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COURT OF APPEAL FOR ONTARIO CITATION: R. v. Budlakoti, 2021 ONCA 163 DATE:  20210315 DOCKET: M52091 (C68739) MacPherson J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent (Respondent/Responding Party) and Deepan Budlakoti Applicant (Appellant/Moving Party) Deepan Budlakoti, appearing in person Ian Kasper, appearing as duty counsel Samuel Greene, for the responding party Heard: February 11, 2021 by video conference REASONS FOR DECISION A. introduction [1] The applicant Deepan Budlakoti seeks an order pursuant to s. 684 of the Criminal Code for the appointment of counsel to represent him on his appeal of two orders made by Labrosse J. of the Superior Court of Justice during the applicant’s criminal trial in Ottawa. B. facts [2] The applicant was charged and convicted of a number of firearm offences. He has made post-trial applications that are currently proceeding in the Superior Court. He has not been sentenced. He is an inmate at the Ottawa-Carleton Detention Centre (“OCDC”). [3] Prior to the commencement of his trial in the Superior Court, the applicant brought two applications for habeas corpus before the trial judge. [4] The first habeas corpus application sought an order declaring that the applicant’s current meal program at the OCDC was unlawful and that he be provided meals suitable to his dietary and religious restrictions. [5] The second habeas corpus application sought orders directing improvements in internet and phone access, access to professional visits, additional yard time, access to medications, and various documents to support his applications. [6] The first habeas application was filed under the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) , S.I./2012-7 , Form 1. The second application did not refer to any criminal or civil rules. [7] The Crown sought to have the habeas applications dismissed under r. 6.11(2) of the Criminal Proceedings Rules . The Crown argued that none of the applicant’s grievances amounted to ‘deprivation of liberty’, as required for habeas corpus relief. [8] The application judge summarily dismissed the claims pursuant to the Criminal Proceedings Rules . He said: In considering the habeas corpus applications before the Court we must determine if the Respondent’s claims amount to an unlawful deprivation of liberty. In the present circumstances the Respondent is seeking accommodation on several issues: nutrition, for health and religious reasons and the inability to conduct his legal proceedings outside of the normal schedule for inmates. Clearly these matters do not go to the nature of the detention and they certainly do not amount to a more restrictive form of confinement. I cannot find any suitable ground for the order sought. It is simply a misuse of the prerogative writ of habeas corpus as the present circumstances do not involve a change to the level of confinement, nor do they engage a further deprivation of liberty. [9] The applicant has filed a Notice of Appeal with respect to Labrosse J.’s decision to summarily dismiss his habeas corpus applications. He has been denied legal aid funding for counsel for the appeal. Accordingly, he makes this application, pursuant to s. 684 of the Criminal Code , for the appointment of counsel to represent him on the appeal. C. issues [10] The issues on the application are: 1. Does this court have jurisdiction to make a s. 684 order in this appeal? 2. If the answer to question (1) is ‘Yes’, should a s. 684 order be made? D. Analysis (1) The jurisdiction issue [11] The applicant maintains that because the Superior Court exercised its criminal law powers through the Criminal Proceedings Rules in making its decision on the two habeas corpus applications, he has a right of appeal to this court pursuant to s. 784 of the Criminal Code . [12] The respondents says that this court does not have jurisdiction to grant a s. 684 funding order because the appeal is civil, not criminal, in nature. [13] I agree with the applicant on this issue, but only on a narrow technical basis. I note that the applicant's first habeas corpus application was commenced under the Criminal Proceedings Rules and the two applications were dismissed pursuant to those rules. In the Superior Court, the Crown appeared to concede that the applications were criminal in nature when it moved to have them dismissed in the criminal proceedings. In my view, it should not be open now to the respondent to resile from that position on appeal, to the detriment of the applicant. (2) The merits issue [14] Pursuant to s. 684 of the Criminal Code , this court may appoint counsel in a criminal appeal, funded by the Attorney General, where it is “desirable in the interests of justice” that the applicant should have legal assistance and he lacks the means to hire counsel. In assessing the interests of justice, the court must consider the merits of the case. The applicant must meet the modest standard of having an “arguable” ground of appeal. Appeals that have no merit cannot be helped by the appointment of counsel. The applicant must also show that appointed counsel is “necessary” having regard to whether he is capable of effectively advancing his grounds without a lawyer and whether the court can decide the appeal without counsel’s assistance: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at paras. 14 and 22; R. v. Sauve , 2018 ONCA 755, at para. 18. [15] The respondent, fairly, does not dispute that the appellant does not have the means to retain counsel and would struggle to effectively advance an appeal himself if there were an arguable ground of appeal. The respondent’s position is that there is no arguable ground of appeal. [16] Habeas corpus is an ancient writ that protects a person from unlawful confinement: May v. Ferndale Institution , 2005 SCC 82, at para. 19. To be granted relief, an applicant must 1) establish that they have been deprived of liberty and 2) raise a legitimate ground upon which to question its legality. Once both are established, the onus shifts to the respondent to show that the deprivation of liberty is lawful: Mission Institution v. Khela , 2014 SCC 24, at para. 30; May , at para. 74. [17] In the context of prisoner claims, there are three different deprivations of liberty that may be challenged: an initial deprivation; a substantial change in conditions amounting to a further deprivation of liberty; and a continuation of the deprivation of liberty, which was lawful but has become unlawful: R. v. Gamble , [1988] 2 S.C.R. 595, at pp. 637-38. [18] In Gamble , the court expanded the availability of habeas corpus and held that it can be used to obtain declaratory relief under s. 24(1) of the Charter . [19] On this application, the applicant makes a single argument, namely, that his application has merit because he is entitled to Charter s. 24(1) relief as established by Gamble . The applicant asserts that, on the basis of the evidentiary record, his appeal has merit in two respects: (1) a failure to provide appropriate meals to him (generally, a Charter s. 7 concern) and (2) a failure to provide appropriate resources to ensure that he could prepare for his trial (generally, a s. 7 or s. 11(d) concern). [20] I am not persuaded by this submission. I say this for two reasons. [21] First, in the Superior Court the applicant did not seek Charter s. 24(1) declaratory relief. In his first application, he did not invoke the Charter at all, despite his claim that the food he was served was inadequate because of his religious beliefs. The only relief sought in the first application was an order that he be served with food that met his health and religious needs. In his second application, he explicitly invoked his right to a full answer and defence. However, the only relief sought was several orders requiring that he be provided with various items and access to various resources. Given that a Charter remedy was never sought, it cannot be said that the applicant is entitled to s. 24(1) declaratory relief. [22] Second, I see no error in the application judge’s conclusion that the circumstances alleged by the applicant relating to food, medication, internet, phone, documents, yard time, and professional visits “do not go to the nature of the detention and do not amount to a more restrictive form of confinement.” There is nothing in the record to suggest that the applicant is being treated worse than “the general inmate population” at OCDC or that his “form of confinement or detention” is one in which “the actual physical constraint or deprivation of liberty … is more restrictive or severe than the normal one in an institution”: R. v. Miller , [1985] 2 S.C.R. 613, at p. 641. [23] For these reasons, the applicant has not persuaded me that a s. 684 order is appropriate in his appeal. E. disposition [24] The application is dismissed. “J.C. MacPherson J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Budlakoti, 2021 ONCA 290 DATE: 20210504 DOCKET: M52430 & M5244 (C68739) Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent (Moving Party/Responding Party) and Deepan Budlakoti Appellant (Responding Party/Moving Party) Samuel Greene, Brian G. Whitehead and Adrien Iafrate, for the moving party (M52430) and responding party (M52444) Deepan Budlakoti, acting in person, responding party (M52430) and moving party (M52444) Heard and released orally: May 3, 2021 by video conference REASONS FOR DECISION [1] On December 15, 2020, Mr. Budlakoti was convicted of several firearms offences. He has outstanding post-trial Charter litigation ongoing in the Superior Court, seeking relief that includes a stay of his convictions. He has not yet been sentenced. [2] Two motions are before the court, one by the Crown and one by Mr. Budlakoti. They arise out of the two Notices of Appeal Mr. Budlakoti has submitted to this court. [3] The two Notices of Appeal challenge separate decisions: 1. The Notice of Appeal filed October 26, 2020 challenges the September 21, 2020 decision of Justice Philips summarily dismissing a pre-trial application by Mr. Budlakoti and other inmates seeking a stay of criminal proceedings and Charter damages as a result of alleged breaches of s. 7 of the Charter as a result of Ottawa Carleton Detention Centre’s response to the pandemic during his pre-trial detention (the “ Charter Appeal”); and 2. The Notice of Appeal, a revised version of which was filed December 29, 2020, challenges the October 16, 2020 decision of Justice Labrosse summarily dismissing two habeas corpus proceedings brought by Mr. Budlakoti challenging the conditions at the Ottawa Carleton Detention Centre at which he continues to be detained ( the “ Habeas Appeal”). In particular, he asserts (1) a failure to provide appropriate meals to him and (2) a failure to provide appropriate resources to ensure that he could prepare for his trial. [4] At present, only one Court of Appeal file number, C68739, has been assigned to both Notices of Appeal. [5] Turning first to the Crown’s motion, the Crown seeks an order directing that the Charter Appeal be quashed on the basis that it is an appeal of an interlocutory order in a criminal matter for which there is no statutory or other right of appeal: R. v. Meltzer , [1989] 1 S.C.R. 1764. [6] We agree that Mr. Budlakoti has no right to launch an interlocutory appeal.  Mr. Budlakoti has not yet appealed his conviction. Should Mr. Budlakoti wish to challenge the October 26, 2020 decision which is the subject of his Charter Appeal, his recourse is to seek to do so in the context of an appeal against conviction, pursuant to s. 675 of the Criminal Code . Accordingly, the Crown’s application is granted and an order shall issue quashing the Charter Appeal. [7] In his motion, Mr. Budlakoti asks the court to reconsider the March 15, 2021 decision of MacPherson J.A. refusing his application for the appointment of counsel under s. 684 of the Criminal Code to act on his behalf on the Habeas Appeal. MacPherson J.A. accepted that Mr. Budlakoti does not have the means to retain counsel and would struggle to effectively advance an appeal himself if there were an arguable ground of appeal. However, he concluded that it was not in the interests of justice that Mr. Budlakoti have legal assistance because he did not have an “arguable” ground of appeal in the Habeas Appeal. [8] Mr. Budlakoti argues that MacPherson J.A. erred in concluding that he did not have an “arguable” ground of appeal. [9] Justice MacPherson considered and applied the correct legal test in concluding that counsel should not be appointed under s. 684. Mr. Budlakoti does not point to any material change in circumstances in the form of information or evidence that was not before MacPherson J.A. Moreover, we agree with his assessment of the merits. [10] Accordingly, Mr. Budlakoti’s motion for the appointment of counsel is dismissed. [11] The Habeas Appeal shall be scheduled for argument on September 7, 2021. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Burgess-Champagne, 2021 ONCA 306 DATE: 20210507 DOCKET: C68778 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Robert Burgess-Champagne Appellant Robert Burgess-Champagne, acting in person Amy Ohler, appearing as duty counsel Joseph Selvaratnam, for the respondent Heard and released orally: May 5, 2021 by videoconference On appeal from the sentence imposed by Justice Ronald M. Laliberté of the Superior Court of Justice on October 14, 2020. REASONS FOR DECISION [1] The appellant pleaded guilty to one count of possession of fentanyl for the purpose of trafficking, one count of possession of cocaine for the purpose of trafficking, one count of possession of property obtained by crime, and one count of conspiracy to commit an indictable offence. The trial judge found the facts supported findings of guilt on each count and convicted the appellant accordingly. [2] The trial judge originally sentenced the appellant on June 12, 2020. He rejected the defence’s proposed blended sentence and noted that the court could not circumvent Parliament’s intent to have trafficking be ineligible for conditional sentences. The trial judge found that a fit and proper sentence was a global term of 24 months less one day, followed by 12 months’ probation. However, he adjourned imposing the sentence until October so the appellant could spend time with his dying mother. When the matter returned on October 14, 2020, the parties made submissions regarding the availability of a conditional sentence after this court’s decision in R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209, and whether the trial judge was functus officio . [3] The trial judge found that a conditional sentence was not a fit and proper sentence for the appellant. Considering the totality of the circumstances, he concluded that a conditional sentence was not consistent with the principles of sentencing, specifically denunciation, deterrence, proportionality, and the degree of the responsibility of the offender. [4] On appeal, the appellant submits that the trial judge erred by not exercising restraint and over emphasizing the principle of parity, given that a conditional sentence is now available. He also argues that the trial judge failed to freshly consider whether a conditional sentence could be fashioned that was consistent with sentencing principles in the circumstances. [5] We see no error in principle in the trial judge’s analysis, and the sentence is not unfit. The trial judge carefully considered the request for a conditional sentence on the second sentencing hearing and provided thorough and compelling reasons for rejecting the request. There is no basis for appellate interference. [6] Leave to appeal sentence is granted, but the sentence appeal is dismissed. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Castellano, 2021 ONCA 272 DATE: 20210426 DOCKET: M52353 (C67190) Paciocco J.A. (Motion Judge) BETWEEN Her Majesty the Queen Applicant/Respondent (Respondent) and Daniel Castellano Respondent/Applicant (Appellant) Molly Flanagan, for the applicant/respondent Crown Nathan Gorham, for the respondent/applicant Daniel Castellano Heard: April 23, 2021 by video conference ENDORSEMENT OVERVIEW [1] Pursuant to s. 679(6) of the Criminal Code , R.S.C. 1985, c. C-46, the Crown applies for an order revoking Coroza J.A.’s bail release order, dated January 29, 2021, which extended the release of the respondent, Daniel Castellano. Mr. Castellano opposes the Crown’s application. [2] In the event I grant the Crown’s application, Mr. Castellano brings his own application for release pending appeal. [3] For reasons that follow, I am revoking the bail release order and denying Mr. Castellano’s request for release pending appeal. MATERIAL FACTS [4] On August 13, 2019, Harvison Young J.A. ordered Mr. Castellano released on bail pending his appeal of his April 30, 2019 convictions. Those convictions related to an explosion inside a pickup truck parked at a tractor repair business. [5] At the time of the explosion, Mr. Castellano was in a dispute with the owner of the tractor repair business. During the execution of a search warrant at Mr. Castellano’s residence, the police found an “arsenal” of weapons, including pipe bombs in various states of manufacture, as well as loaded handguns. [6] In connection with the explosion in the pickup truck, Mr. Castellano was convicted of mischief to property, two counts of possessing a dangerous weapon, and placing an explosive device in the pickup truck. The discovery of the “arsenal” and the explosives led to his conviction of twelve counts of possession of substances intended to be used to cause an explosion, and three counts of careless storage of a firearm. He was also convicted of possessing stolen property found during the search, and possession of marijuana. Mr. Castellano received a sentence of 1,888 days in custody after credit for pre-trial custody of 142 days. [7] On May 3, 2019, while awaiting his sentencing, the trial judge revoked Mr. Castellano’s bail. In doing so she relied on her finding that Mr. Castellano had made admissions that at the material time he was “waging a war”. She also relied on Mr. Castellano’s beliefs about the police and a labour union attacking his property as indicative of “some sort of instability” on the part of Mr. Castellano, thereby increasing his risk to the public. Mr. Castellano remained in custody until released pending appeal by Harvison Young J.A. [8] On several occasions, Harvison Young J.A.’s bail pending appeal order was amended on consent to extend Mr. Castellano’s release, most recently by Coroza J.A. on January 29, 2021, who ordered his bail extended until May 1, 2021. Mr. Castellano’s bail release was uneventful for more than 18 months, until March 28, 2021. [9] On March 28, 2021, as the result of complaints from neighbours about explosions they believed had occurred in the direction of Mr. Castellano’s property, police officers executed a search warrant on his property. The police discovered and seized ammunition. They also discovered and seized a container of acetone, pipes, and fittings, items police believed were capable of being used in bomb-making. [10] Mr. Castellano was not present at the time of the search. He later complained to a neighbour that items had been stolen from his property. [11] When police visited the property again on March 30, 2021 and arrested Mr. Castellano, his vehicle was searched. Mail that did not belong to him and lock-picking kits were found in his possession. [12] Mr. Castellano has now been charged with: (1) disobeying Coroza J.A.’s bail order by possessing ammunition in breach of the terms of that order, contrary to s. 127 of the Criminal Code ; (2) possession of break-in instruments, contrary to s. 351(1) of the Criminal Code (relating to the lock-picking kits); (3) possession of stolen property, contrary to s. 354(1)(a) of the Criminal Code (relating to the mail); (4) theft of mail, contrary to s. 356(1)(a)(i) of the Criminal Code ; and (5) possession of an explosive substance with intent, contrary to s. 81(1)(d) of the Criminal Code (collectively, the “new charges”). [13] All the new charges are either for straight indictable offences, or hybrid offences that are deemed to be indictable offences pending Crown election. [14] Mr. Castellano has now been released on the new charges pursuant to an Ontario Court of Justice bail release order dated April 21, 2021. The parties agreed that the terms of that order are essentially identical to the terms imposed by Coroza J.A. [15] Mr. Castellano remains in custody pending the disposition of the applications now before me. ISSUES [16] The Crown brings an application before me pursuant to s. 679(6) of the Criminal Code to revoke Coroza J.A.’s bail release order of January 29, 2021. [17] Mr. Castellano contests the Crown’s application but applies for bail pending appeal in the event I do revoke Coroza J.A.’s release order. [18] I will address the two applications in turn. ANALYSIS A. The Bail Release Order of Coroza J.A. Is Revoked [19] By virtue of s. 679(6) of the Criminal Code , s. 524(3) of the Criminal Code is incorporated into the bail pending appeal regime. By virtue of s. 524(3)(b), I am required to cancel Mr. Castellano’s release if I find “there are reasonable grounds to believe that [Mr. Castellano] has committed an indictable offence while being subject to the … release order.” [20] The Crown may face challenges, identified in the arguments before me, in establishing several, if not all, of the new charges. There are, however, reasonable grounds to believe Mr. Castellano has committed an indictable offence while subject to Coroza J.A.’s release order. I need only refer to the items found in Mr. Castellano’s truck to make the point. The proposed Charter challenge to the search that led to the discovery of those items may prove successful, or Mr. Castellano’s explanations may be credited after trial, but those are trial matters. It is not contested before me that lock-picking kits and mail not belonging to Mr. Castellano, some of which has now been reported stolen, were found in a place that he apparently controlled. [21] This is enough to require that Coroza J.A.’s order for release be revoked, and I do so. B. THE Application for Bail PENDING APPEAL is Denied [22] Although the onus is on Mr. Castellano to demonstrate that he should be released pending appeal, it is convenient to begin with the Crown’s position. The Crown’s position [23] The Crown does not contest the finding of Harvison Young J.A. that Mr. Castellano’s appeal is not frivolous. Nor does it dispute that, on the balance of probabilities, Mr. Castellano will surrender himself into custody in accordance with the terms of the order. The contest is about whether he has demonstrated on the balance of probabilities that his detention is not necessary in the public interest. [24] The Crown contends that, even prior to the new charges, Harvison Young J.A. found it was a “close case” as to whether Mr. Castellano had established that the reviewability interest outweighed the enforceability interest. The Crown argues there have been two material changes which now show that enforceability must predominate. [25] Most importantly, Mr. Castellano faces new and related charges, which heightens the need to protect the public. [26] Moreover, a driving consideration in Harvison Young J.A.’s decision was concern that the inherent delay in moving appeals forward could result in Mr. Castellano serving most of his sentence before having had the opportunity to challenge the underlying convictions on appeal. Mr. Castellano acknowledges that he is days away from perfecting his appeal, assuring it can be heard without significant delay. [27] The Crown submits that the balance has now shifted, requiring Mr. Castellano’s detention pending appeal. [28] The Crown also points out that the sureties Mr. Castellano proposes were his sureties when the new charges arose. The Crown submits the new charges now call into question the sureties’ ability to assure the public safety. Mr. Castellano’s position [29] In support of his application for release pending appeal, Mr. Castellano notes that public safety was the primary concern when he first applied for release pending appeal. He had just been convicted in connection with explosives offences allegedly related to a business dispute, and of being in possession of loaded handguns and bomb-making material at a time when the trial judge believed him to be mentally unstable with paranoid delusions. According to Mr. Castellano, events since then have not aggravated the concern about the risk he poses to public safety; they have lessened it. [30] Specifically, more than 18 months passed without incident before the new charges. By their nature, Mr. Castellano submits those new charges do not demonstrate an immediate threat of violence to anyone. [31] Indeed, further investigation has now shown the explosions allegedly heard on Mr. Castellano’s property leading to the search warrant had not, in fact, occurred on his property, but on a neighbour’s land. More importantly, Mr. Castellano says the new charges he faces, especially the charges that might arguably appear to raise the risk of violence, are weak. [32] The ammunition was found in one of the three buildings on the property, and there are contradictions in the disclosure relating to which of the buildings it was. Mr. Castellano shares access to the property with the three sureties. The inference that he possessed the ammunition is no stronger than the inference that any one of them may have done so, an outcome that will lead to his acquittal unless the strength of the Crown case changes. [33] Although Mr. Castellano’s post-search complaint about items missing from the property can be used to attempt to link him circumstantially to the acetone, pipes, and fittings, the Crown will be challenged in proving that those items were possessed for the purpose of bomb-making. The acetone was in a quantity suitable for domestic cleaning and was discovered stored with other cleaning products. The pipes are small and thin, and arguably less suitable for bomb-making than larger pipes would be. There are no apparent signs that the items were being used to build an explosive device. The investigating police force has now conceded that an expert witness cannot assert, based on the evidence, that the acetone, pipes, and fittings were possessed for the purpose of bomb-making. [34] Mr. Castellano has also offered what he submits to be credible, innocent explanations for his possession of the lock-picking kits and the mail that did not belong to him. [35] In the circumstances, Mr. Castellano submits he has discharged his onus of establishing that he should be released pending appeal on the terms contained in Coroza J.A.’s bail release order. He suggests that if I credit the Crown’s submission that the new charges weaken confidence in the sureties, the order can be augmented by preventing him from being outside his home unless accompanied by one of the sureties, and that an electronic monitoring order can be made. The enforcement interest outweighs the reviewability interest in this case [36] Notwithstanding the thoughtful arguments Mr. Castellano advanced before me, in my view, a thoughtful, dispassionate person informed of the circumstances of the case and respectful of society’s fundamental values would conclude that the enforcement interest outweighs the reviewability interest. [37] First, in my view, the deep concern about public safety arising from the nature of the charges under appeal is now heightened by the new charges. Mr. Castellano’s original release was a “close case” because the nature of the offences, and the circumstances in which he was convicted of those offences, posed a risk to the public of calamitous harm. Mr. Castellano has now been arrested on related offences. I appreciate the weaknesses in the new charges, and that Mr. Castellano is presumed to be innocent of them, but ultimately a bail release determination is an exercise in risk assessment. The discovery of ammunition and potential bomb-making material on property Mr. Castellano has been accessing is a matter that would concern a reasonable member of the public, in all the circumstances. His re-release would imperil public confidence in the administration of justice. [38] Even leaving the ammunition and bomb-making charges aside, there are reasonable grounds to believe that while on bail release Mr. Castellano possessed break-in instruments in his vehicle, where they could be readily accessed while he was mobile, and stolen mail. I agree with the Crown that the commission of any indictable offence while on bail release for violent offences works to undermine confidence in the public safety by raising the risk that the bail order, which is expected to assure public safety, may not be respected. [39] Allowing for the fact that it was difficult to assess the strength of Mr. Castellano’s grounds of appeal, Harvison Young J.A. expressed the preliminary view that the grounds of appeal presented before her were not strong. That observation has not been called into question before me. Accordingly, Mr. Castellano is not able to marshal the strength of his appeal as a basis for prioritizing the reviewability concern. [40] This is no longer a case where detaining Mr. Castellano presents the risk of making the appeal moot on the basis that he would likely serve his sentence pending appeal. The appeal can now be prosecuted without the same concern for delay that influenced Harvison Young J.A. to come down on the side of release. [41] I agree with the Crown that there are new concerns about the sufficiency of the proposed sureties, given the new charges. Moreover, part of Mr. Castellano’s proposed defence to the ammunition charge as shared before me is that the Crown will be unable to prove whether the ammunition was possessed by him or rather by one of his sureties. This is a legitimate defence for him to advance at his trial, but it does not enhance confidence in his release that either he or his sureties possessed ammunition on property to which he has access. [42] In the circumstances, even bearing in mind his suggestion that additional conditions could be added, Mr. Castellano has not convinced me that the reviewability interest takes precedence over the enforceability interest. CONCLUSION [43] Mr. Castellano’s bail release is revoked and his application for release pending appeal is denied. The draft orders revoking Mr. Castellano’s bail release and for his arrest that were submitted by the Crown with its application will issue. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ceasor, 2021 ONCA 54 DATE: 20210129 DOCKET: C68597 MacPherson, Trotter and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Jeremey Ceasor Appellant Neha Chugh, for the appellant Nicolas De Montigny, for the respondent Heard: in writing On appeal from the sentence imposed by Justice Deborah A. Kinsella of the Ontario Court of Justice on July 15, 2020. REASONS FOR DECISION [1] On March 20, 2020, the appellant pleaded guilty to a number of weapons offences. The parties made a joint recommendation for a six month sentence to be imposed on a future date due to the pandemic. In the meantime, the appellant was released on bail. [2] On June 12, the appellant was arrested and charged with two offences, including breaching his release order: Criminal Code , R.S.C., 1985, c. C-46, s. 145. [3] On July 15, the appellant pleaded guilty to the s. 145 offence. The parties jointly proposed a sentence of time served (the 33 days the appellant spent in custody from June 12 to July 15). The sentence was not imposed at the time because after pleading guilty the appellant made statements suggesting that he did not breach his release order. On July 15, the trial judge also imposed the six month sentence on the earlier weapons charges. [4] On August 4, the sentencing judge granted the accused’s application to strike his guilty plea on the s. 145 charge. The defence suggested that the 33 days of pre-sentence custody which was previously applied to the s. 145 charge could and should be shifted to the weapons charges for which the sentence was about to start. The Crown disagreed. [5] The sentencing judge agreed with the Crown. She said: Because if the idea was it was going to be used on these charges, I have now struck the plea. I mean ultimately if something changes and these charges resolve, he’d certainly still have that time in the bank, if I can call it that. But it may be that it’s not time that is available to be used in any other fashion because that wasn’t the intention. [6] The appellant contends that the sentencing judge erred in reaching this conclusion. His position is that the pre-trial custody tentatively assigned by both parties to the later breach offence could be shifted to the weapons offence once the sentencing judge had set aside the appellant’s guilty plea to the breach offence. We do not accept this submission. [7] The starting point is s. 719(3) of the Criminal Code which provides: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence…. [8] Against this backdrop, there is a long line of cases holding that s. 719(3) does not permit an offender to ‘bank’ custodial time for unrelated offences. To give credit for time spent serving a sentence for another offence would distort the sentencing regime: see, for example, R. v Wilson , 2008 ONCA 510, at paras. 40-45; R. v. Pammett , 2016 ONCA 979, at para. 20; and R. v. Perkins , 2017 ONCA 152, at para. 30. [9] In this case, the entire focus of both parties was on the issue of credit for pre-trial custody in relation to the breach of recognizance offence. The parties reached an agreement on that issue. That agreement remains in place and can be implemented if the appellant is convicted following a guilty plea or a trial of that offence. However, if that does not come to pass, there is no connection between the two sets of offences the appellant faced. Accordingly, as Rosenberg J.A. said in Wilson , at para. 45: “But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration.” [10] The appeal is dismissed. The appellant shall surrender into custody at the institution from which he was released within 72 hours of the release of these reasons, failing which a warrant shall issue for his arrest. “J.C. MacPherson J.A.” “Gary Trotter J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chambers, 2021 ONCA 337 DATE: 20210520 DOCKET: C64868 Juriansz, van Rensburg and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Marcia Chambers Appellant Mark C. Halfyard, for the appellant Brian Puddington and Leanne Siu, for the respondent Heard: May 5, 20201 by video conference On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on September 25, 2017. Juriansz J.A.: [1] The appellant appeals her conviction of possession for the purpose of trafficking in cocaine and marijuana. The police executing a search warrant found the drugs in her bedroom in an apartment she shared with her adult son. She was arrested away from the residence shortly before the execution of the search warrant. The sole issue at trial was whether the Crown could establish the appellant’s knowledge of the drugs found in her bedroom. The defence theory at trial was that an available and reasonable inference was that during the short delay while the police were attempting to gain entry to the residence, the son moved the drugs into the appellant’s bedroom. [2] The appellant raises three grounds of appeal: 1. the trial judge erred in failing to exclude police opinion evidence about the appellant’s demeanour and in failing to instruct the jury to disregard that evidence; 2. the trial judge failed to instruct the jury that if any reasonable inference other than guilt was available, they must acquit, and he failed to highlight the other dangers of relying on circumstantial evidence; and 3. the verdict was unreasonable as there was insufficient evidence to establish knowledge beyond reasonable doubt. [3] I would allow the appeal on the first ground, find it unnecessary to discuss the second, and would reject that third. (1) The Demeanour Evidence [4] Before executing the warrant at her residence, the police arrested the appellant at a shopping plaza a few minutes away. The police blocked her vehicle, identified themselves as police and arrested her. No drugs were found in her car or on her person. [5] At the outset of trial, the Crown sought to introduce demeanour evidence by having the police witnesses “attest to how she behaved in their opinion”. The trial judge stated flatly, “Their opinion is not admissible.” He ruled that the police “can say she appeared nervous but nothing about their opinion about her demeanour.” [6] During the trial, various police officers testified about the appellant’s demeanour at the time of her arrest as well as at the residence while the officers searched it. [7] Constable Griffin testified: She was cooperative with us. As soon as I started to explain that we had a search warrant for the residence and for the car she became very nervous, very, her demeanour was just, I would, I would, I would call it upset. She didn’t say anything to us. She did not answer any questions. She did answer to her name and during the search we had located identification for her. [Emphasis added.] [8] Constable Hart also testified she appeared nervous upon being arrested. [9] Constable Reynolds testified about the appellant’s demeanour when she was returned to the residence. He testified she appeared “very nervous”, “very agitated in a very agitated state.” Asked what made him say that, he responded, “her demeanour to me appeared that she wasn’t answering questions put to her ” (emphasis added). Asked to describe her appearance, he answered: The best way to describe it would be that she appeared to be like a deer caught in headlights. I don’t know how better to describe it than that; very staring, not blinking a lot, just very wild, like, you know, a very pronounced stare with respect to her eyes. Her demeanour was very nervous. To me she was not presenting. She appeared as such to the point where it was obvious based on her reaction to us being in the home and us there to execute a search warrant, that she appeared to be very concerned with respect to that. [10] In cross-examination, Constable Reynolds agreed he was not a trained psychologist. He disagreed with suggestions that the appellant may have been upset at seeing her son in handcuffs and hearing that drugs and bullets had been found in her son’s room. He said: Her demeanour was a deer caught in the headlights. The, from my understanding at that point, that the drugs that were located in [the son’s] room weren’t of a significant quantity to warrant that reaction or her demeanour. But as you stated, it is possible that, you know, her son being under arrest, the drugs that had been found in the residence at that point, could have been a contributing factor to her demeanour. But I don’t believe that that was the, the full scale of her, of her reaction (2) The Pre-Charge Conference [11] At the pre-charge conference, defence counsel raised the police testimony about the appellant’s demeanour. The trial judge indicated he would be telling the jury they should be extremely reluctant to rely on this evidence, and added: I regret letting it in. Saying that she looks like a deer trapped in the headlight and then attempting to quantify what that meant when you put other perfectly reasonable scenarios to the officer, I shouldn’t have let the evidence in. It’s, in my thinking it’s akin to post-offence conduct and there are numerous other reasons that she might look like that. So, I’ll be dealing with demeanour. [12] Defence counsel then asserted that Constable Canning had testified that the appellant had been uncooperative and that the jury might say “well, she didn’t cooperate with the police officer”. Defence counsel was concerned that the jury might think there was “an onus” on her client to say anything to the police. [13] The trial judge said he did not have a note that Constable Canning said the appellant was uncooperative. Defence counsel insisted he had said at one point she was not cooperative. After the Crown stated that they did not have a note of Canning saying the appellant was not cooperative, the trial judge stated, “Well, I’m not going to say anything about that”. [14] Defence counsel was mistaken in attributing the testimony to Constable Canning. It was Constable Griffin who had testified the appellant did not say anything to the police and would not answer any questions, and it was Constable Reynolds who said she was not answering questions put to her. [15] After the trial judge read to counsel what he proposed to say in his charge about the elements of the offence, including about the police testimony that the appellant looked like a deer caught in headlights, defence counsel said he had nothing further to say. (3) The Charge [16] As he had indicated at the pre-charge conference, the trial judge said to the jury: Constable Reynolds testified that [the appellant] appeared to be very nervous and agitated and she looked like, a lot like a deer in the headlights. Now, in my view, this evidence does not really help you. There is no evidence that Constable Reynolds knew [the appellant], or what her demeanour is usually like, and there are several reasons why she might appear to be nervous and upset. The police were searching her home. She and her son were in handcuffs, and there was mention of drugs being found in her son’s room. [17] The trial judge said nothing to the jury about the police testimony that the appellant had not answered the questions of the police (other than identifying herself). [18] The trial judge’s charge also contained the standard instructions: My references to the evidence are only to help you remember it and to show how it relates to the issues in this case. If my memory of the evidence is different from yours, it’s yours that counts. You find the facts and base your decision on your memory of the evidence, not mine, nor that of counsel. Now, our law also permits me to comment or express opinions about issues of fact. If I do that however, you do not have to reach the same conclusion. You, not I, determine what happened in this case. (4) Analysis [19] The trial judge’s instructions to the jury were deficient in two respects. [20] First, the charge left it open to the jury to rely on evidence that was not admissible. Before the police witnesses testified, the trial judge had ruled their opinions about the appellant’s demeanour inadmissible. At the end of the testimony, the trial judge acknowledged the police witnesses had gone beyond testifying about their observation of the appellant’s demeanour and had offered opinion evidence about the appellant’s demeanour. Telling the jury that he viewed the evidence as not helpful, while leaving the jury free to apply their own view of it, left open the prospect that the jury might rely on the evidence. The trial judge should have instructed the jury clearly and unambiguously to disregard the evidence. [21] Second, the charge lacked a clear instruction that the jury could not draw anything from the appellant’s post-detention silence, which was her constitutional right. While the trial judge and neither counsel had a clear recall of Constable Griffin’s testimony that the appellant “didn’t say anything to us. She didn’t answer any questions”, members of the jury may well have noted and remembered the testimony. The instructions should not have left open the prospect that the jury might use the evidence for an impermissible purpose by reasoning that if the drugs were not the appellant’s she would have answered their questions. [22] These deficiencies in the charge to the jury rendered the trial unfair and would necessitate a new trial. (5) Unreasonable verdict [23] I would reject the appellant’s submission the verdict is unreasonable. The evidence in this case, considered as a whole, was reasonably capable of supporting the verdict. [24] Cocaine worth $287,000, marijuana worth $70,000 and additional drug paraphernalia, such as digital scales, were found in various places in the appellant’s bedroom. Her ODSP receipt, her lease for the premises, and her passport were also found in the bedroom. The lease indicated she was paying $1600 a month in rent while receiving $1912 in disability support according to the ODSP receipt. High-end watches were also found in her bedroom. She was in possession of three cell phones when arrested. [25] In my view a correctly instructed jury could have rejected the theory of the defence, that the appellant’s son placed the drugs and other items in various spots throughout his mother’s bedroom during the brief period the police were attempting to gain entry to the premises, and could have concluded the appellant was guilty. (6) Conclusion [26] I would allow the appeal, quash the convictions, and remit the matter to the Superior Court of Justice for a new trial. Released: May 20, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. K. van Rensburg J.A.” “I agree. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chung, 2021 ONCA 188 DATE: 20210331 DOCKET: C65325, C65815, C65821 & C65843 Rouleau, Benotto and Miller JJ.A. DOCKET: C65325 BETWEEN Her Majesty the Queen Appellant and Kenneth Chung Respondent DOCKET: C65815 AND BETWEEN Her Majesty the Queen Respondent and Kathleen Chung Appellant DOCKET: C65821 AND BETWEEN Her Majesty the Queen Respondent and Jun-Chul Chung Appellant DOCKET: C65843 AND BETWEEN Her Majesty the Queen Respondent and Kenneth Chung Appellant Jill R. Presser and Cate Martell, for the appellant Kathleen Chung Jacqueline An, for the appellant Jun-Chul Chung Susan von Achten and Joshua Napal, for the respondent/appellant Kenneth Chung Melissa Adams and David Friesen, for the appellant/respondent Crown Heard: October 20-22, 2020 On appeal from the acquittals entered by Justice Douglas K. Gray of the Superior Court of Justice on April 9, 2018, with reasons reported at 2018 ONSC 2177 (C65325). On appeal from the convictions entered by Justice Douglas K. Gray of the Superior Court of Justice on April 9, 2018, with reasons reported at 2018 ONSC 2177, and the sentences imposed on September 4, 2018 (C65815, C65821 & C65843). On appeal from the judgment of Justice Douglas K. Gray of the Superior Court of Justice on November 5, 2018, with reasons reported at 2018 ONSC 6633 (C65815 & C65821). On appeal from the orders of Justice Douglas K. Gray of the Superior Court of Justice on February 21, 2019, with reasons reported at 2019 ONSC 882 (C65815, C65821 & C65843). On appeal from the ruling of Justice Gisele M. Miller of the Superior Court of Justice on January 3, 2017, with reasons reported at 2017 ONSC 13 (C65815 & C65821). TABLE OF CONTENTS PAGES OVERVIEW 1 BACKGROUND 2 The split ticket scheme for the Super 7 lottery 3 Kathleen claims the prize 4 The Hi Ok Chung trust 6 THE TRIAL 6 (1) Convictions Count 1: Theft under $5000 (the 30 tickets that won nominal or no prize) 7 Count 2: Possession of property obtained by crime (the 30 tickets) Count 3: Theft over $5000 (the winning ticket) 8 Count 4: Possession of property obtained by crime (the winning ticket) 10 Count 5: Defrauding the OLG of $12.5 million 11 Count 6: Possession of property obtained by crime (the $12.5 million paid) 11 (2) Sentence 12 (3) The constitutional challenge 13 (4) Restitution, forfeiture, and fines in lieu 15 (5) The s. 11(b) application 16 ISSUES ON APPEAL 1. Conviction Appeal 2. Sentence Appeal 3. Did the application judge err in dismissing the s. 11(b) stay application? 4. Did the trial judge err in not granting interest to Kenneth Chung? 5. Did the trial judge err in acquitting Kenneth of counts 3-6? 17 ANALYSIS (1) Conviction Appeals Issue 1(a): Did the trial judge impose unreasonable verdicts for Kathleen Chung? 17 Count 4: Possession of property obtained by crime (the winning ticket) 18 Count 6: possession of property obtained by crime (the $12.5 million paid) Count 5: Defrauding the OLG of $12.5 million 21 Issue 1(b): Did the trial judge impose unreasonable verdicts for Jun-Chul Chung? 23 Issue 1(c): Did the trial judge impose unreasonable verdicts for Kenneth Chung? 26 (2) Sentence Appeals: Issue 2(a): Restitution and Fine in Lieu (i) Did the trial judge err in dismissing the constitutional challenges? 28 (ii) Did the trial judge err in establishing time to pay and a six-year sentence in default of payment? 53 Issue 2(b): The Custodial Sentence Appeals 56 (i) Kenneth Chung’s custodial sentence of 10 months 57 (ii) Jun-Chul Chung’s custodial sentence of seven years 58 (iii) Kathleen Chung’s custodial sentence of four years 59 Issue 3: Did the application judge err in dismissing the s.11(b) stay application? 63 Issue 4: Did the trial judge err in not granting interest to Kenneth Chung? Issue 5: Did the trial judge err in acquitting Kenneth of counts 3-6? 86 CONCLUSION 92 By the Court : OVERVIEW [1] These appeals concern a $12.5 million lottery win by the Chung family. [2] Jun-Chul Chung is the father of Kenneth and Kathleen Chung. All three appeal their convictions for their roles in relation to a scheme to steal lottery tickets from customers at their family convenience store. The Crown alleged Jun-Chul and Kenneth stole 31 lottery tickets by pocketing one of the two free tickets won by a customer. Thirty of those tickets won nothing or a nominal prize. One won the $12.5 million jackpot. Kathleen cashed in the ticket, received and deposited the $12.5 million prize. [3] Jun-Chul and Kenneth were convicted of counts related to the tickets that did not win the big prize. Jun-Chul and Kathleen were convicted of counts related to the winning ticket, but Kenneth was acquitted on those counts. A s. 11(b) Charter of Rights and Freedoms application was dismissed. [4] At sentencing, Jun-Chul and Kathleen challenged the constitutionality of the fine in lieu of forfeiture regime set out in s. 462.37(4) of the Criminal Code . This section requires the judge who imposes the fine at sentencing to simultaneously set the term of imprisonment in default of payment and impose mandatory minimum sentences in default of payment. The parties argued that these aspects of s. 462.37(4) violated ss. 7 and 12 of the Charter . The constitutional challenge was dismissed. [5] Jun-Chul was sentenced to seven years’ imprisonment and Kathleen was sentenced to four years’ imprisonment. In addition to their custodial sentences, they were jointly and severally ordered to pay restitution of $12.5 million, forfeit $7.5 million, and pay a fine in lieu of forfeiture of $2.3 million each. Kenneth was sentenced to 10 months’ imprisonment. [6] Jun-Chul and Kathleen appeal their convictions, custodial sentence, the restitution and forfeiture orders, the fine in lieu of forfeiture, the default term of imprisonment, the dismissed constitutional challenge and the dismissed s. 11(b) application. [7] Kenneth appeals his convictions, his sentence, and the trial judge’s decision to not award him interest on monies returned to him at the forfeiture hearing. [8] The Crown appeals Kenneth’s acquittals. BACKGROUND [9] Kenneth operated a convenience store in Burlington called “Variety Plus.” He is a registered agent for the Ontario Lottery and Gaming Corporation (“OLG”). [10] Kenneth worked every day from 12:00 p.m. until 10:00 or 10:30 p.m. Jun-Chul worked in the store every day from 6:00 a.m. to at least 10:00 a.m. Kathleen did not work in the store. The split ticket scheme for the Super 7 lottery [11] Variety Plus had a lottery terminal connected to the OLG’s central computer system, through which it sold and validated lottery tickets. When a winning ticket was validated, the terminal played a jingle. The jingle was the same no matter the prize, and no matter the number of prizes a single ticket won. Players of Super 7 could win money – anywhere from $10 to the grand prize – and/or up to two free-play tickets per lottery ticket. The purchaser of a Super 7 ticket could pay an extra $1 to play in a further lottery game called “Encore.” A free-play ticket could automatically come with Encore included, but not always. [12] When a ticket was validated and it won a free-play ticket including Encore, the free ticket would print automatically. If the free-play ticket did not include Encore, the store clerk would have to ask the customer if they wanted to purchase Encore, and then enter the customer’s response into the terminal to close the transaction and print the free-play ticket. By way of example, if a validated ticket won two free-play tickets, one automatically with Encore and one without, a jingle would play but it would not indicate how many free-play tickets were won. The free-play ticket that included Encore would then print automatically. The second free-play ticket would not print until the clerk indicated whether the customer wanted to add Encore. The transaction would only close when the clerk inputted the customer’s answer and the ticket printed. [13] The scheme for which the appellants were convicted involved tickets that were validated at Variety Plus. The customer was given one free ticket and either Jun-Chul or Kenneth kept the other. One of the free tickets the Chungs kept won $12.5 million. Kathleen claims the prize [14] In January 2004, Kathleen called the OLG and asked about the procedure for claiming the proceeds of a winning ticket. She said the ticket belonged to her brother and he was concerned about publicity if he claimed the prize. Following that initial phone call, Kathleen had three separate meetings with representatives of the OLG. [15] The first meeting was on February 5, 2004. Ahead of the meeting, OLG officials learned that the winning ticket had been purchased at an outlet in St. Catharines. When Kathleen arrived at the meeting to claim the $12.5 million prize, she said it was her ticket, that she had no brother, and that she wanted to keep her name confidential. Kathleen could not give specific or general information as to the time, date, or location of the purchase of the original ticket. The representatives asked Kathleen whether she went to St. Catharines, and she said she did not. When the OLG asked her to sign a statutory declaration that, among other things, stated she was not related to a “Kenneth Chung”, Kathleen started crying and admitted Kenneth was her brother. On the same day, an OLG representative spoke with Kenneth. Kenneth admitted he was Kathleen’s brother and that Kathleen lied to protect him. He said the ticket belonged to Kathleen and that she purchased it on her own. [16] The second meeting was on February 10, 2004. Kathleen, Kenneth, and Jun-Chul attended. The OLG advised they were concerned about where and when the ticket was purchased. The Chungs advised that Jun-Chul validated the winning ticket on December 27, 2003, sometime between 9:00 and 11:00 a.m. They also stated that Jun-Chul ran a health food business, and that Kathleen made deliveries for the business, sometimes to St. Catharines. [17] The third meeting was on March 10, 2004. Again, Kathleen, Kenneth, and Jun-Chul attended. Kathleen was interviewed separately. She said on the morning she won, Jun-Chul was validating multiple tickets. At one point the jingle sounded, and her father said she’d won. She explained it took her a while to calm down, so she waited in her car and used her cell phone to call her brother and mother. She hung around the store for a little while and then went home. She reiterated that she did not know where or when she bought the original ticket. She explained again that she does deliveries for her father throughout Ontario and that she buys tickets wherever she is. She provided a handwritten list of delivery locations, which included three locations in St. Catharines. None of the locations matched the location of retailer that sold the winning ticket. (Later, when the matter was at trial, the Crown produced Kathleen’s cell phone records which did not show she had been to St. Catharines.) [18] The OLG eventually paid Kathleen’s claim on December 28, 2004. [19] The true owner of the winning ticket was not determined for several years. In January 2011, Daniel Campbell, who lived in St. Catharines, was identified as the winner and paid $12.5 million plus interest. The Hi Ok Chung trust [20] Kathleen deposited the $12.5 million cheque in an account with CIBC. The money was then dispersed in many ways, with most of the money vested in the “Hi Ok Chung Family Trust”. [21] Hi Ok Chung is Jun-Chul’s sister. Hi Ok lived in Korea and was the settlor of the trust. Jun-Chul was one of three trustees, and Jun-Chul, Kathleen, and Kenneth were all beneficiaries of the trust. Most of the trust’s assets came from the lottery winnings. Some of the assets were used to purchase real estate or to provide mortgages for properties Kathleen and Kenneth purchased. THE TRIAL [22] The Chungs were charged as follows: [1] a) Count 1: that Jun-Chul and Kenneth stole lottery tickets during an eight-month period ending on February 6, 2004, contrary to s. 334(b) of the Criminal Code ; b) Count 2: that Jun-Chul and Kenneth were in possession of the lottery tickets referred to in count 1, contrary to s. 354(1)(a) of the Criminal Code ; c) Count 3: that Jun-Chul and Kenneth stole the winning Super 7 lottery ticket, said to be the property of Daniel Campbell, contrary to s. 334(a) of the Criminal Code ; d) Count 4: that Jun-Chul, Kenneth, and Kathleen possessed the winning Super 7 lottery ticket, knowing that it was obtained by the commission of an indictable offence, contrary to s. 354(1)(a) of the Criminal Code ; e) Count 5: that Jun-Chul, Kenneth, and Kathleen did, by deceit, falsehood or other fraudulent means, defraud the OLG of $12.5 million, contrary to s. 380(1) of the Criminal Code ; and f) Count 6: that Jun-Chul, Kenneth, and Kathleen possessed all or part of the $12.5 million, and property purchased with it, knowing the money and property were obtained by the commission of an indictable offence, contrary to s. 354(1)(a) of the Criminal Code . (1) Convictions [23] The trial judge came to the following conclusions. Count 1: Theft under $5000 (the 30 tickets that won nominal or no prize) [24] The trial judge held there was no doubt the evidence disclosed a scheme to steal free-play lottery tickets. Having regard to the hours of work of Kenneth and Jun-Chul, and the timing of the transactions, the only reasonable conclusion from the evidence was that both Jun-Chul and Kenneth were guilty of the thefts . [25] Although neither Jun-Chul nor Kenneth physically stole every one of the tickets, there was joint participation because, on at least eight occasions, one validated the original ticket and the other validated the generated free-play ticket. Where the evidence discloses joint participation, both accused can be convicted as principals. Therefore, the trial judge found they were both guilty of all the split ticket thefts as parties under s. 21(1)(a) of the Criminal Code. [26] The trial judge considered whether reasonable inferences inconsistent with guilt were available, but found they were not. Specifically, he considered whether the winners of both free-play tickets validated both, in which case each winner would have had to cash the two different tickets in two different places on different dates. While that was theoretically possible, it was unreasonable to infer that happened 30 times over an eight-month period. Count 2: Possession of property obtained by crime (the 30 tickets) [27] Based on the same evidence tendered on count 1, the trial judge found it was clear that Jun-Chul and Kenneth were guilty of count 2. Count 3: Theft over $5000 (the winning ticket) [28] There was an issue at trial about whether there had to be proof that Campbell was the true winner. The trial judge was not satisfied of this beyond a reasonable doubt. However, relying on Vézina and Côté v. The Queen , [1986] 1 S.C.R. 2, the trial judge concluded that the name of the rightful owner is mere surplusage and can be ignored as long as there is no prejudice to the accused. There was no prejudice, so there was no burden on the Crown to prove the identity of the true owner of the winning ticket. [29] The trial judge then considered the evidence tendered under count 3 which made it clear that on December 22, 2003, Jun-Chul validated the four tickets that were purchased on December 19, 2003 in St. Catharines. Those four tickets collectively generated five free-play tickets, one of which was the winning ticket. Four of the free-play tickets were validated in St. Catharines on December 27, 2003. Only the winning ticket was validated at Variety Plus on December 27, 2003. There was only one reasonable conclusion: Jun-Chul kept the $12.5 million winning ticket for himself and therefore stole it from the rightful owner. [30] The trial judge considered whether it was possible on the evidence that Kathleen purchased the original ticket. To accept that inference, he would have to conclude Kathleen purchased all four original tickets in St. Catharines on December 19, 2003. She would also have to have been the person who validated all four tickets at Variety Plus on December 22, 2003, validated four of the free-play tickets in St. Catharines on December 27, 2003 and then validated the winning ticket at Variety Plus on the same day. The evidence was not capable of supporting that inference. [31] The trial judge found the Crown did not establish that Kenneth was present at the store when Jun-Chul stole the ticket, and he was not persuaded beyond a reasonable doubt that Kenneth was involved in the theft of the winning ticket. In coming to this conclusion, he did not consider the evidence relating to the split ticket scheme which was the basis for Kenneth’s convictions on counts 1 and 2. He reasoned that the Crown had not made a similar fact application and accordingly, he acquitted Kenneth of count 3. Count 4: Possession of property obtained by crime (the winning ticket) [32] Considering Jun-Chul was guilty of stealing the $12.5 million winning lottery ticket, he was also guilty of count 4. [33] The trial judge concluded that there was no doubt that Kathleen knew the ticket had been stolen. She consistently lied about her purchase of the original ticket and the validation of the winning ticket. Her cellphone, bank, and Visa records showed she could not have been where she said she was at the relevant times. She obviously lied to the OLG and knew the ticket was stolen. She was guilty on count 4. [34] With respect to Kenneth, the trial judge found that there was no evidence that Kenneth was in the store at the time the winning ticket was validated. He was not satisfied that Kenneth knew the ticket was stolen. It was a reasonable possibility that he was told Kathleen was the rightful winner and he believed her. Accordingly, the trial judge acquitted Kenneth of count 4. Count 5: Defrauding the OLG of $12.5 million [35] The trial judge convicted Jun-Chul and Kathleen of count 5. [36] The trial judge concluded that it was clear Jun-Chul stole the winning ticket and that Kathleen knew it was stolen. She knew she did not purchase or validate any of the original tickets, and that she did not validate any of the generated free-play tickets. When Jun-Chul and Kathleen met with the OLG, they falsely represented that Kathleen purchased the original ticket and that she owned the winning ticket. They knew that was false but continued to lie until they received the money. Therefore, they obtained the $12.5 million through falsehoods and defrauded the OLG of that sum. That finding was not altered by the fact that the OLG paid the money despite their suspicions. [37] The trial judge acquitted Kenneth of count 5. Again, the trial judge held there was a reasonable possibility that Kenneth was told and believed that Kathleen was the legitimate purchaser of the original ticket. Count 6: Possession of property obtained by crime (the $12.5 million paid) [38] The trial judge convicted Jun-Chul and Kathleen on count 6. They both knew the $12.5 million was obtained fraudulently, and both possessed the $12.5 million or property derived from it. Jun-Chul was a trustee and beneficiary of the Hi Ok Chung Family Trust, which obtained most of the funds. Kathleen used a large portion of the proceeds to purchase an expensive home and some cars. She was also the beneficial owner of a number of investments. [39] The trial judge acquitted Kenneth. Kenneth obtained considerable benefit from some of the proceeds of the $12.5 million. However, for the same reasons as counts 3-5, the trial judge was not convinced beyond a reasonable doubt that Kenneth knew that the money and property were obtained by fraud. (2) Sentence [40] The trial judge held that, in the circumstances, neither suspended sentences nor conditional sentences were appropriate. Deterrence was paramount, so some period of custody was mandatory for each accused. [41] The trial judge accepted the Crown’s sentencing ranges for each of the accused, but applied reductions for each to reflect the mitigating factors. He sentenced Jun-Chul to a term of imprisonment of seven years. He sentenced Kenneth to a term of imprisonment of 10 months. He sentenced Kathleen to a term of imprisonment of four years. [42] Pursuant to the rule in Kienapple v. R. , [1975] 1 S.C.R. 729 , the trial judge imposed conditional stays for Kenneth (count 2) and Jun-Chul (counts 2 & 4). Kathleen’s conviction under count 6 did not meet the criteria for a conditional stay. (3) The constitutional challenge [43] The Crown requested fines in lieu of forfeiture against Jun-Chul and Kathleen pursuant to s. 462.37 of the Criminal Code . [44] Where an offender is convicted of a designated offence, s. 462.37 permits the court to order that any property obtained from the proceeds of crime be forfeited to the Crown. Where that property cannot be made the subject of a forfeiture order, s. 462.37(3) allows the court to order the offender to pay a fine in lieu of forfeiture equal to the value of the property. Pursuant to s. 462.37(4), the imposition of a fine in lieu of forfeiture must include the imposition of specified terms of imprisonment in default of payment. Depending on the amount of the fine, s. 462.37(4) prescribes defined minimum and maximum terms. For fines above $1 million, the term of imprisonment must be not less than five years and not more than ten years. [45] Jun-Chul and Kathleen challenged the mandatory minimum sentences specified in s. 462.37(4) under ss. 7 and 12 of the Charter . [46] The trial judge found that Parliament’s intention in enacting the provisions was to ensure that crime does not pay. The provisions set out in ss. 462.37(3) and 462.37(4) are not intended to punish the offender but are designed to encourage offenders to disgorge ill-gotten gains. He also found it instructive that many of the general Criminal Code provisions on fines apply to fines in lieu of forfeiture. [47] The trial judge noted the following factors in support of his decision to dismiss the application: (a) if a fine is paid in part, there will be a proportionate reduction in the amount of custodial time to be served (s. 734.8); (b) if an offender requires more time to pay a fine, they may apply to vary the order (s. 734.3); (c) before the Crown can apply for a warrant of committal for non-payment, the Crown must attempt to use other means of collecting the fine (ss. 734.5 and 734.6); (d) the court cannot issue a warrant of committal for non-payment until the time allowed for payment has expired, the mechanisms provided by ss. 734.5 and 734.6 are not considered appropriate, or the offender has, without reasonable excuse, refused to pay the fine (s. 734.7); (e) inability to pay a fine is a reasonable excuse for non-payment; (f) at the time of sentencing, the court has considerable discretion as to the length of time that may be given to pay the fine; and (g) mandatory minimum and maximum terms of imprisonment must also be imposed in other cases where a fine is levied. Sections 734(4) and 734(5) require a term of imprisonment in default of payment of a fine. [48] Considering the purpose of the challenged provisions and their actual impact in light of other provisions of the Criminal Code , the trial judge held that the mandatory minimum terms of imprisonment required by s. 462.37(4) of the Code did not violate s. 12 of the Charter . [49] Regarding s. 7, the offender has the right to make submissions on relevant issues at each stage of the proceeding. The trial judge held that the mere fact that there is a mandatory term of imprisonment does not deprive the offender of any s. 7 rights. The defence argument was more properly left to a determination under s. 12. (4) Restitution, forfeiture, and fines in lieu [50] The Crown sought a $14.8 million restitution order, a $7.7 million forfeiture order, and a $4.6 million fine in lieu of forfeiture ($2.3 million each) against Jun-Chul and Kathleen. The Crown also sought a six-year custodial term in default of payment. [51] Kenneth applied for some of the seized funds to be returned to him on the basis they were not properly part of the forfeited sums. [52] The trial judge issued a $12.5 million restitution order against Jun-Chul and Kathleen, jointly and severally. The trial judge also ordered $7.5 million be forfeited to the Crown by Jun-Chul and Kathleen. [53] He ordered funds received from Kenneth to be returned to him, as he was not satisfied that amount was derived from the proceeds of the lottery funds. [54] Notwithstanding Jun-Chul and Kathleen’s submissions, the trial judge found there were no grounds for a fine in lieu of forfeiture of anything less than $4.6 million. The trial judge noted, as reflected in R. v. Lavigne , 2006 SCC 10, [2006] 1 S.C.R. 392, that the objective of the statutory provisions is to ensure crime does not pay and the ability to pay is not a relevant factor. [55] The trial judge did not agree that Jun-Chul should bear all the responsibility for the fine in lieu of forfeiture. The lottery funds were made out to Kathleen, and she was an active participant in securing the funds from the OLG. Accordingly, they should be equally responsible for the outstanding amount. [56] The trial judge gave both Jun-Chul and Kathleen seven years to pay. Considering the mandatory five-year minimum default sentence for fines above $1 million, he held a six-year term of imprisonment was appropriate upon default of payment. (5) The s. 11(b) application [57] Prior to trial, the appellants brought an application under s. 11(b) of the Charter . The application judge found the Crown genuinely responded to the circumstances of the case including the voluminous disclosure, multiple co-accused, and an ever-changing roster of defence counsel. Given the complexity of the case and reasonable reliance on the law as it existed pre- Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, she found the Crown had established that the time the case would have taken, at the anticipated end of trial on March 24, 2017, was justified. Therefore, there was no breach of s. 11(b) of the Charter . ISSUES ON APPEAL 1. Conviction Appeal: (a) Did the trial judge impose unreasonable verdicts for Kathleen Chung? (b) Did the trial judge impose unreasonable verdicts for Jun-Chul Chung? (c) Did the trial judge impose unreasonable verdicts for Kenneth Chung? 2. Sentence Appeal: (a) Restitution and Fine in lieu: (i) Did the trial judge err in dismissing the constitutional challenges? (ii) Did the trial judge err in establishing time to pay and a six-year sentence in default of payment? (b) Custodial Sentence: (i) Did the trial judge err in principle in imposing the sentences for the appellants? 3. Did the application judge err in dismissing the s. 11(b) stay application? 4. Did the trial judge err in not granting interest to Kenneth Chung? 5. Did the trial judge err in acquitting Kenneth of counts 3-6? ANALYSIS (1) Conviction Appeals Issue 1(a): Did the trial judge impose unreasonable verdicts for Kathleen Chung? [58] Kathleen was convicted of counts 4, 5, and 6. We discuss the related counts 4 and 6 and then count 5. Count 4: Possession of property obtained by crime (the winning ticket) [59] Kathleen was convicted of possession of the winning ticket knowing that it was obtained by the commission of an indictable offence. She appeals on two related grounds: (i) that the verdict was unreasonable; and (ii) that the trial judge gave inadequate consideration to Kathleen’s mens rea . [60] She submits that the verdict is unreasonable because the evidence supported a reasonable inference that she did not know the ticket was stolen, but believed the ticket belonged to Kenneth or Jun-Chul. She submits that the evidence supports an inference that she only said she was the owner either because she thought her father and brother were precluded from claiming the prize because they would be “insiders” as a result of Kenneth’s role as agent retailer for the OLG, or because she wanted to protect her brother from unwanted publicity. [61] By failing to consider these inferences, Kathleen submits that the mental element for the offence was not established. She submits that the trial judge relied on her lies to the OLG about her purchase of the ticket to conclude that she knew the ticket was stolen. However, she submits that her lies were equally consistent with an honest belief that Jun-Chul or Kenneth was the ticket’s rightful owner. [62] We do not accept these submissions. [63] This court recently reviewed the principles applicable to an appeal based on the assertion of unreasonable verdict. In R. v. Lights , 2020 ONCA 128, 149 O.R. (3d) 273, Watt J.A., speaking for the court, set out the role of the appeal court at para. 30: A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered. [Citations omitted.] [64] He also noted, at para. 33, that the court is entitled to consider that the appellant did not testify: When the claim of an unreasonable verdict rests on the assertion that, based on the evidence, the trier of fact could not have reasonably rendered the guilty verdict, an appellate court is entitled to consider that the accused did not testify at trial or adduce other evidence to support any other reasonable inference consistent with innocence. [Citations omitted.] [65] And at para. 39: When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman , at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman , at para. 56. [66] We conclude that the evidence, considered as a whole, is reasonably capable of supporting the guilt of Kathleen on count 4. [67] The evidence does not support the inference that Kathleen believed her brother or father could not claim the prize because her brother was a retailer. Were this the case, she would not have initially said that the ticket belonged to her brother. The policy regarding agents, retailers and insiders was explained to her. It did not prevent them from winning and claiming prizes. [68] Kathleen did not testify so the only evidence regarding publicity concerns arose from the testimony of David Summers, who spoke to her during her initial call to the OLG in January 2004. He testified that it would be better if the OLG handled the media. He told her that generally certain information would be given to the media, including the details of the particular lottery, the amount won, the name of the winner, and the city in which they lived. [69] The trial judge understood that this was a circumstantial case and applied the principles from R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, to his analysis . He understood Kathleen’s submission that her lack of knowledge of the theft was a reasonable inference from the evidence. He concluded that this inference was not reasonable: Kathleen Chung has lied throughout about her purchase of the original ticket and the validation of the winning ticket. She could not, in fact, have purchased any of the original tickets nor validated any of the subsequent tickets. Apart from the OLG computer records, her cellphone, banking and VISA records show that she could not have been where she said she was at the relevant times. She obviously lied to the OLG personnel about being the legitimate owner of the ticket and how she came to possess it. She knew the ticket was stolen. [70] The verdict was not unreasonable and the trial judge properly considered Kathleen’s knowledge of the theft – the appeal with respect to count 4 is dismissed. Count 6: possession of property obtained by crime (the $12.5 million paid) [71] It follows logically from the above analysis on count 4, that the appeal on count 6 must be dismissed. The trial judge found – and we have confirmed – that Kathleen knew the ticket was stolen and received the proceeds. The funds were deposited into her bank account and, as the trial judge concluded: Kathleen Chung obtained the benefit of large amounts of the proceeds, including the purchase of an expensive home and some cars, and she was the beneficial owner of a number of investments. [72] The appeal with respect to count 6 is dismissed. Count 5: Defrauding the OLG of $12.5 million [73] Kathleen Chung was convicted of defrauding the OLG of $12.5 million. [74] She claims that the trial judge did not meaningfully consider her arguments at trial and erred in his analysis of the offence of fraud. By focusing on her dishonesty, he failed to consider whether her dishonesty resulted in deprivation. She submits that dishonesty is insufficient to establish fraud; the dishonesty must cause the victim to act to its detriment. In other words, her lies did not cause the OLG to act to its detriment because the OLG’s policy was to pay the bearer of the ticket unless someone else claimed it. Therefore, the OLG paid Kathleen’s claim because she was the bearer of the ticket, not because she falsely claimed to be the rightful owner. [75] Although the OLG also paid out the funds to the rightful owner, there was no evidence it was under any legal obligation to do so. Instead, the OLG paid out the second claim because it wanted to restore the public confidence it lost after the “insider win” scandal. Kathleen’s actions did not directly cause the detriment. Kathleen submits that the trial judge did not meaningfully consider these arguments at trial and erred by focusing on the element of dishonesty and failing to consider whether the dishonesty resulted in deprivation. [76] Kathleen submits that this situation is akin to that in R. v. Benson (M.) et al. , 2012 MBCA 94, 284 Man. R. (2d) 204 , a decision of the Manitoba Court of Appeal. In that case, Mr. Helgason was acquitted of fraud in respect of a falsified claim to the Manitoba government regarding a resettlement programme for persons whose property was expropriated. In dismissing the Crown appeal of acquittal on this count, the court relied on the trial judge’s acceptance of the government representative’s evidence that the government was not concerned about falsification and would have acted as it did irrespective of Helgason’s statements. [77] This is not an analogous situation. [78] There is no evidence here that the OLG would have paid the money to Kathleen had they known that the ticket was stolen. On the contrary, David Myers’ evidence was that the OLG was concerned that they were paying the rightful owner and that “if it was a stolen ticket and we knew it was stolen, we would not have paid that ticket.” [79] This court has confirmed that the deprivation element of fraud is satisfied even if the accused’s dishonest conduct is not the sole cause of the deprivation: R. v. Drakes , 2009 ONCA 560 . In fact, “ the causal link between the dishonest conduct and the deprivation may not depend on showing that the victim relied on or was induced to act by the fraudulent act”: R. v. Riesberry , 2015 SCC 65, [2015] 3 S.C.R. 1167, at para. 24. [80] The guilty verdict for Kathleen Chung on count 5 was reasonable. The appeal on this count is dismissed. Issue 1(b): Did the trial judge impose unreasonable verdicts for Jun-Chul Chung? [81] Jun-Chul Chung appeals the findings of guilt on counts 1 to 6: · Count 1: theft under $5000 (the 30 tickets that won nominal or no prize); · Count 2: possession of property obtained by crime (the 30 tickets); · Count 3: theft over $5000 (the winning ticket); · Count 4: possession of property obtained by crime (the winning ticket); · Count 5: defrauding the OLG of $12.5 million; and · Count 6: possession of property obtained by crime (the $12.5 million paid). [82] Counts 2 and 4 were conditionally stayed pursuant to Kienapple . [83] Jun-Chul relies on Kathleen’s submissions and further submits that the guilty verdicts were unreasonable because: (i) the evidence permitted an inference that he believed Kathleen was the rightful owner of the winning ticket; (ii) it was not established that Daniel Campbell was the real owner; (iii) the trial judge erred in relying on Exhibit 38; and (iv) the OLG had a policy to pay the bearer of the ticket. [84] Kathleen does not take the position that she was the rightful owner and the trial judge clearly rejected that inference. He accepted the evidence that Kathleen could not have purchased the ticket based on cell phone and banking records and that the ticket had been stolen as part of the scheme to steal lottery tickets. The evidence also disclosed that, contrary to what Kathleen and Jun-Chul told OLG personnel, Kathleen could not have been sitting in her car with Jun-Chul outside of Variety Plus shortly after Jun-Chul validated the winning ticket. The trial judge properly rejected the suggestion that Jun-Chul believed that Kathleen was the rightful owner of the winning ticket. [85] The Crown did not need to establish that Campbell was the real owner. The trial judge correctly relied on Vézina , and Little and Wolski v. R. , [1976] 1 S.C.R. 20, both of which confirm that it is not necessary to prove the name of the rightful owner absent prejudice to the accused. The trial judge determined that there was no prejudice. [86] The OLG system is capable of producing a transaction report of ticket purchases. The purchasing patterns for Variety Plus were set out in Exhibit 38. This report tracked the 30 split tickets in issue. Ten of the original tickets were validated during the hours that Kenneth was at work, and eight original tickets were validated during the hours that Jun-Chul was at work. 12 of the original tickets were validated during hours when it was not clear who was at work. [87] Each of the 30 original tickets were validated at Variety Plus and generated two free-play tickets. For every one of the 30 original tickets, one of the free-play tickets was validated at Variety Plus on one day, and the other free-play ticket was validated elsewhere on that or a different day. [88] The trial judge carefully reviewed this evidence and concluded with respect to count 1: There is no doubt, in my view, that the evidence discloses a scheme to steal free play lottery tickets. In every case, a lottery ticket was purchased and that lottery ticket was validated at Variety Plus. In every case, two free tickets were generated. In every case, one of those tickets was validated elsewhere, and the second free ticket was validated at Variety Plus. In every case, the validation of the original ticket was done by either Jun-Chul Chung or Kenneth Chung, and the validation of the second free ticket was done by Jun-Chul Chung or Kenneth Chung. In my view, the evidence, while circumstantial, is consistent only with the guilt of Jun-Chul Chung and Kenneth Chung, and it is inconsistent with any other reasonable conclusion. [89] These findings of fact also apply to count 3. The trial judge made no error in relying on Exhibit 38 to conclude that Jun-Chul participated in the scheme to steal lottery tickets. [90] Jun-Chul submits that the OLG’s policy to pay the bearer of the ticket is relevant to the conviction for theft. It is not. Any relevance would potentially be to the conviction for fraud. For the reasons set out in relation to Kathleen, we do not accept this submission for Jun-Chul. [91] For these reasons, we do not accept that the verdicts for Jun-Chul on counts 1-6 were unreasonable and his appeal on this basis is dismissed. Issue 1(c): Did the trial judge impose unreasonable verdicts for Kenneth Chung? [92] Kenneth appeals his convictions for theft and possession of property obtained by crime. The possession of property obtained by crime was stayed pursuant to Kienapple . The convictions relate to the 30 tickets that did not win the large prize. [93] Kenneth submits that the trial judge erred in relying on Exhibit 38 (described above). He also submits that the trial judge erred because the tickets had no value so there was no theft in the first place. [94] The trial judge determined that the evidence “discloses a scheme to steal free play lottery tickets.” He considered, and rejected as unreasonable, inferences other than the fact that Kenneth participated in the scheme. Although Kenneth Chung did not testify, he had told the OLG the hours he worked. The trial judge found: In my view, having regard to the hours of work of Jun-Chul Chung and Kenneth Chung, and the timing of the transactions, it is clear that Jun-Chul Chung stole some of the tickets and Kenneth Chung stole some. [95] Some of the split tickets were validated during the hours that Kenneth worked. Although he now suggests that perhaps his mother was working during some of those hours, this submission was not made to the trial judge. Nor was the evidence of what he told the OLG ever challenged at trial. We give no effect to this submission made for the first time on appeal. [96] Kenneth also submits that it is not “illegal” to take something that has no value. Since a lottery ticket on its own is merely a “chance” it has no value and – while it may be immoral to take someone else’s lottery ticket – it is not illegal. We reject this submission outright. To steal means to take the property of another without permission. [97] We dismiss Kenneth Chung’s appeal as to convictions. (2) Sentence Appeals: Issue 2(a): Restitution and Fine in Lieu (i) Did the trial judge err in dismissing the constitutional challenges? [98] Section 462.37(1) of the Criminal Code authorizes the Crown to seek the forfeiture of any property that is the proceeds of crime, obtained by the commission of a designated offence. The objectives of the provision are “to deprive the offender … of the proceeds of their crime and to deter them from committing crimes in the future”: Lavigne , at para. 16. As this court held in R. v. Schoer , 2019 ONCA 105, 371 C.C.C. (3d) 292, “where the sentencing judge is satisfied on a balance of probabilities that the property is the proceeds of crime, that the offender had possession or control of it at some point, and the designated offence was committed in relation to that property, a forfeiture order must be made”: at para. 88, citing Lavigne , at para. 14; R. v. Angelis , 2016 ONCA 675, 133 O.R. (3d) 575, at para. 35, leave to appeal refused, [2016] S.C.C.A. No. 484. [99] Parliament anticipated circumstances in which property that is the proceeds of crime may no longer be available for forfeiture: it may have been “used, transferred or transformed, or may simply be impossible to find”: Lavigne , at para. 18. To ensure, nevertheless, “that the proceeds of a crime do not indirectly benefit those who committed it”, Parliament established the fine in lieu of forfeiture provisions: Lavigne , at para. 18. Where the property that has been in the control of the offender is no longer available to be forfeited, s. 462.37(3) provides that a fine may be imposed in lieu of forfeiture. [100] Unlike the forfeiture provisions, the fine in lieu of forfeiture provisions allow for the exercise of some discretion. The key interpretive principle articulated in Lavigne is that the fine in lieu provisions are to operate so as to ensure that crime does not benefit those who committed it: at para. 18. There may be circumstances where the objectives of the provision do not call for a fine to be imposed, for example if the offender acted alone and did not benefit from the crime: Lavigne , at para. 28; Schoer , at para. 91. [101] However, once a sentencing judge has determined that a fine in lieu of forfeiture ought to be imposed, the sentencing judge has no discretion over the value of the fine to be imposed. The fine must be equal to the value of the property for which it is a substitute: Lavigne , at para. 34; Criminal Code , s. 462.37(3). Where there are multiple offenders before the court, however, and the property passed through the hands of one offender to another without the first offender retaining the benefit of the full value of the property, the sentencing judge may allocate a portion of the fine less than the full value of the property that had been under the offender’s possession and control, so long as the balance of the total value of the proceeds of crime are distributed to the other offenders before the court : R. v. Dieckmann , 2017 ONCA 575, 355 C.C.C. (3d) 216, at paras. 90-100, leave to appeal refused, [2018] S.C.C.A. No. 304 and No. 381. [102] As a means of enforcing the fine, s. 462.37(4) requires the judge who imposes the fine to also impose a term of imprisonment in the event that the offender does not pay the fine. Although the sentencing judge has some discretion in the length of the term of imprisonment to be set, that discretion is bounded by mandatory minimum and maximum terms of imprisonment that correspond to the quantum of the fine. For example, default of a fine of more than $1 million requires a mandatory minimum sentence of five years and a maximum of ten years. The sentencing judge must provide the offender with reasonable time to pay: Lavigne , at paras. 45-47. [103] Section 462.37(4) provides a graduated approach to setting the term of imprisonment consequent to default. The larger the amount of unrestored proceeds of crime that the offender is found to have possessed or controlled, the longer the minimum term of incarceration: see e.g. R. v. Rafilovich , 2019 SCC 51, 442 D.L.R. (4th) 539, at para. 109; c f R. v. Pham (2002), 167 C.C.C. (3d) 570 (Ont. C.A.), at paras. 19-21 (where this court found the connection under s. 240 of the Excise Tax Act , R.S.C. 1985, c. E-14, between the quantity of the illegal substance possessed and the size of the minimum fine established proportionality). [104] The mechanism for imprisoning a defaulting offender is set out in s. 734.7 of the Criminal Code . As the trial judge explained, “the court cannot issue a warrant of committal until the time allowed for payment has expired, the mechanisms provided by ss. 734.5 and 734.6 are not considered to be appropriate, or the offender has, without reasonable excuse, refused to pay the fine.”  Although ability to pay a fine is not a consideration at the sentencing stage (except in terms of the time to be given to pay), it is a consideration at the committal stage both with respect to determining if time should be given to pay and with respect to determining whether there has been a reasonable excuse for not paying: Angelis , at para. 81; R. v. Wu , 2003 SCC 73, [2003] 3 S.C.R. 530, at paras. 60-69. No one is to be committed unless judged not to have had a reasonable excuse for nonpayment. Poverty is a reasonable excuse. The section targets refusals – in other words, wilful nonpayment. [105] The rationale for imprisonment in default of payment is to give serious encouragement to those with the means to pay a fine to make payment: Wu , at para. 3. This aligns with the intent and purpose of Part XII.2 generally, particularly the forfeiture regime under s. 462.37: Parliament enacted these provisions to give teeth to the general sentencing provisions under Part XXIII. By depriving offenders and criminal organizations of the proceeds of their crimes, Parliament sought to ensure that crime does not pay and thereby also deter future crimes: Lavigne , at paras. 10, 16 and 31; Angelis , at para. 32. Imprisonment on default of payment is thus not additional punishment for the underlying offence, but a means of coercing payment from those offenders who have the means to pay. The Constitutional Challenge [106] Kathleen Chung and Jun-Chul Chung challenge the constitutionality of the fine in lieu of forfeiture regime on two bases. First, they argue that s. 462.37(4), which requires the judge to set the term of imprisonment in default at the sentencing stage rather than the committal stage, violates both s. 7 and s. 12 of the Charter ; and second, that s. 462.37(4)(a)(vii), which imposes a five-year mandatory minimum sentence in default of payment where the amount of the fine in lieu exceeds $1 million, violates s. 12. [107] As set out below, we conclude that the Charter challenges must fail. The s. 7 challenge [108] Kathleen and Jun-Chul argue that s. 462.37 violates Kathleen and Jun-Chul’s rights under s. 7 of the Charter on the basis that an offender is potentially deprived of liberty without being afforded natural justice. In particular, Kathleen and Jun-Chul argue that there is a denial of the right to participate and make meaningful submissions as to the length of sentence to be imposed on default of payment. [109] At the time the order is imposed, the offender has the opportunity to make submissions on the appropriate penalty in the event of default. Once default has occurred, however, the offender is limited to making submissions as to whether a warrant of committal should issue. The judge at the committal hearing has no jurisdiction to vary the sentence that was established at the front end. [110] Kathleen and Jun-Chul argue that neither opportunity for submissions – at the front end or back end – is sufficient to satisfy the requirements of natural justice. Natural justice, Kathleen and Jun-Chul argue, requires that an offender be able to make submissions on the appropriate sentence for default after the default has taken place and the reasons for the default are known. It is only then, Kathleen and Jun-Chul argue, that a judge can assess the moral culpability for the default. [111] We do not agree. When the Crown seeks a fine in lieu of forfeiture, the offender has the right to be heard with respect to whether the fine should be imposed, the amount of the fine, the time to pay, and the term of imprisonment on default. Relevant considerations at this stage include the offender’s role in possessing or controlling the proceeds of crime, the whereabouts of unrestored proceeds, and – with respect to the time being given to pay – the offender’s current and anticipated ability to pay. [112] The prospective imprisonment is premised on the offender having subsequently defaulted. If default occurs, it is either culpable or non-culpable. If non-culpable, there is either no refusal to pay, or no unreasonable refusal. In such circumstances, there is to be no imprisonment. [113] If nonpayment is culpable, there will be imprisonment. [114] We do not agree that the structure of the regime breaches principles of natural justice. The rationale for sentencing on default does not track the panoply of ordinary sentencing principles that includes, for example, rehabilitation. It is principally concerned with specific and general deterrence, which are by their nature prospective. Specific deterrence in this context is concerned with providing the offender with motivation to disclose what happened to the money and to choose to pay the fine. Given this limited rationale, nothing that happens subsequently is relevant to the quantum of sentence imposed. When the offender does not pay the fine, or only pays some of it, the only open question is whether the nonpayment was the result of an unreasonable refusal. Did the offender choose not to repay? Or were there circumstances outside the offender’s control? The offender has full rights of participation at the committal hearing to answer this question. As to the prior question of what the penalty should be if the offender deliberately and unreasonably refuses to pay, there is nothing contrary to natural justice in the penalty being set in advance in accordance with submissions made before the circumstances of default are known. Consequently, we do not agree that there is a violation of s. 7. The s. 12 challenges [115] Section 12 of the Charter guarantees to everyone “the right not to be subjected to any cruel or unusual treatment or punishment.” At trial, Kathleen and Jun-Chul specifically challenged s. 462.37(4)(a)(vii) which sets out a five-year mandatory minimum sentence on default of a fine exceeding $1 million. On appeal, they added a second argument respecting s. 462.37(4) as a whole: that the requirement that the term of imprisonment be set in advance of default – before any mitigating or aggravating circumstances can be known – has the ability to produce grossly disproportionate sentences in reasonably foreseeable cases and therefore violates s. 12. [116] For the reasons set out below, we conclude that neither s. 462.37(4)(a)(vii) nor s. 462.37(4) infringes s. 12. The first argument – mandatory minimum sentences [117] There is no disagreement in this case that although the fine in lieu of forfeiture provisions do not constitute punishment, they are “treatment” for the purposes of s. 12. The dispute is whether this treatment is cruel or unusual. [118] Although the methodology for determining whether treatment or punishment is cruel or unusual has been developed primarily in the context of punishment, the same methodology applies – with some adaptation – to treatment: R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773. The basic structure is set out in Nur , at para. 46. First, the court must determine what constitutes a fit and proportionate sentence for the offence “having regard to the objectives and principles of sentencing in the Criminal Code .” Second, the court must ask whether the mandatory minimum sentence is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum limits s. 12 rights, and will be constitutionally infirm unless it can be justified under s. 1 of the Charter . [119] Boudreault is a leading authority on the interaction of s. 12 and sentencing measures, in that case the victim surcharge under s. 737 of the Criminal Code . The surcharge imposed a mandatory, pre-set fine for every summary conviction or indictable offence, “regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim”: at para. 1. The Supreme Court struck down s. 737 on the basis it constituted cruel and unusual punishment in violation of s. 12 of the Charter . Although there are similarities between the victim surcharge and fine in lieu of forfeiture regimes, in this case, the analysis is complicated by the fact that the mandatory minimum sentence is a matter of enforcing a fine in lieu of forfeiture and not a penal fine as in Boudreault . Because the objectives and principles of sentencing are different in the two contexts, the gross disproportionality analysis is different. [120] The first question is whether the mandatory minimum sentence provision results in a grossly disproportionate sentence on the person before the court. If not, the question is whether reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur , at para. 77. [121] Following the structure set out in Boudreault , disproportionality is determined by considering three factors: (1) the purpose of the provision; (2) the impact of the mandatory minimum on the offender; and (3) recognized sentencing principles. These inquiries must be modified somewhat to account for the transposition from a penal to a non-penal context. The purpose of the provision [122] As noted above, the purpose of the fine in lieu of forfeiture is to “deprive the offender of the proceeds of his or her crime and deter potential offenders and accomplices”: Lavigne , at para. 26. The mandatory minimum terms of imprisonment further these purposes by providing an incentive for those offenders with the means to pay a fine to actually pay it: Wu , at para. 3. The impact on the offender [123] The provision provides a graduated approach to terms of imprisonment on default. The larger the amount of unrestored proceeds of crime found to have been possessed or controlled by the offender, the longer the minimum term of incarceration. Although the band may be broad at the very top category for the greatest defaults, the regime is nevertheless calibrated to the amount of proceeds retained or used. If the purpose is to ensure that the offender does not benefit from the crime, where an offender frustrates that purpose by refusing pay the fine in lieu, it makes sense that lengthier periods of incarceration would be thought commensurate with greater retention or use of proceeds of crime. This is consistent with the fact that the sentence in default reduces in proportion to amounts paid toward the fine: Criminal Code , s. 734.8(2). [124] With respect to the impact of the provision on the offender, Kathleen and Jun-Chul advanced four hypothetical scenarios. Each variation involves an offender who once was in possession of the proceeds of crime but is no longer in possession. The offender may have disposed of the property or lost it without enjoying any benefit from it. Or the offender may have consumed the proceeds and no longer had any property with which to satisfy the fine, but had the means to earn an income and pay down a fine over time, before losing employment or employability and the means to pay the fine. The hypotheticals vary in the offender’s degree of culpability for no longer having access to funds or subsequently being able to earn sufficient funds: drug addiction, gambling problems, loss of gainful employment. [125] In each of the hypotheticals, when the time to pay had been exhausted and the offender defaulted, the judge at the committal hearing would be required to determine whether the offender had refused to pay, and whether the refusal would have been reasonable in the circumstances of the offender. If the judge determined that there had been a refusal, and that the refusal was not reasonable, the judge would be required to commit the offender for the period of incarceration set at the front-end hearing. The predetermined sentence would have been set by reference to a mandatory minimum. [2] [126] Kathleen and Jun-Chul argue that the mandatory minimum five-year sentence in s. 462.37(4)(a)(vii) is grossly disproportionate by reference to sentences that have been imposed on civil contemnors, and by reference to the sentence imposed for the underlying offence. [127] With respect to civil contempt, Kathleen and Jun-Chul refer to the decision in Chiang (Re) , 2009 ONCA 3, 93 O.R. (3d) 483, in which one year of imprisonment was imposed on Mr. Chiang and eight months on Mrs. Chiang as a consequence of a concerted course of conduct spanning 15 years, in which they continually breached orders requiring them to disclose their assets. Kathleen and Jun-Chul argue that if one year of imprisonment is taken as a benchmark for a contempt related to the frustration of judgment of over $8 million, then a five-year minimum for default of payment of a fine of $1 million is grossly disproportionate. [128] Kathleen and Jun-Chul also argue that a five-year term in default of payment is grossly disproportionate when compared to the hypothetical offenders’ sentences for the underlying offences. They submit the fact that an offender – like Kathleen – may serve more time for the default than for the offence itself further indicates the gross disparity between the mandatory sentence and the offender’s moral blameworthiness. [129] We do not agree with Kathleen and Jun-Chul’s submissions. As the Crown argues, the rationale for a penalty for contempt of court is different from the rationale of the impugned provisions. Civil contempt penalties are a matter of securing compliance with court orders. What is judged to be sufficient to encourage compliance and respect for the court’s processes will vary with the particular case. What is being punished, in the case of Chiang , was not non-payment of a judgment debt, but of refusing to cooperate or abide by court orders intended to assist the judgment creditor realize on a judgment. Significantly, after serving the term of incarceration, the judgment debtor would still have been required to submit to the processes that the judgment debtor had refused to participate in. [130] But as explained above, the purpose of the fine in lieu provisions is different. The purpose is not simply to provide an incentive to defiant litigants to comply with court orders. It is also to remove any benefit that the offender may have received from participating in a crime. Where the offender refuses to pay a fine in lieu of forfeiture, the incarceration stands in place of the property that has not been forfeited or the fine that has not been paid. Incarceration is intended to correct an imbalance: the injustice of the offender’s possession or use of proceeds of crime. How lengthy a sentence – how much deprivation of liberty – is required to balance what the offender has taken, is a value judgment and not something that can be expressed with mathematical precision. But we cannot say that Parliament’s conclusion that a five-year sentence for an unreasonable refusal to pay $1 million or more would be grossly disproportionate to the goal of ensuring that an offender did not benefit from a crime in which the offender received proceeds in excess of $1 million. [131] Although Boudreault was decided after the trial judge released his reasons, Kathleen and Jun-Chul rely on it to challenge two key aspects of the trial judge’s finding that the mandatory minimum sentence did not violate s. 12. First, the trial judge noted that the judge who imposes the fine has discretion over the length of time to pay, and an offender can apply for extensions of time. Second, the trial judge observed, as we have above, that a warrant of committal cannot be ordered unless the offender has refused to pay, and there is no reasonable excuse for that refusal. [132] Martin J., writing for a majority of the Supreme Court, addressed these procedural safeguards in the context of the victim surcharge in Boudreault . Before it was struck down, the victim surcharge was subject to the same safeguards as the fine in lieu of forfeiture regime, namely: the offender’s ability to request an extension of time under s. 734.3; and prohibition on issuing a warrant of committal against an offender unless they unreasonably refuse to pay, pursuant to s. 734.7. [133] In Boudreault , the Crown argued that an offender’s ability to apply under s. 734.3 for an extension of time to pay significantly mitigated the threat of incarceration. Martin J. rejected this argument on the basis that s. 734.3 offers certain offenders little, if any, relief. Martin J. explained applying for an extension of time is not a routine administrative matter, and some offenders – especially the impoverished and uneducated – would find it daunting to prepare and file a written application with the court. She also noted offenders cannot obtain state-funded legal counsel to assist with the application: at para. 73. Furthermore, Martin J. held that requiring some offenders – such as those grappling with severe addiction and mental illness – to continually appear before a committal judge to explain their inability to pay results in de facto indefinite sentences, saying, at para. 77: For all of these offenders, the effect of the victim surcharge is that they must live with a criminal sanction that they are unable to acquit for the foreseeable future, if ever. These offenders face repeated appearances before a court to explain their inability to pay the surcharge — even if that inability is rooted in mental illness or physical disability. This ritual, which will continue indefinitely, operates less like debt collection and more like public shaming. [134] Martin J. also found the requirements for issuing a warrant of committal for defaulting on a fine, as provided for under s. 734.7, were insufficient to neutralize the disproportionate effects of the victim surcharge. Though she recognized that s. 734.7(1)(b) prohibits a court from issuing a warrant of committal where the offender has a reasonable excuse, and that inability to pay constitutes a reasonable excuse, she found the provision could not attenuate the threat of imprisonment or detention under the victim surcharge, particularly since it could be difficult for committal judges to draw the line between inability to pay and a refusal to pay. Impoverished offenders would therefore live under a continual threat of imprisonment because it would be impossible to predict whether one would be able to prove a reasonable excuse at a committal hearing: at paras. 71-72. [135] Kathleen and Jun-Chul argue the same considerations apply to the fine in lieu of forfeiture regime. As with the victim surcharge, the ability to apply for additional time to pay and to present evidence of a reasonable excuse for failing to pay cannot render the mandatory minimum five-year sentence constitutional. However, for the reasons that follow, we do not agree that Boudreault invalidates the trial judge’s finding that s. 462.37(4)(a)(vii) does not violate s. 12. [136] First: the argument that the availability of time to pay and the opportunity to seek extensions can effectively lead to an indeterminate sentence. It must be noted that unlike the victim surcharge in Boudreault , the fine in lieu of forfeiture is not a punishment that applies indiscriminately to all offenders, regardless of their resources, the nature of the crime committed, or whether it is at all realistic to expect them to ever be in a position to pay. Rather, the fine is tailored to the quantum of proceeds of crime the offender has possessed or used. Granting time to pay – and extensions of time to pay – is not a matter of condemning an offender to indentured servitude, or to participating in a futile exercise in public shaming, but of giving to those offenders who are or will become capable of paying, time to organize their affairs so as to pay the fine. [137] Second, Kathleen and Jun-Chul rely on Martin J.’s observation in Boudreault that in the context of persons who are poor, unhoused, addicted, marginalized, and facing a committal hearing for non-payment of a mandatory victim surcharge, a judge at a committal hearing may find it difficult “to draw the line between an inability to pay and a refusal to pay”: at para. 71. On the facts in Boudreault , Martin J. found that the uncertainty caused by the subjectivity of the assessment added to the gross disproportionality of the surcharge. [138] The circumstances here are different, and we have no good reason to believe that a judge at the committal stage would have inordinate difficulty in drawing the line, that the committal hearing will place an unreasonable burden on the offender, or that uncertainty would render the scheme grossly disproportionate to the refusal to pay the fine. Again, there must be not just an inability to pay the fine, but a refusal. And not merely a refusal but a refusal without reasonable excuse. A person found to have received proceeds of crime in excess of $1 million is not in circumstances at all similar to the litigants in Boudreault . The uncertainty of whether one’s extreme poverty, mental illness, addiction, and instability will be accepted by a court as reasonable excuse for non-payment of a comparatively minor fine is not analogous to the facts – hypothetical or otherwise – on this appeal. On the fine in lieu of forfeiture regime before this court, as long as there is a stable legal doctrine guiding the exercise of judicial discretion, the fact that an offender does not know in advance whether the offender’s argument will be accepted is not a manifestation of cruel and unusual treatment. As explained further below, the doctrine is sufficiently stable for this purpose. Sentencing principles [139] With respect to the argument that the minimum sentence is disproportionate in cases where the term of imprisonment on default is longer than the term of imprisonment for the underlying offence, we do not agree that the comparison is apt. Again, the penal sentence that offenders receive for the offences giving rise to the proceeds of crime has a different rationale for the sentence imposed for the refusal to pay a fine in lieu of forfeiture. As this court said in Angelis , at para. 39, Part XII.2 of the Criminal Code is not offender centric. Criminal sentencing goals such as rehabilitation do not factor into the determination of a fit sentence for wilful default. There is instead a singular focus on a particular mode of deterrence – ensuring that crime does not pay in circumstances where an offender refuses to pay without reasonable excuse. Conclusion [140] We find that the trial judge made no error in concluding that the five-year mandatory minimum provision under s. 462.37(4)(a)(vii) does not infringe s. 12 of the Charter . The second s. 12 argument – setting the sentence in advance [141] The second s. 12 argument, which Kathleen and Jun-Chul advanced for the first time on appeal, does not depend on the existence of mandatory minimum terms of imprisonment. The argument is that the requirement that the term of imprisonment be set in advance of the default, before the existence of any mitigating or aggravating circumstances can be known, has the potential to result in grossly disproportionate sentences in reasonably foreseeable cases. The argument postulates that sentences that were reasonable when imposed could become grossly disproportionate when executed, because of changed circumstances in the interim that the committal judge would not be permitted to take into account. Kathleen and Jun-Chul argue that there may be degrees of culpability in circumstances giving rise to a refusal to pay, and the offender ought to have the opportunity to seek a reduced period of incarceration, commensurate with the level of culpability. [142] Kathleen and Jun-Chul advance a hypothetical offender who committed fraud and is subject to a fine in lieu of forfeiture of $1.5 million. The offender had assets outside of the country worth approximately $1.5 million, which could be liquidated to pay the fine. Time to pay was set at 3.5 years and a lengthy term of imprisonment in default was set – 8 years – on the reasoning that the offender had sufficient assets to pay and therefore refusal to pay would reflect a high degree of moral blameworthiness. The offender, while serving her 2.5-year prison sentence, instructed her husband to sell the assets and discharge the fine. Instead, he sold the assets and absconded with the proceeds. After the offender served her initial sentence, she was unable to find work and at the end of 3.5 years had contributed nothing towards repayment. The judge at the committal hearing faulted the offender for negligence in the management of her property, which resulted in her being unable to pay the fine. The refusal to pay, on the hypothetical, was unreasonable because it resulted from negligence. Kathleen and Jun-Chul argue that the offender, who was committed to serve the additional 8 years, ought to have been able to argue that the sentence on default should be reduced to reflect that non-payment was not the result of defiance, but of negligence, which ought to receive more lenient treatment. [143] We do not agree that the hypothetical raises any serious difficulty. The offender cannot repay on account of having been defrauded and, on the facts assumed, cannot be considered to have refused to pay, much less refused unreasonably. To order committal, in such circumstances, would be an error of law. [144] Under the statutory scheme, after a fine has been imposed, the offender’s moral culpability for inability to pay is addressed only through the concept of unreasonable refusal. Unless there is an unreasonable refusal, there is to be no committal. As Lavigne established, inability to pay, by itself, is not enough. The absence of a third option – incarceration but with a lesser term for cases where there is a refusal that is unreasonable but not sufficiently unreasonable to warrant the full term of incarceration – does not render the scheme unconstitutional. The appeal against the restitution order [145] At sentencing, Kathleen argued that no restitution order should be imposed beyond the proceeds that had been forfeited, and Jun-Chul argued that if any restitution or fine in lieu should be ordered, that he be made solely liable as he was the one who controlled the funds after Kathleen received them from OLG. [146] The trial judge ordered $12.5 million in restitution, payable jointly and severally by Kathleen and Jun-Chul. The trial judge also ordered the forfeiture of $7,555,589.70, which had already been seized and which was to be credited against the restitution order. After deducting the amounts forfeited, Kathleen and Jun-Chul remain jointly and severally liable under the restitution order for approximately $4.9 million. [147] Kathleen argues that the trial judge failed to consider sentencing principles when imposing the restitution order and imposed the order as a mechanical afterthought without considering its overall impact in combination with the custodial sentence on her rehabilitation or her ability to pay. She argues that the trial judge ought to have divided the restitution between them, or accepted Jun-Chul’s submission at trial that he be made liable for the full amount. [148] We agree that the trial judge does not explain the rationale for making Kathleen jointly and severally liable for the full amount of the restitution order, given that Jun-Chul’s much longer custodial sentence suggests the trial judge viewed him as significantly more culpable. Additionally, unlike the fine in lieu of forfeiture, ability to pay is a factor in making a restitution order, as is the panoply of sentencing principles including totality, proportionality, and the impact on the offender’s prospects for rehabilitation: R v. Castro , 2010 ONCA 718, 102 O.R. (3d) 609, at paras. 23-26. The trial judge did not address these principles, and made an order resulting in liability greater than double the $2.3 million fine in lieu of forfeiture he imposed on Kathleen. [149] Taking into account the full range of sentencing principles appropriate to a restitution order, including proportionality, totality, and rehabilitation, and taking into account the nature of the reduction of Kathleen’s custodial sentence, it is appropriate to vary the restitution order and reduce the amount payable by Kathleen to the amount of property already forfeited, plus $2.3 million. The amount payable by her remains jointly and severally payable by Jun-Chul. [150] We do not change the restitution order as imposed against Jun-Chul. There remain $4.9 million in unrecovered proceeds of crime. Jun-Chul had control over these funds after they were handed over to him by Kathleen. He has provided no disclosure as to the whereabouts of these proceeds. The appeal against the fine in lieu of forfeiture [151] Kathleen requested the trial judge exercise his discretion to limit the fine to the amount of proceeds that she used for her own benefit, being $600,000, less the $500,000 forfeited. The trial judge declined and instead imposed a fine in the amount of $2.3 million. [152] As we set out above, where property that is the proceeds of crime is unavailable, a sentencing judge has a limited discretion over whether to order a fine in lieu of forfeiture. Once a sentencing judge decides to impose a fine, it must be for the amount of the property for which it stands as substitute: Lavigne , at para. 34. However, as this court stated in Dieckmann , where proceeds have been dispersed among multiple convicted (or clearly guilty) offenders, a sentencing judge may impose a fine on each individual offender for an amount less than the total value of the proceeds of crime, so long as the individual fines cumulatively equal the value of the proceeds : at paras. 90-100. In Dieckmann , even though the offender had originally been in receipt of proceeds of crime in the amount of $5,143,732, the sentencing judge imposed a fine of $1,285,930 rather than the full amount, on the basis that a sizable portion of the funds had been shared with her “clearly guilty” co-conspirators. [3] [153] The sentencing judge exercised this same discretion and apportioned the fine of $4.6 million equally between Kathleen and Jun-Chul: Notwithstanding the submissions of counsel for Jun Chul Chung and Kathleen Chung, I see no ground for fines of zero or anything less than $4.6 million. The objective of the statutory provisions, as reflected in Lavigne , supra , is to ensure that crime does not pay. Also reflected in Lavigne , ability to pay is not a factor. [154] Kathleen argues that the discretion was exercised improperly. She argues that the sentencing judge erred in his characterization of her argument. The basis of her argument was not that she lacked the ability to pay a fine, which is an irrelevant consideration per Lavigne , but that she never exercised any control over the proceeds. [155] We do not agree that the trial judge erred. The statement that “ability to pay is not a factor”, in context, does not suggest that the trial judge misapprehended Kathleen’s argument. His reasons, taken as a whole, clearly address Kathleen’s argument that she did not control the funds. Contrary to Kathleen’s submissions, he found that Kathleen did have possession and control of the funds, regardless that she only used a relatively small proportion for herself. The fact that Kathleen chose to turn the funds over to the control of Jun-Chul does not negate the fact that she initially had full control, and it was her choice to dispose of the funds in this way. The trial judge was content that she was no mere conduit of the funds to Jun-Chul. She was a director of corporate entities to which some of the funds were later transferred, and a beneficiary of the Hi Ok Chung Family Trust, which received much of the funds. Investment, real estate, and vehicle purchases – and the transfer of $3 million overseas – were accomplished through these entities and directly from Kathleen’s personal account. [156] The fact that Kathleen lived modestly and retained or received comparatively little of the funds (on the Crown’s evidence, some $600,000) to her direct benefit was potentially relevant in allocating the fine in lieu as between her and Jun-Chul. If the purpose of the fine in lieu provisions is to ensure that crime does not pay, it makes sense that fines can be allocated between offenders on a differential basis that follows the money. [157] So even though Jun-Chul, on the trial judge’s findings, is the more culpable of the two and accordingly received a lengthier sentence, the fine in lieu provisions are a matter of recovery of proceeds of crime and not culpability: Dieckmann , at para. 88. A differential order could perhaps have been made on the basis that Jun-Chul had greater control over the proceeds that are now missing. But the trial judge chose not to exercise his discretion that way. He acted judicially in so doing, having regard to Kathleen’s means of control over the funds. The trial judge had reason to follow the money, not only into Kathleen’s account, but from there into corporate entities and trusts over which she had interest and some control. Regardless of whether Jun-Chul was the directing mind, her involvement with the property did not simply end with the initial deposit of the OLG cheque. Kathleen and Jun-Chul acted in concert and $4.6 million in funds have not been accounted for. (ii)     Did the trial judge err in establishing time to pay and a six-year sentence in default of payment? Time to pay [158] Kathleen and Jun-Chul were each given seven years to pay. At the sentencing hearing, they both sought 30 years. It was undisputed that should they not be in a position to access the funds that have not been accounted for, at Kathleen’s current salary, she only had the ability to pay $44,000 per year towards the satisfaction of the fine. Kathleen argues that given that she could, at best, pay down $308,000 of a $2.3 million fine in seven years, the time given to pay is clearly unreasonable. Jun-Chul takes the same position, as he submits he has no hope of discharging a $2.3 million fine in seven years. [159] We do not agree. As stated above, the purpose of giving offenders time to pay is not to inflict further punishment by indenturing them to lives of servitude. It is to ensure that crime does not pay. In some cases, giving an offender time to pay is a means of allowing the offender to arrange his or her affairs so as to realize on existing assets and pay the fine. This includes offenders who are able to recall proceeds of crime they have put into the hands of third parties. In other cases, an offender may have dissipated the proceeds and not have assets, but it is not unreasonable to require offenders to compensate for their use of proceeds of crime by requiring them to make payment over time from superfluous income. In other cases, whether because the amount of the fine is so large, or the offender’s ability to earn income so minimal, it may not be realistic to expect an offender will be able to use the time given to make much of a contribution. [160] If things progress such that Kathleen or Jun-Chul are concerned they will be unable to discharge their fines within the seven years, it is open to them to apply for additional time to pay. In any event, all the above considerations factor into the assessment at the committal hearing of whether non-payment is the result of a refusal to pay without reasonable excuse. Lavigne states that impecuniosity is a reasonable excuse, although it may be better to say that genuine impecuniosity does not, in itself, constitute a refusal at all. Where an offender is presently impecunious as a result of living lavishly, a committal judge may be appropriately sceptical. But an offender who is simply unable to save $2.3 million in seven years – without lavish living and without sheltering significant assets – should not be considered in jeopardy of incarceration as though the fine in lieu of forfeiture provisions establish a form of debtors’ prison. [161] In conclusion, in light of the purpose of the fine in lieu provisions, the trial judge did not err in refusing to grant Kathleen and Jun-Chul 30 years to pay. The six-year sentence [162] Kathleen and Jun-Chul both argue the trial judge erred in imposing a six-year custodial sentence in default of payment of the fine in lieu of forfeiture, as the six-year sentence is harsh and excessive. Specifically, they argue the trial judge erred by arriving at that sentence after considering only the amount of the fine. They submit the amount of the fine in lieu was not the only relevant factor, and there were two other relevant considerations: that the six-year sentence in default of payment – one year in addition to the mandatory minimum – is crushing, when considered in addition to the custodial sentence for the underlying offences and that there was no evidence Kathleen or Jun-Chul would evade payment. [163] We do not agree. First, the sentence in default is not to be considered as an add-on to the sentences for the convictions for fraud. It is the consequence for a separate matter – a refusal to pay a fine in circumstances where there is either an ability to pay, or an inability that is culpable. The six-year default term of imprisonment is reasonable given the control of the proceeds of crime and the failure to explain the disposition of proceeds that remain unrecovered. Second, Kathleen and Jun-Chul point to no authority requiring a trial judge to consider evidence that an offender will or will not evade payment. Again, the rationale for imprisonment in default of payment is to give serious encouragement to those with the means to pay a fine to make payment. The trial judge determined a six-year sentence in default of payment would properly encourage Kathleen and Jun-Chul to may payments, should they have the means to do so. We see no reason to interfere with that determination. [164] In summary, the appeals against the dismissal of the constitutional challenges are dismissed, as are the appeals against the quantum of the fines in lieu of forfeiture, the time given to pay, and the sentence to be imposed on default of payment. Jun-Chul’s appeal against the quantum of the restitution order is dismissed, and Kathleen’s appeal is allowed in part and the quantum of restitution is reduced to the forfeiture order plus $2.3 million. Issue 2(b): The Custodial Sentence Appeals [165] All three appellants seek a reduction for the custodial portion of their sentence. We will deal with each of these in turn. (i) Kenneth Chung’s custodial sentence of 10 months [166] Kenneth maintains that the custodial sentence of 10 months he received for theft under $5,000 is manifestly unfit. He argues that the sentencing judge failed to take into consideration his background, prior good character, and future intentions, and he submits the sentencing judge failed to address the issues of general deterrence and rehabilitation. He further submits that the theft of the lottery tickets was simply the theft of a chance of potentially winning a prize and is therefore de minimis . Therefore, an absolute or conditional discharge was the appropriate sentence. In oral submissions, counsel went even further, arguing that a lottery ticket is a piece of paper that is simply reflective of a chance to win and is therefore of no value. As a result, the wrongful taking of lottery tickets, while morally reprehensible, does not constitute theft. [167] We disagree. The sentencing judge referred to the relevant sentencing principles and noted Kenneth’s positive presentence report. The sentencing judge also considered the absence of a criminal record. Furthermore, as we have noted earlier, the wrongful taking of the lottery tickets constitutes theft. As for the limited value of lottery tickets, the sentencing judge took the amounts involved in the theft in fashioning the appropriate sentence, as he recognized that Kenneth was only convicted of theft under $5,000. His weighing of those factors and his determination of the appropriate sentence are entitled to deference, and we see no basis to interfere. [168] We note, however, that given our disposition of the Crown appeal, Kenneth will have to return to the sentencing judge to be sentenced on the additional convictions. (ii) Jun-Chul Chung’s custodial sentence of seven years [169] Jun-Chul seeks reduction of his seven-year custodial sentence to one within the range of three to five years for large-scale frauds. He argues in oral submissions that the sentence was excessively harsh given the fact that the scheme he and Kenneth devised and exploited was not particularly sophisticated and did not have serious negative consequences on the OLG. He further maintains that the sentencing judge did not consider the sentencing principle of rehabilitation. [170] We see no basis to interfere. This was a significant large-scale fraud. The appellant, while owing a duty of trust to his customers, implemented a scheme whereby lottery tickets were regularly stolen and, when the opportunity to defraud the OLG of the $12.5 million prize presented itself, he proceeded to work in concert with Kathleen to extract payment through lies and misrepresentations. The sentencing judge considered all of the sentencing principles and committed no error in his consideration of the appropriate factors in the sentence he imposed. The range of sentences for large-scale frauds is broad, and, although the seven-year sentence is high, it is not unfit in the circumstances. (iii) Kathleen Chung’s custodial sentence of four years [171] Kathleen seeks a reduction of her four-year custodial sentence. She argues that the sentencing judge erred in his identification of the applicable range of appropriate sentences. She explains that this case was unique among large-scale frauds given that: the impact on OLG, a large and sophisticated corporation, was relatively small; Kathleen, unlike Jun-Chul and Kenneth, was not in a position of trust; and this offence was not particularly sophisticated or skilled. In fact, the theft was more in the nature of a single instance of theft carried out when the opportunity presented itself. [172] In Kathleen’s submissions, the appropriate range for large-scale frauds is three to five years: R. v. Davatgar-Jafarpour , 2019 ONCA 353, 146 O.R. (3d) 206, at para. 34; R. v. Plange , 2019 ONCA 646, 440 C.R.R. (2d) 86, at para. 40. She argues that the sentencing judge erred in accepting that the Crown’s proposed range of four to five years for Kathleen’s custodial sentence was appropriate. Given that the sentencing judge expressed the view that a sentence “at the low end of the range” was appropriate in Kathleen’s case, the sentencing judge’s acceptance of the Crown’s proposed range led him into error. As a result, a three-year, rather than a four-year, custodial sentence is appropriate. [173] Further, the sentencing judge relied on the cases of R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.), at paras. 49-51, and R. v. Bogart (2002), 61 O.R. (3d) 75 (C.A.), at paras. 33, 36, for the proposition that while conditional sentences are theoretically possible, they are not generally imposed in cases of large-scale frauds. Having referenced these cases, however, he failed to note that the frauds involved in Dobis and Bogart were carried out by persons in a position of trust and involved lengthy and somewhat sophisticated frauds. Further, in the case of the large-scale fraud in Dobis , there was the additional aggravating factor that the defrauded company was crippled by the fraud and it was unclear whether the company would in fact survive the fraud. In addition, despite these aggravating features being present in those cases and absent in Kathleen’s case, both Mr. Dobis and Mr. Bogart received lower sentences than four years. [174] Therefore, in Kathleen’s submission, the sentencing judge ought to have considered imposing a conditional sentence. Although not typical in cases of large-scale frauds, it would have been appropriate here given that Kathleen was not in a position of trust and significant mitigating circumstances existed. Those mitigating circumstances included the lengthy period Kathleen spent under restrictive bail conditions, the positive presentence report, the absence of any previous conviction, her youthful age, and the fact that she has three young children at home. Alternatively, she asks that the sentence be reduced. [175] The Crown, for its part, argues that the range of sentences in large-scale fraud cases is broad, and the sentence imposed in this case falls squarely within that range. Here, Kathleen played a central role in the fraud. Without her actions, it would not have been possible to collect the $12.5 million from the OLG. She maintained her lies for the better part of a year before she ultimately succeeded in obtaining payment of the funds. The Crown acknowledges that the OLG is a large and sophisticated Crown corporation and is in a better position than other victims to absorb a loss of that magnitude. However, the Crown notes that the OLG is more in the nature of a public institution and that the fraud is one made against the public. Courts have considered such frauds to be as serious as those committed against individuals or corporations, as frauds on the public purse are not “victimless crime[s]”: R. v. Khatchatourov , 2014 ONCA 464, 313 C.C.C. (3d) 94, at para. 44; Dieckmann , at para. 75. In cases such as here, the principle of deterrence is paramount, and, in the Crown’s submission, the sentencing judge reasonably concluded that a conditional sentence was not appropriate. Therefore, the four-year custodial sentence should stand. [176] We see no error in the sentencing judge’s rejection of a conditional sentence. He recognized that, while possible, conditional sentences were generally not imposed in large-scale frauds: Dobis , at paras. 49-51; Bogart , at paras. 33, 36. In his view, having regard to the particular circumstances of the offences and the importance of deterrence in cases of large-scale fraud, it was mandatory that each of the appellants serve some time in custody. [177] In our view, however, the sentencing judge erred in imposing a four-year sentence on Kathleen. At the outset, we note that it is not clear from his reasons whether the sentencing judge correctly identified the range for large-scale frauds as being three to five years: Davatgar-Jafarpour , at para. 34; Plange , at para. 40. His only reference is to the “Crown’s range of sentencing” being appropriate, the Crown having proposed four to five years. Nowhere in his reasons does he identify the range to be three to five years. It is of note that in oral submissions on appeal, the Crown concedes that a three- to five-year sentencing range is appropriate for Kathleen. However, in fairness to the sentencing judge, Davatgar-Jafarpour and Plange , which clearly outlined the appropriate range, were decided subsequent to the sentencing. When the sentencing judge stated that Kathleen “should be sentenced at the low end of the range, taking into account certain mitigating factors”, we are left to wonder whether he understood the Crown’s proposal to be the upper end of the range and whether, in fact, the sentencing judge would have imposed a sentence of three years had he been informed of the normal range. [178] There are also significant omissions in the sentencing judge’s reasons. He made no mention of the fact that Kathleen was not in a position of trust like Jun-Chul and Kenneth. Although this court in Khatchatourov , at para. 39, and Davatgar-Jafarpour , at para. 42, has indicated that even where there is an absence of a position of trust, the appropriate range for large-scale and sophisticated frauds is still applicable, the absence of a breach of trust is nonetheless a factor that ought to have been taken into account. Further, Kathleen’s conduct can also be distinguished from the breach of “good faith” in Davatgar-Jafarpour , at para. 43, that was determined to include “[t]he same aggravating conduct that underlies and informs the aggravating nature of breaches of trust”, or the “nuanced” breach of trust referred to in Khatchatourov , at para. 41. Unlike Jun-Chul and Kenneth, Kathleen had no relationship with or good faith obligation toward the customers of Variety Plus. Further, although Kathleen persisted with her lies to the OLG in order to secure payment of the $12.5 million, the fraud was, as acknowledged by the Crown in oral submissions, a one-time crime of opportunity that is not sophisticated. This fraud was not one that was part of the ongoing fraudulent scheme perpetrated by her co-accused. Although not strictly mitigating factors, these are nonetheless significant points that distinguish Kathleen’s role as compared to that of her co-accused and other cases involving large-scale frauds. [179] By failing to correctly identify and refer to the appropriate range and by failing to note and take into account the factors we have set out above, the sentencing judge erred. Considering the circumstances of the offences and the offender, a three-year custodial sentence is fit for Kathleen. Issue 3: Did the application judge err in dismissing the s.11(b) stay application? [180] Jun-Chul and Kathleen appeal the application judge’s dismissal of their application for a stay of proceedings pursuant to s. 24(1) of the Charter on the basis that their rights to a trial within a reasonable time under s. 11(b) of the Charter have been violated. They argue that the application judge erred in attributing several delay periods to defence conduct, attributing delay to the complexity of the case, and finding the delay can be justified under the transitional exceptional circumstance provision of Jordan . [181] We disagree with these submissions. As we will explain, the application judge’s attribution of delay to defence conduct was entirely reasonable. As explained in R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 31, such determinations are “highly discretionary” and “appellate courts must show a correspondingly high level of deference thereto.” [182] As for the application judge’s attribution of delay to the complexity of the case, we agree with the Crown that the application judge’s error in deducting specific periods of delay attributable to complexity is of no consequence, as it had no impact on the outcome. Even after deducting those periods of delay, the application judge recognized that the delay incurred in this case was over the 30-month presumptive ceiling set in Jordan . As a result, the Crown bore the onus of justifying the delay. [183] In Jordan , at para. 102, the Supreme Court of Canada explained that, for cases already in the system, the release of Jordan should not automatically transform what would have, under the previous regime in R. v. Morin , [1992] 1 S.C.R. 771, been considered a reasonable delay into an unreasonable one. This was clearly a case where the parties were relying on the previous Morin framework. The appellants do not allege that the combined institutional delay in the Ontario Court of Justice and the Superior Court of Justice for this case fell outside of the Morin guidelines. As we will explain, an analysis of the criteria informing the decision as to whether the transitional exceptional circumstance provision set out in Jordan ought to apply weighs against the granting of a stay. [184] In the paragraphs that follow, we will first briefly outline the findings of the application judge. Second, we will address Jun-Chul and Kathleen’s concerns with the application judge’s attribution of delay to defence conduct and the application judge’s error in deducting periods of delay attributable to complexity. Third, we will carry out the transitional exceptional circumstance analysis as dictated in Jordan . Fourth, and lastly, we will address the submissions made in Kathleen’s oral arguments that the delay in the Ontario Court of Justice was so extensive as to justify a stay. The application judge’s findings [185] There was no dispute that the total delay between the arrest of the appellants on September 28, 2010 and the anticipated end of the trial on March 27, 2017 was 2,369 days, or 77.9 months using the formula for conversion in R. v. Shaikh , 2019 ONCA 895, 148 O.R. (3d) 369, at para. 33. The application judge found that there had been 144 days of implied or implicit defence waiver by both Jun-Chul and Kathleen. This is not contested on appeal. The application judge then deducted four periods for defence delay attributable to both Kathleen and Jun-Chul totalling 794 days. Different portions of this deduction are contested on appeal. Finally, the application judge deducted two periods of defence delay totalling 79 days attributable only to Jun-Chul. These delays were the result of accommodation for the availability of Jun-Chul’s new counsel and this counsel’s subsequent failure to attend court on time on October 7, 2013. This is not contested by Jun-Chul on appeal. The result was a net delay of 1,431 days (47 months) for Kathleen and a net delay of 1,352 days (44.5 months) for Jun-Chul. The application judge then attributed 347 days of delay to the complexity of the case and deducted the time from the net delay on the basis that it constituted exceptional circumstances. This left a net delay of 1,084 days (35.6 months) for Kathleen and a net delay of 1,005 days (33 months) for Jun-Chul. The appropriateness of the deductions for defence conduct July 21, 2011 to November 1, 2011 [186] The first period of defence conduct deductions challenged by Jun-Chul and Kathleen is the 103-day period running from July 21, 2011 to November 1, 2011. This was the period between the start of the judicial pre-trial on July 21, 2011 and the date set for its continuation on November 1, 2011. The application judge attributed it to defence delay. She found that both Jun-Chul and Kathleen had spent this period engaging in resolution discussions without scheduling the preliminary inquiry. Also, during this time period, Jun-Chul dismissed his counsel. Although new counsel was retained as early as August 8, 2011, his counsel did not respond to the Crown’s attempts to confirm her availability on the dates set for the continuation of the judicial pre-trial. [187] Kathleen argues that there was no basis in the evidence for concluding that her conduct caused any of this delay. Specifically, she argues that there was no evidence that an earlier date was available for a continuing judicial pre-trial, nor that the Crown was in a position to set preliminary inquiry dates any sooner. In fact, she questions whether the continuing judicial pre-trial was even required in the first place. Jun-Chul adopts the arguments advanced by Kathleen. [188] We see no error in the application judge’s attribution of this period to defence delay. She found that during this period, both appellants were engaging in resolution discussions instead of setting preliminary inquiry dates while those discussions were ongoing. This finding is confirmed by the record. At the continuing judicial pre-trial held on December 22, 2011, Jun-Chul ’s counsel acknowledged that, at that time, the matter had been heading toward a resolution. This was clearly a case where resolution discussions were somewhat complex and would involve all three appellants. The settlement would have to address the period of incarceration, if any, forfeiture, restitution, and fines. The contribution of one appellant to forfeiture, restitution, and fines would no doubt be relevant to determine the amount that the other two appellants would be prepared to accept in a resolution. The totality of these considerations would be important to the Crown’s decision concerning a resolution. It is clear that Jun-Chul’s change of counsel during this period delayed those discussions. [189] The application judge’s finding is reasonable and is entitled to deference. Therefore, we would not interfere with this finding. December 13, 2013 to October 30, 2014 [190] The second period challenged by the appellants is December 13, 2013 to October 30, 2014. On December 13, 2013, Jun-Chul and Kathleen advised of their intention to bring an application to stay the proceedings pursuant to s. 11(b) of the Charter as well as an application to stay the proceedings for abuse of process. The date for hearing these applications was originally set for May 12, 2014. Considering the nature of these applications for a stay of proceedings, no trial dates were set pending the outcome of this hearing. The applications were adjourned to October 27, 2014 to allow the appellants more time to review the necessary transcripts. The matters were subsequently adjourned to October 30, 2014. Although there was some delay in the preparation of transcripts, all the transcripts were available as of March 7, 2014. No reasonable explanation was put forward indicating why Jun-Chul and Kathleen were not prepared to move forward with these applications on the originally scheduled date, given that they had over two months to review the transcripts and prepare their submissions. Ultimately, the appellants did not file any material other than the transcripts, and the applications adjourned to October 30, 2014 were never brought. [191] In their factums, Jun-Chul and Kathleen argue that the full 321-day period between the December 13, 2013 judicial pre-trial and the final adjourned date of October 30, 2014 for the abandoned applications ought not to have been attributed to defence delay. Rather, Jun-Chul and Kathleen submit that only the period between the originally scheduled date for hearing the applications, May 12, 2014, to the adjourned date of October 27, 2014 is attributable to defence delay. This represents a period of 167 days instead of 321 days. They also submit that they are not responsible for the fact that the applications did not proceed on the rescheduled date of October 27, 2014. Their failure to proceed on that date was because Kenneth did not have a lawyer at that time. They maintain that the adjournment of these applications was to allow Kenneth to bring a Rowbotham application: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). [192] At the oral hearing of the appeal, Kathleen did not proceed with this ground of appeal, focussing on the delays occurring at the Ontario Court of Justice. Jun-Chul, however, did not explicitly concede this issue and appears to maintain his position to the effect that part of this period was improperly attributed to defence delay. [193] In our view, the application judge did not err in her attribution of this entire period of 321 days to defence delay. During this whole period, Jun-Chul and Kathleen were expressing their desire to bring stay applications pursuant to s. 11(b) and for abuse of process. These applications were not diligently pursued and, in the end, the appellants did not file any material in furtherance of these applications, other than the transcripts. Over this period, dates for the applications were scheduled and rescheduled. Had it not been for the pending applications that were never brought, dates for the trial could have been set at the December 13, 2013 judicial pre-trial instead of much later. February 22, 2016 to February 27, 2017 [194] The final period of delay challenged is February 22, 2016 to February 27, 2017. It is challenged solely by Jun-Chul. That period of 370 days was attributed to defence delay by the application judge. Kathleen acknowledges that this delay was properly attributable to her on account of her decision to discharge her counsel just before the scheduled trial date of February 22, 2016. Jun-Chul argues, however, that the application judge erred in deducting this period as defence delay against him. The adjournment was obtained at the request of Kathleen and Kenneth since they both dismissed their counsel on February 16, 2016. Jun-Chul maintains that he did not waive his s. 11(b) rights during this period and the application judge wrongly faulted him for not opposing the adjournment. [195] In our view, the application judge did not err in attributing this period as defence delay caused by both Jun-Chul and Kathleen. It was apparent that Jun-Chul and Kathleen wished to proceed through the system as a collective. Jun-Chul never opposed the adjournment, nor did he apply for a severance so that his trial could proceed alone. Delays caused by scheduling challenges arising directly and inevitably from the joint situation of the appellants are properly analysed collectively: see R. v. Albinowski , 2018 ONCA 1084, 371 C.C.C. (3d) 190, at paras. 36-39. Therefore, this period of defence delay of 370 days is attributable to both Jun-Chul and Kathleen. The 347-day delay due to the complexity of the case [196] The application judge considered the case to be particularly complex and determined that certain periods of delay could properly be attributed to the complexity of the case. Notably, she identified periods for voluminous disclosure, for the filing of written submissions to the preliminary inquiry judge after completion of the evidence on the preliminary inquiry, for the additional time required for the preliminary inquiry, and for recognizing the delay caused by the presence of multiple co-accused. The application judge deducted these periods on the basis that they met the test for exceptional circumstances outlined in Jordan . In total, she deducted 347 days attributable to the complexity of the case. [197] Jun-Chul and Kathleen argue that the application judge erred in making this deduction. As held in Cody , at para. 64, “Complexity cannot be used to deduct specific periods of delay.” The application judge was, in their view, required only to consider complexity as a factor when deciding whether the overall delay could be justified. She was not entitled to deduct specific periods of delay on account of complexity. By deducting periods of delay on account of complexity, she improperly minimized the overall delay figure. [198] Although we agree with the application judge’s finding that the case was complex, we also agree with Jun-Chul and Kathleen that the application judge erred in deducting specific periods of delay due to complexity. However, as noted by the Crown, when she made her decision, the application judge did not have the benefit of Cody , as that decision was released on June 16, 2017, some five months after the application was dismissed on January 3, 2017. [199] While the application judge erred in deducting specific periods of delay attributable to case complexity, her error had no impact on the outcome. It was acknowledged by the Crown that the delay was in excess of the 30-month presumptive ceiling in Jordan even after deducting the 347 days attributable to the complexity of the case. As a result, the application judge knew that the Crown bore the onus of justifying the delay and the Crown did so on the basis of the transitional exceptional circumstance provision outlined in Jordan . As we will explain in the next section, the transitional exceptional circumstance provision applies even though the deduction for complexity was erroneous. The transitional exceptional circumstance provision of Jordan [200] In Jordan , at para. 102, the Supreme Court of Canada acknowledged that for cases already in the system, the release of their decision in Jordan “should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one.” Therefore, the framework the court was creating ought to be applied “contextually and flexibly for cases currently in the system”: Jordan , at para. 94. The transitional exceptional circumstance was created on the basis that it would be unfair to judge the parties against a standard of which they had no notice: Jordan , at para. 94. The exception applies, therefore, if the Crown satisfies the court that the time the case has taken to make its way through the courts is justified based, at least in part, on the parties’ reasonable reliance on the law as it had previously existed: Jordan , at para. 96. [201] Generally, therefore, if the delay was incurred prior to the release of Jordan and the delay would have been reasonable under the Morin framework, the transitional exception will apply to justify delays beyond the 30-month presumptive Jordan ceiling. This is not to say that all cases where the delay would have been reasonable under Morin will qualify under the transitional exception. For example, keeping in mind that any analysis “must always be contextual”, the transitional exception might not assist in a “simple case” where the ceiling is “vastly exceed[ed]” due to “repeated mistakes or missteps by the Crown”: Jordan , at para.  98. [202] The present case is clearly not a simple case. There is no suggestion that the Crown has made repeated missteps resulting in a substantial delay. Importantly, it is apparent that there was reasonable reliance on the pre- Jordan law regarding delay. As earlier noted, Jun-Chul and Kathleen had announced their intention to bring an application to stay the proceedings under s. 11(b) of the Charter as early as December 13, 2013. However, they ultimately decided not to proceed with this application. It was not until late 2016, a few months after the release of Jordan , that the s. 11(b) application that is currently the subject of this appeal was brought. [203] With this background in mind, we now turn to consider whether the application judge was correct in finding that the delay was justified pursuant to the transitional exceptional circumstance provision in Jordan . [204] To determine whether a transitional exceptional circumstance justifies a delay above the 30-month presumptive ceiling, the court must conduct a contextual assessment of all of the circumstances. The relevant circumstances include: · the complexity of the case; · the period of delay in excess of the Morin guidelines; · the Crown’s response, if any, to any institutional delay; · the defence efforts, if any, to move the case along; and · prejudice to the accused. [205] See R. v. Williamson , 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 26-30; R. v. Gopie , 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 178; and R. v. Faulkner , 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 175. [206] The seriousness of the offences is also a factor to be taken into account, as it was a consideration under Morin : see Morin , at p. 787; Jordan , at para. 96. [207] While we acknowledge that the delays in bringing this case to trial were lengthy, as we will explain, an analysis of the five criteria set out in Williamson and the seriousness of the offences fully support the application judge’s conclusion that a stay is not appropriate in this case. The case was complex [208] As explained in Cody , at para. 64, complexity requires a qualitative, not a quantitative, assessment of the case. It is noted in Jordan , at para. 77, that “[p]articularly complex cases are cases that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time” (emphasis in original). Complexity is therefore to be assessed in light of the entirety of the proceedings, taking into account factors such as the volume of disclosure and length of the preliminary inquiry: Cody , at para. 64; R. v. Picard , 2017 ONCA 692, 354 C.C.C. (3d) 212, at para. 62, leave to appeal refused, [2018] S.C.C.A. No. 135; and R. v. Baron , 2017 ONCA 772, 356 C.C.C. (3d) 212, at paras. 52, 71. [209] In our view, the application judge did not err in holding that this was a complex case. It involved voluminous disclosure, a lengthy preliminary inquiry, the evidence of technical witnesses, the scheduling of several pre-trial applications, charges covering a lengthy period of time, and multiple co-accused. All of these factors support the application judge’s finding that the case was complex. The institutional delay did not exceed the Morin guidelines [210] In her reasons, the application judge stated that the institutional delay was 17 to 20 months. As the Crown explained on appeal, this was an error. These were the figures set out in the Crown’s factum for the application. In oral submissions, the Crown had told the application judge that this was an error, as the Crown substantially overstated the institutional delay. On appeal, the Crown explains that the total institutional delay properly calculated is 12.4 months, which is under the Morin guidelines of 14 to 18 months of institutional delay: Jordan , at para. 52. [211] In oral submissions, Jun-Chul and Kathleen take issue with two aspects of the Crown’s calculation. First, they consider that the time to effect disclosure in this case was excessive. Specifically, they argue that approximately four months of the period the Crown identifies as inherent delay for intake and disclosure should be considered as institutional delay, since the disclosure could not be completed because of the ongoing police investigation. Second, Jun-Chul and Kathleen indicate that approximately one month is attributable to institutional delay for the delay in securing a date for the first judicial pre-trial before the Ontario Court of Justice. They concede, however, that even if this adjustment is made, the combined institutional and Crown delay before the Ontario Court of Justice and the Superior Court of Justice is approximately 17 months, which still comes within the Morin guidelines of 14 to 18 months. As a result, this factor clearly weighs in favour of dismissal of the application. The Crown’s response to institutional delay [212] The application judge found that this factor favoured dismissal of the application. She determined that the Crown had “genuinely responded to the circumstances of the case including the voluminous disclosure, multiple co-accused and an ever-changing roster of defence counsel by seeking and creating opportunities to streamline the issues and evidence, and adapting to the evolving circumstances as the case progressed.” This factual conclusion is well supported in the record, and we agree with the application judge that this factor also favours dismissal of the application. The defence efforts to move the case along [213] It is apparent from a review of the record that neither Jun-Chul nor Kathleen demonstrated any genuine interest in moving the case along. Jun-Chul discharged his first counsel and there were delays caused by accommodating the availability of his second counsel and by this counsel’s subsequent failure to attend court on time on October 7, 2013. Lengthy delays were caused by Jun-Chul and Kathleen’s scheduling and rescheduling of their proposed stay application. They did not proceed with that application. There were also delays by the late decision of the appellants on August 6, 2015 to re-elect to a judge-alone trial. Prior to re-electing, they had advised of their intention to bring a change of venue application. Because of that pending change of venue application, a trial could not reasonably be scheduled until the venue was confirmed. Lastly, Kathleen’s discharge of her second lawyer occurred just before the scheduled trial date of February 22, 2016. This led to further delays. [214] In short, Jun-Chul and Kathleen’s actions demonstrate that they were content with the pace of proceedings. This factor therefore supports dismissal of the application. Prejudice to the appellants [215] The application judge acknowledged that the protracted nature of the proceedings exacerbated the anxiety, concern, and stigma of exposure to criminal proceedings that Jun-Chul and Kathleen felt. However, in the application judge’s view, Kathleen’s decision to discharge her lawyer just before the trial scheduled for February 22, 2016 and Jun-Chul’s failure to oppose that adjournment played a role in protracting the proceedings and called into question the degree to which Kathleen and Jun-Chul were anxious, at least at that point, to have the matter proceed expeditiously. [216] In terms of restrictions on Jun-Chul and Kathleen’s liberty, the amount of bail was significant, but the restrictions were relatively minimal and reasonable considering the nature of the allegations that involved moving the proceeds of crime out of the country. In fact, these restrictions were relaxed for Jun-Chul when he requested variations to his bail. [217] On appeal, Jun-Chul and Kathleen argue that the application judge failed to infer substantial prejudice from the length of the delay itself. Jun-Chul also argues that the application judge failed to consider the actual prejudice to Jun-Chul, who lived under the threat of a lengthy jail sentence for seven years while under bail conditions prohibiting him from travelling outside Ontario or from communicating with Kathleen, his daughter, except in the presence of counsel. [218] While we agree with the appellants that prejudice is to be inferred from the length of the delay and that this factor weighs in favour of granting the application, we do not, as the appellants suggest, view it as constituting a substantial prejudice. Rather, we consider it to be of limited significance in this case. The bail terms were not particularly onerous, certainly in respect of Kathleen, and, as the application judge found, the actions of the appellants indicate that they were not anxious to have the matter heard expeditiously. The seriousness of the offences [219] The charges in this case were undoubtedly serious. Not only did it involve a very large fraud of $12.5 million on the OLG, it also involved the victimization of the rightful owner of the lottery ticket. Under the Morin analysis, the seriousness of the offences would weigh against the granting of a stay, as this consideration “played a decisive role in whether delay was unreasonable under the previous framework”: Jordan , at para. 96. In fact, “[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial”: Morin , at p. 787. As these serious offences involved a large-scale fraud that victimized both a Crown corporation and the true owner of the $12.5 million lottery ticket, they do not warrant a stay of proceedings under the Morin framework. Does the delay in the Ontario Court of Justice justify a stay? [220] In her oral submissions, Kathleen focussed her arguments on the delay that occurred in the Ontario Court of Justice. She maintained that it was excessive to the point where a stay ought to be granted. She explained that the delay in that court totalled almost three years. Two aspects of that delay were emphasized: 1. the delay in completing disclosure; and 2. the total institutional delay in that court. [221] We are not persuaded by these submissions. The delay in completing disclosure [222] Kathleen argues that 162 days (5.3 months) to effect disclosure in this case was excessive. She was arrested on September 28, 2010 and received significant disclosure on October 27, 2010, but it was not until the end of January 2011 when the investigation ended that the materials in support of the various search warrants could be unsealed, and the contents could be disclosed to the appellants. In addition, full disclosure, including disclosure related to the search for and identification of the presumed true winner of the $12.5 million, was not completed until March 3, 2011. Therefore, Kathleen argues that approximately four months of this disclosure delay caused by the ongoing investigation should be attributable to the Crown. She further explains that the appellants could not reasonably prepare for a preliminary inquiry or otherwise address the charges until this disclosure was complete. [223] Kathleen maintains that this delay in completing disclosure from October 27, 2010 to March 3, 2011 was the fault of the Crown, which is attributable to the Crown’s decision to lay the charges and make the arrests before the investigation had been completed. [224] While we acknowledge that there were significant delays, we consider these to be reasonable in the circumstances of this case. As explained by the Crown in oral submissions, in order to find the true owner of the ticket, the OLG had to publicly announce that Kathleen did not win the $12.5 million prize and ask those who may be the legitimate owner of the ticket to come forward. If the announcement was made before the seizure of the defrauded funds and the freezing of the assets acquired by the appellants with the stolen funds, the appellants, knowing that they would have to return the funds and would likely be charged, may well have dissipated or taken the funds and assets out of reach of the authorities. Therefore, the seizure of the funds and freezing of the assets could not reasonably be effected until the charges were laid. [225] As for the unsealing of the material in support of the search warrants, this could not occur until after the search for the true winner had been carried out. This is because the material would disclose key information that only the true purchaser of the ticket would know, information such as the date and location of the purchase of the original ticket. As indicated by the Crown during oral submissions, the release of this search warrant information could have tainted the investigation for the true winner. [226] In these exceptional circumstances, we would not fault the Crown for delaying the disclosure of the search warrant materials or for laying the charges, even though the investigation, to some degree, was ongoing: see R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 16; R. v. Schertzer , 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 116, 128 and 131, leave to appeal refused, [2010] S.C.C.A. No. 3. [227] In any event, as we have explained in our analysis of the transitional exceptional circumstance provision of Jordan , even if the inherent delay allocated for intake and disclosure was reduced by four months and these four months were subsequently allocated to Crown delay, the overall institutional and Crown delay would still be within the Morin guidelines. [228] A second concern raised by Kathleen with respect to disclosure is the delay in disclosing documents that were in the possession of the OLG. It was only shortly before the preliminary inquiry was scheduled to commence that the Crown was alerted that documents in the possession of the OLG had not been provided to the Crown, and therefore were not disclosed to the appellants. The preliminary inquiry could not be completed until these documents were obtained by the Crown and disclosed to the appellants. [229] Kathleen argues that it was the Crown’s responsibility to have obtained and disclosed these documents well in advance of the scheduled preliminary inquiry. She maintains that the delays caused by the Crown’s failure to do so weigh in favour of granting a stay. [230] In our view, the delay by the Crown to secure the OLG documents and provide them to the appellants as part of their disclosure obligations does not amount to a misstep by the Crown that warrants or supports granting a stay. The documents were in the possession of the OLG, a non-party to these proceedings. While the Crown ought to have been aware of their existence, as there was a reference to these documents in the Ombudsman’s report regarding an investigation into the OLG, the appellants also had access to this report and could have requested the production of these documents. It was not until the preliminary inquiry was scheduled that this issue came to light. Once it was discovered, the Crown acted quickly to obtain the documents, and the parties cooperated to make best use of the preliminary inquiry dates that had been set aside. The amount of institutional delay in the Ontario Court of Justice [231] Kathleen argues that the start date of the preliminary inquiry was delayed because of a lack of court resources. She submits that while counsel was prepared to commence the preliminary inquiry in early fall of 2012, the court ultimately scheduled the preliminary inquiry to commence on November 6, 2012. In addition, she maintains that before the preliminary inquiry was completed, further delays were caused by the disclosure issues and the court’s unavailability. The preliminary inquiry scheduled for November 2012 therefore continued in February and May 2013, concluding on May 29, 2013. The matter was then adjourned to September 24, 2013 for the decision on committal, since the preliminary inquiry judge had other judgments under reserve. These institutional delays were lengthy and contributed to the excessive time the case took to proceed through the Ontario Court of Justice. In Kathleen’s submission, this, in combination with the disclosure delays, is sufficient to justify granting a stay of proceedings. According to Kathleen, a case taking three years to work its way through the Ontario Court of Justice is simply unacceptable. [232] We agree that institutional delay in the Ontario Court of Justice is certainly a factor to be taken into account, as is the total length of time that a case takes to work its way through that court. Those delays, however, have been taken into account in the Morin analysis we carried out earlier. Under the Morin framework, it is the combined institutional and Crown delay for the Ontario Court of Justice and the Superior Court of Justice taken together that is considered, as it is the “reasonableness of the overall delay” or the “reasonableness of the total period of time” that needs to be assessed: see R. v. Conway , [1989] 1 S.C.R. 1659, at p. 1674; R. v. Bennett (1991), 3 O.R. (3d) 193 (C.A.), at p. 211, aff’d [1992] 2 S.C.R. 168; and Schertzer , at para. 122. Therefore, an excessive delay in the Ontario Court of Justice can, in effect, be remedied by a short delay in Superior Court, as long as the total delay is reasonable. The overall delay in this case did not exceed the Morin guidelines. Conclusion [233] There is no doubt that the delay in this case far exceeded the 30-month presumptive ceiling of Jordan . When the 347 days of delay that the application judge improperly deducted on account of complexity are added to the 1,005 days of net delay for Jun-Chul and the 1,084 days of net delay for Kathleen, the net delays rise to 1,352 days (44.5 months) for Jun-Chul and 1,431 days (47 months) for Kathleen. If, as argued by the appellants, the application judge improperly allocated some of the delay to defence conduct, the delay numbers would rise even higher. [234] In our view, however, despite the extent of the delay over the Jordan ceiling, we agree with the application judge’s conclusion that this is a case that falls squarely into the category of cases to which the transitional exceptional circumstance provision outlined in Jordan applies. Therefore, we would dismiss this ground of appeal advanced by Jun-Chul and Kathleen, as the application judge did not err in dismissing the s. 11(b) stay application. Issue 4: Did the trial judge err in not granting interest to Kenneth Chung? [235] The Crown was in possession of $28,874.51 from Kenneth. On February 21, 2019, it was ordered that the funds be returned to him. The forfeiture judge declined to award interest on the funds. Kenneth Chung appeals that order. He relies on the Civil Remedies Act , 2001, S.O. 2001, c. 28, the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, and the Courts of Justice Act , R.S.O. 1990, c. C.43, to say that interest should have been provided. [236] The provincial statutes that Kenneth relies on relate to civil proceedings. They have no application to the federal Criminal Code which makes no provision for the payment of interest on money restrained and subsequently ordered returned. The trial judge did not err and this portion of Kenneth’s appeal is dismissed. Issue 5: Did the trial judge err in acquitting Kenneth of counts 3-6? [237] The Crown appeals Kenneth’s acquittal on count 3 (the theft of the winning ticket), count 4 (possession of the winning ticket), count 5 (fraud) and count 6 (possession of the proceeds of crime). [238] Relying on Exhibit 38, the trial judge found there was a scheme by Jun-Chul and Kenneth to steal free tickets. He found they were joint participants in an eight-month scheme under which they stole lottery tickets from customers. He convicted them both for theft and possession of stolen lottery tickets. However, the trial judge refused to consider the split ticket scheme in relation to remaining counts because the Crown did not bring a similar fact application: As noted, no application was brought by the Crown to have the evidence relevant to Counts 1 and 2, that I have reviewed, rendered admissible under Count 3 or, for that matter, any of the other Counts. Accordingly, I will not consider any of the “pattern” evidence elicited under Count 1, through Exhibit 38, on any of the other counts, including Count 3. [239] The Crown submits that the trial judge wrongly treated the theft of the winning ticket as an isolated act and acquitted Kenneth because there was insufficient evidence under counts 3-6 to support a conviction. In response, Kenneth repeats the submissions relied upon with respect to his appeal of the convictions on counts 1 and 2. [240] In each of the remaining counts, the trial judge – having ignored his finding on the split ticket scheme – found that there was a reasonable doubt because Kenneth could have been told that Kathleen was the legitimate owner of the ticket. [241] We have concluded that the trial judge erred by failing to consider Kenneth’s participation in the split ticket scheme on the remaining counts. This legal error had a material bearing on the acquittals. [242] We have further concluded that the trial judge’s factual findings with respect to counts 1 and 2 establish Kenneth’s guilt on counts 3 and 4 beyond a reasonable doubt. But for the error, Kenneth would have been convicted. However, the trial judge did not make factual findings sufficient to convict on counts 5 and 6. Therefore we substitute a conviction on counts 3 and 4 and order a new trial on counts 5 and 6. The legal error [243] The trial judge concluded that Kenneth Chung was a joint participant in the split ticket scheme. He concluded that it was “clear that Jun-Chul Chung stole some of the tickets and Kenneth Chung stole some. However, more fundamentally, in my view they are both guilty of all the thefts as parties under s. 21(1)(a) of the Code .” [244] It was pursuant to that scheme that the winning ticket was stolen. Thirty-one free tickets were stolen, one won the $12.5 million. The theft of the 31 st ticket was not an isolated act but part of the scheme. The trial judge was required to consider all of the evidence, and evidence of Kenneth’s participation in the scheme was admissible on counts 3-6. This was addressed by Doherty J. (as he then was) in R. v. Sahaidak , [1990] O.J. No 3228 (Ont. H.C.), at para. 150: In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible for or against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assists the trier of fact in understanding and assessing the evidence on the other counts, then the evidence directly relevant to one count is admissible on the other counts as well. [Emphasis added.] [245] This reasoning was cited with support in R. v. Kirk , [2004] O.J. No. 3442 (C.A.), at para. 15. [246] The scheme to steal free tickets, which produced 30 no wins or nominal wins, also produced the winning ticket. The winning ticket was part of “an ongoing course of dealings” and was “interwoven and interrelated.” The scheme outlined in Exhibit 38 was admissible on the remaining counts in the indictment. The legal error had a material bearing on the acquittals. The facts found by the trial judge support convictions on counts 3 and 4 [247] On an appeal from an acquittal, this court may “ enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law”: s. 686(4)(b)(ii) of the Criminal Code. The trial judge’s conclusion that Kenneth was a joint participant in the scheme pursuant to s. 21 of the Criminal Code leads inevitably to convictions on counts 3 and 4. [248] Section 21(1) of the Criminal Code provides: Everyone is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. [249] As found by the trial judge, the scheme that Kenneth participated in was to steal lottery tickets. The scheme produced the winning ticket. Kenneth is guilty of theft and possession of the winning ticket based on the same evidence that resulted in his convictions on counts 1 and 2. [250] With respect to count 3, theft of the winning ticket, the trial judge found as follows: It has not been established that Kenneth Chung was present in the store at the time Jun-Chul Chung stole the ticket. I am not persuaded beyond a reasonable doubt that he was involved in the theft. He must be acquitted on Count 3. [251] The trial judge made the same finding on count 4, possession of the winning ticket. [252] These findings by the trial judge on counts 3 and 4 are inconsistent with Kenneth’s involvement in the scheme to steal tickets. The theft of the winning ticket was indistinguishable from the other 30 tickets. As part of the scheme it was not necessary for Kenneth to steal the specific ticket. As the trial judge held, the scheme involved Kenneth stealing some tickets and Jun-Chul stealing some tickets, but they are both guilty of all of the thefts. Had the trial judge considered the scheme, Kenneth would have been found guilty of theft of the winning ticket (count 3) and possession of the winning ticket (count 4). The facts found by the trial judge cannot support convictions on counts 5 and 6 [253] Common sense would suggest that the purpose of stealing a lottery ticket is to defraud the OLG and cash in the ticket. However, the trial judge’s findings with respect to counts 5 and 6 are not sufficient to invoke s. 686. [254] With respect to count 5, defrauding OLG, the trial judge found that when Kenneth attended meetings at the OLG he joined in the story that Kathleen had purchased the original ticket that generated the winning ticket. [255] In acquitting Kenneth on count 5, the trial judge relied on the fact that Kenneth could have been told that Kathleen was the rightful owner: The issue is whether Kenneth Chung is also guilty on this count. Once again, not without doubt, I am not convinced of his guilt beyond a reasonable doubt. As noted earlier, it is possible that he was told, falsely, that Kathleen Chung was the legitimate purchaser of the original ticket, and he believed her. Once again, this is a reasonable possibility which is inconsistent with Kenneth Chung’s guilt. Accordingly, he must be acquitted on Count 5. [256] Although Kenneth stole the winning ticket, there are no findings from which it can be determined that Kenneth knew the truth when he participated in the meetings at the OLG. It is unclear whether the trial judge’s “reasonable possibility” that Kenneth did not have the requisite knowledge would have remained had he considered the scheme. [257] With respect to count 6, possession of the $12.5 million paid, the trial judge expressed similar concerns: While Kenneth Chung obtained considerable benefit from some of the proceeds of the $12.5 million, once again I am not convinced beyond a reasonable doubt that he knew that the money and property were obtained by fraud. As noted, it is at least a reasonable possibility that he was told that Kathleen Chung was the legitimate owner of the ticket, and he believed her. Thus, it is a reasonable possibility which is inconsistent with the guilt of Kenneth Chung. [258] We are not satisfied that, but for the error, Kenneth would have been convicted of counts 5 and 6. [259] Pursuant to s. 686(4)(b)(ii) of the Criminal Code a conviction is entered on counts 3 and 4 and the matter is returned to the Superior Court for sentencing. With respect to counts 5 and 6 a new trial is ordered. CONCLUSION [260] Kathleen Chung’s appeal is allowed in part as follows: a. The quantum of restitution is reduced to the amount of the forfeiture plus $2.3 million. b. The custodial sentence is reduced to three years. [261] The Crown appeal of the acquittals of Kenneth Chung is allowed as follows: a. A conviction is entered on counts 3 and 4 and the matter is returned to the Superior Court for sentencing. b. A new trial is ordered on counts 5 and 6. [262] In all other respects the appeals are dismissed. Released: March 31, 2021 “P.R.” “Paul Rouleau J.A.” “M.L. Benotto J.A. “B.W. Miller J.A.” [1] Jun-Chul, Kenneth, and Kathleen were also charged with money laundering under Count 7. The trial judge acquitted all three of the money laundering charge, and the Crown does not appeal that acquittal. [2] It would be unwise to speculate as to what constitutes a refusal to pay, and what constitutes an unreasonable refusal to pay. This is an area of law that must be developed on a case-by-case basis. We do not propose to decide these questions on the basis of hypotheticals that may or may not constitute reasonable refusals. The basic principles are that the purpose of the provision is to prevent an offender from benefitting from crime, and that the committal can only be a consequence of unreasonable refusal, and not genuine inability to pay. There may well be cases of self-induced poverty, by which the property will have been consumed and the offender will thereby have received a benefit. This type of poverty is no defence to incarceration. [3] Dieckmann dealt with a large-scale scheme that defrauded the Canada Revenue Agency of approximately $5.7 million. There were four co-conspirators: Mr. Davis, Ms. Hartman, Ms. Dieckmann, and Mr. Salmon. All four co-conspirators benefitted from the scheme and were named defendants before the court, but Mr. Davis and Ms. Hartman died before trial. Mr. Salmon and Ms. Dieckmann were both convicted, and the court accepted Mr. Davis and Ms. Hartman were “clearly guilty” and would have been convicted had they survived to trial. When imposing the fines in lieu of forfeiture, the trial judge apportioned the $5.7 between all four co-conspirators (albeit notionally, for Mr. Davis and Ms. Hartman), based on their respective roles in and benefits derived from the scheme. Accordingly, although Ms. Dieckmann had possession and control of the full $5.7 million at one point or another, the trial judge only fined her $1,285,930 . Collectively, the four fines totaled $5.7 million, being the value of the proceeds of crime subject to forfeiture: see R. v. Dieckmann , 2014 ONSC 717, aff’d 2017 ONCA 575, 355 C.C.C. (3d) 216, leave to appeal refused, [2018] S.C.C.A. No. 304 and No. 381.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Codina, 2021 ONCA 317 DATE: 20210513 DOCKET: C69153 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Angelina Codina Appellant Angelina Codina, acting in person Vanita Goela, for the respondent Heard: in writing On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated February 1, 2021, with reasons reported at 2021 ONSC 765. REASONS FOR DECISION [1] The appellant appeals the dismissal of her application for a writ of habeas corpus , alleging that she has been unlawfully detained and should be released. [2] There are two stages in determining whether a habeas corpus application should be granted. First, the court must determine whether reasonable and probable grounds exist for the complaint. Second, if the court is satisfied that the grounds exist, then the application is heard on its merits: R. v. Olson , [1989] 1 S.C.R. 296, at p. 298. [3] In his reasons dated February 1, 2021, for dismissing her habeas corpus application, the application judge concluded that the appellant did not satisfy the first limb of the test: there are no reasonable grounds for the complaint that the applicant is unlawfully detained. [4] Pursuant to the endorsement of MacPherson J.A. of March 10, 2021, this appeal proceeded in writing. The appellant filed both a factum and a reply factum. [5] The appellant argues that the application judge’s conclusion that the first limb of the test was not satisfied is tainted by legal error. For the following reasons, we reject that argument and dismiss this appeal. Background [6] Some background is necessary to provide context for this appeal. [7] A jury convicted the appellant of four counts of providing advice or representation for consideration, contrary to s. 91(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA”), and one count of knowingly counselling a person to make a misrepresentation in relation to matters relevant to the administration of the IRPA, contrary to s. 126. The trial judge imposed a total sentence of seven years, with two years’ credit for presentence custody, yielding a net sentence of five years. The trial judge also ordered the appellant to pay restitution in the amount of $30,200. The reasons for sentence are reported at R. v. Codina , 2018 ONSC 2180. [8] The appellant appealed conviction and sentence. This court heard and dismissed her sentence appeal in December 2019: R. v. Codina , 2019 ONCA 986. The conviction appeal was heard on October 26, 2020. The appellant raised 11 grounds of appeal, including that the Canadian Border Services Agency did not have jurisdiction to arrest her. Her conviction appeal was dismissed from the bench, for reasons which followed in R. v. Codina , 2020 ONCA 848 (“the Conviction Appeal”). [9] After this court dismissed the Conviction Appeal, she filed her habeas corpus application with the Superior Court on December 17, 2020. On January 7, 2021, this court received the appellant’s notice of motion to re-open the Conviction Appeal arguing, among other grounds, that there had been a change in the law. [10] The appellant’s habeas corpus application was dismissed from the bench on January 22, 2021, and the reasons were released on February 1, 2021: R. v. Codina , 2021 ONSC 765. The application judge wrote: Nearly all of the grounds outlined by the applicant were determined at trial before Molloy J. and at the Court of Appeal. On both occasions, the applicant’s complaints were dismissed. For example, the claims that the Canadian Border Services Agency lacked jurisdiction to arrest the applicant was discussed and dealt with at paras. 47-50 of the Court of Appeal’s decision; the deficiencies in the indictment at paras. 69-73. The applicant’s latest claim, regarding a change in the law, is a matter that she seeks to raise before the Court of Appeal for Ontario. If the applicant is successful in persuading the court to re-open the appeal, it would be open to her to apply for bail. If unsuccessful, then the question of whether her detention is unlawful on that basis is resolved. [11] The appellant brought a motion to re-open her appeal in this court in January 2021. On February 3, 2021, this court received the appellant’s motion for bail pending determination of the motion to re-open her appeal. [12] On February 24, 2021, this court dismissed the appellant’s motion to re-open the Conviction Appeal and her sentence appeal and accordingly dismissed the application for bail as moot: R. v. Codina , 2021 ONCA 109. The court concluded that all the appellant’s points, save one, were dealt with in the court’s comprehensive reasons for dismissing the Conviction Appeal and there was no basis to assert a miscarriage of justice. On the motion, the appellant argued that a new independent federal body has been created to regulate and govern immigration consultants, and because of the creation of this new regulatory body, s. 91(1) of the IRPA is null and void. As to this new argument, the court wrote, at para. 6: The applicant also asserts that the appeals should be reopened because a new independent federal body has been created to regulate and govern immigration consultants. That, however, is irrelevant to the charges against the applicant, who in any event was never an authorized immigration consultant. [13] The appellant has sought leave to appeal her Conviction Appeal and sentence appeal to the Supreme Court of Canada and bail pending that appeal. Her bail application has been adjourned, pending the decision on her application for leave to appeal to the Supreme Court of Canada. Analysis [14] The appellant advances what we would characterize as two main arguments. The first is that the application judge erred in his approach by considering determinations, or anticipated determinations, in her criminal proceedings in determining her habeas application. The second is that the application judge’s reasons were insufficient. (1) Consideration of determinations in her criminal proceedings [15] We understand the appellant to argue that the purpose of the criminal proceedings against her – her Conviction Appeal, her motion to re-open, and her bail application – on the one hand, and her habeas application, on the other, differs, so that the determinations of the trial judge and this court’s determinations or anticipated determinations on the Conviction Appeal, the motion to re-open and bail application were irrelevant, and should have had no bearing on her habeas application. She argues that the application judge erred in relying on those determinations and anticipated determinations. [16] By way of example, the appellant submits that the application judge should himself have addressed her change in law argument and not left it to this court to determine on her motion to re-open. In brief, that argument, as now framed,  is that: as a result of the enactment of the College of Immigration and Citizenship Consultants Act , S.C. 2019, c. 29, s. 292, in 2019, s. 91(9) of the IRPA is deemed to have been repealed; because she was convicted under s. 91(9), it is a change in law in her favour and, as she was still “in the judicial system” at the time of the change, she is entitled to the benefit of that change; and, as s. 91(9) is deemed to have been repealed, her detention as a result of being convicted under that section is unlawful. We understand her to argue that since the application judge erred by failing to address her change in law argument on the habeas application, the court should consider the change in law issue afresh on this appeal, and is not bound by the determination of the court on the change of law issue on the motion to re-open. She says that this court did not fully address her change in law arguments on the motion to re-open. [17] On the habeas application, the appellant filed an affidavit and a reply factum in which she briefly addresses the change of law issue. In these materials, she frames her argument in a manner similar to on her motion to re-open . [18] The appellant devoted approximately three paragraphs of her hand-written factum on the motion to re-open to her change of law argument and this court addressed the argument she made in its reasons on her motion to re-open.  On this appeal, the appellant frames her change of law argument much more broadly than she did in her affidavit and reply factum on the habeas application and in her factum before this court on her motion re-open. [19] In our view, the application judge did not err in his approach. The appellant was seeking to re-litigate issues that were comprehensively addressed by the trial judge and this court or to litigate the key basis for the motion to re-open that was pending in this court. (2) Sufficiency of reasons [20] The appellant argues that the application judge’s reasons were insufficient because he did not address what she says was her argument that the trial court lacked jurisdiction to try the offences because Public Prosecution Services Canada (“PPSC”), which conducted the prosecution in this case, does not have statutory authority to proceed by way of direct indictment. She argues only the Department of Justice of Canada may do so and the PPSC is not part of the Department of Justice. The application judge’s reliance on this court’s reasons on the Conviction Appeal was insufficient as this court did not address this jurisdictional argument in the portion of its reasons about the alleged deficiencies in the indictment. [21] The appellant makes this jurisdictional argument without reference to any authorities or supporting materials. [22] The application judge provided sufficient reasons. He outlined the applicable test for a habeas application and explained why the application was dismissed. Reasons need not address every argument advanced: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 35, 57. We are satisfied that his reasons addressed the critical issues and have provided the appellant with the grounds for meaningful review. Disposition [23] Accordingly, the appeal is dismissed. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Codina, 2021 ONCA 109 DATE: 20210224 DOCKET: M52099 & M52188 (C65015) MacPherson, van Rensburg and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Angelina Marie Codina Appellant/Applicant Angelina Codina, acting in person Vanita Goela, for the respondent Heard: in writing REASONS FOR DECISION [1] The applicant Angelina Codina applies to re-open her conviction and sentence appeals and seeks judicial interim release pending the disposition of this application and any rehearing of her appeals. [2] The applicant was convicted by a jury of four counts of providing advice or representation to persons on immigration matters for consideration without being authorized to do so, contrary to s. 91(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“ IRPA ”), and one count of knowingly counselling a person to make a misrepresentation in an immigration application, contrary to s. 126 of the IRPA . She was sentenced to seven years’ imprisonment, less two years’ credit for pre-sentence custody, for a net sentence of five years, and ordered to pay restitution in the amount of $30,200 . [3] The applicant’s conviction and sentence appeals were bifurcated. Her sentence appeal was heard and dismissed on December 16, 2019: R. v. Codina , 2019 ONCA 986. Her conviction appeal was dismissed from the bench on October 26, 2020, for reasons released on December 30, 2020: R. v. Codina , 2020 ONCA 848 (“ Codina (2020) ”). [4] Rather than apply for leave to appeal to the Supreme Court of Canada, the applicant now asks this court to re-open her appeals based on an alleged miscarriage of justice. She asserts that s. 91 of the IRPA is ultra vires Parliament, the Canada Border Services Agency (“CBSA”) did not have the jurisdiction to arrest or charge her, she could not be convicted because she used a corporation to provide immigration services, and the trial judge misdirected the jury. [5] We see no basis to reopen the appeals. All these points were dealt with in this court’s comprehensive reasons dismissing the applicant’s appeal from conviction: Codina (2020) , at paras. 51-64 (s. 91 of the IRPA is not ultra vires Parliament), 47-50 (jurisdiction of CBSA to arrest and detain the appellant), 78-82 (exclusion of evidence of the corporate organization to provide immigration services), and 83-101 (jury instructions). Nothing was overlooked. There is no basis to assert a miscarriage of justice. [6] The applicant also asserts that the appeals should be reopened because a new independent federal body has been created to regulate and govern immigration consultants. That, however, is irrelevant to the charges against the applicant, who in any event was never an authorized immigration consultant. [7] The application to re-open the conviction and sentence appeals is dismissed. Given this conclusion, the application for bail is dismissed as moot. “J.C. MacPherson J.A.” “K. van Rensburg J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Codina, 2021 ONCA 370 DATE: 20210602 DOCKET: M52317 (C65015) Paciocco J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Angelina Marie Codina Applicant Martin Kerbel, for the applicant Vanita Goela, for the respondent Heard: in writing ENDORSEMENT OVERVIEW [1] Angelina Codina has applied for leave to appeal three decisions of this court to the Supreme Court of Canada (the “Leave to Appeal Application”). In this application in writing, she seeks bail pending her Leave to Appeal Application. [2] Ms. Codina has not met her burden of persuading me that her release pending the determination of her Leave to Appeal Application is in the public interest. The application for bail pending leave to appeal to the Supreme Court of Canada is therefore dismissed. BACKGROUND & MATERIAL FACTS [3] Ms. Codina is a trained lawyer who was disbarred in Ontario after being convicted of defrauding the Ontario Legal Aid Plan. She was subsequently convicted in New York State of grand larceny and a fraud charge, where she served a 5-year sentence before being deported to Canada. [4] While in Canada, Ms. Codina owned and administered “Codina International”, an immigration consulting corporation. As the result of events that occurred between late 2011 and early 2014 relating to Codina International, Ms. Codina was charged with offences contrary to the Immigration and Refugee Protection Act , S.C. 2001 , c. 27 (“ IRPA ”). [5] On November 22, 2017, after a trial by jury, Ms. Codina was convicted of four counts of providing advice to persons on immigration matters without being authorized to do so, contrary to s. 91(1) of IRPA . She was also convicted on one count of knowingly counselling a person to make a misrepresentation in an immigration application, contrary to IRPA s. 126. [6] On May 29, 2018, Ms. Codina received a sentence of seven years’ imprisonment, which was reduced to five years because of pre-sentence custody. She was also ordered to pay $30,200 in restitution. In sentencing Ms. Codina, the sentencing judge concluded that she is someone who preys on vulnerable people and who represents “a threat to the community because she is ungovernable”. [7] Ms. Codina appealed both her convictions and sentence to this court. To minimize delay, the appeals were bifurcated after a case management conference. Ms. Codina’s sentence appeal was dismissed on December 16, 2019. Her conviction appeal was dismissed from the bench on October 26, 2020 for reasons to follow, which were released on December 30, 2020. [8] Ms. Codina did not seek leave to appeal either decision to the Supreme Court of Canada in a timely way. Instead, she filed a habeas corpus application in the Superior Court of Justice and a motion before this court to re-open her conviction and sentence appeals. The habeas corpus application was dismissed from the bench on January 22, 2021, with reasons released on February 1, 2021. Recently, on May 13, 2021, this court dismissed an appeal in writing from that dismissal. By that time, Ms. Codina’s motion to re-open her appeals, which was also heard in writing, had already been denied on February 24, 2021. [9] The Leave to Appeal Application that Ms. Codina now brings to the Supreme Court of Canada advances grounds raised in a notice of application for leave to appeal and additional grounds identified in a supplementary notice of application for leave to appeal. In her Leave to Appeal Application, Ms. Codina seeks leave to appeal the decisions rendered by this court in her conviction appeal, her sentence appeal, and her motion to re-open those appeals. The Supreme Court of Canada has yet to decide whether to assign a file number to the Leave to Appeal Application. MS. CODINA’S POSITION [10] Ms. Codina now applies, in writing, for release pending the disposition of her Leave to Appeal Application. This application was initially set to be heard in writing on April 7, 2021 but was adjourned at Ms. Codina’s request so that she could retain counsel and file additional material. [11] In support of this application, which is now ready to be heard, Ms. Codina argues that the many grounds of appeal she proposes in her Leave to Appeal Application are substantial and meritorious. Those grounds of appeal include challenges that were rejected by this court, most notably: · challenges to the constitutionality of IRPA , ss. 91(1) and 126, · challenges to the validity of the indictment, · Charter and jurisdictional challenges related to her arrest and charging, and · challenges to the trial judge’s jury charge. [12] Ms. Codina also argues that, during her conviction appeal, this court misapprehended arguments she made challenging the indictment. She further submits that, during her motion to re-open, this court misapprehended her argument that IRPA s. 91(1) has been “arrogated or assumed” by s. 77(c) of the College of Immigration and Citizenship Consultants Act , S.C. 2019, c. 29, s. 292 (“ CICCA ”), which came into force in June 2019. She argues that CICCA necessarily rendered IRPA s. 91(1) inoperative, and that this has made unauthorized representation a regulatory, non-criminal matter. She argues that she should have the benefit of this change in the law, and that this change in the law enhances her Leave to Appeal Application. [13] Of note, Ms. Codina also argues that the decision to bifurcate her conviction and sentence appeals deprived this court of information it required to adjudicate the sentence appeal. This argument is being raised for the first time in the Leave to Appeal Application. [14] In further support of this application, Ms. Codina relies on her history of surrendering for court hearings and argues that, at 63 years of age, she is at heightened risk of COVID-19 infection while incarcerated, increasing the public interest in her release. She relies, as well, on proof that she would be employed while on release pending her Leave to Appeal Application. THE CROWN’S POSITION [15] The Crown opposes Ms. Codina’s application for bail pending her Leave to Appeal Application. Although conceding that Ms. Codina would likely surrender herself into custody as required, the Crown argues that she has not met her burden of establishing on the balance of probabilities that her detention is not necessary in the public interest. The Crown submits that Ms. Codina’s grounds of appeal are frivolous, that she poses a residual risk to public safety, and that, in the circumstances, she has not shown that the public interest in enforcement outweighs the public interest in reviewability. ANALYSIS [16] I would dismiss Ms. Codina’s application for bail pending her Leave to Appeal Application. [17] I do so even though I am not prepared to join the Crown in characterizing Ms. Codina’s proposed grounds of appeal as “frivolous.” As the Supreme Court of Canada recently emphasized, the “not frivolous” standard is “a very low bar”: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. [18] However, in assessing the reviewability interest, the strength of the appeal plays a central role. Although the initial “not frivolous” hurdle is met in this case, I cannot say that Ms. Codina’s proposed grounds of appeal “ clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland , at para. 44 (emphasis added). This decreases the weight of the public interest in reviewability. [19] I also share the Crown’s conclusion that there is a residual public safety concern. Ms. Codina is no longer presumed to be innocent of the offences that are the subject of her Leave to Appeal Application. Those offences are serious and Ms. Codina was found, on impressive evidence, to have committed those offences against highly vulnerable individuals. There is foundation on the record for the sentencing judge’s conclusion that Ms. Codina preys on the vulnerable and is ungovernable. The residual risk she poses increases the weight of the public interest in enforcement. [20] Even leaving aside the residual risk to public safety, the seriousness of the offences and the significant sentence imposed support the public interest in enforcement. [21] Importantly, Ms. Codina has no further right of appeal. She has had her appeals, as well as a habeas corpus application and a motion for reconsideration. I have already noted that the grounds of appeal she proposes in her Leave to Appeal Application do not appear strong. I would add that the operation of the reviewability principle in this case is contingent upon the Supreme Court of Canada granting Ms. Codina leave to appeal, something which that court does only sparingly. At this juncture of the proceedings, “the principle that trial judgments should be enforced is very much in play” and should be given “paramountcy” in this case: R. v. Drabinsky , 2011 ONCA 647, 276 C.C.C. (3d) 277, at paras. 11 and 13. [22] I have considered the risk that Ms. Codina could contract COVID-19 while incarcerated. Ms. Codina has not established with evidence that her risk of infection is pronounced enough to materially influence the outcome of this application. [23] In the circumstances, Ms. Codina has failed to satisfy me on the balance of probabilities that public confidence in the administration of justice would not suffer if she were released pending her Leave to Appeal Application instead of continuing to serve her sentence. CONCLUSION [24] Ms. Codina’s application for release pending leave to appeal to the Supreme Court of Canada is dismissed. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Daponte, 2021 ONCA 14 DATE: 20210111 DOCKET: C67109 Juriansz, Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Appellant and Floriano Daponte and Vivian Hamilton Respondents Anjie Tarek-Kaminker and Brian G. Puddington, for the appellant Mark C. Halfyard, for the respondent Floriano Daponte Etai Hilzenrat, for the respondent Vivian Hamilton Heard: December 10, 2020 by video conference On appeal from the stay entered by Justice Michael D. McArthur of the Superior Court of Justice on June 6, 2019, with reasons reported at 2019 ONSC 3822, 156 W.C.B. (2d) 447. Coroza J.A.: I. OVERVIEW [1] The respondents, Floriano Daponte and Vivian Hamilton, were charged with several drug offences, possession of proceeds of crime and possession of a prohibited weapon (a “flick knife”). The trial judge found that their right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed and stayed the proceedings. [2] The trial judge, relying on the framework set out by the Supreme Court of Canada in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, held that the net delay was 30.5 months, which exceeded the presumptive ceiling of 30 months and was presumptively unreasonable. He held that the Crown did not rebut the presumption that the delay was unreasonable because it had not established the presence of exceptional circumstances or that the case was particularly complex. [3] The Crown appeals on the basis that the trial judge erred in his application of the Jordan framework. It argues that the trial judge erred in finding that a certiorari application brought by the respondents after they were committed for trial was not an exceptional circumstance. The delay caused by this proceeding (3 months) should have been subtracted from the net delay, resulting in remaining delay of 27.5 months. Since the remaining delay fell below the presumptive ceiling, the onus was on the respondents to show that the delay was unreasonable. According to the Crown, the respondents have not established that this is one of the clear cases where a stay should be granted. [4] I would allow the appeal. The trial judge erred in finding that the respondents’ certiorari application was not an exceptional circumstance. This court has previously held that when the defence brings a certiorari application in good faith, that proceeding is an exceptional circumstance because the decision to bring the application would be outside the control of the Crown, unless in opposing such an application the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner. [5] In my view, the trial judge improperly focused on the fact that the Crown took a frivolous position with respect to just one aspect of the certiorari application in order to find that the entire application was not an exceptional circumstance. While the respondents were partially successful on the certiorari application because the prohibited weapon count was quashed, it is apparent that the trial judge lost sight of the fact that the balance of the certiorari application was dismissed. The committals for trial on the drug charges and the proceeds charge were upheld. The Crown did not act unreasonably in opposing the application and the proceeding should have been considered an exceptional circumstance. The time allocated for that proceeding (3 months) should have been deducted from the net delay, leaving remaining delay of 27.5 months that did not breach the presumptive ceiling. This case is also not one of the clear cases where a stay should be granted notwithstanding that the delay falls below the presumptive ceiling. II. history of proceedings [6] The respondents were arrested on December 2, 2016, following a year long police investigation. The investigation included acting on information provided by ten confidential informants and police surveillance of a rural property owned by one of the respondents. On the day the respondents were arrested, the police executed a search warrant at the property and seized drugs, cash, paraphernalia consistent with drug trafficking and a flick knife. (i) The Certiorari Application [7] The case proceeded in the Ontario Court of Justice in a straightforward manner. [8] After a preliminary hearing that took place over three days, the respondents were committed on a total of nine charges on November 17, 2017. The case was then adjourned to December 12, 2017 in the Superior Court of Justice. In the meantime, the respondents challenged the committals for trial by serving a certiorari application in relation to all nine counts on December 1, 2017. [9] The application was heard on January 25, 2018. On March 16, 2018 the application judge rendered her decision dismissing the application except for the weapon charge which she quashed. (ii) The Delay Following the Certiorari Application [10] Following the release of the application judge’s ruling, the trial was scheduled for ten days starting on March 4, 2019 with pre-trial motions scheduled for December 10 and 11, 2018. The pre-trial motions filed by the respondents claimed that the police had violated their s. 8 Charter rights against unreasonable search and seizure. [11] In response to the motion, the Crown made further disclosure to the respondents on December 3, 2018. That disclosure consisted of unredacted portions of the search warrant that was issued in this case. The Crown had previously withheld portions of the warrant based on changing levels of perceived harm to informants and based on the privacy interests of other individuals. Upon receipt of this disclosure, the respondents filed an additional pre-trial motion alleging a breach of s. 7 of the Charter and seeking the remedy of excluding this new disclosure. Both parties agreed that the s. 7 application logically had to precede the hearing of the s. 8 application since the relief sought by the respondents included the exclusion of evidence required for the s. 8 application. Both parties also agreed that four days instead of two were now required to argue the motions. [12] As a result of these developments, the motions did not proceed on December 10, 2018 as originally scheduled. The parties met with the local administrative judge and the trial coordinator to reschedule the motions. However, there were no available dates to hear the motions until the originally scheduled trial date commencing March 4, 2019. [13] Ultimately, the original trial dates scheduled for March were now scheduled as dates for the pre-trial motions and the trial dates were rescheduled to start on June 4, 2019. On May 13, 2019, the respondents filed the s. 11(b) application. The trial judge heard the application and granted a stay of proceedings on June 6, 2019. III. LEGAL FRAMEWORK (i) The Jordan Framework [14] In assessing the s. 11(b) application, the trial judge was required to apply the framework set out by the Supreme Court of Canada in Jordan . That framework has been summarized by Gillese J.A. in R. v. Coulter , 2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, as follows: [ 34 ] Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47). [ 35 ] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66). [ 36 ] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66). [ 37 ] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71). [ 38 ] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75). [ 39 ] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80). [ 40 ] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48). [ 41 ] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “ Transitional Cases ”) ( Jordan , para. 96) [Emphasis in original.]. (ii) Standard of Review [15] The trial judge’s characterization and allocation of various periods of delay, as well as the ultimate decision to impose a judicial stay for unreasonable delay, involves a question of law subject to a correctness standard of review: R. v. Albinowski , 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27. However, the trial judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Schertzer , 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3; R. v. N.N.M. , 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6. IV. DISCUSSION [16] The Crown makes two submissions on the appeal. First, the trial judge erred by not properly characterizing the time to hear and complete the respondents’ certiorari application as an exceptional circumstance to be deducted from the net delay. Second, if that time had been deducted, the net delay would have fallen below the presumptive ceiling to 27.5 months, and the respondents would have the onus to establish that this was a “clear case” where the case should be stayed. [17] The respondents argue that the trial judge did not err in applying the Jordan framework. According to the respondents, the trial judge found that the Crown’s response to the weapons count was frivolous and this court should defer to the trial judge’s ultimate finding that the certiorari application was not an exceptional circumstance that should be deducted from the net delay. [18] Alternatively, the respondents contend that even if the remaining delay in this case did not breach the presumptive ceiling, the delay of 27.5 months was nonetheless unreasonable. The respondents rely on the trial judge’s findings that the defence did not cause any of the delay, the case was not complex, there were a chronic lack of judicial resources in London, and the Crown made untimely disclosure. Ground #1: Did the Trial Judge Err in Finding that the Certiorari Application was not an Exceptional Circumstance? [19] In R. v. Tsega , 2019 ONCA 111, 144 O.R. (3d) 561, leave to appeal refused, [2019] S.C.C.A. No. 106, this court held that delay caused by defence applications for extraordinary remedies, including certiorari , generally constitutes an exceptional circumstance. Hourigan J.A. held, at para. 83: With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside of the control of the Crown, unless in opposing such an application or an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner [Emphasis added.]. [20] The trial judge in this case distinguished Tsega because he found that the outcome on the prohibited weapon count was obvious and foreseeable and litigation on this count was avoidable and within the Crown’s control to address and remedy. In his view, the Crown should have conceded the weapon charge before or at least at the certiorari hearing. [21] I do not consider it necessary to address the Crown’s argument on appeal that the trial judge erred in finding that the outcome of the prohibited weapon count was obvious and foreseeable. Assuming that there was a basis to find that litigation about the flick knife was avoidable, I do not agree that the Crown’s conduct in relation to that single count distinguished this case from this court’s holding in Tsega . [22] The respondents had been committed for trial on nine counts. The litigation did not focus on a single count of a weapon in relation to a flick knife that was found in the home. This case remains one involving the seizure of drugs and proceeds of crime. There is no suggestion in this case that the Crown acted in bad faith, took a frivolous position or responded in a dilatory manner in relation to the drug and proceeds charges. Indeed, the Crown had no control over the respondents’ decision to bring a certiorari application on all of the charges and there is no suggestion that the litigation was avoidable in relation to those counts. [23] A review of the application judge’s reasons fortifies my conclusion. In a decision that spanned 17 pages and 82 paragraphs, one single paragraph is devoted to the issue of the flick knife. Respectfully, the trial judge erred by concluding that the respondents’ application was not an exceptional circumstance because of the Crown’s conduct in relation to just one count, notwithstanding its appropriate conduct and successful defence in relation to all the other counts. [24] The parties on this appeal do not dispute that if the delay for the certiorari application (3 months to argue the application and receive reasons for ruling) is subtracted from the net delay, the remaining delay would be 27.5 months, which falls below the ceiling. As set out above, Jordan holds that if the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. I now turn to the Crown’s second argument. Ground #2: Have the Respondents Demonstrated that this a Clear Case of Unreasonable Delay? [25] The Crown argues that since the remaining delay falls under the presumptive ceiling, it is the respondents’ onus to establish that this is one of the clear cases where, notwithstanding that the delay falls below the ceiling, it is unreasonable. [26] The respondents contend that if the remaining delay falls below the presumptive ceiling, the delay will still be unreasonable if they can establish the following two conditions: 1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) The case markedly exceeded its reasonable time requirements. [27] At the outset, it is important to recall that Jordan expected stays for delay in cases that fell below the presumptive ceiling “to be rare, and limited to clear cases”: at para. 48. (i) Sustained Effort to Expedite the Proceedings [28] I acknowledge that the trial judge found that the respondents acted in a timely, diligent, and reasonable manner and that they desired for the case to move forward. His findings do not disclose palpable and overriding error and support the respondents’ submission that they took meaningful steps that demonstrated a sustained effort to expedite proceedings. Accordingly, the respondents have satisfied the first condition. (ii) Markedly Exceeded Reasonable Time Requirements [29] However, as noted above, the respondents must also meet a second pre-condition for obtaining a stay of proceedings in cases of delay falling under the 30-month ceiling. That pre-condition requires the respondents to show that the case markedly exceeded the reasonable time requirements of the case, which is a question of fact: Jordan , at para. 91. [30] As set out in Jordan , determining whether a case has taken markedly longer is not a matter of precise calculation. The reasonable time requirements to get a case to trial depend on a variety of factors, including the complexity of the case, whether the Crown took reasonable steps to expedite the proceedings and local conditions. I turn to the application of those factors. [31] I see no basis to interfere with the trial judge’s finding that this was not a complex case. Although the case was set for two weeks of trial, the trial judge noted that the Crown’s witnesses were police officers, the issues to be litigated at trial were relatively narrow and the proceedings were straightforward. [32] I also agree with the trial judge’s observations that the Crown exclusively had the control, power and obligation to periodically revisit and reassess the withholding of disclosure involving confidential informants and to be sensitive to timeliness in relation to the defence and their rights to full answer and defence. I agree with the trial judge that this did not happen and that the late disclosure was as a result of a somewhat late response to the s. 8 application. [33] With respect to local conditions, Jordan instructs trial judges to employ knowledge of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of relevant local considerations and systemic circumstances. [34] The question then becomes whether the delay of 27.5 months for a ten-day drug trial involving two accused is markedly longer than was reasonable for London, Ontario. While the trial judge and the local administrative judge made some comments about the shortage of judicial resources, including judicial vacancies, nothing on this record would establish how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances: Jordan , at para. 89. I also note that the trial judge specifically found that the case progressed normally while it was in the Ontario Court of Justice; the 11 months and 15 days before that court was not impacted by the judicial vacancies in the Superior Court of Justice. [35] The respondents highlight the trial judge’s comments that significant ongoing limited judicial resources impacted this case and played a role in the difficulties encountered. I acknowledge that the trial judge expressed his concern that the Superior Court in London was under-resourced and did not have the luxury to address late-breaking unforeseeable circumstances. However, the trial judge’s comments do not assist in this regard because, as noted above, he proceeded on the erroneous premise that the presumptive ceiling had been breached. He did not turn his mind to whether this trial took markedly longer than it should have even with the late-breaking developments of the case. [36] According to the Supreme Court of Canada, in determining whether a trial took markedly longer than it should have, it is necessary to “step back from the minutiae and adopt a bird’s eye view of the case”: Jordan , at para. 91. [37] According to the trial judge, the parties agreed that up until December 7, 2018, the case was on track for the trial which was initially scheduled to proceed on March 4, 2019 for 10 days. The trial judge explained that it was only after this point that the “critical and problematic circumstances in this case then arose”. If the trial had proceeded as initially scheduled, the remaining delay would have totalled approximately 24.5 months. While the respondents had indicated availability for earlier trial dates, they accepted the dates in March, and no complaint was made that 24.5 months meant the case was taking markedly longer than it should have. Although the Crown’s late disclosure and respondents’ s. 7 Charter application served on December 7, 2018 led to a further delay of 3 months, the net delay of 27.5 months remained well below the ceiling. Taking a bird’s eye view of the case, I have concluded that this is not one of the clear cases where a stay should be granted for delay. V. DISPOSITION [38] For these reasons I would allow the appeal, set aside the stay of proceedings and remit the matter to the Superior Court of Justice for trial. Released: “R.G.J.” January 11, 2021 “S. Coroza J.A.” “I agree. R.G. Juriansz J.A.” “I agree. M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dare, 2021 ONCA 327 DATE: 20210517 DOCKET: C66356 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Temitope Dare Appellant Lance Beechener, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent Heard: January 12-13, 2021 by videoconference On appeal from the convictions entered by Justice Laura A. Bird of the Superior Court of Justice on February 9, 2018, sitting with a jury, and the ruling on entrapment dated June 22, 2018. Juriansz J.A.: [1] This appeal was argued together with two other defence appeals, R. v. Jaffer and R. v. Haniffa , and a Crown appeal, R. v. Ramelson . All the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. [2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival. [3] The common issue in the four appeals is whether the individuals who were arrested and prosecuted pursuant to Project Raphael were entrapped by the police. The appellant also appeals his convictions on the ground that the trial judge erred in her instructions to the jury. [4] For the reasons that follow, I would dismiss the appeal from conviction and the appeal of the dismissal of the entrapment application. A. The FACTS IN THIS CASE [5] In this case, the ad the police placed on the escorts section of Backpage purported to have been placed by “Kathy”. Kathy described herself as a “Tight Brand New girl” who is “sexy and young” and has a “YOUNG FRIEND”. The ad included three photographs of a female police officer, whose face was not shown, posing as Kathy. In one of the photographs, she was wearing a t-shirt with the name of a local high school printed on it. The ad indicated Kathy was 18 years old, the minimum age allowed by Backpage. [6] On March 25, 2016, the appellant testified he was under the influence of alcohol after a party at his house and decided to look for an escort on Backpage. At 3:14 a.m. he responded to the ad posted by Kathy and began communicating with Detective Sergeant Hogan who was posing as Kathy. At 3:26 a.m. the undercover officer asked, “You cool with young?”, to which the appellant replied “Yes. Am also young”. The undercover officer then wrote “Ok cool. I’m 15 but look bit older”. Then, before the appellant replied, the officer sent another text saying, “How old are you if you don’t mind me asking?” The appellant responded, “Ok am 22”. [7] The appellant continued the text chat discussing whether Kathy’s friend would be included, the sexual services, the price and where to meet. When the appellant had not arrived when he said he would, the undercover officer texted at 5:05 a.m., “Thought u were playing games and trying to take advantage of me because I’m 15. Didn’t mean to be rude.” The appellant responded, “It fine no problem”. [8] When the appellant arrived at the room, he was arrested and charged with telecommunicating with a person he believed to be under the age of 18 contrary to s. 172.1(2) (child luring under 18), telecommunicating with a person he believed to be under the age of 16 contrary to s. 172.1(2) (child luring under 16), and communicating to obtain for consideration the sexual services of a person under 18 contrary to s. 286.1(2) (communicating to obtain sexual services from a minor) of the Criminal Code , R.S.C., 1985, c. C-46. While the information references s. 172.1(2) these charges relate to the offences under ss. 172.1(1)(a) and 172.1(1)(b). Section 172.1(2) sets out the punishment for these offences. [9] The appellant’s defence at trial was that he believed he was communicating with a person who was over the age of 18. He testified that he did not notice the reference to Kathy being 15 in the 3:26 a.m. text and that in his next text he was responding only to the question about his age. He testified he was in a taxi on the way to the hotel when he received the 5:05 a.m. text and so read only the last part of it, again missing Kathy saying she was 15. [10] The jury found the appellant guilty on all three counts. The trial judge stayed the convictions under ss. 172.1(1)(b) (child luring under 16) and 286.1(2) (communicating to obtain sexual services from a minor) pursuant to Kienapple v. R. , [1975] 1 S.C.R. 729. [11] The appellant applied for a stay of proceedings on the basis he had been entrapped. The trial judge dismissed the application and sentenced the appellant to 90 days imprisonment to be served intermittently. B. ARGUMENTS ON APPEAL [12] The appellant submits the trial judge made two errors: 1. by erring in instructing the jury they could convict the appellant if they determined he had read one of the text messages saying “Kathy” was 15; and 2. by concluding Project Raphael was a bona fide inquiry and failing to find that the appellant was entrapped. C. ANALYSIS (1) Jury instruction [13] The appellant appeals his conviction submitting the trial judge erred in instructing the jury they could convict if they determined he had read one of the text messages saying Kathy was 15. He relies on the Supreme Court’s decision, R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3, which was released after the appellant was convicted, to argue that the trial judge’s instructions were wrong in law. [14] In Morrison the Supreme Court declared s. 172.1(3) of the Criminal Code to be of no force or effect. Section 172.1(3) created a presumption, absent evidence to the contrary, that an accused believed any representation made that the person with whom they communicated was underage. In Morrison , the Supreme Court ruled that presumption violated an accused’s right to be presumed innocent under s. 11(d) of the Charter of Rights and Freedoms . Moldaver J. writing for the majority said that the Crown could not meet its burden by proving an accused was negligent or reckless about the person’s age. He stated that the only pathway to conviction was to “prove beyond a reasonable doubt that the accused believed the other person was underage”: at para. 96. Later in his reasons, he did allow that “wilful blindness can stand in for belief as well”: at para. 99. [15] The appellant submits the trial judge erred by linking the reasonable doubt standard to whether the appellant had read at least one of the text messages that indicated Kathy was 15 years old. He says this would have left the jurors with the impression that, if they found the appellant read the text messages, the essential element of belief had been proved. The reasoning would be legally incorrect because, as Pardu J.A. had said in the Court of Appeal decision in Morrison , 2017 ONCA 582, 136 O.R. (3d) 545, at para. 60: There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personal identities are often concealed in the course of online communication about sexual matters. This passage was quoted with approval by Moldaver J. in Morrison , at para. 58 . [16] Thus, the appellant submits, permitting the jury to find that he simply read the texts falls short of proving he believed the person with whom he was communicating was under the age of 16. A finding that he simply read the text messages would establish only recklessness, which Morrison makes clear is insufficient to ground a conviction: at para. 83. [17] I would not give effect to this ground of appeal. Upon considering the trial judge’s instructions as a whole in the context of the trial and the addresses of counsel I am satisfied the jury was not misled on the essential element of belief. [18] In her instructions on count 1 the trial judge correctly instructed the jury that the critical issue was whether the appellant believed Kathy was 15 years old. Then, in her instructions on count 2, the trial judge again told the jury that they must find that the appellant believed the person he was communicating with was under the age of 16. However, she added “this comes down to the same question of whether the Crown has proven beyond a reasonable doubt that Mr. Dare read the two text messages that made reference to [K]athy being 15 years old.” She added “if you have a reasonable doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under the age of 16 years, you must find him not guilty of this offence.” [19] The trial judge told the jury that the instructions she had given earlier “on the issue of Mr. Dare’s belief about the age of the person he was communicating with” applied to count 3. [20] After the trial judge completed her jury charge, the Crown objected that the trial judge had told the jury that the Crown had to prove beyond a reasonable doubt “that he read the two text messages”, but it would be sufficient if he had read one or the other of them. [21] The trial judge called the jury back and provided the following clarifying instruction: There is one clarification I wish to make, Members of the Jury. … [I]t applies to all three counts of the indictment, and it’s in relation to the Crown being required to prove beyond a reasonable doubt that Mr. Dare read the text messages, specifically in relation to [K]athy being 15, I had said, “read both of them.” It should have read, “read one or both of them.” So the Crown must prove beyond a reasonable doubt, in relation to all three counts, that Mr. Dare read one or both of the text messages where Detective Sergeant Hogan made reference to the age of 15. [22] The appellant’s defence at trial was that he had not paid close attention to the messages in the text chat and simply had not seen either of the two references to Kathy’s age. In his testimony in-chief, he was emphatic that if he had read those references he would not have continued the chat. Under cross-examination, he steadfastly denied that he had read the 15-year-old references. [23] In her charge, the trial judge set out the defence position that the appellant had missed the references to Kathy being 15, and if he had, he would have stopped texting with her because he had no interest in having sex with a child. After summarizing the references in the text chats and the appellant’s specific denials of reading each, the trial judge instructed the jury that “if you have a reasonable doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under the age of 18 years, you must find him not guilty of this offence.” [24] Except for the impugned passages, the trial judge, throughout her charge, instructed the jury that they had to find the appellant believed the person with whom he was communicating was underage. Moreover, the Crown’s closing address told the jurors clearly they had to be satisfied beyond a reasonable doubt that the appellant had both read at least one of the 15-year-old references and believed Kathy to be 15 before the appellant could be found guilty. [25] At trial the defence drew no distinction between the appellant reading the 15-year-old references in the text chat and his believing that Kathy was underage. The defence conducted the trial on the basis that if the appellant had read the 15-year-old text messages he would have known that Kathy was 15 and discontinued the text chat. For that reason, it is understandable that defence counsel did not object to the passages that are now criticized on appeal. [26] Considering the trial judge’s instructions as a whole, and in the context of the defence position at trial, I am satisfied the jury understood that the critical question was whether the appellant believed the person with whom he was texting was underage. [27] I would reject this ground of appeal. (2) Entrapment [28] Appellant’s counsel adopted the submissions made on the issue of entrapment in Haniffa . Those submissions were considered in Ramelson. Comprehensive reasons in Ramelson included the analysis and rejection of the second ground of appeal advanced in this case. For the reasons set out in Ramelson , I would reject this appellant’s argument that he was entrapped. D. Conclusion [29] For these reasons, I would dismiss the appeal. Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.”

