3-Year Mandatory Minimum for Gun Trafficking Found Unconstitutional
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My July 8th segment on the “Crime and Punishment” radio show with Mike McIntyre.
Wait for it to load, then fast-forward to 35:00.
[To protect client privacy, no names or initials are provided.]
Charter Application (11b)- Ontario Court of Justice (Toronto)
Charges: Fraud over $5,000, Possession of Property Obtained by Crime over $5,000, Utter Forged Document
Allegations: Client accused of setting up a credit card in another individual’s name, periodically making minimum payments on the fraudulent credit card and transferring thousands of dollars to his bank account.
Application: Client’s constitutional right to trial within a reasonable time enshrined in s. 11(b) of the Canadian Charter of Rights and Freedoms was violated. The combined Crown and institutional delay of over 13 months was beyond constitutional limits.
Result: Charges stayed at the request of the Crown. Prior to the hearing, the Crown re-evaluated its case and found no reasonable prospect of conviction.
Charter Application (s. 8)- Ontario Court of Justice (Scarborough)
Charge: Fail to Comply (Recognizance)
Allegations: Client was in the front passenger seat of his brother’s car. Police conducted a traffic stop due to an expired license plate tag. Upon further investigation, the officers discovered that Client was breaching his House Arrest.
Application: In questioning Client as to his identity, the police violated his constitutional right to be free from unreasonable search and seizure enshrined in s. 8 of the Canadian Charter of Rights and Freedoms. The investigation should have been limited to the driver of the vehicle.
Result: Charge withdrawn at the request of the Crown before commencement of trial.
Trial- Ontario Superior Court of Justice (Toronto)
Charge: Sexual Assault.
Allegations: Client and Complainant were co-workers meeting up for a drink. Client invited Complainant back to his apartment, forced himself on her, penetrated her vagina and ejaculated on her blouse.
Evidence: Client made a video statement denying any sexual relations with Complainant. There was DNA evidence of Client’s semen on Complainant’s blouse. Client testified in court that he was nervous and afraid at the time of the statement and that Complainant gave him a “hand job” in his car against his will resulting in his semen on her blouse. Complainant testified that she went back to Client’s apartment voluntarily, engaged in some consensual kissing, but did not consent to anything beyond that.
Submissions/Defence Position: Complainant’s (larger woman) testimony that Client pinned her arms above her head with one arm, while removing both his pants and her pants with his other arm defied conventional wisdom. Complainant’s testimony that she had a cigarette with Client and hugged him good-bye afterwards was inconsistent with non-consensual sexual activity taking place. Even if Client’s evidence was rejected, Complainant’s version of events left reasonable doubt.
Verdict (Jury): Not Guilty.
Trial- Ontario Court of Justice (Brampton)
Charges: Possession of a Weapon for a Dangerous Purpose, Assault with a Weapon, Uttering Death Threats, Fail to Comply (Recognizance).
Allegations: Client went back into his apartment after losing a fight. Client came back out with a machete and chased Complainants down the hall and into the courtyard. Client hit the fence with the machete screaming “I’m gonna kill you! I’m gonna fuck you up! I’m gonna cut you up!”.
Evidence: Five civilian witnesses testified that Client had the machete in his hand and was pursuing Complainants. On cross-examination, one witness admitted that one of the Complainants had “something in her pants” that “could have been a knife..could have been a club.” Though one witness testified that Client did threaten to kill one of the Complainants, the other witnesses testified that Client and Complainants were all basically just yelling and arguing back and forth. Client testified that he only grabbed the machete after losing a fight with one of the Complainants and seeing other Complainant with a knife in her hand.
Submissions: Self-defence could apply even if Client provoked the fight. After being beaten up by one of the Complainants, who outweighed him by about 50lbs, and seeing the knife in the other Complainant’s hand, detached reflection was not a luxury available to Client. While Client may have screamed profanities at Complainants, the evidence was clear that Complainants did the same to Client.
Verdict: Not Guilty (all charges).
