New & Notable: Did you hear about that threat?

Stéphane McRae was spending some time in jail. He was waiting to be tried on some drug offences. McRae met some people in jail. Comeau was one of them. Comeau was McRae’s “contract killer” – or so he told another fella he met or knew named Cloutier. Apparently he also met a fella named Collin. McRae felt comfortable enough to share with Cloutier and Collin his ideas about how to deal with those involved in the prosecution against him. That was a mistake.

Cloutier and Collin later reported that McRae had told them the following: he told Collin that he would “take down the guys at the top”, “rearrange the fact of the Crown prosecutor and one of the witnesses”; he told Cloutier that he hired a detective to find out where the Crown lived and the investigating officer, and that after trial he would kill anyone who ratted on him.

McRae was charged with uttering threats. He did not testify at trial. The trial judge, who found Cloutier and Collin credible, acquitted McRae; the acquittal was based on the finding that the fault element (mens rea) was not proven as the words were not conveyed with the intent that they be conveyed to the victims. The trial judge found that McRae “intended to seek revenge once the trial was done, and that he had uttered the words out of anger and frustration” [para 6].

The Crown appealed: 2013 SCC 68.

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New & Notable: Old Mother Hubbard & the Police can go to the Cupboard but not the Computer

Police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation which would identify the owners or occupants of the residence. The Information to Obtain a Search Warrant (“ITO”) stated that police would be looking for, among other things, “computer generated notes” but it did not specifically reference computers nor did the warrant authorize the search of computers. While executing the search, police found marijuana, two computers and a cell phone. Police examined the computers and cell phone and found evidence that Thanh Long Vu was the occupant of the residence. He was charged with marijuana production, possession and trafficking as well as theft of electricity. Vu successfully argued at trial that his s. 8 Charter rights were violated and that the evidence should be excluded. He was acquitted. The British Columbia Court of Appeal found that there had been no s. 8 breach and overturned the acquittal. The Supreme Court of Canada agreed with the trial judge in her finding that there was a s. 8 breach when the police searched the computers and the cell phone but found that the evidence should not have been excluded pursuant to s. 24(2) of the Charter. The appeal was therefore dismissed and the Court of Appealʼs order for a new trial stands: 2013 SCC 60.

Issue #1: Whether the warrant authorizing a search for ownership or occupancy documentation was properly issued

Justice Cromwell, writing for a unanimous Court, gave relatively short shrift to the argument accepted by the trial judge that because the officer who swore the ITO didnʼt specifically state in the ITO that he had reasonable grounds to believe that documents evidencing ownership or occupancy would be found within the house, the ITO could not support a search warrant for such documentation. He found that the issuing justice was entitled to draw an inference that such reasonable grounds existed and that the informant on the ITO did not have to state the obvious. Accordingly, the warrant to search for such documentation was properly issued and the search for it did not violate s. 8 of the Charter.

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New & Notable: Chasing self-defence

Douglas Jackson was a drug dealer. Like most drug dealers he had a gun. On December 13, 2006 he used that gun. He shot Derrick Campbell four times; one of those shots was in the back. He claimed that he was acting in self-defence. He was convicted of second-degree murder. He was sentenced to life with no eligibility for parole for 15 years. He appealed, inter alia, the sentence. That appeal was dismissed: 2013 ONCA 632.

 

Campbell and his friends were doing drugs one night. During the night they ran out of drugs. They formed a plan to lure Campbell, a drug dealer (dealing in crack), to the apartment and rob him. When Campbell attended they brought him to the washroom where one of the men tried to convince him to front some drugs. During this conversation Jackson pointed a gun at Campbell and told him to give them the drugs and money he had. One of the other men intervened and the robbery was called off.

Jackson’s version of events about what happened next suggested that Campbell then reach toward his belt, while calling Jackson names, and revealed what Jackson believed to be the handle of a gun. Jackson pulled out his gun and shot Campbell a number of times. Campbell turned and began to run. Jackson shot him in the back as he ran from the apartment; Jackson pursued Campbell into the hall continuing to brandish the gun. Campbell ran down four floors and then collapsed and died.

