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Procedure - Trial judge’s duties - Charge or directions - Defences

Thursday, November 24, 2016 @ 7:00 PM  

Appeal by the accused, Mangatal, from convictions for aggravated assault, discharge of a firearm with intent, and possession of a restricted firearm. The complainant was shot in the leg in a residential neighbourhood in the late afternoon. Witnesses saw two men run from the scene. The accused was arrested shortly thereafter holding a sweatshirt wrapped around a handgun. Police also seized a cell phone. At trial, the judge held that the phone was seized and searched in breach of the accused’s s. 8 Charter rights. The trial judge admitted the evidence, finding no wilful bad conduct by police, as they had acted on legal advice that a warrant was unnecessary to view the text messages on the phone. The text messages indicated a plan to target the victim in the shooting. Physical evidence linked the accused to the shooting. The accused testified and denied any involvement in the shooting. He stated that he held the clothing containing the gun at his cousin’s request without knowledge of the firearm. He denied knowledge or ownership of the cell phone. He was convicted by a judge sitting with a jury. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in ruling that the cell phone contents were admissible pursuant to s. 24(2) of the Charter. Any error in the trial judge’s analysis inured to the benefit of the accused, as he had disclaimed ownership of the phone and therefore had a lessened expectation of privacy in its contents. The trial judge was entitled to consider the legal advice sought by police as an indication of an absence of bad faith. The charge to the jury, when read as a whole, did not contain any reversible error. The charge, albeit succinct, distilled the essence of the defence theory that the accused was an innocent passerby in the neighbourhood when the shooting occurred and briefly had possession of the firearm used in the shooting without his knowledge or consent. Given the accused’s position, there was no need to include a charge regarding his role as a party to the offence.