Bail Hearing- Ontario Court of Justice (Brampton)
Outstanding Charges: Possession for the Purpose of Trafficking (Cocaine, Heroin, Marijuana), Possession of Property obtained by Crime, Possession of a Prohibited Firearm with Ammunition, Unauthorized Possession of a Firearm, Possession of a Firearm Knowing its Possession is Unauthorized, Careless Use of a Firearm, Possession of a Weapon for a Dangerous Purpose.
New Charges: Fail to Comply Recognizance, Obstruct Peace Officer.
Allegations- Reverse Onus: Client was on house arrest for serious gun and drug charges. Client was caught leaving a bar without his surety. Client gave the police a fake name when questioned. It was incumbent on Client to Show Cause why he should be released for a 2nd time.
Result: Surety Release. [All charges stayed at Preliminary Hearing in December]
December 2010- January 2011
Trial- Ontario Court of Justice (Toronto- Old City Hall)
Charges: Point Firearm, Use Firearm while Committing Indictable Offence, Assault, Utter Death Threat.
Allegations: Client and Co-Accused got into an argument with female Complainant during drive home from party. Client slams Complainant’s head into back of driver’s seat and chokes her. Client then jams a gun into Complainant’s neck while Co-Accused jams a gun into the back of her head. Client and Co-Accused threaten to kill Complainant and drop her in a lake.
Evidence: Complainant testified, contrary to her sworn video statement to police, that Client choked her after dragging her out of the car (as opposed to inside the car). On cross-examination, Complainant admitted that she gave a third version of events to another officer before giving her sworn video statement. On further cross-examination, Complainant eventually acknowledged that she was not sure if any gun was used at all.
Submissions: Complainant’s multiple versions of the same events exhibited a “carelessness with the truth” that would make it extremely dangerous to accept her evidence on any of the allegations facing Client, let alone the assertion that a gun was used.
Verdict: Not Guilty (all charges).
Judicial Pre-Trial- Ontario Court of Justice (Toronto- Old City Hall)
Charges: Possession for the Purpose of Trafficking (Marijuana), Possession of Proceeds of Crime.
Allegations: Police Officers attended an apartment complex in response to gun shots fired in the parking garage. During their investigation, they entered a unit in which Client and one Co-Accused were present, along with, among other things, large quantities of marijuana.
Result: Charges stayed at the request of Crown.
Withdrawal of Charges- Ontario Court of Justice (Oshawa)
Charges: Conspiracy to Commit Indictable Offence, Fraud over $5,000.
Allegations: Client and Co-Accuseds were involved in a conspiracy whereby they used fraudulent identification to open bank accounts and attempted to cash stolen cheques.
Disclosure Review/Judicial Pre-Trial: Disclosure did not provide any evidence of clear link between Client and Co-Accuseds who were more directly involved in conspiracy at banks. After Judicial Pre-Trial, Crown Attorney agreed to withdraw the charges.
Result: Charges withdrawn.
Guilty Plea/Withdrawal of Charges- Ontario Court of Justice (Downsview- 1000 Finch)
Charges: Robbery (x3), Use Imitation Firearm while Committing Indictable Offence(x3), Wear Disguise with Intent to Commit Indictable Offence (x3).
Allegations: Client arrested along with Co-Accused after using an imitation firearm to rob a pharmacy. Client and Co-Accused both wearing balaclavas. Co-Accused made video statement to police admitting responsibility for several other robberies at other pharmacies and gas stations. During two of these robberies, Co-Accused was accompanied by another (masked) individual believed to be Client.
Disclosure Review/Crown Pre-Trial: Upon review of disclosure, witnesses did not provide sufficiently specific evidence as to the identity of the other masked individual. After Crown and Judicial Pre-Trials, Crown Attorney agreed to withdraw the charges from the other two robberies in exchange for a guilty plea to the first robbery.
Result: Client pled guilty to Robbery/Use Imitation Firearm/Wear Disguise (x1). Robbery/Use Imitation Firearm/Wear Disguise (x2) withdrawn.