New & Notable: Strong message to those who sexually abuse children

Mr. Merrick was in his mid 60’s when he fondled the genitalia of a 10 year old boy he babysat.  He did this “countless” times to the boy over the following four years.  He was caught and pleaded guilty to a single count of touching a person under 14 for a sexual purpose (s. 151(a) of the Criminal Code).  He appealed his 5 ½ year sentence arguing that his actions did not constitute a “major sexual assault.”  The Alberta Court of Appeal didn’t buy the argument: 2012 ABCA 319.

Earlier this year, the Ontario Court of Appeal also grappled with sentencing in child sexual assault cases but in a case where there could be no argument about whether the offender’s actions constituted a “major sexual assault.”  Over a three year period, on a near daily basis, Mr. D.M. sexually abused his 15 year old niece who was completely dependent on him.  The abuse started as sexual touching and culminated in sexual intercourse 2-3 times per week.  The trial judge found that the mitigating factors put the appropriate sentence at the low end of the range and sentenced Mr. D.M. to 3 years.  The Ontario Court of Appeal found that sentence to be manifestly unfit and sentenced him to 7 years, the sentence sought by the Crown at trial: 2012 ONCA 520.

 

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New & Notable: Justice delayed...to avoid the penitentiary

Daniel McCue was sought by the police.  Shortly after they found him McCue fled from them. The chase took them through several back yards but he was eventually apprehended. A search of the route of the chase led to the discovery by the police of a loaded nine-millimeter semi-automatic handgun. 

 

The accused was charged with numerous firearm offences including two breaches of separate firearm prohibitions. He was also charged with a mischief to property from earlier the same day unrelated to the possession of the gun. After a trial, the accused was sentenced to two years less a day in the reformatory having been given credit on a 1:1 basis for 367 days of custody prior to sentencing. The Crown launched a sentence appeal.

R v McCue 2012 ONCA 773 raises a few interesting questions. One is whether it is appropriate for a court to adjourn a case to allow an in-custody accused to accumulate further “dead time” in order to avoid a penitentiary-length sentence. Another is how this offence should be characterized.

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Comment: The right to know a little more

The Right to Know is a column in the Ottawa Citizen written by a group of lawyers from the Edelson, Clifford D’Angelo Law Firm. The column is said to be aimed at informing the public “on their rights and obligations…under the law”.

 

In the past I posted a blog (Lack of Knowledge is bad, Imperfect Knowledge may be Worse) on one of the articles written in this column (Meeting the Police: An Informed Citizen won’t be intimidated). A recent article, authored by Solomon Friedman (Judges have broad range of sentencing options), warrants similar comment.

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New & Notable: Clarifying alleged ambiguities in jury verdict

Winston Roberts was with charged with assault and sexual assault. At trial the complainant testified that the sexual assault was a continuous incident which involved digital penetration, fondling and intercourse. In the Crown’s closing submission jurors were told that they were not required to be ad idem as to how they reached their verdict but rather they were only required to deliver a unanimous verdict.

 

The jury found the accused guilty as charged. At the sentencing hearing an issue arose as to what facts Roberts should be sentenced upon: 2012 ONSC 3271.

 

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New & Notable: Calculating the appropriate fare for attempt murder

Mark Boissonneault shot Terry McLeod.  He was charged with attempted murder and possession of a firearm.  McLeod was sitting in his taxi.  He was with another man, Gordon, who owned the cab.  Boissoneault approached McLeod, pressed the gun to his side and shot him. 

 

At trial Boissonneault took the position that the gun discharged accidentally.  He was convicted.  The trial judge sentenced him to 17 years jail – 14 years on the attempted murder and 3 years consecutive on the possession charge.  He appealed: 2012 MBCA 40.

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Current & Curious: 92 B&Es over 21 years and a conditional sentence!

James Duerksen had a fetish for woman’s lingerie.   Over a span of 21 years he broke into 92 homes.  He had targeted these homes as ones where women lived.  While in the homes he steal lingerie.  Sometimes he masturbated in the home.  The offences occurred in Manitoba and Alberta.  Duerksen pleaded guilty.  He received a conditional sentence of two years less a day.  The Crown appealed: 2012 MBCA 41.

 

On appeal the court outlined the relevant facts as follows: 

The 92 infractions occurred in three different communities and spanned over 21 years. The facts surrounding all of these offences are strange and disconcerting because of the intrusive and sexualized nature of the accused’s behaviour. The accused would identify a home inhabited by a woman, wait until the residents were at church and then enter the home to steal the woman’s lingerie. In some cases, he masturbated with the undergarments while still in the home. Moreover, the psychological report done on the accused postulated that his acts arose from a desire for power over the women whose undergarments he stole [para 3].

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New & Notable: Age is only a number, even for Dangerous Offenders

Marc Charbonneau was found to be a dangerous offender by Aitken J. He appealed. He argued that had he been given an 8 year sentence and 10 years of supervision, he would have been 67 and the risk he posed at that age would have been so reduced as to be manageable. The Court of Appeal disagreed; it upheld the dangerous offender designation: 2012 ONCA 282.
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New & Notable: How much is a 1998 Chevy Blazer worth?

David Mihalyko had a 1998 Chevrolet Blazer. He also had an injured foot. He was presribed Oxycontin for his foot. On September 19, 2010 he needed some gas for his Blazer but he did not have any money; he did have his Oxys. He decided to sell some Oxys for gas money. He approached a woman, he thought was a prostitute, to see if she knew anyone who wanted Oxys. She was an undercover officer. Ultimately he sold $60 worth of Oxys to an undercover officer. He was charged and convicted. Forfeiture of the Blazer was sought under the Seizure of Criminal Property Act. The Queen's Bench refused to order forfeiture. That order was appealed. The Saskatchewan Court of Appeal allowed the appeal: 2012 SKCA 44.
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New & Notable: If at first you don't succeed...

MM was serving an intermittent sentence.  MM, undeterred by this sentence, re-offended in relation to the same victim.  At sentencing the judge held that "specific deterrence was an overwhelming consideration".  Due to this consideration, De Filippis J jumped a joint position and rejected the apparent reliance on the guilty plea as sufficient mitigation to support the joint position. 

The Court of Appeal agreed - 2012 ONCA 247: "Saving the victim from having to testify was an important consideration but it could not justify the sentence that was proposed in this case" [para 1].

Current & Curious: Chewing on joint positions

Tina DeSousa imported "khat" (Catha edulis Forsk) into Canada.  She had a suitcase full of it - 34 kilos worth about $17,000 on the street.  She was charged and pleaded guilty to importing it contrary to section 6 of the CDSA.  There was a joint position of a conditional jail sentence.  The judge imposed an absolute discharge.  The Crown appealed.  The Ontario Court of Appeal dismissed the appeal: 2012 ONCA 254.

Interesting - although not really the subject of this post - the judge became fixated on two things.  First, the judge offered his "wisdom" on the legislation commenting that he found it "very difficult to understand why this stuff's against the law" [para 6]. 

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