C OURT OF APPE AL FOR ONTARIO CITATION: R. v. Daou, 2021 ONCA 380 DATE: 20210603 DOCKET: C 61987 Feldman, Lauwers and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Adrian Daou Appellant Howard L. Krongold, for the appellant Deborah Krick, for the respondent Heard: February 17, 2021 by video conference On appeal from the conviction entered by Justice Robert L. Maranger of the Superior Court of Justice, sitting with a jury, on December 16, 2015. Trotter J.A.: A. Introduction [1] The appellant was convicted of first degree murder for killing Jennifer Stewart. He was sentenced to life imprisonment with no parole for 25 years. [2] The case against the appellant hinged on statements he gave to the police while he was incarcerated on unrelated charges. The appellant said he killed Ms. Stewart so he would become “a billionaire rap superstar”. He gave his confessions as a means of getting out of custodial segregation and while apparently suffering from schizophrenia. [3] At trial the appellant claimed that his confessions were false. He also professed to be not criminally responsible on account of mental disorder (“NCRMD”), in the event the jury accepted he killed Ms. Stewart. [4] The lead investigator in the case, Detective John Monette, testified that he believed one of the confessions to be true, and provided detailed reasons for reaching this conclusion. In his final instructions to the jury, the trial judge told the jury that, before they could find the appellant guilty, they had to be satisfied beyond a reasonable doubt that the confession was true. [5] The officer’s opinion that the confession was true was inadmissible. It amounted to an opinion that the appellant was guilty. The jury should have been cautioned to completely disregard this dangerous testimony. But there was no caution. Instead, the significance of the confession was underscored in the trial judge’s final instructions, and the officer’s opinion repeated. [6] On appeal, the Crown acknowledges that the trial judge erred by failing to provide a limiting instruction, but asks this court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . [7] I would decline to apply the proviso. Without a proper limiting instruction, the detailed opinion of this senior police officer seriously risked dominating the jury’s consideration of the veracity of the confession and, ultimately, the appellant’s guilt. It cannot be safely concluded that this evidence, and the lack of a warning, had no impact on the verdict. Accordingly, I would allow the appeal and order a new trial. B. Factual Overview [8] Jennifer Stewart was brutally murdered in Ottawa between the evening of August 19, 2010, and the early morning hours of August 20, 2010. She was attacked with a weapon, possibly an axe. She was left to die, lying face down in a parking lot behind an apartment building. Ms. Stewart sustained five “chop” injuries to her head, three of which penetrated her skull. She had similar injuries to her right shoulder, right shin, legs, and perineal area. She suffered defensive wounds to both hands. Her left hand was almost severed from her arm. [9] There were no eyewitnesses to the murder, nor any forensic trace evidence that linked the appellant to the murder. There were no obvious suspects. Det. Monette testified that, between 2008 and 2011, a number of young women involved in the sex trade were killed in Ottawa. Ms. Stewart was among them. As discussed below, the appellant also purported to confess to killing another one of these women, but the police quickly dismissed this confession as false. [10] The Ottawa Police Service shared some information about their investigation through media releases. Some details were withheld as “hold back information”, being information the police do not release to the public to help the police gauge the value of information they receive through public tips. If the police receive a tip with information that contains any “hold back information”, the police may look at that tip with particular interest. In this case, the hold back information included: (1) the type of weapon used to kill Ms. Stewart; (2) the nature and location of Ms. Stewart’s injuries; (3) the exact location of the attack; and (4) details about Ms. Stewart’s clothing. The trial Crown alleged that, because the appellant disclosed some of these details in his confessions, he was the killer. [11] The defence relied on inaccuracies in the appellant’s accounts, including his initial claim that he killed Ms. Stewart with a knife, not an axe. The defence also pointed to a number of timely newspaper articles that contained details about Ms. Stewart’s murder, including: a rough description of where it occurred (i.e., in the gravel parking lot of a low-rise building a few houses away from where the appellant lived); that emergency crews had turned over Ms. Stewart’s body, which was found lying face down; and that Ms. Stewart had stab wounds to her head (including the back of her head), legs or thighs, and deep wounds to both wrists. As discussed below, in the year prior to his confession, the appellant showed interest in media accounts of Ms. Stewart’s murder. [12] Over a year after the murder, in October of 2011, with no real leads, the police offered a $50,000 reward for information leading to the arrest and conviction of Ms. Stewart’s killer. Nobody stepped forward to claim the reward. The investigation went stale until February 25, 2013, when the appellant confessed to the murder. The appellant mentioned the reward in one of his police interviews and asked whether he could get someone to “rat him out” and collect the reward money. [13] In addition to the evidence concerning the circumstances of Ms. Stewart’s death and the appellant’s confessions, the jury heard a great deal of psychiatric evidence relating to the NCRMD issue. Given the focus of this appeal – on whether the trial Crown proved that the appellant killed Ms. Stewart – it is not necessary to address this evidence in detail. C. The Appellant’s Statements (1) Introduction [14] The cornerstone of the trial Crown’s case was comprised of the appellant’s numerous statements. On February 25, 2013, the appellant made an audio-recorded statement at the Ottawa Regional Detention Centre (“ORDC”). This led to a lengthier statement at the police station the following day, on February 26. This statement was video recorded and was the main focus of the trial, and this appeal. (2) The Appellant’s Mental Condition [15] At the time he spoke to the police in February 2013, the appellant was displaying symptoms of schizophrenia. He was segregated and on suicide watch. In the weeks leading up to his statements, the appellant saw clinical psychologist, Dr. Ian Shields, at the jail. Dr. Shields met briefly with the appellant on February 15, 2013 because jail staff were concerned about his mental health. The appellant exhibited inappropriate affect and reported biting himself. [16] At a longer meeting on February 20, 2013, Dr. Shields thought that the appellant might be experiencing auditory hallucinations. The appellant made illogical and strange comments and claimed that his finger was possessed by a demon. He suggested that cutting off his finger might solve all of his problems. The appellant’s strange behaviour prompted Dr. Shields to ask whether he had ever considered eating his cellmate. The appellant just laughed at the question in a way Dr. Shields thought was peculiar. When he was asked if he had ever tasted human flesh, the appellant pointed to a wound on his right arm, which looked like a bite mark. Dr. Shields saw the appellant on February 28, 2013, after his police confessions, and he presented in the same manner. In March, the appellant appeared to be much “calmer”. [17] Dr. Shirley Brathwaite, a forensic psychiatrist, met with the appellant on February 22, 2013. The appellant reported to biting his own arm and spoke of cutting off the tip of his finger in the hope he would be released from custody, even if only to receive medical attention. Dr. Brathwaite thought the appellant was organized in his thoughts, but exhibited odd behaviour, inappropriate to the situation. He seemed preoccupied with hurting himself. Dr. Brathwaite testified that the appellant did not acknowledge experiencing hallucinations, but many people do not admit to experiencing hallucinations. When she met with the appellant again in March 2013, he exhibited poor judgment and inappropriate affect. (3) The Jail Statement – February 25, 2013 [18] On February 25, 2013, at about 9:00 a.m., the appellant told a correctional officer that he would like to confess to a murder. The police were contacted. Det. Monette and his partner, Det. Kevin Wilcox, went to the jail that same day to meet with the appellant. [19] The detectives met with the appellant in the visitors’ area of the jail and took an audio-recorded statement that lasted roughly 30 minutes. The appellant spent the first few minutes of the interview seeking assurance he could be let out of segregation and transferred to a federal penitentiary that evening if he confessed. He then jumped into his confession, saying: “You remember 20th on Alice Street. … 2010. Jennifer. … Yeah, I did it. … I did the crime.” [20] The appellant claimed he met Ms. Stewart on Montford Street just before midnight on the night of the murder. She was wearing a black raincoat and pants. He knew Ms. Stewart from the neighbourhood and had sold her drugs on occasion. [21] He explained that he lured Ms. Stewart to a parking lot at Alice Street and St. Ambrose Avenue under the pretense of selling her drugs. He said she was going to pay cash for the drugs and confirmed there was no plan for Ms. Stewart to give the appellant any “sexual favours”. [22] When he and Ms. Stewart arrived at the parking lot, he told her to wait there for him while he went to get the drugs. The appellant was living one street over at the time. He then circled back and snuck up on Ms. Stewart, first attacking the “top part”, indicating her upper torso, and then her head. [1] He estimated he hit her on the head between four to seven times. He said Ms. Stewart fell down “pretty quick” and that she did not try to defend herself at all. When Det. Monette asked if he hit her anywhere else – “Arms? Legs? Back? Whatever?” – the appellant said, “Maybe like this part, the top part”. He said he left Ms. Stewart lying face down on the ground, with her head pointing toward Alice Street. [23] Initially, he said he “cut” Ms. Stewart with a military knife. When Det. Monette asked if the appellant was sure he used a knife, the appellant responded with: “That’s what the news says”. However, the appellant then said he used an axe he bought from Canadian Tire. The axe had a silver metal blade and a wooden handle that was roughly two-and-a-half feet long. The appellant said he bought the axe from the Canadian Tire on Coventry Road a couple of weeks before he attacked Ms. Stewart, after he found out the Crown was going to seek a six-month sentence for unrelated charges against him. After the murder, he kept the axe in his house until October 2012, when he threw it in the garbage. [24] When asked about his motivation for killing Ms. Stewart, the appellant said: “I don’t know. I was at work and I was listening to the radio and I had those like weird ideas coming in my mind, like that day was like really different.” He explained he had been thinking of killing someone ever since he found out the Crown would be seeking the six-month sentence. Although he knew Ms. Stewart from the neighbourhood, he had not targeted her or anyone else. He was just “looking around” that night and Ms. Stewart was “the one that like came up … as the best like possible choice.” When he saw her, he “knew [she] was the one somehow.” [25] After speaking with the appellant, the detectives decided to pursue a further interview in a more appropriate setting, away from the noise and clamour of the jail, and where it could be video recorded. They made arrangements to transport the appellant to the police station the following day. (4) The Confessions – February 26, 2013 [26] On February 26, 2013, Det. Monette conducted a formal interview at the police station. This interview lasted roughly four-and-a-half hours, and anytime Det. Monette would leave the room, the appellant would rap to himself. The lyrics often centred around violent themes. [27] At the outset of the interview, the appellant reiterated that he purchased the axe after he heard the Crown was seeking a six-month sentence. But this was not the first time he turned his mind to murder: he already had the idea that he would become a “really good rapper” if he killed someone. The potential six-month sentence was not his sole motivator, but merely added to his desire to kill someone to become “the perfect rapper.” [28] In addition to the axe, the appellant purchased the following gear from Canadian Tire: a pair of clear, plastic goggles; a pack of masks, which he first described as “painter’s” masks but later as “surgical” masks; and a pair of beige and green canvas gardening gloves (though he forgot to use these on the night of the murder). The appellant was consistent that he bought these items in cash from the Canadian Tire on Coventry Road, but was unclear on when exactly he did so. Although he said he was sure it was sometime in August 2010, he guessed it was “a few days or weeks” or eight to nine days before the murder. He did not share his plan with anyone and kept the axe and gear in his bedroom until he used them to kill Ms. Stewart. [29] The appellant recounted his actions and thoughts throughout the day of the murder. He did not begin his day planning to kill anyone. However, while he was listening to the radio at work, “weird ideas” came into his head that that was the day to kill someone and do what he had to do to be a “millionaire rapper”. The turning point came while he was on his lunch break: he saw a McDonald’s delivery truck go by with the phrase “Good Start, Bon Repas” along the side of the vehicle. He took those words as a sign and knew at that moment that was the day to kill someone. [30] The appellant finished work around 4:00 p.m. and took the bus home. He arrived home at roughly 5:00 p.m. and spent the next four-and-a-half to five hours coming and going from his house, smoking marijuana, biking around the neighbourhood, listening to music, and writing rap lyrics about killing and “street gangster stuff”. Early in the evening, he purchased a 26-ounce bottle of Alizé Liquor, which he drank throughout the night. He told Det. Monette the alcohol made him more willing to commit murder, and that he decided earlier in the day to drink beforehand, explaining: “I seen this big pitcher of beer … like right in the morning and they never do that. And that just like set … set off the idea to drink to accomplish it, right.” [31] It was not until approximately 9:30 or 10:00 p.m. that the appellant left his house and started to “really look” around his neighbourhood for a victim. He was not focused on any particular person or gender. [32] Shortly after 10:00 p.m., the appellant saw Ms. Stewart walking on Marier Avenue toward Montreal Road. She stood out to him because she was alone, and he thought she was the right match. He said she was wearing a black coat and pants that could have been black pants or jeans. She was not carrying a purse, backpack, or any other kind of personal bag. [33] The appellant approached Ms. Stewart from behind. In contrast to his previous statement, he told Det. Monette that he offered Ms. Stewart drugs in exchange for oral sex, not money. Ms. Stewart agreed to the transaction, and they headed off toward the apartment building at 120 Alice Street. They did not speak much along the way – she walked a few feet ahead of him and he was listening to the radio on an MP3 player. The appellant once again believed the radio was giving him signs. He said to Det. Monette: “[E]verything that the radio was saying was like pointing me in the direction of killing that day. And the more I listened, the more I like … I understood it was like time to do it.” [34] As the appellant and Ms. Stewart walked along St. Charles Street, he told her he was going to bring her to 120 Alice and to wait there for him. He left her in the parking lot and went home to grab the axe and gear. He then returned to 120 Alice and hid behind the building to put on his gear. When he entered the parking lot, Ms. Stewart was gone. [35] Fully geared and holding the axe, the appellant stood against the wall of 120 Alice and called out to her for roughly two minutes. When Ms. Stewart did not respond, he took off his gear, put it in his hoodie pocket, and hid the axe against a shed behind the building. He then headed around to the front of 120 Alice to see if she was on the front steps. She was not. As he started back toward the shed, he saw Ms. Stewart waiting for him in front of a nearby apartment building on St. Charles Street. [36] The appellant called Ms. Stewart over to him, saying she came over without any “doubts or suspicions”. He walked her back to the parking lot at 120 Alice, and again told her to wait while he retrieved the drugs. She was standing just around the corner from the shed. He “geared up” once more, grabbed the axe, and headed back into the parking lot. [37] The appellant described running at Ms. Stewart from behind, surprising her as he aimed the axe at her chest and head. He hit the top part of her body and head approximately three to four times before Ms. Stewart fell to the ground. Once on the ground, Ms. Stewart rolled onto her stomach so she was face down, and the appellant delivered another five to six blows to her head. He said she kept her arms lying by her side, and never resisted or tried to defend herself. [38] After his final hit, the appellant fled the scene to return home. When he left, Ms. Stewart was lying face down with her head pointing toward Alice Street. The appellant took off his gear, wrapped it in his hoodie, and hopped the series of fences between 120 Alice and his house. He arrived home just before midnight and entered through the side door. He wrapped the axe in his father’s old red winter coat and put the gear and his clothes in a garbage bag. He threw out the clothing and gear the next day, but kept the axe, still wrapped in the coat, in a suitcase in his bedroom closet. Contrary to the appellant’s statement the day before, he now said it was his father who threw the axe in the garbage in October 2012, after he found it while preparing to move out of the house. The appellant said he heard around 7:00 a.m. the next morning that someone found Ms. Stewart’s body. [39] At the end of his statement, Det. Monette gave the appellant a photographic printout of axe, hatchet, and bowsaw inventory at Canadian Tire. The appellant circled the axe that matched the one he said he used to kill Ms. Stewart. [40] The appellant later joined Det. Wilcox and two other detectives on a ride-along to the scene of Ms. Stewart’s murder. He directed the detectives through the route he took the evening of August 19, and pointed out the key landmarks and locations he described during the confession. [41] At the end of this interview, the appellant also confessed to two other crimes, an attempted homicide and a break and enter. [42] First, he told Det. Monette that on May 4, 2010, he tried to kill another sex worker, named “Harmony”, by hitting her over the head with a rock and kicking her in the head and face. The appellant and Harmony agreed to exchange drugs for oral sex and headed to a secluded parking lot on Boulevard Sacré Coeur, in Gatineau, Quebec. As Harmony was leaving the parking lot after the exchange, the appellant picked up a large rock and hit Harmony on the back of the head as hard as he could, intending to kill her. When she did not die, he pushed her to the ground and started kicking her head and face and then walked away. Shortly after the attack, he started rapping to see if there was any new “technology” in his head. [43] Second, the appellant described a break and enter he committed in 2012. He broke into a woman’s house on Sweetland Avenue in Ottawa’s Sandy Hill neighbourhood. The appellant knew the woman, who he had previously met through a mutual friend. The appellant entered the house through an open window and stole two laptops and a martini bottle. [44] The trial Crown called both women as witnesses and both confirmed the appellant’s confessions to these unrelated crimes. D. The Appellant’s Other Statements [45] The trial Crown also relied on other statements the appellant made about Ms. Stewart’s murder. (1) Statements to Cristal Gordon [46] Cristal Gordon was the appellant’s former girlfriend. They started dating around November 2011. The last time she saw the appellant was roughly a year later, just before he went into custody in early 2013. Ms. Gordon was a drug user who was on methadone at the time of the trial. She described a number of statements the appellant made. [47] First, the appellant told Ms. Gordon that he killed a man who owed him money. She did not ask any follow up questions because she thought he was lying. Within two months of this disclosure, they were at an internet café, where the appellant was looking at an article about Ms. Stewart’s death. The appellant told her that this was the person he had killed, not a man. At the time, the appellant had a smile on his face and seemed quite interested in the article. [48] The issue came up again. When the two were sitting in a room together, the appellant was looking at articles about Ms. Stewart online. Ms. Gordon asked the appellant whether he really killed her. With a smile on his face, the appellant answered “yes”. The appellant said that he bought gloves and a mask and that he attacked Ms. Stewart with an axe. He did this because he wanted to be a famous rapper. The appellant said that he saw a sign on a McDonald’s truck that made him decide that this was the day that it had to be done. [49] Ms. Gordon also said the appellant told her he had attacked another woman by smashing her head with a rock, though she did not know the woman’s name. (2) False Confession to Killing Another Woman [50] When the appellant was in the ORDC on March 6, 2013, he told institutional staff that he wanted to confess to killing another woman, Leanne Lawson. The police attended to speak to the appellant. However, during the interview, the police concluded that it was a false confession and left. Another person had already been charged with this offence. (3) Statement While Being Transported to Court [51] The appellant made another statement on the eve of his trial. He was taken to court on November 4, 2015 for an administrative appearance. The appellant was agitated about being transported with other prisoners because he was usually transported alone. He was concerned about being beaten up that morning. He said to the special constables who were assigned to transport him: “I killed a hooker”. (4) Confirmatory Evidence [52] Other than the appellant’s statements, there was little else that confirmed his police confession to killing Ms. Stewart. He told Ms. Gordon that he used an axe and wore gloves and a mask. The appellant told the police that he purchased these items, and a pair of goggles, at a specific Canadian Tire store. The police investigated this store and discovered that a transaction had taken placed on June 25, 2010 in which an unidentified person paid cash for this group of items, roughly two months before Ms. Stewart’s murder. E. The Opinion Evidence [53] As already noted, Det. Monette was the lead investigator. At great length, the jury heard about his impressive credentials. At the time of the trial in late 2015, he had been a police officer for 29 years and had spent the last 13 months on secondment with the RCMP, acting as an investigator in the war crimes and extraterritorial response unit. For 16 years before that, he was with the major crime unit, save for one year he spent seconded to the RCMP international police operations branch, working as a peacekeeper in South Sudan. He spoke extensively about his training and experience, often referring to other cases that he investigated. [54] The jury also learned that Det. Monette had investigated over 170 homicides. In his examination-in-chief, he was prone to lengthy responses, as well as expressing panoramic views about the investigation of homicides. The jury would no doubt have been impressed with his views on the matter. Other aspects may have further drawn the jury towards investing in his opinion. He described printing 200 copies of the reward poster himself and walking up and down all sides of Montreal Road, “attending each residence and business there”, asking if anyone had any information and if they would put a poster in their front window. At another point, in explaining why the investigation into Ms. Stewart’s murder was not a “cold case”, he commented: “[Det. Wilcox] and I never stopped working on Jen’s case.” He routinely referred to Ms. Stewart as “Jennifer” or “Jen” throughout his testimony. [55] I hasten to add that Det. Monette was not solely responsible for creating the special aura that infused his testimony. The evidence of his extensive background, as well as his opinion about the reliability of the appellant’s February 26 confession, was adduced through careful questioning by the trial Crown, with no objection from trial counsel. [56] It is necessary to set out the relevant parts of Det. Monette’s evidence in some detail in order to demonstrate the prominence of his evidence, the manner in which he expressed his opinion, and his repeated assertions of expertise as a homicide investigator. [57] The problematic part of the testimony related to the appellant’s first statement at the police station on February 26. Det. Monette thought that the appellant said contradictory things about the moments just before he attacked Ms. Stewart. Det. Monette admonished the appellant, saying, “[T]hink good and hard about what it is that you’re telling me”, shortly followed by, “Okay. ‘Cause right now I’m not convinced that you’re telling me the truth.” The following exchange then occurred between the trial Crown and Det. Monette: Q.      Can I ask you why you said that to Mr. Daou at that point in time in the interview? A. I’ve been a police officer for 29 years. I’ve been in homicide for roughly 18. I speak to a lot of people in interviews and interrogations on a fairly regular basis. I’ve had people confess to me for things that they haven’t done. I wanted to ensure that Mr. Daou was responsible for – I wanted to make sure that Mr. Daou was telling me the truth in regard to what he was confessing to. I don’t want to in any way, shape or form put an innocent man in a situation he doesn’t belong to be in. Simply, I was interested in discerning that he was telling me the truth. Q.      Okay. I’m going to ask you some more about – some follow-up about this next question, but simply put, was there a point in the interview with Mr. Daou, at any point, where you were convinced he was telling the truth? A. Certainly not at this point. Q. Okay. A. I had questions at this point still, but later on, yes, I did. Q. Okay. A. There were several points that – there are a couple of points that led me to the belief that he was responsible for Ms. Stewart’s death . [Emphasis added.] [58] I pause to note that in the opening frame of this exchange, Det. Monette took the opportunity to assert his credentials once again, and to portray himself as a cautious investigator who desperately wanted to avoid implicating an innocent man. This was the foundation for his ultimate assertion that the appellant’s confessions were true, and he was in fact the killer. [59] The trial Crown returned to the issue in the following lengthy exchange in which Det. Monette explained his opinion in some detail: Q.      Okay. One of the things that I covered off earlier with you was this – the comment that you made to Mr. Daou at page 43 of the transcript with respect to him telling the truth? A.      Yes. Q. And you had indicated that at a couple of points – there were a couple of points that led you to believe that he was responsible for Jennifer Stewart’s death A. That’s right. Q. in the interview. Are you able to identify those points in the interview – first of all, let me ask you, are they in this particular interview that we’ve just seen? A. Yes. Q.      Can you identify the points in the interview where you came to that conclusion? A.      Do you recall earlier we heard from Sergeant Killeen Q.      Yes. A.      …with regard to the blood found on the parging of the wall Q.      Yes. A.      …close to the south-east corner of the building at 120 Alice Street? Q.      Yes. A. When Mr. Daou had drawn the first diagram, that being of the back of the residence and the location where he attacked Ms. Stewart, he drew her in a location that I believe to be very close to where the blood was found on the parging of the wall. That was the first instance. Q.      Okay. So you’re – just for the completeness of the record, you're holding up the first diagram that we went through…. Was that the first one or the second one? I think that was the first one. A.      This is the first one. Q.      Right. The first diagram that we went through indicating the building at 120 Alice, the shed in the back, his path of movement, the axe and Ms. Stewart’s body while standing and while on the ground? A.      That’s correct. Q.      Okay. A.      While someone walking past the crime scene and seeing Ms. Stewart on the ground might reasonably be able to say that they could tell where she was on the ground. I believe that the small amount of blood on the parging of the wall is significant because it shows the location where she was attacked, and I believe that only the person who was there at the time of that attack would reasonably know that information. Q. Were there other points in this particular interview where you came to the conclusion that he was responsible for the death of Jennifer Stewart? A. I did. Again, on the next diagram, the diagram of the, of the person that I asked him to draw, it was clear that Ms. Stewart had suffered trauma to the torso and the area of the shoulders. That was significant to me. And then secondly and more importantly, with respect to the injuries inflicted to the back of her head and also the number of injuries inflicted to the back of her head, I believe, would be significant to only someone who would have been there at the time and party to it . Q.      While Mr. Daou was making these diagrams and indicating the area of the injury and the number of blows, did you have holdback information in your mind in terms of the number of injuries, location of injuries? A.      Very much so. I’d attended the autopsy, I was aware of the number of blows inflicted by Dr. Milroy’s account, as we’ve heard. I was aware of the type of weapon that was described to have been used as “a significant edged weapon”. I’d attend the crime scene, I’d seen the blood on the parging of the wall as described by Sergeant Killeen. And all of those factors led me to that belief at that point in time. [Emphasis added.] [60] In cross-examination, Det. Monette was asked about his approach to questioning the appellant. Trial counsel suggested to him that he was on the lookout for hold back information. I reiterate that it was the defence theory that some of the so-called hold back information was in fact available from other, public sources. Det. Monette disagreed with the suggestion. He said: “I’m not simply looking for words, it’s not just checking off boxes, it’s, it’s more intuitive than that.” [61] The trial Crown pursued this theme in re-examination: Q.      That one point in reference to the hold back information, [trial counsel] was suggesting to you that, you know, you’re looking for hold back information to come from Mr. Daou, that’s what you’re observing? A.      Yes. Q.      And you responded by using this phrase, “It’s not just ticking off boxes, it’s more intuitive than that.” A.      Very much so. Q.      Can you explain what you meant when you gave that answer? A. Certainly. I’m – I’m not just waiting for a person to regurgitate words that I think are – are, uh, important. It’s – it’s important that it all be explained in a context that’s – that’s believable and that is consistent and that is something that – that will hold water. And in this case, I believe that to be the case. [Emphasis added.] [62] As the above excerpts reveal, Det. Monette was given numerous opportunities to express his opinion on the truthfulness of the confession and how he formed that belief, which was based on his training, experience, and intuition. F. The Trial Judge’s Instructions to the Jury [63] The trial judge referred to the appellant’s February 26 confession, along with Det. Monette’s evidence, in several parts of his final instructions to the jury. After discussing the events leading up to the confession, the trial judge commented: “You have a transcript and the DVD of the audio/video recording of the interview in its entirety. It is a piece of evidence that should be very carefully considered during your deliberations.” [64] When explaining the elements that the trial Crown must prove on a charge of first degree murder, the trial judge posed the first question: “Did Adrian Daou cause Jennifer Stewart’s unlawful death?” He instructed the jury as follows: The accused person provided a confession to the Ottawa Regional Police Services whereby he claimed to be responsible for Jennifer Stewart’s unlawful death. There is no direct or forensic evidence that links the accused to Jennifer Stewart’s death. Your focus should be on the reliability of the accused’s confession. To conclude that Adrian Daou is the person responsible for Jennifer Stewart’s death you must be satisfied beyond a reasonable doubt that the Crown has established that the confession is reliable and that those parts of the confession where Adrian Daou describes his unlawful killing of Jennifer Stewart are in fact true. [Emphasis added.] [65] The trial judge provided a thorough review of the evidence. He reminded the jury that Det. Monette was the lead investigator on the case and that he had 29 years of experience as a police officer. In the context of describing the investigative steps Det. Monette took, the trial judge focused again on the February 26 confession: The Detective was asked what convinced him that this was a real confession. He pointed out the following: the diagram drawn by the accused that showed where the body was situated in relation to a small amount of blood on the parts of the building; the diagram showing the area of the injuries and the number of blows to the back of the head; and the identification of an axe as the weapon. He believed that this was information that could only have been known by someone who was there . [Emphasis added.] [66] No objection was taken to any of these instructions. G. Analysis (1) Admissibility [67] In White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. said, at para. 14: “To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule.” That case concerned the parameters of expert opinion evidence, whereas this case is about the non-expert opinion evidence given by a police officer. [68] Det. Monette was not qualified as an expert, nor could he have been. He had no special power, training, or ability to determine if someone is telling the truth. Moreover, had he been offered as an expert, his impartiality and lack of independence would surely have been fatal to being so qualified: see White Burgess , at paras. 46-53. Det. Monette’s opinion about the truthfulness of the appellant’s confession was inadmissible. It was for the jury to answer this question, without undue influence from a high-profile witness who had no business opining on the issue. [69] Generally speaking, only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues. In Graat v. The Queen , [1982] 2 S.C.R. 819, the Supreme Court of Canada considered whether lay persons, in that case a police officer, could provide an opinion about whether a person’s ability to drive was impaired by the consumption of alcohol. [70] In a searching analysis, Dickson J. (as he then was) concluded that, as a general rule, lay persons cannot give opinion evidence, but noted that the law recognized a number of exceptions, such as the identification of handwriting, a person’s apparent age, the emotional state of a person, and others: at p. 835. However, he drew a bright line between opining on matters of fact on the one hand, and legal standards on the other. Dickson J. said, at p. 839: “A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent.” Similarly, an opinion that an accused person is guilty would be subject to the same prohibition. [71] The Supreme Court addressed this issue in R. v. Van , 2009 SCC 22, [2009] 1 S.C.R. 716. In that case, the victim, Jack Kong, had been stabbed and robbed. He said his former friend Duc Van did it. At trial, Mr. Van claimed that someone else had attacked Mr. Kong. Mr. Van was convicted at trial. On appeal, this court set aside the convictions because one of the Crown’s key witnesses, a police officer, offered his opinion on Mr. Van’s guilt, and left the suggestion that his opinion was based partly on information that was not before the jury. He was also permitted to give evidence that fell into the category of investigative hearsay. Winkler C.J.O., in dissent on this point, would have dismissed the appeal by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code : R. v. Van , 2008 ONCA 383, 92 O.R. (3d) 462, at para. 47, rev’d 2009 SCC 22, [2009] 1 S.C.R. 716. [72] By a majority of 5:4, the Supreme Court overturned this court’s decision. All nine judges agreed that the disputed evidence was admissible, but only for a limited purpose. They also agreed that the jury should have been provided with a limiting instruction about the proper use of the investigative hearsay and police opinion evidence. The jury received no such instruction. The majority was prepared to apply the proviso; the minority was not. [73] Although the main issue before the Supreme Court concerned the impact of the failure to provide a limiting instruction, both the majority and minority judgments are helpful on the question of the admissibility of the disputed evidence. [74] For the majority, LeBel J. held, at para. 39, the evidence of the officer’s “statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence , due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D. , 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49)” (emphasis added). [75] LeBel J. qualified his comments about admissibility. He agreed with this court that investigative hearsay and police opinion evidence were admissible as they pertained to the defence assertion of an inadequate police investigation: at para. 33, citing R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.); R. v. Mallory , 2007 ONCA 46, 220 O.A.C. 239. See also Lisa Dufraimont, “Annotation to R. v. Van ” (2009), 65 C.R. (6th) 195. [76] In his reasons for the dissenting judges, Cromwell J., at para. 82, accepted the majority’s characterization of the opinion about Mr. Van’s guilt as clearly unwarranted and held that “[t]he opinions of the police on the question of an accused’s guilt have no place in the jury’s deliberations”: at para. 86. At para. 81, he cited the reasons of Major J. in D.D. , where he said, at para. 49: A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience. This is a commendable principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved. [77] Cromwell J. elaborated on the dangers of the officer’s opinion evidence in the following paragraph, which contains obvious parallels to the circumstances of this case, at para. 82: It is worth remembering that there are at least three dangers in receiving opinion evidence of the sort the officer gave in this case. First, it usurped the function of the jury by drawing critical inferences — a conclusion about the respondent’s guilt — from the facts known to the witness. Second, it obscured the factual basis for the conclusions reached. In this case, it was at best unclear and at worst a likely inference that the officer’s opinion was based on evidence other than that which had been admitted before the jury. [ [2] ] Finally, there was a danger that, given the long experience and excellent career history of Det. Sgt. Nealon, the jury would attach undue weight to his opinion: see, for example, Graat v. The Queen , [1982] 2 S.C.R. 819, at pp. 839-40. [78] All of the judges in Van agreed that, in the absence of an allegation of an inadequate investigation, the Crown is not permitted to adduce police opinion evidence (or investigative hearsay evidence). If such evidence is adduced, there must be a cautionary instruction that this type of evidence cannot be used to infer guilt. [79] The admissibility of police opinion evidence has arisen in this court from time to time, sometimes in conjunction with demeanour evidence. For example, in R. v. Short , 2018 ONCA 1, 139 O.R. (3d) 1, the appellant was convicted of killing his wife. The defence took the position that the police had too quickly jumped to the conclusion that the appellant was responsible, to the exclusion of other suspects. [80] In cross-examination, one of the police officers testified that, in his opinion, the appellant did not react to being questioned about the murder in the way that an innocent person would have reacted. Although the appeal was allowed on other grounds, the court addressed the obligations of the trial judge in these circumstances. Applying Van , Doherty J.A. held that the trial judge had to instruct the jury: (1) that the officer’s “opinion about the appellant’s veracity was irrelevant to their deliberations”; and (2) his “opinions about the appellant’s demeanour and the inferences that could be drawn from that demeanour could not be used by the jury as evidence of the appellant’s guilt”: at para. 58. [81] Similarly, in R. v. Borel , 2021 ONCA 16, 153 O.R. (3d) 672, the accused was charged with attempted murder for setting the victim on fire. He gave a lengthy interview to the police in which he denied responsibility. At trial, the Crown adduced the evidence of the interviewing police officer. As in this case, the officer was very accomplished, with 27 years of experience, having worked in major crimes and homicide. As Nordheimer J.A. observed, at para. 30: “He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator.” Without objection, the officer gave evidence about the accused’s demeanour. He offered his opinion that his denials were “relatively weak” and that, based on his experience and training, “if someone’s in custody for an offence, a serious offence that they … did not commit, they would … likely be denying it strongly and asking why they’re in custody”. [82] Nordheimer J.A. concluded that this opinion evidence was highly prejudicial. He relied on R. v. Quazi , 2014 ONCA 94, in which a police officer was permitted to give his opinion that the appellant’s demeanour during his police interview was indicative of guilt: at para. 36. In allowing the appeal in Quazi , this court held, at para. 7: “Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.” [83] In light of this line of authority, the opinion evidence offered by Det. Monette was inadmissible. [84] Before considering the absence of a limiting instruction and the application of the curative proviso, I pause to consider an aspect of the Crown’s submissions. During the hearing of this appeal, Crown counsel asserted that, pursuant to Van , police opinion evidence is “inadmissible – full stop”. However, when dealing with the proviso, both in her factum and during the hearing, she made submissions that suggested that Det. Monette’s evidence had been properly received. These submissions relate to admissibility and I address them here. [85] First, the Crown submits that the appellant’s position at trial – that his confession was false – was a suggestion that someone else was responsible for the murder and an implicit attack on the adequacy of the police investigation, bringing this case within the exception in Dhillon and Mallory . Second, the Crown submits that the impugned parts of Det. Monette’s evidence merely amounted to an explanation as to why the police took the appellant’s confessions seriously. Both submissions were said to be rooted in LeBel J.’s comments in Van , at paras. 37 and 39, that the application of the proviso must take account of the “context” in which the evidence was adduced. [86] I cannot accept either of the Crown’s submissions, both of which are assertions of admissibility. A denial of liability and the contention that a purported confession is not truthful cannot be equated with an attack on the integrity of the investigation, particularly in circumstances like this, where the appellant was responsible for instigating the investigation into his involvement in the killing of Ms. Stewart. The appellant’s contention that he did not kill Ms. Stewart (and, by obvious implication, that someone else did) was incapable of amounting to an assertion that the police investigation must have been inadequate because it failed to focus on the actual suspect. If a simple denial of responsibility is all that is required, the exception in Mallory and Dhillon would be virtually limitless, providing an unreasonably broad gateway for the introduction of police narrative and opinion evidence, with all its attendant risks. [87] The prospect of an allegation of an inadequate police investigation arose in a different context at trial. The trial Crown sought to have Det. Monette testify about receiving a tip from a confidential informant that linked the appellant to the murder. The trial judge disallowed this line of questioning, which would have elicited investigative hearsay. In the colloquy with counsel that followed, the trial judge said: “The defence better not open the door that there was a shoddy investigation if nothing was done prior to confession. They do that, then they’re opening a door.” There was no subsequent attack on the adequacy of the police investigation, in that context or any other. [88] Similarly, the Crown’s submission that Det. Monette’s opinion was really just an explanation of why the police took the appellant’s confession seriously purports to rely upon a distinction without difference. It is clear that Det. Monette took the appellant’s confession seriously because he believed it was true, a point that was made very clear to the jury. [89] Det. Monette’s comment was clearly opinion evidence, and in the absence of an attack on the adequacy of the investigation, it was inadmissible – full stop. (2) The Lack of a Proper Caution [90] All members of the Supreme Court in Van agreed that, given that the narrative hearsay and opinion evidence was admissible to defend against a claim of an inadequate investigation, the jury had to be instructed on the limited use of this evidence – i.e., that it could not constitute evidence of guilt. In Van , the trial judge failed to give that caution, leading to the dispute about the application of the proviso. [91] The failure to give a limiting instruction was far more serious in this case. T here was no path to admissibility for Det. Monette’s opinion. It was improperly before the jury for any purpose. Instead of the need for an instruction about the limited use of the evidence, the jury should have been told that the officer’s opinion was entirely irrelevant to their deliberations and should be completely disregarded. The fact that this highly prejudicial evidence had no legitimate claim to admissibility significantly adds to the burden to be borne by the proviso. (3) The Curative Proviso (s. 686(1)(b)(iii)) [92] The Crown asks this court to apply the curative proviso in s. 686(1)(b)(iii) of the Code to dismiss the appeal. It submits that the error was “harmless … in its effect and did not prejudice the appellant or affect the verdict”. [93] In applying s. 686(1)(b)(iii), the task is to determine whether there is a reasonable possibility that the verdict would have been different had the error not been made. If an appellate court concludes that there is a reasonable possibility that the outcome would have been different, the proviso cannot be applied: R. v. Bevan , [1993] 2 S.C.R. 599, at p. 617; R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28; R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. In Khan , at paras. 29-31, the Supreme Court confirmed that there are two scenarios where the curative proviso may be applied: (1) where the error is so harmless or trivial that it would make no difference to the outcome; or (2) even if the error is not minor, the evidence is so overwhelming that the trier of fact would inevitably convict. [94] In Van , at para. 48, the majority concluded that failing to provide a cautionary instruction “had a sufficiently minor effect that it could not possibly have affected the verdict”. The minority concluded, at paras. 57-59, that the error was neither minor nor harmless. Understandably, the appellant favours the minority reasons in Van , whereas the Crown endorses the majority’s approach. But applying the proviso in this case is not as straightforward as simply choosing between the two. A qualitative analysis is required. [95] The error in this case must be viewed in the context of the entire trial. Only then can its seriousness and impact be properly assessed. [96] I start with the general observation that the evidence against the appellant was not overwhelming. As noted above, it took a long time to solve the case, partly because of the lack of eyewitnesses and the absence of any evidence linking the appellant to Ms. Stewart’s murder. [97] The trial Crown’s case was built upon the appellant’s statements; the centrepiece of the prosecution was his video-recorded February 26 confession. It was common ground at trial that, unless the confession was accepted as truthful, the trial Crown would be unable to prove that the appellant killed Ms. Stewart. The trial judge made this clear to the jury. He told them that their “focus should be on the reliability of the [appellant’s] confession” and that they must be satisfied beyond a reasonable doubt that “the Crown has established that the confession is reliable and that those parts of the confession where Adrian Daou describes his unlawful killing of Jennifer Stewart are in fact true.” There were other aspects of the trial Crown’s case, including the appellant’s other statements, and the evidence concerning the Canadian Tire purchases. However, the value of all of this evidence was tethered to the reliability of the confession. Realistically, the confession was the case. [98] The errors in this case went directly to the core of the trial Crown’s case and the critical issue the jury needed to decide: Was the confession true? This was far from straightforward. When the appellant made his confession, he was exhibiting the symptoms of schizophrenia. His motivation for confessing appeared to be a practical one – when he first called for the police, the appellant was desperate to be removed from custodial segregation. His stated motivation for killing Ms. Stewart was less clear, if not bizarre – he said that he wanted to be a “billionaire rap superstar”. He also spoke of cashing in the reward that was offered. [99] The challenge of determining whether the confession was authentic was compounded by the appellant’s attempt to confess to killing another woman, which was almost immediately dismissed as demonstrably false. The dark backdrop to all of this was that a number of young women were murdered in the Ottawa area between 2008 and 2011. For the jury, determining the reliability of the confession would have been no easy task. [100] However, the jury’s challenge may have been eased by Det. Monette’s opinion that the confession was truthful. His evidence may have alleviated hesitation or a lingering doubt in the minds of some jurors, or moved jurors who were on the fence to a finding that the confession was reliable. Recall, the trial judge told them that they must be satisfied of this fact beyond a reasonable doubt. The opinion could have helped some jurors cross the line between finding that the confession was probably reliable to being satisfied to the requisite standard. [101] In Van , the impugned evidence, especially the opinion evidence, was limited in its scope. It was essentially a “one-off” comment by one of the officers. By contrast, in this case, Det. Monette’s evidence assumed a significant role. He was questioned carefully about how he formed his opinion that the confession was reliable. For the most part, defence counsel stayed away from this issue, simply asking Det. Monette about indications of supposed hold back information in the confession. This prompted the response that “it’s not just checking off boxes, … it’s more intuitive than that”. The trial Crown addressed this issue in re-examination by asking Det. Monette what he meant by this comment. For convenience, I repeat his answer to this question: Certainly, I’m – I’m not just waiting for a person to regurgitate words that I think are – are, uh, important. It’s – it’s important that it all be explained in a context that’s – that’s believable and that is consistent and that is something that – that will hold water. And in this case, I believe that to be the case. [102] Det. Monette’s resort to intuition made matters worse by conveying to the jury that he saw or knew things that other people could not see or know. His opinion was based on something the jurors could never share – his lived experience as a police officer. This was something Det. Monette referenced numerous times during his testimony, and which the trial judge mentioned in his final instructions. [103] As Cromwell J. observed in Van , at para. 82, there is a real danger that this type of evidence will usurp the jury’s function by leading them to draw critical inferences. The risk was heightened because Det. Monette’s conclusion was based, at least in part, on intuition, or inherent knowledge, which would have been impervious to direct challenge by counsel, and not easy for a juror to ignore. [104] Moreover, Det. Monette’s prominence and prestige in the eyes of the jury cannot be underestimated. He frequently reminded the jury of his qualifications and experience as a police officer. In Graat , although Dickson J. held that police opinion evidence concerning intoxication is admissible, he warned that, “there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses”: at p. 840. See also R. v. Lewis , 2012 ONCA 388, 284 C.C.C. (3d) 423, at para. 22. [105] During the course of the trial, the jury heard evidence from an expert witness, a psychiatrist named Dr. Bradley Booth. Before being qualified as an expert, Dr. Booth was introduced to the jury by being taken through his education, training and experience. Even though he was not offered as an expert witness, Det. Monette was introduced in the same way. This no doubt enhanced his standing before the jury. [106] To distinguish Van , the Crown relies on the fact that there were two categories of problematic evidence in that case – investigative hearsay and police opinion evidence. However, in this case, there was just one – police opinion evidence. But the difference between the cases is immaterial.  As noted above, I consider the nature and impact of the evidence in this case to be far more serious, especially given the prominence of Det. Monette’s opinion. Not only was there no instruction to disregard his evidence, the trial judge reiterated Det. Monette’s qualifications and repeated his opinion that the appellant’s confession was reliable. [107] The Crown further submits that aspects of the trial judge’s final instructions to the jury alleviated the impact of the wrongly admitted evidence and the lack of a specific limiting instruction. She relies on the fact that the trial judge told the jury that it was for them to decide the facts of the case. She also relies upon the proper instructions given on the standard and burden of proof, reasonable doubt, the presumption of innocence, and that the murder indictment was not evidence itself of guilt. I do not find this submission persuasive. All of these instructions are elemental components of a jury charge in a criminal case. The omission of any one of these would have come with its own set of serious problems but their inclusion could not undo the damage of the impugned evidence and the lack of a strong cautionary instruction. [108] Lastly, the Crown relies on the lack of any objection to the admission of Det. Monette’s opinion evidence, or to the lack of any instruction. I am troubled by the failure to object, but such a failure is not determinative to the application of the proviso; it is simply one fact to consider: R. v. L.K. , 2020 ONCA 262, at para. 15; R. v. Cook , 2020 ONCA 731, 153 O.R. (3d) 65, at paras. 68-71; and Borel , at para. 29. [109] The trial judge did not receive the assistance he might have expected from trial counsel concerning the admissibility and subsequent management of this evidence at trial. Nonetheless, I agree with the appellant’s counsel that the lack of objection could not have been motivated by tactical considerations: R. v. McFarlane , 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 91. There was simply nothing to be gained by exposing the jury to the wide-ranging and damaging opinion evidence of Det. Monette. The result was an unfair trial. It cannot be said that the result would have been the same had these errors not been made. H. Conclusion [110] I would allow the appeal, set aside the conviction, and order a new trial. Released: June 3, 2021 “KF” “Gary Trotter J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.” [1] The audio recording indicates the appellant said he first hit Ms. Stewart “up here … like the top part”. The appellant used the words “up here” and “top part” several times throughout his statement. When asked about other instances of the appellant saying “up here” or “top part”, Det. Monette testified the appellant was gesturing at his upper torso, along his chest between his two shoulders, as he said those words. [2] This danger that Cromwell J. identified has no application to this appeal.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dawkins, 2021 ONCA 113 DATE: 20210223 DOCKET: C66752 Fairburn A.C.J.O., Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Lincoln Lee Dawkins Appellant Brad Greenshields, for the appellant Tanit Gilliam, for the respondent Heard: October 30, 2020 by video conference On appeal from the convictions entered by Justice Cynthia Petersen of the Superior Court of Justice, sitting with a jury, on November 23, 2018. Fairburn A.C.J.O.: A.    overview [1] On June 16, 2013, shortly after the arrival of a flight from St. Maarten to Toronto, two bricks of cocaine were found in a men’s washroom located just before the primary inspection area at Toronto Pearson International Airport. The bricks appeared to have fallen from the ceiling above one of the washroom stalls. Another 16 bricks were found in the ceiling above that stall the following day. The cocaine weighed 17.3432 kilograms in total. [2] Both the appellant and Marvis Samuel had been passengers on the flight to Toronto from St. Maarten. Shortly after the flight arrived, video surveillance footage showed them entering and leaving the washroom where the cocaine was later discovered. They were moving in close succession. Four of the appellant’s and one of Mr. Samuel’s fingerprints were found on the packages of cocaine discovered in the washroom. [3] Both men were indicted on importing and conspiracy to import cocaine charges. Prior to their trial, Mr. Samuel pled guilty to the conspiracy count and was deported from Canada. [4] The appellant was eventually tried before a judge and jury. He was convicted on both counts and received a nine-year and six-month sentence on the importing count and the same concurrent sentence on the conspiracy count. [5] This is an appeal from convictions only. The appellant’s objections rest exclusively with the jury charge. I would group his objections into two overarching categories, both of which arise in the context of the trial judge’s jury instructions on the conspiracy count: (a) that the jury was erroneously instructed on the use they could make of Mr. Samuel’s guilty plea; and (b) that the jury was erroneously instructed on the use that could be made of the acts and declarations of alleged co-conspirators, including Mr. Samuel’s acts and declarations. [6] As I will explain, both of these errors were made. As I will further explain, despite these errors, this was an overwhelming Crown case on the importing count and, therefore, I would uphold the conviction for importing a controlled substance by applying the curative proviso under s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46. B.   ISSUE ONE: USING THE SAMUEL GUILTY PLEA AS PROOF OF THE CONSPIRACY (i) Overview [7] The essence of a criminal conspiracy is an agreement to pursue an unlawful object. It is a preliminary crime where the Crown has to prove that there was a meeting of the minds between at least two people – the co-conspirators’ minds – to pursue an unlawful object: United States of America v. Dynar , [1997] 2 S.C.R. 462, at para. 87; Criminal Code , s. 465(1). As Dickson J. (as he then was) helpfully explained over 40 years ago now in Papalia v. R. , [1979] 2 S.C.R. 256, at p. 276, the crime of conspiracy is well named, deriving as it does from the Latin words con and spirare , meaning “to breathe together”. [8] Therefore, proof of a conspiracy involves three essential components: (a) there was an agreement between two or more persons; (b) the purpose of that agreement was to pursue a common unlawful object; and (c) the accused was a member of that conspiracy, meaning that he or she had knowledge of the unlawful nature of the agreement and made a voluntary and intentional decision to join in the agreement to achieve the common unlawful object. [9] In this case, the jury was instructed to forgo consideration of the first two essential elements of conspiracy: whether there was an agreement between two or more persons; and, if so, whether the agreement was to pursue a common unlawful object. Instead, the jury was instructed that, because Mr. Samuel had pled guilty to conspiracy, they were required to accept as a proven fact that those two elements had been proven beyond a reasonable doubt. [10] The source of this instruction appears to have been an Agreed Statement of Facts, entered as the first exhibit at trial, which, for reasons that are not entirely clear, included reference to Mr. Samuel’s plea of guilt to conspiracy: On June 8, 2015, Marvis Samuel pled guilty to conspiracy to importing cocaine, in the amount of 17.3432 kilograms, into Canada between June 1 st and June 16 th , 2013, both dates inclusive, contrary to s. 6(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code of Canada . [11] The fact of Mr. Samuel’s guilty plea resulted in the trial judge instructing the jury that they must “accept as fact” the following things: (a) that there was a conspiracy between two or more people; (b) that the conspiracy was to import 17.3432 kilograms of cocaine into Canada; (c) that the conspiracy lasted between June 1 and 16, 2013; and (d) that Mr. Samuel was a member of that conspiracy. The impugned instruction reads as follows: It is an agreed fact (Exhibit 1) that Mr. Samuel pled guilty to conspiracy to import 17.3432 kilograms of cocaine into Canada between June 1 and June 16, 2013. The Crown therefore is not required to prove the first two essential elements of the conspiracy offence. You must accept as fact that there was a conspiracy between two or more persons to import cocaine into Canada between June 1 and June 16, 2013. You must also accept as fact that Mr. Samuel was part of the conspiracy . [Emphasis added.] [12] For the reasons that follow, I conclude this was an erroneous instruction. (ii) A Guilty Plea Does Not Form Proof of the Offence [13] A co-actor’s guilty plea is proof of nothing other than that the pleader was arraigned, pled guilty to the offence, and that there was some evidence to support that plea: R. v. Caesar , 2016 ONCA 599, 339 C.C.C. (3d) 354, at paras. 55, 59. It is an actual admission of guilt against the pleader only. To be clear, it establishes nothing in relation to alleged co-actors. [14] The crime of conspiracy is not exempt from this rule. It is well established that the guilty plea of one alleged co-conspirator cannot be used to establish the guilt of another. In a comment particularly apposite to this case, Watt J.A. said in Tsekouras : “The pleas of guilty or convictions of other alleged co-conspirators are not admissible to prove the existence or fact of the conspiracy in the trial of another or other alleged co-conspirators”: R. v. Tsekouras , 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 177, leave to appeal refused, [2017] S.C.C.A. No. 225. See also R. v. Desgroseilliers (1986), 13 O.A.C. 225 (C.A.), at para. 29, leave to appeal to S.C.C. refused (1986), 74 N.R. 320 (note). [15] While there are rare circumstances where the guilty plea of an alleged co-actor may be admissible in the trial of another, the fact of the guilty plea remains of limited use, admissible only to prove the fact of the arraignment and guilty plea: Caesar , at paras. 59, 62. Importantly, even in these rare circumstances, the guilty plea is not admissible to prove the facts underlying the plea. That is precisely how Mr. Samuel’s guilty plea was used in this case. (iii) The Erroneous Instruction and the Parties’ Positions [16] On appeal, the respondent fairly acknowledges that the co-accused’s guilty plea to conspiracy should not have determined that there was, in fact, a conspiracy. Despite this concession, the respondent argues that no harm was occasioned by that improper use of the plea because the balance of the Agreed Statement of Facts supported the fact of the existence of the conspiracy and Mr. Samuel’s involvement in the conspiracy. I do not agree. [17] Aside from the reference to the guilty plea, there is nothing in the agreed- upon facts that speak to a conspiracy. To the contrary, the agreed-upon facts support Mr. Samuel’s involvement in the crime of importation, specifically acknowledging that he imported the bricks of cocaine and stored them in the washroom ceiling. [18] While this issue may well beg the question as to why the Agreed Statement of Facts referred to the guilty plea, there is no good answer to that question. Importantly, at this stage, it does not matter. The fact is that the actual facts that were agreed upon, and placed before the jury, supported Mr. Samuel’s involvement in the crime of importing cocaine into Canada and they supported the fact that he pled guilty to a conspiracy. They did not support a conspiracy. [19] The respondent also points to two passages in the transcript that are said to demonstrate that the defence accepted as a fact that there was a conspiracy. Leaving aside whether an acknowledgment from counsel, contained in submissions outside of the jury’s presence, could cure this defect, I do not accept that the passages of transcript are as clear as suggested on this point. [20] On two separate occasions, the trial judge asked counsel for input as to whether she (the trial judge) was right about the use to be made of Mr. Samuel’s guilty plea. I would emphasize at this juncture that the trial judge was right to alert counsel to this issue and request assistance on the point. Unfortunately, she did not receive the assistance she was owed: R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. [21] Although it was undoubtedly a legal misunderstanding on the part of the trial Crown, she did not alert the trial judge to the error in the proposed instruction. Instead, she encouraged the trial judge to stay the course and, essentially, withdraw from the trier of fact consideration of the first two essential elements of conspiracy. As the trial Crown put it: Mr. Samue[l] pled guilty to a conspiracy to import cocaine for that exact quantity on that exact time frame … the exact same – so to me, there’s no question that there was a conspiracy in play and Mr. Samuel was a part of it, and yes, the question to be decided is [whether the appellant was a member of that conspiracy]. [22] Unfortunately, defence counsel did not raise an objection. When the issue was first raised by the trial judge, defence counsel asked for “an opportunity” to consider the matter. Later that same day, when the trial judge raised the matter again, defence counsel noted that she had retrieved the Agreed Statement of Facts “just to refresh [her] memory on the wording.” There was a short exchange, ending with the trial judge’s suggestion that they would discuss the matter again in the morning, but unfortunately that did not happen. [23] Although the respondent does not suggest otherwise, it is also important to note that defence counsel did not acknowledge the existence of a conspiracy or the nature of that conspiracy in her closing submissions to the jury. [24] In the end, the record does not support the respondent’s suggestion that these matters were clearly acknowledged by the defence at trial. (iv) The Effect of the General Instructions About the Use to be Made of Guilty Pleas [25] The respondent contends that, even if the appellant did not acknowledge Mr. Samuel’s guilt in relation to the conspiracy, no prejudice resulted because the trial judge gave two general limiting instructions about what use could be made of guilty pleas. The respondent points to two passages in the charge that are said to have brought home to the jury that Mr. Samuel’s conviction could not be used by the jury in assessing whether the appellant was also guilty. [26] The first instruction resides early in the charge, at a point when the jury was being instructed on general legal principles. At that stage, the jury was told: Mr. Samuel’s guilty plea has absolutely no bearing on whether [the appellant] is guilty. You must not think that because Mr. Samuel pleaded guilty, [the appellant] must be guilty too. [27] The second instruction came in the part of the charge where the trial judge was guiding the jury on the elements of the crime of importation of a controlled substance. At that stage, the jury was told that: It is important to remember … that although [the appellant] and Mr. Samuel were both charged in respect of the bricks of cocaine that were found in the airport washroom, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. [The appellant] is entitled to separate consideration of the evidence that applies to him. He is entitled to have his case decided on the basis of his own conduct and his state of mind. [28] Both of these instructions were important. Both were correct in law. The jury needed to know that just because Mr. Samuel pled guilty, and was found guilty, it did not mean that the appellant was also guilty; they also needed to know that Mr. Samuel and the appellant were separate individuals and that the appellant could only be found guilty based upon the evidence “relating to him”. [29] The difficulty is that no sooner had these instructions been given than they were overtaken by the instruction to the jury that, because of Mr. Samuel’s guilty plea, they had to accept as proven that the first two elements of conspiracy had been made out. In other words, while the jury knew that the fact of Mr. Samuel’s guilty plea did not mean that the appellant was necessarily guilty of conspiracy, the fact of Mr. Samuel’s guilty plea was used as evidence against the appellant in proof of that charge. (v) Conclusion [30] While the respondent is right that, in the end, the defence did not contest the jury charge as delivered on this point, this was a serious error. While the failure to register a complaint will often signal the inconsequential nature of an error, particularly when viewed in the context of the broader trial, this is not one of those cases: Daley , at para. 58; R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 38. [31] This is particularly true when one considers how the conspiracy count was framed on the indictment: “ [the appellant] , unlawfully did between the 1 st day of J [ une ] , 2013 and the 16 th day of J [ une ] , 2013, both dates inclusive, … conspire and agree together, with Marvis Anwah Samuel … to commit an indictable offence of importing a controlled substance into Canada, to wit: [cocaine]”. Through the jury instructions given, every box on the conspiracy count was ticked, except for the appellant’s actual membership in the conspiracy. As I will now explain, respectfully, the jury was erroneously instructed on that issue as well. C. ISSUE TWO: THE INSTRUCTION ON MEMBERSHIP – THE CARTER ERROR (i) Overview [32] The appellant argues that the trial judge erred in her instructions to the jury on how to approach their deliberative process involving the essential element of membership. [33] The jury was told that “the conspiracy alleged by the Crown and to which Mr. Samuel pleaded guilty was from June 1 to June 16, 2013.” In determining whether the appellant was a member of that conspiracy, the trial judge instructed the jury as follows: You may consider not only the things that [the appellant] said and did but also what other known or probable members of the conspiracy said or did . [Emphasis added.] [34] The appellant argues that this instruction was missing a fundamental element, arising from R. v. Carter , [1982] 1 S.C.R. 938. That element involves an intermediate step, requiring that the trier of fact first satisfy him or herself, based upon the accused’s own acts and declarations, that the accused is probably a member of the conspiracy. In my view, the jury charge fell short on this front. (ii) The Carter Instruction [35] The Carter instruction applies in any case involving an offence committed in furtherance of a common design where the Crown seeks to rely upon the acts and declarations of anyone else who formed part of that common design: R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 98. In this case, the impugned instruction involving the common design involves the crime of conspiracy, and so I will use language to match that offence. [36] Acts and declarations are typically only admissible against the doer and maker: R. v. Puddicombe , 2013 ONCA 506, 299 C.C.C. (3d) 543, at para. 85, leave to appeal refused, [2013] S.C.C.A. No. 496 . Yet, in the context of a conspiracy, the acts and declarations by one member of the agreement may become admissible against other members of the same agreement, if those acts and declarations are done or made in pursuit of the same unlawful purpose while the conspiracy is still operative. [37] The Carter rule focusses upon the means by which the acts and declarations of one person can become admissible against another. This is true, whether those alleged co-conspirators stand as co-accused at trial or not. Indeed, it is true whether the alleged co-conspirators’ identities are known or not. Regardless, the acts and declarations of alleged co-conspirators are conditionally admissible at trial, leaving it up to the trier of fact to determine whether the evidence can be marshalled in aid of proving the accused’s membership in the conspiracy. Where the trier of fact is a jury, the proper approach to that determination requires precise, careful, and admittedly complex instructions. [38] In enters the Carter instruction. It is what Doherty J.A. referred to in Puddicombe , at paras. 85-86, as a “uniquely Canadian” approach to the rule that “[g]enerally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act.” [39] The Carter instruction involves three cascading steps, each one of which can bring the deliberative process in the context of a conspiracy case to an abrupt conclusion. [40] The first question is whether the trier of fact is satisfied beyond a reasonable doubt that the alleged conspiracy existed. At this stage, the trier of fact may consider all of the evidence, including what alleged conspirators have done and said in furtherance of the common unlawful object: R. v. Yumnu , 2010 ONCA 637, 260 C.C.C. (3d) 421 (“ Yumnu (ONCA) ”), at para. 338, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777 . [41] If the answer to the first question is yes, then the trier of fact goes on to consider, based upon all of the evidence directly admissible against the accused, whether the accused is probably a member of that conspiracy. This determination is made on a civil standard of a balance of probabilities. It requires the trier of fact to consider the accused’s own words and conduct – the evidence directly admissible against him or her – as viewed against its proper context: see R. v. Filiault (1981), 63 C.C.C. (2d) 321 (Ont. C.A.), at pp. 326-27, aff’d [1984] 1 S.C.R. 387 . [42] If the answer to the second question is yes, then the trier of fact goes on to consider whether the accused’s membership in the conspiracy has been proven beyond a reasonable doubt. This third step involves the conversion of probable membership into full membership or “actual participation” in the conspiracy: Yumnu (ONCA) , at para. 340. Assuming that this stage is reached, the trier of fact will consider all of the evidence, including the acts and declarations of other alleged co-conspirators done and made in furtherance of the conspiracy while the conspiracy was ongoing in nature. See Carter , at pp. 946-47; R. v. Barrow , [1987] 2 S.C.R. 694, at p. 740; R. v. Mapara , 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8; R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53. (iii) The Objection on Appeal [43] The appellant’s complaint lies in the fact that the trial judge by-passed the first two elements from Carter and skipped directly to instructing the jury on the third prong. In other words, instead of instructing the jury to first consider whether there was a conspiracy and, if so, whether the appellant was probably a member, the trial judge told the jury that there was, in fact, a conspiracy and that, in determining if the appellant was a member, they could “consider not only the things that [he] said and did but also what other known or probable members of the conspiracy said or did .” [44] I have previously explained why it was an error to instruct the jury that they had to accept as a fact the existence of the conspiracy (issue one in these reasons and step one of Carter ). Accordingly, I will now focus upon why it was an error to skip the second stage of Carter . In my view, the charge erroneously deemed the appellant to be a probable member of Mr. Samuel’s conspiracy and, thereby, worked a serious unfairness to him. (iv) The Draft Charge was Correct on Stage Two and then it was Changed [45] I start with the observation that the draft jury charge, shared with counsel during the pre-charge stage of the trial, contained a correct Carter instruction on stage two. That draft tracked the specimen jury charge provided in David Watt, Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015), at pp. 1089-95 (Final 465). [46] The draft correctly explained to the jury that they were first to consider probable membership based upon “what [the appellant] said and did.” It then went on to explain that, if “satisfied from [the appellant’s] own words and conduct that he was probably a member of the conspiracy”, then they could move on to “consider what Mr. Samuel or any other persons who were probably members of the conspiracy said and did while the conspiracy was ongoing and in furtherance of their agreement.” [47] Unfortunately, the trial Crown convinced the trial judge that she need not instruct the jury on probable membership (step two of Carter ) . The trial Crown said that it was unnecessary to do so because the Carter instruction was only required where the acts and declarations of other alleged conspirators were admitted for a hearsay purpose. While the trial Crown acknowledged that there was one text message communication that was admitted for its truth, [1] for the most part, the acts and declarations of the other alleged conspirators, including Mr. Samuel, were not being relied upon for their truth and, therefore, there was no bar to using them to prove the appellant’s membership in the conspiracy. [48] The trial judge accepted this submission and ultimately collapsed the instruction into the third stage of Carter . Accordingly, the jury was invited, from the outset, to consider the acts and declarations of “other known or probable members of the conspiracy” in determining whether the appellant was also a member of that conspiracy. (v) A Carter Instruction Does Not Only Concern Itself with Hearsay [49] While the Carter rule is often referred to as the co-conspirator’s exception to the hearsay rule – and it is that to be sure – it serves a broader purpose than just protecting the accused against hearsay. [50] As explained earlier, at its core, the crime of conspiracy is about at least two people agreeing to pursue an unlawful object. By virtue of their joint enterprise, the enterprise being the agreement to pursue the unlawful object, the principle of implied agency is triggered. By reason of their partnership in crime, co-conspirators become one another’s agents, vicariously owning each other’s acts and declarations made and spoken in pursuit of the unlawful object during the currency of the conspiracy. As noted in Chang , at para. 55, the historical rationale for this rule rests in the accepted fact that “each party to the conspiracy implicitly authorize[s] the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others”. [51] The principle of agency was explained by Martin J.A. in R. v. Baron and Wertman (1976) , 73 D.L.R. (3d) 213 (Ont. C.A.), at pp. 231-32. His description, at p. 231, has withstood the test of time: The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A’s acts and declarations but, in law, are also B’s acts and declarations. The rule of evidence is not limited to charges of conspiracy but applies to any offence which is the result of preconcert. [Citations omitted.] [52] The principle of agency is a powerful tool in the hands of the prosecution, one that cannot be resorted to lightly. Caution must be taken, lest an accused be convicted only on the basis of the acts and declarations of others. This is why there must be an initial showing of proof, based on the accused’s own connection to the alleged conspiracy, before the acts and declarations of alleged co-conspirators – as his agents – can be applied against him. Martin J.A. put it as follows in Baron , at pp. 231-32: It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A’s acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy. [Citations omitted.] [53] It is the Baron judgment that laid the framework for the Carter test. [54] Contrary to the trial Crown’s suggestion, which is further advanced by the respondent on appeal, the purpose of the Carter test is not simply to ward off the use of hearsay evidence until such time as the accused’s probable membership in the conspiracy has been established. While it undoubtedly achieves that goal, the purpose of the Carter test is properly characterized as a much broader one. It is rooted in the concept of relevance. [55] It bears repeating what Doherty J.A. said in Puddicombe , at para. 85: “Generally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act.” Stated the other way, the declarations and acts of others are not generally admissible against an accused. Therefore, this is more than a hearsay rule. It is a rule that ensures that before we allow evidence that would not otherwise be admissible against an accused to become a tool in the prosecutor’s case against him, there must be proof of the accused’s probable membership in the conspiracy, based only on evidence that is “directly admissible against the accused”: Carter , at p. 947; R. v. Lucas , 2014 ONCA 561, 313 C.C.C. (3d) 159, at para. 208, leave to appeal refused, [2014] S.C.C.A. No. 460 ; Puddicombe , at para. 99; Yumnu (ONCA) , at para. 340. At its core, this is a rule of fairness. (vi) The Effect of the Erroneous Instruction [56] In my view, the failure to instruct the jury on probable membership created a serious issue of fairness in this trial, one that only served to compound the initial erroneous instruction addressed under issue one of these reasons. The combined effect of those instructions was to leave the jury thinking that they had to accept that Mr. Samuel was a member of a conspiracy to import 17.3432 kilograms of cocaine into Canada and that his acts and declarations, as well as those of other “probable members of the conspiracy”, could be used in determining whether the appellant was also a member of that conspiracy. This was reinforced by the trial judge in the following instruction: It is not necessary that [the appellant] be the person who actually did the act in furtherance of the conspiracy, or even that he understood it or knew about it. Similarly, it is not necessary that [the appellant] be the person who actually spoke the words in furtherance of the conspiracy, or even that he was there when they were spoken. A conspiracy is like a partnership in crime. Each member is an agent or partner of every other member and is bound by and responsible for the words and conduct of every other member spoken or done while the conspiracy was ongoing and to further their unlawful scheme . [Emphasis added.] [57] It was a short distance between those instructions and a finding of guilt. [58] The respondent takes the position that this case consisted primarily of evidence directly implicating the appellant. That is true. However, the real question is whether there was evidence that was not directly admissible against the appellant or, conversely, evidence that could only be summoned in aid of proof of membership upon the application of the Carter rule. There was. I will use a few examples to make this point. [59] First, even the trial Crown acknowledged that there was a critical text message string, located on the appellant’s and Mr. Samuel’s phones, that the trial Crown wished to rely upon for a hearsay purpose: the truth of its contents. While the trial Crown’s position morphed somewhat over the course of the trial, at the end of the day, even as doing away with the Carter instruction was being advocated for, the trial Crown acknowledged that the following key text message exchange, sent and received while the appellant would have been waiting for the plane to depart St. Maarten, was admitted for a hearsay purpose. The appellant’s phone sent a message to Mr. Samuel’s phone, reading: “Ok how much you have”. The reply from Mr. Samuel’s phone was: “9”. The trial Crown closed to the jury suggesting that what was being discussed in that text message was that Mr. Samuel was acknowledging he was carrying nine bricks of cocaine. [60] Second, the trial Crown also emphasized Mr. Samuel’s acts. For instance, the trial Crown pointed out the fact that Mr. Samuel was a resident of Antigua and that he had travelled to St. Maarten the day before the flight to Toronto. The trial Crown emphasized for the jury Mr. Samuel’s travel itinerary, including his Antigua to St. Maarten to Toronto to Montreal to Antigua turnaround. The trial Crown pointed to stamps on Mr. Samuel’s passport to demonstrate his date of arrival in St. Maarten. The trial Crown also pointed to the fact that one of Mr. Samuel’s fingerprints was on a brick of cocaine recovered from the men’s washroom. [61] The trial Crown relied upon all of these pieces of evidence and more to suggest that the appellant was a member of Mr. Samuel’s conspiracy. Importantly, when relating the evidence to the legal issue of membership, the trial judge reviewed these pieces of evidence and more. This was not evidence directly admissible against the appellant. A Carter instruction was required. (vii) Significance of the Defence Position [62] The respondent emphasizes that even if the trial judge was wrong to collapse the Carter instruction by inviting the jury to commence their deliberations at the final stage, the defence acceded to that position at trial. Therefore, it does not fall to the appellant to complain about the instruction now. [63] The respondent is right that the appellant did not oppose the proposed manner of proceeding at trial. While defence counsel initially asked for some time to consider the matter, she later announced that she did not take issue with the jury being instructed to move directly to the final stage of Carter , “to make it easier for the jury.” [64] While the parties’ positions at trial will often inform the seriousness of an error located on appeal, that will not always be the case. It is not the case here. The greater the error and the closer it resides to a central issue, the less likely a counsel’s position will inform the result. In the end, I have come to the conclusion that this jury was not properly equipped to decide the case on conspiracy: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9. [65] Before embarking on the final section of these reasons, I make the following brief observation, all the while acknowledging the force of prosecutorial discretion. It is not uncommon to see prosecutions, such as this one, where the substantive crime is charged alongside a conspiracy count. This double-pronged approach can invite complexity and potential confusion into jury charges, both of which serve to threaten a clear-minded deliberative process. Complexity and confusion are impediments to achieving just results and stand in opposition to what we should be striving for in the criminal justice system. Where appropriate, it would behoove the prosecutorial authorities to seriously think about what is gained and what is lost by proceeding with a conspiracy count alongside the substantive crime: see generally R. v. Rowe , 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58; R. v. Rodgerson , 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 45-46. D. ISSUE THREE: The Application of the Curative Proviso [66] The respondent argues that, if this court finds a reversible error in the jury charge on conspiracy, the curative proviso should be applied. [67] Section 686(1)(b)(iii) of the Criminal Code allows an appellate court to dismiss an appeal notwithstanding a legal error if no substantial wrong or miscarriage of justice occurred. The curative proviso only applies where there is no “reasonable possibility that the verdict would have been different had the error at issue not been made”: R. v. Bevan , [1993] 2 S.C.R. 599, at p. 617. [68] There are two types of errors that can attract the application of the curative proviso. The first involves harmless or trivial errors, ones that could not have had an impact on the verdict: R. v. Van , 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35. That is not this case. Here, the errors were neither harmless nor trivial in nature. [69] The second category for applying the curative proviso results from situations involving serious errors, ones that would typically call out for a new trial or an acquittal, but where the case against the accused is so overwhelming in nature “that any other verdict would have been impossible to obtain”: Van , at para. 34. These cases must rise to the level where “the evidence is so overwhelming that a trier of fact would inevitably convict”: R. v. S. (P.L.) , [1991] 1 S.C.R. 909, at p. 916; R. v. Trochym , 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82; Van , at para. 36; R. v. R.V. , 2019 SCC 41, 378 C.C.C. (3d) 193, at para. 85. It is a high standard to be sure. [70] The difficulty with applying the curative proviso in situations such as these often arises from the difficulty that appellate courts face when evaluating the strength of the Crown’s case in a necessarily retroactive fashion, deprived of the ability to hear the witnesses testify and “experienc[e] the trial as it unfolded”: Van , at para. 36. [71] As noted in Van , at para. 36, any possible doubt must inure to the benefit of the appellant. In other words, if there is any possibility that the jury could, having regard to the entirety of the evidence, be left with a reasonable doubt on the appellant’s testimony, the curative proviso cannot be mobilized to uphold a conviction: R. v. Bailey , 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 57. [72] The appellant asks that both of his convictions be set aside, and a new trial be ordered on both counts. I do not agree that this is an appropriate remedy. [73] First, I note that the entire appeal was argued with a singular focus on the conspiracy count. While during oral submissions in this court there was some discussion about the potential impact of the errors on the importing count, particularly given that it rested in an allegation involving a joint enterprise, I see no need to resolve that issue. The fact is that the conviction for importing should be upheld through an application of s. 686(1)(b)(iii) of the Criminal Code . [74] Second, there was a sea of evidence pointing toward the appellant’s guilt on the importing offence, none of which rested on credibility findings. The appellant was caught on videotape entering the washroom where the cocaine was found. He was in there for a sufficient amount of time to hide the cocaine. Then, he was seen departing from the washroom. Four of his fingerprints were discovered on the packages of cocaine found on the floor and in the ceiling. When he was searched just a short while after the first two packages had been located, an empty knapsack was found in his carry-on luggage. That alone constituted what can only be described as a formidable – “overwhelming” – Crown case on the importing count. [75] I would uphold the conviction for importing. [76] As it relates to the conspiracy count, things are more complicated. The appellant testified and explained away all of the communications on his cell phone. It was an elaborate explanation, involving, among other things, the work he was doing in St. Maarten, the fact that he fell for a woman while he was there, and his need for Viagra. It also involved an explanation as to the fact that some of the more incriminating text messages on his phone were actually sent to a friend of his, each one having an innocent meaning. [77] As for how Mr. Samuel came into possession of the appellant’s friend’s phone, this was as much a mystery to the appellant as it was to anyone else. The appellant did not know whether his friend and Mr. Samuel were acquainted or whether the friend may have given his phone or SIM chip card to Mr. Samuel. [78] However far-fetched that evidence may have been, it was up to the trier of fact to tackle questions of credibility. In the end, while the Crown’s case on the conspiracy count is a powerful one, questions of credibility and the application of the W.(D.) standard were squarely in play: R. v. W.(D.) , [1991] 1 S.C.R. 742 . Having regard to all of the evidence, I cannot say that a jury would inevitably convict. E. DISPOSITION [79] I would dismiss the conviction appeal on the importing count. I would allow the conviction appeal on the conspiracy count. Therefore, the conviction on conspiracy is set aside, and a new trial is ordered on that count only. Released: “February 23, 2021” “JMJ” “Fairburn A.C.J.O.” “I agree M. Jamal J.A.” “I agree Coroza J.A.” [1] Earlier in the trial, the trial Crown had acknowledged that there were a few text messages that were being admitted for their truth.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dawkins, 2021 ONCA 235 DATE: 20210414 DOCKET: C67433 Hourigan, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Tyrone Dawkins Appellant Mark C. Halfyard, for the appellant Andrew Hotke, for the respondent Heard: In writing On appeal from the convictions entered on October 26, 2018, by Justice Richard E. Jennis of the Ontario Court of Justice. REASONS FOR DECISION Introduction [1] An officer of the Hamilton Police Service stopped the vehicle Tyrone Dawkins was driving and arrested him for driving while his licence was suspended. A search of the vehicle produced a loaded handgun under the driver’s seat. Mr. Dawkins was re-arrested for possession of an unauthorized firearm. [2] Defence counsel argued that the traffic stop was unconstitutional because it breached ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . Two weeks before the trial, Mr. Dawkins received updated disclosure that the stop was motivated, in part, by information from a confidential informant. The arresting officer, P.C. Cercone, had deliberately omitted this information from his notes, original will-say, and synopsis. [3] The matter proceeded as a single day Charter application and turned largely on the credibility of P.C. Cercone. Defence counsel at trial (not Mr. Halfyard) initially argued that the officer’s deliberate omission subverted the trial process, and that the trial judge should exercise his residual discretion to grant a stay of proceedings. However, after the parties had filed written submissions and the trial judge requested further oral submissions, defence counsel clarified that he was solely seeking a stay on the basis of a s. 9 Charter breach and not in relation to the late disclosure or another reason related to trial fairness. [4] The trial judge ruled that the officer was credible and dismissed the defence application. He dedicated only one paragraph of his reasons to his credibility assessment of the officer. The defence subsequently conceded the Crown's case, and Mr. Dawkins was convicted of multiple firearms offences. The parties agreed on a joint sentencing submission, which the trial judge accepted. Mr. Dawkins was sentenced to 7.5 years in custody, less 1.5 years pre-sentence credit. [5] On appeal, Mr. Dawkins argues that the trial judge provided insufficient reasons for finding that P.C. Cercone was credible. These reasons explain why we are not persuaded by that argument and accordingly dismiss the appeal. Facts [6] On February 25, 2018, at approximately 11:49 p.m., P.C. Cercone was conducting what he described as “routine patrol” of a location known to police as an illegal gambling establishment in Hamilton. He ran CPIC checks on the licence plates of some of the cars in the parking lot, including a grey Ford Escape. [7] At approximately 12:30 a.m. on February 26, 2018, P.C. Cercone observed a male and a female exiting the establishment. The officer recognized the male as the appellant, Mr. Dawkins, from a police database photo. P.C. Cercone observed Mr. Dawkins and the woman enter the grey Ford Escape, which turned out to be registered to a different individual. [8] The delayed disclosure revealed that P.C. Cercone had information from a confidential source that Mr. Dawkins “may be in possession of contraband.” At trial, P.C. Cercone testified that he also had information that Mr. Dawkins was driving a “silver SUV.” P.C. Cercone ran a CPIC check on Mr. Dawkins before pulling him over and was aware that he was a suspended driver. [9] P.C. Cercone followed the vehicle after it exited the parking lot. Two minutes later, he stopped it and radioed for backup. P.C. Cercone told Mr. Dawkins that he stopped the vehicle because it was swerving. The officer later acknowledged that he lied to Mr. Dawkins about the reason for the stop to buy time for other officers to arrive at the scene. He thought that advising Mr. Dawkins of the real reason for the stop – i.e., that P.C. Cercone suspected that Mr. Dawkins was driving while suspended – would heighten his fear level and jeopardize officer safety. P.C. Cercone testified that he was aware that Mr. Dawkins had prior firearms-related convictions and was subject to a weapons prohibition order. [10] After a second officer arrived on the scene, P.C. Cercone arrested Mr. Dawkins for driving while his licence was suspended. P.C. Cercone testified that he searched the vehicle, starting with the driver’s seat, for documents related to the suspended licence and for public safety reasons. He noticed that the backseat was “messy” and that there was “loose paperwork on the rear seat behind the driver and on the floor”. As P.C. Cercone searched the backseat area, he located the handgun under the driver’s seat. [11] On the Charter application, P.C. Cercone’s evidence was that he engaged in a “dual-purpose” stop and search: the first purpose was pursuant to the Highway Traffic Act , R.S.O. 1990, c. H 8, for the offence of driving while suspended; and the second purpose was based on the confidential informant’s tip regarding potential contraband. [12] P.C. Cercone did not mention the confidential informant in his notes, original will-say, or synopsis. He explained that at the time of the arrest, he had only been a police officer for two years and had never dealt with a confidential informant. P.C. Cercone stated that he was concerned that any hint of involvement of a confidential informant could jeopardize the source’s identity. [13] The officer also testified that he had several conversations about his non-disclosure with his superiors, beginning sometime in February or March. On his superiors' advice, P.C. Cercone did not disclose anything further and decided to wait for instructions from the Crown's office. The Crown met with the officer in August 2018 and was advised for the first time about the non-disclosure. P.C. Cercone subsequently amended his will-say on or around August 10, 2018, to reference the confidential informant. The revised will-say was disclosed to the defence on or around August 15, 2018, approximately two weeks before trial. [14] The trial judge heard the evidence of P.C. Cercone on August 29, 2018. He adjourned the matter to October 26, 2018, and requested written submissions. Then, on October 26, 2018, the trial judge invited further oral submissions on issues arising from the written submissions. Defence counsel clarified in oral submissions that he was only seeking a stay for the alleged breach of Mr. Dawkins’ s. 9 Charter rights and had abandoned his request for a stay based on late disclosure or any other reason related to trial fairness. [15] The defence's position was that P.C. Cercone's evidence was a fictional account of what happened and that the officer had concocted the reasons for the late disclosure because there were not sufficient grounds to stop Mr. Dawkins' motor vehicle and detain him. In contrast, Crown counsel argued that the traffic stop was justified by the Highway Traffic Act and P.C. Cercone’s objectively reasonable belief that Mr. Dawkins had committed the offence of driving while suspended. The Crown noted that it was not relying upon the confidential informant’s tip as a justification for the stop or arrest. [16] Counsel agreed about the central importance of P.C. Cercone’s credibility. The defence conceded that if he were found to be credible, then its Charter application would fail. Similarly, the Crown acknowledged that it could not make out its case if P.C. Cercone were found to be prevaricating. [17] The trial judge dismissed Mr. Dawkins’ Charter application. He summarized his reasons for accepting P.C. Cercone’s evidence in one paragraph as follows: Albeit unusual, it accords with common sense and logic given his lack of experience as a police officer at the time and especially given his lack of experience with a confidential informant, it makes sense that given a mistake in disclosure could have grave if not fatal consequences. His testimony was uncontradicted and was not shaken or weakened in cross-examination. In my view, he was forthright and direct in his answers to questions and did not attempt to embellish. [18] The trial judge noted that, although the delay in disclosure was "somewhat concerning," defence counsel did not point to any prejudice occasioned to Mr. Dawkins, and did not request an adjournment. Moreover, the trial judge found that P.C. Cercone did not act in bad faith; his actions were coloured by a perceived risk to his safety. As well, the trial judge reasoned that the evidence was not exculpatory, nor could the Crown rely upon it due to its invocation of informant privilege. Ultimately, the trial judge found no basis for a stay of proceedings and dismissed the application. Analysis [19] Mr. Dawkins raises a single issue on appeal: whether the trial judge’s reasons were sufficient regarding P.C. Cercone’s credibility, which was the central issue on the Charter application and was dispositive of the case. Mr. Dawkins submits that the trial judge should have more thoroughly examined the officer’s credibility with respect to his explanations for the failure to mention the confidential informant in the initial disclosure, for the lateness of the amended disclosure, and for the circumstances of Mr. Dawkins’ stop and search. [20] Mr. Dawkins argues that, despite the central importance of the officer's credibility to the disposition of his Charter application and the case, the trial judge's reasons on the issue are limited to a single paragraph that was largely boilerplate. He notes that beyond the trial judge's finding that the officer was inexperienced, the trial judge simply observed that the witness was uncontradicted, direct, and did not embellish his testimony. Mr. Dawkins submits that the trial judge was obliged to analyze the problems with the officer's evidence to satisfy the parties and this court that he correctly understood the credibility concerns. [21] In considering these submissions, it is helpful to have regard to several well-established principles that arise from the jurisprudence regarding the sufficiency of a trial judge’s reasons: (i) Reasons serve various functions, including explaining to the parties, the public and the appeal court why the trial judge decided a case in a particular way: R. v. Victoria , 2018 ONCA 69, 359 C.C.C. (3d) 179, at paras. 43 46. (ii) Appellate courts take a functional approach when considering appeals grounded on claims of insufficient reasons. The sufficiency of reasons must be assessed having regard to the evidence, the submissions, and the live issues before the trial judge: R. v. M. (A.) , 2014 ONCA 769, 123 O.R. (3d) 536, at para. 16; Victoria , at para. 44. (iii) A ground of appeal asserting insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: Victoria , at para. 44; R. v. T.C. , 2020 ONCA 469, at para. 24. (iv) A trial judge's credibility findings are entitled to significant deference unless they cannot be supported on a reasonable view of the evidence. Appellate courts must be mindful that it is often difficult to express such findings with precision: R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Radcliffe , 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 274; and R. v. Slatter , 2018 ONCA 962, 369 C.C.C. (3d) 112, at para. 102. [22] Context is essential in considering the sufficiency of the trial judge's reasons. As a result of the defence counsel's abandonment of the request for a stay based on the late disclosure, the only issue before the trial judge was whether the defence established, on a balance of probabilities, that the traffic stop was arbitrary. Given that the defence called no evidence, the trial judge was not obliged to resolve conflicting testimony. Instead, the trial judge’s task was limited to an assessment of whether P.C. Cercone’s testimony was credible. [23] The trial judge articulated reasons supporting his credibility finding, including that P.C. Cercone was not shaken on cross-examination and did not embellish his evidence. The trial judge also found that his explanation regarding the late disclosure was consistent with common sense and logic. Those reasons support the credibility finding made by the trial judge. While Mr. Dawkins argues that further elaboration was required, trial judges are not required to articulate credibility findings with scientific precision. This is especially true in situations, as in this case, where a trial judge is not analyzing conflicting evidence. [24] The defence theory proffered an alternative version of events that was wholly incompatible with P.C. Cercone’s testimony. There was no evidence adduced to support that theory. Instead, the theory was put to P.C. Cercone through a general attack on his credibility in cross-examination, and all insinuations about fabrication were denied by the officer. In finding P.C. Cercone credible, the trial judge rejected the defence theory. [25] The Crown concedes, and we agree, that the trial judge could have said more about why he rejected the defence theory. However, it is also important to note that there is evidence that contradicts the defence theory. For example, while P.C. Cercone’s notes do not mention the confidential informant, they did include information that he said came from the source regarding the fact that Mr. Dawkins was driving a silver SUV. This information's inclusion is inconsistent with the defence theory that the confidential informant was created later to defeat the Charter application, which was asserted after the officer's notes were originally disclosed. Thus, when the reasons are viewed in the context of the evidentiary record, it becomes apparent why the trial judge rejected the defence theory. [26] Mr. Dawkins also offers several criticisms of P.C. Cercone's testimony, including submissions that his evidence regarding why he made the traffic stop and why he did not disclose the information about the confidential informant earlier do not make sense. In our view, these alleged problems with the officer’s testimony, when considered in the evidentiary record context, do not detract from the officer’s credibility. For example, the officer offered logical explanations regarding why he lied to Mr. Dawkins about the reason for the traffic stop and why he did not reference the confidential informant in his notes, original will-say, or synopsis. The trial judge then adequately explained why he accepted those explanations. Disposition [27] For the foregoing reasons, the appeal is dismissed. We note in closing that the issues of the propriety of the initial failure to disclose the existence of the confidential informant and the falsification of the original disclosure were not before us on this appeal. Nothing in these reasons should be considered an endorsement of the Hamilton Police Service’s conduct in that regard. “C.W. Hourigan J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dematas, 2021 ONCA 289 DATE: 20210504 DOCKET: C68882 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Kadah Dematas Appellant No one appearing for the appellant Nicole Rivers, for the respondent Heard: May 3, 2021 by video conference On appeal from the conviction entered on September 20, 2019 by Justice Beth A. Allen of the Superior Court of Justice. APPEAL BOOK ENDORSEMENT [1] The appeal is dismissed as abandoned.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dindyal, 2021 ONCA 234 DATE:20210414 DOCKET: C67760 Watt, Hoy and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Anand Dindyal Appellant Sweta Tejpal and Hans John Kalina, for the appellant Eric W. Taylor, for the respondent Heard: March 23, 2021 by videoconference On appeal from the conviction entered on July 19, 2019 by Justice Michael R. Gibson of the Superior Court of Justice with reasons reported at 2019 ONSC 4364. Nordheimer J.A.: [1] Anand Dindyal appeals from his convictions on a number of counts including aggravated assault and assault with a weapon. The appellant was originally charged with 11 counts. At the conclusion of his judge alone trial, he was convicted of 10 of the 11 counts. He was acquitted on count 11. The appellant now appeals from his convictions on five of those counts: count 1 – assault; count 3 – aggravated assault; count 6 – assault with a weapon; count 9 – assault with a weapon; and count 10 – assault. A. Background [2] All of the counts arise out of a troubled relationship that the appellant had with the complainant. [1] The two were in a relationship for a period of time. [3] The appellant, aged 21, met the complainant, aged 34, while working for a retail store in Brampton. The appellant was a sales associate, and the complainant was his boss. They began dating on February 14, 2015 and the appellant eventually moved in with the complainant. [4] The relationship was marked by numerous arguments between the two. Drinking was also part of the troubled relationship. A further complicating factor in the relationship was that the complainant became pregnant and had an abortion in January 2016. The appellant said that this was often the source of dispute between the two as the complainant blamed him for having the abortion. They conceived again but the pregnancies ended in miscarriages. [5] The appellant moved into the complainant’s home in June 2016 and resided with her, and her son from a previous relationship, until September 2017. The appellant then left the home. Sometime later, the complainant went to the police and gave a statement which led to the charges I mentioned at the outset. [6] It is not necessary to review all of the allegations underlying the 11 counts that were the subject matter of the trial. Rather, I will simply summarize the parties’ version of the events as they relate to the five counts that are the subject of the appeal: Count 1 [7] There was an argument between the appellant and the complainant. The complainant said that the appellant pushed her from behind and knocked her to the ground. She called the appellant a coward. The appellant immediately apologized. [8] The appellant acknowledged that he bumped into the complainant from behind and that she fell to the ground but said that it was an accident. The two had been drinking. He said that the complainant had taken his laptop and his cellphone and thrown them outside, damaging the laptop. When he went to retrieve them, he bumped into her from behind as she was standing in front of him. She fell to the ground because of the size difference between the two of them. Count 3 [9] The complainant had come home from work that day and had a few drinks. The appellant was also drinking, and they started to argue. The complainant said she had a massive headache. The complainant went to take several Tylenol, maybe as many as four to five, which she intended to wash down with alcohol. As she was washing them down, she suddenly felt one of the appellant’s fingers in her mouth. As she didn’t want his finger in her mouth, she bit down on it “probably significantly hard”. Almost immediately, the appellant elbowed her in the left side of her face with his right elbow. In the days that followed, the complainant found out that she had suffered a fractured orbital bone which required emergency reconstructive surgery. [10] The appellant agreed that they had both been drinking and arguing. The appellant said that, without warning, the complainant had taken a handful of Advil. He was shocked, and asked her to spit them out, but she refused. The appellant said that he knew he had to get the Advil out of her mouth, and to make her throw up, so he took his right index finger and put it into her mouth. She reacted by biting it and, as he went to pull it out, his elbow connected with the side of her face because of the height difference between the two of them. The whole event happened within seconds, and in one motion. Count 6 [11] The complainant became pregnant but a few months before this incident she miscarried. This added tension to the relationship. The two were supposed to visit her parents and family but, on the morning of the visit, the appellant refused to go. An argument ensued. During the course of the argument, the appellant threw a plate with the remains of his breakfast and a full cup of coffee at the complainant. He missed but the plate and coffee dented and stained the wall. The appellant then stood up, came towards the complainant, picked her up by the throat, with her feet dangling in the air for just a moment, and slammed her down to the ground. He then got on top of her and started to choke her with his right hand. The complainant gasped for breath, attempted to scream and told the appellant to stop, which he did. [12] The appellant denied throwing the plate and cup of coffee. He said that the two had an argument about money and that, at one point, he either “passed” or “tossed” his wallet at the complainant. He said that the complainant then tried to push him. He grabbed the complainant and put her to the ground. Count 9 [13] The appellant and the complainant went to a barbeque. They were drinking. As they were leaving the barbeque, an argument ensued. The argument continued as the two got into their car and the appellant started the car. The complainant did not think that things would end well so she attempted to get out of the car as the appellant began driving. The appellant leaned over and grabbed the complainant’s face to keep her in the car, “digging into” her face. The complainant was able to get out of the car and run. The appellant caught up to her, tackled her, and forced her back to the car. The front passenger side door was still open. The appellant threw the complainant through the open door. She landed on her face on the driver’s seat with her legs still dangling out of the open door. The appellant’s acts up to this point formed the basis for his conviction on count 8, which he has conceded. The complainant says that the appellant then slammed the car door on her legs “[a]t least four or five” times. This was the basis of the appellant’s conviction on count 9. [14] The appellant said that they went to the barbeque where the complainant got “drunk” and “passed out”. After they left, he had to hold her up to get her to the car. He tried to put her in the passenger seat, but she fell into the seat because she was still drunk. He buckled her in but didn’t notice that one of her legs was still outside the car. He accidentally closed the car door on it, once. The appellant got in and started to drive but the complainant started “freaking out” and tried to get out of the car. As he was concerned for her safety, he reached out and tried to hold her, “accidentally” causing injuries on her face. Count 10 [15] The complainant’s son was due for a haircut. He didn’t like haircuts and would fuss so they had decided to try and cut his hair at home. On the specific day, the complainant’s son was sitting on a stool and the appellant had started to cut his hair. Her son started to fuss, and whine, and the appellant became more and more upset. He eventually told her son not to move or he would have to shave off all his hair. The complainant yelled at the appellant. The appellant picked her son up off the stool by grabbing a fist full of his hair, took the clippers, and shaved right down the middle of her son’s head. [16] The appellant agreed that the complainant’s son didn’t like to get his hair cut and would fuss so that they had decided to cut his hair at home. That day, the son kept moving as the appellant started cutting his hair. The appellant told the son that if he kept moving, the appellant would end up cutting all his hair. The appellant suggested to the complainant that they should just shave off all his hair, so he didn’t have to get his hair cut as often. The appellant said that as he started shaving the son’s head, the complainant was “freaking out” but, by that point, it was too late to avoid completing the shaving of the son’s hair. B. The trial judge’s decision [17] The trial judge began his decision by reviewing the evidence. He then recited certain principles of law including the presumption of innocence, the burden of proof, assessing the credibility of witnesses, and the application of the test from R. v. W. (D.) , [1991] 1 S.C.R. 742. The trial judge then reviewed the elements of each of the offences charged. [18] Thereafter, the trial judge reviewed the evidence of the appellant. He rejected his evidence in total. He said that he found the appellant’s evidence “a contrived and calculated performance”. The trial judge went on to say that the appellant’s evidence “was not internally consistent, and not externally consistent with the other evidence that [he did] accept.” [19] The trial judge proceeded to deal with the complainant’s evidence. He said that he found the complainant to be credible and that “[s]he gave her evidence in a straightforward manner without undue embellishment”. The trial judge added: “Moreover, as submitted by the Crown, she has no reason to lie, to fabricate or to embellish the accusations against [the appellant].” [20] The trial judge then went through each of the 11 counts. With the sole exception of counts 5 and 11, the trial judge said, separately for each of the counts and in virtually the same language, that he did not believe the appellant and he was not left in a reasonable doubt by his evidence. C. Analysis [21] It is not necessary to address each of the complaints made by the appellant with respect to the trial judge’s reasons and analysis. Rather, I begin with the error that infected the trial judge’s approach to all of the counts and that is his credibility finding with respect to the complainant, i.e., the no motive to fabricate conclusion. [22] This court has explained, on a number of occasions, the permissible and impermissible use of evidence, or the absence of evidence, relating to motive. Most recently in R. v. Ignacio , 2021 ONCA 69, at paras. 37-60, leave to appeal to S.C.C. requested, 39552, Pepall J.A. reviewed the authorities on this subject. Included in those authorities is the central point made by Doherty J.A. in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121: What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth . The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [Emphasis added]. [23] The trial judge found that the complainant had “no reason to lie, to fabricate or to embellish the accusations against [the appellant].” But the evidence does not support that finding. The trial judge appears to have conflated the absence of evidence of a motive to fabricate with a proven lack of motive, contrary to Batte . This is a significant error. A proven lack of motive can be a compelling factor in a credibility assessment. However, the mere absence of any evidence of a motive to fabricate is only one of many factors to be considered in a credibility assessment. It alone cannot serve as the foundation of the credibility assessment. [24] In my view, the trial judge impermissibly used the absence of any evidence of a motive to fabricate as if it had been proven that the complainant had no motive to fabricate, in coming to his credibility conclusion regarding the complainant. Rather than consider it as a factor, the trial judge clearly used it to conclude that the complainant must be telling the truth, contrary to the admonition I have just set out above. [25] The concern that the use of the absence of motive evidence became the driving force in the trial judge’s conclusions is heightened by the generally conclusory nature of his reasons. There is no independent analysis of the evidence on each of the counts, as is required absent a count-to-count similar act application by the Crown, of which there was none in this case. There are also no individual credibility assessments. Rather, the trial judge made a blanket credibility finding and then, in considering each count, simply set out the facts for that count, and then recited the same conclusion – that he does not believe the appellant but does believe the complainant. [26] In addition to these problems, one of the reasons that the trial judge relied on to reject the appellant’s evidence, and to say that it did not raise a reasonable doubt, was the fact that it was internally and externally inconsistent. However, the trial judge did not, at any point in his reasons, identify any of those stated internal or external inconsistencies that led him to this conclusion. Among other problems that this failure creates, is the problem that it leaves this court without any way of reviewing the reasonableness of this conclusion. [27] This was a credibility case. It was incumbent on the trial judge to carefully analyze the evidence on each count and reach individual conclusions on them. The all or nothing approach that the trial judge took to the credibility assessments was improper. This is especially so because, on some of the counts, there was evidence, beyond that of the complainant and of the appellant, including photographs and other witnesses’ evidence, that required consideration in making any conclusions on credibility. Unfortunately, in many instances, the trial judge failed to reference this other evidence in his reasons. The one notable exception is with respect to count 11, where the trial judge did make reference to the evidence of the appellant’s brother, which he found raised a reasonable doubt. [28] In response to these concerns, the respondent says that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 could be applied. I would note that the respondent did not argue the proviso in its factum, which tends to raise the concern expressed in R. v. P.G ., 2017 ONCA 351, 138 O.R. (3d) 343, at paras. 13-16. However, putting that aside, the proviso cannot cure the credibility problems in this case, with the exception of count 6. [29] The proviso is properly utilized to remedy errors made at a trial when those errors are of the type set out in R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, where Moldaver J. said, at para. 53: Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict. [30] The errors in the credibility assessments in this case are not harmless nor are they trivial. They were central to the trial judge’s conclusions. They were also key to the proper resolution of the counts charged. With the exception of count 6, given the nature of the evidence, and the required credibility resolution, the evidence cannot be said to be so overwhelming that convictions were inevitable. Indeed, with respect to counts 1, 3 and 9, there was a serious dispute, on the evidence, regarding the events and how they transpired. [31] The one exception to this point is respecting count 6. There was still a dispute on the evidence as to what had occurred but, on that count, there was external objective evidence to support the events as described by the complainant, namely, photographs of the damage done by the thrown plate and cup of coffee. While there was an argument over what the photographs actually depicted, that was a factual matter to be resolved by the trial judge. His conclusion on that factual issue is entitled to deference from this court. That conclusion alleviates, to a large extent, the concerns regarding the credibility assessment, and their impact, on that count. [32] On the other counts, there was conflicting evidence, some of which, as I have said, the trial judge did not address in his reasons. For example, on count 1, the appellant’s brother gave evidence regarding the damage to the appellant’s laptop that might have been seen as corroborating what the appellant said happened in that incident. The trial judge does not mention the brother’s evidence. On count 3, the trial judge found that the force necessary to fracture the complainant’s orbital bone “would far exceed the amount of force that would be transmitted by accident”. The trial judge did not have any medical evidence to support that conclusion. The trial judge also failed to address whether the contact could have been accidental, arising from the reaction of the appellant to the fact that the complainant bit down hard on the appellant’s finger, as she admitted to having done. On count 9, the trial judge failed to address whether the complainant’s injuries (there were photographs of a bruise on the complainant’s shin) were consistent with her evidence that the appellant slammed the car door on her leg “four or five” times. [33] I mention these issues to demonstrate that the evidence on these three counts was not overwhelming. The proviso cannot be relied upon to correct the trial judge’s errors. [34] Finally, there is count 10, the cutting of the son’s hair. The respondent fairly conceded during oral argument that the trial judge failed to set out what the assault was that founded the conviction on this count. The appellant had the complainant’s consent to cut her son’s hair and to touch him for this purpose. Further, on the evidence, it was not the cutting of the hair that enraged the complainant but, rather, it was the hair style that the appellant chose, i.e., shaving the child’s head. [35] The trial judge’s failure to articulate the precise nature of the assault fundamentally undermines the conviction. Further, the evidence led on this count, viewed from any perspective, does not allow for any reasonable conclusion that an assault occurred. The conviction on count 10 must be set aside and, in the circumstances, an acquittal entered. D. Conclusion [36] I would allow the appeal on counts 1, 3, 9 and 10. I would order a new trial on counts 1, 3 and 9. I would enter an acquittal on count 10. The sentences on each of those counts are set aside but the sentences on the other counts remain. Released: April 14, 2021 “DW” “I.V.B. Nordheimer J.A.” “I agree. David Watt J.A.” “I agree. Alexandra Hoy J.A.” [1] The appellant’s then girlfriend was the complainant in all of the counts, save for count 10 which involved the girlfriend’s young son from a previous relationship. For convenience, the appellant’s then girlfriend is referred to as the complainant throughout these reasons.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 539(1)          Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (a) may, if application therefor is made by the prosecutor, and (b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged; or (d) if he or she is ordered to stand trial, the trial is ended. (2)     Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1). (3)     Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction (4)     [Repealed, 2005, c. 32, s. 18(2).] R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18. WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dubros, 2021 ONCA 85 DATE: 20210210 DOCKET: C68542 Feldman, Tulloch and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Mitchell Dubros Appellant Paul Robson, for the appellant Benita Wassenaar, for the respondent Heard: February 3, 2021 On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated July 27, 2020, with reasons reported at 2020 ONSC 4518 dismissing an application for certiorari to quash the order of Justice William Wolski of the Ontario Court of Justice, dated February 5, 2020, committing the appellant for trial. REASONS FOR DECISION [1] Mitchell Dubros appeals from the order of the application judge who dismissed his application for certiorari in which he had sought to set aside his committal for trial on a charge of obstructing justice. [2] We do not see any error in the application judge’s decision in this case. The application judge applied the proper test for the review of a committal for trial. A preliminary inquiry judge's determination of the sufficiency of evidence is entitled to the greatest deference. [3] In this case, the evidence clearly met the threshold evidentiary test for committal which is whether there is “any evidence” on which a jury, properly instructed, could return a guilty verdict: United States of America v. Shepard [1977] 2 S.C.R. 1067 at p. 1080; R. v. Wilson , 2016 ONCA 235, at para. 21.  In particular, the application judge agreed with the preliminary inquiry judge that there was evidence that the appellant had made threats to individuals in an effort to dissuade them from testifying at a trial. This would constitute obstruction of justice as defined in s. 139(3) of the Criminal Code , namely, that a person is deemed to have wilfully attempted to obstruct justice if they attempt to dissuade a person by threats from giving evidence. [4] We do not accept the appellant’s submissions that there was no evidence respecting the required mental element of the offence. The contents of the conversations that the appellant had with these individuals would be sufficient to establish that the appellant’s efforts were willfully undertaken. [5] The appeal is dismissed. “K. Feldman J.A.” “M. Tulloch J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Earle, 2021 ONCA 34 DATE: 20210120 DOCKET: C66898 MacPherson, Tulloch and Lauwers JJ.A. BETWEEN Her Majesty the Queen Respondent and David Earle Appellant Richard Litkowski, for the appellant Michael Fawcett, for the respondent Heard: December 16, 2020 by video conference On appeal from the conviction entered on May 24, 2017 by Justice Nola E. Garton of the Superior Court of Justice, and from the sentence imposed on January 25, 2018. Lauwers J.A.: A. Overview [1] The appellant was convicted of fraud over $5,000, contrary to s. 380(1) of the Criminal Code . His convic tion for money laundering under s. 462.31(1)(a) of the Criminal Code was based on the same facts as the fraud and was stayed under the Kienapple principle. He was sentenced to three years in jail along with ancillary orders that included a restitution order and a fine in lieu of forfeiture order. He appeals his conviction and seeks leave to appeal sentence. [2] For the reasons that follow I would dismiss the conviction appeal and the sentence appeal except for the victim surcharge. B. The Factual Context [3] The trial judge found that the appellant defrauded clients of his company, Global Precious Metals (“GPM”), of almost one million dollars over a period of about four years, from 2007-2011. She found that some of the money was used to finance other business transactions including highly speculative securities trading, the appellant’s gambling, and payments towards his personal credit card debts. [4] The appellant learned the precious metals business as an employee of Advanced Precious Metals (“APM”), which sold physical precious metals. When he established GPM, the appellant did not use the same business model as APM, but he solicited his APM customers and used many of his old employer’s business documents. [5] The appellant led his clients to believe that their money was being used to purchase physical precious metals. However, the trial judge found that the clients were only purchasing a notional “metal position” on GPM’s books and that GPM had no actual inventory of physical precious metals. [6] There were 17 victims of the appellant’s fraud, seven of whom testified at the trial. The appellant acknowledged in his factum that: “In general, the clients testified that they understood that the money they deposited with GPM had been used to buy physical silver.” [7] Eventually, in early 2011, GPM went bankrupt, leaving its clients with a net loss of $986,128.71, which the trial judge attributed to the appellant’s fraud. [8] The trial judge found that the appellant had deceived GPM clients as to the true nature of his business through oral and material representations as well as by failing to disclose material facts. In her sentencing reasons, the trial judge summarized the ways in which she found that the appellant had deliberately misled GPM’s clients: 1. The appellant led his clients, including his former APM clients, to believe that GPM possessed an inventory of physical precious metals when the company had no such inventory; 2. He led his clients to believe that he was purchasing precious metal in accordance with their purchase at the time that the orders were made; 3. He led clients to believe that GPM was financing their precious metal purchases; and 4. He failed to advise GPM’s clients of the differences between the APM and GPM business models. C. Issues on the Appeal [9] The appellant raises five issues on appeal: 1. The trial judge erred in dismissing the appellant’s application under s. 11(b) of the Canadian Charter of Rights and Freedoms ; 2. The trial judge erred in failing to consider the fact that the appellant sought legal advice on the viability of GPM as a factor to support his credibility and to negate the fault element of fraud; 3. The appellant received ineffective assistance of counsel; 4. The amount of restitution, and the corresponding fine in lieu of forfeiture, should be reduced based on miscalculations of the actual investor losses and the monies returned to them; 5. The victim fine surcharge should be quashed under R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599. I will address each issue in turn. (1) The trial judge did not err in dismissing the appellant’s s. 11(b) Charter application [10] This case proceeded uneventfully under the principles set out by the Supreme Court of Canada in R. v. Morin , [1992] 1 S.C.R. 771 . The appellant was arrested on August 15, 2012. The three-week trial was originally scheduled to start on October 13, 2015 and would have been completed well before the Supreme Court issued its tectonic decision in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631 on July 8, 2016. But the serious illness of the Crown prosecutor caused the trial to be adjourned until September 19, 2016, about ten weeks after Jordan was released. [11] At no point before Jordan was released did defence counsel suggest that a s. 11(b) Charter application would be appropriate under Morin . However, after the release of Jordan , the defence brought a motion at the outset of trial to dismiss the case under s. 11(b) for undue delay. [12] I begin with a review of the governing principles under Jordan , describe the trial judge’s decision dismissing the appellant’s s. 11(b) Charter application, and then apply the principles to the facts. (a) The governing principles [13] The Supreme Court reset the principles governing delay applications under s. 11(b) in Jordan , which became the ruling authority even for cases that were almost all the way through to trial when it was released. I will not rehearse the general principles, which were recently laid out by this court in R. v. Villanti , 2020 ONCA 755 and in the cases it cited . Instead I will focus on the “transitional exceptional circumstance” applicable to proceedings commenced before Jordan was released, as in this case. [14] In Jordan , the Supreme Court held that the transitional exception is to be applied contextually “when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” even where, as here, “the delay exceeds the [ Jordan ] ceiling” (emphasis in original): at para. 96, referring to Morin. The court continued: “This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice.” The concluding sentence is especially telling: “Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.” [15] The changes wrought by Jordan were intended to be sweeping, but not abrupt: “Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one”: at para. 102. The court added, at para. 98: “We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.” [16] The factual findings made by the trial judge in the course of a Jordan analysis are entitled to deference and can only be set aside for palpable and overriding error: R. v. Bulhosen , 2019 ONCA 600, 377 C.C.C. (3d) 309, leave to appeal refused, [2019] S.C.C.A. No. 423, at para. 73; R. v. Majeed , 2019 ONCA 422, at para. 7; and R. v. Jurkus , 2018 ONCA 489, 363 C.C.C. (3d) 246, leave to appeal refused, [2018] S.C.C.A. No. 325, at para. 25. (b) The trial judge’s reasons [17] The trial judge heard the application from September 19, 2016, the first day of trial, to September 22, 2016, when she dismissed the application with reasons to follow. Her detailed and lengthy reasons were released on November 24, 2017. [18] Analytically, the trial judge proceeded in two stages. She first assessed the delay under the Jordan principles and then, taking her cue from R. v. Williamson , 2016 SCC 28, [2016] 1 S.C.R. 741, undertook the Morin analysis under the rubric of the transitional exception in Jordan . Her Morin analysis occupied nearly 15 pages. [19] Under the Jordan analysis, the trial judge fixed the total delay from the laying of the information to the anticipated conclusion of the trial at 50 months, which is 20 months in excess of Jordan’s 30-month presumptive ceiling. She addressed five issues raised by the applicant: 1) the Crown’s inaccurate time estimate relating to the preliminary inquiry; 2) the delay in obtaining state funding for legal counsel via the Rowbotham application; 3) the delay caused by the illness of the prosecuting Crown; 4) the complexity of the case; and 5) the transitional exceptional circumstances. (i) The inaccurate time estimate relating to the preliminary inquiry [20] The appellant took the position that the Crown had created additional delay by underestimating the time required for the preliminary inquiry, which was planned for 11 days but spilled over to 15. He argued that the need to schedule additional days and the Crown’s unavailability meant that the delay from August 29, 2013 to January 22, 2014 was properly Crown delay, set at 4 months, 24 days. [21] The trial judge found that the time estimates for the preliminary inquiry were done in good faith and that the delay should be treated as a discrete exceptional circumstance to be deducted from the overall delay in the amount of 4 months and 25 days. (ii) The delay in obtaining state funding for legal counsel via the Rowbotham application [22] Following his lawyer’s departure from private practice, and the exhaustion of his financial resources, the appellant sought an adjournment on February 27, 2014 in order to seek state funding for counsel. The appellant applied to Legal Aid Ontario and brought an application under R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, [1988] O.J. No. 271. Legal Aid refused funding and dismissed the appellant’s final appeal on July 4, 2014. The appellant and the Crown exchanged materials on the Rowbotham application over the summer of 2014 before the Crown finally consented to state funding. The Crown provided the appellant with a funding agreement on October 15, 2014 and the parties brought the agreement before the court on October 20, 2014. The total delay relating to the appellant’s funding was therefore from February 27, 2014 to October 20, 2014. [23] The appellant argued that the Rowbotham application took too long to process. The law is clear from R. v. Boateng , 2015 ONCA 57, 128 O.R. (3d) 372, at para. 32, that the Crown is required to note and respond to potential delays resulting from Legal Aid delays in processing. Adding the Rowbotham period as institutional delay under the Morin framework would, the appellant argued, bring the total institutional delay to 20 months, surpassing what Morin deemed acceptable. [24] The trial judge found the delay in obtaining state funding for legal counsel via the Rowbotham application to be a discrete exceptional circumstance tied to the departure of the appellant’s lawyer, for which she deducted seven months and three days from the Jordan delay. (iii) The delay caused by the illness of the prosecuting Crown [25] The prosecuting Crown was hospitalized for an illness and the trial date was put off from October 8, 2015 to September 19, 2016. [26] The Crown argued that the entire period of 11 months and 12 days should be deducted but the trial judge deducted only 7 months and 9 days, recognizing that defence counsel would have been available to start the trial earlier than the judge and the Crown. [27] Before turning to complexity, the trial judge summarized her findings at para. 71 of her delay decision: In summary, the total amount of time to be deducted from the 50-month delay as exceptional circumstances due to discrete events is 19 months and 8 days, and is comprised of the following time periods: 1. Four months and 25 days in relation to the “good faith” underestimating of the time required to complete the preliminary inquiry, and unforeseen events during the course of the inquiry; 2. Seven months and 4 days in relation to Mr. Earle’s Rowbotham application; and 3. Seven months and 9 days in relation to the illness of Crown counsel. This left a Jordan delay of 30 months and 22 days, which was 22 days above the presumptive ceiling. (iv) Complexity [28] The trial judge concluded that the complexity of the prosecution could easily account for the remaining 22 days, bringing the delay for Jordan purposes to less than 30 months. However, the appellant argued that this was not a complex case. [29] The trial judge rested her finding of complexity on a combination of several factors: the voluminous disclosure; the very technical nature of the case as a large scale complex fraud alleged to have occurred over a substantial period of time; and the requirement for expert evidence. She also noted that, in order to accommodate the complexity, the Crown reconfigured the prosecution to bring fewer of the complainants in as live witnesses, saving trial time. (v) The transitional exceptional circumstance, and Morin [30] The position of the Crown was that if the complexity of the case did not itself constitute an exceptional circumstance, then the time above the 30-month presumptive Jordan ceiling was justified as a transitional exceptional circumstance. The trial judge believed that this argument compelled her, following Williamson , to conduct a full assessment of the delay under the Morin guidelines. [31] After an exhaustive analysis, the trial judge concluded, at para. 136, that “the total institutional delay is 12 months and 4 days, which is well below the Morin guidelines. The remainder of the 50-month delay is inherent or neutral.” She added that there was no real prejudice to the appellant because he had been released on bail two days after his arrest and his bail conditions were not particularly stringent. The trial judge concluded that “[g]iven the length of the delay, I infer that Mr. Earle has suffered some prejudice, and that his employment prospects were negatively affected by the bail condition prohibiting him from trading in securities and precious metals.” She added, at para. 144: “[a]ny prejudice to Mr. Earle is mitigated in part by the fact that most of the delay is attributed to the inherent time requirements of the case.” [32] The trial judge concluded, at para. 161: “Based on the Morin framework, there has been no infringement of Mr. Earle’s s. 11(b) right.” (c) The principles applied [33] This is a case to which the transitional exceptional circumstance identified in Jordan plainly applies. Because the trial started so soon after the release of Jordan , within 10 weeks, this case did not require the intensive analysis under Jordan and then under Morin undertaken by the parties and the trial judge. [34] In my view, before the advent of Jordan , the parties reasonably relied on the law as it previously existed under Morin . The trial judge was right to conclude, at para. 163 of her reasons, that the release of Jordan shortly before trial meant the parties had “no realistic opportunity … to adapt to the new framework, for which they had no notice.” [35] The appellant made the same arguments before this court that he made at trial. He does not challenge the trial judge’s general approach, only her detailed calculations. In his view, the trial judge erred in categorizing state action during both the preliminary inquiry and the Rowbotham application as discrete events, although the appellant conceded that some of the seven-month delay due to Crown illness was a discrete exceptional event and therefore neutral. The appellant also conceded that about four months during the Rowbotham application could be considered neutral delay. But the appellant argued that this still left over 39 months’ delay, which is significantly above the presumptive ceiling of 30 months. [36] I disagree. The release of Jordan did not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. In any event, I take no issue with the trial judge’s determinations and calculations under Morin , to which this court must defer. The appellant has not pointed to any palpable or overriding factual errors, or any errors of law that would warrant this court’s interference. This ground of appeal should be dismissed. (2) The trial judge did not err in her assessment of the mental element of fraud [37] The appellant argues that the trial judge erred in failing to consider the fact that the appellant sought legal advice on GPM’s operations as a factor to support his credibility and to negate the mental element of fraud. [38] This argument must be set into its factual and evidentiary context. In late 2007, as GPM began to experience financial difficulty, the appellant engaged the services of Frank Palmay of Lang Michener to review GPM’s documentation and business practices. Mr. Palmay prepared a memorandum of opinion on the legal adequacy of GPM’s documentation and the appellant’s way of carrying on business. For convenience I will refer to Mr. Palmay as “the author.” The memorandum was marked as a lettered exhibit for identification by the trial judge. [39] In the memorandum, the author set out what he understood to be a “simplified version of the steps taken in the furtherance of this business,” based on the information supplied by the appellant: · when a customer first approaches the company, the customer is asked to complete a New Client Application Form which contains Risk Factors and the Disclosure Statement both of which are signed by both the customer and the company and the company’s representative which also contains the customer acknowledgement, again signed by both the customer and the company; · the customer can either pay the full price plus a 5% commission to the company for the precious metals purchased and take delivery of them or in lieu of delivery have the company store it at a[n] annual fee; · alternatively, and most if not all customers, choose this, a customer finances the purchase by paying 25% of the value of the metals (plus the company’s commission) and maintains the margin based on the current price of the metal with a daily carrying charge per ounce (based on the metal) – in this case the storage charge mentioned in the previous paragraph does not apply; · included in the documentation provided to the customer (Account Fees) is a clear stipulation that the company is acting as principal and that the client’s purchases are from precious metals of the company’s inventory; · with one exception, none of the documentation that I have reviewed either states or, in my view, implies that either the funds received or any precious metals are held in trust for the customer – the one exception is if a customer pays for the metal and in lieu of taking delivery pays the company the annual storage fees to store it on its behalf; but I understand that this is not a practice that customers choose [40] The author made several statements regarding the business’s struggles in late 2007 and early 2008: The business of the company was going along quite well until the company made a decision to trade metals on its own account. Initially these trades resulted in a gain of about $100,000 but more recently, as the price of silver increased unexpectedly, the losses are in the order of $300,000 and are subject to further fluctuation up and down depending on the price of silver [41] Under the heading “Advice Given,” the author gave this opinion: Based on the facts as I understand them and based on my discussion with David Earle, it is my view that he sincerely and reasonably based on his past experience thought he was acting in the best interest of the company by embarking on the house account trades that caused the problem. I can detect no mens rea (intent) that would expose him criminally , which, of course, is one of the exclusions to the company’s indemnity. [Emphasis added.] [42] The author advised the appellant that the corporate veil could be pierced: “if a shareholder, especially a sole shareholder, treats the company as his/her alter ego. That is, the shareholder ignores the corporate veil and deals with the company’s assets, bank accounts, etc., as if they were his/her own.” The author then stated: “ I understand from David Earle that this is not the case and that the only time the company’s funds were paid to him were as reimbursement for expenses properly incurred by him for company purposes ”(Emphasis added). [43] The author concluded the memorandum with a statement that there were “ways in which the documentation could be tightened up.” (a) The role of the memorandum at trial [44] The key strategic question at trial was whether the author should be called to give evidence about the memorandum and the information upon which it was based. Defence counsel sought to introduce the memorandum into evidence without calling the author. His argument was that the memo was admissible and could be relied on by the appellant to negate the mental element of fraud. The Crown objected on the basis that the memorandum was inadmissible hearsay without the author’s testimony. [45] Defence counsel sought to thread the admissibility needle in such a way as to make use of the memo for the limited purpose of showing the basis for the appellant’s subjective intent. He said: “[w]hat the [memorandum] is being tendered for is only to show exactly what Mr. Earle was told by his lawyer and it’s only relevant to the issue of what Mr. Earle thought about his situation in the business after having received that letter ” (emphasis added). The colloquy on admissibility lasted several days and consumed many pages of transcript. [46] The trial judge was eventually persuaded to allow the appellant’s examination in chief and cross-examination on the memo to proceed as a blended voir dire , leaving for later argument whether admissibility had been made out. The issue left to be briefed by counsel was whether the memo might be admitted as part of a mistake of law defence. Defence counsel had not had the opportunity to review the Crown’s material on that issue and asked for more time to do so. The trial then adjourned for a month. When it resumed, defence counsel stated that he had reviewed the case law and “if [the memo]’s not relevant to the inquiry at this point, then I’m not going to rely on it.” The trial judge did not make a ruling on the admissibility of the memo and the trial continued, with the appellant testifying. [47] Before this court, the appellant acknowledged that “a traditional mistake of law defence was not available” but argued that the memo was relevant to the appellant’s “state of mind and general credibility,” more particularly “whether or not he had subjective knowledge that his representations were false, and to his overall credibility in denying any fraudulent intent.” Accordingly, the appellant argued, the trial judge erred in “limiting her consideration of this evidence to a mistake of law defence.” [48] I would not give effect to this ground of appeal. The trial judge was unequivocal in her finding that the appellant knowingly deceived his clients. The memorandum does little to change that finding, particularly in light of the indicators that the appellant may have deceived the author of the memorandum as well. As I will explain, the mental element of fraud does not require the Crown to prove the appellant’s subjective intent to deceive his clients. To the extent the memorandum shows the appellant had reasons to believe he acted honestly, it is not actually responsive to any of the elements of the offence of fraud. (b) The mental element of fraud [49] The appellant argues that it was an error of law for the trial judge to fail to consider the memo as “a piece of circumstantial evidence in assessing the credibility of the appellant’s version of events and on the issue of the appellant’s mens rea .” He argues that the fact that he “spoke to counsel and obtained an opinion as to the structure and operation of GPM, and the manner in which GPM was organized and functioned, suggests that he did not have a n intention to deceive the complainants.” [50] This argument rests on an erroneous understanding of the mental element for fraud under s. 380 of the Criminal Code : that the Crown must prove that the appellant subjectively appreciated the dishonesty of his acts. This understanding of the mental element is precisely what the Supreme Court rejected in R. v. Zlatic , [1993] 2 S.C.R. 29, at p. 49: As is pointed out in Théroux [ R. v. Theroux [1993] 2 SCR 5] , released concurrently, fraud by “other fraudulent means” does not require that the accused subjectively appreciate the dishonesty of his or her acts. The accused must knowingly, i.e., subjectively, undertake the conduct which constitutes the dishonest act, and must subjectively appreciate that the consequences of such conduct could be deprivation, in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk. [Emphasis added.] This accused knew precisely what he was doing and knew that it would have the consequence of putting his creditors’ pecuniary interests at risk. [51] The point is stated succinctly in R. v. Eizenga , 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 81: [A] subjective intent to mislead is not an essential element of the offence of fraud . Instead, all that is required is subjective knowledge of the prohibited act, and that the act could have as a consequence the deprivation of another. [52] This is not the case in which to tease out the subtler nuances of the mental element of fraud because the evidence of the appellant’s intent to mislead his clients was overwhelming based on the trial judge’s findings, to which I turn in the next section. At best, the memorandum represents a lukewarm attempt to clean up GPM’s affairs. At worst, as the trial judge appears to have concluded, it was an attempt to paper over the appellant’s conscious deceptions. (c) The trial judge’s dishonesty findings [53] Earlier I summarized the trial judge’s dishonesty findings, which I derived from her sentencing reasons, in which she said: In my reasons for judgment, I found that Mr. Earle deliberately misled GPM’s clients about the nature of the company’s business in the following ways: 1. Mr. Earle conveyed to clients, including his former APM clients, that GPM possessed an inventory of physical precious metals when the company had no such inventory: Reasons for Judgment, at paras. 558-650. 2. Mr. Earle conveyed to clients that he was purchasing physical precious metal in accordance with their [permission to trade] PTT orders at the time that the orders were made: Reasons for Judgment, at paras. 651-655; 3. Mr. Earle led clients to believe that GPM was financing their precious metal purchases: Reasons for Judgment, at paras. 656-675; and 4. Mr. Earle failed to distinguish between the APM and GPM business models: Reasons for Judgment, at paras. 