New & Notable: Old Mother Hubbard & the Police can go to the Cupboard but not the Computer

Police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation which would identify the owners or occupants of the residence. The Information to Obtain a Search Warrant (“ITO”) stated that police would be looking for, among other things, “computer generated notes” but it did not specifically reference computers nor did the warrant authorize the search of computers. While executing the search, police found marijuana, two computers and a cell phone. Police examined the computers and cell phone and found evidence that Thanh Long Vu was the occupant of the residence. He was charged with marijuana production, possession and trafficking as well as theft of electricity. Vu successfully argued at trial that his s. 8 Charter rights were violated and that the evidence should be excluded. He was acquitted. The British Columbia Court of Appeal found that there had been no s. 8 breach and overturned the acquittal. The Supreme Court of Canada agreed with the trial judge in her finding that there was a s. 8 breach when the police searched the computers and the cell phone but found that the evidence should not have been excluded pursuant to s. 24(2) of the Charter. The appeal was therefore dismissed and the Court of Appealʼs order for a new trial stands: 2013 SCC 60.

Issue #1: Whether the warrant authorizing a search for ownership or occupancy documentation was properly issued

Justice Cromwell, writing for a unanimous Court, gave relatively short shrift to the argument accepted by the trial judge that because the officer who swore the ITO didnʼt specifically state in the ITO that he had reasonable grounds to believe that documents evidencing ownership or occupancy would be found within the house, the ITO could not support a search warrant for such documentation. He found that the issuing justice was entitled to draw an inference that such reasonable grounds existed and that the informant on the ITO did not have to state the obvious. Accordingly, the warrant to search for such documentation was properly issued and the search for it did not violate s. 8 of the Charter.

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New & Notable: Here's to Auld Lang Syne, when it was actually cold on New Year's Eve...

It was unusually warm on New Year’s Eve 2010.  This added to the celebratory air around Spadina and Queen Streets in Toronto as revellers walked in light jackets or no jackets at all.  Not so, Rowan Atkins.  Three officers driving down Spadina in an unmarked van noticed him walking because he was wearing a heavy, baggy winter coat over a hoodie and he was withdrawn, hiding in the crowd and skirting the walls of buildings as he walked.  The officers were suspicious and stopped to talk to him.  After being called over by the officers, Mr. Atkins took a couple of steps towards them but then started running.  After a brief foot pursuit the police discovered the likely reason for Mr. Atkins change of heart; the loaded handgun he was carrying.  The trial judge ruled that Mr. Atkins’ s. 8 and 9 Charter rights were not infringed.  The Ontario Court of Appeal agreed:  2013 ONCA 586.

One officer initiated contact with Mr. Atkins by calling “hey” to him out of the window of the unmarked van.  Mr. Atkins glanced back but kept walking.  The van moved further along the street and the officer called “hey buddy” a little louder.  Mr. Atkins then turned towards the officer and she waved for him to come over.  She then got out of the van with another officer, both in full uniform.  Mr. Atkins took steps towards them as though he was going to speak with them but then ran.

The Court of Appeal endorsed the trial judge’s finding that at the time Mr. Atkins decided to run; he knew full well that it was the police who had summoned him.

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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: Putting the focus of expert evidence in the right spot...

David Murray was convicted of impaired driving causing bodily harm and dangerous driving after flipping his car into a ditch leaving himself and his 90-year-old mother hanging upside down from their seatbelts.  The Crown relied on the evidence of a toxicologist who determined Murray’s blood alcohol concentration from blood samples taken at the hospital.  In his appeal to the Ontario Court of Appeal, Murray challenged the validity of the search warrant to obtain the results of the blood testing.  He also argued that the results of the blood testing should not have been admitted nor given any weight because the hospital lab technician provided no details about the equipment used to conduct the testing or its reliability.  The Ontario Court of Appeal rejected both arguments: 2013 ONCA 173.

 

The search warrant issue

Murray argued that there was nothing in the Information to Obtain the warrant (“ITO”) to indicate that the hospital would test or had tested the appellant’s blood for blood alcohol content.

