News: Rivera Leave Application Dismissed

In a recent post I discussed the Court of Appeal's ruling in R v Rivera, 2011 ONCA 225: Comment: Roadside Statements.  In Rivera the Court of Appeal held that utterances at the roadside which are part of the actus reus on a refusal/failure charge are admissible only for the purpose of proving the offence and not for the purpose of impeaching the credibility of the accused.  
This week the Supreme Court dismissed the application for leave to appeal from that ruling.

 
DG Mack

Comment: Credibility Assessment, an Enigmatic but Deferential Process

Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.
In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.
The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].
Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].
During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.
On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence.  The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].
In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].
With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.
First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts. 
Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:
Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal [emphasis added].
While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

 
DG Mack

New & Notable: Affirming the Castle Doctrine

Cedric Forde killed Clive McNabb.  He stabbed him.  At trial he admitted he had done so.  The question that was left for consideration by the jury, however, was whether he was justified in doing so.  Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife.  In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30]. 
Forde was convicted and appealed.  On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration.  The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.

McNabb was the former spouse of Forde's common law partner.  Both were also involved in drugs.  On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.
Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde).  Forde then entered the bedroom and an argument ensued between them.  McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.
Forde was convicted of manslaughter by a jury.  He appealed.
On appeal the central issue was whether retreat was a relevant consideration under section 34(2).  After a review of English, American and Canadian authorities the court offered the following conclusion:
Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).  [Emphasis added].
 
DG Mack

New & Notable: Apparently, What you Want and What you Need is not always the Same

Antonio Jones was a drug dealer. Scott Larriviere was a client and owed Jones some money. On 18 September 2004 the two met. Larriviere was to pay Jones the money owed and then drive him to some other customers in exchange for some more drugs.

Things did not go as planned. While sitting in Larriviere's truck Jones struck Larriviere in the head with a metal bar. Larriviere suffered irreversible brain damage and ultimately died after spending a year in hospital.

Jones was charged with second-degree murder. He was convicted of manslaughter after a jury trial. He appealed. The appeal was dismissed: R v Jones, 2011 ONCA 584.
On appeal the apppellant raised two grounds of appeal. First, the appellant alleged that the trial judge erred by failing to correct a misstatement by the Crown (which was then amplified by the trial judge) about when or where two photographs of the truck were taken - the photographs were relevant to a claim of self-defence which was obviously rejected. Second, the appellant alleged the trial judge erred by not insisting the jury hear the answer to their question about when the photos were taken - the jury returned their verdict without hearing the answer.
 

With resepct to the first ground of appeal, Laskin JA, for the court, first considered if in fact there was a misstatement. After reviewing the comments of the Crown and judge, Laskin JA accepted that the comments of the Crown could have been misleading and that this might have been reinforced by the trial judge [paras 26-37]. Despite this, Laskin JA held that the initial misstatement, "at its highest" was "quite modest" [para 40]. In doing so Laskin JA noted that a trial judge is not required to correct every misstatement of fact by counsel. Moreover, he pointed out that no objection was made by counsel at the time and the trial judge instructed the jury that it is their collective memories which form the basis of their deliberations not counsel's submissions. Finally, Laskin JA noted that the jury apparently appreciated this misstatement as they asked for clarification.
With respect to the second ground or appeal, Laskin JA noted the jury question as follows: "Could you please confirm that exhibits/photographs 10(a) and 24 were taken at the crime scene?" [para 47]. The photographs in question include a photograph which showed an open ashtray with ashes in it (no ashes were strewn about the interior - offering evidence to rebut the self-defence claim) and the other photograph was a picture that showed a pair of scissors sitting precariously on the dash.
Prior to providing an answer (which would have been "I cannot confirm that the photographs were taken at teh crime scene) the jury returned with a verdict. Before accepting the verdict (something both counsel agreed could be done) the trial judge offered the following to the jury:
Okay. Thank you. Have a seat. Thank you, members of the jury. We understand you have reached a verdict. By that e also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now [para 52].
Laskin JA dismissed this ground as well. In doing so, he held as follows:
Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict [para 56].
Laskin JA went on to expressly agree with the Crown’s submission that “It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated that it was not needed” [para 57].

