New & Notable: Fighting an Intractable Problem?

Impaired driving has proven to be an intractable problem.  Society's abhorrence of it is palpable.  According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related.  It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [para 15]; [emphasis added].
In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen). 
Tobin had been out drinking with friends including the victim, Alex Zolpis.  Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa.  The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4].  He did drive however.  He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it.  Tobin then began doing donuts.  Somehow his friend Zolpis fell out.  He was caught under the truck and was killed.
Tobin pleaded guilty. 
Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:
Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed. 
Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others.  Some are disappointed at the sentence imposed and feel it will not serve as a lesson.  Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost".  (See similar discontent expressed in comments on the CBC).
The discontent with the sentence is understandable perhaps.  A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.
In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549.  In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving. 
More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121. 
While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.  
Kumm  er is another example of this trend.  In that case the Court of Appeal upheld a sentence of eight years.  Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:
The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked through the airport terminal, and took a cab home. The incident caused $127, 000 in damage to the vehicle and the airport.
The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [paras 25-26]; [emphasis added].
The similarities with the Tobin case are notable.  Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18].  Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17].  Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17].  Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving".  Tobin too should have been acutely aware of the dangers of drinking and driving.
Despite these similarities and background the judge imposed a sentence of three years.  In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].
If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.
 
 
DG Mack

New & Notable: A Court Order is not a Suggestion

Justice Hill is not afraid to write lengthy, thorough and verbose judgements.  His judgements are often relied upon as a comprehensive overview of the law on a given point.  In a recent ruling his succinct and pointed ruling delivers an equally clear message - a court order is not a suggestion: R v Knockwood, 2011 ONSC 5004. 
Kathleen Knockwood was convicted of importing heroine into Canada.  Knockwood is an aboriginal Canadian.  After conviction Hill J ordered a pre-sentence report pursuant to section 721 of the Criminal Code; pursuant to section 721(4) the court further ordered that the report be in a Gladue report format - to address the aboriginal status and issues related thereto.  Subsequently correspondence was received that the home province of Knockwood (Quebec) do not prepare Gladue reports.  It was thereafter agreed that a pre-sentence report with "Gladue content" would be accepted. 

Hill J ordered that it be prepared and delivered to the court on or before November 1, 2011.

On August 17, 2011 the Court received a letter dated August 12, 2011 from Quebec probation services which indicated that “due to workload constraints” and the limited number of officers “that would be able to conduct the interview in English” an extension of time for the preparation of the report was required; the requested due date was December 12, 2011 [para 4].

In considering this request for an extension Hill J made reference to section 720 of the Criminal Code which provides that a “court shall, as soon as practicable after an offender has been found guilty, conduct proceeding to determine the appropriate sentence” [para 5].  Hill J concluded with the following:
A time period approaching three months from the date of conviction for the completion of a PSR is well beyond the usual 6 to 8-week range frequently accommodated in the busy courts in Brampton. The court's direction of August 10 was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order.

It is hereby confirmed that it is ordered that the PSR is to be completed and filed with the court on or before November 1, 2011 [paras 6-7]; [emphasis in original].
 
DG Mack

Comment: The "Paperback Novelist" Strikes Again

Justice Watt appears undeterred. Professor David Tanovich is likely unhappy. In his opinion, Justice Watt is "out of control". In the opinion of others, Justice Watt's refreshing style is welcome. I tend to agree. His writing style is engaging, to the point and effective.
In a recent article Kirk Makin commented on the writing style of Justice Watt and stirred up this controversy: The judge who writes like a paperback novelist. In a recent judgement, R v Roks, 2011 ONCA 526, released after that article, Justice Watt offered a quotable quote similar to that offered in R v Simon, 2010 ONCA 754 - a decision which was noted in Makin's article.


