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Edmonton Criminal Lawyer Ziv > criminal lawyer edmonton (Page 2)
26 July
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The Demand for Identification is a Search or Seizure

Posted by Rory
in Charter Rights, criminal lawyer edmonton, identification, lawyer edmonton, search or seizure

Police officers have no power to demand your identification- “The common law does not require a citizen to identify oneself or carry identification of any sort. Therefore, while it may be a mark of a good citizen to identify oneself when asked to do so, a police officer must not use force to compel someone to identify oneself if he or she refuses; otherwise, the officer will be guilty of criminal assault and liable to civil damages: Koechlin v. Waugh, (1957), 118 C.C.C. 24. C.C.A.”

R. v. S.H.  [2005] O.J. No. 1735 2005 ONCJ 131

A request for information or identification documentation is a search or seizure within the meaning of the Charter. For the reasons given, I find that the defendant has established, on a balance of probabilities, that this search and seizure is unreasonable.

R. v. Duncan  [2012] O.J. No. 6405 2013 ONCJ 160

28     If no lawful basis for the stop has been articulated, there was no lawful basis for the demand for identification. If there was no lawful demand for identification, the arrest for the alleged “failure to identify”7 was unlawful. If the arrest was unlawful, assuming that Mr. Duncan resisted as described, he was entitled to do so.

“The evidence before me failed to demonstrate that the purported arrest of Mr. Duncan was lawful. A citizen is entitled to resist an arrest that is unlawful. Thus, even assuming that I were to accept the police evidence of Mr. Duncan’s actions as making out the assault beyond a reasonable doubt, an issue that is not entirely free of controversy, a nonsuit and thus an acquittal is the only outcome that is lawfully open to me on the evidence before me.”

R. v. Chronopoulos, 2009 CanLII 18288 (ON SC)- Applies Harris

PC Hayford spoke to both passengers. He asked them for identification and whether they had been in trouble with the law.  Both men were polite and cooperative. Mr. Chronopoulos verbally identified himself and the passenger in the rear seat provided photo identification. This request, in the circumstances, constituted a violation of the Applicant’s right to be free from unreasonable search and seizure for the reasons that were articulated by Doherty J.A. in Harris para. 43-44:

In the present case, when [the officer] asked for identification, he intended to use that identification to conduct a CPIC search, one of the purposes of which was to determine whether the appellant was under any court orders and in breach of any court orders. I think the officer’s intention to use Harris’s identification to make the various inquiries available through CPIC is akin to an intention to conduct a further more intrusive search after receiving the answer to the request for identification. Grant offers support for my conclusion that the request for identification in the circumstances of this case amounted to a search or seizure for the purposes of s. 8.

44     I conclude that Harris was subject to a seizure when he gave [the officer] his identification. The seizure was warrantless and without reasonable cause. There is no evidence that Harris was aware of, much less waived, any rights under s. 8 of the Charter.

 

16 July
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Hearsay and Reliability in Sexual Assault Cases

Posted by Rory
in admissability, best lawyer in edmonton, burden of proof, criminal lawyer edmonton, hearsay, lawyer edmonton, reliability, ziv

R. v. B.P.  [2016] O.J. No. 3550 2016 ONSC 4244: Reliability

This is a case which addresses addresses issues of hearsay and reliability  in a sexual assault scenario.

Background

In this case the 9 year victim suffered from a “number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus.” The victim did not recall the incident in question, and his mother lead hearsay evidence against the accused, testifying that her son had told him of the alleged incident.

Analysis

The Ontario Superior Court of Justice found that the Trial Judge improperly admitted hearsay evidence in this case. There were problems with both procedural reliability and substantive reliability. The victim was not available for cross-examination, and the statement was not recorded in any way. As well, the surrounding circumstances indicated that there was a degree of unreliability about the statement.

The victim was suggestible and unreliable. As well, the victim’s mother was unreliable and her lack of credibility affected the reliability of the hearsay statement. The trial judge did not consider these important aspects regarding the hearsay statement, and improperly admitted it.

The Court also finds that the trial judge improperly accepted the evidence of the complainant and rejected that of the accused, shifting the burden of proof, and committing a basic error.

16 July
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Eyewitness Identification

Posted by Rory
in best lawyer in edmonton, criminal lawyer edmonton, Eyewitness Identification, Jury instruction, lawyer, lawyer edmonton, Murder, ziv

R. v. Bailey, 2016 ONCA 516, is an interesting case from the Ontario Court of Appeal on the perils of Eyewitness Identification.

Background

Bailey was charged with first degree murder during an attempted robbery. The mother of his victim identified him in court 2 ½ years after the alleged incident. Moreover, there was suggestion that the identification was improper because at other points in the criminal proceedings, most notably in the preliminary inquiry, the mother had testified that she was unable to identify the offender. The case involves an appeal of a conviction from the jury at trial, on the primary ground that the trial judge’s instruction on Eyewitness Identification was misdirection resulting in reversible error.

Analysis

The Ontario Court of Appeal finds in favour of the Appellant. The Court finds that it is not enough that a trial judge give model instructions regarding Eyewitness Identification. Instead, the instructions must be tailor made to reflect the particular situation before the jury. In this case, the Court found that it was not enough that the Judge urged the jury to give the Eyewitness Identification little weight and warned that it would be dangerous to rely on the Eyewitness Identification.

