R. v. O.P.

Charges:

Possession for the Purpose of Trafficking and Possession of Property Obtained by Crime

Facts:

Police officers observed O.P. and a second individual seated in a parked vehicle.  O.P. was seated in the driver seat and the second individual was seated in the rear passenger seat.  The individual in the rear passenger seat was consuming alcohol and as a result the police searched the car for more alcohol.  During the search, cocaine was located in the cup holder between the driver seat and the front passenger seat.  Consequently, O.P. was arrested for possession of cocaine for the purpose of trafficking.  Subsequently, O.P. was searched and found to be in possession of three bundles of cash located within three different pockets.  O.P. was then arrested for being in possession of property obtained by crime.

Result:

O.P. testified that the cocaine belonged to a third individual who had been in the vehicle a few minutes prior to the police officers’ arrival.  He further testified that the money was obtained through perfectly legal means. Ultimately, the jury was unsure whether or not the drugs belonged to O.P. or the money was obtained through the commission of a crime and acquitted O.P. of all charges.

R. v. S.M.

Charges:

Robbery with a Restricted/Prohibited Firearm, Use Imitation Firearm in the Commission of an Indictable Offence, Possession Restricted/Prohibited Firearm, Weapons Dangerous, Threaten Death and Threaten Bodily Harm.

Facts:

S.M. and two males entered the victim's apartment through the front lobby entrance. S.M. met the victim in a stairwell on the third floor where the two of them conversed for several minutes. The victim then left to get a cigarette and when he returned, S.M. and the two males allegedly pointed a rifle and a revolver at the victim and demanded that he empty his pockets.  The victim and his family was allegedly threatened.  S.M. and the two men then allegedly attempted to invade the victim's home.  However, the victim locked the door on them and called the police. S.M. and the two unknown males were caught on video running out of the apartment - one of the unknown males carrying what appeared to be rifle.

Result:

Mr. Nishio argued that although the victim was robbed, he was lying about S.M.'s involvement in the robbery.  S.M. testified that the victim was only robbed by the two unknown males, but felt betrayed by S.M. because they used to be close friends.  In an act of revenge, the victim decided to tell the police that S.M. was involved in the robbery and that he was carrying a revolver. The jury found S.M. not guilty on all counts.

R. v. D.S. et al.

Charges:

Possession for the Purpose of Trafficking Cannabis (5 lbs) and Possession Cannabis.

Facts:

Police officers attended a residence that was occupied by D.S., as well as a number of other individuals.  The police then located a black garbage bag in one of the freezers within the residence.  Inside the bag was a "dry, green, leafy substance," weighing approximately 5 lbs, which was believed to be Cannabis.  Consequently, all of the occupants of the residence were arrested. Mr. Nishio challenged the admissibility of the evidence that the Crown intended to rely on in order to prove that the "dry, green, leafy substance," was in fact cannabis.

Result:

The judge agreed with Mr. Nishio's submissions and consequently the Crown stayed all of the charges against all of the accused.

R. v. D.Y.

Charges:

Trafficking Heroin, Trafficking Cocaine, Possession Cocaine, Possession Marihuana, Possession of Proceeds of Crime (x2) andFail to Comply (x3)

Facts:

D.Y. was arrested for Trafficking Cocaine, Possession Cocaine and Possession Proceeds. He was then released on bail with a surety. Subsequently, D.Y. allegedly trafficked heroin to an undercover police officer and breached three of his bail conditions. D.Y. was arrested, later on, and allegedly found to be in possession of a quantity of marihuana and proceeds of crime. The Crown was vehemently opposed to D.Y.'s release because of the seriousness of the allegations and the seriousness of D.Y.'s criminal record, which included drug offences and breaches of court orders. The Crown argued that based on the above reasons there was a substantial likelihood that D.Y. would continue to traffick drugs if released on bail.

