New & Notable: Express v Implied Hearsay - does it make a difference?

Baldree is a fascinating and important case that resolves an ongoing debate in the law of evidence: Are implied assertions of a factual proposition circumstantial evidence or is it part of the “contents” of a statement for the purposes of the hearsay rule? This debate has significant practical implications for if it is characterized as hearsay, the evidence is presumptively inadmissible: 2013 SCC 35.

 

The Facts

Cornwall police attended in response to a suspected break-in at an apartment. It belonged to a certain Eric Lepage but the police were greeted at the door by Eric Baldree who allowed them to come in. Upon entering, the officers immediately detected the odour of marijuana and discovered marijuana joints and marijuana buds in an ashtray. In the closet of a spare bedroom, they discovered an open safe containing a sandwich bag containing 90 grams of cocaine and, beside the safe, another bag containing 511 grams of marijuana.

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New & Notable: The right to be informed does not ensure a protected reaction

Joseph Savard had a thing for PK, the teller at his bank. So much so that when she transferred branches he did too. Savard also had a thing for 16 year old NF who bagged his groceries at the Loblaws. When NF left, Savard focussed his attention on 16 year old TC. Neither PK, NF nor TC were interested in any kind of relationship with Savard, but this did not deter him in the least. Savard wrote a letter to TC outlining his sexual interest in both her and NF. TC immediately went to the police. Savard was arrested and charged with criminal harassment of TC.

 

Savard then contacted PK by letter confessing his sexual interest in her and seeking her assistance in dealing with his recent charge. That letter also impliedly threatened that TC’s parents would never see their daughter again. PK went to the police. Savard was charged with criminally harassing PK and NF.

Following a trial in the Ontario Court of Justice Savard was convicted and sentenced to time served of 17 months followed by three years of probation. The trial judge declined to impose a mandatory weapons prohibition and refused to make an order for Savard to provide a sample of DNA. The Crown appealed the sentence; Savard appealed the convictions: 2013 ONSC 2208.

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Current & Curious: Procuring is not a SPIO, but should it nonetheless be a route to a DO?

Mark Burton was charged with a number of sexual offences, several prostitution related offence and offences related to breaches of probation orders and an under section 810.2. Burton plead guilty to some of the breach offences and at the conclusion of the trial Trotter J acquitted him of all but the attempt to procure a person, AT, into prostitution and the breach of the 810.2 order: 2013 ONSC 2160.

 

Following these convictions the Crown sought a ruling on whether the attempt to procure conviction constituted a serious personal injury offence [SPIO], a requirement for dangerous offender application the Crown had indicated they were planning to bring. Trotter J held that it was not: 2013 ONSC 3120.

As part of the submissions on the application the Crown:

(…) emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence: see, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), Committee on Sexual Offences Against Children and Youth (Badgley Committee), Sexual Offences Against Children in Canada (Ottawa: Supply and Services Canada, 1984), Special Committee on Pornography and Prostitution (Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Supply and Services Canada, 1985), R. v. Miller, [1997] O.J. No. 3911 (S.C.J.) and Bedford v. Canada (Attorney General), (2012), 282 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A. at pp. 46-51 [para 10].

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New & Notable: Recognizing experts for what they know

Hasibullah Sadiqi shot his younger sister and her fiancé to death as they sat in a parked car.  He said the fiancé provoked him by making intemperate comments about Sadiqi’s father and sister, the other homicide victim.  The Crown countered that, far from being provoked, the murders were planned and deliberate and were motivated by Sadiqi’s desire to vindicate his family’s honour by killing his sister.  In his view, the Crown argued, his sister’s conduct in choosing who to marry and where to live disrespected his father and shamed his family.  The Crown tendered expert evidence on the phenomenon of honour killings in support of its theory.   The jury found Sadiqi guilty of two counts of first-degree murder.  He appealed to the Ontario Court of Appeal, in part, on the basis that the trial judge erred in admitting the expert evidence.  The Court of Appeal disagreed: 2013 ONCA 250.
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New & Notable: Pham considered in the OCA

Sz-Yin Lu was in Canada on a student visa when her boyfriend hit and killed a pedestrian with his car while she was a passenger in it. The police interviewed Ms. Lu twice about the accident and each time Ms. Lu lied by denying any knowledge of the accident. Eventually, Ms. Lu and her boyfriend came clean with the police. She later pleaded guilty to obstruction of justice and her boyfriend was convicted of dangerous driving causing death and failure to remain at the scene of an accident.

At sentencing in the Ontario Court of Justice, Lu sought a conditional discharge. The Crown recommended a suspended sentence followed by a period of probation as well as community service. The Court imposed a suspended sentence followed by six months probation and 75 hours of community service.

Pursuant to the Immigration and Refugee Protection Act (IRPA), Ms. Lu, convicted of a criminal offence, in spite of her eventual marriage to a Canadian, was inadmissible to Canada on grounds of criminality, as she had been convicted of a criminal offence punishable by indictment.

Lu appealed to the summary conviction appeal (SCA) court but that appeal was denied following the SCA judge’s consideration of the Supreme Court of Canada decision in R. v. Pham, 2013 SCC 15. Lu subsequently appealed to the Ontario Court of Appeal: 2013 ONCA 324.

