Tuesday, July 26, 2011

This Week At The Ontario Court of Appeal: 11-07-22

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

R. v. Roks. An appeal on convictions of second degree murder and conspiracy to commit arson, with Justice Watt as always providing the dramatic openings for which his decisions are known:
Things don’t always work out according to plan. Failures occur at different times and for different reasons. Sometimes, the flaw is in the plan. At other times, the execution is faulty.

The plan in this case involved arson, fraud and use of the proceeds of crime. The scheme was simple enough. Burn down a building after removing anything of value from it. Submit a claim to recover the proceeds of a policy of fire insurance on the building and its contents. And use the proceeds of the insurance claim to pay those involved in the plan and its execution, and to finance a new building on the same site.
Mr. Roks was a participant in the aforementioned scheme, which ended up causing the death of one of its participants. His share of the profit was to be part ownership in a nightclub which would be purchased with the proceeds of the scam, plus the opportunity to buy a unit at cost in a condominimum development that would be built on the property. He appealed his convictions on the grounds that the trial judge erred in her self-instruction, that the trial judge erred in admitting evidence of his other disreputable conduct, and that his second degree murder charge was unreasonable. He also appealed his sentence as being inappropriate for the offence.

On the appeals from conviction, the Court of Appeal reaffirmed the conviction on conspiracy to commit arson. Mr. Roks's complaints about the judge's instruction were in regards to the Vetrovec witnesses (witnesses whose evidence may be suspect); their evidence was insufficiently weighed and the judge's self-instruction did not emphasize their nature enough. Justice Watt pointed out that all of the Vetrovec witnesses agreed and testified that Mr. Roks had participated in the conspiracy, and further that Mr. Roks had not offered any evidence to support his defence that he had known about but not participated in the conspiracy, and then on top of that also pointed out that there was evidence beyond the Vetrovec evidence, including intercepted private communications, indicating Mr. Roks' guilt.

In regards to the evidence, the Court did not agree that the evidence of Mr. Roks was simply evidence demonstrating general bad character (and therefore inadmissible). The evidence of Mr. Roks' other acts was evidence that Mr. Roks had cooperated in fraudulent schemes with the principals in the arson scheme at trial, and was submitted to both shore up the credibility of the Vetrovec witnesses and to rebut Mr. Roks' defence that he only knew about the arson scheme and did not participate. Therefore, it was specific to the case in question and was admissible.

However, in regards to the murder conviction, the Court of Appeal decided to substitute it with a manslaughter conviction instead. Justice Watt explained that Mr. Roks did not start the fire, was not present at the time the fire was set, did not know how the fire would be set, believed that the store would be empty when the fire was set, and believed that someone knowledgeable about fire suppression would be setting the fire. In light of all these facts, that it was reasonable that Mr. Roks would not have in mind the likelihood of a potential death arising from the setting of the fire. Therefore, a murder charge was unreasonable. (Justice Watt specifically criticized the trial judge for relying too heavily on the "common sense proposition" that setting fire to things will naturally lead to death.)

In regards to the sentence conviction, the Court of Appeal reduced Mr. Roks' sentence from ten years to six, to be served concurrently with his sentence for manslaughter (sentence pending). They noted that the other participants in the matter had so far been convicted of six- and seven-year sentences, and felt that the prosecution's evidence that Mr. Roks had perhaps volunteered to perform violent debt collection for one of the other conspirators in the past to be irrelevant to this case: the sentencing principle of parity required that Mr. Roks' sentence be reduced. Read-the-whole-case rating: 3.5. Fairly straightforward, but Justice Watt's decisions are always a clean, enjoyable read.

R. v. Degiorgio. An appeal on a conviction of refusing to provide a breath sample. The appellant fell asleep in her car in front of a driveway with the motor left running; when police approached the vehicle, they noticed that her eyes were glassy and that there was a smell of alcohol. The office demanded a breath sample, but the appellant repeatedly stated that she was "not blowing into anything." After repeated warnings and explanations that the appellant was required to provide a sample under law, the officer arrested her and then released her on an appearance warning. At trial, the officer admitted that he did not have an approved screening device with him, but that he believed another officer who had been dispatched to the scene had one in his car, although he could not confirm this. The trial judge summarily convicted the appellant, noting that she did not have a reasonable excuse for refusing the demand and noting that the officer did not have a screening device. (This fact was not contested by the crown.)

Ms. Degirogio argued that since the officer did not have an approved screening device, she was therefore unable to to comply with the demand as the officer could not administer the test "forthwith," and therefore there was no legal obligation upon her to do so. The trial judge did not agree with this reasoning, and she appealed.

The Court disagreed and dismissed her appeal. After examining the use of the word "forthwith" and explaining that in this context it referred to the time period before the detained person could reasonably consult with counsel, the court then turned to the constituent elements of the offence: reasonable suspicion of impaired driving, the demand for a breath sample, the individual understanding the demand, the individual refusing to comply with the demand, and the individual not having a reasonable excuse for refusing. In this case, the Court pointed out, all of the elements were satisfied. That the officer did not have an ASH handy is of no import as Ms. Degiorgio had not known that this was the case: her conviction hinged upon her refusal to comply with the demand, and the Crown was not required to demonstrate that the screening device was present or would be readily available. Read-the-whole-case rating: 2.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Post a Comment