Mr. Nishio argued that under section 11(d) of the Canadian Charter of Rights and Freedoms, "any person charged with an offence has the right not to be denied reasonable bail without just cause". In this case, "just cause" would only be established if the Court believed that D.Y. would continue to traffick drugs while on bail. Although D.Y. had a criminal record for drug offences and breaching court orders, Mr. Nishio argued that D.Y. had been sentenced and punished for his past mistakes and that our criminal justice system deemed D.Y. to have been rehabilitated after the completion of his sentence.  Consequently, D.Y.'s criminal record was a poor indication of furture behaviour. Although the Court could consider the current allegations in determining whether or not D.Y. would continue to traffick heroin and/or cocaine, Mr. Nishio reminded the Court that D.Y. is innocent until proven guilty and that mere allegations are also a poor indication of future behaviour. In the end, Mr. Nishio fought tooth and nail for D.Y. to be released on bail, under a strict house arrest condition, which would ameliorate any concerns that D.Y. would continue to traffic drugs.

Result:

After a long contested bail hearing, D.Y. was released on bail under a strict condition of house arrest.

R. v. O.W.

Charges:

Attempt Theft and Assault Resist Arrest

Facts:

O.W. and his girlfriend entered a pharmacy, walked down an aisle, selected two items and then proceeded to the check-out counter. When they arrived at the check-out counter, they realized that one of the items was not what they had originally intended to purchase. Consequently, they walked back to the aisle and put the item back on the shelf.  The two of them then returned to the check-out counter to purchase the remaining item.

An undercover security guard claimed he observed O.W. and his girlfriend enter the pharmacy, walk down an aisle, select three items, remove the security tags and plastic wrap from two of the items and then conceal them in O.W.'s jacket pocket. Consequently, the security guard followed O.W. and his girlfriend to the check-out counter and then back to the aisle where he claimed O.W. and his girlfriend put the merchandise back onto the shelf because they realized that they were being followed by security. When O.W. and his girlfriend returned to the check-out counter, the security guard confronted them and demanded that they leave the store immediately. Outraged by the security guard's false accusations, O.W. and his girlfriend demanded to speak to a manager, however a manger was not on duty.  The security guard then told O.W. and his girlfriend that they had three seconds to leave before he arrested them for failing to leave immediately.  The security guard counted to three and then told O.W. and his girlfriend that they were under arrest. Next, O.W. and his girlfriend decided to leave the store. A struggle ensued and O.W. and his girlfriend were subsequently arrested for attempted theft, assault and assault resist arrest.

Result:

Section 2 of the Trespass to Property Act states, "every person who is not acting under a right or authority conferred by law and who… …does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2000."  In addition, section 9 states, "a police officer, or the occupier of premises, or a person authorized by the occupier, may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2". Consequently, the security guard believed that he could arrest O.W. and his girlfriend for not leaving the store immediately after being asked to do so. 

However, Mr. Nishio argued that use of the word "immediately," in section 2 of the Trespass to Property Act, should not be interpreted literally.  Instead, the word ought to be interpreted with a wider scope. Mr. Nishio argued that the security guard was required to provide O.W. and his girlfriend with a reasonable opportunity to leave before arresting them and that the security guard did not do so.  If they were not provided with a reasonable opportunity to leave, the arrest was unlawful, and if the arrest was unlawful, any physical contact by the security guard ought to be considered an assault.  Furthermore, if the security guard assaulted O.W., O.W. was permitted to use reasonable force to resist the assault. The judge agreed with Mr. Nishio's arguement and acquitted O.W. and his girlfriend of all charges.

R. v. S.M.

Charges:

Assault Bodily Harm, Assault with a Weapon, Threaten Bodily Harm, Weapons Dangerous and Fail to Comply (x3)

Facts:

The victim was approached by two males who insisted that he owed them money. The victim refused to pay them and was consequently assaulted. When the police arrived, the victim described the two males and indicated that he had purchased drugs from them in the past.  He also informed the police that he had watched the two males deal drugs, on a daily basis, from his balcony on the third floor. Furthermore, the victim stated that the two males lived in one of the neighbouring apartment buildings. Based on the victim's information, the police believed that one of the two males was S.M.. The police showed the victim a picture of S.M. and immediately the victim shouted, "that's him! that's him!". Consequently, S.M. was arrested.