676-704. [54] In my view, the trial judge’s findings on the appellant’s manifest dishonesty negate any possible mitigating effect from what he understood his legal responsibilities to be after reading the memorandum. The memorandum did not accurately describe his business practices, suggesting the appellant did not provide full information to the author, in particular information about the permission to trade script that he used to trigger transactions. [55] For the trial judge, much turned on the permission to trade or “PTT” script that the appellant read to his clients when taking an order for precious metals. The script was taken from his previous employer, APM, and provided: EARLE: This is David Earle with Global Precious Metals. Do I have your permission to tape record this call? GPM client: Yes. EARLE: Today's date is (insert date) at (insert time) Toronto time. The purpose of this call is to confirm your precious metals purchase and make certain that you have a full understanding of the program. Please state your name for the record. GPM Client: name EARLE: Okay (insert client's name). Today you are purchasing "Y" ounces of silver. The price is $X US per ounce. The total metal value is Y x $X US dollars. There is (percentage amount) for commission for this trade. Do you understand that you are only investing approximately (between twenty and twenty-five percent) of the total metal value? GPM Client: Yes. EARLE: If the equity in your position ever drops to approximately fifteen percent, you'd be required to bring your equity back up to twenty percent by making a deposit or liquidating your positions. Do you understand that for each day that you do not take delivery of your precious metals, you' II be charged a carrying fee of one half cent per ounce? GPM client: Yes. EARLE: Today you can take delivery of your precious metals at any time by paying off the unpaid balance. You'll receive a trade confirmation from us in the mail. If you have any questions, please feel free to call us. Do I have your permission to place this trade? GPM client: Yes. [56] The script was identical to the APM script, except for the following addition in the GPM script: “Do you understand that for each day that you do not take delivery of your precious metals, you will be charged a carrying fee of one half cent per ounce?” [57] The trial judge was unable to accept the appellant’s asserted belief in his own honesty. Her assessment hinged largely on the difference between the purchase of actual precious metal and the purchase of a “metal position” on GPM’s books that was not backed up by an inventory of metals. As I noted earlier, the appellant acknowledged in his factum that: “In general, the clients testified that they understood that the money they deposited with GPM had been used to buy physical silver.” However, the trial judge found: The complainants’ belief that they were purchasing physical metal was reinforced by the PTT script, which described the purpose of the call as being “to confirm your precious metals purchase.” There was no reference in the PTT script to purchasing metal positions or obligations. Mr. Earle’s refusal to characterize a PTT transaction as anything other than a sale of precious metals, and his insistence that he was selling clients physical precious metal when he never bought any metal, was self-serving and an attempt to justify the language that he used in the script, in GPM’s materials, and in speaking to clients. [58] In her sentencing reasons, the trial judge observed: It was clear from the evidence of the complainants that Mr. Earle never explained to them that what they were purchasing was a “metal position.” During his testimony, Mr. Earle admitted that he never disclosed to clients that GPM did not possess any metal. He also admitted that he never told clients that GPM did not buy any metal pursuant to their PTT orders. These omissions, in the circumstances, constituted the nondisclosure of important facts and were dishonest. [59] Could the memorandum have helped the appellant, as he now argues? It appears not from the trial judge’s reasons. She addressed the memorandum and found that it could not give the appellant the plausible deniability he sought with respect to the mental element of fraud. She expressly addressed the impact of the memorandum: In my view, the issue of Mr. Earle’s reliance on his lawyer’s opinion would be problematic in any event because it is not known exactly what information Mr. Earle provided to the lawyer. In other words, it is not known whether the lawyer had the “whole picture” with respect to the nature of GPM’s business, the oral representations that Mr. Earle made to clients in soliciting their business, and what he omitted to tell them. For example, it is not known whether Mr. Earle provided the lawyer with a copy of the PTT script . Mr. Earle testified that he gave him all the materials that he sent to clients. However, that would not have included the script, which states that “the purpose of this call is to confirm your precious metals purchase”, and concludes with the question, “Do I have permission to place this trade?” The script made no reference to metal positions or obligations. [Emphasis added.] It is not known whether Mr. Earle told his lawyer that despite the many references in GPM’s materials to “GPM’s own inventory”, he never disclosed to clients that GPM did not own any physical metal and did not purchase any metal pursuant to their orders. It is not known whether Mr. Earle told his lawyer that he clearly explained the carrying fee to clients. I have found that Mr. Earle gave no such explanation to his customers. [60] The trial judge summarized her conclusions on the fraud charge in her reasons for conviction: In summary, I did not find Mr. Earle to be a credible or reliable witness. I do not believe his evidence that he did not purposely mislead clients as to the true nature of GPM's program. Mr. Earle’s evidence does not leave me with a reasonable doubt. After considering all of the evidence and the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Earle deliberately misled the complainants by implying that GPM had an inventory of physical metals and that metal was purchased in accordance with their orders . Mr. Earle also used “other fraudulent means” by structuring his business to hide from the complainants the fact that metal would only be purchased if paid for in full. [61] As to the requirement for the Crown to prove deprivation, the trial judge found that: “ There can be no doubt that Mr. Earle knew that by not purchasing metal with his clients’ deposits, he placed their money at a risk well beyond what they had agreed to.” [62] Defence counsel attempted to resurrect the memorandum in sentencing submissions, arguing that reliance on legal advice ought to be considered a mitigating factor on sentence. The trial judge refused on the same basis as in her reasons for conviction. She noted in her sentencing reasons: The difficulty with this submission is that it is not at all clear from the lawyer’s letter what exactly Mr. Earle told him about the nature of GPM’s business . For example, explaining the company’s business model would entail explaining that the client was purchasing a metal position, as opposed to physical metal, and that there was no financing involved. However, in his letter, the lawyer, in setting out the relevant facts as he understood them from Mr. Earle, states “the company’s business is as a dealer of precious metals (gold, silver, platinum, and palladium)”. The lawyer was also led to believe that in most cases, “a customer finances the purchases by paying 25 percent of the value of the metals”, and that “the client’s purchases are from precious metals of the company’s inventory.” [Emphasis added.] There is no indication in the lawyer’s letter that Mr. Earle discussed with him the fact that he never disclosed to clients that GPM had no inventory of precious metals, and that he never told them that no metal was purchased pursuant to their PTT orders – omissions that I found to be dishonest. [63] In my view, the trial judge’s findings on the appellant’s abuse of the PTT script and the fact that he did not give a copy of the script to the author fatally undermined the memorandum’s cogency on the issue of the mental element of fraud. I note as well the author’s statement in the memorandum: “I understand from David Earle that … the only time the company’s funds were paid to him were as reimbursement for expenses properly incurred by him for company purposes.” This statement does not survive the trial judge’s finding that some of the money was used to finance other business transactions including highly speculative securities, the appellant’s gambling, and payments towards his personal credit card debts. [64] In short, the trial judge did not misapprehend the relevance and usefulness of the memorandum in assessing whether the Crown had proven the mental element of fraud on the appellant’s part. The evidence of the appellant’s fraud was overwhelming. It is reinforced by the appellant’s affidavit on the ineffective assistance of counsel argument, to which I now turn. (3) The assistance of trial counsel was not ineffective [65] The appellant argues that he received ineffective assistance from trial counsel. I address this argument after setting out the governing principles. (a) The governing principles [66] The procedure for advancing a claim that trial counsel provided ineffective assistance is well known. The rules are set out in the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario , dated March 2017 (formerly the Protocol Regarding Allegations of Incompetence of Trial Counsel in Criminal Cases ). The burden rests on the appellant to establish: the facts on which the claim is based; the incompetence of the representation; and that the incompetent representation resulted in a miscarriage of justice. See R. v. Joanisse (1995), 102 C.C.C. (3d) 35, [1995] O.J. No. 2883, per Doherty J.A., at para. 69. [67] The appeal record on a claim for ineffective assistance of counsel typically includes the affidavit and cross-examination of trial counsel. While the Practice Direction does not specifically require it, an affidavit is expected because it will almost certainly become the central document in any ineffective assistance claim: R. v. Archer (2005), 202 C.C.C. (3d) 60, [2005] O.J. No. 4348, per Doherty J.A., at para. 165. [68] Either the Crown or the defence might elicit trial counsel’s affidavit. However, as Doherty J.A. explained in Archer , at para. 164, basing himself on the prior Protocol , this responsibility will often fall to the Crown as a practical matter because trial counsel is not a party to the appeal. Part of the court’s concern is to ensure that trial counsel whose professional conduct is being impugned has an opportunity to explain the strategic and other decisions made during the course of the trial. Doherty J.A. explained in Archer , at para 165: The Protocol contemplates that the court will have before it all available information relating to the allegations of ineffective assistance of trial counsel. Trial counsel’s version of the relevant events is obviously crucial . This court expects that trial counsel will fully address the allegations made by the appellant. [Emphasis added.] [69] However, the Crown is not compelled to seek out and file trial counsel’s affidavit. To the contrary, an appellant’s failure to fully engage in the process established by the Practice Direction permits the court to draw an adverse inference about the true value of the evidence that the appellant argues would have changed the course of the trial. The appellant’s reluctance to follow the procedure can be seen as an admission that the more robust fact-finding process of the Practice Direction , including an affidavit by trial counsel and cross-examination, might weaken rather than strengthen the claim of ineffective assistance: R. v. Elliott (1975), 28 C.C.C. (2d) 546, [1975] O.J. No. 1185 (C.A.), per Kelly J.A., at para. 6. (b) The principles applied [70] The appellant has not supplied an affidavit from trial counsel or a will-say statement from the author of the memorandum. He has only provided his own affidavit and the author’s memorandum. The appellant pointed out that he was not cross-examined on his affidavit, to which the Crown filed no responding materials, implying that his version of events must therefore be accepted by this court. [71] I disagree. In his affidavit, the appellant states that he was “surprised and upset” when defence counsel decided not to call the author of the memorandum as a witness. He asserts that he repeatedly asked trial counsel to reconsider and to call the author as a witness but trial counsel refused. [72] Seen in context, t he appellant’s affidavit is revelatory. In it, he recounts a conversation with trial counsel, in which he says he pressed his request to have the author testify. The reason trial counsel gave, which the appellant quotes, is telling: “[Trial counsel] said that since Mr. Palmay did not know about the PTT, there was no reason to call him.” [73] The difficulty for the appellant is that, as noted earlier, the PTT script played a critical role in the trial judge’s reasons for conviction because it substantiated the appellant’s clear dishonesty to both his clients and to the author of the memorandum. Given that he did not provide a copy of the PTT script to the lawyer in seeking the legal opinion as to the adequacy of his business practices, introducing the lawyer as a witness would have highlighted the appellant’s catastrophic omission. Put another way, I suspect that the appellant has not provided the author’s will-say on appeal for the same reason that the author was not called at trial: the author would only testify that the memorandum was based on incomplete information. [74] In my view, this is a case in which this court can and should draw an adverse inference against the appellant for failing to file trial counsel’s affidavit and a will-say statement from the author of the memorandum. His failure to produce materials that are routinely filed in ineffective assistance claims leaves the strong impression that those materials would have been more harmful than helpful to his case. I would dismiss the appellant’s claim that he was ineffectively assisted by trial counsel. (4) The Sentence Appeal [75] The appellant does not appeal the three-year custodial element of the sentence but the quantum of the restitution order in the amount of $986,128.71, a fine in lieu of forfeiture in the same amount, and the $200 victim fine surcharge. [76] The appellant argues that the restitution order, properly calculated to take account of several factors including the investors’ ability to take advantage of capital losses on their income taxes, should be reduced from $986,128.71 to $502,454.36, as should the amount of the fine. The appellant offered no evidence in support of this re-calculation. There is no factual basis on which to disturb the trial judge’s calculation of the losses suffered by the clients. [77] The Crown agrees that the victim fine surcharge must be set aside. Accordingly, I would grant leave to appeal sentence and would otherwise dismiss the sentence appeal except for the victim fine surcharge. Released: January 20, 2021 “JCM” “P. Lauwers J.A.” “I agree. J.C. MacPherson J.A.” “I agree. M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Faudar, 2021 ONCA 226 DATE: 20210413 DOCKET: C64030 Watt, Tulloch and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Kevin Faudar Appellant R. Craig Bottomley and Andrea Vanderheyden, for the appellant Catherine Weiler, for the respondent Heard: September 16, 2020 by video conference On appeal from the conviction entered on January 25, 2017 and the sentence imposed on June 15, 2017 by Justice Nancy L. Backhouse of the Ontario Superior Court, sitting without a jury. Tulloch J.A.: A. Introduction [1] On April 13, 2014, police executed a search warrant at the appellant’s family home. They located a large .44 Magnum Taurus handgun with live ammunition in a small dresser in the appellant’s bedroom. [2] According to the appellant, his friend, X.Y., placed the handgun and live ammunition in the appellant’s music studio, unbeknownst to him. When the appellant learned that the gun and ammunition were in his studio, he decided to move the items into his locked bedroom for temporary safekeeping. Unfortunately for the appellant, five days later, police searched his residence and seized the items. [3] While the appellant contends that the gun and ammunition belonged to his friend and not him, he did not turn the items into the police nor did he insist that they be removed immediately from his possession upon discovering them in his studio. In other words, based on the factual narrative of this case, there was no doubt that the appellant was knowingly in possession of the gun and ammunition, and that he had no licence or authorization to possess such items. To compound the problem with the possession of the firearm and ammunition, the appellant also had what appeared to be drug trafficking paraphernalia in his possession. [4] The appellant was charged with various firearms offences. Following a judge-alone trial, the appellant was found guilty of all charges and subsequently sentenced to 2 years and 3 months’ incarceration, less 114 days credit for time served. [5] The appellant now appeals his convictions on the basis that he received ineffective assistance of counsel at trial, resulting in a miscarriage of justice. He advances three main reasons for this position: i. The appellant’s counsel previously represented his friend, X.Y., which placed the appellant’s counsel into a conflict of interest that negatively affected the appellant’s trial; ii. The appellant’s counsel improperly advised the appellant to testify at his trial and his testimony ensured his own conviction; and iii. The representation by the appellant’s counsel at trial was ineffective. [6] Following the convictions, both the appellant and his defence counsel provided affidavits and oral testimony, which form the basis of a fresh evidence application at this appeal. Since the appellant seeks to set aside his convictions on the basis of ineffective assistance of counsel, it is in the interests of justice to consider the fresh evidence: R. v. W. (W.) (1995), 25 O.R. (3d) 161 (Ont. C.A.), at pp. 169-170. [7] For the reasons that follow, I would dismiss the conviction appeal. [8] In his notice of appeal, the appellant asks for leave to appeal his sentence. It appears that he has since abandoned his sentencing appeal. Accordingly, I would also dismiss the sentencing appeal as abandoned. B. Background Facts I. Events Leading Up to the Search Warrant and Arrest [9] The appellant lived at a home with his parents, grandparents, two younger siblings and uncle. At the back of the home, there was a shed that he had converted into a music studio. [10] As indicated earlier, X.Y. was the appellant’s friend. On April 8, 2014, X.Y. texted the appellant to advise that he had left something in the music studio. X.Y. asked the appellant to keep it safe for him until he could retrieve it upon his return to Toronto; he was headed to the United States for a short trip. The appellant found out that the “something” that X.Y. had left behind was a gun. The appellant was upset, and texted X.Y. to ask that he retrieve the weapon as soon as he returned to the city. He also condemned X.Y. for leaving the firearm at his residence and ended their friendship. The appellant had an additional reason to be upset: X.Y. was aware that the appellant was under a court order prohibiting him from possessing weapons at the time. [11] The appellant moved the firearm into his bedroom for safe keeping, as people freely filtered in and out of the music studio and his bedroom had a locked door. [12] On April 13, 2014, X.Y. contacted the appellant to advise him that he was back in town and would collect his gun. On that same day, the Toronto Police Service executed a search warrant at the appellant’s home. The telewarrant had been issued pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”) to search for drug related items. The basis for the search was a tip from a confidential informant. The police did not find any narcotics, but as noted above, they did find the firearm and ammunition. Thus, as a result of the search, the appellant was charged with a number of weapons related charges. [13] X.Y. gave the appellant’s mother a phone number for a defence lawyer. Several years prior to the matter at issue, and when X.Y. was a youth, that same lawyer represented X.Y. at his own criminal trial. The appellant retained this lawyer for his trial knowing that he had previously represented X.Y. II. Evidence at the Preliminary Inquiry [14] A preliminary inquiry was held on September 8, 2015. The parties agreed to tender the evidence from the preliminary hearing at trial, supplemented with some further evidence. [15] The evidence at the preliminary hearing indicated that before executing the search warrant, the police arrested the appellant outside his home for possession of cocaine and marijuana for the purpose of trafficking. [16] Soon thereafter, the appellant’s grandfather identified the appellant’s bedroom to the police officers. Inside, they found a .44 Magnum Taurus handgun in a dresser containing male clothing, as well as seven loose rounds of .44 calibre ammunition, a box of fifty .44 calibre ammunition, and a number of shotgun shells. A dresser in the room contained paperwork from the Canada Revenue Agency bearing the appellant’s name. A safe in the bedroom closet contained his passport, driver’s licence and other forms of identification. Other items found in the bedroom included: a small digital scale, empty baggies, a collapsible baton, and a trigger lock that was found in another safe in the bedroom. The officers did not find any drugs in the appellant’s room or on his person. [17] Defence counsel cross-examined the police officers at the preliminary inquiry regarding the reason for the arrest, as well as the circumstances surrounding the search, both with respect to the purpose of the search warrant and the manner of its execution. III. The Charter Application [18] After the preliminary inquiry, the appellant brought an application under s. 8 of the Canadian Charter of Rights and Freedoms to exclude the evidence that the police obtained pursuant to the search warrant. [19] At the hearing of the Charter application, the appellant’s position was that the police used the CDSA search warrant as a guise to gain entry into the residence to conduct a search for firearms, rather than drugs. According to defence counsel, it followed that the information to obtain the search warrant did not contain full, fair and frank disclosure of the true purpose of the search. Further, defence counsel submitted that the warrant lacked reasonable grounds to believe that drug dealing was occurring on the premises and the officers improperly relied upon the telewarrant procedure. Lastly, defence counsel argued that the warrant had been improperly executed. Specifically, he alleged that the officers did not show the warrant to the appellant or any of the other occupants of the residence upon request, in contravention of s. 29(2) of the Criminal Code, R.S.C., 1985, c. C-46 . [20] The appellant also sought to reveal the identity of the confidential informant, pursuant to the innocence at stake exception to informer privilege. Defence counsel argued that X.Y., or someone he knew, had planted the gun and informed the police on the appellant. [21] On January 18, 2017, the judge dismissed the appellant’s application, finding that the warrant had been properly obtained and executed. She further concluded that there was full, fair, and frank disclosure in the information to obtain. [22] The application judge also found that the appellant’s submissions on the innocence at stake exception failed to meet the high threshold necessary to reveal the identity of the confidential informant. IV. The Judicial Pretrial [23] After receiving the decision denying the Charter application, defence counsel arranged to conduct a judicial pretrial with another judge. The judicial pretrial was held that afternoon. In the pretrial, the Crown made an offer of a three-year sentence in exchange for a guilty plea to a breach of s. 95(1) of the Criminal Code . Defence counsel rejected the Crown’s offer and instead elected to proceed to trial before the application judge. V. The Trial [24] The Crown’s case began on January 18, 2017. The Crown called two officers who took part in the search and who had already testified at the preliminary inquiry. [25] In his cross-examination of the two officers, defence counsel essentially asked one question: did the police use sniffer dogs when exercising the search warrant? The officers answered no. [26] The defence case began on January 19, 2017. Defence counsel requested a brief adjournment so that he could locate X.Y. and serve him with a subpoena to testify. The trial judge denied the adjournment request, reasoning that defence counsel should have served X.Y. with the subpoena in advance. [27] The appellant then testified. He explained the circumstances under which X.Y. had left the gun at his home. The appellant noted that he did not ask for the gun to be left there, nor did he want it left there. He was angry with X.Y. for ever putting him or his family in this position. The appellant moved the gun from the music studio to his bedroom where it would be safer because fewer people would have access to it. [28] The appellant also testified about why he did not bring the firearm to the police station. First, the appellant testified that he was afraid of retribution from X.Y. if he did return the gun and he did not want to be known as a snitch in the neighbourhood. Second, the appellant was afraid to turn the gun in because he had witnessed police officers beat his friend to death. He had also had other negative interactions with the police, which led him to fear that the police would try to “pin it” on him. [29] The appellant also testified that the scale and baggies found in his room were for his jewellery business and were not related to drug trafficking. He indicated that he used the sealed baggies to contain earrings, chains and other items that he sold at a flea market; and he used the scale to measure the weights of different earrings. He denied ever selling marijuana or cocaine from his house. He also denied ownership of the extendable baton and trigger lock, both of which police found in his bedroom. [30] Defence counsel again requested an adjournment of the trial to locate X.Y. on January 20, 2017. The application judge again denied the request. [31] In his closing statement, defence counsel alleged a conspiracy between the Crown and the police to frame the appellant. He indicated that the firearm would not be in the appellant’s residence but for the involvement of police and the alleged confidential informant, X.Y. He also argued that the appellant had no ill-intention with respect to the firearm and in fact repudiated X.Y. for leaving it at his residence in the first place. Furthermore, defence counsel argued that the appellant exercised a quasi-public function by moving the firearm from an insecure location to his bedroom until X.Y. could pick it up. According to defence counsel, the appellant “did all that he could to take innocent possession of that firearm.” VI. The Decision of the Trial Judge [32] The trial judge rejected the appellant’s defence and convicted the appellant of five firearms offences: (1) possession of a loaded, restricted firearm, together with readily accessible ammunition, without a licence or registration certificate ( Criminal Code, s. 95(1)); (2) possession of a firearm knowing its possession is unauthorized ( Criminal Code, s. 92(1)); (3) unlawful possession of a firearm ( Criminal Code, s. 91(1)); (4) possession of a firearm while prohibited from doing so ( Criminal Code, s. 117.011); and (5) careless storage of ammunition ( Criminal Code, s. 86.1). As noted above, he received a sentence of two years and three months’ imprisonment, less time served. [33] The trial judge found no evidence to support the defence theory that anything was planted or that the police had orchestrated a conspiracy or entrapment scheme against the appellant. [34] The trial judge further concluded that this was not a case of innocent possession. While recognizing that the firearm and ammunition may have fallen into the accused’s possession without his knowledge initially, the trial judge found that: “after he became aware of the items, all of the decisions were made by him.” Specifically, the appellant knew that possessing the firearm and ammunition was illegal. In fact, he was under a firearm prohibition at the material time. Moreover, the appellant had knowledge, personal possession and control of the firearm and ammunition over a five-day period after he became aware that they had been left in his music studio; and the appellant’s intention was to hand back a deadly weapon to X.Y., not to turn it into police or otherwise destroy it. [35] In coming to her decision, the trial judge noted that there was no identification found in the bedroom for anyone other than the accused. The bedroom also contained male adult clothing and other items, including the baggies and scale, which the appellant admitted were his. The trial judge found aspects of the appellant’s evidence not credible, including his testimony that he had no knowledge of the trigger lock and baton found in his bedroom. C. ISSUES TO BE DECIDED [36] As noted above, the only issue in this appeal is whether a miscarriage of justice occurred due to ineffective assistance of counsel. The appellant raises three concerns with respect to defence counsel’s assistance during the trial proceedings: (1) his representation of the appellant was negatively impacted by a conflict of interest arising from his previous representation of X.Y.; (2) he improperly encouraged the appellant to testify, ensuring his conviction; and (3) he represented the appellant in an ineffective manner. I will deal with each allegation in turn. D. CONFLICT OF INTEREST AND X.Y.’S EVIDENCE I. Position of the Appellant [37] The appellant argues that defence counsel was in a conflict of interest when representing the appellant after previously representing X.Y., particularly in light of the alleged involvement of X.Y. in the case against the appellant. Again, the defence argued that X.Y. might have been the confidential informant or was an agent for the police when planting the firearm at the appellant’s home. [38] The appellant submits that representing both parties runs contrary to r. 3.4-10 of the Law Society of Ontario’s Rules of Professional Conduct, which provides that a lawyer shall not act against a former client in the same matter, any related matter, or any other matter if the lawyer has relevant confidential information, unless the former client consents. In oral submissions, counsel for the appellant argued that X.Y.’s matter was related to the case at bar because he was alleged to be a confidential informant against the appellant. [39] The appellant argues that defence counsel should have recognized that there was a conflict; he should have explained the conflict of interest and any related risks to the appellant; he should have obtained a waiver from both the appellant and X.Y.; and he should have required the appellant to obtain independent legal advice prior to retaining defence counsel. As the appellant points out, defence counsel did none of these things. [40] According to the appellant, the conflict could explain defence counsel’s failure to call X.Y. as a witness, to subpoena him in a timely manner, or to interview him as a witness. In light of defence counsel’s allegations against X.Y. in relation to this matter – i.e . , that he was a confidential informant or planted the firearm – X.Y.’s evidence was needed at trial. Defence counsel failed to obtain his evidence. According to the appellant, this was evidence of incompetent lawyering. [41] In making his submissions on this issue, the appellant relies on a decision of this court: R. v. Baharloo , 2017 ONCA 362, 348 C.C.C. (3d) 64. In Baharloo , the court considered an ineffective assistance of counsel claim where trial counsel represented the alternate suspect giving rise to a potential conflict of interest. The appellant relies on the following passage from that decision: [51]    At a minimum, before accepting a retainer from Banda in August 2012 to represent her on the possession of cocaine charge, [trial counsel] was required to fully disclose to both the appellant and Banda the issues and risks associated with concurrent representation, secure their informed consent to concurrent representation, and reasonably conclude that she would be able to represent each client without adversely affecting the other : Neil , at para. 29. That [trial counsel] did not do. [52]    By accepting the retainer to act for Banda on the possession of cocaine charge, [trial counsel] put herself in an actual conflict of interest with respect to her representation of the appellant. Her representation of the appellant, from that point forward at the latest, was tainted by impermissible divided loyalties and an actual conflict of interest . [53]    As this court stated in W. (W.), at p. 178, the real issue on appeal in cases involving allegations of conflicts of interest arising out of the joint defence of co-accused “will be whether there was an actual conflict of interests. If that conflict is demonstrated, the conclusion that at least one of the co-accused did not receive effective representation will follow in most cases.” That applies with equal force to the present case, even though the retainers involved different matters and the appellant and Banda were not co-accused . [54]    Accordingly, the appellant has demonstrated that (i) an actual conflict of interest existed by [trial counsel]’s concurrent representation of Banda and him, and (ii) that conflict impaired [trial counsel]’s ability to represent effectively the appellant’s interests. It led [trial counsel] to fail to pursue a third party suspect defence which, in the circumstances, was a realistically available defence. The appellant has established a lack of effective assistance by trial counsel. [55]    As a result of the ineffective assistance [trial counsel] provided to the appellant because of her conflict of interest, a miscarriage of justice occurred: W. (W.), at p. 173. The appellant’s conviction cannot stand.  [Emphasis added]. [42] The appellant argues that this court’s reasoning in Baharloo is apposite to the case at bar. Specifically, in this case, the appellant submits that defence counsel did not recognize the conflict, failed to ensure the appellant sought out independent legal advice, failed to obtain waivers from both clients, failed to apprise the appellant of the risks of the conflict, and then failed to ensure X.Y. gave evidence before putting the appellant on the stand. The appellant suggests that these facts constitute evidence of an actual conflict of interest that impaired trial counsel’s ability to represent the appellant’s interests effectively. [43] The appellant further relies on the following passage of a decision of this court in R. v. Joanisse , [1995] 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A. No. 347 (S.C.C.): 76. The nature of the incompetence demonstrated will, in large measure, dictate the kind of inquiry required to determine the effect of that incompetence on the fairness of the trial. In some cases, counsel's incompetence rests in conduct which permeates and infects counsel's entire performance. Where counsel's incompetence is pervasive, the focus must be on the effect of that incompetence on the fairness of the adjudicative process. 77. The conflict of interests cases such as R. v. Widdifield and Widdifield , supra , provide a second example of ineffective representation which destroys the fairness of the adjudicative process at trial. Where counsel represents competing interests at trial, and as a result, counsel's ability to represent either or both of those interests is adversely affected, a miscarriage of justice has occurred without any inquiry into the effect of the conflict on the reliability of the verdict. This is so because counsel's undivided loyalty to the client is an essential component of a fair adversarial process. Where counsel's loyalty is divided and the client suffers as a consequence, the adversarial dynamic of the trial is lost and with it the fairness of the trial: R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 at 47-48 (Ont. C.A.); U.S. v. Decoster , supra, per MacKinnon J. concurring at pp. 235-237. [Emphasis added]. [44] The appellant argues that the failure to subpoena a central witness for the defence in a timely manner was evidence of how the conflict and incompetence undermined the fairness of the adversarial trial process. [45] The appellant argues that the conflict of interest with respect to X.Y. contributed to a miscarriage of justice. Consequently, he contends that the convictions should be set aside, and a new trial ordered. II. Position of the Crown [46] At the outset, the Crown notes that the appellant was aware that his lawyer had previously represented X.Y. when the appellant retained him, and the prior representation of X.Y. happened years before, for a completely unrelated matter. [47] The Crown argues that r. 3.4-10 of the Rules of Professional Conduct allows a lawyer to act against a former client on an unrelated matter where there is no risk that the confidential information obtained during the representation of the former client would be used in the new representation. According to the Crown, this was an unrelated matter and defence counsel did not learn any confidential information from X.Y. during the course of his unrelated, earlier retainer that could have been used in his representation of the appellant. Therefore, the Crown submits that defence counsel did not act in contravention of the Rules of Professional Conduct. [48] Moreover, the Crown submits that the appellant has not established that there was an actual conflict of interest. The Crown argues that defence counsel acted with undivided loyalty towards the appellant: first, he subpoenaed X.Y. to testify; and second, he vigorously argued at trial that X.Y. was the confidential informant. [49] Further, the Crown asserts that the timing of X.Y.’s subpoena did not amount to incompetence. Defence counsel explained that he did not seek to subpoena X.Y. until he felt it was absolutely necessary, which was after the judge dismissed the s. 8 Charter application on January 18, 2017. Defence counsel twice requested an adjournment so that he could serve X.Y. with a subpoena to secure his attendance to testify. The trial judge rejected both of these requests. [50] According to the Crown, X.Y. ultimately was served with the subpoena and he appeared on January 20, 2017, but the proceedings had already been adjourned for the day. X.Y. attended again on January 25, 2017, when the trial judge was to issue her decision. Although she was aware of X.Y.’s presence, the trial judge was unwilling to revisit her earlier ruling given the limited relevance of his evidence. [51] The Crown argues that X.Y.’s evidence would have been of limited relevance and would not have exculpated the appellant nor eliminated the need for him to testify. The text message exchange between X.Y. and the appellant tendered on the s. 8 application already indicated that X.Y. left the gun at the appellant’s home without the appellant’s consent. [52] The Crown submits that even assuming X.Y. testified consistently with the text messages, at most, X.Y.’s evidence would have confirmed that he left the gun in the appellant’s music studio and eventually told the appellant that he had done so. Given that the gun was found in the appellant’s bedroom, there would have been an undeniable inference that the appellant moved the gun from the studio to his bedroom. X.Y.’s testimony would have confirmed both the appellant’s personal possession in moving the firearm and his constructive possession of it. [53] The Crown also points out that the trial judge found X.Y.’s anticipated evidence to be irrelevant to the issues in the trial proper, short of questions suggesting that he might be the confidential informant, which defence counsel was not permitted to ask having failed on the innocence at stake application. [54] The Crown distinguishes the facts in Baharloo from the current matter. According to the Crown, unlike the current matter, the appellant in Baharloo was unaware of the prior representation of the potential third party suspect, and the retainers of Mr. Baharloo and the potential third party suspect substantially overlapped and were factually related. III. Analysis [55] A lawyer owes a duty to their client to avoid conflicts of interest: Baharloo, at para. 31 . Section 1.1-1 of the Law Society of Ontario’s Rules of Professional Conduct defines a “conflict of interest” as a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by the lawyer’s duties to a former client. [56] The rule against conflicts guards against two forms of prejudice: first, there is “prejudice as a result of the lawyer's misuse of confidential information obtained from a client”; and second, there is “prejudice arising where the lawyer ‘soft peddles’ his representation of a client in order to serve his own interests, those of another client, or those of a third person”: Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 23. [57] With respect to former clients, lawyers must refrain from misusing confidential information. Whereas, for current clients, lawyers must not misuse confidential information, nor place themselves in a situation that jeopardizes effective representation: Canadian National Railway Co. , at para. 23. [58] A lawyer can render effective assistance only when that lawyer champions the accused’s cause with undivided loyalty: W. (W.) , at p. 13. Effective representation may be threatened where a lawyer is tempted to prefer other interests over those of their client: Canadian National Railway Co. , at para. 26. As this court wrote in R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.), at p. 67, cited with approval by the Supreme Court in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12: “There should be no room for doubt about counsel's loyalty and dedication to the client's case.” A lawyer’s duty of loyalty to their client is foundational to the adversarial system and “essential to the integrity of the administration of justice”: Neil , at para. 12. [59] This court has identified specific criteria to determine where a conflict of interest causes a denial of the accused’s constitutional right to make a full answer and defence, and results in a miscarriage of justice. As Doherty J.A. wrote in W. (W.) , at pp. 15-16, the appellant must show: i. an actual conflict of interest between the respective interests represented by counsel; and ii. as a result of that conflict, some impairment of counsel’s ability to represent effectively the interests of the appellant. [60] If both criteria are established, then the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred: W. (W.), at p. 16. [61] It is not enough simply to have an appearance of a conflict. The court must determine whether counsel’s representation was, in fact, adversely affected. The concern on appeal must be with what happened and not what might have happened: W. (W.) , at pp. 17-19. [62] The cases provided by the parties on this issue, namely Baharloo and W. (W.), consider the issue of a potential conflict of interest with another “current client”, as opposed to a former client. However, if the trial counsel’s representation of an accused may be compromised by a duty to a former client, counsel should first advise the new client and obtain their consent. If counsel believes that the duty to the former client actually will compromise the new retainer, then the lawyer should decline to accept the case. [63] The appellant’s fresh evidence affidavit confirms that after he was arrested in this matter, X.Y. came to his home to provide his mother with defence counsel’s phone number. The appellant retained defence counsel knowing of his prior representation of X.Y. The appellant accepted the referral from the very same person he would accuse of being a confidential informant against him. Defence counsel did not need to advise the appellant of the former retainer since it was common knowledge that the appellant was already aware of it. [64] Defence counsel owed a duty to X.Y. as a former client, at least with regard to not misusing information obtained as a result of the former retainer: Canadian National Railway Co., at para. 23. Even where there is no such risk, it would be preferable not to act against a former client. However, the concern in this appeal is not the duty to X.Y.; it is the duty to the appellant. [65] On the face of it, there was a potential conflict of interest between defence counsel’s representation of the appellant and his past representation of X.Y. due to the nature of the argument advanced at trial: i.e ., that X.Y. was either a confidential informant or planted the firearm at the behest of the police. Given the nature of the defence theory, and the potential for a conflict, it would have been preferable for defence counsel to decline to represent the appellant in this matter. [66] However, I am not persuaded that defence counsel’s prior representation of X.Y. manifested in an actual conflict that impaired trial fairness. On a review of the full trial record, it does not appear that defence counsel was torn by any feeling of divided loyalty. Defence counsel was willing to require X.Y. to attend at trial. The appellant admitted that defence counsel retained a private investigator to try to locate X.Y. to serve him with a subpoena. X.Y. was subpoenaed to testify, albeit late in the process. Again, the concern on appeal is whether a conflict of interest actually compromised representation; the appellate court is not concerned with mere possibilities. [67] Even if he had testified, X.Y.’s evidence would, at best, corroborate the appellant’s explanation that he was the unwilling recipient of a gun left at his home. There was not much else to be gained from X.Y.’s testimony at that point in the proceedings. Again, the outcome of the innocence-at-stake application prevented counsel from exploring the issue of the confidential informant in the examination of X.Y. [68] As a result, despite any potential for conflict of interest in this case, it did not affect the trial nor result in any miscarriage of justice. [69] I would dismiss this ground of appeal. E. The decision to testify I. Position of the Appellant [70] In the affidavit tendered as part of the fresh evidence application, the appellant indicated that he and defence counsel discussed his testimony and the innocent possession defence for the first time just before trial. Defence counsel insisted that the appellant testify. The appellant did not want to testify. [71] In the appellant’s testimony at trial, he reiterated that: he had control over the bedroom where he stored the gun, he consented to it being there, and he was planning to give the gun back to X.Y. In short, the appellant contends that his testimony was a complete confession that ensured his conviction of the offences charged. According to the appellant, it follows that his convictions rest on the ineffective assistance of counsel. [72] The appellant’s position is that defence counsel never should have advised him to testify since his evidence provided all that was needed to convict him on the basis of the doctrine of constructive possession. According to the appellant, a reasonably competent lawyer would have advised the appellant to sit silently and let the Crown prove its case against him, as the innocent possession defence had virtually no chance of success on these facts. II. Position of the Crown [73] The Crown argues that the appellant made an informed decision to testify in this case. Defence counsel’s evidence was that he did, in fact, inform the appellant that he did not need to testify. Additionally, the Crown contends that the appellant would have known that he had the right not to testify. The appellant had four prior criminal trials, with three prior lawyers, and he did not testify at any of those trials. [74] Given that the s. 8 application was unsuccessful, it is the Crown’s position that the appellant’s convictions were virtually certain on the basis of constructive possession regardless of whether the appellant testified, due to the strong circumstantial case against him. The Crown submits that there were seven pieces of circumstantial evidence upon which the court could draw the inference beyond a reasonable doubt that the appellant was aware of the firearm and ammunition found in his bedroom and that he had a measure of control over it: 1. The firearm and a substantial amount of ammunition were found in a bedroom identified by the appellant’s grandfather as belonging to the appellant. 2. Police found CRA paperwork bearing the appellant’s name in the top drawer of one of the dressers in the bedroom, indicating he stored items belonging to him in the dressers in the bedroom. 3. The bag containing the firearm and ammunition was immediately visible when the police officer opened a drawer in the second dresser in the bedroom. 4. The bedroom contained adult, male clothing. The bag containing the firearm and ammunition was situated on top of male clothing in the dresser drawer. 5. In a different drawer of the same dresser that contained the firearm, police found a second weapon – an extendable baton. 6. A safe in the closet of the bedroom contained the appellant’s passport, driver’s licence, SIN card and health card. A trigger lock for a gun was also found in a safe in the bedroom. 7. Paraphernalia consistent with drug dealing was found in the bedroom, including a digital scale and a quantity of small ziplock baggies. [75] The Crown argues that it was extremely unlikely for the court to find another reasonable inference other than guilt on these facts. [76] The Crown submits that there was no downside to testifying in this case. If the appellant did not testify, only the Crown’s evidence would be before the trial judge. If the appellant testified, he could cast the evidence in the most favourable light. The Crown argues that testifying gave him a long shot at an acquittal if the trial judge accepted the innocent possession defence. At worst, testifying provided context for the gun being in his bedroom, explained the presence of the baggies and scale, and would be treated as mitigating factors on sentencing. The Crown states that it cannot be a miscarriage of justice for an accused to decide to testify and tell the truth. [77] The Crown points out that evidence from the accused is necessary to support an innocent possession defence. While the defence of innocent possession was a long shot, it could have succeeded, but only if the appellant testified. Accordingly, the Crown submits that defence counsel’s advice to testify was apt: testimony that acknowledged possession but proved innocent possession was the appellant’s best chance of an acquittal in this case. [78] The Crown argues that the mitigating impact of his testimony was borne out on sentencing. Again, the information the appellant supplied resulted in a sentence of two years and three months, which was less than the three-year plea deal offered by the Crown. III. Analysis [79] I do not accept that there was any failure of legal representation, nor any miscarriage of justice, in the appellant’s decision to testify at trial. [80] There is no dispute that it was the appellant’s inalienable right to sit silently at his trial and require the Crown to prove its case against him beyond a reasonable doubt. Part of counsel’s duty involves advising an accused whether to testify: R. v. K.K.M., 2020 ONCA 736, at para. 62. A competent lawyer will offer sage advice in this regard, but only the client can make the ultimate decision as to whether the benefits of testifying outweigh the risks: R. v. Stark , 2017 ONCA 148, 347 C.C.C. (3D) 73, at para. 17. [81] While it may very well be true that the appellant knew he did not need to testify due to his prior involvement with the justice system, this fact cannot displace the responsibility of counsel to ensure that an accused is apprised of their rights in a criminal trial. This responsibility remains with the lawyer no matter how many times a client has previously been committed to trial. [82] That being said, I am not persuaded that the appellant’s decision to testify was uninformed or involuntary. The appellant was fully aware of the considerable evidence against him. Defence counsel detailed the significant risk of a conviction on the basis of constructive possession in a reporting letter provided to the appellant prior to trial. [83] Defence counsel was right: the appellant was at a substantial risk of conviction on the basis of constructive possession if he failed to testify. [84] Constructive possession applies when an accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: Criminal Code , S. 4(3)(a); R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17. [85] To establish constructive possession, the Crown must prove: · That the accused knew the character of the object; · That the accused knowingly put or kept the object in a particular place; and · That the accused intended to have the object in the particular place for his use or benefit or that of another: Morelli , at para. 17 ; R. v. Lights , 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 47-48. [86] There must be knowledge that discloses some measure of control over the item to be possessed: R. v. Pham (2005), 77 O.R. (3d) 401 (Ont. C.A.), at paras. 14-15, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940. In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial: Lights , at para. 48. [87] Occupancy of premises alone does not create a presumption of possession, but it supports an inference of control when coupled with evidence of knowledge: Lights , at para. 50 , R. v. Watson , 2011 ONCA 437, at para. 13; R. v. Lincoln , 2012 ONCA 542, at para. 3. The circumstantial evidence must tie the accused to the location such that the only reasonable inference is that the accused was aware of the contraband and had control over access to it: Lights , at paras. 36, 98; Pham, at paras. 17-18, 25-29; R. v. Dipnarine , 2014 ABCA 328, 316 C.C.C. (3d) 357, at paras. 17-20. [88] In this case, the police found the firearm and ammunition in a bedroom that the appellant’s grandfather identified as belonging to the appellant. The prohibited items were stored with adult male clothing, and the appellant’s identification. There was no identification found in the bedroom for anyone other than the accused. I agree with the Crown that there was ample circumstantial evidence pointing to constructive possession, even without the appellant’s testimony. [89] After the trial judge dismissed the s. 8 application, the appellant’s only chance of succeeding was a defence of innocent possession. [90] The doctrine of innocent possession can provide a defence to an accused who technically had either constructive or personal possession of a prohibited item but lacked a blameworthy state of mind or blameworthy conduct: R. v. Chalk , 2007 ONCA 815, 88 O.R. (3d) 448, at para. 25. The rationale underlying this defence is that criminal liability should not attach to brief, “innocent” possession, where the intention is solely to divest oneself of control rather than to possess the prohibited item: Chalk , at para. 25. [91] The cases where innocent possession is a viable defence normally involve a person who takes control of contraband out of a sense of public duty: to prevent injury to others, to destroy the contraband, or to permanently move it beyond their control: Chalk , at para 23-25. The defence has been successful in situations that are comparable to that of the appellant, where the accused does not opt to turn the gun into the authorities, or destroy it: R. v. Ali , 2018 ONCJ 379, at paras. 55-56, 79-83; R. v. Adedokun, 2018 ONSC 2138, at paras. 23-24, 31-35. [92] The defence of innocent possession in this case had a slim chance of success but was nonetheless arguable. Unfortunately for the appellant, the trial judge rejected the defence. Although the trial judge accepted that the gun fell into the appellant’s possession through no fault of his own, she did not accept that he acted out of a public duty in retaining the gun to return it to X.Y. She specifically rejected the appellant’s evidence that he feared retaliation from X.Y. if he got rid of the firearm. She also found that the appellant lied about not knowing about the baton and trigger lock in his bedroom. [93] The appellant turned down the plea deal offered by the Crown. He elected to take his chances at trial. He was convicted, as he was in his four prior trials where he did not testify. In this case, he succeeded in receiving a sentence that was lower than what the Crown had offered on a plea deal. [94] His counsel did not act ineffectively in advising the appellant to testify. It was his best chance at an acquittal once the trial judge dismissed the s. 8 application, and it succeeded in reducing his sentence. [95] I would dismiss this ground of appeal. F. Ineffective representation I. Position of the Appellant [96] The appellant argues that he was not properly represented at the trial itself. According to the appellant, trial counsel’s incompetence rendered the result of the trial unreliable, in that, absent the errors of counsel, the trier of fact may have come to a different conclusion. [97] He points to his counsel’s lack of cross-examination at the trial proper. Defence counsel asked only one question of each of the two police officers who testified. The appellant submits that failing to conduct meaningful cross-examination on the core issue of the case is the kind of incompetence that can require a new trial if the result may have been different. [98] The appellant also argues that defence counsel did not understand the basic tenets of constructive possession or innocent possession. According to the appellant, defence counsel put his client on the stand with no appreciation of the core issue at trial. In support of this argument, the appellant points to defence counsel’s submission that: “I challenge the absolute foundation of my friend’s assertion that the possession is really what’s at issue in this case.” The appellant also relies upon counsel’s faltering response when questioned about the definitions of constructive possession and innocent possession in his subsequent cross-examination that formed part of the fresh evidence tendered for this appeal. [99] As noted above, the appellant maintains that defence counsel’s failure to issue a timely subpoena and his advice to the appellant to testify also amounted to incompetence. II. Position of the Crown [100] The Crown points out that the only two Crown witnesses at trial were already fully cross-examined by defence counsel at the preliminary inquiry and their evidence was entered into the trial record on consent. The Crown submits that any further evidence at trial from these two officers would not have yielded anything useful for the defence. [101] The Crown also takes issue with the appellant’s suggestion that defence counsel did not understand the elements of constructive possession and innocent possession at trial. The Crown points to the fact that defence counsel correctly referenced the leading case in his submissions, and fully informed the appellant about the risks of conviction on the basis of constructive possession in the reporting letter delivered prior to trial. [102] The Crown argues that counsel’s performance was reasonable in this case. It also submits that, even if it was imperfect, counsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction. Here, the Crown contends that the appellant has failed to show how he was prejudiced by his counsel’s representation, such that it occasioned a miscarriage of justice. III. Analysis [103] The right to effective assistance of counsel is a principle of fundamental justice: R. v. G.D.B ., 2000 SCC 22, 143 C.C.C. (3d) 289, at para. 24. As Doherty J.A. wrote in Joanisse, at p. 57: Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. [104] To succeed on a ground of appeal on the basis of ineffective assistance of counsel, an appellant must establish three elements: i. the facts on which the ineffectiveness claim is based on a balance of probabilities; ii. that the representation provided by trial counsel amounted to incompetence on a reasonableness standard (the performance component of the test); and iii. that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse , at p. 59; R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; G.D.B ., at paras. 24, 26; R. v. Hartling , 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 73-74; R. v. Cherrington , 2018 ONCA 653, at para. 25. [105] This test presents a high bar that is not easily met: Cherrington, at para. 25. The standard is not perfection. Rather, the court must measure counsel’s performance or competence against a reasonableness standard, having regard to the circumstances as they existed when the impugned acts or omissions occurred. Different lawyers may have run the trial differently, but that does not mean a trial counsel’s choices are incompetent. Appellate courts must give deference to the choices made by trial counsel and the benefit of hindsight plays no part in this assessment: Joanisse , at para. 72; Archer, at para. 119; G.D.B ., at para. 27; Hartling, at para. 74. [106] Once the appellant has established the facts underpinning the claim of ineffectiveness under the first branch of the test, the analysis turns to the third branch – the prejudice component. If there was no prejudice, then it is undesirable for the court to proceed to the second branch, or the performance component, of the test: G.D.B., at para. 29; Hartling , at para. 74. In regard to the prejudice element of the test, there are two ways to show prejudice: 1. the appellant must establish that there is a reasonable probability that the verdict would have been different had he received effective legal representation; or 2. he must show that his counsel’s conduct deprived him of a fair trial. [107] A reasonable probability is a “probability sufficient to undermine confidence in the outcome”: Joanisse , at paras. 74, 79-80; Archer, at para. 120; R. v. Davies , 2008 ONCA 209, 234 O.A.C. 291, at para. 37. [108] If prejudice is made out, the court turns to the second branch – the performance component. The analysis under the second branch proceeds upon a strong presumption that counsel’s conduct fell within the wide parameters of reasonable professional assistance: G.D.B., at para. 27; Hartling , at para. 74. [109] Turning to the facts at hand, I agree with the position of the Crown. I have not been persuaded that trial counsel’s alleged incompetence undermined the integrity or reliability of the verdicts, or that it rendered the trial unfair. Stated otherwise, the appellant has failed to establish prejudice. [110] The thrust of the defence at the trial proper was innocent possession, which required evidence of the appellant’s intention. It was advisable in the circumstances for the appellant to testify. This recommendation by counsel did not amount to incompetence. [111] Nor did counsel’s cross-examination rise to the level of incompetence. The police officers simply acted on a search warrant and identified what they found. The question posed in cross-examination as to whether they used sniffer dogs related to the allegation that the search warrant really was not about drugs, but to find the firearm planted by X.Y. This was consistent with the appellant’s position that he was framed. The cross-examination of the police officers from the preliminary inquiry was already before the judge. The failure to cross-examine further does not mean that the representation was incompetent, or that there was a miscarriage of justice. [112] Moreover, as I noted above, I do not think that the absence of a timely subpoena would have reasonably altered the course of the trial. While it was certainly inadvisable to leave the subpoena to the day the witness was supposed to testify, I am not persuaded that his testimony would have had an impact on the verdict. Again, his best shot at an acquittal was innocent possession, and the trial judge squarely rejected that defence based on a sufficient evidentiary record. [113] Furthermore, a review of the record demonstrates that defence counsel was competent with respect to his understanding of the legal concepts of constructive possession and innocent possession at the time of trial. His reporting letter and his submissions on the issue show his understanding. The quote referenced by the appellant – “I challenge the absolute foundation of my friend's assertion that the possession is really what's at issue in this case” – is anomalous when contextualized with the full record. I would not accede to the appellant’s submission on this point. [114] Finally, defence counsel’s failure to issue a timely subpoena for X.Y. did not prejudice the appellant. As explained above, there was no reasonable probability that the verdict would have been different had X.Y. testified at trial. That said, while it did not rise to the level of ineffective assistance of counsel, leaving a subpoena until the last minute was certainly inadvisable. On different facts, a failure to issue a timely subpoena of a key witness could lead to an unfair trial. [115] I would dismiss this ground of appeal. G. Disposition [116] In summary, the appellant retained counsel on the recommendation of the very person the appellant accused of being a confidential informant against him, knowing that the recommended counsel previously represented that same person.  The appellant subsequently failed in his attempt to exclude the evidence of a gun and ammunition found in his bedroom, when the only identification found in that bedroom belonged to the appellant. The appellant was at substantial risk of conviction on the basis of constructive possession. The appellant unsuccessfully advanced a defence of innocent possession but was successful in receiving a lower sentence than was previously offered by the Crown. The convictions were not the result of any failure of representation, nor did they result from a miscarriage of justice. [117] The appeal is dismissed. Released: April 13, 2021 “D.W.” “M. Tulloch J.A.” “I agree. David Watt J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Flannigan, 2021 ONCA 174 DATE: 20210322 DOCKET: C65653 Rouleau, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Matthew Flannigan Appellant Laura Remigio, for the appellant Frank Au, for the respondent Heard: March 16, 2021 by video conference On appeal from the conviction entered on March 23, 2017 and the sentence imposed on June 22, 2017 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant appeals from his convictions for using a firearm in the commission of a robbery, using a firearm in the commission of an aggravated assault, and possession of a firearm while prohibited. He also seeks leave to appeal his sentence of 9 years less credit of 54 months and 21 days for pre-sentence custody. [2] The appellant’s trial arose from a home invasion. It proceeded before a judge and jury. The key issue was identity and defence counsel advised the jury that the sole issue at trial “couldn’t be more simple.” The jury reached a verdict after four hours. [3] After the jury had rendered its verdict, a Court Services Officer (“CSO”) reported to the presiding judge on comments made by a juror. [4] The trial judge conducted a post-verdict inquiry at which that CSO and two other CSOs were questioned. Three days before the jury deliberations started, a juror had told the CSO that she did not want to stay overnight. She had plans for the weekend and she did not want to change them. The CSO replied that “It’s the process and it’s just the way it is. You come prepared to stay.” On Thursday, the juror came “prepared to stay”, carrying “an overnight bag” with her when she came to court. The trial judge declined to have any of the jurors testify at the post-verdict inquiry. Hearing from that juror would be of no assistance and the expanded inquiry ran the risk of “encroaching on the protected jury secrecy.” [5] The appellant submits that the trial judge erred by failing to allow a fulsome post-verdict inquiry by declining to call the jurors. The comments of the juror were extrinsic and not intrinsic to the jury deliberations and gave rise to a reasonable apprehension of bias. In addition, he submits that this court ought to have a record to determine whether there was a reasonable possibility that the information provided by the juror had an effect on the verdict. [6] We do not accept the appellant’s submission that any further inquiry was required. The trial judge concluded that the record was sufficient and we see no error in this determination. [7] The appellant takes no issue with the conduct of the trial or the jury instructions. The law presumes that jurors will perform their duties impartially and according to their oath and follow the instructions given. As instructed, the juror did come to court prepared to stay and brought an overnight bag. The evidence disclosed no jury impropriety. The strong presumption of juror impartiality has not been rebutted. An informed person, viewing the matter realistically and practically and having thought the matter through, would not think that it was more likely than not that the juror, consciously or unconsciously, had failed to decide the case fairly. See Committee for Justice & Liberty v. Canada (National Energy Board) (1976) , [1978] 1 S.C.R. 369 (S.C.C.), at p. 394 and R. v. Dowholis , 2016 ONCA 801 at para. 19. [8] For these reasons, we dismiss the conviction appeal. [9] As for the sentence appeal, the appellant submits that the 9-year sentence was demonstrably unfit and was disproportionate relative to the sentences of his co-accused. He requests a sentence of 6.5 years less pre-sentence credit. [10] This was a serious home invasion and the appellant shot the victim. The trial judge considered the appellant’s age of nearly 23 at the time of the offence, his criminal record and the gap between his last conviction and these ones, his family support, and his prospects for rehabilitation. He balanced the principles of sentencing, and his emphasis on deterrence and denunciation was not misplaced given the nature of the offences and the other factors he considered. [11] The distinctions in sentences with the three other co-accused were justified given that, among other things, they all pleaded guilty and had played a lesser role in the crime than the appellant. Importantly, the appellant was the only one convicted of using a handgun to commit robbery and aggravated assault. Two of the others were sentenced on the basis that they did not know the appellant had a real firearm, and the third on the basis that the plan did not involve firearms. We also note that the appellant was in breach of a firearm prohibition order. [12] Although the trial judge initially erred in his oral reasons by saying that the appellant had two prior robbery convictions, he subsequently corrected this and said this fact made no difference to his conclusion or reasons. The sentence was fit. [13] The appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Foster, 2021 ONCA 304 DATE: 20210507 DOCKET: C67370 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Courtney Foster Appellant Courtney Foster, acting in person Amy Ohler, appearing as duty counsel Philippe Cowle, for the respondent Heard and released orally: May 5, 2021 by video conference On appeal from the convictions entered on November 7, 2018 and the sentence imposed on March 7, 2019 by Justice Lise Favreau of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of attempted murder. The victim was his wife. He was prepared to plead guilty to the lesser included offence of aggravated assault. The only issue at trial was whether the appellant had the requisite intent for attempted murder. [2] The trial judge found that he did. She sentenced him to a global term of imprisonment of 10 years for the attempted murder and a separate assault on his wife, to which he had pled guilty, less four years’ credit for pre-sentence custody, for a net sentence of six years. [3] The appellant appeals his conviction for attempted murder and seeks leave to appeal the sentence imposed. [4] As to his conviction, the appellant argues that the trial judge did not consider all his arguments and that the verdict is unreasonable. The appellant says he went to his wife’s workplace just to talk to her, and not with the intent of murdering her. He says he did not say “I’m going to fucking kill you”. He says there was no proof that he took the kitchen knife, which he stabbed his wife with, from the kitchen that day. [5] The trial judge addressed the arguments made by the appellant’s trial counsel in her careful reasons. [6] The Crown’s evidence included the testimony of the appellant’s wife and two eyewitnesses. The defence did not call any witnesses. The trial judge was satisfied beyond a reasonable doubt that the appellant intended to kill his wife. The appellant was prepared. He was waiting for his wife at her workplace. He had at least two knives. When his wife arrived, he resorted to violence almost immediately. He stabbed her multiple times, ultimately going for her neck while saying “I’m going to fucking kill you”. [7] The trial judge’s finding that the appellant intended to kill his wife was amply supported by the record. The verdict is not unreasonable. [8] Turning to the sentence appeal, the appellant argues that his sentence is too harsh, given what happened. Ms. Ohler, who assisted the appellant on his sentence appeal, argues that the trial judge did not give the Duncan credit which the defence submitted was appropriate, and which the trial judge appeared to have agreed was appropriate. [9] There is no basis for this court to interfere with the sentence imposed. The trial judge made no error in principle and the sentence imposed is not demonstrably unfit. [10] The trial judge noted the several aggravating factors in this case. The victim was the appellant’s spouse. The attack on her was very violent and sustained. The physical, emotional and financial impact on her has been very significant. And the appellant had previously been found guilty of crimes involving violence. [11] The trial judge also considered the mitigating factors: the appellant pled guilty to another assault, and was prepared to plead guilty to aggravated assault, in relation to the stabbing of his wife. He worked full-time. He faces deportation at the conclusion of his sentence. He expressed some remorse, and he had participated in some programming in pre-trial detention. [12] Finally, the record does not support Ms. Ohler’s submission. Trial counsel sought six months for Duncan credit, and that is what the trial judge gave him. [13] Accordingly, the appeal against conviction is dismissed and leave to appeal sentence is denied. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Freamo, 2021 ONCA 223 DATE: 20210413 DOCKET: C67000 Watt, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Clayton Freamo Appellant Daniel Howard, for the appellant Natalya Odorico, for the respondent Heard: March 23, 2021 by video conference On appeal from the conviction entered on January 2, 2019 by Justice Martin S. James of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant’s wife operated a daycare in their home. The appellant was charged with seven counts of sexual offences in relation to two complainants who attended the daycare. The events giving rise to the charges took place between 2004 and 2010 in connection with the complainant “J.R.” and between 2005 and 2008 for the complainant “S.L”. Both complainants attended the daycare. The trial judge convicted the appellant on one count of sexual interference and one count of sexual assault in relation to J.R. and entered acquittals on the other two charges in relation to J.R. and all three in connection with S.L. The sexual assault charge was conditionally stayed pursuant to Kienapple v. The Queen , [1975] 1 S.C.R. 729. The appellant appeals his sexual interference conviction, alleging a faulty credibility analysis by the trial judge. [2] In a videotaped interview, admitted at trial under s. 715.1 of the Criminal Code without objection, J.R. stated that on one occasion the appellant forced her to fellate him. He was convicted of the incident which occurred in the “backroom” which was also a laundry room. In total, she stated that the assaults happened anywhere from 2 to 20 times. She said that after assaulting her he would usually sit naked on the couch and watch television for half an hour. [3] The appellant denied all the allegations. [4] The trial judge found it “highly improbable” that the appellant would sit naked on the couch after assaulting J.R. but believed her evidence about the backroom incident. [5] The appellant submits that the trial judge incorrectly approached the credibility analysis as a contest between his evidence and that of J.R. He points to two comments made by the trial judge: (i) that the appellant’s evidence was “stacked against” J.R.’s; and (ii) that the evidence of the appellant was “weighed against” that of J.R. [6] We do not agree. [7] First, the impugned comments should not be extracted from the words surrounding them. The entire paragraphs are as follows. [8] With respect to “stacked against”: When Mr. Freamo’s denial is stacked against J.R.’s evidence that there was an occasion when Mr. Freamo put his penis in her mouth, I am satisfied that J.R.’s evidence is sufficient to displace the presumption of innocence, and I am not left in a state of reasonable doubt that Mr. Freamo committed the offence of sexual interference pursuant to s. 151 of the Criminal Code. I found J.R.’s evidence of the other incidents to be less certain. For example, during the police interview when J.R. referred to an incident when she says Mr. Freamo asked her to touch herself, the recording is unclear. The interviewer referred to her vagina but there was no unequivocal confirmation by J.R. [Emphasis added.] [9] With respect to “weighed against”: I am not prepared to find that the rejection of this piece of evidence makes the rest of J.R.’s evidence unreliable or untrustworthy. J.R. was very specific in recalling an incident that involved Mr. Freamo putting his penis in her mouth. She seems certain that it was Mr. Freamo who did this. I accept this evidence. I have weighed the evidence of J.R. against the evidence of Mr. Freamo. I acknowledge that Mr. Freamo’s defence is a general denial and it must necessarily be lacking in detail. I am also cognizant that as I mentioned before, proof of guilt beyond a reasonable doubt requires more than a credibility contest. [Emphasis added.] [10] The trial judge’s statements following the impugned language demonstrates a correct understanding and application of the burden of proof. [11] Second, these words must also be considered in the context of the reasons as a whole. The trial judge repeatedly correctly instructed himself on the proper approach to a credibility analysis. He considered the counts individually. He explained why he had doubts on some of the counts. For example, he explained that he had a reasonable doubt on J.R.’s evidence with respect to the fact that the appellant told her to touch herself, because the recording of her police interview was ambiguous on those other counts, and there was no follow-up by Crown counsel during J.R.’s in-court testimony. He further explained why his doubt on some of her statements did not undermine his belief on the backroom incident. He acquitted on all of the counts with respect to S.L. The trial judge applied a correct approach to the credibility analysis. [12] The appellant also submits that the trial judge’s doubt about the allegation that the appellant sat naked on the couch is inconsistent with his belief about the backroom incident. The appellant says that all the trial judge said was that the couch incidents were “highly improbable” and more was required to explain the inconsistency. Again, we do not agree. The trial judge discussed this with defence counsel during submissions. [13] Defence counsel said: [T]hat just sounds [like] completely illogical behaviour that is so risky that it would defy credulity that he would be sitting for long periods of his time naked on [the] couch and when we know that his teenage son and daughter reside there, his wife resides there … that undermines the credibility and reliability of [J.R.] [14] The trial judge then put this to Crown counsel: You may agree that it is improbable that the assailant would sit naked on the couch in the living room where the T.V. is for half an hour or so after the incident. It strikes me as improbable. [15] The appellant submits that the fact that J.R. was not believed about the sitting naked on the couch should have formed part of his credibility analysis with respect to the backroom. [16] The trial judge clearly had a reasonable doubt about the evidence with respect to sitting naked on the couch. However, he believed the evidence regarding the backroom incident. This does not reflect an inconsistency. On the contrary, it reflects an intention to assess the evidence carefully. This – together with the acquittals – provides additional confidence in the trial judge’s ultimate conclusion as to guilt on the two counts. [17] The appeal is dismissed. “David Watt J.A.” “M.L. Benotto J.A.” “ I.V.B. Nordheimer J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gauthier, 2021 ONCA 216 DATE: 20210409 DOCKET: C67340 Lauwers, Huscroft and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Garrett Gauthier Appellant Megan Savard and Wesley Dutcher-Walls, for the appellant Molly Flanagan, for the respondent Heard: September 22, 2020 by video conference On appeal from the conviction entered on April 24, 2019, by Justice Wayne G. Rabley of the Ontario Court of Justice, and from the sentence imposed on August 28, 2019, with reasons reported at 2019 ONCJ 626. Harvison Young J.A.: [1] Garrett Gauthier was charged with accessing, possessing, making available, and making child pornography. He was convicted on all four counts. He appeals his convictions on several grounds, including that the trial judge misapprehended potentially exculpatory evidence related to Skype syncing. He also seeks leave to appeal his sentence. A. Background [2] The appellant came to the attention of police when they received a tip from the National Center for Missing & Exploited Children (NCMEC), stating that an image of child pornography had been uploaded to Skype from his IP address by an account called “dave.j.dunham” on January 30, 2017. The police traced the IP address to Mr. Gauthier’s home. They searched the home and seized Mr. Gauthier’s phone and laptop. They found 18 images on his laptop and 121 images and 3 videos on his phone. The police also found records of graphic Skype chats which formed the basis of the making child pornography charge. There was no dispute that the materials, including the chat messages, were child pornography. The issue at trial was identity: did the Crown prove that the appellant put the material on his devices? [3] The case against the appellant was circumstantial. The appellant lives with his partner, and at least one other person had lived with them in the few years prior to the charges. Neither his computer nor his cell phone were password protected. The evidence for the Crown rested on a post-arrest interview with the appellant; the evidence of Det. Sandor Illes, an internet child exploitation investigator with the Waterloo Regional Police Service; and the evidence of Det. Allison Laing, a retired computer forensic examiner with the Waterloo Regional Police Service. Det. Laing was qualified as an expert, although, due to certain procedural irregularities discussed below, the basis for her qualification and the scope of her expertise was confused. [4] At trial, the Crown sought to prove that only the appellant could have been responsible for the dave.j.dunham Skype activity and that the appellant possessed the contraband files on his devices. The defence attempted to raise a reasonable doubt by relying on evidence (a) that another person using a separate device could have been responsible for the evidence of illegal activity on the appellant's devices and (b) that the appellant was unlikely to have engaged in the illegal activity due to his presence in public places or proximity to other people at the time it occurred. To highlight the absence of exclusive opportunity, counsel pointed to the possibility of someone else's involvement but did not bring a formal third-party suspect application. [5] The specific grounds of appeal raised by the appellant are based on two underlying and related arguments. The first is that as a case about the possession and creation of digital contraband, much of the evidence was complex and highly technical, describing subjects like the automatic sending and syncing of media files, the ability of a Skype user to sync data across devices, the probative value of a router’s MAC address, falsifiability, and more. Some of this evidence was inadmissible to begin with and had the effect of obscuring gaps in the Crown’s offer of proof. [6] Second, the trial judge made a premature finding that the appellant had the exclusive opportunity to commit the offences, which drove his reasoning throughout the rest of his analysis. He was driven to this by his error in applying the third-party suspect test, which, as both parties agree, had not been argued. This, in the appellant’s view, effectively reversed the burden of proof. Having concluded at an early juncture that the appellant had an exclusive opportunity to commit the offences, the trial judge failed to fairly assess the appellant’s denial. Rather, the evidence about the appellant’s whereabouts and the absence of exclusive opportunity should have been part of the totality of the evidence the trial judge considered in his decision on whether the Crown’s offer of proof on each charge precluded any reasonable innocent explanation: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. Instead, he was left with no alternative but to reject or minimize evidence that was inconsistent with the inference of guilt he had already drawn. [7] The respondent submits that the trial judge understood the Skype syncing evidence and properly rejected the argument that the syncing could have been remotely effected. The respondent also submits that, while the case for the Crown was circumstantial, the only real issue was whether the appellant was the user of the Skype “dave.j.dunham” account found on his cell phone and laptop, and the evidence supporting this was overwhelming. This evidence included the fact that dave.j.dunham’s chat records included a number of biographical details that were consistent with the appellant. In addition, “Dunham” was Mr. Gauthier’s mother’s maiden name. The evidence of the expert was properly admitted and within her scope and expertise. The trial judge did not reverse the burden of proof or misapprehend the evidence. Even if there were errors, the circumstantial case was so overwhelming that the convictions should stand. [8] For the following reasons, I would allow the appeal and order a new trial with respect to the accessing, making available, and making counts, and an acquittal with respect to the possession count. I will address the grounds of appeal in turn. B. The decision below [9] After giving a brief overview of the facts, the trial judge discussed the legal principles involved. He directed himself on the principles set out in R. v. W.(D.) , [1991] 1 S.C.R. 742. In addition, he stated that the defence had “submitted that an alternative suspect, a former roommate” could have committed the offences. As a result, he determined that the test for a third-party suspect in R. v. Grandinetti , 2005 SCC 5, [2005] 1 S.C.R. 27, and R. v. Grant , 2015 SCC 9, [2015] 1 S.C.R. 475, applied. He did not discuss the Villaroman case in his reasons. [10] The trial judge summarized the defence as resting upon the following five “pillars”: 1. The appellant did not have exclusive opportunity to access, possess or distribute the child pornography on the two devices; 2. The emails that he provided as exhibits could only have been produced at his place of employment and therefore establish that he was at work and not at home on January 30; 3. The cell phone records provide evidence that he was in his office making calls and therefore not at home on January 30; 4. He was in public settings when the majority of the other downloads were made and therefore could not and would not have been using his cell phone or laptop during those times; and 5. He is a credible witness who should be believed or at least his evidence should raise a reasonable doubt. [11] After rejecting each pillar of the defence, the trial judge concluded that the Crown had proven its case beyond a reasonable doubt: Given the evidence presented by the Crown and in particular the testimony of Detectives Laing and Illes, I find that the Crown has proven beyond a reasonable doubt that Garrett Gauthier is one and the same person as david.j.dunham. Even though this is a circumstantial case, I cannot come to any other [rational] conclusion other than that Mr. Gauthier committed these offences. C. Issues on appeal [12] The appellant raises four arguments on his conviction appeal which I will consider in turn: 1. The trial judge relied on inadmissible evidence from the Crown’s expert about the functioning of Skype technology, or alternatively, failed to properly consider and limit the scope of her evidence; 2. The trial judge applied the wrong legal test and reversed the burden of proof; 3. The trial judge misapprehended the evidence of identity and opportunity; and 4. The trial judge’s verdict on the possession charge was unreasonable. [13] On his appeal of his four-year concurrent sentences on the possessing and making available counts, the appellant submits that the trial judge committed errors in principle and that the resulting sentences were disproportionate, harsh, and excessive. D. Analysis (1) Inadmissible evidence on the functioning of Skype technology [14] According to the appellant, the trial judge erred in admitting Det. Laing’s evidence as an expert witness, because she was insufficiently independent of the investigation and because key parts of her evidence exceeded the scope of her expertise. This second error was compounded by a failure to define and or limit the scope of her evidence to her expertise, which set the groundwork for further errors in the approach to and consideration of the evidence at trial. [15] The respondent, on the other hand, takes the position that Det. Laing’s evidence was properly admitted and that the trial judge did not err in reversing his earlier ruling that she was not sufficiently independent of the investigation. There was no issue with the scope of Det. Laing’s evidence; rather it was well understood. She was permitted to give both expert opinion evidence and technical fact evidence based on her specialized knowledge in the area of “computer examination, data analysis, computer and cell phone forensic analysis and data retrieval.” Moreover, the Crown submits, her evidence was within the scope of this specialized knowledge and expertise. To the extent she provided evidence about the operation of Skype, this evidence was largely elicited by the defence and benefited the appellant. [16] The trial began with a voir dire on the qualifications of the Crown’s expert, Det. Laing. The Crown initially sought to qualify her as an expert to “provide evidence relative to computer examination, data analysis, computer, and cell phone forensic analysis and data retrieval .” The defence challenged her qualifications on the basis that she was not sufficiently independent. During submissions, the Crown argued that Det. Laing’s testimony was essential to prove the mens rea of the charged offences. [17] On the charges before the court, that meant that the Crown had to prove that Mr. Gauthier knowingly uploaded the files (making available), that he knew the files were on his devices (possessing), that he knowingly viewed or transmitted child pornography to himself (accessing), and that he personally wrote the chat messages (making). [18] After hearing Det. Laing’s testimony on the voir dire and the parties’ argument, the trial judge issued a ruling disqualifying her because she was not sufficiently independent to testify as an expert. However, his ruling was based on a misapprehension of the facts surrounding her contact with Det. Illes and the investigative team. The trial judge based his independence conclusion on the finding that Det. Laing had discussed the investigation with Det. Illes and seen his work product and conclusion that the appellant was dave.j.dunham in May 2017 before she completed her initial forensic report. However, these discussions took place in May 2018, well after she had completed her initial forensic report. [19] After this ruling, the Crown advanced an alternative argument for the admissibility of her testimony: that Det. Laing was a lay witness with specialized knowledge of forensic computer analysis. [20] On the third day of trial, the trial judge reversed his ruling disqualifying Det. Laing due to his misapprehension of the facts. After this ruling, the Crown said it sought to elicit only specialized knowledge lay evidence, not expert opinion. The trial judge did not indicate whether he was permitting Det. Laing to give expert opinion or lay evidence based on special knowledge. Nor did he delineate the scope of the matters about which she could testify. In short, the basis upon which her evidence was admitted was never clarified. [21] On appeal, the appellant argues both that Det. Laing should not have been permitted to testify at all either because she was not sufficiently independent or because, in any event, critical parts of her evidence (particularly in relation to Skype) were beyond the scope of her expertise and specialized knowledge. (i) The principles [22] An expert’s independence and impartiality goes to both admissibility and weight: White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45. There is a two-step test to determining the admissibility of expert opinion evidence: White Burgess , at paras. 22-24. The first step involves an inquiry into whether the evidence meets the threshold requirements for admissibility: White Burgess , at para. 23; R. v. Abbey , 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The second step is a gatekeeping step, where the judge must balance “the potential risks and benefits of admitting the evidence”: White Burgess , at para. 24. [23] An expert witness owes a duty to the court to be fair, objective and non-partisan: White Burgess , at para. 46. In order to meet the threshold requirement, the expert must be able and willing to carry out her duty to the court. The threshold requirement is “not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it”: White Burgess , at para. 49. Concerns about an expert’s independence and impartiality are also relevant at the gatekeeping stage: White Burgess , at para. 54. [24] A trial judge’s gatekeeping role, however, does not end when the admissibility inquiry is over. It is critical for a trial judge to be alive to the continuing gatekeeper role throughout the trial and to be conscious of what is and is not evidence properly before the court: R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 722, at para. 46. As part of the ongoing gatekeeper role, the trial judge must ensure that an expert’s testimony “stays within the proper bounds of his or her expertise”: Sekhon , at para. 47. (ii) Application to the case [25] I would reject the appellant’s argument that the trial judge should not have permitted Det. Laing to testify because she did not meet the independence requirement. The trial judge had made a simple error and once the error was brought to his attention, he stated that this was determinative of his opinion and reversed his ruling. He was entitled to do so. That decision was justifiable on the evidence and there is no reason to interfere with it on appeal. [26] A problem, however, arose from the trial judge’s failure to delineate and to monitor the scope of her testimony, and particularly, her evidence on remote syncing and Skype as it emerged in the course of her testimony. [27] In cross-examination, Det. Laing was asked technical questions about the operation of Skype. When asked about specific Skype settings on the appellant’s computer, she admitted that she was “not an expert in Skype.” Later in the cross-examination, she was asked about the nature of Skype syncing: Q.      The possibility of individual A being able to engage in Skype activity on his or her computer; individual B, who’s also synched to that same Skype account may not know what individual A is doing, if individual B’s computer is not on. And the witness had indicated that’s possible. [I]f my individual B a month later, two months later logs onto the computer and goes on to Windows and I’m going on the basis that the box is ticked that Skype automatically comes up, all the content of A’s Skype communications will be picked up on B’s computer, won’t it? A.      So if you’re, if you’re asking me whether once B then logs on to their account and it’s connected to the server and it syncs, then yes. [28] Defence counsel then asked, if individual A uploaded a photograph to Skype that synced onto individual B’s device, whether the image would have appeared to have been uploaded from individual B’s device as well: Q.      Okay. And let me ask you this, if, if an image had been sent, let’s stay with that scenario, A had uploaded an image from the Skype account to another location, would it appear that the image had been uploaded from both devices? Do we see uploading, because they’re both synced, would it appear that they’ve both been uploaded or uploaded from both devices? A.      I don’t know. [29] Det. Laing then articulated an untested theory about how the data would appear on each device: A.      I’m, I’m having – wouldn’t have tested this, but I would think there would be a file path where you’re acquiring this from each device that would help identify where it’s coming from, but I don’t know. Det. Laing’s evidence on the possibility of remote syncing and the different file paths is discussed in more detail on the misapprehension of evidence issue. [30] The Crown’s position is that Det. Laing was giving evidence within her expertise because she was giving evidence about the forensic analysis and data retrieval and not about Skype’s functioning. With respect, given the fact that the heart of the defence was that the appellant had not personally uploaded any contraband or operated the dave.j.dunham account during the material times, the issue of remote uploading and syncing across devices with the same Skype account was a live issue. As the Crown notes, the syncing function was key to the appellant’s defence. The very general basis for Det. Laing’s expertise – “computer examination, data analysis, computer and cell phone forensic analysis and data retrieval” – says nothing about social media platforms and, in particular, Skype. Det. Laing, by her own admission, was not an expert in Skype. [31] I would allow this ground of appeal. While the trial judge did not err in declining to exclude Det. Laing’s evidence on the basis that she lacked independence, he erred in failing to limit the scope of her evidence in relation to Skype. In the circumstances of this case, I am unable to conclude that the case against the appellant was so overwhelming that conviction was inevitable in the absence of this evidence. Although that disposes of the appeal, I will address the other grounds because they were fully argued before us in the course of the appeal. (2) Exclusive opportunity and burden of proof [32] A core component of the defence at trial was that someone else was responsible for the illegal activity. This person had access to the appellant’s devices, which were not password protected, at some point in the past and logged on to the dave.j.dunham Skype account during this time. As a result, the photos and videos were synced onto the appellant’s devices via Skype. The implication of this defence is that the person responsible for the illegal upload on January 30 would not have had to be in the appellant’s home and on his laptop to effect the upload. [33] After setting out the W.(D.) test early in his reasons, the trial judge went on to say that “an alternative suspect”, Mr. Collins, who had been a roommate of Mr. Gauthier and his partner, was a person who could have committed the offences. He stated that: In order for a court to consider a ‘third party suspect’ there must be a sufficient connection between the third party and the crime. As stated by Karakatsanis J. in R. v. Grant, 2015 SCC 9 at para 24, “evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection.” [34] The trial judge then stated that there must be an “air of reality” to trigger the consideration of whether or not the offences were committed by a third party, citing Grandinetti . [35] It is common ground that the trial judge mistakenly referred to the Grandinetti test when the Villaroman analytical framework applies. The Crown, however, argues that this was of no moment because the trial judge actually applied the Villaroman test. [36] The defence sought to raise a doubt by identifying reasonable inferences inconsistent with guilt and evidence capable of undermining the Crown’s claim of exclusive opportunity. In making the argument, the defence emphasized its position that there was a reasonable possibility that Mr. Collins or others were implicated in the illegal activity. The defence did not suggest that Mr. Collins had a motive or propensity to commit the crime. It was understood that counsel was not advancing a third-party suspect defence. [37] On appeal, the appellant argues that applying the Grandinetti framework effectively reversed the burden of proof because applying the Grandinetti test limited, from the outset of the analysis, the range of potentially innocent explanations for the evidence of illegal activity on the appellant’s devices, while the Villaroman test precludes conviction on circumstantial evidence if there is another reasonable explanation inconsistent with guilt. This court has allowed appeals from conviction in cases where the trial judge has misunderstood the approach to circumstantial evidence and implicitly required the defendant to explain what happened. This is reinforced by the trial judge’s statement in the course of his explanation for rejecting the appellant’s evidence: I appreciate that the Defence bears no onus to prove the innocence of Mr. Gauthier and that the onus of proof always rests with the Crown, but in my view, much of this evidence was problematic for the reasons I have set out and I find that it did not exonerate Mr. Gauthier as suggested by the Defence. [38] The respondent submits that, when the reasons are read as a whole, the trial judge did apply the Villaroman framework. Deference is owed to the trial judge’s conclusion that there is no reasonable alternative inference to guilt. The trial judge’s reference to the third-party suspect test is of no moment and, if it was an error, it was a harmless one. Although he cited the Grandinetti “air of reality” test at the outset, the trial judge did not mention it again in his reasons. He considered all of the evidence, including the defence evidence, and eventually found that the only rational conclusion was that the appellant committed the offence. Although his use of the word “exonerate” is not perfect, when the reasons are read as a whole, it is clear that the trial judge properly applied the burden of proof. The trial judge concluded his analysis with the statement that he found that “the Crown has established beyond a reasonable doubt that neither Mr. Collins, Mr. Alexander nor a person unknown were operating the account david.j.dunham Skype account. By process of elimination, that leaves only Mr. Gauthier.” (i) The principles [39] A trial judge’s reasons are to be read as a whole and should not be microscopically examined or dissected: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37; R. v. C.L.Y. , 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11. That said, it is not enough to cite the correct rules if they are not given substantive effect: see e.g. R. v. Smith , 2020 ONCA 782, at para. 16. [40] It is trite to say that the presumption of innocence and the duty of the Crown to prove guilt beyond a reasonable doubt form the golden thread of criminal law: R. v. Oakes , [1986] 1 S.C.R. 103, at p. 120. One consequence of the principle of proof beyond a reasonable doubt is that, in cases resting upon circumstantial evidence, the trier of fact should consider other reasonable inferences inconsistent with guilt: Villaroman , at para. 37. This is because of the danger that a trier of fact may fill in the blanks or bridge gaps in the evidence “to support the inference that the Crown invites it to draw”: Villaroman , at para. 26. (ii) Application to the case [41] The starting point of the trial judge’s reasons was the Grandinetti air of reality test, which effectively required the defence to show that a particular identifiable person (Mr. Collins) had a sufficiently strong connection to the offences to meet the air of reality test and justify serious consideration. This set the stage for the risk of an improper shifting of the burden of proof to the accused because, once the trial judge concluded that Mr. Collins could not have committed the offences, that left the appellant as the remaining possible perpetrator. The defence evidence was considered against this backdrop. [42] In considering Mr. Gauthier’s defence that he did not have an exclusive opportunity to commit the offences, the trial judge commented that the complex criminal case could be seen very simply: When one looks objectively at all of the evidence, logically there can be only three people who could possibly have accessed, possessed and distributed the child pornography on Mr. Gauthier’s cell phone and laptop. They are Khary Alexander, Stephen Collins and Garrett Gauthier. [43] All parties agreed that Mr. Alexander, Mr. Gauthier’s partner, could not have committed the offences for reasons that are not pertinent to this appeal, except to say that the trial judge properly considered the evidence on the point and agreed. This left only Mr. Collins as a potential “third party”. [44] Mr. Gauthier testified that Mr. Collins had unrestricted access to his laptop which was not password protected, and that his roommates used his laptop. [45] The trial judge then turned to consider whether the person responsible for the child pornography found on the appellant’s devices was Mr. Collins or Mr. Gauthier. Mr. Gauthier’s evidence was that Mr. Collins had been a roommate between October 2014 until December 2016. The trial judge found that the dave.j.dunham account had been created in order to disguise the identity of the real user. Given that Dunham was Mr. Gauthier’s mother’s maiden name and few people would have known that, it was logical to conclude that Mr. Gauthier created it. [46] Moreover, the account was created on May 25, 2012, over two years before Mr. Collins began living with Mr. Alexander and the appellant. The chat records in evidence for the dave.j.dunham account dated back to November 2, 2015. The appellant had a Skype account that was set up in his own name in April 2010. This account had last been logged on to on November 28, 2015. There was approximately one month of overlap in the use of the two accounts. [47] By January 30, 2017, Mr. Collins had moved out and was apparently living in Newfoundland. The trial judge concluded that Mr. Collins could not have been at the appellant’s home at the time of the upload. [48] The trial judge also rejected Mr. Gauthier’s evidence that on a number of occasions, which coincided with times that pictures and videos were created, downloaded, uploaded, or accessed on his devices, he was in public places or involved in doing other things such that he could not have engaged in these activities, observing that: In every venue … we witness people on their phones. It is not uncommon for these individuals to be communicating with a variety of others and ‘reaching out’ or ‘staying connected.’ Therefore, to suggest that Mr. Gauthier may not have been briefly engaged on his phone because he was at a restaurant or a social get together does not recognize the way we now live. [49] The trial judge found that had Mr. Collins been the one to set up the dave.j.dunham account, he would have discovered the Skype account that was still being used by Mr. Gauthier. Moreover, the trial judge expressed the view that it defied common sense to believe that Mr. Gauthier, an engineer, would not have noticed this earlier. That left Mr. Gauthier as the sole person who could have committed the offences. [50] The trial judge’s approach reflects a failure to clearly apply Villaroman . His reference to the of test from Grandinetti risked shifting the burden of proof. At the same time, the trial judge was well aware that the Crown had to prove its case beyond a reasonable doubt. He correctly articulated the three steps of W.(D.) and applied those steps. He rejected the appellant’s evidence, finding it inconsistent and self-serving. He stated, after dismissing the five “pillars” of the defence, that the evidence as a whole did not leave him with a reasonable doubt. There was, as the Crown argues, significant circumstantial evidence implicating the appellant. Nevertheless, setting out the Grandinetti third party suspect framework at the outset set the stage for an unfair assessment of the Villaroman test which appeared to place an unfair burden on the appellant. This concern was exacerbated by the trial judge’s comment that the evidence did not “exonerate” the appellant. [51] The narrow question is whether, against such a backdrop, the failure to clearly apply Villaroman in these circumstances is a fatal error that requires a new trial. The respondent submits that given the circumstantial evidence in this case, this court should apply the curative proviso . This would not be appropriate in this case because the error was compounded by misapprehension of the evidence, to which I now turn. (3) Misapprehension of the evidence (i) The principles [52] The principles governing the misapprehension of evidence are well known and articulated in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) and adopted in R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732. [53] In Morrissey , at p. 221, Doherty J.A. wrote that a misapprehension of evidence will result in a miscarriage of justice when the misapprehension relates to the substance of material parts of the evidence and the errors play an essential part in the reasoning process: When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [54] In Lohrer , at para. 2, Binnie J. affirmed Morrissey and stated that the misapprehension must go to the substance, rather than the detail, of the evidence and that the error must play an essential part in not just the narrative of the judgment but in the reasoning process resulting in a conviction. (ii) Application to the case [55] The trial judge committed one central misapprehension of the evidence before him. He assumed that the upload on January 30 had to have happened from the appellant’s home. Part of the basis for rejecting Mr. Collins as the possible operator of the account was that Mr. Collins had moved to Newfoundland, and the trial judge stated that it was absurd to suggest that Mr. Collins was the perpetrator: In my view, it is beyond credulity to suggest that Mr. Collins returned from Newfoundland without telling Mr. Gauthier or Mr. Alexander and then entered into their home when they were not there and without their permission, to access the Skype account and download child pornography onto the laptop. That simply defies logic. I should make a finding that Stephen Collins was not there that day . If he was not, he could not have been the individual who was using the dave.j.dunham account on earlier occasions. [Emphasis added.] [56] Having rejected the possibility that there might have been other persons involved, this made the appellant’s version of events (such as his position that he was at work or in social situations at times when the dave.j.dunham account was chatting or when child pornography was accessed) presumptively suspect. The trial judge rejected the appellant’s evidence on this issue and found that it did not raise a reasonable doubt. The trial judge dismissed this possibility as far-fetched, noting that it was impossible to believe that a computer-savvy engineer such as the appellant would not have noticed that his Skype application had effectively been used by someone else for a few years. [57] The appellant argues that the trial judge misapprehended the evidence on this point. The evidence elicited by both the Crown and the defence was that information on Skype could be synced across devices. The trial judge’s assumption that the January 30 upload originated from the appellant’s home disregarded this evidence. This caused him to overlook a reasonable innocent explanation for the inculpatory evidence on the appellant’s devices. [58] The Crown argues that the trial judge’s finding that the upload happened at Mr. Gauthier’s home was supported by the evidence. For example, the Crown states that someone must have logged in to Skype on the appellant’s computer in the appellant’s home on January 30 for the images to have synced. In addition, the Crown argues that evidence related to IP and MAC addresses supports the trial judge’s finding. [59] However, it is not clear from Det. Laing’s testimony that this evidence supports the inference that the January 30 upload happened in the appellant’s home. First, the Skype settings do not suggest that someone had to have been at the appellant’s computer on January 30. As Det. Laing testified, Skype technology syncs across devices. However, all that is required is that Skype be open and logged in. Nothing in Det. Laing’s testimony on the Skype settings, including the fact that Skype was not set to start upon start-up, suggests that someone had to open and log in to Skype on January 30. Second, Det. Laing’s evidence related to the IP address and MAC address associated with the laptop only suggests that the laptop was at the appellant’s home and connected to the internet on January 30. This evidence does not say anything about whether the January 30 upload originated from the appellant’s laptop or whether it originated from another device. [60] The only evidence on the record that would support the conclusion that the upload happened from the appellant’s home was the NCMEC tip and Det. Laing’s evidence that there would be different file paths that would enable her to identify which device an upload originated from. [61] The NCMEC tip cannot be relied on as evidence in this case. First, it was hearsay and there was no argument at trial that it should be admitted on the basis of any exception to the hearsay rule or the principled exception. Second, there was no evidence, aside from Det. Laing’s, about whether Skype or NCMEC would be able to differentiate between the original upload and a remotely synced download. This is not something that could form the basis of judicial notice, particularly during this period of rapidly developing and highly complex computer technology. [62] Det. Laing’s evidence on this point was equivocal and confusing and given her admitted lack of expertise on Skype syncing as discussed above, inadmissible. She began her answer with the statement that she had not tested this theory, but that she thought that there would be different file paths that would allow her to identify where an upload originated. The fact that even Det. Laing was unsure about this subject underlines the extent to which this area is “beyond the ken” of fact finders. By disregarding (without discussing) the possibility of remote access by someone who had access to the appellant’s devices some time ago, it is not clear that the trial judge understood that this could have been a technical possibility. (iii) Conclusion on misapprehension of evidence [63] The trial judge made a number of findings that allowed him to conclude that the appellant was the operator of the dave.j.dunham Skype account. He found that the dave.j.dunham Skype account was created on the appellant’s laptop, and not on some other device. He drew this inference because the corresponding email address (dave.j.dunham@gmail.com), which was not used for any purpose other than to create the dave.j.dunham Skype account, was logged in on the appellant’s computer. He found it illogical to suggest that someone would have logged in to that email account on the appellant’s computer some time after the creation of the Skype account. He also found that there was powerful circumstantial evidence that the appellant was the operator of the dave.j.dunham Skype account, including that a number of biographical details that dave.j.dunham had discussed in Skype chats also described the appellant. It is possible that the sum total of this evidence would have enabled a trier of fact to draw the inference that the appellant was the operator of the dave.j.dunham Skype account. [64] However, the trial judge’s unstated assumption that the January 30 upload originated in the appellant’s home was not supported by any admissible evidence at trial and was a misapprehension of the evidence. This assumption played an essential part in his train of reasoning. It was one of the reasons that the trial judge concluded that Mr. Collins could not have committed the offences. Having so concluded, the trial judge viewed the appellant’s potentially exculpatory evidence with a great deal of skepticism. As a result, there was a miscarriage of justice. (4) Unreasonable verdict on the possession count [65] The appellant argues that the conviction for possession was unreasonable on the evidence. All but two of the files containing child pornography were located in various cache folders on the appellant’s laptop and cell phone. According to the appellant, presence in cache folders is only enough to establish accessing, not possession. [66] The final two files were found on the appellant’s laptop in a folder titled “My Skype’s received files”. This folder is not a cache folder. The appellant argues that Det. Laing’s testimony on this folder was confused and contradictory and that her evidence strayed outside of her expertise. [67] The appellant argues that, because the trial judge never undertook an offence-by-offence analysis, it is unclear exactly what evidence he considered when he convicted on the possession charge. Absent admissible evidence from Det. Laing on the location of these two files, there is not enough evidence capable of supporting a conviction on possession. [68] The Crown concedes that the evidence with regards to all but two of the files does not establish possession. However, the conviction was supported by the evidence because Det. Laing’s evidence was that the two remaining images had to have been purposefully downloaded. In addition, the Crown states that possession of the written pornography in Skype chat logs is sufficient to ground a conviction for possession of child pornography. [69] A key question at trial was what, if anything, the user of Mr. Gauthier’s devices would have had to do for the illicit images to end up in the “My Skype’s received files” folder. If deliberate human action was required to “accept” a file transfer before it could end up in the folder, then Det. Laing’s evidence could support a finding that the appellant had deliberately taken possession of those images. However, Det. Laing’s testimony was confused on this point. [70] When asked, Det. Laing first testified that a user would have to do something to accept a download before a file would appear in the folder: A.      In the, “My Skype’s received files,” this is a default location that Skype has for file transfers and download, it’s the download location. The user can, in the settings for Skype, change where those files would be downloaded and saved. This is still set to the default location as, “My Skype received files.” When the file is, file transfer is accepted by the user, this is the directory the file is saved to by the computer. Q.      All right, so when someone is in Skype, just describe for us what’s happening in Skype with the user that, that results in these two particular images winding up in that received files sub-folder. A.      The user has accepted a file transfer from another Skype user and it’s being downloaded into this location. [71] Later, in cross-examination, Det. Laing denied that “accepted” had any meaning in relation to file transfers: Q.      You have indicated to us a number of different instances where what you can say is an image appears to have been accessed, that’s as opposed to being accepted. A.      What’s accepted mean in your…. Q.      Well, accepted as in – well, I don’t know if the right term would be downloaded, saved, manners of that sort, I think I’d seen the term accepted with respect to exchange of some images. I may be using the word wrong. [Crown counsel]:   The file transfer you’re talking about? Q.      Or a file transfer. The term accepted, is that a term that, that has relevance in the world of file transfers from your standpoint? A.      Not, I’m not recognizing that, no. [72] Although her initial testimony suggests that a Skype user would have knowledge of the contents of the Skype received files folder, by virtue of the fact that a received file would have to be “accepted”, her later statement that “accept” had no meaning raises questions about what user action was required for documents to end up in the Skype folder. That, in turn, raises questions about whether a user would have knowledge of the contents of the folder or whether files could end up in the folder automatically, without the knowledge of the computer user. Det. Laing’s evidence on the mechanics of the Skype folder is even more questionable given that she, by her own admission, was not an expert in Skype technology. [73] Considered as a whole, her evidence does not clearly establish that the appellant deliberately “accepted” the files and therefore had the requisite knowledge to establish possession. Moreover, as I have already outlined, her evidence as to the functioning of Skype was inadmissible because she recognized that she did not know how it worked. Without this evidence, there was no evidence that the appellant knew that he had physical custody of the images. Knowledge of possession is an essential element of possession: R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16; R. v. M.N. , 2017 ONCA 434, at para. 37. There was no other evidence on the point. [74] I reject the Crown’s argument that possession of the Skype chats would be enough to sustain the possession conviction. First, my conclusions on the other grounds of appeal apply to the Skype chats as well. Second, this theory of liability was not advanced at trial, nor was it specified on the information. The information stated that the possession charge was based on “digital images and videos”, not written material. I would not amend the information to include the written material in the possession count, as suggested by the Crown in oral argument. I am not persuaded that doing so at this stage would not occasion prejudice to the appellant. (5) The curative proviso [75] The respondent argues that the evidence against the appellant was overwhelming and that this court should apply the proviso. [76] I disagree. While the circumstantial evidence may have appeared to be strong, it was not overwhelming. The heart of the defence was the argument that the contraband on the appellant’s devices could have been remotely transferred. Much of the expert evidence on that subject was inadmissible as it was beyond, on Det. Laing’s own admission, the scope of her expertise. Without Det. Laing’s evidence on key aspects of the technology, including whether the January 30 upload happened from the appellant’s home and how the files ended up on the devices (which was essential to the possession conviction), it cannot be said that the case against the appellant was so overwhelming that conviction was inevitable . Given the confusion around the third-party suspect Grandinetti test and the circumstantial evidence test in Villaroman , as well as the fact that, as set out above, the inadmissible evidence of Det. Laing played a significant role in the trial judge’s decision, I am unable to reach that conclusion. That said, it is possible that the circumstantial case could have given rise to a conviction in the absence of these errors. For that reason, I would allow the appeal and order a new trial with respect to the accessing, making available, and making child pornography counts. I would order that an acquittal be entered with respect to the possession count as there was no admissible evidence that the appellant knew that those images were on his devices. E. Disposition [77] For these reasons, I would allow the conviction appeal and order a new trial with respect to the accessing, making available, and making child pornography counts. I would order that an acquittal be entered with respect to the possession count. It is not necessary to consider the sentence appeal. Released: April 9, 2021 “P.L.” “A. Harvison Young J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Glegg, 2021 ONCA 100 DATE: 20210219 DOCKET: C65555 Strathy C.J.O., Watt and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Robert Glegg Applicant (Appellant) Leo Adler, for the appellant Jeremy D. Tatum, for the respondent Heard: November 12, 2020 by videoconference On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated June 20, 2018, with reasons reported at 2018 ONSC 3861. Watt J.A.: [1] The appellant is a private informant. He laid an information before a justice of the peace in which he alleged that his ex-wife committed three indictable offences: abduction, perjury, and disobeying a court order. [2] A pre-enquete was scheduled to determine whether process should issue to compel the appellant’s ex-wife to appear to answer the charges. [3] The appellant prepared a detailed memorandum to support his case for the issuance of process at the conclusion of the pre-enquete. He retained counsel to assist him at the hearing. Both appeared at the pre-enquete. [4] An agent of the Attorney General (Crown counsel) also appeared at the pre-enquete. Before the justice of the peace heard the allegations of the appellant or the evidence of any witnesses, Crown counsel directed the clerk of the court to enter a stay of proceedings on the information laid by the appellant. [5] The appellant filed a Notice of Application in the Superior Court of Justice. He sought an order setting aside the stay of proceedings entered by Crown counsel and directing the justice of the peace to conduct the pre-enquete. [6] The respondent invoked Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) SI/2012-7 (“ CPR ”) in answer to the appellant’s application. On the hearing, the motion judge dismissed the appellant’s application relying on Rule 34.02 to do so. [7] The appellant appeals. He asks that we set aside the decision of the motion judge and the stay entered and direct that a pre-enquete be held to determine whether process should issue. [8] These reasons explain why I would dismiss the appeal. The Background Facts [9] The issues raised on appeal do not require any elaboration of the circumstances underlying the offences the appellant alleges his ex-wife committed. A brief summary of the procedural history of the case will suffice. The Information [10] On March 27, 2018 the appellant laid an information before a justice of the peace. The appellant alleged that his ex-wife, from whom he separated in 2001, had committed three indictable offences in the State of Florida and this province at various periods between 2014 and 2016. Preparation for the Pre-enquete [11] The appellant retained counsel to assist him in presenting his case for the issuance of process on the information. Counsel provided the local Crown with a copy of the materials on which the appellant relied and responded to questions asked and concerns expressed by the Crown about the manner in which the appellant proposed to prove the abduction allegation. The Pre-enquete [12] About six weeks after a justice of the peace received the information laid by the appellant, the pre-enquete was commenced before a designated justice of the peace. [13] At the outset of the pre-enquete, before the justice of the peace heard the allegations of the appellant or the evidence of any witnesses, Crown counsel directed the clerk of the court to enter a stay of proceedings on the information under s. 579(1) of the Criminal Code of Canada . [14] Crown counsel explained his reasons for directing entry of the stay. The allegation of abduction was legally unsustainable in view of the litigation history between the appellant and his ex-wife. The count of disobeying a court order under s. 127 of the Criminal Code could not be established because “other legislation expressly provides another punishment or mode of proceeding” thus barring conviction under the section. And there was no reasonable prospect of conviction on the count alleging perjury. [15] In addition, Crown counsel explained that an essential witness on all counts, the appellant and accused’s daughter, would likely suffer “significant trauma” if required to testify. There was a lengthy history of parental conflict to such an extent that she obtained a court order permitting her to withdraw from parental control. [16] The justice of the peace did not conduct the pre-enquete once Crown counsel had directed entry of the stay of proceedings. No process issued. The Notice of Application [17] Assisted by counsel, the appellant applied to the Superior Court of Justice for an order setting aside the stay of proceedings and directing the conduct of the pre-enquete. The appellant alleged that entry of the stay was not authorized by s. 579(1) of the Criminal Code , constituted a breach of his rights under s. 7 of the Canadian Charter of Rights and Freedoms , and was an abuse of process. The remedial provisions mobilized in support of the application included ss. 24(1) of the Charter , ss. 52(1) of the Constitution Act, 1982 , and the extraordinary remedy of mandamus . [18] The Crown opposed the application and sought its summary dismissal under Rule 34.02 of the CPR . The Decision of the Motion Judge [19] The motion judge heard submissions on whether the appellant’s application should be dismissed without a hearing under Rule 34.02. After reserving his decision, he released written reasons dismissing the appellant’s application on the basis that it had no reasonable prospect of success. In doing so, he invoked Rule 34.02. [20] The motion judge was satisfied that the standard to be applied on the Crown’s application under Rule 34.02 is “a high one”. He accepted that the direction that a stay be entered was part of the core discretion of the Crown. The exercise of this discretion was reviewable only on the ground of flagrant impropriety in its exercise. In this case, the motion judge observed, the Crown had provided detailed reasons for directing entry of the stay. The proposed prosecution was not in the public interest and there was no reasonable prospect of conviction on any of the proposed counts. [21] In the result, the motion judge was satisfied that there was no reasonable prospect that the appellant’s application could succeed. Rule 34.02 was engaged and the appellant’s application was dismissed without a hearing. The Grounds of Appeal [22] The appellant takes issue with the decision of the motion judge. He says that the motion judge erred: i. in invoking Rule 34.02 to dismiss his application to set aside the stay and order the conduct of the pre-enquete; and ii. in failing to hold that the Crown had no authority to enter a stay under s. 579(1) before hearing the allegations of the appellant and the evidence of witnesses because there was no “accused” and proceedings had not been “commenced” as required by s. 579(1). Ground #1: The Applicability of Rule 34.02 [23] The specific focus of this ground of appeal is the applicability of Rule 34.02 of the CPR . However, the standard set out in that rule, “there is no reasonable prospect that the application can succeed”, requires consideration of the merits of the substantive errors alleged in the interpretation of s. 579(1) of the Criminal Code . The Arguments on Appeal The Appellant’s position [24] The appellant contends that the motion judge properly stated, but erred in applying, Rule 34.02. The rule sets a rigorous standard. Much like a motion to strike a claim in civil proceedings, Rule 34.02 is a tool that must be used with care. If there is a reasonable prospect that an application will succeed, the rule should not be invoked. The approach should be generous and err on the side of permitting a novel, but arguable, application to proceed. [25] In this case, the prevailing jurisprudence has failed to correctly interpret the scope of the Crown’s authority to direct a stay of proceedings under s. 579(1) at the pre-enquete. A hearing on the merits is required to resolve this issue. [26] The appellant submits that at the outset of a pre-enquete, before the allegations of the informant and the evidence of witnesses have been heard, the Crown cannot, as it did here, enter a stay of proceedings. Until a determination to issue process has been made, there is no “accused”, and proceedings have not “commenced”. [27] In addition, the motion judge applied the wrong test in failing to set aside the stay. The standard for a court to overturn the Crown’s exercise of discretion is not “flagrant impropriety”, rather it is less demanding. The Respondent’s position [28] The respondent contends that the motion judge properly invoked Rule 34.02 to dismiss the appellant’s application to set aside the stay and direct that a pre-enquete be held. This result could equally have been achieved under Rule 6.11 of the CPR or in the exercise of the authority discussed in R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 38. [29] The essence of the appellant’s position is that the Crown could not direct entry of the stay before the justice had conducted the pre-enquete and had decided to issue process. This is because of the wording of s. 579(1) of the Criminal Code and the provisions of s. 11(d) of the Crown Attorneys Act, R.S.O. 1990, c. C.49. This same argument has been repeatedly rejected by this court in unequivocal terms that operate as binding precedent. The provisions of the Crown Attorneys Act do not mandate otherwise. [30] A decision by the Crown to direct entry of a stay of proceedings under s. 579(1), the respondent contends, is a core element in the exercise of prosecutorial discretion. It is equally so whether its entry is in a public or private prosecution. Entry of a stay has to do with a decision about whether a prosecution will proceed or continue, against whom, and on what charge. This decision occupies the core of the sovereign authority peculiar to the office of the Attorney General. [31] Within this core of prosecutorial discretion, the courts cannot interfere except in circumstances of flagrant impropriety amounting to an abuse of process. This requires evidence that the Crown’s conduct is so egregious that it undermines the integrity of the judicial process or results in trial unfairness. As for example, where it is the product of improper motive or grounded in bad faith. [32] In this case, the respondent says, the appellant has failed to provide any evidentiary foundation to put into play an arguable case of abuse of process. That the appellant disagrees with the decision of Crown counsel to direct entry of a stay moves no freight. The presumption that the exercise of prosecutorial discretion was bona fide , as Crown counsel explained when directing entry of the stay, remains in place. The motion judge did not err in failing to set aside the stay. The Governing Principles [33] Several principles inform our decision on this ground of appeal. Some have to do with the applicability of Rule 34.02 to the decision under review. Others are concerned with the scope of s. 579(1) of the Criminal Code , in particular, with the temporal limits on its exercise. The remainder relate to the reviewability of stay decisions made by the Crown. Rule 34.02 [34] Rule 34, entitled, Hearing of Pre-trial and Other Applications , is contained in Part III, Trial Proceedings and Evidence , of the CPR . Under Rule 34.02, the presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application. The assessment is based on the materials filed on the application. If the judge is satisfied on the basis of those materials that there is no reasonable prospect of success, the judge may dismiss the application without further hearing and inquiry. [35] Rule 34.02, headed Preliminary Assessment of Application , is in these terms: The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry. [36] Rule 34.02 is essential to effective and fair litigation. It promotes two goals: efficiency and correct results. Dismissing applications that have no reasonable prospect of success unclutters the proceedings, weeds out the hopeless, and draws the attention of the decision-makers where it should be – ensuring that those with a reasonable prospect of success proceed to adjudication on their merits: R. v. Imperial Tobacco Canada Ltd ., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19. [37] The procedure involved where Rule 34.02 is invoked is informal, else it become antithetical to its purpose. When summary dismissal is sought, the affected party should put its best foot forward. The standard to be met by the party invoking the rule is demanding. This necessarily follows from the language “no reasonable prospect that the application could succeed”: R. v. Papasotiriou-Lanteigne , 2017 ONSC 5337, 141 W.C.B. (2d) 157 at para. 19. The Authority to Stay Proceedings [38] Section 579(1) of the Criminal Code authorizes the Attorney General or instructed counsel to direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed. Once the direction is given, the proceeding must be stayed. [39] The authority to enter a stay of proceedings is a core element of prosecutorial discretion. The authority extends to both public and private prosecutions: Krieger v. Law Society of Alberta , 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46. The role of the private prosecutor is parallel to, but not in substitution for, the role of the Attorney General. In the context of a pre-enquete, s. 507.1 makes this clear. Where the two roles come into conflict, the role of the Crown is paramount: Re Bradley et al and The Queen (1975), 24 C.C.C. (2d) 482 (Ont. C.A.), at p. 490. Judicial Review of Stays Entered under Section 579(1) [40] Prosecutorial discretion is entitled to considerable deference. But it is not immune from all judicial oversight. Within the core, such as the discretion to direct a stay of proceedings, decisions are reviewable only for abuse of process: R. v. Anderson , 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 48; Krieger , at para. 32; R. v. Nixon , 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 31. [41] Abuse of process refers to Crown conduct that is egregious and seriously compromises the fairness of trial proceedings or undermines the integrity of the justice system: Anderson , at paras. 49-50. The burden of proof for establishing abuse of process lies on the party who claims it. The standard of proof required is proof on a balance of probabilities: Anderson , at para. 52. See also, R. v. O’Connor , [1995] 4 S.C.R. 411, at para. 69. The Pre-enquete [42] The function of the pre-enquete is to determine if the process of the court, whether a summons or warrant, should issue to compel the person named in the information to attend before a justice to answer to the offences charged in the information: R. v. McHale , 2010 ONCA 361, 256 C.C.C. (3d) 26, at paras. 10-11, 45, leave to appeal refused, [2010] S.C.C.A. No. 290; R. v. Vasarhelyi , 2011 ONCA 397, 272 C.C.C. (3d) 193, at para. 37, leave to appeal refused, [2011] S.C.C.A. No. 470. This decision must be based on the allegations of the private informant and any evidence adduced at the hearing: Vasarhelyi , at para. 37. [43] Under s. 507.1(3) of the Criminal Code , the Attorney General, without being deemed to intervene in the proceedings, is entitled to: i. a copy of the private information in Form 2; ii. reasonable notice of the pre-enquete hearing; iii. the opportunity to attend the pre-enquete; iv. the opportunity to cross-examine witnesses; and v. the opportunity to call witnesses and present evidence at the hearing. See, McHale , at para. 47. See also, s. 11(d) of the Crown Attorneys Act and Bradley , at p. 490. The Authority to Direct Entry of a Stay at the Pre-enquete [44] Section 579(1) of the Criminal Code permits the Attorney General or instructed counsel to direct entry of a stay “at any time after any proceedings in relation to an accused or defendant are commenced…”. The term “proceedings” is not defined. Modified by the indefinite adjective “any”, it would seem to take in a vast expanse of proceedings. Likewise, “in relation to an accused”. Nor is “accused” defined. [45] The statutory language “at any time after any proceedings in relation to an accused…are commenced” has been interpreted to mean “any time after an information has been laid”: McHale , at paras. 85-87, 89; Vasarhelyi , at para. 49; R. v. Pardo (1990), 62 C.C.C. (3d) 371 (Que. C.A.), at pp. 373-74; Klippenstein v. R ., 2019 MBCA 13, 152 W.C.B. (2d) 551, at para. 7, leave to appeal refused, 2019 CarswellMan 783; R. v. Linamar Holdings Inc ., 2007 ONCA 873, 76 W.C.B. (2d) 120, at paras. 9-10, leave to appeal refused, [2008] S.C.C.A. No. 33. Entry of a stay need not await a determination to issue process. The Principles Applied [46] I would not give effect to this ground of appeal. [47] To begin, I am satisfied that what the Crown sought in response to the appellant’s motion to quash the stay and order the conduct of the pre-enquete fell within the sweep of Rule 34.02. [48] Among the jurisdictional sources invoked by the appellant was the authority of a judge of the superior court of criminal jurisdiction to grant orders in lieu of the prerogative writs of certiorari (to quash the stay as entered without jurisdiction) and mandamus (to compel the conduct of the pre-enquete). These remedies are available on applications under Rule 43 of the CPR . [49] The Crown’s response to the appellant’s application was to seek its summary dismissal under Rule 34.02. The judge who heard the Crown’s application was the motion judge on the appellant’s application, thus “the presiding judge” for the purposes of Rule 34.02. Accordingly, the summary dismissal authority was available to the motion judge in connection with the appellant’s original application which was an “other application” for the purposes of the rule. The remedy afforded by Rule 34.02 – summary dismissal – could be granted if, but only if, the Crown met the standard required on the basis of the materials filed on the original motion. [50] Although Rule 34.02 appears in Part III of the CPR , Trial Procedure and Evidence , its language signals a broader application. This is consistent with the terms “other application” in the Rule. The term “application” is exhaustively defined in Rule 1.03 as “a proceeding commenced by notice of application in Form 1”. It is of no moment whether the enabling legislation or other authority describes the proceedings as an application or a motion. The term “proceeding” includes an application or other hearing. [51] This construction of Rule 34.02 is also in harmony with the general principle underlying the CPR expressed in Rule 1.04 and the jurisprudence advocating use of the case or trial management power to weed out unmeritorious claims by summary process: see, Cody , at para. 38. [52] Satisfied that the provisions of Rule 34.02 were available to the motion judge at the instance of the Crown, I will now explain why I am satisfied that the motion judge did not err in dismissing the appellant’s application in the exercise of his authority under Rule 34.02. [53] The appellant’s application, reduced to its essentials, sought two orders. He asked that the stay directed by the Crown be set aside. And he sought an order that a pre-enquete be held to determine whether process should issue to compel his ex-wife to answer to the charges contained in the information. [54] To set aside the stay, the appellant argued that s. 579(1) of the Criminal Code does not permit entry of a stay at the direction of the Crown before a determination has been made at the conclusion of the pre-enquete that process should issue. Amongst other things, this is because there is no “accused” until that time and proceedings have not been “commenced”. [55] Binding jurisprudence in this court and persuasive jurisprudence from courts of equivalent jurisdiction in other provinces hold that a stay may be entered, as here, prior to the justice hearing the allegations of the informant and the evidence of witnesses: McHale , at paras 89-90; Vasarhelyi , at para. 49; Linamar , at para. 10; Klippenstein , at para. 7; Pardo , at pp. 373-74. [56] In an information laid by a private informant and received by a justice under s. 507.1(1), an informant swears that they have reasonable grounds to believe that a named person committed one or more specified offences. In plain terms, the informant accuses the named person of having committed one or more crimes. In ordinary parlance, such a person would be described as an “accused”, a person accused of crime. [57] The pre-enquete falls within the language in s. 579(1) of “any proceedings in relation to an accused”. And, self evidently, there are proceedings that have been “commenced”. [58] The appellant advances a second basis upon which he says the summary dismissal of his application reflects error. This has to do with the standard the motion judge applied in failing to set aside the entry of the stay as a flawed exercise of the Crown’s discretion under s. 579(1). [59] This claim of error also fails. [60] The claimant must establish a proper evidentiary foundation before a court embarks on an inquiry into the exercise of prosecutorial discretion. This respects the presumption that prosecutorial discretion is exercised in good faith. It also accords with the principle that the prosecutorial authorities are not required to provide reasons for their decisions, absent evidence of bad faith or improper motives: Anderson , at para. 55. [61] In this case, Crown counsel provided lengthy reasons for entry of the stay. The record is bankrupt of any evidence of bad faith or improper motives. [62] For these reasons, I would reject the first ground of appeal. Ground #2: The Timing of Entry of the Stay [63] The second ground of appeal alleges that the motion judge erred in failing to set aside the stay because it was entered prematurely at the outset of the pre-enquete. [64] This claim of error was an essential component of the first ground of appeal. It was rejected there, as it is here, on the basis of binding authority in this province and persuasive authority from courts of equivalent jurisdiction in other provinces. Nothing more need be said. Disposition [65] For these reasons, I would dismiss the appeal. Released: February 19, 2021 “GRS” “David Watt J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gray, 2021 ONCA 86 DATE: 20210210 DOCKET: C67523 Pepall, Tulloch and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Anthony Gray Appellant Ewan Lyttle and Meaghan McMahon, for the appellant Jeremy Tatum, for the respondent Heard: August 20, 2020 by video conference On appeal from the sentence imposed on September 20, 2019 by Justice Norman D. Boxall of the Ontario Court of Justice. Tulloch J.A.: A. INTRODUCTION [1] The appellant seeks leave to appeal his sentence, and if leave is granted, appeals his sentence imposed for his convictions for armed robbery and wearing a disguise with intent to commit an indictable offence. [2] The appellant pleaded guilty. He was sentenced to six months’ imprisonment for the robbery count, three months’ imprisonment for the wearing a disguise with intent count, to be served concurrently, and 12 months’ probation. [3] The offences were committed when the appellant was 21 years old. At the time of sentencing, the appellant was 24 years old and a first-time offender without any prior criminal record. His sentence appeal is based on two main grounds. [4] First, the appellant submits that the sentencing judge failed to properly apply the principles relevant when sentencing Indigenous offenders, set out in R. v. Gladue , [1999] 1 S.C.R. 688, as the judge permitted denunciation and general deterrence to improperly overwhelm the analysis. The appellant claims that this error led to the arbitrary conclusion that no jail sentence less than six months was appropriate in the circumstances. [5] Second, the appellant submits that there has been a new development in the law since the appellant’s sentencing, allowing this court to impose a conditional sentence on the robbery count. Due to R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311, a recent decision from this court striking down s. 742.1(c) of the Criminal Code , conditional sentences are now available for offences where the maximum penalty is 14 years or life imprisonment, including robbery. The appellant effectively argues that this development entitles him to a conditional sentence. [6] For the following reasons, I would not interfere with the sentence imposed. However, I would allow the appeal for the limited purpose of permanently staying the execution of the appellant’s remaining period of incarceration. B. FACTS [7] On August 5, 2016, at approximately 11:24 a.m., the appellant entered a branch of the Bank of Montreal in Ottawa. His face and head were covered by a shirt. He walked over to a teller, produced an eight-inch knife, and, while brandishing the weapon at the teller, demanded money. The appellant made these threats in the presence of other patrons, including a mother and her two young children. He managed to flee the scene with $5,000. [8] The robbery went unsolved for quite some time. On August 11, 2016, the police distributed a media release to try to identify the perpetrator of the robbery. However, it was not until January 2018, almost a year and a half after the robbery, that the appellant was arrested. At that time, the ex-girlfriend of the appellant’s brother identified the appellant, leading to his arrest. [9] In October 2018, the appellant pleaded guilty to the offences of robbery and wearing a disguise, two weeks before his three-day trial on November 13, 2018. A Gladue report and a pre-sentence report were prepared for the sentencing hearing, which took place in August 2019. The imposition of the sentence was adjourned to September 2019. [10] At the sentencing hearing, the appellant, through his lawyer, filed various materials documenting his positive attributes and post-plea rehabilitative steps. In addition, both the pre-sentence report and the Gladue report were presented to and relied on by the sentencing judge. [11] The Crown sought a global sentence of one-year incarceration, followed by probation. [12] The defence requested a sentence which the sentencing judge described as “nuanced”. They sought either a non-custodial or intermittent sentence on the robbery charge, and a conditional sentence followed by probation for the offence of wearing a disguise. [13] The defence pointed to the significant progress that the appellant had made since the offence; his work history; and the fact that at the time of the offence, he was affected by a drug addiction that he received treatment for by the time of sentencing. The appellant also had a close and supportive relationship with his mother. In addition, he was remorseful, had made full restitution, and was willing to participate in a sentencing circle, although the victims were not interested. [14] The sentencing judge imposed a sentence of six months’ incarceration for the robbery count and three months’ concurrent for the wearing a disguise count, followed by 12 months’ probation. He gave a very thorough decision in which he fully considered the applicable principles of sentencing. He recognized that as the appellant was an Indigenous offender, he had to be sentenced with reference to the Gladue principles and s. 718.2(e) of the Criminal Code . The sentencing judge also observed that a fit and appropriate sentence must be guided by the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. He then specifically addressed the mitigating and aggravating factors and crafted a sentence which was responsive to the circumstances of the appellant. In arriving at what the sentencing judge deemed a fit sentence for the appellant on the robbery offence, he made the following observations: There is no minimum sentence for robbery, so in - at least, in theory, I could consider a suspended sentence and a period of probation. Although a blended sentence of probation on the robbery and a conditional sentence on wearing disguise is theo - theoretically available, in my view, it would be an error in law to impose a conditional sentence on a lesser-related offence, and one cannot do this simply to avoid parliament’s intention. A pure suspended sentence on - on both counts is - is theoretically available, but in my view, suspending sentence on both counts and just placing the accused on probation would not address the seriousness of the offences, or the principles of sentences ; and, in fact, defence counsel has essentially conceded this by suggesting a blended sentence - includes a - a conditional sentence. It’s indicated there is no minimum sentence for robbery. However, I find that it would be an error in law to impose a suspended sentence and a period of probation, given that this was a bank robbery, and it involved a weapon. Thus, the sentence must involve custody in - in some fashion . Parliament has directed that it cannot be conditional, with respect to the robbery offence. I might add that, if a conditional sentence was available for the robbery, I would seriously consider it; in my view, specific deterrence is not a factor in this case, and there are many mitigating circumstances. And, deterrence, in some cases, can be met by a conditional sentence. However, Parliament has directed that a conditional sentence is not available for a robbery. [Emphasis added.] [15] Prior to the appeal hearing, the appellant introduced two motions for fresh evidence, dated June 17, 2020 and August 18, 2020. These motions seek to adduce evidence relevant to the appellant’s post-sentence rehabilitative efforts and steps taken to live a pro-social life. Both motions included the consent of the respondent to the admission of this fresh evidence. As a preliminary conclusion, I am satisfied that this evidence satisfies the criteria for the admission of such evidence set out in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775: see also R. v. D.V.B. , 2010 ONCA 291, 100 O.R. (3d) 736, at para. 97, leave to appeal refused, [2011] S.C.C.A. No. 207. C. ISSUES [16] The appellant effectively seeks leave to appeal his sentence on two bases: 1) Did the sentencing judge err by failing to properly apply the Gladue principles and permitting denunciation and general deterrence to improperly overwhelm the analysis, leading to the arbitrary conclusion that no jail sentence less than six months was appropriate in the circumstances; and 2) Given this court’s recent decision in Sharma , is the appellant now entitled to a conditional sentence? D. ANALYSIS (1) Did the sentencing judge err by improperly permitting denunciation and general deterrence to overwhelm the analysis? [17] The appellant does not argue that the sentence was unfit. Instead, he submits that the sentencing judge erred in principle in his application of the Gladue principles, by overemphasizing the principles of denunciation and general deterrence. He argues that this error enables this court to alter the sentence on appeal. [18] He contends that, had the sentencing judge properly applied the Gladue principles, he would have more heavily considered restorative justice principles and imposed a lower sentence. [19] I disagree. The sentencing judge correctly weighed the relevant sentencing principles. He made proper reference to both the circumstances of the appellant and the Gladue principles as codified in s. 718.2(e) of the Criminal Code . [20] For this court to intervene in the sentence imposed, the appellant must establish that the sentence imposed is either demonstrably unfit, or that the judge made an error in law or principle that impacted the sentence. The seminal case of R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 10-11, 39-41, 44, 48-51, and 53, sets out the grounds upon which an appellate court may intervene and vary a sentence. Trial judges are afforded a wide discretion to impose what they deem to be an appropriate sentence. Sentencing is a fact-specific exercise, and each case must be considered contextually. This necessarily means that considerable deference is afforded to the sentencing judge. [21] Among the underlying principles that guide any sentencing analysis are proportionality and parity. However, when sentencing an Indigenous accused, the analysis must be informed by s. 718.2(e) of the Criminal Code . This section is a remedial provision requiring a unique method of analysis when determining a fit sentence for an Indigenous accused, as set out in Gladue . [22] When a judge crafts a sentence for an Indigenous accused, s. 718.2(e) requires them to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community … with particular attention to the circumstances of Aboriginal offenders. [23] Section 718.2(e) directs sentencing judges to “pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case”: R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75. A sentencing judge must, when crafting a sentence for an Indigenous accused, consider all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code , including those codified in s. 718.2(e): Ipeelee , at para. 51. [24] However, s. 718.2(e) and the associated Gladue framework do not detract from the fundamental sentencing principle of proportionality: R. v. Altiman , 2019 ONCA 511, 56 C.R. (7th) 83, at para. 78, citing R. v. F.H.L. , 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 47. Similarly, the principle of parity in sentencing maintains relevance in the Gladue context, although courts should ensure that a formalistic approach to parity does not undermine the remedial purpose of s. 718.2(e): Ipeelee , at para. 79. [25] The principle of proportionality mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, or what is also known as the moral blameworthiness of the offender: Ipeelee , at para. 37. The principle of parity underpins the integrity of the judicial sentencing process and preserves “fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences”: R. v. Rawn , 2012 ONCA 487, 294 O.A.C. 261, at para. 18. [26] When sentencing an Indigenous accused, s. 718.2(e) and the Gladue principles provide “the necessary context for understanding and evaluating the case-specific information” particular to the accused (emphasis in original): Altiman , at para. 77, citing F.H.L. , at para. 39. [27] Section 718.2(e) requires a different method of analysis when sentencing Indigenous offenders. However, it does not necessarily require a different result or that a sentencing judge always prioritize principles of restorative justice when sentencing an Indigenous offender. This court made this clear in F.H.L. , at para. 47: Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”. A different method of analysis does not necessarily mandate a different result . Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation. As this court recognized in [ R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 34], at para. 42: To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most important weight to the principle of restorative justice . It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. [Citations omitted; emphasis added.] [28] In my view, the sentencing judge carefully considered the applicable principles of sentence as they pertained to the appellant’s individual circumstances and the offences for which he was sentenced. The sentencing judge recognized that, while the appellant is an Indigenous first-time offender with positive post-offence rehabilitative efforts, he still had to consider the principles of proportionality and parity within the context of the Gladue analysis. [29] The appellant committed a violent and serious crime. He robbed a bank during daylight hours, wearing a disguise, and while brandishing an eight-inch knife. He threatened a bank teller in the presence of patrons of the bank, including a mother and her two small children. He was also able to escape with $5,000 and was not apprehended until almost a year and a half later. This was an offence that required the sentencing judge to factor into his analysis the principles of general deterrence and denunciation. [30] While the appellant’s circumstances suggested that specific deterrence was not a factor relevant to his sentence, the trial judge recognized that the needs of the community at large required a sentence that would denounce the conduct of the offence and serve to deter others who may be inclined to commit similar offences in the future. These were relevant and important considerations at the time of sentencing. [31] The sentencing judge found that, after considering general deterrence, denunciation, and the need for a sentence proportionate to the gravity of the offence, a period of incarceration was necessary. This was so, notwithstanding the relevance of the Gladue principles and the particular circumstances of the appellant. This was a reasonable finding in the circumstances. The offence of robbery is one of the most serious offences within the Criminal Code . This offence mandates sentences up to a maximum of life. Any robbery offence is inherently violent, as the very definition of robbery connotes an offence of theft coupled with an act of violence. There are different degrees of robbery, and this one was serious. [32] This trial judge recognized that his task was to carefully balance the circumstances of the appellant with the applicable sentencing principles in order to arrive at a fit and appropriate sentence. He recognized that one of the principles of sentencing was that he was obliged to consider the principle of proportionality. He stated this at the outset of his reasons. [33] The sentencing judge directed his mind to the circumstances of the appellant and the appellant’s Indigenous status. Notwithstanding the seriousness of the charge, the sentencing judge’s task was to engage in an individualized analysis of the offender before him and the offence for which he was being sentenced. He recognized and accepted mitigating factors which inured to the appellant’s benefit. He concluded that specific deterrence was not a concern, given that the appellant’s post-offence and post-sentence conduct was positive and that he was unlikely to reoffend as a result. He noted that he was not bound by a sentencing range, and that he must consider the circumstances of the offence, the offender, and the needs of the community where the offence occurred. [34] The sentencing judge specifically considered the appellant’s Indigenous status. He referenced his judicial duty to give effect to the remedial purpose of s. 718.2(e) of the Criminal Code and to respond to the over-incarceration of Indigenous offenders. It is this very analysis which led the sentencing judge to consider a sentence in the low reformatory range, and to impose a sentence of six months’ incarceration. In his reasons, he stated the following: I’ve concluded there must be a custodial sentence for the robbery . [U]nfortunately, I cannot conclude on these facts that I can impose an intermittent sentence. As I said, had a conditional sentence [been] available for the robbery proper, I would certainly consider it strongly. However, given general deterrence and denunciation, and proportionality of the gravity of the offence, even accepting the reduced moral responsibility of this offender; when one takes a look at the offence involved here, which is a bank robbery with a weapon ; in my view, a custodial period that would be required for robbery exceeds that available under an intermittent sentence, which is restricted to a term of 90 days. However, I must go on to consider what is the minimum sentence I can impose - the least restrictive sentence I can impose, that satisfies all the sentencing principles and factors I’ve outlined, considering importantly, his plea of guilty, the Gladue factors, the fact that he is a first offender, the positive pre-sentence report, the restitution his counsel is in possession of, and undertaken to pay, and very importantly, that there is no need for specific deterrence in this case . I’ve concluded, after considerable thought, over a number of weeks not without some difficult moments, that the appropriate sentence and the shortest sentence that I can impose in this particular case, in compliance with my duty and responsibility to impose the least restrictive sentence, but yet, makes sure the sentence does meet the principles [and] purposes of sentence, generally, is one of six months’ incarceration . [Emphasis added.] [35] I see no error in this analysis that would warrant interference by this court. (2) Does this court’s decision in Sharma entitle the appellant to a conditional sentence in this case? [36] The appellant also contends that in light of this court’s recent decision in Sharma , this court should impose a conditional sentence, an option that was unavailable to the sentencing judge. He argues that as this court held in Sharma that s. 742.1(c) of the Criminal Code is unconstitutional, a conditional sentence is now available for the robbery charge and should be imposed as the appropriate sentence. He proposes a conditional sentence of one year on the robbery count, followed by one year of probation on the wear disguise count. [37] As indicated above, the sentencing judge was clearly mindful of his responsibility pursuant to s. 718.2(e). After weighing the relevant factors of sentencing pertaining to the appellant, who he recognized was a first-time Indigenous offender, he concluded that a non-custodial disposition would not adequately meet the objectives of sentencing. [38] The sentencing judge considered a non-custodial sentence, as this was the initial request by the defense in their sentencing submissions. He concluded that a non-custodial sentence was not appropriate due to the circumstances of this offence. [39] He also observed that a conditional sentence was not available to the charge of robbery. He went on to opine that if a conditional sentence was available, he would “seriously consider it”. While the sentencing judge stated that he would seriously consider a conditional sentence if it was available, he did not say that he would have imposed a conditional sentence if it was in fact available. [40] When considering the intersection of the Gladue principles, as codified in s. 718.2(e), and the availability of conditional sentences to Indigenous offenders who have committed serious offences, the case of R. v. Wells , 2000 SCC 10, [2000] 1 S.C.R. 207, is instructive. [41] In Wells , the appellant was convicted of sexual assault, and sentenced to 20 months’ incarceration. He appealed his sentence and sought to convert it to a conditional sentence, on the basis that the sentencing judge did not take account of the considerations required by s. 718.2(e). [42] Iacobucci J. summarized the central issues raised by this appeal at para. 25: Section 718.2(e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where the paramount sentencing objectives are denunciation and deterrence . More specifically, this appeal must determine whether the trial judge properly applied s. 718.2(e) when sentencing the appellant. [Emphasis added.] [43] In dismissing the appeal, the court made the following observations, at para. 30: If the judge's preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2( e ) when deciding the appropriateness of a conditional sentence. The judge's consideration of s. 718.2( e ) at this stage does not displace the need to take into account all of the other principles and objectives set out in ss. 718 to 718.2 . Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage . As was indicated in Gladue , the application of s. 718.2( e ) does not mean that a sentence will automatically be reduced , since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII. [Emphasis added; citations omitted.] [44] The fact that a conditional sentence is available does not mean that one will necessarily be imposed. The sentencing judge is still required to conduct an individualized analysis, considering all the relevant principles of sentencing and weighing the appropriate factors to determine a fit sentence. [45] I accept that with the recent ruling in Sharma , it is now open for this court to consider the appropriateness of a conditional sentence for the appellant. [46] I also accept that in all cases involving the sentencing of an Indigenous accused, judges are directed by s. 718.2(e) of the Criminal Code to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community. [47] In this case, the sentencing judge was of the view that because of the nature and circumstances of this particular offence, an actual custodial sentence was warranted, even when the Indigenous status of the appellant was factored into the sentencing analysis. [48] When applying s. 718.2(e) to determine the appropriate sentence to be imposed, the court must consider sanctions “that are reasonable in the circumstances and consistent with the harm done to victims or to the community” (emphasis added). The available sanctions must be reasonable in the circumstances. Not all sanctions, though available, are reasonable in the circumstances of the offence and the offender. [49] The trial judge recognized that there was no minimum sentence for the robbery, and in theory, he could consider a non-custodial sentence such as a suspended sentence and a period of probation. However, he concluded that because this offence was a bank robbery involving a weapon, he was obliged to impose a custodial sentence. [50] In the circumstances of this case, this was a conclusion that was open to the sentencing judge. In Gladue , the court recognized that even where Indigenous offender are concerned, “there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant”: at para. 78. That court went on to say that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing“: at para. 79. While I acknowledge that this latter statement was subsequently qualified in Wells , at para. 50, and Ipeelee , at paras. 84-85, and 87, I nevertheless find it instructive in considering the present issue. [51] The court in Gladue was also clear that “s. 718.2 (e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal.” Instead, it is a “direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders” in reaching a fit sentence: at para. 88. [52] After considering the sentencing judge’s reasons, the applicable principles, the appellant’s fresh evidence, and this court’s decision in Sharma , I conclude that the sentencing judge’s decision is sound. I would not alter the sentence imposed, even after considering the newfound availability of a conditional sentence for robbery. [53] Accordingly, I would not give effect to this ground of appeal. E. CONCLUSION [54] Having determined that the sentence imposed at trial was fit, and that the sentencing judge did not commit any error in principle or law that had an impact on the sentence, I would not interfere with the sentence imposed. [55] However, I would allow the appeal for the limited purpose of permanently staying the execution of the appellant’s remaining period of incarceration. Almost two years have passed since the appellant was sentenced. He spent 27 days in custody between receiving his sentence and being released on bail pending appeal. He was released on bail pending appeal on October 16, 2019, and his time since his release has been without incident. [56] Most importantly, the fresh evidence indicates that the appellant has since had no trouble with the law and is living a positive and pro-social life. He has developed positive relationships with his mother, brother, and father. He started his own catering company and cooks on a volunteer basis for a charitable organization. The evidence indicates that the appellant is not consuming drugs. He has also started seeing a psychiatrist to address his underlying mental health issues and discuss how his drug addiction impacted his behaviour. [57] In my view, reincarcerating the appellant at this stage “would serve no genuine societal interest and is unnecessary to achieve the objectives of denunciation and general deterrence”: R. v. Owen , 2015 ONCA 462, 336 O.A.C. 95, at para. 62. Instead, those objectives can be met, without disrupting the appellant’s rehabilitative progress, by affirming the sentence initially imposed. Furthermore, the sentencing judge explicitly noted that specific deterrence was not relevant to the appellant, who in their view was not likely to reoffend. My view on the issue of reincarceration is strengthened when I consider the Supreme Court of Canada's guidance in Gladue . “The community is best protected if the [appellant] continues along [his] rehabilitative path”, and I would accordingly stay the remainder of his custodial sentence and substitute a total period of probation of two years: R. v. Smickle , 2014 ONCA 49, 317 O.A.C. 196, at paras. 18-20; R. v. Dufour , 2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11, 13, 17, and 29; Owen , at para. 63. [58] Finally, I would also impose a weapons prohibition order under s. 109 of the Criminal Code , for a period of ten years. Released: “S.E.P.” February 10, 2021 “M. Tulloch J.A.” “I agree. S.E. Pepall J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Griffith, 2021 ONCA 302 DATE: 20210507 DOCKET: C66830 Miller, Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Taylor Adam Griffith Appellant Marianne Salih, for the appellant Avene Derwa, for the respondent Heard: October 28, 2020 by video conference On appeal from the conviction entered on October 31, 2018 and the sentence imposed on January 11, 2019, with reasons reported at 2019 ONSC 358, by Justice Alfred J. O’Marra of the Superior Court of Justice. Jamal J.A.: A. overview [1] The appellant, Taylor Griffith, was convicted of offences related to the unlawful possession of a loaded semi-automatic handgun with a chambered round ready to fire and possession of crack and powder cocaine for the purpose of trafficking . He was sentenced to 6 years in prison and various ancillary orders, less credit for pre-sentence custody calculated at 22 months, requiring him to serve another 4 years and 2 months. He now appeals his conviction and seeks leave to appeal his sentence. [2] The main issue on the conviction appeal is whether the trial judge erred in dismissing an application to exclude the evidence of the handgun and drugs found on the appellant when he was searched incident to arrest. The trial judge found the police had objectively reasonable grounds to arrest the appellant in all the circumstances, including their previous observations of hand-to-hand transactions of suspected drug trafficking. He also held — and the Crown conceded — that the police breached the appellant’s right to counsel under s. 10(b) of the Charter by delaying his access to counsel for several hours while they executed search warrants at his apartment and storage locker. At the same time, the trial judge ruled that the police had case-specific concerns for officer safety and evidence preservation that justified delaying access to counsel until the search warrants were executed. The trial judge declined to exclude the evidence under s. 24(2) of the Charter . He also declined to reduce the appellant’s sentence because of the s. 10(b) breach. [3] For the reasons that follow, I would dismiss the conviction and sentence appeals. I agree with the trial judge that the police had objectively reasonable grounds to arrest the appellant and to search him incident to arrest. I also agree with the trial judge that the police breached s. 10(b) by delaying access to counsel, but as I explain below, I would find the breach to have been briefer than the trial judge found. The police were justified in delaying access to counsel while they executed the search warrants because of the case-specific concerns for officer safety that the trial judge himself found. This delay in accessing counsel therefore did not breach s. 10(b). However, the further unexplained delay in accessing counsel, of one hour and twenty minutes after the search warrants were executed, did breach s. 10(b). Despite this breach of s. 10(b) — which appears to have been unintentional and situation-specific rather than systemic — I would not exclude the evidence under s. 24(2) of the Charter . I also see no basis to interfere with the trial judge’s assessment that the s. 10(b) breach did not warrant a sentence reduction. B. background [4] The police received information from a confidential informant that the appellant was selling drugs on Eglinton Avenue West in Toronto in an area known to have drug trafficking problems. A team of four plain-clothes officers from the Major Crime Unit of the Toronto Police Service — Detective Constables Quinlan, Mignardi, McCartney, and Pollard — placed the appellant under surveillance. The officers were trained and experienced in drug investigations and had seen many street-level drug deals. They followed and watched the appellant on October 10, 11, 21, and 24, 2017. [5] The surveillance was challenging because the appellant jumped fences and habitually used alleyways rather than main streets. The officers perceived the appellant to be conscious of surveillance. D.C. Mignardi described his “head [as] always on a swivel”. October 10 [6] On October 10, 2017, D.C.s Mignardi and McCartney followed the appellant as he left a library on Eglinton Avenue West carrying a satchel. He went down a laneway, over a fence, and used a key to enter an apartment building. The officers were familiar with the apartment building because they had received complaints that some tenants allowed drug users to consume drugs in their units and they had made several drug arrests there. The landlord had even given the police a key to the building because of concerns about drug trafficking. D.C.s Quinlan and Mignardi testified that they had been in the building “a lot”. D.C. Quinlan said he had conducted three or four drug investigations there that led to arrests. October 11 [7] The next day, D.C. Quinlan went back to the building. He went to a third‑floor apartment that the confidential informant told the police that the appellant occupied and he saw the appellant leave the apartment. October 21 [8] On October 21, 2017, D.C. Mignardi monitored the appellant as he sat on a park bench in a parkette. She was about 20 meters away from the appellant and out of sight. The appellant was talking on his cellphone. She saw two men approach him on bicycles and interact with him for about 30 seconds. She recognized them both as suspected drug users and had seen them in the area — one of them daily, panhandling. She knew one of them lived in a house full of drug users because she had been in the house twice and had seen him inside with crack pipes and drugs scattered around. At first, the men on bicycles had their hands in their pockets and then completed a hand-to-hand transaction with the appellant, lasting “like a second”, in which their fists were slightly clenched, their hands met, and there was “sort of a … swap”. It was not a fist-bump, but a “sort of handshake where the palms swiped together”. D.C. Mignardi saw no money or drugs and heard no conversation. The two men then rode away in the direction they had come, and the appellant immediately got up and walked away. [9] D.C. Mignardi was convinced the two men had just bought drugs from the appellant. She had seen about 50 hand-to-hand drug transactions in her career. She had also just completed a drug-investigation training course the week before, including on what to look for in hand-to-hand transactions — it matched what she had just seen. [10] D.C. Quinlan came to assist D.C. Mignardi at the parkette. He was about 100 metres away. He saw the two men on bicycles ride by. He knew one of them by name as a suspected drug user because he had seized a crack pipe from him once before and often saw him panhandling. [11] D.C. Mignardi testified that she believed she now had grounds to arrest the appellant for drug possession and possession for the purpose of trafficking . The officers decided not to arrest the appellant that night, however, because they wanted to continue the investigation and planned to seek a search warrant. D.C. Mignardi testified that the police wanted to “see what [the appellant] was up to” and to learn “where he was keeping his product” and “if there was more product”. [12] The police continued to follow the appellant that evening. He went into a laundromat and came out carrying a garbage bag of clothes. They then followed him to a storage locker, which he left empty-handed after less than 20 minutes. October 24 [13] On October 24, 2017, D.C. Mignardi drafted two search warrant applications: one for the appellant’s apartment and one for the storage locker. The police planned to arrest him and then to execute the search warrants when they had him in custody. [14] The officers tracked down the appellant in mid-afternoon and saw him enter a John Howard Society building. They decided to arrest him based on the hand-to-hand transactions they had seen three days earlier. They tried to locate him in the building but could not find him. They then saw him leave the building carrying a bag and followed him into a laneway. After a brief struggle in which the appellant tried to escape, D.C.s McCartney and Mignardi arrested the appellant at 3:55 p.m. [15] During the struggle as the appellant was arrested, D.C. Mignardi saw a handgun in the waistband of his pants and seized it incident to arrest. It turned out to be a loaded semi-automatic handgun with a chambered round ready to fire and 11 more rounds in the magazine. [16] The police also searched the appellant’s bag incident to arrest and found over an ounce of crack and powder cocaine, $440 in cash, and his identification. [17] The officers called for a marked police cruiser so that the appellant could be videotaped as he was read his rights. He was placed in a marked cruiser at 4:00 p.m. At 4:03 p.m., the appellant was advised of his right to counsel, as recorded on the in-car camera. He was asked, “Do you want to call a lawyer now?” He replied, “Yes”, and told the officer the name of his lawyer. [18] The appellant was then transported to the police station. At 4:25 p.m., as he was being processed, an officer reminded the appellant of his right to counsel. The appellant reiterated that he wanted to speak to the lawyer he had named. The officer told the appellant that the police would try to contact his lawyer. [19] Meanwhile, the police executed the search warrants. They drove to the storage locker, which was about 15 minutes’ drive away, and searched it, beginning at 5:07 p.m. The search took just two minutes. They then took photographs and secured the scene. Next, they drove to the appellant’s apartment, and searched it from 5:50 p.m. until 6:20 p.m. They found nothing of consequence at either place. They then returned to the police station at 6:28 p.m. [20] At 7:40 p.m. — three hours and forty-five minutes after the appellant’s arrest and an hour and twenty minutes after the search warrants had been executed — the appellant was allowed to speak to his lawyer. At no time did the police explain to the appellant the reason for the delay in accessing counsel. C. The trial judge’s reasons [21] At the start of trial, the trial judge dismissed an application to exclude the evidence of the gun and drugs seized incident to arrest: R. v. Griffith , 2018 ONSC 6471. The trial judge ruled: (1) the police had objectively reasonable grounds to arrest the appellant, and thus did not violate his right not to be detained arbitrarily under s. 9 of the Charter ; (2) the warrantless search of the appellant was a lawful search incident to arrest, and thus did not breach his right against unreasonable search or seizure under s. 8 of the Charter ; and (3) the delay in accessing counsel until after the search warrants were executed breached the appellant’s right to counsel under s. 10(b) of the Charter . [22] The trial judge held, however, that the evidence should not be excluded under s. 24(2) of the Charter . He ruled: (1) the police conduct in delaying access to counsel and failing to inform the appellant of the reason for the delay, while not done in bad faith, was “serious misconduct” that favoured excluding the evidence; (2) the delay in accessing counsel “had minimal negative impact” on the appellant and there was “no causal or indeed temporal connection between the s. 10(b) breach and the evidence obtained”, which mitigated the impact of the breach on his Charter -protected interests; and (3) the evidence seized was reliable and crucial to the prosecution of very serious offences. Balancing the seriousness of the breach, the minimal negative impact on the appellant’s Charter -protected interests, and society’s interest in the adjudication of these offences on the merits, the trial judge ruled that the admission of this evidence would not bring the administration of justice into disrepute. [23] On the admission of the evidence, the appellant was found guilty. He was sentenced to a global sentence of six years in prison: four years for possession of a loaded prohibited firearm; one year consecutive for possession of crack cocaine and powder cocaine for the purpose of trafficking ; one year consecutive for breach of a firearms prohibition order; six months concurrent for breach of a probation order; and various ancillary orders. After pre-sentence custody credit calculated at 22 months, the appellant had 50 months left to serve. D. discussion [24] I will address the following four issues: 1. Did the police lawfully arrest the appellant and search him incident to arrest? 