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Edmonton Criminal Lawyer Ziv > Posts tagged "best lawyer Rory Ziv"
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.

04 March
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Admissibility of 911 recordings

Posted by Rory
in 911 admissability, admissability

911 Recordings

Hearsay is presumtively inadmissible. 911 tapes are generally admissible because they fall under the res gestae exception. Alternatively, 911 tapes may also be admitted because they meet the necessity and reliability requirements under the principled approach. We can use both res gestae and the principled approach to question the admissibility of the 911 tapes.

Res Gestae:

R v Sylvain 2014 ABCA 153

“The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Khan (1988), 42 CCC (3d) 197, 27 OAC 142 at para 21 (Ont CA) [Khan]; R v Ratten, [1972] AC 378 at 389-391 (PC). Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained by Paciocco and Stuesser, supra at 177:

A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement caused by the event or condition.

[31] The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction: see R v Klippenstein (1981), 26 AR 568 at para 17, 57 CCC (2d) 393 (Alta CA); R v Clark (1983), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA); R v Slugoski (1985), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA). To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R v Dakin (1995), 80 OAC 253 at para 20, 1995 CarswellOnt 4827 (CA).

[32] The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R v Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of “excited utterances” comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.

R. v. DeSouza, [2012] O.J. No. 270 was a case where Ricchetti J. ruled in the course of pretrial applications, prior to the commencement of the jury trial, and importantly, on the basis of necessity, that the 911 tape was the best evidence of the state of mind of the complainant. However, he also acknowledged that there was no doubt that the statements made by the complainant during the 911 calls, being hearsay, would be inadmissible unless ruled to be spontaneous utterances or admissible under the principled approach exception to the hearsay rule. The key issue there was necessity and Ricchetti J. ruled that the statements were necessary.

 

[6] There are two basic requirements for a res gestae statement:

(1) there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer, and

(2) the statement of the declarant must have been a spontaneous reaction to the occurrence or event, and not the result of reflective thought. The rationale for the exception lies in the special reliability that is provided when excitement suspends the declarant’s powers of reflection and fabrication. See McCormick on Evidence, 5th ed. (St. Paul: West Group, 1999) Vol. 2, 204.

Cases where 911 tapes were not admitted

When Prejudice exceeds probative value: For example “however, the contents of the tape and the high-end emotions, screams, and specific accusations of sexual assault that it reflects, makes clear to me that it’s very high prejudicial effect relative to what I regard as its very limited probative value cannot permit the 911 tape to be played. Perhaps the result would be different on a judge alone trial, but I have concluded that the risk of the jury giving undue weight to that recording and not just for the limited purposes for which it is sought to be admitted, but in a wider context relative to the case as a whole, means that it cannot be played in this case”. R. v. Kamal Barua, 2012 ONSC 1817

Where reliability not established:

The call here was not an emergency call. The fact that it was made to 911 is merely an accidental feature of the case. Further, the caller was not describing ongoing events – the call was made two hours and fifteen minutes after the incident had ended and two hours after the police investigation had commenced. In short, the circumstances that carried the hearsay in Chrisanthopoulos over the threshold reliability hurdle are not present here

R. v. Campbell, 2012 ONSC 6743

Concoctions:

I am also concerned there might have been a motivation for this call to achieve an

objective other than to report an assault. In this regard, it is noteworthy that Ms. Garrick

testified she and Mr. O’Connell were arguing that evening because her cat was dying and Mr.

O’Connell was not willing to spend money for its care. In cross-examination Ms. Garrick

also indicated that when she made the call, she wanted Mr. O’Connell out of the house. R. v. O’Connell, 2007 ONCJ 536

 

Motive to fabricate:

The 911 call was inadmissible. The 911 call was made 16 minutes after the offence. In addition, the evidence established that Mowatt acted deliberately and made the call because she was angry at Harbin. Furthermore, there was no oath or warning with respect to the statement and Mowatt had motive to fabricate when she placed the call. Therefore, the telephone call was not made as part of the res gestae and did not meet the test of reliability- R. v. Harbin

[2008] O.J. No. 2158

 