The Court of Appeal considered the following details set out in the ITO:

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New & Notable: Definitely not that "new car smell"...ONCA reiterates propriety of dual purpose stops

Kwesi Morris was pulled over by the police because they wanted to verify his documentation under the Highway Traffic Act (“HTA”).  The police smelled fresh marijuana and so arrested Morris and searched him and the car.   They found drugs and a loaded handgun in the car.  Morris argued that the drugs and gun should have been tossed out as evidence by the trial judge because, according to him, the police used the HTA as a pretext for an unauthorized stop and search.  The Ontario Court of Appeal disagreed: 2013 ONCA 223.
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New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906

 

The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

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New & Notable: Where there is no will, there is no way...

Christopher Ramgadoo pled guilty to aggravated sexual assault, sexual interference, unlawful confinement, attempted choking and breach of probation as a result of his sexual attack of a 13-year old girl.  At the ensuing dangerous offender hearing, Crown and defence agreed that Ramgadoo satisfied the statutory criteria for a dangerous offender designation (s. 753(1)).  The only issue was whether the risk he posed could be controlled in the community (s. 753.1). 
The trial judge found that it could not and imposed an indeterminate sentence.  On appeal, Ramgadoo argued that the trial judge had failed to consider the “burn out” effect of his eventual aging on his risk of reoffence and whether making compliance with a medication regime a condition of a long-term supervision order would render his risk to reoffend manageable in the community.  The appeal was recently dismissed by the Ontario Court of Appeal: 2012 ONCA 921.
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New & Notable: Here's hoping he gets this message

In November 2011, Agnieszka Mikulska sought a roommate in an ad on the internet.  Within a month, her worst nightmare had come true.  Patrick Doherty had responded to the ad.  Ms. Mikulska chose someone else – perhaps not surprisingly, another woman.  Doherty began a shocking stalking campaign that resulted in his March 2012 conviction for criminal harassment, two counts of attempting to obstruct justice and two counts of breaching a court order.   He was sentenced to 5 ½ years in jail.  He appealed.  He lost: 2012 ONCA 855.

 

The harassment started shortly after Ms. Mikulska made her decision not to live with Doherty.  It started with verbal abuse, threatening comments, multiple phone calls, showing up at her home and leaving notes.  Shaken, Ms. Mikulska called police.  The police intervened with Doherty and told him to stay away from her.

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New & Notable: Affirming necessity to point to evidence to rebut presumption of voluntary consumption

Concerned citizens of Parry Sound called police to report Mark Jensen’s erratic driving and then continued to follow him.  When police arrived at the dock where Jensen had stopped, they found him passed out behind the wheel.  He reeked of alcohol and was clearly impaired.  His blood alcohol content was .29.  The Crown’s case was admitted.  Jensen testified and argued that he was in a state of non-insane automatism while he was driving.  He was despondent over his brother’s death, had been drinking heavily in the preceding weeks and was confused.  He had no recollection of purchasing or drinking the alcohol found in his system on the night in question.  The trial judge rejected the defence of non-insane automatism because no expert evidence was called but went on to acquit Jensen on the basis that he had a reasonable doubt as to whether Jensen had the requisite mens rea for the offences.  The Summary Conviction Appeal judge granted the Crown’s appeal and found that the trial judge erred in law because there was no evidentiary basis upon which the presumption that the accused consumed alcohol voluntarily before driving could be rebutted.  A conviction was substituted because the evidence, properly viewed, was overwhelming: 2012 ONSC 3325. The Ontario Court of Appeal denied leave to appeal: 2012 ONCA 878.
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New & Notable: What's that bulge in your pocket...the final word from the SCC

The bottom line

Aucoin was stopped by Cst. Burke for motor vehicle legislation infractions.  The officer felt it necessary to have Aucoin sit in the rear of the cruiser while the ticket was issued.  Before securing Aucoin in the rear of the cruiser, Cst. Burke did a pat down search and detected a package, which Aucoin said was ecstasy, in Aucoin’s pocket.  Aucoin was arrested and found to be in possession of a large quantity of cocaine and pills. 

In a previous post, Dallas discussed the Nova Scotia Court of Appeal ruling in Aucoin: 2011 NSCA 64. The Supreme Court of Canada heard the appeal from that ruling. The majority, authored by Moldaver J, held that is was not reasonably necessary for the officer to place him in the police cruiser and accordingly, that searching for security reasons before placing him there could not be justified and was a violation of s. 8 of the Charter.  However, the majority went on to hold that the evidence was admissible pursuant to s. 24(2) of the Charter: 2012 SCC 66

 

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