R v Simon, 2010 ONCA 754
Jason Porter was a drug dealer. He was shot and killed in his home. Everton Cribb and Allister Simon, the appellant, were present when he was shot and killed. Cribb had wanted to buy some drugs and contacted an acquaintance he met in jail to help him set up the deal. A deal was struck between Crib and Porter to buy some drugs.
Cribb and his friend, the appellant, drove together with others to Porter’s place in Hamilton. Cribb was armed with a .45 calibre grey-coloured handgun. The appellant was armed with a 380 mm silver plated handgun.
At Porter’s residence Cribb and the appellant had entered to finalize the deal. During the deal a scuffle began between Porter and Cribb. Some witnesses would later testify that during the scuffle the appellant had a gun trained on the two men. Evidence about who fired the fatal shot that entered Porter’s chest varied.
At trial the appellant was convicted of second-degree murder. He appealed. On appeal the appellant argued, inter alia, that the trial judge erred in permitting the jury to consider the appellant’s liability under section 21(2).
In dismissing this ground, and all grounds of appeal, Watt JA held that it matters not whether the appellant was the shooter and that the instruction on and liability under section 21(2) was appropriate. In so holding Watt JA offered the following quotable quote:
Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here [para 1].
R v Roks, 2011 ONCA 526
Adrian Roks operated a tanning salon, Even Tan. Roks met and became fast friends with Sam Paskalis. Paskalis would later testify that he and the appellant, along with John Magno concocted a plan to burn down Magno’s business and make a fraudulent insurance claim. Paskalis’ role included ensuring the inventory was moved out before the fire and setting the fire. Tony Jarcevic was ultimately recruited to set the fire. Jarcevic had training in fire suppression.
Things did not go as planned. There was an explosion. Jarcevic died in the explosion.
Roks was ultimately charged with second-degree murder in relation to his death. Roks was convicted after trial and appealed.
On appeal Watt JA, for the court, held that the trial judge’s finding that “the appellant committed murder was unreasonable” [para 138]. In place of that conviction Watt JA entered a conviction for manslaughter.
In doing so Watt JA noted that the “unlawful object” was the insurance fraud [para 139]. The “dangerous act” was the arson [para 140]. However, Watt JA held that the “deficit in the prosecutor’s proof of murder…resides in the failure of the evidence as a whole to ground the conclusion that the appellant knew that the death of a human being would likely occur from setting the fire at Woodbine” [para 141]. While recognizing that this could be proven by circumstantial evidence, the inferences therefrom must be “the only rational inference available” [para 142].
In coming to this conclusion, Watt JA offered the following quotable quote:
Things don’t always work out according to plan. Failures occur at different times and for different reasons. Sometimes, the flaw is in the plan. At other times, the execution is faulty [para 1].
Whether you like his writing or not, few could disagree that these quotable quotes make a point. Anyone who reads them will understand that point. Its effective. It makes the criminal justice system, the law, accessible to anyone who cares to read it. I applaud it.
DG Mack

New & Notable: Dangerous Indeed

Johnson Aziga was charged with two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault. These charges arose out of the offender’s decision to engage in unprotected penetrative sex with 11 separate victims while he was HIV positive. Two of his victims died from malignancies associated with HIV and another five of the victims were infected with the virus [para 4].

The offender was convicted of these offences after trial and sentenced to the mandatory life sentence with a minimum of 25 years before being eligible for parole. The Crown further sought a dangerous offender designation.

Lofchik J considered and ruled upon this application: R v Aziga, 2011 ONSC 4592. Two points were raised for consideration on the application.

First, the offender argued that there was no evidence that he has demonstrated an inability to control his sexual impulses. In rejecting this argument Lofchik J held that:
There is no question on this application that the predicate aggravated sexual assaults and attempted aggravated sexual assault of which the offender has been convicted constitute "serious personal injury offences". I am also satisfied that the convictions for aggravated sexual and attempted aggravated sexual assault were the result of a pattern of repetitive behaviour by the offender showing a failure to restrain his behaviour.