Instead, the Court ruled that in this case, the trial judge should have warned of specific dangers of the Eyewitness Identification evidence. These included the temporal gap in the original incident and the in court identification, earlier testimony by the victim’s mother that she was unable to identify the assailants, as well as the questionable nature of her claim that she was able to identify the appellant because she recognized his forehead.

There were other grounds of appeal in this case that the Court did not significantly address. On the question of whether the jury instruction regarding the “Jailhouse Informant” or the Vetrovec Instruction was proper, the Court reserves its verdict, finding it unnecessary to decide the appeal on this ground. Rather bizarrely, the Court goes on to suggest that the instruction was proper, and if anything if the instruction had been more “proper”, i.e. if the specific circumstances of the witness had been mentioned in this particular case it would have become clear that the dangers typically associated with jailhouse informants were less at play here, the jury would have been more likely to find against the Appellant.

This raises the question of whether the Court is suggesting that in situations unfavourable to the accused, instructions given to the jury regarding witness testimony may not need to be as context driven as in situations unfavourable to the accused.

On the Appellant’s suggestion that Crown Counsel’s closing comment, whereby it was pointed out that the Appellant did not introduce testimony from his friends or family for the purposes of alibi, had the effect of shifting the burden of proof and was improper, the Court notes that it does not think the comment was improper, and if it was it was significantly tempered by the Trial judge’s suggestion that the burden of proof rested at all times with the Crown.

16 July
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Conditional Discharges in Spousal Assault Cases

Posted by Rory
in Assault, best lawyer in edmonton, Conditional Discharge, criminal lawyer edmonton, Spousal Assault

Conditional Discharges in Spousal and Domestic Assaults

It would seem that Conditional Discharges in Spousal or other domestic assault cases are granted relatively easily.

R. v. A.G. [2005] A.J. No. 1226

is a case where conditional discharge was granted where the accused grabbed stool and threw it, took complainant by the hair and bent her head backwards, and struck her in the face. The accused was only scratched on the face by complainant. The accused was a police officer and the complainant did not want him charged. The parties used to be married, and had reconciled.

Sentence: Conditional discharge; 15 months’ probation; 100 hours community service; $100 victim fine surcharge.

R. v. Aymont [2008] A.J. No. 1150 2008 ABPC 285

A Conditional discharge imposed for 15 months, with accused on probation for that length of time. The couple were married. The nature of the assault is described as follows.

“Specifically, as the complainant Jenna Aymont proceeded upstairs purportedly to get the child and leave the residence, Trevor Aymont followed her, pushed her down onto the stairs, and began choking her. In her statement to the police Jenna Aymont indicated that this caused her to “black out a bit.” She responded to this by punching the accused in the face. The accused then dragged Jenna Aymont down the stairs she was on, but she then broke away and proceeded back up the stairs. The accused followed her to an upstairs bedroom where he again held her by her neck and slapped her several times with an open hand.”

R. v. D.E.D. [2007] A.J. No. 1531 2007 ABQB 508

This is another case where a conditional discharge was granted. This is a case of a father’s assault on his daughter.

“The Appellant put his right hand on D.D.’s neck and pushed her back onto a blanket on the bed where she was sitting, holding her there for a few seconds (without restricting her breathing) and telling her that he would find her and bring her back if she tried to run away again.” The Appellant also cuffed her on the left side of the head earlier.

R. v. Dunn [2013] A.J. No. 418 2013 ABQB 181

HELD: A conditional discharge and 12 months’ probation were imposed.

Sentencing of the accused, 43, for assault. The complainant was the accused’s wife. When she told the accused that the marriage was over, an argument ensued. The accused then pushed the complainant down onto the bed and crawled on top of her, pinning her to the bed. The accused had no prior record and pleaded guilty. Subsequent to this incident he attended counselling. Both spouses were employed as correction officers. The accused sought a conditional discharge.

R. v. Knowlton [2005] A.J. No. 193 2005 ABPC 29

Knowlton received a conditional discharge with a 20 month probationary period.

Sentencing of Knowlton following his guilty plea to a charge of common assault. Knowlton assaulted his estranged common law spouse while intoxicated. The assault involved slapping the complainant, pushing her to the floor, kicking her in the face and slamming her wrist between a door and its frame. The motive for the assault was jealousy. Police noted sizeable bruising and swelling on the complainant’s face, wrist and knee. Knowlton had no recollection of the assault when arrested the following day. Knowlton was an aboriginal man raised in an environment of alcohol abuse and physical violence. He had three children with the complainant with whom he reconciled following the offence. He attributed his difficulties in his life to alcohol, drug abuse, impoverished living conditions and the lack of employment opportunities on his Reserve. A positive presentence report stated that Knowlton abstained from drugs and alcohol following the offence. Knowlton also enrolled in school, attended counselling courses directed at anger management, spousal abuse and family violence prevention. Knowlton had a prior criminal record of two dated convictions.

R. v. Serafinchon [2009] A.J. No. 1139 2009 ABPC 308

A conditional discharge was imposed. The accused was placed on 18 months’ probation

Sentencing of the accused for assault. The accused pleaded guilty. The accused sought a conditional discharge. The complainant was the accused’s common law partner and the mother of his young child. The accused kicked her on the street while she lay at his feet. The complainant’s face was bloodied as a result of the injuries sustained in the assault. The accused, 26, was employed as a trucker. The parties reconciled after the incident and the accused had been taking steps in order to deal with issues of alcohol abuse. The accused has no prior criminal record and had shown remorse for the incident.