R. v. Kitaitchik (A.), (2002) 161 O.A.C. 169 (CA)

• Judge: Doherty, Goudge and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 27, 2002
• Jurisdiction: Ontario
• Citations: (2002), 161 O.A.C. 169 (CA);2002 CanLII 45000 (ON CA);2002 CanLII 45000 (NS CA);166 CCC (3d) 14;4 CR (6th) 38;[2002] OJ No 2476 (QL);161 OAC 169;95 CRR (2d) 135

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JN.057

Her Majesty the Queen (respondent) v. Albert Kitaitchik (appellant)

(C32740)

Indexed As: R. v. Kitaitchik (A.)

Ontario Court of Appeal

Doherty, Goudge and MacPherson, JJ.A.

June 24, 2002.

Summary:

The accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 10 years. The accused appealed.

The Ontario Court of Appeal, in a decision reported at [1998] O.A.C. Uned 110, allowed the appeal and ordered a new trial. On his retrial, the accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 12 years. He appealed the conviction and the parole ineligibility period.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - The accused was arrested for possession of stolen property (belonging to a murder victim) - His clothing was seized and he was given a fresh set of clothes - The accused was subsequently arrested for and convicted of murder - The trial judge found that the seizure of the accused's clothing violated s. 8 of the Charter, but declined to exclude the evidence under s. 24(2) - On appeal, the accused challenged the decision under s. 24(2), arguing that the trial judge misapprehended the seriousness of the breach and that the accused was subjected to the equivalent of a strip search - The Ontario Court of Appeal rejected the argument - The accused was not subjected to a strip search - The seizure was effected quickly without any apparent embarrassment to the accused - It also occurred while the accused was lawfully in police custody and he had a reduced expectation of privacy - See paragraphs 30 to 33.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1444 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was arrested for possession of stolen property (belonging to a murder victim) - His clothing was seized - The accused was subsequently arrested for and convicted of murder - The trial judge found that the seizure of the accused's clothing violated s. 8 of the Charter as the power to seize as an incident of arrest did not extend to the seizure of things which could afford evidence of a crime other than the crime for which the person was arrested - However, the trial judge declined to exclude the evidence under s. 24(2) - On appeal, the accused challenged the decision under s. 24(2), arguing that the trial judge erred in finding that the officer who directed the seizure had acted in good faith - The accused submitted that the officer should have known that he could not seize the clothing and that the term good faith applied only to conduct which an officer honestly and reasonably believed to be lawful - The Ontario Court of Appeal held that the officer's mistaken belief that he could seize the clothing was not unreasonable given the state of the law in 1991 when the seizure was made - See paragraphs 38 to 40.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused appealed his conviction for second degree murder - He challenged the trial judge's decision under s. 24(2) of the Charter to admit evidence which was obtained in breach of s. 8 of the Charter (clothing seized from the accused) - The accused argued that the trial judge erred in finding that the police officer who directed the seizure of the accused's clothing had acted in good faith - The Ontario Court of Appeal stated that it did not think that appellate review of a trial judge's s. 24(2) assessment should fixate on the legal label that the trial judge attached to the police conduct - Police conduct could run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights - What was important was the proper placement of the police conduct along that fault line, not the legal label attached to the conduct - See paragraph 41.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was arrested for possession of stolen property (belonging to a murder victim) - His clothing was seized - The accused was subsequently arrested for and convicted of murder - The trial judge found that the seizure of the accused's clothing violated s. 8 of the Charter as the power to seize as an incident of arrest did not extend to the seizure of things which could afford evidence of a crime other than the crime for which the person was arrested - However, the trial judge declined to exclude the evidence under s. 24(2) of the Charter - In reviewing the trial judge's decision under s. 24(2) on appeal, the Ontario Court of Appeal observed that: (1) on an objective assessment, the officer did have reasonable and probable grounds to charge the accused with murder at the time he seized the clothing; and (2) the clothing was capable of providing evidence to support the possession of stolen property charge - The court stated that these two considerations mitigated the seriousness of the breach and placed the officer's conduct towards the blameless end of the fault spectrum - See paragraphs 43 to 45.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused appealed his conviction for second degree murder - He challenged the trial judge's decision to admit evidence which was obtained in breach of s. 8 of the Charter - The accused submitted that while the trial judge relied on R. v. Lewis (Ont. C.A.) to support his conclusion that exclusion of the evidence would bring the administration of justice into disrepute, R. v. Lewis spoke only to a case in which the challenged evidence was essential to the prosecution, which was not the case here - The Ontario Court of Appeal rejected the accused's submission as reading R. v. Lewis too narrowly - The last stage of the R. v. Collins (S.C.C.) inquiry asked whether the vindication of the specific Charter violation through the exclusion of evidence extracted too great a toll on the truth seeking goal of the criminal trial - In making that assessment, a court should consider the seriousness of the alleged offence, the reliability of the challenged evidence, and the importance of that evidence to the case - See paragraphs 46 to 48.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused appealed his conviction for second degree murder, arguing that the trial judge erred in holding that evidence obtained in breach of s. 8 of the Charter was admissible - The accused submitted that the trial judge misapprehended the evidence with respect to the seriousness of the breach when he concluded that the s. 8 breach was not part of a pattern of repeated deliberate Charter breaches - The accused referred to alleged breaches of his ss. 10(a) and 10(b) Charter rights, which had not been raised at trial - The Ontario Court of Appeal held that it would not be appropriate to deal with Charter issues which were not addressed in the trial record - In addition to the inadequacy of the trial record, the argument advanced for the first time on appeal would fundamentally alter the nature of the admissibility inquiry - See paragraphs 33 to 37.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - The accused appealed his conviction for second degree murder - He submitted that the trial judge's interventions during cross-examination of the main Crown witness resulted in a miscarriage of justice either by preventing counsel from conducting a proper cross-examination, or by leaving the jury with the impression that the trial judge was placing his authority on the side of the prosecution and against the defence - The Ontario Court of Appeal rejected the argument - While some of trial judge's interjections evinced an impatience with defence counsel, impatience or annoyance with defence counsel did not equate to judicial support for the witness or denigrate the role of counsel - Most of the trial judge's interjections were appropriate - Those that could be described as improper were isolated and relatively innocuous and did not result in a miscarriage of justice - See paragraphs 8 to 14.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting cross-examination of witnesses - [See Courts - Topic 555 ].

