Friday, August 12, 2011

This Week At The Ontario Court of Appeal: 11-08-12

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

R. v. C. (J.W.). An appeal by the defendant on multiple convictions of sexual assault. C. worked as a counsellor at a series of group homes for disabled and special-needs individuals. C. suffered from diagnosed bipolar disorder and serious depression, for which he took medication, but he stopped taking his medication and his symptoms of mental disorder grew worse. Approximatly four months after he stopped taking his medication, C. called the police from the psychiatric unit of the hospital where he was currently staying and asked to confess to sexual offences he had previously committed. He then was taken to the police station, where after being explained his right to counsel, he confessed to sexually assaulting residents of the group homes at which he had worked.

At trial, C. denied that the contents of his confession were true, and that he suffered from "voices" that told him to confess these things. He had not told health professionals about the voices prior to his arrest; however, he had told his girlfriend and girlfriend's mother. The defence expert on mental illness testified that the voices were consistent with severe depression; the Crown expert felt that C. was only moderately depressed. As a result, he was convicted. C. appealed on a number of grounds, but of primary concern to the Court were whether his right to counsel was not properly administered to him at the time and whether the trial judge dealt with the evidence regarding his confession and the experts' opinions thereof in a proper manner.

In regards to his right to counsel, the Court of Appeal pointed out that C. was given adequate time to consder his right to counsel (two cautions, spread out twelve minutes apart) and was informed in a reasonable manner by the police, and verbally consented to proceeding without counsel in a reasonably clear manner. The fact that C. responded to asking whether or not he wanted to call a lawyer with "I don't know" was not enough to demonstrate, in the context of the other cautionary questions which preceded and followed that question to which he answered in the affirmative, that he did not receive right to counsel.

The Court also did not agree with C.'s appeal based on the judge's instructions to the jury as regards the expert evidence. C. took the position that the trial judge's use of the phrase "if you find that none of the supporting facts have been established then the opinion is worthless as not being based upon accepted facts" effectively required expert opinion to prove all facts beforehand. The Court stated that the trial judge had made this statement in the context of all facts failing to be established. and that the trial judge had subsequently instructed the jury that if they only accepted some of the supporting facts, they could still use the expert opinion evidence. Read-the-whole-case rating: 2.

R. v. Kelly. An appeal by the defendant on a second degree murder conviction. Mr. Kelly was accused of killing Nathaniel Wilson; both men lived a criminal lifestyle and had prior criminal records. After Mr. Kelly took money from a third man and refused to return it, Mr. Wilson threatened him for the return of the money. Mr. Kelly, a few weeks later, then attacked Mr. Wilson with a knife, stabbing him and mortally wounding him. Mr. Kelly claimed it was an accidental run-in and that his actions were in self-defense; the Crown argued that Mr. Kelly had purposely ambushed Mr. Wilson.

During the preliminary inquiry, a Crown witness named Chrisjohn testified that his younger brother had told him that Mr. Wilson had recruited the younger brother and his friends into Mr. Wilson's gang. This evidence, the defence felt, put Mr. Wilson's disposition for violence at issue, and would therefore open the evidentiary door to evidence of Mr. Kelly's disposition for violence (as per R. v. Sparkes), and they were aware that the Crown had evidence of Mr. Kelly's disposition for violence that the Crown could not otherwise lead. Therefore, before the evidence was introduced, defence counsel requested an advance ruling; they wished to introduce the evidence on Mr. Wilson, but only if they could get an ruling stating that the evidence was not of Mr. Wilson's reputation for violence, but rather evidence that he had access to firearms. The trial judge ruled that the distinction was meaningless and that if evidence of Mr. Wilson's violent character was led by defence, the Crown could respond with evidence of Mr. Kelly's violent nature. Defence therefore did not lead this evidence.

On appeal, they argued that the trial judge had erred in this regard, but the Court of Appeal disagreed; evidence that Mr. Wilson was disposed to carry and use a firearm was, in the Court's view, tantamount to evidence that Mr. Wilson was a violent person. They also noted that Mr. Kelly had led evidence that he had been told by others that Mr. Wilson had threatened him, which served as additional evidence of Mr. Wilson's violent nature in any instance.

Mr. Kelly also appealed on the grounds that the trial judge mis-instructed the jury as to prior statement evidence. One witness had previously given a lengthy videotaped interview to the police about how she had seen Mr. Kelly immediately prior to the altercation and that he looked "suspicious," but at trial claimed not to remember anything about the event in question or even the videotaped interview. The trial judge made it clear to the jury that this witness had lied in her testimony. Mr. Kelly's counsel argued that in order for a prior inconsistent statement to be admissible, a present recollection must be present for it to be inconsistent with; the witness had provided no testimony about the events in question with which it could be inconsistent, as she maintained that she could not remember the events in question. The Court was not sympathetic to this argument, as they characterized the witness' testimony as "patently unbelievable," and stated that the prior statement was therefore admissible, and dismissed Mr. Kelly's appeal. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto
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