Current & Curious: The truth driven by circumstances?

Yousanthan Youvarajah and DS were involved in the killing of another man after a failed drug deal. DS pleaded guilty to second-degree murder. As part of the plea agreement he signed an agreed statement of facts. In that statement he implicated Youvarajah as the one who provided the handgun to him, directed him to shoot the victim and demanded the gun back [para 7]. When he pleaded he acknowledged the accuracy of this statement of facts.

 

At Youvarajah’s trial DS was called by the Crown as a witness. DS was asked to adopt the agreed statement of facts. Shockingly, he testified that he did not remember signing the document (although he accepted it bore his signature). Further, he testified that the statement was not true. He indicated, instead, that the gun was his own and that he threw the gun into the river after the shooting. Regarding his plea, he indicated that he “did not understand the words ‘acknowledged’ or ‘accurate’ as used by his counsel” and that one of the reasons he pleaded guilty was that he was told he would not have to give any further statement [para 9].

The Crown sought to tender the statement under the principles of KGB. The trial judge denied the Crown’s application on the basis it did not meet threshold reliability. Karakatsanis J outlined the trial judge’s reasons as follows:

None of the safeguards identified in this Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (K.G.B.), for reducing the dangers associated with hearsay had been undertaken.  The statement was not videotaped; there had been no recital of an oath or affirmation; and the transcript of the guilty plea proceedings was not a suitable substitute to assess D.S.’s demeanour and credibility at the time the statement was made.  Furthermore, the statement had been drafted by counsel; it was not offered spontaneously and was not in D.S.’s own words [para 12].

 

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New & Notable: Who says a Kinesiology degree is useless...

Tatyana Granada was convicted of four counts of mischief.  She appealed.  In dismissing her appeal, the Alberta Court of Appeal commented on the utility of calling a Kinesiology Expert: 2013 ABCA 273.

 

Ms. Granada was originally charged with shoplifting from a Calgary Co-op grocery store.  She pleaded guilty and was given a conditional discharge.  She was also informed that she was banned from all Co-op stores for life.

Within a month she was seen on camera returning to the same store.  She spent approximately four minutes in the store without making a purchase.  Two days later sewing pins were found in three pieces of cheese.

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New & Notable: Forever young? Not "able"

In February of 2009, Toronto police received a tip that a number of men in a car were in possession of illegal firearms.  Officers approached a vehicle to investigate.  As they advanced, the door flung open and a suspect fled.  That suspect’s name was Warren Able.

 

He fled for good reason.  He was in possession of a loaded, semi-automatic, .45 calibre firearm, a restricted weapon pursuant to section 95(1) of the Criminal Code.  A chase ensued, he was arrested and the firearm was recovered.

It was not the first time he was arrested for possession of this type of weapon.  Less than two years earlier, when he was a youth, he was convicted and sentenced for the same offence.

After considering his options, Mr. Able decided to plead guilty to the more recent charge in addition to a number of other offences. 

Section 95(2) holds that for a second offence under section 95(1) the sentencing court is bound to sentence the offender to a mandatory minimum five years in custody if the second offence is within 10 years of the first offence.

The court sentenced Mr. Able to 9 ½ years in custody.  Mr. Able appealed: 2013 ONCA 385.

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New & Notable: In-dock identifications are presumptively admissible

Douglas Muir, along with four others, robbed a drug dealer at gunpoint inside his home. A high-speed chase then took place but it ended with the get-away car crashing into police cruisers. Muir was apprehended after a short foot chase while his associates were arrested in the get-away car. The car contained the three firearms that were used in the robbery as well as the stolen money, drugs and property from the robbery.

 

The interesting issue in this case involves the admissibility of the in-dock identification evidence: 2013 ONCA 470.

 

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New & Notable: A good, valid and sufficient Order

Winston Ellis was found guilty of following a trial before a judge and jury of three firearms offences. The firearm in question, a .25 calibre semi-automatic handgun, was subject of a Charter motion (see New & Notable: Dude Where’s My Car).

 

A separate trial was held before the same judge who presided over the jury trial on a single count indictment which alleged that at the time of the offences which proceeded before the jury, Ellis was prohibited by a firearms prohibition under section 109 of the Code.

The trial proceeded in a somewhat unusual fashion. All of the evidence led before the jury applied to the trial on the sole count of the prohibition breach. Furthermore, it was agreed that the jury’s verdicts in relation to the Ellis’ possession of the firearm was binding. Lastly a number of documents were filed including the prohibition.

