New & Notable: Reasonable and sufficient

Jean-Charles Lengelo has a van. He had some friends too. He and his friends conspired to rob Bobbie's Pizza. The robbery did not go as hoped. Victims of the robbery called the police. A nearby police constable responded. He spotted the robbers. He began moving toward them in his cruiser - by driving over a "grassy median and onto hte Silver City parking lot" [para 2]. He saw them head to a van and they appeared to try and get in the van. The officer noted the licence plate of the van. The men then fled. The officer gave chase.
The van also fled but was stopped nearby a short time later. Lengelo was driving the van. Identification belonging to one of the robbers was found in the van.
Lengelo was tried by a judge alone. He did not testify. He was convicted. He appealed: 2013 ONCA 609.
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New & Notable: Confining Constructive Murder to its Actual Elements

Andrae Parris and Cleavon Joseph killed Jermaine Malcolm. They were both convicted of first-degree murder. They appealed. Their appeal was dismissed: 2013 ONCA 515. In his usual fashion, Watt JA introduced the characters and backdrop:

Andrae Parris and Cleavon Joseph sold drugs. Joseph was an experienced trafficker, a veteran of the trade. Parris was new to the business. Their currency was crack cocaine.

 Jermaine Malcolm was a crack addict, a customer of Andrae Parris.

One night in September, 2007, Malcolm arranged to buy $30 worth of crack from Parris. When Parris arrived with the crack at the front door of Malcolm’s residence, a unit in a Mississauga housing complex, Malcolm, drugs in hand, went inside to get the money to complete the transaction. Parris waited at the front door. Malcolm did not return.  No drugs. No money. Parris was not a happy man.

Parris, the victim of the front door-back door ploy, a common evasion of payment technique among drug purchasers, told his friend Joseph about what had happened.

A little while later, Parris and Joseph returned to recover payment from Malcolm.  Joseph went to the front door. Parris went to the back.

Within two hours of the original drug deal, Malcolm was dead of multiple stab wounds [@ paras 1-5].

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New & Notable: No need to bring a knife to a fist fight

On April 3, 2010 Anthony Larose and his friend were waiting for a bus. Larose got angry and threw a rock through the glass of the bus shelter. Hanna, drunk, took issue with Larose and confronted him. A heated verbal exchange followed and Hanna sucker punched Larose in the nose.

 

While on the ground Larose’s friend handed him a 20cm knife; armed, he got up and saw that Hanna had been joined by his friend Marshall. At his trial, Larose testified that the two men rushed him and he stabbed Hanna twice in the chest and once in the gut. Hanna and Marshall backed away. At some point during the fight the knife was knocked to the ground and Larose went to retrieve it, as he did so, Hanna and Marshall moved towards Larose ultimately rushing him. Larose lashed out striking Hanna in the face and slicing Marshall’s neck. Both men sustained life threatening injuries and Larose fled.

At trial Larose argued that he had acted in self-defence. The trial judge found that there was no air of reality to Larose’s claim of self-defence and refused to leave it with the jury. The British Columbia Court of Appeal agreed with the trial judge: 2013 BCCA 12.

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New & Notable: Accountability and responsibility for public funds

The Criminal Lawyers Association and Lawrence Greenspon believe that the court could – and should in four particular cases – order the Attorney General to pay rates of remuneration, above the legal aid rates, where counsel were appointed as amicus. A majority of the Supreme Court disagreed.

 

Karakatsanis J, writing for the majority, held that the appointment of amicus, while within the inherent jurisdiction of the Superior Court, does not carry with it the power to set rates of remuneration; “[a]bsent authority flowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds” [para 15].

Karakatsanis J explained this conclusion by first outlining and concluding that the Superior Courts possess inherent jurisdiction, which she outlined as follows:

Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution.  It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner — subject to any statutory provisions.  I would add, however, that the powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation [para 26].

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Current & Curious: The truth driven by circumstances?

Yousanthan Youvarajah and DS were involved in the killing of another man after a failed drug deal. DS pleaded guilty to second-degree murder. As part of the plea agreement he signed an agreed statement of facts. In that statement he implicated Youvarajah as the one who provided the handgun to him, directed him to shoot the victim and demanded the gun back [para 7]. When he pleaded he acknowledged the accuracy of this statement of facts.