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New & Notable: Use of Drug Sniffing Dogs - The Reasonable Suspicion Standard Elucidated

Two RCMP officers were monitoring traffic from their marked cruiser on the Trans-Canada Highway just west of Caronport, Saskatchewan. Benjamin MacKenzie was travelling in a car on that highway a mere two kilometres per hour over the posted speed limit but the officers observed the front of the vehicle pitch forward as it rapidly decelerated as it passed by the cruiser. The officers went after the vehicle intending to deliver a warning about speeding. By the time the officers had caught up to the vehicle, they found it pulled over on the side of the road.

 

Mr. MacKenzie apologized for speeding and promised to slow down. Unfortunately for Mr. MacKenzie, things took a bad turn because the police officer dealing with him made a number of the observations that would culminate in the officer deploying his drug-sniffing dog.  The officer believed that MacKenzie might be involved in an offence under the CDSA. The officer observed that:

  • MacKenzie’s hands were shaky—trembling when he handed over this licence and registration.
  • He was sweating—beads of sweat were forming on his forehead.
  • His breathing was very rapid and his carotid artery was pulsing very rapidly. This rapid breathing did not decrease even after he used his asthma medication. Indeed, his nervous reaction continued even after he was advised that the reason for the investigation was minor speeding infraction.
  • This level of nervousness was extremely high given the nature of the investigation.
  • The pinkish colour of MacKenzie’s eyes was suggestive of possible marijuana use.
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New & Notable: Here's to Auld Lang Syne, when it was actually cold on New Year's Eve...

It was unusually warm on New Year’s Eve 2010.  This added to the celebratory air around Spadina and Queen Streets in Toronto as revellers walked in light jackets or no jackets at all.  Not so, Rowan Atkins.  Three officers driving down Spadina in an unmarked van noticed him walking because he was wearing a heavy, baggy winter coat over a hoodie and he was withdrawn, hiding in the crowd and skirting the walls of buildings as he walked.  The officers were suspicious and stopped to talk to him.  After being called over by the officers, Mr. Atkins took a couple of steps towards them but then started running.  After a brief foot pursuit the police discovered the likely reason for Mr. Atkins change of heart; the loaded handgun he was carrying.  The trial judge ruled that Mr. Atkins’ s. 8 and 9 Charter rights were not infringed.  The Ontario Court of Appeal agreed:  2013 ONCA 586.

One officer initiated contact with Mr. Atkins by calling “hey” to him out of the window of the unmarked van.  Mr. Atkins glanced back but kept walking.  The van moved further along the street and the officer called “hey buddy” a little louder.  Mr. Atkins then turned towards the officer and she waved for him to come over.  She then got out of the van with another officer, both in full uniform.  Mr. Atkins took steps towards them as though he was going to speak with them but then ran.

The Court of Appeal endorsed the trial judge’s finding that at the time Mr. Atkins decided to run; he knew full well that it was the police who had summoned him.

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New & Notable: Mr Able's Fable

In November of 2007, Mr. Able was found guilty of a number of offences, including possession of a restricted firearm with ammunition, contrary to s.95 (1) of the Criminal Code. He was sentenced as a youth under the YCJA.

Apparently, Mr. Able did not learn his lesson nor did he give up his interest in guns.

In February of 2009, police got a tip about a small group parked in a car with a gun. The police approached the car. Suddenly, a door flung open. Mr. Able jumped out and ran as fast and as far as he could.

The police followed. They saw Mr. Able toss an object into a nearby dumpster. Inside the dumpster, the police found the object Mr. Able tossed: a 45-calibre semi-automatic firearm with a capacity for 12 rounds. Eleven of the 12 rounds were chambered and ready to fire.

Shortly after the police found the gun, police dogs found Mr. Able. He was charged with possession of a restricted firearm with ammunition. Back at the station, Mr. Able confessed.

In October of 2009, Mr. Able pled guilty and he was sentenced in January of 2010. The sentencing judge imposed a sentence of 9 and one-half years. All parties agreed that Mr. Able’s finding of guilt under the YCJA in 2007 on a charge under s.95(1) made this conviction under s.95(1), “a second or subsequent offence”, for the purposes of determining the mandatory minimum under s.95(2).

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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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