Current & Curious: Conspiracies - you can't join as a party once it starts, but it's not too late to join the conspiracy!

T and R apparently did not like their mother. This was not the usual situation where children are sometimes unhappy with their parents. T and R had much stronger feelings. T and R wanted to kill their mother.

 

T and R had a plan to kill their mother. They intended to ply her with alcohol and drown her in the bathtub.

T had a friend, JF. JF became aware of this plan. Thereafter JF became actively involved in discussing the plan and offering to assist therein. In particular, JF offered to provide an alibi; JF also advised T that she should give her mother 5 Tylenol 3’s as this would knock her out.

T and R killed their mother. R was charged with conspiracy to commit that murder. He was convicted. He appealed. His appeal was dismissed: 2013 SCC 12.

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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: Strip searches and reliance of police on internal policy

Sang Eun Lee was arrested by the police and taken to the local station for breathalyzer tests. When a pat down search was conducted and it was discovered that she was wearing an underwire bra, she was told to remove it. She complied with the request, taking off her shirt and sweater along with the bra exposing her breasts for a brief period of time to the female officer who was present.

 

At trial, Ms. Lee was unsuccessful in establishing that the police conduct amounted to an unreasonable strip search contrary to section 8 of the Charter. She appealed her conviction and the finding of the trial judge: 2013 ONSC 1000.

Contrary to the trial judge, Fuerst J., sitting as a summary conviction appeal court judge, found that the conduct of the police did amount to a strip search:

Unfortunately, the trial judge failed to consider that the court’s definition of a strip search is not limited to removal of clothing to inspect a person’s private areas. The court’s definition of a strip search is two pronged: “[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments” [emphasis added]. On the trial judge’s own findings, Constable Martin directed the appellant to remove her bra so that the police could visually inspect that undergarment, and then store it. This is not a case like R. v. Backhouse (2004), 194 C.C.C. (3d) 1 (Ont. C.A.) where the accused’s clothing was seized because it might yield forensic evidence of the crime charged. Constable Martin’s direction to the appellant to remove her bra fell squarely within the definition of a strip search [para 37].

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New & Notable: If it ain't broke, don't fix it...

Like many people in this modern age, Kevin Fearon carried a cell phone. Unlike many people, the police discovered this fact when they arrested him for robbery while armed with a firearm. A search of the cell phone was conducted which resulted in the police discovering photographs of a gun and cash. The police also discovered an incriminating text message.

 

The initial search by the police was followed by further searches of the phone over the next two days and, periodically, over the following months. At trial, the Crown relied only upon the results of the initial search incident to arrest.  On appeal following his conviction, Mr. Fearon argued that the conduct of the police in searching his phone was outside the ambit of a lawful search incident to arrest. Additionally, Fearon asked the Ontario Court of Appeal to carve out a cell phone exception to the doctrine of search incident to arrest: 2013 ONCA 106.

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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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Current & Curious: Ants in his pants?

In the summer of 2007 Clinton Williams was the driver in a serious high-speed single motor vehicle accident. His three passengers, all friends of his were killed in the crash. Williams suffered serious injuries to his brain and body. In the fall of that same year Williams was arrested and charged with three counts of dangerous driving causing death. Prior to the commencement of his trial in September 2012 Williams sought an order that he was unfit to stand trial: 2012 ONSC 5851.

 

Two expert witnesses testified on behalf of the defence and two testified on behalf of the Crown. Although, all experts agreed that Williams had sustained a significant injury the Crown maintained that Williams failed to discharge his burden that on a balance of probabilities he was unfit; Quigley J of the Ontario Superior Court of Justice agreed:

[I am not] persuaded on a balance of probabilities that Mr. Williams is not fit to stand trial, as that legal standard is understood, in the face of the very strong evidence of performance of Mr. Williams on tests administered by Dr. Swayze and on the evidence adduced by the Crown that is strongly suggestive of malingering. I do not make a specific finding of malingering although there is certainly evidence that could support such a finding. There is no need to do that. It is sufficient for these purposes to indicate that the defence evidence has not persuaded me on this application that Mr. Williams is unfit applying the tests that I am required to apply.

Considering the whole of the evidence, I am satisfied that it is at least as likely as not, if not substantially more likely than not, that Mr. Williams is fit to stand trial. Since I am not persuaded that he is unfit to stand trial, the presumption of fitness in the Code must operate [paras 132-133].

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New & Notable: It is practicable to properly set up the Intoxilzyer

Blake Cote was convicted of driving with a blood alcohol concentration “over 80”. Cote was convicted at trial; he appealed.


He argued that the trial judge erred in law by “failing to consider the evidence as to unexplained delay on the part of the police in taking” samples of his breath. Specifically, on appeal, Cote urged Daley J, sitting as a summary conviction appeal court, to find that the trial judge erred in his consideration of the period of time between the time when the breath technician arrived at the station and the time when the technician began to change the alcohol standard solution in the Intoxilyzer. His appeal was dismissed: 2012 ONSC 5247.

Cote was stopped by police at 12:54 after he was observed running a stop sign. The officer who pulled him over formed a suspicion that Cote had consumed alcohol and asked that a roadside screening device be brought to the scene. The device arrived at 1:01 and Cote registered a fail.

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New & Notable: Recognizing the need for a real world Charter...

Tiffany MacMillan was drunk. She was driving a boat. She killed someone. The events that ensued thereafter and the actions of the police resulted in a violation of her rights under section 10(b) of the Charter. The trial judge thought there were also breaches of sections 8 and 9 as well. The trial judge also thought the breaches were so serious that the evidence should be excluded. The trial judge was wrong on both accounts: 2013 ONCA 109.

 

MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.

As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.

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