Friday, November 05, 2010

This Week In The Ontario Court of Appeal: 10-11-05

Each week at Wise Law Blog, we review decisions from the Ontario Court of Appeal.

R. v. Canadian Broadcasting Corporation. The CBC wanted to produce a documentary for the fifth estate about Ashley Smith, who died in custody at the Grand Valley Institution for Women. Four correctional officers were charged with criminal negligence causing death in the matter, but the Crown declined to prosecute after the preliminary hearing, stating there was no reasonable prospect of conviction. The CBC sought a court order releasing the trial exhibits, but the judge granting the order limited the release strictly to documents shown at the trial rather than the total of all documents prepared. The CBC appealed this. The Correctional Service of Canada cross-appealed, arguing that the CBC should not have had any access to the exhibits. The Office of the Chief Coroner also cross-appealed, arguing that the trial judge should have hewed more closely to their opinion for determining the properness of document release in the matter.

The Court of Appeal found that the CBC should have had access to all documents prepared, and rejected the CSC's and OCC's cross-appeals entirely. Although the Court dismissed the CBC's argument that the Dagenais/Mentuck test, which is used to determine whether the publication of court materials might endanger the proper administration of justice, should not apply to journalistic media, they did find that the application judge erred in limiting the CBC's access. The Court compared the situation to that of the Paul Bernardo murders where media access was strictly limited, pointing out that in this case there was no pressing need to protect the mental well-being of the victim's family since Ashley Smith's mother had given permission to the CBC to make the documentary. Since there was no finding of potential harm, there was nothing in the law which allowed a judge to "impose his or her opinion about what does not need to be broadcast to the general public." Read-the-whole-case rating: 4. It's an interesting set of facts and an interesting issue, and well-written.

R. v. Brown. Sentence appeal where a man convicted for possession of a loaded restricted firearm and breach of a firearms prohibition order was sentenced to five and a half years' imprisonment. Mr. Brown was arrested on an immigration warrant and found to be in possession of a Sig-Sauer .45 after being convicted twice previously for firearms offenses and receiving a lifetime firearms prohibition order. He argued that he had cooperated with police and that there was no indication of other criminal activity at the time, and that he was making efforts at rehabilitation. However, the Court was not sympathetic given that he was in direct contravention of his prohibition, and given Mr. Brown's 34 previous convictions felt that a dramatic sentence was merited, so the Court of Appeal actually increased Mr. Brown's sentence to seven and a half years from five. Read-the-whole-case rating: 3 if you're a criminal lawyer looking for a precedent, 1 if not.

R. v. Huggins. Mr. Huggins was the owner of a pit bull named Ginger which attacked another dog and the dog's owner. Mr. Huggins was charged under the Dog Owners' Liability Act and was acquitted, but the Crown also applied for an order under the Act for Ginger's destruction. Mr. Huggins appealed this order.

The Court dismissed the appeal. Pit bulls, under the Act, are treated differently than other dogs; the law is unambiguous that pit bulls who bite or attack another dog or person are to be destroyed. Clayton Ruby, arguing for Mr. Huggins and Ginger, suggested that since s.445.1 of the Criminal Code makes cruelty to animals an offence, that therefore destruction of an animal without consideration of the necessity of the destruction would be inconsistent with the Code. The Court rejected this argument on the basis that even if the principle of harmonization applied (on which they refused to comment), the two laws were directed at different circumstances. Mr. Ruby also argued that "bitten" in the Act could not be intended to mean all bites, such as puppy bites, but rather aggressive biting. The Court did not accept this argument either, stating that intention of the Legislature was clear: one bite and done. Read-the-whole-case rating: 4, or 5 if you are like this writer and feel that the pit bull legislation is a case of blaming mostly innocent dogs for the actions of owners who have decided they want "mean" dogs.

R. v. Qiu. A landlord convicted of running a marijuana grow-op in spite of her argument that it was her tenant actually running it appealed the decision on the grounds of inadequate legal assistance, arguing that her counsel, due primarily to language issues (as Ms. Qiu spoke very little English and Mandarin was her first language), did not advise her of her right to testify, and in the alternative advised that she should not testify.

The Court dismissed the appeal, pointing to testimony from trial counsel and the translator which made it appear as if Ms. Qiu knew she had the right to testify. They also pointed out that Ms. Qiu's recent mortgage fraud - of which trial counsel was aware - was a reasonable ground on which counsel might advise a client not to testify so as to avoid prejudicing the trier of fact with an irrelevant side issue. Read-the-whole-case rating: 2. Fairly straightforward.

- Christopher Bird, Toronto

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