New & Notable: Ontario Court of Appeal opines, yet again: guns and drugs don't mix

Wong was convicted of ten gun and drug related offences.  One of them was possession of a loaded firearm (s. 95(1) of the Criminal Code), which carried a mandatory minimum 3 year jail sentence.  He received a global sentence of 3 years on all of the gun and drug charges.  The Ontario Court of Appeal overturned his conviction on the s. 95(1) charge on the basis that the trial judge erred in finding that possession of an unloaded firearm with readily accessible ammunition was included in the offence of possession of a loaded firearm. [2012 ONCA 432]  Not surprisingly, Wong sought to appeal his sentence.  With the mandatory minimum sentence no longer at play, he argued that a 3 year sentence was excessive and sought a conditional sentence.  The Court of Appeal said no: 2012 ONCA 767.

 

The trial judge was clear in his reasons that the overall length of sentence was determined by the mandatory minimum.  Wong argued that he was 23, had no record and had been on house arrest for one and a half years pending trial.  He said that his drug trafficking only lasted for 2-3 days and that he was not a danger to society [paras 5 and 7].

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New & Notable: Strong message to those who sexually abuse children

Mr. Merrick was in his mid 60’s when he fondled the genitalia of a 10 year old boy he babysat.  He did this “countless” times to the boy over the following four years.  He was caught and pleaded guilty to a single count of touching a person under 14 for a sexual purpose (s. 151(a) of the Criminal Code).  He appealed his 5 ½ year sentence arguing that his actions did not constitute a “major sexual assault.”  The Alberta Court of Appeal didn’t buy the argument: 2012 ABCA 319.

Earlier this year, the Ontario Court of Appeal also grappled with sentencing in child sexual assault cases but in a case where there could be no argument about whether the offender’s actions constituted a “major sexual assault.”  Over a three year period, on a near daily basis, Mr. D.M. sexually abused his 15 year old niece who was completely dependent on him.  The abuse started as sexual touching and culminated in sexual intercourse 2-3 times per week.  The trial judge found that the mitigating factors put the appropriate sentence at the low end of the range and sentenced Mr. D.M. to 3 years.  The Ontario Court of Appeal found that sentence to be manifestly unfit and sentenced him to 7 years, the sentence sought by the Crown at trial: 2012 ONCA 520.

 

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New & Notable: One high watermark leads to another...

The afternoon of June 21, 2009 was a fateful one for Lawrence Bush and his three friends.  Bush drank, did drugs, drove and, as a result, killed his friend.  For this, he received a 12 year prison sentence.  He thought that was too high.  The Ontario Court of Appeal disagreed and upheld the highest sentence in the land to date for impaired driving and criminal negligence causing death: 2012 ONCA 743

The facts were “egregious”; the driving was “outrageous.”  Bush, on bail for an impaired driving charge, had been legally barred from driving since 1985 and was convicted 10 days earlier, for the 8th time, of driving while his license was suspended.  Despite this, he chose to drive a car, in the middle of the day, down country roads, for over an hour at speeds of 170 km/hr, all the while drinking and continuing to take narcotics.  The sheer stupidity included driving at 110 km/hr with Bruno, a passenger who was also drunk and high, “hood surfing” on the hood of the car.  The car ended up in the ditch.  Unfortunately for all, it didn’t stay there.

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New & Notable: Sometimes it pays to tell your side of the story

Never get into a car with a stranger

Phung and Cong Tran were drug dealers.  They did a deal with Peter Tran, not related to Cong Tran, to buy two kilos of cocaine.  On the night of the deal, they picked him and the drugs up in Toronto and drove to Richmond Hill.  Peter Tran’s girlfriend, Emily Le, was along for the ride.  She should have stayed home; her boyfriend ended up dead and she was shot twice, but lived to tell the tale.

 

Cong Tran drove the foursome to Richmond Hill.  There was some talk in the car about the fact that his brother had been stabbed less than a week earlier.  Cong Tran missed the turn off to Ms. Le’s destination and the group ended up in a secluded area, unfamiliar to Peter Tran and Ms. Le.  Cong Tran, Peter Tran and Ms. Le got out of the car.  Phung took over the wheel and left, saying he had to go get something at a nearby uncle’s house.  He was gone for quite some time and Cong Tran eventually called him to question his whereabouts.

 

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