A number of days later, the victim attended the police station to particiate in a photo line-up. The purpose of the photo line-up was to identify the other male who committed the assault. When the victim arrived at the 7th photo, he was adamant that it was a match. However, when he arrived at the 11th photo, he indicated that he was mistaken about the 7th photo and that the 11th photo was a match. Consequently, the male who was identified in the 11th photo was arrested.

Mr. Nishio questioned the victim's inability to observe S.M. prior to and during the assault, the generic description that the vicitim provided to the police, the victim's error during the photo line-up and his poor memory in general. Mr. Nishio then argued that the victim was completely unreliable and that the identification process of S.M. was seriously flawed because the photo of S.M. was not presented in the format of a photo line-up.

Result:

The judge found that the victim's evidence was unreliable and that there was insufficient evidence to prove beyond a reasonable doubt that S.M. was one of the culprits.  S.M was acquitted of all charges.

R. v. T. L.

Charges:

Possession of a Loaded and Restricted Firearm, Unauthorized Possession of a Firearm, Careless Storage of a Firearm, Knowledge of an Unauthorized Firearm in a Motor Vehicle and Occupant of a Motor Vehicle Knowing Firearm Prohibited.

Facts:

Police officers investigated three males in a motor vehicle, one of whom was T.L..  The other two occupants fled the scene.  One of the occupants, who fled, allegedly discarded a firearm. All three occupants were charged with possessing the firearm. The Crown`s position at the bail hearing was that it would not consent to T.L. being released on bail and that a `special` bail hearing was necessary (a `special` bail hearing is a bail hearing that is estimated to be lengthier, in time, than a normal bail hearing, usually due to the seriousness of the allegations).  If Mr. Nishio agreed, T.L would have had to spend days, perhaps weeks, in jail waiting for his bail hearing.

However, Mr. Nishio convinced the Crown that the case against T.L. was so weak that T.L. ought to be released on consent and that a bail hearing was unnecessary.

Result:

T.L. was released on bail without the need to conduct a bail hearing. The Crown eventually decided to withdraw all of the charges.

R. v. D. N.

Charges:

Assault (Domestic).

Facts:

D.N. was alleged to have assaulted his girlfriend. D.N. testified that he did not assault his girlfriend and that the allegations were a fabrication. Due to Mr. Nishio's cross-examination of the complainant, the judge did not know whether or not to believe the complainant's testimony.  

Result:

The judge found D.N. not guilty.

R. v. H.M.

Charges:

Robbery with a Firearm and Possession of Property Obtained by Crime.

Facts:

H.M. was alleged to have approached the victim, who was sitting in his car, and robbed him with a firearm.  The victim`s evidence at the preliminary hearing was that the robber had a dark complexion; he was wearing a black hooded sweater, black pants and a red baseball cap; his height was 5`9 and he had a skinny build; which matched H.M., except for the fact that H.M. was wearing a red hat in which the underside of the brim was blue. 

At the preliminary hearing, Mr. Nishio demonstrated, in cross-examination, that the victim could not have viewed the top of the robber`s hat from where the victim was sitting.  Mr. Nishio also demonstrated that the victim could have only seen the underside of the brim, and that it was the underside of the brim that he observed to be red.  

Result:

At the end of the preliminary hearing, the Crown withdrew all of the charges against H.M. primarily because the victim`s description of the robber, after Mr. Nishio`s cross-examination, no longer matched H.M. on the night in question.

R. v. K.C.

Charges:

Robbery with Imitation Firearm, Discharge Firearm, Possession Loaded Prohibited Firearm, Breach of Recognizance, etc.