2. Were the police justified in delaying the appellant’s access to counsel? 3. Should the evidence have been excluded under s. 24(2) of the Charter ? 4. Did the trial judge err in his sentencing analysis? Issue #1: Did the police lawfully arrest the appellant and search him incident to arrest? (a) Overview [25] The appellant’s first ground of appeal asserts that the trial judge erred in concluding that the police had lawful grounds to arrest him based on what D.C. Mignardi saw in the parkette. He claims that because the police did not have lawful grounds to arrest him without a warrant or search him incident to arrest, his arrest violated s. 9 of the Charter and the search and seizure violated s. 8 of the Charter . As I will elaborate, I do not accept this submission. In my view, the police had lawful grounds to arrest the appellant and to search him incident to arrest. (b) The applicable principles [26] Section 495(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46, provides that a peace officer may arrest without warrant a person “who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”. [27] A lawful arrest requires the arresting police officer to have subjective reasonable and probable grounds to believe that an offence has been committed and those grounds must be justifiable from an objective viewpoint. The objective assessment depends on the totality of the circumstances relied on by the arresting officer, including the dynamics of the situation , as seen from the perspective of a reasonable person with comparable experience as the arresting officer: R. v. Storrey , [1990] 1 S.C.R. 241, at pp. 249-51; R. v. Lawes , 2007 ONCA 10, at para. 4; and R. v. Anang , 2016 ONCA 825, 367 C.R.R. (2d) 289, at para. 14. [28] The existence of reasonable and probable grounds is founded on the trial judge’s factual findings. Although such factual findings attract appellate deference, whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness: R. v. Shepherd , 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; Anang , at para. 13. (c) Application to this case [29] The appellant does not dispute that D.C. Mignardi had subjective reasonable and probable grounds to believe that an offence had been committed in the parkette. He claims, instead, that her subjective grounds were not justifiable from an objective viewpoint. He submits that her belief that she saw two drug transactions in the parkette rested on “unverifiable speculation”: she saw no drugs or money exchanged and nobody was investigated that night. He says that nothing the police had seen during their surveillance of him was incriminating: the appellant walking around alone his own neighbourhood and taking short cuts, sitting on a park bench alone, or briefly interacting with two men on bikes. [30] I do not accept this submission. The appellant’s argument focuses on each factor in isolation and ignores the trial judge’s factual findings on the totality of the circumstances relied on by D.C. Mignardi. Such an approach is wrong in law: see Lawes , at para. 4. The relevant factual findings of the trial judge include D.C. Mignardi’s training and experience and her knowledge of the participants in the transactions, which informed his conclusion that she had objectively justifiable reasonable and probable grounds to believe that the appellant had committed an indictable offence. The trial judge found: - D.C. Mignardi saw the three men engage in very brief hand-to-hand transactions, lasting less than 30 seconds, which did not appear to be a handshake or other greeting, with limited or no conversation. The trial judge summarized D.C. Mignardi’s evidence as being that the men extended “their arms with clenched fists as if holding something and then swiping or sliding their palms together”, which she believed based on her training and experience to be “exchanging money for drugs”. The two men on bikes immediately rode away in the same direction as they had come. The appellant walked off in the other direction. - D.C. Mignardi had been involved in several drug surveillance investigations and had seen about 50 hand-to-hand drug transactions in her career. She and D.C. McCartney had relevant training. - D.C. Mignardi had relevant knowledge about the three people she saw: (1) she and her colleagues had seen the appellant behave in a manner suggesting to them that he was conscious of police surveillance; (2) the appellant was linked to an apartment building that the police knew had drug issues, so much so the landlord had given the police a key to the building because of these concerns; and (3) she knew the two men on bikes as suspected drug users, and her colleague, D.C. Quinlan, knew one man by name as a suspected drug user. [31] The appellant relies on R. v. Brown , 2012 ONCA 225, 286 C.C.C. (3d) 481, as he did at trial, to support his claim that D.C. Mignardi lacked objectively justifiable reasonable and probable grounds to arrest him. As the trial judge noted, however, the facts in Brown were “quite different” from this case. In Brown , two police officers were on general patrol in a police cruiser. They had no prior knowledge of either of the participants in a suspected drug transaction on a street corner. One officer — but not the other — saw the suspected seller, the accused, extend his arm as if to hand over some drugs, but the suspected buyer did not reciprocate and instead walked away abruptly. On these facts, this court concluded that the officer’s observations did not “provide any objective basis upon which to believe that the two persons were engaged in a drug transaction”: at para. 15. [32] Here, however, the officers investigating the appellant had prior knowledge about him and the two suspected drug purchasers and they had had the appellant under surveillance for several days. On these facts, I see no error in the trial judge’s conclusion that D.C. Mignardi had reasonable and probable grounds to arrest the appellant without a warrant. A reasonable person standing in the shoes of D.C. Mignardi, with the same training and experience as her in investigating drug cases and seeing hand-to-hand transactions, and with the same knowledge of her surveillance of the appellant and what she had seen in the parkette, could in all the circumstances reasonably believe that drug transactions had occurred. The arrest was therefore lawful and the police did not breach s. 9 of the Charter . [33] It follows from my conclusion that the appellant’s arrest was lawful that the search incident to that arrest was also lawful. The appellant does not argue otherwise. The police could search the appellant incident to arrest to locate and preserve evidence and to ensure the safety of the police, the public, and the appellant — particularly when D.C. Mignardi saw a handgun in the waistband of his pants as he was arrested: see Cloutier v. Langlois , [1990] 1 S.C.R. 158, at p. 186; R. v. Golden , 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 74-75; and R. v. Nolet , 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49. The police thus did not breach s. 8 of the Charter . Issue #2: Were the police justified in delaying the appellant’s access to counsel? (a) Overview [34] The second issue is whether the police were justified in delaying the appellant’s access to counsel. As I will elaborate, both at trial and on appeal, the Crown conceded that the breach of s. 10(b) of the Charter lasted from when the appellant was arrested, at 3:55 p.m., to 7:40 p.m. — a delay of three hours and forty-five minutes, or one hour and twenty minutes after both search warrants had been executed at 6:20 p.m. At the same time, the Crown sought to uphold the trial judge’s factual finding that the police had case-specific concerns for officer safety and the preservation of evidence that justified them delaying access to counsel until after the searches were completed. The Crown appeared to view these case‑specific concerns as mitigating the overall seriousness of the breach. The appellant agreed with the Crown as to the duration of the s. 10(b) breach, but disagreed that there were any case-specific concerns for officer safety or the preservation of evidence that justified the delay in accessing counsel. [35] I agree with the Crown that the trial judge could find on the evidence that the officers had case-specific concerns about officer safety that justified delaying access to counsel until they completed the searches. Based on that finding, however, I would hold that the initial delay until the completion of the searches at 6:20 p.m. did not infringe s. 10(b). The subsequent delay in implementing the right to counsel, from 6:20 p.m. until 7:40 p.m., did infringe s. 10(b). (b) Applicable principles [36] Section 10(b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right” (emphasis added). [37] The jurisprudence has confirmed that s. 10(b) requires the police to inform a detainee of the right to speak to counsel immediately (an “informational” duty), and if that right is exercised, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel (an “implementational” duty): R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Bartle , [1994] 3 S.C.R. 173, at pp. 191-92; R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25; and R. v. La , 2018 ONCA 830, 366 C.C.C. (3d) 351, at para. 38. [38] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel: Suberu , at para. 42; Rover , at para. 26; and La , at para. 38. Such concerns must be case-specific rather than general concerns applicable to virtually any case: Rover , at para. 27; La , at paras. 39-40. As Doherty J.A. explained in Rover — decided almost a year after the execution of the warrants in this case — the police may delay access to counsel “only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: Rover , at para. 27. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover , at para. 27; La , at para. 40. (c) Application to this case [39] At trial, Crown counsel (not appellate counsel) conceded that the appellant’s “section 10(b) rights had been breached by a suspension of his rights until the execution of [the] search warrants”. The Crown argued that the police were justified in delaying the appellant’s s. 10(b) rights because of case-specific concerns for evidence preservation and police safety and submitted that the court should consider this in assessing the seriousness of the breach under s. 24(2). Defence counsel at trial (not appellate counsel) did not suggest a different analytical approach. Before this court, appellate Crown counsel adopted the same approach, stating in her factum that “the police decision to delay the appellant’s access to counsel until the search warrants were executed constituted a violation of s. 10(b)”. Counsel for the appellant agreed. [40] The trial judge seems to have adopted the Crown’s approach. He found that the police had case-specific concerns that justified delaying the appellant’s right to counsel “in consideration of police/public safety and the preservation of evidence”. He summarized D.C. Quinlan’s testimony as being that there were “heightened concerns regarding police safety given the arrest involved an accused who possessed a loaded firearm, and they did not know if the apartment they were to search, where they suspected drugs to be present, was occupied by others”. The trial judge also found that “there was a concern about the possible destruction of evidence”. Later in his reasons, however, the trial judge ruled that the delay in accessing counsel constituted “serious misconduct”. [41] In my view, the trial judge and the parties proceeded on the mistaken assumption that a justified delay in accessing counsel breaches s. 10(b). That is not the law. The correct approach is reflected by this court’s decisions in Rover and R. v. Leonard , 2020 ONCA 802. In Rover , Doherty J.A. took no issue with the analysis of the trial judge in that case that concerns for officer safety and evidence preservation could justify delaying access to counsel: at paras. 18, 26-27. He added, however, that the police must have case-specific evidence that the police turned their minds to the circumstances of the case before delaying access to counsel: at paras. 32-33. More recently, in Leonard , this court confirmed that a reasonable delay in accessing counsel justified by case-specific concerns for officer safety does not violate s. 10(b): at para. 15. [42] Because the Crown’s concession of a breach of s. 10(b) arising from a justified delay in accessing counsel is an erroneous concession of law, this court is not bound by the concession and must analyze the situation according to what the law provides: R. v. Barabash , 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 54; R. v. Shaikh , 2019 ONCA 895, 148 O.R. (3d) 369, at para. 63. [43] Applying the correct analytical framework, I now turn to consider whether the evidence supported the trial judge’s conclusion that the police had case-specific concerns for police safety and evidence preservation that justified delaying access to counsel. [44] The appellant asserts that there was no case-specific evidence and the police merely followed a general practice of delaying access to counsel until the search warrant had been executed. He claims the concerns alleged by the police were of a general or non-specific nature applicable to virtually every search and therefore cannot justify suspending the constitutional right to counsel. He relies on D.C. Pollard’s evidence of the police’s “general practice” of delaying access to counsel until after the execution of a search warrant and D.C. Quinlan’s characterization of that practice as “just smart policing”. D.C. Quinlan also testified that it is “always better” from an officer-safety standpoint to have the target in custody before executing the search warrant. D.C. Mignardi similarly agreed with the suggestion that there is “always a risk” that the target could call someone to facilitate destroying evidence. [45] This evidence must, however, be considered in the context of other evidence that confirmed the police had turned their minds to the specific circumstances of this case and had a reasonable basis for concluding that there were concerns for officer safety at a minimum. D.C. Mignardi testified that the police had just arrested the appellant with a loaded gun and “we didn’t want to put any of our – our lives in danger by going to a house where [the appellant is] able to phone whoever he wants when he’s at [the police station]”. She also testified that the team had “specifically consider[ed] safety issues when a decision was made to arrest [the appellant] before the execution of the search warrants so that his rights would be suspended until the search warrants [were] executed”. She noted that searches were to be conducted at two locations — the storage locker and the apartment — which raised particular safety concerns if the appellant could telephone somebody before both searches were completed. D.C. Quinlan similarly testified that the officer safety concerns were “heightened” by the firearm recovered from the appellant. He highlighted that this was not a large operation and included only four officers. Cumulatively, this testimony provided an evidentiary basis for the trial judge’s conclusion that the police had a reasonable basis to conclude that concerns for officer-safety justified delaying access to counsel until the searches were completed. [46] Given this conclusion, I need not decide whether the police were justified in delaying access to counsel based on case-specific evidence-preservation concerns that rose beyond a general or non-specific nature applicable to virtually any search. The police-safety concerns alone justified their approach. [47] To sum up, I conclude that the police did not breach s. 10(b) by delaying access to counsel until the searches were completed at 6:20 p.m., but they did do so from 6:20 p.m. to 7:40 p.m., when the appellant finally called his lawyer. Issue #3: Should the evidence have been excluded under s. 24(2) of the Charter ? [48] The next issue is whether the trial judge erred in not excluding the evidence of the gun and drugs under s. 24(2) of the Charter . [49] A trial judge’s decision to admit or exclude evidence under s. 24(2) of the Charter attracts appellate deference absent an error in principle, a failure to consider the proper factors, a palpable and overriding factual error, or an unreasonable determination: R. v. Just , 2020 ONCA 362, 388 C.C.C. (3d) 273, at para. 21; R. v. McGuffie , 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64; La , at para. 37; and R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 86, 127. [50] Section 24(2) is triggered where evidence is “obtained in a manner” that violates an accused’s Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on the factors set out in the leading case of Grant : (i) the seriousness of the Charter -infringing state conduct; (ii) the impact of the breach on the accused’s Charter -protected interests; and (iii) society’s interest in the adjudication of the case on the merits. The court’s task is to balance the assessments under these three inquiries “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute”: Grant , at para. 71; R. v. Le , 2019 SCC 34, 434 D.L.R. (4th) 631, at paras. 139-142. [51] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in a manner that infringes a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: R. v. Hobeika , 2020 ONCA 750, 153 O.R. (3d) 350, at para. 76; R. v. Lenhardt , 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11; and R. v. Fearon , 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89. “Obtained in a manner” [52] Courts have taken a “very broad reading” and “generous view” of the phrase “obtained in a manner” under s. 24(2), the threshold requirement of whether the admission of the evidence would bring the administration of justice into disrepute: Hobeika , at para. 77; R. v. Pileggi , 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The jurisprudence has accepted that courts should examine the “entire ‘chain of events’ between the accused and the police”: R. v. Pino , 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; Pileggi , at para. 101. The connection between the breach and the discovered evidence may be “causal, temporal, or contextual, or any combination of these three connections”, as long as the connection is not “too tenuous or too remote”: Pino , at para. 72; Pileggi , at para. 101; see also R. v. Wittwer , 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and Rover , at para. 35. [53] Here, before this court, the parties accepted that the evidence was “obtained in a manner” that infringed the appellant’s Charter rights. The Crown did not dispute this, while the appellant submitted that there was a contextual and temporal connection between the s. 10(b) breach and the impugned evidence. The trial judge made no express finding on this point. His reasons appear to have accepted that this criterion was satisfied and then addressed whether the evidence should be admitted under the test in Grant . [54] I pause here to note that when addressing the impact of the breach — the second Grant factor — the trial judge said that “there is no causal or indeed temporal connection between the s. 10(b) breach and the evidence obtained” (emphasis added). Similarly, in his sentencing reasons, the trial judge stated that “the firearm and drugs [were] not contextually , causally or [ temporally] connected to the breach of delaying contact with counsel” (emphasis added). If these comments are read literally, there would have been no need to apply the Grant test because the threshold for applying s. 24(2) would not have been met. [55] The trial judge may have misspoken when he said there was no temporal or contextual connection between the evidence and the s. 10(b) breach. If he did not misspeak, he was in error. Although the evidence was not causally connected to the breach of s. 10(b) because it was discovered before the breach, there was no basis to find that it was not temporally or contextually connected to the breach or that the connection was tenuous or remote. The discovery of the evidence and the s. 10(b) breach all arose from the same transaction — the appellant’s arrest: see Pino , at para. 73. The connection was temporal because the discovery of the evidence was relatively close in time to the s. 10(b) breach and part of the continuum of events arising from the appellant’s arrest: see Pino at para. 74. The connection was also contextual because the discovery of the evidence arose out of the same events flowing from the appellant’s arrest that led to the s. 10(b) breach: see Pino , at para. 74. Neither connection was tenuous or remote. [56] I would therefore find that s. 24(2) of the Charter was engaged. I now turn to the three lines of inquiry under Grant . (i) The seriousness of the Charter -infringing state conduct [57] The first line of inquiry considers the seriousness of the police conduct that infringed the Charter and was connected to the discovery of the evidence. It asks whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter ; or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern: Grant , at paras. 72-74; R. v. Harrison , 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22; and R. v. McSweeney , 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 78. [58] Courts should dissociate themselves from evidence obtained through a negligent breach of the Charter : Le , at para. 143; see also Grant , at para. 75. A systemic problem or pattern of Charter -infringing conduct is an aggravating factor that supports exclusion: Grant , at para. 75; Harrison , at para. 25. [59] Here, the trial judge found that the police breached s. 10(b) by delaying access to counsel until after the execution of the warrants and then for another hour and twenty-minutes. He also considered the police conduct in failing to inform the appellant of the reason for the delay. He distinguished Rover because he found the delay in accessing counsel here was because of case-specific concerns for police safety and evidence preservation. He concluded that although the s. 10(b) breach and the failure to inform the appellant of the reason for the delay were “not done in bad faith”, they involved “serious misconduct, which in the analysis favours exclusion”. [60] I agree with the trial judge’s final assessment that the s. 10(b) breach was serious, even though I would find the breach in accessing counsel as having been briefer than the trial judge found. I also agree that the police’s failure to inform the appellant of the reason for the delay in accessing counsel aggravated the s. 10(b) breach. This was a significant breach of established obligations under s. 10(b). [61] I would add that the seriousness of the s. 10(b) breach arising from the one hour and twenty minutes of unjustified delay in accessing counsel must be understood in the particular context of this case. The police had already delayed access to counsel for two hours and twenty-five minutes to execute the warrants. Once the searches were completed, the police should have acted with particular urgency in providing the appellant access to counsel. Instead, they let him wait in his cell without access to counsel for another hour and twenty minutes. [62] I acknowledge that the police took some steps to minimize the delay the appellant experienced by obtaining the search warrants before he was arrested. This factor was highlighted in Rover as mitigating the seriousness of the breach by helping to minimize the delay in accessing counsel: Rover , at para. 39. [63] I also note that the delay in accessing counsel after the searches were completed was left largely unexplained. There is no evidence to permit a further finding — there is no evidence of a pattern of ignoring constitutional rights during detention, of a deliberate decision to do so, or any evidence of other constitutional breaches while the appellant was detained. This lack of evidence bears on whether the appellant has met his onus under s. 24(2) of establishing that the admission of the evidence would bring the administration of justice into disrepute: Hobeika , at para. 76; Lenhardt , at para. 12. [64] The only evidence in the record pointing in any direction appears to suggest that the failure to provide access to counsel after execution of the search warrants was a fact-specific oversight, albeit a serious one. D.C. Mignardi testified that after executing the warrants she headed back to the station and “started working on the … case” by inputting information, such as the record of the arrest, in the police computer system. She explained that there is pressure to “make sure all your notes [are] in for disclosure purposes right away”. She did not speak to the appellant. At some point, she learned from another officer that the appellant wanted to contact his lawyer. At 7:40 p.m., she helped him to do so. She then returned to inputting information in the police computer system. She testified that the police did not set out to intentionally delay the appellant’s right to counsel and there was no advantage to the investigation or prosecution in doing so. She testified that she was trying to fulfill the appellant’s Charter rights, and specifically, his right to counsel. [65] In mentioning this evidence, I should not be taken as suggesting that the police can delay access to counsel to input information in their computer system or that an officer’s assertion that they did not intend to breach constitutional rights is itself determinative. I simply highlight that the only evidence in the record appears to suggest that what happened here was a fact-specific oversight and not a systemic or intentional breach of the appellant’s s. 10(b) rights. [66] Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding the appellant’s s. 10(b) rights. The police conduct violated an established constitutional obligation. As this court has noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel , 2019 ONCA 860, at para. 34. The officers’ collective negligence in failing to uphold the appellant’s s. 10(b) rights precludes a finding of good faith: see Le , at paras. 143, 147; Pileggi , at para. 119; and Hobeika , at para. 81. [67] A serious breach of an established constitutional right supports exclusion of evidence under s. 24(2), even if the breach is not deliberate or systemic or part of a pattern of police misconduct: Harrison , at paras. 24-25; R. v. Paterson , 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44; and Hobeika , at para. 82. That principle applies here. (ii) Impact of the breach on the appellant’s Charter -protected interests [68] The second line of inquiry under s. 24(2) asks whether and to what extent the Charter breach “actually undermined the interests protected by the right infringed”: Grant , at para. 76; Le , at para. 151. This involves identifying the interests protected by the Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on Charter -protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant , at paras. 76; Le , at para. 151. [69] The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor , 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; R. v. Wong , 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu , at para. 40; R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and Wong , at para. 77. As Doherty J.A. explained in Rover , the right to counsel is a “lifeline for detained persons” that provides detainees with both legal advice and psychological benefits by conveying to them that they are not at the mercy of the police while detained: at para. 45; see also Pileggi , at para. 123. [70] Here, the trial judge found that the s. 10(b) breach had “minimal negative impact” on the appellant’s Charter -protected interests because he found no causal or temporal connection between the s. 10(b) breach and the evidence obtained. I agree there was no causal connection, but as I have explained, the trial judge either misspoke or erred in finding no temporal connection. [71] In appropriate cases, the lack of a causal connection can mitigate the impact of the infringement: Grant , at para. 122; Rover , at para. 43; and Pileggi , at para. 120. I also note that the police did not try to elicit information from the appellant, thus avoiding an aggravating feature found in several other cases: see e.g., La , at paras. 47-48; McSweeney , at paras. 79-80; R. v. Manninen , [1987] 1 S.C.R. 1233, at pp. 1242-43, 1245; and R. v. Prosper , [1994] 3 S.C.R. 236, at pp. 280, 284. [72] I also agree with the appellant that the trial judge erred in describing the impact of the breach of s. 10(b) on the appellant’s Charter -protected interests as “minimal”. The appellant was deprived of the “lifeline” of counsel without justification for an hour and twenty minutes, after he had already been deprived of access to counsel with justification for two hours and twenty-five minutes. He was also not told the reason for the delay. [1] This breach impacted the appellant’s Charter -protected interests, even if the police did not aggravate the breach by seeking to elicit information from him. [73] The impact of the s. 10(b) breach on the appellant’s Charter -protected interests was nevertheless less significant than other cases in which evidence has been excluded under s. 24(2), such as: - Rover , in which the accused was denied access to counsel for almost six hours, with no explanation as to why the police had refused him access to counsel and without an indication of when he might be allowed to do so, leading to “significant psychological pressure” being brought to bear on him: at paras. 44, 46; - La , in which the accused was denied access to counsel for over eight and a half hours, during which time the police tried to obtain an incriminating statement from him: at paras. 7, 47-48; and - Noel , in which the police did not even try to contact counsel on the accused’s behalf until three hours after his arrest and it was never confirmed that the accused actually spoke to counsel: at paras. 29, 31. [74] The impact of the breach on the appellant’s Charter -protected interests was also comparable to, or less significant than, other cases in which evidence has been admitted under s. 24(2), such as: - Hobeika , in which there was an unexplained failure to provide access to counsel for just over four hours: at para. 79; - Pileggi , in which there was a three-hour delay in providing access to counsel, the breach was “unintentional and occurred largely due to a lack of communication between police officers”, and no one tried to elicit information from the accused, although the police made reasonable efforts early on to contact duty counsel and kept the accused apprised of their attempts to contact counsel on his behalf: at paras. 114, 117-18 and 124. [75] Placing the impact of the s. 10(b) breach here along the continuum of s. 10(b) breaches in past cases, I would describe the impact of the s. 10(b) breach on the appellant’s Charter -protected interests as moderate. (iii) Society’s interest in the adjudication of the case on the merits [76] The last line of inquiry considers factors such as the reliability of the evidence and its importance to the Crown’s case. It asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant , at para. 79; McSweeney , at para. 81. Reliable evidence critical to the Crown’s case will generally pull towards inclusion: Harrison , at paras. 33-34; McGuffie , at para. 62; and McSweeney , at para. 81. [77] Here, the gun and drugs are reliable evidence and essential to the Crown’s case for what are extremely serious offences. The admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion. I therefore agree with the trial judge that society’s interest in the adjudication of the case on the merits favours the admission of this evidence. Balancing the factors [78] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison , at para. 36. As Doherty J.A. recently noted in Hobeika , “[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility”: at para. 89. [79] Here, I have concluded that the evidence was properly admitted under s. 24(2). I say this for several reasons. The breach of s. 10(b), although serious, appears to have been situation-specific and isolated, rather than institutional or systemic. It has not been established that the breach was deliberate or intentional. The breach only moderately impacted the appellant’s Charter -protected interests. The evidence, consisting of the loaded gun and drugs, was obtained through a lawful search incident to arrest and, because it was not causally related to the s. 10(b) breach, was not compromised by the breach of s. 10(b). In these circumstances, excluding the evidence would only punish the police — which is not the purpose of s. 24(2) — and would damage, rather than vindicate, the long‑term repute of the criminal justice system: Grant , at para. 70; Hobeika , at para. 90; and Pileggi , at para. 127. It would allow an apparently unintentional, situation-specific police-slip that had only a moderate impact on Charter -protected interests to lead to the acquittal of an armed and dangerous drug trafficker in a city already plagued by gun violence. [80] Like the trial judge, I thus conclude that the admission of the evidence would not bring the administration of justice into disrepute. [81] I would dismiss the conviction appeal. Issue #4: Did the trial judge err in his sentencing analysis? [82] Finally, the appellant submits that the trial judge erred by declining to reduce the sentence he imposed (6 years, less credit for pre-sentence custody calculated at 22 months) because of the s. 10(b) violations. The appellant was 22 years old when he committed the offences. [83] An appellate court can interfere with a sentence in only two situations: (1) if the sentence is demonstrably unfit; or (2) if the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26; R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44; and R. v. Suter , 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. [84] The appellant does not argue that the sentence was demonstrably unfit. Instead, he submits that the trial judge’s refusal to reduce the sentence because of the s. 10(b) breach was an error in principle that justifies appellate intervention. As he did at first instance, the appellant relies on the Supreme Court of Canada’s decision in R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206, in support of his submission. That case upheld a sentence reduction for the offences of impaired driving and flight from the police when the police used excessive force in arresting the accused and breached his Charter rights during his arrest and detention. Here, by analogy, the appellant asserts that the s. 10(b) breach was contextually and temporally connected to his arrest and thus warranted a sentence reduction. [85] I do not accept this submission. [86] A sentencing judge crafting a fit sentence must consider all the circumstances of the offence and offender. This includes state misconduct, including a Charter breach, if it relates to the circumstances of the offence and the offender. When, however, the state misconduct does not relate to the circumstances of the offence or the offender, the accused cannot seek a remedy through the sentencing process: Nasogaluak , at paras. 3-4, 46-49; R. v. Donnelly , 2016 ONCA 988, 135 O.R. (3d) 336, at paras. 150-54. [87] Here, the trial judge considered Nasogaluak but determined that the circumstances of the s. 10(b) breach did not relate to the offences or the offender in a way that could be considered in sentencing. He held there was no additional harm or prejudice caused by the s. 10(b) breach that would act as a mitigating circumstance. He referred to his ruling on the Charter application that the discovery of the evidence was not causally connected to the breach, and thus did “not align with the offences or to the offender”. In support of that conclusion, he cited R. v. Glykis (1995), 24 O.R. (3d) 803 (C.A.), which also involved a s. 10(b) breach arising from a delay in accessing counsel. Dubin C.J.O. held that the s. 10(b) breach in that case should not reduce the sentence because it did not mitigate the seriousness of the offence or constitute a form of additional punishment or hardship for the accused. [88] The trial judge’s conclusion that the s. 10(b) breach here did not warrant a sentence reduction attracts deference . His conclusion that the s. 10(b) breach did not relate to the circumstances of the offences or the offender to affect the appropriate sentence is reasonable. The breach of s. 10(b) did not alter the circumstances of the offences. Although the delay in accessing counsel no doubt had some effect on the appellant, there was no evidence about this. As a result, I see no error in principle warranting appellate intervention. [89] I would therefore grant leave to appeal the sentence but dismiss the sentence appeal. E. conclusion [90] I would dismiss the conviction appeal, allow leave to appeal the sentence, and dismiss the sentence appeal. Released: May 7, 2021 “B.W.M.” “M. Jamal J.A.” “I agree. B.W. Miller J.A.” “I agree. Coroza J.A.” [1] Recent case law suggests that the failure of the police to inform an accused of the reasons for the delay in providing access to counsel, where such delay is justified, or to advise the accused when they might be allowed to speak to counsel, may constitute an independent breach of s. 10(b) of the Charter : see R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 45-46 (seeming to agree with the trial judge’s finding at 2016 ONSC 4795, at para. 70, that the police should have advised the accused that they were suspending his s. 10(b) right); R. v. Shang En Wu , 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78. However, since this appeal was not argued on this basis, I refrain from further comment.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Haniffa, 2021 ONCA 326 DATE: 20210517 DOCKET: C64988 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Erhard Haniffa Appellant Boris Bytensky, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent Heard: January 12-13, 2021 by videoconference On appeal from the convictions entered by Justice Joseph F. Kenkel of the Ontario Court of Justice on June 13, 2017, with reasons reported at 2017 ONCJ 525, and the ruling on multiple convictions dated October 2, 2017, and the ruling on entrapment dated November 8, 2017, with reasons reported at 2017 ONCJ 780, and the rulings on s. 11(b) dated November 8, 2017 and September 4, 2018, with reasons reported at 2017 ONCJ 781 and 2018 ONCJ 615, and the sentence imposed on October 29, 2018, with reasons reported at 2018 ONCJ 960. Juriansz J.A.: [1] This appeal was argued together with two other defence appeals, R. v. Jaffer and R. v. Dare , and a Crown appeal, R. v. Ramelson . All the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. [2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival. [3] The common issue in the four appeals is whether the individuals who were arrested and prosecuted pursuant to Project Raphael were entrapped by the police. The appellant also appeals his convictions, the dismissals of his s. 11(b) applications, the trial judge’s refusal to stay the third count with which he was charged on the Kienapple principle, and his sentence. [4] For the reasons that follow, I would dismiss the appeal of all the appellant’s post-trial applications. I would allow the sentence appeal. A. THE FACTS IN THIS CASE [5] In this case, the ad the police placed on the escorts section of Backpage purported to have been placed by “Jamie”. Jamie described herself as “YOUNG shy FRESH and NEW”. The ad included photographs of a female police officer, whose face was not shown, posing as Jamie. The ad indicated Jamie was 18 years old, the minimum age allowed by Backpage. [6] On March 22, 2016, the appellant texted Jamie and asked if she was working. The undercover officer, Truong, responded and after exchanging a number of preliminary messages, texted “r u okay if im not quite 18 yet?”. The appellant asked, “Is this like a cop thing or something?” and then asked Jamie how old she was. Truong responded, “I’m 15 to be hones but i look older hun”. The appellant was wary and said in several texts “Not getting a good feeling about this”, “No r u [a cop]”, and “Don’t even know if I am talking to the person I am seeing [in the ad]”. Truong sent additional texts referring to Jamie’s age as 15. Despite his skepticism, the appellant continued the text chat and eventually proceeded to the hotel to meet Jamie for the sexual services negotiated in the text chat. [7] When the appellant arrived at the room, he was arrested and charged with the following three counts: Count 1: Communicating via telecommunication with a person he believed to be under the age of 18 years for the purpose of facilitating an offence under s. 286.1(2) (obtaining sexual services from a minor) contrary to s. 172.1(2) (child luring under 18). Count 2: Communicating via telecommunication with a person he believed to be under the age of 16 years for the purpose of facilitating an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16). Count 3: Communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years contrary to s. 286.1(2) (communicating to obtain sexual services from a minor). [8] While the information references s. 171.1(2), counts 1 and 2 relate to the offences under ss. 172.1(1)(a) (child luring under 18) and 172.1(1)(b) (child luring under 16). Section 172.1(2) sets out the punishment for these offences. [9] The appellant’s defence at trial was that he did not believe the person with whom he was communicating was younger than 18. He said he did not believe he was even speaking to a woman based on the speech patterns used in the messages. He said he thought he was speaking either to a police officer or a pimp trying to set him up for extortion. The appellant testified that because of his experience as a child victim of a serious sexual assault he would never want to have sex with a minor. [10] The trial judge found the appellant guilty on all three counts. [11] On October 2, 2017 the judge ruled on whether some of the convictions should be stayed according to Kienapple v. R. , [1975] 1 S.C.R. 729. The Crown agreed that one of the two counts under s. 172.1 should be stayed. The appellant submitted that, in addition, count 2 (child luring under 16) and count 3 (communicating to obtain sexual services from a minor) contained substantially the same elements and that one of those convictions should also be stayed. The judge entered a stay only on count 1 (child luring under 18). [12] The appellant also applied for a stay of proceedings on the basis he had been entrapped. The application was denied. [13] The appellant also brought two applications for a stay of proceedings claiming delay in violation of his s. 11(b) right under the Canadian Charter of Rights and Freedoms to a trial within a reasonable time. Both applications were denied. [14] He brought the first application submitting that the entrapment hearing was scheduled beyond the 18-month presumptive ceiling set in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631. In a decision released on November 8, 2017, the trial judge dismissed the application on the basis that the presumptive ceiling in Jordan did not apply to proceedings after the verdict. He stated that the principles underlying Jordan did not support extending the framework to include post-trial applications. [15] The appellant brought the second application primarily based on a delay in disclosure before sentencing and a Crown application with respect to mandatory minimum sentences. In a decision dated September 4, 2018, the trial judge stated that the ultimate question was whether the case had taken markedly longer than what was reasonably required and concluded that the matter had moved quickly at every stage. He found each of the nine post-verdict applications were brought and heard efficiently and could not have moved along much more quickly than they did. B. arguments on appeal [16] The appellant submits the trial judge made five errors: 1. by finding the appellant’s testimony did not raise a reasonable doubt without considering his good character evidence; 2. by failing to apply the Kienapple principle to conditionally stay count 2 (child luring under 16), in addition to count 1 (child luring under 18); 3. by failing to find that the appellant’s right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter was violated; and 4. by concluding Project Raphael was a bona fide inquiry and failing to find that the investigative scheme constituted entrapment; or 5. in the alternative, by failing to find that the police conduct constituted entrapment for the s. 172.1(1)(b) (child luring under 16) offence. The appellant also appeals his sentence on the basis that COVID-19 has rendered his sentence unfit. C. analysis (1) Appellant’s good character testimony [17] The appellant complains that the trial judge did not mention his testimony that he would not have committed any sexual offence involving a minor because he had been a victim of sexual assault as a child. He argues that the trial judge was obliged to consider this evidence and, if he rejected it, explain why it did not leave him with a reasonable doubt. [18] This was a trial before a judge alone. The trial judge stated he had considered all the evidence, he gave cogent reasons for his determinations of credibility, and he concluded the appellant’s evidence did not leave him with a reasonable doubt. He described the appellant’s evidence as “internally contradictory” and “illogical to the point of being nonsensical on the central points”. He said the appellant’s testimony was “contradicted by credible external evidence including the text messages he sent and his actions on the day in question.” [19] The trial judge’s reasons for rejecting the appellant’s evidence were sufficient. The trial judge did not commit any reversible error by failing to avert to the evidence the appellant led to support his good character. (2) Kienapple [20] The trial judge held, and the Crown conceded, that counts 1 and 2, the two child luring charges, shared a sufficient factual and legal nexus such that one should be stayed. He stayed count 1 (child luring under 18). [21] The trial judge noted, as the parties agreed, that there was a sufficient factual nexus between counts 2 (child luring under 16) and 3 (communicating to obtain sexual services from a minor) to satisfy the Kienapple principle. However, relying on in R. v. Prince , [1986] 2 S.C.R. 480, he found a lack of legal nexus between counts 2 and 3 because s. 172.1 and s. 286.1(2) have different and distinguishing elements that showed different statutory purposes. The luring offence in count 2 was directed towards “the use of telecommunication which enables adults to engage in anonymous, low visibility contact with vulnerable children.” The offence in count 3 was aimed at commercialized prostitution involving persons under 18 years of age. Therefore, he concluded that the Kienapple principle did not apply to counts 2 and 3. [22] The appellant submits the trial judge erred by conditionally staying only count 1 under the Kienapple principle. Count 1 charged the appellant under s.172.1 with luring a person under 18 to facilitate the commission of the s. 286.1(2) offence. [23] The appellant submits count 3 (communicating to obtain sexual services from a minor) should have been stayed as well. He points out that, in this case, all three counts arose from one conversation by text message, by one person, on one occasion, with one person believed to be underage, for the purpose of engaging in one specific sexual encounter. This, he submits, shows it is clearly the same delict. [24] The appellant submits that if the “purpose behind the legislation” was sufficient reason to avoid the application of the rule against multiple convictions, the trial judge should not have conditionally stayed either of the luring charges because they were both enacted for the same statutory purpose. [25] Finally, the appellant claims to demonstrate the error by submitting that had the appellant been tried and convicted of the two luring counts only, he would be able to plead autrefois convict if the Crown subsequently sought to try him on the s. 286.1(2) count. [26] I see no error in the trial judge’s reasoning. The two counts do indeed have the different and distinguishing elements he identified. I also agree that the two offences have the different statutory purposes he stated. [27] The appellant’s observation that count 1 (child luring under 18) also has a different statutory purpose to count 3 (communicating to obtain sexual services from a minor) is not on point. The trial judge stayed count 1 (child luring under 18) because of its factual and legal nexus to count 2 (child luring under 16), and not count 3 (communicating to obtain sexual services from a minor). The remaining question is related to the relationship of count 2 and count 3. [28] I reproduce the two counts: Count 2: Communicating via telecommunication with a person who he believed to be under the age of 16 years for the purpose of facilitating an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16). Count 3: Communicating for the purpose of obtaining the sexual services of a person under the age of 18 years contrary to s. 286.1(2) (communicating to obtain sexual services from a minor). [29] Count 2 requires communication via telecommunication and the communication in count 3 must be to obtain sexual services for consideration. As Leibovich J., put it in R. v. Faroughi , 2020 ONSC 780, “[s]ection 286.1(2) seeks to protect against the evils of child prostitution, while section 172.1 seeks to protect…the criminal use of the internet and other similar devices to sexually exploit children.” [30] I am not persuaded there is any basis to interfere with the trial judge’s decision. (3) Section 11(b) [31] The trial judge dismissed both of the appellant’s applications for a stay pursuant to s. 11(b). [32] The appellant acknowledges that the Jordan presumptive ceilings do not typically apply to post-verdict delay. However, he points out that trial judges can refuse to enter a conviction if they find entrapment: R. v. Mack , [1988] 2 S.C.R. 903, at p. 972. This, he submits, makes entrapment applications unlike other post-trial motions. In entrapment applications, the question whether the accused will be convicted remains unresolved. [33] I do not accept that entrapment hearings are exceptional post-trial proceedings that should be included in the Jordan presumptive ceilings. The Supreme Court in R. v. K.G.K. , 2020 SCC 7, 443 D.L.R. (4th) 361, held that the presumptive ceilings established in Jordan do not apply to the trial judge’s deliberation time, and said the ceilings “apply from the charge to the end of the evidence and argument, and no further”: at para. 33. The Supreme Court explicitly rejected the possibility that Jordan ceilings apply from the charge to “the conclusion of post-trial motions”: K.G.K. , at para. 33. [34] While the Jordan ceilings do not apply, I must still consider whether the post-trial delay infringed the appellant’s rights under s. 11(b). The protections afforded by s. 11(b) encompass the time up to and including the date when a sentence is imposed: K.G.K. , at para. 3; R. v. MacDougall , [1998] 3 S.C.R. 45, at para. 19. [35] In R. v. Charley , 2019 ONCA 726, 147 O.R. (3d) 497, Doherty J.A. set a presumptive five-month ceiling, subject to the same exceptions and principles as the Jordan presumptive ceiling, that applies to sentencing delay. I do not accept the appellant’s submission that this presumptive five-month ceiling applies to both post-trial motions and sentencing. In Charley the issue was sentencing delay. The delay was due to a Crown application to have the offender declared a dangerous offender. I am satisfied the five-month presumptive ceiling was intended to apply to the sentencing process alone. [36] The time required to deal with post-trial motions unrelated to sentencing must be considered separately as it is not possible to prescribe a presumptive ceiling for the completion of post-trial motions. Obviously, the number and complexity of post-trial motions will vary with each case. The time taken for post-trial motions should not be unreasonable considering the number and complexity of the motions in the specific circumstances of the particular case. [37] The time taken for post-trial motions in this case was not unreasonable. The verdict was rendered on June 13, 2017 and the final ruling on the post-trial motions was delivered on September 4, 2018, approximately 14 months and 27 days later. From November 8, 2017 to December 6, 2017, the parties were dealing with a Crown application related to mandatory minimum sentences, which should be included in the time taken for sentencing. Defence counsel agreed that he was responsible for the delay from May 1, 2018 to August 28, 2018, which results in a deduction of 4 months. This leaves 9 months and 23 days that were taken to deal with 8 post-trial motions. [38] The trial judge found that the post-verdict applications were necessary and had been brought and heard in an efficient way. He found that the overall time for the trial, including the post-verdict applications, was reasonable in all the circumstances. I agree with his assessment. [39] It remains to consider the sentencing delay subject to the Charley presumptive ceiling. The sentencing process began on November 8, 2017, when the Crown made an application related to mandatory minimum sentences and ended on October 29, 2018, when a sentence was imposed. The total length of this period is 11 months and 22 days. [40] On February 20, 2018, the appellant asked for an adjournment because of a late disclosure made by the Crown a week prior, which the appellant believed could impact the entrapment decision. Sentencing was adjourned to May 1, 2018. This period of delay amounts to 2 months and 12 days. The respondent submits that this should be counted as a discrete exceptional circumstance that should be deducted from the sentencing delay. [41] Defence counsel sought a further adjournment from May 1, 2018, to August 28, 2018 due to another trial he was involved with and agrees this period should not be counted. This amounts to a deduction of 3 months and 28 days. [42] The appellant asked for another adjournment from September 5 to 28 to get his affairs in order. These three weeks and two days should be deducted. [43] Accounting for the periods that should be deducted, there was 4 months and 20 days of sentencing delay, which falls below the Charley presumptive ceiling. [44] In the above calculations a month was treated as 30.5 days. [45] I conclude there was no breach of the appellant’s s. 11(b) rights. (4) Entrapment [46] Counsel for the respondent in Ramelson adopted the submissions made by this appellant's counsel on the issue of entrapment. The comprehensive reasons in Ramelson included the analysis and rejection of the two entrapment grounds in this appeal. For the reasons set out in Ramelson , I would reject this appellant’s argument that he was entrapped. (5) Sentence [47] The trial judge imposed a sentence of 12 months imprisonment on count 1 (child luring under 18) and a concurrent term of 6 months imprisonment on count 3 (communicating to obtain sexual services from a minor). The problem with this is that the trial judge had stayed count 1 based on the Kienapple principle. In his Kienapple ruling he said, “Count 1 is stayed.” The Information reflects this as it is marked “Ct.1 Stayed Kienapple”. He then failed to sentence the appellant on count 2 (child luring under 16), a charge that had not been stayed and for which the appellant had been found guilty. [48] The Crown submits not much turns on the fact the trial judge sentenced the appellant on count 1 (child luring under 18) instead of count 2 (child luring under 16), as the judge’s analysis on sentencing and the punishment he imposed would have been the same for either count 1 or count 2. [49] I disagree. The mistake in this case is not a mere clerical or administrative error. The mistake is not simply referring to the numeral “1” rather than the numeral “2”. The trial judge left no doubt he was purporting to exercise jurisdiction to sentence the appellant on count 1 instead of count 2. In his sentencing reasons he stated that the respondent was convicted of “Communicating via telecommunication to facilitate a s. 286.1(2) offence (child prostitution) – s. 172.1(2)”, but the trial judge had stayed that charge. He then added that “a further count of Invitation to Sexual Touching s. 152 was stayed pursuant to the rule in R v Kienapple ”, but that is not the charge that he had stayed. When he imposed the sentence, the trial judge referred expressly to count 1 by stating, “On the 172.1(2) charge of communicating via telecommunication to facilitate a s. 286.1(2) offence, Mr. Haniffa is sentenced to 12 months imprisonment.” [50] The differences between these two offences could well have affected the sentence imposed. Count 1 criminalizes communicating with a person the accused believed to be under 18 years of age by telecommunication for the purpose of facilitating the offence of obtaining sexual services from a person under 18 of age for consideration. Count 2 criminalizes communicating with a person the accused believed to be under 16 for the purpose of facilitating an invitation to sexual touching. [51] The trial judge’s imposition of 12 months imprisonment on count 1 is without effect because further proceedings on count 1 had been stayed earlier. The question arises whether this court should impose a sentence on count 2, the charge the appellant should have been sentenced on. [52] In sentencing the appellant on count 2, the constitutionality of the mandatory one-year minimum sentence stipulated in s. 172.1(2) would necessarily arise because several Superior Court and Ontario Court decisions have held that the mandatory minimum one-year sentence is unconstitutional: Faroughi ; R. v. C.D.R. , 2020 ONSC 645; R. v. Saffari , 2019 ONCJ 861; R. v. Alekozai , [2020] O.J. No. 1162. Furthermore, sentences of less than one year of imprisonment have been imposed in a number of Project Raphael cases: Faroughi , Saffari , Alekozai . In these grouped appeals Mr. Jaffer was sentenced to six months imprisonment, and Mr. Dare was sentenced to three months imprisonment to be served intermittently. Project Raphael cases may be distinguished from the fact situations in R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3, and R. v. Ghotra , 2020 ONCA 373, for example, where the offender has taken the initiative in seeking sexual relations with an underage person. [53] The parties did not advance argument before us on the question of the constitutionality of the mandatory one-year minimum sentence stipulated in s. 172.1(2). Consequently, it would be inappropriate for the court to exercise its discretion to sentence the appellant on count 2. [54] I recognize the appellant was sentenced on October 29, 2018, before the onset of the COVID-19 pandemic. I take judicial notice that the pandemic is in its third wave, that younger healthy persons are succumbing, and that the provincial government has taken strong measures to reduce close human contact. That said, I am not persuaded this court should intervene in a fit sentence without any evidence about the appellant’s particular circumstances and the current conditions within correctional facilities. These are considerations that can be taken into account when this matter is remitted to the trial judge for sentencing on count 2. D. Conclusion [55] I would dismiss the appellant’s appeal of conviction, the ruling on multiple convictions, the entrapment application, and the s. 11(b) applications. I would allow his appeal of sentence, set aside the sentence imposed on count 1, and remit his sentence on count 2 to the trial judge. Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hakimzadah, 2021 ONCA 389 DATE: 20210603 DOCKET: C68524 Simmons, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Mohammed Hakimzadah Appellant Craig Zeeh, for the appellant Hannah Freeman, for the respondent Heard and released orally: May 27, 2021 by video conference On appeal from the sentence imposed on April 27, 2020 by Justice Robert F. Goldstein of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of five counts of counselling the commission of an offence that was not committed; one count of counselling the murder of his wife; one count of counselling the transfer of a firearm; one count of counselling trafficking in cocaine; one count of counselling commission of public mischief; and one count of counselling the murder of his wife’s family law lawyer. [2] The appellant was sentenced to a total of nine years’ imprisonment less six years’ credit for pre-sentence custody, leaving a remaining sentence of three years’ imprisonment. He seeks leave to appeal sentence. [3] We reject the appellant’s submission that the sentencing judge failed to sufficiently alert counsel of his intention to consider imposing a longer sentence than the seven-and-a-half-year sentence proposed by the Crown or that he failed to adequately explain his reasons for imposing a nine-year sentence. [4] The sentencing judge alerted counsel that he was considering imposing a sentence higher than that sought by the Crown. In doing so, the sentencing judge indicated his concern that this was not simply a case of counselling murder in a domestic context. Rather, it was a case in which the appellant also wanted his wife’s lawyer to be murdered on University Avenue in front of the courthouse. In our view, that was sufficient notice that the sentencing judge considered both the range and the specific sentence proposed inadequate. [5] As for his explanation for exceeding the sentence suggested, the sentencing judge explicitly rejected any suggestion by counsel that the appellant had abandoned his plans to arrange that two murders be committed. [6] Moreover, the sentencing judge concluded, correctly in our view, that the range identified by counsel did not account for the significantly aggravating feature of counselling not only the murder of his wife but also the murder of his wife’s counsel. [7] We also reject the appellant’s submission that the sentence imposed was demonstrably unfit, being outside a well-established three-to-eight-year range of sentences for counselling murder in the domestic context, or that it failed to account for the fact that the appellant was a first offender. [8] As we have said, these offences put multiple persons at risk, including a justice system participant. They were egregious offences that merited the sentence imposed. [9] Leave to appeal sentence is granted but the sentence appeal dismissed. “Janet Simmons J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hayman, 2021 ONCA 242 DATE: 20210414 DOCKET: C67731 Fairburn A.C.J.O., Doherty and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Joyce Rita Hayman Appellant James Lockyer, for the appellant Elise Nakelsky, for the respondent Heard and released orally: April 12, 2021 by video conference On appeal from the conviction entered by Justice John Fraser Hamilton of the Ontario Court of Justice (General Division) on June 5, 1998. REASONS FOR DECISION Overview [1] As set out below, the appellant has suffered an egregious miscarriage of justice. Where the ultimate responsibility lies is not a question before this court. Where the harm has fallen is crystal clear. The appellant is truly the victim of a failed criminal process. [2] The appellant faced a four-count indictment. On June 5, 1998, she was convicted after a judge alone trial of administering a noxious substance to her own five-year-old child, with the intent to endanger his life. The noxious substance was said to be cocaine. She was also found guilty of criminal negligence, despite a finding that bodily harm was not established. A stay of proceedings was later entered on that count. She was acquitted on the other two counts. [1] [3] On July 22, 1998, the appellant was sentenced to the maximum reformatory term of two years less a day. [4] The trial judge’s findings were rooted in evidence relating to the now discredited work of the Motherisk Drug Testing Laboratory (“MDTL”). [5] While the appellant originally appealed from conviction and sentence, the conviction appeal was later abandoned. On April 22, 1999, the sentence appeal was granted on the basis of errors in principle having been made. The sentence was reduced to one of time served, the equivalent of about nine months, and three years of probation: R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont. C.A.), at paras. 25-26. [6] In his reasons for reducing the sentence, Rosenberg J.A. noted, at para. 2, that the offence was “difficult to comprehend”, in part because it appeared that the appellant “bore [ no ] ill will towards her child”. These were prescient words. [7] On November 28, 2019, this court made an order on consent of the parties that the appellant be permitted to reopen her conviction appeal. Almost 23 years following her conviction, this is her conviction appeal. She asks that both the conviction and stay be set aside and acquittals entered. The Crown joins the appellant in her request for this relief. [8] These are our reasons for granting that relief. History of this Matter [9] It would be a serious understatement to suggest that the appellant has had a tragic life. [10] She was born into a family that could not properly care for her. Her childhood was marked by serious emotional and physical neglect, as well as physical violence. [11] By her early teen years, the appellant was abusing drugs and alcohol. The appellant’s mother eventually gave her over to the Children’s Aid Society (“CAS”), and while the appellant was living in a group home, her brother died in a house fire. She started living with a man in an abusive relationship before she even reached adulthood. This resulted in her wardship with the CAS being terminated. [12] The appellant’s addictions grew in size. By the time she was 23 years of age, she was bringing her first child into the world, while at the same time facing the challenges of being a heavy user of crack cocaine. [13] The appellant was a single mother, grappling with incredible addiction issues and raising a son who was presenting significant behavioural challenges, including aggression toward his mother. To confront those behavioural issues, the appellant started purchasing the drug Ritalin from an acquaintance. She had learned of the benefits of this drug in dealing with behavioural issues by watching a television program. [14] The situation came to the attention of the authorities when, one weekend, the appellant’s child was taken to the hospital by a babysitter as a result of a suspected overdose of Ritalin. While he was fine, this hospital interaction eventually led to the appellant and child coming into contact with the Hospital for Sick Children (“HSC”). The appellant did not hide from the medical professionals how she had obtained the Ritalin or the amounts she had been administering to her child. While the doctor she consulted at HSC determined that the administered amounts were too high, the doctor thought a prescription was necessary and simply reduced the dosage. That doctor was of the view that the appellant was “sincerely … seeking assistance for her son” and she was “sincerely wish [ ing ] to follow through on [ the hospital’s ] recommendations.” [15] At the appellant and child’s next HSC visit on June 5, 1996, a urine sample was taken from the child. It was found to contain cocaine metabolites. No evidence was led at trial about the nature of the urine screening process or its reliability. [16] As a result of that urine test, though, the child was apprehended by the CAS and placed into a foster home, and a police investigation ensued. During that time, the appellant was permitted unsupervised visits with the child once a week. According to CAS records, she was “very consistent with her visits” and the child seemed “happy and content to see his mother.” This is consistent with how the appellant and child’s relationship was described by others, including the child’s biological father. The biological father said that the appellant was a “very, very good mother” to the child, and a babysitter described her as a “very loving and caring” mother. [17] Two samples of the child’s hair were taken while he was in foster care. Those samples were sent to the MDTL. At that time, Dr. Gideon Koren was the director of the laboratory and Julia Klein was the laboratory manager. They were qualified to testify as experts at trial. Neither explained the methodology they used when examining the child’s hair. [18] Ms. Klein was qualified as an expert in chemistry and hair analysis. She testified that the child’s hair contained the presence of cocaine and its metabolites in amounts that are high enough to “kill a child” and that are “ [ n ] ormally” what one would see in “adult chronic users of cocaine.” In her view, it was “unlikely that one single exposure would give such a level in the hair of a child” and “it was not [from] external deposition but [from] the consumption of cocaine.” She reached the “scientific conclusion” that the child had been “given cocaine, used cocaine.” [19] As for Dr. Koren, qualified as an expert pediatrician and toxicologist, he maintained that the level of cocaine found in the child’s hair made it “much more likely that cocaine was incorporated in the hair through the bloodstream that nourished the hair and much less likely from the environment.” [20] The appellant testified. As she had from the outset and to this very day, she denied administering cocaine to her child. While she did not shy away from acknowledging her addiction issues, she explained the significant precautions she took to ensure that her child was not exposed to her smoking crack cocaine, including the safe storage location she used for the drugs, the precautions she took when she would consume the drugs, and the steps she took to ensure that her child was not exposed to the smoke from the drugs. [21] The trial judge delivered brief oral reasons for judgment. He pointed to two pieces of evidence in support of his conclusion that the appellant had administered crack cocaine to her child: the urine analysis; and the “expert evidence” of Dr. Koren and Ms. Klein at the MDTL. [22] While there was some evidence of cocaine found in the child’s urine, as detected at HSC, the Crown on appeal does not dispute the lack of probity attaching to that evidence, particularly because there was no evidence at trial as to the nature of the urine screening process or its reliability. [23] This left the MDTL evidence, about which the trial judge said this: [T]he cocaine metabolite was found in [the child’s] hair. Dr. Koren and Ms. Klein, both experts in detecting cocaine from hair, amongst other things, said that the reading … was not through a one time use but more likely obtained from sustained use over a 3 month period; that is the cocaine that was found in the hair samples that they tested. … [The reading they testified to] indicates the use [of cocaine] is a chronic use of at least 3 times a week for a period of 3 months. This reading was not obtained from accidental exposure. The amount found in the hair indicates numerous usages to obtain this reading. [24] Ultimately, the trial judge concluded, based upon that “expert evidence”, that the appellant “must have administered the drug to [her child].” [25] Eventually, the child was adopted by another family. The appellant and her child have had one contact since 1998: a telephone call in 2018. [26] In 2003, about four years after she was released from prison, the appellant gave birth to her second child. He was immediately apprehended by the CAS at the hospital and adopted by another family. The appellant has never had contact with her second child. [27] In an affidavit filed before this court, the appellant says the following: From my childhood on, I have not had a good life and I am not proud of my drug addictions. If I can get rid of this unjust conviction, I will be able to hold my head high for the first time in a long time. I never gave cocaine to [my child] and I never left … any in a place where he could access it. [28] The appellant has no criminal record other than the conviction under appeal. She has maintained her innocence from the outset. The Fresh Evidence [29] The parties come to this court on a united front. They rely upon fresh evidence that we need not explore in detail. The fresh evidence rests most heavily on two reports: The Honourable Susan E. Lang, Report of the Motherisk Hair Analysis Independent Review (Toronto: Ministry of the Attorney General, 2015); and The Honourable Judith C. Beaman, Harmful Impacts: The Reliance on Hair Testing in Child Protection – Report of the Motherisk Commission (Toronto: Ministry of the Attorney General, 2018). These are highly probative and critically important pieces of work. There is no dispute that the conclusions reached in both reports, as they pertain to the MDTL, are unassailable. Most importantly for this appeal, the reports reveal that the work done at the MDTL was seriously flawed and that the testing “was inadequate and unreliable for use in child protection and criminal proceedings”: Report of the Motherisk Hair Analysis Independent Review , at p. 4. [30] Being highly cogent, admissible evidence that was not available at the time of the trial, the two reports easily meet the criteria for the admission of fresh evidence: Truscott (Re) , 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. [31] Crown counsel correctly acknowledges that the record in this case reveals little information as to the details of the testing completed on the child’s hair and that there was no evidence at trial about any confirmatory testing having been done, the absence of which “leads to a reasonable basis upon which to question the validity of the conviction due to the court’s reliance on the [MDTL] evidence adduced at trial.” We agree. [32] Without the MDTL evidence, the appellant would not have been found guilty. We admit the fresh evidence. We set aside the conviction for administering cocaine and enter an acquittal on that count. We set aside the stay on the criminal negligence cause bodily harm count as, on the trial judge’s own findings, the appellant was entitled to an acquittal on that count at that time. Publication Ban [33] This leaves one matter left to be addressed: the publication ban. [34] On November 28, 2019, when this court allowed the appellant to reopen her conviction appeal, a publication ban was made in relation to her name, as well as her son’s name. She asks that the publication ban on her name be set aside. The Crown takes no objection to this request. In our view, it is appropriate to do so. [35] There was considerable publicity in and around the time of the appellant’s trial. The appellant was always identified by name in the media. Indeed, it is as a result of the still existing, archived newspaper articles that a reporter, Rachel Mendleson, brought to the attention of counsel in 2018 this matter and expressed concern over the appellant’s case. Given the date of conviction, it would not have come to the attention of the earlier inquiries. [36] In light of the wrongful nature of the conviction in this case, resting on what can only be described as faulty science, the least that can be done is to allow the appellant the dignity to have this matter now corrected in the media should they choose to report on it. Therefore, the publication ban on the appellant’s name is set aside. To be clear, the publication ban remains in respect of her son’s name. Conclusion [37] Correcting this matter has taken the effort of a number of people, all of whom we acknowledge for their dedication to justice. In particular, we recognize Rachel Mendleson of the Toronto Star for identifying this case and bringing it to the attention of counsel, as well as Mr. Lockyer and Ms. Nakelsky for their diligence in pursuing the matter. [38] The appellant has faced a life of challenges. At every turn, she needed help, and at every turn she did not receive it. Despite the fact that she was a young, single mother who struggled with a history of mistreatment, poverty, and serious addictions, the record reveals strong attempts on her part to deal with what she faced. This was true at the time that she was raising her young child and it is true today. Indeed, the fresh evidence indicates that the appellant stopped consuming crack cocaine several years ago. [39] We cannot right everything for this now 53-year-old appellant. In addition to many other life challenges, she lost her children, she served time in prison, and she has carried the burden of a very serious criminal conviction for almost a quarter of a century. [40] What we can do today is to bring a conclusion to the criminal justice system’s impact on her life. She deserves to, as she says, hold her “head high for the first time in a long time.” We express our sincere hope that today will constitute one step toward that end. “Fairburn A.C.J.O.” “Doherty J.A.” “L. Sossin J.A.” [1] The appellant had been charged with criminal negligence causing bodily harm through the administration of cocaine. The trial judge found no evidence of bodily harm. Therefore, he found the appellant not guilty as charged, but guilty of what he described as the lesser and included offence of criminal negligence simpliciter . By the time of sentencing, the parties agreed that this finding had been made in error because criminal negligence simpliciter is not an offence known to law. While the trial judge accepted that the erroneous finding had been made, he rejected the defence request to find the appellant not guilty on that count, instead choosing to stay the proceedings. The other two counts related to allegations pertaining to the administration of the drug Ritalin. The appellant was acquitted on these counts.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Herdman, 2021 ONCA 294 DATE: 20210504 DOCKET: C68137 Doherty, van Rensburg and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Trevor Jesse Herdman Appellant Cara Barbisan, for the appellant Michael Dunn, for the respondent Heard: April 29, 2021 by video conference On appeal from the conviction entered on June 17, 2019, and the sentence imposed on November 29, 2019, by Justice David L. Edwards of the Superior Court of Justice. REASONS FOR DECISION [1] This appeal was dismissed with reasons to follow. These are our reasons. [2] The appellant appeals his conviction for three counts of the possession of stolen property, and one count each of possession of stolen property under $5,000, possession of cocaine for the purpose of trafficking, and failure to comply with a recognizance. He does not appeal his convictions for certain other offences. If successful in the appeal, he seeks to reduce the global sentence he received and is currently serving. [3] There is only one ground of appeal. The appellant submits that the trial judge erred in dismissing his challenge under s. 8 of the Charter , to the validity of a telewarrant issued under the Criminal Code , which led to the seizure of stolen property and drugs from his residence. [4] The appellant contends that, contrary to the conclusion of the trial judge, there were no reasonable grounds to believe that the power tools listed in the Information to Obtain (“ITO”) would be found at the place of the proposed search because the ITO was based on a tip from a confidential informant (“CI”) that did not meet the Debot criteria ( R. v. Debot , [1989] 2 S.C.R. 1140). [5] The investigation of the appellant began when a CI told the police that the appellant had stolen an ATV. The CI provided the make and license plate number for the ATV, as well as its location (in a parking lot behind an apartment building on Cleveland St. in Thorold). The police searched the license plate and contacted the registered owner of the ATV, who, after checking his barn, told them that his ATV and a number of power tools (which he listed) had been stolen. The police attended at the Cleveland St. address where they saw the ATV and some of the missing power tools in the parking lot. They also observed the appellant drive past them slowly, then speed away. CPIC inquiries revealed that the appellant had a significant history of prior convictions, and that he was bound by a recognizance with a condition that he live either at the Cleveland St. address or another address, and was prohibited from driving. The property manager at the Cleveland St. address advised that the appellant was on the lease for apartment Unit 1 at the Cleveland St. address. [6] Based on this information, the police applied for a telewarrant pursuant to s. 487.1 of the Criminal Code to search Unit 1 of the Cleveland St. address. The ITO listed the stolen tools as the items to be seized in the search and the suspected offences as break and enter and possession of stolen property. [7] Upon execution of the warrant, the police seized 60.6 grams of cocaine, 21 oxycodone pills, and the remainder of the missing power tools from Unit 1. A subsequent search warrant was obtained and executed to search the appellant’s cell phone. [8] The question for the trial judge, in considering the appellant’s Charter application, was not whether he would have issued the telewarrant, but whether it was open to the issuing justice to have done so. The question was whether the ITO, in its redacted form, disclosed reasonable grounds to believe that there was evidence respecting the commission of an offence at the location to be searched: R. v. Herta , 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20. This court will not interfere with a decision made in a Garofoli application absent an error in law, a misapprehension of the evidence or a failure to consider relevant evidence: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused, [1999] S.C.C.A. No. 168. There is no such error here. Essentially, the appellant invites this court on appeal to reweigh the Debot factors. [9] The trial judge properly found that the CI “rated low” in terms of credibility: confidential information about the CI had been redacted from the ITO, so that the only available information was that the CI “may or may not” have a criminal record and that, while the CI was believed to be truthful, the police had never before acted upon information that the CI had provided. The trial judge went on to consider whether the tip was compelling and corroborated. He reminded himself that the totality of the circumstances must meet the standard of reasonableness, and that strengths in one area may compensate for weaknesses in another: Debot , at p. 1168; Herta , at para. 34. [10] Contrary to the appellant’s argument, there was no error in the trial judge’s conclusion that the information provided by the CI was “highly compelling” and “significantly corroborated”. [11] Whether a CI’s tip is “compelling” depends on the quality of the information provided. A more detailed tip will be more compelling, as will a tip that is more recent: Herta , at para. 42; R. v. Rocha , 2012 ONCA 707, 112 O.R. (3d) 761, at para. 18. In this case, as the trial judge observed, the tip was “specific regarding the person, item and time”; that is, that the appellant stole an ATV bearing a particular license plate number, and that the ATV could be found at the rear of the Cleveland St. address. [12] As for corroboration, the trial judge identified the investigative steps that were taken by the police that confirmed the currency of the information provided by the CI, that the specific ATV identified by the CI had in fact been stolen and that it was located where the CI said it was, in a parking lot at the Cleveland St. address. [13] In any event, the issue was whether reasonable grounds existed for the issuance of the search warrant. There was no question that the police had reasonable grounds to believe that an offence had been committed as the owner of the ATV confirmed that the ATV as well as various tools had been stolen. Whether there were reasonable grounds to believe that evidence would be found at Unit 1 of the Cleveland St. address depended on the entirety of the ITO, which contained not only the compelling and corroborated information from the CI, but also the other information provided by the police investigation: the fact that some of the tools were located in the same parking lot as the stolen ATV, confirmation that the appellant lived in a particular unit at that address, information about the appellant’s criminal record, including for possession of stolen property, and the appellant speeding away after he was seen by the police. Based on all the circumstances disclosed in the ITO, it was reasonable to believe that evidence of the offence, such as the other stolen tools, would be found in the appellant’s unit. [14] The appellant demonstrated no error in the trial judge’s determination of his Charter application. For these reasons the appeal was dismissed. “Doherty J.A.” “K. van Rensburg J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Howley, 2021 ONCA 386 DATE: 20210607 DOCKET: C64789 Strathy C.J.O., Rouleau and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Todd Howley Appellant Delmar Doucette, Angela Ruffo and Zahra Shariff, for the appellant Gregory Tweney and Rebecca Schwartz, for the respondent Heard: November 25, 2020 by video conference On appeal from the conviction entered on April 9, 2016 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury. By the Court : OVERVIEW [1] The appellant appeals his conviction for first-degree murder. He challenges the trial judge’s admission of certain internet searches carried out on the appellant’s computer, as well as the appropriateness of the Crown’s closing submissions before the jury. He seeks to have the conviction for first-degree murder quashed or stayed and a conviction for second-degree murder substituted. In the alternative, he asks that a new trial be ordered. For the reasons that follow, we dismiss the appeal. FACTS [2] The appellant and Paul Maasland were business partners. By mid-June 2010, Mr. Maasland had advanced the appellant over $100,000 in business loans relating to a commercial process for using algae to convert carbon dioxide to clean energy. The appellant, however, had spent much of these funds on his own personal expenses. [3] Two tests of the technology being developed by the appellant had produced inconclusive results and it was agreed that a third and final test was needed. The appellant and Mr. Maasland arranged to conduct the test at the appellant’s Oakville warehouse on Sunday, August 29, 2010. [4] According to video evidence, Mr. Maasland left his Toronto apartment for the scheduled meeting at the appellant’s warehouse just after 9:00 a.m. on August 29. He was expected back by 12:30 p.m. for a prearranged lunch date with his mother, but he never returned. [5] Early the next morning, Mr. Maasland’s body was found at the end of a boat launch in Bracebridge. He was wearing the same clothes he had been wearing when he left for his meeting with the appellant. His head and feet were covered in garbage bags and a white nylon rope was tied around his chest. He had obviously been badly beaten. The post-mortem examination revealed extensive lacerations, fractures and bruising all over his body. The pathologist concluded his death was caused by blunt force injuries. [6] Just a week after the murder, police in Bracebridge received an anonymous letter from someone claiming to have knowledge of the circumstances leading to Mr. Maasland’s death. The letter claimed that Mr. Maasland was murdered in Bracebridge by two unidentified women who knew Mr. Maasland and his spouse through their interest in Boxer dogs. The letter contained details that only the killer could know. A subsequent forensic examination of the appellant’s computer revealed that this letter had been drafted on September 1, 2010, just two days after the murder. [7] At trial, the Crown tendered considerable circumstantial evidence pointing to the appellant as the murderer. This evidence included an extensive compilation of surveillance video showing the movement of people and vehicles around the appellant’s warehouse on the day of the murder, forensic evidence including DNA analysis connecting the appellant to the crime scene and details concerning the appellant’s internet activity suggesting that the murder had been planned. [8] The trial lasted six weeks. The Crown called nearly 40 witnesses, including numerous experts, and filed 158 exhibits. The appellant called no evidence. After a day of deliberations, the jury found the appellant guilty of first-degree murder. ISSUES [9] On appeal, the appellant concedes that the Crown led a compelling case identifying him as the killer. He maintains, however, that the evidence of planning and deliberation was weak. He advances two grounds of appeal as follows: 1. The trial judge erred in admitting the evidence about the appellant’s internet searches regarding “nail guns” made several weeks before the murder; and 2. The trial judge erred in failing to declare a mistrial after the Crown’s closing address, in which she referred to certain after-the-fact conduct evidence the trial judge had ruled was irrelevant to the issue of planning and deliberation. Alternatively, the Crown’s submissions constituted an abuse of process requiring a stay of proceedings. (1) The admissibility of the “nail gun” internet searches [10] An expert on computer forensics and data recovery examined two computers seized from the appellant’s warehouse and residence. He discovered that the following internet browsing activity had been conducted in the month before the murder: · Internet searches conducted on August 2, 2010 relating to “nail guns”; · Internet searches conducted on August 8 and 19, 2010 relating to Mr. Maasland, his spouse, London and Boxer dogs; · Internet searches conducted on August 26, 2010 using Google maps to access locations in Barrie, Norland and Bracebridge; · Internet searches conducted on August 28, 2020 relating to transportation in and around Bracebridge. [11] The August 2 internet activity relating to nail guns consisted of the following: · Google query for “Nail Gun Massacre” at 12:04:19 p.m. · Wikipedia article titled “Nail Gun Massacre” accessed at 12:04:45 p.m.; · Google query for “nail gun safety” at 12:06:34 p.m.; · Wikipedia article for “nail gun” accessed at 12:06:45 p.m.; · Google query for “nail gun operation” at 12:22:48 p.m.; · Google query for “nail gun modified” at 12:23:11 p.m.; · Second page of search results for “nail gun modified” at 12:24:11 p.m. [12] In a pretrial motion, the appellant challenged the admissibility of the nail gun search evidence on the basis that its probative value was outweighed by its prejudicial effect. He argued that the searches had no probative value absent improper speculation because Mr. Maasland was not killed with a nail gun. In particular, the appellant submitted that the “Nail Gun Massacre” query and article carried a high potential for moral prejudice. The Crown took the position that the searches provided early evidence that the appellant was conducting research on how to kill Mr. Maasland. The trial judge rejected the appellant’s arguments and admitted the evidence. [13] On appeal, the appellant renews his complaint about the nail gun searches but does so on a somewhat different basis. He argues that the evidence amounted to needless cumulative evidence and that the trial judge erred in failing to take into account the fact that its probative value was diminished by the existence of other extensive evidence of planning and deliberation. In the appellant’s submission, the prejudice remained substantial. [14] In balancing the probative value of evidence against its prejudicial effect, courts have come to recognize two well established sources of prejudice: moral prejudice and reasoning prejudice. As the Supreme Court explained in R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, moral prejudice refers to the risk associated with evidence that could paint the accused with the stigma of “bad personhood” and cause the jury to assess the accused’s guilt or innocence on the basis of general propensity or disposition: at paras. 42, 100, and 139. By contrast, reasoning prejudice refers to the risk that evidence will distract the jury from its proper focus on the facts as charged: Handy , at paras. 100, 144 and 146. See also R. v. Lo , 2020 ONCA 622, 393 C.C.C. (3d) 543, at paras. 111-116. [15] Needless cumulative evidence carries a risk of both moral prejudice and reasoning prejudice. As this court explained in R. v. Candir , 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 60, leave to appeal refused [2012] S.C.C.A No. 8: Th[e] forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal. [16] Beyond the concerns for trial efficiency raised in Candir , a trial judge’s discretion to exclude cumulative evidence may also serve to prevent the prejudicial effect “which the sheer volume and repetition of [certain] evidence would have on the jury”: R. v. Parsons (1996) , 146 Nfld. & P.E.I.R 210 (Nfld C.A.), at para. 42 . Thus, for example, once a fact has been admitted, a trial judge has discretion to exclude further evidence that proves the same fact by more prejudicial means: R. v. Foreman (2002), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 29, leave to appeal refused [2003] S.C.C.A. No. 199. [17] However, evidence is not prejudicial merely because it increases the chances of conviction: R. v. McMorris , 2020 ONCA 844, at para. 124. The Crown will not necessarily be “piling on” by building a strong case. In deciding whether or not to exclude cumulative evidence, the question is not whether the accused could be convicted with less, but rather whether the prejudicial effect of additional evidence outweighs its probative value, keeping in mind that probative value may diminish with repetition. As with any such balancing of probative value and prejudicial effect, the trial judge’s determination is entitled to a high degree of deference on appeal: R. v. Araya , 2015 SCC 11, [2015] 1 S.C.R. 581. [18] In this case, the appellant argues that the moral prejudice associated with the internet searches flows from the fact that a search for “Nail Gun Massacre” was highly inflammatory, evoking images of mass killing and extraordinary violence. This would suggest that the person carrying out the search had a propensity for violence. It would follow that the appellant was a bad person with a violent disposition, independent of any evidence in relation to the murder. The jury might use that evidence in improper propensity reasoning. [19] The appellant also submits that there was reasoning prejudice not known to the trial judge at the point when he made his ruling. The ruling had been made before all of the evidence had been heard. In cross-examination at trial, the expert conceded that he could not tell whether the queries had been typed by the user or had been auto-populated when the user began to type a different query. This meant that the jury would be required to speculate whether the user intended to type in “Nail Gun Massacre” or whether, after typing in “nail gun” the search engine auto-populated “nail gun massacre” as an option to be searched, which the user clicked on out of curiosity, leading him to the Wikipedia article about the movie “Nail Gun Massacre”. [20] In the appellant’s submission, the trial judge failed to measure the probative value of the evidence, as attenuated by the already substantial evidence of planning and deliberation adduced at trial, against the substantial moral and reasoning prejudice, including the need to speculate as to how the search was carried out. Had he done so, the probative versus prejudicial value of the evidence considered in light of the other evidence led at trial shifted in favour of its exclusion. [21] We disagree. The trial judge properly admitted the evidence and gave thorough reasons for his decision to do so. The trial judge rejected the defence submission that there was significant prejudice associated with the use of the word “massacre”. The evidence was not offered to show that the appellant had a propensity for violence, and any concerns in this regard could be addressed by a jury instruction. The trial judge concluded that, based on the number and content of the searches it would be open to the jury to find that the appellant was not interested in movies but rather was interested in how a nail gun operates and whether it could be modified for use as a weapon. The evidence therefore had relevance to planning and deliberation. [22] The internet searches were relevant because, four weeks before the killing, the appellant was investigating nail guns and their use, not because the word “massacre” was either part of his search or was auto-populated by the search engine as the defence suggested. Even if the jury were to conclude that the appellant himself typed “Nail Gun Massacre”, we see little likelihood of either moral prejudice or reasoning prejudice given the purpose for which the evidence was tendered. [23] The suggestion that the evidence of planning was so strong that the admission of the internet search evidence amounted to unfair “piling on” was not a submission made by experienced defence counsel at trial. In our view there is little merit in the submission. [24] When the trial judge made his ruling, he had before him a detailed synopsis outlining the anticipated evidence in this case, including the other evidence relevant to planning and deliberation. It is apparent from his ruling that he considered the probative value of the “nail gun” searches in the context of the anticipated evidence as a whole. He correctly observed that planning and deliberation was “a very significant issue in this case.” [25] The appellant argues that there is no temporal nexus linking the internet search on “nail guns” to the murder because the search was carried out some 27 days before the murder. Again, this was for the trial judge to weigh in reaching his decision. It is equally plausible to read the internet search evidence as extending the temporal nexus to a point earlier in the genesis of the murder. Significantly, the search was carried out some four minutes after the appellant had agreed to conduct a third test on the project being funded in part by Mr. Maasland. This third test was the reason for Mr. Maasland’s attendance at the appellant’s premises on the day he was killed. In addition, it was the first in a series of four internet searches led by the Crown that were relevant to different aspects of the planned killing of Mr. Maasland. The nail gun searches therefore had significant probative value as they expanded the length of the planning and deliberation alleged by the Crown and showed a constant period of internet activity in the period commencing with the arranged visit and ending with the murder. The mere fact that there were additional incriminating internet searches does not constitute a needless “piling on” of the evidence. [26] In any event, the fact that the same purpose may be achieved by the introduction of fewer pieces of evidence does not mean that a judge should exercise the discretion to exclude relevant evidence. As explained in Candir , at paras. 81-85: “The line between enough and too much is not always easy to fathom even with hindsight.” In this case, while the Crown’s case for planning and deliberation was strong, it was not so strong that the evidence of the nail gun searches created redundancy or repetition. Indeed, the appellant argues elsewhere in his factum that while the Crown had a strong case on identity, it “did not have such a strong case that he had committed a planned murder.” [27] As a result, we agree with the Crown’s submission that the line in this case has not been crossed. (2) The Crown’s closing address to the jury [28] The second ground of appeal relates to the Crown’s jury address. In the final hours of its three-day closing jury address, the Crown referred to certain elements of the appellant’s after-the-fact conduct as being relevant to the question of whether the murder was planned and deliberate. Defence counsel sought a mistrial on the basis that the Crown’s submission violated the trial judge’s ruling that only a limited portion of the appellant’s after-the-fact conduct could be used as evidence of planning and deliberation. In the alternative, defence counsel urged that the judge find that the Crown’s disobedience of the court ruling on this issue amounted to an abuse of process and that dismissal of the jury was the appropriate remedy. [29] The trial judge rejected both requests, finding that a curative instruction was sufficient to address concerns arising from the Crown’s remarks. The appellant submits that the trial judge erred in dismissing the application for a mistrial and rejecting the abuse of process claim. [30] To properly address this issue, some background is required. After the evidentiary portion of the trial had concluded, the trial judge provided the parties with a draft of his charge. It contained a section summarizing the appellant’s after-the-fact conduct and its relevance to the issue of identity. It also provided that there was another use that some of the after-the-fact evidence could be put to. He explained that sometimes evidence as to what a person does after a crime has been committed can constitute circumstantial evidence of a pre-existing plan. He gave as examples the fact that the body being dumped in Bracebridge could be seen as having a connection with the internet searches of locations in Bracebridge and Gravenhurst, and taxicabs servicing Bracebridge and Gravenhurst. [31] The draft charge did not contain a limiting instruction prohibiting the jury from considering other aspects of the appellant’s after-the-fact conduct on the issue of whether the murder was planned and deliberate. [32] At a pre-charge conference on March 29, 2016 the Crown expressed concern that the charge should not foreclose the jury’s consideration of additional examples of after-the-fact conduct potentially relevant to the issue of whether the murder was planned. The Crown invited the judge to include more examples of after-the-fact conduct for the jury to consider as evidence that the murder was planned and deliberate. Specifically, the Crown gave six examples as follows: a. The suggestion that the appellant drove to Bracebridge shortly after the murder and while there used the victim’s phone to place a call to the appellant; b. The sand from Muskoka Falls beach deposited inside the victim’s car; c. The staging of the scene where the body was dumped; d. The quick return to Oakville after dumping the body; e. The content of the anonymous letter blaming the murder on two unidentified women connected to Mr. Maasland through Boxer dogs, and which said his death occurred at Muskoka Falls beach; and f. The complete and thorough clean up of the appellant’s warehouse. [33] Two days later on March 31, 2016 the trial judge sent counsel a revised charge. In a covering email, he indicated as follows: “I believe that my decisions in terms of the issues raised during the pre-charge conference will be manifest in the revised document.” He also said he intended to provide brief written reasons for his decision with respect to three areas, one of which was a decision he made with respect to post-offence conduct. [34] The revised charge provided by the trial judge contained one additional example of after-the-fact conduct relevant to whether the murder was planned and deliberate. He cited the anonymous letter prepared after the murder and its connection to the appellant’s pre-offence internet searches of Paul Maasland, his spouse, London and Boxer dogs. The revised charge was not revised to contain a limiting instruction prohibiting the jury from considering any other after-the-fact conduct when deciding whether the murder was planned and deliberate. [35] The Crown’s closing address commenced the following Monday, April 4, 2016. At the end of the first day of the Crown closing, the judge advised counsel that his written reasons on the issues raised at the pre-charge conference were finished. He said he did not hand them out at the start of the day because he did not want to distract anyone. He went on to say “I don’t think anything in them would be an advantage to one person or another … It just explains why I did what I did.” The judge indicated he was prepared to release the reasons at any time but was also willing to hold on to them until after the closings were complete. Both sides were content to leave the timing of the distribution of the reasons up to the judge. [36] The reasons were in fact distributed the next morning prior to the commencement of the Crown’s second day of her closing address to the jury. In his reasons, the trial judge referred to the six additional items of after-the-fact conduct that the Crown argued were relevant to the issue of planning and deliberation. The judge explained that it was a close call but, in the end, he concluded that the majority of these items of after-the-fact conduct were equally consistent with a plan conceived before or after the killing. He would not, as a result, instruct the jury that these additional items of post-offence conduct were capable of supporting the assertion that the murder was planned and deliberate. [37] In the final hour of the third and final day of the Crown’s closing address, the Crown addressed the jury on the issue of planning and deliberation. The Crown started by noting that the judge would instruct them on the law relating to both planning and deliberation and the use that could be made of the appellant’s after-the-fact conduct as it might bear on that issue. The jury was to take their instructions from the trial judge. [38] After reviewing the pre-offence conduct relevant to the issue of planning and deliberation as well as the circumstances of the killing itself, the Crown concluded her closing address with a review of the after-the-fact conduct which the Crown argued was relevant to planning and deliberation. Included in this part of the closing was a reference to each of the six items of after-the-fact conduct the Crown had advanced during the pre-charge conference and which the judge had since ruled were not relevant to the issue of planning and deliberation. [39] As soon as the jury was released for the day, defence counsel objected to the Crown’s reference to the items of after-the-fact conduct the judge had ruled were irrelevant to planning and deliberation. The next morning defence counsel filed a notice of application seeking a mistrial. [40] Both Crown counsel apologized to the court and to the appellant for running afoul of the court’s ruling on the scope of after-the-fact conduct evidence relevant to the issue of planning and deliberation. The Crown assured the court that its conduct was not intentional but simply the result of not having read the court’s ruling prior to concluding its closing submissions. [41] After hearing submissions on the application, the trial judge dismissed the appellant’s application and indicated that he would provide an immediate curative instruction to the jury. A draft of it was provided to counsel for their review and input. The curative instruction was delivered that same day before defence commenced its closing. It clearly spelled out the after-the-fact conduct the jury could consider on the issue of planning and deliberation and that which it could not. [42] In addition, the charge delivered the next day contained the same curative instruction on after-the-fact conduct. A hard copy of the instructions was provided to the jury for their review during deliberations. [43] With that background we turn to the issue on appeal. The appellant argues that the trial judge erred in denying the mistrial application. He argues that Crown counsel’s closing address showed an egregious disregard for an express ruling. The closing on the issue of planning and deliberation was “passionately and strongly made” on “a central issue in the case”. Although the Crown had a strong case that the appellant had committed the murder, it did not have such a strong case that the murder had been planned. [44] In the appellant’s submission, when viewed in context, Crown counsel’s egregious and improper use of after-the-fact conduct could not be corrected. Through an impermissible step by step line of argument, the Crown had improperly linked and thus embedded in the jury’s mind a combination of relevant after-the-fact conduct and irrelevant conduct, some of which the Crown counsel said was so powerful it could not be overstated. [45] The appellant suggests that the jury may well have been convinced by the painstakingly detailed and powerful climactic conclusion of the Crown’s closing address where it focused on the issue of planning and deliberation. Any instruction telling them to disregard parts of the combined evidence that had convinced them was not about to unconvince them. As trial defence counsel stated in her application for a mistrial, it was “impossible to unring the bell”. [46] We disagree. Counsel acknowledged that the trial judge’s decision to refuse a mistrial and give a corrective instruction is a discretionary one, and that a corrective instruction will usually be sufficient to ensure trial fairness: R. v. Rose , [1998] 3 S.C.R. 262, at para. 126. The declaration of a mistrial is a drastic remedy and only appropriate as a measure of last resort in the clearest of cases where there is a real danger that trial fairness has been compromised: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79; R. v. Chiasson , 2009 ONCA 789, at para. 14. Even in cases where the Crown’s improper closing is not promptly corrected, this court has held that a mistrial is not necessarily warranted: R. v. Mallory , 2007 ONCA 46, 217 C.C.C. (3d) 266, at paras. 342-343. [47] It is also well established that the trial judge’s decision not to grant a mistrial is entitled to a high degree of deference having particular regard to his appreciation of the context and the impact of the submissions on the jury and the suitability of a corrective instruction to negate that impact: Khan , at paras. 79-80; R. v. Zvolensky , 2017 ONCA 273, 352 C.C.C. (3d) 217, at paras. 185-186, leave to appeal refused, [2017] S.C.C.A. No. 403. When the alleged unfairness arises in the context of counsel’s closing address to the jury, a timely and focussed curative instruction will be a sufficient remedy in the vast majority of cases. The central question is whether what was said deprived the accused of a fair trial: R. v. Romeo , [1991] 1 S.C.R. 86, at p. 95. [48] In choosing to provide a curative instruction, the trial judge clearly understood and was guided by the relevant principles and his reasons disclosed no error in principle nor can they be said to be clearly wrong. [49] As the Crown points out, the trial judge’s corrective instruction was timely and complete. It was also repeated as part of his charge. Our faith in the jury system is grounded in the firm belief that juries will follow the instructions they are given by trial judges: R. v. Corbett , [1988] 1 S.C.R. 670, at p. 695. The judge’s instructions here were firm and clear, and the jury could not have misunderstood them. There is no basis on which to conclude they would not follow them. [50] The appellant further argues that the trial judge erred in failing to find that the Crown conduct in this case constituted an abuse of process. In his submission, what Crown counsel did, whether intentionally or through willful blindness, falls into both categories of abuse of process recognized by the courts, as it was both an attack on the appellant’s right to a fair trial and an attack on the integrity of the justice process. Consequently, the appellant submits that a stay of proceedings is necessary and appropriate in the circumstances. We would not give effect to this submission. [51] As the Supreme Court stated in R. v. Babos , 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, there are generally two categories of abuse of process: cases in which state conduct compromises the fairness of an accused’s trial, and cases in which state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process. In the most drastic cases, an abuse of process may justify a stay of proceedings. In order to apply a stay, the court must be satisfied: 1) that the prejudice to the accused’s fair trial rights will be “manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome”; 2) that there is no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”: Babos , at para. 32, citing R. v. Regan , 2002 SCC 12, [2002] 1 S.C.R. 297. [52] Applying this framework, we do not find that the Crown’s error in this case rises to the level of an abuse of process, much less an abuse of process requiring a stay of proceedings. [53] It is apparent that the Crown made a mistake for which it apologized. The Crown who delivered the closing address accepted responsibility for not reviewing the judge’s written reasons on the charge-related issues before concluding her address. In the way the matter unfolded, it would not have necessarily been apparent to Crown counsel that the judge’s ruling required immediate attention and would impact on what the Crown could say in its closing submissions. In fact, the trial judge even offered to delay its release until after the closing addresses were complete. In addition, and contrary to the appellant’s submission, we do not believe the changes the trial judge made to the draft charge would have clearly alerted the Crown to the importance of reviewing the reasons for his ruling or as signalling the trial judge’s view that five of the six elements of post‑offence conduct discussed at the pre-charge conference could not be put forward as post-offence conduct relevant to the issue of planning and deliberation. [54] Even if we were to conclude that the trial judge’s email and draft charge should have alerted the Crown to the important changes contained in the trial judge’s ruling, the Crown’s error does not provide a basis to find an abuse of process. In his ruling on the mistrial application, the trial judge made strong findings of fact that this was a “one off" mistake at the tail end of a trial in which, “of the many things that could go wrong … none did”. There is no basis to interfere with that finding. [55] The fairness of the trial was not irreparably compromised by the impugned portion of the Crown’s closing address. As we have explained, the curative instruction crafted in response to the mistrial application appropriately delineated which elements of the appellant’s after-the-fact conduct could be considered by the jury on the issue of planning and deliberation and which could not. There is no basis to conclude that the jury would not have followed the judge’s instructions. Nor was the integrity of the judicial process undermined. This was simply one misstep in a lengthy and complex murder trial otherwise characterized by exceptional collaboration, professionalism, advocacy and courtesy by counsel on both sides of the case. There is no evidence that the Crown’s submissions were a deliberate attempt to defy the court’s ruling or to mislead the jury. The Crown readily accepted responsibility for its mistake. Finally, the impugned submissions did not denigrate the appellant’s fundamental procedural rights, such as the presumption of innocence, the right to remain silent or the burden of proof. CONCLUSION [56] For these reasons, we dismiss the appeal. Released: June 7, 2021 “G.R.S.” “George R. Strathy C.J.O.” “Paul Rouleau J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hudson, 2021 ONCA 76 DATE: 20210122 DOCKET: M52132 (C65962) & M52143 (C68428) Fairburn A.C.J.O. BETWEEN Her Majesty the Queen Respondent and Jacinda Hudson Appellant AND BETWEEN Her Majesty the Queen Respondent and Justice Okojie Appellant Maija Martin, Iman Amin and David Reeve, for the appellant, Jacinda Hudson Chris Sewrattan, Ashley Sewrattan, and Raj Vijan, for the appellant, Justice Okojie Sarah Shaikh, Christopher Walsh, and Jonathan Geiger, for the respondent Owen Goddard and Rick Frank, for the proposed intervener, the Criminal Lawyers’ Association of Ontario Emily Marrocco, for the proposed intervener, the Attorney General of Ontario Heard: January 22, 2021 via videoconference REASONS FOR DECISION [1] The appeals in R. v. Hudson (C65962) and R. v. Okojie (C68428) are scheduled to be heard before a five-judge panel on February 23, 2021. The respondent’s factum is due on February 5, 2021. [2] The appellants will argue that the decision in Bell v. The Queen , [1983] 2 S.C.R. 471 made clear that the crime of importing is complete at the time that contraband enters Canada. They say that pronouncements to the contrary have wrongly interpreted Bell and expanded the reach of the importing offence beyond its intended limit. [3] The Attorney General for Ontario (“Ontario”) and the Criminal Lawyers’ Association of Ontario (“CLA”) seek leave to intervene in the appeals. The Attorney General for Ontario’s Application [4] Ontario argues that the scope of the actus reus of importing will inevitably impact upon offences under the Criminal Code , those over which the provincial Crown has prosecutorial jurisdiction. In specific, Ontario points to crimes involving the importation of firearms and importation of child pornography: ss. 103 and 163.1 of the Criminal Code . Accordingly, Ontario argues it has a clear interest in the appeals because any determination about when the actus reus of importing ends will necessarily touch on crimes prosecuted by the Province. [5] If granted leave to intervene, Ontario will argue that the actus reus of importing should extend to domestic distributors of firearms, failing which it will not capture those offenders at the heart of the crime. Ontario will also argue that child pornography enters Canada in different ways. Narrowing the actus reus of importing to the immediate entry point into Canada could have the effect of excluding from liability some modes of entry for child pornography, such as when child pornography comes into Canada through a virtual means. [6] The parties consent to Ontario’s intervention. I see no risk of prejudice or unfairness arising from Ontario’s intervention. Leave to intervene will be granted on the terms set out at the end of these reasons. The Criminal Lawyers’ Association’s Application [7] The CLA wishes to advance three arguments: (a) that by looking to the plain meaning of the statute, combined with legislative intent, it is clear that the term “import” ends when contraband enters Canada; (b) that the extension of the actus reus of importing beyond the immediate entry point into Canada results in convictions for importing in circumstances where accused have nothing to do with the actual bringing of the contraband into the country; and (c) affording the term “import” a definition that is susceptible to capturing lower-level drug operators, those who may transport or possess drugs after they are already in the country, will have a disproportionate impact on racialized communities, specifically Black and Indigenous communities. The CLA argues that any such approach will result in higher sentences for racialized communities, those communities that are already overrepresented in the custodial setting. [8] In support of this latter argument, the CLA relies upon five reports and studies. Three of them can be loosely described as prison population statistics, released in the form of annual reports from the federal government. There are also two reports that relate to systemic racism: Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System , Co-Chairs: M. Gittens and D. Cole (Queen’s Printer for Ontario, 1995); Ontario Human Rights Commission, Racial Disparity in Arrests and Charges: An analysis of arrest and charge data from the Toronto Police Service , S. Wortley and M. Jung (Toronto: 2020) . [9] The appellants consent to the CLA intervening on the terms set out in the CLA’s application. [10] While the respondent consents to the CLA intervening, that consent is only extended in relation to the first two issues raised by the CLA. [11] As for the third issue, the respondent argues that the CLA is inappropriately modifying the nature of the appeals. Rather than making the appeal about the definition to be afforded to the term “import”, the CLA is said to be attempting to make the appeal about the issue of the discriminatory effect of Canada’s drug laws. The respondent points out that this particular argument has not formed any part of the prior cases from which decisions have emerged on the issue that the five-judge panel will be considering. [12] I am not persuaded by this argument. Whether other cases have considered the issue or not, contrary to the respondent’s position, I do not take the CLA to be injecting a new issue into the appeal. Rather, the CLA is wanting to contribute to the appeal by highlighting the context within which drug offences are committed, investigated, prosecuted, tried and sentenced. This is not, as the respondent suggests, an attempt to introduce a quasi-s. 15 Charter argument into the appeal. The CLA’s position is not unlike other cases where social context evidence, as advanced by interveners, has been considered: see for example, R. v. Golden , 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 81. [13] The respondent also argues that the CLA is attempting to improperly augment the record before the court on this appeal. The respondent points to Canada (Citizenship and Immigration) v. Ishaq , 2015 FCA 151, [2016] 1 F.C.R. 686, at para. 22, where the court addressed the inappropriate attempts by interveners to prove matters of “social science” under the “guise of authorities”. While I accept that the line between a proper placement of materials before the court and an inappropriate augmentation of the record is not always easy to draw, in my view, the materials advanced by the CLA do not cross that line. [14] It seems to me that the contextual position that the CLA wishes to advance is not particularly controversial. At its core, that position is rooted in the overrepresentation of Black and Indigenous persons in the prison system in this country, including the overrepresentation of these individuals in relation to drug-related matters. All of the reports and statistical materials that the CLA wishes to rely upon are publicly available, many of which are produced by those in the employ of the federal government. The statistics arise from federal government data, made available on federal government websites. It is precisely the kind of data that this court recently relied upon in R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209 at para. 95, leave to appeal to SCC granted, 39346 (January 14, 2021) – data which was placed before the court by interveners . [15] As for the reports, at least one has been judicially cited in the past: R. v. Hamilton (2003), 172 C.C.C. (3d) 114 (Ont. S.C.J.), at para. 106, appeal dismissed (2004), 186 C.C.C. (3d) 129 (Ont. C.A.). The other report, commissioned by the Ontario Human Rights Commission, is fairly recent. [16] While there are circumstances where an intervener will be precluded from augmenting the record, in my view, the materials proposed to be filed by the CLA are largely non-controversial. In any event, in my view, it is better to leave this matter with the panel hearing the appeal. As the CLA acknowledges, it may be that the panel will not be persuaded by their position that the contextual backdrop against which drug-related offences take place informs the limits that should be placed on the actus reus of importing. I would leave that determination to the panel hearing the appeal. [17] The respondent maintains that if the CLA is granted intervener status, and is permitted to advance all arguments, the respondent may have to file further materials. No one objects to that request. [18] I order as follows: (a) The Attorney General for Ontario is granted leave to intervene on the basis of the argument set out in the application materials; (b) The CLA is granted leave to intervene on the basis of the argument set out in the application materials; (c) The interveners will file factums no more than 15 pages in length, to be filed no later than February 2, 2021; (d) The interveners will be granted 15 minutes each to make oral argument at the hearing of the appeals; (e) In response to the interveners’ written arguments, the parties may each file a factum of no more than 10 pages in length, to be served and filed no later than February 10, 2021. “Fairburn A.C.J.O.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. I.A.D., 2021 ONCA 110 DATE: 20210222 DOCKET: C67840 Fairburn A.C.J.O., Juriansz and Huscroft JJ.A. BETWEEN Her Majesty the Queen Appellant and I.A.D. Respondent Dena Bonnet, for the appellant Sean May, for the respondent Heard: February 9, 2021 by video conference On appeal from the acquittals entered by Justice Julie Bourgeois of the Ontario Court of Justice on December 4, 2019. REASONS FOR DECISION Overview [1] The respondent was charged with one count each of sexual assault and sexual interference. There were two main questions at trial: (a) did the appellant prove beyond a reasonable doubt that the complainant did not consent to the sexual activity; and, if so, (b) did the respondent have an honest but mistaken belief in communicated consent? [2] The trial judge answered the first question in the affirmative, concluding that the complainant did not consent to the sexual activity in question. [3] The trial judge then went on to consider the second question, whether the respondent had an honest but mistaken belief in communicated consent at the time that the sexual activity took place. On this point, the trial judge concluded that she could not “reject his defence of honest but mistaken belief in communicated consent” and, therefore, entered acquittals on both counts. [4] The appellant appeals to this court on the basis that the trial judge erred in her analytical approach to the defence of honest but mistaken belief in communicated consent. Specifically, the appellant argues that the trial judge failed to consider a statutory prerequisite to the availability of that defence, which is the need for the respondent to have taken “reasonable steps” in ascertaining the complainant’s consent: Criminal Code , R.S.C. 1985, c. C-46, s. 273.2(b). The absence of any reasoning on this point is said to lead to inadequate reasons that do not give full effect to the relevant provisions of the Criminal Code : see R. v. Gagnon , 2018 CMAC 1, 427 D.L.R. (4th) 430, at paras. 36, 44-45, aff’d 2018 SCC 41, [2018] 3 S.C.R. 3 . Hence, such a failure to consider s. 273.2(b) of the Criminal Code is a reversible error. We agree. Therefore, we allow the appeal, set aside the acquittals, and order a new trial on both counts. Brief Factual Background [5] The complainant was 15 and the respondent was 18 at the time of the alleged offences. They knew one another because the complainant would sometimes buy cannabis from the respondent. [6] The complainant appears to have been experiencing difficult life circumstances in and around the time of the alleged offences. She had moved away from her parental home and was living at a friend’s place in the months preceding the alleged offences. One evening, she decided to go out with the respondent and two of his friends. The police stopped the group at around 2:47 a.m. The complainant testified that she was asked by the respondent to take a Xanax pill so that the police would not catch the respondent in possession of the pill. As it was dark at the time, the complainant was unsure as to whether it was a full-sized pill. At this time, the police arrested one of the friends for breach of probation. [7] Eventually, the complainant and the respondent ended up at the home of the remaining friend. The three individuals were all in the basement of that home together. The friend soon fell asleep in his bed. While the complainant and respondent were initially on two separate couches, the respondent motioned to her to come to the larger couch where he was laying down with the only blanket in the room. She was cold and decided to accompany him on that couch. [8] From here, the complainant’s and the respondent’s evidence diverged at trial. The complainant acknowledged that she initially moved close to him and rubbed against him. He was aroused. She said that the respondent started to digitally penetrate her. He pulled her pants down. She attempted to get off of the couch, but she tripped. The respondent pulled her back onto the couch, held her closer to him, and then, as she put it, “He started having sex with me and I said no.” When she realized he was not going to stop, she said that “we should put a condom on and he told me that that was childish of me, and then he continued until he was done and then he rolled over and that was that.” The complainant said that the respondent withdrew his penis just prior to ejaculation, leaving ejaculate on and around her vagina. [9] The respondent testified that it was the complainant who initiated the sexual contact. According to the respondent, he got aroused when the complainant started rubbing against him. He testified that he asked her if she wanted to “fuck”, and she said “yes, do you have a condom?” His evidence on this point was as follows: I asked her if she wanted to fuck, and she says yes, do you have a condom? And so I said no, those are for children. I was trying to blow off the fact that I didn’t really have a condom on me and we were – so just the bum grinding still keeps happening and I end up start pulling down the right side of her leggings, and she ends up lifting the left side of her hip to get down the left side of her pants with me to help. [S]he had to sit up and like perk her hip up, and then pull down the left side to help me get it down. They were leggings, so they were quite tight. And – yeah so just after that we had sex, it didn’t last very long[.] [10] When asked what his understanding was with respect to whether the complainant was consenting to this sexual activity, the respondent answered: “For the most part, I knew she said yes. However, she never made it, she never said no, she never showed me that she didn’t want any sex or anything, she said yes and continued giving me signs that like there was – this is okay.” On the issue of the condom, the respondent acknowledged the following later in his evidence: [S]he never told me no we’re not having sex if you don’t have a condom. She said yes – yes do you have a condom, I said no, those are for children and we continued to fool around on the couch. The Trial Judge’s Failure to Address Reasonable Steps [11] The trial judge correctly resolved the issue of the absence of the complainant’s consent for the purposes of the actus reus of the offences. Here, the trial judge adverted to the need to focus upon the complainant’s subjective state of mind. Ultimately, the trial judge concluded that she was satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity. [12] The trial judge then moved on to consider the only other triable issue: “This leaves the final question, is there an air of reality to the defence of honest but mistaken belief in communicated consent, and if so, does it raise a reasonable doubt?” Unfortunately, the trial judge’s reasons are wanting in relation to this issue. [13] Section 273.2 of the Criminal Code places important limits on the defence of honest but mistaken belief in communicated consent, including s. 273.2(b), which states “ [ i ] t is not a defence” where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. As Moldaver J. held in R. v. Barton , 2019 SCC 33, 376 C.C.C. (3d) 1, at para. 104, s. 273.2(b) “imposes a precondition to the defence of honest but mistaken belief in communicated consent – no reasonable steps, no defence” (emphasis added). [14] There are both objective and subjective dimensions to this defence. The accused must take steps that are objectively reasonable in the circumstances, and the reasonableness of the steps must be considered in light of the circumstances known to the accused at the time: Barton , at para. 104. [15] We agree with the appellant that this case required a clear inquiry into the reasonable steps potentially taken by the respondent. This is particularly true given both the complainant and respondent’s clear evidence that she asked for a condom, yet the sexual intercourse ensued without one. Even taking the respondent’s evidence at its highest, this is a circumstance that was known to him at the time that the intercourse commenced, yet he did not inquire of the complainant whether she wished to proceed without a condom. Instead, he chose to rely upon what he perceived from the complainant’s actions, as described by him: the continued physical grinding by the complainant; the movement of her hip; and her assistance with pulling down one side of her pants. [16] The trial judge’s reasons are entirely silent as to whether the respondent took any objectively reasonable steps in light of the circumstances known to him at the time. Instead, the trial judge reviewed the evidence, made conclusions about what she could not reject, and then satisfied herself that it was impossible to reject the defence of honest but mistaken belief in communicated consent. The trial judge’s reasoning can be summarized as follows: (i)  She could not reject the respondent’s evidence that he asked the complainant if she “wanted to fuck” or the complainant’s evidence that she asked if he had a condom. (ii)  She was “not convinced by his evidence that [the complainant] actually said the word ‘yes’”, but could not reject the respondent’s evidence that when he “tried to brush off the fact that he did not have a condom”, the complainant continued to rub against his penis and “perked her hip up and pulled the right side of her pants.” [17] On this basis, the trial judge concluded: It is impossible to reject his evidence that he honestly but mistakenly believed she was communicating her consent by her actions of rubbing against his penis, and then assisting him in the removal of her pants. I certainly accept his evidence that this only lasted a minute or two, and that it was bad sex. [I]n the end, given the totality of the evidence, one cannot reject his defence of honest but mistaken belief in communicated consent. [18] We cannot accept the respondent’s position that the reasonable steps inquiry is implicit in the trial judge’s reasoning set out above. To the contrary, the reasoning seems to focus exclusively upon why the respondent could be said to have honestly but mistakenly believed the complainant to be consenting. In our view, the trial judge’s reasons do not explicitly or implicitly address the prerequisite of reasonable steps. [19] The reasonable steps inquiry is a fact-specific one. Clearly, those steps cannot arise from the complainant’s silence, passivity, or ambiguous conduct: R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 51; Barton , at para. 107. Whether the complainant “perked” her hip or not, or helped with pulling down one side of her pants or not, is at best ambiguous conduct, particularly ambiguous as to what the complainant may or may not have been consenting to. This is especially true given the trial judge’s finding of fact that the complainant “asked if he had a condom.” In the circumstances of this case, failing to specifically address the prerequisite of reasonable steps, constitutes a reversible error. The Remedy [20] The appellant asks us to allow the appeal and, pursuant to s. 686(4)(b)(ii) of the Criminal Code , enter convictions on both counts. While we agree that the acquittals must be set aside, we decline to enter convictions. [21] Although the appellant’s position has much force, the trial judge’s reasons are insufficiently clear to permit this court to confidently enter convictions. Among other issues, the reasons for judgment lack clarity on factual findings and are devoid of credibility assessments. For instance, it appears that the trial judge concluded that the actus reus of the sexual assault was made out, not because she believed the complainant, but because of the respondent’s evidence, where he testified that “for the most part he knew she said yes”. Indeed, nowhere in the reasons does the trial judge articulate credibility findings with respect to either the complainant or respondent. [22] The combined absence of clear credibility and factual findings deprives this court of the type of clarity required when determining whether the respondent is, in fact, guilty. This task is better left to a new trial judge, who will be best positioned to make all requisite credibility and factual findings. Disposition [23] The appeal is allowed, the acquittals are set aside, and a new trial is ordered on both counts. “Fairburn A.C.J.O.” “R.G. Juriansz J.A.” “Grant Huscroft J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ignacio, 2021 ONCA 69 DATE: 20210203 DOCKET: C67188 Pepall, van Rensburg and Brown JJ.A. BETWEEN Her Majesty the Queen Respondent and Kenneth Ignacio Appellant Michael Dineen, for the appellant Jeffrey Wyngaarden, for the respondent Heard: October 20, 2020 by video conference On appeal from the conviction entered on March 7, 2019 by Justice P. Andras Schreck of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 1511. Pepall J.A. : I. Introduction [1] The appellant, Kenneth Ignacio, appeals from his conviction for sexual assault. He raises one ground of appeal. He argues that the trial judge erred in finding that the complainant had no motive to fabricate and in considering this as a factor in assessing her credibility. [2] The appellant says that the trial judge found a proven absence of motive to fabricate, even though the evidence did not support such a finding. At most, the trial judge could have found an absence of evidence of motive to fabricate. The trial judge then wrongly used his finding that the complainant had no motive to fabricate to enhance her credibility. [3] For the reasons that follow, I would dismiss the appeal. Placed in context, the trial judge rejected the motive to fabricate argument advanced by the appellant. He was entitled to consider the absence of evidence of a motive to fabricate as one of many factors in his credibility analysis. II.       Facts [4] The appellant and the complainant, who are both in their early twenties, met at a concert at the end of April 2017. Over the next few days, they exchanged text messages. A few days later, they both attended a barbecue at the home of the appellant’s cousins. The complainant drove in her car and arrived around 11 p.m. The appellant was already there. Both the appellant and the complainant agreed that he was very intoxicated. When it was time to leave the barbeque about an hour and a half later, the complainant offered to drive the appellant home. She had consumed very little alcohol and was sober. The appellant accepted the offer of a lift. [5] They kissed in the car as the complainant was driving the appellant home. She testified that he insisted on giving her a kiss each time they stopped at a red light and that she agreed to do so the third time they stopped. The appellant testified that they kissed at each red light. [6] She drove onto Highway 401 and then they agreed to exit and park the car. According to the complainant, he asked her to pull over so they could talk and he could sober up. According to the appellant, he had jokingly mentioned that kissing in the car might result in an accident and she then told him that she knew of a place they could go. She pulled off the highway and parked in a nearby parking lot. [7] The appellant got in the back seat and invited the complainant to join him. The complainant testified that she agreed to do so but told him that she would only kiss him and do nothing else and she wanted him to understand that she would not have sex with him. He denied that she had said anything about not having sex with him before getting into the back seat. [8] They began kissing in the back seat. The appellant put his hand up her shirt and under her bra and started to unbutton her pants. According to the complainant, she told him to stop, but he said that he would make her feel good and then took off her pants. He said she arched her back to facilitate their removal but she said he did so without any assistance from her. [9] He performed oral sex on the complainant for about three minutes, according to the complainant. He then pulled his pants down and exposed his penis. She testified that he said, “Are you really not going to…”, which she took to mean he wished her to perform fellatio on him, which she did. [10] The appellant told the complainant that the fellatio was “not working” for him, and that he wanted to have sex. [11] The complainant’s and the appellant’s accounts then diverged. [12] According to the complainant, she told him that they were not going to have sex and that things had “already gone too far”, saying, “I am not having sex with you, not now, not tonight, not ever.” She testified that the appellant nonetheless forcefully penetrated her vagina without her consent. She told the appellant to stop and hit him on the chest, but he grabbed her hands and pushed them down beside her. After he had finished, the complainant moved to the front seat. She testified that he sat next to her and said, “S., you didn’t really want that. I raped you.” [13] According to the appellant, after the complainant performed fellatio on him, he said, “Can we just like do it?” (or words to that effect), meaning he wished to have sexual intercourse, and she responded by saying, “Don’t ejaculate inside me”, or, “Yes, but just don’t ejaculate.” He agreed not to but unintentionally did so. He denied that she ever said anything to indicate that she did not consent to sexual intercourse. He said she “freaked out” and was horrified when he told her he had ejaculated inside her. [14] She searched on her phone for a pharmacy so that she could purchase a contraceptive pill. According to the complainant, the appellant insisted on accompanying her, whereas he said he accompanied her at her request. The complainant took the pill and then dropped the appellant off at an intersection. He said that before leaving the car, he gave her a hug and said that he was sorry for ejaculating inside her. [15] The complainant called a friend and told her what happened but not the details. She asked her friend to stay on the phone until she got home. The complainant’s phone records show that she made a 16-minute call at 4:06 a.m. on May 1, 2017. [16] The next day, the complainant went to her place of employment and then to the hospital with a friend from work for a “rape kit” examination. She subsequently contacted the police. Her friend from work testified that when the complainant arrived at work, she looked disheveled, had obviously been crying, and was pale. On the way to the hospital, she was upset, crying, and “shaky”. She would calm down from time to time only to start crying again. [17] At 2:43 p.m. on May 1, 2017, the appellant sent a text message to the complainant saying, “Hey just woke up. How are you? I hope everything’s fine with you”. It was followed by another text message saying, “I’m truly sorry for last night”. He testified that he was apologizing for having ejaculated inside of the complainant. The complainant did not respond to his text messages. [18] In sum, at trial, the complainant testified that the sexual intercourse was not consensual and the appellant testified that it was. III.      Trial Judge’s Decision [19] The trial judge rejected the appellant’s evidence and held that it did not raise a reasonable doubt. The central difficulty with the appellant’s evidence was his intoxication at the time of the events. His intoxication affected both his reliability and his credibility. The appellant himself had testified that he was binge drinking to the point of blacking out and only recalled “bits and pieces” of the evening. This affected his reliability because intoxication affects one’s ability to perceive and recall events. [20] The intoxication also affected the credibility of the appellant’s evidence. The trial judge found that the appellant’s claim to be able to recall every detail of his sexual interaction with the complainant was inconsistent with his high degree of intoxication. The trial judge found that the appellant was willing to “fill in blanks” in his testimony when necessary. [21] The trial judge accepted the complainant’s evidence. He found the complainant’s evidence was “plausible and consistent” and she was not “prone to exaggeration”. She candidly admitted that some of the sexual activity, such as the oral sex, was consensual. He also considered the evidence of the complainant’s work friend on the complainant’s emotional state the day after the alleged sexual assault and concluded that it supported the complainant’s testimony. [22] The trial judge rejected the defence’s allegation that the complainant had a motive to fabricate. He commented on motive in two paragraphs, the first of which is the contentious one for the purpose of this appeal and is placed under the heading “[The Complainant’s] Evidence”: I note as well that [the complainant] had no motive to falsely accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I am mindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witness would testify falsely: R. v. Krack (1990), 56 C.C.C. (3d) 555 (Ont. C.A.), at pp. 561-562. Nonetheless, this is a factor to consider: R. v. Jackson , [1995] O.J. No. 2471 (C.A.), at para. 4; R. v. Plews , 2010 ONSC 5653, at para. 335. I recognize that the defence has alleged a motive to fabricate that is related to [the complainant’s] fear of having become pregnant, an issue I will address later in these reasons. [23] Two paragraphs later, under the heading “The Alleged Motive to Fabricate”, the trial judge wrote the following: It was submitted on behalf of Mr. Ignacio that [the complainant] had a motive to fabricate a sexual assault because she was afraid that she had become pregnant as a result of Mr. Ignacio ejaculating inside her and needed to explain any pregnancy to her parents in such a way as to absolve herself of having any responsibility for the situation. It was also submitted that this fear of pregnancy explains why [the complainant] was so upset the following day. In my view, the problem with this theory is that [the complainant] had the wherewithal to obtain a “morning after” pill immediately after Mr. Ignacio ejaculated inside her. She took the pill and there is no suggestion that she had any reason to think that it would not work. She had no real reason to believe that she was pregnant. Even if she had such a fear, it is difficult to understand why she would subject herself to a “rape kit” examination the following day. If she was worried about being pregnant, surely undergoing a pregnancy test would have made far more sense. [24] The trial judge accepted the complainant’s evidence and found beyond a reasonable doubt that the appellant sexually assaulted her. IV.     Parties’ Positions [25] The appellant submits that the trial judge erred in finding that the complainant had no motive to fabricate. The evidence was not capable of supporting such a conclusion and the finding could not properly be used to infer that the complainant was telling the truth. Evidence of a prior good relationship between the appellant and the complainant is not sufficient to justify a positive finding that the complainant had no motive to fabricate and cannot be used to infer that the complainant was telling the truth. [26] The appellant submits that the trial judge’s error affected the result. The appellant’s evidence was not inherently implausible, and the trial judge might have had a reasonable doubt had he not relied on the supposed proven lack of motive to fabricate in accepting the complainant’s evidence. The appellant argues that the structure of the trial judge’s reasons also supports his improper reliance on absence of motive to fabricate. [27] The Crown submits that the trial judge’s reasons should not be read as containing an affirmative finding that there was no motive to fabricate. Read in context, the trial judge’s comments were responsive to the arguments surrounding motive made by the defence. The trial judge did not reverse the onus of proof or improperly infer that the complainant was telling the truth because there was no apparent motive for her to lie. [28] Even if the trial judge erred in conflating the absence of evidence of motive to fabricate with a finding of no motive to fabricate, the Crown argues that the error did not cause a miscarriage of justice and the appeal should be dismissed based on the curative proviso . V.      Analysis [29] “The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible”: R. v. John , 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John , at para. 93: The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.) , 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.) , at para. 44. [Emphasis added.] [30] In addressing this appeal, there are in essence two questions that require a response: (i)     Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crown asserts, simply an absence of evidence of any motive to fabricate? (ii)     If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting to an absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant’s credibility? (a) Proof of no motive to fabricate [31] The first part of the appellant’s argument is that the trial judge made a positive finding that the complainant had no motive to fabricate when the evidence did not permit him to do so. While the cases leave open the possibility that the Crown can prove that a complainant had no motive to fabricate, they set a high bar for proving no motive to fabricate. This is because motives can remain hidden or there may be no motive at all: R. v. Bartholomew , 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 22. [32] If the Crown has proven that the complainant had no motive to fabricate, the Crown has “a powerful platform to assert that the complainant must be telling the truth”: Bartholomew , at para. 21. However, in most cases, the trier of fact will be faced instead with an absence of evidence of any motive to fabricate on the part of the complainant. [33] In this case, had the trial judge found that the Crown had proven no motive to fabricate, such a finding would have been in error. The only evidence upon which the trial judge could make this finding was the evidence that the complainant and the appellant had a prior good relationship. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate: Bartholomew , at para. 25; and L.L. , at para. 45. [34] However, I am not persuaded that the trial judge found that the Crown had proven no motive to fabricate. If that had been the case, as discussed, the Crown would have had “a powerful platform” to assert that the complainant was telling the truth. One would expect such a finding to play a much more prominent role in the trial judge’s analysis of credibility than it did. Instead, it simply amounted to an “observation” and “a factor to consider”, to use the trial judge’s words. [35] Moreover, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In the context of the defence submissions, he was entitled to look to the evidence for any suggestion of motive and conclude that there was no such evidence. The trial judge’s reference to the state of the relationship between the complainant and the appellant does not reflect a finding that the complainant had no motive to fabricate. It is equally consistent with a finding that there was no evidence of any motive to fabricate. [36] In my view, the language the trial judge used and the context are much more reflective of a finding that there was an absence of evidence of any motive to fabricate. The trial judge did not find that the Crown had proven that the complainant had no motive to fabricate. He effectively found that there was an absence of evidence of any motive to fabricate, and he treated this finding as one factor in the credibility analysis. (b) Absence of evidence of motive to fabricate may be considered in credibility analysis [37] This does not end the matter, however. The question then becomes: was the trial judge entitled to treat the absence of evidence of motive to fabricate as a consideration in assessing the complainant’s credibility? [38] Both R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.) and L.L. say that the absence of evidence of motive may be considered as a factor in assessing credibility. [39] In Batte , the appellant was convicted of sexual offences in relation to two complainants. Among other things, the appellant argued that the trial judge erred in instructing the jury that they could ask themselves why the complainants would have fabricated the allegations and subjected themselves to the trial process. At trial, the defence had argued that the complainants hated the appellant, and their hatred motivated them to fabricate the allegations: at para. 119. [40] Doherty J.A. confirmed that juries are entitled to consider whether there is evidence of a motive to fabricate, and he identified problems for trial judges to avoid in instructing on this issue, writing, at paras. 120-121: It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility . What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that the complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate is only one factor to be considered in assessing credibility . [Footnote omitted; emphasis added.] [41] Doherty J.A. held that the trial judge had not erred in his instruction to the jury because, looking at the charge as a whole, the jury would have understood that in assessing the complainants’ credibility, they were required to consider many factors, and not only the issue of motive: at para. 125. It would have been preferable, however, for the trial judge to have reminded the jury “that motives sometimes remain hidden and that the absence of a motive to fabricate evidence was not determinative of the truth of the complainant’s evidence”: at para. 125. [42] In L.L. , a 2009 decision of this court, the appellant was convicted of incest following a jury trial. The trial Crown had asked a series of improper questions of the appellant’s son relating to the complainant’s motive to fabricate, and in closing submissions, relied heavily on the theory that the complainant had no motive to fabricate. [43] This court allowed the appeal. The Crown’s closing submissions suggested that the Crown had proven a lack of motive to fabricate when the evidence was incapable of supporting such a conclusion. The Crown also created a risk that the jury would leap to the conclusion that the complainant must be telling the truth if there was no demonstrated motive for her to lie. [44] In outlining what the trial judge ought to have told the jury, Simmons J.A. did not say that the trial judge should have told the jury they could not consider the absence of any apparent motive to fabricate. On the contrary, she said that the trial judge should have told the jury that they could consider it, but only as one factor among many: at paras. 19, 53. See also, R. v. M.B. , 2011 ONCA 76, 267 C.C.C. (3d) 72. [45] The appellant relies on R. v. Sanchez , 2017 ONCA 994 and Bartholomew in support of his position that absence of evidence of motive to fabricate is an improper consideration in a credibility analysis. He does not suggest that Bartholomew and Sanchez have overruled Batte and L.L. Rather, he says that these more recent decisions have clarified the proper treatment of the absence of evidence of motive to fabricate, which is that it should not be considered as anything more than a “neutral” factor. [46] I am not persuaded that Sanchez and Bartholomew stand for the proposition advanced by the appellant, which would arguably be inconsistent with Batte and L.L. [47] In Sanchez , Nordheimer J.A. allowed the appeal of convictions for historical sexual offences and accepted that the trial judge made multiple errors in assessing credibility, one of which was the trial judge’s reasoning on motive to lie. However, at para. 30, he observed, that “individually none of the failings I have identified might prove fatal to the trial judge’s credibility findings”. While he did note, at para. 25, that the absence of a proven motive to fabricate is not particularly probative of a witness’s credibility, he did not prohibit trial judges from considering the absence of evidence of motive to fabricate. Rather, he commented that this is an unreliable factor, and it should not be used “as a foundation to enhance the witness’ credibility” (emphasis added). I understand this statement as a caution against placing an improper emphasis on the absence of evidence of motive to fabricate. This is consistent with what this court said in Batte and L.L. that this is only one factor among many. [48] To this I would add Nordheimer J.A.’s most recent statement in R. v. W.R. , 2020 ONCA 813, at para. 18: I begin this issue by noting that there is a difference in law between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). The former is an element that may be considered in assessing the credibility of a witness, but it is only one element. On the other hand, the latter may be a compelling reason to conclude that the witness is telling the truth. [49] In Bartholomew , this court allowed the appeal because “the trial judge erred in concluding that there was a proved absence of motive. This conclusion impacted the trial judge’s assessment of the complainant’s credibility, which was a central issue in the case”: at para. 9. [50] Trotter J.A. went on to explain that the evidence in Bartholomew was not capable of supporting the conclusion that the complainant had no motive to fabricate: at paras. 24-26. The “evidence of a good relationship between the complainant and the appellant was not capable of proving that the complainant had no motive to fabricate; it could do no more than support the conclusion of an absence of evidence of a proved motive”: at para. 25. “This state of affairs was not capable of enhancing the complainant’s credibility, as the trial judge did. At best, it was a neutral factor ” (emphasis added): at para. 25. [51] As I read Bartholomew , Trotter J.A. did not go so far as to say that the absence of evidence of motive to fabricate will always be a “neutral factor” in the credibility analysis. He did not say so explicitly in his summary of the law at paras. 20-23, although he did caution trial judges against moving “from an apparent lack of motive to the conclusion that the complainant must be telling the truth”: at para. 22. His comment at para. 25 that the evidence of a good relationship between the complainant and appellant was a “neutral factor” was made in the context of that particular case. The real problem in Bartholomew was the trial judge’s finding that the complainant had no motive to fabricate, which was unsupported by the evidence. In my view, without a more explicit statement, Bartholomew should not be read as having revised the principles established in Batte and L.L. [52] Consistent with this interpretation, in several cases following Bartholomew (see, for example, W.R. ; R. v. Mirzadegan , 2019 ONCA 864; and R. v. MacKenzie , 2020 ONCA 646 0F [1] ), this court has confirmed that the trier of fact is entitled to consider the absence of evidence of motive to fabricate as one factor in assessing the complainant’s credibility. As in Batte and L.L. , the cases caution against placing an improper emphasis on the absence of evidence of motive to fabricate, finding a proven absence of motive when the evidence does not support such a finding, and placing an onus on the accused to prove the complainant had a motive to lie. But, assuming these errors are not present, the trier is entitled to consider the absence of evidence of motive to fabricate as one factor among many in assessing the complainant’s credibility. [53] In MacKenzie , Doherty J.A., writing for himself, van Rensburg and Trotter JJ.A., confirmed that the absence of evidence of motive to fabricate may be left with the jury as a factor to consider in assessing the complainant’s credibility . In MacKenzie , the appellant argued that Crown counsel improperly invited the jury to find that the appellant’s failure to prove a motive to fabricate on the part of the complainant confirmed the complainant’s evidence. The defence argued at trial that the complainant was fabricating her evidence and suggested two possible motives. [54] Doherty J.A. rejected the appellant’s argument, observing, at para. 34: It was open to the jury to reject the motives to fabricate offered by the defence and to conclude there was no evidence of a motive to fabricate. If the jury took that view, the absence of any evidence of a motive to fabricate could be used as one factor in assessing [the complainant’s] credibility: see R. v. J.(H.) , 2020 ONCA 165, at paras. 145-46. [55] Doherty J.A. held that a brief reference to motive in the Crown’s closing address did not place any onus on the defence to prove that the complainant had a motive to lie, in light of the trial judge’s “repeated and correct instructions on the burden of proof, and the manner in which he dealt with the relevance of a witness’s potential motive”: at para. 38. [56] Lastly, a case that bears some similarities to the case under appeal is this court’s decision in R. v. O.M. , 2014 ONCA 503, 313 C.C.C. (3d) 5. There this court dismissed an appeal where the trial judge explicitly found that the Crown had “proven an absence of a motive” to fabricate the allegations (at para. 106), or put differently, no motive to fabricate. Before this court, the appellant argued that “the trial judge erred by finding that the Crown had established the complainants’ lack of a motive to fabricate”: at para. 104. This court rejected that argument. [57] Cronk J.A., writing for the court, accepted the distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate: at para. 107. She held that there was “no basis to conclude that the trial judge confused the absence of evidence of a motive to fabricate with the absence of such a motive”: at para. 108. The trial judge considered and rejected the defence suggestion that each complainant had a motive to fabricate. He did not suggest that the complainants must be telling the truth because no motive to fabricate had been demonstrated. Instead, he considered the absence of an established motive to fabricate as only one factor among many in assessing the complainant’s credibility. This was not in error, as it was consistent with Batte . Cronk J.A. concluded that it was “open to the trial judge to find an absence of apparent motive by the complainants to fabricate”: at para. 109. [58] In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider. [59] In this case, the trial judge’s treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant’s credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider. As in W.R. , the trial judge’s comment about motive did not “drive the trial judge’s credibility findings”, nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth. [60] Credibility findings are the province of the trier of fact. In this case, the trial judge clearly had no reasonable doubt that the appellant was guilty of sexual assault. His treatment of motive to fabricate did not infect that conclusion. In these circumstances, there is no need to rely on the curative proviso. VI.     Disposition [61] For these reasons, I would dismiss the appeal. Released: February 3, 2021 (“S.E.P.”) “S.E. Pepall J.A.” “I agree. K. van Rensburg J.A.” “I agree. David Brown J.A.” [1] Paciocco J.A.’s comments in R. v. A.S. , 2020 ONCA 229, and the court’s comments in R. v. S.H. , 2020 ONCA 34, arguably could be interpreted as being to the contrary. However, the issue of motive to fabricate was not central to those appeals and the comments in both cases were obiter .