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - [See Courts - Topic 555 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Civil Rights - Topic 8584 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Criminal Law - Topic 5816.3 ].

Criminal Law - Topic 5816.3

Sentencing - Sentencing procedure and rights of the accused - On new trial - The accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 10 years - An appeal was allowed and a new trial ordered - On his retrial, the accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 12 years - The accused appealed, arguing that as the evidence was no different at the second trial, the trial judge should have imposed the same parole ineligibility period as was imposed at the first trial - The Ontario Court of Appeal found no error in the trial judge's departure from the sentence imposed at the first trial - The Crown had appealed the parole ineligibility period imposed at the first trial, but that appeal was not reached because the conviction appeal was allowed - The sentence imposed by the first trial judge was also tainted where she had failed to recognize that the length of time spent in pretrial custody was irrelevant to the determination of the appropriate period of parole ineligibility - See paragraphs 50 to 55.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122; 33 C.C.C.(3d) 1; 38 D.L.R.(4th) 508, appld. [para. 27].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 28].

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 48 C.R.(5th) 199 (S.C.C.), refd to. [para. 29].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404; 33 C.R.(4th) 147; 24 C.R.R.(2d) 51; 119 D.L.R.(4th) 74, refd to. [para. 29].

R. v. Golden (I.V.) (2001), 279 N.R. 1; 153 O.A.C. 201; 159 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 30].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57; [1989] 1 W.W.R. 97; 66 C.R.(3d) 97, refd to. [para. 32].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289; 4 C.R.(4th) 144; 3 C.R.R.(2d) 315, refd to. [para. 34].

R. v. Jamieson (A.), [1998] O.A.C. Uned. 552; 131 C.C.C.(3d) 347 (C.A.), refd to. [para. 36].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 39].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 39].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 40].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405, refd to. [para. 47].

R. v. Harriot (2002), 58 O.R.(3d) 1 (C.A.), refd to. [para. 51].

Authors and Works Noticed:

Hill, The Role of Fault in Section 24(2) of the Charter, The Charter's Impact on the Criminal Justice System (1996), p. 56 [para. 41].

Counsel:

David E. Harris, for the appellant;

Rosella Cornaviera and Joan Barrett, for the respondent.

This appeal was heard on May 27, 2002, before Doherty, Goudge and MacPherson, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on June 24, 2002.