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Criminal Law: DUI; Involuntary Intoxication 

Garneau v. R., 2023 QCCA 131 (40754)
Mr. Garneau was arrested for erratic and dangerous driving. The evaluating officer and the toxicology expert, in her report, concluded that he had consumed central nervous system stimulants and depressants, including gamma hydroxybutyrate (GHB). Mr. Garneau claimed that he had not voluntarily consumed GHB. He suggested that his roommate could have put GHB in his bottles of lemon flavoured water, which he had consumed throughout the day. The trial court convicted Mr. Garneau of impaired driving because his defence of involuntary intoxication, considered in light of the evidence as a whole, did not raise a reasonable doubt. The Que. C.A. dismissed the appeal from the conviction and dismissed the application for leave to appeal the sentence given the mootness of the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Evidence Exclusion

Lambert v. R., 2023 NSCA 8 (40672)
A police investigation led to the seizure of 157 keys of cocaine and the arrests of Mr. Lambert and three co-accused. Mr. Lambert and two co-accused filed applications to exclude evidence. The trial judge found multiple Charter breaches. She excluded some evidence and admitted other evidence. Mr. Lambert was convicted of conspiracy to import cocaine, attempt to traffic cocaine, attempt to possess cocaine for the purposes, and conspiracy to traffic cocaine. The N.S.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Harassment

Howe v. R., 2023 ONCA (40792)
The Applicant was in jail for criminal harassment of an employee of the university where he was a student; he was suspended from the university as a result and directed not to contact university personnel. Within hours of his release from custody, he replied to an email informing him of the suspension with a meme depicting Obi-Wan Kenobi from Star Wars captioned “If you strike me down I will become more powerful than you could possibly imagine”. The university’s director of campus security, who was aware of the Applicant’s criminal history, received the email. Police charged the Applicant with criminally harassing the director of security. The Applicant was convicted at trial. In the context of the Applicant’s criminal history with a university employee, his recent release from custody, and the receipt of the impugned communication by a staff member that the Applicant was directed not to contact, his conduct was threatening within the meaning of the Criminal Code. The complainant’s fear for his safety was reasonable, and the Applicant was reckless as to whether his conduct would harass the complainant. On appeal, the summary conviction appeal judge found no error. The trial judge’s findings of fact about the context of the communication supported his conclusions that the conduct was objectively threatening, that the complainant’s fear was reasonable, and that the Applicant was reckless as to whether the complainant would be harassed. The Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Party Liability

R. v. Johnson2022 ONCA 5342023 SCC 24 (40330)
Kasirer J.: “We are all of the view that the majority in the Court of Appeal was correct to conclude that party liability was properly left to the jury by the trial judge. The evidence on the record provided party liability with an air of reality. We agree, however, with Nordheimer J.A., dissenting, that the trial judge erred in law in his instructions on party liability. In one part of the charge, the judge gave instructions that resembled co-principal liability, but said he was instructing on aiding. In other parts of the charge, the jury was given partially correct instructions on aiding. We share Nordheimer J.A.’s view that the jury was never clearly told that the appellant would have needed to know that the principal intended to kill the victims in a planned and deliberate manner in order to be liable for first degree murder as an aider. That said, we would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, because these errors were harmless. There is no reasonable possibility that the jury would have reached a different verdict had these errors not been made (see R. v. Abdullahi, 2023 SCC 19, at para. 33; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25). The evidence that supported party liability was the same as the evidence for co-principal liability. Moreover, the appellant’s defence was not undermined by the jury charge. Accordingly, we would dismiss the appeal.”