I disagree with the argument of the defence that there is no evidence that the offender by his conduct has shown a failure to control his sexual impulses. The aggravated sexual assault and attempted aggravated sexual assault convictions against the accused are the result of his fraud (i.e. failure to inform his sexual partners of his positive HIV status) enticing the complainants to engage in sexual relations with him in order that might obtain sexual gratification. This in my view is no different than if he had used force to obtain sexual gratification from the complainants [paras 117-118]; [emphasis added].

Second, the offender also argued that since he would not be in the community for at least 25 years the dangerous offender should not be made; it was not necessary as, upon release, he would be an elderly man with a reduced libido and therefore pose a minimal risk. In assessing and ultimately rejecting this argument Lofchik J offered guidance on the timing of the risk assessment to be made on a dangerous offender application.
The elephant in the room of course is that the offender has appealed his first degree murder conviction and the possibility exists that the life sentence may not stand. If he were sentenced to a determinate sentence for the sexual assault convictions, given that he has been incarcerated since 2003 he would be eligible for parole almost immediately. I therefore intend to approach the dangerous offender application on the basis of the sexual assault convictions without regard to the consequences of the murder convictions.
In any event, I am of the view that in an application such as this a judge must consider whether there is a present risk of the offender reoffending. Section 753 does not contemplate a judge considering whether there is a risk of the offender reoffending at some hypothetical time in the future after the offender is released on parole. Such a task would be impossible. I base this conclusion on the analysis of Section 753(b) of the Criminal Code in relation to dangerous offender applications by the Supreme Court of Canada and in R. v. Currie, [1997] 2 S.C.R. 260. Lamer C.J. noted, at para. 22, that, "As long as the offender's past conduct, whatever conduct that might be, demonstrates a present likelihood of inflicting future harm upon others, the designation is justified." [Emphasis added]; [para 122].
 
DG Mack

New & Notable: Back Chanelling your way to Waiver

In the recent case of R v JWC, 2011 ONCA 550 the Court of Appeal considered "back channelling" in the context of the implementational component of section 10(b).  The appellant was charged with fourteen sexual offences relating to eight different complainants. The assaults occurred while the appellant was a counsellor at group homes for persons with special needs. The Crown's case depended upon the statement of the appellant as the complainants were developmentally and largely unable to communicate [para 1].
At trial the appellant sought to exclude his confession alleging there had been a violation of his right to counsel under section 10(b) of the Charter. The trial judge dismissed the application, the appellant was convicted and he appealed.
On appeal the appellant challenged the ruling on the 10(b) motion. In doing so, the appellant also advanced a new aspect to the alleged violation.