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.A., 2021 ONCA 93 DATE: 20210211 DOCKET: M52166 (M51556) Trotter, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and J.A. Applicant Leora Shemesh, for the applicant David Friesen, Eric Taylor and Nicole Rivers, for the respondent Heard: February 5, 2021 by videoconference On review of the order of Justice Russell Juriansz of the Court of Appeal for Ontario, dated November 4, 2020. By the Court: [1] On October 21, 2020, a panel of this court ordered that the applicant be detained pending his trial on two counts of first degree murder, and one count of attempted murder, following two shootings linked to organized crime. [2] The applicant has sought leave to appeal this decision to the Supreme Court of Canada. In the meantime, he applied to this court seeking bail pending his application for leave to appeal; alternatively, he sought a stay of execution of the decision detaining him. Juriansz J.A., sitting as a single judge of this court, denied both heads of relief. The applicant now seeks to review both aspects of Juriansz J.A.’s decision before a panel of this court. [3] At the conclusion of the oral hearing, we announced our decision to dismiss the application, with reasons to follow. These are our reasons. Background (a) History of the Bail Proceedings [4] This application is the latest chapter in the applicant’s effort to be released on bail while he awaits his trial. [5] On July 30, 2019, Parayeski J. denied the applicant’s first bail application, brought under s. 522(2) of the Criminal Code , R.S.C. 1985, c. C-46: R. v. J.A . , 2019 ONSC 4532. On October 21, 2019, a panel of this court dismissed a review of that detention order under s. 680: R. v. J.A . , 2019 ONCA 831. [6] The applicant brought another bail application under s. 522(2), relying on asserted changed circumstances, including a revised release plan with new sureties. This time, he was successful. Goodman J. released him on April 16, 2020 on strict conditions, with named sureties in the amount of $300,000, augmented by electronic monitoring: R. v. J.A . , 2020 ONSC 2312. [7] The Crown applied under s. 680 to review Goodman J.’s release order. Fairburn J.A., as she then was, directed that a panel review the decision: R. v. J.A. , 2020 ONCA 470. On October 21, 2020, Thorburn J.A. (Miller J.A., concurring) allowed the application and imposed a detention order under s. 680(1)(b) of the Criminal Code ; Nordheimer J.A., dissenting, would have dismissed the Crown’s application: R. v. J.A . , 2020 ONCA 660 (the “October 2020 Order”). [8] On October 21, 2020, the applicant applied to the Supreme Court of Canada for leave to appeal the October 2020 Order, pursuant to s. 40 of the Supreme Court Act , R.S.C. 1985, c. S-26. (b) The Order Under Review [9] After filing his application for leave to appeal, the applicant applied to a single judge of this court for the following relief: first, purporting to rely on s. 679(1)(c) of the Criminal Code , the applicant requested bail pending his application for leave to appeal; and second, in the alternative, he relied on s. 65.1 of the Supreme Court Act and requested a stay of this court’s October 2020 Order pending his application for leave to appeal. On November 4, 2020, Juriansz J.A. dismissed the application. [10] Juriansz J.A. concluded that he did not have jurisdiction to release the applicant under s. 679(1)(c) of the Criminal Code . As he explained, at para. 11: Section 679, when read in context of the Code ’s entire bail regime, is inapplicable to a person, such as the applicant, who is awaiting trial. Section 679, when read in context and given its plain grammatical meaning, applies to a person who has been convicted and allows this court to release them from custody pending the determination of an appeal of conviction and/or sentence. Section 679(1)(c) does not provide a route to have a single judge of this court review a decision of this court made under s. 680, albeit on an interim basis . [Emphasis added.] [11] As for the applicant’s alternative request for relief – a stay of proceedings – Juriansz J.A. ruled as follows, at para. 13: As I have concluded I do not have jurisdiction to grant that the applicant be released under s. 679(1)(c), he requests that I consider the merits of his application for release and issue a stay of this court’s October 21, 2020 order. I decline to do so, as doing so would circumvent the statutory scheme of judicial release . [Emphasis added.] (c) The Supreme Court of Canada [12] On November 17, 2020, the applicant applied to the Supreme Court of Canada for a stay of the October 2020 Order (the “November 2020 Application”). In the alternative, he requested that his case be remitted back to this court “for a determination pursuant to s. 679(1)(c)”. On January 18, 2021, Martin J. issued the following order: The motion for a stay of execution is dismissed on the basis that the parties may have recourse under s. 7(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43, and s. 683(3) of the Criminal Code , R.S.C. 1985, C-46, that they have not exhausted at the Court of Appeal. [13] The applicant returns to this court, relying on these provisions to review the order of Juriansz J.A. Analysis (a) This Panel’s Authority to Review Juriansz J.A.’s Decision [14] Section 7 of the Courts of Justice Act , R.S.O. 1990, c. C.43, determines the composition of this court in various circumstances. Subject to some exceptions, motions before this court are heard by a single judge: see R. v. Scherba (2001), 54 O.R. (3d) 555 (C.A.), at para. 12. Subsection 7(5) provides: “A panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion.” [15] As discussed below, an order of a single judge of this court under s. 679(1)(c) of the Criminal Code is properly reviewable by a panel of the court under s. 680 of the Code , which the applicant has not invoked, rather than under the Courts of Justice Act . But more fundamentally, s. 679(1)(c) does not have any application in a case such as this, in which the applicant is seeking to be released on bail while he attempts to appeal to the Supreme Court of Canada from an order of this court that he be detained pending trial. Accordingly, the power in s. 7(5) of the Courts of Justice Act is of no assistance to the applicant to the extent he founds his request for relief on s. 679(1)(c) of the Criminal Code . [16] While s. 7(5) of the Courts of Justice Act gives this panel the power to review Juriansz J.A.’s decision as it relates to a stay of the October 2020 Order, in our view there is no basis to set aside or vary his decision. (b) Bail Pending Application for Leave to Appeal [17] Martin J.’s order makes no reference to s. 679(1)(c). This is significant because, as part of his November 2020 Application before that Court, the applicant requested alternative relief – that the Court remand the case to this court to consider the applicability of s. 679(1)(c). Martin J. did not do so. [18] Moreover, if the applicant were correct in his submission that Juriansz J.A. erred in finding that s. 679(1)(c) is inapplicable, his avenue of review would not fall under s. 7(5) of the Courts of Justice Act : it would fall under s. 680 of the Criminal Code . Section 680 provides that orders made under s. 679 may be reviewed by a panel “on the direction of the chief justice or acting chief justice of the court of appeal.” This is the case even though Juriansz J.A. found that he had no jurisdiction to entertain the s. 679 application: see R. v. Stoltz (1993), 84 C.C.C. (3d) 422 (B.C.C.A.), at p. 428. The prospect of this taking place – a panel review (under s. 680) of a single judge’s decision concerning bail pending leave to appeal (under s. 679(1)(c)) of a previous panel’s bail decision (under s. 680) – demonstrates the untenability of the applicant’s position that s. 679(1)(c) has any application in these circumstances. [19] We agree with Juriansz J.A.’s conclusion that s. 679(1)(c) does not apply in this case. The section provides as follows: 679(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to s. 678; (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or (c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal . [Emphasis added.] [20] Considered without context, s. 679(1)(c) could be read as encompassing an application for leave to appeal from a court of appeal’s denial of bail under s. 680. But, as Juriansz J.A. concluded, that is not what s. 679 is designed to achieve. As with the rest of the section, and consistent with Part XXI (Appeals – Indictable Offences) as a whole, s. 679(1)(c) applies to bail pending appeal from conviction and/or sentence; not from a bail decision under s. 680. [21] The applicant essentially asserts a right to bail pending a bail review (or in this case, an application for leave to appeal from the denial of bail). This concept is alien to all of the bail review provisions throughout the Criminal Code . The applicant’s suggested application of s. 679(1)(c) puts a single judge (and a reviewing panel) in the untenable position of having to explicitly endorse or reject the underlying detention order that is the subject of proceedings in the Supreme Court of Canada. It will be for that Court, not a single judge or panel of this court, to determine whether this court’s order under s. 680 should stand; that is, whether the applicant should be released on bail pending his trial. [22] The applicant’s request for a review of the decision under s. 679(1)(c) is dismissed. (c) Stay of Execution on Application for Leave to Appeal [23] A more challenging question is whether this court may exercise the power in s. 65.1 of the Supreme Court Act to in effect grant bail in a criminal proceeding. Section 65.1 provides that this court may order a stay of proceedings against one of its own judgments when a party has served and filed a notice of application for leave to appeal the judgment at issue. The stay of proceedings sought by the applicant from Juriansz J.A. in this case was the equivalent of a release order. Indeed, the applicant sought, and still seeks, through a stay of the October 2020 Order, to restore Goodman J.’s order. But as discussed below, there is a very real practical hurdle to achieving this result. [24] Relying on the order of Martin J., the applicant submits that his requested relief is achievable through the application of s. 683(3) of the Criminal Code , which provides as follows: (3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto. [25] The applicant contends that this section equips this court with the authority to order a stay of proceedings under s. 65.1 of the Supreme Court Act . That section provides: 65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate. (2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice. (3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section. [26] As the applicant observes, this provision has been applied in proceedings under the National Defence Act , R.S.C. 1985, c. N-5 to address the question of bail pending proceedings in the Supreme Court of Canada. Although that Act provides for bail pending the appeal of proceedings in the Court Martial Appeal Court of Canada (“CMAC”) (see ss. 248.1 to 248.4), the CMAC “has no jurisdiction to order judicial interim release of a convicted person pending his or her appeal to the Supreme Court of Canada”: see R. v. Stillman , 2019 CMAC 1, at para. 3; R. v. Royes , 2016 CMAC 3, 338 C.C.C. (3d) 183, at paras. 16-17, leave to appeal refused, [2017] S.C.C.A. No. 324. Nonetheless, in both of these cases, Bell C.J. applied the well-known criteria in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311, to the stay provision under s. 65.1 of the Supreme Court Act to determine whether it was appropriate to stay the imposition of the offender’s sentence, thereby granting a remedy similar to judicial interim release. See also T.(M.) v. A.(H.) , [1995] 1 S.C.R. 445, at paras. 4-5, in which Sopinka J. relied upon s. 65.1 of the Supreme Court Act to release an applicant in the context of civil contempt, in circumstances where s. 679 of the Criminal Code “arguably” did not apply. [27] There is nothing in s. 65.1 that expressly excludes a detention order from the category of judgments that may be stayed. However, we agree with the Crown, that given the grounds that justify a detention order pending trial in s. 515(10) of the Criminal Code , it is not particularly clear how the RJR-MacDonald criteria are to be applied, especially the factor of where the balance of convenience may lie. [28] We need not, however, explore this issue any further. The applicant’s request to Juriansz J.A. was to stay this court’s October 2020 Order, enabling him to be re-released on the terms ordered by Goodman J. However, the applicant is no longer able to meet a critical part of this order. [29] Goodman J. released the applicant after this court upheld Parayeski J.’s detention order. Goodman J.’s decision was based on changed circumstances, including a new release plan. As Goodman J. said, at para. 122: I confess that this decision is a close call. In adding the COVID-19 pandemic into the proposed release plan's "mix", as expressed in the recent jurisprudence, along with some diminution to the strength of the prosecution's case, I am persuaded that the applicant has met his onus . In my opinion, the decidedly restrictive release plan proffered by the applicant will address the Crown's primary and secondary ground concerns . [Emphasis added.] [30] In addition to naming the applicant’s father a surety, Goodman J. also named two further sureties – ErT and EIT – in the amount of $300,000: Criminal Code , s. 515(2.1). These sureties were cross-examined at the bail hearing. Their sufficiency was challenged by the Crown. Goodman J. assessed their evidence in the following way, at para. 81: While the two principal sureties seemed sincere, I tend to agree with the Crown that both ErT and ElT came across as somewhat naïve in their understanding of the applicant's entire situation . That being said, they testified as to their willingness to assist with the plan, why there is a substantial monetary pledge in support and why they did not present themselves earlier as potential sureties. Overall, I find both ErT and ElT to be well-meaning, credible and up to the challenge of supervising J.A. [Emphasis added.] [31] We were advised by the parties that ErT and EIT are no longer able to serve as sureties. The applicant has proposed two new sureties in the same amount – $300,000. [32] Counsel for the applicant acknowledges that this turn of events is less than ideal; however, she submits that, under s. 65.1 of the Supreme Court Act , this court may impose a stay “on the terms deemed appropriate.” We cannot accept this submission. The two named sureties were integral to Goodman J.’s order, as reflected in the passages quoted in paras. 29 and 30, above. Moreover, Goodman J. ordered that the applicant live with ErT and ElT while he was out on bail. The substitution of new sureties in these circumstances goes well beyond the imposition of “terms deemed appropriate” in s. 65.1(1) of the Supreme Court Act . It would involve a significant refashioning of Goodman J.’s order in a decision that he characterized as “a close call”. Conclusion [33] The application is dismissed. Released: “GTT” February 11, 2021 “Gary Trotter J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. JC, 2021 ONCA 131 DATE: 20210303 DOCKET: C67587 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and JC Appellant Christopher Rudnicki, for the appellant Lisa Joyal, for the respondent Heard: January 15, 2021 by video conference On appeal from the conviction entered by Justice Michael G. Quigley of the Superior Court of Justice on September 20, 2018, with reasons reported at 2018 ONSC 5547. Paciocco J.A.: OVERVIEW [1] The appellant, JC, was acquitted after a trial by judge alone of sexual assault and voyeurism charges. Those charges arose from a sexually explicit video recording that JC made of the complainant, HD. The Crown theory was that at the time the video recording was made, HD was incapable of consenting either to the video recording or the sexual activity that occurred. The trial judge was left with a reasonable doubt about HD’s incapacity, and acquitted JC of both these charges. [2] However, the trial judge found JC guilty of sexual assault and extortion, based on his finding that after making the video recording, HD engaged in unwanted sex with JC on several occasions. He accepted HD’s testimony that JC had threatened to post the video recording on the internet if she did not continue her sexual relationship with him. The trial judge found HD to be credible on these allegations and did not accept JC’s testimony that he never made the threat that HD alleged. The extortion charge was stayed pursuant to Kienapple v. R . , [1975] 1 S.C.R. 729. [3] JC appeals his sexual assault conviction and the finding that he was guilty of extortion. He submits that the trial judge made two errors. [4] The first alleged error is that the trial judge impermissibly used stereotype to reject JC’s testimony about his practice of expressly seeking HD’s consent before engaging in specific sexual acts with her. The trial judge said that JC’s testimony about this was “too perfect, too mechanical, too rehearsed, and too politically correct to be believed”. [5] The second alleged error relates to the trial judge’s rejection of JC’s claim that HD concocted the allegations against JC to conceal her “cheating” with JC from her boyfriend. JC submits that the trial judge erred in finding that, in advancing this claim, JC was relying on a stereotype, when the inference that HD had a motive to mislead was in fact grounded in the evidence. JC also attacks other reasoning the trial judge relied upon to reject JC’s suggestion that HD was motivated to make false sexual assault allegations against him in order to preserve her relationship with her boyfriend. [6] The Crown does not actively resist JC’s claim that the first error occurred. It argues, however, that when the trial judge’s reasons are reviewed as a whole, any such error was not material, or was harmless and occasioned no miscarriage of justice. The Crown denies that the second alleged error occurred and defends the trial judge’s reasoning. [7] I would allow JC’s appeal. With respect to the first alleged error, the trial judge’s improper reliance on stereotype had a material effect on his rejection of JC’s evidence about securing HD’s consent. This finding, in turn, played an important role in the trial judge’s overall evaluation of JC’s credibility. This error cannot be treated as harmless or as not occasioning a miscarriage of justice in what was a pure credibility case. [8] I would also find that the trial judge committed the second alleged error by incorrectly characterizing JC’s motive theory as based on stereotype, and by relying on stereotype and the willingness of HD to endure a criminal trial in rejecting JC’s motive theory. [9] Because of these errors, I would set aside the convictions and order a new trial. THE MATERIAL EVIDENCE [10] The appellant, JC, and the complainant, HD, met in 2014 when he was 28 and she was 19. They became friends. They would periodically get together at JC’s apartment, discuss music, and smoke marijuana. Although neither JC nor HD considered themselves to be in a boyfriend/girlfriend relationship, it was common for them to have sex during these visits. [11] In the fall of 2014, HD began a relationship with another man. The trial judge found that at this point, JC and HD ceased having casual sex, notwithstanding that JC wanted the sexual relationship with HD to continue. He also found that JC “persistently pursued her in his text messages”. [12] In late 2014, HD contacted JC. HD testified that she did not do so for the purpose of resuming their sexual relationship, but because she believed JC could help her to find work in the entertainment industry. [13] HD, who testified that she has memory problems which she attributes to her mental health and partially to alcohol use and her addictions to cocaine and ketamine, was uncertain about when she reconnected with JC. As the following summary of her evidence shows, at times her evidence altered as it unfolded, and she often expressed uncertainty or a lack of memory. [14] What is known is that on January 22, 2015, HD went to JC’s apartment to hang out. At trial, she said this was after she had broken up with her boyfriend, but she had told the police that she believed she was still with him at the time. During that visit, using a “GoPro” camera, JC video recorded HD, in what the Crown aptly referred to as “extreme close-ups”, naked from the waist down, lying in a bed. In this short, 51-second video, HD is actively masturbating. On several occasions, JC prompts HD what to do and she complies. At times, JC can be seen touching her intimately with his hand. The video recording ends suddenly. JC testified that the battery in the camera died. No sexual intercourse is depicted but JC testified that they subsequently had vaginal intercourse. [15] The Crown theory was that HD was intoxicated into incapacity when this event occurred. The sole direct evidence that HD had consumed an intoxicant was her testimony that she had smoked marijuana, consistent with her daily habit, in an amount that would not cause her to become intoxicated. She may also have had alcohol but was not intoxicated by it. At trial, HD retracted her preliminary inquiry testimony that she and JC had been drinking at a party prior to this event, saying that she had confused two different occasions. [16] HD testified that she was not feeling drunk or impaired when she arrived at JC’s apartment. She said that she and JC never discussed having sex. She said that JC gave her a glass of water. She testified that as the evening progressed, she began to feel fuzzy and nauseous. She said that the last thing she remembered was talking to JC, she believes on the couch, and then she blacked out. She said she remembered waking up dizzy and disoriented, wearing only a shirt. [17] Later in her testimony, despite her earlier evidence that she had blacked out after a conversation on the couch and awoke not wearing pants, HD testified that she remembered JC holding the camera when he began filming her. She also testified that she was aware that she was being filmed. In cross-examination, she testified that although she had no memories of the filmed event when she made her statement to the police or when she testified at the preliminary inquiry, she subsequently recovered memories of the events captured in the video. She also walked back her testimony that JC had given her a glass of water, saying that she had no memory of him doing so and believed, but was not sure, that she poured herself a glass of water from the tap. [18] HD testified that after she woke up, JC played her a video recording of him sexually assaulting her. She was upset and scared. She testified that JC told her that he would put the video recording on the internet if she did not continue to have sex with him. She was not sure whether this conversation took place on the day that the video recording was made, or a few days later. While she said it was possible it happened the same day, she stated that it was “probably a few days later”. She said she “probably” asked him to delete the video recording. She said, “I can’t recall exactly, but I likely protested”. In cross-examination, she confirmed that she only remembers one occasion on which the video recording was discussed but said that she probably asked for it to be deleted once or twice. [19] She also testified that during their conversation about the video recording, JC told her she could not prove that she had not consented because she had not said “no” while being video recorded. [20] HD testified that she ultimately made a police complaint, in circumstances I recount in more detail below. She told the police that the video recording depicted her and JC having intercourse, which it does not. [21] HD testified that after the video recording was made, she received calls and texts from JC. He would ask her to come over but never mentioned the alleged sexual assaults or the video recording. She did not produce any of these messages to the police and none were placed into evidence. HD testified that she deleted them because she did not want the reminder. [22] HD testified that she agreed to go to JC’s house because of her fear that he would share the video recording online. She said that, on approximately six to eight occasions, after going to his apartment, she had non-consensual sex with JC. This included incidents after she reunited with her boyfriend in the spring of 2015. [23] In her evidence-in-chief, HD testified that she never initiated contact with JC after the video recording incident. However, in cross-examination, she agreed that sometimes she would reach out to him for marijuana, and that sex would then occur. She said she never wanted to have sex with him after the video recording was made. She testified that she also went out with him on a few occasions when sex did not occur, because she did not feel that she could refuse. [24] HD testified that she did not recall whether she had ever tried to tell JC “no” when he asked her for sex after the video recording incident. During cross-examination, she said she believes she would have said “stop”, “no”, or that she did not want to have sex. When confronted with her evidence-in-chief, in which she had said that she had no memory of ever saying “no”, she said, “I was speaking about the incident with the video”. When asked again whether she ever said “no” or “stop”, she replied, “I didn’t say those things specifically, but I did protest after the creation of the video that I did not want to have sex with him”. [25] HD also said in her evidence-in-chief that on a few separate occasions, JC arranged for her to have sex with his friends. She could remember only one occasion on which she had sex with one of his friends, but believed there were more such incidents. Although she did not recall what JC said to her, her understanding was that if she declined these requests, the video would be posted online. In cross-examination, when asked if JC told her to have sex with his friends, she said, “He didn’t use those exact words, I don’t believe. … I don’t think it would have been that direct.” When it was put to her that JC had no idea that she was sleeping with his friends she replied, “I don’t think that is true”. [26] HD testified that she last saw JC in June or July of 2015, she could not be sure. On July 30, 2015, she went to the police station and complained. She said this was approximately three weeks after she disclosed events with JC to her boyfriend. She explained, “I ended up telling my boyfriend sort of accidentally.” She described the circumstances. She was high on ketamine, she and her boyfriend were discussing issues in their relationship, and she was upset. There was a disagreement, but she testified that it was not a fight. She said she told him she had been assaulted. Defence counsel suggested that this led to an argument, but HD denied that it did. She said that it was “really unlikely” that they were arguing about this but given that she could not remember the entirety of the discussion, she said it was possible. During her testimony, she said her boyfriend “freaked out” and “was very upset and obviously distraught because of the situation.” She said, “He was upset with me and upset for himself, and sad” and “angry at the situation.” He wanted her to call the police and she did so several weeks later. She denied defence counsel’s suggestion, made in cross-examination, that she lied about events because she was afraid her boyfriend would leave her if he found out she was cheating on him. [27] JC, who gave evidence on his own behalf, was the only other witness to testify. He described his friendship with HD, which he said was an ongoing sexual, but not exclusively sexual, relationship. He said that although he was not interested in a monogamous relationship, he had genuine and sincere feelings for HD. He testified to his belief that he felt much more strongly about her than she did about him. JC said that once HD started seeing her boyfriend in October 2014, they stopped seeing each other. He said that he reached out to her and was “a bit persistent” at first, sending her a few messages over a couple of weeks, but then stopped until she contacted him about employment in the end of November or early December. [28] Although he agreed that there were points when “it just stopped, when it was not happening”, he did not think his relationship with HD was ever at an end, “there was just never consistency.” He described the period from October to November or December 2014 as “a break”. That break did bother him because he felt that he was entitled to closure if she was going to end their relationship, and communication had ended abruptly. He was not angry, but it affected him emotionally, leaving him sad. [29] He testified that after she contacted him and asked about employment, HD brought a resume, and they smoked marijuana. He told her he missed her and made an advance and “she reciprocated” and they had sex. Contrary to HD’s recollection that her relationship with her boyfriend had ended by this point, he said she was still with her boyfriend at the time. [30] JC said he had no contact with HD for another month after this incident, until mid-January 2015, when the video recording was made. He believes he would have invited her to his apartment to smoke marijuana. She agreed and arrived at the apartment sober, not showing any indicia of impairment. He denied putting anything in HD’s drink. JC said that after an hour or so of chatting and smoking marijuana they began consensual sexual activity. He was asked during his examination-in-chief if they had discussed sex or whether it just happened. JC said: Typically when I engage her, I’ll kiss her, and if she reciprocates and then, as we proceed, you know, I’ll ask her, you know, do you want foreplay or would you like to have sex type of thing. [31] During cross-examination, JC was asked about the testimony he had given about what he “normally” does to secure consent from HD. He was not challenged on the routine he claimed, but he was asked how he knows what he did on this occasion. JC responded: Because I have consensual sex with my partners, and it’s very similar. Normally is a bad word. I guess I shouldn’t have used it, but what I meant is that when I engage someone, I’ll kiss them. If they reciprocate, and this isn’t someone, like I wouldn’t kiss someone I haven’t been with before, you know, to engage them. The first time that I sleep with someone, same with [HD], its something that we spoke about first. [32] He said that he remembered the video recording event. After they kissed, he asked her if she wanted oral sex. She said “yes”, took her own pants off, and sat on his bed. He was performing oral sex on HD and he thought of his new camera. He asked her if he could turn it on, and she agreed. He said this had not been planned. He began filming with the camera, which he held in his hand using a “selfie stick”. The battery soon died. He threw the camera on the couch, and they continued their sexual activity. She ultimately put on her clothes and went home. He said there was no indication that she was intoxicated or inebriated. [33] JC testified that he did not show her the video recording, and that it was not discussed. He said it would not have been possible to show her the video recording until the battery in the camera was charged. He testified that he eventually transferred the video to a laptop that he had use of, owned by his friend, PY. JC said he used the laptop during his “gigs” as a “DJ”. He labelled the file “[H]” and when he put it on the computer it was placed in a folder titled “[PY]”. [34] JC said that their casual consensual sexual relationship continued after the video recording was made. He testified that he never played the video for HD, but “probably a few weeks” after it was taken, he did comment that she “looked cute on camera”. This prompted HD to ask JC to delete the video, because she was in a relationship. He told her “[he] was keeping it for [himself]” as it was “something essential” that he had “never done with somebody”. He said, “I didn’t refuse to delete it. I think I just explained why I wanted to keep it, and then it was left at that.” He said in cross-examination that he kept it and watched it a few times. [35] JC testified that the video recording was never mentioned again. He denied that he ever used the video recording to extort HD into having sex with him. He agreed with the Crown’s suggestion, in cross-examination, that HD would have been embarrassed and ashamed if the video recording was put on the internet. He said it was wrong for him not to have deleted it. [36] He said that for a short time in late April or early May 2015, HD was no longer with her boyfriend, and he and HD went out together and saw each other more frequently. [37] When asked about their relationship, JC said that he respected HD and had genuine romantic feelings for her. He said she had similar feelings about him, although not at the same level. He found her attractive. He did not encourage her to have sex with others, as he wanted more of a commitment, although not a monogamous relationship. He said he had not been aware of HD having sex with his friends. [38] In terms of the nature of their sexual relationship, JC testified that HD was always a responsive partner and never said “no” or “stop”. When asked about HD’s willingness to engage in sex after the creation of the video recording, he again relied on his usual practice to support his response: I believe it was consensual, for one, because before we proceed I generally ask her what she wants to do, and if she says she wants to you, have foreplay or have sex, I take that as consent. When I engage, I initiate, it’s never, you know, straight to it, it’s I would kiss her, engage in that way and if she reciprocates, you know, then we kind of start making out and then we go from there. Right? If she didn’t reciprocate from the very beginning, then I wouldn’t proceed, but there was never an instance where, you know, I went to kiss her and she never reciprocated. [39] In cross-examination, JC was challenged about HD’s consent on the occasions that sex occurred after the video recording was made. He said he was positive she consented “because she said so every time I asked her”. [40] JC testified that he subsequently learned that HD was living with her boyfriend. In June 2015, she abruptly stopped messaging him. He said he may have messaged her a couple of times – perhaps three to five times during the summer – but did not pursue things. He suggested that he was hurt that she had suddenly stopped communicating with him, saying that he felt she should have given him closure. THE TRIAL JUDGE’S REASONS [41] The trial judge provided extensive written reasons for the verdicts he rendered. [42] On the two charges relating to January 22, 2015 – the voyeurism charge and the accompanying sexual assault charge – the Crown theory was that HD had been incapable of consenting. The trial judge acquitted JC of both offences because he was not satisfied beyond a reasonable doubt that HD had been incapable of consenting. He also noted, on the voyeurism charge, that the Crown had failed to prove that the video recording was made surreptitiously or that JC intended to make the video recording surreptitiously. [43] With respect to the central issue of incapacity to consent, the trial judge said that while he did not reject HD’s evidence about the events of January 22, 2015, or doubt her sincerity, he was “unable to reconcile and accept that particular evidence as reliable in the context of the evidence as a whole, and in particular, the appearance of active and willing participation in the sex acts depicted on the 51 second video recording”. [44] JC’s evidence relating to the video recording incident also left him with a reasonable doubt. He said, “I do not accept or believe all of JC’s evidence, as I will discuss later in these reasons, but I do accept that his evidence on these counts could reasonably be true” (emphasis in the original). [45] The trial judge found JC guilty of the “extortion-related counts” – extortion and sexual assault relating to the sexual contact that occurred after the video recording – finding that HD’s testimony about these counts was entirely credible and reliable. [46] He found that HD was “trying her best to be a careful, precise and honest witness” and noted that she acknowledged her memory loss. He said that although there were some inconsistencies, relating “mainly to timing and dates, and what happened at what point”, she was “never inconsistent with respect to the core allegations”, and much of what she said was corroborated by JC. He found HD to be “consistent throughout her evidence that after the relationship started with the new boyfriend in late October 2014, she always told JC that she never wanted to have sex with him”. He said that the inconsistencies that did occur were not surprising given the lapse of time. He accepted her evidence about her recovered memory and said, “It is unrealistic to think, given her acknowledged memory issues, that she would remember everything in her initial statement to the police”. [47] JC claimed that HD’s allegations that their sexual relationship was non-consensual may have been motivated by her fear that her boyfriend might end their relationship if he learned she had been cheating on him. The trial judge addressed this. He began: Finally, relative to an alleged motive to fabricate, there is absolutely no evidence to support the existence of such a motive. The suggestion that the mere fact that HD has a boyfriend is founded on stereotypical assumption. It is stereotypical reasoning that is often applied to victims of sexual assaults. The argument is that since HD had a boyfriend, therefore, she fabricated this chronology in order to “get out of hot water” with him, as the Crown put it, and continue their relationship. However, there was no evidentiary basis to support that contention, despite HD having been cross-examined about it extensively. [48] The trial judge went on to find that the fact that HD told her boyfriend about the relationship, “albeit while she was under the influence of ketamine”, “adds to the veracity of her disclosure”. He did not believe that she would fabricate this entire complex circumstance while impaired, leaving the motive theory, “completely speculative and illogical”. He also noted that HD had “denied that her boyfriend had been abusive to her or threatened her, or that they had an argument”. He said that when HD and her boyfriend had broken up, she had made no attempt to hide that she was with JC. The trial judge also said: “JC agreed that the boyfriend did not contact him, or threaten him, so there is no evidence of a need to fabricate to appease the boyfriend.” The trial judge then concluded his rejection of JC’s motive theory, saying: It also makes no sense that HD was sufficiently willing to fabricate that she would sit through a trial where she was cross-examined extensively about personal issues and again required to watch the explicit personal video, along with strangers – the participants in this trial. [49] In contrast, the trial judge did not believe the evidence of JC and found that JC’s testimony relating to the extortion-related counts did not leave him in a reasonable doubt. In coming to this decision, he relied on his belief in HD’s evidence, on aspects of JC’s own evidence that he found supported the extortion-related allegations, and on his evaluation of JC’s credibility. [50] The trial judge’s first observation about JC’s credibility related to JC’s testimony about his practice in securing consent from HD. The trial judge said: I found JC’s evidence suspect that on each and every occasion when he and HD had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “ at each progressive stage of the sexual encounters ”. Defence counsel contended that there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe JC’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed. [Emphasis in the original.] [51] The trial judge continued: JC wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold. It seemed excessively rehearsed and staged, as he specifically turned to give this answer directly to me. [Emphasis in the original.] [52] When the trial judge returned to the evaluation of JC’s evidence in the context of the extortion-related charges, he said that he found JC’s evidence to be “contrived” and that it “simply does not make sense in the context of the evidence as a whole”. In explaining those conclusions, the trial judge returned to JC’s testimony about his practice in securing consent: It was repeatedly said that JC always engaged in appropriate behaviour with respect to consent at all times, as a normal practice, but I did not believe this aspect of his evidence, or his evidence relating to the post-January 22, 2015 events. I find that his evidence about carefully staged and sequential inquiries into consent defies actual human behaviour, and is contrived. His evidence was challenged by the entirety of HD’s evidence on these matters, whether it related to post-January conduct in the first apartment at the entertainment district, or the second apartment off the Danforth. [53] After making this comment, the trial judge returned to the evaluation of JC’s evidence. The trial judge noted that JC’s evidence was not shaken in cross-examination, but said this “requires this analysis to be more nuanced”, noting: JC did say some other things in this case which are, perhaps, again, not major inconsistencies, because there was no prior statement to compare it against in the way that the complainant’s evidence has been analyzed surgically…. [54] Overall, he found JC’s evidence to be “self-serving and designed to explain what I find inexplicable, at least as it relates to the latter two counts”. He said there were some things that did not make sense about his evidence. Specifically, he noted that though JC claimed to respect HD, his conduct after January 22, 2015, “did demonstrate a pattern of callous disregard for HD’s wishes in an attempt to control her”. He then returned to JC’s evidence about his practices in ensuring HD’s consent, saying: The notion that he asked for her consent on every occasion and at every stage of their increasing intimacy, and ensured he had her full-fledged consent, does not jive with the external circumstances of his conduct. [55] The trial judge also identified aspects of JC’s own evidence that he concluded could only support the inference that JC extorted sex from HD. Most centrally, the trial judge relied heavily on JC’s refusal to delete the video. He found that JC’s continuing possession of this compromising video of HD – a person nine years his junior – created a power imbalance that enabled JC to “command sexual favours from her”. He noted that JC admitted that he was not happy that the relationship had ended and wanted to continue a romantic relationship. The trial judge found that JC’s persistence in attempting to contact HD when she was not responding, and his decision to keep the video recording for his own gratification as “a piece of third party pornography” in spite of HD’s wishes, showed a pattern of callous disregard for HD’s wishes. Simply put, the trial judge reasoned that JC’s motive, opportunity and mindset supported his conviction on these charges. ISSUES [56] The issues in this appeal centre on the trial judge’s use of “stereotype” in his reasoning. JC argues that the trial judge erred by impermissibly relying on stereotype to reject his evidence relating to securing HD’s consent, and also erred in finding that JC’s theory regarding HD’s motive was based on stereotype. The Crown does not defend the trial judge’s use of stereotype in evaluating JC’s testimony about securing HD’s consent, but submits that any such error is immaterial or harmless, and that no miscarriage of justice occurred. The Crown disputes that the trial judge relied on stereotype to reject JC’s motive theory and defends the trial judge’s reasoning in rejecting the motive theory that JC advanced. The issues can be stated, and approached conveniently, in the following order: 1. Did the trial judge err by relying on stereotype or in his reasoning in rejecting JC’s theory about HD’s motive to mislead? 2. Did the trial judge err by relying on stereotype to reject JC’s testimony about the steps he took in securing HD’s consent, and, if so, was the error immaterial or harmless, or an error that did not occasion a miscarriage of justice? ANALYSIS A. THE LAW [57] There are two relevant legal rules that identify impermissible reasoning relating to the plausibility of human behaviour. These rules overlap in the sense that both may be breached at the same time. (1) The Rule Against Ungrounded Common-Sense Assumptions [58] The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth , 2020 BCCA 240, at para. 65; R. v. Cepic , 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 19-27; R. v. Perkins , 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 35-36. For clarity, I will call this “the rule against ungrounded common-sense assumptions”. [59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn. [60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking. [61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour. [62] It was therefore an error in R. v. J.L . , 2018 ONCA 756, 143 O.R. (3d) 170, at paras. 46-47, for the trial judge to infer that a complainant would not have consented to sex outside on the dirt, gravel and wet grass where the sexual act occurred, in mid-December. This conclusion was not a permissible logical inference drawn from the evidence. It was, instead, an additional factor for consideration introduced impermissibly into the deliberation process based on an untethered generalization about human behaviour. Had there been evidence from the complainant that she was careful or concerned about her appearance, her clothing, or her physical comfort, the impugned inference would have been grounded in evidence and would have been permissible. (2) The Rule Against Stereotypical Inferences [63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility: Roth , at para. 129; R v. A.B.A. , 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic , at para. 14. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act : R. v. Quartey , 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687 ; and see Cepic , at para. 24. [64] Two points are critical in understanding this rule and ensuring that it does not impede proper judicial reasoning. [65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations”: R. v. A.R.D. , 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. [66] For example, it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant after being sexually assaulted, and it is an error to employ such reasoning : A.R.D. , at paras. 57-58; A.B.A. , at paras. 6, 8-10; R. v. Caesar , 2015 NWTCA 4, 588 A.R. 392, at para. 6. Similarly, it is a stereotype that women would not behave in a sexually aggressive manner, or that men would be interested in sex. Reasoning that is based on such inferences is not permitted: Cepic , at paras. 14-16; Quartey , at para. 21. [67] By contrast, no stereotype or prejudicial generalization is offended by inferring, where a man drives a resisting woman to a secluded location before touching her sexually, that she did not consent and that he intended to touch her without her consent. Hence, such inferences are appropriate. [68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L. J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D. , at paras. 6-8, 62; and Roth , at para. 73. [69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth , at paras. 130-38. For example, in R. v. Kiss , 2018 ONCA 184, at paras. 101-2, evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention. [70] By the same token, it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence: Quartey , at para. 21. Similarly, in R. v. F.B.P. , 2019 ONCA 157, the trial judge was found not to have erred in finding it implausible that the complainant would consent to spontaneous sex on a balcony, potentially in full view of others, because that inference did not rest in stereotypes about the sexual behaviour of women. The inference was based on evidence about the ongoing sexual disinterest the complainant had shown in the accused, and the ready availability of a private bedroom. (3) The Effect of Reasoning Errors Related to the Plausibility of Human Behaviour [71] Does a reversible error occur whenever a trial judge violates the rule against unfounded common-sense assumptions, or the rule against stereotypical inferences? As a matter of principle, such errors are reversible only when they “ground” the relevant inference by playing a material or important role in the impugned conclusion. Put otherwise, it is not per se a reversible legal error to draw impermissible inferences that do not matter, but it is a reversible legal error to reach a material factual conclusion based on such reasoning. [72] Some passages could be taken as limiting the effect of these rules to cases where the impugned factual finding is based solely on impermissible reasoning. For example, the phrase “sole reason” was used by the majority in A.R.D. , at para. 31, and, on further appeal, Wagner C.J. described the trial judge as erring by relying “solely” on impermissible stereotypical reasoning: R. v. A.R.J.D. , 2018 SCC 6, [2018] 1 S.C.R. 18, at para. 2. However, I do not take these decisions as holding that no error will occur so long as additional, permissible lines of reasoning are also offered. In A.R.D. , the only reason provided by the trial judge for doubting the complainant’s testimony was the stereotype that she had not altered her behaviour towards the accused after the alleged assault. In my view, when these courts referred to the impermissible stereotypical reasoning as the sole reasoning, they were not defining a precondition to error but were referring to the particular facts of that case. It is instructive that in A.R.D. , at paras. 5-6, the majority described the error as “ relying on an impermissible stereotype”, or “on prejudicial generalizations” (emphasis added). The majority also quoted, at para. 45, from R. v. R.G.B. , 2012 MBCA 5, 275 Man. R. (2d) 119, at para. 59: “A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping” (emphasis added). [73] As a matter of principle, an error is “based” on a stereotype or improper inference when that stereotype or improper inference played a material or important role in explaining the impugned conclusion. Where it did so, even if the trial judge offered other reasons for the impugned conclusion, it cannot safely be said that the trial judge would have reached the same conclusion without the error. Where the erroneous reasoning does not play a material or important role in reaching the impugned conclusion, and was only incidental, the accused will not have been prejudiced by it and no reversible error occurs. [74] One final point. In argument before us, the Crown emphasized the importance of deferring to credibility determinations made by trial judges. I acknowledge this important practice, but where a trial judge contravenes the rules I have just described, resulting in a material effect on the impugned finding, an error of law has occurred: A.B.A. , at paras. 4-5; A.R.D. , at para. 28. The error will be reversible, unless the curative proviso in the Criminal Code , R.S.C. 1985, c. C-46, s. 686(1)(b)(iii), is successfully invoked by the Crown. B. THE TRIAL JUDGE’s reJECTIoN OF jc’S mOTIVE tHEORY [75] Just as it is an error for a trial judge to rely on a stereotypical inference in assessing credibility, it is an error for a trial judge to exclude an inference as based on stereotype, when it is not based on stereotype. JC claims that the trial judge committed this error in rejecting the inference that HD may have been motivated to falsely claim that their sexual relationship was not consensual, in order to protect her relationship with her boyfriend. JC contends that this inference was based on the evidence, and not on stereotype as the trial judge erroneously concluded. JC also challenges other reasoning the trial judge relied upon to reject the motive theory JC advanced at trial. [76] This is the impugned passage where the trial judge invoked stereotype: Finally, relative to an alleged motive to fabricate, there is absolutely no evidence to support the existence of such a motive. The suggestion that the mere fact that HD has a boyfriend is founded on stereotypical assumption. It is stereotypical reasoning that is often applied to victims of sexual assaults. The argument is that since HD had a boyfriend, therefore, she fabricated this chronology in order to “get out of hot water” with him, as the Crown put it, and continue their relationship. However, there was no evidentiary basis to support that contention, despite HD having been cross-examined about it extensively. [77] Did the trial judge err by relying on stereotype or in his reasoning in rejecting JC’s theory about the complainant’s motive to mislead? I conclude that he did. [78] The trial judge was incorrect in concluding that there was “absolutely no evidence to support the existence of [JC’s] motive” theory. There was an evidentiary basis on which the trial judge could have inferred that HD may have been motivated to deny that her sexual relationship with JC was consensual, and that this motive could account for the police complaint. Specifically, there was evidence that, at the time HD told her boyfriend about her sexual contact with JC, HD and her boyfriend were having relationship difficulties and were discussing those difficulties in the hope of opening up greater lines of communication; that HD was upset during this conversation; that her boyfriend “freaked out” and was “upset with” her and “angry at the situation” when she told him about JC; and that, after the conversation, including when she was no longer intoxicated by ketamine, HD’s boyfriend encouraged her to contact the police. [79] During argument, defence counsel made this submission to the trial judge: [HD’s boyfriend] became aware that there was interaction between [JC] and [HD], and in my respectful submission, that’s, that’s all that’s needed to give rise to a motive to fabricate. [80] The Crown submits that when the trial judge characterized JC’s argument as founded on a stereotypical assumption, he was not dismissing the entire submission as based on stereotype but was addressing only this specific submission, which does invoke the general stereotype that women with boyfriends are motivated to fabricate sexual assault allegations. [81] I do not agree with the Crown that the trial judge’s reference to stereotypical reasoning was so confined. I am satisfied that the trial judge treated JC’s entire motive theory as resting on stereotype. This is evident in the way the trial judge characterized JC’s motive argument. He said, “[t]he argument is that since HD had a boyfriend, therefore, she fabricated this chronology in order to ‘get out of hot water’ with him, as the Crown put it, and continue their relationship.” In fact, JC relied on much more to support this motive theory than the fact that HD had a boyfriend. JC’s position was that the manner of HD’s disclosure to her boyfriend and her boyfriend’s reaction to this disclosure support the inference that HD may have been motivated to lie to protect her relationship with her boyfriend. JC’s motive theory was therefore linked to fact-specific evidence. It was an error, in these circumstances, for the trial judge to find that the motive theory was founded on a stereotypical assumption. [82] The Crown also urges that since the trial judge addressed JC’s motive theory more broadly on its merits, he did not ultimately rely on stereotype in rejecting that motive theory. I do not accept this. [83] First, a proper finding that JC’s motive theory was founded on a stereotypical assumption would have been fatal to JC’s motive submission. Any additional reasons offered for rejecting the motive theory would have been secondary. Simply put, the gravity of the trial judge’s finding that JC’s motive theory was based on stereotype overwhelms the supplementary reasoning the trial judge engaged in. Without question, the trial judge relied on his “stereotype” characterization in rejecting JC’s motive submission. [84] Second, there are problems with some of the additional reasons the trial judge offered in rejecting JC’s motive theory. I will address two such problems. [85] In rejecting the motive theory, the trial judge said: “JC agreed that the boyfriend did not contact him, or threaten him, so there is no evidence of a need to fabricate to appease the boyfriend.” This represents a misconception of JC’s motive theory. JC’s theory was not that HD may have lied to prevent her boyfriend from confronting JC. As the trial judge appears to have recognized earlier in his reasons, JC’s motive theory was that HD may have lied to preserve her relationship with her boyfriend. In linking the viability of the motive theory to evidence that the boyfriend acted aggressively towards JC, the trial judge allowed himself to become distracted from the real inquiry of whether HD had reason to seek to placate her boyfriend, who had “freaked out” when HD accidentally told him she had sexual relations with JC. [86] This mischaracterization by the trial judge of JC’s motive theory raises an additional, more serious concern. The trial judge’s reasoning that the motive theory was not viable without evidence that HD’s boyfriend confronted JC rests itself upon the stereotype of the aggressive, jealous boyfriend. [87] The other problematic reason the trial judge offered for rejecting JC’s motive theory arose when the trial judge said: It also makes no sense that HD was sufficiently willing to fabricate that she would sit through a trial where she was cross-examined extensively about personal issues and again required to watch the explicit personal video, along with strangers – the participants in this trial. [88] It is dangerous for a trial judge to find relevance in the fact that a complainant has exposed herself to the unpleasant rigours of a criminal trial. As this court said in R. v. G.R.A (1994), 35 C.R. (4th) 340 (Ont. C.A.) , “the fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility. Otherwise it could have the effect of reversing the onus of proof”. Of interest, in R. v. K.(V.) (1991), 68 C.C.C. (3d) 18 (B.C.C.A.), at p. 35, Wood J.A. disapproved of such reasoning because it would itself rest in “gender-related stereotypical thinking” that sexual offence complainants are believable. Such reasoning would be a stereotype because it is a prejudicial generalization that would be available in every case. [89] The primary concern with using a complainant’s readiness to advance a criminal prosecution is that doing so cannot be reconciled with the presumption of innocence. The trial is to begin on the rebuttable premise that the accused is not guilty, not on the basis that the mere making of a criminal sexual assault allegation favours a finding of guilt: R. v. Stewart (1994), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 252, leave to appeal refused, [1994] S.C.C.A. No. 290; R. v. Nyznik , 2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 17. [90] Having said this, there is a passage from this court, in R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 123, in which it was found to have been open to the trial judge to instruct the jury that, if they found that the complainants did not have a motive to fabricate, they could consider why the complainants in that case would “make the allegation and expose themselves to the rigors of cross-examination on very personal matters”. In R. v. L.L. , 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 49-50, Simmons J.A. interpreted this comment in Batte narrowly, as having been made in response to an “isolated” comment by the trial judge in a case where the overall effect of the trial judge’s instruction would not have led the jury astray. [91] I would note further that the passage in Batte was conditioned on the jury making an affirmative finding that the complainant had no motive to fabricate. Here, the trial judge used the fact that the complainant was willing to endure the trial as a reason for rejecting her motive to fabricate. This was erroneous. [92] I would therefore allow this ground of appeal. C. THE TRIAL JUDGE’S rEJECTION OF jc’S coNSENT TESTIMONY [93] Did the trial judge err by relying on stereotype to reject JC’s testimony about the steps he took in securing HD’s consent, and, if so, was the error immaterial or harmless, or an error that did not occasion a miscarriage of justice? I am persuaded that the trial judge did err in rejecting JC’s testimony about the steps he took in securing HD’s consent, and that the trial judge’s erroneous reasoning was material, not harmless. I am also of the view that it cannot be found not to have occasioned a miscarriage of justice. I would therefore allow this ground of appeal. [94] During oral argument on this ground of appeal, JC took issue with the way the trial judge interpreted his evidence relating to consent. The trial judge characterized JC’s testimony as claiming that he specifically requested consent “ at each progressive stage of the sexual encounters ” with HD, and that “at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further” (emphasis in the original). JC argues that this is not a fair reflection of his testimony, which was that he begins a sexual encounter by kissing, and if the kissing is reciprocated, he takes it from there, including by seeking consent before engaging in oral sex or intercourse. [95] I need not resolve whether the trial judge interpreted JC’s testimony fairly. Whether he did so or not, the trial judge’s reasoning, in rejecting JC’s testimony on obtaining consent, contravenes both the rule against ungrounded common-sense assumptions, and the rule against stereotypical inferences. [96] The trial judge committed the first error – invoking an ungrounded common-sense assumption – by concluding that JC’s testimony is “not in accord with common sense and experience about how sexual encounters unfold.” This is a bald generalization about how people behave. It is not derived from anything particular to the case, or any evidence before the trial judge on how all sexual encounters unfold. [97] The trial judge committed the second error of relying on stereotypical reasoning when he rejected JC’s claimed conduct as “too perfect, too mechanical, too rehearsed, and too politically correct.” The trial judge was invoking a stereotype that people engaged in sexual activity simply do not achieve the “politically correct” ideal of expressly discussing consent to progressive sexual acts. This is a generalization because it purports to be a universal truth and it is prejudicial because it presupposes that no-one would be this careful about consent. [98] In fact, the behaviour the trial judge rejected as “too perfect”, “too mechanical”, and “too politically correct” to be believed is encouraged by the law, and certainly prudent. The Criminal Code specifies, in s. 273.1(1), that consent means “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must therefore attach to each progressive form of sexual touching. Meanwhile, an accused cannot legally act solely on a belief in consent; he must honestly believe that his sexual partner has communicated consent: R. v. Ewanchuk , [1999] 1 S.C.R. 330, at paras. 46-49; R. v. Barton , 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 121. Simply put, the behaviour the trial judge rejected as too perfect to be true is to be encouraged, not disbelieved ab initio . [99] The Crown did not advance specific arguments disputing these errors. Instead, the Crown contended that any error was not material, or was harmless, and, in any event, did not occasion a miscarriage of justice. If I understood the Crown, it used the two terms “material” or “harmless” interchangeably. Although both terms address whether impugned reasoning mattered, these terms describe distinguishable inquiries. [100] As indicated, it is not per se a reversible legal error for a trial judge to draw impermissible inferences that do not matter, but it is a reversible legal error to reach a material factual conclusion based on such reasoning. In order to demonstrate a reversible error where a trial judge has drawn an ungrounded common-sense assumption or invoked stereotypical inferences, the burden is therefore on the appellant to show that such reasoning mattered in arriving at the impugned factual finding. I would reserve the term “material” to describe this inquiry. So, in this case the question is whether JC has shown that the trial judge’s reliance on an ungrounded common-sense assumption or stereotype was material to his finding that JC never asked about HD’s consent to progressive acts of sexual contact. [101] In contrast, a “harmless error” inquiry is initiated by the Crown pursuant to the curative proviso in the Criminal Code , s. 686(1)(b)(iii), after a legal error has been found. Where the Crown invokes the proviso and argues that the error is harmless, the burden is on the Crown to show that the error is minor or has not prejudiced the accused, and therefore had no effect on the verdict: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 29-30. Although, in substance, a “harmless error” inquiry under the curative proviso is also about the materiality of an error, clarity is best achieved by maintaining a distinction between the inquiries that form part of the rules an appellant is relying upon on appeal, and the application of the proviso at the behest of the Crown. I will use the term “material” to describe the former, and “harmless error” to describe the latter. [102] I will begin with the Crown’s claim that the impugned reasoning by the trial judge was not material, and therefore not a reversible error of law. I reject this submission. I am satisfied that the errors I have identified played a material and important role in causing the trial judge to reject JC’s testimony relating to consent. [103] In arguing to the contrary, the Crown relied heavily on the additional, non-erroneous reasons that the trial judge gave for rejecting JC’s testimony about consent. Specifically, the trial judge commented on JC’s demeanour when he was testifying about his approach to securing HD’s consent. The trial judge said: “It seemed excessively rehearsed and staged, as he specifically turned to give this answer directly to me.” The trial judge also said that JC’s evidence on these matters was challenged on the entirety of HD’s evidence. And he said this evidence “does not jive with the external circumstances of his conduct”, presumably the trial judge’s conclusion relating to JC’s pattern of disregarding HD’s wishes. [104] I acknowledge those additional explanations for the trial judge’s rejection of JC’s testimony about consent, but they do little, in my view, to reduce the impact of the errors the trial judge made. The impermissible reasoning played the central role in the trial judge’s rejection of JC’s testimony. Four points reinforce this. [105] First, defence counsel challenged the trial judge, arguing that there was no basis for rejecting JC’s testimony. The trial judge answered that challenge directly. The sole rejoinder he gave was that JC’s evidence was “too perfect, too mechanical, too rehearsed, and too politically correct to be believed.” [106] Second, this reasoning was also the first reason the trial judge gave for rejecting JC’s testimony about consent. [107] Third, the trial judge returned to this reasoning repeatedly during his analysis, making the point three times in the judgment. [108] Fourth, this reasoning was devastating. The trial judge relied upon it to find that JC’s testimony about how he secured consent was “contrived”, in other words, a deliberate lie. In the circumstances, such a finding could not have been anything other than material or important to the ultimate rejection of JC’s testimony about consent. This reasoning simply overwhelms the additional considerations mentioned by the trial judge. [109] Nor are the permissible factors that the trial judge relied upon compelling enough, when taken together, to overcome the material role that the trial judge’s reasoning errors played in his rejection of JC’s testimony about consent. It can be assumed that the trial judge would have hearkened to the admonition not to place undue weight on demeanour evidence : R. v. Rhayel , 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85. Further, the trial judge’s assessment of HD’s evidence and his conclusions about JC’s regard for HD’s wishes are conclusions to be made on the evidence as a whole, including JC’s testimony. Had the trial judge not greeted JC’s testimony with the distorting influence of the errors of reasoning I have identified, he may well have come to a different conclusion. [110] JC has therefore satisfied me that the errors were material or important to the trial judge in rejecting JC’s testimony about how he secured HD’s consent. [111] To support its claim that the errors were not material, the Crown invited us to consider the trial judge’s reasoning as a whole, arguing that the trial judge gave many reasons for rejecting JC’s testimony and for finding him guilty of the charges under appeal. In short, the Crown argues that JC would have been convicted even if these errors had not occurred. I would make two points in response. [112] First, as I have explained, the materiality of the reasoning errors is to be judged by examining their impact on the specific conclusion they support, not by examining the strength of the entire case. As I have also explained, it is an error of law to make a finding that rests materially on an ungrounded common-sense assumption or a stereotype. As Cartwright J. said in Colpits v. The Queen , [1965] S.C.R. 739, at p. 744, “once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred”. Therefore, the Crown’s opportunity to rely on the whole of the case arises where the curative proviso is invoked, and not as part of the materiality inquiry. Even then, the examination is not of other reasons offered by the trial judge. In considering the curative proviso in s. 686(1)(b)(iii), the question is not whether this trial judge would have convicted: “The appropriate inquiry… is whether there is any possibility that a trial judge would have a reasonable doubt on the admissible evidence”: R. v. S.(P.L.) , [1991] 1 S.C.R. 909, at p. 919 (emphasis added). [113] Second, even if I was to engage in the exercise the Crown invites, I would still find the errors to have been material. This inquiry would necessarily invite a full examination of the reasons offered by the trial judge, which impels me to say that some of the other reasons the trial judge gave to support his decision, although not appealed, are problematic. For example, in addressing HD’s memory issues, he excused her inability to “remember everything in her initial statement to the police” when the matter of concern was her ability to remember what happened. He considered the disclosure that HD made to her boyfriend as adding to the veracity of that disclosure, an inference that was arguably a misuse of a prior consistent statement. And he discounted the fact that JC stood up to cross-examination on the basis that, unlike HD, there was no prior statement to compare his testimony to. It is contrary to the right to silence to consider the absence of a prior statement by the accused in assessing their credibility, and the trial judge’s reasoning presupposes unfairly that JC’s testimony may not have stood up to cross-examination had a prior statement been provided. I do not make these points to express gratuitous criticism of the trial judge’s credibility evaluation, but to illustrate the difficulties in relying on his other reasons as a palliative for the errors under appeal. [114] It must also be emphasized that the errors under appeal relate to the trial judge’s evaluation of JC’s exculpatory testimony, a source of evidence that, in law, can raise a reasonable doubt even if not affirmatively believed. The trial judge gave few reasons for rejecting JC’s evidence that did not depend on his finding that JC’s testimony about consent was self-serving and contrived. I appreciate that he invoked R. v. J.J.R.D. , 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, a case that permits, at para. 53, a trial judge to rely on the “considered and reasoned acceptance” of Crown evidence to reject conflicting, exculpatory evidence beyond a reasonable doubt, but the trial judge said this was only “partially” such a case. [115] In my view, even approaching things as the Crown would have us do, the trial judge’s errors in evaluating JC’s evidence about consent were material, even to the outcome of the case. [116] What then of the curative proviso? In R. v. R.V. , 2019 SCC 41, 436 D.L.R. (4th) 265, at para. 85, Karakatsanis J. summarized the long-standing principles that guide its application: The curative proviso set out in s. 686(1)(b)(iii) may be applied where there is no “reasonable possibility that the verdict would have been different had the error … not been made.” Applying the curative proviso is appropriate in two circumstances: (i) where the error is harmless or trivial; or (ii) where the evidence is so overwhelming that the trier of fact would inevitably convict. [Citations omitted.] [117] As the decision in R. v. Paulos , 2018 ABCA 433, 79 Alta. L.R. (6th) 33, at paras. 39, 47, leave to appeal refused, [2018] S.C.C.A. No. 336, shows, it is possible for the proviso to be applied where the trial judge has erred by relying on stereotype. But not, in my view, in this case. [118] As I have described, a “harmless error” is a minor error or an error that has not prejudiced the accused and therefore had no effect on the verdict. For the reasons I have just provided, the errors cannot be said to have been minor or non-prejudicial. The Crown has certainly not shown that they had no effect on the verdict. [119] Even a serious error will not be reversible where the Crown can show that “it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible”: Khan , at para. 31 (citations omitted). The Crown cannot meet that burden. This was a credibility case in which there were material weaknesses in the complainant’s evidence. I will not canvass those weaknesses again. The most important of them are identified in the summary of the material evidence. I am far from persuaded that, on this evidence, any verdict other than a conviction would be impossible. The curative proviso cannot be applied. CONCLUSION [120] I would allow the appeal, set aside the sexual assault conviction and the finding of guilt on the extortion charge and order a new trial. Released: March 3, 2021 “R.G.J.” “David M. Paciocco J.A.” “I agree. R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.C., 2021 ONCA 181 DATE: 20210323 DOCKET: C67003 Rouleau, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and J.C. Appellant Jessica Zita, for the appellant Samuel Greene, for the respondent Heard and released orally: March 15, 2021 by video conference On appeal from the conviction entered by Justice Karey Katzsch of the Ontario Court of Justice on February 19, 2019, and from the sentence imposed on May 27, 2019. REASONS FOR DECISION [1] The appellant appeals his convictions for sexual assault and common assault, as well as the sentence imposed of 45 days to be served intermittently and two years’ probation. [2] The appellant submits that the trial judge did not properly assess the credibility and the reliability of the complainant’s evidence and applied a different standard of scrutiny to the evidence of the defence and the Crown. The appellant also alleges that the trial judge failed to properly apply the third prong of R. v. W.(D.) , [1991] 1 S.C.R. 742 by undertaking a credibility contest, and that she rendered an inconsistent and unreasonable verdict on the sexual assault conviction. [3] On the sentence appeal, the appellant submits that the trial judge failed to apply the principle of restraint, as the appellant was a first-time offender. The appellant also argues that the sentence should be reduced to time served as a result of the COVID-19 pandemic. [4] We dismiss the appeal. Most of the appellant’s arguments are, in effect, requests for this court to carry out a fresh assessment of credibility and to consider the alleged inconsistencies in the Crown’s evidence but, contrary to the trial judge’s assessment, to resolve them in favour of the appellant. [5] In our view, there is no basis to interfere with the trial judge’s findings. Her reasons clearly explained why she found the complainant credible. She acknowledged the minor inconsistencies in the complainant’s evidence and was not required to address all of them in her reasons. She acknowledged the alleged inconsistencies between the complainant’s evidence and Mr. Wilmer’s evidence. These were minor in nature and did not detract significantly from the Crown’s case. [6] We also disagree with the appellant’s submission that the trial judge misapplied the W.(D.) analysis. The reasons demonstrate that the trial judge understood and properly applied the third step of W.(D.) and did not treat the case as a credibility contest. [7] As for the appellant’s submission that the verdict is inconsistent, we agree with the Crown’s argument that the conviction for assault on the second count demonstrates that the trial judge considered the evidence as a whole to see if she was left with a reasonable doubt. The trial judge did not have to choose between competing versions of events, nor was she limited to accepting both or neither of the complainant’s versions of the incidents. It was open to her to accept the complainant’s version for one incident but to be left with a reasonable doubt on the other. [8] We also see no basis to interfere with the sentence imposed. The trial judge decided to impose a shorter sentence than the Crown requested, imposed an intermittent sentence, observed that the principles of denunciation and deterrence were necessary here and recognized the mitigating and aggravating factors. This was a tailored sentence that is appropriate and well within the range. [9] As for the COVID issue, the appellant has not sought to file fresh evidence as to how intermittent sentences are being administered. In any event, we see no basis to reduce the sentence. [10] For these reasons, the conviction and sentence appeals are dismissed. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.J., 2021 ONCA 351 DATE: 20210526 DOCKET: C67525 Rouleau, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and J.J. Appellant Colleen McKeown, for the appellant Katie Doherty, for the respondent Heard: March 15, 2021 by video conference On appeal from the conviction entered on April 18, 2019 by Justice Antonio Skarica of the Superior Court of Justice. REASONS FOR DECISION Overview [1] The appellant appeals from his conviction for sexual assault. He abandoned his appeal from sentence on December 9, 2020. [2] The events leading up to the incidents in issue are not seriously in dispute. The complainant, then 15 years old, met the appellant through the complainant’s friend; the complainant and her female friend would spend time with the appellant and his friends, drinking alcohol and accompanying the appellant while he engaged in drug trafficking. In the evening of May 31 into June 1, 2017, the complainant was picked up in a taxi sent by the appellant to his house. The appellant and the complainant then called in the taxi for the appellant’s friend, Jordan. Along the way in the taxi to another friend’s house, Jordan gave the complainant some vodka to drink and she got drunk. The appellant said they would pick up the complainant’s female friend but that never happened. The appellant promised to pay for the complainant’s cab ride home at the end of the night. In the basement of the friend’s house, the complainant continued to drink alcohol straight from a bottle with the appellant and his three male friends. Marijuana was also being consumed. [3] At one point, the complainant and the appellant went alone into a side room that had no doors or privacy and that contained a foul odour. Oral sex and sexual intercourse took place between them. The appellant abruptly left the complainant. He did not provide her the fare for the cab ride home. The complainant ended up spending the night in one of the friends’ garage before returning home the next morning. [4] That morning, the complainant attended a previously scheduled doctor’s appointment and “blurted out” that she had been “raped”. A sexual assault evidence kit with a vaginal swab was completed. According to the unchallenged expert evidence at trial, the swab captured DNA that was 110 trillion times more likely to originate from the appellant than any other male. The complainant testified that she felt a vaginal tear and that she thought that “the nurse even said that”; however, the medical records disclosed no such tear and the nurse in question did not testify. [5] The appellant was arrested for sexual assault. The police did not tell the appellant the victim’s name. After his arrest and on his way to the police station in the back of the police cruiser, the appellant angrily burst out that “The bitch is angry because I wouldn’t pay her the $30 cab fare”, and made disparaging remarks about the complainant’s race and physical appearance without naming her. When subsequently interviewed by the police about the complainant’s allegations, the appellant denied knowing the complainant or anyone with her name living in the area. He also denied that the alleged sexual activities took place. Following the disclosure of the DNA results, the appellant admitted at trial knowing and having sexual relations with the complainant but maintained that they were instigated by the complainant and entirely consensual. [6] The accounts by the complainant and the appellant as to how the incident unfolded are dramatically different. The complainant testified that the appellant led her into the basement side room and forced her to have oral sex and sexual intercourse with him against her repeated and loud protests. The appellant testified that the complainant invited him into the side room and initiated sexual contact, at first oral sex at his request, followed by vaginal intercourse at her request. [7] The trial judge rejected the appellant’s version of events, stating it was replete with contradictions, lies and improbable scenarios. He did not believe the appellant’s evidence that he had sex with the complainant at her request and with her consent. Moreover, he was not left with a reasonable doubt. On the basis of the evidence that he did accept, including the core of the complainant’s evidence concerning the sexual assault, he found the appellant guilty beyond a reasonable doubt. [8] The appellant’s appeal centres on the trial judge’s treatment and analysis of the trial evidence and his credibility assessments in the context of the requisite analysis under R. v. W. (D.) , [1991] 1 S.C.R. 742. He says the trial judge made several reversible errors that warrant a new trial. [9] For the reasons that follow, we do not agree that the trial judge made the alleged errors and we would dismiss the appeal. We shall deal with each of the appellant’s issues in turn. Analysis (i) Assessment of the complainant’s evidence [10] First, the appellant says the trial judge failed to reconcile material inconsistencies and deliberate falsehoods in the complainant’s evidence and incorrectly discounted them because of her age. He argues that the trial judge erred in giving the complainant the same testimonial latitude afforded to young children when considering her credibility, and that he failed to resolve the important credibility and reliability concerns with her evidence. [11] We disagree. [12] The trial judge was aware of and specifically addressed the major inconsistencies and contradictions in the complainant’s evidence. He noted that it was an “unusual case where there are a number of concerns with both the evidence of the complainant and the [appellant]” and rhetorically asked himself “what am I to do with the inconsistencies and contradictions regarding the testimony of the complainant, A.Y.?” [13] While listing the various discrepancies, the trial judge concentrated on the following: the complainant’s statement that she suffered a vaginal tear from the assault when the medical evidence revealed no physical injuries; the complainant’s evidence that she was screaming throughout the assault in a house full of people but no one came to her assistance; and her initial false denials about having oral sex with the appellant and previously having sexual contact with a friend of the appellant. The trial judge was not required to address every inconsistency in the complainant’s evidence but was entitled, as he did, to focus on the ones that he expressly noted were the most significant. Importantly, although he observed that “a deliberate falsehood would be very telling against a complainant’s testimony”, he explained why, in the light of all the evidence, he accepted the complainant’s explanations for the identified problems with her evidence, and why those issues did not cause him to reject her account of the sexual assault. [14] The trial judge noted the inconsistency in the evidence about being injured during the sexual assault. However, by the time of the trial, it was no longer in dispute that the appellant had had sexual intercourse with the complainant. After the appellant’s DNA was discovered in the complainant’s vagina, the appellant admitted having sexual relations with her but maintained they were consensual. While the presence of a physical injury might indicate a lack of consent, the absence of an injury would not have indicated consent. Placed in context, it is not surprising that the trial judge was not troubled by the discrepancy relating to whether the nurse had told the complainant she had a vaginal tear. [15] The trial judge also expressly considered the complainant’s evidence that she screamed for help and no one came to her assistance. He was not satisfied that the people present would come to her aid, and he was not prepared to assume without evidence that others in the home would have heard her. We would also note that one of the appellant’s friends did come to the room. We see no reversible error in the trial judge’s treatment of the inconsistencies in the complainant’s evidence. [16] Moreover, in addressing the frailties in the complainant’s testimony, the trial judge properly took into account that the complainant was only 15 at the time of the sexual assault and 17 when she testified at trial. He considered the Supreme Court’s guidance for dealing with young witnesses in R. v. B. (G.), [1990] 2 S.C.R. 30, R. v. W. (R.) , [1992] 2 S.C.R. 122, and R. v. François , [1994] 2 S.C.R. 827. While age played a role in his credibility and reliability analysis, the trial judge found that the difficulties with the complainant’s evidence were a function of her shyness, immaturity, lack of education, strict religious upbringing in an unsupportive family, and feelings of embarrassment, rather than her age alone. He concluded that these issues did not fatally undermine the complainant’s evidence. [17] We do not accept the appellant’s arguments that the trial judge extended too much testimonial latitude to the complainant on account of her immaturity, and that immaturity “is not analogous to a child’s inability to remember details and communicate with specificity”. We see no error in the trial judge’s approach to the complainant’s immaturity, which focused on when and how she revealed material information rather than how she perceived the events in question. For instance, while the complainant initially denied having oral sex with the appellant, the trial judge found that her later admission of oral sex was corroborated by the forensic evidence and by the appellant’s own testimony. The trial judge attributed her earlier falsehood to her immaturity and embarrassment, leaving the core of her evidence intact. [18] These findings were open to the trial judge to make on the record before him and reveal no reversible error. They were part and parcel of his overall consideration and weighing of the evidence. It is worth repeating the proposition, also mentioned by the trial judge, that a trier of fact may accept some, all or none of a witness’ evidence. Here, the trial judge accepted the core of the complainant’s evidence about the sexual assault. We see no basis to interfere. (ii) Reliance on stereotypes [19] The appellant argues that the trial judge incorrectly relied on stereotypes and assumptions about young women’s behaviour in assessing the complainant’s evidence. [20] We do not read the trial judge’s reasons in this way. [21] The trial judge’s reasons explain why he found that the appellant’s version of events was implausible in the particular context of this case. Specifically, he found that the complainant was a young, shy, immature girl. The basement side room reeked of urine, had no door, and was immediately adjacent to the room where the appellant’s friends were drinking. It was in the context of these particular circumstances and his assessment of the evidence as a whole that the trial judge found it implausible that the events would occur as described by the appellant. [22] The trial judge did not reject the appellant’s account based on the sexual stereotype that no woman would initiate sexual contact in the circumstances described, but because the appellant’s account made no sense in the specific context of the case. Having observed the witnesses, and the complainant in particular, it did not ring true to the trial judge that this particular complainant would demand sex in the manner described by the appellant. He was not relying on pre-conceived views about how sexual assault victims would behave but on how the complainant behaved. [23] The trial judge was entitled to make these findings on the record before him. We see no basis for appellate intervention. (iii) Treatment of the appellant’s post offence conduct [24] The appellant submits that the trial judge erroneously analyzed his post‑offence conduct through the prohibited lens of propensity reasoning. This conduct included the post-offence text he sent to a friend saying: “Fuck all. I ditched that black girl” and “I almost knocked her out”. The appellant argues that the trial judge impermissibly used his “callous” behaviour following the incident, including abruptly leaving the house, stranding the complainant without a cell phone and a ride home, and texting friends that he had “ditched” the complainant, as evidence that the incident was non-consensual. [25] Again, we do not read the trial judge’s reasons in this way. The trial judge was entitled to consider the appellant’s behaviour following the incident as part of his credibility analysis of the evidence given by the appellant and the complainant. He did not use the appellant’s admitted behaviour following the incident to conclude that the appellant was more likely to have sexually assaulted the complainant because of his callous character. Rather, the trial judge found that the appellant’s poor treatment of the complainant following the incident was more consistent with the complainant’s evidence concerning the appellant’s treatment of her before and during the incident, and inconsistent with the appellant’s version of a spontaneous sexual encounter initiated by the complainant. [26] We see no error in the trial judge’s treatment of this evidence. Disposition [27] Accordingly, the appeal is dismissed. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.L., 2021 ONCA 269 DATE: 20210429 DOCKET: C66425 Watt, Hoy and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and J.L. Appellant Jeffery Couse, for the appellant Caitlin Sharawy, for the respondent Heard: March 24, 2021 by video conference On appeal from the conviction entered on July 26, 2018 by Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons reported at 2018 ONCJ 513. Hoy J.A.: [1] The appellant was convicted of sexual assault and sexual interference with respect to his daughter, C.L., and sentenced to 18 months’ imprisonment, followed by 3 years’ probation. [2] The abuse occurred while C.L. visited the appellant. C.L. was four years old when she first disclosed the abuse and six years old at the time of trial. The trial judge admitted three out-of-court statements made by C.L.: two under the principled exception to the hearsay rule, and one under s. 715.1 of the Criminal Code , R.S.C. 1985, c. C-46. [3] The appellant appeals his conviction, arguing that the trial judge erred in admitting the three statements. [4] For the following reasons, I would dismiss the appeal. Background [5] Prior to trial, C.L. disclosed the abuse on three separate occasions. [6] First, on April 7, 2016, while at a neighbour’s house, she blurted out before her mother and the neighbour, unprompted: “daddy ate my patoon” (“the first statement”). The undisputed evidence was that in referring to “patoon”, C.L. meant vagina. [7] After this statement, C.L. was unwilling to participate in a police interview without her mother, and the police investigation was suspended. The police instructed C.L.’s mother not to discuss the allegations with C.L. [8] Second, on November 23, 2016, at a play therapy session, in response to a short film entitled “My Body Belongs to Me”, in which a young boy describes being inappropriately touched by his uncle, C.L. covered her vaginal areas and stated: “Yuk, my dad did that to me.” She then described the abuse. Using a baby doll, she acted out three different sexual positions: (1) laying on top of the appellant, licking his penis; (2) laying on her side while the appellant licked her vagina; and (3) laying on her back, while the appellant opened her legs and licked her vagina. She made licking noises during this re-enactment. She said this occurred “at dad’s house in dad’s bed”. C.L.’s words and gestures were recorded by the social worker, who testified at trial. [9] Following this second statement, the police re-opened their investigation. [10] On January 18, 2017, during a videotaped interview by a police officer, C.L. made the third statement: “my daddy licked my private parts” and “ate it”. She said it happened in his bed, he used his tongue, and it felt “ticklish”. [11] At trial, C.L. testified by video link, from a room adjacent to the courtroom. While she was made available for cross-examination — first by video link and then, at her request, in the courtroom — C.L. did not want to answer questions about the allegations. The video-recorded statement [12] The statement to police that was recorded on video was admitted under s. 715.1 of the Criminal Code . Section 715.1 of the Code permits a video recording of a victim or other witness to be admitted if the Crown establishes on a balance of probabilities that: (1) the victim or witness was under the age of 18 at the time of the offence; (2) the statement was made within a “reasonable time” after the alleged offence; (3) the victim or witness describes the acts complained of in the statement; and (4) the victim  or witness, while testifying, “adopts” the contents of the statement: R. v. P.S. , 2019 ONCA 637, at para. 12. [13] The appellant argues that the trial judge erred in finding that the video recording was made within a reasonable time after the alleged offence and that the complainant had adopted its contents while testifying. [14] In particular, the appellant argues that the nine-month delay between the first statement and the video recording was unreasonable because: (1) the police could have, but did not, make further efforts to obtain a statement from C.L. after their first attempt to interview her was unsuccessful; and (2) having regard to the evidence that C.L.’s mother did not follow police instructions to refrain from speaking to C.L. about the allegations, C.L. may have been influenced by her mother prior to the video recording, tainting the accuracy of that statement. [15] The appellant also argues that C.L.’s responses at trial about whether she recalled giving the video-recorded statement were equivocal. [16] I reject these arguments. [17] The trial judge noted that in considering the requirement that the video recording have been made within a reasonable time after the alleged offence, the court must balance a number of factors, the most important being the reasons for the delay and impact on the child’s ability to accurately recall the events in issue: R. v. P.S. , (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 71. [18] Having regard to the circumstances and C.L.’s tender age, the trial judge was satisfied that the statement was made within a reasonable time. [19] His reasons describe a young child who was scared and uncomfortable talking about the abuse. It took time, and therapy, for her to be able to do so. It was not until the ninth therapy session, after watching a short movie where a young boy talked about good and bad touches and about how he felt on a bad touch by his uncle, that C.L. opened up and made her second statement to the social worker. The police decision to suspend the investigation at the time they did was not unreasonable. [20] In concluding that the video recording was made within a reasonable time, the trial judge also specifically considered, and addressed in his reasons, the appellant’s argument that C.L. may have been influenced by her mother. He noted that “It is likely that [C.L.’s] mother influenced her decision to speak to the police but the video record suggests most of the words spoken are her own and that she is able to recall events.” He concluded that the concern about C.L.’s mother’s influence on C.L. could be addressed in determining ultimate reliability. There is no basis to interfere with that conclusion. [21] Further, the trial judge found that while C.L. was reluctant to watch the video record or talk about the allegations, with some prodding she “eventually acknowledged “making the movie” and adopted it.” It was not a case of C.L. not recalling the statement; “rather, she did not wish to be exposed to it, or discuss it.” [22] The trial judge also noted that certain statements made by C.L. in her trial testimony supported the inference that she had listened to the video and did recall her prior allegations. In particular, during the video-recorded interview, in recounting that the appellant had licked and eaten her patoon, she described the appellant as having made a circling motion with his body. At trial, when asked if she had told the officer the truth during the interview, she agreed and stated, “I couldn’t do the really lay down circle thing that the – I didn’t really do the circle thing right” and laid down on the floor. [23] There is no basis to interfere with the trial judge’s conclusion that C.L. adopted her video-recorded statement. The first two statements A framework [24] The first two statements were admitted under the principled exception to the hearsay rule. Under that exception, an out of court statement may be admitted for the truth of its contents if the party tendering it demonstrates, on a balance of probabilities, that the statement satisfies the criteria of “necessity” and “threshold reliability”: R. v. Khelawon , 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47; R. v. Bradshaw , 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Even if the trial judge concludes that those criteria are satisfied, she has the discretion to exclude it if the prejudicial effect outweighs its probative value: Khelawon , at para. 49; Bradshaw , at para. 24. [25] As the trial judge noted, “threshold reliability” can be established either by showing that there are adequate substitutes for the traditional safeguards for testing the truth and accuracy of the hearsay evidence (procedural reliability) or that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Khelawon , at paras. 61-63; Bradshaw , at paras. 27-28, 30-31. [26] The statement must be sufficiently reliable to overcome the dangers arising from the difficulty in testing it: Khelawon , at para. 49; Bradshaw , at paras. 26, 32. As Bradshaw explains, “…[s]ubstantive reliability is concerned with whether the circumstances and any corroborative evidence provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”: at para. 40. Thus, the trial judge must identify alternative, even speculative, explanations for the hearsay statement and, based on the circumstances and evidence led on voir dire , must be able to rule out any plausible explanation on a balance of probabilities: Bradshaw , at paras. 48, 49. The circumstances in which the statement was made and corroborative evidence, if any, must substantially negate the possibility that the declarant was untruthful: Bradshaw , at paras. 31, 90. The trial judge’s reasons [27] Following the voir dire with respect to the admissibility of the three statements, the trial judge ruled that they were admissible, for reasons to follow. The trial judge provided those reasons at the beginning of his reasons for judgment. [28] Citing R. v. F. (W.J.) (1999), 138 C.C.C. (3d) 1 (S.C.C.), the trial judge noted that the requirement is that the evidence in question be “reasonably necessary” to prove a fact in issue and includes situations in which the witness is unable or unwilling to provide an accurate and frank recital of events. The trial judge concluded that the first two statements were reasonably necessary: “This is a six year old child who does not want to discuss the things she previously said her daddy did to her.” [29] The trial judge found that procedural substitutes were not present in this case. His finding that the first two statements satisfied the criteria of “threshold reliability” was grounded in his conclusion that they were substantively reliable. [30] The trial judge found that the first statement was “short, simple, and spontaneous” and was heard by a neighbour, in addition to the mother. The brevity of the statement alleviated concerns that it might have been improperly heard by the witnesses and conveyed to the court. [31] In the case of the second statement, the trial judge was satisfied as to the truthfulness and accuracy of the social worker’s testimony. Considering the direction in Bradshaw that, in assessing substantive reliability, trial judges consider alternative, even speculative explanations for the hearsay statements, the trial judge addressed the appellant’s suggestion that others were to blame for exposing the complainant to pornography or abusing her: “This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement.” The appellant’s submissions [32] The appellant argues that neither of the first two statements satisfied the criteria of “necessity” and “threshold reliability”. [33] Citing R. v. Rhayel , 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 73, he argues that neither of the first two statements satisfied the “necessity” criterion because they were repetitious of the video recording admitted under s. 715.1 of the Code . [34] As to substantive reliability, the appellant argues that in assessing the first statement, the trial judge did not address C.L.’s statement, made at the same time as her first statement, that the appellant had “punched me in the face.” C.L.’s mother had never noticed signs of C.L. having been punched in the face. This, the appellant argues, undermined the credibility and reliability of C.L.’s first statement. [35] Nor, he argues, did the trial judge address the alternative explanation the appellant offered for both the first and second statements in assessing the substantive reliability of the first statement, namely that C.L. might have been abused or exposed to pornography by others. [36] Further, as to the threshold reliability of the second statement, the appellant argues that the trial judge failed to consider that, between the first statement and the second statement, C.L.’s mother had disregarded police instructions to refrain from discussing the allegations with C.L. Citing R. v. D.R. , [1996] 2 S.C.R. 291, the appellant argues that C.L.’s statement did not satisfy the requirement of threshold reliability because it was equally consistent with the hypothesis that her mother had influenced her to make the allegations. [37] Finally, the appellant argues that the trial judge improperly relied on the video recording to reject an alternative explanation for, and to corroborate, the second statement, offending the rationale of the rule that prior consistent statements are presumptively inadmissible. Analysis [38] I reject these arguments. (1) The “necessity" requirement [39] Turning first to the appellant’s argument that neither the first nor the second statement satisfied the “necessity” requirement, there is no “bright line rule that enjoins all cumulative hearsay”: R. v. Mohamad , 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 123. Defence counsel at trial did not challenge “necessity” on the basis of cumulative hearsay, but, in any event, this case is different from Rhayel . [40] In Rhayel , the court held that the complainant’s video-recorded statement was not admissible under the principled exception to the hearsay rule because it was not necessary: the evidence was already before the court through the complainant’s testimony at the preliminary inquiry. Epstein J.A., writing for the court, explained that evidence which is merely repetitious of statements already admitted may have little or no probative value, and the prejudice to the accused resulting from its admission may be great: Rhayel , at para. 73. The risk of prejudice is recognized in the rule that renders prior consistent statements generally inadmissible. Epstein J.A. noted that, on a number of occasions, the trial judge had commented on how very similar the accounts of the complainant were. [41] In this case, the first and second statements had probative value in and of themselves because of the circumstances in which they were made. The complainant’s statements that “daddy ate my patoon” and “yuk, my dad did that to me” and her gestures during play therapy describing the sexual acts were spontaneous and unprompted. It is their spontaneity that gives them their probative value. The complainant’s testimony at the preliminary inquiry in Rhayel was not spontaneous. [42] Moreover, there was more detail given in the statements made and gestures shown to and recounted by the social worker than in the video recording. They were not merely repetitious of the video recording. (2) Substantive reliability [43] I turn next to the issues that the appellant raises with respect to the substantive reliability of the first statement . The appellant correctly notes that the trial judge did not address C.L.’s statement, made at the same time as her first statement, that the appellant had “punched me in the face.” This is not surprising: the appellant does not dispute that defence counsel at trial did not refer to the “punched me in the face” statement in his oral or written submissions. Moreover, the statement of a four-year old, in the context of a sexual encounter, that she had been “punched” in the face does not necessarily mean she was hit with such force as to leave a visible mark. [44] As to the appellant’s alternative explanation for the first statement, in a phone call with the complainant’s mother (which the mother’s friend listened to), the appellant pointed the finger at the mother’s father and brothers and the babysitter. But the mother testified that: neither of her brothers had access to C.L. outside of the mother’s supervision; she does not have a babysitter; and she has not seen her father in years. And C.L. never wavered on the fact that it was “daddy” who ate her patoon. [45] In assessing the threshold reliability of the second statement, the trial judge specifically considered and ruled out the appellant’s speculative explanation for the statement. The appellant does not challenge the Crown’s explanation that the appellant’s trial counsel did not advance a similar argument with respect to the first statement and it is therefore not surprising that the trial judge’s analysis focuses only on the second statement. As noted above, the trial judge’s reasons for admitting the three statements at issue formed part of his judgment finding the appellant guilty of sexual assault and sexual interference. In rejecting the appellant’s testimony and finding that it did not leave him with a reasonable doubt, the trial judge again addressed the appellant’s alternative explanation, and concluded that it was “nothing more than an attempt to deflect attention from himself.” [46] Reading the trial judge’s reasons as a whole, it is clear he concluded that the appellant’s speculative explanation was not plausible and ruled it out. The fact that the trial judge did not specifically address the appellant’s speculative explanation in the portion of his reasons addressing why the first statement satisfied the requirement of threshold reliability is not a basis for this court to interfere. [47] Turning to the second statement, the trial judge specifically considered the risk that the mother had influenced C.L. in assessing whether the delay before the making of the video recording was reasonable. This, the Crown advises, is the primary context in which the appellant’s trial counsel made this argument and it is therefore not surprising that this is where the trial judge addressed it. As noted above, the trial judge found that the video record suggests most of the words spoken were C.L.’s own and concluded that the concern about the mother’s influence on C.L. could be addressed in determining ultimate reliability. It cannot be said that the trial judge failed to “consider” the risk that the mother influenced C.L. in assessing threshold reliability. [48] Moreover, in his reasons for judgment, the trial judge again specifically addressed the possibility that the mother had influenced C.L. by questioning her about the allegations. In his view, the circumstances in which the first two statements were made “undermine[d] the assertion the complainant’s trial testimony was tainted by external influences.” [49] Finally, the appellant’s argument that the trial judge improperly relied on the video recording to reject an alternative explanation for, and to corroborate, the second statement arises out of the passage in the trial judge’s reasons explaining why he rejected the appellant’s speculative explanation for C.L.’s second hearsay statement: “This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement” (emphasis added). [50] Contrary to the appellant’s argument, the trial judge did not use the fact that there were similarities between the video recording and the second statement to conclude that the second statement was more likely to be true. Rather, it was the graphic detail in her accounts — “the level of sexually explicit details” — that caused him to reject the appellant’s speculative explanation for C.L.’s second statement. The trial judge’s careful analysis of why, in the circumstances, both the first and the second statements were admissible demonstrates that he was aware that prior consistent statements are generally inadmissible. Disposition [51] For these reasons, I would dismiss the appeal. Released: April 29, 2021 “D.W.” “Alexandra Hoy J.A.” “I agree. David Watt J.A.” “I agree. I.V.B. Nordheimer J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.M., 2021 ONCA 227 DATE:  20210408 DOCKET: (M52320) C68627 Hoy J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent (Responding Party) and J. M. Applicant (Moving Party) Jessica Zita, for the applicant Bradley Reitz, for the respondent Heard: April 8, 2021 by video conference ENDORSEMENT [1] Following a nine-day trial by jury, the applicant was convicted of sexual assault and sentenced to 18 months’ custody. He was a first offender and is on bail, pending appeal. [2] Legal Aid Ontario refused his application for legal aid coverage for an appeal on the basis that his appeal did not have sufficient merit to justify giving him a legal aid certificate. Its refusal of coverage was upheld on appeal to the Provincial Office. [3] The applicant now seeks an order pursuant to s. 684 of the Criminal Code , appointing legal counsel Jessica Zita to assist him on his appeal. The Crown opposes. [4] Section 684(1) provides that a judge of this court may assign counsel to act on behalf of an accused where, in the opinion of the judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. An order for government-funded counsel is exceptional relief: R. v. Staples , 2016 ONCA 362, 352 O.A.C. 392, at para. 40, reconsideration allowed, R. v. Staples , 2017 ONCA 138. [5] The Crown does not contest, and the applicant has satisfied me, that he does not have sufficient means to obtain legal assistance. He has child support obligations and has lost his minimum wage employment because of the COVID-19 pandemic. [6] However, I am not persuaded that it is in the interests of justice that I order legal assistance. On the applicant’s behalf, Ms. Zita takes issue with several aspects of the jury charge. The Crown characterizes the applicant’s grounds of appeal as devoid of merit. I would not go that far. But I am of the view that the issues on appeal are relatively straight forward and of a nature that can be fairly and properly dealt with by this court on an inmate appeal. I conclude this notwithstanding the applicant’s evidence that he suffered from a learning disability and, at age 30, still experiences challenges with reading comprehension and communication. In the opinion letter provided to Legal Aid Ontario and in her appeal of Legal Aid Ontario’s refusal to issue a certificate, Ms. Zita provides a careful roadmap of the arguments that she would make on appeal regarding the charge to the jury. [7] Accordingly, this application is dismissed. “Alexandra Hoy J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.M., 2021 ONCA 150 DATE: 20210311 DOCKET: C65287 Pepall, van Rensburg and Brown JJ.A. BETWEEN Her Majesty the Queen Respondent and J.M. Appellant Mark Halfyard, for the appellant Rebecca Schwartz, for the respondent Heard: October 22, 2020 by video conference On appeal from the conviction entered on January 12, 2018 by Justice David E. Harris of the Superior Court of Justice, with reasons reported at 2018 ONSC 344. BROWN J.A.: I.        OVERVIEW [1] The appellant, J.M, appeals his conviction on a single count of sexual assault, for which he received a custodial sentence of three and a half years. [2] The main issue on this appeal concerns the trial judge’s use of judicial notice, including his personal experience as counsel, as part of his credibility assessment of the complainant. [3] For the reasons set out below, I conclude that, in making findings that were central to his assessment of the credibility of the complainant, the trial judge erred by exceeding the bounds of judicial notice, including the proper limits of drawing on previous personal experience as counsel. As a consequence, his credibility findings were materially infected by those improper considerations. Given those errors on the key issue at the trial, I would allow the appeal, set aside the conviction, and direct a new trial. II.       BACKGROUND [4] The single count against the appellant encompassed two separate incidents that took place in November and December 2014. [5] The complainant and the appellant were second cousins. At the time of the incidents the complainant was 16 years old; the appellant was 20 years old. [6] The complainant alleged that in November 2014 she went out with the appellant for bubble tea. He drove her to a parking lot next to a small building and asked her to get into the back seat. She did so, and he followed. According to the complainant, without warning and without saying anything, the appellant then raped her. The complainant testified that she resisted and screamed throughout. [7] The December 2014 incident took place at the complainant’s house. According to the complainant, the appellant came over to her house and watched TV for a while with the complainant, her father, and some of her siblings. The complainant and appellant left and went into another room, where the appellant groped her. They then went upstairs to her bedroom, where he assaulted her by trying to have sexual intercourse. He was unsuccessful. The complainant testified that she was passive during the assault and the appellant had put a blanket in her mouth to muffle any screams. [8] The appellant testified. He denied that either incident occurred. He acknowledged that he had been sexually intimate with the complainant on three occasions – two involving oral sex and one attempted intercourse – but on each occasion the sexual activity was consensual. [9] Entered into evidence was the thread of a Snapchat conversation between the appellant and complainant in April 2015, around the time that she disclosed the incidents. It was alleged that during the course of the exchange the appellant wrote: “Did you get prego?” The trial judge held that statement was made by the appellant and constituted an implicit admission of sexual intercourse with the complainant: at para. 102. [10] The trial judge rejected the appellant’s denial of the incidents, concluded that it did not raise a reasonable doubt, and accepted the complainant’s evidence as credible and confirmed by the Snapchat conversation: at paras. 114-116. The trial judge found the appellant guilty on the single count of sexual assault contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46. III.      TRIAL JUDGE’S REASONS [11] Later in these reasons I will review in detail the specific portions of the trial judge’s reasons that relate to the appellant’s grounds of appeal. For the present, an overview of the reasons will suffice. [12] At trial, the Crown called five witnesses: the complainant; a friend of the complainant and one of her teachers on the issue of the timing of the complainant’s disclosure of the incidents; the complainant’s father; and a police constable who testified about chat data extracted from the complainant’s cellphone. The appellant testified in his defence. No expert evidence was led by either party. [13] The trial judge started his reasons with some reflections on how to apply the principle in R. v. W. (D.) , [1991] 1 S.C.R. 742. He then turned to the evidence, beginning his review and analysis with the complainant’s evidence. He regarded the trial as turning “principally on credibility, not reliability”: at para. 45. [14] In the course of dealing with defence arguments regarding the credibility of the complainant’s evidence about the December incident in her bedroom, the trial judge examined a key submission of the appellant. The defence argued that it was implausible the complainant would not distance herself from her abuser after the rape in the car. The defence’s argument was part of a broader submission encompassing both incidents of sexual assault. The defence contended that the complainant could have, but did not, disassociate herself from the appellant and this weighed against her credibility: at paras. 54-55. [15] The trial judge considered the defence’s submission but rejected it. His explanation for doing so contained several parts. [16] First, he considered the judgment of the Court of Appeal of Alberta in R. v. A.R.D. 2017 ABCA 237, 55 Alta. L.R. (6th) 213 (“ A.R.J.D. (AB) ”), which was subsequently affirmed on appeal to the Supreme Court of Canada: R. v. A.R.J.D. , 2018 SCC 6, [2018] 1 S.C.R. 218 (“ A.R.J.D. (SCC) ”). The majority of the Court of Appeal of Alberta held that evidence of a lack of avoidant behaviour by a complainant can tell a trier of fact nothing about a sexual assault allegation: A.R.J.D. (AB), at para. 39. [17] The trial judge wrote that he would “fine tune” the comments of the Court of Appeal of Alberta in two respects. First, drawing on his experience as counsel on cases before this court, he stated that instances in which a complainant fails to distance her or himself “from the abuser are not unusual”: at para. 59. [18] Second, the trial judge disagreed with one aspect of A.R.J.D. (AB) . To the extent that the majority of the Court of Appeal of Alberta was proposing a “rigid rule of irrelevancy” for evidence of after-the-event association of the complainant with the accused, he did not think such a proposition was correct: “There can be no blanket rule: each case must be looked at on its own footing”: at para. 66. He went on to state, at para. 68: The important point is that the question about association has to be asked; the judge must be alive and open to the psychology, but there is no prescribed answer. A very careful examination of the evidence is required. [19] On appeal, the Crown describes the trial judge’s reasoning on this point as “sound”. Although open to a different interpretation, the trial judge’s position appears to be consistent with the subsequent, very brief endorsement by the Supreme Court in A.R.J.D. (SCC) , in which it stated, at para. 2: We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. [1] [Emphasis added.] [20] The trial judge next reviewed the complainant’s evidence about her association with the appellant. He prefaced his review with his conclusion that he did not believe her continued association with the appellant indicated that the assaults did not happen nor did it detract from her credibility: at para. 69. He charged himself that he had “to look carefully at her psychology and the situation she found herself in”: at para. 70. While “much of the complainant’s behaviour may have been irrational”, on “a full understanding, it makes perfect sense psychologically and emotionally”: at para. 73. [21] As part of his consideration of the complainant’s testimony regarding her helplessness and paralysis during the December bedroom incident, the trial judge drew an analogy with the psychology of battered woman syndrome described by the Supreme Court decision in R. v. Lavallee , [1990] 1 S.C.R. 852. The trial judge found that the complainant’s emotional state displayed “more than a few parallels with the psychology of battered wife syndrome”: at para. 80. [22] After commenting on the Lavallee decision, the trial judge stated that the complainant’s passivity at the time of the attempted rape in her bedroom was also explained by social science research described in a recent article published in the Scientific American magazine. The parties had not placed this article before the court. [23] At para. 84, the trial judge expressed the following conclusion about the evidence of the complainant’s continued association with the appellant: In conclusion, the evidence of after-the-fact association with the accused does not detract from the complainant’s credibility. It is true that it does not enhance her credibility either. The evidence is neutral towards proof of guilt. However, as Crown counsel pointed out, the complainant’s credibility was at least to some extent reinforced by her candor recounting her passivity during the second incident. On its face, this passivity might appear to undercut her credibility. Giving this evidence is some credit to the complainant’s truthfulness. [24] The trial judge proceeded to consider and reject the appellant’s evidence that he had consensual sexual contact with the complainant on three occasions: at paras. 86-91. He then reviewed the Snapchat conversation between the complainant and the appellant in April 2015, concluding that part of the exchange constituted an implicit admission by the appellant of sexual intercourse with the complainant with penetration and ejaculation: at paras. 102 and 106. In his view, that confirmation by implicit admission was powerful support for the complainant’s version of events: at para. 109. The words of the appellant, which amounted to an admission, were of significant weight: at para. 115. [25] The trial judge rejected the appellant’s evidence on several points, including his denial of the complainant’s two accusations. He concluded that the complainant’s evidence was credible, confirmed, and she was telling the truth with respect to the allegations: at paras. 115-116. He was convinced of the appellant’s guilt beyond a reasonable doubt. IV.     ISSUES ON APPEAL [26] The appellant submits that the appeal puts in issue how far a trial judge can go in drawing on judicial notice, including his prior experience as counsel in assessing issues in dispute. The appellant raises three grounds of appeal: (i) The trial judge misapplied the decision in A.R.J.D. (AB) in finding that the complainant’s post-offence association with the appellant did not impact her credibility by relying on his own anecdotal experience as defence counsel; (ii) The trial judge erred in drawing parallels between the complainant’s emotional state and the psychology of battered woman syndrome in rejecting the defence submission that she willingly engaged in one of the sexual acts; and, (iii) In respect of the question posed by the appellant during the Snapchat conversation, “Did you get prego?”, the trial judge improperly took judicial notice that a “pregnancy scare” could only arise if the appellant had sex with the complainant and ejaculated. [27] In my view, the appeal can be disposed of by considering only the first two grounds of appeal. My analysis will proceed in the following manner. First, I will consider the general principles regarding the use of judicial notice to prove facts, including a judge drawing on his personal experience as counsel. Next, I will apply those principles to the use the trial judge made of judicial notice. I conclude that the trial judge erred in his use of judicial notice. Finally, I will consider whether that error had any material impact on his findings regarding the complainant’s credibility. V.      GENERAL PRINCIPLES REGARDING JUDICIAL NOTICE [28] Canadian law has adopted several rules concerning the admissibility of evidence and the use of proven facts when assessing the credibility of a complainant in a sexual assault prosecution. For example: rules relating to evidence of recent complaint have been abrogated ( Criminal Code , s. 275); a complainant’s delay in disclosure, standing alone, can never give rise to an adverse inference against his or her credibility as there is no inviolable rule on how those who are the victims of trauma like a sexual assault will behave ( R. v. D. (D) , 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65); evidence of sexual reputation is not admissible for the purpose of challenging or supporting the credibility of a complainant ( Criminal Code , s. 277); and evidence that a complainant has engaged in sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief ( Criminal Code , s. 276(1)). [29] However, the use of judicial notice to dispense with the proof of facts in a sexual assault prosecution is not subject to any distinctive rules. The general principles regarding judicial notice apply. [30] Those principles are well settled, although their application can prove challenging on occasion as the limits of judicial notice are inexact: S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2019) (“McWilliams”), at §26.10. The principles have both substantive and procedural dimensions. The substantive dimension [31] The basic principles regarding the substantive dimension of judicial notice can be summarized as follows: (i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) (“Paciocco”), at p. 573; (ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams , [1998] 1 S.C.R. 1128, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant : The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) (“Sopinka”) at §19.16; (iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find , 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48; (iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find , at para. 48; and (v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons ( R. v. Mabior , 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71; Reference Re Alberta Statutes, [1938] S.C.R. 100, at p. 128; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy ( Quebec (Attorney General) v. A. , 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko , 2010 ONCA 615, 103 O.R. (3d) 424, at paras. 65-66. [32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat more nuanced as the expression “judicial notice” captures several different forms of judicial notice: (i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial; [2] (ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and (iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: See, for example, Quebec (Attorney General) , at para. 239; R. v. Le , 2019 SCC 34, 375 C.C.C. (3d) 431, at paras. 83-88. To this category of “social framework facts” others would add “legislative facts”, which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used: Quebec (Attorney General) , at para. 239. [33] The current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that “merely paint the background to a specific issue:” Le , at para. 85. The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability: Le , at para. 85; R. v. Spence , 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 60; Paciocco, at p. 577. [3] [34] The first category of judicial notice cases – those in which judges employ tacit judicial knowledge – contains an internal tension. Canadian law recognizes that judges will have been shaped by, and have gained insight from, their different experiences and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench: R. v. S. (R.D.) , [1997] 3 S.C.R. 484, at para. 38. Judges who decide factual matters necessarily are conversant “with a library of facts or information acquired through experience, education, reading, etc.”: McWilliams, at §26:20.10. However, this fund of general knowledge is different from reliance on personal knowledge in a particular case: Sopinka, at §19.47; McWilliams, at §26:20.10.  While it may prove difficult in some cases to know where to draw the dividing line, the general view is that unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within his or her personal knowledge, even if it has been proved before the judge in a previous case: Sopinka, at §19.46. [35] Finally, matters of which judicial notice may be taken and those that require expert evidence are not compatible. Matters that are the proper subject of expert evidence are, by definition, neither notorious nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco, at p. 579. The procedural dimension [36] The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request. [37] More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:” at §19.61. [38] Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: Paciocco, at p. 582. VI.     FIRST GROUND OF APPEAL: THE TRIAL JUDGE’S USE OF HIS PERSONAL EXPERIENCE AS COUNSEL The issue stated [39] Crown counsel’s closing submissions spanned two days. At the end of the first day, Crown counsel argued that the defence submission that the complainant’s continued association with the appellant after the first alleged assault weighed against her credibility was a “very standard rape myth.” At that point, Crown counsel handed up the decision in A.R.J.D. (AB) and took the trial judge through several passages. [40] The trial judge read the decision overnight. On resuming the following day, he stated that the decision was “a fascinating case” and questioned Crown counsel about it: COURT: And I just want to throw something out there for counsel, just out of the sense of procedural fairness. And there may be not much you can say about it, but I’ll just throw it out there. And there may be not much you can say about it, but I’ll just throw it out there. In another life, I was a criminal lawyer and argued law of sexual assault cases in the Court of Appeal. And in many of those cases, they were interfamilial sort of situations, like this one is, in a way. Maybe not as strongly as some, but it was not unusual that there would be a feature like the one in this case, the non-avoidance , I think, is what the Court of Appeal in Alberta called it, but there’s different ways to term it. And it was all quite counterintuitive, I felt, that the alleged victim was seemingly attracted to the accused as opposed to repelled by the accused. And that was a difficult thing for the jury to get their head around and for me to get my head around as counsel. Nonetheless, it was a common feature, not in all of them, but in many of them. For example, in the M.T . case , which is in your 276 case book. MS. HACKETT: Yes. THE COURT: I looked at the factum for that one , and that was a situation where the complainant actually asked to go over to her uncle’s place, her uncle being the appellant, on a regular basis where she was abused. MS. HACKETT: Yes. THE COURT: So, she asked to go over there. W.D. itself, as well , page 400 of the CCC version of the judgment, Justice Cory at letter F, or it’s Justice Sopinka in dissent actually. He goes through the evidence. Justice Cory doesn’t. And, again, the complainant after being abused went back to the accused’s house after it was in the car that she was allegedly abused, and then she went back to his house because she left her purse behind on two occasions. So, those are just two examples, but many more examples from the jurisprudence. So, the question is for you, can I rely on my experience in, as a lawyer in this field and, or is it impermissible to do that ? So, sort of a long-winded question, but, as I said, more throwing it out there for any submissions on it. Can I rely on my experience? And we’re talking about, I think, we’re not talking about bolstering the complainant’s credibility. We’re just talking about understanding what might be argued and has been argued here to be something against her credibility, that hits against her credibility. So, it’s neutralizing that, as opposed to enhancing her credibility. So, that’s sort of what’s on my mind here a little bit. I’m not sure there’s much you can really say about it, but I have to look if I can rely on my experience in these sorts of situations from when I was a lawyer. [Emphasis added.] [41] The trial judge had acted as counsel for the appellants in both W.(D.) and M.T , 2012 ONCA 511, 289 C.C.C. (3d) 115 . [42] Crown counsel advised the trial judge that she had not done any research on the question he was posing: [B]ut my initial response is just on a more broad and perhaps logical one, is that every person who’s a judge brings with them their lifetime of experiences, and I think that’s accepted. And I wouldn’t, unless there’s a case that says otherwise, I wouldn’t see why your past life experience as a lawyer would generally be taken out or separated from that. [43] During the balance of the trial, the trial judge did not ask defence counsel for submissions on whether he could draw on his experience as counsel in sexual assault cases. [44] As noted earlier, in his reasons the trial judge wrote that he would “fine tune” comments made by the majority in A.R.J.D. (AB) in two respects. The first he explained at para. 59: I would go one step further than the judgment with respect to the association evidence. In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace . I am confident that trial and appellate judges, and counsel who deal with these cases, would agree. Despite such strong after-the-fact evidence of association, juries have been known to convict in these circumstances. [Emphasis added.] [45] The trial judge believed that he could place some reliance on his prior empirical experience because “[i]t is the same as a judge relying on their judicial experience”: at para. 61. [4] [46] On appeal, the appellant submits that by drawing on his personal experience as counsel, the trial judge used the wrong starting point for his analysis of the complainant’s credibility. His experience as counsel led him to express the view that cases in which a complainant fails to distance her or himself from the abuser are commonplace. That view moved the needle of the burden of proof against the appellant. Using a methodology that draws on personal pre-judicial experience to examine the evidence was dangerous when dealing with a key issue in dispute between the parties – the credibility of the complainant – because it circumvented the safeguards built into the proper application of the principle of judicial notice, namely notoriety or immediate demonstrability. [47] In response, the Crown submits that the trial judge referenced his prior experience as counsel merely to demonstrate the fallacy of the myths and stereotypes upon which defence counsel relied, namely that the complainant’s continued association with the appellant after the assaults was inconsistent with her allegations of assault. The trial judge’s conclusion that instances in which a complainant fails to distance her or himself from the abuser are commonplace was not an adjudicative fact reflecting the trial judge’s personal views, but a recognition of the general social context in which sexual assault law operates. In any event, there was no prejudice to the appellant because elsewhere in his reasons the trial judge rejected a “rigid rule of irrelevancy”, explaining that “after the fact association with the accused can, in some instances, weigh against the complainant’s credibility:” at para. 66. Analysis [48] No judge comes to the bench a tabula rasa . We all bring varied experiences that, one hopes, assist us in fairly adjudicating the variety of legal disputes presented by the parties who appear before us. Invariably we examine, in some fashion, the legal disputes before us through the lens of that prior general experience. [49] But here the appellant does not complain about the trial judge using his general prior experience. The appellant complains that the trial judge impermissibly drew upon his personal experience as counsel in specific types of cases to assist him in deciding a key issue in the present case: the credibility of the complainant. [50] When a judge intends to draw upon specific experiences in his or her pre-judicial experience to determine a contested issue in a case, procedural fairness demands both judicial restraint and judicial transparency. [51] The adversarial system imposes a necessary restraint on that which a trial judge can take into account when deciding contested issues, including the credibility of a party. The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule: Paciocco, at p. 573; Justice David Watt, Watt’s Manual of Criminal Evidence 2020 (Toronto: Thomson Reuters, 2020) at §14.01. As this court cautioned in R. v. Potts (1982), 36 O.R. (2d) 195 (C.A.), at p. 204, leave to appeal refused, [1982] S.C.C.A. No. 301, “a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.” Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge: Sopinka, at §19.46. [52] During the course of his exchange with Crown counsel about the decision in A.R.J.D. (AB) , the trial judge mentioned two cases in which he had been counsel that involved complainants who continued to associate with the accused following assaults. If the trial judge had left the matter there, the appellant would have no cause to complain. The transcript of the hearing reveals that both authorities had been filed by counsel during the trial and were available for counsel to make submissions on the point. Even in cases where trial judges refer counsel to jurisprudence not placed before them, the age of smartphones and free case searches on CanLII provide counsel with the tools to respond quickly to such judicial reflections or musings. And counsel can always ask for a break if they require more time to respond. [53] But the trial judge’s reasons disclose that he went much further than reflecting on two reported cases in which he had acted as counsel. By the time of his reasons, the trial judge had drawn on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes, instances in which a complainant fails to distance her or himself from the abuser are not unusual but “commonplace,” a conclusion approximating a form of generalization. [54] I am persuaded by the appellant’s submission that for the trial judge to accept, without a proper evidentiary foundation and in reliance on his personal experience, that the complainant’s conduct in continuing to associate with the appellant reflected “commonplace” conduct by complainants in sexual assault cases amounted to “sidestepping” the test for judicial notice. Whether a witness is credible is a question of fact: A.R.J.D. (AB) , at para. 28; R. v. R.G.B. , 2012 MBCA 5, 100 W.C.B. (2d) 630, at para. 59. The trial judge’s conclusion was based on his personal experience rather than an assessment of either criterion for taking judicial notice of facts: notoriety or immediate demonstrability. [55] As well, the process that led him to that conclusion lacked transparency. Apart from his mention of two reported cases that had been filed with the court, the trial judge did not disclose to the parties what other personal experience he was drawing upon to make the generalization that he did. The parties were left in the dark about the content and scope of the trial judge’s personal experience that formed the basis for an element of his assessment of the complainant’s credibility, and they had no opportunity to respond to the information that drove the judge’s decision on this point. [56] Moreover, although during the final submissions the trial judge asked Crown counsel for her position on whether it was permissible for him to rely on his experience as counsel, he did not solicit the views of defence counsel. Fairness required that he should have. Although the Crown submits that the trial judge’s initial question to Crown counsel during her closing submissions also amounted to an invitation to defence counsel to make submissions, optimally the trial judge should have specifically invited submissions from defence counsel. The trial judge had the opportunity to remedy that oversight. About a month after closing submissions, counsel re-attended before the trial judge to hear his judgment. Instead, the trial judge requested further submissions on an issue relating to the Snapchat evidence. That would have been an ideal opportunity for the trial judge to ask defence counsel for her position on the permissibility of drawing on his experience as counsel. [57] Accordingly, I conclude that, in the circumstances of this case, the trial judge erred in drawing on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes instances in which a complainant fails to distance her or himself from the abuser are not unusual but “commonplace.” He overstepped the proper boundaries of taking judicial notice – even tacit judicial notice – of a fact that informed his assessment of the credibility of the complainant. [58] I will assess the impact of that error after considering the appellant’s second ground of appeal. VII.    SECOND GROUND OF APPEAL: THE TRIAL JUDGE’S ASSESSMENT OF THE COMPLAINANT’S PASSIVITY The issue stated [59] During his examination of the complainant’s evidence about her continued association with the appellant after the first assault, the trial judge remarked on comments made by the police officer who conducted the Criminal Code s. 715.1 interview of the complainant. The trial judge observed that the officer “made it plain that he did not believe her because of her admitted acquiescence and lack of resistance in the second incident of sexual assault”: at para. 79 The trial judge was highly critical of the officer’s interview of the complainant. [60] The trial judge then continued, at paras. 80-82: Examining the complainant’s emotional state, there are more than a few parallels with the psychology of battered wife syndrome explained by Justice Bertha Wilson in R. v. Lavallee , [1990] 1 S.C.R. 852. There was reference there to the administration of a shock which leads to a motivational state of “learned helplessness.” In the interfamilial context, a phenomenon may occur known as “traumatic bonding” between a dominant person and a subjugated individual such as a child. In Lavallee , the process of “traumatic bonding” as explained by expert evidence, was adopted by the court at para. 60 : The less powerful person in the relationship — whether battered woman, hostage, abused child, cult follower, or prisoner — becomes extremely dependent upon, and may even come to identify with, the more powerful person. In many cases, the result of such dependency and identification is that the less powerful, subjugated persons become “more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person.” As this “cycle of dependency and lowered self-esteem” is repeated over time, the less powerful person develops a “strong affective bond” [traumatic bonding] to the more powerful person in the abusive relationship. It is this psychology which helps to explain the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault . Her testimony that she just wanted to give the accused what he wanted and the admission of kissing him back once, together with a several month delay in disclosing the assault, is suggestive of a process similar to that in Lavallee referred to as “traumatic bonding.” The complainant’s passivity at the time of the attempted rape is also explained by more recent social science research in the area: see Francine Russo, Sexual Assault May Trigger Involuntary Paralysis (August 4 2017), online: Scientific American, <www.scientificamerican.com/article/sexual-assault-may-trigger-involuntary-paralysis>. [Emphasis added] [61] The appellant submits that the trial judge erred in drawing parallels between the complainant’s emotional state and “the psychology of battered wife syndrome” in rejecting the defence submission that she willingly engaged in one of the sexual acts. The appellant argues that: at trial no party raised the applicability of the concepts of “learned helplessness” and “traumatic bonding” discussed in Lavallee ; the complainant was not a battered spouse; and no expert evidence was adduced at trial on how the concepts would apply to the circumstances of the complainant. The trial judge compounded those errors by relying on the Scientific American article that neither party had put before him. According to the appellant, the trial judge’s extrapolation from Lavallee and use of the Scientific American article violated the narrow confines of judicial notice. The trial judge improperly used those sources to assist him in making findings of fact regarding the complainant’s credibility, a dispute specific to the criminal proceeding. [62] The Crown responds that the trial judge’s comments about battered woman syndrome were directly responsive to defence counsel’s myth-based submission that the complainant’s passivity during the second sexual assault raised a reasonable doubt about lack of consent. While it might have been preferable for the trial judge to canvass the battered woman syndrome analogy with counsel, in the circumstances of this case, his failure to do so did not prejudice the appellant in any way. The conclusions the trial judge ultimately drew were legally correct: a victim’s passive response to a sexual assault is not inconsistent with lack of consent; and the assumption that active resistance is the “normal” or “typical” reaction is a sexual stereotype that has no place in our criminal justice system. Analysis [63] The trial judge’s use in his reasons of the Lavallee decision and the Scientific American article was marked by several errors. (a) The use of the Lavallee decision [64] First, no party submitted that as part of his credibility assessment of the complainant the trial judge should draw a parallel between the complainant’s conduct and the battered woman syndrome which had been the subject of expert psychiatric evidence in Lavallee . It was an error for the trial judge to raise that issue without affording the parties an opportunity to address and respond to it during the trial. The comments made by this court in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 69, in the context of a sentencing hearing apply with equal force to the liability stage of a criminal trial: Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue. If counsel takes the position that the issue is relevant, then it should be left to counsel to produce whatever evidence or material he or she deems appropriate, although the trial judge may certainly make counsel aware of materials known to the trial judge which are germane to the issue. If counsel takes the position that the issue raised by the trial judge is not relevant on sentencing, it will be a rare case where the trial judge will pursue that issue. [65] The Crown submits that the trial judge’s comments about battered woman syndrome were directly responsive to defence counsel’s submission that the complainant’s passivity during the second assault raised a reasonable doubt about lack of consent. I would note that at trial Crown counsel did not respond to the defence’s closing by drawing parallels with the syndrome. If the trial judge thought there might be a parallel, he was obliged to raise the issue with counsel before the trial concluded and afford counsel an opportunity to respond. His failure to do so was an error. [66] Second, since expert evidence is, by definition, neither notorious nor capable of immediate and accurate demonstration, judicial notice does not extend to an area that requires expert evidence: McWilliams, at §26:10. Yet, the trial judge, in effect, took judicial notice of expert evidence adduced in the Lavallee case and applied it to explain the conduct of the complainant in the present case.  Such use of the Lavallee decision constituted an improper use of judicial notice. [67] In Lavallee the accused had pleaded self-defence to the charge that she had murdered her common law partner. The accused adduced expert psychiatric evidence to assist the jury in understanding two elements of her defence: her reasonable apprehension of death; and the lack of possibility to otherwise preserve herself from death. In addressing that second element, the psychiatrist attempted to explain why the accused had remained with her violent partner. It was in that context that the psychiatrist testified about the condition of “learned helplessness,” which Wilson J., writing for the majority, noted was related in the psychological literature to the concept of “traumatic bonding”: at p. 886. [68] In the present case, the trial judge drew on that part of the Lavallee decision to fashion an explanation for “the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault”: at para. 81. The trial judge did so in the absence of any evidence from an expert who had examined the complainant and could provide an opinion explaining the complainant’s passivity at times during the second assault. Nor was there any expert evidence regarding the permissibility of using psychiatric evidence from a case about the conduct of a battered woman to explain the conduct of a person in the complainant’s circumstances. [69] The trial judge also did not provide counsel with any notice of his intention to use the evidence referred to in Lavallee in the present case. That was improper and unfair. As the Supreme Court stated in R. v. Sappier; R. v. Gray , 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 71 : “[I]t is generally wise not to incorporate evidence submitted in other cases without disclosing it to the parties and allowing them the possibility of challenging it or presenting contrary evidence.” (b) The use of the Scientific American article [70] The final error was specific to the trial judge’s use in his reasons of an article that appeared in the August 4, 2017 edition of Scientific American. The trial judge used the information in the article as evidence that the complainant’s passivity at the time of the attempted rape was explained by more recent social science research in the area. [71] Scientific American is a popular science magazine available in many retail outlets and online. According to the online reference, the article, Sexual Assault May Trigger Involuntary Paralysis , was written by a journalist who specializes in psychology and behavior. The article did not constitute original research. Instead, it summarized the results of a 2017 Swedish study that reported a majority of female rape survivors who had visited a Stockholm emergency clinic reported that they did not fight back. As well, the article noted a 2005 study with similar results and reported comments made by an Australian psychiatrist about the Swedish study. [72] The parties did not provide the trial judge with the article; his inclusion of a reference to the article in his reasons was the result of his own research. The trial judge did not invite the parties to make submissions about the article; they first discovered that the trial judge considered the article upon reading his reasons. [73] The Crown concedes that it was an error for the trial judge to refer to the Scientific American article without canvassing counsel. That was a proper concession for the Crown to make. In my view, the trial judge’s use of the article in his reasons as part of his assessment of the complainant’s credibility amounted to an error for two reasons. [74] First, its use compromised the integrity and fairness of the trial process. By relying on a popular scientific publication that was not put into evidence or referred to at the hearing, the trial judge breached the rules of natural justice. He used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it: Hearn v. McLeod Estate , 2019 ONCA 682, 439 D.L.R. (4th) 217, at para. 28; R. v. Désaulniers (1994), 93 C.C.C. (3d) 371 (QC CA), at p. 377, leave to appeal refused, [1995] 1 S.C.R. vii. As was put by Goldstein J. in R. v. Ghaleenovee , 2015 ONSC 1707, 19 C.R. (7th) 154, at para. 21: Checking indisputable facts [on the internet] is one thing.  Conducting an investigation and drawing inferences – especially without giving the parties an opportunity to respond – is another. [75] Second, it constituted an improper use of judicial notice. In R. v. Hernandez-Lopez , 2020 BCCA 12, 384 C.C.C. (3d) 119, leave to appeal to S.C.C. refused, 39090 (July 9, 2020), the British Columbia Court of Appeal saw no error in a trial judge using the parts of an academic article on the evidence of children that merely outlined generally understood and common features of the evidence of children, already reflected in judicial commentary and practice. The concepts described in the article did not lie outside the general knowledge that judges are required to apply in assessing the evidence of witnesses: at paras. 17-22. [76] The court in Hernandez-Lopez went on to note that the trial judge did not rely on the article to furnish critical evidence or as an instruction manual for assessing the evidence of children: at paras. 14 and 21. However, that is how the trial judge in the present case used the Scientific American article. His reasons disclose that he relied on the article as a source of expert evidence that was not properly before the court to assess the veracity of the complainant. It was an error for him to do so; he exceeded the proper limits of judicial notice. VIII.   THE IMPACT OF THE ERRORS [77] As his reasons disclose, the errors identified above played an important role in the trial judge’s assessment of the complainant’s credibility. [78] The trial judge structured his reasons to begin with an examination of the complainant’s evidence, commenting on her credibility: at para. 21. In dealing with her evidence about the assault in the bedroom, the trial judge acknowledged that the defence argument that the complainant’s credibility was adversely affected by her failure to disassociate herself from the appellant “was part of a broader submission encompassing both incidents of sexual assault”: at para. 55. The trial judge treated the defence’s submission as a relevant one, requiring analysis. He stated, at para. 56: It is completely understandable that the defence would make this argument and it has more than just a superficial attraction. However, in the circumstance of this case, I disagree that this evidence detracts from the complainant’s credibility. [79] The trial judge then referred to the decision in A.R.J.D. (AB) , stating that he “would go one step further than the judgment with respect to the association evidence”: at para. 59. It was at this point that the trial judge drew upon his experience as counsel to conclude that instances in which a complainant fails to distance herself from the abuser are not unusual but commonplace: at para. 59. That conclusion informed, in part, the rest of his analysis of the complainant’s credibility. [80] After next reviewing some of the specifics of the complainant’s testimony, the trial judge examined her emotional state. It was at this point that he drew the parallel with the battered woman syndrome considered in the Lavallee decision. After quoting from Lavallee , he continued, at para. 81, by stating that: “ It is this psychology which helps to explain the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault.” [Emphasis added.] The trial judge then immediately referred to the Scientific American article, as support for his further conclusion that “the complainant’s passivity at the time of the attempted rape is also explained by more recent social science research in the area”: at para. 82. [Emphasis added.] Shortly thereafter, at para. 84, the trial judge concluded that “the evidence of after-the-fact association with the accused does not detract from the complainant’s credibility.” [81] Accordingly, the trial judge’s reasons disclose that his errors did not relate to a peripheral issue. Instead, his erroneous use of his previous experience as counsel, the Lavallee decision, and the Scientific American article played important roles in his reasoning process regarding the complainant’s credibility, which was a key issue at the trial. [82] The Crown submits that if the trial judge erred in taking judicial notice of matters not in evidence, no substantial wrong or miscarriage of justice was occasioned, relying on the curative proviso in Criminal Code , s. 686(1)(b)(iii). I do not accept this submission. [83] Arguably the trial judge’s use of his prior experience standing alone could attract the application of the proviso. However, taken together with his other errors, I am unable to conclude that this is a case where the errors were harmless and had no impact on the verdict: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26. An error in taking judicial notice is a legal error and may be enough, on its own, to require an appeal to be allowed: Paciocco, at p. 577. As I concluded above, the trial judge’s erroneous use of judicial notice played an important role in his reasoning process regarding the complainant’s credibility. [84] Nor is this a case where the evidence is so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error: Khan, at para. 26. As the trial judge noted, the trial turned principally on credibility, not reliability: at para. 45. [85] Finally, the trial judge’s resort to judicial notice without giving the appellant an opportunity to make submissions on the issue was procedurally unfair. It violated the procedural requirements of judicial notice. As a result, it denied the appellant a fair trial. In that circumstance, the curative proviso does not apply: Khan , at para. 27. IX.     DISPOSITION [86] For the reasons set out above, I would allow the appeal, set aside the appellant’s conviction, and direct a new trial on the single count of sexual assault. Released: March 11, 2021 “S.E.P.” “David Brown J.A.” “I agree. S.E. Pepall J.A.” “I agree. K. van Rensburg J.A.” [1] Given the Crown’s position, I see no need on this appeal to offer a view on what legitimate inferences the Supreme Court’s brief decision in A.R.J.D. (SCC) permits a trial judge to draw from the evidence, or lack of evidence, of a complainant’s after-the-fact conduct. In recent years, this court has grappled with the issue in two decisions: R. v. L.S. , 2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 88-89; and R. v. Diabas , 2020 ONCA 283, 387 C.C.C. (3d) 223, at para. 38. See also Professor Lisa Dufraimont, in Myth, Inference and Evidence in Sexual Assault Trials (2019), 44:2 Queen’s L.J. 316. [2] See, also, Sopinka, at §19.16: “[T]he tacit judicial notice that surely occurs in every hearing is indispensable to the normal reasoning process.” [3] See also, Paciocco, at p. 581: “The fact that judicial notice of social context facts tends to have less impact on the adversarial function does not mean that the requirements of notoriety or incontrovertibility are immaterial.” [4] In support of this proposition the trial judge cited the cases of R. v. G. (A.V.) , 2015 BCPC 438, [2015] B.C.J. No. 3050, at para. 41, and R. v. Ashley , 2012 ONSC 1678, aff’d 2012 ONCA 576.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Jaffer, 2021 ONCA 325 DATE: 20210517 DOCKET: C64987 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Muhammad Abbas Jaffer Appellant Breana Vandebeek, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent Heard: January 12-13, 2021 by videoconference On appeal from the conviction entered by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury, on October 25, 2016, and the entrapment ruling dated October 16, 2017, and the sentence imposed on February 23, 2018. Juriansz J.A.: [1] This appeal was argued together with two other defence appeals, R. v. Haniffa and R. v. Dare , and a Crown appeal, R. v. Ramelson . All of the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. [2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival. [3] The common issue in the four appeals is whether the individuals who were arrested and prosecuted pursuant to Project Raphael were entrapped by the police. The appellant also appeals his sentence. [4] For the reasons that follow, I would dismiss the appeal from the dismissal of the entrapment application. I would also dismiss the appellant’s appeal of his sentence. A. The facts in this case [5] In this case, the ad placed in the escort section of Backpage purported to have been placed by “Kathy”. Kathy described herself as a “Tight Brand New Girl”. The ad included photographs of a female police officer, whose face was not shown, posing as Kathy. The ad indicated Kathy was 18 years old, the minimum age allowed by Backpage. [6] On October 24, 2014, the appellant texted Kathy and asked her rates. Truong responded and, after exchanging several preliminary messages, texted, “well im not quite 18 yet r u ok with that”. The appellant responded, “Yea I’m ok…but how much younger are u? 17?” Truong responded, “im turning 16 on sunday but I look 18”. The conversation continued and the appellant texted, “Ok can I ask why you’re escorting if it’s okay with u? Usually people your age don’t know about this industry”. Truong responded saying that Kathy’s friend got her into it because she needed the money. The appellant eventually proceeded to the hotel. [7] When the appellant arrived at the room, he was arrested and charged with telecommunicating with a person he believed to be under the age of 18 contrary to s. 172.1(2) (child luring under 18), and communicating to obtain for consideration the sexual services of a person under 18 contrary to s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) of the Criminal Code , R.S.C., 1985, c. C-46. While the information references s. 172.1(2), this count relates to the offence under s. 172.1(1)(a). Section 172.1(2) sets out the punishment for this offence. The appellant was also charged with two counts under s. 172.2(2) and a further count under s. 172.1(2) but was not tried on these charges. [8] At trial, the appellant testified that his initial purpose for responding to Kathy’s ad was to engage in a sexual relationship, but his intentions changed when he learned that Kathy was underage. He said he thought it was strange for Kathy to reveal her age and thought it was a cry for help – the only reason that an escort would reveal they were underage was out of fear of their pimp. As a result, he testified that he continued the interaction intending to assist Kathy and did not intend to engage in sex with her once he learned her age. In support of this testimony, the appellant gave evidence that he had arranged to meet an adult escort later the same evening and only had enough cash on his person to pay for a single escort. [9] When he was being arrested, the appellant told police that he intended to contact the police to help Kathy. The appellant claimed he had previously assisted the police in investigating the pimp of an escort he had met on Backpage and this was corroborated by police testimony at trial. [10] The jury disbelieved the appellant’s evidence and found him guilty of both counts. The sentencing judge stayed the conviction on s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) based on Kienapple v. R. , [1975] 1 S.C.R. 729. [11] The appellant applied for a stay of proceedings on the basis he had been entrapped. The application was denied and the appellant was sentenced to six months incarceration, less credit for time on house arrest, resulting in an effective sentence of four months, two weeks and three days. B. arguments on appeal [12] The appellant submits the trial judge made three errors: 1. by concluding Project Raphael was a bona fide inquiry and failing to find that he was entrapped; 2. by failing to find the appellant had been induced into committing the offence; and 3. by imposing an unfit sentence by refusing to impose a conditional sentence, failing to give sufficient reasons for the sentence imposed, and failing to assign appropriate weight to the aggravating and mitigating factors. C. Analysis (1) Opportunity-based entrapment [13] Appellant’s counsel adopted the submissions made in Haniffa on the issue of opportunity-based entrapment adding her own emphasis and references to the record in this case. As he had in Haniffa , Truong testified in this case that underage persons advertised on Backpage do not reveal their true age in their communications with unknown callers. He added, that if they did disclose their age, they would do so only when they met the customer face to face and felt comfortable. He said what “typically” happens is that the customer shows up expecting an 18-year-old and the person turns out to be a child. Only when the customer takes the initiative to question their age, might their age come out. [14] Counsel submits this testimony shows the police had no real information as to the scale of the problem – how many underage persons were being sold on Backpage and how many customers knowingly purchased underage persons. She submits the information was so paltry that it cannot be said the police had reasonable suspicion. [15] I dealt with this argument in the comprehensive reasons of Ramelson . I explain that Truong’s testimony, based on his extensive experience, gave the trial judge an evidentiary basis for concluding the police had reasonable suspicion persons were going onto Backpage and engaging underage persons thus committing the s. 286.1(2) (obtaining sexual services from a minor) offence. Truong gave the same testimony in this case. [16] For the reasons set out in Ramelson , I reject this argument. (2) Inducement-based entrapment [17] While Ramelson dealt comprehensively with the arguments related to opportunity-based entrapment, Mr. Jaffer raised the issue of inducement-based entrapment as well. [18] This branch of entrapment applies when the police, even though they may have a reasonable suspicion or are acting in the course of a bona fide inquiry, go beyond providing an opportunity and induce the commission of an offence: R. v. Mack , [1988] 2 S.C.R. 903, at pp. 964-965; R. v. Barnes , [1991] 1 S.C.R. 449, at p. 460. Mack is an example of this second branch. A police agent persisted in attempting to persuade Mack, who had dated drug convictions, to participate in a large drug deal despite his refusals. Mack finally participated in the drug transaction because of the police agent’s persistence, his use of threats, and the offer of a large amount of money. Mack’s conviction was upheld by the British Columbia Court of Appeal. In allowing his appeal, the Supreme Court ruled he had been entrapped. Though the police had reasonable suspicion that Mack was involved in criminal conduct, they went too far in their efforts to attract him into committing the offence. [19] The Supreme Court in Mack set out a number of factors to consider to determine “whether the police have employed means which go further than providing an opportunity” at p. 966: - the type of crime being investigated and the availability of other techniques for the police detection of its commission; - whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; - the persistence and number of attempts made by the police before the accused agreed to committing the offence; - the type of inducement used by the police including: deceit, fraud, trickery or reward; - the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; - whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; - whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; - the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; - the existence of any threats, implied or express, made to the accused by the police or their agents; - whether the police conduct is directed at undermining other constitutional values. [20] Counsel argued that the appellant’s factual circumstances strongly suggest that he is a person who succumbed to random virtue testing. He was 22 years old and went on Backpage seeking an 18-year-old escort. He had maintained an A average throughout university and graduated with a bachelor’s degree in science. He was of prior good character, from a close family that supported him, and active with his church. Counsel submitted his testimony showed he was “an odd and strange person” who was lacking in social relationships and could not form relationships with women. He testified he began seeing prostitutes because he could not get a girlfriend. He testified that his first encounter on Backpage, with a prostitute who was 40 years of age, was the first time he had held hands with a woman. The expert report of a clinical and forensic psychologist, which was subsequently obtained for sentencing, diagnosed the appellant as falling within the autistic spectrum of neurological disorders and with depression and anxiety. His chat history and phone records introduced at trial showed that he was not looking for someone underage. The day he was arrested he had talked with escorts ranging in age from 18 to 40. [21] Counsel submits that the purpose of the law of entrapment is to promote society’s respect for the administration of justice and not to lure people like the appellant into committing offences. [22] The trial judge observed that drawing the line between providing an opportunity and inducing the commission of an offence is not always easy but rejected the argument the appellant had been induced. She concluded that the evidence showed clearly that the appellant “was determined to purchase sexual services and gave specific consideration to the information as to the age of the purveyor before he acted on his choices.” The appellant’s messages in the text chat provided a basis for the trial judge’s conclusion. [23] I would not give effect to this ground of appeal. (3) The sentence appeal [24] The appellant was sentenced on his conviction for the s. 172.1 offence. As mentioned, the conviction under s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) was stayed. At the time he committed the offence the maximum punishment for the s. 172.1 offence was imprisonment for 10 years. [25] At sentencing, the appellant argued that a conditional sentence was appropriate given his youth, pro-social lifestyle, and personal background. He had been diagnosed as falling within the autistic spectrum of neurological disorders and suffered from severe depression and anxiety. The psychological testing also established that the appellant was not a pedophile and did not have a sexual preference for minors. [26] The trial judge found that the evidence at trial coincided with the assessment of the psychologist “that he has not had opportunity for an appropriate, socially meaningful, expression of the sexual desires to be expected of a young adult.” She found there was no evidence that the appellant was seeking sexual services from an underage person when he responded to the ad posted by the police, that he was unlikely to reoffend, and that he did not require rehabilitation. She concluded a lengthy custodial sentence would not serve the principles of sentencing, and as noted, imposed an effective sentence of four and one-half months incarceration. [27] The appellant submits that the trial judge's reasons are insufficient to explain why she refused to impose a conditional sentence, and do not permit meaningful appellate review of that refusal. Therefore, this court should sentence the appellant anew. In addition, the appellant submits that the COVID-19 pandemic is a collateral consequence that impacts the fitness of the sentence imposed. He requests that the court impose a sentence of house arrest to address the collateral consequence of the COVID-19 pandemic. [28] I am not persuaded the trial judge’s reasons are insufficient. While she does not specifically itemize the mitigating factors that she took into account, her detailed description of the appellant’s circumstances includes all those facts that the appellant submits are mitigating. And while she did not discuss the appellant's request for a conditional sentence, she did observe the crime was a grave one with a maximum punishment of 10 years imprisonment and did state that any lesser sentence would be inconsistent with the principles of denunciation and deterrence. [29] I would dismiss the appeal against sentence. D. Conclusion [30] For these reasons, I would dismiss both the conviction and sentence appeal. Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE: R. c. Jeanty, 2021 ONCA 395 DATE: 20210604 DOSSIER: C67595 Les juges Rouleau, Hoy et van Rensburg ENTRE Sa Majesté la Reine Intimée et Mont-Louis Jr. Jeanty Appelant David Parry, pour l’appelant Nicolas de Montigny, pour l’intimée Date de l’audience : le 1 juin 2021 par visioconférence Décision rendue séance tenante En appel de la condamnation prononcée le 23 novembre 2018 et de la peine imposée le 21 janvier 2019 par la juge Diane Lahaie de la Cour de justice de l’Ontario. MOTIFS DE LA COUR [1] L’appelant a été reconnu coupable de voies de fait, omission de se conformer, possession de biens criminellement obtenus, méfait à l’égard d’un bien, agression armée, avantage matériel provenant de la prestation de services sexuels et proxénétisme. [2] Il demande l’autorisation d’interjeter appel contre la peine de 55 mois impos ée par la juge. Si l’autorisation est accord é e, il interjette appel contre cette peine. [3] À notre avis, l’autorisation d’interjeter appel doit être accordée, mais l’appel doit ê tre rejet é . [4] Le premier moyen d’appel soulevé par l’appelant est que la juge a mal interprété la preuve et a err é en concluant à l’existence d’une strat é gie visant à amener, à persuader et à inciter la plaignante à retourner dans le domaine de prestation de services sexuels. La juge a conclu que ceci constituait un facteur aggravant pour les fins de la d é termination de la peine. Selon nous, il n’y a pas eu erreur en l’esp è ce. [5] La preuve démontrait que la plaignante avait cess é de travailler dans le domaine de l’industrie du sexe et s’était battue beaucoup pour en sortir. L’appelant savait que la plaignante était fermée à l’idée d’y retourner au début de leur relation, mais qu’elle était toutefois vulnérable. L’appelant a apaisé les craintes de la plaignante et l’a encouragée à retourner à l’industrie du sexe. La preuve appuie également la conclusion que l’appelant exerçait un contrôle continu sur elle dans le cadre de la relation. La plaignante, victime de violence et de manipulation, était sous l’emprise de l’accus é . La conclusion que l’appelant a exploité la vulnérabilité de la plaignante et l’a amen é à rendre des services sexuels moyennant rétribution est bien ancrée dans la preuve. [6] Nous rejetons aussi le deuxième moyen d’appel. À notre avis, la peine n’est pas manifestement déraisonnable. La juge a identifié les facteurs atténuants applicables, dont le fait que les événements se sont déroulés pendant une période très limitée, qu’il ne s’agissait pas d’une situation impliquant une jeune plaignante qui n’avait jamais travaillé dans le domaine auparavant et que les activités sexuelles ont rapporté moins de 1000 $. Par contre, elle a aussi reconnu qu’il s’agissait d’une cause de violence conjugale et que la plaignante a subie de blessures importantes. La juge s’est bien référée à la fourchette de peines pour l’infraction de proxénétisme décrite dans R. v. Lopez , 2018 ONSC 4749 , tout en notant que la grande majorité des facteurs aggravants discutés dans Lopez étaient absents dans ce dossier. Elle n’a pas confondu les facteurs pertinents lors d’une condamnation sous l’article 279.01 du Code criminel , L.R.C. (1985), ch. C-46, dont l’exploitation, et les facteurs pr é sents dans l’article 286.3(1). [7] La détermination de la peine est une t â che hautement individualisée. À la lumière du lourd casier judiciaire de l’appelant, la juge a conclu qu’il y avait risque de récidive élevé. La juge a déterminé une peine juste et appropriée compte tenu des circonstances des infractions et de l’appelant. Il n ’y a pas de raison d’intervenir en l’espèce. [8] La demande d’autorisation pour interjeter appel contre la peine est accord é e, mais l’appel est rejet é . « Paul Rouleau j.c.a. » « Alexandra Hoy j.c.a. » « K. van Rensburg j.c.a. »

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Johnson, 2021 ONCA 257 DATE: 20210427 DOCKET: C67790 Watt, Hoy and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Maxwell Johnson Appellant Jill R. Presser and David Levy, for the appellant Tracy Kozlowski, for the respondent Heard: March 25, 2021 by video conference On appeal from the sentence imposed on December 6, 2019 by Justice Kelly P. Byrne of the Superior Court of Justice. Hoy J.A.: [1] Mr. Johnson was convicted of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime exceeding $5000. He was sentenced to six months’ imprisonment on each count, to be served concurrently, less credit for pre-trial custody, followed by one year of probation. [2] He seeks leave to appeal the sentence imposed. For the reasons that follow, I would grant leave to appeal the sentence, allow the appeal, and substitute a six-month conditional sentence on each count, to be served concurrently, followed by one year of probation. Background [3] In January 2014, two young women ended a night of partying and using drugs at an impromptu gathering at Mr. Johnson’s apartment. Mr. Johnson was 27 years of age at the time. At the women’s request, he shared a small amount of cocaine with them. They did not pay for the cocaine. [4] The women slept at his apartment, as did his friends Rene Jean Moneus and Nicolas Adeyemi. In the early hours of the morning, the women were unconscious and non-responsive. Mr. Johnson frantically sought help and they were rushed to the hospital. Mr. Adeyemi fled. [5] Tragically, one of the women died as a result of combined heroin and ethanol toxicity. The other, whose adverse reaction was also caused by ingesting heroin, recovered. [6] Mr. Johnson was panicked and scared. He did not tell the EMS responders about any drug use and, when first questioned by police, did not mention that the women had ingested cocaine. However, a short time later Mr. Johnson provided a video statement to police and admitted giving the women marijuana and a small amount of cocaine. He also told them he had marijuana at his apartment and directed them to where they would find it. The police searched Mr. Johnson’s apartment. They found 800 grams of marijuana, two and one-half grams of heroin, the remnants of a small quantity of cocaine, and $2,000 in cash. [7] The police also found approximately $54,830 which Mr. Johnson had hidden in the trunk of Mr. Moneus’ car before giving his video statement to the police, in the hope that the police would not find it and take it. Mr. Johnson admitted at trial that this was money he had saved over the three years he had been selling marijuana. [8] Mr. Johnson consented to the forfeiture of the $56,830 found by the police. [9] Mr. Johnson was charged with several offences, including possession of heroin for the purpose of trafficking, and manslaughter. He pled not guilty to all counts but, at the conclusion of the Crown’s case, he conceded that the Crown had met its onus on the offences of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds. He candidly admitted that he started selling marijuana in 2011 to supplement his income. However, he testified that he neither dealt nor used heroin and had no knowledge of heroin in his apartment. [10] The trial judge was left in a state of reasonable doubt by Mr. Johnson’s evidence that he had no knowledge of the heroin in his apartment and she acquitted him of the charge of possession of heroin for the purpose of trafficking. The trial judge considered that, possibly, the heroin belonged to Mr. Adeyemi. She was also left in a state of reasonable doubt on the manslaughter charge. She was not convinced that the heroin found in Mr. Johnson’s apartment, which was not in a form readily consumable by snorting, had any nexus to the heroin ingested by the two women. Sentencing submissions [11] The Crown sought a global sentence of 12 months’ imprisonment (6 months for trafficking cocaine, plus 6 months for possession of marijuana for the purpose of trafficking and 6 months for possession of proceeds, to be served concurrently, but consecutive to the sentence for trafficking in cocaine), followed by probation. [12] The Crown noted that a conditional sentence was not available for trafficking in cocaine, and, typically, a custodial sentence was imposed. [13] Citing R. v. Woolcock , [2002] O.J. No. 4927 (C.A.), and R. v. Butters , 2017 ONCA 973, the Crown submitted that the range for this offence was six months to two years, less a day, with one-off transactions involving small amounts of cocaine, other mitigating factors and rehabilitation prospects at the low end, and transactions involving larger quantities of narcotics, where the offender has a criminal record, at the higher end. [14] The defence submitted that: faced with the unavailability of conditional sentences, in “exceptional circumstances” courts had ordered non-custodial dispositions, by way of a suspended sentence, for trafficking in cocaine; that these were exceptional circumstances; and that Mr. Johnson should receive a 12 month suspended sentence and one year’s probation for the cocaine trafficking charge. The defence further argued that the trial judge should order conditional discharges for proceeds of crime and possession of marijuana for the purpose of trafficking. The defence also submitted that Mr. Johnson should receive Downes credit for his time on bail, if sentenced to a jail term. [15] No pre-sentence report was prepared. Mr. Johnson’s background was conveyed through defence counsel at the sentencing hearing. Reasons for sentence [16] In her reasons for sentence, the trial judge reviewed Mr. Johnson’s personal circumstances. [17] She noted that he was a first offender who was 27 years of age at the time of the offences. He was born in Liberia and was an only child who was orphaned at the age of 14 because both of his parents had been killed in the Liberian civil war. At 16 years of age, he came to Canada as a refugee. He did well, completed high school, and trained and worked as a welder. In 2010, he started his own business. He started selling marijuana in 2011 to supplement his income as his business developed. He was still selling marijuana at the time of the incident giving rise to the charges against him but stopped doing so in 2014. By the time of sentencing, his business had developed to the point it had over 40 contracts and employed 36 people. He provided multiple positive character references. [18] The trial judge accepted that Mr. Johnson had changed his life as result of this tragedy. He had extracted himself from the club lifestyle and no longer sold marijuana or engaged in the consumption of drugs. He had become involved with his church community. [19] The trial judge held that, as a first offender, Mr. Johnson was entitled to the most lenient sentence available based on the circumstances. But those circumstances included that he had been selling marijuana for three years prior to the incident that brought him before the court. In addition to subsidizing his business, he had managed to save over $50,000. She reasoned that, “[t]he mitigation flowing from Mr. Johnson’s lack of criminal record must be tempered against this backdrop.” [20] Citing R. v. Strong , 2019 ONCA 15, an appeal book endorsement in a case involving “large scale, prolonged trafficking for profit in marijuana”, she held that societal and legislative changes since 2014 regarding marijuana are directed at personal use only and do not warrant a reduction in sentence for possession for the purpose of trafficking marijuana, which, she indicated, is still considered a serious offence. [21] She noted that this was a case of social sharing of cocaine but rejected defence counsel’s argument that the circumstances were exceptional and warranted a suspended sentence. His sharing of cocaine was not an anomaly in an otherwise crime-free life. Mr. Johnson was fully immersed in the illegal selling of marijuana. Moreover, while the quantity of cocaine involved was small, cocaine is a highly dangerous and insidious drug. [22] While Mr. Johnson had not pled guilty, he had conceded that he had committed these crimes at the close of the Crown’s case and this was deserving of “significant mitigation”. It was very much “a demonstration of his remorse and willingness to accept responsibility for his actions.” [23] She found that Mr. Johnson’s compliance with his strict bail conditions for four years demonstrated his commitment to a crime-free life but that the conditions of his bail at no point caused him undue hardship that would entitle him to a “Downes credit”. [24] She found the extreme hardship that Mr. Johnson had to overcome deeply compelling and was confident that Mr. Johnson could, and would, rehabilitate himself. However, it does not “override the criminal choices that Mr. Johnson made. It is for those choices and those crimes that Mr. Johnson is being sentenced.” [25] She concluded that each of the three offences warranted a minimum of six months incarceration. However, considering the principle of totality, Mr. Johnson’s personal circumstances, and his sincere and demonstrated desire to lead a pro-social life, she was persuaded that the sentences should be served concurrently to one another. She appreciated that the sentences would normally be served consecutively, but this was not a typical case. Mr. Johnson persuaded her that he was fully committed to rehabilitating himself and she had every confidence he would succeed. As such, he was entitled to the least restrictive sentence available. [26] She gave Mr. Johnson nine days’ credit for time served and imposed a one-year term of probation. The issues raised on appeal [27] Counsel for Mr. Johnson argues that the trial judge erred in principle by: (1) applying the sentencing range for street level cocaine traffickers when he had just shared a small amount of the cocaine he had acquired for personal use with two persons on a social occasion; (2) failing to adequately consider that he was a relatively youthful first offender; (3) distinguishing his admissions at trial from a guilty plea; (4) applying a range appropriate to a large-scale marijuana organization or grow-op for the marijuana offences, resulting in a sentence that was excessive and demonstrably unfit; and (5) declining to apply Downes credit for his time under restrictive bail conditions. Analysis [28] I conclude that the sentencing judge made two errors in principle which affected the sentence imposed. (1) The trial judge erred in applying the range in Woolcock [29] I agree that the trial judge erred in principle in applying the sentencing range in Woolcock, urged by the Crown, to this case of share trafficking, and that that error had an impact on the sentence imposed. [30] Mr. Woolcock was found in possession of 5.3 grams of crack cocaine. Police had received information that Mr. Woolcock was dealing crack cocaine from a residence and observed several instances of individuals visiting the residence for a short time. One of the individuals observed leaving the residence was arrested and found to be in possession of 0.5 grams of cocaine. During a search of Mr. Woolcock’s residence, the police found 5.3 grams of crack cocaine. [31] In the context of that case - a case involving selling crack cocaine for profit at street level - this court, at para. 15, said that: The range for this type of offence appears to be 6 months to 2 years less a day…However, many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. Those circumstances to not exist here. [32] This court reduced the sentence imposed by the sentencing judge from two years less a day to 15 months. [33] In Butters , the sentencing judge had imposed a sentence of 12 months for a one-off transaction for a very small amount of crack cocaine - 0.2 grams - for $20, apparently as a favour for a friend and for no profit. This court considered that a sentence of six months, which was at the low end of the Woolcock range, would have been appropriate, but for the immigration consequences of a sentence of six months or more. The court reduced the sentence to 160 days. [34] As counsel for Mr. Johnson submits, this offence was not the type of offence at issue in Woolcock where crack cocaine was sold at street level for a profit. Or even that at issue in Butters , where, although the transaction was not at a profit, the cocaine was nonetheless sold. This was an instance of “share trafficking”, where a host shared cocaine, acquired for his personal use, with guests to his home, who were not minors or first-time users, at their request, at no charge, and not as part of a business transaction. While the trial judge found the women were regular users of cocaine, she did not find they were addicts. It is less morally blameworthy than the type of trafficking in Woolcock : R. v. Lloyd , 2016 SCC 13, [2016] 1 S.C.R. 130, at paras. 28, 32. As this court has recently held, the absence of commercial motive is a relevant mitigating factor in sentencing for trafficking: R. v. Spagnola , 2020 ONCA 638, at para. 2. [35] Ranges of sentence are only guidelines, and there may well be circumstances where a sentence for share trafficking within the range identified in Woolcock is appropriate. However, the trial judge did not engage in that analysis. As this court has said, it is an error to treat guidelines as constituting a de facto minimum sentence: R. v. Jacko , 2010 ONCA 452, 101 O.R. (3d) 1, at para. 82. The trial judge’s error in principle was to accept the range in Woolcock as generally applicable to share trafficking. (2) The trial judge did not give proper effect to Mr. Johnson’s status as a first offender [36] I agree with counsel for Mr. Johnson that the trial judge also erred in principle in reducing the weight she accorded to the fact that Mr. Johnson was a first-time offender because he admitted he had been trafficking in marijuana for several years before the incident that brought him before the court. This was the first time that Mr. Johnson had been before the court. Aside from the charges below, Mr. Johnson had never been charged, let alone convicted, of any offences in relation to trafficking marijuana. He was a first offender and was entitled to be treated as such for sentencing: R. v. Barclay , 2018 ONCA 114, at para. 44. Other than his admissions at trial, there is no evidence of his involvement in the “drug world,” as the trial judge put it. [37] Moreover, the evidence before the trial judge did not suggest Mr. Johnson’s history selling marijuana was relevant to specific deterrence. The trial judge stated that she was “confident that Mr. Johnson can and will fully rehabilitate himself.” A criminal record is relevant in sentencing to the extent that it “rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism”: R. v. Taylor (2004) , 189 O.A.C. 388 (C.A.), at para. 39. [38] In my view, this error led the trial judge to give undue weight to general deterrence and to impose a harsher sentence for all the offences than she otherwise would have. Individual deterrence and rehabilitation are the primary objectives in sentencing a first offender: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 9. [39] Given this conclusion, it is unnecessary to address Mr. Johnson’s further arguments that the sentences imposed for the marijuana charges were excessive and that his admissions at trial should have been treated as a plea. (3) The Downes credit [40] Finally, I see no error in the trial judge’s conclusion that a Downes credit was not appropriate in the circumstances. The decision as to whether to give Downes credit is a discretionary one: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37. And, contrary to counsel for Mr. Johnson’s assertion, the trial judge explained her reason for declining to give credit: the conditions of his bail at no point caused Mr. Johnson undue hardship. He was able to continue to work while on bail and after a short period during which a relatively strict curfew applied, his curfew was loosened to 11:00 p.m. to 6:00 a.m. The trial judge’s decision is entitled to deference. (4) A fit and appropriate sentence [41] In R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311, this court struck down ss. 742(c) and 742(e)(ii) of the Criminal Code , R.S.C. 1985, c. C-46, which eliminated the availability of conditional sentences for drug trafficking. [42] In my view, a six-month conditional sentence of imprisonment for each of the charges, to be served in the community, concurrently, and followed by one year of probation, is a fit sentence, having regard to all the circumstances of the offence and the offender. Indeed, had this option been available to the trial judge, I suspect she would have availed herself of it. This will permit Mr. Johnson to continue the productive and pro-social life that he has built over the last five years and best ensure the future of the employees of his business in this time of wide-scale economic disruption caused by the COVID-19 pandemic. Disposition [43] I would grant leave to appeal sentence, allow the appeal, quash Mr. Johnson’s sentence of six months’ incarceration (concurrent) and impose a six-month conditional sentence on each count, to be served concurrently, followed by one year of probation. I would order that in addition to the conditions which are compulsory pursuant to s. 742.3(1) of the Criminal Code , during the term of his conditional sentence the conditions in paragraphs 6, 9, 11, 12 and 13-19 of the Release Order of van Rensburg J.A. dated March 10, 2021 shall apply and the appellant shall not change his address without the prior approval of his supervisor. Released: April 27, 2021 “D.W.” “Alexandra Hoy J.A.” “I agree. David Watt J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kanthasamy, 2021 ONCA 32 DATE: 20210120 DOCKET: C68293 Hoy, Lauwers and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Thirumal Kanthasamy Appellant Frank Addario and Wesley Dutcher-Walls, for the appellant Holly Loubert, for the respondent Heard: in writing On appeal from the sentence imposed on September 6, 2016 by Justice Michal Fairburn of the Superior Court of Justice. REASONS FOR DECISION [1] On January 17, 2020 this court released its reasons in appeals advanced by four accused persons arising from a series of tractor trailer thefts and robberies spanning a period of six months. [1] One of those accused was the appellant, Thirumal Kanthasamy. All four accused appealed their convictions. Three of the accused also sought leave to appeal their sentences. The appellant did not. We dismissed the conviction appeals but granted leave to appeal the sentences and reduced those sentences. [2] Subsequent to our decision, the appellant sought leave to extend the time for leave to appeal his sentence. With the consent of the Crown, an extension of time was granted. [3] The appellant seeks a reduction in his sentence on two bases. One is that the principle of parity requires a reduction in his sentence because this court reduced the sentences of his co-accused. The Crown agrees that such a reduction is appropriate and consents to the appellant’s sentence being reduced to six and one-half years from the original sentence of eight and one-half years. [4] The other basis arises from changes in the appellant’s personal circumstances in the nearly four years he was on bail pending appeal, as set out in his fresh evidence application. As a result of those changes, the appellant seeks a further reduction in his sentence to five years, or four years after applying the pre-sentence credit of one year awarded by the trial judge. [5] The Crown opposes the introduction of the fresh evidence on the basis that, if the information had been known at the time of the original sentencing, it would not have affected the result. In any event, the Crown says that the fresh evidence, even if accepted, does not justify any further reduction in the sentence imposed. [6] The changes in personal circumstances advanced by the appellant fall into two categories. One relates to the appellant’s health. While there was evidence before the trial judge of some minor health issues involving the appellant, the appellant now suffers from coronary artery disease, discovered after a heart attack in 2017. The appellant says that his time in custody not only increases the consequences of his heart condition, through stress and alleged delayed access to medications, it also makes him more susceptible to serious harm should he become infected with COVID-19 while he is incarcerated. [7] The other category relates to the appellant’s family situation. The appellant has two children with his estranged wife and a third with his current common law partner. He also acts as a father figure to his common law partner’s son from a previous relationship. Since he was sentenced, the appellant’s daughter with his estranged wife has been diagnosed with cerebral palsy. She requires frequent therapy, which necessitates assistance from family members and costs money. As a result of his incarceration, the appellant’s family is deprived of his assistance in coordinating the therapy, and of the income he generated to defray the costs of treatment. Also, since he was sentenced, the appellant’s common law partner ceased working and is on long term medical disability at 60% of her former salary. This makes the loss of the appellant’s income even more difficult for his common law partner and the children they share. Further, as a result of his incarceration, the appellant is unable to support his common law partner as she struggles with her medical issues. [8] We would accept the fresh evidence. It cannot be said with certainty that this evidence might not have affected the result if it had been known at the time of sentencing. [9] That said, while collateral consequences can properly impact the sentence imposed, the sentence that is ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham , 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14. The three tractor trailer thefts and robberies of which the appellant was convicted involved the use of what was either a real or imitation firearm. In our view, a sentence of less than the six and one-half years consented to by the Crown would not be proportionate to the gravity of the offences and to the degree of the appellant’s responsibility. [10] Accordingly, we grant leave to appeal sentence, allow the appeal, and reduce the sentence to six and one-half years (prior to the credit for pre-sentence custody). [11] Before concluding, we note that it is open to the appellant to seek early parole from the Parole Board of Canada, which has express statutory authority under the Corrections and Conditional Release Act , S.C. 1992, c. 20, s. 121(1), to grant early parole to an inmate who is suffering from exceptional circumstances. “Alexandra Hoy J.A.” “P. Lauwers J.A.” “I.V.B. Nordheimer J.A.” [1] R. v. Kanthasamy , 2020 ONCA 25, 149 O.R. (3d) 409, reported as R. v. Baskaran .