 

At Youvarajah’s trial DS was called by the Crown as a witness. DS was asked to adopt the agreed statement of facts. Shockingly, he testified that he did not remember signing the document (although he accepted it bore his signature). Further, he testified that the statement was not true. He indicated, instead, that the gun was his own and that he threw the gun into the river after the shooting. Regarding his plea, he indicated that he “did not understand the words ‘acknowledged’ or ‘accurate’ as used by his counsel” and that one of the reasons he pleaded guilty was that he was told he would not have to give any further statement [para 9].

The Crown sought to tender the statement under the principles of KGB. The trial judge denied the Crown’s application on the basis it did not meet threshold reliability. Karakatsanis J outlined the trial judge’s reasons as follows:

None of the safeguards identified in this Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (K.G.B.), for reducing the dangers associated with hearsay had been undertaken.  The statement was not videotaped; there had been no recital of an oath or affirmation; and the transcript of the guilty plea proceedings was not a suitable substitute to assess D.S.’s demeanour and credibility at the time the statement was made.  Furthermore, the statement had been drafted by counsel; it was not offered spontaneously and was not in D.S.’s own words [para 12].

 

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New & Notable: Who says a Kinesiology degree is useless...

Tatyana Granada was convicted of four counts of mischief.  She appealed.  In dismissing her appeal, the Alberta Court of Appeal commented on the utility of calling a Kinesiology Expert: 2013 ABCA 273.

 

Ms. Granada was originally charged with shoplifting from a Calgary Co-op grocery store.  She pleaded guilty and was given a conditional discharge.  She was also informed that she was banned from all Co-op stores for life.

Within a month she was seen on camera returning to the same store.  She spent approximately four minutes in the store without making a purchase.  Two days later sewing pins were found in three pieces of cheese.

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New & Notable: Forever young? Not "able"

In February of 2009, Toronto police received a tip that a number of men in a car were in possession of illegal firearms.  Officers approached a vehicle to investigate.  As they advanced, the door flung open and a suspect fled.  That suspect’s name was Warren Able.

 

He fled for good reason.  He was in possession of a loaded, semi-automatic, .45 calibre firearm, a restricted weapon pursuant to section 95(1) of the Criminal Code.  A chase ensued, he was arrested and the firearm was recovered.

It was not the first time he was arrested for possession of this type of weapon.  Less than two years earlier, when he was a youth, he was convicted and sentenced for the same offence.

After considering his options, Mr. Able decided to plead guilty to the more recent charge in addition to a number of other offences. 

Section 95(2) holds that for a second offence under section 95(1) the sentencing court is bound to sentence the offender to a mandatory minimum five years in custody if the second offence is within 10 years of the first offence.

The court sentenced Mr. Able to 9 ½ years in custody.  Mr. Able appealed: 2013 ONCA 385.

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New & Notable: In-dock identifications are presumptively admissible

Douglas Muir, along with four others, robbed a drug dealer at gunpoint inside his home. A high-speed chase then took place but it ended with the get-away car crashing into police cruisers. Muir was apprehended after a short foot chase while his associates were arrested in the get-away car. The car contained the three firearms that were used in the robbery as well as the stolen money, drugs and property from the robbery.

 

The interesting issue in this case involves the admissibility of the in-dock identification evidence: 2013 ONCA 470.

 

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New & Notable: A good, valid and sufficient Order

Winston Ellis was found guilty of following a trial before a judge and jury of three firearms offences. The firearm in question, a .25 calibre semi-automatic handgun, was subject of a Charter motion (see New & Notable: Dude Where’s My Car).

 

A separate trial was held before the same judge who presided over the jury trial on a single count indictment which alleged that at the time of the offences which proceeded before the jury, Ellis was prohibited by a firearms prohibition under section 109 of the Code.

The trial proceeded in a somewhat unusual fashion. All of the evidence led before the jury applied to the trial on the sole count of the prohibition breach. Furthermore, it was agreed that the jury’s verdicts in relation to the Ellis’ possession of the firearm was binding. Lastly a number of documents were filed including the prohibition.

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