The first part of the 10(b) argument - which was advanced at trial - related to whether the appellant had "a reasonable time to consider whether he should exercise his right to counsel", something he never did do [para 19]. The Court of Appeal, accepting the trial judge's rejection of this argument, noted that the trial judge took into account that the appellant was first read his rights when he was picked up by the police from the place he was residing - a psychiatric facility - and again read them at the station prior to interview [para 19]. The trial judge held that there was "twelve minutes or so" in this time frame and that this was sufficient time for the appellant - despite the fact he was "admittedly depressed" - to consider contacting counsel; this finding was held not to be unreasonable by the Court of Appeal.
The second part of the 10(b) argument - which was not advanced at trial - focused on duty to hold off and waiver. The argument was summarized by the court as follows: "...the appellant's equivocal response, 'I don't know', required the police to obtain a clear waiver from the appellant..the circumstances known to the police compel this result" [para 21]. The circumstances included the depression and that the appellant was residing at a psychiatric facility. This argument was premised on the following exchange that took place at the police station:
BASKEY: Um now I'm gonna read a couple of things to you. I've already read them to you once but I'm gonna go over them again.
APPELLANT: Okay
BASKEY: Alright. Ah it's my duty to inform you that you have the right to obtain and instruct [counsel] without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?
APPELLANT: Mm huh
BASKEY: Ah do you wish to call a lawyer now?
APPELLANT: Ah I don't know.
BASKEY: Okay. Um but you do understand this [is] a, a phone number for free legal advice?
APPELLANT: Mm huh
BASKEY: And that we'll provide you with an opportunity to call that number, you do understand that right?
APPELLANT: Right
BASKEY: Um do you wish to say anything in an, now you're not charged with anything right now. Um do you wish to say anything ah you're not obliged to say anything unless you wish to do so but whatever you say may be given in evidence do you understand that?
APPELLANT: Mm huh
BASKEY: We're recording this and that we can use it as evidence?
APPELLANT: Okay
BASKEY: Okay. So what I'll do is I'll, I'll get you to um, ah just tell me a little bit about yourself and tell me why you called today. Okay? [Emphasis in original].
In considering the issue Rosenberg JA noted and relied upon the recent trilogy from the Supreme Court: R v Sinclair, 2010 SCC 35, R v Willier, 2010 SCC 37 and R v McCrimmon, 2010 SCC 36. He then offered the following in rejecting this argument:
In this case, the appellant's response to the second caution was simply, "Ah, I don't know". If that phrase constituted a positive indication of uncertainty as to the content of the right to counsel, the police would be obliged to provide the appellant with further and better information. As the court said in R. v. Willier at para. 31, "should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding". However, that is not this case. In this case, "Ah, I don't know" was not an expression of uncertainty about the content of the right, which the appellant admitted he understood. Nor was it an invocation of the right to counsel and, by itself, would not trigger an obligation on the police to obtain a clear waiver. After the appellant said "Ah, I don't know", Constable Baskey confirmed with the appellant that he understood his rights:
Baskey: Okay. Um but you do understand that this [is] a, a phone number for free legal advice?
Appellant: Mm hum
Baskey: And that we'll provide you with an opportunity to call that number, you do understand that right?
Appellant: Right
Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].
DG Mack

