New & Notable: What a difference a day makes

Being convicted and sentenced for a criminal offence has many consequences.  Some, like loss of liberty, are easily identifiable.  Others can be more properly characterized as collateral.  For Hoang Pham it was a collateral consequence that led to his appearance before our nation’s highest court: 2013 SCC 15. 

 

Mr. Pham, a non-citizen, was a drug dealer with a criminal record.  After being convicted of two drug offences, a joint submission was placed before the court for a two-year penitentiary sentence.  The sentencing judge agreed and the offender was sentenced to two years.  Unbeknownst to any of the parties, under the Immigration and Refugee Protection Act [IRPA], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her.

Upon coming to this realization, Mr. Pham appealed his sentence, asking for a reduction of one day to allow him to appeal the deportation order.  The Alberta Court of Appeal upheld the sentence holding that a reduction in sentence would only seek to undermine the IRPA and that the offender “had abused the hospitality afforded to him by Canada”.  Mr. Pham appealed to the Supreme Court.

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New & Notable: Second guessing Crown discretion

Frederick Anderson was convicted of impaired driving. It wasn’t the first time. He had prior convictions. The Crown filed notice to seek an increased penalty. Anderson argued that this violated his rights under sections 7 and 15 of the Charter. The central basis of this application was that Anderson was aboriginal – and that the Crown gave no reasons for filing notice.
The trial judge found that the Crown’s decision to file notice violated sections 7 and 15 of the Charter and set aside the notice. With respect to section 7 the judge noted, inter alia, that “the Crown would be required to give adequate reasons for relying on section 727 notice” [para 7].
The Crown appealed: 2013 NLCA 2.
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New & Notable: Yet another message from a Court of Appeal...how many more do we need?

James is yet another decision which illustrates the seriousness of the consequences which flow from sexual assault perpetrated against a child. In recent blogs the approach by appellate courts in Ontario, Saskatchewan and Alberta has been discussed [see Strong Message to Those Who Sexually Abuse Children and Yet Another Court of Appeal Sending a Strong Message about Sexual Assault]; now Manitoba can be added to that list: 2013 MBCA 14.

 

James was at various times a scout, hockey coach and general manager of various teams in the Western Hockey League.  James recruited Theoren Fleury and Todd Holt. Both young men left their homes and families to pursue their dream of becoming professional hockey players. The boys were billeted to families in the communities in which they played – James selected the families. Two nights per week the boys were required to stay with James ostensibly for the purpose of academic tutoring – no such tutoring ever took place.

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New & Notable: Mind the gap

P.G. was convicted after trial of grooming and then sexually assaulting two young boys: 2012 ONSC 900.  It was not the first time that he had been convicted of these types of offences.

 

After the finding of guilt, the crown brought a dangerous offender application, asking the court to sentence the offender to an indeterminate period of custody.

The application was justified.  P.G. met much of the established Dangerous Offender criteria.  He was a diagnosed pedophile, a life-long condition with no cure.  He denied his offences and denied that he had an attraction to children.  He had not undergone any treatment since his last offences nor did he propose any treatment plan moving forward.  All of this spoke to his dismal prospects for rehabilitation and the likelihood of recidivism.

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New & Notable: SCC sends message on new offence of terrorism

Mohammad Momin Khawaja designed what he called the “hifidigimonster”. It was a remote arming device for explosives. He offered to people, that he believed were terrorists, that he would smuggle it into the United Kingdom and provide training in its use. In addition to making other offers of support to these people, he provided money for explosives for an operation in the United States or in Europe and for other projects. In a nutshell, Khawaja had become obsessed with Osama Bin Laden and his cause, and took steps to offer and provide assistance.

 

At trial, while Khawaja’s defence partially succeeded in challenging the constitutionality of several of the terrorism offences, he was nevertheless convicted of a number of terrorism offences. The trial judge sentenced Momin Khawaja to ten and a half years in the penitentiary and declined to provide any credit for time in custody prior to the imposition of the sentence on the basis that it would be incompatible with a denunciatory sentence. Parole ineligibility was set at five years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.

 

As often happens when a new criminal offence goes to court, the matter ultimately goes on to appellate review.  The Ontario Court of Appeal granted the Crown’s sentence appeal and imposed a life sentence on a non-terrorism explosives offence found in the Criminal Code. The Court also imposed a ten-year period of parole ineligibility and a series of consecutive sentences on the terrorism offences of which Khawaja was convicted: 2010 ONCA 862.