Facts:

K.C. was alleged to be one of two men (Group A) who arranged to meet two other men (Group B) in order to purchase a large quantity of marihuana.  However, Group A did not intend on purchasing the marihuana.  Instead, Group A intended on robbing Group B with loaded firearms.  Fortunately, the robbery was unsuccessful.  Group A fled the scene and, while doing so, fired multiple gunshots at Group B.   Shortly thereafter, police arrived on scene and quickly set up a perimeter around the neighbourhood.  Subsequently, K.C. and another male were located hiding underneath the backyard deck of a house, which was located in the neighbourhood where the attempted robbery took place.  

Results:

Mr. Nishio argued that the identification evidence of all the witnesses was unreliable due to discrepancies between each of the witnesses’ evidence.  Furthermore, Mr. Nishio argued that a number of the witness’ identification evidence was tainted because they were shown pictures of K.C. prior to identifying K.C. in court.  Consequently, they may have unconsciously superimposed the face of K.C. onto the face of one of the robbers.  The Judge agreed that the witnesses’ evidence was unreliable and that the Crown had not proven beyond a reasonable doubt that K.C. was one of the robbers.  K.C. was acquitted of all charges.

R. v. C.F.

Charges:

Importing Heroin (3 Kilograms)

Facts:

C.F. planned a vacation to Buenos Aires, Argentina; Toronto and Niagara Falls.  She stayed in Buenos Aires for four days and then traveled to Toronto via Lima, Peru. When she arrived in Toronto, she was referred to secondary inspection where her luggage was examined.  During the luggage inspection, approximately 3 kilograms of heroin was discovered in the lining of various cloth bags and books.  C.F. admitted to purchasing the items but denied knowing that there was heroin in them.  Mr. Nishio argued that there was certainly an opportunity for someone else to have inserted the heroin into C.F.'s luggage during C.F.'s eleven hour layover in Lima and that she was being used as a 'blind courier'.  

Result:

After nearly two and a half years of being in custody, a hung jury on a previous trial, and a day and a half of jury deliberations on the second trial, a jury found C.F. not guilty of importing heroin.

R. v. M.D.

Charges:

Fraud Under, Utter Forged Document and Possession Property Obtained by Crime.

Facts:

A male entered a bank and told the staff that his name was M.D. and that he wished to open a new account.  He provided two pieces of identification in order to confirm that he was in fact M.D.. The next day, the same male attempted to deposit a Government of Canada cheque for over $3,000.  However, the bank staff discovered that the cheque was fraudulent.  The police arrested M.D. a couple of weeks later.

Result:

Mr. Nishio argued that the Crown could not prove that the identity of the male who opened the account and deposited the cheque was in fact M.D..  M.D. was acquitted of all charges.

R. v. D.F.

Charges:

Possession for the Purpose of Trafficking (Marihuana) and Breach of Undertaking

Facts:

Two police officers were on patrol in a park when they observed D.F. and three of his friends. D.F. allegedly tossed a dark object onto the grass and then walked away with one of his friends.  One of the officers detained D.F. and his friend while the other officer detained the other two. The police officers found a backpack that contained a scale, 2.5 grams of marihuana and papers with D.F.'s name written on them.  During a search of the area, a bag was found containing 9 grams of individually wrapped marihuana. The Crown and the police argued that the dark object that D.F. allegedly tossed was the 9 grams of marihuana. D.F. admitted that the backpack and the 2.5 grams of marihuana belonged to him, but maintained that he did not toss a dark object and that the 9 grams of marihuana did not belong to him.

Result:

The Judge found the police officer's evidence unreliable and acquitted D.F. of possessing the 9 grams of marihuana. The Crown could not prove that the substance believed to be 2.5 grams of marihuana was in fact marihuana and D.F. was eventually acquitted of all his charges.

R. v. K.B.

Charges:

Assault Bodily Harm

Facts:

An arguement erupted in K.B.'s residence, which involved K.B., a second accused and the complainant. K.B. was alleged to have held down the complainant while the second accused punched the complainant in the face.  Next, K.B. allegedly pushed the complainant out of the house.  

