Thursday, May 26, 2011

This Week At The Ontario Court of Appeal: 11-05-20

Each week, Wise Law Blog reviews recent decisions by the Ontario Court of Appeal.

R. v. Roncaioli. An appeal in a manslaughter case where the convicted defendant was accused of killing his ailing wife by injecting her with two different types of anaesthetics in fatal doses. Mr. Roncaioli, at trial, maintained that he had only injected his wife with therapeutic doses of the two drugs, and that his wife had injected herself with the fatal doses. Mr. Roncaioli appealed on a number of grounds.

His first ground of appeal was unreasonable delay; there had been a delay between his arrest and his trial of 48 months, and slightly more than 19 months of that delay was characterized by the trial judge as institutional delay. This was slightly more than the reasonable institutional delay guideline set out in R. v. Morin, but only slightly, and thus the trial judge allowed the case to proceed. Mr. Roncaioli appealed on the grounds that some of the delay had been mistakenly characterized by the trial judge as defense delay instead of institutional delay, as his lawyer had requested an additional delay of six months due to having a murder trial immediately following Mr. Roncaioli's. The Court of Appeal was not impressed with this line of argument, as the gap in between the two trials would likely have been nearly a month, which the Court found was adequate preparation time.

His second ground of appeal was that the judge unfairly agreed with the Crown's position that a guilty count of manslaughter was possible either through criminal negligence or through aggravated assault, and that this confused the jury. The Court of Appeal did not agree with this ground of appeal either; the Court stated that although elements of both types of manslaughter overlapped in this case's facts, it nonetheless remained that proving negligence and proving assault were two different things entirely.

Mr. Roncaioli also appealed on the ground that the trial judge wrongly instructed the jury to consider his potential motive for committing the crime as he was not charged with murder. The Court disagreed again, as the trial judge had expressly told the jury that Mr. Roncaioli was not charged with murder, had marshalled the evidence demonstrating that perhaps his wife had committed suicide, and finally stated that although not necessary to prove manslaughter, evidence of motive could be used in assessing the likelihood of the defendant committing the crime.

His final ground of appeal regarding his conviction was that the judge improperly instructed the jury as regards causation of manslaughter. Initially the trial judge properly instructed the jury as regards intervening cause in this case, but during a second set of instructions the trial judge failed to remind the jury that nothing else - such as action by the appellant's wife - could intervene to cause the death if he were to be found guilty. The jury noticed this omission, and requested further instruction: the judge correctly instructed them the third time around, re-emphasizing her original instructions. The Court pointed out that the judge repeatedly and correctly instructing the jury was the opposite of confusing them and dismissed this ground of appeal.

Mr. Roncaioli also appealed his sentence, arguing that it had been set on the basis of unlawful act manslaughter but the jury's verdict had not been clear as to whether his manslaughter conviction was because of the aggravated assault or because of criminal negligence, and he was therefore entitled to the benefit of the doubt and have his sentence treated as manslaughter via criminal neligence, which he contended was "not as morally blameworthy as unlawful act manslaughter." The Court disagreed, stating that it was open to the trial judge to determine how manslaughter had occurred and that her sentence was reasonable given the nature of the case. Read-the-whole-case rating: 2.

B & M Handelman Investments Ltd. v. Curreri. Mr. Curreri was unemployed and in his sixties when a friend and business advisor suggested that he raise money for a business opportunity overseas by mortgaging properties owned by his father. (Mr. Curreri impersonated his father in order to do this.) The monies raised have since disappeared. The mortgagors commenced an action against Mr. Curreri and obtained a Mareva injunction against him, which included $250,000 Mr. Curreri had won in a Keno lottery. Mr. Curreri did not defend the action and the mortgagors successfully moved for partial default judgement.

Meanwhile, Mr. Curreri was arrested and charged with twenty counts of fraud over $5,000. The mortgagors moved to have Mr. Curreri's lottery winnings be paid to the sheriff so they could collect; Mr. Curreri responded with a cross-motion that about half of the money be paid to his lawyers in trust to defend the action, the criminal proceedings, and for him to live upon. Despite Mr. Curreri successfully demonstrating that aside from the lottery winnings, he had no income beyond $600 a month in CPP payments, and claiming that he intended to defend the civil action and move to set aside the partial judgement, the motion judge granted the mortgagors' motion. Mr. Curreri appealed.

The Court dismissed his appeal. Mr. Curreri had only stated an intention to set aside the partial judgement, and had not brought a motion nor delivered a statement of defence; further, on the record before the Court, there appeared to be no defence available to him, and he continued to affirm that he had no idea where the lent money had gone. The Court noted that Mr. Curreri's counsel had formed an argument that made no reference as to a potential defence for him, because their position was that the money was not proprietary and therefore no merit was needed to be shown; the Court was extremely dismissive of this approach and stated that in light of it they could not grant special consideration to Mr. Curreri. The Court also stated that given the lack of a presented defence of merit, it could not allow Mr. Curreri to access the money for his criminal defence. Read-the-whole-case rating: 2.5.

- Christopher Bird, Toronto
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