New & Notable: Looking for Consent in all the Wrong Places

Lay over at Pearson...good chance to blog since I haven't for a week.  The recent case of R v Dippel, 2011 ABCA 129 is worthy of note - and provides a good introduction to my next blog on the recent ruling by the Supreme Court in R v JA, 2011 SCC 28.  
Alan Dippel, the respondent, was in attendance at his daughter's party at his house.  Also in attendance was a friend of his daughter, the complainant who was 24 years old.  The complainant, who was planning on staying over, had consumed some alcohol before going to the party and had a few drinks at the party; she was tired and decided to go to bed early.  She went to a bedroom, fully clothed, and laid down to sleep. 
The respondent was drinking that night as well.  He was described by those at the party as conducting himself in a "vulgar and outrageous" manner; he was intoxicated and propositioning anyone who would listen [para 3].  The Court of Appeal noted that it was "obvious that no one at the party, still conscious and alert, had any interest in reciprocating his overtures" [para 3].
Ultimately the respondent made his way to the bedroom where the complainant was fast asleep. He testified that he entered the room, laid down on the bed and fell asleep. When he awoke he turned over and cuddled up to the person beside him. The respondent then decided to start touching her "back and buttocks" trying to get some acknowledgement.  The respondent testified that when she "kind of snuggled back into me" he decided to fondle her breasts.  The respondent then claimed that the complainant raised her arm, which he took as an indication that "[s]he was giving me the green light" - although she had not uttered a single word. Thereafter, her pants were removed and he digitally penetrated her” [para 4].
The encounter ended when the complainant awoke to find she was being penetrated; she jumped from the bed and said "who are you".  She then pulled her pants up and ran out of the room [para 5].
At trial the respondent argued that complainant had consented or, in the alternative, he was honestly mistaken that she had. The trial judge found that the testimony of the respondent, with respect to his mistaken belief as to the complainant’s consent, raised a reasonable doubt and acquitted him.  The Crown appealed.
The Court of Appeal granted the Crown appeal and substituted a verdict of guilt; the court found error with the trial judge’s “understanding and application of the defence of mistaken belief” [para 28].
In dealing with the defence of mistaken belief as to consent the CA explored the premise for the accused so-called mistaken belief, namely that his belief was based on the complainant’s body movements. In rejecting this the court held that:
…ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The respondent's own evidence acknowledges that he advanced the sexual contact based solely on the complainant's passivity; in other words, her lack of resistance and failure to object [para 18].
The Court went on to explain what the nature of this particular situation required.
Further, this is one of those situations that required an unequivocal communication of consent. The fact that the individuals were complete strangers and she was asleep at the time, would require a reasonable person in the respondent's position to clearly ascertain that the complainant was consenting to engage in sexual contact with him: R. v. Crangle, 2010 ONCA 451, 266 O.A.C. 299, leave to appeal to SCC refused: 33768 (December 23, 2010). The observations of Abella J.A. (as she then was), in R. v. Osvath (1996), 46 C.R. (4th) 124 at para. 29, 87 O.A.C. 274 (C.A.), a case factually very similar to the case at bar, are also apposite:
Anyone seeking sexual activity in these circumstances could hardly fail to know that he was obliged, at a minimum, to let the person from whom permission for such activity was sought, know who was seeking the consent. Consent is not given or refused in a vacuum - it is given or refused to a particular activity with a particular individual [emphasis added by Alberta Court of Appeal].
In the circumstances of this case, the court noted, the failure to have taken any such precautions must result in the defence mistaken belief being beyond the reach of the accused. [para 25]
The Court also made some apt comments on who bears the onus with respect to ascertaining consent.
Before concluding, we wish to make one further observation. In her Reasons for Judgment, the trial judge distinguished some of the cases considered by her because the complainants in those cases had "made it clear through previous communications that they were not interested in any sexual contact." With respect, that misplaced the legal responsibilities of the parties and distorts the law. To engage the protection of the criminal law, the complainant was not obliged to make a pre-emptive announcement before retiring to sleep that she did not wish to engage in sexual activity with anyone in the house. Like everyone else, she was entitled to sleep in an unsecured bedroom without fear of molestation. The onus fell on the respondent to take real steps that met the reasonable steps threshold to ensure that the complainant voluntarily agreed to engage in sexual activity with him. He failed to do so [para 26].
Of note this decision was penned before the recent SCC case of R v JA, 2011 SCC 28.  The court acknowledged this with the following notable conclusion:
Since preparing the foregoing, the Supreme Court has released its decision in R. v. J.A., 2011 SCC 28 (CanLII), which confirms our conclusion that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act: see paras. 36 and 42 [para 27].
 

DG Mack

Quotable Quote: No Need to Speculate...

Erland Wallace Mordue was convicted by a jury of first degree murder.  He appealed that conviction.  Mordue raised three grounds of appeal.  In dismissing the appeal the court offered the following quotable quote in relation to the Crown's case:
There was a strong case of planning and deliberation based on the appellant’s handwritten notes that refer to the murder and the suicide, and the fact that the appellant went to the victim’s home, cut the phone line, and waited for her while drinking beer and smoking for some period of time. As the appellant did not testify, there is no explanation that the jury could consider to put these circumstances in another light [para 3]; [emphasis added].
 
DG Mack

News: Cold Case Websites

The Surete du Quebec has launched a new website directed at cold cases: Crimes Non Resolus (see the Montreal Gazette report on August 4, 2001 about this site).  The site reports its purpose as follows:
The development of new investigative techniques led the Sûreté du Québec to create a team whose sole mission is to solve cold cases. This website is a call for the assistance of the public in providing the police with any information that could help solve cases involving serious crimes against persons.
The Ontario Provincial Police has a similar site - as part of its main website listing numerous cold cases.
 

DG Mack