In criminal law, the use of force may be justified in order to defend one's self, personal property, real property, or any one under one's protection.  Mr. Nishio argued that K.B. held the complainant in order to defend the second accused and pushed the complainant to prevent her property from being damaged. 

Result: 

The judge found K.B. not guilty.

R. v. K.T.

Charges:

Drive Disqualified and Fail to Comply Probation (x2)

Facts:

A police officer observed a van parked suspiciously in the driveway of a residence. He was familiar with the residence and had never seen a green van parked in the driveway.  The officer also observed a build up of junk mail and newspaper on the front porch, which led him to believe that the homeowners were away.  Next, K.T. appeared from the side of the residence. K.T. made eye contact with the officer, watched the officer drive off, entered the van and then drove off in the opposite direction.  The officer was aware of the fact that there had been a number of break and enters in the area during the weeks or months leading up to that day. Consequently, the officer decided to pull K.T. over in order to conduct a criminal investigation into whether or not K.T. had committed a break and enter.  The officer did not inform K.T. of the reason why K.T. was being pulled over nor did the officer inform K.T. of his right to speak to a lawyer. As a result of the investigation, the officer learned that K.T. was disqualified from driving, and consequently arrested K.T. for Drive Disqualified.  Subsequently, the officer searched the van and found two cellphones, and a laptop inside a knapsack.  K.T. was on a probation order not to possess more than one cellphone or a laptop except for the purpose of employment.  K.T. admitted ownership of the cellphones and the laptop. Consequently, K.T. was arrested for two counts of Fail to Comply Probation.

Mr. Nishio argued that the police officer violated K.T.'s right not to be arbitrarily detained; K.T. ought to have been informed of the reason for the detention and the right to retain and instruct counsel; and that the search of the van and the knapsack was completely unreasonable, contrary to sections 8, 9, 10(a) and 10(b) of the Charter respectively.  

Result:

The judge found that the police officer violated K.T.'s right not to be arbitrarily detained; to be informed of the reason for the detention; to speak to counsel and to be secure against unreasonable search and seizure, contrary to sections 8, 9, 10(a) and 10(b) of the Charter. Consequently, K.T. was acquitted.

R. v. S.W.

Charges:

Possession for the Purpose of Trafficking (Cocaine)

Facts:

The police observed a van travelling east on Dundas Street, West, in Mississauga.  The van was travelling approximately 30 km/hr, changing lanes without signalling and drifting in and out of traffic.  Consequently, the vehicle was pulled over.  S.W. exited the driver's side of the van and another person exited the passenger's side of the van. When S.W. exited the van, the police observed S.W. drop an object onto the ground and kick it under the van.  The object was wrapped in gray plastic.  The police believed the object was illicit drugs and proceeded to arrest S.W..  The object turned out to be 21 grams of crack cocaine. Further investigation revealed 1.15 grams of powdered cocaine in S.W.`s pocket, $720 in a different pocket and $3020 in the center console of the van. S.W.'s evidence was that he was going to Niagara Falls on the night in question and that the $720 was for the casino, club, hotel, etc.; the 1.15 grams of cocaine was for personal use; the $3020 was for a used car and the 21 grams of cocaine was the passenger's.  

Mr. Nishio's primary concern was whether or not the jury would believe S.W.'s evidence. Mr. Nishio spent countless hours preparing S.W. to testify and in the end, S.W. testified in a clear, concise, confident and convincing manner, despite being cross-examined by a skilled and senior Crown Attorney.      

Result:

The jury found S.W. not guilty.

R. v. R.B.

Charges:

Assault (Domestic)

Facts:

R.B. was alleged to have been involved in a heated argument with the complainant, which elevated to the point where R.B. grabbed the complainant by the neck and allegedly "pummeled" her in the face. The complainant's friend was a witness to the incident and testified that R.B. was strangling and punching the complainant in the face.  

Due to Mr. Nishio's cross-examination of the two witnesses, the judge found that the complainant was completely unreliable and that her friend's evidence was insufficient to prove that R.B. was guilty beyond a reasonable doubt. 