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 1 COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ke, 2021 ONCA 179 DATE: 20210322 DOCKET: M52115 (C66543) & C66543 Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen Appellant/Moving Party and Hongbo Ke Respondent/Responding Party Philippe G. Cowle, for the appellant/moving party No one appearing for the respondent/responding party Heard: January 29, 2021 by video conference On appeal from the order staying the proceedings by Justice Joyce L. Pelletier of the Ontario Court of Justice, dated January 15, 2019. Watt J.A.: [1] “What’s the remedy for a witness not attending for their cross-examination?", the trial judge asked. Defence counsel suggested that the charges be stayed. The Crown proposed a material witness warrant and a brief adjournment. [2] “I'm granting a stay of proceedings" the trial judge announced. And so she did. [3] The Crown appeals. [4] These reasons explain why I would allow the appeal, set aside the stay, and order a new trial before a different judge of the trial court. The Background Facts [5] Hongbo Ke (the respondent) was charged in an Information with a single count of sexual assault. The Crown elected to proceed by indictment. After an initial election of trial before a judge of the Superior Court of Justice and a request for a preliminary inquiry, the respondent re-elected trial before a judge of the Ontario Court of Justice. The First Day of Trial [6] Trial proceedings began on August 29, 2018. The Crown had previously filed an application for an adjournment. Three essential witnesses were not available. The Crown explained that she proposed to adduce the evidence of the complainant on the scheduled hearing dates. If the adjournment were granted, the case could be completed with the evidence of the then unavailable witnesses. [7] The trial judge did not rule on the Crown's application for an adjournment. The Crown had only recently disclosed video statements of the complainant in related investigations. Both Crown and defence counsel asked for some time to review those statements. The trial judge acceded to the joint request. The proceedings were adjourned to the following day. The Second Day of Trial [8] On August 30, 2018, the complainant testified with the assistance of an interpreter. Crown counsel completed her examination-in-chief of the complainant. [9] Defence counsel resisted commencing his cross-examination the following day. His cross-examination, he anticipated, would exceed one day in length. He did not want the cross-examination interrupted by a lengthy adjournment. The trial judge agreed. [10] The parties explored continuation dates. The trial judge adjourned the proceedings to January 15-17 and February 12, 2019. She instructed the complainant to return on January 15, 2019. The complainant agreed to do so. The Subpoena [11] About two months before the scheduled return date, the complainant was personally served with a subpoena requiring her to return to the trial court on January 15, 2019. The Trial Resumes [12] When trial proceedings resumed on January 15, 2019, the complainant did not appear. Crown counsel explained that when staff in the Crown Attorney’s office spoke to the complainant late the previous day, they learned, for the first time, that the complainant would be flying out of Canada on January 15, 2019. She was attending China for a medical reason. She would not be available to resume her testimony as scheduled. Staff in the Crown Attorney's office asked the complainant to send them her travel information. The complainant had not done so by the following morning. [13] The trial Crown did not learn until the return date of January 15, 2019 that the complainant had sent an email to the Victim Witness Assistance Program in the place of trial on November 2, 2018. In that email, the complainant explained her travel plans on January 15, 2019 and asked that the scheduled appearance be postponed. The email had been diverted to a junk mail folder and was not discovered until January 15, 2019. The Position of the Crown [14] The trial Crown sought a brief adjournment of one or two weeks to permit the complainant to re-attend to complete her evidence. On the already scheduled dates, the Crown proposed to elicit evidence from the remaining witnesses to complete the case for the Crown, but for the cross-examination and re-examination of the complainant. [15] The trial Crown pointed out that the complainant had testified in-chief for about three hours. She had never communicated any unwillingness to continue with her evidence or the prosecution. She had explained well in advance of the return date her absence and the reason for it. The complainant was a student, new to Canada, and unfamiliar with the workings of our legal system. The Defence Position [16] The trial judge asked defence counsel: What's the remedy for a witness not attending for their cross-examination? [17] Defence counsel responded with a stay of proceedings. He sought a stay on three grounds: i. compromise of trial fairness; ii. disbelief of the complainant's explanation; and iii. the “torturous conditions" in which the respondent had lived while the proceedings remained outstanding. The Ruling of the Trial Judge [18] Neither the Crown nor the defence adduced any evidence on any aspect of the issue. No authorities were collected. None were proffered. The trial judge did not retire to consider what to do. She simply announced: I'm going to grant the stay. The proceedings against Mr. Hongbo Ke, information 173947, because [the complainant] has not attended for her cross-examination on a trial that was commenced August 30 th , 2018 and in the face of a subpoena leaves the country the day before she's scheduled to attend for trial is, is actually most prejudicial, in my view, to her cause in terms of granting an adjournment for this trial. I just, I’m of the opinion that it was, she completely ignored the subpoena and left the country to avoid attending for her cross-examination. [19] A short time later, the trial judge returned to the courtroom. She added: Sorry, in my upset and focused on the recognizance I, I didn't endorse the information. So I'm a little, I'm going to need some advice from counsel in terms of am I entering a not guilty finding and a stay? It's just a stay of the proceedings. The Appellate Proceedings [20] On February 11, 2019, after personally serving the respondent, the Crown filed a notice of appeal against the trial judge's order staying proceedings against the respondent. [21] Two days later, the respondent emailed the Crown. He expressed hope that the Crown would reconsider pursuit of its appeal. The respondent was doubtful that he would be able to retain counsel. He suggested he would represent himself on the appeal. [22] About a month later, the Crown advised the respondent of its intention to pursue the appeal whether the respondent had counsel or represented himself. The Crown underscored the importance of the respondent keeping the court and Crown aware of his address and contact information. [23] Within days of the Crown's communication of its intention to pursue the appeal, the respondent retained counsel. [24] On December 12, 2019, the Crown perfected its appeal. The court listed the appeal for argument on May 22, 2020. The Appeal is Relisted [25] When COVID-19 intervened, the court asked the parties whether the appeal could proceed in writing. Subsequent exchanges revealed that counsel for the respondent was having difficulty reaching his client to obtain instructions. Despite counsel's repeated efforts through several different channels of communication, this difficulty persisted. In late August 2020, counsel applied to be removed from the record as solicitor of record for the respondent. The order was granted. [26] The appeal was relisted for argument on January 29, 2021. Notice about the time and manner of the hearing was sent to the respondent's most recent addresses. He was advised of the time of the remote hearing. He was furnished with details about how he could participate in it. The Crown received no response. The court received no response. The Motion for Directions [27] As a result of the respondent's failure to answer any requests to participate in person or by counsel to the appeal, the Crown filed a notice of motion returnable on the date set for the hearing of the appeal. In that motion, the Crown sought a direction under r. 19 of the Criminal Appeal Rules , S.I./93-169 that the appeal be heard in the absence of the respondent. [28] We heard submissions from the Crown on the motion. After retiring briefly, we advised Crown counsel that we would grant the motion with reasons to follow and proceed to hear the appeal on its merits. At the conclusion of that argument, we reserved our decision on the merits of the appeal. [29] In the reasons that follow, I will explain first why I consider this an appropriate case in which to proceed in the absence of any participation by the respondent. Then, I will turn to an assessment of the merits of the appeal. Disposition of the Motion [30] In my respectful view, the interests of justice warrant an order that the appeal be heard in the absence of any participation by the respondent. [31] The trial proceedings with which we are concerned originate in allegations of serious sexual offences against a vulnerable complainant. The accusations were of four separate incidents on different days. Two of those incidents involved non-consensual unprotected sexual intercourse. The complainant also described continued surveillance of her daily activities by the respondent. The sexual contact had been initiated by the respondent almost immediately after the complainant's arrival in Canada. [32] The order under appeal was made when the Crown sought a brief adjournment after learning the previous day of the unavailability of the complainant to complete her evidence. Other witnesses were available. The Crown proposed to elicit its evidence leaving only the remaining portion of the complainant's testimony to complete the case for the Crown. There was no evidence before the trial judge that the complainant no longer wished to participate in the trial process. Or that she wished to abandon her allegations of serious sexual misconduct by the respondent. [33] It is well-established that entry of a stay of proceedings is a remedy reserved for the “clearest of cases". It is not a typical response to an application for a brief adjournment because a material witness has failed to reappear four and one-half months after she first testified. Typical or otherwise, a review of the circumstances surrounding its entry in this case reveal that the appeal has substantial merit. [34] The appeal in this case was initiated within 30 days of the entry of the stay. The respondent was served personally. He received not only the notice of appeal, but also a substantial set of materials explaining his obligations and available options for representation as the respondent. The Crown made it clear to the respondent from the outset that the appeal would be pursued whether the respondent participated or declined to do so. [35] At one point, the respondent suggested that he would be self-represented. Later, he retained counsel. Despite counsel's repeated efforts to maintain contact and obtain instructions, the respondent did not reply. Counsel was removed from the record. Repeated communications from the Crown about scheduling and how the respondent could participate in the appeal, including details about the hearing, went unanswered. The respondent has returned to China, thus is not amenable to the process of this court. The only reasonable inference is that he no longer wishes to participate in this appeal. [36] In the result, I am satisfied that this is a case in which we should determine the merits of the appeal despite the lack of participation by the respondent. The Appeal [37] The Crown advances four grounds of appeal. None require a canvass of the evidence adduced at trial. Brief reference to some aspects of the proceedings that led to entry of the stay is sufficient. The Grounds of Appeal [38] The Crown says that the trial judge erred: i. by failing to exercise her discretion judicially in denying the Crown's request for a brief adjournment of trial proceedings; ii. by staying the proceedings in breach of the rules of natural justice; iii. by failing to provide reasons sufficient to permit meaningful appellate review; and iv. by staying the proceedings in the absence of any evidence warranting such an order. [39] This appeal falls within s. 676(1)(c) of the Criminal Code , R.S.C., 1985, c. C-46 . Unlike a Crown appeal from acquittal under s. 676(1)(a) of the Criminal Code , this appeal from a stay of proceedings entered by a trial court is not limited to questions of law alone. [40] For discussion purposes, I will collapse the grounds of appeal into two. The first focuses on the trial judge's decision to refuse the adjournment application made by the Crown. The second relates to the remedy provided for the complainant's non-attendance: a stay of proceedings. Ground #1: Refusal of the Adjournment [41] When trial proceedings resumed on January 15, 2019 after an adjournment of four and one-half months, the Crown sought a brief adjournment of one or two weeks so that she could contact the complainant and determine her availability to complete her evidence. The Crown had only learned that the complainant would not be present the previous day when advised of that fact by staff in the Crown Attorney's office. [42] The Crown proposed to use the time set aside for the continuation of the proceedings to complete the case for the Crown except for the conclusion of the complainant's evidence. In fact, the complainant had advised the Victim Witness Assistance Program two and one-half months earlier of her scheduling conflict, but her email was diverted to a junk mail folder and only located the morning the trial was scheduled to resume. The complainant had been re-served with a subpoena. Nothing in the record suggested that the complainant would not subsequently appear or that she no longer wished to participate in trial proceedings. [43] The trial judge asked defence counsel about the remedy for the failure of a witness to attend for cross-examination. Counsel proposed a stay of proceedings. The Crown, when asked, sought a material witness warrant and a brief adjournment of proceedings to determine the complainant's availability after the Crown's case was otherwise completed. [44] The trial judge did not invite further submissions. She did not retire to consider her decision. She refused to issue a material witness warrant and concluded that the complainant “left the country to avoid attending for her cross-examination". The trial judge also cited the “very difficult, difficult circumstances" of the appellant's release as an “emotionally torturous" experience. She expressed her “upset" at what had happened. [45] The trial judge dismissed the Crown's proposed remedies and entered a stay of proceedings. The Arguments on Appeal [46] The appellant contends that the trial judge erred in failing to grant the Crown's request for a brief adjournment when the complainant failed to re-attend. The trial judge's decision was based on factual findings that were devoid of any evidentiary foundation and lacked any principled basis. [47] The Crown readily accepts that trial judges have a wide discretion in determining whether to grant or refuse an adjournment request. Likewise, their exercise of that discretion is subject to considerable deference on appeal. But that deference, the Crown says, gives way when the discretion is exercised unreasonably, or when its exercise is flawed by legal error. Both occurred here. [48] In this case, the Crown continues, the trial judge failed to consider, much less apply, the factors articulated by the Supreme Court of Canada 65 years ago in Darville v. The Queen (1956), 116 C.C.C. 113 (S.C.C.) when an adjournment is sought because a material witness has failed to attend. The trial judge failed to provide the trial Crown with the opportunity to demonstrate satisfaction of the Darville requirements. This failure, in both its aspects, amounted to legal error. [49] What is more, the appellant argues, the decision was unreasonable. [50] The trial judge based her conclusion on two findings of fact. First, she concluded that the circumstances of the respondent's release were “very difficult”. She adopted, as her own, the “torturous" characterization advanced by defence counsel. Second, she found that the complainant used her medical reason as an excuse to mask her true purpose — to avoid cross-examination. [51] Neither of these findings had any evidentiary support. Beyond defence counsel's statement about the respondent’s travails on release, the record is bankrupt of any evidentiary support for the characterization adopted by the trial judge. And there was not a scintilla of evidence to support the finding that the complainant was absent because she sought to avoid cross-examination. The complainant made no effort to avoid re-service of the subpoena. She was unfamiliar with Canada's legal system and had communicated her conflict over two and one-half months earlier. The Governing Principles [52] Section 571 of the Criminal Code permits a provincial court judge acting under Part XIX to adjourn a trial from time to time until the trial is finally terminated. Like other adjournment provisions in the Criminal Code , such as ss. 537(1)(a) and 645(2), s. 571 contains no exhaustive or illustrative list of factors the judge is required or entitled to consider in determining whether to grant or refuse an adjournment. [53] In Darville , at p. 117, the Supreme Court of Canada identified three factors for a court to consider in determining whether to grant an adjournment required to procure the attendance of a material witness: i. that the absent witness is a material witness in the case; ii. that the party requesting the adjournment has not been guilty of laches or neglect in failing to endeavour to procure the witness’ attendance; and iii. that there is a reasonable expectation that the witness' attendance can be procured at the future time to which the party proposes the trial be adjourned. See also R. v. G. (J.C.) (2004), 189 C.C.C. (3d) 1 (Que. C.A.), at para. 10, leave to appeal refused, [2004] C.S.C.R. No. 456. [54] To refuse an adjournment without giving the requesting party the opportunity to demonstrate satisfaction of the relevant criteria is an error of law: Darville , at p. 117; G. (J.C.) , at para. 11. The Principles Applied [55] I would give effect to this ground of appeal. In my respectful view, the trial judge’s decision to refuse the adjournment request was at once legally flawed and patently unreasonable. [56] In this case, the trial judge was faced with a request from the Crown for a brief adjournment so that the complainant could be contacted about her availability to complete her testimony. The Crown proposed completing her case but for the balance of the complainant's evidence in the days that had already been set aside to conclude the trial. The proceedings had been adjourned earlier at the request of defence counsel, who had refused to begin his cross-examination of the complainant when she had completed her evidence in-chief. [57] Decisions on applications for an adjournment involve the exercise of judicial discretion. They require consideration of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other. [58] In this case, the Crown's request for a brief adjournment was based on the absence of a material witness who had already testified in-chief. The controlling principles for the exercise of that discretion were those of Darville . It was an error of law for the trial judge to dismiss the adjournment request without providing the Crown with an opportunity to demonstrate that it had met the requirements of Darville . And it was equally an error not to consider those principles. [59] The complainant was a material witness. She had given evidence of a series of sexual assaults by the respondent over several days. The allegations included two events of non-consensual unprotected sexual intercourse. The complainant was new to Canada, unfamiliar with our legal system, a student intending to pursue a graduate degree. She had communicated her scheduling conflict to the Victim Witness Assistance Program two and one-half months earlier. That her communication was directed to junk mail was scarcely her fault. [60] The complainant had been advised by the trial judge of her obligation to return when trial proceedings were scheduled to resume four and one-half months after she had completed her examination in-chief. She agreed. She was re-served with a subpoena two months before the scheduled return date. The Crown contacted her the day before her scheduled re-appearance and only learned then of her plan to leave Canada on the return date for a medical reason. The Crown asked for a copy of her travel itinerary, but she had not provided it by the return date. In hindsight, the Crown should have contacted the complainant earlier about her re-attendance. But its failure to do so could scarcely be described as laches or neglect. [61] The record reveals no basis for an inference that the complainant's absence was permanent. The reason advanced for the absence — a medical reason — was not suggestive of any permanence. The complainant was new to Canada and attending graduate school at a Canadian university. She had already given evidence over an entire day. There was no basis to conclude that she would not re-attend to complete her testimony. At the very least, a brief adjournment would have enabled the Crown to confirm the complainant's position. If she made it clear that she had no intention of reappearing, the respondent would be the beneficiary of the adjournment. [62] In addition to the legal errors I have just identified, I am also satisfied that the trial judge’s decision to refuse the Crown's adjournment request was unreasonable. [63] The trial judge made two findings of fact that were the linchpins in her decision to refuse the adjournment and enter a stay of proceedings. She found, as defence counsel had submitted, that the respondent had been subjected to “torturous" bail conditions and she concluded that the complainant's explanation for her absence — a medical reason — was an excuse to mask her true reason — to avoid cross-examination. [64] In my respectful view, neither finding is supported on the record of the proceedings. [65] With respect to the first finding, the respondent appears to have been released on his own recognizance on the day of his arrest. The conditions in his recognizance are typical of those routinely included in cases of this nature. The only differences appear to be in the requirements that he deposit his passport and wear a monitoring device. The monitoring device was ordered removed by the trial judge on August 31, 2018. The respondent was not subject to house arrest or a curfew. Nor was he detained in custody. Trial proceedings were timely, the four and one-half month adjournment at his counsel's request. [66] The second finding — that the complainant claimed a medical reason to avoid cross-examination — also finds no support in the evidence. The complainant advised the Victim Witness Assistance Program of her conflict two and one-half months before the return date. She accepted service of a subpoena two weeks later. She was unfamiliar with our criminal justice system. When contacted by the Crown the day before the return date and her departure, there was no suggestion that she would not reappear. It would have been preferable for her to have provided her travel itinerary, as requested by the Crown, but her failure to do so cannot support the conclusion drawn by the trial judge. [67] On this basis alone, I would set aside the stay and order a new trial. Ground #2: Entry of a Stay of Proceedings [68] The second ground of appeal alleges error in the entry of a stay of proceedings as the remedy for the failure of the complainant to re-attend the trial proceedings to complete her testimony. [69] The circumstances in which the stay was entered have already been canvassed and need not be repeated. A brief reference to the arguments advanced by the appellant will provide a suitable frame for the discussion that follows. The Arguments on Appeal [70] The appellant says that a stay of proceedings is an extreme remedy, reserved for the clearest of cases. Its entry in this case frustrated the truth-seeking process and deprived the complainant and the public of a trial and an adjudication on the merits. It is tantamount to an acquittal without a trial. [71] In this case, the appellant continues, the proceedings that culminated in entry of the stay were procedurally unfair, lacking in the essentials of natural justice. The Crown received no meaningful notice of the application for a stay of proceedings and was not afforded any meaningful opportunity to respond to the legal arguments or factual assertions put forward in support of the application by defence counsel. [72] The appellant points to another aspect of procedural fairness as lacking in these proceedings, one that, in its view, amounts to reversible error. The trial judge failed to provide reasons sufficient to permit meaningful appellate review of her decision to stay proceedings. Read as a whole, in light of the circumstances before her, the positions of the parties, and the issues in play, the reasons do not reveal that the trial judge seized the substance of what was before her. She gave no reasons for making adverse findings against the complainant and adopted, without more, the emotive language of defence counsel. What was said is unrevealing of any consideration of less drastic remedies than a stay of proceedings, or of the basis for entry of the stay. [73] At all events, the appellant submits, the circumstances of this case fall well short of what is required to warrant a stay of proceedings. This was not the clearest of cases. There was no evidence of any prosecutorial misconduct. The proceedings were timely. Nothing done or omitted compromised the respondent's right to make full answer and defence. If any prejudice resulted from the complainant's failure to re-attend on the resumption of trial proceedings, alternative remedies were available. Completion of the balance of the case for the Crown. A brief adjournment to determine the complainant's availability to re-attend. And if she were unwilling or failed to attend, striking her evidence from the case for the Crown. A fair trial remained viable. But the trial judge failed to engage in any balancing of the interests, as the authorities governing stays of proceedings require. The Governing Principles [74] A stay of proceedings is the most drastic remedy a criminal court can order. This is so because it halts the prosecution of an accused. A stay of proceedings frustrates the truth-seeking function of a criminal trial. It deprives the public of the opportunity to see justice done on the merits. Victims of crime are deprived of their day in court: R. v. Babos , 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30, citing R. v. Regan , 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53. [75] However, courts recognize that there are some cases in which a stay of proceedings for an abuse of process will be warranted. These cases are rare. It is only “the clearest of cases” when a stay of proceedings will be warranted: Babos , at para. 31, citing R. v. O'Connor , [1995] 4 S.C.R. 411, at para. 68. At bottom, each assertion of an abuse of process, thus each claim for a stay of proceedings, is rooted in state conduct. [76] In general, stays of proceedings for an abuse of process will be warranted in two categories of cases: i. where the state conduct compromises the fairness of an accused's trial (the main category); and ii. where the state conduct creates no threat to trial fairness but risks undermining the judicial process (the residual category). See Babos , at para. 31, citing O'Connor , at para. 73. [77] The test to determine whether a stay of proceedings should be entered is the same for both categories. It consists of three requirements: i. prejudice to an accused’s right to a fair trial, or the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial or its outcome (the prejudice element); ii. absence of an alternative remedy capable of redressing the prejudice (the remedy element); and iii. in cases of uncertainty after consideration of elements i and ii, an assessment of the balance between the interests favouring entry of a stay, such as denouncing misconduct and preserving the integrity of the justice system, against society's interest in a final decision on the merits (the balancing element). See Babos , at para. 32, citing Regan , at paras. 54, 57. See also Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391, at paras. 91-92. [78] For cases in the main category, the question involved in the prejudice element is whether the accused's right to a fair trial has been prejudiced by the state conduct and whether that prejudice will be carried forward through the conduct of the trial. The focus is on whether there is ongoing unfairness to the accused: Babos , at para. 34. [79] For cases in the residual category, the prejudice element is concerned with whether the state conduct, usually but not always misconduct, offends societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would harm the integrity of the justice system: Babos , at paras. 35, 37; Tobiass , at para. 91. [80] In connection with the remedy element, the question is whether some remedy short of a stay is capable of redressing the prejudice. The spectrum of available remedies depends on the nature of the prejudice involved. Where the main category is implicated, with its concern about trial fairness, the focus is on restitution of an accused's right to a fair trial. For the residual category, where the claim has to do with prejudice to the integrity of the justice system, the focus is on whether something less than a stay will adequately dissociate the justice system from the state conduct going forward: Babos , at para. 39. [81] The balancing element assumes added importance for cases that invoke the residual category. The task of the court is to decide which of two options better protects the integrity of the justice system: staying the proceedings or having a trial despite the challenged conduct. Relevant factors include but are not limited to: i. the seriousness of the state conduct; ii. the systemic or isolated nature of the conduct; iii. the circumstances of the accused; iv. the offences charged; and v. society’s interest in a trial on the merits. See Babos , at para. 41. [82] An accused who seeks a stay under the residual category faces an onerous burden. This follows from the combined effect of the “clearest of cases” threshold and the balancing of societal interests that must take place in such cases. Cases warranting a stay will be “exceptional” and “very rare". A stay will be entered only where the affront to fair play and decency is disproportionate to society’s interest in the effective prosecution of criminal cases: Babos , at para. 44; Tobiass , at para. 91; and R. v. Conway , [1989] 1 S.C.R. 1659, at p. 1667. The Principles Applied [83] As I will explain, I would give effect to this ground of appeal. Simply put, neither the circumstances of the case nor the governing legal principles support entry of a stay of proceedings as the appropriate remedy for the complainant's failure to re-attend for the resumption of trial proceedings. [84] This case does not involve any allegation of constitutional infringement. The proceedings were timely. There was no tenable allegation of a breach of the right to make full answer and defence. There was no reason to conclude that the respondent would not be afforded the opportunity to cross-examine the complainant at a later date. Recall that the cross-examination could have been commenced on the day following the complainant's evidence in-chief, but was delayed by four and one-half months due to the respondent's insistence on the grounds of trial fairness. Other witnesses were available and sufficient time allotted to complete their evidence. But for the intransigence of defence counsel, there was no reason their evidence could not have been adduced. [85] In the absence of any constitutional infringement to ground a claim for the remedy of a stay of proceedings, I turn to the availability of the doctrine of abuse of process as a potential source for the remedy afforded. [86] At bottom, abuse of process involves state conduct that compromises the fairness of an accused's trial or risks undermining the integrity of the judicial process. [87] In this case, it is debatable whether any state conduct is implicated. [88] The complainant's failure to re-attend can scarcely be laid at the feet of the state. She was re-subpoenaed two months before the resumption of trial proceedings. She agreed to return at the conclusion of her evidence in-chief. There is no suggestion that the state colluded in her absence. The trial judge's conclusion that the complainant's failure to attend was due to her wish to avoid cross-examination is at best tenuous, perhaps better said, speculative. [89] The trial judge's eager grasp of defence counsel's characterization of the respondent's “torturous” existence under the conditions of his release order moves no freight in the abuse of process analysis. The terms of the release were commonplace. No house arrest. No curfew. And the electronic monitoring term was removed by the judge herself. [90] This was not “the clearest of cases” as the authorities demand for entry of a stay of proceedings. There was no state conduct offensive to societal notions of fair play and decency. A witness did not show up in accordance with her subpoena. For her own reasons. Sometimes, this happens. It shouldn’t, but it does. But it is not cause to invoke the most drastic of remedies to halt the prosecution. That the judge was displeased — in her own words, “upset" — affords no basis for a stay of proceedings. [91] Other remedies short of a stay of proceedings were available. Use the court time to hear the balance of the case for the Crown. Direct the Crown to determine the availability of the complainant. Depending on the response, reschedule the proceedings. Consider any applications that may arise out of the response. If the complainant fails to attend, consider the remedy. [92] In this case, the trial judge did not apply the test that determines whether a stay of proceedings was warranted. Her findings of fact about the complainant's motive for failing to attend and the respondent's “torturous” experience are at best tenuous, if not entirely speculative. And there was no balancing of interests, as required by Babos , at para. 41. [93] In my view, the stay of proceedings must be set aside. Disposition [94] For these reasons, I would allow the appeal, set aside the stay of proceedings, and order a new trial to be held before a different judge of the trial court. Released: March 22, 2021 “JMF” “David Watt J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kennedy, 2021 ONCA 378 DATE: 20210603 DOCKET: C67363 Simmons, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Bradley Kennedy Appellant Chris Rudnicki and Angela Chaisson, for the appellant Victoria Rivers, for the respondent Heard: May 25, 2021 by video conference On appeal from the conviction entered on December 6, 2018, by Justice Robert W. Rogerson of the Ontario Court of Justice. REASONS FOR DECISION [1] This is an appeal against conviction for possession of methamphetamine (“meth”) for the purpose of trafficking. The appellant argues that the verdict is unreasonable, and that the trial judge erred in admitting and relying on anecdotal evidence of the police expert that he had never spoken with anyone who said they had picked up, for personal use, an amount of meth in excess of 3. 5 grams (the “impugned testimony”). Relying on R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, the appellant argues that the impugned testimony was inadmissible because it was irrelevant, unnecessary, and more prejudicial than probative. [2] For the reasons that follow, the appeal is dismissed. Background in Brief [3] The appellant left a drug house after purchasing a single bag of 28 grams of meth for $800. The residence was under police surveillance. After leaving the residence, the appellant got into a taxi. He was arrested shortly afterwards and taken to the police station. Shortly afterwards, the police found the bag of meth hidden between the seat cushions in the back of the police cruiser. [4] The appellant admitted possession of the drugs. The sole issue at trial was whether that possession was for the purpose of trafficking. [5] After reading in agreed facts, the Crown called a single witness – a police officer who was qualified as an expert in the areas of pricing and purchasing of crystal meth, and the consumption habits and use of crystal meth by people in the community. Defence counsel at trial conceded his expertise and that it met the preconditions for threshold admissibility – relevance and necessity. Trial counsel did not object to any aspect of the expert testimony. [6] The expert explained that meth is commonly sold by point, which is the equivalent of a tenth of a gram. The average cost of 0.1 grams is ten to twenty dollars. The price range for 28 grams is between $800 and $1,200. He testified that it was his opinion that the 28 grams of meth the appellant possessed was for the purpose of trafficking. When asked by the prosecutor why he was of that opinion, the expert gave the impugned testimony. He immediately added that there were many reasons why purchasers for personal use bought much smaller quantities. He gave three reasons. First, the cost of the drugs in issue in this case was around $1,000. A person struggling with addition does not generally have that amount of disposable income readily available. Second, buying such a quantity leaves the purchaser open to the risk of robbery and theft from other addicts. Third, the purchaser of a quantity of this sort is at greater risk of being caught by the police. [7] The appellant testified on his own behalf. He said he was going to use all of the meth himself and not share or sell any of it. He was 38 years old at the time and had previously been addicted to meth in his twenties. He had been clean for 14 years but relapsed about a year prior to his arrest. At the time of his arrest, the appellant was divorced, unemployed, addicted to meth, and subsisting on rental payments from tenants – also meth users – who shared what had been his family home. He claimed he could easily go through a gram of meth a day and could binge for several days at a time. He explained that although the tenants in his home were transient and rarely paid rent on time, the day before his arrest, for the first time, the tenants had paid the full $2,000 in rent. The appellant testified that the dealer had given him a pipe and syringe, but these were not found on his person when he was arrested. [8] The trial judge rejected the appellant’s testimony, finding it was “fluid and inconsistent at the best of times”. He noted discrepancies in the appellant’s testimony about how he got the money, where he got it from, and whether he got it in cash or partly from cheques. He found the appellant’s testimony to be “internally and externally inconsistent”. [9] The trial judge concluded by stating: “The ounce of methamphetamine, which is an extremely large amount, as the expert has indicated, and is certainly many times what a normal user would buy, is indicative of possession for the purposes”. Analysis [10] We do not accept that the police expert made a Sekhon error. He did not extrapolate from inadmissible anecdotes to impute guilt on the part of the Appellant. The expert simply explained that he had never encountered anyone who had purchased meth for personal use in quantities beyond 3.5 grams. His opinion that the appellant possessed the meth for the purpose of trafficking was grounded in objective facts: the inherent risks a purchaser encounters in possessing such a large quantity, including possible theft from other addicts; the tenants in the appellant’s home were meth addicts; the appellant’s precarious financial situation; and, the significant cost of one ounce of meth in the appellant’s financial circumstances. [11] In any event, the trial judge appears not to have relied on the impugned evidence: his analysis makes no mention of it. Rather, he relied on the reasons the expert had given for why purchasers for personal consumption usually bought in much smaller quantities. [12] Nor do we accept that the verdict is unreasonable. Having rejected the appellant’s testimony as incredible, the trial judge concluded that no reasonable inference other than “possession for the purpose” was available on the evidence. On the appellant’s own evidence, as well as that of the expert, this was a significant quantity of meth. Although the appellant had not been under surveillance and the circumstances of his arrest lacked other indicia of trafficking, indicia of personal use were also lacking. In the absence of an explanation, the trial judge was entitled to draw an inference of guilt. Disposition [13] Accordingly, the appeal is dismissed. “Janet Simmons J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lai, 2021 ONCA 139 DATE: 20210304 DOCKET: C68031 Doherty, Watt and van Rensburg JJ.A. BETWEEN Her Majesty the Queen Appellant and Shu-Seng Lai Respondent Alexander Alvaro, for the appellant Matthew Gourlay, for the respondent Heard: February 26, 2021 by video conference On appeal from the acquittals entered by Justice Nancy M. Mossip of the Superior Court of Justice, dated January 15, 2020, reported at R. v. Lai , 2020 ONSC 0231. REASONS FOR DECISION [1] The respondent, a practitioner of Traditional Chinese Medicine (“TCM”), was charged with sexually assaulting three clients. The alleged assaults occurred in the course of the respondent’s purported treatment of the complainants. With respect to C.B. and L.B., the defence conceded the relevant touching occurred, but argued it was part of an appropriate TCM treatment referred to in the evidence as “energy work”. With respect to the allegations of S.C., which the defence conceded did not involve conduct which could be described as acceptable TCM treatment, the defence maintained the conduct never occurred. [2] The appellant did not testify. An expert in TCM did testify, describing the accepted treatments and techniques used in various TCM treatments, including “energy work”. The treatments could include touching and massaging of a client’s chest and touching of the pelvic area, just above the vagina. Touching of the vagina or labia was not part of any accepted treatment. In any event, whatever the treatment, it was essential that the practitioner obtain the client’s consent to any touching. [3] The trial judge acquitted the respondent on all counts. In doing so, she held that the evidence of each complainant was not admissible as similar fact evidence on the counts involving the other complainants. [4] The Crown appeals. [5] The appeal focuses primarily on the trial judge’s treatment of one part of C.B.’s evidence. C.B. testified that during a session involving “energy work”, the respondent rubbed her breasts under her sweater and touched her labia. Shortly afterward, she spoke to the respondent on the telephone. According to C.B., the respondent said he wanted her to come back for another energy treatment and he intended to put his finger in her vagina. [6] The Crown claimed the statement made by the respondent was evidence rebutting the defence contention that any touching during the prior session involved appropriate treatment. The Crown also argued the statement was a tacit admission of the prior assault and an indication of the respondent’s intention to repeat the assaultive conduct, if afforded the opportunity. [7] The defence argued, among other things, that C.B.’s evidence concerning the substance of the conversation with the respondent was unreliable and should not be accepted as an accurate account of the conversation. [8] The trial judge reviewed C.B.’s evidence at length. With respect to her evidence about the phone call with the respondent shortly after the alleged assault, the trial judge concluded, at para. 463: The evidence as to the phone call and its contents did not assist me one way or the other as to the nature of the touching that occurred on October 9, 2012. I cannot rely on C.B.’s testimony as to what was said on that call and attribute a “guilty mind” to Mr. Lai as suggested by the Crown. [9] The Crown submits the trial judge erred in law by failing to properly analyze the relevance and probative value of C.B.’s evidence concerning the statement made to her by the respondent during the phone call. The Crown argues the trial judge wrongly limited her consideration of the probative value of the evidence to its potential admissibility as post-offence conduct going to the respondent’s state of mind. [10] We cannot agree with Crown counsel’s interpretation of the trial judge’s reasons at para. 463. In our view, in that passage the trial judge indicated she was not prepared to accept C.B.’s evidence as to the content of the conversation she had with the respondent. In short, the trial judge could not find the respondent said what C.B. testified he had said during the conversation. Absent a finding the statement was made, there was no basis upon which to go on and consider the inferences that could or could not be drawn from that statement had it been made. [11] The trial judge gave two reasons for finding that C.B.’s evidence concerning the conversation was unreliable (see paras. 461-62). Both reasons are supported in the evidence. [12] It was open to the trial judge to come to the conclusion she did in respect of the reliability of C.B.’s evidence. More importantly, for the purposes of this appeal, her determination as to the reliability of that part of C.B.’s evidence did not give rise to any question of law upon which the Crown could appeal to this court. Deciding what evidence to accept as reliable and what evidence to reject as unreliable is an essential first step in the fact-finding process. This evidence failed to clear that first hurdle. The Crown cannot point to any error in law tainting the trial judge’s finding. [13] The Crown’s second ground of appeal arises out of the trial judge’s similar fact ruling. The Crown candidly acknowledges this ground cannot succeed if the first ground of appeal fails. As we have rejected the first ground, it follows that this ground of appeal fails as well. [14] The appeal is dismissed. “Doherty J.A. “David Watt J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lancaster, 2021 ONCA 184 DATE: 20210323 DOCKET: C68692 Rouleau, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Steven Lancaster Appellant Tamar Bitton, for the appellant Nicholas Hay, for the respondent Heard and released orally: March 19, 2021 by video conference On appeal from the sentence imposed on July 27, 2020 by Justice Angela L. McLeod of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant seeks leave to appeal his sentence of 8 months less 106 days of credit for pre-sentence custody for his conviction for dangerous operation, resisting arrest, breach of probation, and breach of a release order. He also asks that the 12-month driving prohibition be struck from the probation order imposed. Lastly, he seeks leave to admit fresh evidence. [2] The appellant submits, and the Crown concedes, that the sentencing judge erred in imposing a sentence exceeding that proposed by the parties in the absence of inviting additional submissions. Both submit that the appellant’s sentence should be reduced to time served. [3] The sentence of six months less credit for pre-sentence custody originally proposed by the Crown was fit. However, the fresh evidence discloses that the appellant has made significant progress towards rehabilitation. [4] The appellant received bail pending appeal on September 29, 2020. The 31-year-old appellant has been gainfully employed since October 2020. Importantly, he is addressing his drug addiction through Narcotics Anonymous. He has strong family and employer support. He is currently nine days shy of the warrant expiry date based on a six-month sentence. It is not in the public interest to subject the appellant to reincarceration. His sentence should be reduced to time served. [5] As for the driving prohibition, the sentencing judge found his driving to be abominable. At his sentencing hearing, the appellant sought a driving prohibition of six months. As such, the imposition of such a condition cannot be considered inappropriate. In our view, a 12-month driving prohibition is a fit condition in the circumstances of the offences. We see no reason to interfere with the conditions imposed by the sentencing judge. [6] The issue of the Duncan credit is moot given that we have reduced the sentence to time served. We see no need to address this issue on the record before us. [7] Leave to admit the fresh evidence and to appeal sentence are granted and the sentence appeal is allowed. The appellant is sentenced to time served on the same conditions imposed by the sentencing judge. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lewis, 2021 ONCA 59 DATE: 20210201 DOCKET: C67318 Rouleau, van Rensburg and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Angella Lewis Appellant Angella Lewis, acting in person Michael Dineen, appearing as duty counsel Sandy Thomas, for the respondent Heard: January 12, 2021 by video conference On appeal from the conviction entered by Justice Ivan S. Bloom of the Superior Court of Justice, sitting with a jury, on February 28, 2019 and from the sentence imposed on July 31, 2019. REASONS FOR DECISION [1] The appellant was convicted of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Through duty counsel, she appealed on the basis that the trial judge ought to have discharged two jurors (in addition to one juror who was discharged) and declared a mistrial. The appellant also argued two grounds of appeal on her own behalf: that her right to trial within a reasonable time guaranteed by s. 11(b) of the Charter was infringed; and that her right to make full answer and defence was compromised by the loss of airport surveillance video. [2] For the reasons that follow, the conviction appeal is dismissed. The sentence appeal was not argued and is dismissed as abandoned. ANALYSIS Application for a mistrial [3] In the trial judge’s charge to the jury, he instructed the jurors that they were to take their instruction on the law from him, and not to consult other sources. However, it was later discovered that one of the jurors (Juror #4) brought into the jury room two articles the juror had found on the internet. One article addressed how to select a jury foreperson, and the other addressed the meaning of reasonable doubt. When this was brought to the trial judge’s attention – prior to the jury having given its verdict – the trial judge conducted an inquiry beginning with Juror #4 and questioning each juror in turn. Juror #4 told the trial judge that he had brought the two articles into the jury room, that each of the jurors had read the article about foreperson selection, and that two of them had also looked at the article on reasonable doubt. The trial judge then asked the other jurors in succession whether they had been shown an article on reasonable doubt, whether they had looked at any other material regarding the law or evidence in this case, and whether they were able to follow the trial judge’s instructions regarding the law. Most of the jurors advised that they had not looked at any extraneous material regarding law, which arguably conflicted with Juror #4’s statement that all of the jurors had read the foreperson selection article. The trial judge then reopened the inquiry to specifically ask those jurors why they had not mentioned the foreperson selection article. Most of the jurors advised that they had not seen the foreperson selection article. Those who acknowledged having read the article explained why they did not mention it in response to the trial judge’s question. One had forgotten having read it. Another did not consider it to be an article regarding law. [4] On the application for a mistrial, the trial judge concluded that Juror #4 had demonstrated an unwillingness to be guided by the trial judge’s instructions, and he therefore discharged that juror, with the agreement of the Crown. But the trial judge did not declare a mistrial, having been satisfied from the inquiry that the remaining jurors would faithfully discharge their duties. [5] The trial judge made no error in dismissing the application for a declaration of mistrial. The trial judge conducted an appropriate inquiry and reached a reasonable conclusion about the fitness of the remaining jurors and the fairness of the trial. As the trial judge noted, the application for the declaration of mistrial was not made on the basis of the content of the materials viewed, which did not relate to the factual issues before the jury. The application was based on the initial non-disclosure by two jurors that they had seen the article about foreperson selection, and whether that non-disclosure negated the presumption that the jurors would perform their duties and follow the instructions they had been given. [6] The trial judge made no error in concluding that the presumption was not rebutted, given his satisfaction with the explanations given by the jurors for non-disclosure. The assessment was the trial judge’s to make, and he made it reasonably. The trial judge made no error in concluding that a mistrial was not necessary, and that any potential for trial unfairness could be remedied with an appropriate direction to the jury. There was no challenge at trial to the sufficiency of the trial judge’s instruction in this regard (indeed the trial judge sought and obtained input from both Crown and defence counsel on the precise wording). We find that the instruction was sufficient and there was no resulting trial unfairness. Section 11(b) application [7] The appellant brought a s. 11(b) application pre-trial, but she could not perfect it as she was unable to secure funding for transcripts. She was denied legal aid for this particular disbursement, and the trial judge was not prepared to order the preparation of transcripts in the absence of a formal application for funding. That application was never brought, and the s. 11(b) application relating to pre-conviction delay was never heard. [8] On appeal, although the appellant seeks to renew the s. 11(b) application in its entirety, the emphasis is now on the post-conviction, pre-sentencing delay. [9] With respect to delay pre-conviction, the argument cannot succeed. The fact remains that there is much in dispute, there are no transcripts, and there is therefore no evidential foundation on which the claim could be advanced. However, things stand on a different footing with respect to the period of delay between conviction and sentencing, for which there are sufficient transcripts and no real factual dispute about what transpired. Conviction was entered on February 28, 2019, and reasons for sentence were delivered on July 31, 2019. Shortly thereafter, this court decided R. v. Charley , 2019 ONCA 726, 147 O.R. (3d) 497, which established a five-month presumptive ceiling for delay between verdict and sentencing, after which the delay is presumed to be unreasonable and must be justified by the Crown. [10] It is agreed that the total delay is five months and three days, largely the result of scheduling of the Gardiner hearing, which had to be adjourned due to the unavailability of witnesses. The Gardiner hearing was scheduled to be heard March 27-29, 2019, was adjourned to April 23-25, and the ruling was given on June 10. Sentencing submissions commenced immediately thereafter and the sentence was imposed on July 31. [11] The question that arises is whether the Gardiner hearing constitutes an exceptional circumstance under the Jordan framework, such that it should be deducted from the delay. The appellant argues that it should not, because the Gardiner hearing was necessitated by a tactical decision of the Crown at trial to invite the jury to return a verdict of guilty if it found the appellant had imported one cannister containing cocaine. The defence pointed to evidence suggesting that cannisters carried by another passenger had been mixed up with the appellant’s articles.  At trial, the Crown sought to ground the conviction in the importation of one particular cannister that stood on a different evidential footing. The jury convicted the appellant, but this necessitated a Gardiner hearing to determine the quantity of cocaine imported for the purposes of crafting a fit sentence. The appellant argues that the resulting delay should be attributed to the Crown in the Jordan analysis, and not be considered an exceptional circumstance. [12] We do not agree. A case in which a Gardiner hearing becomes necessary is not the routine sentencing framework contemplated by this court in Charley when the presumptive ceiling of five months was set. Without the benefit of full argument on the issue, we do not purport to resolve the question of whether a Gardiner hearing is best characterized as a discrete event, a matter of complexity, or some other category of exceptional circumstance. It is sufficient to note that the Gardiner hearing was an exceptional circumstance. [13] We find that the delay of five months, three days, after the necessity of the Gardiner hearing is taken into account, reduces the net delay to well under the five-month ceiling, and does not constitute unreasonable delay. That disposes of the s. 11(b) argument. Lost surveillance video [14] With respect to the lost evidence argument, the appellant argues that she was unable to make full answer and defence because of the absence of security video from the secondary inspection area. The appellant argues that the video, had it been available, could have supported her argument that the four cannisters of cocaine said to have come from her luggage actually came from another passenger and were attributed to her through error. [15] Canada Border Services Agency officers testified at trial that the area for secondary inspection was video recorded, though neither of them had seen or requested the video from that day and did not know whether it existed at the time of trial. An agreed statement of facts filed in evidence at the trial attests that although the CBSA records video of passengers passing through the Toronto Pearson Airport, no video is available for the date of the appellant’s passage through the airport on May 29, 2015, because “the video recording system suffered a large computer system failure”, and that the lost video records would not have included any audio. [16] In the instructions to the jury, the trial judge noted the evidence addressing the absence of the video and the defence theory of prejudice. On the instruction given, the jury was able to understand the defence position that the Crown had not proved the charges beyond a reasonable doubt, given the absence of a video recording in circumstances where a video recording is routinely made but a system wide computer system failure had occurred, as well as the evidence relevant to that position. The impact of the lost video on the appellant’s right to make full answer and defence was not argued at trial; nor was there any objection to the jury instructions on this issue. No more was required. The jury instruction was sufficient and fair. DISPOSITION [17] The appeal is dismissed. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lewis, 2021 ONCA 372 DATE: 20210602 DOCKET: C66220 Watt, Roberts and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Nigel Lewis Appellant Mark C. Halfyard, for the appellant Sarah Shaikh and Erryl Taggart, for the respondent Heard: April 19, 2021 by video conference On appeal from the conviction entered on May 15, 2018 and the sentence imposed on June 12, 2018 by Justice Marquis S.V. Felix of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant appeals from his convictions for importation and possession of cocaine for the purpose of trafficking. He seeks leave to appeal his custodial sentence of three and a half years. Factual overview [2] The following evidence was not contested at trial. [3] Durham Regional Police carried out a controlled delivery of an intercepted package containing 132 grams of cocaine hidden in packages of preserved fruit sent from Trinidad and Tobago via the United Kingdom. The police obtained a general warrant to follow the package and installed a tracking device that would alert police when the package was opened. The sender of the package was “Andy Thomas” and it was addressed to “Maxene Alexander” at Unit #9 on a street in Oshawa. [4] When an undercover police officer, disguised as a Canada Post delivery person, arrived at the address, the appellant walked over from #10, which shared a driveway with #9, and asked “Is that for Maxene?”. The officer confirmed that it was. The appellant indicated that “Maxene” was at work and offered to take the package for her. The appellant told the officer that he lived at #10 and went inside #10 to retrieve his driver’s licence. When the officer queried why his licence showed a different address, the appellant reiterated that he lived at #10. The officer asked if “Maxene” was the appellant’s girlfriend. He said she was. The appellant then asked the officer “It’s from Andrew Thomas, right?” and signed for the package before taking it back to #10. [5] Less than half an hour after the package was delivered, the tracking device was triggered, indicating that the package had been opened. Police immediately battered down the front door and discovered the appellant with another male, Emryis Lewis, who is not related to the appellant, in front of the partially opened package. The individual packets of preserved fruit containing the cocaine had not yet been opened. Both men fled out the back door and were arrested a short distance away. [6] The owner of #10, Sarah Chapman, testified at trial that she was in a relationship with Emryis Lewis and that the appellant was a friend. She left them in charge of her apartment while she attended to a family emergency. She testified that the appellant did not live at #10. She provided the names of a mother and her daughter who lived at #9, neither of whom was Maxene Alexander. She described #9 as a party house, with people coming and going. Judgment and sentence [7] The appellant’s control of the package containing the drugs having been conceded, the trial judge drew the inference that the appellant had specific knowledge that there were illegal drugs in the package from the circumstances surrounding the controlled delivery. Alternatively, he noted that he could impute knowledge of the contents to the appellant because he was in the midst of opening the delivered package when the police executed the search warrant. The trial judge concluded that the appellant’s guilt was the only reasonable inference arising out of the Crown’s circumstantial case. [8] The trial judge sentenced the appellant to three and a half years’ imprisonment for importing the cocaine and six months concurrent for possession of the cocaine for the purpose of trafficking. He reduced the sentence by six months to account for restrictive conditions during the appellant’s 18 months on interim judicial release. Convictions appeal [9] The appellant submits that the verdicts are unreasonable because the trial judge failed to consider other equally reasonable inferences that would have led to an acquittal. Those inferences, according to the appellant, included that he was in fact accepting a package on behalf of his girlfriend, whom the Crown failed to prove did not exist, and that the appellant’s presence at #10 and acceptance of the package was fortuitous given the unexpected departure of Ms. Chapman to deal with her family emergency. [10] We are not persuaded by these submissions. [11] The appellant takes no issue with the correctness of the legal principles that the trial judge applied in his consideration of all the evidence. The trial judge understood that the Crown’s case was circumstantial and that the appellant’s guilt had to be the only reasonable inference available on the totality of the evidence. He also recognized that an absence of evidence could give rise to a reasonable doubt of the appellant’s guilt. In our view, the trial judge’s determination that the appellant had knowledge, control and, as a result, possession of the drugs was the only reasonable inference available on the evidence, and we share his conclusion. [12] The Crown’s failure to prove that Maxene Alexander does not exist does not displace the reasonable inference that the appellant was accepting the package on his own behalf or jointly with Maxene Alexander, or, if on her behalf, with knowledge of its contents. Ms. Chapman’s evidence was that nobody by the name of Maxene Alexander lived at #9, and she did not testify that the appellant, her friend, was in a relationship with someone named Maxene. In any event, it was the appellant who was waiting at the door of #10 and who immediately approached the undercover police officer, lying twice about his residence in order to secure possession of the package and asking questions that revealed his knowledge of both the sender and recipient of the package without the officer first advising him. Finally, shortly after the appellant took possession of the package, the police surprised the appellant and Mr. Lewis in the process of opening the package that the appellant suggests belonged to someone else. The appellant and Mr. Lewis then fled out the back door. [13] It is equally unlikely that the appellant’s presence at #10 was fortuitous. The appellant was friends with Ms. Chapman and her boyfriend, who was with the appellant as he opened the package. There was evidence that the package could be tracked. The two men had charge and control of #10 during Ms. Chapman’s absence and, as noted above, clearly had knowledge of when and from whom the package would arrive. The only reasonable inference is that the appellant was present at #10 in order to receive the package, which he did. [14] We see no error in the trial judge’s analysis or conclusions. Sentence appeal [15] The appellant submits that the sentence imposed is demonstrably unfit. Specifically, the appellant argues that the trial judge erred by imposing a sentence well outside the range for smaller amounts of cocaine recommended by this court in R. v. Hamilton (2004), 241 D.L.R. (4th) 490 (Ont. C.A.). The appellant was convicted of importing 132 grams of cocaine. He argues, however, that the sentence imposed was more in keeping with sentences for importation in the kilogram range and inconsistent with sentences for smaller amounts of cocaine. The appellant submits that he has effectively served about eleven months and that the appropriate disposition would be time served. [16] We do not accept these submissions. [17] First, the three and a half-year sentence was within the range. Although this court in Hamilton indicated that the bottom end of the three to five-year range articulated in R. v. Madden (1996), 104 C.C.C. (3d) 548 (Ont. C.A.), should be adjusted downward when the amount of cocaine falls below one half kilogram, the court did not establish an upper limit for smaller amounts. The cases relied upon by the appellant to establish a lower sentencing range are distinguishable, most notably because the sentences were imposed following guilty pleas. Moreover, as the trial judge rightly noted, the fashioning of a fit sentence is not a mathematical calculation, and the weight of the drugs in issue is only one factor among many to be considered. [18] In any event, it is well established that a trial judge is not bound by sentencing ranges and is required to impose a sentence that is fit in all the circumstances for the individual offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 51 and 60. That is what the trial judge did here. He properly balanced the applicable mitigating and aggravating factors of this case. He recognized that the appellant was a good person and a hard worker, and that he enjoyed considerable support from family and friends. He looked at the seriousness of the offences, the appellant’s dated record for drug trafficking, and his role at the managerial level in planning and executing the offences to avoid detection. While the trial judge fairly determined that the sentencing principles of denunciation and deterrence were paramount, he also took into account the appellant’s prospects for rehabilitation and paid particular regard to the principles of totality and restraint. Moreover, he granted six months’ credit for the appellant’s difficult release conditions and considered the collateral consequences of the sentence, including immigration consequences, even if these did not ultimately affect his final determination. [19] While it falls at the higher end of the range for the importation of this amount of cocaine in similar circumstances, the sentence imposed was fit. We see no basis to interfere with it. Disposition [20] The appeal from conviction is dismissed. While leave to appeal sentence is granted, we dismiss the appeal. “David Watt J.A.” “L.B. Roberts J.A.” “B. Zarnett J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Luangchaleun, 2021 ONCA 108 DATE: 20210218 DOCKET: M52039 MacPherson J.A. (Motions Judge) BETWEEN Her Majesty the Queen Responding Party and Kevin Luangchaleun Applicant Kevin Luangchaleun, acting in person Lindsay Daviau, appearing as duty counsel Nicole Rivers, for the responding party Heard: February 9, 2021 by video conference REASONS FOR DECISION [1] More than 11 ½ years ago, on June 12, 2009, the applicant Kevin Luangchaleun was found not criminally responsible (NCR) by reason of mental disorder of assault with a weapon and criminal harassment. He has remained under the jurisdiction of the Ontario Review Board (ORB) since that date. [2] The facts that gave rise to the underlying charges against the applicant can be briefly stated. On February 16, 2009, the applicant, while under the influence of substances, attended a restaurant in Newmarket and tried to locate the complainant who was an employee working there. He had done this on several previous occasions. This time, he became enraged and started waving a large butcher knife in the air in a threatening manner when other employees would not let him speak to the complainant or enter farther into the premises. [3] The test on an application to extend the time to file a Notice of Appeal is “whether the applicant has demonstrated that justice requires that the extension of time be granted”: R. v. Menear , (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21. As the court said in Menear , at para. 20: There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors: (i) whether the applicant has shown a bona fide intention to appeal within the appeal period; (ii) whether the applicant has accounted for or explained the delay; and (iii) whether there is merit to the proposed appeal. [4] On the first factor, the applicant filed a Notice of Appeal on December 10, 2020. This is 11 ½ years after the NCR finding and almost as long outside the appeal period. [5] In his affidavit, the applicant states that he has always had an intention to appeal the NCR finding. This is a bald assertion and says nothing about his intention to appeal within the appeal period. [6] On the second factor, in the Notice of Motion one of the grounds is that the applicant “needed additional time to seek legal advice for his NCR appeal”. In his affidavit, the applicant states: “I have been unsuccessfully to have numerous counsel help over the last 11 years, and because legal aid had denied me this right to bring this appeal numerous times before this date.” Although one can have sympathy for an NCR accused trying to navigate the criminal justice appeal system, especially while continuing to be under the jurisdiction of the ORB, the applicant’s explanation does not justify an 11 ½ year delay in filing a Notice of Appeal challenging the NCR finding. [7] On the third factor, I see no merit in the applicant’s proposed appeal against the NCR finding. Applications for an extension of time to file a Notice of Appeal and applications for the appointment of counsel pursuant to s. 684 of the Criminal Code overlap in one important respect: the tests for resolving the applications both contain as a crucial factor the merits of the appeal. [8] On December 23, 2020, the applicant brought an application for the appointment of counsel to represent him on his application for an extension of time to file a Notice of Appeal from the NCR finding in 2009. In reasons dated January 12, 2021, Coroza J.A. dismissed the application. With respect to the merits of the proposed appeal, Coroza J.A. said, at paras. 13-16: First, I agree with the Crown that as the application and appeal have no merit, they will not be helped by the appointment of counsel. Second, the only grounds of appeal articulated in relation to the NCR appeal are broadly worded: a) The court erred in fact and law; b) The court erred in fact and law in finding the appellant NCR; c) The court’s disposition is unreasonable in the evidence; d) The court conducted a hearing that ignored the basic rights of procedural fairness, which created substantial prejudice to the appellant. Nothing in the materials before me would allow this court to determine the merits of these proposed grounds of appeal. This is not a close case. The application is dismissed. [9] My analysis on the ‘merits of the proposed appeal’ issue on the motion for an extension of time to file a Notice of Appeal is identical to that of Coroza J.A. on the s. 684 application. [10] For these reasons, the application for an extension of time to file a Notice of Appeal challenging the 2009 NCR ruling is dismissed. “J.C. MacPherson J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Luu, 2021 ONCA 311 DATE: 20210512 DOCKET: C66161 Fairburn A.C.J.O., Trotter and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Van Phuc Luu Appellant Mindy Caterina, for the appellant Moray Welch and Surinder Aujla, for the respondent Heard: October 29, 2020 by video conference On appeal from the conviction entered on August 13, 2018, and the sentence imposed on October 23, 2018, by Justice Stephen J. Hunter of the Ontario Court of Justice. Coroza J.A.: OVERVIEW [1] After a trial in the Ontario Court of Justice, the appellant was convicted of conspiracy to traffic in a controlled substance, trafficking in methamphetamine, and possession of the proceeds of crime exceeding $5,000. [2] The appellant was one of the targets of a lengthy Ontario Provincial Police (“OPP”) drug trafficking investigation. On May 11, 2015, the OPP saw the appellant and Kristopher Jerome complete a drug deal in a carpool lot in Port Hope, Ontario. The two men were arrested following an exchange of bags. The police seized 523 grams of methamphetamine from one bag in Jerome’s car and $12,240 from another bag in the appellant’s car. Two phones belonging to Jerome were also seized. These phones were searched, and the police seized text conversations between the appellant and Jerome suggesting that the appellant was Jerome’s drug supplier. Some of the conversations referenced Jerome’s offer to sell the appellant a firearm. Other conversations referenced a variety of drugs, including fentanyl. [3] The appellant brought a pre-trial application seeking the exclusion of evidence based on alleged violations of his rights under ss. 8, 9, and 10 of the Canadian Charter of Rights and Freedoms . The trial judge dismissed the application. As a result of the trial judge’s ruling, the appellant conceded that he was in possession of the proceeds of crime but argued that the Crown could not prove the conspiracy and trafficking charges beyond a reasonable doubt. [4] The Crown relied on a report tendered by a police officer who analyzed the text messages exchanged between the appellant and Jerome. The Crown argued that the text messages revealed that the appellant was supplying Jerome with methamphetamine so that Jerome could sell the drug in the Napanee area. [5] The appellant testified that he was not a drug dealer and that on May 11, 2015 he met Jerome to purchase a pistol from him. He testified that the true owner of the car he was driving asked him to exchange bags with Jerome. He had no knowledge of the drugs found in Jerome’s car. The trial judge rejected the appellant’s evidence, stating that it was “fraught with inconsistencies” and that it “bordered on fantasy”. He convicted the appellant of conspiracy to traffic in a controlled substance, trafficking in methamphetamine, and possession of proceeds of crime over $5,000. The appellant was sentenced to a global sentence of six years and six months’ incarceration. The appellant appeals his convictions and sentence. THE GROUNDS OF APPEAL [6] On the conviction appeal, the appellant argues that the trial judge erred in dismissing his s. 10(b) claim. The appellant submits that the police did not fulfill their duty to ensure he understood his right to counsel. He also claims the trial judge’s reasons for dismissing his s. 10(b) claim were confusing and insufficient. Additionally, and for the first time on appeal, the appellant raises an argument that the police failed to implement his right to counsel without delay, since he did not speak to duty counsel for more than seven hours after his arrest. [7] The appellant claims that if this court finds that his s. 10(b) rights were breached, we should perform the required analysis under s. 24(2) of the Charter . He argues that we should exclude the money seized from the appellant’s car and the observational evidence of the officers who watched the exchange between the appellant and Jerome on May 11, 2015. He seeks an acquittal on the proceeds count and a new trial on the drug charges. [8] As to sentence, the appellant contends that in his reasons for sentence, the trial judge improperly considered factors that were irrelevant and not aggravating. The appellant argues that the sentence imposed should be set aside and replaced by a global sentence of four and one-half years’ to five years’ incarceration. In support of that submission, the appellant asks this court to admit and consider fresh evidence. [9] For the following reasons, I would dismiss the conviction appeal. While I would grant the appellant leave to appeal sentence and admit the fresh evidence, I would also dismiss the sentence appeal. SUMMARY OF THE FACTS [10] Beginning in January of 2015, the OPP began an investigation into Kristopher Jerome and Travis Dennis—both known drug dealers in the Napanee area. The investigation revealed that the appellant was supplying Jerome drugs, and specifically methamphetamine from Toronto. Surveillance revealed that the appellant met Jerome on February 26 and May 7, 2015. He was driving a car registered to a Randolph Lynch. [11] On May 11, 2015, the police saw the appellant and Jerome meeting in a carpool lot in Port Hope, Ontario. It was raining heavily. The police saw Jerome get out of his car and enter the appellant’s car. After spending some time in the appellant’s car, Jerome returned to his car carrying an orange bag. The police believed that a transaction was taking place and arrested both men. The orange bag in Jerome’s car contained methamphetamine. A bag in the appellant’s car contained $12,240. [12] During his arrest, Cst. Price of the OPP read the appellant his rights to counsel and caution. The rights were read outside in the heavy rain. Cst. Price initially informed the appellant that he was under arrest for drug trafficking and asked him to spell his name. According to Cst. Price, the appellant spelled his name out in English and provided him with a date of birth. Cst. Price then read the appellant his right to counsel from a card and asked him if he understood. The appellant replied “yes” in English. When he was asked if he wanted to speak to a lawyer, the appellant replied, “I don’t know”. [13] Cst. Price decided that, because of this response and the fact that the appellant spoke with an accent, he should explain the rights to the appellant in simple English. He explained each of the points on the card. According to Cst. Price, the appellant confirmed that he understood because he made eye contact and nodded. He also confirmed that he understood English when he was asked by Cst. Price. According to Cst. Price, the appellant confirmed a second time that he understood his right to counsel. When asked a second time if he wanted to speak to a lawyer, the appellant again replied, “I don’t know”. [14] After reading the appellant his rights and caution, Cst. Price then turned him over to the Port Hope Police Service. Cst. Price believed that he told the officers that the appellant had not specified a lawyer that he wanted to talk to, and that they may wish to follow up with the appellant about providing him with duty counsel or a lawyer of his choice. [15] The appellant testified during the voir dire that he believed that Cst. Price was speaking English, but that he could only hear parts of what Cst. Price was saying. He testified that he nodded at Cst. Price because it was cold, raining, and he wanted to get to a warmer place, not because he understood what Cst. Price was saying. He also testified that he spoke to duty counsel during the early morning hours without the assistance of an interpreter and did not understand duty counsel’s advice. DISCUSSION (1) Issue 1: Did the Trial Judge Err in Dismissing the s. 10(b) Application? [16] In his ruling dismissing the appellant’s Charter application, the trial judge found that Cst. Price was direct and careful about the rights that he communicated to the appellant. He noted that Cst. Price recognized that there may have been some difficulty in communicating with the appellant and that, as a result, the officer decided to repeat the rights to counsel in simple language. He noted that the appellant acknowledged that his rights had been read twice and that he told Cst. Price that he understood his rights twice. The trial judge then went on to find that: There was nothing that was articulated by Mr. Luu to the Officer Constable Price at the time the rights to counsel and caution and arrest were described to him that would lead Detective Constable Price to believe that there was any difficulty in the understanding capacity of Mr. Luu. [17] The trial judge concluded: He did, of course, indicate problems with understanding the English language but it’s quite clear throughout that he did not communicate that to anyone. If, in fact, the Crown went further, after he spoke to duty counsel to suggest that it was appropriate to take a statement from him in the absence of the interpreter I would agree with [counsel for the appellant] that certainly that may be questionable. But they did not. They made sure that Mr. Luu had communication with duty counsel and went no further in terms of attempting to obtain, nor did they obtain, any further evidence from him by way of statement or otherwise after the takedown itself had occurred. [18] On appeal, the appellant renews his claim that his s. 10(b) rights were infringed. First, with respect to the informational component of s. 10(b), the appellant argues that the trial judge erred by finding that there was “nothing” that would have led Cst. Price to believe that the appellant had difficulty understanding English. The appellant points to Cst. Price’s testimony that after he finished reading the appellant his rights, he turned him over to the Port Hope police and advised them that the appellant had not indicated he wanted to speak to a lawyer, so they may want to follow up in terms of providing him with access to duty counsel or a lawyer of his choice. [19] I see no error in the trial judge’s analysis and I would not give effect to this argument. In my view, the trial judge’s findings that Cst. Price carefully recited the appellant’s rights to counsel, and that the appellant understood his rights when they were read to him, are fully supported by the evidence led on the voir dire . The appellant testified on the voir dire and claimed he did not understand his rights. The trial judge was entitled to reject that claim and find that the informational component of s. 10(b) had not been infringed. On the trial judge’s findings, Cst. Price properly conveyed the required information and the appellant understood what Cst. Price told him. Those findings were firmly anchored in the evidence. That evidence included the following: · The appellant verbally confirmed he understood English; · The appellant nodded and made eye contact with Cst. Price when he was asked if he understood his rights; · The rights to counsel were read twice by Cst. Price; · Cst. Price—who noticed the appellant’s accent and his response: “I don’t know” to whether he wanted counsel—decided to repeat the rights to counsel in simple language. The appellant confirmed he understood. [20] Nor am I persuaded that Cst. Price’s comments to the Port Hope police suggested that he had difficulty understanding the appellant. I view Cst. Price’s comments as a direction to the Port Hope police that the appellant had not invoked the right to counsel. [21] Second, the appellant claims that the trial judge’s reasons were confusing and insufficient. The appellant argues that the trial judge appears to have held that it would have been “questionable” if the Crown argued that it was appropriate, after the appellant spoke to duty counsel, for the police to take a statement from him in the absence of an interpreter. The appellant states that the reasons can be interpreted to mean that the trial judge found that the police would have infringed the appellant’s s. 10(b) right by taking a statement, and that such a finding necessarily means the trial judge concluded that the appellant did assert his s. 10(b) right. The appellant points to this alleged inconsistency, among others, to argue that the reasons give rise to conflicting theories as to why the trial judge decided the application in the way that he did, representing an error of law. [22] I do not agree with these submissions. My view of the issue is that the trial judge was addressing a very cursory submission on this point made by defence counsel. These comments did not factor into the court’s reasoning process in relation to whether s. 10(b) had been violated. On the trial judge’s findings, the appellant understood English and was not under any misapprehension of what was being said to him about his rights. [23] Third, the appellant argues the police failed to discharge their implementational duties under s. 10(b), because the appellant did not receive access to duty counsel until more than seven hours after his arrest. With respect, it is not appropriate for this court to address this argument. It was not advanced in the court below and there is a lack of evidence as to what occurred after the appellant was turned over to the Port Hope police. Even if it were proper for this court to entertain this argument for the first time on appeal, the appellant faces an uphill climb, as there is no evidence on this record that the appellant expressed a wish to exercise his rights to counsel that would trigger the police’s implementational obligations: see R. v. Fuller , 2012 ONCA 565, 295 O.A.C. 309, at para. 17. [24] In light of my conclusion that the trial judge did not err in dismissing the s. 10(b) application, it is not necessary to address the appellant’s s. 24(2) arguments. The appeal against conviction is dismissed. (2) Issue 2: Did the Trial Judge Err by Considering Irrelevant or Unproven Aggravating Factors? [25] On the sentence appeal, the appellant takes issue with some of the trial judge’s findings. [26] First, he contends that the trial judge erred in finding that he had a “higher involvement” in the drug distribution hierarchy than Jerome or Dennis. I do not accept this argument. There was overwhelming evidence that the appellant was higher in the drug chain than Jerome and Dennis. The appellant was responsible for transporting drugs and supplying Jerome with drugs in the Napanee area. It stands to reason that he was one of Jerome’s main suppliers and, without the appellant, Jerome could not traffic drugs in Napanee. Furthermore, the evidence indicated that Jerome and Dennis were similarly situated in the drug distribution hierarchy. Accordingly, I see no basis to interfere with the trial judge’s common sense finding. [27] Second, the appellant argues that the trial judge erred in his treatment of text messages between the appellant and Jerome in which they converse about the potential transfer of fentanyl and firearms. The trial judge held that this was an aggravating factor. The appellant submits that this was an error because there was no evidence that the transfers ever materialized. [28] I recognize that the trial judge provided cursory reasons as to why the open discussions of fentanyl and firearms were an aggravating factor in the circumstances of this case. However, after carefully considering the evidence that was before him, I conclude that it was open to the trial judge to reason that these discussions were relevant as an aggravating factor. [29] There was no dispute that the text messages referencing fentanyl and firearms were admissible at trial and sentencing. Generally, the text messages revealed that the appellant was involved in a conspiracy to traffic different drugs, including large amounts of methamphetamine. In text messages dated February 7, 2015, Jerome and the appellant discussed purchasing fentanyl patches for $5,000 to $10,000. In text messages dated approximately January 25-27, March 12, April 28, and April 30, 2015, Jerome and the appellant also discussed the sale of a gun to the appellant. In these messages, the appellant requested pictures of a firearm and the pair discussed prices between $2,500 and $3,000. In a message dated April 30, 2015, the appellant specifically requested a .40 calibre firearm. [30] I do not agree that these discussions were irrelevant in determining a fit sentence for the appellant. Facts tending to establish the commission of other offences of which an accused has not been charged or convicted can be admitted to enable a court to determine a just and appropriate sentence: s. 725(1)(c) of the Criminal Code , R.S.C., 1985, c. C-46; R. v. Angelillo , 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 22-27; and R. v. Edwards (2001), 155 C.C.C. (3d) 473, (Ont. C.A.), at paras. 63-65. The text messages revealed that the appellant was a drug trafficker operating at a high level. He was also interested in purchasing a firearm from his co-conspirator. This evidence was relevant to show the appellant’s background and the seriousness of the criminal conspiracy in which he entered. It is true that the appellant was specifically charged with a conspiracy to traffic in methamphetamine. However, I read the trial judge’s reasons as stating that, since the appellant was also prepared to participate in fentanyl trafficking and to purchase a gun from his co-conspirator, this conspiracy was one that involved serious criminality. It was open to the trial judge to find that this was an aggravating factor. [31] There was no objection by defence counsel to the admission of these text messages. Indeed, the appellant gave evidence of his drug dealing activities and his interest in purchasing firearms when he testified on his own behalf at trial. He sought to use this evidence in an exculpatory way. As this court observed in R. v. Chanmany , 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 54, leave to appeal refused, [2017] S.C.C.A. No. 88, “it ill lies in [the appellant’s] mouth now to deny the relevance of the evidence he himself adduced to his character for the purpose of sentencing”. [32] Nor do I accept the appellant’s argument that, since there was no evidence that the discussions of firearms and fentanyl ever materialized, they should not have been considered by the trial judge. There is one simple answer to the appellant’s submission: the appellant and Jerome were arrested, putting an end to their conspiracy. A review of the text messages reveals that the discussions about fentanyl and the firearm were not just idle talk. The appellant and Jerome contemplated the transfer of fentanyl and firearms as part of their conspiracy. They discussed specifics, including the price of fentanyl, the price of a firearm, obtaining a photo of a firearm, and acquiring a particular type of firearm. The text messages do not suggest that the appellant withdrew or abandoned his interest in fentanyl or the pursuit of the firearm prior to the date of arrest. Accordingly, it was open to the trial judge to give weight to the magnitude of the crime contemplated by the conspirators’ agreement: R. v. Russo et al. (1998), 130 C.C.C. (3d) 339 (Ont. C.A.), at paras. 12-16. [33] Finally, the appellant seeks leave to introduce fresh evidence, consisting of three letters from the appellant’s family. The documents provide this court with an update on the appellant’s behaviour while on bail pending appeal. The appellant has been assisting his family members with their financial and living expenses and has clearly taken positive strides to improve his life. The Crown does not oppose the introduction of this evidence. [34] The appellant’s rehabilitative strides are encouraging. However, the seriousness of the appellant’s crimes cannot be understated. He was involved in a serious conspiracy that escalated the trafficking of methamphetamine in the Napanee area, over a period of months. The fresh evidence does not provide a basis for this court to interfere with the sentence, which was fit when it was imposed. [1] DISPOSITION [35] I would dismiss the appeal from conviction. I would also admit the fresh evidence and grant leave to appeal sentence, but would dismiss the appeal from sentence. Released: May 12, 2021 “J.M.F.” “S. Coroza J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Gary Trotter J.A.” [1] The sentence imposed here falls within the loose range of five to eight years’ incarceration identified by Durno J. in R. v. Hien and Ly, (10 February 2016), Brampton, 450/14 (Ont. S.C.). In Hien and Ly , the offenders received custodial sentences of four and one-half years, and four years and three months, respectively, for the offence of possessing one kilogram of methamphetamine for the purpose of trafficking. The trial judge relied on this decision in concluding that six and one-half years’ imprisonment was the appropriate sentence.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Maillet, 2021 ONCA 73 DATE: 20210201 DOCKET: C67900 Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Roger Joseph Maillet Appellant Kenneth W. Golish, for the appellant Andrew Cappell, for the respondent Heard: January 28, 2021 by video conference On appeal from the conviction entered on June 13, 2019 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant appeals from his conviction for possession of child pornography. [2] During the course of executing a search warrant at the home of Michael Hardstone, the appellant’s housemate, the police found a laptop computer in the appellant’s bedroom. The laptop was connected to a monitor, and when the Windows Explorer application was opened a folder was found containing over 3800 images of child pornography. The appellant admitted that the images were child pornography. The only issue at trial was whether the appellant knew the images were on the laptop. [3] A computer found in Hardstone’s bedroom also contained child pornography. Hardstone pleaded guilty to possession of child pornography and testified for the Crown. He said that he purchased the appellant’s computer and gave it to him. He testified that he never used that computer and denied downloading child pornography onto it. [4] The appellant argues that the jury’s verdict was unreasonable. He argues, in particular, that expert evidence was required in order to establish that the appellant had knowledge of and control over the child pornography on the computer found in his bedroom. [5] We disagree. [6] The case against the appellant was circumstantial. The trial judge properly and repeatedly instructed the jury that it must be satisfied that the appellant’s guilt was the only rational conclusion that could be drawn from the evidence in order to find the appellant guilty. [7] The jury was entitled to accept Hardstone’s evidence that he was not responsible for the child pornography found on the computer in the appellant’s bedroom, despite the appellant’s submissions that he lacked credibility. The only other possible explanation – that the images were on the computer when Hardstone purchased it from the pawn shop and that the appellant never learned of it – was speculative. It was for the jury to determine whether there were other rational explanations for why the appellant may not have known that there was a huge stash of child pornography on his computer. In light of the factual record, including the appellant’s proven expertise in computers, it was open for the jury to conclude that there was no other rational conclusion to be drawn, other than that the appellant knew of the presence of the child pornography. [8] Because it was open to the jury to find that the inference that the appellant knew the child pornography was on his laptop was the only reasonable inference available, it cannot be said that the jury’s verdict was unreasonable. [9] We note that the appellant raised additional arguments that were not set out in his factum, including that the absence of a directed verdict application does not inform the issue involving the reasonableness of the verdict in this case because bringing such an application is up to the accused, not the accused’s lawyer. There is no merit to these arguments. [10] The appeal is dismissed. “Fairburn A.C.J.O.” “David Watt J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mann, 2021 ONCA 103 DATE: 20210219 DOCKET: C65574 Feldman, Tulloch and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Warren Mann Appellant Adam N. Weisberg, for the appellant Holly Loubert, for the respondent Heard: February 3, 2021 by video conference On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on April 20, 2015, and from the sentence imposed on April 21, 2016, with reasons reported at 2016 ONSC 2675. Nordheimer J.A.: [1] Mr. Mann appeals from his conviction for attempted murder. [1] He also seeks leave to appeal his sentence of life imprisonment. For the reasons that follow, I would allow the conviction appeal and order a new trial. As a consequence, I do not reach the sentence appeal. I: Background [2] The appellant originally met the victim when she was a sex worker. They met three of four times in late 2010 or early 2011, each time for an hour of paid sex. The appellant testified that the two agreed that the appellant should move into her apartment where she lived with her son. The two lived together for about three to four days before the victim, who had a history of alcohol abuse, was arrested on June 25, 2011 (for breach of probation and assaulting a police officer) and sentenced to a period of incarceration. [3] The appellant became the “breadwinner” of the house. He took responsibility to care for the victim’s children. During the victim’s incarceration, the appellant lived at the apartment with the victim’s son, paid the bills and gave financial assistance to both the son and the victim’s daughter. [4] The victim was released on March 28, 2012 and entered an alcohol rehabilitation program, which was completed in early May 2012. The evidence at trial was that the program was successful. The victim first moved into a rooming house and then, in July 2012, moved into a rental home with her daughter and her daughter’s boyfriend in Barrie. [5] The appellant discovered that the victim was intending to move into the rental home on July 25, 2012. On that same date, the appellant, who was a long-haul truck driver, arrived back in Toronto from a long-distance haul and drove to Barrie. The appellant believed that he and the victim were developing a relationship and, consequently, he was expecting to move into the Barrie home on that day. [6] However, the romantic relationship that the appellant envisioned was not progressing as he had hoped. It appears that the victim did not share the appellant’s plans for their relationship. On this day, there was an exchange of text messages between the two with the appellant asking what he meant to the victim and what type of relationship she wanted. [7] The appellant spent the evening with the victim at the Barrie home. He wanted to discuss their relationship, but the victim did not. Eventually, the appellant went out to his car and wrote on an envelope: “ Just want to say thanks [the victim’s first name], O nce again you got what you wanted and to hell with me. and my feelings ”. The appellant said that the message was a precursor to suicidal thoughts that led him to test a knife he had by running it across the palm of his hand. However, the knife was dull, he abandoned the idea, and he re-entered the house. [8] The appellant testified that he attempted to initiate a conversation with the victim about telling her children that he was moving in. She rebuffed him again. He testified that, at this point, the victim became angry and began to hit him. He recalled reaching out and grabbing her arms to stop her from hitting him. According to the appellant’s version of the events, the two lost their balance and fell down together. He testified that he had no memory of what happened next. [9] In fact, the appellant began choking the victim. He repeatedly banged her head against the floor. The appellant called 911 (although he did not remember doing so) and told the dispatcher that he would “like to report a murder”. He went on to say that he had killed his “so-called girlfriend" by choking her and beating her to death with his hands. The 911 operator continued to hear loud banging during the call, which was consistent with the head injuries the victim suffered. When asked by the 911 operator if he was sure that the victim was dead, the appellant said, “Uh pretty sure, she’s going to be [unintelligible] anyway.” The victim suffered life-threatening and permanent injuries, including brain damage, from the attack. [10] The appellant maintained that he did not intend to kill the victim. His position at trial was that the Crown had failed to prove the specific intent to kill. Among other things, defence counsel noted that the appellant did not make use of the knife in his vehicle nor did he make use of a hammer that was in the bedroom, where the attack took place, to carry out the attack. II: Issues [11] The appellant raises two central issues on his conviction appeal: 1. The trial judge erred in her instruction to the jury on the principle of reasonable doubt; 2. The trial judge erred in admitting statements that the appellant made to a police officer at the time of his arrest. III: Analysis (1) The reasonable doubt instruction [12] This issue can be dealt with in briefer form than might usually be the case because of the somewhat unique circumstances in which it arises. Put simply, the same issue has been addressed by this court – twice. [13] In her charge to the jury about reasonable doubt, the trial judge said: A reasonable doubt is a real doubt that logically arises from the evidence, or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion that you have drawn from the facts as you find them, provided that that inference of or conclusion is not a speculation or a guess, but a much stronger belief arising from the proven facts, and based on the evidence alone. If your doubt is about something that you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and it must arise from the evidence. It is not enough for you to believe that Warren Mann is probably or likely guilty in respect of a particular charge. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. If you think that he is probably or likely guilty, you must find him not guilty, because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard that is impossibly high for the Crown to prove. If, at the end of the case, after considering all of the evidence, you are sure that Warren Mann committed an offence, you should find him guilty of it, since you would have been satisfied of his guilt of that offence beyond a reasonable doubt. If, at the end of the case, based on all of the evidence or lack of evidence, you are not sure that Warren Mann committed an offence, you should find him not guilty of it, since you would not have been satisfied of his guilt beyond a reasonable doubt. [Emphasis added.] [14] The problem arises with respect to the portions of the instruction that I have underlined above. With the exception of the substitution of the word “belief” for “conclusion” in the third sentence of the first paragraph above, the wording is identical to instructions that this court has twice before found to be erroneous, requiring a new trial: R. v. Darnley , 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 32-36, and R. v. Brown , 2018 ONCA 1064, at para. 15. [15] The error is set out by Paciocco J.A. in Darnley at paras. 33-36, where he said: First, a reasonable doubt need not arise from the evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus , [1997] 3 S.C.R. 320, at para. 36. Moreover, an inference need not arise from "proven facts", which is "a standard that is never applicable to an accused": R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to "proven facts" suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected. It is also incorrect to link a reasonable doubt to a "conclusion" drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt. It is also an error to suggest that an exculpatory inference must be "a much stronger conclusion" than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman , at para. 20 [16] As I have said, the only difference between the instructions here, and the instructions in these two earlier cases, is the substitution of the word “belief” in the third sentence. That change does not cure the error identified. The effect of the instructions is still to essentially reverse the onus. It places a burden on the accused to prove something from which a reasonable doubt could arise – a burden that is not placed upon any accused and one that is inconsistent with the presumption of innocence. [17] In response, the respondent asserts that the problem in this instruction is alleviated when the instructions are reviewed as a whole. The respondent adds that the problem is further alleviated because the proper instruction on reasonable doubt was given to the jury at the outset of the trial. [18] That submission fails on two fronts. First, the same argument was expressly rejected in Darnley , where Paciocco J.A. said, at para. 38: There is no force in the Crown's contention that these errors lose their significance when the jury charge is read as a whole. Errors relating to the burden and standard of proof may not be reversible "if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply" (emphasis added): R. v. W.(D.) , [1991] 1 S.C.R. 742, at p. 758. This is not a case for inferring that these errors did not confuse or mislead the jury. [Emphasis in original.] [19] The other is the fact that the final instructions were given to the jury in hard copy. Consequently, if the jury had any reason to revisit the instruction on reasonable doubt, we can safely assume that they would have had reference to the hard copy instructions that they had, not their recollections from the opening of the trial some 25 days earlier. [20] Unfortunately, the error in the instructions undermined both the presumption of innocence and the burden of proof. It is a fundamental error that gives us no alternative but to set aside the convictions and order a new trial. (2) The s.10(b) issue [21] While the resolution of the first issue is sufficient to dispose of the appeal, I will address the second issue since it will likely arise at a new trial. Since the matter has been fully argued, it does not make any sense to leave the issue hanging without resolution. To do otherwise, does a disservice to counsel and the trial judge at the new trial. [22] The appellant was arrested at the scene without incident. The officer who arrested the appellant immediately turned him over to two other officers. It is while the appellant was in the custody of these two officers that he made the impugned statements. [23] The statements began after one of the officers asked the appellant whether he had been stabbed. There was blood on the appellant and, as the trial judge found, it was reasonable for the officer to make this inquiry. After answering "no" to the question of whether he had been stabbed, the evidence of the officer was that the appellant spontaneously stated that he was planning to kill himself with a knife that night, but it was too dull. He said that the knife was in the centre console of his vehicle that was parked outside of the residence, and that there was also a suicide note. [24] In contrast, the other officer said that the appellant’s utterances began while the officers were walking with the appellant out of the residence and continued on their way to the police car. His evidence was that the appellant made the following statements: "she just pissed me off'; "I just lost it on her"; "I just snapped"; and "I tried to commit suicide tonight with my knife but it wasn't sharp enough. I tried it on my hands." [25] Upon being placed in the police cruiser, the appellant was told by the first officer that he was under arrest for aggravated assault and was provided with the rights to counsel and cautioned, in standard format. The appellant indicated that he understood each of these items of information, and responded that he had no lawyer in Barrie, but that he would speak with duty counsel. [26] The trial judge found that the appellant’s utterances were made in violation of his s. 10(b) Charter rights. She found that the appellant was not given his s. 10(b) rights at the first opportunity. In particular, the trial judge found that the first opportunity was not when the appellant was placed in the police cruiser, as between five to ten minutes had elapsed between his detention and the time that the appellant was removed from the home. No appeal is taken from that conclusion by the trial judge. [27] Having found a s. 10(b) breach, the trial judge then considered whether the evidence ought to be excluded under s. 24(2). She concluded that it should not. The appellant says that the trial judge erred in her s. 24(2) analysis. I agree. [28] The trial judge addressed the three factors from R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353. On the first factor, she concluded that the breach was “not deliberate, or of such seriousness that the court should seek to disassociate itself.” On the second factor, the trial judge found that the impact on the appellant’s rights was “tempered significantly” because the appellant had made “more serious, self-incriminating” remarks in the 911 call. On the third factor, the trial judge found that, while the exclusion of the evidence “would not significantly undermine the prosecution’s case”, the evidence was “highly relevant” to the issue of intent and thus inclusion of the evidence was favoured. [29] In my view, the trial judge erred in her analysis of all three of the Grant factors. First, as found by the trial judge, the officers delayed in providing the appellant with his rights to counsel. The fact that the officers did not do so deliberately does not lessen the nature of the breach. It simply does not aggravate it. The officers did not offer any explanation for the delay. The crime scene was being adequately handled by the many other officers who were on scene (including two sergeants) and the victim was being treated by paramedics. [30] The right to counsel is an extremely important right. Persons who are detained by the police may need immediate advice and counsel. As explained by McLachlin C.J. and Charron J. writing for the majority in R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para 41: “[a] situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected.” And, as Doherty J.A. observed in R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34: “[t]he effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police.” [31] It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached. [32] Second, the breach of a person’s rights, and the extraction of utterances from that person, is not “tempered” by the fact that the police have other evidence of a similar type, properly obtained. The fact remains that the police have extracted potentially incriminating evidence in violation of a guaranteed right. The maxim “no harm, no foul” has little place in the assessment of a violation of constitutionally protected interests. I would note that, both in the final instructions to the jury, and in the Crown’s closing submissions, the admitted utterances were given prominence. [33] Third, the trial judge’s analysis of inclusion versus exclusion is inconsistent with her earlier analysis of the importance of the evidence. Having lessened the impact of the evidence obtained under the second Grant factor, the trial judge then reversed course in finding that the evidence was “highly relevant” under the third Grant factor. The fact is that the evidence was not necessary to the prosecution’s case and this fact argued in favour of its exclusion. [34] I would set aside the trial judge’s decision regarding s. 24(2) and exclude the evidence from any new trial. Conclusion [35] Unfortunately, both errors that I have discussed infected the fairness of the trial. A new trial is required. I would allow the appeal, set aside the conviction on attempted murder and the finding of guilt on aggravated assault, and order a new trial on both offences. Released: February 19, 2021 “KF” “I.V.B. Nordheimer J.A.” “I agree. K. Feldman J.A.” “I agree. M. Tulloch J.A.” [1] There was also a finding of guilt for aggravated assault but that finding was stayed on the principles set out in R. v. Kienapple , [1975] 1 S.C.R. 729

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Marki, 2021 ONCA 83 DATE:  20210209 DOCKET: C67416 MacPherson, Trotter and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Benjamin Ronald Marki Appellant Delmar Doucette and Cara Barbisan, for the appellant Amy Alyea, for the respondent Heard: January 20, 2021 by video conference On appeal from the convictions entered by Justice Terrence A. Platana of the Superior Court of Justice on April 20, 2018, sitting with a jury. MacPherson J.A.: A. Overview [1] Wilfred Pott and Anne Chuchmuch were a common law couple with whom Benjamin Marki lived for about three years. They lived together as a family in a house in Thunder Bay. [2] On December 27, 2015, Pott and Chuchmuch were stabbed to death in their home. Gasoline was spread and a fire was set in the home. Marki was present just outside the home when the firefighters and police arrived. [3] On January 15, 2016, Marki was charged with two counts of second degree murder, one count of arson, and one count of interfering with human remains (burning). It was agreed at trial that one person committed all the offences and the only live issue was the identity of that person. [4] On April 20, 2018, the jury found Marki guilty on all counts. On August 29, 2018, Platana J. imposed life sentences with no eligibility for parole for 20 years on the murder charges and concurrent ‘time served’ sentences on the other charges. [5] On September 12, 2019, the appellant filed a notice of appeal challenging the convictions. He does not appeal the sentence (notice of abandonment filed October 5, 2020). B. facts (1) The parties and events [6] In 2009-2010, Pott and Chuchmuch moved from southern Ontario to Thunder Bay to make a fresh start. In 2012-2013, Marki moved to Thunder Bay and resided with the couple. Pott and Chuchmuch treated Marki as a son; Marki called them “dad” and “mom”. [7] During the eight months prior to December 27, 2015, there were two fires at the family home. One, to which firefighters responded, resulted in a wooden shed in the backyard being destroyed. The other involved a boat in the driveway. [8] Robert Guitard lived in a home whose backyard abutted the backyard of the home where Marki lived with Pott and Chuchmuch. On the night of December 27, 2015, he was at home when he noticed flickering light. When he looked out his window, he saw flames and smoke coming out the back door of the home where Pott and Chuchmuch lived. He told his wife to call 911, which she did at 10:23 p.m. He then went outside to move his truck. When he did so, he saw Marki frantically pounding on the back door of the burning home, trying to open it, and calling out “is anybody in there” and “let me in”. Guitard knew that opening a door during a fire can be dangerous so he told Marki to stop trying to enter. [9] When the firefighters arrived, they heard Marki’s voice in the backyard. When they saw that he was close to the fire, they coaxed him to move away from the house and come to the front. [10] According to fireman Jim Gowenlock, Marki told him that he lived in the house, had been out walking his two dogs, had returned to the house to find it on fire, and that there might be people inside. [11] Two other firefighters entered the house through the front door. Marki tried to enter as well. He had one foot over the threshold before Constable Braydon Beck, the first police officer on the scene, pulled him back out of the house. Beck took Marki to Guitard’s garage. [12] When the firefighters entered the house, they found the bodies of Pott and Chuchmuch. Chuchmuch had at least 40 stab wounds all over her body, with 12 being categorized by a pathologist as “lethal or potentially lethal”. Pott had bruises, abrasions and stab wounds, one of which caused his death. The pathologist determined that both victims died prior to the fire. [13] The fire investigator concluded that gasoline had intentionally been introduced and the fire deliberately set. [14] After the police and Marki left Guitard’s garage, Guitard saw two folded up knives on the floorboard of his snowmobile. He called the police back and the police seized the knives. Forensic testing established that there was blood on one of the knives. The blood swab provided a mixed profile of two people, the major contributor being a profile that could not exclude Chuchmuch and the other one being a profile that could not exclude Pott. [15] Forensic testing also established that there was gasoline and blood on Marki’s shoes. [16] Constable Beck interviewed Marki in Guitard’s garage from 10:49 p.m. to 12:03 a.m. According to Constable Beck’s paraphrase notes, Marki said: he went to the local First Nations reserve and bought smokes and then started drinking; returned home and saw that Pott and Chuchmuch were in the kitchen making pies mid-afternoon; kept to himself in his room for most of the afternoon; did not eat supper with the others; took the dogs for a walk; brought the dogs back but did not go into the house; went to a bus stop that was a two minute walk away; waited about six to eight minutes for a bus; heard sirens and saw flashing lights; suspected from the earlier fires that the emergency vehicles might be going to his house; ran back to the house; kicked the front door and tried to enter the house, but was knocked back by smoke; tried to kick the back door; was told by Guitard to get away from the door; and, at Guitard’s suggestion, handed one of the dogs over the fence to him. [17] At the end of the interview, after more than an hour of questioning, Marki said, in what Constable Beck said was a verbatim statement: “I’m going to be arrested for this, I know it. Might as well arrest me now. I know how this works. I’m the most eligible to go to jail. I should have jumped on the bus and took off.” (2) The trial [18] The trial lasted six days. Marki did not testify and called no evidence. The jury deliberated for 12 hours over two days. The jury found Marki guilty on all four charges. He appeals from the convictions. C. issues [19] The appellant raises three issues on the appeal: 1. Did the trial judge err in failing to give a W.(D.) instruction with respect to the statements the appellant made to a firefighter, a police officer, and one of Pott’s friends? 2. Did the trial judge err in failing to give a corrective instruction in regard to purported after-the-fact conduct? 3. Did the trial judge improperly instruct the jury on the defence’s failure to call evidence? D. analysis (1) The W.(D.) issue [20] It was common ground at trial that one person committed all the offences and that the only live issue was the identity of that person. The appellant made three statements to firefighter Gowenlock, Constable Beck and Pott’s friend John Zahn. Although they were not recorded and there were differences in detail, there was a common thread in all three conversations – the appellant stated that he had been out and when he came back to the house it was on fire. Accordingly, the appellant made three exculpatory statements that he was not the person who had committed the four crimes, including arson and murder. [21] During the pre-charge conference, the trial judge and counsel discussed elements of the final instructions that were specific to the facts of the case. The trial judge then ran down the checklist of final instructions found in Watt’s Manual of Criminal Jury Instructions to see what other instructions might be given. One of the potential instructions in the checklist was the W.(D.) instruction. When it was discussed, the following exchange took place: [THE CROWN]: Page 10 [of an early draft charge], testimony of the person charged, the W.D. instruction. THE COURT: Oh no, I – I’ve clearly taken that out. Defence counsel did not comment on this exchange. [22] The appellant submits that a full and proper W.(D.) instruction specifically related to the appellant’s three exculpatory statements was required; the trial judge had a duty, regardless of the position or silence of counsel, to give this fundamental instruction. [23] The W.(D.) instruction arose in a case where the accused testified: R. v. W.(D.) , [1991] 1 S.C.R. 742. This was manifest in the actual language of the famous tripartite formulation of the instruction which refers explicitly to the “testimony of the accused”. However, subsequent case law has made it clear that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and their evidence conflicts with that of the Crown witnesses. Thus, as expressed by Blair J.A. in R. v. B.D. , 2011 ONCA 51, at para 114: Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case , the trial judge must relate the concept of reasonable doubt to those credibility findings. [Emphasis added.] [24] Although the trial judge spoke at length and properly about the concept of reasonable doubt, the appellant submits that he did not link it sufficiently to some of the “evidence favourable to the defence in the Crown’s case”. [25] I do not accept this submission. Even though W.(D.) considerations may be in play in a case where the accused does not testify or call evidence, there is no explicit formula that must be provided. Appellate review should focus on whether the trial judge adequately explained the facts and law to the jury on a functional level. What is required is that the jury understand the burden and standard of proof and their application. [26] In my view, that happened in this case. The trial judge’s jury charge relating to the presumption of innocence and the “beyond reasonable doubt” standard of proof was impeccable. [27] Importantly, the trial judge also gave the jury a good roadmap for assessing the appellant’s statements to witnesses, including firefighter Gowenlock, Constable Beck and Mr. Zahn. As requested by defence counsel, the jury was given the model instruction on out-of-court statements by an accused. The trial judge instructed the jury: Some or all of the statements may help Benjamin Marki in his defence. You must consider those remarks that may help Benjamin Marki along with all of the other evidence, even if you do not believe them, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help Benjamin Marki even if you cannot decide whether he said them or whether you believe them. If you decide he made a remark that may help him in his defence or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Benjamin Marki’s guilt. [28] For these reasons, I do not accept the appellant’s submissions on the first issue. (2) The after-the-fact conduct issue [29] A few days after the homicide, but before the appellant was charged, he had coffee with Brian Walker, a good friend of Pott’s. Walker testified that within days of Marki’s arrest on January 15, 2016, Marki called from the district jail to ask that Walker and his wife change their statements to the police. However, Walker’s statement was not given to the Crown until March 2016 and it was disclosed to the defence sometime after that. Walker’s wife never gave a statement. [30] During his closing address to the jury, Crown counsel said: And [Marki] knows something about what the evidence is before he ever gets the disclosure. And so when he calls and asks someone to change their story and says, “I’ve seen your statement,” that’s a lie. It’s Mr. Marki’s lie. We know he didn’t see Mr. Walker’s statement because he didn’t have it yet and we know he didn’t see Mr. Walker’s wife’s statement because she didn’t give one. But why does he call and ask them to change their stories? Because he knows he’s guilty and he knows and has every expectation that they’re going to say something that’s going to implicate him. [31] Defence counsel did not object to this aspect of the Crown closing address. Instead he succinctly, and accurately, addressed it in his own closing address, saying the “situation could not have taken place” because the appellant could not have seen the statement. Moreover, defence counsel did not ask the trial judge for a corrective instruction on this point. [32] In these circumstances, I regard this as a very minor point and would not give effect to it as a basis for overturning the jury’s verdict. (3) The failure to call evidence issue [33] In his jury instructions, the trial judge told the jury: You did not hear any evidence offered by the defence. I remind you again that the burden of proof is on the Crown. There is no requirement of the accused person to call any evidence. You should not conclude solely on the basis of his decision not to call evidence or to testify himself as an acknowledgment of guilt. [Emphasis added.] [34] The appellant submits that the use of the word ‘solely’ in this instruction had the effect of telling the jury that they could rely on the appellant’s failure to testify or to call evidence as a basis, even if not the sole basis, in determining guilt. [35] I am not persuaded by this submission. In R. v. Araya , 2015 SCC 11, Rothstein J. said, at para. 52: Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court warned against in Cooper . [36] There was no risk, in the circumstances of this case, that the jury would have treated the appellant’s failure to testify as evidence of his guilt. The jury instructions, as a whole, tied the presumption of innocence to the burden of proof in a manner that spoke almost directly to the irrelevance of the appellant's failure to testify. It properly conveyed that the evidence of the Crown stood alone and must be evaluated on that basis. The instruction did not invite the inference that the appellant chose not to testify to hide his guilt. When read in the context of the address of counsel and the jury charge as a whole, the jury would have understood that the Crown could prove the appellant’s guilt only on the evidence and that the appellant’s silence at trial did not constitute evidence and therefore could not be used to infer guilt. E. disposition [37] I would dismiss the appeal. Released: “JCM” FEB 09 2021 “J.C. MacPherson J.A.” “I agree. Gary Trotter J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R v. Marshall, 2021 ONCA 28 DATE: 20210118 DOCKET: C65380, C65381 & C66233 Strathy C.J.O., Gillese and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Bevon Marshall Appellant Jeffery Couse, for the appellant Andrew Hotke, for the respondent Heard: July 23, 2020 by videoconference On appeal from the sentences imposed on January 29, 2016, March 23, 2016 and June 29, 2018 by Justice Brian P. O’Marra, Justice Robert F. Goldstein and Justice Michael G. Quigley, respectively, of the Superior Court of Justice. Watt J.A.: [1] Bevon Marshall (the appellant) is in custody. His warrant expiry date is October 28, 2033. Then, he will begin a decade-long period of long-term supervision which will end on October 27, 2043 when the appellant is 53 years old. He will have spent more than three decades under state supervision. [2] The appellant asks us to substantially reduce both his term of imprisonment and the length of his long-term supervision order (LTSO). [3] The appellant’s sentence is an amalgam of three sentences imposed on three separate occasions by three different judges on convictions for a variety of offences committed over a period of nearly six years. The LTSO is part of a composite sentence levied after a finding that the appellant is a long-term offender (LTO). [4] The reasons that follow explain why I would decline the appellant’s entreaty to intervene. I am not persuaded that the sentences of imprisonment imposed, whether considered individually or cumulatively, offend the principle of totality as the appellant urges. Nor am I convinced that the length of the LTSO fails to give proper effect to its purposes of protecting the public and rehabilitating and reintegrating the appellant into the community. The Standard of Review [5] Our mandate as a reviewing court is to consider the fitness of the individual and cumulative sentences imposed on the appellant. We do so mindful of the scope of our authority to intervene in the profoundly subjective process that is sentencing those convicted of criminal offences. In determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code ; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.) , 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17. [6] Proportionality is the cardinal principle that governs our review of the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code , s. 718.1. [7] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the sentence will be: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12. [8] Where consecutive sentences are concerned, the fundamental principle of proportionality expresses itself through the more particular form of the totality principle. In brief, the totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence imposed does not exceed the overall culpability of the offender: R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 42. [9] The principle of totality also applies where a sentencing judge imposes a sentence on an offender who, at the time of sentencing, is already serving a sentence for a prior conviction. In this case, the influence of the totality principle is tempered by the continuing criminality of the offender: R. v. Johnson , 2012 ONCA 339, 285 C.C.C. (3d) at paras. 19, 21-24. [10] Appellate intervention in a sentence imposed at trial is justified only where the sentencing judge has erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and the error has had an impact on the sentence actually imposed: Lacasse , at paras. 43-44. [11] The weight assigned to aggravating or mitigating factors lies within the discretion of the sentencing judge. The decision to weigh these factors in a particular way is not itself an error that permits appellate intervention unless the weighing is unreasonable. Nor is an appellate court entitled to intervene because a majority of its members would have weighed those same factors differently. After all, this is what the exercise of discretion is all about: Lacasse , at paras. 49-50, 78. [12] Similarly, a choice of a sentencing range, or of a category within a range, also falls within the discretion of the sentencing judge and, on its own, cannot constitute a reviewable error. It follows that an appellate court has no authority to intervene except in those cases where the sentence imposed is demonstrably unfit: Lacasse , at para. 51. [13] A sentence is demonstrably unfit if it constitutes an unreasonable departure from the fundamental principle of sentencing – proportionality. The Sentences Imposed [14] With these principles in mind, I turn to the sentences imposed. I begin with a sentence the fitness of which is not challenged here, but which is nonetheless of importance to the sentences that are under review. The Sentence of September 1, 2015 [15] After a trial before Code J. sitting without a jury, the appellant was found guilty of conspiracy to commit robbery. The offence occurred on May 8, 2013. [16] During an interception of the appellant’s private communications in May 2013 in an unrelated investigation, police learned that the appellant and his co-accused planned to rob a man of $15,000. Telephone calls and text messages disclosed attempts by the appellant to obtain a weapon to help carry out the plan. [17] Despite the appellant’s enthusiastic pursuit of a firearm, his efforts came to naught. No gun. The victim vanished. And no robbery. [18] The appellant was 22 years old at the time of this offence. When sentenced on September 1, 2015, the appellant was 25. He had a youth and adult record which included assault, robbery, failure to comply with a probation order, two firearms offences including breach of a firearms prohibition, and a drug offence. Despite his comparative youth, the appellant had logged substantial time in custody, much of it prior to sentencing for his various convictions. [19] The appellant had not completed high school. He had no significant employment history and, at best, limited rehabilitative potential. [20] In his reasons for sentence, Code J. considered as aggravating the appellant’s criminal record, his apparent enthusiasm and excitement at the prospect of committing robbery, and a casual nonchalance, acceptance of, and commitment to violent crime. [21] In mitigation, Code J. took into account the unsophisticated nature of the offence, which he characterized as a crime of opportunity of brief duration and ultimate failure. He also considered the appellant’s youth and his responsible conduct throughout the trial. [22] Code J. imposed a sentence of three and one-half years on the appellant. From this sentence, he deducted 40 months as credit for the time the appellant had been detained in pre-sentence custody. As a result, the appellant was required to serve a further period of two months in custody. [23] The appellant does not challenge this sentence on appeal. The Sentence of January 29, 2016 [24] On October 1, 2015, a jury found the appellant guilty of robbery and of discharging a firearm with intent to endanger life. The appellant was found not guilty of attempted murder. The Circumstances of the Offence [25] On February 25, 2009, four people participated in a robbery at a pawn shop. Each had a role. One drove the others to and from the pawn shop. Another entered the shop, looked around to ensure that no customers were there, and left to advise the remaining two. The final two entered the pawn shop. Each was masked and armed. The appellant carried a baseball bat. The other man carried a gun. [26] The store operator and an employee were alone in the store when the robbers entered. Under threat, the robbers forced the store occupants from one place to another. The robbers smashed display cases and gathered up jewelry and other property. The store operator resisted and engaged the intruders in a protracted and violent struggle. During this altercation, the store operator kicked the gun out of the robber’s hand. The appellant picked up the gun and fired a shot as he continued his struggle with the store operator. The shot did not hit anyone. [27] The operator managed to pull the appellant’s hoodie over his head. When the operator fell to the ground, the appellant pulled the hoodie off his head and fired a second shot at the operator. The shot struck the operator in the abdomen. The appellant and his partner fled from the pawn shop and were driven away by their accomplice. [28] The pawn shop operator was seriously injured by the gun shot. He required surgery and a lengthy period of rehabilitation. At the sentencing hearing about seven years later, his victim impact statement recounted in detail the physical, emotional, and financial consequences of the event. [29] Police did not learn of the appellant’s involvement in these offences until they intercepted his telephone calls and text messages under an authorization granted in relation to another investigation. The appellant was arrested in June 2013. The Circumstances of the Offender [30] The appellant was 18 years old at the time of the pawn shop robbery and 25 at the time he was sentenced. He grew up in a good and supportive family home. He did not complete high school. His employment record consisted of part-time jobs. He was involved in an intermittent relationship with a young woman and had no dependants. During his time in pre-trial custody, he had taken courses to upgrade his education to high school equivalency. [31] At the time of sentencing, the appellant had both a youth and adult criminal record. Included were convictions for firearm offences and robbery. He had been placed on probation for the robbery conviction about one month before he participated in the pawn shop robbery and shooting. At the time of this offence, the appellant was also subject to a weapons prohibition. He was not serving an imposed sentence when he appeared for sentencing on the pawn shop offences. The Sentence Imposed [32] The trial judge imposed a sentence of imprisonment of 11.5 years, less 3 months for time spent in pre-sentence custody, which the judge deducted from the sentence of 5.5 years for robbery involving a firearm. The sentence for the discharge firearm offence was 6 years to be served consecutively to the sentence for robbery. The Arguments on Appeal [33] The appellant asks that we reduce the sentence on the pawn shop robbery and shooting to a sentence of imprisonment of seven and one-half years. To accomplish this, he suggests that we impose a sentence of seven and one-half years on each count with the sentences being served concurrently. The appellant submits that the trial judge erred in failing to give proper effect to the principle of totality. [34] The appellant concedes that the sentence imposed falls within the range appropriate for the offences of which he was convicted. But the totality principle becomes engaged because the sentence imposed increased the appellant’s cumulative sentence to one of 15 years. Recall the sentence of three and one-half years imposed by Code J. five months earlier. [35] Relatedly, the appellant continues, the trial judge erred in failing to give anything beyond passing mention to the appellant’s prospects for rehabilitation. The appellant was barely an adult when he committed the offence and was a youthful offender at the time of sentencing. The sentence imposed not only failed to accord a meaningful place to the appellant’s rehabilitative prospects, it extinguished them. [36] The respondent acknowledges the applicability of the principles of totality and proportionality and notes that the trial judge adverted to them in three respects. First, he adverted to the totality principle before determining the appropriate sentence. Second, he expressly considered the sentence previously imposed by Code J. Finally, after noting that the offences warranted consecutive sentences, he immediately stated the global sentence, reflecting the effect of the consecutive sentences he had imposed. [37] The trial judge correctly determined that the pawn shop offences warranted consecutive sentences. They were separate delicts. The robbery had been completed before the appellant shot the victim, who represented no danger to the robbers who were then making their escape. The cumulative sentence was lengthy, as it should have been. It properly reflected the governing objectives and principles of sentencing, foremost among them, proportionality. Discussion [38] I would not give effect to the appellant’s complaint that the sentencing judge failed to give effect to the principle of totality. [39] These were very serious offences committed by a youthful recidivist. The predominant sentencing principles which were engaged were denunciation and deterrence. Despite the appellant’s youth, the principle of rehabilitation occupied a place of lesser prominence, especially in the absence of evidentiary support for optimism. [40] This was a planned and deliberate robbery involving four persons, each with a defined role. The victim was vulnerable. The appellant was a principal who gained possession of and used a prohibited or restricted firearm to shoot from point-blank range a victim who was, by then, no threat to him or his fellow robber. The shooting displayed a callous disregard for human life. [41] For practical purposes, the appellant’s confession that the sentence of 11 years, 3 months imposed by B. O’Marra J. falls within the applicable range of sentence for these offences leaves this aspect of his challenge on life support. After all, the selection of a sentencing range or of a sentence within that range is subject to substantial deference in this court. As exemplified by the appellant’s own acknowledgment, I cannot say that the sentence is clearly or manifestly excessive or represents a substantial and marked departure: Lacasse , at paras. 51-52. Nor does it constitute an unreasonable departure from the principle of proportionality: Lacasse , at para. 53. [42] Similarly, the appellant cannot invoke an error in the application of the totality principle on the basis that this sentence, in combination with the sentence then being served, amounted to a crushing sentence, thus offending the principle. [43] The sentence with which we are concerned was not ordered to be served consecutively with any sentence the appellant was then serving. The reason is simple: the sentence imposed by Code J. had expired. The appellant’s imprisonment was due to his failure to obtain release pending trial, not because he was serving a sentence. The Sentence of March 23, 2016 [44] After a trial before Goldstein J. and a jury, on January 11, 2016, the appellant was convicted of trafficking cocaine, possession of cocaine for the purpose of trafficking, and attempting to possess a firearm. The Circumstances of the Offences [45] While intercepting the appellant’s private communications in 2013, the police discovered a message where the appellant offered crack cocaine to his collocutor. [46] About three weeks later, the appellant asked a man to get him a firearm. The man explained that the supplier did not have a .38 calibre firearm but, “he has a nine”. The appellant counselled the man to “keep it coded…the talk”. The next day, police executed a search warrant at the appellant’s apartment where they found an amount of crack cocaine consistent with trafficking, the appellant’s Blackberry, and a digital scale. The Circumstances of the Offender [47] The appellant was 22 when he committed these offences and 25 when he was sentenced. He was on probation after the conspiracy to commit robbery of which he had been convicted and sentenced by Code J. [48] When sentenced, the appellant was serving the sentence of 11 years, 3 months imposed by B. O’Marra J. about two months earlier. On December 4, 2015, the appellant was convicted of aggravated assault and was awaiting dangerous offender proceedings that did not conclude until 27 months later. The Sentence Imposed [49] Goldstein J. imposed sentences of two years on each of the drug counts and ordered that those sentences be served concurrently to one another and to the sentence imposed by B. O’Marra J. On the conviction of attempting to possess a firearm, Goldstein J. ordered that the appellant serve a sentence of four years consecutive to the sentence the appellant was then serving. Thus, the appellant’s total sentence increased to 15 years, 3 months. The Arguments on Appeal [50] The appellant says that Goldstein J. made two errors. The first has to do with the quantum of sentence he determined was appropriate for the conviction of attempted possession of a firearm. The second concerned the totality principle and the imposition of a consecutive sentence. [51] The appellant contends that, as a matter of principle, a sentence for an inchoate offence, such as an attempt, should be lower than a sentence for a completed offence. An attempt to possess a firearm is less morally culpable than the completed offence of possession because the degree of danger to the community is significantly reduced in comparison to actual possession. Further, in this case, there was no evidence of the likelihood that the appellant’s attempt would result in actual possession. Yet the sentence imposed mirrors those for actual possession. [52] The appellant does not argue that the sentence for the firearm offence should not have been consecutive to the sentence he was then serving. However, he submits that the imposition of a four year sentence to be served consecutively offends the totality principle. He submits that a one year consecutive sentence would better reflect the principle of totality and not depart from the prevailing sentencing objectives of denunciation and deterrence. [53] The respondent says that a review of the reasons for sentence contradicts any suggestion that Goldstein J. did not give effect to the totality principle. [54] The trial judge concluded that a proper application of the principles of sentencing and an evaluation of the aggravating and mitigating factors justified a total sentence of seven years. To give effect to the principle of totality and the goal of rehabilitation, Goldstein J. reduced the total sentence to four years. This was a proper application of the totality principle, especially for an accused whose rehabilitative prospects were, at best, marginal. [55] The respondent resists any suggestion of error in the sentence imposed for attempted possession of a firearm. This was the appellant’s second conviction for this offence. His first sentence was two years, five months. At the time, he was bound by a weapons prohibition, a probation order, and was trafficking drugs. These are serious aggravating factors. Discussion [56] I am not persuaded that the appellant’s arguments about the totality principle or the culpability of inchoate crimes warrant our intervention. [57] I turn first to the principle of totality. As I previously explained, it is well settled that, subject to consideration of proportionality and totality, consecutive sentences are properly imposed for sentences involving separate delicts, such as where they implicate different protected interests. In my view, it was open to the sentencing judge in this case to impose concurrent sentences on the drug counts, but order the sentence on the firearms count to be served consecutively to those sentences: Criminal Code , s. 718.3(4)(b). In a similar way, as s. 718.3(4)(a) of the Criminal Code expressly permits, it was open to Goldstein J. to direct that the term of imprisonment he was imposing be served consecutively to the sentence of imprisonment imposed by B. O’Marra J. to which the appellant was then subject. [58] To determine whether the sum of the sentences imposed by B. O’Marra J. and Goldstein J., is compatible with or must yield to the totality principle, I must next consider whether the sentence imposed on the attempt to possess a firearm accords with the governing principles. [59] I do not gainsay that the absence of a completed crime is a relevant consideration in assessing the gravity of an offence, and thus a component of the fundamental principle of proportionality. This is so because offenders are punished for their wrongdoing in proportion to the culpability and harmfulness of their conduct. Stated in the form of an equation: Culpability x Harm = Punishment [60] The gravity of the harm associated with an immature attempt is arguably less than with a mature completed offence. On the other hand, moral culpability is often measured by an actor’s state of mind, which does not differ, in most cases at least, between the preliminary and the completed offence. Often, the fact that the crime is incomplete is not due to any want of effort on the part of the accused, nor any lesser degree of responsibility. [61] It is reasonable to conclude that Parliament had in mind this distinction between inchoate and completed crimes when it enacted the punishment provisions for attempts in s. 463(b). There, it set the maximum for attempts at “one-half of the longest term” to which a person who is guilty of the completed offence is liable. [62] Since Parliament has taken into account the inchoate nature of an attempt in the maximum punishment on conviction, our task becomes to determine whether the sentencing judge made an error of law or an error in principle that had an impact on the sentence he imposed or imposed a sentence that was demonstrably unfit. [63] I am satisfied that the trial judge’s decision to impose a sentence of imprisonment of four years on the conviction for attempted possession of a firearm does not reflect error. [64] This was the appellant’s second conviction for an offence under s. 92(1) of the Criminal Code . He received a sentence of two years, five months for his first conviction. Recidivism warrants a more substantial sentence. The appellant was also subject to a weapons prohibition at the time of this offence. In addition, he committed this offence within a month of his involvement in a conspiracy to rob a man of $15,000. There, as well, he made several attempts to obtain a weapon. Finally, there was his use of a handgun in the pawn shop robbery in which he shot and severely wounded the shopkeeper. Four years was a fit sentence for this firearms offence, despite its inchoate nature. [65] Returning to the issue of totality, the reasons of the trial judge demonstrate his fidelity to the principle and an informed application of it to the case at hand. [66] The trial judge concluded that the drug and firearms convictions warranted a total sentence of seven years. As punishing separate delicts, the offences warranted consecutive sentences. [67] The trial judge then considered whether those sentences should be served concurrently with or consecutive to the sentence the appellant was then serving. He decided that they should be served consecutively to the existing sentence as s. 718.3(4)(a) of the Criminal Code expressly permits. He then invoked the principle of totality to reduce the sentence he would otherwise have imposed to a sentence of four years. He also took into account the appellant’s rehabilitative prospects, which he accurately characterized as minimal given his record of “virtually unceasing criminality since the age of 16”. [68] This ground of appeal fails. The Sentence of June 29, 2018 [69] On December 21, 2015, after a trial before Quigley J. sitting without a jury, the appellant was found guilty of aggravated assault, assault with an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace. [70] The Crown took dangerous offender proceedings against the appellant. The application failed. However, the trial judge found the appellant to be an LTO and sentenced him to a term of imprisonment and a period of long-term supervision. The Circumstances of the Offence [71] In January 2015, the appellant was an inmate at Toronto East Detention Centre. In accordance with institutional practice, persons who have court appearances are moved from their usual range to a temporary overnight holding area in advance of their scheduled court appearance. The appellant was among a group moved on January 2, 2015. [72] Among the group was an inmate who was scheduled to testify as a witness at a murder trial. The inmate asked correctional staff not to be moved to the overnight holding area. However, giving no reason for his request, he was transferred. [73] The appellant and three others entered the victim’s cell shortly after the doors were unlocked on the morning of January 3, 2015. The trial judge found that the appellant was one of two principals who had attacked the victim with a sharp-edged weapon. The victim sustained significant injuries requiring several sutures and staples to close them. The appellant disposed of the weapon. [74] The victim refused to provide a statement to police. He declined to give evidence at trial despite a judge’s order that he do so. The case for the Crown at the appellant’s trial consisted of a video produced by the surveillance system at the detention centre. A security supervisor narrated the video and identified the participants. The Circumstances of the Offender [75] When this offence occurred, the appellant was 24. He was serving a sentence of 15 years and 3 months and awaiting the Crown’s application to have him declared a dangerous offender. [76] During the dangerous offender proceedings, two forensic psychiatrists expressed the opinion that the appellant had an anti-social personality disorder. From both actuarial and clinical perspectives, the appellant presented a high risk for both general and violent recidivism. However, both psychiatrists acknowledged that their ability to predict behaviour and risk 15 or 20 years away was markedly diminished. The Sentence Imposed [77] The trial judge was not satisfied that the Crown had established that the appellant was a dangerous offender. However, he found that the appellant was an LTO and sentenced him to imprisonment for a term of two and one-half years to be served consecutively to the sentence the appellant was then serving. The judge also ordered that, at the conclusion of his prison sentence, the appellant be subject to an LTSO for ten years. The Arguments on Appeal [78] The appellant does not contest the finding that he is an LTO. However, he argues that the trial judge erred not only in the length of the term of imprisonment he imposed, but also in the duration of the LTSO. [79] The appellant says that a consecutive sentence of 2.5 years results in a total sentence of 21.5 years. This is a crushing sentence which extinguishes the appellant’s prospects of release and rehabilitation. It results in a sentence that is disproportionate to the gravity of the appellant’s offences and the degree of his responsibility for them. The appellant proposes a sentence of two years for this offence to be served consecutively to the existing sentences. This, together with his submissions in connection with the other sentences, would reduce the total sentence to 14 years. [80] The second error alleges that the trial judge failed to consider whether a period of less than ten years would better reflect the objectives of the LTSO regime. Two objectives underpin the regime. The first is protecting the public from the offender’s risk of re-offence. The second, and ultimate objective, is the rehabilitation of the LTO and their reintegration into the community: R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 48; R. v. Bird , 2019 SCC 7, [2019] 1 S.C.R. 409 at para. 37. These objectives require the sentencing judge to tailor the length of the LTSO to the objectives of the scheme. [81] In this case, the appellant says, the trial judge lacked any expert evidence about the predictability of future recidivism beyond the term of imprisonment. In the absence of this evidence, the trial judge effectively treated the maximum term of an LTSO as a default position. This shifted the onus to the appellant to show why the maximum length was not justified. This evidentiary shortfall mandated an LTSO of no more than five years. [82] According to the respondent, the reasons of the trial judge demonstrate his appreciation and application of the totality principle. The trial judge concluded that an appropriate sentence for the appellant’s offence was one of five years. Then, after taking into account the principles of totality and parity (in light of the sentence imposed on the other principal), the trial judge reduced the sentence to one of two and one-half years. [83] The respondent points out that even if totality considerations were more pressing in the appellant’s case than in that of his co-principal, there were important factors that warranted a higher sentence for the appellant; different criminal histories, fewer mitigating factors, and dissimilar rehabilitative prospects. In addition, the principle of totality has a substantially lessened impact where an offender is serving the remnant of an existing sentence. Were it otherwise, an offender could be seen as benefiting from their prior offending. Totality would submerge the other objectives and principles that underpin the sentencing regime. [84] Turning to the duration of the LTSO, the respondent contends that, when read as a whole, the trial judge’s reasons reasonably support the ten-year LTSO. The appellant’s offending history shows not only a complete lack of restraint in his behaviour and an attendant likelihood of causing, in the future, death, injury, or severe psychological damage to others, but also a pattern of persistent aggressive behaviour that shows a substantial degree of indifference about the reasonably foreseeable consequences of that behaviour. [85] In addition, the appellant denies responsibility for most of his prior offences, and thus lacks the insight necessary to benefit from future treatment. He has a robust history of failing to comply with orders for community supervision and requires intense case management and supervision on release into the community. Should the appellant’s substantial risk of re-offence be reduced at the conclusion of his term of imprisonment, he has the right to seek a reduction in the length of the LTSO. Conversely, the legislation does not permit the Crown to seek an increase in the period of supervision should a reduced period prove inadequate. Discussion [86] In my view, the appellant’s arguments about the totality principle and the length of the LTSO both fail. [87] A review of the sentencing judge’s reasons betrays the claim that the totality principle was not accorded its due in the sentencing decision. The sentencing judge concluded that on a stand-alone basis, a fit sentence for the appellant on his conviction of aggravated assault was five years. I would agree with this assessment. [88] The aggravated assault was a pre-concerted, armed, and cowardly attack on a fellow inmate in a remand facility. The appellant was a principal. The victim was confined in his cell by the appellant and three accomplices. [89] An additional aggravating factor was that the victim was scheduled to testify as a witness at a murder trial. As a result, he was a “justice system participant” within s. 2 of the Criminal Code . It is a reasonable inference that the attack and the purpose of the court appearance were not complete strangers to each other. Even in the absence of an express provision, like s. 718.02 of the Criminal Code , I would consider these circumstances as aggravating on sentence. [90] Instead of sentencing the appellant to a term of imprisonment of five years for the aggravated assault, the sentencing judge imposed a sentence of two and one-half years which he ordered to be served consecutively to the sentence the appellant was then serving. He invoked two sentencing principles when he did so: totality and parity. The former, to ensure that the cumulative sentence did not exceed the appellant’s overall culpability for the myriad offences of which he had been convicted. The latter, to comport with s. 718.2(b) of the Criminal Code and the sentence imposed on the other principal in the assault. [91] In my view, the custodial part of the sentence imposed reflects a proper application of the principle of totality. [92] Turning now to the LTSO. Section 753.1(3)(b) requires a sentencing court that has found an offender to be an LTO to order that the offender be subject to an LTSO for a period that does not exceed ten years. The section is silent on the factors the sentencing judge is to consider in determining the duration of the LTSO. Although, it would seem that, as a sentencing provision, the imposition of an LTSO should engage the sentencing provisions of Part XXIII. [93] Rehabilitation is the key feature of the LTO regime that distinguishes it from the dangerous offender regime. Thus, rehabilitation is an appropriate sentencing objective: Ipeelee , at para. 50. [94] It is uncontroversial that in determining the length of the term of imprisonment to be imposed on an LTO, the sentencing judge does not take the subsequent period of long-term supervision into account. The principal of parity would be seriously compromised were courts to compare fixed sentences for non-LTOs with fixed sentences with LTSOs for LTOs. The decision about an LTO is based on controlling a serious risk in the future, not punishment for what the offender has done in the past: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 38, 41, & 50. [95] The period for which an LTSO is in force should not be longer than necessary to obviate the risk of re-offence and to protect the public: M. (L.), at para. 44. Any period of long-term supervision established by the sentencing court may be reduced or terminated on an application to the superior court of criminal jurisdiction by the offender, a member of the Parole Board of Canada, or, with Board approval, by the offender’s parole supervisor. The grounds for the reduction or termination are that the LTO no longer presents a substantial risk of re-offending and thereby being a danger to the community. The onus is on the applicant: Criminal Code , s. 753.2(3). [96] No provision authorizes an application to extend the period of long-term supervision authorized by the sentencing court. The period of long-term supervision is not a “sentence” within the inclusive definition of that term in s. 673 of the Criminal Code . [97] In my view, the sentencing judge did not err in fixing the period of the LTSO at ten years. [98] The LTSO is future-focused. But sometimes, the best predictor of the future lies in the past. The appellant’s substantial offending history shows a failure to restrain his behaviour and a likelihood of its repetition with a consequent probability of death, injury, or severe psychological damage to others as a result. It also reveals a pattern of persistent aggressive behaviour that shows a substantial degree of indifference to the reasonably foreseeable consequences of that conduct. [99] Despite its limitations, the expert evidence, especially when taken together with the appellant’s offending history, establishes a substantial risk of re-offence, and of violent re-offence. The appellant lacks insight and denies responsibility for his proven offences. Each is an impediment to future treatment. Thus far, the appellant has displayed an unwavering disregard for court orders. Taken as a whole, the evidence adduced at the hearing fully warranted the order made. Disposition [100] I would grant leave to appeal sentence, but dismiss the appeal from sentence. Released: January 18, 2021 “GRS” “David Watt J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. E.E. Gillese J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. McColman, 2021 ONCA 382 DATE: 20210604 DOCKET: C68630 Feldman, Tulloch and Hourigan JJ.A. BETWEEN Her Majesty the Queen Appellant and Walker McColman Respondent Davin M. Garg, for the appellant Donald R. Orazietti, for the respondent Heard: December 3, 2020 by video conference On appeal from the order of Justice Edward E. Gareau of the Superior Court of Justice, dated September 16, 2019, with reasons reported at 2019 ONSC 5359, 381 C.C.C. (3d) 375, allowing an appeal from the conviction entered on October 4, 2018, by Justice Robert P. Villeneuve of the Ontario Court of Justice. Tulloch J.A.: A. INTRODUCTION [1] In the early morning hours of March 26, 2016, the police stopped the respondent, Walker McColman, for the purpose of determining whether he was driving under the influence of drugs or alcohol. The stop took place in a private driveway outside the respondent’s parents’ house. [2] Upon stopping the respondent, the police observed signs of intoxication and proceeded to arrest him. The respondent was subsequently charged with, and convicted of, impaired operation of a motor vehicle and operating a motor vehicle while “over 80” pursuant to ss. 253(1)(a) and 253(1)(b) (since repealed) of the Criminal Code , R.S.C. 1985, c. C-46. The provincial court judge sentenced him to a 12-month driving prohibition, imposed a $1,000 fine, and conditionally stayed the s. 253(1)(a) conviction pursuant to Kienapple v. R ., [1975] 1 S.C.R. 729. [3] On appeal, the summary conviction appeal judge overturned the s. 253(1)(b) conviction, finding that the trial judge erred in law by concluding that the stop was authorized under s. 48(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 (“ HTA ”). The appeal judge found the stop to be unlawful, breaching the respondent’s right not to be arbitrarily detained under s. 9 of the Canadian Charter of Rights and Freedoms . He proceeded to exclude the evidence under s. 24(2) of the Charter and entered an acquittal. [1] [4] The Crown subsequently brought a motion for leave to appeal the acquittal entered by the summary conviction appeal judge. The Crown sought to raise the following question of law: If a police officer forms the lawful intention to stop a driver on a public street for a sobriety check, but the driver turns on to private property before the officer can effect the stop, does the officer maintain authority to conduct the stop? The Crown relied on s. 48(1) of the HTA , or in the alternative, the powers of the police at common law for the authority to conduct a stop in these circumstances. [5] The issue on appeal equally can be framed as follows: Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person had been drinking? [6] A panel of this court granted leave on August 25, 2020, finding that the questions raised in this appeal are significant to the administration of justice as they deal with the lawful scope of police powers. [7] For the reasons that follow, I would dismiss the appeal. In my view, neither the HTA nor the common law authorized the police conduct in this case. The stop violated the respondent’s s. 9 Charter rights, and the evidence was properly excluded. B. FACTUAL OVERVIEW [8] The relevant facts of this case are important. At the outset, I note that this is not a case where the driver was swerving on the road. It is not a case where there was a broken taillight or any other obvious HTA infractions. It is a case of a driver who drove normally onto their own driveway and parked. With that said, this section provides a detailed review of what happened in this case. [9] At approximately 12:30 a.m. on March 26, 2016, Constable Jack Lobsinger, along with his partner, Constable Laura Hicks, were conducting general patrol in the area of the Thessalon First Nation. The officers observed a utility terrain vehicle (“UTV”) parked outside a restaurant and gas station. As the vehicle “seemed like it was [going to] be leaving” the parking lot, the officers decided to conduct a sobriety check of the driver. [10] The officers turned their car around and began following the UTV, which had exited the parking lot and was driving eastbound down a public road. About 200 metres down the road, the UTV turned right and then left onto the private driveway of the respondent’s parents’ house . The driveway also provides a means of access to a neighbouring commercial business. The police followed the UTV into the driveway and activated their lights to indicate to the driver that a police car was behind him. The officers exited their vehicle to speak with the respondent, who had walked around to the passenger side of the UTV. A second person was sitting in the passenger seat. This sequence of events occurred over the course of approximately one minute. [11] At this point, the officers did not have a reasonable suspicion that the respondent was connected to any particular crime. Constable Lobsinger testified that they did not see any signs of impairment prior to stopping the respondent and agreed with the suggestion of defence counsel that there was nothing unusual about the respondent’s driving. Rather, Constable Lobsinger explained that they were exercising their authority to conduct random sobriety checks pursuant to s. 48(1) of the HTA . [12] Immediately upon approaching the respondent, Constable Lobsinger noted that he was impaired. Specifically, he observed the following indicia of intoxication: the respondent was unsteady on his feet; he was hanging on to the side of the UTV; his knees were wobbly; his eyes were red and bloodshot; and there was a strong odour of alcohol on his breath. Constable Lobsinger testified that, when he asked the respondent if he had consumed any alcohol, the respondent admitted that he may have had ten beers. [13] The officers arrested the respondent for impaired driving, and then transported him to a police station. At the station, the respondent provided two breath samples with readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood, respectively. In other words, both readings were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. While at the station, the respondent also vomited several times and continued to show signs of intoxication. C. DECISIONS BELOW [14] The respondent brought a Charter application, alleging, among other things, that the stop was unlawful and constituted a breach of his rights under s. 9 of the Charter . He argued that the police did not have authority to conduct the stop on private property. [15] The trial judge dismissed the application, finding that s. 48(1) of the HTA provided lawful authority for the stop for two reasons: (1) the officers intended to stop the respondent’s vehicle for the purpose of checking the driver’s sobriety; and (2) they had formed the intention to enact the stop while the vehicle was being operated on a public highway. The trial judge reasoned that the “mere fact that [Constable Lobsinger] did not effect this stop until the [respondent] had turned into a private driveway and was thus on private property did not eliminate or invalidate the officer’s authority under s. 48(1) of the Highway Traffic Act .” In light of his conclusion on s. 48(1) of the HTA , the trial judge declined to consider whether the officers had authority under the common law to stop the respondent on his private driveway. [16] Because he considered the stop lawful, the trial judge concluded that the officers did not violate the respondent’s right under s. 9 of the Charter . Therefore, any evidence obtained as a result of the stop was admissible at trial. [17] Having dismissed the Charter application, the trial judge went on to convict the respondent of impaired driving and operating a motor vehicle “over 80”, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code . He found that, based on the various indicators of intoxication, the respondent was “clearly impaired by the consumption of alcohol.” Both breath samples put him over 80 milligrams of alcohol in 100 millilitres of blood. As noted above, the s. 253(1)(a) conviction was conditionally stayed on sentencing pursuant to the principle in Kienapple . (1) Summary Conviction Appeal Judge’s Decision [18] On appeal to the Superior Court of Justice, the respondent argued, among other things, that the trial judge had erred in finding that a police officer could conduct a sobriety stop on private property pursuant to s. 48(1) of the HTA . [19] The summary conviction appeal judge allowed the appeal, finding that neither ss. 48(1) nor 216(1) of the HTA permit the police to conduct a sobriety or highway safety stop on private property absent reasonable and probable grounds. Once the respondent’s vehicle left the public roadway and entered the private driveway, he was no longer a “driver” within the meaning of the HTA and therefore the police did not have statutory authority to randomly detain him in order to check his sobriety. Additionally, the appeal judge found that the stop was not authorized by the common law police powers to protect the public, as the “public did not require protection from the [respondent] once he was in his private driveway”: R. v. McColman, 2019 ONSC 5359, 381 C.C.C. (3d) 375, at para. 45. The stop was unlawful and thus constituted a breach of s. 9 of the Charter . [20] In his analysis under s. 24(2) of the Charter , the appeal judge found that the actions of the police were serious, as the officers “pursued the appellant onto private property when they had neither the statutory or common law authority to do so”: at para. 49. The impact of the breach was also significant, as the respondent had a high expectation of privacy on his own property. While society clearly had an interest in the adjudication of the matter on its merits, the balancing favoured exclusion. [21] The appeal judge thus allowed the appeal, set aside the conviction, and entered an acquittal. D. ISSUES ON APPEAL [22] The Crown raises three grounds of appeal: (1) the appeal judge erred in finding that s. 48(1) of the HTA did not authorize the sobriety stop; (2) the appeal judge erred in finding the common law did not authorize the sobriety stop; and (3) if there was a Charter breach, the appeal judge erred in excluding the evidence under s. 24(2) of the Charter . [23] I will address each issue in turn. E. ANALYSIS (1) Was the police stop authorized by s. 48(1) of the HTA ? (a) Legal Principles [24] As noted above, the Crown argues that s. 48(1) authorized police to stop the respondent on his private driveway. [25] Section 48(1) of the HTA permits the police to stop drivers to determine whether the driver is impaired: A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section [320.27 or 320.28] of the Criminal Code . [26] In order for the police to invoke the statutory power under s. 48(1), three conditions must be met: (1) the police officer must be readily identifiable as a police officer; (2) the person being stopped must be a “driver” for the purposes of the HTA ; and (3) the purpose of the stop must be to determine whether there is evidence to justify making a demand for a sample of breath or other means of testing the driver’s sobriety. [27] Under s. 1(1) of the HTA , a “driver” is a “person who drives a vehicle on a highway.” Section 48(18) provides that in the context of s. 48, a driver “includes a person who has care or control of a motor vehicle.” [28] The HTA defines a “highway” as: a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for passage of vehicles and includes the area between the lateral property lines thereof. [29] If the criteria set out above are satisfied, s. 48(1) authorizes an officer to randomly stop a vehicle absent reasonable suspicion or reasonable and probable grounds: R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, [1988] 1 S.C.R. 621. (b) Application to this Case [30] The first precondition under s. 48(1) – whether the officers were identifiable as police – appears to be uncontested. [31] What is in dispute is whether this factual matrix satisfies the second precondition, which requires the respondent to be a “driver” within the meaning of the HTA . [32] As noted above, under the HTA, a “driver” is a “person who drives a vehicle on a highway.” Section 48(18) adds to this definition that a driver “includes a person who has care or control of a motor vehicle”. The question in this appeal is whether the respondent was still a “driver”, even though he was on a private driveway when he was stopped by police. [33] First, it is well established that a private driveway is not a highway as defined in the HTA . This court canvassed the scope of the HTA’ s definition of “highway” in R. v. Hajivasilis , 2013 ONCA 27, 114 O.R. (3d) 337. Doherty J.A. identified the limits of the meaning of “highway” at para. 10: The phrase “intended for or used by the general public for the passage of vehicles” limits the meaning of “highway”. If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of “highway”. Most privately owned parking lots are not “highways” as defined in the HTA . It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of “highway” in the HTA . [Emphasis added.] [34] Based on this interpretation, a private driveway is not a “highway” as it is “property to which the general public does not have access” and it only has “a limited purpose other than passage” (i.e., parking). [35] Because a private driveway is not a “highway” for the purposes of the HTA , on the plain language of the HTA , a person in their private driveway cannot be a “driver” as they are not a “person who drives a vehicle on a highway ” (emphasis added). [36] The Crown does not seem to take issue with the fact that a private driveway cannot strictly be considered a “highway” under the HTA . This fact, according to the Crown, was not lost on the trial judge. Rather, the Crown argues that the officers conducted a lawful stop pursuant to the HTA because they crystallized the intention to stop the respondent while he was still on a public roadway. Put another way, the Crown contends that the officers intended to stop the respondent for a sobriety check while he was still a “driver” under the HTA, and therefore they were authorized to do so even though the stop occurred on private property. This view, according to the Crown, is consistent with a purposive and remedial interpretation of the HTA. The Crown relies on decisions from this and other courts which, according to the Crown, support taking a broad interpretation of the HTA . [37] I cannot accept this argument. The issue is whether the police were acting pursuant to lawful authority at the moment when they conducted the stop. That authority must be exercised within the confines stipulated by the HTA, including the precondition that the person subject to the stop is a “driver” on a “highway” . The officers’ intentions in the moments preceding the stop do not render an otherwise unlawful stop lawful. [38] As set out above, the plain language of s. 48(1) and the related definitions of “driver” and “highway” do not authorize random stops off the highway. [39] The Crown relies on the purpose and context of the HTA to argue in favour of its proposed interpretation. The Crown points to cases from this court, including R. v. Boughen , 2002 CanLII 41476 (Ont. C.A.), R. v. Clarke , [2005] 196 C.C.C. (3d) 426, (Ont. C.A.), leave to appeal to S.C.C. refused, 31012 (September 29, 2005), and R. v. Lotozky [2006], 210 C.C.C. (3d) 509, (Ont. C.A.), as well as the decision of the Court of Appeal for Saskatchewan in R. v. Anderson , 2014 SKCA 32, 308 C.C.C. (3d) 11, which suggests that prior approaches to the interpretation of the HTA justify the expansion of the police powers proposed in this case. [40] Respectfully, in my view, these cases do not assist the Crown. The Crown argues that Boughen and Clarke support the proposition that the HTA can authorize a stop on private property if the investigation commenced on the highway. These cases are distinguishable. In Boughen , the police observed an HTA infraction and as a result, had grounds to detain the accused under the HTA . In a brief endorsement, this court upheld the summary conviction appeal judge’s conclusion that the police were entitled to continue their HTA investigation onto private property. In Clarke , again, the police observed an HTA infraction, and they initiated a stop while the accused was still on the highway. The accused failed to stop, and only then – when the police had grounds to arrest the accused for failing to stop as required – did they follow him onto private property. These cases bear no similarity to the present case, which involved a random, groundless stop on private property. [41] The Crown relies on Lotozky in support of its argument that policy concerns should drive this court’s interpretation of s. 48(1). In that case, Rosenberg J.A. commented, at para. 37, that it “would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase.” He held that police officers who have reasonable grounds to suspect that a motorist is impaired are entitled to walk up a driveway to further their investigation. Again, an important distinction is that the police on Lotozky had reasonable grounds. They did not select the accused at random. Notably, Rosenberg J.A. was interpreting the common law, and was not dealing with explicit statutory language. The Court of Appeal for Saskatchewan’s decision in Anderson , while dealing with different statutory language, invoked similar concerns about escaping motorists to support the conclusion that police could pursue drivers off the highway and onto private property to conduct random stops: see para. 25. [42] There was no suggestion here that the respondent was attempting to evade the police. Indeed, it was accepted that he simply pulled into his driveway because he had reached his destination. A true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances. [43] While, as the Crown submits, pursuant to s. 64(1) of the Legislation Act, 2006 , S.O. 2006, c. 21, Sched. F, the HTA must be interpreted “as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects,” this court does not have the power to read into the HTA police powers the legislature has not seen fit to provide. Looking at the broader context of the HTA , the legislature used the word “highway” and drafted provisions that incorporate that definition with care: Hajivasilis , at paras. 27 and 35. The legislature chose to limit the application of some provisions of the HTA to the highway, while extending others off the highway: Hajivasilis , at paras. 27-40. On its terms, the police power contained in s. 48(1) is confined to highways. As this court observed in Hajivasilis, at para. 27: “[T]he interpretive exercise must strive to give some meaning to the choice made by the legislature.” [44] Accordingly, since one of the necessary conditions for invoking the power provided by s. 48(1) cannot be met in this case, the police did not have statutory authority to stop the respondent in a private driveway. (2) Was the police stop authorized by the common law? (a) Legal Principles [45] In carrying out their general duties as law enforcement, police officers are only entitled to interfere with the liberty of a citizen where such interference is authorized by law. [46] It is settled law that the police have a common law power to randomly stop vehicles in the course of protecting public roadways, absent reasonable suspicion: Dedman v. The Queen, [1985] 2 S.C.R. 2. As the Supreme Court of Canada held in Hufsky , and Ladouceur , random stops for the purpose of investigating motor vehicle infringements on a public highway are an arbitrary detention, but are justifiable pursuant to s. 1 of the Charter. However, this police power is not without its limits. As Cory J. noted in R. v. Mellentin , [1992] 3 S.C.R. 615, at p. 487, this power is constrained by the purpose for which it serves: Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.] [47] Similarly, in contemplation of the scope of the common law police power recognized in Dedman , Doherty J.A. issued the following words of caution in R. v. Simpson, [1993] 79 C.C.C. (3d) 482 (Ont. C.A.) , at p. 491: In Dedman , supra , at pp. 119-22, the court held that the common law ancillary police power justified random stops of vehicles in the course of the enforcement of laws relating to the operation of those vehicles. This power to stop was, however, closely tied to the particular purpose of the stops, the dangers presented by the activity targeted by the stops, the qualified nature of the liberty interfered with by the stops, and the absence of other less intrusive means of effective enforcement of the relevant laws. The authority to stop described in Dedman was clearly not a general power to stop for all police purposes, but was limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner. [Emphasis added.] [48] The question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on a private driveway, in circumstances not authorized by the HTA , where the person exited the highway after the officer decided to conduct the stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed. [49] This court has not yet weighed in on whether the common law should recognize this police power. We must tread lightly in doing so, as “[e]stablishing and restricting police powers is something that is well within the authority of legislatures”: Fleming v. Ontario, 2019 SCC 45, 437 D.L.R. (4th) 220, at para. 41. As Iacobucci J. observed in R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 17: “complex legal developments are best left to the experience and expertise of legislators.” This is particularly so when the proposed expansion in police power “would restrict lawful activities of individuals”: Fleming, at para. 5. It is important to bear in mind the words of La Forest J. in R. v. Wong, [1990] 3 S.C.R. 36, at p. 57, as cited in Fleming, at para. 4, that “it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties.” [50] That being said, the Supreme Court has been clear that courts “cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist”: Fleming, at para. 42. The court must be diligent in its role as a custodian over the common law, which, by its very nature is organic and must develop incrementally in tandem with a changing society. [51] In Fleming, the Supreme Court recently reiterated the test to determine whether the common law authorizes a particular police action that interferes with individual liberty . Writing for the court, Côté J. noted that this question requires an application of the ancillary powers doctrine; a framework originally set out in R. v. Waterfield , [1963] 3 All E.R. 659, at pp. 660-62 and adopted by the Supreme Court in Dedman . [52] The ancillary powers doctrine holds that police actions that interfere with individual liberty can be recognized under the common law if they are “ancillary” to the pursuit of recognized police duties, provided that the police action is reasonably necessary for the fulfilment of that duty: Fleming, at paras. 45-47. [53] At the outset, the court must clearly define the asserted police power and the liberty interests at stake: Fleming, at para. 46. The ancillary powers doctrine will apply “where the power in issue involves a prima facie interference with liberty”: Fleming, at para. 46. Once the police power and liberty interests are defined, the analysis proceeds in two stages: Fleming, at para. 46. [54] The first stage of the inquiry under the ancillary powers doctrine asks whether the police action at issue falls within the general scope of a statutory or common law police duty. The second stage asks whether the proposed expansion involves a justifiable exercise of the police powers associated with the general police duty or duties in question. At this second stage of analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of that duty or duties: Fleming, at para. 47. As the Supreme Court put it in Dedman , at p. 35: The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [55] The concept of reasonableness requires this court to consider whether other, less intrusive, measures are available and valid options in the circumstances: Fleming, at para. 54. If the police can fulfill their duties “by an action that interferes less with liberty, the purported power is clearly not reasonably necessary”: Fleming , at para. 54. In R. v. MacDonald , 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37 , the Supreme Court instructed courts to weigh three factors in this determination: (1) the importance of the performance of the duty to the public good; (2) the necessity of the interference with individual liberty for the performance of the duty; and (3) the extent of the interference with individual liberty. [56] The onus remains with the state to justify the existence of common law police powers that involve interference with liberty: Fleming, at para. 48. (b) Defining the Power and the Liberty Interests at Issue [57] As noted above, at the outset, we must define the asserted police power and the nature of the liberty interest at stake to determine whether the power in issue involves a prima facie interference with liberty. In my view, it does. [58] The power at issue, as defined by the Crown, is the power to pursue a vehicle off the highway and detain the driver to conduct a random sobriety check on a private driveway, where there are no grounds to suspect an offence has been or is about to be committed. Here, the officer’s intention to stop the vehicle crystallized before the vehicle left the highway but the officer did not initiate the stop before the vehicle left the highway. [59] The liberty interests engaged in this appeal include those protected by s. 9 of the Charter . An individual confronted by the police ordinarily has the option to simply walk away: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 21. Detention is a limit on the broad right to liberty enjoyed both at common law and under the Charter : Grant , at para. 19. Section 9 of the Charter guarantees that when the state is permitted to interfere with individual autonomy, that power “will not be exercised arbitrarily”: Grant , at para. 21. A police power to detain necessarily interferes with an individual’s liberty interest. [60] The context of this liberty interference is particularly significant. It involves limiting the freedom of individuals to move about freely on their own driveways. In this way, the liberty interests at stake differ from cases that recognized the common law power to conduct random stops on public roadways, such as Dedman and its progeny. Certainly, driving – whether it is on public or private property – remains a licensed activity subject to regulation and control in the interest of safety. This qualifies the relevant liberty interest. [61] However, I am satisfied that an individual has greater liberty to do as they wish at home than they do on a public highway. This liberty must be considered against the backdrop of one’s reasonable expectation of privacy on their own private property. This privacy interest has long been considered paramount, with roots tracing back to the provenance of the common law: see Semayne’s Case (1604), 77 E.R. 194, and R. v. Tessling , 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 13-16, 22. [62] The fact that driving is a regulated activity must be balanced against the heightened liberty interest at one’s own private property. Driving on highways is a highly regulated activity, and drivers expect that the rules of the road will be enforced. By contrast, at home, the individual has no expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter onto their driveway and arbitrarily detain them. [63] I am satisfied that the asserted police power represents a prima facie interference with the above-noted liberty interest. (c) The Random Stop on Private Property Falls Within the General Scope of the Duty to Prevent Crime and Protect Life and Property [64] In this case, the asserted police power falls within the general scope of the duties to prevent crime and protect life and property. Police officers have broad duties in relation to the public, as reflected in s. 42 of Ontario’s Police Services Act , R.S.O. 1990, c. P. 15. Included within these duties, is “the preservation of the peace, the prevention of crime, and the protection of life and property”: Dedman, at p. 32. The power exercised in this case can be conceptualized as an extension of the police duties to prevent crime (impaired driving) and to protect life and property (the harms associated with impaired driving). Pursuing drivers off the highway onto private property to conduct random sobriety checks is related to these duties. The carnage of impaired driving knows no bounds when it comes to the difference between public and private property. (d) The Expansion of Power is Not Reasonably Necessary [65] Having met the requirements of the first stage, the inquiry now turns to the second branch of the ancillary powers doctrine. [66] There can be no doubt that impaired driving is a serious problem that demands innovative strategies to deter and detect the dangers posed to the public. It is clearly important to the public good that the police perform their duties in this regard. But in my view, the Crown has not met its onus of demonstrating that pursuing and detaining an individual on their own private property without any suspicion of wrongdoing is reasonable or necessary to pursue this objective. [67] There are many less intrusive, Charter compliant means of enforcement at the disposal of police in combatting impaired driving. For example, police have: (1) the common law power to conduct Reduced Impaired Driving Everywhere (“R.I.D.E.”) programs; (2) the statutory power under the HTA to stop drivers without any grounds for the purpose of checking their sobriety, so long as the statutory preconditions are met; and (3) the common law power to stop a driver for an investigative detention based on reasonable suspicion. [68] Considered in light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion on liberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonably necessary. The police have extensive powers to combat impaired driving, and it is difficult to see the need for the courts to fill a legislative gap in this respect. The police can conduct a random stop under s. 48(1) as soon as the vehicle enters the highway. They also have the option to observe the driver without detaining them, and based on those observations, develop a reasonable suspicion that would give them a basis to detain. [69] I note that a key reason why random stops were considered justified in Dedman , Hufsky , and Ladouceur is because of their deterrent function. In those cases, the court reasoned that an expectation of being randomly stopped by police on highways would deter people from driving under the influence: Dedman , at pp. 35-36; Hufsky , at pp. 636-637, Ladouceur, at p. 1284. Stated otherwise, the arbitrary nature of the stop was justified and necessary for its deterrent purpose. It is not clear that adding random stops on private property enhances the deterrent function of these stops in any meaningful way. [70] The Crown argues, and the minority accepts, that declining to authorize this police power will lead to an absurd consequence: drivers will be able to flee to private property to escape the enforcement of highway laws. In my view, this concern is misplaced. This is not a case of escape: there is no suggestion that the respondent’s actions were an artifice designed to evade police. In a true case of escape, the police may well have the authority to continue pursuing that person. It is important to bear in mind that the question is whether the police are entitled to stop someone on private property without any cause for suspicion. [71] The police officers in this case did not immediately stop the respondent after forming the intention to conduct a random stop to determine whether or not there was evidence to justify making a demand. They followed the respondent for about a minute as he made a turn and then another turn into his driveway. The police lights were not activated until the respondent was safely on his driveway. [72] Certainly, drivers should not be entitled to escape onto private property to avoid culpability. However, police officers should not be allowed to follow drivers onto private property to investigate their driving where there are no grounds to suspect any wrongdoing. [73] A police officer may choose to follow a driver along a highway to see if the manner of driving gives rise to a reasonable suspicion that the driver is intoxicated. Alternatively, the police officer may immediately stop the driver to see if there is evidence to support making a demand.  