New & Notable: If at first you don't succeed...maybe you should stop

Daniel Woods was trafficking in cocaine. He got caught. He was found to have $1,130 and some drugs including 95.5 grams of cocaine. He was charged. He was released pending trial and resolution of that charge. While on release he again trafficked in cocaine. He was caught, again. This time he had 288.5 grams of cocaine and 79 ecstasy pills, along with $540. He was charged, again. He pleaded guilty to both charges.

 

Woods was a young man, he had no prior record and he had a gambling addiction. The sentencing judge imposed a sentence of 18 months jail on the first charge and 30 months jail on the second. Woods appealed: 2013 ONCA 766.

The Court of Appeal upheld the sentence. In doing so it offered the following:

However, the sentencing judge considered it an aggravating factor that the appellant committed the second offence while released on an undertaking and awaiting disposition of the first offence.

We agree. Where an accused re-offends while on release, the sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Further, we see no basis for the appellant’s submission that the sentences on the two offences should have been concurrent. We are not persuaded that the sentencing judge made any error or that the sentence is unfit [emphasis added]; [parars 3-4].

DGM

New & Notable: Looking for just one reasonable inference...

Clinton Yowfoo had two acquaintances, Mac and Ngo. The three men were actively involved in drug trafficking. The three men had come to the attention of the police and they were under surveillance by the police. During that surveillance Yowfoo was observed “on numerous occasions” in the company of Ngo and Mac.

 

On August 6, 2009 Ngo and Mac were arrested. Their residence was searched and the police found large quantities of drugs and cash. Two days later the police attended another address – which was believed to be a stash house. When the police arrived Yowfoo’s car was in the driveway. It was not his residence. About 53 minutes later he emerged carrying two bags (which later were found to contain items consistent with drug trafficking). The police arrested him.

The police then searched the residence and found a locked closet – inside they discovered drugs and firearms – which could have been worth up to $1.7 million. Yowfoo was charged in relation to those items. The evidence at trial included his presence in the house, he had a key for the residence, he had packaging for the brand of lock on the closet, although there was no evidence he had a key for the lock.

Yowfoo was convicted. He appealed: 2013 ONCA 751.

On appeal Yowfoo argued that there was no evidence that he had a key for the lock on the closet and that he left without retrieving the items in the closet. From this, combined with the evidence above, Yowfoo argued that there is a reasonable inference that he attended that residence to clean out the drug trafficking items he was arrested with after having heard that Mac and Ngo were arrested and either had no knowledge or no control over the closet.

The Court of Appeal accepted this as a reasonable inference and overturned the conviction, notwithstanding that Yowfoo did not testify.

DGM

New & Notable: Telus, Duarte and Undercover Police Operations over the Internet

In April 2013, I wrote a blog post about the Telus Communications Co. decision from the Supreme Court of Canada. In it I made the modest observation that we would not have to wait long in order to see whether Cromwell J’s concerns about the mischief that could be caused by the court’s adoption of a broader interpretation of the term “intercept” in the context of electronic surveillance would come true. The results are in: R. v. Mills, 2013 CanLII 74953 (NL PC).

 

The Facts

A police officer in St. John’s, Newfoundland set up Hotmail and Facebook accounts for a fictitious fourteen-year-old girl named Leann. On the Facebook profile page, the male officer provided information that Leann went to a local high school. The officer included a picture that he had obtained from the Internet. The Facebook account soon started receiving friend requests.

A little less than a month had passed when “Leann” got a message from a 32-year-old male by the name of Sean Mills asking about her Facebook profile photo. The officer posing as Leann responded and a series of email communications ensued between the undercover officer and Mr. Mills. Within a very few days of the first contact, Mills had provided his cell phone number and had asked “Leann” to send him pictures of herself. He also lied by stating that he was 23 years old. It was clear from the communications before the court that Mills knew “Leann’s” age.

All of the communications between the two, with one exception, were by email. On one occasion, the undercover officer posted a message on Mills’ Facebook page, but Mills took it down and sent a message to “Leann” to explain why: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.” [Para. 10]

The officer took screen captures of the emails that constituted the communications between him and Mr. Mills. The information from the emails was then used to gain access to the accused’s cell phone number and subscriber information, his motor vehicle information including his residential address and DOB.

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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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