Result:

The judge found R.B. not guilty.

R. v. D.N.

Charges:

Murder (2nd Degree), Aggravated Assault and Possession of a Firearm with Intent of Committing an Indictable Offence.

Facts:

D.N. was paid to marry a woman overseas in order to get her into Canada, illegally.  D.N. was offered $5,000 to travel overseas, with the intention of marrying the woman; $5,000 when he returned to Canada, married; and $20,000 when the woman was finally admitted into Canada for a total of $30,000.  D.N. married the woman and then returned to Canada, consequently collecting $10,000.  However, the woman was denied access into Canada and, as a result, D.N. was not paid the remaining $20,000.  For unknown reasons, two men were informed that D.N. was paid the $20,000 and they were told to get it back.  Upon being confronted by the two men, D.N. explained that he was not paid the $20,000 and that he had documents to prove it.  D.N. and the two men went toD.N.’s home to look for the documents, however D.N. was unable to locate them.  The situation escalated and D.N. shot the two men, killing one and wounding the other.  

Mr. Nishio represented D.N. as co-counsel to senior counsel David Bayliss.  Even though the two men who were sent after D.N. were unarmed and permitted D.N. to call and invite his brother-in-law to D.N.’s house to help resolve the situation, Mr. Nishio and Mr. Bayliss argued vigorously that D.N. was being extorted throughout the confrontation and that D.N. acted in self-defence when he shot the two men.

Result:

The jury found D.N. not guilty of all charges.

R. v. C.A.

Charges:

Refuse to Provide Breath Sample.

Facts:

C.A. was pulled over by the Toronto Police Reduced Impaired Driving Everywhere (R.I.D.E.) program.  C.A. appeared to be intoxicated and was asked to provide a sample of her breath into an approved screening device which would indicate whether or not C.A. was likely intoxicated beyond the legal limit.  C.A. made 18 attempts at providing a breath sample before she was arrested for refusing/failing to provide a breath sample. The Police took the position that C.A. was purposely refusing to provide a breath sample.  C.A. took the position that she was unable to provide a breath sample because she suffered from a number of health problems that interfered with her breathing.  

Mr. Nishio spent many hours preparing C.A. to testify. At trial, those hours paid off as the judge found C.A. to be a credible and reliable witness, despite the prosecutor's thorough and well-prepared cross-examination. 

Result:

The judge found C.A. not guilty. 

R. v. M.A.

Charges:

Fail to Comply Recognizance

Facts:

The police allegedly observed three males in a car commit an offence, pursuant to the Highway Traffic Act.  The police pulled over the car, questioned all of the occupants and demanded that they provide photo identification.  M.A. was seated in the front passenger's seat.  M.A. provided the police with photo identification which led to the discovery that M.A. was on bail and breaching one of the conditions.  M.A. was consequenlty arrested.  

At trial, Mr. Nishio argued that M.A. was arbitrarily detained when the police pulled over the car, contrary to section 9 of the Canadian Charter of Rights and Freedoms (Charter). He also argued that M.A. was unreasonably searched when the police demanded that he provide photo identification, contrary to section 8 of the Charter. Furthermore, he argued that M.A. ought to have been informed of his right to retain and instruct counsel immediately upon detention, which violated his rights under sections 10(a) and 10(b) of the Charter. During cross-examination, Mr. Nishio asked one of the police officers why he did not inform M.A. of his right to retain and instruct counsel. The officer indicated that he did not do so because M.A. had been involved with the criminal justice system on prior occassions, implying that M.A. was consequently familiar with his rights. The officer was clearly lying since he did not know M.A. had been involved with the criminal justice system until after he took M.A.'s photo identification and searched his name on the police database.   

Result:

The judge found that M.A.'s right not to be arbitrarily detained, unreasonably searched and to retain and instruct counsel had been violated.  Furthermore, he excluded all of the evidence because, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Consequenlty, M.A. was found not guilty.