New & Notable: Focusing on a proper assessment of credibility

October 4, 2012 Dallas Mack

RJH was convicted after trial of sexual assault and sexual interference against AD, an 11 year-old girl and KM a 13 year-old girl.

RJH was 32 years old at the time of the offences and knew KM from her birth. AD was a close friend of KM’s and met RJH through her friend. All three communicated regularly by computer chats. KM testified that RJH asked her to have sex with him while they were in his truck. KM said no. Undeterred, RJH pulled down her pants and panties and tried, unsuccessfully, to insert his penis into her vagina. One month later KM reported the incident to police. AD testified that while in RJH’s truck, RJH picked her up, put her on his lap and asked her to have sex. RJH asked more than once and AD kept saying no. KM was driving the truck when this happened. RJH testified and denied the offences.

RJH was convicted after trial and appealed: 2012 NLCA 44.

New & Notable: Respecting and protecting 911

September 30, 2012 Dallas Mack

Michael Purcell was charged with various drug offences including production and possession for the purpose of trafficking. At trial Purcell brought an application to have evidence discovered by a police search of his home excluded due to a breach of section 8.

The search was conducted in response to a 911 call. Murray J dismissed the application: 2012 CarswellOnt 7187 (SCJ).

On December 26, 2009 a 911 call was placed from Purcell's residence. It was 2:04 am; the dispatcher could hear a male and female voice arguing in the background. There was yelling and swearing.

New & Notable: "Violence", its really not that hard to define

September 29, 2012 Dallas Mack

Randy Smith is a violent criminal with a lengthy criminal record. His most recent foray involved a short crime spree during which he robbed, or attempted to rob, four different persons; assaulted some of them and drove in a dangerous manner causing injuries to persons when he did.

After his conviction the Crown sought to have him declared a dangerous offender. An issue arose as to whether any of the offences were “serious personal injury offences” as defined in section 752 (which is required for an assessment under section 752.1). Kiteley J held that they were not, applying an objective standard of “serious” violence: 2010 ONSC 4725. The Crown appealed. The Court of Appeal allowed he appeal and clarified the issue: 2012 ONCA 645.

New & Notable: Driving impaired not a marked departure? Not that it's the test anyway...

September 28, 2012 Dallas Mack

Suggashie was acquitted after trial of impaired operation of a motor vehicle contrary to s 253(1)(a) of the Criminal Code.

The trial was held in the First Nation territory of Pikangikum.

On appeal [2012 ONSC 22929], which was held in absentia, the Crown argued two grounds:

First, that the trial judge erred in law in finding that issue at trial was whether the conduct of the accused demonstrated a marked departure from that of a normal person.

Second, that the trial judge erred in finding that First Nations peacekeepers are peace officers with all the rights and responsibilities that such a designation entails.

New & Notable: Sleeping it off in the wrong place

August 9, 2012 Dallas Mack

Jody Smits was sleeping in the back seat of a van. His van was parked on the side of the road in rural Cambridge. Apparently he was initially headed back to Barrie. Clearly he did not make it there. Instead he decided to sleep in the back of his van. Around 7:15 am someone noticed his van on the side of hte road. That person later called police. When the police arrived they noticed the van was not running. They saw Smits in the back seat asleep. The keys were in the ignition. After waking Smits the officer formed grounds for an arrest and Smits was ultimatley charged with impaired care or control.

He was convicted at trial. He successfully appealed to the summary conviction appeal level. The Crown appealed. The Court of Appeal allowed the Crown's appeal and restored the conviciton: 2012 ONCA 524.

New & Notable: Sleeping it off in the wrong place

August 9, 2012 Dallas Mack

Around 7:15 am someone noticed his van on the side of hte road. That person later called police. When the police arrived they noticed the van was not running. They saw Smits in the back seat asleep. The keys were in the ignition. After waking Smits the officer formed grounds for an arrest and Smits was ultimatley charged with impaired care or control.

He was convicted at trial. He successfully appealed to the summary conviction appeal level.

The Crown appealed. The Court of Appeal allowed the Crown's appeal and restored the conviciton: 2012 ONCA 524.

Current & Curious: Cell technology is simple compared to this stuff...

August 9, 2012 Dallas Mack

Courts continue to grapple with the apparently difficult issue of searching cellular phones incident to arrest. In one of the most recent rulings, Boswell J seems to forge a somewhat new and much more restrictive approach to the issue: R v Liew,2012 ONSC 1826. A curious ruling given the recent comments of the Court of Appeal in R v Manley, 2011 ONCA 128.

A nice summary of Liew and commentary can be found on Westlaw Canada's CriminalSource's newest newsletter: Police Powers Newsletter 2012-01.

In brief, Liew was arrested on grounds that he was importing cocaine. A search incident to arrest revealed a Sony Erikson cell phone. The officer decided search the phone incident to arrest. The stated purpose for this search was to find "immediate phone calls and immediate texts" [para 15]. The officer did find some recent phone calls. The search of the phone lasted approximately 7 minutes [para 17].

News: New Issue of Mack's Criminal Law Bulletin now online!

August 9, 2012 Dallas Mack

Check out the latest MCL Bulletin on Westlaw Canada's CriminalSource. Issue 2012-16 considers recent cases which have looked at use of force by police officers in the context Charter motions pursuant to sections 7 and 12 seeking a stay of proceedings.

Coincidentally, the Supreme Court recently considered this very issue in R v Bellusci, 2012 SCC 44. Of course they shared my views on the issue.

New & Notable: $9.2 million, non-refundable expense for defence

August 1, 2012 Dallas Mack

Ripudaman Singh Malik was acquitted in the "Air India Trial". Malik spent four years in custody prior to the acquittal. The trial cost his approximately $9.2 million. After his acquittal Malik sought to have the Crown reimburse these costs.

Malik argued, inter alia, that the remarkable, unique and exceptional nature of the case together with the following two factors warrant the order of costs against the Crown:

First, that the Crown knew or ought to have known that the evidence of a central witness in the case against him was not credible.

Second, that CSIS, in an act acknowledged by the Crown to have been "unacceptable negligence", erased certain surveillance intercept tape recordings.

Josephson J dismissed the application: 2012 BCSC 1002.

New & Notable: Finding their way to the truth, regardless of the route...

July 31, 2012 Dallas Mack

Inderjit Singh Reyat lied in court. It’s not the first time someone has lied in court. Often people are charged or prosecuted for lying in court. Reyat, however, chose to lie in a very significant trial, the “Air India Trial”: R v Malik and Bagri, 2005 BCSC 350.

Reyat was charged with perjury. The charge particularized 19 alleged instances of false statements during his testimony at the trial. Reyat sought an instruction to the jury that they had to be unanimous as to at least one of the particulars. The trial judge refused to instruct the jury in that manner. Reyat was convicted. He appealed. That appeal was dismissed: 2012 BCCA 311.