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New & Notable: Identifying the admissibility threshold for recognition evidence

Yohannes Berhe was convicted of offences related to having exposed his genitals in public to a person under the age of 16. At trial the Crown called a witness, a Toronto Transit Commission officer, who recognized Berhe – presumably his face – from previous dealings. Behr was convicted and appealed: 2012 ONCA 716.

 

On appeal Berhe complained that the trial judge did not conduct a voir dire on the recognition evidence. The Court of Appeal agreed that this constituted an error and ordered a new trial.

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Current & Curious: 3 years or not, a minimum is clearly needed

The Ontario Court of Appeal is soon to release a significant decision on the constitutional validity of the mandatory minimum set out in section 95 (3 years). In the meantime, trial courts continue to have drastically divergent views on the appropriate sentence for this offence. While that is, in part, undoubtedly a function of the different circumstances of the offenders and offences, it may also be seen as evidence of why a mandatory minimum was and continues to be necessary.

Vader is an example at one end of the spectrum; in that case the court imposed a 5.5 year sentence where the offender was caught driving around with an "arsenal" of weapons - a sentence which is hard to criticize: 2013 ONSC 109. On the other end of the spectrum, Laponsee is a curious case where the court imposed a 12-month conditional sentence where the offender had brought a firearm and ammunition to the airport - a sentence which is somewhat easier to criticize.

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New & Notable: The nuances of Gladue

The regrettable impact of Canada’s criminal justice system upon the First Nations cannot be denied. Parliament has attempted to address the problem of the overrepresentation of aboriginal offenders in Canadian prisons through section 718.2(e) of the Code. In turn, the Supreme Court of Canada has interpreted and applied that section in cases such as R. v. Gladue and R. v. Wells. In R. v. J.N., the Ontario Court of Appeal is called upon to address a case on the periphery of the issue: 2013 ONCA 251.

 

J.N. was convicted of the sexual assault, sexual interference and invitation to sexual touching for the prolonged sexual abuse of his step-daughter. Although J.N.’s lawyer requested a Gladue report be prepared to assist in the sentencing, Aboriginal Legal Services did not prepare one, as the aboriginal identity of the offender could not be confirmed. He was sentenced at trial to seven years in the prison less two years of pre-trial custody for a total of five years. 

Ultimately, the Court of Appeal in J.N. upheld the sentence but the case is noteworthy for two different facets. 

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New & Notable: Dude, where's my car?

Winston Ellis had a handgun. Ellis carried that handgun in a hidden compartment by the gearshift in an Acura.  Ellis had no lawful purpose or permit for that handgun.  Ellis also had a bunch of outstanding warrants. Given those particular circumstances you would think that Ellis would not have been racing that Acura in the downtown core of the City of Toronto, but that is exactly what led to police noticing Ellis and ultimately finding his gun. Ellis was charged with three criminal offences in relation to that hidden gun; at his trial he sought to have the gun excluded from evidence claiming that his section 8, 9 and 10 Charter rights had been violated. Much like Mr Vader and Mr Newell whom I recently blogged about, that argument failed: 2013 ONSC 908.

 

It was early in the morning, when Ellis decided to race an Acura against another vehicle. Perhaps Ellis thought no one would be around, perhaps he didn’t care. Sgt Martin saw and cared; he called for backup and followed as the vehicles raced through a residential area. The racing vehicles parted ways and Sgt Martin could only follow one; he stayed with the Acura. Ellis sped away from the marked police cruiser and found himself on a dead end street; he abandoned the car in a driveway and fled on foot through the backyard of the property.

Minutes later Sgt Martin located the Acura and spotted Ellis and another man, Gonzalez, walking past the dead-end street and looking back towards the car. The backup arrived on scene and intercepted Ellis and his friend. Officers conducted a pat down search and found the keys to the Acura in Ellis’ pocket; at that point officers returned the keys to Ellis. They testified that the keys were returned because the search was for safety reasons and in the officers’ opinion the keys did not pose a threat. Officers also discovered that Ellis had a number of outstanding warrants, that he was affiliated with a gang and that he may be armed and dangerous.

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Current & Curious: It's a "no brainer"...oh but you should decide on your own!?

Denroy Berbeck attempted to smuggle some cocaine into cocaine by swallowing capsules full of cocaine. He was caught. At trial he claimed he acted under duress. He was acquitted. The Crown appealed. The appeal was dismissed by the Court of Appeal, which held that the trial judge was merely offering advice, not direction, in telling the jury was a "no brainer": 2013 ONCA 241.

 

While ‘vacationing’ in Jamaica, Berbeck swallowed a bunch of capsules filled with cocaine. He then got on a plane and returned home to Toronto. Canada Border Services Agency (CBSA) officers were suspicious when they discovered that a visibly nervous Berbeck had gone to Jamaica for only four days, that he was travelling alone and that he had purchased his ticket with cash. An ion scan of some of Berbeck’s personal effects revealed the presence of cocaine. After several hours in CBSA custody, a couple of calls to duty counsel and after numerous interactions with CBSA officers Berbeck finally admitted to having swallowed the cocaine capsules. Berbeck was arrested and taken to hospital as a precaution. Shortly after being discharged from the hospital Berbeck expelled the pellets of cocaine.

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