 
DG Mack

New & Notable: Deterring Commercial Fraud

Garth Drabinsky and Myron Gottlieb are headed to jail; the Ontario Court of Appeal today dismissed their conviction appeals: R v Drabinsky, 2011 ONCA 582.  They wont be spending as much time there as was originally thought however. 

Drabinsky and Gottlieb established Cineplex in the 80s.  The two quickly built that business to great success and in 1989 left Cineplex after acquiring its live entertainment division.  The two then formed a partnership called MyGar.  This company operated until the sprint of 1993 when it made a public offering and became a public company known as Livent. 

Drabinsky and Gottlieb were large shareholders in Livent and fully controlled its operations.  The business was a notable success.  In 1998 there was a significant change in the management of Livent when new investors came in to run the financial side of the business. 

The new accountants began to ask some questions.  It turned out that the books of Livent had been fraudulently altered and did not reflect the true financial state of the company.  Drabinsky and Gottlieb were immediately locked out of the company and the new investors began to pursue them in relation to the fraud. 
Livent declared bankruptcy five months later. 

Drabinsky and Gottlieb were ultimately charged and convicted.  Drabinsky was sentenced to seven years jail and Gottlieb to six years [para 154].  They appealed.

After dismissing the conviction appeal the court turned to consider the sentence appeal.  In doing so the court considered, inter alia, the argument advanced that the judge erred in principle by focusing on general deterrence; the appellants argued that there was "little concrete evidence to support the contention that longer sentences provide more effective general deterrence than shorter jail terms" [para 158].  In response thereto the court held:
[T]his court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed [para 160]; [emphasis added].    
The court then considered the range of available sentences and offered the following comments in relation to the suitability of the sentence: 
 
First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range.

Second, individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender’s prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one’s involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range [paras 166-167]. 
 Nonetheless, the Court of Appeal held that the failure of Livent could not be attributed solely to the appellants.  The causes of the failure were "numerous and complex"; the losses caused by the bankruptcy cannot be laid "entirely at the feet of Drabinsky and Gottlieb" [para 182].  In the absence of proof of the actual financial loss a sentence lower than that imposed was appropriate.  
 

Based on this finding - one which was not made by the trial judge - the Court intervened and reduced the sentences to five years for Drabinsky and four years for Gottlieb.

 
DG Mack

New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 
Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.
Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:
The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.
The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].
 
DG Mack

New & Notable: Judges are Presumed to Know the Law Even if they Don't Tell us

In the recent case of R v Chevers, 2011 ONCA 570 the Ontario Court of Appeal, for the second time this year, has unequivocally rejected the notion that trial judge's must articulate the law upon which they rely in rendering their judgements.  
Christopher Chevers was convicted by Scott J, sitting without a jury, of attempted murder and two other firearm offences.  The central issue at trial was identity and that issue relied almost entirely on the victim; the victim's credibility was hotly contested by the defence who pointed out many of lies told by the victim under oath.  
Chevers was convicted and appealed.
On appeal Chevers argued that the "trial judge was mandated to give himself a Vetrovec warning of the danger of acting on the victim's evidence without other evidence of confirmation" [para 2].  In rejecting this argument a unanimous Court of Appeal explained that a Vetrovec warning "is intended to alert juries to the dangers of relying on the evidence of certain witnesses" [para 4]; [emphasis added].  The court continued:
Judges know the risks in relying on the testimony of witnesses like this victim; thus there is no requirement that a judge sitting alone recite a Vetrovec caution in his or her reasons for judgment [para 4]; [references omitted]. 
Earlier this year in R v Snyder, 2011 ONCA 445 the Court of Appeal rejected the same argument holding that to require that "judges articulate those dangers in their reasons...would be pure formalism" [para 24].

 
DG Mack