This would be the Crown’s only evidence against the accused. There is nothing else. The basis for admissibility is said to be that the complainant’s 911 call is a res gestae (excited or spontaneous utterance) statement, or alternatively that it constitutes an exception to the hearsay rule as being necessary and reliable. The defence opposes the admission of this evidence, adding that in the particular circumstances of this case, the probative value of this evidence, even if admissible, would be outweighed by its prejudicial effect. [5] I agree with the defence position that this evidence should not be admitted. First, I do not consider the 911 call to constitute a res gestae statement. Second, while the complainant’s statements to the 911 operator are necessary to the Crown’s case since the witness has no memory of making the 911 call, and denies that she was assaulted by the accused, they are manifestly unreliable; thus they are inadmissible as an exception to the hearsay rule. Finally, I would decline to admit the 911 call for a third reason: it would cause prejudice to the accused and the trial process; the prejudicial effect of the evidence is out of proportion to its probative value. The evidence is therefore ruled inadmissible. R. v. Grahovac, 2008 ONCJ 211

 

PRINCIPLED APPROACH

In R. v. Khelawon , (2006), 215 C.C.C. (3d) 161 the Supreme Court of Canada stated that where an established exception to hearsay does not apply to evidence that is sought to be adduced, it may be admissible if it is both reasonably necessary to admit the evidence and the evidence is sufficiently reliable. It is important to note that such evidence is presumptively inadmissible and that courts must find indicia of trustworthiness sufficient to displace the general exclusionary rule.

Necessity: R. v. Parrott.  [2001] S.C.J. No. 4: Necessity cannot be assumed, it must be demonstrated. In this case, the court found that the

“Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.”

In our case, we may question why more efforts have not been made to ensure the complainant’s presence in the court.

Reliability: The analysis here overlaps with what could be argued in challenging whether the 911 tapes on the facts properly belong to the res gestae exception. It would be useful to argue that while the 911 tapes were contemporaneous (an important part of the res gestae exception), there is a possibility that they may have been concocted….

13 October
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Pat-Down Searches

Posted by Rory
in Pat-Down Searches

Pat-Down Search

Until 2004 the scope of police powers regarding their authority to do pat-down searches was uncertain.

In fact, as a law student I particularly found this area of the law especially interesting. Since 2004, the contours and limits of pat-down law have been for the most part well defined. Some recent cases have re-ignited the scope of the pat-down search.

1993

Up until 1993, in Canada, a police officer had no power or authority to conduct a pat-down search on a person unless they had reasonable and probable grounds to arrest that person for an offence. I have no doubt that as a matter of routine, pat down searches were conducted all the time, under the genuine concern for officer safety or perhaps as a ruse or guise to search for evidence. In the latter case such a search would really have been conducted on nothing more than suspicion, an educated guess based on “officer experience”.  In any, event prior to 1993 a bright line existed in the law: detention of a person and search was only permissible if a police officer had reasonable and probable grounds to arrest a person.  In 1993 in a case called R. v. Simpson (1993) 12 O.R. (3d) 182 the Ontario Court of Appeal decided that the police did not have what they termed “articulable cause” a term borrowed from U.S. jurisprudence to stop and do a pat-down search on the individual they were stopping. In that case, police followed a suspect from a known drug house. They stopped his vehicle, and did a “pat-down” search located narcotics. The Court excluded the evidence and held that the police did not have articulable cause to stop and search for investigative purposes which they defined as:
. . . a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

Although Mr. Simpson was acquitted, this decision ushered a new era in Canadian police enforcement. For the first time, a Canadian Court recognized a police power that fell below the status quo level “reasonable and probable grounds”.

2004

In 2004 the Supreme Court of Canada rule on a case R. v. Mann 2004 SCC 52 and endorsed the Simpson decision but replaced the terminology of articulable cause with “reasonable grounds”. The Court held that a pat-down search was permissible but only to the extent necessary to secure officer safety. A police first had to genuinely feel it necessary to conduct a pat-down search for his/her safety. Second, the search would not allow him to search pockets or objects on a person that were non-threatening. For example, a handbag may be searched or patted down but unless an hard object is felt inside the bag there would be no reason to open up the bag.

2015

Some recent cases have questioned the police practice of doing pat-down searches when investigation persons for impaired driving offences. See for example R. v. Schwab 2015 AJ No 903. Simply, if a motorist is transported to a police vehicle for a screening test (assuming that transport is valid), what gives a police officer the right to conduct a pat-down search on the person as a matter of practice?

Certainly, we have not heard the end of the pat-down search issue in relation to impaired driving cases. I will eagerly await an Appellate case and post if one becomes available.