However, where there is no indication from the manner of driving that the driver is intoxicated, police officers should not be entitled to follow a driver, after forming a crystallized intention to effect a stop, and wait to do so until after the driver has entered onto private property. This would allow the police to enter private property and detain people based on a claimed prior intention to stop the car, formed in the absence of any actual suspicion of impairment. The potential for abuse of such a power dictates against the recognition of the existence of such a power. [74] When considering whether an expansion of a police power is reasonably necessary, caution must be taken when it comes to low visibility encounters with police, which may leave some marginalized individuals at particular risk: Grant , at para. 154. In its role as an arbitrator between the state and individual liberty, the court must remain vigilant of the unfettered expansion of police powers. [75] I note as well that the proposed police power would be difficult to review. The random nature of the stops means that the power to detain “would generally not result in the laying of charges, [and] the affected individuals would often have no forum to challenge the legality” of the detention: Fleming , at para. 84. Further, since the valid exercise of the proposed police power depends entirely on whether, in the officer’s own mind, the officer intended to stop the vehicle before it pulled off the highway, judicial oversight of this power could prove challenging. [76] While the liberty interests at stake are qualified by the driving context, randomly detaining an individual on their own driveway is a non-trivial interference with liberty. In this case, the officers testified that the purpose of the stop was to conduct a random sobriety check. At the time of the stop, the driver was no longer on a public highway, nor was he even operating the motor vehicle. He had reached his destination – his home. He had parked the UTV on his private driveway, and he was standing outside the vehicle. It is undisputed that at this point the officers had no reason to think he was impaired, nor did they have reasonable suspicion to believe that an offence was being, or had been, committed. Nor was there any sign of a further driving issue. [77] I am satisfied that the proposed expansion of police power is not reasonably necessary and thus fails under the second branch of the ancillary powers doctrine. (3) Did the police stop breach the Charter? [78] Given my conclusion that police did not have the authority to randomly check the sobriety of the respondent on his private property, the stop was unlawful. Therefore, the stop breached the respondent’s s. 9 rights. The next question is whether the evidence obtained in the course of the Charter breach should be excluded under s. 24(2). (4) Should the evidence be excluded under s. 24(2) of the Charter ? [79] The trial judge did not find a Charter breach and did not conduct an analysis under s. 24(2). On appeal, the summary conviction appeal judge found a s. 9 breach, conducted a s. 24(2) analysis, and excluded the evidence. For the reasons that follow, I am of the view that the summary conviction appeal judge was correct in his conclusion under s. 24(2). The evidence was rightly excluded. [80] Section 24(2) of the Charter states that: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [81] Here, there is no question that the evidence was obtained in a manner that breached the respondent’s s. 9 rights. It was only after the police followed the respondent onto his property and effected the arbitrary stop that they noticed indicia of impairment. [82] Where it is found that evidence was obtained in a manner that infringed an individual’s Charter right, the court must determine whether the admission of the impugned evidence would bring the administration of justice into disrepute. The test was summarized by the Supreme Court in Grant , at para. 71: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. [83] The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [84] In addressing the first factor, the court must evaluate the seriousness of the state violation, with an eye to how the conduct bears on public confidence in the rule of law and its processes. While I am not prepared to find that the police acted in bad faith, their conduct in this case was brazen in the sense that they pursued the respondent onto his own private property when they had neither the statutory nor common law authority to do so. [85] I reject the Crown’s argument that the summary conviction appeal judge failed to consider that the law on this point was unsettled. Any lack of clarity in the law on this point does not give officers free licence to assume that they have authority. Moreover, the law around arbitrary detentions is well settled, and the officers ought to have been aware that they were entering dangerous territory by effecting a random stop, off the highway, without any suspicion of wrongdoing. I am reminded of the words of Trotter J.A., albeit in a different context, in R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 72: “This situation called for caution, not hubris.” The state violation was serious, and the court would do well to disassociate itself from this overreach by law enforcement. [86] In assessing the second factor, the court must evaluate “the extent to which the breach actually undermined the interests protected by the right infringed”: Grant , at para. 76. The protected interests include liberty. I am of the view that the impact was significant, as the police questioned the respondent and obtained evidence against him in the course of his unlawful detention. This occurred on his private property, where he had a reasonable expectation of privacy. I am satisfied that the breach significantly undermined the respondent’s protected interests. As noted in Grant, at para. 77, the more serious the incursion, “the greater the risk that admission of the evidence would bring the administration of justice into disrepute.” [87] On the third and final factor, the court must determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant , at para. 79. This means that the court must be alive both to “the negative impact of admission of the evidence on the repute of the administration of justice” and to “the impact of failing to admit the evidence”: Grant, at para. 79 (emphasis in original). [88] In conducting the analysis under this factor, the court must balance the factors in favour of admission and the factors in favour of exclusion of the evidence. [89] In addressing the factors in favours of admission of the evidence, the following facts have to be considered: (1) there is no evidence the police officers were acting in bad faith; (2) if the stop had occurred thirty seconds earlier, while on the highway, there would be no issue; (3) the respondent was intoxicated and there is a public interest in combatting drinking and driving; and (4) the evidence obtained is reliable and essential to the Crown’s case. These factors weigh in favour of inclusion. [90] The factors in favour of exclusion are as follows: (1) the police could have stopped the respondent 30 seconds earlier, while he was still on the highway, but they did not; (2) while the respondent was driving on the highway, the police did not observe any indicia of impairment to justify forming a reasonable suspicion to investigate him, nor was there any evidence of another HTA infraction; [2] and (3) the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment, overrides the public interest in the admission of evidence. [91] While there is no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, society has a vital interest in having a justice system that is above reproach. As I alluded to above, officers are not above the law, and conduct that tests the limits of their authority should not be condoned by this court. On balance, I agree with the summary conviction appeal judge that inclusion of the evidence would bring the administration of justice into disrepute. I would exclude the evidence and uphold the respondent’s acquittal. F. DISPOSITION [92] I would dismiss the appeal. “M. Tulloch J.A.” “I agree. K. Feldman J.A.” Hourigan J.A. (dissenting): A. INTRODUCTION [93] Impaired driving is a scourge in our society. Despite concerted efforts for approximately the last 40 years to eradicate the practice, drivers continue to operate motor vehicles while impaired by alcohol or drugs. They selfishly and recklessly engage in this high-risk behaviour and leave in their wake death, injuries and destruction. Given this pressing societal concern, the Supreme Court has ruled that the random stopping of vehicles on public streets by the police is constitutionally permissible because such a minimal restriction of liberty is demonstrably justified in a free and democratic society: see R. v. Ladouceur , [1990] 1 S.C.R. 1257. [94] The case at bar involves an egregious example of impaired driving. When the police were able to catch up with the respondent and ask him whether he had been drinking, according to one of the police officers involved, he offered an honest but frightening answer, “I’ve had a few beers. Well, I might've had 10." After his arrest, but before the police were able to test his blood-alcohol level, the respondent vomited due to his excessive alcohol consumption. When the tests were ultimately administered, they showed blood alcohol levels well above the legal limit. [95] Yet, according to the majority reasons, the respondent is immune from investigation or prosecution because he pulled onto the shared driveway that leads to his parents' house and a commercial establishment (a store). In effect, by pulling over to private property, the respondent moved into an area of legal sanctuary. The policy implications of the majority's decision are both evident and far-reaching. [96] The sanctuary finding means that an impaired driver who the police intended to stop on a public highway is free to pull onto private property when the driver spots a police cruiser. This property need not be a place to which they have any connection or even a legal right to visit. It matters not that a police officer wished to conduct the random stop on a public highway. As long as the driver gets their vehicle onto a stretch of private property, sanctuary applies, and they are "home free." For drivers who are in the process of being pulled over as part of a random stop, if they can pull onto private property as the safe spot to stop their vehicle, arguably they too will have reached sanctuary. In many cases, this sanctuary will be fleeting, as the impaired driver will stay on the private property only for as long as the police cruiser is in the area. Once it is out of sight, the driver will be free to re-enter the public highway and continue to endanger public safety. [97] The majority engages in a strict construction of the powers of a police officer to undertake a random traffic stop under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“ HTA ”). That construction leads to its sanctuary finding, which prevents the police from effectively carrying out their duties. This is a statutory interpretation that is contrary to the public safety policy imperative that animates the HTA . [98] The majority’s approach also stands in sharp contrast to the reasoning of the Court of Appeal for Saskatchewan and the Ontario Superior Court in nearly identical cases: see R. v. Anderson , 2014 SKCA 32, 433 Sask. R. 255, affirming 2013 SKQB 219, 422 Sask. R. 130; R. v. Alrayyes , 2013 ONSC 7256. Those courts took a purposive and common-sense approach to the issue and rendered decisions that facilitated the public safety purposes of the relevant legislation. They permitted the police to conduct a random stop of a driver on private property in restricted situations where the police formed an intention to make a stop while the vehicle was on a public highway. [99] I also cannot accede to the majority’s conclusion that the police did not have the common law power to conduct a random check. Under the ancillary powers doctrine, the common law has long been used to fill gaps in legislation. As the Supreme Court has stated in the context of legislation enacted to combat impaired driving, the common law should be used to provide sufficient flexibility in an enforcement scheme to ensure that it is effective: R. v. Orbanski ; R. v. Elias , 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 45. [100] Finally, this case is another example of the cursory application of the test mandated by R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, in determining whether evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms . The appeal judge's reasons on this critical issue are one paragraph in length, and are factually and legally flawed. As will be discussed, the focus of s. 24(2) is societal; it aims to preserve the integrity of the justice system in a manner that is reflective of societal values. Courts should not lose sight of the fact that the Grant test requires careful consideration of its lines of inquiry to determine whether, considered objectively, the overall repute of the justice system will be adversely impacted by the admission of the impugned evidence. When courts do not engage in a meaningful s. 24(2) analysis and automatically exclude evidence because there has been a Charter breach, they fail in their duty to protect the integrity of the justice system. In this case, on a proper application of the Grant test, the evidence should not have been excluded. B. FACTS [101] On March 25, 2016, at approximately 12:30 a.m., Constable Jeff Lobsinger, who was on general patrol with Constable Laura Hicks, spotted an all-terrain vehicle (“ATV”) parked outside a convenience store at the Thessalon First Nation. The respondent, Walker McColman, was the driver. [102] As the ATV left the parking lot, Constable Lobsinger directed Constable Hicks to U-turn the police cruiser and followed the ATV on the public highway. The trial judge found as a fact that while the respondent was driving on a public highway, Constable Lobsinger decided to conduct a random sobriety stop pursuant to s. 48(1) of the HTA . At trial, the officer fairly conceded that there were no signs of impaired driving that otherwise warranted a stop. [103] When the officers caught up to the respondent, he had pulled off the public highway and stopped in the middle of a driveway that served a commercial property and the respondent’s parents’ home. There was no suggestion at trial that the respondent pulled into the shared driveway to avoid the police. The police activated the cruiser’s roof lights and approached the respondent’s vehicle. From the time of spotting the vehicle to the time of the stop, approximately one minute had elapsed. [104] At the stop, Constable Lobsinger spoke to the respondent and observed obvious signs of impairment, including trouble standing despite hanging on to the side of the vehicle, a strong odour of alcohol, bloodshot eyes, and mumbling speech. As noted above, according to Constable Lobsinger, the respondent told him that he had consumed excessive amounts of alcohol that evening. Constable Lobsinger arrested the respondent for impaired driving at 12:36 a.m. A breathalyzer test was delayed at the police station because the respondent vomited due to his alcohol consumption. Two breathalyzer tests were eventually conducted, which recorded his blood alcohol concentration level at 120 and 110 milligrams of alcohol in 100 millilitres of blood. C. PROCEEDINGS BELOW [105] The respondent brought an application alleging breaches of ss. 8, 9, and 10(b) of the Charter . That application was dismissed by the trial judge, who found in regard to the alleged s. 9 breach that Constable Lobsinger formed his intention to stop the respondent on the public highway and, as a result, the officers’ authority under the HTA to stop the vehicle continued after the respondent turned onto the shared driveway. In reaching this conclusion, the trial judge rejected the defence theories that Constable Lobsinger did not subjectively intend to stop the respondent on the highway for a sobriety check and was instead motivated by animus due to an interaction with the respondent some three years earlier. The trial judge did not consider any common law authority to stop the vehicle. [106] The respondent was found guilty of both impaired driving and over 80 operation of a motor vehicle. The trial judge conditionally stayed the impaired driving conviction under s. 253(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46, and sentenced the respondent to the mandatory minimums of a $1,000 fine (plus a $300 victim surcharge) and a 12-month driving prohibition. [107] On appeal to the Summary Conviction Appeal Court, the appeal judge held that the officer had no statutory or common law authority to stop the respondent on the shared driveway. Consequently, he found a breach of s. 9 and then excluded all evidence that resulted from the sobriety check under s. 24(2). After excluding the evidence, he acquitted the respondent. D. SUMMARY OF THE ISSUES [108] As I will explain, I believe that the appeal judge erred in his statutory interpretation of the HTA . Specifically, he failed to take a purposive approach to the legislation and instead interpreted it in a manner contrary to the public safety protections that underlie the statute. I am also of the view that the appeal judge erred in his consideration of the officers’ common law powers, and would find that the officers had the common law power to conduct the stop if they were not permitted to do so under the HTA . Finally, the appeal judge engaged in a cursory and error-filled s. 24(2) analysis, which this court owes no deference. On a proper Grant analysis, the evidence should not have been excluded. Each of these issues will be considered in turn below. E. ANALYSIS (1) Power Under the HTA (a) Section 48(1) of the HTA [109] The statutory authority for random sobriety checks is found in s. 48(1) of the HTA , which provides: 48(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code (Canada). [110] The Supreme Court found that a provision in a previous iteration of the HTA requiring motorists to stop when directed to do so by a police officer was constitutionally valid under s. 1 of the Charter because random sobriety checks are reasonably and demonstrably justified in a free and democratic society. In reaching this conclusion, the court found overwhelming evidence of the direct connection between serious accidents and driving under the influence of alcohol or drugs: Ladouceur , at p. 1282. It also found that the absence of spot checks means that “impaired drivers could easily avoid the consequences of their dangerous misconduct”: Ladouceur , at p. 1285. [111] Instructive for present purposes are the court's comments regarding the limited nature of the privacy intrusion occasioned by these stops. The court noted that driving is a licensed activity, the stops are relatively short, the driver is minimally inconvenienced, and the officer's investigation is restricted to the purpose of the check: Ladouceur , at pp. 1285-87. [112] The Crown submits that the appeal judge erred in taking a narrow and restrictive interpretation of the random stopping powers of the police under the HTA . It argues for a police power under the HTA to check sobriety on private property provided that the following elements are present: (i) the police officer observes the driver operating on a highway; (ii) the police officer forms the intention to stop the driver for a sobriety check while the driver is still on the highway; and (iii) although the driver leaves the highway and enters private property before the stop is conducted, the events constitute one continuous investigative transaction. It is necessary to undertake a statutory interpretation analysis of the HTA to consider this submission. (b) Principles of Statutory Interpretation [113] The law regarding the correct approach to statutory interpretation is well settled and need not be considered in detail here. As Côté J. recently stated in 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 6: [6] Indeed, this Court has reiterated on numerous occasions that the modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21). See also Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. [114] Proper statutory interpretation cannot be founded on the wording of the legislation alone: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. Watt J.A. in R. v. Stipo , 2019 ONCA 3, 144 O.R. (3d) 145, at para. 176, described the preferred statutory interpretation approach this way: [176] This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu , at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior , 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20. [115] Thus, even where the words of the statute appear to be clear on their face, the reviewing court must examine whether the words truly reflect the intention of the legislature. It is well established in the jurisprudence of this court and the Supreme Court that it is necessary to consider the entire context before settling on what appears, at first blush, to be the plain meaning of a legislative provision: see Solar Power Network Inc. v. ClearFlow Energy Finance Corp. , 2018 ONCA 727, 426 D.L.R. (4th) 308, at para. 75, leave to appeal refused, [2018] S.C.C.A. No. 487. See also Keatley Surveying Ltd. v. Teranet Inc. , 2019 SCC 43, 437 D.L.R. (4th) 567, at para. 96, per C ô t é and Brown (dissenting); Rooney v. ArcelorMittal S.A. , 2016 ONCA 630, 133 O.R. (3d) 287, at para. 13; and Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc. , 2014 ONCA 696, 377 D.L.R. (4th) 369, at para. 37. [116] To be clear, I do not take issue with the conclusion of the appeal judge and the majority in this court that, at first blush, an operator of a motor vehicle on private property does not meet the definition of a driver in the HTA because a driver is defined as a person who drives a vehicle on a highway, and the definition of a highway does not include private property. The difficulty I have with their interpretation is that after considering the plain meaning of the words used in the HTA , they stopped their analysis. That is a legally unsound practice when undertaking statutory interpretation. It divorces context and purpose from the exercise and may lead, as in this case, to a restricted analysis that reaches a conclusion contrary to the legislative purpose underlying the legislation. (c) Purpose of the HTA [117] The purpose of the HTA has been canvassed in this court’s jurisprudence. Doherty J.A., writing for a five-judge panel in R. v. Hajivasilis , 2013 ONCA 27, 114 O.R. (3d) 337, at paras. 50-51, described the purpose of the HTA as follows: [50] Bearing that caution in mind, the case law does identify in broad terms the object of the HTA . In R. v. Raham (2010), 99 O.R. (3d) 241, [2010] O.J. No. 1091, 2010 ONCA 206, at para. 33, the court refers to the HTA as "public welfare legislation designed to protect those who use the roads of the province”. Earlier, in Ontario (Hydro-Electric Power Commission) v. Bruell Float Service Ltd. (1974), 3 O.R. (2d) 108, [1974] O.J. No. 1841 (C.A.), at p. 114 O.R., aff’d on other grounds, [1976] 1 S.C.R. 9, [1975] S.C.J. No. 22, this court said: [T]he general purpose of the Highway Traffic Act is the regulation of the use of the highways by persons on foot and in vehicles; that is not to say that certain provisions of the statute will not apply to the use of vehicles other than on a highway, but in an over-all sense the Legislature is directing itself to the regulation of vehicular traffic and not to commerce conducted in or by means of vehicles. [51] In my view, regulation to protect the public using the province's roads is not necessarily limited to roads that fall within the meaning of "highway" in the Act. Public safety concerns might well demand regulation in respect of traffic in large private parking facilities even though those facilities are not used by the general public for "the passage of vehicles". Similarly, public safety concerns might well demand the regulation of private parking facilities as incidental to regulations maintaining the safety of the "highway" leading into and out of that facility. [118] Both the majority and the appeal judge ignore the purpose of the HTA . Instead, they focus only on what they say is the plain meaning of the statute's text. That methodology violates s. 64 of the Legislation Act , 2006, S.O. 2006, c. 21, Sched. F, which requires that "[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects." (d) R. v. Anderson [119] Contrast the majority’s approach with the reasoning of the Court of Queen’s Bench for Saskatchewan and the Court of Appeal for Saskatchewan in Anderson. In that case, a police officer observed no driving infractions, mechanical issues, or any other noteworthy activity, but decided to stop a vehicle to check the driver’s sobriety. After the officer formulated the intention to stop the vehicle, but before doing anything to carry out the stop, the accused turned off the public highway and entered a private lot. The officer followed and activated his emergency lights as he entered the private lot. [120] In Anderson , the Saskatchewan equivalent of the HTA was considered, being The Traffic Safety Act , S.S. 2004, c. T-18.1, which provided, in part: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (a) is readily identifiable as a peace officer; and (b) is in the lawful execution of his or her duties and responsibilities. (2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (a) require the driver to give his or her name, date of birth and address; (b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test. [121] The trial judge found that although the investigating officer formulated the intention to stop the accused’s vehicle pursuant to s. 209.1 while he was operating his motor vehicle on a public highway, the stop was arbitrary because the officer did not take steps to carry out the stop before the accused crossed onto private property. On appeal to the Court of Queen’s Bench for Saskatchewan, that decision was overturned. Popescul C.J.Q.B., reasoned, at paras. 31-34: [31] The defendant was on a public highway. The investigating officer did form the intention to check the defendant for legislatively authorized purposes prior to him turning onto a private lot. The police must be allowed "sufficient flexibility to be effective”. [32] Further, entering onto the private lot to complete the check stop was reasonably necessary having regard to the nature of the liberty interfered with and the public purpose served. The interference was minimal. In the event, for example, that the defendant had not been driving after consuming alcohol, the episode would have been over. [33] The public purpose served is significant. Giving the police the authority to stop vehicles randomly in order to, among other things, check for sobriety is intended to reduce the carnage on our roads by preventing and deterring those who might be inclined to drive after drinking too much alcohol. [34] To restrict that police power merely because a driver happens to have turned onto a private lot does not make sense or advance the administration of justice. As recognized by the trial judge: [30] ... This is not to say that a driver becomes untouchable and immune from investigation and police inquiries by simply breaking the plane of the goal line, so to speak, and crossing onto private property. ... . I agree. There is no “home free” zone in circumstances such as this. [122] The Court of Appeal for Saskatchewan affirmed the decision of the Queen’s Bench. They did not give effect to the same argument advanced in this case, viz. , that the power of the police officer to stop the vehicle was eliminated once it entered private property. In rejecting that argument, the court reasoned, at paras. 24-25, as follows: [24] It is a fact found by the trial judge that the police officer formed the intention to stop the appellant prior to the appellant turning onto private property. In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete that lawful activity. Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, was reasonably necessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference. [25] To decide otherwise would encourage drivers to seek the sanctuary of private roadways if they suspected they were about to be stopped by police. In the circumstances of this case, where a police officer has formed the intention to stop a driver on a public highway pursuant to s. 209.1 of The Traffic Safety Act , the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation. [123] In my view, the Court of Appeal for Saskatchewan took the correct approach to the issue before this court. It considered not only the words of the legislation, but the purpose of the statute and the policy implications of simply giving effect to what, at first blush, appears to be the plain meaning of the text. Similarly, the HTA must be interpreted in a manner that is consistent with its purpose. (e) R. v. Alrayyes [124] The decision of the Court of Queen’s Bench for Saskatchewan in Anderson was followed by Justice Giselle Miller, sitting in Summary Conviction Appeal Court, in Alrayyes . [3] This case is not mentioned in the reasons of the appeal judge or the majority, but it has facts and issues that are very similar to the case at bar. Given these similarities, a detailed discussion of the case is warranted. [125] In Alrayyes , a police officer observed the accused driving a motor vehicle leaving the parking lot of a strip mall. The officer followed the vehicle, watching as it entered the highway, drove some distance, then exited the highway into a gas station. The trial judge found that the officer formed the intention to stop the vehicle pursuant to s. 48 of the HTA before the vehicle pulled off the highway into the gas station, but delayed signalling the vehicle to stop as he was at an intersection and did not want to confuse other drivers. Before the officer was able to activate the lights on his police cruiser at a safe location, the accused’s vehicle had already turned into the gas station. The officer carried out the random stop at the gas station. [126] Thus, the circumstances are nearly identical to the situation in the present case. The police officer formed an intention to conduct a random stop of a driver on a public highway, and before he was able to activate his emergency lights, the driver pulled onto private property. Miller J. then put the issue in its proper legal context as follows: [12] It is clear from the Supreme Court of Canada decision in R. v. Mansour , [1979] S.C.J. No. 77, that a "highway" under the Highway Traffic Act does not include a parking lot. [13] The Ontario Court of Appeal in R. v. Hajivasilis , [2013] O.J. No. 253, recently considered whether all provisions of the Highway Traffic Act are applicable only to "highways." The Court concluded that each provision has to be considered according to the way in which it is worded. Doherty, J.A. indicated at paragraph 13 that, for example, a "driver" under s. 48 of the Highway Traffic Act means "‘a person who drives a vehicle on a highway’. A person driving a motor vehicle on a private parking lot is at least arguably not a driver for the purposes of the HTA .” [14] Both the Appellant and the Respondent agree that paragraph 13 of Hajivasilis is obiter, and that the word "arguably" leaves open whether a "driver" may be stopped pursuant to s. 48 of the Highway Traffic Act once the driver has left a "highway" on which he or she was previously observed to be driving, and entered onto private property. [21] There is no issue that if police have reasonable grounds to believe an offence is being committed they may pursue a vehicle, and the driver of that vehicle onto private property in order to continue their investigation and/or to effect an arrest if in hot pursuit. R. v. Macooh , [1993] 2 S.C.R. 802; R. v. Boughen , [2002] O.J. No. 4060 (C.A.) There is no suggestion that either situation existed here. [22] There is no issue that reasonable grounds to stop a vehicle, except under the authority of s. 48(1) of the Highway Traffic Act , are necessary otherwise the detention resulting from the stop would be arbitrary and therefore contrary to s. 9 of the Charter . [23] There is no issue that s. 48(1) of the Highway Traffic Act does not give police authority to stop a vehicle being driven solely on private property. R. v. Campbell , [2009] O.J. No. 1534 (O.C.J.); R. v. Cordeiro , [2009] O.J. No. 4923; R. v. Tresham , [1998] O.J. No. 1744 (G.D.). [24] The question is whether s. 48(1) of the Highway Traffic Act authorises police, who have observed a vehicle to be driving on a highway, to effect a stop of that vehicle once it has entered onto private property. [127] Miller J. went on to summarize the parties' positions, which are similar to the submissions made on this appeal. The defence argued that since Ladouceur found that the power to randomly stop vehicles was only saved by s. 1 of the Charter as rationally and proportionally addressing the pressing and substantial concern in relation to the safe operation of vehicles on our highways, once the vehicle left the highway, that safety concern was no longer engaged. [128] The Crown argued that to require the police to stop a vehicle driving on a highway only while it remains on the highway would be illogical and contrary to the object of the HTA as "public welfare legislation designed to protect those who use the roads of the province" per para. 33 of this court’s decision in R. v. Raham , 2010 ONCA 206, 99 O.R. (3d) 241. [129] In the end, Miller J. agreed with the approach of the Court of Queen’s Bench for Saskatchewan in Anderson , and concluded, at para. 31, as follows: [31] [P]olice must be given reasonable flexibility in carrying out their duties. I am satisfied that if a vehicle is observed by police to be driving on a “highway” as defined by the Highway Traffic Act , their authority to stop that vehicle pursuant to s. 48(1) of the Highway Traffic Act does not come to an end simply because the vehicle enters onto private property. [130] I concur with her analysis and conclude that she interpreted s. 48(1) in a manner that ensured that the police power granted therein could be effectively used. (f) Purposive Interpretation [131] In my view, the interpretation favoured by the appeal judge and the majority in this court is contrary to the public protection purpose of the HTA . It allows motorists, like the respondent, to avoid the power of the police to conduct random stops by pulling their vehicle onto private property. The majority's sanctuary finding means that impaired drivers will be encouraged to drive onto private property any time they see a police cruiser in the area, even though a police officer formed an intention to conduct a random stop of them on a public highway. As noted above, the impaired driver need not have any connection to the private property, and in many cases, the sanctuary will be short-lived. [132] For drivers who are in the process of being pulled over as part of a random stop, s. 216(1) of the HTA requires them to pull over to a safe place. With the majority's sanctuary ruling, impaired drivers will undoubtedly select a spot on private property as the safe place to stop their vehicle. Once they have done so, they too will arguably have reached sanctuary and will be immune from investigation. Again, when the police cruiser leaves the area, they will be free to continue to put public safety at risk. [133] Can it credibly be argued that these results were what the legislature intended in enacting the HTA ? My view is that the sanctuary finding, which will inevitably endanger public safety, could not have been intended by a legislature passing a statute enacted to protect public safety. It is also essential to recognize that the Crown is not submitting that the random stop power should be expanded to private property in all situations. Its reasonable and sensible position is restricted to situations where the police officer formed the intention to make the random stop on a public highway, and the stop is carried out on private property as part of one continuous transaction. (g) Summary [134] In summary, I agree with the Crown’s interpretation of the HTA . It makes practical sense, gives effect to the legislature's intention, and provides sufficient flexibility for the legislation to be effective. I would adopt the Crown’s interpretation of the HTA and find that the officers in this case had the authority to make the stop on the shared driveway. (2) Common Law Power (a) Legal Principles [135] The Crown submits that if the respondent’s move to private property extinguished the police officers’ ability to conduct the check under the HTA , then the common law should fill the gap because the police should not be rendered powerless to make an already-intended lawful stop. There is no question that the common law can be adapted through the ancillary powers doctrine to fill legislative gaps: Fleming v. Ontario , 2019 SCC 45, 437 D.L.R. (4th) 220, at para. 42; R. v. Kang-Brown , 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 50. [136] The detention in the instant case is a prima facie interference with liberty and will be authorized under the ancillary powers doctrine if two requirements are met: (i) the police must have been acting within the general scope of a statutory or common law police duty; and (ii) the conduct in question must involve a justifiable exercise of police powers associated with that duty: Fleming , at para. 46. This test, which has long been employed in determining the validity of police action, was first articulated in the English case, R. v. Waterfield , [1963] 3 All E. R. 659. [137] In reviewing the second requirement - that the police conduct was justifiable - the court asks whether the police action is reasonably necessary for the fulfilment of the duty. This involves the consideration of three factors: (i) the importance of the performance of the duty to the public good; (ii) the necessity of the interference with individual liberty for the performance of the duty; and (iii) the extent of the interference with individual liberty: Fleming , at para. 47; R. v. MacDonald , 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37. [138] Molloy J. in R. v. Dillon (2006), 141 C.R.R. (2d) 1 (Ont. S.C.), undertook a comprehensive review of the law in this area in circumstances where the police investigated the driver of a vehicle sitting in the parking lot of a bar. She found that the officers had no power to investigate the vehicle under the HTA . In considering their common law powers, Molloy J. relied on the Supreme Court's decision in Dedman v. The Queen , [1985] 2 S.C.R. 2, in concluding that the police had the common law power to detain the accused for a spot check. Dedman , which involved a traffic stop under the “Reduce Impaired Driving Everywhere” (“R.I.D.E.”) program, was decided before the enactment of s. 48(1) of the HTA . Therefore, the validity of the random check in that case was dependent on whether the police had a common law power to stop the vehicle. [139] In Dedman , Le Dain J., writing for the court, held that there was common law authority to randomly stop a vehicle for the purpose contemplated by the R.I.D.E. program. His conclusion on the second branch of the Waterfield test, at pp. 35-36, was as follows: Because of the seriousness of the problem of impaired driving, there can be no doubt about the importance and necessity of a program to improve the deterrence of it. The right to circulate on the highway free from unreasonable interference is an important one, but it is, as I have said, a licensed activity subject to regulation and control in the interest of safety. The objectionable nature of a random stop is chiefly that it is made on a purely arbitrary basis, without any grounds for suspicion or belief that the particular driver has committed or is committing an offence. It is this aspect of the random stop that makes it capable of producing unpleasant psychological effects for the innocent driver. These effects, however, would tend to be minimized by the well‑publicized nature of the program, which is a necessary feature of its deterrent purpose. Moreover, the stop would be of relatively short duration and of slight inconvenience. Weighing these factors, I am of the opinion that having regard to the importance of the public purpose served, the random stop, as a police action necessary to the carrying out of that purpose, was not an unreasonable interference with the right to circulate on the public highway. It was not, therefore, an unjustifiable use of a power associated with the police duty, within the Waterfield test. [140] The decision of Molloy J. in Dillon was applied in R. v. Nield , 2015 ONSC  5730, leave to appeal refused, 2017 ONCA 722, 393 C.R.R. (2d) 314. There, the court was concerned with a situation where a police officer observed the accused running through a parking lot at 1:22 a.m. and hopping into the driver's seat of a vehicle. The officer followed the accused on a public highway and parked behind his vehicle when it stopped in a hotel parking lot. On the officer’s investigation of the accused in the parking lot, he determined that the accused had been drinking and made a demand for a breath sample. The accused failed the roadside test, and breathalyzer readings over the legal limit were subsequently recorded. [141] The trial judge in Nield found that the stop was arbitrary because the accused was no longer a driver under the HTA when he parked his vehicle. The trial judge excluded the evidence and acquitted the accused. On appeal to Fregeau J., sitting in the Summary Conviction Appeal Court, the appeal judge upheld the trial judge’s ruling regarding the HTA . However, he went on to find that the police officer was acting within his common law authority when he stopped and detained the respondent in the hotel parking lot. [142] Fregeau J. observed that in order to randomly detain a motorist without reasonable grounds for suspecting that person has committed a crime, the police must be acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle: Nield , at para. 43. He accepted Molloy J.’s conclusion that assuming the police had a valid common law power to detain the accused for investigative purposes, there is no principled reason to find that such power was lost because the detention occurred in a parking lot adjacent to a roadway from which he had just left: Nield , at para. 50. (b) Application of Legal Principles [143] There can be little doubt that the first requirement of the ancillary powers doctrine has been satisfied in this case. A police officer's general scope of duties includes preserving the peace, preventing crime, and protecting life and property: Fleming , at para. 69. Where, as in the instant case, there has been a finding of fact that the purpose of the stop was to ensure that a driver was not impaired, the police are acting in the exercise of a lawful duty: Dillon , at para. 49. [144] Turning to the second requirement, the effort to prevent impaired driving is unquestionably important to the performance of the duty to the public good. The significant role of random stops in combating impaired driving has been accepted since Dedman and has been recognized in subsequent Supreme Court jurisprudence, including in Ladouceur , at p. 1282, and R. v. Hufsky , [1988] 1 S.C.R. 621, at p. 636. [145] In undertaking his analysis on the second requirement, the appeal judge found that public safety was no longer a relevant consideration because the respondent had reached the driveway of his residence, and there was no evidence that he intended to return to the highway. I agree with the Crown that this finding is problematic for three reasons. [146] First, it ignores the public benefit from the deterrent effect of random sobriety checks. There is an overall benefit to public safety when drivers cannot avoid random sobriety checks by simply leaving the highway. [147] Second , the appeal judge failed to properly apply the evidence from the trial in undertaking his analysis. That evidence did not support that the police knew that the respondent had reached his residence at the time of the stop. On the contrary, Constable Lobsinger testified that he believed that the respondent had entered the driveway of another convenience store. [148] Third, this argument - that any public safety concern ends when a driver reaches private property - has been rejected in the jurisprudence: see Nield , at paras. 46-50. Further, as Rosenberg J.A. stated in R. v. Lotozky (2006), 81 O.R. (3d) 335 (C.A.), at para. 37, the police do not need to wait and see if a driver on private property will return to the highway: [37] [U]ntil the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street. [149] Regarding the necessity of the interference with individual liberty for the performance of the duty, it is obvious that a vehicle must be stopped, and that the officer must have some interaction with the driver for the screening process to be effective. In this regard, the comments of Charron J. in Orbanski , at para. 45, are apt: [45] The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.…The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). [150] Finally, a random stop occasions minimal interference with individual liberty. Driving is not a fundamental liberty, like the ordinary right of movement of the individual. Rather, it is a licenced activity that is subject to state control to protect life and property: Dedman , at p. 35. Further, as noted by the Supreme Court in Ladouceur , at pp. 1286-87, random stops are brief, minimally inconvenience the driver, and are restricted to the purpose of the check. [151] In my view, if the officers did not have authority under s. 48(1) of the HTA to make the stop on the shared driveway, they had the common law authority to do so. This is an instance where any gaps in the legislative scheme should be filled by the common law to ensure that the screening regime is effective. (3) Section 24(2) of the Charter (a) Appeal Judge’s Analysis [152] The trial judge did not undertake a s. 24(2) analysis because he found no Charter violation. The appeal judge’s s. 24(2) analysis, in its entirety, is as follows: The actions of the police are serious. They pursued the appellant onto private property when they had neither the statutory nor common law authority to do so. The Charter -protected interest to be protected is one of privacy. The expectation of privacy on one’s own property is a high one. As to the third test set out in Grant , clearly society has an interest in having the matter adjudicated on its merits. Having said that, when all three factors are balanced, the balance favours the exclusion of evidence. [153] This cursory s. 24(2) analysis is consistent with a pattern we see in this court where lower courts undertake a detailed review of whether there has been a Charter breach and then treat the Grant test as a required, but ultimately meaningless, ritual to be undertaken on the road to the inevitable exclusion of evidence. In short, it is not sufficient to recite the lines of inquiry from Grant , make some conclusory statements, and then exclude the evidence. As I will explain, the proper application of the Grant lines of inquiry is as important as the analysis of whether there has been a Charter breach. (b) Purpose of s. 24(2) [154] It is helpful at this juncture to take a step back and consider the purpose of s. 24(2). It was designed to ensure that the Charter appropriately balanced individual and societal interests when it came to the exclusion of evidence obtained through state misconduct. [155] Prior to the enactment of the Charter , Canadian courts rarely excluded evidence, regardless of the extent of police misconduct in obtaining the same. As one commentator put it, “[t]he court’s search for the truth trumped any interest in procedural fairness or in protecting the rights of an accused”. [4] Consistent with this jurisprudence, an early draft of the Charter contained an express provision that prohibited the exclusion of evidence on the basis that it was obtained pursuant to a Charter breach. Some members of the legal community protested this draft provision. Ultimately, a Special Joint Committee of the House of Commons and the Senate determined that an exclusion clause should be included in the Charter . [5] [156] In creating an exclusion clause, the drafters of the Charter developed a compromise approach, which balanced individual and societal rights. Dickson C.J. described it this way in R. v. Simmons , [1988] 2 S.C.R. 495, at p. 532: The final question in this appeal is whether the evidence should be excluded under s. 24(2) of the Charter . As Lamer J. noted in R. v. Collins , [1987] 1 S.C.R. 265, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States , 232 U.S. 383 (1914), and Mapp v. Ohio , 367 U.S. 643 (1961)). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray , [1971] S.C.R. 272). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute. The person seeking to exclude the evidence bears the burden of persuading the Court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, "dispassionate and fully apprised of the circumstances of the case" ( Collins , supra , at p. 282). [157] Clearly, in rejecting the American approach, the drafters of the Charter wanted to avoid situations where serious charges were not determined on the merits because of technical, minor, or good faith mistakes by police. Thus, when judges undertake a s. 24(2) analysis, their role is to uphold the delicate balance that underlies the Charter . They abrogate that responsibility when they default to the American approach rejected by the drafters of the Charter . Judges must not lose sight of the fact that s. 24(2) not only provides an effective remedy for the accused, it also serves to preserve the integrity of the justice system in a manner that is reflective of societal values. (c) The Grant Test [158] It is also helpful to consider what the Supreme Court was trying to achieve in Grant when it formulated a new test for the exclusion of evidence under s. 24(2). It has been twelve years since the decision was released, and cases like the one at bar suggest that the thinking behind the test has become obscured over time. [159] Prior to Grant , the jurisprudence under s. 24(2) had developed rigid rules for the exclusion of certain types of evidence: see R. v. Collins , [1987] 1 S.C.R. 265; R. v. Stillman , [1997] 1 S.C.R. 607. The court in Grant found that these rules were inconsistent with s. 24(2), noting, at para. 65: [65] It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. [160] A new approach was necessary to ensure that the circumstances of the Charter breach were fully explored and weighed in determining whether to exclude evidence. The court stressed that s. 24(2) is aimed at protecting the integrity of, and public confidence in, the justice system. It instructed that a court considering s. 24(2) must look objectively at whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the impugned evidence: Grant , at para. 68. [161] Consistent with the comments of Dickson C.J. in Simmons , the court in Grant emphasized, at para. 70, that at its core, this exercise is societal in its focus: [70] Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [162] Under Grant , the court is mandated to consider the interest of society in having an adjudication on the merits. This interest is balanced against the seriousness of the Charter -infringing state misconduct, and the impact of the breach on the Charter -protected interests of the accused. It is not every Charter breach that trumps the legitimate societal interest in seeing criminal cases determined on their merits. The Grant analysis is designed to determine whether a Charter breach is one that is excusable in the circumstances, or one that requires the court to dissociate itself with the state misconduct because to do otherwise would bring the administration of justice into disrepute. [163] The point I am making is that Grant calls for a thoughtful and nuanced balancing of factors. A judge on a s. 24(2) application is required to carefully review the circumstances of the case and consider the relevant lines of inquiry in undertaking the ultimate balancing exercise to determine whether the evidence should be excluded: see R. v. Shinkewski , 2012 SKCA 63, 399 Sask. R. 11, at para. 38. To properly complete this exercise, the court should engage in a methodical analysis of all of the lines of inquiry and should not let one factor trump or overwhelm the others: R. v. Archambault , 2012 QCCA 20, 307 C.C.C. (3d) 151, at para. 69, leave to appeal refused, [2012] S.C.C.A. No. 426; R. v. Fan , 2017 BCCA 99, 352 C.C.C. (3d) 280, at para. 68. By that standard, the analysis undertaken by the appeal judge does not suffice. [164] Normally, where a trial judge has considered the proper factors under Grant and has not made any unreasonable finding, their determination is owed considerable deference on appellate review: R. v. Côté , 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. However, where a trial judge commits a legal error, makes unreasonable findings, or fails to properly engage in a meaningful s. 24(2) analysis, on appeal, that judge's decision is not entitled to deference, and the appeal court may conduct the s. 24(2) analysis afresh: R. v. Dunkley , 2016 ONCA 597, 131 O.R. (3d) 721, at para. 54; R. v. MacMillan , 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 87 to 93; and R. v. Gonzales , 2017 ONCA 543, 136 O.R. (3d) 225, at para. 166. (d) Application of the Grant Test [165] With that background in mind, I turn now to a consideration of the three lines of inquiry mandated by Grant and the overall balancing exercise to determine whether the evidence in this case should be excluded. (i) Seriousness of the Charter -infringing state misconduct [166] The appeal judge found that the misconduct of the officers was serious because they did not have the statutory or common law power to make the stop on private property. That conclusion is nothing more than a bald statement that the respondent’s Charter rights were breached. It misses the point of the exercise entirely because it does not advance the analysis of the seriousness of state misconduct. [167] It is a given that the respondent’s rights were breached; that is why a s. 24(2) analysis was being undertaken. As Miller J.A. stated in R. v. Jennings , 2018 ONCA 260, 45 C.R. (7th) 224, it is a legal error to conclude that the state misconduct must be serious because there has been a Charter breach. Rather, as he said, at para. 26, of that case, "there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other." [168] It is worth reiterating that the whole purpose of the Grant test is to move away from exclusions of evidence based on rigid categories and instead to evaluate the circumstances of the case to determine whether the admission of the evidence would bring the administration of justice into disrepute. On this prong of the test, a judge hearing a s. 24(2) application must carefully consider the seriousness of the state’s misconduct in breaching the Charter and place that misconduct on a spectrum from serious to trivial. The appeal judge failed to do that. [169] As the Supreme Court stated in Grant , Charter -infringing state misconduct varies in seriousness. Inadvertent or minor violations of the Charter will have a minimal impact on public confidence in the rule of law, whereas evidence obtained through willful or reckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute. Such willful or reckless disregard sends the message that courts "effectively condone state deviation from the rule of law": Grant , at paras. 72-75. [170] On a proper review of the evidence in the instant case there is nothing to suggest that the officers were not operating in good faith. In this regard, I note that the trial judge rejected the defence argument that Constable Lobsinger’s actions were motivated by personal animus against the respondent. [171] Another relevant factor in evaluating the seriousness of state misconduct is uncertainty regarding the state of the law. Where a police officer ignores established legal principles or is willfully blind to the same, our courts will not countenance this conduct: see Grant at para. 75; R. v. Buhay , 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59; and R. v. Tsekouras , 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 109, leave to appeal refused, [2017] S.C.C.A. No. 225. Charter rights are of limited value if police officers are permitted to ignore them or remain willfully ignorant of those rights. [172] Notwithstanding the foregoing, the Supreme Court has consistently held that legal uncertainty is a factor that a court may take into account in assessing the seriousness of a Charter breach resulting from police misconduct. As Moldaver J. stated in R. v. Paterson , 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 92: [92] Where the law is evolving or in a state of uncertainty, and where the police are found to have acted in good faith, without ignorance or wilful or flagrant disregard of an accused’s Charter rights, the seriousness of the breach may be attenuated: see R. v. Cole , 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 86-89; R. v. Aucoin , 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 50; R. v. Vu , 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 69 and 71; R. v. Spencer , 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 77; and R. v. Fearon , 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 93-95. [173] Contrary to the assertion made by the majority in this case, the limits on police authority to continue the traffic stop on the shared driveway were not well settled. However, to the extent that there was applicable jurisprudence, such as Anderson and Alrayyes , it supported the officer’s authority to make the stop on the shared driveway. [174] In addition to those cases, in R. v. Calder , [2002] O.J. No. 3021 (S.C.), aff’d [2004] O.J. No. 451 (C.A.), the Summary Conviction Appeal Court judge considered whether s. 48(1) of the HTA applied to a parking lot behind a bank. There, the officer observed a vehicle on the road and then approached the car in a parking lot because it was "oddly parked." The trial judge held that the police officer had no legal justification for approaching the appellant's vehicle absent some basis for thinking that the appellant violated the HTA or some other legislation. In allowing the Crown appeal, Killeen J. held, at para. 57: [57] In leading cases such as R. v. Mansour (1979), 47 C.C.C. (2d) 129 (S.C.C.) and Gill et al. v. Elwood (1970), 9 D.L.R. (3d) 681 (Ont. C.A.) it has been held that driving conduct on a parking lot cannot give rise to an HTA or Code driving charge, but these cases have not held that the police investigative powers set out in s. 33(1), 48(1) and 216(1) are magically suspended or exhausted at the curb of a public street. [175] Calder was followed in R. v. Warha , 2015 ONCJ 214, aff’d 2016 ONSC 93, which involved a situation where a police officer watched a vehicle on the road, but did not observe any signs of impairment. He followed the car to the parking lot of a plaza, walked up to the driver, and detected alcohol on his breath. In rejecting an assertion by the defence that this interaction violated the driver's ss. 8, 9 and 10 Charter rights, the court found, at para. 7, that “[t]he law does not require him to have observed any improper driving or be suspicious that Mr. Warha might be impaired." The fact that the driver was on private property was found not to restrict the authority of the officer to conduct an HTA investigation. That finding was upheld on appeal: Warha (2016) , at para. 3. A similar finding was made in R. v. McGregor , 2015 ONCJ 692, at paras. 10-14. [176] As noted above, in Nield , the court held that the HTA does not provide authority to undertake a sobriety check on private property. However, as discussed, in that case, the court found that the police did have the common law power to do so. [177] While police officers cannot ignore Charter rights or established limitations on their authority, they are also not expected to weigh debatable constitutional niceties in the context of a dynamic interaction with a member of the public. In this case, if the officers could have stopped time and inquired of a constitutional expert whether they had the authority to continue the traffic stop, they may well have received an answer that, according to the two cases closest to their fact situation, being Anderson and Alrayyes , they had the authority to make the stop on the shared driveway. Given the state of the law, the officers' actions do not even rise to the level of negligence. [178] In my view, the state misconduct was minor or technical in nature. This was a dynamic situation where there was jurisprudence that supported the officers’ authority to make the stop on the shared driveway. Put another way, if the police officers in this case made a mistake about the legality of the random stop on the shared driveway, so too did the Court of Appeal for S askatchewan and Miller J. of the Ontario Superior Court. This line of inquiry, properly considered, militates against the exclusion of the evidence. (ii) Impact of the breach on the Charter-protected interests of the respondent [179] Turning to the impact of the breach on the Charter -protected interests of the respondent, the more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, thereby breeding public cynicism and bringing the administration of justice into disrepute: Grant , at para. 76. [180] The appeal judge’s consideration of this factor does not advance the analysis. His statement that the Charter -protected interest was privacy and that “[t]he expectation of privacy on one’s own property is a high one” is flawed. The stop took place on the shared driveway that leads to the respondent's parents' home and a store. The shared driveway was not solely for the respondent's parents’ property. It was also a means of access to the commercial business. In these circumstances, there was an implied licence for members of the public, including the police, to enter the shared driveway, and any privacy expectation held by the respondent would be minimal: Dillon , at para. 40. This is hardly comparable to the police kicking down the door of a private residence. Yet, the appeal judge’s analysis makes no distinction between these two disparate situations. [181] In addition, the investigation started on a public highway, a domain where the respondent had a minimal privacy right. Further, as stated by the Supreme Court in Ladouceur , driving is a licensed activity, random stops are relatively short, the driver is minimally inconvenienced, and the officer's investigation is restricted to the purpose of the check. In this case, the traffic stop was not invasive, as the indicia of impairment was evident as the officer approached the respondent. In my view, taking into account all of these facts, this factor militates against the exclusion of the evidence. (iii) Society’s interests in an adjudication on the merits [182] The third Grant factor considers society’s interests in an adjudication on the merits. This line of inquiry “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant , at para. 79. The reliability and importance of the evidence are crucial factors in this line of inquiry: Grant , at paras. 81-83. [183] This factor favours the admission of the evidence. Society has a legitimate interest in seeing cases of impaired driving adjudicated on the merits. The excluded evidence, which included the respondent’s statement about his alcohol consumption, the officer’s observation of his obvious signs of impairment, and the results of the breathalyzer tests, was reliable. It was also overwhelming proof of the respondent’s guilt beyond a reasonable doubt on both counts. The exclusion of this reliable evidence resulted in the acquittal of the respondent. (iv) Balancing the Grant factors [184] In balancing the Grant factors, all three lines of inquiry favour the admission of the evidence. Viewed objectively, any breach was done in good faith and was minor or technical in nature, the impact on the respondent’s Charter protected rights was minimal, and the evidence was reliable and crucial in the convictions registered by the trial judge. [185] With the admission of the evidence, a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would not lose faith in the criminal justice system or believe that the administration of justice had been brought into disrepute. On the contrary, the exclusion of reliable and crucial evidence based on a restrictive and technical view of police power would likely cause the public to lose faith and confidence in our criminal justice system . I would, therefore, not exclude the evidence. F. Disposition [186] For the foregoing reasons, I would allow the appeal, set aside the appeal judge's order, and restore the convictions and the stay entered by the trial judge. I would grant leave to appeal sentence, eliminate the victim surcharge, but otherwise not interfere with the sentence imposed. Released: June 4, 2021 “K.F.” “C.W. Hourigan J.A." [1] An acquittal was also entered for the s. 253(1)(a) conviction that was initially conditionally stayed, though this occurred at a separate proceeding on October 2, 2019. [2] While the respondent’s blood alcohol level was above the legal limit, it was not enough to visibly affect his driving. [3] At the time of the decision in Alrayyes , the Court of Appeal for Saskatchewan had not yet released its decision in Anderson . [4] Patrick McGuinty, “Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis” (2018) 41:4 Man. L.J. 273, at p. 277. [5] Peter Sankoff, “The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action” (2004) 28 Adv. Q. 103, at p. 104.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. McCullough, 2021 ONCA 71 DATE: 20210203 DOCKET: C63642 Huscroft, Miller and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and James McCullough Appellant Lance Beechener, for the appellant Elise Nakelsky, for the respondent Heard: October 19, 2020 On appeal from the conviction entered on April 25, 2016 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury. Huscroft J.A.: OVERVIEW [1] There is no doubt that James McCullough killed Alexander Fraser. He admitted to stabbing him numerous times and dismembering his body. The issues at trial were whether he intended to do so; whether he was provoked; and whether the killing was planned and deliberate. [2] The appellant was convicted of first-degree murder and committing an indignity to a human body. He appealed both the convictions and the sentence but has abandoned the sentence appeal. He raises two issues in relation to his convictions. First, he argues that the trial judge erred in failing to instruct the jury concerning his post-offence conduct. Second, he argues that the trial judge erred in admitting evidence of his desire to commit cannibalism, evidence he says was prejudicial. The appellant contends that, as a result of these errors, he was denied his right to a fair trial. [3] In my view, the trial judge made no such errors. I would dismiss the appeal for the reasons that follow. BACKGROUND [4] The background facts are not in dispute. [5] On September 8, 2013, following an evening spent drinking, the appellant and his friend Alexander Fraser decided to take a cab from Orangeville to London and rent a hotel room. A cab was dispatched to the appellant’s home and the appellant informed the driver that he and Fraser were heading to Motel 6 in London. The appellant gave the cab driver $320 cash for the trip. Shortly after leaving for London, the appellant directed the cab driver to return to his home and to wait for him. The appellant exited the cab and entered his home. He returned to the cab a few minutes later carrying two bags – a large hockey bag and a smaller duffle bag. The cab then proceeded to London. [6] The appellant and Fraser spoke with the cab driver throughout the trip. The appellant insisted that Fraser call him by the pseudonym, “Josh Childress”, rather than call him by name, but Fraser often referred to the appellant as James. Fraser told the driver he was drunk and asked her to stop the cab several times during the trip in order to allow him to urinate. [7] Although the appellant and Fraser were driven to Motel 6 and entered the motel, they did not stay there. They left that motel and headed to the nearby Ramada Inn. The appellant spoke with the clerk. Fraser was behind him, carrying both bags. The Ramada was full so they went to the Travelodge, where they got a room. By this point, it was around midnight. The Travelodge clerk testified that the appellant gave the name Josh Childress, did not provide any identification, and paid for the room in cash. The two men went to their room, each carrying one of the bags. [8] Early the following morning, the appellant registered for another night at the hotel and asked the clerk to inform housekeeping that he did not need to have his room cleaned. That afternoon, he sent a text message to a college friend, Lucas Verscheure, inviting him to the hotel, asking him to bring shoes, and telling him to come alone. Verscheure attended but brought along a mutual friend, Colby McGee. The appellant met them at the front door of the hotel and took them to his room. Verscheure described the appellant’s behaviour during the visit as highly disturbed and said that his behaviour became weirder and weirder. Verscheure did not consume alcohol or drugs during the visit, but McGee had beer and used cocaine with the appellant. [9] The appellant told the men that the two bags in the room contained stolen documents he needed to dispose of and offered Verscheure $600 to drive him to North Bay to dump the bags. The appellant then informed Verscheure that there were some body parts in the bags and asked him to help dump the bags in the Peterborough area or in London. Verscheure refused and he and McGee left the hotel. [10] Later that afternoon, the appellant called his uncle and told him that he had killed someone. His uncle described the appellant as distraught and in tears. He was concerned that the appellant was contemplating suicide and told him to call a lawyer and the police. The appellant called 911 at approximately 7:56 pm and said that there was a body in his room. He said that he had spoken with a lawyer, was unarmed, and wanted to turn himself in. He provided no further information. [11] The police entered the hotel room. They found an empty bottle of tequila and empty beer cans along with some full beer cans in the refrigerator; cigarette butts; and empty take-out bags from Kentucky Fried Chicken and Wendy’s with receipts dated that day. Two bags, two backpacks, and two belts were on the floor. [12] The police found Fraser’s torso stuffed into the large bag. His head, legs, arms, and penis were in the smaller duffle bag along with a 20 cm knife. The knife was in a paper bag and the head and penis were in a garbage bag. A piece of a leg bone was in a resealable Ziploc bag in one of the two backpacks. A small arm muscle was the only part of Fraser’s body that was missing. [13] The second backpack had personal items belonging to Fraser as well as the appellant’s knife sharpener. No cellphones were found. The Crown suggested that there was inculpatory evidence on the appellant’s cellphone and that he gave it to his mother before the police arrived but the appellant denied this. [14] Police examination of the room suggested that Fraser had lain between the two beds for a period of time and had been dismembered in the bathtub. He had been stabbed 29 times before being dismembered. There was no blood on the appellant’s clothes, save for a spot of blood on the back of his pants. There was no damage to Fraser’s clothes, suggesting that he had not been wearing them when he was stabbed. Fraser had both marijuana and a substantial amount alcohol in his system, well over the legal limit for driving. THE EVIDENCE Psychiatric evidence [15] The appellant had been seeing a psychiatrist before the killing as part of a psychosis intervention program. A psychiatric nurse, Brendan Carmichael, met with him on several occasions. Carmichael testified that the appellant told him of the need to slay celebrities as a sacrifice and told him that he had killed three cats and had been fascinated when he cut one of them open. The appellant told him he had thought of doing this to a human and would consider eating human flesh, expressing the view that by doing so you could acquire a person’s traits. However, the appellant told Carmichael that he had no plans to do so and Carmichael thought that it was a fantasy. [16] Carmichael testified that the appellant told him on another occasion prior to the killing that he had exaggerated some things in an attempt to appear “badass”. He had killed only one cat, not three, and had only imagined killing and eating a human. The rap lyrics [17] During a search of the appellant’s home the police found the following rap lyrics written by the appellant: U no its me when i come thru the scene, homie Another day another dollar my only dream is get [illegible] Yall faggotz soft being rich is only dream Only things in my dreams is your girl and Your money, homie thinks i’m joking but aint a damn thang funny, Ill dig ur pockets break your jaw and ram a knife thru your tummy, you aint been thru half the shit I been through, Ill go through, Your whole crew, a routine Im used to, chop em up mail their parts to you, Im so fucking sick my favurite drink is the blood of a jew, always in the kitchen cooking but its never stew, homie pass the pipe time for this rock to brew The appellant’s testimony [18] The appellant admitted that he wrote the rap lyrics over one year prior to the offence and that the lyrics referenced “chopping up” people and drinking blood. He described the lyrics as “death rap”, which was designed to be as violent as possible, but he denied that the reference to stew was a reference to cooking body parts. He said it was a reference to cooking cocaine into crack cocaine but added that he had never in fact cooked crack cocaine. [19] The appellant said that he and Fraser planned to commit a home invasion robbery in London and had gone there for that reason. This explained the cab ride and hotel stay, the empty duffle bags, paying for everything with cash, and using the alias Josh Childress. The appellant testified that he regularly carried a knife in his backpack because he was a drug dealer and that his backpack also included a knife sharpener along with a bottle of tequila, cocaine, and two belts. [20] The appellant testified that he and Fraser chatted, drank, and smoked after they checked into their hotel room and that he consumed some cocaine. He took a shower about one hour later and when he went outside the bathroom to get his towel, he saw Fraser standing there nude. According to the appellant, Fraser informed him that he was attracted to him and wanted to have sex. The appellant said that he “freaked out” and that he grabbed his knife and started stabbing Fraser after Fraser attempted to grab his penis. The appellant said he remembered stabbing him in the chest only twice before blacking out. The appellant testified he had no memory of his actions after this. He said that he awoke to find Fraser’s dismembered body in the bathtub. He was upset and his first reaction was to attempt to cover it up. He cleaned the room, put the body parts into the two bags and Fraser’s personal items into the backpacks. At this point he sought the assistance of Verscheure. [21] The appellant gave a statement to the police, which was not in evidence, but portions of the statement were put to him in cross-examination. The appellant told the police that he had acted in self-defence after Fraser brandished the knife and attempted to sexually assault him. The appellant said: “He [Fraser] was like some fucking monster, rapist. I don’t even know how to describe. I was scared.” At trial, however, the appellant testified that the narrative given to the police was untrue. He explained that he tried to make Fraser look as terrible as possible because he was trying not to take any responsibility. In particular, he claimed that he omitted to mention he was naked because he didn’t want to police to think “there was anything sexual going on.” He said that he was lying in order to persuade the police he had acted in self-defence and that the death was an accident. THE ARGUMENTS AT TRIAL The defence theory [22] Counsel for the appellant conceded to the charge of manslaughter but argued that the appellant did not intend to kill or dismember Fraser and that he did so only suddenly, in immediate reaction to an unexpected sexual advance and sexual attack. [23] Counsel said that the appellant made his comments to Nurse Carmichael in an attempt to obtain a personality disorder diagnosis, which he wanted in order to obtain disability benefits from the Ontario government, and that his comments did not relate to or demonstrate a plan to kill Fraser. Nor did the rap lyrics demonstrate a plan to kill him. They were a red herring. The appellant was a drug dealer and carried a knife and knife sharpener because of his dangerous occupation. [24] The trip to London was explained by the appellant’s testimony that he and Fraser had gone there to party, perform a home invasion, and to go shopping. The bags were for use in the home invasion and one bag was also used to carry a box of beer. The intention to perform the home invasion explained the appellant’s use of the pseudonym Josh Childress. [25] The absence of cuts on Fraser’s clothing supported the appellant’s testimony that he was naked when he was stabbed and the absence of any significant blood on the appellant’s clothing suggested that he was also naked. Counsel argued that the appellant’s actions in cleaning up the scene, putting the body parts into the bags, and calling his uncle and Verscheure demonstrated a frantic reaction rather than a prior plan. The Crown’s theory [26] The Crown argued that Nurse Carmichael’s evidence and the rap lyrics demonstrated that the appellant had a fantasy about killing a person and dismembering him. The appellant had obtained a work visa and was going to Australia shortly; he planned to kill and dismember Fraser before he left. [27] The plan involved taking Fraser to London, paying for the trip in cash, and using a pseudonym to avoid detection. The appellant had Fraser carry the bags into the motel so that if he were caught, he could claim that Fraser had brought them and that Fraser had intended to kill him. The Crown argued that the appellant brought the knife and knife sharpener for the purpose of dismembering Fraser. The belts were brought to restrain him if necessary. [28] The Crown theorized that Fraser did not live long after he arrived in the hotel room. He was stabbed while he lay between the two beds and was then dragged to the bathtub, where he was dismembered. The Crown argued that the appellant kept a piece of bone from Fraser’s leg in a Ziploc bag as a souvenir, then cleaned the hotel room to get rid of the evidence. [29] The Crown argued that the appellant lied to the police and at trial and that he had never blacked out. The sexual attack was a story he created to deny his plan to kill and dismember Fraser. ISSUES ON APPEAL [30] The appellant raises two issues on appeal. First, he argues that the trial judge erred in failing to caution the jury about his post-offence conduct and the limited use to which it could be put. He submits that the judge had to inform the jury that this evidence had no probative value in relation to the appellant’s level of culpability and should have cautioned the jury concerning what he describes as bizarre demeanour evidence. This argument was the focus of the appellant’s submissions at the hearing. Second, the appellant argues that the trial judge erred in admitting evidence of his desire to commit cannibalism, evidence that he says was prejudicial. THE POST-OFFENCE CONDUCT EVIDENCE [31] The post-offence conduct in question includes the following: 1) The dismemberment of the victim; 2) The extensive cleanup of the motel room; 3) The attempt to dispose of the body; 4) The appellant’s lies to the police and his acquaintances; and, 5) The appellant’s calmness and ability to make rational decisions the day after the killing. [32] It also includes conduct the appellant characterizes as demonstrating his bizarre demeanor following the offence, including: 1) Eating two fast food meals in the motel room with the dismembered body of the victim beside him; 2) Laughing during the 911 call; and, 3) Putting a piece of the victim’s leg bone into a resealable Ziploc bag. The appellant’s position [33] The appellant notes that the Crown referred to the post-offence conduct evidence throughout her cross-examination of the appellant. The Crown also referred to the appellant’s post-offence conduct throughout her closing address, emphasizing that the appellant ate fast-food meals alongside the bags containing the dismembered remains of Fraser and that he kept a piece of Fraser’s leg bone, an action the Crown described as akin to keeping a trophy or souvenir of having lived out his fantasy. The appellant complains that the jury was given neither a post-offence conduct caution nor a no-probative-value instruction in respect of this evidence. He says that in the pre-charge conference the trial judge specifically asked the Crown, but not the defence, if she wanted a post-offence conduct instruction. [34] The appellant argues that the probative value of the post-offence conduct was equivocal at best, yet the jury would have been tempted to focus on this evidence – especially the dismemberment and the appellant’s ability to eat beside the dismembered body – and it could have played a powerful role in the jury’s deliberation. The appellant submits that an instruction to the jury cautioning them about this evidence and explaining to them the limited uses to which it could be put was required. The lack of any instruction on the post offence conduct is a major error that requires a new trial. The respondent’s position [35] The Crown acknowledges the absence of a specific instruction on post-offence conduct but says that none was necessary: the trial judge mitigated the main reasoning risk associated with post-offence conduct by instructing the jury to consider alternative explanations for the appellant’s conduct and carefully reviewing the alternative explanations provided by the appellant. The appellant’s conduct after killing Fraser was relevant to ascertaining his intent and to whether the murder was planned and deliberate; a no-probative-value instruction was not warranted. Although a caution concerning the risks of demeanour evidence would have been ideal, the failure to give one had minimal impact. The principles governing review of the trial judge’s instructions [36] The general principles governing review of the trial judge’s instructions to the jury were recapitulated by Moldaver J. in R. v. Calnen , 2019 SCC 6, [2019] S.C.R. 301, at paras. 8-9: An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence: R. v. Mack , 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw , 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30: The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 62. At the end of the day, the overriding question is whether the jury was properly equipped to decide the case absent a limiting instruction against general propensity reasoning. [37] The dangers posed by post-offence conduct evidence are well known. The question is, did the trial judge provide the jury with what they needed to decide the case according to the law and the evidence? DISCUSSION [38] The essential premise of the appellant’s position – that the appellant’s post-offence conduct was not probative of his level of culpability – is, as the Crown submits, “simply incorrect”. Post-offence conduct is a form of circumstantial evidence that may be relevant to a particular issue. In this case, regardless of the appellant’s concession to manslaughter, the impugned post-offence conduct was relevant to the issues of intention and planning and deliberation, and the trial judge made no error in instructing the jury in regard to it. [39] The appellant argued that he was distressed and remorseful for having killed his friend – that his post-offence behaviour was a frantic reaction to what had suddenly happened. The Crown’s closing can be understood as highlighting the inconsistencies with this narrative. But more than this, by emphasizing the appellant’s calm and calculated actions following the killing, the Crown suggested that the appellant was untroubled by what he had done – that, far from being a frantic reaction to what the defence characterized as “an attempted sexual assault,” the appellant’s post-offence conduct logically suggested that the killing was intentional, planned and deliberate. This suggestion was made plain by the question the Crown posed to the jury in her address: Use your good common sense. Does that sound like a man who is distressed and remorseful for killing his friend? Or does it sound like a man who cold bloodedly killed his friend for his own twisted interest and enjoyment. And who, therefore, has no problem sitting and enjoying a couple of meals beside his friend’s dismembered body or has any problem with drinking Tequila from a bottle splattered with his friend’s blood. [40] The Crown fairly put this suggestion to the appellant in cross-examination and he denied it: Q.      I’m going to suggest, sir, you would never, if you had been distraught, overwhelmed, frantic because you’re so upset that you killed you [sic] friend accidentally or in a drunken rage, I’m going to suggest you would never have been able to eat not one but two meals while sitting in the hotel room with his dismembered remains during the course of that day? A.      Well I was hungry, so. Q.      So you clearly weren’t bothered enough by [the deceased’s] death or dismemberment to have lost your appetite? A.      Not everyone loses their appetite when they’re under stress. That only happens in some people. Q.      I’m going to suggest, sir, you were quite interested in eating and concerned about eating throughout the course of that day because [the deceased’s] murder didn’t bother you at all? A.      No, ‘cause I didn’t know what jail was like. I didn’t know when I’d get my next meal and all that. Q.      I’m going to suggest to you, sir, it didn’t bother you at all because you had wanted to kill him? A.      No. [41] The appellant submits that the trial judge ought to have instructed the jury that the post-offence conduct evidence could not be used to establish planning and deliberation; it could be used only to rebut the appellant’s narrative of a frantic reaction. [42] This submission must be rejected. [43] The admissibility of post-offence conduct evidence and the formulation of limiting instructions are governed by the same principles that govern circumstantial evidence generally: R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31, per Rothstein J. It is well established that post-conduct evidence may be relevant not only to contradict the defence narrative, but also to prove intention and planning and deliberation: see e.g., R. v. S.B.1 , 2018 ONCA 807, 143 O.R. (3d) 81 ; R. v. McLellan , 2018 ONCA 510, 362 C.C.C. (3d) 183, leave to appeal to S.C.C. refused, [2019] S.C.C.A. No. 338; R. v. Aravena , 2015 ONCA 250, 333 O.A.C. 264, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 497 ( Aravena ), [2015] S.C.C.A. No. 509 ( Gardiner ), [2015] S.C.C.A. No. 516 ( Mather ); R. v. Khan , 2007 ONCA 779, 230 O.A.C. 174; and R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.). [44] In light of these authorities, there was nothing improper about the Crown’s closing argument and nothing inappropriate about the jury being allowed to draw an inference of intention, planning and deliberation from the substantial body of post-offence conduct evidence. The evidence complemented the considerable body of pre-offence conduct. The post-offence conduct evidence demonstrates that the appellant acted in a cool and calculating manner after he killed and dismembered Fraser – not franticly, as he claimed. Not only could this evidence be used to refute the defence’s “frantic reaction” narrative; as a matter of common sense and experience it was also relevant to the inference of planning and deliberation. This inference arises most clearly from the appellant’s action in dismembering Fraser’s body and saving the bone fragment. Moreover, the defence relied on other aspects of the appellant’s post-offence conduct to suggest the absence of a plan. There was no basis to limit the jury’s consideration of this evidence in the manner suggested by the appellant. [45] The appellant emphasized that, during the pre-charge conference, the trial judge stated, and trial counsel agreed, that many aspects of the “after-the-fact” conduct were of no probative value if the appellant admitted to manslaughter – including acts of concealment, cleaning up the room and so on – as they were equally likely to reflect cognition of manslaughter as murder. [46] The trial judge’s remarks in the pre-charge conference reflected what appears to have been a shared understanding that “after-the-fact” conduct was referring only to the post-offence conduct that supported an inference of consciousness of guilt. No unfairness resulted from this shared understanding. It is clear from the discussions concerning the post-offence conduct evidence – and in particular the dismemberment and bone fragment evidence – that it was accepted that the post-offence conduct evidence could be used to support inferences other than consciousness of guilt. The appellant’s actions following the killing were properly addressed by Crown counsel in her closing and by the trial judge in her charge. No special caution was required [47] The appellant focuses on three aspects of his post-offence conduct that he characterizes as bizarre: evidence that he laughed during the 911 call; ate two fast-food meals alongside the dismembered body of the victim; and put a piece of the victim’s leg bone into a resealable Ziploc bag. He submits that the need for a caution concerning this evidence is clear from the findings from the inquiry into the wrongful conviction of Guy Paul Morin. Accused persons may act strangely or do stupid things following a traumatic experience. Or their behaviour may simply appear to be different from normal behaviour – a matter that is difficult to assess in any event given different cultural backgrounds and possible mental health issues. [48] In my view, it was not necessary to caution the jury specifically concerning the “bizarre” aspects of the appellant’s post-offence demeanour. [49] The appellant’s alleged laughter was not significant evidence. He denied laughing and neither party referred to the matter in their closing addresses. [50] As for keeping a bone fragment in a Ziploc bag, the Crown did not rely on this simply as evidence of bizarre behaviour or as post-conduct evidence that indicated consciousness of wrongdoing. The Crown suggested that the appellant had kept the bone fragment as a trophy or souvenir of the killing. The appellant denied that it was a souvenir, testifying that he put the bone fragment in the Ziploc and into his backpack because he was trying to get rid of evidence and “wasn’t thinking straight”. The trial judge instructed the jury that this evidence had to be considered in determining whether the killing had been intentional and reminded them of the alternative explanations for this evidence. Trial counsel expressed no concerns about how this evidence was handled, and I see no basis to impugn the trial judge’s instructions on appeal. [51] The evidence that the appellant ate two meals alongside the dismembered remains of the victim is bizarre but, again, it was not proffered as evidence that the appellant was more likely to be guilty simply because his actions were bizarre or abhorrent, nor was it proffered as post-conduct evidence that indicated consciousness of wrongdoing. Instead, as with the other evidence showing that the appellant acted calmly following the killing and dismemberment, the evidence that the appellant ate two meals alongside the dismembered remains of the victim countered the appellant’s narrative that he was distraught and overwhelmed following the killing and logically supported the inference invited by the Crown that the killing was intentional, planned and deliberate. It would have been wrong for the judge to have cautioned the jury not to consider it regardless of whether it could be characterized as “bizarre”. [52] It was not disputed that the appellant killed Fraser and dismembered his body. All that was at issue was whether the killing was intentional and, if so, whether it was planned and deliberate. The appellant’s behaviour in putting the bone fragment into a Ziploc bag and eating fast-food meals beside the dismembered remains of the victim was probative of these issues. Although it was open to the trial judge to instruct the jury that they should not infer guilt simply from the apparent oddity of the appellant’s actions, the question is not whether the charge might have been improved; the question is whether the jury was charged properly. [53] I am satisfied that it was. There was no danger that the jury might wrongly conclude that the appellant was guilty simply because his actions following the killing and dismemberment were “bizarre”. Indeed, it is possible that an instruction as to the bizarre nature of these particular actions may have prejudiced the appellant by highlighting them. Perhaps that is why no such instruction was requested. In any event, the trial judge did not give such an instruction and did not err in not doing so. [54] Nor did the trial judge err in not providing a caution concerning the risks of demeanour evidence generally. The evidence of the appellant’s demeanour following the killing did not depend on witnesses’ powers of observation and interpretation. The subjective interpretation risk associated with demeanour evidence therefore did not arise. A general instruction on demeanour evidence might have been “ideal”, as the Crown suggested, but it was not necessary. In any event, even assuming that the trial judge erred in failing to provide such an instruction, in my view the error would be inconsequential and the curative proviso in s. 686(1)(b)(iii) would apply. The relevance of the appellant’s actions following the killing to the issues of intention and planning and deliberation was clear and straightforward, and the jury was aware of the alternate explanations. There was no substantial wrong or miscarriage of justice. The trial judge properly instructed the jury about alternative explanations [55] The trial judge’s primary responsibility in regard to the appellant’s post-offence conduct evidence was to ensure that the jury was aware of alternative explanations for that conduct in order to guard against the danger that the jury might jump to an inference of guilt. It is clear that she did so. For example, concerning the dismemberment – which the defence conceded was relevant to planning and deliberation – the trial judge instructed the jury as follows: You may consider the act of dismemberment. Was this part of the original plan that was carried out? Had he planned to dismember the body after killing Mr. Fraser? If so, is this evidence that the plan was actually implemented? Or was the dismemberment something that was not planned. Was it a panicked reaction to the realization that he had killed his friend and he did not wish to be discovered with the body? If the decision to dismember the body only arose after the killing, then it was not a planned event and does not shed light on whether the murder itself was planned and deliberate. [56] With respect to the appellant’s efforts to clean up, the trial judge instructed the jury: The same may be said of the decision to clean up the room and remove visible signs of blood. Was that part of an original plan to kill Alex Fraser? Or was that an after-the-fact reaction? It is for you to decide. [57] As for the appellant’s decision to keep a bone fragment in a Ziploc bag, the trial judge instructed the jury: Was this a souvenir that Mr. McCullough was keeping to remind himself of the murder? If so, does that suggest that the killing was intentional? In answering the question, consider Mr. McCullough’s testimony that he kept the shard of bone as part of his effort to clean up the scene. He clearly did clean up the scene and was sufficiently successful that very little blood was visible to the naked eye. Is that a reasonable explanation? That is a question for you to decide. [58] The trial judge was fair and balanced in her treatment of the evidence. She ensured that the jury was aware of alternative explanations for the conduct in question. Nothing more was required. The trial judge’s process [59] I conclude my consideration of the appellant’s arguments with these observations. [60] This is yet another case in which jury instructions have been impugned on appeal, despite trial counsel having raised no objection when the charge was made. As always, this court acknowledges that responsibility lies with the trial judge to get the charge right. But in this case not only did experienced trial counsel not object to the charge that is now impugned; she was consulted at every step in a cooperative process employed by the trial judge in crafting that charge. [61] There is no merit to the appellant’s submission that the trial judge treated the parties unequally by asking only the Crown whether she wanted a post-offence conduct instruction. The trial judge sought input from both counsel on the matter and simply raised the post-offence conduct instruction as an example of the input she sought from both counsel. [62] The trial judge provided the parties with a draft of her charge and reviewed the draft point by point, seeking and obtaining their comments and submissions and, ultimately, their agreement. [63] The trial judge informed the parties that she would instruct the jury that they must consider the evidence in an objective and dispassionate manner, free of any emotional reaction to “unusual”, “graphic” and “potentially disturbing” evidence, and that they must analyze the case based on logic, common sense, and good judgment. Defence counsel indicated that she was “very content with that”. Finally, the trial judge asked the parties whether they required anything further – whether there were “any items on your shopping lists that we haven’t addressed or anything in particular that you would like to request”. Both the Crown and defence stated that they needed nothing further. [64] The result was a charge that should have satisfied both parties and surprised neither. There was no reason to object to the charge and there is no basis to impugn the charge on appeal. THE EVIDENCE OF CANNIBALISM [65] The appellant argues that the trial judge erred in admitting evidence of his desire to commit cannibalism. It was not relevant to motive because it would be pure speculation to find that the appellant had committed the offence in order to eat the victim, as there was no evidence of cannibalism having occurred. The evidence was prejudicial and should have been edited out of the nurse’s statement.  Additionally, the appellant argues, the rap lyrics were prejudicial and should have been excluded as a whole, as there was a very weak connection between the content of the lyrics and the offences with which the appellant was charged. [66] The starting point for assessing this argument is that this was evidence of bad character/extrinsic misconduct and as such it was inadmissible if proffered to show only that the appellant was the sort of person likely to have committed the offence. But bad character evidence is admissible if it is relevant and material, is not otherwise covered by an exclusionary rule, and its probative value outweighs its prejudicial effect: R. v. J.A.T. , 2012 ONCA 177, 290 O.A.C. 130, at para. 51. [67] The trial judge found that the appellant’s statements to the nurse had significant probative value on the issues the jury had to decide. Whether the appellant had killed three cats, as he told his nurse initially; only one, as he said in a later interview; or in fact any cats at all was beside the point. The probative value of the statements lay in the appellant’s fantasies linked to killing a cat – specifically, what he fantasized about doing to a human being – and their relationship to the Crown’s theory of planning and deliberation. As a practical matter, it was not possible to edit his statement about cats from his statement about what he wanted to do to a human being. The trial judge recognized the potential for prejudice but concluded that it was outweighed by the probative value of the evidence and that the prejudice could be addressed with a proper limiting instruction. [68] As for the rap lyrics, the trial judge acknowledged that they were open to different interpretations and that many listen to songs with violent imagery. Nevertheless, it was a reasonable interpretation of the appellant’s lyrics that they meant what they literally said. To the extent that the lyrics refer to knifing and chopping up people, drinking blood and cooking in the kitchen, they were probative of the central issue at trial – whether the killing was intentional, planned and deliberate. Ultimately, it was for to the jury to determine whether the rap lyrics referred to killing, dismemberment, and cannibalism. Again, the trial judge recognized the potential for prejudice, but concluded that it was outweighed by the probative value of the evidence and could be addressed by a proper limiting instruction. [69] Having admitted the appellant’s statements to the nurse and the rap lyrics on the issues of motive, intention, and planning and deliberation, the trial judge also addressed whether the evidence was admissible on a propensity basis – that is, whether the evidence of the appellant’s fantasy of killing, dismembering, and cannibalizing could help establish that he killed Fraser and dismembered the body. This was necessary because the appellant’s position on dismemberment was not clear at the time, and the Crown might be put to the proof of each element of the charge, including identity. The trial judge found that there was insufficient evidence of cannibalism to place the allegation before the jury; there was no evidence that the appellant had consumed the victim’s flesh and the theory that he had done so was too speculative. However, the trial judge also found that the evidence disclosed a specific rather than general propensity in regard to the dismemberment and that the appellant’s statements to the nurse and the rap lyrics were probative both of his intention and the voluntariness of his actions. The evidence, she found, posited not a general tendency to violence, but a highly specific and unusual manifestation of violence – the dismemberment of a human body. The trial judge found that the prospect of prejudice was outweighed by the probative value of the evidence and admitted it. [70] The trial judge carefully weighed the probative value of the evidence and the potential prejudice to the appellant in deciding whether or not to admit the bad character evidence. Her decision was neither unreasonable nor marred by legal error or a misapprehension of the evidence. It is entitled to deference. [71] The appellant says that the absence of evidence that he engaged in cannibalism after the killing and dismemberment suggests that his interest in cannibalism formed no part of his motive to kill and dismember the victim. But this is illogical. The absence of evidence that he engaged in cannibalism does not preclude a finding that he had been motivated to do so initially. There are any number of possible explanations for not following through on a motivation to act in a particular way, none of which negates the existence of the initial motivation. [72] The trial judge’s mid-trial and closing instructions on the use of the evidence were impeccable. She instructed the jury that they could not find that there was an act of cannibalism and instructed the jury not to speculate about the missing muscle tissue. The trial judge limited the use of the ideation and rap lyric evidence to issues of motive, intention, planning, and deliberation, in response to the Crown’s argument. [73] It goes without saying that lyrics are open to different interpretations and that, in any event, the writers of songs are not to be presumed to share the views they present in their songs. The trial judge instructed the jury to consider whether the rap lyrics were a form of artistic expression – specifically, whether the appellant was interested in the lyrics as a form of art or entertainment, as he testified. If the appellant’s interest was purely artistic, the rap lyrics were not to be used to determine whether or not the appellant was guilty of the offences charged. If, however, the jury determined that his interest was more than purely artistic, they were required to consider what the lyrics referred to – cooking drugs, as the appellant testified, or killing, dismemberment, and cannibalism. [74] The trial judge instructed the jury that if it found that the lyrics referred to drugs, they were not to be used to determine whether the appellant was guilty. Even if the jury found the lyrics referred to killing, the evidence could be considered only as it related to the appellant’s motive, intention, and state of mind when he killed Fraser. The trial judge went on to admonish the jury not to allow emotional reactions to the graphic and morbid nature of the lyrics to affect their assessment of the evidence. She specifically instructed the jury not to conclude that the appellant was a bad person more likely to have committed the offences, or the kind of person likely to have committed the crimes, and to convict on either basis. The trial judge reiterated that meaning of the lyrics was to be assessed in an objective and dispassionate manner. Nothing more was required. [75] This ground of appeal must also be rejected. Conclusion [76] I would dismiss the appeal. Released: February 3, 2021 (“G.H.”) “Grant Huscroft J.A.” “I agree. B.W. Miller J.A.” “I agree. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1)  applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Medford, 2021 ONCA 27 DATE: 20210118 DOCKET: C62998 Fairburn A.C.J.O., Watt and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Andrew Medford Appellant Sonya Shikhman, for the appellant Jennifer A.Y. Trehearne, for the respondent Heard: October 14, 2020 by video conference On appeal from the conviction entered on April 29, 2016 by Justice Carole J. Brown of the Superior Court of Justice, with reasons reported at 2016 ONSC 2298. Fairburn A.C.J.O.: A. OVERVIEW [1] This is an appeal from conviction on a number of counts, including sexual assault with a weapon and uttering a threat to cause bodily harm. [2] The complainant agreed to engage in sexual acts with a man in exchange for money. They went to a carport to fulfill that exchange. The complainant had never been to that location before. [3] She placed a blue condom on the man’s penis and started fellating him. The complainant became frustrated when, in her view, the man was taking too long to complete the act. She decided that she needed to leave. The man thought otherwise. He removed the blue condom from his penis, threw it to the carport floor, pulled out a knife and threatened the complainant as follows: “if I split you from your asshole to your back, maybe the open flesh will turn me on.” [4] Although the complainant was a little “foggy” about the order of events that followed, she was clear that the same man she had been fellating, was the man who threatened her and then penetrated her vagina and “bum area” with his penis. He then strangled her into unconsciousness. When the complainant regained consciousness, she realized that she was naked and being dragged across the street by the same man. She started to scream for help. [5] A good Samaritan, Mr. Messelhi, heard the complainant’s cries for help. At around 2:30 a.m., he saw the complainant and assailant from his seventh-floor balcony. He yelled out to them and called for emergency assistance. The man fled the scene just before the police arrived. [6] While Mr. Messelhi was being interviewed by the police, a man by the name of Ashton Cater walked by where the complainant and assailant had been seen. Mr. Messelhi thought that Mr. Cater looked similar to the assailant. The police arrested Mr. Cater, but he was later excluded as a suspect on the basis of the DNA evidence found on the blue condom located on the floor of the carport. [7] It was only a few years later, after the appellant’s DNA was obtained in an unrelated matter, that the DNA on the blue condom was connected to him. The condom also contained the complainant’s DNA. [8] The appellant did not testify at trial, but accepted that it was his DNA on the condom. Through closing submissions, he acknowledged that he had engaged in a sexual act with the complainant in the carport on the night in question. His defence was that, after that sexual act finished, he left the complainant behind in the carport. On the appellant’s theory, some other man, likely Mr. Cater, must have come along after he had left the carport and attacked the complainant. [9] To get around the complainant’s evidence that she was attacked by the same man who wore the blue condom, the appellant said she was either confused or hallucinating as a result of the drugs and alcohol she had consumed prior to the attack. He also suggested that the complainant was just generally untruthful. [10] The trial judge rejected the defence theory as entirely speculative. She also accepted the complainant’s evidence as credible and reliable, ultimately concluding that a single perpetrator committed all of the acts, starting with the blue condom and ending with flight from the scene. [11] The appellant was convicted across all counts. He appeals from conviction on the basis that the trial judge erred: (a) in how she dealt with identification evidence; (b) in how she resolved credibility issues; (c) in how she approached the question of motive; and (d) in how she dealt with the burden of proof. [12] The appellant also argues that the verdict is unreasonable and that he suffered from the ineffective assistance of counsel at trial. [13] For the reasons that follow, I would dismiss the appeal. B. ALLEGED ERRORS RELATING TO IDENTIFICATION EVIDENCE [14] The appellant raises a number of concerns over how the trial judge dealt with the identification evidence. I would not accept any of these submissions. As with many of the other issues raised on appeal, the concerns expressed largely reflect an attempt to relitigate the trial. (i) Mr. Messelhi’s identification evidence [15] The appellant makes numerous complaints about how the trial judge dealt with Mr. Messelhi’s identification evidence. In particular, he objects to the fact that what Mr. Messelhi told the police about the assailant’s appearance and what he testified to in court was different. He says that the trial judge was duty bound to address and resolve each difference. [16] I do not intend to address each complaint that the appellant raises because, looked at in context, none of them can succeed. [17] The fact is that the trial judge accurately reviewed Mr. Messelhi’s evidence. She understood how it fluctuated in some ways from what he had previously said to the police. In the end, though, she concluded that she could not “place any significant weight” on Mr. Messelhi’s description of the assailant given his “vantage point from the seventh-floor balcony across the street … [in the] middle of the night … [when] the lighting was poor.” It was open to the trial judge, as the trier of fact, to reach this conclusion. And it is one to which I would defer. [18] Accordingly, Mr. Messelhi’s evidence about what the assailant looked like was largely neutralized by the trial judge’s conclusion that Mr. Messelhi was not in a position to make reliable observations. Therefore, even assuming (without suggesting) that there was some merit to the appellant’s submission that the trial judge failed to adequately deal with the witness’ alleged prior inconsistent statements, it would have had no impact on the outcome of the case. [19] In any event, the most significant alleged error made by the trial judge relates to what the appellant argues is her failure to resolve the fact that Mr. Messelhi told the police that the assailant was a “black” male, but in court suggested that the assailant was of “mixed” heritage. The appellant argues that the failure to resolve that inconsistency undermined the defence theory, particularly given that the appellant says Mr. Cater is “black” and that the appellant is closer to a “mixed” heritage. [20] This objection cannot succeed. The fact is that Mr. Messelhi told the 9-1-1 operator that the assailant was “kind of black or mixed black.” Therefore, there was no inconsistency between how Mr. Messelhi first described the assailant to the 9-1-1 operator and his evidence at trial, where he testified that there are “different gradients of black” and that when he says “black”, he includes “brown”. In these circumstances, there was nothing for the trial judge to resolve. (ii) Mr. Messelhi did not adopt his prior statement [21] The appellant also contends that the trial judge erred by failing to appreciate that Mr. Messelhi adopted a prior statement, where he is alleged to have told a police officer that he was “100 percent” certain that Mr. Cater was the assailant. The appellant also contends that, even if Mr. Messelhi did not adopt his prior statement, the trial judge still erred because she failed to turn her mind to whether he had done so. I do not accept either of these submissions. [22] Mr. Messelhi testified in-chief that while he was being interviewed by the police, he saw a man walking by the crime scene and thought that the man looked like the assailant, but that the man also “looked slightly different.” (That man was Mr. Cater.) During cross-examination, defence counsel suggested to Mr. Messelhi that he had told the officer who was interviewing him that the man walking by was “100 percent” the same man that he had seen attacking the woman. In my view, Mr. Messelhi did not adopt that prior alleged statement. [23] A witness only adopts a prior statement where the witness agrees, based upon present memory, that the statement is true. Only where that prior statement is adopted, does it become part of the witness’ evidence at trial, available to the trier of fact for the truth of its contents: R. v. McCarroll , 2008 ONCA 715, 238 C.C.C. (3d) 404, at para. 39; R. v. Candir , 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 113; R. v. Abdulle, 2020 ONCA 106, at paras. 136-38, leave to appeal to S.C.C. refused, 39175 (August 20, 2020); R. v. Tat (1997) , 117 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. [24] A review of Mr. Messelhi’s cross-examination demonstrates anything but adoption. While defence counsel repeatedly tried to have Mr. Messelhi adopt the alleged prior statement, he failed in achieving that goal. Here are some highlights from that exchange: Q. … at the time you were 100 percent sure that that was the person because – A. I – I was not. I was – again, it was someone that walked by that had similar characteristics. Q. Okay. A. But again, I don’t believe that it was – I wasn’t 100 percent – Q. So if you told the police that the guy that they were investigating is the same guy 100 percent, that’s obviously what you believed at the time, right? I’m talking about at that moment. A. Yeah. At the time they – they looked similar. Q. Right. The only detail you gave them was that’s the guy, 100 percent. That’s what you told them, right? It’s in the notes. A. I don’t recall saying that Q. Okay. A. … to be honest with you. I recall pointing – I recall pointing down to the – to the street level from my balcony. … I don’t recall – I’ll be honest with you, I don’t recall saying, yeah, that’s him 100 percent. [25] Nothing in this exchange points toward adoption of the prior alleged statement. Indeed, it does not even point toward acknowledgement that the statement was made. In these circumstances, I see no error in the trial judge’s decision not to address the issue of adoption. (iii) There was no contemporaneous identification [26] The appellant also suggests that the trial judge erred by accepting Mr. Messelhi’s trial evidence regarding what he said the assailant looked like, instead of what he had previously told the police that the assailant looked like. He argues that a description contemporaneously made must be accepted over a description at trial. [27] I see no basis in law or on the record for this suggestion. Mr. Messelhi did not purport to identify the appellant in the courtroom and was never asked to do so. In any event, the trial judge did not prefer one version over the other. Indeed, as previously addressed, she discounted Mr. Messelhi’s identification evidence altogether because of the distance from which he was making his observations and the lighting conditions involved. It was open for her to come to that conclusion. (iv) Failure to resolve the height differential [28] The appellant also argues that the trial judge erred by failing to resolve another issue: that he is only five feet, five inches tall, which is much shorter than how Mr. Messelhi and the complainant described the assailant. Mr. Messelhi thought the assailant’s height was around six feet tall and the complainant thought his height was around the same as hers, about five feet, nine inches tall. [29] For the reasons already mentioned, given the limitations on Mr. Messelhi’s ability to make accurate observations, the trial judge resolved that she could place little weight on how he described the assailant. Accordingly, there was little need for the trial judge to resolve the difference between Mr. Messelhi’s description of the assailant’s height and the appellant’s actual height. [30] That is equally true when it comes to the complainant’s evidence about her assailant’s height, being about four inches taller than the appellant’s actual height. Although the trial judge did not squarely resolve that issue in her reasons, she was clearly aware of it as she adverted to that evidence in her reasons. [31] When considered against the factual backdrop of this case, it is understandable why the trial judge did not see a pressing need to resolve the difference. After all, it was agreed that the man in the blue condom was in fact the appellant. As the complainant said that the man who wore the condom was the same man who attacked her, she was describing the height of the man who wore the condom – that being the appellant. [32] Therefore, what was critical from an identity perspective was not that the complainant suggested that her assailant was around five feet, nine inches, but that she said that the man in the blue condom was the same man who attacked her. The reasons make clear that the trial judge accepted the complainant’s evidence on this point. Therefore, given the agreement that the appellant was the man in the blue condom, it can be inferred that the trial judge was satisfied that the complainant simply misjudged the appellant’s height. (v) Did the trial judge err by failing to consider circumstantial evidence? [33] The appellant points to four pieces of evidence that are said to have been overlooked by the trial judge, but that bolstered the identification of Mr. Cater as the assailant. I do not agree that the trial judge was under any obligation to specifically turn her mind to these pieces of evidence. [34] First, a wrapper from a box of gloves was found on the ground not far from where the complainant was dragged. That packaging matched packaging that was found in the bag that Mr. Cater was carrying at the time of arrest. The appellant argues that this piece of circumstantial evidence pointed toward Mr. Cater being the person who dragged the complainant across the road. [35] There was no suggestion that the assailant wore gloves during the attack. Nor is there any suggestion that these were rare or unusual gloves. While the packaging appears to have matched, it does nothing more than provide a tenuous link between Mr. Cater and the geographical area where the complainant was ultimately found. Of course, Mr. Cater was already associated to that area, being the area where he was arrested. [36] Second, the appellant points to the fact that Mr. Messelhi testified that the assailant was wearing a do-rag. Mr. Cater’s bag contained a black do-rag. The appellant again argues that this pointed toward Mr. Cater being the assailant. [37] The difficulty with this submission is that the trial judge believed the complainant that she was attacked in one continuous event, by the man who she said she had placed the blue condom on. The complainant did not think that her assailant was wearing any type of head covering. Her credibility was accepted by the trial judge. [38] Moreover, for reasons that I have already given, the trial judge discounted the accuracy of Mr. Messelhi’s observations as they related to the assailant’s appearance. It was open for her to do so. Thus, the fact that Mr. Cater had a do-rag in his bag did not advance the defence, particularly given that there was no evidence that he was wearing that do-rag at the time in question or, indeed, at any point during the night of the offence. [39] Third, the appellant argues that the trial judge erred by failing to consider what happened to a bicycle that the appellant was said to have had with him when he and the complainant went to the carport. [40] The complainant testified that her attacker brought a bicycle with him to the scene of the attack, but could not recall what happened to that bicycle. The police did not find a bicycle at the crime scene. [41] The appellant claims that the absence of a bicycle at the scene supported his position, as advanced only in oral submissions at trial, that he had left the carport on his bicycle and the complainant was later attacked by someone else. Of course, there was no evidence about the appellant leaving the carport after the initial sexual encounter because, as was his right, the appellant did not testify. [42] Therefore, at its highest, the evidence came from two sources: (a) the complainant who testified that her assailant had a bicycle at some point when they first met up; and (b) that the police did not see a bicycle around the scene of the crime. Against this factual record, the trial judge was under no obligation to resolve anything regarding the fact that a bicycle was not found at the crime scene. [43] Finally, the appellant claims that the trial judge erred by not addressing the length of time over which the attack was said to have taken place. The complainant said that she initially met the man around 10:00 p.m. Yet the 9-1-1 call was not received until just after 2:30 a.m. According to the appellant, that means that the assault went on for about 4.5 hours. He says that it defies common sense that the assailant would remain with the complainant while she was unconscious for that length of time. The failure of the trial judge to turn her mind to this issue is said to reflect error. [44] This argument was not put to the trial judge in closing submissions and therefore, it is with little surprise she did not address it. In any event, the complainant was clear that she did not know how long she was unconscious for. The appellant and complainant could have been together for a long period of time or the complainant could have been wrong about the time at which she first went to the carport. Indeed, as I will soon address, it appears that she was wrong about the timing. C. CREDIBILITY ISSUES [45] The appellant maintains that the trial judge erred by failing to turn her mind to details undermining the complainant’s credibility. In my view, the appellant is really asking this court to substitute its own view of credibility for that of the trial judge. There is no basis upon which to do so. [46] The appellant suggests that the complainant should be disbelieved because she said that, at one point, she was being dragged with her face on the pavement, yet she did not have facial injuries to match that evidence. This is incorrect. An officer noted a scrape or scrapes on her face and the nurse who saw the complainant after the incident noted a visibly red and swollen nose. [47] The appellant also suggests that the trial judge failed to address the discrepancy between the complainant and Mr. Messelhi as to whether the assailant was wearing a do-rag. This is said to have adversely impacted the complainant’s credibility. Not so. For reasons already given, the trial judge refused to place meaningful weight upon Mr. Messelhi’s evidence about the assailant’s description. In these circumstances, the differences between his evidence and hers, as to whether the assailant was wearing a do-rag, could not have impacted the complainant’s credibility. [48] The appellant also claims that the trial judge failed to properly consider the complainant’s level of intoxication at the time of the events. In doing so, she is said to have failed to understand that the complainant “did not unequivocally reject the possibility of hallucinations.” I do not agree. [49] The complainant was clear about what she had ingested prior to the events: alcohol, marihuana, and crack cocaine. She was equally clear that she was not hallucinating during the attack. Moreover, the trial judge was alive to the issue, specifically noting that the complainant was “muddled” about the order of events. Even so, it was open to the trial judge to conclude as she did, that being muddled about the order of events was not in any way determinative of the complainant’s credibility or reliability. [50] To the extent that the complainant may have had some gaps in her memory, her evidence makes clear why that was the case. As is clear from the transcript, the complainant was highly resistant to testifying and being required to recount the terrifying events that occurred almost five years before trial. In these circumstances, some gaps in memory may well be expected. [51] The complaint here is nothing more than a request to have this court reassess the complainant’s credibility. That was the job of the trial judge. I see no error in her approach and would defer to her findings. D. MOTIVE [52] The appellant argues in writing only that the trial judge erred by concluding that the complainant was credible because she had no motive to lie. He also claims that the trial judge erred in failing to find that the complainant did have a motive to lie, one that arose from the fact that she needed money for her next drug “hit” and the man she was fellating took the money back when she said she did not wish to complete that act. I would not accept either of these submissions. [53] First, the trial judge held that she was “satisfied that [the complainant] had no exterior or ulterior motivation to lie and was attempting throughout to be truthful.” I interpret the trial judge’s comments as doing nothing more than stating her conclusion that there was no motive to lie and, therefore, the complainant’s evidence could not be rendered suspect by virtue of any such suggestion. I do not read the trial judge as placing affirmative weight on the complainant’s evidence because of her conclusion that there was no motive to lie. [54] For the first time on appeal, the appellant says that the complainant had a motive to lie which arose from her upset that the man in the blue condom took his money back after she refused to complete the fellatio. I agree with the respondent that there are numerous difficulties with this theory, including that the alleged motive was never put to the complainant when she was testifying. It also runs contrary to her evidence, that she offered to give the man in the blue condom his money back – not that he stole the money back – when she decided she did not wish to complete the act. [55] I would not accede to this ground of appeal. E. BURDEN OF PROOF [56] The appellant also suggests that the trial judge reversed the burden of proof. In particular, he points to a passage in the lengthy reasons for judgment, where the trial judge found that the defence theory was speculative and unpersuasive “given all the evidence.” He seems to suggest that this passage demonstrates that the trial judge was requiring that there be actual evidence supporting the defence theory before it could succeed. I do not read the passage that way. [57] I start by observing that the trial judge accurately reviewed the burden of proof at the outset of her reasons. There is no complaint about how she did so. Therefore, the appellant’s objection is made in circumstances where the reasons for judgment demonstrate a correct summary of the legal principles pertaining to the burden of proof. [58] In my view, the impugned passage from the reasons for judgment demonstrates nothing more than the trial judge’s acknowledgement that the defence theory did not raise a reasonable doubt in her mind. She saw it as entirely speculative in nature, particularly because she accepted the complainant’s evidence that the same man who wore the blue condom (the appellant), was the same man who attacked her and dragged her across the street. There is nothing in the reasons to suggest that she applied the wrong burden of proof. F. THE REASONABLENESS OF THE VERDICT [59] The appellant claims that the verdict is unreasonable in these sense that a trier of fact could not have reasonably reached the conclusion that the trial judge reached. I do not agree. [60] Taking into account the totality of the evidence, the trial judge’s conclusion is one that a properly instructed trier of fact acting judicially could have reasonably rendered: R. v. Mendez, 2018 ONCA 354, at para. 21. At this stage of these reasons, to unpack the reasonableness of the verdict would risk serious repetition. Suffice to say that it was open for the trial judge to accept the complainant’s credibility as to the one, continuous series of events involving the same man who wore the condom, which man was the appellant. G. COMPETENCE OF COUNSEL [61] The appellant claims that his trial counsel was ineffective and that this resulted in a miscarriage of justice. [62] During oral submissions, the appellant focussed upon a few specific complaints involving trial counsel’s performance. I too will focus upon those complaints. First, though, I will address the operative legal principles when it comes to competence of counsel claims. [63] The burden falls to the appellant to establish the facts underpinning the claim of ineffectiveness. Those facts must address both the performance and prejudice components of the test. The performance component involves establishing how counsel’s representation was inadequate. The prejudice component involves establishing how those inadequacies resulted in a miscarriage of justice: R. v. Cherrington, 2018 ONCA 653, at paras. 25-27; R. v. B. (G.D.) , 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) pp. 59-62, leave to appeal refused, [1996] S.C.C.A. No. 347 . [64] The performance component requires the court to consider counsel’s conduct of the defence against a standard of reasonableness, one that includes a presumption that counsel’s conduct falls within a wide degree of reasonable professional assistance. Strategic tactical decisions should be viewed through a lens of deference, rather than a lens of hindsight. [65] The prejudice component is fulfilled where there is a miscarriage of justice arising from either some form of procedural unfairness or an unreliable result or both: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 177, leave to appeal refused, [2017] S.C.C.A. No. 17. [66] The appellant claims that trial counsel was incompetent by failing to put to the complainant the original description she gave to the police of the assailant. She originally told the police that she thought that her attacker was six feet tall. That is said to more closely match Mr. Cater’s height than the appellant’s height. [67] On appeal, trial counsel has explained why he chose not to focus upon the first description given by the complainant as to her assailant’s height. Suffice to say that it was a strategic call on his part. I see no need to explore the underlying rationale for that decision given that, for reasons already set out, the complainant’s description of her assailant’s height did not matter to the end result in this case. This case turned on the trial judge’s acceptance of the complainant’s evidence that the man who wore the blue condom was her attacker. Accordingly, whatever height the complainant ascribed to the man in the condom, one thing was accepted at trial: the man in the condom was the appellant. [68] The appellant also points to the fact that the complainant told the police her assailant was carrying a bag. Counsel did not confront her with that previous statement. The failure to do so is said to reflect incompetence because of the fact that Mr. Cater was also carrying a bag when he was arrested. [69] Trial counsel acknowledges that, in hindsight, he ought to have put the complainant’s statement about the assailant carrying a bag to her. While that would have been better, in my view, the failure to do so changes nothing. The complainant did not tell the police anything about the appearance of the bag, what it looked like, or its size. Moreover, and again, there is no dispute that the man with the bag who the complainant met, on whom she placed the blue condom, was the appellant. In these circumstances, the circumstantial value of the bag is highly questionable. [70] The appellant also claims that his trial counsel was incompetent by failing to put to the complainant that she had described her attacker to the police as a “black” male. As before, that description is said to have matched Mr. Cater better than it matched the appellant. [71] It is true that counsel did not put that statement to the complainant, but the value of doing so would have been highly questionable. This is especially true given that three days after the attack, and a couple of years before the appellant was apprehended for this offence, in a detailed statement, the complainant told the police that her attacker had a “light complexion”, was “mixed”, “half and half” and with “black in him.” In these circumstances, a miscarriage of justice could not have resulted from the failure to put the earlier description to the complainant. [72] The appellant also suggests incompetence arising from the fact that counsel did not put to Mr. Messelhi his prior statement to the police, where he had told them that he was unsure about what the assailant’s hair looked like because he was wearing a do-rag. At trial, Mr. Messelhi suggested that he could see braids coming out from underneath the do-rag. [73] Again, trial counsel agrees that it would have been better had he put Mr. Messelhi’s prior statement to him. Even so, nothing turns on the failure to do so given that the trial judge discounted the value of Mr. Messelhi’s observations. [74] Finally, the appellant focusses on one alleged failure by the trial counsel that is said to be dispositive of a miscarriage of justice. [75] Trial counsel was aware from police notes that the police had observed a security video at a gas station, close to the scene of the crime, that showed someone who the police thought was the complainant walking with a man holding a bicycle. The man’s identity was not discernable on the video. The video showed a time stamp of 1:46 a.m. (about 45 minutes before the 9-1-1 call). [76] The appellant argues that the failure of trial counsel to obtain that video and play it at trial demonstrates ineffectiveness. The appellant contends that the video would have undermined the credibility of the complainant who said that she met her assailant around 10:00 p.m. The video would have shown that, in fact, she met her assailant over three hours later in time. [77] Trial counsel admits on appeal that he knew of the existence of the video, but explains that he did not request a copy of the video out of a concern that it would undoubtedly assist the Crown’s case. In trial counsel’s view, the longer the time between when the complainant and appellant first went to the carport and when Mr. Messelhi called 9-1-1, the greater the support for the defence theory that a second man came along and attacked the complainant after the appellant had left the scene. The video could undermine that theory by demonstrating very clearly that the complainant was simply wrong about the time that she and the appellant engaged in the sexual act in the carport. It would have taken what was, on the complainant’s evidence, an over 4-hour gap from beginning to end, and truncated it to about a 45-minute window. [78] Trial counsel’s decision to avoid any steps that may highlight the importance of the video to the Crown’s case was a tactical one and is entitled to deference. [79] In conclusion, while there are some aspects of counsel’s performance that in hindsight could have been better executed, perfection is not the standard: Joanisse , at p. 61. To the extent that trial counsel fell short in this case, it was on minor details that had no impact on the reliability of the verdict. CONCLUSION [80] I would dismiss the appeal. Released: “JMF” “ JAN 18 2021” “Fairburn A.C.J.O.” “I agree David Watt J.A.” “I agree Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mohammed, 2021 ONCA 301 DATE: 20210506 DOCKET: C68857 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Mohanned Muawia Khalil Mohammed Appellant Mohanned Muawia Khalil Mohammed, acting in person Nicole Rivers, for the respondent Heard and released orally: May 3, 2021 by videoconference On appeal from the decision of Justice B.P. O’Marra of the Superior Court of Justice dated June 25, 2020, dismissing an appeal from the conviction entered on May 6, 2019, and from the sentence imposed on July 5, 2019, by Justice Ruin Shandler of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of sexual assault and sentenced to 18 months’ imprisonment, followed by three years’ probation. [2] At trial, he testified in his defence. The trial judge made findings of fact contrary to his evidence and explained why the appellant’s evidence did not leave him with a reasonable doubt. He also held that on the evidence of the complainant, which he did accept, the appellant was guilty beyond a reasonable doubt. [3] The appellant appealed to the Superior Court of Justice, primarily alleging errors regarding the trial judge’s application of R. v. W.(D.) , [1991] 1 S.C.R. 742, and insufficient reasons. The summary appeals court judge found that the trial judge properly applied the W.(D.) test. Further, he found that the trial judge’s reasons sufficiently articulated how credibility concerns and contradictory evidence were resolved. Accordingly, the summary appeals court judge dismissed the appeal. [4] The appellant seeks leave to appeal to this court. He submits that (1) the summary appeals court judge erred in giving deference to credibility and reliability findings, despite errors made by the trial judge; and (2) the summary appeals court judge erred in concluding that the trial judge provided sufficient reasons, despite not resolving all the live issues in the case. [5] A second appeal in summary conviction proceedings is the exception, not the rule. Leave to appeal should not be granted merely because an issue of law alone is raised. Access to the Court of Appeal, for a second appeal, should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying the further appeal. There is no single litmus test that can identify all the cases in which leave should be granted. There are, however, two key variables, being the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal: R. v. R.R. , 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 37-38. [6] On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, although the grounds must be at least arguable. On the other hand, where the merits of the appeal are very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious, and the application is facing a significant deprivation of his or her liberty: see R.R. , at paras. 37-38. [7] We are not satisfied that the appellant has met the test for leave to appeal. The grounds of appeal are weak. The summary appeals court judge carefully considered and rejected the same arguments that the appellant seeks to argue before this court. We see no error in that analysis. In addition, this case does not raise issues that impact the general administration of criminal justice. [8] The application for leave to appeal is dismissed. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mohiadin, 2021 ONCA 122 DATE: 20210226 DOCKET: C68130 MacPherson, Huscroft and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Abdirahman Mohiadin Appellant Abdirahman Mohiadin, acting in person Danielle Robitaille, appearing as duty counsel Hannah Freeman, for the respondent Heard: February 8, 2021 by video conference On appeal from the sentence imposed on January 10, 2020 by Justice Sean F. Dunphy of the Superior Court of Justice, with reasons reported at 2020 ONSC 47. REASONS FOR DECISION [1] The appellant, Abdirahman Mohiadin, was convicted of six counts arising from his possession of a loaded handgun in a car and sentenced to 38 months’ custody, less 54 days’ credit for pre-sentence custody (36 days grossed up at the rate of 1.5:1). He abandoned his conviction appeal but continues his sentence appeal. [2] Late on the night of October 10, 2017, the appellant, then aged 19, was sitting in a parked car outside an apartment building in Etobicoke. The police were at the building investigating an unrelated matter and saw and smelled clouds of marijuana smoke coming from the open car window. Although this was just before marijuana was legalized, they thought this was too flagrant a violation of the law to ignore. As the police approached the car, they saw the appellant with a thick marijuana “blunt” in his hand and a satchel around his neck. The police saw the handle of a handgun inside the satchel. They immediately arrested the appellant without resistance and seized the handgun. [3] At trial the appellant raised a preliminary Charter challenge to the seizure of the gun, but when he lost that challenge his counsel invited the court to make findings of guilt based on the findings made on the Charter challenge. [4] At sentencing the parties agreed on the credit for pre-sentence custody, but disagreed on the sentence range. The sentencing judge stated in his reasons that he understood the Crown “sought a custodial sentence in the range of 32 to 36 months less presentence custody”, while the defence urged a sentence of “no greater than 21 months … less Downes credit for more than two years spent under house-arrest release conditions”: R. v. Mohiadin , 2020 ONSC 47, at paras. 16-17. The sentencing judge imposed a sentence of 38 months — two months above the range he identified as having been proposed by the Crown — less 54 days’ credit for pre-sentence custody: at paras. 45-46. [5] On the sentence appeal, duty counsel argues that the sentencing judge erred by (1) exceeding the Crown’s position on sentence without giving the appellant notice and an opportunity to make further submissions, and (2) refusing to give the appellant any credit, under the principles in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), for over two years spent under restrictive house arrest while on bail. [6] Having reviewed the transcript of the sentencing hearing , in our view the sentencing judge misapprehended the Crown’s proposed sentence. He then erred by imposing a sentence greater than the sentence sought by the Crown without giving notice to counsel or allowing them to address whether such a sentence should be imposed. [7] The transcript of the sentencing hearing reveals that the Crown first proposed a range of 32 to 36 months, without addressing whether the appellant should be provided with Downes credit for the over two years he spent under house arrest. In response, the defence proposed a sentence of no more than 21 months and Downes credit of 8.5 months (255 days). The sentencing judge then asked for the Crown’s position on Downes credit. Crown counsel (not appeal counsel) responded by stating that although Downes credit is discretionary and not governed by a prescribed formula, the Crown suggested 5 months of credit for what it acknowledged was a restrictive house arrest. The relevant exchange is as follows : THE COURT: All right. So I want to hear from you on Downes credit. [CROWN COUNSEL]: Okay. So on Downes credit, my friend expressed it absolutely correctly. There is no ratio. It’s a case by case situation. There are numerous cases in which one for four is granted. One for five; sometimes one for three, depending on the, the severity of the circumstances. [The appellant], yes, he was under a house arrest for the entirety of the time that he was on bail. Yes, he had some opportunity to leave with the surety, but it was restrictive; I’m not going to dispute that . But there is no automatic, one – granting it one and a third. That’s just not a principle in law. And I’m not sure THE COURT: What credit , if any, would, what credit , if any, would you be suggesting? [CROWN COUNSEL]: Well, Your Honour, I would suggest something in the range of one in, one out of five, to one, to one third. Given Mister.... THE COURT: How many months? [CROWN COUNSEL]: Pardon me? THE COURT: How many months would you suggest? Make it simple . [CROWN COUNSEL]: Five months . THE COURT: Okay . [CROWN COUNSEL]: That’s, that’s my submission . The, the last thing, Your Honour, is I know that this is part of that is that if the Downes credit is given, and depending on what the sentence is , it may or may not bring the balance of the sentence to under two years. And if that’s the case , then, the Crown would be asking for probation. [Emphasis added.] [8] After the Crown suggested Downes credit of five months, the Crown’s proposed sentence was not 32 to 36 months, but 27 to 31 months. The 38-month sentence imposed thus exceeded the Crown’s position by 7 months. [9] In R. v. Blake-Samuels , 2021 ONCA 77, at paras. 30-33, 36-38, per MacPherson J.A., this court recently held that it is an error in principle and contrary to fundamental fairness for a sentencing judge to exceed the Crown’s proposed sentence without giving the parties a chance to make further submissions. MacPherson J.A. explained, at para. 33, that “[i]t is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal.” This court intervened with the sentence in Blake-Samuels because it concluded that it was “impossible to say that the sentence was not impacted by the unavailability of submissions”: at para. 36. [10] The same is true here. The sentencing judge did not give the parties a chance to address a sentence seven months longer than what the Crown proposed. It is impossible to say that the sentence was not impacted by the unavailability of submissions. [11] Because the sentencing judge made an error in principle that impacted the sentence, this court “must perform its own sentencing analysis to determine a fit sentence”: R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27; R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. The court must “apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: Friesen , at para. 27. In doing so, the court “will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle”: Friesen , at para. 28. [12] In sentencing afresh, we begin by reiterating the observations of Doherty J.A. in R. v. Nur , 2013 ONCA 677, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, that “[i]ndividuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.” In Nur , both this court and the Supreme Court of Canada declined to interfere with a 40-month sentence imposed on a 19-year-old first-time offender who tried to flee the police, was chased, and threw his loaded handgun under a parked car. McLachlin C.J. underscored, at para. 120, that “[i]t remains appropriate for judges to continue to impose weighty sentences” in appropriate circumstances. [13] Here, in proposing a three-year sentence before credit for pre-trial custody and Downes credit, the Crown was mindful of these and other authorities. Crown counsel fairly noted that some cases have imposed longer sentences than this for similarly serious gun possession offences by youthful first-time offenders, while other cases have imposed shorter sentences. The Crown was satisfied that its proposed sentence was appropriate having regard to the following factors : (1) the appellant was a youthful first-offender; (2) while there was no evidence that the appellant was involved in gang activity, there was also no evidence of any direct threat to the appellant; (3) the appellant had witnessed gun violence, his older brother had died in gun violence, and he lived in a part of Toronto where gun violence is commonplace; (4) the appellant had prospects for rehabilitation; and (5) although the appellant did not plead guilty, he saved several days of court time by effectively inviting a guilty verdict after losing a preliminary Charter challenge. [14] In our view, there is no basis to depart from the sentence that the Crown proposed at first instance, even though on appeal the Crown urges us to uphold the sentencing judge’s sentence despite the lack of procedural fairness. We recognize that, in properly balancing all the relevant factors, some courts might impose higher sentences while others might impose lower sentences. However, we are satisfied that the Crown’s original proposal properly balanced all the relevant factors and is therefore fit. [15] Leave to appeal sentence is granted and the sentence appeal is allowed. The sentence is reduced to the Crown’s original proposal, which is 36 months, less 54 days’ credit for pre-sentence custody and 5 months or 150 days as Downes credit for restrictive house arrest conditions. The ancillary orders made by the sentencing judge remain unchanged. “J.C. MacPherson J.A.” “Grant Huscroft J.A.” “M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order prohibiting disclosure of a witness’ identity has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue. This section of the Criminal Code provides that: 486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private. (3) In determining whether to make the order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) the nature of the offence; (c) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (d) whether the order is needed to protect the security of anyone known to the witness; (e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence; (f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (g) the importance of the witness' testimony to the case; (h) whether effective alternatives to the making of the proposed order are available in the circumstances; (i) the salutary and deleterious effects of the proposed order; and (j) any other factor that the judge or justice considers relevant. (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. S.C. 2015, c. 20, s. 38(3). COURT OF APPEAL FOR ONTARIO CITATION: R. v. Morin, 2021 ONCA 307 DATE: 20210511 DOCKET: C65968 Hourigan, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Carson Anthony Morin Appellant Howard L. Krongold, for the appellant Elise Nakelsky, for the respondent Heard: March 29, 2021, by videoconference On appeal from the conviction entered by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury, on May 12, 2017. Hourigan J.A.: A. Introduction [1] In his appeal from his conviction for first-degree murder, the appellant submits that the trial judge erred in her jury instructions on planning and deliberation and after-the-fact conduct. The appellant asks this court to quash his conviction for first-degree murder and substitute a conviction for second-degree murder. Alternatively, he seeks a new trial. [2] These reasons explain why I would dismiss the appeal. In summary, a fair review of the trial judge’s jury instructions reveals no error. The trial judge correctly instructed the jury on both issues, including in her answers to the jury’s questions. The alleged error regarding planning and deliberation is based on a theory of culpability that was never put to the jury and is directly contrary to the position advanced by the defence at trial. Regarding the after-the-fact conduct, the instruction was legally sound and appropriate in the circumstances. Accordingly, I would dismiss the appeal. B. Facts [3] The appellant met Alyson Tippins in mid-April 2013. She was a small-time drug dealer, looking for a place to live. The appellant lived alone in a rented condominium and needed money, so he proposed a “business” arrangement. Ms. Tippins would move in with him and work as an exotic dancer. She testified that the appellant told her he could get her a job at a local strip club and help her with selling marijuana. In return, after paying her half of their shared expenses, she was to split her earnings with him. [4] On or around April 30, the appellant and Ms. Tippins had a falling out. They started to argue frequently. According to Ms. Tippins, the appellant became rude, belligerent, and aggressive. [5] After a few weeks, Ms. Tippins moved in with her friend, Michael Wassill. The appellant suggested continuing the business arrangement on different terms. Ms. Tippins agreed. However, their relationship deteriorated after Ms. Tippins brought up her dissatisfaction with how the appellant took a cut of her earnings. The appellant informed Ms. Tippins that bad things would happen to her if she did not follow his rules, which she interpreted to mean physical harm or the loss of her job. [6] On May 13, 2013, Ms. Tippins texted the appellant from work, saying that she had learned that he could not get her fired. The appellant responded with various text messages, including, “This ain't a game. U wanna go down that road. We can," and "Don't start something you ain't prepared for." He added, “U don’t even know what I’m capable of.” A few hours later, the appellant texted his friend, Vanessa Hill, to say that Ms. Tippins was "talking mad shit about me." He said she "need to learn the hard way. Sorry to say.” He told Ms. Hill of his plan to get back at Ms. Tippins. Rather than pick her up from the strip club on time, he would say to her that he would be late and wait until she was the last one there. Then he would tell her, "you plan on doing this on your own dont you? So walk home on your own”. He concluded, “[b]ut then I’ll see her movements. And decide from there about my paper [money]. I’m not taking the loss this time.” [7] On May 14, 2013, in the early morning hours, the appellant and Ms. Tippins had a lengthy text exchange during which she asked him repeatedly if he was going to pick her up from the strip club. The appellant picked Ms. Tippins up about 30 minutes later and drove her to Mr. Wassill’s house. Ms. Tippins said there was a lot of yelling and screaming during the drive, as the appellant kept saying that he did not have another way to make a living and she did not want to share her earnings with him anymore. The appellant took some of her money and said he would be there to pick her up later that day. [8] In the afternoon, Ms. Tippins texted her friends, asking them to gather at Mr. Wassill's home to confront the appellant when he arrived to pick her up for her shift. Meanwhile, Ms. Hill texted the appellant, saying she was deleting all her text messages with Ms. Tippins, as the appellant had told her to stop talking with Ms. Tippins, and to block and "delete" her from Facebook. [9] That same day, just before 6:00 p.m., Ms. Tippins texted the appellant to see if he would pick her up for work, and when he replied that he was sending a driver, she said she would arrange a ride with her friend, Warren Meredith, instead. The appellant got upset and texted that he would go to collect his "paper" (money) when she finished work, "[a]n we done." Ms. Tippins said not to pick her up, and the appellant replied, "So u gonna run away wit my paper now? Hahahahhahaha ... Ok. We'll see how that works out for u. >:D.” About two minutes later, the appellant texted his friend, Michelle Thompson, asking for a drive later in the night. He made clear to her that he was upset with Ms. Tippins and planned to confront her about getting his money back. Around 6:20 p.m., Mr. Wassill phoned the appellant. Ms. Tippins said that Mr. Wassill told the appellant to not contact her or pick her up from work, but added that he could speak to her the next day. [10] On May 15, 2013, just after midnight, Ms. Thompson arrived at the appellant’s condominium. The appellant was frustrated that he could not collect his money from Ms. Tippins. He told Ms. Thompson he wanted to stake out Mr. Wassill's home. They drove to Mr. Wassill's street and parked a few doors down from his house. The appellant brought an X-Acto knife with him, which Ms. Thompson said the appellant used to slash the tire of Mr. Meredith's car parked in Mr. Wassill's driveway. When he approached the house, the appellant observed that there were many people inside. [11] Later the same day, Ms. Tippins awoke around 12:15 p.m. and decided not to go to work. She invited her marijuana dealer, Andrew Lapensee, over to Mr. Wassill’s house. The three of them were speaking in the foyer when she saw the appellant through the window. [12] The appellant testified that he arrived at Mr. Wassill’s home shortly after 1:00 p.m. wearing latex gloves and armed with an X-Acto knife. He knocked on the window and tried to get Ms. Tippins to come to the door. Mr. Wassill answered instead. The appellant asked to see Ms. Tippins while he stood on the doorstep, but Mr. Wassill told him that she did not want to speak with him and to leave. [13] The appellant and Mr. Wassill ended up wrestling. At one point, the appellant slashed Mr. Wassill’s throat, and then quickly fled. Mr. Wassill suffered a penetrating incised wound to the anterior (front) neck caused by a single continuous movement of the weapon from right to left. He received emergency medical treatment but died from his injuries about a week later. [14] The three witnesses to the attack were Ms. Tippins, Mr. Lapensee, and the appellant. They gave differing accounts. According to Ms. Tippins and Mr. Lapensee, the appellant put his hands on Mr. Wassill first and, after slashing his throat, started to move further into the house towards where Ms. Tippins was before seeing Mr. Lapensee and leaving the scene. On the appellant's account, he had only planned to speak to Ms. Tippins, get his money, and leave. According to the appellant, during his conversation with Mr. Wassill, the victim lifted his right arm up quickly. The appellant testified that he interpreted this movement as an attempt to push him and reacted instinctively by pushing Mr. Wassill instead. He stated that the momentum carried him into the foyer of Mr. Wassill’s house, where the two of them engaged in a struggle. The appellant said that at one point, Mr. Wassill grabbed him from behind in a “bear hug,” and that he believed he was going to be hurt, so he grabbed his knife from the pouch of the hoodie. The appellant insisted that he wanted to show the knife to get Mr. Wassill to back off. However, he claimed that when he twisted and swung his hand around, he ended up accidently cutting Mr. Wassill across the throat, and that he immediately left the house in a panic. The appellant explained that he carried the X-Acto knife for protection and wore blue latex gloves because they gave him confidence. He also said that he sporadically worked in construction, and that he was required to bring his own latex gloves and X-Acto knives for tasks like laying flooring. [15] With respect to how long the incident took, Ms. Tippins believed that everything happened between 20-30 seconds. Mr. Lapensee testified that the entire incident lasted 30-45 seconds, with the appellant being inside Mr. Wassil’s home and grappling with him for approximately 5-15 seconds. [16] As the appellant drove away from Mr. Wassill's home, he threw the knife and gloves out the window. He went to Ms. Hill's apartment and met her in the parking lot outside her building. Ms. Hill said the appellant seemed like a "wreck." The appellant gave Ms. Hill the clothes he had been wearing (he had already changed into a new set of clothes). The appellant refused to tell her what happened and then left. [17] A few minutes later, the appellant texted Ms. Hill, asking if he could return as he needed to shower. The appellant also texted, "If anyone asks I was with u since 12.” Ms. Hill said she could not be involved. The appellant replied, "I was never there then lol." He returned to Ms. Hill's apartment, and she cleaned his face with baby wipes and checked his upper body for more blood. [18] The appellant testified that after he left Ms. Hill’s home, he learned the police were already at his condominium. The appellant decided that he would “put things in motion, so [he] could turn [himself] in.” He told Ms. Thompson that he would give her his car and Ms. Hill his money. He also asked Ms. Hill to delete photos of his car on Facebook. The appellant eventually called police and was arrested in the afternoon. [19] At trial, the Crown's theory was that spurned and embarrassed by Ms. Tippins, the appellant planned and deliberated to murder her and Mr. Wassill too, if he got in the way. The defence’s theory was that the appellant did not plan to kill anyone, that the attack on Mr. Wassill was an accident, and that his erratic after-the-fact conduct showed his lack of intent. The defence, however, admitted that the appellant was guilty of manslaughter. During their deliberations, the jury asked several questions about planning and deliberation before eventually finding the appellant guilty of first-degree murder. C. Analysis [20] There are two issues on the appeal: 1. Did the trial judge err in her response to the jury’s questions on planning and deliberation? 2. Did the trial judge misdirect the jury to consider the appellant’s after-the-fact conduct as evidence of planning and deliberation? [21] As I will explain, I would answer both questions in the negative and, on this basis, would dismiss the appeal. (1) Planning and Deliberation [22] The trial judge instructed the jury that to prove planning and deliberation, the Crown must show beyond a reasonable doubt that the appellant planned and thought out the killing of Ms. Tippins and/or Mr. Wassill if he attempted to intervene. The appellant takes no issue with these instructions, which he concedes were accurate and tracked the standard instructions found in Watt J.A.’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015). [23] Where the appellant objects to the trial judge’s instructions is her answer to a series of questions posed by the jury during their second day of deliberation. These questions, which focused on planning and deliberation, were as follows: [313-315] Can a plan + implementation occur during the event (15 to 30 seconds) Carry out immediately > impulsive? Does planned and deliberate have to be planned before the event or can it be planned as the event unfolds? 313 says, “one person may prepare a plan and carry it out immediately.” Does this mean a plan can be immediate, or must be planned in advance? p. 57 – 313 needs to be clarified. Can a plan + implementation occur immediately or is it more important that time is spent to plan? Could deliberate possession of a weapon rule out that a murder was impulsive? [24] Before answering the questions, the trial judge heard submissions from counsel regarding the appropriate response to be given by the court. These submissions take on special significance on the appeal because they reflect the understanding of defence counsel regarding the meaning of the questions. This understanding is inconsistent with the position now asserted by the appellant. [25] Immediately after the trial judge read the questions aloud to the court, the following exchange occurred between one of the defence counsel and the trial judge: MR. RUSSOMANO: It strikes me, just upon reflection, that this really is two questions. That the – all of the questions, except for the very last one deal with, can a plan and its implementation happen at the exact same time. THE COURT: Or very close in time. MR. RUSSOMANO: Yes, although I think it’s the former rather than the latter, and I think the answer is in 314 of your charge, that the plan has to be - it has been previously formulated or designed. Now, it can be right before, but it can't be during. It has to be previously. [26] The trial judge then allowed counsel time over the lunch break to consider their positions and make submissions. On their return, the position of counsel for the defence did not change. He agreed with the trial judge (1) that planning and deliberation could happen seconds before a murder; (2) that the question referencing 15 to 30 seconds related to the struggle between the appellant and Mr. Wassill; and (3) that the plan could not have been developed during the struggle. In the course of these submissions, defence counsel and the trial judge had an exchange about whether the planning and deliberation could occur as the appellant walked up the stairs to Mr. Wassill’s doorstep. Defence counsel stated that this would be theoretically possible since planning and deliberation has to occur before the murder, but pondered whether there was enough time in such a brief interval. [27] Defence counsel also had an additional concern. He believed that the jury's questions suggested that they may be conflating planning and deliberation, and requested an instruction to clarify these as distinct concepts. [28] The Crown submitted that there was no reason to instruct the jury about the fact that planning and deliberation were separate concepts. He reminded the trial judge that she had made this distinction clear at seven different points in her charge. Regarding timing, the Crown took the position that the planning and deliberation could have occurred during the course of the verbal exchange with the victim on the doorstep. He requested an instruction wherein this point was explicitly made. [29] The trial judge rejected the requested instruction by defence counsel to clarify the distinction between planning and deliberation. She also dismissed the Crown's suggestion that she instruct the jury regarding the fact that the planning and deliberation could occur at any time before the throat slash, up to and including the verbal exchange on the doorstep, and the “spilling into the foyer.” The trial judge further made it clear that in her answer she would use the term murder instead of the more ambiguous term "event." [30] The pertinent portions of the trial judge’s answer provided to the jury are as follows: You have asked the following questions: Paragraphs 313 to 315 – can a plan and implementation occur during the event (15 to 30 seconds) carry out immediately > impulsive? Does the plan – does planned and deliberate have to be planned before the event, or can it be planned as the event unfolds? Paragraph 313 says: "One person may prepare a plan and carry it out immediately." Does this mean a plan can be immediate, or must be planned in advance? Paragraph 313 needs to be clarified. Can a plan and implementation occur immediately, or is it more important than time is spent to plan? Could the deliberate possession of a weapon rule out that a murder was impulsive? In the first four questions, it appears you’re asking about the timing in relation to the formulation of the plan, and the deliberation. And I refer you again, to paragraphs 311 and – to – 311 to 316. In addition, I add the following: The key with respect to the planning and deliberation is that both the planning and deliberation have to be complete before the murder occurs. Although the length of time between the completion of the planning and deliberation, and the implementation could be very short – almost immediate. As an aspect of timing, part of the planning and deliberation of the murder could be determined in advance, with part not being determined until immediately before carrying out the murder, so long as the entire plan and deliberation is complete before the murder. The last question is: Could the deliberate possession of a weapon rule out that a murder was impulsive? It depends. The possession of a weapon is a piece of evidence to consider along with all the other evidence in determining whether the murder was planned and deliberate. So I hope that helps members of the jury. If you have further questions, don’t hesitate to ask. [31] The jury asked no further questions of the trial judge. They convicted the appellant of first-degree murder the next day. [32] The appellant argues that the jury had to conclude that the appellant planned and deliberated committing murder before he arrived at Mr. Wassill's home to convict on first-degree murder. If the appellant arrived without a plan to kill, counsel for the appellant submits that there was no evidence or realistic opportunity for the attack on Mr. Wassill to be planned and deliberate. According to the appellant, the questions show that the jury was struggling with whether the appellant might have only formulated a plan to kill while standing on the doorstep of Mr. Wassill's residence, during his argument with the victim. [33] The appellant also submits that the jury’s questions demonstrate that they were struggling to understand the law of planning and deliberation, and how to apply the law to the evidence. Paragraph 313 of the written charge said: “One person may prepare a plan and carry it out immediately.” This was meant to capture the classic instruction emphasizing that formulating a plan takes time, so a jury should focus on the time involved in developing a plan, and not how long a person waits to implement it. But the appellant says that the jury read it to mean that the appellant could immediately prepare a plan and carry it out. [34] The crux of the appellant’s argument is that the questions show how the jury misunderstood what planning requires, and what the relationship is between planning and deliberation. The appellant submits that although a plan, once formulated, can be carried out immediately, a plan cannot be formulated immediately. Similarly, deliberation cannot happen immediately. [35] According to the appellant, the trial judge erred in not realizing that there was no air of reality to the theory that the appellant planned and deliberated murdering Mr. Wassill while he was standing on the doorstep and arguing with the victim. He submits that the jury needed to be told there was no evidentiary basis to convict the appellant of first-degree murder on the scenario their questions implied. The jury should also have been told that while a plan might be carried out immediately after it is formulated, formulating a plan takes time. Instead, the recharge focused on how quickly a plan can be implemented, effectively endorsing the jury’s misconceived theory of liability. The appellant submits that the failure to correct the jury's misapprehensions about planning and deliberation was not minor or incapable of impacting the verdict. Instead, this failure went to the critical issue between a finding of first- or second-degree murder. [36] The law regarding answers to jury questions is well-settled and was not the subject of debate on this appeal. Jury questions are recognized in the jurisprudence as being particularly significant because they provide insight into the jury's problems with a case. For that reason, jury questions require a full, careful and correct response: R. v. W. (D.) , [1991] 1 S.C.R. 742, at pp. 759-760. The jury is not only entitled to a responsive answer to its question, but the trial judge should take care not to discourage further questions: R. v. Layton , 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 33. [37] As noted by Mainella J.A. of the Court of Appeal of Manitoba in R. v. Willis (TAW) , 2016 MBCA 113, 344 C.C.C. (3d) 443, leave to appeal refused, [2017] S.C.C.A. No. 45, this seemingly simple task is often challenging for a trial judge because there is no set of standard answers that can be applied. Ultimately, it “is a judicial function that relies entirely on the proper exercise of discretion tailored to the applicable circumstances”: Willis , at para. 217. This court made a similar comment in R. v. Mohamad , 2018 ONCA 966, 369 C.C.C. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 162, wherein Watt J.A. stated, at para. 279: “[H]ow the response is given is left largely to the discretion of the presiding judge. And that discretion, uncontaminated by errors of law or misapprehensions of fact and falling within a range of reasonable alternatives is entitled to deference on appellate review.” [38] With these comments in mind, I consider the adequacy of the trial judge’s answer. There can be no doubt that the answer was correct in law. By that I mean, that the trial judge’s instruction that planning and deliberation had to occur before the murder was without error. The appellant’s counsel is not arguing otherwise on this appeal. His point is that the questions revealed a concern held by the jury about whether the appellant had adequate time to plan and deliberate. [39] The appellant's argument on this issue is premised on the assertion that what the jury was concerned about is whether he could plan and deliberate murder as he stood on Mr. Wassill’s doorstep and argued with the victim. This doorstep theory was mooted in exchanges between counsel and the trial judge. However, it was never put to the jury by either party or the trial judge. Recall that the Crown requested a specific instruction that the planning and deliberation could occur on the doorstep. The trial judge rejected that request. [40] The interpretation of the questions asserted on appeal is contrary to the position taken by defence counsel before the trial judge. The trial judge explicitly raised with defence counsel the doorstep theory, but counsel did not take the position that the jury questions were aimed at that issue. His interpretation was that the jury was asking about timing, i.e. whether the planning and deliberation, and the implementation, can happen simultaneously. [41] The trial judge accepted that characterization of the questions and tailored her answer accordingly. That interpretation was sensible in the circumstances. Nowhere in the multiple questions was there an explicit reference to planning and deliberation taking place on the doorstep as the appellant argued and then struggled with Mr. Wassill. In her response, the trial judge was careful to refer to the "murder," and not the "event," to emphasize that the planning and deliberation had to happen before the murder. In doing so, she mitigated against the risk that the jury might be asking a question premised on the doorstep theory. It was plain from her answer that she was referring to whether the murder, and the planning and deliberation, could occur at the same time. [42] The trial judge also invited the jury to ask further questions. This is a significant factor in this case because the jury had asked several questions and clearly was not reticent about seeking clarification when it was struggling with an issue. I have no difficulty concluding that if this jury meant by their questions that they needed guidance about whether the planning and deliberation could occur on the doorstep, they would have had no hesitation in seeking further clarification. [43] Ultimately this issue comes down to whether the trial judge correctly answered the questions having regard to her discretion to tailor the answer in the circumstances. In this case, where there was no explicit reference to the doorstep theory in the questions, and it had not been put to the jury, I can see no error in her response. The trial judge properly answered the questions, tailored her answer to clarify that she was referring to the actual murder and not what happened on the doorstep, and encouraged the jury to come back for further guidance. Accordingly, I would not give effect to this ground of appeal. (2) After-the-fact Conduct [44] The appellant concedes that since he asserted the defence that he struck Mr. Wassill accidentally, his after-the-fact conduct was admissible to rebut his defence. He also argues that the after the-fact conduct was relevant to support his contention that he did not have murderous intent. [45] The jury charge highlighted several examples of after-the-fact conduct, including: · The appellant went to Ms. Hill's home after the incident and asked for a garbage bag in which he deposited his clothing. · The appellant asked Ms. Hill to say he had been with her since noon. · The appellant returned to Ms. Hill’s home, and Ms. Hill helped clean blood off the appellant’s face. · The second time he went to Ms. Hill's home, the appellant parked his car some distance away. He later arranged for Ms. Thompson to pick the car up. · At the request of the appellant, Ms. Hill went on his Facebook page and deleted all his photos with his car. · When the appellant went to Ms. Hill's a third time, he gave her his keys and told her he was going away for a while, and she could use his condominium. · Ms. Hill and Ms. Thompson tried to go to the appellant’s condominium. · Ms. Hill gave Ms. Thompson the bag containing the appellant’s clothes. · Ms. Thompson later disposed of the bag in a garbage bin at a gas station some considerable distance away. [46] The trial judge also reviewed in the jury charge the appellant's explanations for his conduct. For example, she reminded the jury of the appellant’s explanation that he threw the bloody gloves and knife out the window because he was frightened and panicked. She told them that the appellant testified about how he changed out of his clothes not because they were blood-stained, but because they were sweaty and made him feel disgusting. The trial judge reviewed with the jury the appellant’s explanation that he hid his car on a side street and asked Ms. Hill to remove photos of his car from Facebook because he feared the BMW gang and wanted to avoid a criminal charge for driving without a license. She also reminded the jury of the appellant’s evidence that he tried to find the Ottawa Police Service's phone number to turn himself in. [47] The trial judge further cautioned the jury on the proper uses of the evidence and asked them to consider alternative explanations. She told the jury that to use the after-the-fact conduct to support a finding of guilt, they must reject any other explanation for the conduct. [48] In his factum, the appellant asserts the trial judge concluded during the pre-charge conference that the after-the-fact conduct could not be used to support the Crown’s theory that the murder was a result of planning and deliberation. Despite this conclusion, the jury charge explicitly invited the jury to use the after-the-fact conduct as evidence to "assist in determining whether there was or was not, planning and deliberation." The appellant argues that the trial judge ought to have provided a limiting instruction advising the jury that they could not use the after-the-fact conduct to support an inference of planning and deliberation. [49] I would not give effect to this ground of appeal. To the extent that is premised on the notion that after-the-fact conduct cannot serve as evidence of planning and deliberation, that is an erroneous view of the law. There is no legal impediment in using the after-the-fact conduct to determine intent or distinguish between different levels of culpability. As Doherty J.A. stated in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.): Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often, evidence of after-the-fact conduct will be probative of the accused's participation in the crime alleged, but will have no probative value in determining the level of the accused's culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind: R. v. White , [1998] 2 S.C.R. 72 at pp. 88-92, 125 C.C.C. (3d) 385 at pp. 400-03. The appellants' conduct as described by Ransome, from the time they fled the club until they disposed of evidence in the dumpster could, when viewed in its entirety, support the inference that they had done exactly what they had planned to do, that is, enter the club, commit a robbery and shoot Mr. Chow. This inference would lend considerable support to the Crown's claim that the murder was planned and deliberate. As the evidence had some probative value on the question of whether the appellants had engaged in a planned and deliberate murder as opposed to a robbery or some other illegal activity which had gone awry, the trial judge could not have instructed the jury that the evidence had no value in determining the appellants' level of culpability. The alleged non-direction does not constitute misdirection on the evidence adduced in this case. See also: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 30, at para. 119, per Martin J. (dissenting, but not on this point); R. v. Café , 2019 ONCA 775, 381 C.C.C. (3d) 98, at paras. 55-58. [50] I agree with the submission of the appellant that the after-the-fact evidence referred to by the trial judge was relevant to the issue of his intent. It was also relevant to support one of the appellant’s principal arguments at trial, specifically that his after-the-fact conduct demonstrated that the killing had not been planned. The defence relied on the fact that the appellant did not make prior arrangements to settle his affairs before the killing, and that his actions seemed frantic, to negate the Crown’s submissions on planning and deliberation. [51] The question on appeal is whether the after-the-fact conduct evidence was admissible to support the Crown’s position that the murder was a planned and deliberate killing. It is necessary at this point to review the argument made in the appellant’s factum that the trial judge agreed the jury could not use the after-the-fact conduct to support the Crown’s position regarding planning and deliberation, but then inexplicably instructed them to do so. This description of what occurred during the pre-charge conference is inaccurate. [52] It is true that the trial judge did state during the beginning of her colloquy with the Crown that after-the-fact conduct could not help the Crown prove planning and deliberation. The Crown disagreed and made submissions on the point. He relied on the passage from MacKinnon excerpted above to argue that after-the-fact conduct can be relevant to the issue of planning and deliberation. [53] The trial judge acceded to this argument. She stated repeatedly that the after-the-fact conduct could be used both to prove or disprove planning and deliberation, and advised the parties that she would include that instruction in her charge. The trial judge observed, quite correctly, that how the evidence could be used was a matter for the jury to decide. [54] Defence counsel did not object to the proposed instruction. During the pre-charge conference, she explicitly agreed with the suggestion made by the trial judge that the jury could use after-the-fact conduct to determine “whether there was any planning and deliberation.” Defence counsel also did not object when the trial judge suggested a slightly modified instruction at the insistence of the Crown to read “it may assist whether there was or was not any planning and deliberation”. [55] The Crown’s position was that the evidence was relevant to rebut the appellant’s claim that he accidentally slashed Mr. Wassill’s throat, and to support an inference of planning and deliberation. According to the Crown, after killing Mr. Wassill, the appellant “beelined” toward Ms. Tippins instead of hesitating (as one would expect in an accidental killing). The Crown submits that the appellant’s conduct after leaving the house was consistent with the follow-through and execution of a previously devised plan adjusted to deal with an unanticipated eyewitness. [56] The trial judge had a choice of permitting the after-the-fact conduct to be used to support the Crown’s theory regarding planning and deliberation, or cautioning the jury that they could not use it for that purpose. In my view, the trial judge did not err in instructing the jury that they could rely on this evidence to support the Crown’s theory regarding planning and deliberation. The evidence was capable of supporting the inference that the Crown was inviting the jury to draw. [57] The jury would have understood that both the Crown and defence relied on the after-the-fact conduct to support their respective theories of the case. Further, the jury was properly instructed on the limited use of that conduct, including that to use it as evidence of guilt, they had to reject any other explanation for the conduct. Therefore, I would not give effect to this ground of appeal. D. Disposition [58] For the foregoing reasons, I would dismiss the appeal. Released: May 11, 2021 “C.W.H.” “C.W. Hourigan J.A.” “I agree. B. Zarnett J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Muddei, 2021 ONCA 200 DATE: 20210401 DOCKET: C67481, C67486, C67512 & C67848 Doherty, Zarnett and Coroza JJ.A. DOCKET: C67481 BETWEEN Her Majesty the Queen Appellant and Said Muddei Respondent DOCKET: C67486 AND BETWEEN Her Majesty the Queen Appellant and Faysal Bashir Respondent DOCKET: C67512 AND BETWEEN Her Majesty the Queen Respondent and Mathieu Vaillant Appellant DOCKET: C67848 AND BETWEEN Her Majesty the Queen Respondent and Patrick Thibault Appellant Jeffrey Pearson and Deborah Krick, for the appellant Her Majesty the Queen (C67481 & C67486) Howard L. Krongold, for the appellant Mathieu Vaillant James Foord and Brandon Crawford, for the appellant Patrick Thibault Diane Condo, for the respondent Said Muddei Solomon Friedman and Fady Mansour, for the respondent Faysal Bashir Jeremy Streeter and Alexia Bystrzycki, for the respondent Her Majesty the Queen (C67512 & C67848) Heard: January 7, 2021 by video conference On appeal from the acquittals entered by Justice Sylvia Corthorn of the Superior Court of Justice on September 3, 2019 (C67481 & C67486). On appeal from the convictions entered by Justice Trevor A. Brown of the Ontario Court of Justice on February 19, 2019 (C67512 & C67848). Doherty J.A.: I overview [1] These two appeals were heard together. In R. v. Thibault and Vaillant , the accused appeal from their convictions on drug-related charges. [1] In R. v. Bashir and Muddei , the provincial Crown appeals from acquittals on charges arising out of an alleged home invasion. The two sets of charges are unrelated. [2] Both prosecutions turned on the admissibility of communications intercepted pursuant to the same authorization granted under Part VI of the Criminal Code in December 2016 . [2] In both cases, the accused sought the exclusion of the evidence obtained under the authority of the authorization. They maintained the authorization was improperly granted under the relevant provisions of the Criminal Code , and the interceptions of their private communications violated their rights under s. 8 of the Charter . The accused argued the evidence should be excluded under s. 24(2) of the Charter . [3] The argument failed in R. v. Thibault and Vaillant . The trial judge found the authorization was properly granted, there was no s. 8 violation, and no reason to exclude the evidence. After the trial judge ruled the interceptions admissible, Thibault and Vaillant did not challenge the Crown’s case. The trial judge entered convictions. Thibault and Vaillant appeal from those convictions. [4] The argument succeeded in R. v. Bashir and Muddei . The trial judge found the authorization was not properly granted, rendering the interceptions a violation of s. 8 of the Charter . She further held the evidence should be excluded under s. 24(2): R. v. Bashir and Muddei , 2019 ONSC 4082 . Without that evidence, the Crown had no case and acquittals were entered. The Crown appeals from those acquittals. [5] I agree with counsel that both trial judges cannot be correct. While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer. [6] Both trial judges delivered thoughtful reasons. They agreed the authorization was presumed valid and that, in reviewing the authorization, they must determine, not whether they would have granted the authorization, but rather whether the affidavit in support of the authorization provided an evidentiary basis upon which the issuing judge could have granted the authorization. The trial judges also agreed on the legal principles governing the interpretation of s. 186(1) of the Criminal Code , the provision setting out the criteria for granting an authorization. [7] Both trial judges acknowledged the “reasonable grounds” requirement implicit in s. 186(1)(a) had to be assessed in the context of the specific investigation. In this investigation, the police sought an authorization in respect of a murder that had occurred 7 ½ years earlier. The investigation had gone cold years before the police decided to seek an authorization. They proposed to use various investigative techniques to stimulate communication by and among the targets of the authorization, believing those communications would provide information relevant to the murder investigation. [8] Brown J., the trial judge in Thibault and Vaillant , after a review of the affidavit sworn in support of the authorization application, concluded, at para. 63: I conclude therefore that the issuing judge could reasonably have inferred on the information before him that the investigative plan proposed, including the use of the investigative techniques outlined, would afford evidence of the offence. [3] [9] Corthorn J., the trial judge in Bashir and Muddei , after a review of the same affidavit, concluded, at paras. 