 

Ultimately, when Momin Khawaja appealed from this decision, the Supreme Court of Canada was presented with the opportunity to send a message regarding the gravity of the new terrorism offences: 2012 SCC 69.

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New & Notable: Forfeiture clarified

Alphide Manning was driving while impaired on April 1, 2010. At the time, Manning had three convictions for impaired driving offences. He also had an outstanding charge for impaired driving from July 2009. Manning eventually pleaded guilty to both of those matters - as a result he had five impaired driving related offeces on his record.

The Crown sought, in addition to some jail time and a driving prohibition, an order of forfeiture under s 490.1. The trial judge declined to make that order relying on 490.41(3). That request was initially denied; the SCC has just rectified that misstep: 2013 SCC 1.

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New & Notable: Where there is no will, there is no way...

Christopher Ramgadoo pled guilty to aggravated sexual assault, sexual interference, unlawful confinement, attempted choking and breach of probation as a result of his sexual attack of a 13-year old girl.  At the ensuing dangerous offender hearing, Crown and defence agreed that Ramgadoo satisfied the statutory criteria for a dangerous offender designation (s. 753(1)).  The only issue was whether the risk he posed could be controlled in the community (s. 753.1). 
The trial judge found that it could not and imposed an indeterminate sentence.  On appeal, Ramgadoo argued that the trial judge had failed to consider the “burn out” effect of his eventual aging on his risk of reoffence and whether making compliance with a medication regime a condition of a long-term supervision order would render his risk to reoffend manageable in the community.  The appeal was recently dismissed by the Ontario Court of Appeal: 2012 ONCA 921.
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New & Notable: Here's hoping he gets this message

In November 2011, Agnieszka Mikulska sought a roommate in an ad on the internet.  Within a month, her worst nightmare had come true.  Patrick Doherty had responded to the ad.  Ms. Mikulska chose someone else – perhaps not surprisingly, another woman.  Doherty began a shocking stalking campaign that resulted in his March 2012 conviction for criminal harassment, two counts of attempting to obstruct justice and two counts of breaching a court order.   He was sentenced to 5 ½ years in jail.  He appealed.  He lost: 2012 ONCA 855.

 

The harassment started shortly after Ms. Mikulska made her decision not to live with Doherty.  It started with verbal abuse, threatening comments, multiple phone calls, showing up at her home and leaving notes.  Shaken, Ms. Mikulska called police.  The police intervened with Doherty and told him to stay away from her.

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New & Notable: Yet another Court of Appeal sending a strong message about sexual offences against children

Kelly Minogue had a 14 year-old son. That 14 year-old son would bring his friends over to his house, where his mom, Ms Minogue, would purchase and ply them with alcohol.  

 

Ms. Minogue had a threesome with 2 of her son’s 14 year-old friends, S and J. She had sex with J on two subsequent occasions. The third victim, L, also 14, attended the Minogue residence, to hang out with friends and drink. S got drunks and Ms. Minogue invited S to sleep in her bed where she initiated sexual contact.

At the time of the offences Minogue was 37 and recently divorced and sharing custody on an alternating weekly basis with her ex-husband. Minogue plead guilty to three counts of sexual interference.

Minogue showed little insight into her offending behaviour as reported by the author of the pre-sentence report although her risk for re-offending was reported to be low following a sexual behaviours assessment.

The sentencing judge concluded that an appropriate sentence in these circumstances was 2 years. The Crown appealed: [2012] SJ 675 (CA).

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New & Notable: Ontario Court of Appeal opines, yet again: guns and drugs don't mix

Wong was convicted of ten gun and drug related offences.  One of them was possession of a loaded firearm (s. 95(1) of the Criminal Code), which carried a mandatory minimum 3 year jail sentence.  He received a global sentence of 3 years on all of the gun and drug charges.  The Ontario Court of Appeal overturned his conviction on the s. 95(1) charge on the basis that the trial judge erred in finding that possession of an unloaded firearm with readily accessible ammunition was included in the offence of possession of a loaded firearm. [2012 ONCA 432]  Not surprisingly, Wong sought to appeal his sentence.  With the mandatory minimum sentence no longer at play, he argued that a 3 year sentence was excessive and sought a conditional sentence.  The Court of Appeal said no: 2012 ONCA 767.

 

The trial judge was clear in his reasons that the overall length of sentence was determined by the mandatory minimum.  Wong argued that he was 23, had no record and had been on house arrest for one and a half years pending trial.  He said that his drug trafficking only lasted for 2-3 days and that he was not a danger to society [paras 5 and 7].

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