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Current & Curious: A technical failure to confirm the process does not end the prosecution

Benjamin Ladouceur was stopped by the police and charged with “care and control over 80”. He was released from the station on a promise to appear that required him to appear in court on December 28th, 2009. Unfortunately, in light of Christmas and Boxing Day falling on a Friday and Saturday that year, the 28th was a non-juridical day.

 

Well in advance of the scheduled first appearance, an information was sworn by a police officer before a justice of the peace. That same day, the justice issued a summons for the respondent to appear in court on December 21 instead of confirming the promise to appear for the original date.

As clearly set out by Justice Speyer “[w]here an accused is released on a promise to appear prior to the laying of the information, s. 508 of the Criminal Code provides for judicial screening of the promise to appear before the accused is required to attend at his or her first court appearance. Once the information is sworn, s. 508 provides the justice of the peace with the following statutory options:

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New & Notable: The last word on the appropriate sentence

Brandon Adamson was 19 when he broke into his ex-girlfriend’s home and tried to murder her.  He was found guilty by a jury of four offences: attempted murder, assault with a weapon, break and enter, and aggravated assault. He then faced sentencing before Gray J: 2013 ONSC 2365.

 

Justice Gray stayed the convictions for aggravated assault and assault with a weapon pursuant to the principles of Kienapple.

The Crown took the position that a 10 year sentence was the appropriate disposition; Adamson argued that a sentence of 7 years. When the Crown advised the Court of their position on sentence, Gray J offered the following to counsel:

…my initial reaction was that the 10-year sentence proposed by the Crown is too low, and I might consider a longer period of incarceration to be appropriate. As required by appellant authority (eg R v Thompson, 2013 ONCA 202), I afforded both counsel an opportunity to make submission as to why I should not impose a longer sentence [para 19].

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New & Notable: Life does not always imitate art

It has been said that a picture is worth a thousand words. In the recent case of R. v. Muvunga, defence counsel will have to use all of them: 2013 ONSC 3076.

 

Mr. Muvunga was charged with three counts of sexual assault.  He chose to be tried before a jury of his peers.  The central issue to be determined was whether the complainant consented to the sexual activity.

Prior to closing submissions defence counsel brought an application to be allowed to use a visual prop in their closing, namely a replica of a Boticelli’s masterpiece “Calumny of Apelles”.  He wished to present the painting as an allegory to make the point that a false accusation is not the invention of criminal defence lawyers.

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New & Notable: 30 Minutes or It's Free

Animer Fatahal-Delil was a deliveryman for Pizza Pizza. He was working, delivering pizza, when he is alleged to have struck and killed Marek Suchowski. The Crown alleged that Fatahla-Delil was negligent in the operation of his motor vehicle and that his dangerous driving caused the death of Mr Suchowski. He elected trial before a judge and jury.

 

Prior to trial the Crown brought a motion to tender evidence of Pizza Pizza’s “30 minutes or its free” policy. The conduct related to the Crown’s theory that there were pizza boxes in a delivery satchel from Pizza Pizza located in an alley near the scene. The Crown alleged that this evidence supports an inference that excessive speed was a factor and one that Fatahal-Delil was concerned about following the incident, given the disposal of the pizzas.  

The defence was not prepared to admit that the 30 minutes or its free policy was in effect at the time of the incident; alternatively if it did exist it had no impact on the driver’s conduct.

O’Marra J held that this evidence of post-offence conduct would be admissible at trial: 2013 ONSC 4012.

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New & Notable: Seeing isn't believing

Richard Titchener was charged with one of count of uttering a threat to cause death or bodily harm and one count of sexual assault. Following a 9-day trial before a judge and jury, he was convicted of the sexual assault and acquitted of the uttering threat charge. Two of the witnesses for the Crown, including the victim, were deaf. They testified via a sign language interpreter who communicated their evidence in English. Titchener was convicted and appealed: 2013 BCCA 64.

 

Titchener raised three grounds for his appeal including the fact that no video recording was made of the two witnesses who testified using sign language and an interpreter. A further issue was raised in respect of the interpretation provided for the victim who had no thumbs and therefore used an improvised form of sign language.  Titchener argued that the absence of such a recording rendered the record of the proceeding insufficient thus entitling him to a new trial.

Ryan JA writing for a unanimous British Columbia Court of Appeal treated this ground of appeal as requiring three separate inquiries.

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