Criminal/Constitutional Law: Forfeiture; Division of Powers

Angel Acres Recreation and Festival Property Ltd. and All Others Interested in the Property, et al. v. Director of Civil Forfeiture, et al., 2023 BCCA 70 (40688)
The Director of Civil Forfeiture sought the forfeiture of three “Angel Acres” clubhouses belonging to motorcycle enthusiasts whose mission statement may be primarily non-philanthropic, pursuant to the Civil Forfeiture Act (“CFA”) on the basis of the allegation the clubhouses would, in the future, likely be used as instruments of unlawful activity. The Applicants provided a defence at trial and challenged the constitutionality of the instruments of unlawful activity provisions of the CFA on the basis that those provisions are ultra vires the legislative authority of the province.The trial judge held that the provisions of the CFA about property that has been used to engage in unlawful activity (i.e. past use) were intra vires the province, but the provisions about property that was likely to be used to engage in unlawful activity (i.e. future use) were ultra vires the province because their dominant purpose and effect was to punish criminal propensity and was therefore in relation to criminal law. On the application for forfeiture, the trial judge concluded that the Director had not proven that one or more of the clubhouses was in the future likely to be used as an instrument of unlawful activity and dismissed the Director’s claims. On appeal, the B.C.C.A allowed the Attorney General’s appeal and held that the future use prong of unlawful activity was intra vires the province. It also allowed the Director’s appeal and ordered forfeiture of the clubhouses. It held that the trial judge erred in his interpretation of the phrase “property that is likely to be used to engage in unlawful activity,” and that he committed several errors in aspects of his fact‑finding process in relation to the evidence relevant to the use of the clubhouses. Absent error, the trial judge should have taken account of certain evidence and relied on certain inescapable inferences. When these additional findings were considered along with the findings of the judge that were unchallenged, the inference was inescapable that the clubhouses were likely to be used in the future as they had been in the past: to enhance and facilitate their members’ ability to commit unlawful acts. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Mandatory Minimums

Attorney General of Quebec v. Darrell Griffith, 2023 QCCA 301 (40702) 
The Respondent, Darrell Griffith, was convicted by a jury of offences arising under ss. 244.2(1)(b)(3)(a) and 95(2)(a), in this case the discharge of a restricted or prohibited firearm without regard of the life or safety of others and the possession of such a weapon without holding the authorization permits or registration certificate required by law. At the sentencing trial, Mr. Griffith challenged the constitutional validity of the minimum sentences of four years of imprisonment provided for in art. 244.2(3)(b) and five years of imprisonment provided for in art. 244.2(3)(a)(i) on the grounds that they constitute cruel and unusual punishment within the meaning of art. 12. The Qué. Superior Court judge sentenced the Respondent to a sentence of 81 months and 60 months in prison to be served concurrently, and refrained from ruling on the constitutional questions raised. The Qué. C.A. granted permission to appeal the sentence; stated that the Superior Court judge had to answer the constitutional question regarding the minimum sentence; the dismissed constitutional challenge due to an incomplete record; and rejected the sentence appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Search & Seizure; Pat-Downs

Dhillon v. R., 2023 BCCA 38 (40638)
During a Motor Vehicle Act stop in B.C., the police observed that the Applicant appeared startled when the police drove past him in a high crime area. He appeared agitated and nervous when he was pulled over. The police decided to conduct a pat-down search because of safety concerns arising from the Applicant’s behaviour, and when the officer attempted to do this, she noticed the Applicant tried turning one side of his body away from her where he had a bag hanging across his body. The police observed what they believed to be drug paraphernalia and detained the Applicant for a drug investigation. Upon continuing the pat-down search, the police felt a gun in the Applicant’s bag and arrested him, and further advised him of his Charter rights. The trial judge held a voir dire to determine whether the Applicant’s ss. 8 and 10(b) rights were violated. The judge held that the Applicant’s Charter rights were not violated. The Applicant was convicted of six firearms offences. The B.C.C.A. dismissed the appeal. ‘The motion for an extension of time to serve and file the response is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault

W.M v. R., 2023 SKCA 32 (40738)
There is a publication ban in this case, in the context of a Browne v. Dunn ruling. “The application for leave to appeal…is dismissed.”

Criminal Law: DUI

Kuffuor v. R., 2023 ONCA 107 (40636)
The police responded to three 911 calls reporting a single vehicle accident, the first one received at 1:46 a.m. When the police attended the scene, a damaged vehicle was on the grassy median. There was no one in the vehicle and no one, aside from first responders, on the scene. The car was registered in the name of Mr. Kuffuor. Shortly thereafter, Mr. Kuffuor arrived at the scene of the accident on foot. The trial judge accepted the officer’s evidence that he believed he had reasonable and probable grounds to arrest Mr. Kuffuor for impaired driving. The toxicologist’s report established that at the time when the accident likely occurred as decided in reference to various 911 calls, Mr. Kuffuor would have had a blood alcohol level above the legal limit and in the toxicologist’s opinion he would have been impaired. Mr. Kuffuor was convicted of impaired driving and driving with a blood alcohol concentration over the legal limit. His conviction appeal was dismissed and the convictions were upheld. His application for leave to appeal was dismissed by the Court of Appeal. “The miscellaneous motions are dismissed. The application for leave to appeal…is dismissed.”

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