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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New & Notable: Life does not always imitate art

It has been said that a picture is worth a thousand words. In the recent case of R. v. Muvunga, defence counsel will have to use all of them: 2013 ONSC 3076.

 

Mr. Muvunga was charged with three counts of sexual assault.  He chose to be tried before a jury of his peers.  The central issue to be determined was whether the complainant consented to the sexual activity.

Prior to closing submissions defence counsel brought an application to be allowed to use a visual prop in their closing, namely a replica of a Boticelli’s masterpiece “Calumny of Apelles”.  He wished to present the painting as an allegory to make the point that a false accusation is not the invention of criminal defence lawyers.

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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: 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: 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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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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