa: Supply and Services Canada, 1984), Special Committee on Pornography and Prostitution (Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Supply and Services Canada, 1985), R. v. Miller, [1997] O.J. No. 3911 (S.C.J.) and Bedford v. Canada (Attorney General), (2012), 282 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A. at pp. 46-51 [para 10].

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New & Notable: Recognizing experts for what they know

Hasibullah Sadiqi shot his younger sister and her fiancé to death as they sat in a parked car.  He said the fiancé provoked him by making intemperate comments about Sadiqi’s father and sister, the other homicide victim.  The Crown countered that, far from being provoked, the murders were planned and deliberate and were motivated by Sadiqi’s desire to vindicate his family’s honour by killing his sister.  In his view, the Crown argued, his sister’s conduct in choosing who to marry and where to live disrespected his father and shamed his family.  The Crown tendered expert evidence on the phenomenon of honour killings in support of its theory.   The jury found Sadiqi guilty of two counts of first-degree murder.  He appealed to the Ontario Court of Appeal, in part, on the basis that the trial judge erred in admitting the expert evidence.  The Court of Appeal disagreed: 2013 ONCA 250.
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New & Notable: Pham considered in the OCA

Sz-Yin Lu was in Canada on a student visa when her boyfriend hit and killed a pedestrian with his car while she was a passenger in it. The police interviewed Ms. Lu twice about the accident and each time Ms. Lu lied by denying any knowledge of the accident. Eventually, Ms. Lu and her boyfriend came clean with the police. She later pleaded guilty to obstruction of justice and her boyfriend was convicted of dangerous driving causing death and failure to remain at the scene of an accident.

At sentencing in the Ontario Court of Justice, Lu sought a conditional discharge. The Crown recommended a suspended sentence followed by a period of probation as well as community service. The Court imposed a suspended sentence followed by six months probation and 75 hours of community service.

Pursuant to the Immigration and Refugee Protection Act (IRPA), Ms. Lu, convicted of a criminal offence, in spite of her eventual marriage to a Canadian, was inadmissible to Canada on grounds of criminality, as she had been convicted of a criminal offence punishable by indictment.

Lu appealed to the summary conviction appeal (SCA) court but that appeal was denied following the SCA judge’s consideration of the Supreme Court of Canada decision in R. v. Pham, 2013 SCC 15. Lu subsequently appealed to the Ontario Court of Appeal: 2013 ONCA 324.

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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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