65-66: In summary, there is no discrete evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, if communicating with another, communicate in a way that would afford evidence of the homicide. Similarly, there is no discrete evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, in communication with other unknown persons, communicate in a way that will afford evidence of the homicide [10] For the reasons that follow, I agree with the conclusion of Corthorn J. It is certainly possible a person implicated in a serious crime committed years earlier may, if stimulated by police activity, communicate with others who were involved in, or had knowledge of, that crime. However, that possibility alone cannot be enough to warrant the granting of an authorization to intercept private communications. Were the possibility the police could stimulate communications about the offence enough, individuals who the police reasonably believed to have been involved in a crime years earlier, or perhaps to have been in communication with others involved in a crime, would remain subject to seriously intrusive state invasions of their privacy, as long as the investigation of the crime remained open and the police could think of something that might possibly stimulate communications relevant to the crime. II the murder investigation [11] Mohamed Ali was shot and killed in a busy downtown Ottawa bar on May 7, 2009. Wayne Morgan, an employee of the bar, was shot in the arm. [12] The police investigation of the murder is reviewed in detail in the affidavit sworn in support of the authorization application. According to the affidavit, a fight broke out in the bar between two groups of men. Apparently, one man in each group had been involved with the same woman.  After a physical altercation, shots rang out. Two guns were used, but one misfired. Mr. Ali, who was associated with one of the two groups, may or may not have been an intended target. Mr. Morgan was hit by a stray bullet. [13] Information gathered during the investigation indicated that Adnan Fazeli, Faysal Bashir, Rafat Mohamed, Saeed Sheikhdoon, and Christian Thibault were in the bar shortly before the shooting. The investigation pointed to Mr. Bashir as the likely shooter and perhaps the leader of that group. Other information suggested Rafat Mohamed was the shooter. I will sometimes refer to these five individuals collectively as “the group”. Mr. Ali was with the other group involved in the confrontation at the bar. [14] The police interviewed and re-interviewed many witnesses, gathered forensic evidence, and employed a variety of other investigative techniques in the weeks and months following the murder. These techniques included an undercover operation, which proved unsuccessful, additional interviews, surveillance, obtaining of production orders and search warrants, inquiries of various confidential informants, and resort to Crime Stoppers tips. [15] The shooting appeared to be gang related. The investigation was hampered by the reluctance of many individuals, including persons in the bar, to speak with the police about the incident. [16] The police interviewed Ashley Windebank in January 2010. Her boyfriend knew Mr. Bashir and other persons in his group. Ms. Windebank told the police she did not see the altercation in the bar but was privy to a conversation later that night involving the group. In the conversation, Adnan Fazeli said he had been struck in the face during the fight in the bar. He pulled his gun out, intending to shoot his assailant, but the gun misfired. Mr. Bashir said when Fazeli’s gun misfired, he shot Mr. Ali. According to Mr. Bashir, Mr. Ali got what he deserved. Forensic evidence confirmed that two guns were used in the shooting, and one had misfired. [17] Ms. Windebank told the police the gun used by Mr. Bashir belonged to her boyfriend who was in custody. She was asked to pick up the gun at the home of Mr. Bashir’s mother. When Ms. Windebank saw the gun, it had blood on it so she refused to take it. The affidavit does not indicate when Ms. Windebank was asked to pick up the gun, or when she saw the gun. [18] The police re-interviewed Ms. Windebank in May 2014. She said the conversation she had described in her first interview took place at the apartment of Ahmed Mahfud. Ms. Windebank also told the police the murder weapon, a 9-millimetre handgun, had been buried in the forest near Vanier. The affidavit does not indicate who told Ms. Windebank the gun had been buried, or when she got that information. [19] The police interviewed Hendrick Alvaro-Raul in June 2012. He told them about a conversation he had with Rafat Mohamed in September 2011. According to Mr. Alvaro-Raul, Mr. Mohamed told him the fight started when Mr. Fazeli and a person from the other group were arguing about a woman. Mr. Ali attempted to stop the fight. Mr. Bashir told Mr. Mohamed to “let it go” if the fight got out of control. Mr. Mohamed said he then took out his gun and shot Mr. Ali. At some unspecified time, Mr. Mohamed promised to look after Mr. Alvaro-Raul if he did not tell anybody about Mr. Mohamed committing the murder. [20] Information from confidential informants confirmed, that at the time of the murder, Fazeli, Bashir, Rafat Mohamed and Thibault were a “crew” and regularly associated with each other. One informant (informant #4) told the police in September 2012 that the gun used in the murder had been buried by Rafat Mohamed. The informant did not indicate his source of the information about the gun, or when he received that information. III the authorization [21] By November 2016, the investigation into the murder had been cold for years. The police decided to reinvigorate their murder investigation by applying for an authorization to intercept the private communications of several people. The affidavit sworn in support of the authorization offers no specific reason for seeking an authorization some 7 ½ years after the murder, although the affiant indicated Mr. Bashir, who had been in jail since 2010, had been released and returned to Ottawa some time before August 1, 2016. The named targets of the authorization, with the exception of Mr. Sheikhdoon, lived in Ottawa. [22] The application sought to intercept communications in respect of Mr. Ali’s murder and related ancillary crimes. It identified seven named targets. These included the five persons who were believed to have been part of the group that included the shooter. They were: · Adnan Fazeli; · Faysal Bashir; · Rafat Mohamed; · Saeed Sheikhdoon; and · Christian Thibault. [23] In addition to the five persons believed to have been involved in the shooting, the application sought to intercept the private communications of Ahmad Mahfud and Ashley Windebank. [4] The group went to Mr. Mahfud’s apartment after the shooting. Ms. Windebank was at the apartment with the group. As outlined above (paras. 16-18), Ms. Windebank had passed information about the murder on to the police in 2010 and in 2014. [24] The application sought to intercept the verbal and non-verbal communications of the seven targets at their residences. It contained “basket” clauses with respect to unknown persons and other places. In addition, the application sought permission to employ a wide variety of other investigative techniques. [25] The affidavit provides a detailed account of the police investigation of the murder. That account makes it clear the police had gathered very little information about the homicide for many years prior to bringing the application for the authorization. The last pertinent information appears to have come from Ms. Windebank in June 2014. Prior to that contact, the police had not received any information since the summer or early fall of 2012. [5] [26] The affidavit also describes the association among the seven targets at the time of the murder and shortly thereafter. It says virtually nothing about any association or contact among them in the several years preceding the application for the authorization. There is nothing in the affidavit indicating any of the targets have spoken with each other about the homicide, or for that matter anything else, since shortly after the murder. The affidavit is also silent about any communications by any member of the group with any person not in the group referable to the homicide after September 2011 when Mr. Mohamed spoke with Mr. Alvaro-Raul. [27] The affiant does indicate that Mr. Fazeli, Mr. Sheikhdoon and Ms. Windebank were arrested in September 2011-2012 as a result of a “guns and gangs” project conducted by the Ottawa police. The affiant does not provide any particulars. He does not say whether the three individuals were jointly charged, or whether their charges were in any way connected to each other. Police projects can result in multiple arrests arising out of different criminal activities. [28] The affiant also asserts a belief in an ongoing connection between Ms. Windebank and the other named targets. He writes: I believe Windebank continues to maintain contact with this group and would be subject to investigative prompting to gather evidence of the homicide. [29] The affiant does not provide any grounds for his belief that Ms. Windebank continues to be in contact with any member of the group. There is no specific assertion Ms. Windebank had any contact with the other named targets except on the night of the shooting. Other references in the affidavit suggest Ms. Windebank had some subsequent contact with one or more of the targets at unspecified times. However, any contact Ms. Windebank had with the targets was at least 2 ½ years before the application for the authorization was made. [30] It is implicit in the affidavit that the affiant saw little possibility that the targets of the proposed authorization would spontaneously begin to communicate concerning the murder that had occurred 7 ½ years earlier. The affiant outlined an investigative plan intended to generate communications by and among the targets. Those communications could then be intercepted under the authority of the proposed authorization. The affiant described, in very general terms, different investigative techniques that might be used to stimulate communication. He also indicated, that as the investigation progressed with the aid of the authorization, the police might employ other techniques to stimulate communications. [31] As the proposed investigative plan is central to whether the police had reasonable grounds to believe the interceptions would afford evidence of the homicide, I will set out the relevant paragraphs in full: 321. Interception of private communications will be utilized at the outset in an information-gathering manner to determine the state of mind, activities, associates and tendencies. This will be augmented and supported by other investigative techniques including physical surveillance. Information Release 322. Investigators will approach some of the identified targets of interceptions or some of their associates for the purpose of conducting interviews in relation to this now historical homicide. Investigators will provide some detail of the investigation and inform these individuals that the Ottawa Police Service are now aggressively pursuing cold case homicide investigations. At the same time, investigators may relay some details about the investigation. This information may consist of surveillance, photographs or police reports. It is anticipated the information relayed and the contents discussed. [6] It is anticipated the discussion will revolve around what evidence is believed police do or do not have. Media Release 323. Although police have already appealed to the public via the media, investigators may conduct new media release, renewing its pledge to offer financial rewards for certain unsolved homicides, which include this homicide. In a year where Ottawa has seen multiple gang-related homicides, a focus may be but on this unsolved as an example of how the community has failed to assist and refused to provide information to the police. Interviews with Persons of Interest 324. Investigators will approach some of the subjects of this investigation and speak to them about other unsolved homicides they have a connection to. The purpose of this is to stimulate conversation about unsolved homicides in Ottawa. While speaking about these other cases, investigators may reference this investigation as an example of what happens when people do not cooperate with the police. Polygraph Stimulation 325. Several interviews have been completed in regards to this investigation and investigations will continue to approach individuals who are persons of interest connected to this investigation. Investigators will attempt to interview these individuals and during these interviews, investigators will challenge the truthfulness of these persons’ statements. Investigators will question them as to their knowledge of the murder of Mohamed Ali. The persons of interest will be given the option of taking a polygraph test to determine their truthfulness. Investigators have two polygraph examiners available to them. The tests will be conducted at Ottawa Police Service facilities depending on the availability of the persons of interests. [32] Stripped to its essentials, this investigative plan contemplates: · speaking to named targets or associates and expressing renewed interest in Mr. Ali’s murder, or other unresolved murders, while at the same time providing information in respect of Mr. Ali’s murder, or the other unsolved homicides (paras. 322, 324); · possible fresh media coverage of the homicide and other unsolved homicides, as well as the possible renewal of a financial reward for information in respect of the homicide (para. 323); and · interviews with persons of interest connected to the investigation. During those interviews, the police may challenge the credibility of the information that has been provided by those witnesses and give them the option of taking a polygraph test (para. 325). [33] On December 2, 2016, Kane J. granted the authorization in the terms requested in the application. The authorization did not generate evidence sufficient to lay any charges in respect of Mr. Ali’s murder. It did, however, provide evidence of the charges giving rise to these appeals. IV should the authorization have been granted? [34] Section 186(1) sets down the two prerequisites to the granting of an authorization. The issuing judge must be satisfied: (a) that it would be in the best interests of the administration of justice to do so; and (b)  that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed, or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using other investigative procedures. (i) Section 186(1)(a): The reasonable grounds requirement [35] The “best interests of the administration of justice” requirement in s. 186(1)(a) has been interpreted as imposing the constitutionally mandated “reasonable and probable grounds” standard. The issuing judge must be satisfied the affidavit contains reasonable and probable grounds to believe the named offence or offences are being or have been committed and that the interceptions will afford evidence of those offences: R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, at 70 (Ont. C.A.); R. v. Duarte , [1990] 1 S.C.R. 30, at 45; R. v. Garofoli , [1990] 2 S.C.R. 1421, at paras. 35-36, 69; R. v. Beauchamp , 2015 ONCA 260, at paras. 90-91. [7] [36] All parties to both appeals accept the affiant had reasonable grounds to believe Mr. Ali had been murdered, and that the seven named targets were involved in, or had information pertaining to, the homicide. They join issue on whether the affidavit demonstrates reasonable grounds to believe interceptions of the private communications of the targets, some 7 ½ years after the homicide, would provide evidence in respect of that homicide. More precisely, they disagree over whether the affidavit contained sufficient evidence that might reasonably be believed to provide a basis upon which the issuing judge could have been satisfied the interceptions would afford evidence of the murder: Beauchamp , at para. 87; R. v. Araujo , [2000] 2 S.C.R. 992, at pp. 1016-9. [37] The reasonable and probable grounds standard, also referred to as the probable cause requirement, requires more than suspicion, but less than proof on the balance of probabilities: Beauchamp , at paras. 90-92. There must be a “credibly-based probability” the interceptions will afford evidence of the named offences. The affidavit must be read as a whole and an issuing judge may draw common sense inferences from the information provided. The review of the validity of the authorization begins from the premise that the order was properly granted: Garofoli , at para. 35; R. v. Sadikov , 2014 ONCA 72, at paras. 81-83; R. v. Hosie (1996), 107 C.C.C. (3d) 385, at 391 (Ont. C.A.); R. v. Brown , 2021 ONCA 119, at paras. 33-34. [38] An interception “will afford evidence” if the communications to be intercepted shed light on the circumstances relating to the alleged offence, or the involvement of the named targets in the offence. The interceptions need not provide evidence that would be admissible at a trial: R.W. Hubbard, Peter M. Brauti, S.K. Fenton, Wiretapping and Other Electronic Surveillance: Law and Procedure , Volume 1 (Toronto Ont: 217) (Loose-leaf at 4-2.6); CanadianOxy Chemicals Ltd. v. Canada (Attorney General) , [1999] 1 S.C.R. 743, at para. 15. [39] The line of reasoning said to justify the authorization rests on three propositions. The first two were not controversial: · there were reasonable grounds to believe five of the named targets (the “group”) were involved in the murder; · there were reasonable grounds to believe all seven targets had knowledge about the circumstances surrounding the murder and had been privy to conversations about the murder in September 2011 or earlier; and · there were reasonable grounds to believe one or more of the stated stimulation techniques would generate communications relating to the murder, either among the targets, or by one or more of the targets, with persons unknown. [40] The probability of the stimulation techniques described by the affiant generating communications relevant to the murder investigation requires a consideration of the status of that investigation when the authorization was sought, the ongoing relationships, if any, among the targets, the possibility of communications in respect of the homicide by one of the named targets with other unknown persons, and the specifics of the proposed stimulation plan put forward in the affidavit. [41] The murder investigation had been stalled for years. The police had uncovered no new information since May 2014 when Ms. Windebank provided information about the location of the murder weapon. Prior to speaking with Ms. Windebank in May 2014, the police had not developed any new information since the summer of 2012. The affidavit does not refer to any significant active investigative steps taken by the police in anticipation of applying for an authorization. The renewed police interest in the murder investigation in the fall of 2016 had not generated any new leads or evidence pertaining to the murder. It is fair to say the investigative trail was about as cold as it could get when the police decided to seek an authorization. [42] The affidavit contained no direct evidence of any ongoing relationship among the targets of the authorization. The Crown contended, however, that, on the totality of the evidence, one could reasonably infer the association among the targets, especially the five who made up the group, continued as of December 2016. [43] Brown J. accepted the Crown’s position, indicating, at para. 50: Both the officer and the issuing justice were entitled to rely on their experience and common sense in concluding that persons who commit crimes together are likely to maintain a level of familiarity and trust with one another that persists after the commission of those crimes. [44] Certainly, on the information provided in the affidavit, the continued association among the targets as of December 2016 was a real possibility. I cannot accept, however, that the common sense inference described by Brown J. existed on the facts of this case. The relevant events occurred 7 ½ years earlier. As I will explain in more detail below, there was virtually no evidence of any contact among the targets for many years prior to the authorization application. In those circumstances, it does not follow from association 7 ½ years earlier that the targets were “likely to maintain a level of familiarity and trust with one another”. [45] The line between speculation and inference can sometimes be difficult to draw, as can the line between credibly-based probability and suspicion. In my view, the information provided by the affiant, at its highest, raised a suspicion as to the continued relationship among the targets. On my reading of the affidavit, the police did almost nothing to try and turn that suspicion into reasonable belief before applying for the authorization. [46] Brown J. did not rely only on what he described as the common sense inference of an ongoing relationship. He found support for that inference in some of the information provided by the affiant. Brown J. relied on the evidence of Bashir’s return to Ottawa some time before August 2016, the arrest of three of the targets (Ms. Windebank, Mr. Sheikhdoon and Mr. Fazeli) in 2012 on drug charges, and Ms. Windebank’s supposed ongoing association with the group. Brown J. described Ms. Windebank “as an important character in the investigation” (para. 62). [47] The three facts identified by Brown J. do not add any weight to the inference of an ongoing relationship among the targets. Bashir had been back in Ottawa since at least August 2016. The affidavit provides nothing to indicate Bashir had reconnected with any members of his old “crew” during the several months he had been back in Ottawa. In fact, the affidavit does not suggest the police took any investigative steps to determine whether Bashir had reconnected with any of his old associates. [48] With respect to the arrest of three of the targets in 2012 on drug charges, Brown J. erroneously describes the three as “co-accused”. The affidavit does not say they were co-accused. Rather, it indicates the three targets were charged with drug offences “in relation to” the same “guns and gangs” police project. The affiant provides no details of the facts underlying the charges and does not state the three individuals were co-accused, or even involved in the same or related drug activity. [49] It was not for the issuing judge to speculate about the relationship, if any, among the three targets arrested in 2012. Rather, it was for the affiant to set out the nature of that relationship, if one existed. The mere fact that three of the targets were arrested in the course of the same police operation does not say anything about the existence of an ongoing relationship among them. In any event, the arrests occurred more than four years before the police applied for the authorization. [50] I also cannot accept that the affidavit provides a basis for inferring an ongoing connection as of December 2016 between Ms. Windebank and any of the other targets. The affiant’s statement that Ms. Windebank “maintained contact” with the group was unsupported by anything in the affidavit. What the affidavit does tell the reader is that Ms. Windebank was present when the group discussed the murder at Mr. Mahfud’s apartment on the night of the murder. The affidavit also indicates that Ms. Windebank had contact with one or more members of the group after the night of the murder. The affidavit does not indicate how many contacts were made, or when they occurred. It would appear, however, that any contact was relatively shortly after the homicide and certainly before Ms. Windebank spoke to the police in 2014. [51] The affidavit offers no support for the suggestion that Ms. Windebank was likely to reach out to any of the other targets if prompted by the police. Furthermore, even if she did, there is no basis to infer any of them would have reacted or responded. [52] Mr. Streeter, Crown counsel in Thibault and Vaillant , offers several arguments in support of the submission that it was reasonable to infer an ongoing relationship among the targets of the authorization, or at least the group who were all believed to have been involved in the homicide. Counsel submits the evidence showing an involvement in the homicide in and of itself goes a long way to support the inference the targets would communicate about the homicide if prompted. [53] The reasonableness of that inference depends on the circumstances. Clearly, the inference would be reasonable if the homicide was relatively recent, or there was other evidence that the targets continued to associate. Neither fact exists here. To the contrary, the offence occurred long ago and there is no evidence of any communication among the targets for several years. [54] Crown counsel further submits that the affidavit shows the targets have a “history” of discussing the homicide with others. The Crown contends this “history” lends credence to the inference that they would continue to do so after December 2016. [55] The “history” as revealed by the affidavit comes down to perhaps three or four conversations with individuals who were not part of the group in the 7 ½-years since the murder. All of those conversations occurred more than four years before the application for the authorization. I regard this more as a “history” of non-communication with persons outside of the group. [56] Crown counsel also submits that it was open to the issuing judge to infer an association among the targets as of December 2016 because all but one of the targets was back in Ottawa and it would be relatively easy for them to reach each other and reunite the “crew”. While the facts relied on by the Crown give rise to a possibility the targets may have re-established their contacts, those facts alone do not permit an inference that a reunion had probably occurred. The police could have taken relatively straightforward investigative steps to confirm any existing association among the group as of the summer and fall of 2016. They chose not to do so. [57] Corthorn J., in her reasons, found no reasonable basis to infer an ongoing relationship among the targets. She said, at para. 52: The passage of 4.5 years from the date on which there is any evidence of communications by one of the targets about the homicide, without any evidence of ongoing contact between the targets, renders unreasonable an inference that the targets remained in communication with one another as of the latter half of 2016. [58] I agree with this conclusion. [59] In upholding the authorization, Brown J. correctly observed the Crown was not obligated to prove the likelihood of contact among the targets. It would have been sufficient to show a credibly-based probability of communication by a target with anyone else in respect of information relevant to the homicide investigation. He said, at para. 53: In other words, the issuing judge was required only to be satisfied that the targets of the wiretaps, when appropriately stimulated, would discuss the Bar 56 incident among themselves or with other people they trusted. It would not have been unreasonable for a detached experienced judicial officer considering the wiretaps application before him to recognize that prompting strategies when properly employed can be highly effective means of inducing the targets of those strategies to reach out by phone in response to them. [60] No one would quarrel with the statement that persons suspected of offences, who are prompted by police investigative techniques, sometimes communicate with others about those offences. Prompting can induce communications with other targets, or unknown third parties. However, it cannot be inferred that, because prompting sometimes works, there is a reasonable probability it will work in any given case. The availability of that inference must depend on the circumstances. Those circumstances include the details of the prompting plan. [61] Although Brown J. would have upheld the validity of the authorization, he was critical of the investigative plan put forward by the affiant: I agree with the applicants that the investigative plan outlined by Detective Benson suffers from a lack of detail which might cause one to wonder whether it is a “plan” at all. On one view, it appears to be simply a listing of common investigative techniques used by the police in stimulating conversation once wires are in place. [para. 59] [62] Brown J. accurately characterized the plan. It says nothing about how the generic investigative techniques described by the affiant would be, or even could be, applied in the specific circumstances of the investigation. There is no concrete plan laid out. For example, the affiant does not identify how any specific targets might be prompted through some specific investigative technique to communicate with others in respect of the homicide. The plan, as described in the affidavit, is essentially a plan to do something to stimulate communication among the targets at some point in time after the authorization is in place and the private communications of the targets are being intercepted. [63] In holding that the plan, despite its deficiencies, was sufficient to uphold the issuance of the authorization, Brown J., at paras. 60-61, relied on the affiant’s indication the police intended to first use the intercepted communications to determine “the state of mind, activities, associates and tendencies of the targets of the authorization”. Armed with that information gained through the interception of private communications, the police would then be able to flesh out the details of their stimulation plan. [64] Brown J. accurately describes the two phases of the investigative plan laid out in the affidavit. This description demonstrates why the affidavit did not provide a basis for granting the authorization.  The police wanted an authorization so they could gather information contained in the private communications of the targets. They would then use that information to formulate an investigative plan tailored to the specific circumstances and likely to prompt discussions relevant to the homicide among or involving the targets. Those prompted discussions would then be intercepted under the authority of the authorization. [65] As counsel for the accused aptly put it, the police wanted to wiretap first and use the fruits of their wiretaps to hopefully develop an investigative plan that would provide the necessary credibly-based probability to justify interceptions under s. 186(1)(a). Section 186(1) does not contemplate the use of authorizations for information gathering purposes in the absence of reasonable grounds to believe the authorization, when issued, will afford evidence of the named offences. It is not enough that the authorizations will afford evidence at some point down the investigative road, after the police, using information gathered through wiretapping, have developed an effective plan to prompt communications among the targets. [66] I would hold the affidavit did not provide a basis upon which the issuing judge could conclude there were reasonable groups to believe the interceptions would afford evidence of the murder. As one of the prerequisites to the granting of an authorization under s. 186(1) did not exist, the interceptions resulted in a breach of the s. 8 rights of the accused. (ii) Section 186(1)(b): The investigative necessity requirement [67] The accused at both trials also argued the affidavit had failed to satisfy the investigative necessity requirement in s. 186(1)(b). Brown J. held that requirement was met (reasons paras. 76-87). Corthorn J. did not consider this issue. I will address it briefly. [68] The affiant asserted other investigative procedures were unlikely to succeed. However, the affidavit itself provides no basis for that conclusion. As I have indicated, the police conducted little, if any, investigation to attempt to update the homicide investigation before applying for the authorization. For example, they apparently made no effort to establish any ongoing connection among the targets, did not recontact the four confidential informants who had provided information earlier, and made no attempt to re-interview any potential witnesses. [69] Absent any attempts to bring the investigation up-to-date before applying for the authorization, I fail to see how it could be said that other investigative procedures had been tried or failed, or appeared unlikely to succeed. There is no suggestion that urgency could justify the authorization. [70] The investigative necessity requirement must speak to the status of the investigation at the time the application is made, not years earlier. The affidavit perhaps established investigative necessity as of the summer 2014, but was virtually silent about other investigative possibilities as of December 2016. [71] The Crown correctly submits that an authorization is not necessarily an investigative technique of last resort. It also cannot be the investigative technique of first resort when the police seek to breathe new life into a long dormant investigation. I think that is what the police sought to do here. There was no basis upon which the reviewing judge could be satisfied the issuing judge could find the investigative necessity requirement had been met. V should the evidence of the intercepted communications have been excluded under s. 24(2) of the Charter ? [72] Brown J., having concluded there was no s. 8 violation, did not address s. 24(2). Corthorn J. would have excluded the evidence: R. v. Bashir and Muddei , 2009 ONSC 4937 (s. 24(2) Ruling). [73] No one argues that the s. 24(2) analysis should yield different results in the two appeals. I will first consider whether Corthorn J. erred in law in excluding the evidence in R. v. Bashir and Muddei . Whatever conclusion I reach in R. v. Bashir and Muddei , I will apply to R. v. Thibault and Vaillant . [74] The decision of Corthorn J. with respect to the admissibility of the intercepted communications is entitled to deference in this court. Absent an error in law, a misapprehension of material evidence, a failure to consider relevant factors, or an unreasonable finding, this court will accept a trial judge’s decision to admit or exclude evidence under s. 24(2): R. v. Grant , 2009 SCC 32, at paras. 86, 127; R. v. C ô té , 2011 SCC 46, at para. 44; R. v. Szilagyi , 2018 ONCA 695, at para.  41; R. v. Strauss , 2017 ONCA 628, at para. 38. [75] The s. 24(2) analysis requires the exclusion of the evidence if its admission would, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of constitutionally tainted evidence on the repute of the justice system in the broad sense. The accused carries the onus to demonstrate the evidence should be excluded: Grant , at paras. 67-70. [76] Grant directs that the s. 24(2) inquiry should be approached by balancing assessments made under three lines of inquiry. They are: · the seriousness of the Charter - infringing state conduct; · the impact of the breach of the Charter - protected interests of the accused; and · society’s interest in an adjudication on the merits: Grant , at paras. 71-86. [77] The first line of inquiry examines the state conduct that resulted in the Charter breach. That conduct will fall along a continuum of blameworthiness ranging from a deliberate breach through various levels of negligence to a breach committed in good faith and reasonably. The more blameworthy the conduct, the stronger the argument for excluding the evidence: Grant , at paras. 72-75. [78] The second inquiry examines the impact on the Charter -protected interest of the accused flowing from the Charter breach. In this case, the Charter -protected interest is the privacy rights of the accused. The second inquiry requires an assessment of the extent to which that privacy interest was compromised by the improper interception of private communications. The more negative the impact on the privacy interests of the accused, the stronger the case for exclusion: Grant , at paras. 76-78. [79] The third inquiry is concerned with the impact of the admission or exclusion of the evidence on the integrity of the trial process. That integrity will suffer if reliable, cogent evidence is excluded. The routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the trial process: Grant , at paras. 79-81. [80] In R. v. Le , 2019 SCC 34, at para. 142, the majority explained the interaction of the three inquires: The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction – that is, toward a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case [citation omitted] we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the two inquiries pull toward the exclusion of the evidence. Where the first and second inquiries, taken to together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility [citation omitted]. Conversely, if the first two inquiries together reveal weaker support for the exclusion of the evidence, the third inquiry will often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. [81] Corthorn J. correctly identified the inquiries described in Grant : s. 24(2) Ruling, at paras. 5-8. There was no doubt that the second inquiry, the impact of the breach on the Charter -protected interests of the accused, strongly favoured the exclusion of the evidence. The accused were subjected to a prolonged and pervasive invasion of their private communications, a fundamental component of personal privacy. [82] The outcome of the s. 24(2) inquiry turns largely on the proper characterization of the seriousness of the Charter - infringing state conduct. Corthorn J. placed the conduct at “the more serious end of the spectrum”: s. 24(2) Ruling, at para. 30. In doing so, she emphasized two things. First, the inadequacies in the affidavit were far from minor or technical. In her view, the affidavit failed to provide any evidence upon which the issuing judge could reasonably draw any of the inferences necessary to satisfy the fundamental requirement of reasonable grounds to believe the authorization would afford evidence of the specified offences: s. 24(2) Ruling, at paras. 17-18. [83] Second, Corthorn J. was critical of the manner in which parts of the affidavit had been drafted. In her view, the affiant, through carelessness or inadvertence, had unintentionally misled the issuing judge in respect of a material fact, namely any ongoing connection among the targets of the proposed authorization: s. 24(2) Ruling, paras. 26-27. [84] I see no basis upon which this court can interfere with either finding. As to the fundamental nature of the inadequacies in the affidavit, not only was there no evidence upon which the issuing judge could have been satisfied the interceptions would afford evidence of the murder, there was also no basis for a finding of investigative necessity. The affidavit failed to provide a basis for a finding of either of the two prerequisites to the issuing of an authorization under s. 186. The inadequacies could not have been more fundamental. Corthorn J. did not err in describing them as “serious and significant”: s. 24(2) Ruling, para. 18. [85] The finding of Corthorn J., that aspects of the affidavit were unintentionally misleading, is also supported by the terms of the affidavit. As she points out, at para. 21, the affiant described Ms. Windebank as continuing to maintain contact with the group. This assertion was significant to the merits of the application, as there was virtually no evidence of any ongoing connection among the targets. Indeed, Brown J., in his review of the affidavit, saw Ms. Windebank as “an important character” in the police prompting strategy. [86] The unsubstantiated assertion of a continued connection between Ms. Windebank and the others caused Brown J. to misapprehend her potential importance to any future prompting strategy. It may well have had the same effect on the issuing judge. [87] In addition to the potentially misleading description of Ms. Windebank’s ongoing connection with the group, I think there is a second aspect of the affidavit that is also misleading. As set out above, the affiant describes three of the targets as having been arrested in relation to a “guns and gangs” police operation. The affidavit provides no details. Later, the affiant refers to Ms. Windebank as having been “charged along with” the other two targets. [88] In his reasons, Brown J. refers to the three targets as “co-accused”. The affidavit may imply the three targets were co-accused, but it does not actually say they were charged together, or that their charges had any connection to each other. The language used in the affidavit, and the absence of any details relating to the subject matter of the arrests, misled Brown J. to describe the three targets as “co-accused”. It may have had the same effect on the issuing judge. [89] The inadequacies in the affidavit must be considered having regard to the ex parte nature of the authorization for the application. The potential to mislead by careless drafting, or ambiguous silences, is very real. It falls to the affiant, and the Crown agent, to be especially careful to minimize the risk that the issuing judge will be unintentionally misled by the language in the affidavit. [90] In fairness, most of the affidavit was drawn in a straightforward and accurate manner. Corthorn J. accepted there was no intention to mislead the issuing judge. However, the misleading aspects of the affidavit go to the existence of any ongoing connection among the targets, a crucial component of the Crown’s reasonable grounds claim, and probably the weakest part of that claim. Corthorn J.’s finding that the affiant, through carelessness or inadvertence, misled the issuing judge on an important component of the affidavit supported her finding that the nature of the state misconduct should be placed toward the more serious end of the continuum: see R. v. Rocha , 2012 ONCA 707, at paras. 27-37. [91] Counsel for the provincial Crown made two additional arguments, which they submit were not considered by Corthorn J. and, which if taken into account, significantly diminish the blameworthiness of the state conduct resulting in the s. 8 breach. They submit the police followed the required procedure under the Criminal Code by seeking a judicial authorization. In doing so, the police acted in good faith and with the judicial approval of the issuing judge: Rocha , at paras. 28, 32. [92] The Crown submission is a fair one, but it goes only so far in assessing the blameworthiness of the state conduct. Even when the police follow the proper procedures and seek a judicial authorization, serious inadequacies in the material placed before the issuing judge can justify a finding the police acted negligently or unreasonably, thereby exacerbating the blameworthiness of the state conduct leading to the Charter breach: Rocha , at paras. 32-38. Corthorn J. properly used her finding that the affidavit was materially, albeit unintentionally, misleading to place the state conduct at the more serious end of the fault spectrum. [93] Crown counsel also argue that the seriousness of the state conduct is mitigated because the grounds set out in the affidavit, if they were inadequate, fell just short of the grounds needed for an authorization. This was a near miss, say Crown counsel. [94] Corthorn J. did not accept this submission. Nor do I. I have difficulty with the proposition that an affidavit that does not provide a basis upon which an issuing judge could (not should or would) be satisfied the criteria in s. 186(1) have been met can be accurately described as a near miss. The standard of review to be applied by the reviewing judge sets a relatively low bar. I would think that most affidavits which cannot clear that low bar will be seriously deficient in setting out the grounds required to justify the issuance of an authorization. [95] Finally, I cannot agree that the finding by Brown J., that the affidavit satisfied the requirements of s. 186(1), supports the claim that if the affidavit fell short, it barely missed the mark. With respect to Brown J., he fell into the same error as the affiant. Both viewed the existence of grounds to obtain an authorization in the distant past, combined with a generic potential plan to employ prompting strategies in the future, as sufficient to provide the requisite reasonable grounds. For the reasons set out above, that combination may create suspicion warranting further investigation. The combination, without more, however, does not meet the requirements of s. 186(1) of the Criminal Code . [96] On the findings of Corthorn J., the first and second inquiries described in Grant strongly favoured exclusion. She properly excluded the evidence. VI conclusion [97] I would dismiss the appeal from the acquittals in R. v. Bashir and Muddei . [98] I would allow the appeal from the convictions in R. v. Thibault and Vaillant . The evidence obtained pursuant to the authorization should have been excluded under s. 24(2) of the Charter . The Crown acknowledges that the excluded evidence was “essential to the Crown’s case”. The convictions should be quashed and acquittals entered. Released: “APRIL 1 2021” “DD” “Doherty J.A.” “I agree B. Zarnett J.A.” “I agree Coroza J.A.” [1] There were two other persons charged with Thibault and Vaillant, but they are not involved in the appeal. [2] The authorization was amended in December 2016 and a second authorization was granted in February 2017. For the purposes of the appeals, only the authorization granted in December 2016 is relevant. [3] The reasons of Brown J. are not reported. They were released on February 2, 2019 and can be found in court file number 17-RF1043. [4] The appellant, Vaillant, was not named in the first authorization, but was named in the authorization granted on February 1, 2017. The respondent, Muddei, was not named at all. Nothing in my analysis turns on whether individuals were named or not named in the authorizations. [5] The affidavit does refer to information received from confidential informant # 5 in August and September 2016. That information provided the phone numbers of certain targets, and indicated Bashir was back in Ottawa and involved in drug trafficking. This information did not advance the homicide investigation. [6] It would appear that something is missing from this sentence. [7] In this case, there were redactions in the affidavit. The Crown did not rely on any of the redacted parts of the affidavit when defending the authorization.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ngong, 2021 ONCA 62 DATE: 20210128 DOCKET: M52023; M52118 (C68299) Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent (Applicant on M52023) and Simon Ngong Appellant (Applicant on M52118) Deborah Krick, for the applicant on M52023 Mark Halfyard, for the applicant on M52118 Heard and released orally: January 27, 2021 REASONS FOR DECISION [1] On September 13, 2019 a jury found the appellant guilty of two firearms offences. About two months later, the trial judge found the appellant guilty and entered convictions on two counts of breach of probation and two counts of breaching firearms prohibitions. [2] The trial judge imposed a global sentence of imprisonment of six and one-half years. When the trial judge awarded the appellant credit for time spent in pre-disposition custody, the sentence to be served was reduced to 3 years, 8 months and 25 days. [3] The appellant filed an inmate notice of appeal against conviction and sentence. On April 27, 2020 a solicitor’s notice of appeal was filed on the appellant’s behalf. [4] On May 4, 2020, a judge of this court ordered the appellant’s release pending the determination of his appeal. The release order required the appellant to reside at a specific address with his surety, his father. He was not to leave the home of his surety unless he was in the presence of his surety or for a medical emergency. [5] The release order also required the appellant to surrender into custody on the earlier of November 30, 2020, or 6:00 p.m. on the day before his appeal was listed for hearing. The order contained the usual acknowledgment that failure to surrender as required is deemed to constitute an abandonment of the appeal. [6] Shortly before November 30, 2020 counsel for the appellant advised the respondent that communications had broken down with the appellant. As a result, counsel was unable to get instructions to seek an extension of the appellant’s release order. A bail compliance check at the residence where the appellant was required to live with his surety revealed that both the appellant and his surety had left one evening about three months earlier and had never returned. [7] The appellant did not surrender into custody on November 30, 2020, as he was required to do by the terms of his release order. His appeal has not been perfected. His counsel seeks and we grant an order that he (counsel) be removed as solicitor of record. [8] The respondent seeks an order that the appeal be dismissed as an abandoned appeal. The appellant has repudiated the jurisdiction of the court by absconding. He has acknowledged in his release order that a failure to surrender in accordance with its terms deems his appeal to be abandoned. There are no exceptional circumstances. [9] Our authority to dismiss the appeal as abandoned is undoubted in these circumstances: R. v. Dzambas (1973), 14 C.C.C. (2d) 364 (Ont. C.A.), at p. 365. In our view, this is a case in which that jurisdiction should be invoked. [10] The appeal is dismissed as an abandoned appeal. A warrant for the appellant’s arrest and committal will issue. “Fairburn A.C.J.O.” “David Watt J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Norman, 2021 ONCA 321 DATE: 20210514 DOCKET: C66720 Fairburn A.C.J.O., Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Appellant and Francis Norman Respondent Howard Piafsky, for the appellant Ingrid Grant and Sara Samet, for the respondent Heard: October 28, 2020 by video conference On appeal from the acquittal entered by Justice Stuart W. Konyer of the Ontario Court of Justice on February 1, 2019, with reasons reported at 2019 ONCJ 51. Coroza J.A.: A. OVERVIEW [1] The respondent, Francis Norman, was tried in the Ontario Court of Justice on three counts of trafficking and two counts of breach of probation. At trial, he conceded that he smuggled drugs into the Central East Correctional Centre (the “C.E.C.C.”) by secreting them inside his body. He also conceded that he was bound by the probation orders in question. However, he claimed that he was acting under duress, due to another inmate’s threats made to him and his brother. The trial judge concluded that there was an air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply. The respondent was acquitted of all charges. [2] On this appeal, the appellant Crown argues that the trial judge erred in finding that there was an air of reality to the duress defence. The Crown asks this court to allow the appeal, set aside the acquittal, and order a new trial. For the following reasons, I would dismiss the appeal. B. THE EVIDENCE [3] The respondent is no stranger to jails. He has a criminal record and, by the time of trial, had been in and out of jail for the past seven years. Between February 22 and March 12, 2018, he was in custody at the C.E.C.C. During this period, the respondent’s brother was also in custody at the C.E.C.C. This was his brother’s first time in custody. At some point, the respondent asked correctional officers to be placed in the same unit as his brother. He was worried about his brother’s inexperience, and he wanted to protect him from other inmates. [4] According to the respondent, another inmate, known to him as "Big Newf," asked him on two occasions to smuggle drugs into the jail. The respondent initially declined, but Big Newf told him that the respondent and his brother would be stabbed if he did not comply. The respondent took this threat seriously, because he knew Big Newf by reputation and believed that he was affiliated with the Hells Angels. The respondent had previously been incarcerated in the same jail as Big Newf, and he witnessed him possessing make-shift weapons and assaulting other individuals. [5] The respondent also testified to a specific instance where Big Newf used violence to achieve his goals. At some point, Big Newf decided that he wanted the job of unit cleaner. The evidence at trial was that the role of cleaner was a sought-after position within the institution, as cleaners enjoyed extra privileges like additional time outside their cells, even during periods of lockdown. Big Newf asked the then cleaners in the respondent’s unit to resign, so that he and an associate could take over in that role. When the cleaners refused to cede this role to Big Newf, he arranged for other inmates to assault the cleaners, resulting in their removal from the unit. The correctional staff then appointed Big Newf and his associate as the new cleaners. [6] As a result of this experience, the respondent believed that Big Newf enjoyed tremendous power and influence at the C.E.C.C. Accordingly, after Big Newf made the threats, he feared for his and his brother’s safety and agreed to participate in Big Newf’s plan. [7] Big Newf arranged for a surety for the respondent to help him obtain bail. On March 12, 2018, the respondent was released on bail under the supervision of his surety, a female associate of Big Newf. He was taken to what he described as a “trap house” – a place where drugs were stored, purchased, and consumed – in Keswick, Ontario. While there, he was watched by the female associate, as well as a separate, male associate of Big Newf. He was asked to help grind marijuana and package drugs. At one point, the male associate placed a gun on the table in front of the respondent while he told the respondent what to do. The respondent testified that this made him uncomfortable. He believed that it was an implicit threat to him, to ensure his compliance with the plan. [8] The respondent stayed at this home until March 21, 2018. On that day, he was given packages of drugs to swallow or insert in his rectum. He was then taken to Oshawa where, on the instructions of Big Newf’s associates, he reported himself to the police. The respondent had an outstanding warrant and was arrested by the police. [9] After his arrest, he was held in custody in Oshawa for over 24 hours. During this period, the appellant did not seek assistance from any of the police officers with whom he came into contact. Eventually, the respondent was taken to court for a bail hearing and, later, back to the C.E.C.C. Again, the respondent did not alert anyone to his situation. When he returned to the C.E.C.C., he set off an alarm during a routine body scan. Correctional staff suspected that there were drugs hidden in the respondent’s body and placed him in a segregation cell to monitor him. [10] On March 23, 2018, correctional officers at the C.E.C.C. observed the respondent in distress. He was screaming that he did not want to die, burn, or blow up. He also appeared to be talking to his brother, who was not present. He said that there were packages inside him and he thought that one had burst. A nurse was called, who ultimately decided that the respondent should be taken to the hospital. [11] Correctional officers searched the respondent’s cell, seizing packages of drugs found there. The respondent excreted more drug packages while at the hospital. On his return to the C.E.C.C., he became increasingly agitated and made statements suggesting that he was afraid for his and his brother’s life. C. THE TRIAL JUDGE’S REASONS [12] At trial, the respondent conceded that he trafficked drugs by smuggling them into the C.E.C.C. and that he was bound by the probation orders in question. Accordingly, the sole issue was whether his defence of duress succeeded. [13] After discussing the facts, the trial judge reviewed the defence of duress as it exists under both s. 17 of the Criminal Code , R.S.C., 1985, c. C-46 and the common law. He referenced the principles established in the Supreme Court of Canada’s two leading duress decisions, R. v. Ruzic , 2001 SCC 24, [2001] 1 S.C.R. 687 and R. v. Ryan , 2013 SCC 3, [2013] 1 S.C.R. 14. [14] The trial judge observed that duress is an excuse “which operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea ”. He also noted that per Ruzic and Ryan , the statutory defence of duress under s. 17 is supplemented by the common law defence of duress. [15] The trial judge also observed that in order for a defence to be considered by a trier of fact, they must first be satisfied that the defence has an air of reality. This meant that “[t]here [was] an evidentiary burden on the accused to lead sufficient evidence to put the defence in play by establishing an air of reality”. He explained that, in order “[t]o establish an air of reality, there must be some evidence on each element of the defence which, if believed by a reasonable jury, could result in an acquittal”. The trial judge then stated that if the accused were to meet this burden, the onus would shift to the Crown to prove beyond a reasonable doubt that the accused did not act under duress. [16] The arguments at trial focused on the narrow question of whether there was an air of reality to the respondent’s claim that he had “no safe avenue of escape”, one of the elements of the defence. The trial judge recognized that the existence of a safe avenue of escape is to be determined on an objective standard and adjusted for subjective circumstances. Further, an accused’s asserted belief that they lacked a reasonable alternative is not sufficient, standing alone, to give an air of reality to the defence. The trial judge noted that the question is whether a reasonable person, with a similar history, personal circumstances, abilities, capacities, and human frailties as the accused would, in the particular circumstances, reasonably believe there was no safe avenue of escape. [17] At para. 31 of his reasons, the trial judge concluded that the respondent had demonstrated that there was an air of reality to the no safe avenue of escape element of duress, stating: [i]n my view, [the respondent] has tendered sufficient evidence to lend an air of reality to his claim that he had no safe avenue of escape . He cogently explained why he formed this belief, in large part due to his particular knowledge and experience within the C.E.C.C. It is beyond serious dispute that jails are inherently violent and dangerous environments, and that stronger inmates with networks prey on weaker inmates who lack such affiliations. [The respondent’s] claim that he felt there was no safe avenue that could afford adequate protection to both him and his brother while they remained in custody is, in my view, a reasonable one. His explanation for why he believed that approaching correctional staff would not protect him or his brother was sensible. Similarly, his explanations for why he failed to try and escape or alert authorities once he himself was released from custody – the fear of repercussions to his brother – was also sensible . I find there is an air of reality to his claim of duress in the particular circumstances of this case. [Emphasis added.] [18] Accordingly, the trial judge went on to consider whether the Crown had proven beyond a reasonable doubt that the respondent did not act under duress. In his view, the Crown failed to do so. He concluded that, although the respondent had alternatives available to him other than complying with the scheme, he was left with a reasonable doubt that a realistically safe alternative existed in the circumstances. The trial judge was of the view that the respondent’s conclusion – that the only way to protect both himself and his brother was to comply with Big Newf’s demands – was reasonable in the circumstances. D. THE GROUND OF APPEAL [19] The Crown raises a single ground of appeal. The Crown argues that the trial judge erred in concluding that there was an air of reality to the "no safe avenue of escape" element of duress. The Crown submits that on the respondent’s own evidence, he had an obvious and safe means of escape and no trier of fact could reasonably come to any other conclusion. [20] The respondent contends that the appeal should be dismissed because there was clearly an air of reality to his defence of duress. The defence was well supported in the evidence and the trial judge did not commit any error in deciding that he had met his burden. E. DISCUSSION (1) The Appellant’s Argument [21] The Crown does not take issue with the trial judge’s recitation of the relevant legal principles. Nor does the Crown argue that the trial judge failed to provide sufficient reasons. The Crown’s argument on appeal is a narrow one, arguing that the trial judge erred in finding that there was an air of reality to the defence of duress. The Crown contends that the trial judge failed to address how the respondent’s numerous opportunities to seek help, available over the course of a month leading up to his apprehension for the subject offences, impacted his claim of duress. In particular, the Crown focuses in on the last 24-hour period that the respondent was in police custody. During that period of time, the respondent was away from the C.E.C.C., away from Big Newf, and away from Big Newf’s associates. [22] In order to place the Crown’s submission in context, I will first briefly review the elements of duress. Next, I will review the air of reality inquiry and explain what is required for a defence to be considered by a trier of fact. Finally, I will assess the Crown’s argument on appeal that the trial judge erred by concluding that there was an air of reality to the duress defence. (2) Duress [23] The defence of duress is properly characterized as an excuse, animated by the rationale of moral involuntariness: Ryan , at para. 23. As the trial judge noted, it is a defence grounded in both statute and the common law. However, the essential elements of the two duress defences are “largely the same”: R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at para. 25, leave to appeal refused, [2015] S.C.C.A. No. 497; Ryan , at para. 81. [24] The trial judge accurately summarized the elements of the defence of duress under both statute and common law. For ease of reference, I repeat the common elements of both forms of the defence, as discussed in Ryan , at para. 81: a. There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party. b. The accused must reasonably believe that the threat will be carried out. c. There is no safe avenue of escape. This element is evaluated on a modified objective standard. d. A close temporal connection between the threat and the harm threatened. e. Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard. f. The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy, or association. [25] Finally, “if the defence is available in law, and the evidence gives an air of reality to the defence, an accused is entitled to an acquittal unless the Crown disproves one or more of the essential elements of the defence on a reasonable doubt standard”: Aravena , at para. 27. (3) The Air of Reality Inquiry and Duress [26] When a trial judge is asked to conclude whether a defence has an air of reality, they must determine whether there is direct evidence upon which a properly instructed jury, acting reasonably, could base an acquittal if it believed the evidence to be true: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 82-83. Regardless of who elicited the evidence, if there is direct evidence on each element of the defence, the defence must be left with the trier of fact: Cinous, at para. 88. If circumstantial evidence is relied on, the trial judge must engage in a “limited weighing” to determine if the circumstantial evidence is “reasonably capable of supporting the requisite inferences” necessary to support the defence: at paras. 89-90. A trial judge “does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence”: at para. 91. [27] The inquiry into whether there is an air of reality to a defence is not intended to assess the likelihood of success for that defence: see R. v. Cairney , 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21; R. v. Suarez-Noa , 2017 ONCA 627, 139 O.R. (3d) 508, at para. 41, leave to appeal refused, [2018] S.C.C.A. No. 142. Instead, this inquiry requires a determination of whether the accused can point to something in the evidence capable of reasonably supporting the factual inferences that would at least leave the trier of fact with a reasonable doubt about the existence of each of the essential factual elements of the defence: R. v. Ronald , 2019 ONCA 971, at para. 44. [28] Finally, whether an air of reality exists for a potential defence is a question of law, reviewable on a standard of correctness: Cinous , at para. 55; R. v. Tran , 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40. (4) Did the Trial Judge Err in Concluding That There Was an Air of Reality to the Defence of Duress? [29] The trial judge concluded, at para. 31 of his reasons, that the respondent had tendered evidence sufficient to lend an air of reality to his claim that he had no safe avenue of escape. This paragraph is reproduced earlier in my reasons. Although the trial judge’s reasons on this issue are brief, they must be read in light of the evidence that was before the trial judge, the submissions of counsel, and other portions of the reasons. [30] At trial, both parties focused their submissions on the “safe avenue of escape” element of duress. Therefore, the trial judge decided to focus his analysis on this issue. [31] The Crown’s primary complaint on appeal is that the trial judge misapplied the modified objective standard of the “no safe avenue of escape” element of duress. The Crown contends that the trial judge rendered the objective component of this element meaningless, as he failed to address how the numerous opportunities open to the respondent to safely extract both himself and his brother impacted the air of reality of his claim. In my view, a careful examination of the trial judge’s reasons dispels this argument. [32] Importantly, this appeal is not about whether this court would have reached the same conclusion as the trial judge on whether there was an air of reality to the appellant’s suggestion that he had no safe avenue of escape. Rather, the question on appeal is whether the trial judge understood the operative modified objective test to be applied when determining whether there is an air of reality to this element of the defence of duress and whether that test was properly applied. I see no error in how the trial judge approached the matter. [33] Paragraph 29 of the trial judge’s reasons demonstrates that he understood the modified objective component of the element of duress involving a safe avenue of escape. The trial judge specifically cited to this court’s decision in R. v. D.B.M. , 2016 ONCA 264, which adopted, at para. 7, the Court of Appeal of Alberta’s commentary on this element in R. v. Keller , 1998 ABCA 357, 131 C.C.C. (3d) 59, at para. 24: the existence of a safe avenue of escape is to be determined on an objective standard and is adjusted for subjective circumstances. The belief of the accused that he had no reasonable alternative is not sufficient to give an air of reality to the defence simply because the belief is asserted. The question is whether a reasonable person, with similar history, personal circumstances, abilities, capacities and human frailties as the accused, would, in the particular circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to coercion. [34] The trial judge then referenced this court’s decision in R. v. Li (2002), 162 C.C.C. (3d) 360, quoting from para. 29 of that decision: [i]n applying [the duress defence], the law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must take into consideration the special circumstances in which the accused finds himself or herself as well as his or her perception of those circumstances ( R. v. Ruzic, supra , at pp. 31 and 40). [35] The trial judge’s reasons reflect that he understood that he had to focus on what a reasonable person would do, bearing in mind the respondent’s situation and personal characteristics: R. v. Willis , 2016 MBCA 113, 344 C.C.C. (3d) 443, at paras. 183-184, leave to appeal refused, [2017] S.C.C.A. No. 45. The trial judge’s reasons further reflect that this is how he approached the task. [36] First, the trial judge found that the respondent cogently explained why he formed the belief that he lacked a safe avenue of escape, in large part due to the respondent’s knowledge of both the C.E.C.C. and Big Newf. While others may not have found the respondent’s evidence as compelling as the trial judge, it was open to him to conclude that there was an air of reality to the respondent’s claim that, for his brother’s and his sake, he believed that he lacked a safe avenue of escape. This is particularly true given that the respondent explained that he had been in and out of jail for over seven years and understood the politics of the inmate system. Both he and his brother were on the same range as Big Newf. He had previously witnessed Big Newf carry a homemade knife and assault other inmates. He also explained how Big Newf had used violence to assume the role of unit cleaner – a highly sought-after position in the jail – and that he was affiliated with others in the C.E.C.C. This evidence was not challenged. [37] Second, the trial judge also observed that the respondent provided a sensible explanation for his belief that approaching correctional staff would not protect him or his brother. This finding was supported by the evidence of Cst. Benson, a police officer stationed at the C.E.C.C. Cst. Benson’s evidence was that violence causing injury is a daily occurrence in the C.E.C.C.; that there were gangs operating there, including the Hells Angels; and that inmates suspected of talking to the police, or otherwise acting as “rats”, are subjected to violence. [38] The trial judge’s conclusion on this point was fortified by other evidence introduced at trial. Once the respondent was back at the C.E.C.C., he was intimidated by another inmate despite being in segregation. Furthermore, although he was transferred to Quinte Detention Centre, he was the victim of a serious assault there by other inmates who threatened him not to implicate anyone at his upcoming judicial pretrial. Therefore, there was objective, unchallenged evidence that placing the respondent in segregation or transferring him to another institution would not necessarily protect him from harm. [39] Third, the trial judge’s finding about why the respondent did not attempt to escape the scheme or alert authorities once he was released from custody was also available on the evidence. The respondent’s evidence was that, although it was possible to attempt an escape from the “trap house”, he was threatened by Big Newf’s armed associate while there. The respondent also knew that his brother continued to be on the same range as Big Newf, and he feared the potential repercussions of non-compliance with the scheme. It was open to the trial judge to conclude that any attempt to flee, or to otherwise refuse to carry out the plan, would be communicated to Big Newf. [40] During argument, the Crown pointed to portions of the respondent’s cross-examination where the respondent agreed that the police could have taken steps to protect his brother. Taken in isolation, these portions suggest that there was no air of reality to the defence. However, I agree with the respondent that those answers must be considered in the broader context of his evidence, namely that he believed that he and his brother would be harmed if he reported the scheme. [41] In conclusion, I do not accept that the trial judge erred in his application of the air of reality test. I would dismiss the appeal. [42] Before leaving this matter, I wish to comment on one aspect of the Crown’s submissions in this court on the broader concerns engaged here, should this court dismiss the appeal. The Crown argues that the respondent’s story reads like a recipe for other inmates to claim that they were coerced into similar schemes. The Crown contends that if the respondent’s argument succeeds, it will be due to the uncontroversial notion that jails are inherently violent places. On the trial judge’s analysis, therefore, there could be no avenue safe enough for the respondent to have removed himself from the situation, rendering the objective component of this analysis meaningless. [43] In the circumstances of this case, I do not accept this argument. Nothing about this case changes the law of duress. Nor does anything in this case change the court’s remarks in Ruzic that courts must apply strict standards for the application of the defence to prevent its abuse: at para. 59. [44] This appeal is not about whether this court would have reached the same conclusion as the trial judge. Instead, the appeal was argued on a very narrow ground, namely, whether there was evidence before the trial judge upon which he could reasonably infer that the claim of duress succeeded. The issue was not whether this court would have come to the same conclusion as the trial judge in this case. [45] This was an unusual case. The respondent’s brother was in custody at the same time, and on the same range, as Big Newf. According to the respondent, his brother remained there while the respondent was on the outside, attempting to comply with Big Newf’s demands. The trial judge concluded that there was an air of reality to the defence of duress in the circumstances of this case. In my view, he did not err in reaching that conclusion. F. DISPOSITION [46] For these reasons, I would dismiss the appeal. Released: May 14, 2021 “J.M.F.” “S. Coroza J.A.” “I agree. Fairburn A.C.J.O.” “I agree. M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 486.6 (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Omardeen, 2021 ONCA 166 DATE: 20210318 DOCKET: C67170 Tulloch, Huscroft and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Brandon Omardeen Appellant Brandon Omardeen, acting in person Michael Lacy, appearing as duty counsel Michael Fawcett and Gregory Furmaniuk, for the respondent Heard by video conference: March 11, 2021 On appeal from the conviction entered on March 20, 2019 and the sentence imposed on June 21, 2019 by Justice Richard H.K. Schwarzl of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of pointing a firearm; possession of a firearm without a license; discharging a firearm with intent to endanger; breach of probation; breach of recognizance; and possessing a firearm knowingly without a license. He was acquitted on a joint charge of possession of a weapon dangerous to the public peace. [2] The appellant alleges numerous errors by the trial judge and contests the trial judge’s credibility and reliability findings. He points out that no gunshot residue was found on him and says this means he could not have been the shooter. [3] We see no merit in the appellant’s submissions. The trial judge’s credibility and reliability findings are entitled to deference and there is no basis for this court to interfere with them. As for the absence of gunshot residue evidence, the trial judge heard expert evidence and explained why the absence of gunshot residue did not raise a reasonable doubt. [4] Duty counsel makes two submissions on behalf of the appellant. First, he submits that the trial judge’s decision that the appellant’s identification was established beyond a reasonable doubt is unreasonable. Duty counsel says that the witness Lal’s ability to provide a detailed description of the shooter was at odds with his inability to pick the appellant out of a photographic lineup. The witness Lahore was not in as good a position to identify the shooter, and his positive identification of the appellant is suspect because he was aware of the appellant’s name before the identification process and gave “somewhat equivocal” answers about whether he had seen the appellant’s photograph on the internet prior to identifying him. [5] We do not accept this submission. [6] Lahore knew Jaggernauth, who was a nearby neighbour, but did not know the appellant. Lal did not know either man. Both Lal and Lahore identified Jaggernauth from a police photo lineup but only Lahore identified the appellant. His identification of the appellant was emphatic, as he wrote: “Yes! This is most certainly the individual that fired the weapon.” Lahore’s identification was enhanced by the fact that although the appellant lived at 230 Howard Crescent, neither Lahore nor Lal knew this. [7] The trial judge considered and rejected the evidence that Lahore’s photo lineup identification of the appellant was tainted because he was told the appellant’s name prior to the lineup and might have looked him up on the internet. The trial judge accepted that Lahore’s evidence was solely the product of his accurate memory. He found that there was no collaboration, collusion or undue influence by Lahore or Lal on each other and found their evidence “compelling” and confirmed by the physical evidence. [8] The trial judge provided clear and cogent reasons for being satisfied beyond a reasonable doubt that the person seen by Lahore and Lal was the appellant. Although Lal did not pick the appellant out of the police lineup, his description of the appellant was consistent with other evidence identifying the appellant, as well as the description of the police officers and the photograph of Omardeen that Lahore picked out of the lineup. There is no basis for this court to interfere with the trial judge’s findings. [9] Duty counsel argues, secondly, that the trial judge erred in finding that the appellant’s attempt to avoid being arrested demonstrated consciousness of guilt. The appellant was unlawfully at large when the police attended 230 Howard Crescent following the shooting and he had reason to avoid arrest that had nothing to do with the shooting. [10] We disagree. [11] First, we note that the appellant’s post-offence conduct played only a minimal role in the trial judge’s finding of guilt. Having found the evidence of Lahore and Lal compelling and confirmed by independent expert and physical evidence, the trial judge went on to say that the appellant’s post-offence conduct supported the finding of guilt. [12] The trial judge did not err concerning the post-offence conduct evidence. There is no question that the appellant was hiding in the basement of 230 Howard Crescent following the shooting. The trial judge considered and rejected the argument that he was hiding to avoid arrest for being unlawfully at large. In all of the circumstances, it was open to the trial judge to conclude that the only plausible inference was that the appellant was attempting to evade the police because he was the shooter. This inference was amply supported by the circumstances surrounding the appellant’s arrest at the scene following the shooting – several police officers, with a police dog, yelling to the appellant to surrender – all of which indicated that the matter was far more serious than an arrest for failing to report to serve an intermittent sentence. [13] The appellant received a net sentence of 61 months’ imprisonment after receiving credit for 34.5 months’ time served. We see no error in principle nor is the sentence demonstrably unfit. The list of aggravating factors was extensive and included the appellant’s lengthy criminal record with violent offences and weapons crimes. The sentencing judge’s decision as to credit for presentence custody is entitled to deference. In summary, there is no basis for this court to interfere with the sentence on appeal. [14] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. “M. Tulloch J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 111(1)         Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)         Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Oppong, 2021 ONCA 352 DATE: 20210525 DOCKET: C65486 & C64579 Rouleau, van Rensburg and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Derek Oppong Appellant AND BETWEEN Her Majesty the Queen Respondent and Akido Thomas Appellant Dirk Derstine, for the appellant Derek Oppong Akido Thomas, appearing in person Geoff Haskell, for the appellant Akido Thomas, pursuant to a limited order under s. 684 of the Criminal Code Amy Alyea, for the respondent Heard: January 14, 2021 by video conference On appeal from the conviction entered on June 8, 2017 by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a jury, and the sentence imposed on November 6, 2017, with reasons reported at 2017 ONSC 6684 (C65486). On appeal from the conviction entered on June 8, 2017 by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a jury (C64579). van Rensburg J.A.: I OVERVIEW [1] The appellants and a co-accused, Raheem Thomas-Stewart, were tried before judge and jury and convicted of having committed various kidnapping-related offences with a firearm at the direction of or for the benefit of a criminal organization. Mr. Oppong was acquitted of attempted murder. Mr. Oppong was sentenced to 11 years in prison, less credit for four years’ pre-sentence custody. Mr. Thomas was sentenced to nine years, less credit for 52 months’ pre-sentence custody. [2] Mr. Oppong appeals his conviction and seeks to appeal his sentence. Mr. Thomas appeals only his conviction, having withdrawn his sentence appeal at the hearing of the appeal. Mr. Thomas was represented by counsel on a limited retainer under s. 684 of the Criminal Code , R.S.C. 1985, c. C-46 . [3] On their conviction appeals the appellants assert that the trial judge erred in admitting the opinion evidence of an expert witness relating to gang activity and discipline. They say that the trial judge erred in admitting the expert’s evidence, which was unnecessary and biased, and in failing to find that its prejudicial effect outweighed its probative value. In the alternative, they contend that the trial judge erred in refusing to exclude the expert evidence after a material change in circumstances: the proposed admission of certain facts that obviated the need for the expert evidence. [4] In his sentence appeal, Mr. Oppong asserts that the trial judge made a finding that was not supported by the evidence – that he was a leader of a street gang called In Da Streets (“IDS”). Without this finding, he contends that he ought to have received the same sentence as Mr. Thomas. [1] [5] For the reasons that follow, I would dismiss the conviction appeals and the sentence appeal. [6] As I will explain, the trial judge made no reversible error in admitting the expert evidence in this case. He addressed the concerns raised by the defence, and exercised appropriate caution in admitting some, but not all, of the proposed expert evidence, and in limiting the specific items the expert was permitted to rely on when testifying, in order to avoid prejudice to the accused. The trial judge did not err in refusing to exclude the expert evidence on the basis of a material change in circumstances after the appellants’ counsel indicated that the appellants were prepared to admit certain facts. He reasonably concluded that the facts the appellants were prepared to admit did not alter the balance between the prejudicial effect and probative value of the expert evidence. [7] As for the sentence appeal, contrary to Mr. Oppong’s argument, there was evidence to support the conclusion that he was a leader of IDS, and his sentence was entirely fit. [8] In the reasons that follow, I will address the issues raised in the conviction appeals and then I will turn to Mr. Oppong’s sentence appeal. II CONVICTION APPEALS A. THE OFFENCE [9] The charges arose out of an alleged incident between the appellants, their co-accused, and Dontay Haye, while they were all members of IDS, a street gang that operated in the Toronto neighbourhood of Jamestown. [10] Mr. Haye, who was 16 years old at the time, claimed that on May 19, 2015 he was warned by friends that people were looking for him because they believed he had stolen one of the guns belonging to the gang. They suspected that Mr. Haye had taken the gun because he knew that the gun was normally hidden in a BBQ grill near the home of Mr. Haye’s best friend, A.M. Mr. Haye claimed that, as he was walking through the neighbourhood, he was approached by Mr. Thomas and Mr. Thomas-Stewart, who punched him in the face and chest. Mr. Thomas had a handgun and threatened to shoot him. They forced Mr. Haye to follow them to John Garland Blvd., where they met up with Mr. Oppong and several other men who assaulted him again. Mr. Oppong kept asking him where the gun was, and Mr. Haye kept saying that he did not have it. [11] After the second assault, Mr. Oppong told Mr. Haye to get into a car. He drove Mr. Haye to a housing complex where Mr. Oppong told him that he could either bring back the gun or give him $2,500, or else he would be “flipped” (i.e.: killed). They walked toward a field near the housing complex where they were joined by A.M., who had a gun. Mr. Oppong told Mr. Haye that this was his last chance. As Mr. Haye started to run away, Mr. Oppong told A.M. to chase after and to shoot him. A.M. chased after Mr. Haye, but he did not shoot. Mr. Haye managed to escape. He ran to a nearby townhouse unit where he persuaded the occupant to call 911. [12] Mr. Haye eventually entered the witness protection program and provided his account of the events to the police. [13] The movements of the parties were captured by CCTV cameras. The defence theory at trial was that Mr. Haye fabricated the story about having been assaulted, threatened and kidnapped. The accused did not testify. The central issue was the credibility and reliability of Mr. Haye’s account. B. THE EXPERT EVIDENCE The Admissibility Ruling [14] The Crown brought a pre-trial application seeking to admit expert opinion evidence from Detective Aman Nasser, [2] a Toronto police officer with considerable experience and knowledge of street gangs in Toronto. [15] The Crown proposed that Detective Nasser would testify about the IDS gang and the general nature and activities of urban street gangs and their characteristics as “criminal organizations” within the definition of that term in s. 467.1(1) of the Criminal Code. Detective Nasser had prepared an expert report, in which he responded to three questions: (1) is IDS a “street gang”; (2) would IDS benefit from kidnapping Mr. Haye; and (3) are Mr. Oppong, Mr. Thomas, and Mr. Thomas-Stewart members of IDS? [16] The Crown argued that the expert evidence was required to demonstrate essential elements of the criminal organization offences: that IDS is a criminal organization and that the kidnapping and assault of Mr. Haye would have benefited IDS. The Crown also submitted that the evidence assisted in understanding the context or narrative of the alleged offences. [17] The application was opposed by the defence on the basis that the proposed expert evidence failed to meet the first two Mohan criteria of necessity and relevance: R. v. Mohan , [1994] 2 S.C.R. 9. They asserted that the evidence was unnecessary because Mr. Haye would be able to provide all the evidence needed to show that IDS is a street gang, and that the issues in the case went to credibility and were not such that the jury required additional context. The defence also argued for the exclusion of the evidence at the “gatekeeper” stage – that the probative value of the proposed expert evidence was outweighed by its prejudicial effect, failing the cost-benefit analysis set out in R. v. Abbey , 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal refused, [2010] S.C.C.A. No. 125. [18] The application to introduce expert evidence, which included a voir dire in which the proposed expert testified, was heard over the course of four days. The trial judge provided an oral ruling in which he concluded that Detective Nasser’s expert evidence was admissible, although he limited the scope of such evidence. He provided a table of specific rulings on the admissibility of certain items of evidence that the expert could or could not refer to in his testimony. [19] In the trial judge’s written reasons (reported at 2017 ONSC 3443), he concluded that the proposed expert evidence met the four Mohan criteria. He noted that defence counsel had conceded that Detective Nasser was a properly qualified expert and that there was no exclusionary rule that applied. In addressing the two contested criteria, the trial judge found that the proposed evidence was logically relevant and necessary. He stated: I find that the evidence is logically relevant to [the] facts in issue: [ Abbey ], at para. 84. The characteristics of street gangs and street gang ideology are relevant to understanding the context of the alleged offences. The expert evidence is also relevant to whether the assault and kidnapping of Mr. Haye (if his evidence is believed) was for the benefit of a criminal organization. Without the expert evidence, the jury will be left solely with the evidence of Dontay Haye. Dontay Haye may or may not give evidence regarding the use of violence by gangs to enforce discipline and communicate a message of obedience to the gang hierarchy. Furthermore, Mr. Haye’s evidence is problematic, to say the least. Mr. Haye’s credibility will undoubtedly be subject to sustained assault in all respects. Without the context provided by the expert evidence, the jury will be left with his version of how gangs operate. The jury may well be left to puzzle over the purpose of an attempt to kidnap and beat Mr. Haye without context. The expert evidence will assist in evaluating his credibility (or lack of credibility). [20] The trial judge then assessed whether the probative value of the proposed evidence outweighed its prejudicial effect. He recognized that the “gatekeeper function does not involve bright lines” and that “it requires an analysis of costs and benefits and sometimes does not yield a straightforward “yes” or “no” answer” (citing Abbey , at para. 79 and R. v. Sheriffe , 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras. 101-103, 108, leave to appeal refused, [2016] S.C.C.A. No. 299). The trial judge reviewed a number of case authorities with respect to the assessment of the costs and benefits of evidence relating to gangs: Abbey ; R. v. Riley , [2009] O.J. No. 1374 (Ont. Sup. Ct.); R. v. Williams , 2013 ONSC 1076. He noted that the assessment of the probative value of expert evidence involves consideration of the significance of the particular issue, as well as the reliability of the evidence, including the expert’s methodology, expertise and objectivity, while the cost of the evidence addresses the usual risk of prejudice in expert evidence, as well as the risk of complexity and the abdication of the jury’s function to the expert. The trial judge observed that proving criminal organization offences would inevitably involve bad character evidence. As such, steps must be taken to limit the evidence to what is relevant and necessary, and to give mid-trial and final instructions to place the evidence in context and obviate prejudice. [21] In assessing the probative value of the evidence, the trial judge addressed defence counsel’s argument that Detective Nasser had shown a lack of objectivity because (1) he did not wish to engage with defence counsel on a particular issue outside the courtroom setting; and (2) his background work into certain incidents of gang association or indicia of gang membership involving the accused did not go far enough. The trial judge adverted to these concerns about Detective Nasser’s evidence and concluded that they would go to the weight to be given to his opinion by the jury. [22] The trial judge limited the scope of the expert evidence. Detective Nasser was permitted to testify about the general characteristics of a street gang, the association of street gangs with particular neighbourhoods, methods that gang members use to identify themselves as members, gang ideology, and the use of violence by gangs to maintain discipline. He was not permitted to state as a fact that any of the three accused were members of IDS, although he was allowed to testify about particular associations, symbols and incidents that were consistent with membership in IDS or a street gang. Detective Nasser was not allowed to testify that the alleged kidnapping, assault and attempted murder of Mr. Haye would have benefitted IDS. The trial judge addressed the extent to which Detective Nasser could rely on confidential informant information, and he provided specific rulings on certain aspects of Detective Nasser’s proposed evidence, including the extent to which the expert was permitted to refer to various incidents involving gang members (including the appellants) and YouTube videos. The Application to Revisit the Admissibility Ruling [23] Before the trial proper began, and upon receipt of the trial judge’s written reasons, Mr. Oppong’s trial counsel raised the possibility of making certain concessions if the Crown agreed not to call Detective Nasser as a witness. The following day the trial judge heard a defence application to revisit his admissibility ruling based on a material change in circumstances, in light of the proposed admissions. [24] The appellants were prepared to admit that IDS existed, that Mr. Oppong and Mr. Thomas were members of IDS, and that the acts (if they took place) were committed at the behest of a criminal organization. Mr. Thomas-Stewart was prepared to admit that IDS is a street gang, that association with other members is a characteristic of gang membership, and that he was in the company of certain gang members on specific dates (not including the date of the incident). [25] Defence counsel argued that the proposed admissions extended beyond the scope of Detective Nasser’s permitted evidence and constituted a material change in circumstances. They asserted that with these admissions, the probative value of Detective Nasser’s evidence would need to be re-assessed, as it would now only serve to bolster Mr. Haye’s credibility. Counsel for Mr. Oppong also proposed that, if necessary, evidence on the general characteristics and circumstances of street gangs could be provided through an agreed statement of facts, although no agreement had been reached. [26] The trial judge gave a brief oral ruling dismissing the application to revisit his ruling on the expert evidence, with written reasons released subsequently and reported at 2020 ONSC 7844. [27] The trial judge concluded that there was no basis to revisit his admissibility ruling. He stated that “the willingness of the defence to make some admissions did not constitute a material change of circumstances”. Citing the trial decision in R. v. Gager , 2012 ONSC 2697 (where a trial judge had revisited a ruling with respect to what evidence an expert on gangs could refer to in his evidence), the trial judge noted that, in order for the change of circumstances to be material, it must “alter the balance between the prejudicial effect and probative value” of the evidence. [28] The trial judge observed that there was a significant difference between admitting facts pursuant to s. 655 of the Criminal Code and “admitting the thrust of expert evidence that goes to assisting the jury in understanding the context of the case”. He noted that the factual admissions the defence proposed to make did not assist the jury in understanding the context of Mr. Haye’s evidence. He concluded: “The key point about [Detective] Nasser’s evidence is that it is supposed to help the jury understand the background. The proposed admissions do nothing to advance the jury’s understanding without context”. [29] The trial judge rejected the submission of Mr. Thomas’s counsel that the expert evidence was simply an attempt at oath-helping. He noted: “As I stated in my original ruling, the purpose of the expert evidence was to allow the jury to understand his evidence given the circumstances of a gang-related offence”. He went on to observe that, even if he had accepted that the proposed admissions were a material change, there would have been great difficulties in managing the trial where one of the accused was not prepared to make the same admissions as the other two. [30] As for the argument that the general characteristics and circumstances of street gangs could be addressed through an agreed statement of facts, the trial judge observed that there was no such agreement, and that he had no power as a trial judge to compel a party to make a concession it was not otherwise prepared to make. The Expert Evidence at Trial [31] Detective Nasser was the Crown’s first witness at trial. In the course of his evidence, counsel for Mr. Oppong conceded his client’s membership in IDS and the Crown refrained from eliciting evidence from Detective Nasser regarding some (but not all) incidents in which Mr. Oppong was associating with known gang members. After Mr. Thomas’s counsel conceded his client’s membership in IDS, the Crown refrained from eliciting evidence from Detective Nasser regarding Mr. Thomas’s forearm tattoo, and that it was consistent with gang membership, as well as some (but not all) incidents in which Mr. Thomas was observed associating with known gang members. Detective Nasser was cross-examined, but only by counsel for the appellants’ co-accused, Mr. Thomas-Stewart. [32] The jury charge included a general instruction on Detective Nasser’s expert opinion evidence, including that he had been qualified by training and experience to give an expert opinion regarding the nature and characteristics of street gangs, and cautioning the jury against the use of underlying information relied on by the expert, that was not in evidence. The trial judge provided a specific instruction on evidence of membership in a street gang that strongly warned against propensity reasoning. The trial judge reminded the jury that they heard evidence about the nature and characteristics of street gangs to understand the evidence in relation to criminal organization offences and to understand how gangs work and what their purpose is, in order to place the evidence in context. On each occasion that the trial referred to such evidence, he reminded the jury of the importance of not using the evidence improperly. There was no objection to these instructions. C. ISSUES [33] The appellants raise two issues on their conviction appeals: 1. Did the trial judge err by allowing the Crown to tender a gang expert who was both unnecessary and biased? 2. Did the trial judge err by admitting the gang expert evidence after a material change in circumstances? [34] Deference is owed to a trial judge’s decision on admitting expert evidence absent an error in principle, a material apprehension of evidence or an unreasonable conclusion: R. v. Mills , 2019 ONCA 940, 151 O.R. (3d) 138, at para. 47; R. v. McManus , 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 68. It is only where such an error is demonstrated that this court can interfere. In other words, the role of this court is not to take a fresh look at the admissibility of the expert evidence, and to arrive at its own conclusion. [35] The appellants acknowledge that the trial judge identified the proper criteria and purported to apply the correct framework in determining the admissibility and scope of Detective Nasser’s opinion evidence when he made his initial ruling. They argue however that he erred in the application of the Mohan framework. Essentially, they contend that the trial judge erred in concluding – both at the initial stage and in weighing the probative value against the prejudicial effect of Detective Nasser’s evidence – that the expert evidence was necessary and impartial. [36] The appellants also contend that the trial judge, in refusing to reopen his ruling in the light of certain admissions they were prepared to make, erred in principle by failing to find a material change in circumstances. I will address these arguments in turn. D. DISCUSSION (1) The applicable framework [37] I begin by referring to the framework for the determination of admissibility of expert opinion evidence, including expert evidence about gangs. It is important to keep certain general principles in mind. [38] Trial judges have the responsibility to act as “gatekeepers” in deciding whether to admit any expert evidence, in determining its scope and in ensuring that the expert evidence remains within its proper bounds at trial. Depending on how the trial unfolds, an admissibility ruling may need to be revisited. In jury trials, the judge will need to provide appropriate instructions so that the jury understands the limits on the permitted uses of the expert evidence: Mohan , at p. 24. [39] The Mohan framework involves a two-step approach to determining the admissibility of expert evidence. At the first, or threshold, step, the court considers the four criteria of (1) whether the expert is properly qualified; (2) whether the evidence is affected by an exclusionary rule (other than the opinion rule itself); (3) whether the evidence is logically relevant to issues in the proceeding; and, (4) whether the expert evidence is necessary. The second, or “gatekeeper” stage requires the judge to balance the potential risks and benefits of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 22-24; R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-44, 46-47; R. v. J.(J.-L.) , 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28. [40] Ontario courts are frequently called upon to apply the Mohan criteria to determine the admissibility and scope of expert evidence concerning gangs. As this court noted in R. v. Phan , 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 91, the case law is replete with the admission of gang evidence for the purpose of providing context or narrative, to establish animus or motive, to establish the accused’s state of mind or intention, or for other purposes. [41] At the same time, the cases recognize the risks associated with the admission of expert evidence concerning gangs. The primary danger arising from the admission of any opinion evidence is that the jurors’ function as fact-finders might be usurped by that of the witness: R. v. D.(D.) , 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 53. A particular risk of expert evidence concerning gangs is the potential for “bad character” propensity reasoning. Bad character evidence itself is presumptively inadmissible unless the Crown can demonstrate that it is relevant to an issue in the case, and its probative value outweighs its prejudicial effects. The evidence is inadmissible if it serves only to show that an accused is the type of person likely to have committed the offence: R. v. B., (F.F.) , [1993] 1 S.C.R. 697, at pp. 699, 731; Phan , at paras. 90-91; R. v. G. (S.G.) , [1997] 2 S.C.R. 716, at para. 65. [42] Trial judges decide on the need for expert evidence and weigh the probative value of the evidence against its prejudicial effect in the context of the live issues at trial, with the advantage of hearing the evidence in issue, observing the jury and being able to appreciate the dynamics of the particular trial: D.(D.) , at paras. 12-13. Ultimately the admissibility of any expert opinion evidence is highly case-specific: R. v. Gager , 2020 ONCA 274, at para. 27, leave to appeal to S.C.C. refused, 39477 (April 22, 2021). (2) The initial admissibility ruling: Did the trial judge err in admitting evidence that was unnecessary and biased? (a) Necessity [43] The appellants assert that the trial judge erred in concluding that the Mohan criterion of “necessity” was met in this case. They make two arguments. First, they say that Mr. Haye’s narrative and the issues in this case were not complicated or technical, such that the jury needed expert evidence to understand the context or motive for the alleged offence. It was obvious that the appellants and Mr. Haye were all members of a particular gang, and there was no need for an expert to explain to a jury why a street gang would want its gun back. Second, they argue that Detective Nasser’s evidence was made redundant by Mr. Haye’s testimony. Unlike many other cases where the victim was deceased or unavailable, and expert evidence was needed to “fill gaps in the evidence”, Mr. Haye could testify about the existence of the gang, gang membership and culture. [44] The Crown contends that the trial judge did not err in determining that the expert evidence was necessary. There were many aspects of the evidence that fell outside the common knowledge of the jury, and outside Mr. Haye’s evidence. Mr. Haye’s testimony would not address whether the alleged acts were committed for the benefit of IDS, and whether IDS was a criminal organization. Moreover, Detective Nasser’s evidence provided the necessary factual context for the jury to be able to evaluate Mr. Haye’s narrative. The Crown argues that the evidence was essential to the jury’s ability to consider Mr. Haye’s account in the proper context and to fairly assess whether the attack on him occurred for the benefit of a gang. [45] To meet the Mohan criterion of necessity, the question is whether the expert will provide information which is likely outside the ordinary experience and knowledge of the trier of fact: D.(D.) , at para. 21. “The subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”: R. v. Johnson , 2019 ONCA 145, 145 O.R. (3d) 453, at paras. 53, 66. Expert evidence is not necessary if triers of fact can form their own conclusions without help because to do otherwise risks abdicating the role of deciding the facts to the expert: Sekhon , at paras. 45, 49. “Necessity” means that the evidence must be more than merely “helpful”, but necessity need not be judged “by too strict a standard”: Mohan , at p. 23. [46] The trial judge adverted to these relevant principles in his reasons for admitting and setting the parameters for the expert evidence in this case. He concluded that the opinion evidence of Detective Nasser was necessary in the sense the evidence spoke to matters that were beyond the ordinary experience of the jury, and he rejected the assertion that the Crown should have to rely on Mr. Haye, who was an admitted gang member, to provide such evidence. [47] I see no error in the trial judge’s conclusion that the expert evidence of Detective Nasser, as limited in scope by his ruling, was necessary, or in his conclusion that the fact that Mr. Haye would be testifying did not obviate the need for the evidence. [48] First, I reject the contention that the matters to which the evidence was addressed were within the ordinary scope of understanding or experience of the jury. The offences were said to have been for the benefit of a criminal organization. It would have been wrong for the jury to rely on their own beliefs based on anecdotal experience and popular media about gang ideology and membership. Detective Nasser’s depth of knowledge and the fact that he was qualified as an expert to provide opinion evidence were readily acknowledged by the defence. The various matters about which he was permitted to testify – including the methods gang members used to identify themselves as members, the characteristics consistent with gang membership such as close associations with a known gang member, jewellery and tattoos, gang ideology, including discipline and the use of violence – were without question “outside the ordinary experience and knowledge of the [jury as] trier of fact”. The determination of what matters fall within the normal experience of jurors falls squarely within the trial judge’s domain: R. v. Boswell , 2011 ONCA 382, 277 C.C.C. (3d) 156, at para. 29. [49] I see no error in the trial judge’s conclusion that the jury needed the expert evidence as part of its assessment of whether the offences were committed for the benefit of a criminal organization, and to understand the context of what happened. While the necessity of expert evidence is case-specific, in several cases trial judges have accepted that the jury required expert evidence about aspects of gang culture that are not widely known, in order to understand the context in which the central events took place: see e.g. Mills , at para. 24; R. v. Mohamed, Islow and Miller , 2020 ONSC 5074, at paras. 44-51; R. v. Gager , 2012 ONSC 388, at paras. 160-161, aff’d 2020 ONCA 274; R. v. Monney , 2017 ONSC 250, at paras. 51-52; R. v. Sappleton , 2010 ONSC 5704, at paras. 157-158; R. v. Sandham , 2009 CanLII 59150 (Ont. Sup. Ct.), at paras. 15-17. [50] In its decision in Phan this court endorsed the following statement of Nordheimer J., as he then was, in R. v. Skeete , 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C. (3d) 159, leave to appeal refused, [2018] S.C.C.A. No. 508: It remains the fact that a “criminal trial is, after all, about the search for truth”. A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one. This statement applies to the present case. Although the appellants are correct in saying that the core issue was credibility – whether Mr. Haye’s evidence about what occurred would be believed – the jury required information about how the gang operated, the motivations of gang members, and their internal discipline, to put his account into context. [51] Second, I disagree with the contention that the proposed expert evidence ought to have been excluded as unnecessary because Mr. Haye, who was a member of IDS, was testifying and could provide the required evidence. Coupled with this is the argument that the expert evidence was unnecessary because it would serve only to unfairly bolster Mr. Haye’s evidence. [52] Given the scope and limitations of Mr. Haye’s evidence, the trial judge properly rejected the argument that Detective Nasser’s evidence was unnecessary because Mr. Haye would provide all of the evidence needed to show that IDS was a street gang and that the accused were members of it. Mr. Haye had provided a police statement that was admitted as part of his evidence in chief on the Crown’s motion, after a voir dire pursuant to s. 715.1 of the Criminal Code. He was acknowledged by everyone at trial to be a difficult witness – he was at times defiant or unresponsive. He was a Vetrovec witness whose account of the events had changed over time. The trial judge’s conclusion that Mr. Haye’s testimony would not obviate the need for Detective Nasser’s evidence was informed by his understanding of the issues at trial, and his observations of Mr. Haye in the police interview that was the subject of the s. 715.1 application. He concluded: Without the expert evidence, the jury will be left solely with the evidence of Dontay Haye. Dontay Haye may or may not give evidence regarding the use of violence by gangs to enforce discipline and communicate a message of obedience to the gang hierarchy. Furthermore, Mr. Haye’s evidence is problematic, to say the least. Mr. Haye’s credibility will undoubtedly be subject to sustained assault in all respects. Without the context provided by the expert evidence, the jury will be left with his version of how gangs operate. The jury may well be left to puzzle over the purpose of an attempt to kidnap and beat Mr. Haye without context. The expert evidence will assist in evaluating his credibility (or lack of credibility). [53] The trial judge’s assessment of the limits of Mr. Haye’s evidence was borne out at trial. Mr. Haye testified that he and the appellants and their co-accused were gang members. But he was unwilling to answer questions about IDS and how it operated. More importantly, his evidence did not provide the necessary context for the evaluation of the narrative. [54] Contrary to the argument advanced on appeal, the fact that Mr. Haye testified at trial did not preclude the Crown from calling expert evidence that was otherwise admissible. Expert evidence respecting gangs can be relevant to understanding the context of the events and is not admissible only in cases where the victim is deceased or no gang member is testifying: see e.g. Sandham , at paras. 18-19; Abbey , at para. 4. [55] In Boswell a similar argument was made and rejected – that expert evidence about a code of silence that may have caused a community member to lie to the police ought not to have been admitted because the same evidence was available from the alleged victim, Sharp. This court observed that while Sharp testified about the code and its effect on his conduct, his credibility was very much in issue, he was vigorously attacked by the defence, and his evidence was the subject of a strong Vetrovec warning. The court stated, “In these circumstances it cannot be said that expert evidence regarding the general existence of a code of silence and its nature was unnecessary because the evidence was otherwise available through Sharp”: at para. 31. In the present case, the trial judge made a similar evaluation in rejecting the argument that the evidence was unnecessary because it could have been provided by Mr. Haye. [56] Nor, as I will explain, do I accept the appellants’ argument that because the expert evidence provided context to understand the narrative that was provided mainly though the evidence of Mr. Haye, the expert evidence served only to unfairly bolster Mr. Haye’s credibility. [57] The determination of a witness’s credibility and reliability is for the trier of fact and is not the proper subject of expert opinion. An expert opinion cannot be introduced if the purpose is solely to bolster a witness’s credibility (i.e.: oath-helping). “Credibility is a notoriously difficult problem, and the expert’s opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties”: R. v. Marquard , [1993] 4 S.C.R. 223, at p. 248. [58] Detective Nasser was not invited to express an opinion about the credibility of Mr. Haye, or about the events that were said to have occurred. And, while the credibility of Mr. Haye was assessed by the jury in the context of the evidence as a whole, including the opinion evidence of Detective Nasser, the purpose of Detective Nasser’s evidence was not to convey to the jury a belief that Mr. Haye was truthful. Rather, the purpose was to ensure that the jury evaluated all of the evidence in its proper context, to determine whether the alleged offences occurred, and if so, whether they were for the benefit of a criminal organization. While that context helped the jury to evaluate the credibility of Mr. Haye’s account, evidence that may support the credibility of a witness does not, by reason of that incidental effect, offend the rule against oath-helping: R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at para. 28. See also R. v. K.A. (1999), 45 O.R. (3d) 641 (C.A.), at p. 678 and Sappleton , at para. 164. [59] In his final instructions, the trial judge explained to the jury the use they could make of the expert evidence, and he cautioned them against its misuse. He told the jury that it was necessary that they hear this evidence “in relation to the offences relating to a criminal organization” and for “an understanding of how the gang works, and what its purpose was”. Rather than inviting the jury to rely on the evidence to bolster Mr. Haye’s credibility, he instructed the jury that “[this evidence] will help you to place the evidence in context, including why you must approach Dontay Haye’s evidence with caution ”. [60] For these reasons, I would not give effect to the appellants’ arguments respecting the necessity of the expert evidence. (b) Bias and partiality [61] The appellants argue on appeal that the trial judge erred in refusing to exclude Detective Nasser’s evidence because of serious concerns about his ability to be independent, impartial and unbiased. They rely on two incidents that arose in the context of the voir dire . First, Detective Nasser failed to disclose to the defence that he had spoken with a gang member and overheard the conversations of several gang members who attended court one day. This information only came out the next day when Detective Nasser was testifying, and Crown counsel asked about the encounter. According to the appellants, this information was significant as it would later form part of the trial judge’s ruling allowing Mr. Haye to testify via CCTV. Second, Detective Nasser was unwilling to answer questions from defence counsel outside of court. The appellants also point to Detective Nasser’s CV, where, in listing his experience as a gang expert, under one trial where he had been previously qualified, he noted that both accused were convicted. This implies that Detective Nasser was proud of the fact that there had been a conviction in a case where he had testified for the Crown, and demonstrated that he was not impartial. [62] In their appeal, the appellants assert that Detective Nasser’s evidence did not meet the initial stage of the Mohan test because these incidents were inconsistent with the expert’s duty to the court to be an independent witness. They also argue that the expert’s bias was not considered by the trial judge at the cost/benefit stage of determining admissibility. [63] The Crown contends that the three concerns raised by the appellant did not undermine Detective Nasser’s impartiality to the point where his evidence ought to have been excluded. First, the encounter with gang members that Detective Nasser failed to disclose to the defence had no bearing on his report and the trial judge had determined that the appropriate remedy would be for Detective Nasser to disclose his notes, if any, before cross-examination by the defence. Second, Detective Nasser had explained that his reluctance to answer a question from defence outside the court was because of his prior experience with counsel using the opportunity to decide whether to use the question in their cross-examination and that he felt it was most fair to answer the question in court. The trial judge addressed this in his reasons and concluded that the evidence was still reliable. Third, the CV entry is a factual statement of the outcome of that trial and Detective Nasser had listed that an accused had been acquitted in a different entry. The Crown also points out that defence counsel’s submissions at trial concerning bias and partiality were quite different from those now raised on appeal. [64] Impartiality and lack of bias are part of the threshold requirements for admissibility, in determining whether an expert is properly qualified. Exclusion at the threshold stage should occur only in very clear cases, where the proposed expert is unable or unwilling to provide the court with fair, objective and non‑partisan evidence. Alleged partiality and bias are considered again at the gatekeeping stage in weighing probative value (which includes relevance, necessity, reliability and absence of bias) against the dangers associated with expert evidence. Context is important; both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant: White Burgess , at paras. 49, 53-54; R. v. Natsis , 2018 ONCA 425, 140 O.R. (3d) 721, at para. 11; Mills , at para. 45. [65] While the issue of bias and partiality was raised by defence counsel at trial, as the Crown points out, defence counsel’s arguments differed from what is advanced on appeal. At trial, defence counsel did not raise concerns about Detective Nasser’s CV, take issue with his failure to disclose his encounter with gang members after this matter was raised and remedied by the trial judge, nor suggest his evidence was inadmissible at the first stage of Mohan on the basis that he was unwilling or unable to meet his obligations as an impartial and unbiased expert. Rather, in making submissions about the probative value versus prejudicial effect of the evidence, defence counsel asserted that Detective Nasser was not a disinterested expert because (1) he did not wish to engage with defence counsel on a particular issue outside the courtroom setting; and (2) his background work into certain incidents of gang association or indicia of gang membership involving the accused did not go far enough. In addressing these arguments, the trial judge concluded: It is true that some of [Detective] Nasser’s background work could have gone further. It is also true that he should have been prepared to answer counsel’s questions outside of court. It is usual that police officers, and not only experts, do that. I found it troubling that he did not do so. Nonetheless, I am satisfied that his evidence meets the test for threshold reliability. The issues raised by counsel go to the weight to be given to his opinion by the jury. [66] Leaving aside the fact that this argument was not raised at first instance, there is no error in the trial judge’s refusal to exclude Detective Nasser’s expert evidence at the threshold stage due to bias or partiality. The concerns raised by the appellants did not demonstrate “a clear unwillingness or inability” for Detective Nasser to meet his obligations as an expert witness. Moreover, the appellants accepted that Detective Nasser was a properly qualified expert. [67] The appellants submitted in argument on the appeal that, contrary to what I have expressed above, the trial judge considered partiality only at the first stage of Mohan , and not at the second stage of weighing prejudice. They point to the statement in his reasons that he was “satisfied that [the expert’s] evidence meets the test for threshold reliability. The issues raised by counsel go to the weight to be given to his opinion by the jury.” [68] I disagree. Although, in this passage, the trial judge referred to threshold reliability, it is apparent from the structure of his reasons (where this paragraph followed a discussion of the principles applicable to the cost/benefit analysis), as well as the submissions of counsel at trial, that he did what he was invited to do. He addressed the argument that the incidents of alleged partiality affected the probative value of Detective Nasser’s evidence. He had already determined that the evidence met the threshold tests for relevance and necessity and the two other Mohan criteria had been conceded, including that Detective Nasser was a “qualified expert”. The trial judge was concerned by Detective Nasser’s refusal to engage with defence counsel outside the court room and the extent of his background work, but he concluded that this did not reduce the probative value in the cost/benefit analysis such that his evidence should be excluded. The trial judge properly observed that the issues raised by the defence could be addressed in the expert’s cross-examination. [69] The trial judge did not err in his approach to the appellants’ arguments about bias and partiality. There was no realistic concern that the expert was unable to comply with the duty to provide independent, impartial and unbiased evidence. Nor did the trial judge err in his assessment of these factors as part of the cost/benefit analysis. As in Mills , at para. 68, the trial judge heard the expert testify in the voir dire , had his report, and was therefore “in a good position to determine whether [the expert] showed partiality, a lack of independence, and/or bias”. (3) Did the trial judge err in his cost/benefit assessment of the proposed expert evidence? [70] The appellants argue that, even if Detective Nasser’s evidence was necessary and reliable, the prejudicial effect of the evidence outweighed its probative value. The probative value of the expert evidence was low because Mr. Haye was available to testify and did testify about gang-related information. The prejudicial effect, by contrast, was significant because Detective Nasser’s evidence was bad character evidence. The evidence regarding gang culture portrayed a lifestyle of crime and violence, and by implication painted the accused as “stereotypical thugs”. [71] Similar to their argument at the initial stage of the admissibility test, concerning necessity, the appellants contend that the effect of introducing this evidence was simply to bolster Mr. Haye’s credibility “by giving the jury the impression that Mr. Haye was telling the truth because [the three accused] were gang members and gang members are bad people.” The appellants say that Mr. Haye’s evidence was enhanced by “dragging the characters of the appellants through the mud”. They say this was particularly important with respect to the charge of attempted murder: while the allegations as a whole were supported by video evidence, the only evidence with respect to the attempted murder, that Mr. Oppong told Mr. Haye he would kill him if he did not give up the gun, came from Mr. Haye himself. The appellants argue that the jury undoubtedly would have been influenced by the expert evidence in assessing the credibility of this allegation. [72] The Crown submits that there was no error in the trial judge’s conclusion that the probative value of the evidence outweighed its prejudicial effect. Detective Nasser provided limited opinion evidence and limited information about the appellants. The appellants admitted that they were members of IDS. The jury was also properly instructed on the use of this evidence. [73] The weighing of the costs and benefits of proposed expert evidence is entitled to deference. Doherty J.A. in Abbey , noted that the gatekeeper phase is more difficult and subtle, involves the exercise of judicial discretion and is case‑specific. He observed, at para. 79, that “[d]ifferent trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility”. [74] There was no reversible error in the trial judge’s assessment of the costs and benefits of receiving the expert evidence. [75] First, as I already have observed, the trial judge considered the allegations of partiality as part of his assessment of the reliability of the evidence, in weighing its probative value against its prejudicial effect. Reliability includes consideration of the extent to which the expert is shown to be impartial and objective: Abbey , at para. 87; Mills , at para. 45. [76] Second, and as I have explained, there was significant probative value to the expert evidence in helping the jury to understand the context of what occurred. The central issue for the jury to determine was whether Mr. Haye was telling the truth about what happened. He was thoroughly cross-examined. It was brought home to the jury that it was their responsibility, as the finders of fact, to determine Mr. Haye’s credibility and reliability. The role of the expert evidence was to help them to understand the context in which Mr. Haye and the three accused were operating. [77] Third, and contrary to Mr. Oppong’s submissions on appeal, there is no indication that the jury would have improperly used the expert evidence to reason that, as a member of a gang he was a bad person, and that accordingly Mr. Haye must have been telling the truth. Mr. Haye himself was an admitted gang member who sometimes carried a gun and sold drugs. The jury was specifically cautioned, repeatedly, not to engage in propensity reasoning. They were also cautioned about the dangers of relying on Mr. Haye’s evidence, and instructed that the expert evidence was to help them to place the evidence in context, including why they must approach Mr. Haye’s evidence with caution. Jurors are presumed to understand and follow the instructions they are given: R. v. Bains , 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 61, 98, leave to appeal refused, [2015] S.C.C.A. No. 478. Finally, the jury clearly did not accept Mr. Haye’s evidence without reservation: they were not satisfied that Mr. Oppong threatened to kill Mr. Haye, as they found him not guilty of attempted murder. [78] For these reasons I would dismiss this ground of appeal. (4) Did the trial judge err in refusing to reconsider his ruling based on a material change in circumstances? [79] The appellants assert that the fact that they were prepared to admit that IDS was a gang and that they were members of IDS constituted a material change in circumstances. They submit that the Crown opposed the application and refused to consent to the admission, which was an improper attempt to keep an issue artificially alive to introduce prejudicial evidence. Because the appellants were willing to admit “almost all” of what the expert would testify about, the prejudicial effect of the evidence would outweigh its probative value, which was “almost nil”. They contend that the trial judge erred in concluding that there was no material change in circumstances, and then refusing to reconsider his ruling. The appellants also asserted in oral argument, that the trial judge ought to have required the Crown to work with defence counsel to come up with a set of agreed facts, and then to consider whether the expert evidence was admissible in light of the new evidentiary framework. [80] The Crown submits that there was no error in the trial judge’s ruling on the application to re-open the ruling. While trial judges can revisit evidentiary rulings, the defence had the onus of establishing a material change in circumstances. The Crown asserts that the trial judge did not err in concluding that the appellants’ proposed admissions did not constitute a material change in circumstances, as those admissions would not assist the jury in understanding the context of Mr. Haye’s evidence. Further, there would be difficulties in managing a trial where one of the accused would not make the same admissions as the other two, and the Crown was not willing to use an agreed statement of facts as the necessary context cannot be provided to the jury in a list of facts. [81] The point of departure is that a defendant’s admission requires the acceptance of the Crown: Criminal Code , s. 655; Castellani v. R. , [1970] S.C.R. 310. That said, while a trial judge cannot require the Crown to accept certain admissions, the Crown “should not be allowed to gain entry for prejudicial evidence by refusing to accept the admissions [an accused is prepared to make]”: R. v. Proctor (1992), 69 C.C.C. (3d) 436 (Man. C.A.). [82] The issue here was not whether or not the Crown was prepared to accept the admissions the accused were willing to make, or whether the trial judge had the ability to revisit his ruling in the light of admissions that were proposed , even if not yet accepted by the Crown. Rather, the focus was on the extent of the proposed admissions, and whether they would affect the cost/benefit analysis in relation to the expert evidence. [83] The appellants were prepared to admit that IDS existed, that they were members and that if the jury found that the acts were committed, that it was at the behest of a criminal organization. The third accused, Mr. Thomas-Stewart, however was only prepared to admit that IDS is a street gang, that association with other members is one of the characteristics of a gang member, and his associations on four separate dates (that did not include the date of the alleged offences). He was not prepared to admit that he was a member of IDS or that, if the allegations of his conduct were proven, it was for the benefit of a criminal organization. [84] The appellants assert that the trial judge was wrong to conclude that there was no material change in circumstances in this case. In oral argument, the appellants also argued that the trial judge did not even embark on an analysis of the effect of the proposed admissions because he concluded that there was no change in circumstances. [85] I disagree. The trial judge accepted that there was a change in circumstances, but he concluded that it was not material . He accepted that he had the ability to revisit his ruling, and he heard argument on the issue. The trial judge properly observed that, in order for the change of circumstances to be material, it must “alter the balance between the prejudicial effect and probative value” of the evidence. The defence argument was that the proposed admissions would render the expert evidence much less probative because they were more extensive than the expert evidence. The trial judge properly rejected this submission. While the proposed admissions would obviate the need for certain evidence in relation to the appellants’ membership in IDS, the trial judge observed that “[t]he key point about [Detective] Nasser’s evidence is that it is supposed to help the jury understand the background. The proposed admissions do nothing to advance the jury’s understanding without context”. In other words, the trial judge concluded that the changed circumstances – the proposed admissions by the accused – were not material because they did not alter the cost/benefit analysis in relation to the expert evidence. [86] Mr. Thomas’s counsel argued before the trial judge that the Crown was attempting to keep the issue of how gangs operate artificially alive in order to bolster Haye’s credibility. Rejecting the submission of Mr. Thomas’s counsel that the expert evidence was simply an attempt at oath-helping, the trial judge noted: “As I stated in my original ruling, the purpose of the expert evidence was to allow the jury to understand his evidence given the circumstances of a gang-related offence”. [87] As I have already explained, permitting the expert to testify in order to provide context for the assessment of the narrative, including the account provided by Mr. Haye, was a proper purpose for the admission of the expert evidence in this case. The trial judge had already made this determination. The jury was not invited to use the evidence to bolster Mr. Haye’s credibility, nor was there a reasonable prospect that they would misuse the evidence. [88] There were arguments at trial about the scope of Detective Nasser’s evidence in light of the proposed admissions, which were not renewed on appeal. As I have already noted, in the course of Detective Nasser’s evidence, counsel for the appellants conceded their clients’ membership in IDS which resulted in the Crown refraining from eliciting certain evidence from Detective Nasser regarding their associations. [89] Finally, on appeal the appellants contend that the trial judge should have required the parties to attempt to agree to facts about general characteristics of gangs, that could have been entered as an agreed statement of facts. Counsel did not suggest how that could have been done in this case – that is, what facts could reasonably have been admitted. The record suggests that there may have been some discussions between defence counsel and the Crown that had not borne fruit, and that Mr. Oppong’s counsel suggested in the application to revisit the expert evidence ruling that this could be done. There had already been a lengthy voir dire to determine the admissibility and scope of the expert’s evidence in this case. There is no indication that anyone had proposed to the trial judge, in advance of his initial ruling, that the expert evidence could or should have been introduced through an agreed statement of facts. This submission, made late in the day by one defence counsel, attracted the appropriate response from the trial judge. He observed that there was no agreed statement of facts and that he had no power to compel any party to make a concession it was not otherwise prepared to make. [90] For these reasons I see no error in the trial judge’s refusal to exclude Detective Nasser’s expert evidence on the defence motion to revisit his ruling. III THE SENTENCE APPEAL [91] Mr. Oppong appeals his sentence. He says that the trial judge erred in making a finding of fact that was unsupported by the evidence – that he was the leader of the IDS. The trial judge stated that the most important aggravating factors for Mr. Oppong included his leadership of IDS. Mr. Oppong submits that there was no evidence to support this conclusion, and that this error led the trial judge to impose a longer sentence on the appellant than on his two co-accused. [92] The Crown argues that the trial judge’s conclusion that Mr. Oppong had “a leadership role” in the gang was supported by the evidence, and that in any event the trial judge explained why he should receive a greater sentence than his co‑accused, and imposed a sentence that was fit in all the circumstances. [93] Although I would grant leave to appeal sentence, I would dismiss the sentence appeal. [94] First, there was evidence to support the trial judge’s reference to Mr. Oppong’s “leadership role” in the gang. He was described by Mr. Haye as “one of the older heads” of the gang. Mr. Oppong is correct in noting that there was evidence about the leadership, including Detective Nasser’s list of the ten leaders (which did not include Mr. Oppong). The trial judge did not conclude however that Mr. Oppong was “the leader” of IDS, only that he had a “leadership role”. [95] More importantly, however, it was open to the trial judge to find, as he did, that Mr. Oppong took the lead role in the kidnapping of Mr. Haye, which Mr. Oppong had admitted was for the benefit of IDS. In fixing the appropriate sentences, the trial judge considered the specific role each of the accused had played in the attack on Mr. Haye. He concluded that Mr. Oppong had played “the lead role” in the kidnapping and was “enforcing the rules of the gang”. This was in contrast to his co-accused who had “secondary roles”. [96] An appellate court can only interfere with a sentence when there is a demonstrated error of law or principle that had an impact on the sentence, or the sentence is demonstrably unfit: R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 26. No error has been demonstrated. Mr. Oppong’s sentence was fit. There is no basis for appellate intervention. IV DISPOSITION [97] For these reasons I would dismiss the conviction appeals, and while I would grant leave to Mr. Oppong to appeal his sentence, I would dismiss his sentence appeal. Released: May 25, 2021 “P.R.” “K. van Rensburg J.A.” “I agree. Paul Rouleau J.A.” “I agree. B.W. Miller J.A.” [1] In his factum, Mr. Oppong also challenged the order under s. 743.6(1.2) of the Criminal Code requiring him to serve one half of his sentence before he is eligible to apply for parole. This issue, which is fully answered by the Crown’s factum, was not pursued in oral argument, and will not be addressed in these reasons. [2] Detective Nasser was referred to in the reasons below as “Sergeant Nasser”, the position he held when he prepared his expert report.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Orange, 2021 ONCA 99 DATE: 20210218 DOCKET: C65057 Fairburn A.C.J.O., Juriansz and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Shawn Orange Appellant Keith E. Wright, for the appellant, Gerald Brienza, for the respondent Heard in writing On appeal from the conviction entered by Justice Nancy A. Dawson of the Ontario Court of Justice on June 13, 2017 and the sentence imposed on December 19, 2017. REASONS FOR DECISION [1] The appellant appeals his convictions of dangerous driving causing bodily harm and failing to remain at the scene of an accident knowing bodily harm has been caused to a person. He was acquitted of impaired driving and criminal negligence causing bodily harm. He was sentenced to a reformatory term of two years less a day, two years probation, and a five-year driving prohibition. [2] The appellant’s primary ground of appeal is that the transcript of the oral reasons for judgment delivered by the trial judge was not certified by the authorized court transcriptionist who prepared it. The transcript had been provided to the trial judge for editing before it was provided to the parties. The appellant suggests the transcriptionist refused to certify the transcript because the trial judge had made substantive changes to it. The appellant submits that since the transcript is not certified, there are no reasons to support the appellant’s convictions resulting in a miscarriage of justice and requiring a new trial. The appellant recognizes the irony of his argument as the trial judge provided detailed oral reasons. The uncertified transcript of her reasons is 199 pages in length. [3] It is surprising that the transcriptionist did not certify the transcript . The court has compared the transcript to the audio recording of the trial judge’s reasons and confirmed that the transcript is accurate. The edits the trial judge made relate solely to matters of grammar and the correction of a few names where she had misspoken. The edits are well within the range permitted to be made by a trial judge: R. v. Wang , 2010 ONCA 435, 256 C.C.C. (3d) 225. [4] We reject the appellant’s opportunistic submission the court cannot hear the appeal without a transcript certified by the transcriptionist. This court controls its own process. We direct that the appeal be determined based on the uncertified, but accurate, transcript of the trial judge’s reasons. [5] In anticipation of this potential result, the appellant advances several grounds of appeal in the alternative. These alternative grounds amount to nothing more than an attempt to retry the case in this court. [6] At trial the appellant mounted a strenuous defence in the face of an overwhelming prosecution case. The trial judge reviewed all the evidence called at the seven-day trial in extensive detail and analysed it with exacting care. We reject the submissions that she engaged in speculation and that she applied different levels of scrutiny to the evidence. Her credibility findings were balanced. Her description of various portions of the appellant’s evidence as “disingenuous”, “incredible” and “nonsense” were apt—his testimony was clearly unbelievable. She explained why she accepted the credibility and reliability of the testimony of the persons who witnessed the accident and of the police officers. All the factual and credibility findings the trial judge made were amply supported by the record before her. [7] On those findings, the appellant had gunned the engine of the powerful vehicle he was driving, lost control of it, drove onto the sidewalk, swiped a hedge, scraped a car parked in a driveway, hit a hydro guide pole and wire, hit garden posts and ended up back on the road. During his travel on the sidewalk the appellant hit a pedestrian, who was propelled into the windshield and then over the roof and the back of the car. The appellant was aware that he hit a person. He stopped briefly after the accident, and without getting out of his car, drove off. The trial judge rejected the appellant’s testimony that he lost control of the car after mis-shifting to a lower gear. [8] The trial judge applied the correct legal principles to the facts she found in concluding that both the actus reus and mens rea of the offences had been proved beyond a reasonable doubt. [9] The appeal from convictions is dismissed. [10] With the Crown’s consent, the appeal from sentence is allowed to the extent that the time from March 14, 2018, when the appellant received bail pending appeal, to the date this Decision is released should be subtracted from the driving prohibition imposed by the trial judge. The appellant abandoned the remainder of his sentence appeal. “Fairburn A.C.J.O.” “R.G. Juriansz J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Palmer, 2021 ONCA 348 DATE: 20210521 DOCKET: C67263 Tulloch, Miller and Paciocco JJ.A. BETWEEN Her Majesty the Queen Appellant and Tristan Palmer Respondent Sean Horgan, for the appellant Janani Shanmuganathan and Owen Goddard, for the respondent Heard: November 19, 2020 by video conference On appeal from the acquittals entered on July 4, 2019 by Justice Suhail A.Q. Akhtar of the Ontario Superior Court of Justice. Tulloch J.A.: A. Overview [1] In the early morning hours of January 11, 2018, two groups of young men were involved in an altercation outside a nightclub in downtown Toronto. When the nightclub’s security guards broke up the fight, the men moved their dispute into a nearby underground parking lot. According to the Crown, the respondent, Tristan Palmer, was one of the men involved in the altercation. The Crown alleged that he shot David Abraham during the second encounter in the parking lot before fleeing the scene. [2] The respondent was charged with aggravated assault and several firearms offences. Aside from a grainy surveillance video from the parking lot that captured the alleged incident from a distance, the Crown’s case was entirely circumstantial. In his testimony, Mr. Abraham denied ever being in the parking lot, let alone being shot. [3] Following a three-day trial in the Superior Court of Justice, the trial judge acquitted the respondent of all charges. [4] The Crown appeals the acquittals on three grounds. [5] First, it argues that the trial judge misapprehended two aspects of the parking lot surveillance video: (i) there actually was one, if not two, “muzzle flashes” coming from the respondent’s gun at the time of the alleged shooting, and (ii) the sudden reactions of the alleged victim and others immediately after the flash indicated that there had been at least one gunshot. [6] This misapprehension, according to the Crown, prevented a holistic consideration of the cumulative impact of the Crown’s case. [7] Second, the Crown submits that the trial judge failed to assess individual items of evidence in the context of the case as a whole. Third, it contends that the trial judge failed to provide reasons demonstrating that he considered the totality of the evidence. [8] At the conclusion of the oral hearing, we dismissed this appeal with reasons to follow. These are the reasons. B. Background [9] At trial, the Crown called several witnesses, including: the head of security at the nightclub; three civilian witnesses who observed part of the events from their apartment buildings; and Mr. Abraham, the alleged victim. The Crown also adduced: surveillance footage; vehicle registration information for a car in the surveillance footage; an agreed statement of fact; photographs of evidence found in the parking lot and evidence seized from Mr. Abraham; and cell phone tower data. [10] The defence called no evidence. [11] In the sections that follow, I summarize each evidentiary component, in turn. (1) The Testimony of the Head of Security [12] Barry Donaldson, the head of security at the nightclub, testified that his security team broke up a physical altercation between two groups of males outside the club around 2:50 a.m. on January 11, 2018. One group primarily consisted of Black males; the other group was Caucasian. [13] Mr. Donaldson testified that a Black individual threatened to “come back and shoot” him. This individual proceeded to walk across the street, and turn into a nearby alleyway. Some of the Caucasian males followed. Within one or two minutes, Mr. Donaldson heard gunshots come from that alleyway. [14] Mr. Donaldson could not positively identify the person who threatened him. However, he described the individual as being a darker-skinned Black male, in his late twenties, standing at approximately 5”10 and 180 pounds. The male had cornrows and wore a thin, dark bomber jacket. The Crown alleged that this description was consistent with the respondent’s physical appearance. [15] Mr. Donaldson also took a video of some of the participants in the altercation, which the Crown tendered at trial. One individual in the video was Caucasian and wore a hooded puffy black jacket, a white t-shirt, and distressed jeans. He wore his hair in a bun at the back. It was undisputed by the parties that this individual was Mr. Abraham, the alleged victim of the shooting. (2) The Testimony of the Civilian Witnesses [16] Three civilian witnesses testified at trial. All of them lived in condos located either adjacent to the nightclub or by the parking lot. Around 3:00 a.m. on January 11, 2018, the sounds of a commotion outside caused each of them to look down to the streets below. [17] The first civilian had a view of the parking lot from his window. He observed a dark car exit the parking lot at around 3:00 a.m. He thought the car might be a Dodge Charger. He did not hear any gunshots. [18] The second civilian lived in a condo just to the left of the nightclub. From his window, he saw two groups of men fighting in the street – one group was Black, and the other, Caucasian. He heard the men yell some “racist remarks.” He filmed this altercation for about ninety seconds. The men walked into an alleyway, where he could no longer see them. He heard about three to five gunshots shortly after and called 911. [19] The third civilian could see the parking lot entrance from his balcony. He saw two groups of men arguing.  A group of Black males went into the parking lot and the Caucasian males followed. Shortly after, he heard three gunshots that seemed to come from the parking lot. He then saw a dark “Dodge Charger” exit the parking lot, pick up a passenger in the alleyway, and speed off. (3) The Testimony of David Abraham [20] Mr. Abraham, the alleged gunshot victim, testified at trial. He was the only witness called by the Crown who was in the parking lot at the material time. [21] Mr. Abraham was an uncooperative witness. He denied having any knowledge of an altercation on the morning of January 11, 2018. He also denied ever being shot. He claimed that he could not remember where he was that night, nor who he was with. [22] The Crown presented him with the video filmed by Mr. Donaldson, the security guard at the night club. Mr. Abraham denied being the individual wearing the hooded puffy jacket, white t-shirt, and distressed jeans in the video. He admitted that he wore his hair in a bun at the back but falsely claimed the individual in the video had a buzz cut (as noted above, it is clear that the individual in the video wore his hair in a bun, like Mr. Abraham). [23] Similarly, Mr. Abraham denied being one of the individuals captured by the surveillance footage. His presence in the surveillance footage was undisputed by the defence. [24] As well, the Crown presented Mr. Abraham with hospital records from the night in question, which contained his name and date of birth. The hospital record indicated that a “David Abraham” arrived by taxi at 3:25 a.m. Notes taken at the hospital indicated that he had suffered a minor gunshot wound and had a scratch on his left hip, which was closed with a staple. Mr. Abraham insisted that he could not recall attending the hospital that night. [25] Finally, the Crown presented him with images of bloody clothing – a hooded puffy jacket, white t-shirt and distressed jeans – which the police seized from “Mr. Abraham” at the hospital. This clothing matched the apparel worn by the individual alleged to be Mr. Abraham in Mr. Donaldson’s video. The t-shirt and jeans had small holes in them, consistent with the location of Mr. Abraham’s injury on his left hip. Mr. Abraham testified that he did not recognize any of the clothing. (4) Surveillance Footage [26] The Crown tendered video surveillance evidence that P.C. Yekaterina Galamiyeva seized from three different camera locations at the parking garage. P.C. John Antonaros also seized surveillance footage from two locations in the alleyway where the parking lot entrance was located. The officers testified to assist the court in understanding the chronology of events, as depicted in the surveillance videos. [27] Notably, there was an issue with the timestamps on the surveillance videos. According to the officers, the cameras in the alleyway had accurate timestamps; whereas, all the cameras from the parking lot were one hour behind, aside from one, which was ten minutes behind. At trial, defence counsel argued that the inconsistencies in the timestamps were vague and inconclusive, putting video continuity into question. The trial judge addressed these submissions at the hearing, noting that: Well, who cares whether they’re a minute or three minutes off? I mean let’s just assume that you know they’re in the general vicinity. What the Crown is saying is look all of these events are happening and it’s similar looking people. They’re all going in the same direction and they’re all coming out from the same direction. They match with the witnesses. So, you don’t need to know the exact times. You just have to be certain that this is what the incident that they’re referring to. [28] I agree with the trial judge’s assessment of this issue, and the parties do not seem to take issue with it on appeal. It is clear that the events depicted in the videos correlate with the timestamps when they are adjusted by an hour or ten minutes, depending on the camera.  Accordingly, I proceed on the same basis as the trial judge. [29] In these reasons, for the sake of simplicity, I have corrected the timestamps from the parking lot surveillance footage either by ten minutes or an hour depending on the camera, to account for the above-noted delay in the parking lot surveillance videos. Therefore, the timestamps referred to below are necessarily approximate. With that said, the chronology can be summarized as follows. [30] At around 2:51 a.m., footage from the parking lot shows a man entering the garage through a stairway door. The same man ran to a black car that was parked in the lot. Soon after, the car proceeded up the ramp and exited the parking lot.  The alleyway surveillance videos show the car exiting the parking lot, before it is parked in the alleyway at 2:52 a.m. It appears that the driver then exited the car, left the alleyway, and turned onto the street outside the nightclub. The Crown alleged that the man who moved the car was the respondent. [31] At 2:55 a.m., the alleyway surveillance videos capture the altercation as it moves from the street into the alleyway. The Black individuals walk backwards towards the parking lot ramp, facing the Caucasian individuals. The Black individuals seem to gesture towards the parking lot. One of the Black individuals appears to have his right hand in his jacket pocket. The Crown alleged that this individual was the respondent and that he was holding a gun in his pocket. [32] One of the Caucasian individuals seems to pull something from his waistband and extend his arm towards one of the Black individuals, as he followed him into the parking lot at a quick pace. Defence counsel at trial argued that this footage showed Mr. Abraham brandishing a firearm at the scene. On appeal, the respondent similarly notes that this footage provides evidence that other people in the parking lot, aside from the alleged shooter, may have had guns with them that night. [33] At 2:59 a.m., a parking lot video depicts two Black individuals engaging with four Caucasian individuals as they walk down the ramp and enter the parking lot. A fifth man, who was Caucasian, comes down the ramp. The men are clearly arguing and appear to be circling each other in an aggressive manner in the parking lot. [34] At 3:00 a.m., the parking lot footage shows a Black individual, alleged to be the respondent, extending his right arm while facing in the direction of a Caucasian male, alleged to be Mr. Abraham. There was a flash in the surveillance footage. The man alleged to be Mr. Abraham reacts suddenly and runs in the opposite direction; others appear to react with similar haste, though some Caucasian individuals stay behind. This is the only footage that captures the alleged shooting. It is very grainy and taken from a considerable distance. The Crown alleged that the flash was a “muzzle flash”; that is, a light from a discharging firearm. [35] The parking lot footage then shows the man alleged to be Mr. Abraham going up the ramp, with an apparent limp. The alleyway videos capture him as he exits the parking lot and walks away from the scene. The man alleged to be the respondent leaves the parking lot through the stairway exit. [36] About 40 seconds after the apparent gunshot, the parking lot footage shows one of the Caucasian individuals and a Black individual struggling with one another. It is the same camera that captured the alleged shooting. During this struggle, there is a second flash in the surveillance footage. As the two men come closer to the surveillance camera, still struggling, it becomes clear that the cause of this second flash was the glare of the Caucasian individual’s cell phone. [37] Shortly after, at 3:02 a.m., the alleyway surveillance video shows a person retrieving the black car from the alleyway. The car then goes back down the parking lot ramp. Once inside the parking lot, surveillance footage shows two individuals entering the vehicle. The car then exits the parking lot. The alleyway surveillance footage shows a third individual entering the car in the alleyway. The car then speeds away. (5) The Vehicle Registration for the Dodge Challenger in the Surveillance Footage [38] Police reviewed the surveillance videos and concluded that the dark vehicle was a Dodge Challenger. [1] They were able to identify the last three numbers of the licence plate. They consulted the Ministry of Transportation, which identified eight registered owners of black Dodge Challengers bearing consistent licence plates. [39] P.C. Galamiyeva determined that one of those owners was a Black male with similar facial features and height to the man depicted in the surveillance videos – he had a high forehead, round eyes, and stood at a height of 5”10. That male was the respondent. (6) The Agreed Statement of Fact [40] An Agreed Statement of Fact attested to the following: (i) Toronto police first located blood, casings, and an undischarged round in the underground parking lot at 3:18 a.m. on January 11, 2018. Police then secured the scene. (ii) An officer arrived at 4:50 a.m. and took photos of bullet strike marks and potential bullet strike marks. (iii) The officer could not determine whether any of the bullet strike marks/possible bullet strike marks were made by the same caliber or same firearm. (iv) The bullet strike marks and possible bullet strike marks were located in the same general area of the garage as the bullet casings that were located. (v) Police could not determine the age of the bullet strike marks or possible bullet strike marks. (7) Photographs of Evidence Obtained at the Scene and Evidence Seized from Mr. Abraham at the Hospital [41] The Crown adduced the photographs taken at the crime scene, which showed the following pieces of evidence: three undischarged bullet casings; an undischarged bullet; what appeared to be two bullet strike marks; and a “fresh blood” trail, which led up the vehicle ramp to the exit. The Crown did not call any forensic experts at trial to testify about these items. [42] The Crown also tendered photographs of the bloody clothing police seized from Mr. Abraham at the hospital. (8) Cell Phone Records [43] The respondent’s mother provided police with a phone number associated with the respondent. On the day in question, phone records indicated that at 12:55 a.m., and again at 1:14 a.m., the respondent’s phone sent signals to the cell tower that was closest to the area of the altercation. The Crown argued that the records placed the respondent in the vicinity of the parking lot at the material time. C. Decision below [44] In essence, there were two questions before the trial judge: (1) whether the respondent was the man in the parking lot, as depicted in the surveillance videos; and (2) if so, whether the respondent shot at Mr. Abraham. [45] The trial judge answered the first question in the affirmative: the evidence, when viewed cumulatively, demonstrated that the man in the parking lot and alleyway surveillance videos was the respondent. In coming to that conclusion, the trial judge relied on the mobile phone evidence, which situated the respondent in the vicinity of the parking garage at the material time. He also concluded that the respondent’s vehicle was the Dodge Challenger captured in the surveillance videos, based on the information from the Ministry of Transportation. Lastly, he relied on the surveillance footage from the parking lot, finding that the person who initially moved the respondent’s car wore very similar clothing to that of the alleged shooter. According to the trial judge, the “value of the evidence is cumulative” and sufficiently proved that the man in the parking lot who extended his arm in the direction of Mr. Abraham was indeed the respondent. [46] However, with respect to the second question – whether the respondent shot at Mr. Abraham – the trial judge harboured a reasonable doubt. He reasoned that the respondent’s mere presence at the scene could not suffice. The trial judge found that Mr. Abraham was “without question” lying when he testified and denied involvement in the events in question. In the absence of any credible testimony from the alleged victim, the trial judge observed that the Crown was left with the video evidence and the discovery of shell casings at the scene. In his view, this evidence was insufficient to discharge the heavy burden necessary to prove guilt. As he put it: However, the act captured on the video is not as clear. I agree that Mr. Palmer raises his arm - an action consistent with firing a gun - but, unlike the Crown and officer Galimiyeva, I did not see a muzzle flash when he does so. Although I accept that casings are found in the area in which Mr. Palmer is alleged to have fired the shots, the amount of activity and people in the area raise concerns about whether the casings are in their original position rather than being disturbed by the other people present. Whilst I might strongly suspect that Mr. Palmer may well have fired and shot Mr. Abraham. Mr. Abraham’s evidence - or his failure to testify truthfully - leaves a hole in this case which is sufficiently large to raise a reasonable doubt. [Emphasis added]. [47] On balance, although the trial judge “strongly suspect[ed] that Mr. Palmer may well have fired and shot at Mr. Abraham,” he was unable to find that the Crown proved its case beyond a reasonable doubt. Accordingly, he acquitted the respondent. D. iSSUES [48] As noted above, the appellant makes three arguments on appeal: (i) the trial judge misapprehended the “muzzle flashes” and the reactions of the Caucasian individuals in the surveillance video, preventing an assessment of the cumulative impact of the Crown’s case; (ii) the trial judge failed to assess individual items of evidence in the context of the case as a whole; and (iii) the trial judge failed to provide reasons demonstrating that he considered the totality of the evidence. E. pOSITIONS OF THE PARTIES (1) Position of the Appellant [49] The appellant argues that there were three errors of law in the trial judge’s approach to the evidence which had a material bearing on the acquittal, and the verdict would not necessarily have been the same had the errors not occurred. [50] According to the appellant, the first error of law rested on the trial judge’s “inability to see the muzzle flashes” in the parking lot surveillance footage, as well as his failure to consider the reactions of the individuals who suddenly moved away after the alleged muzzle flash. The appellant submits that the trial judge misapprehended the surveillance footage, which comprised a key aspect of the evidence and therefore foreclosed a complete consideration of the Crown’s case. [51] The second error of law is alleged to compound the trial judge’s misapprehension of evidence: the appellant argues that the trial judge erred by failing to contextualize several individual pieces of evidence within the broader context of the Crown’s case. Specifically, the appellant points to the following evidence that was allegedly overlooked by the trial judge: i)        at the time of the shooting, the respondent is standing just left of the bullet casings; ii)       Mr. Abraham was supposedly shot near the area where the bullet strike marks were found; iii)      the blood trail follows Mr. Abraham’s exit out of the parking garage; and iv)      the undischarged bullet was in the path of where the shooter ran in the aftermath of the muzzle flashes. On this basis, the Crown submits that the trial judge’s assessment of these individual items in isolation, or his disregard for them altogether, undermined the cumulative strength of the circumstantial case against the respondent. [52] Lastly, the appellant argues that the trial judge made a third legal error by providing insufficient reasons. In particular, when assessing whether the respondent in fact shot at Mr. Abraham, the trial judge referred only to: (i) Mr. Abraham’s testimony denying his involvement in any altercation or his attendance at the hospital thereafter; (ii) the surveillance footage; and (iii) the discovery of shell cases at the scene. [53] The appellant submits that there is no indication in the trial judge’s reasons that he grappled with the other inculpatory evidence (i.e., the bullet strike marks, the blood trail, or the undischarged bullet), nor did he consider the evidence cumulatively. [54] In sum, the appellant submits that, when the persuasive power of all the evidence is properly considered in a cumulative fashion, there is only one possible conclusion: the respondent shot Mr. Abraham in the parking lot. (2) Position of the Respondent [55] As I will explain, the Crown is not permitted to appeal a verdict on the basis that it is unreasonable. The respondent submits that, in essence, the appellant’s arguments amount to an appeal of what the Crown believes to be an unreasonable acquittal. He contends that the trial judge did not commit the legal errors suggested by the appellant, foreclosing this court from intervening with the verdict. [56] First, the respondent argues that the trial judge did not misapprehend the flash. Rather, he submits that the record demonstrates that the trial judge saw a flash of some kind on the surveillance footage when the respondent’s arm was extended; the trial judge just couldn’t conclude beyond a reasonable doubt that the light was a “muzzle flash.” As such, the respondent contends that the trial judge’s interpretation of what happened in the parking lot surveillance video amounted to a factual finding and did not disclose a legal error. [57] Second, the respondent argues that the trial judge did consider the “cumulative power” of the Crown’s circumstantial case; it just wasn’t as strong as the appellant contends. [58] Finally, with respect to the trial judge’s reasons, the respondent argues that the trial judge’s reasons were sufficient as he addressed the key pieces of circumstantial evidence that were material to the question of who shot Mr. Abraham. [59] In closing, the respondent submits that it is clear that the trial judge applied careful scrutiny to the totality of the evidence. The Crown simply did not meet its burden of proof. Accordingly, he argues that there is no basis upon which to disturb the verdict. F. aNALYSIS (1) Standard of Review [60] The circumstances under which this court can intervene to overturn an acquittal are narrow. Section 676(1)(a) of the Criminal Code restricts the Crown’s right of appeal from an acquittal of an indictable offence to “any ground of appeal that involves a question of law alone.” So long as the trial judge took a legally correct approach to the evidence, the Crown cannot argue that the verdict is unreasonable: R. v. Rudge , 2011 ONCA 791, 108 O.R. (3d) 161 , at para. 35 , leave to appeal refused, [2012] S.C.C.A. No. 64; R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, at para. 37. As the Supreme Court of Canada observed in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33: “[T]he concept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt.” [61] The Crown resists the suggestion that it is effectively bringing an unreasonable verdict appeal, under the guise of appealing legal errors. The Crown contends that the trial judge did make errors of law, including by assessing the evidence in a piecemeal fashion and not in its totality: see R. v. J.M.H. , 2011 SCC 45 , [2011] 3 S.C.R. 197, at para. 31; R. v. Button, 2019 ONCA 1024, at para. 9 . This court may set aside an acquittal where the trial judge considered each component of the case separately, such that “the persuasive effect of the totality of the evidence – the strength of the Crown’s case – was taken out of play”: Rudge , at para. 66. As this court put it in Rudge, at para. 47: [T]he prosecution is entitled to a legally correct approach to the evidence that bears upon the determination of whether the onus has been met – a contextual approach based on a full evidentiary footing in which the proper standard of proof is applied. A misapprehension of evidence may dovetail this legal error where it prevents a trial judge from considering the totality of the Crown’s evidence: Curry, at para. 50. [62] In the event that the Crown is successful in showing an error of law, it does not necessarily follow that this court is obliged to set aside an acquittal. The onus on the Crown is a heavy one. To overturn an acquittal, the Crown must satisfy the court, with a reasonable degree of certainty, that the legal error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16; R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 135; Button, at para. 15. (2) The Trial Judge Did Not Misapprehend the Evidence [63] As noted above, the Crown takes issue with the trial judge’s finding that he did not see a “muzzle flash” in the surveillance footage. According to the Crown, the trial judge misapprehended the evidence by failing to recognize at least one, if not two muzzle flashes on the surveillance footage when the respondent extended his arm in the direction of Mr. Abraham. It follows, the Crown submits, that this misapprehension prevented the trial judge from assessing the totality of the case against the respondent. [64] I cannot accept this submission. I am not persuaded that the trial judge misapprehended the flash in the surveillance footage. During the course of the trial, the Crown took the trial judge to the footage containing the alleged muzzle flash on seven occasions. On one of those occasions, the trial judge instructed the Crown to pause the surveillance footage at the precise moment of the alleged muzzle flash. She did so and took note of the timestamp. In her closing submissions, she again returned to the moment of the flash. The following discussion then unfolded: THE CROWN: So, he’s about to make a left hand turn, 180 and he extends his hand at the right. THE COURT: Okay. THE CROWN: Extends his right hand. Now I - I was successful yesterday in pausing right on the muzzle flash. We could see the yellow flash that looks.... THE COURT: Okay. Okay, I see. THE CROWN: A bit of lightning, but I’ll try to do that again. ...VIDEO STARTED 10:58:00 ...VIDEO STOPPED 10:58:07 THE COURT: So, it’s obviously happened right? Now, you.... THE CROWN: So, it obviously happened [65] In my view, a fair reading of the trial record reveals that the trial judge was aware of the flash but was not convinced beyond a reasonable doubt that it emanated from a gun. [66] The defence argued the flash could have come from a phone or a reflection. In support of this submission, defence counsel played a subsequent part of the surveillance footage from the same camera that captured the alleged shooting. As noted above, the video shows two men struggling, and then a flash occurs. As the men come closer to the camera, it becomes apparent that the flash came from the glare of a phone. Defence counsel highlighted the similarities in the flash caused by the phone and the flash in the footage of the alleged shooting. The following colloquy between counsel and the trial judge then ensued: THE COURT: Well, yes, all right. Well, I - I see what you’re saying. I mean that’s - so what the Crown’s arguing is that the person holds out the... DEFENCE COUNSEL: Fair enough. THE COURT: ...the - extends the arm. DEFENCE COUNSEL: Fair enough. THE COURT: Now, you’re right, I mean it could be that that person’s pointing... DEFENCE COUNSEL: Sure. THE COURT: ...and holding a phone at the same time. DEFENCE COUNSEL: Holding anything in his hand... THE COURT: Yes. DEFENCE COUNSEL: ...having a watch on his hand. It flashing, it being a reflection, anything. So, the people in this clip respond as if panicked. They back up from the flash. I pointed that out to Your Honour. [67] This discussion shows that the trial judge understood the positions of both counsel with respect to the flash. The Crown is correct that the trial judge ultimately concluded that he did not see a muzzle flash at the moment in question. But this was not a misapprehension of evidence. Rather, it was a factual finding, which the trial judge was entitled to make, and is not subject to appeal. [68] It may have been preferable for the trial judge to explicitly state that he disagreed with the Crown’s theory about the origin of the flash. However, the basis of his conclusion was apparent from the record, even without being articulated. I am satisfied that the trial judge was aware of the flash but ultimately found the defence theory more persuasive. [69] Turning to the reaction of the parties in the seconds after the gun was allegedly discharged, I am not persuaded that the trial judge misapprehended the surveillance video. The inference the Crown repeatedly asked the trial judge to draw from the parties’ reaction was patently obvious, and it was not lost on the trial judge. He understood the submission but clearly did not agree with the interpretation advanced by the Crown – again, a finding he was entitled to make. [70] Given my conclusion that the trial judge did not misapprehend the evidence, it follows that the trial judge’s findings with respect to the flash did not lead to a subsequent failure to consider the totality of the evidence before the court. [71] I would dismiss this ground of appeal. (3) The Trial Judge Assessed the Evidence in the Context of the Case as a Whole [72] The Crown’s next ground of appeal alleges that the trial judge failed to assess the individual items of evidence wholistically, which unfairly diluted the strength of the Crown’s case against the respondent. In advancing this submission, the Crown contends that the trial judge failed to give appropriate weight to the combined effect of the following pieces of evidence: again, the supposed “muzzle flash” at the time of the alleged shooting; the reactions of those present directly after the flash, as depicted in the surveillance video; the bullet fragments, strike marks, and blood trail found at the scene; the bloody clothes seized from Mr. Abraham at the hospital; and the medical records indicating that Mr. Abraham suffered a minor gun wound that evening. [73] The Crown’s submission on this ground seems to operate on the assumption that the evidence, when cumulatively considered, was overwhelming. As the Crown put it: “When all of the evidence is considered in its totality, the combined effect of all the evidence compels the conclusion that the Respondent shot Abraham ” (emphasis added). I do not see the evidence in this case in the same light. [74] A guilty verdict was by no means a foregone conclusion. The Crown’s case was almost entirely circumstantial and the evidence suffered from the following frailties: (i) no one, including the alleged victim, identified the respondent as the shooter; (ii) the victim denied ever being shot; (iii) the only direct evidence that the respondent shot a gun was grainy and blurry surveillance footage; (iv) there was at least one other reasonable explanation for the impugned flash; (v) the Crown called no expert to testify about the forensic evidence found at the scene, and as such, the forensic evidence could not materially assist in identifying who discharged a gun; (vi) the “fresh blood” was not positively identified as being Mr. Abraham’s; (vii) the bullet strike marks could not be dated; (viii) the firearm was never recovered, and the type of firearm that was used was unknown; and (ix) there were multiple people moving around the parking lot during and after the alleged shooting, potentially disturbing the crime scene. [75] The trial judge was aware of the burden on the Crown and his obligation to assess the cumulative impact of the evidence. In fact, in finding the respondent was in the parking lot that night, the trial judge expressly rejected defence counsel’s attempt to challenge the cumulative persuasive impact of the evidence by undermining each piece in isolation. Instead, he found this approach “misconceived” and then notes that “the value of the evidence is cumulative.” I am not persuaded that the trial judge was operating under any misconception about his duty to assess the evidence in a cumulative fashion. [76] I agree that the Crown’s evidence is consistent with the respondent being the shooter. But that is not the standard in a criminal trial. There were frailties in the Crown’s case and the trial judge was entitled to conclude that the Crown did not discharge its onus beyond a reasonable doubt. [77] I would dismiss this ground of appeal. (4) The Trial Judge’s Reasons Were Sufficient [78] The third and final ground of appeal raised by the appellant concerns the sufficiency of the trial judge’s reasons. The appellant contends that the reasons disclose no indication that the trial judge properly considered the Crown’s case as a whole, since he only referred to Mr. Abraham’s testimony, the video evidence, and the shell casings. [79] I agree that the trial judge did not address several pieces of evidence adduced at trial. However, failing to do so did not amount to an error in law. [80] The issue the trial judge needed to determine was whether the respondent shot Mr. Abraham. The presence of blood in the parking lot, in conjunction with the witnesses hearing gunshots, the bloody clothes seized from Mr. Abraham, and the medical evidence that Mr. Abraham had an injury, all support the conclusion that Mr. Abraham was shot in the parking lot that night. However, as alluded to above, absent testimony from an expert, this evidence did not assist in identifying who shot Mr. Abraham. [81] The same can be said about the location of the bullet strike marks and bullet fragments. The trial judge would have been engaging in speculation if he had determined who in the parking lot may have fired the shots, and from where the shots were fired. Those bullet strike marks also could not be dated, and it was unknown whether they were caused by the same firearm that injured Mr. Abraham. Likewise, the ages of the casings or the undischarged bullet were unknown. [82] I am satisfied the trial judge’s reasons responded to the case’s live issues and the parties’ key arguments. Mr. Abraham’s testimony, or lack thereof, the surveillance footage and the shell casings were key in determining whether the respondent was the one who shot Mr. Abraham. The trial judge sufficiently addressed and considered all three evidentiary components. [83] While he may not have explicitly addressed every part of the Crown’s case, the fact that a trial judge fails to deal with each piece of evidence or fails to record each piece of evidence and their assessment of it, does not amount to a legal error: J.M.H., at para. 31. An appellate court does not hold the trial judge to some abstract standard of perfection, and in this case, the trial judge’s reasons were reasonably intelligible to the parties and provided the basis for meaningful appellate review. [84] I would dismiss this ground of appeal. G. Conclusion and disposition [85] Based on the foregoing, I am not satisfied that the trial judge committed the alleged errors of law. I would dismiss the appeal and uphold the acquittals. Released: May 21, 2021 “M.T.” “M. Tulloch J.A.” “I agree. B.W. Miller J.A.” “I agree. David M. Paciocco J.A.” [1] A police officer identified the vehicle as a Dodge Challenger, not a Dodge Charger as the civilian witnesses had indicated. The cars look similar. The police officers testified that the two cars can be distinguished on the basis of their shapes and the number of doors.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pearce, 2021 ONCA 239 DATE: 20210414 DOCKET: C68988 Pardu, Brown and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Darren Pearce Appellant Darren Pearce, in-person Margaret Bojanowska, duty counsel Jeffrey Wyngaarden, for the respondent Heard: April 9, 2021 by video conference On appeal from the sentence imposed on December 30, 2020 by Justice Richard T. Knott of the Ontario Court of Justice. REASONS FOR DECISION OVERVIEW [1] In this inmate appeal, Darren Pearce seeks leave to appeal the sentence he received for the offences of aggravated assault and breach of recognizance. The sentencing judge imposed on Mr. Pearce the combined equivalent of a global sentence of five years’ imprisonment. Mr. Pearce had already effectively served most of that time through pre-sentence custody and sentence reductions identified by the sentencing judge. [2] At the end of the oral hearing, with reasons to follow, we granted leave and allowed the sentence appeal. As we explain below, the sentencing judge erred by failing to address the principle of parity between the sentences imposed on Mr. Pearce and his co-accused, Terrance Goodwin, when there was clear reason to do so, and by imposing, without explanation, a sentence on Mr. Pearce that was substantially and markedly longer than the global sentence of two and one-half years’ imprisonment that Mr. Goodwin had received. [3] In our view, a global sentence of approximately three and one-half years would have been appropriate for Mr. Pearce. By the time of his appeal, given his pre-sentence custody, the sentence reductions identified by the trial judge, and the 100 days Mr. Pearce served after being sentenced and before his appeal hearing, Mr. Pearce had effectively served a global sentence of approximately three and one-half years. We therefore set aside Mr. Pearce’s sentence of imprisonment and substituted a sentence of “time served”. These are our reasons. THE MATERIAL FACTS [4] On June 16, 2019, Darren Pearce and Terrance Goodwin, both drug addicts, together stabbed Tyler Moore, a drug dealer, approximately 17 times. Mr. Pearce and Mr. Goodwin each stabbed Mr. Moore multiple times with the same knife and took Mr. Moore’s backpack, which contained drugs. Mr. Moore suffered permanent injuries from the attack, including multiple stab wounds to his torso and diminished use of his left hand, in which tendons were severed. The drugs stolen by Mr. Pearce and Mr. Goodwin were distributed among others connected to the pre-planned “drug rip-off”. [5] On October 16, 2019, Mr. Goodwin pleaded guilty to aggravated assault and breach of probation for his role in the attack. Mr. Goodwin has an extensive criminal record, including assault convictions, and was on probation for another aggravated assault and awaiting disposition on separate breach and drug offences at the time of the attack on Mr. Moore. Mr. Goodwin received a sentence equivalent to 30 months as well as three years’ probation. [6] On September 21, 2020, after seven days of trial, Mr. Pearce pleaded guilty to aggravated assault for having wounded Mr. Moore. He also pleaded guilty to breach of recognizance; at the time of the attack on Mr. Moore, Mr. Pearce was in violation of a bail release condition that he live at a drug treatment facility while awaiting trial on unrelated charges. [7] At Mr. Pearce’s request, the sentencing judge ordered a Gladue report to assist in sentencing Mr. Pearce. No report was prepared because Aboriginal Legal Services could not confirm that Mr. Pearce was an Indigenous person, and they lacked information on how such status would have affected his life circumstances. However, the sentencing judge was provided with an extensive affidavit in which Mr. Pearce attested to his Indigenous status and life circumstances, including: his father’s imprisonment during Mr. Pearce’s childhood; the tragic drug overdose death of his mother when Mr. Pearce was five years of age; Mr. Pearce’s time in foster care and in the care of his grandparents; his own descent into addiction; and his reconnection with his father later in life, shortly before his father’s death. [8] Mr. Pearce’s “significant and related record”, containing 58 convictions, including for assault, robbery, and weapons offences, was also put before the sentencing judge. A few years before the incident with Mr. Moore, Mr. Pearce received a sentence of 30 months in custody for a robbery with a weapon. [9] The sentencing judge was also made aware that Mr. Pearce had been sober for about 17 months prior to his sentencing hearing, had participated in counseling and programs while incarcerated, and had reconnected with his sister and was taking concrete steps to do the same with his two sons. [10] The details of Mr. Goodwin’s sentence, but not the reasons for that sentence, were before the sentencing judge in the Agreed Statement of Facts filed when Mr. Pearce’s plea was entered. Although Mr. Pearce’s defence counsel did not raise the principle of parity between co-accused offenders during his sentencing submissions, Crown counsel did so in her reply submissions, noting that “there has to be parity to some extent between the [sentences of the] two [Mr. Goodwin and Mr. Pearce]”. She argued that Mr. Pearce had the “greater record” of the two and noted that Mr. Goodwin had pleaded guilty very early in the process, unlike Mr. Pearce. Based on these differences, the Crown urged that the sentence Mr. Pearce was seeking – “time served”, or the equivalent of 27 months – would not achieve parity with Mr. Goodwin’s sentence of 30 months. [11] In sentencing Mr. Pearce, the sentencing judge concluded that the wounding of Mr. Moore was among the most serious of aggravated assaults. He also noted Mr. Pearce’s extensive criminal record. The sentencing judge accepted the Crown’s submission, based on R. v. Tourville , 2011 ONSC 1677, [2011] O.J. No. 1245, that five years was the lowest appropriate sentence “for an assault of this nature and a person with Mr. Pearce’s record without consideration of Mr. Pearce’s personal and collateral factors”. [12] The sentencing judge then identified the “personal and collateral factors” that he applied to reduce Mr. Pearce’s fit sentence by one year, to four years’ imprisonment. Specifically, he accepted that Mr. Pearce is Indigenous, and found a connection between Mr. Pearce’s heritage and his difficult background, holding that the Gladue factors “must be considered on sentence” in this case. He also accepted that Mr. Pearce had experienced harsh conditions while in pre-sentence custody because of the COVID-19 pandemic, lockdowns, and assaults that Mr. Pearce endured while awaiting trial. He accepted, as well, that the COVID-19 pandemic has reduced the sentencing tariffs. [13] The sentencing judge then gave Mr. Pearce the maximum statutory credit for pre-sentence custody, the equivalent of 816 days, and imposed a custodial sentence of 644 days, or “just over 21 months”, plus two years of probation, along with ancillary orders. [14] When referring in his reasons to the co-accused Mr. Goodwin’s role in the attack, the sentencing judge mentioned that Mr. Goodwin had pleaded guilty “earlier”, but gave no details of the sentence Mr. Goodwin had received, nor did he make explicit mention of the principle of parity. ISSUES [15] In his inmate appeal, Mr. Pearce seeks leave to appeal his sentence. His grounds of appeal may fairly be stated as follows: 1. The sentencing judge misapprehended the appropriate sentencing range; and 2. The sentencing judge erred in failing to apply the principle of parity in imposing a disproportionately high sentence relative to the sentence received by Mr. Pearce’s co-accused Mr. Goodwin. [16] It is not necessary to address the first ground of appeal. ANALYSIS [17] The principle of parity is provided for in s. 718.2(b) of the Criminal Code , R.S.C. 1985, c. C-46. It provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This guiding principle preserves fairness in sentencing by promoting the equal treatment of offenders according to law. It applies as between co-accused charged with the same crime, and between the offender and others who have committed similar crimes, where those others are similar to the offender in terms of degree of responsibility. Given the principle of individual sentencing, and that comparable circumstances are not apt to be identical, absolute parity is not required and, indeed, may not be appropriate. However, where there is a substantial and marked disparity in sentence between similar co-accused offenders who have committed similar crimes, an appellate court should intervene: R. v. Mann , 2010 ONCA 342, 261 O.A.C. 319, at paras. 18-19. [18] That said, a sentencing judge is not required to apply the principle of parity between co-accused offenders charged with the same crime if the judge lacks the information necessary to undertake a meaningful comparison: R. v. Jackson , 2016 ONCA 497, [2016] O.J. No. 3323, at para. 2; R. v. Courtney , 2012 ONCA 478, 294 O.A.C. 346, at para. 8. [19] In the circumstances of this case, the sentencing judge was alerted by the Crown to consider the principle of parity between Mr. Pearce and Mr. Goodwin. He was also provided with the information required to apply the principle of parity between co-accused offenders. He should have done so. [20] Specifically, the sentencing judge was informed in the Agreed Statement of Facts, filed at the time of Mr. Pearce’s plea, that Mr. Goodwin had received a global sentence of 30 months’ imprisonment, which was reduced to a net sentence of 24 months because Mr. Goodwin had served the equivalent of six months in pre-sentence custody. The sentencing judge was also advised that the Crown was seeking a global sentence of five years, or 60 months, against Mr. Pearce, a sentence twice as long as that imposed on Mr. Goodwin. [21] The Agreed Statement of Facts also confirmed that there was no discernible difference in the gravity of the crimes committed by Mr. Pearce and Mr. Goodwin against Mr. Moore. Although Mr. Pearce had committed an earlier assault against the victim, the respective roles of Mr. Pearce and Mr. Goodwin in the attack that was the subject of their charges were identical. [22] The Agreed Statement of Facts disclosed that, like Mr. Pearce, Mr. Goodwin was an addict. Although Mr. Goodwin’s actual criminal record was not before the sentencing judge, the Agreed Statement of Facts described Mr. Goodwin as having an “extensive criminal record with previous assault, aggravated assault, break and enter, and drug convictions” and “52 Niche RMS occurrences on file”. Despite the Crown’s submission that Mr. Pearce’s record was “greater” than Mr. Goodwin’s, the evidence before the sentencing judge through the Agreed Statement of Facts showed that, in fact, Mr. Pearce’s record could not be a justification for a material departure from the parity principle. [23] The Agreed Statement of Facts further disclosed that, like Mr. Pearce, Mr. Goodwin had also committed, and was being sentenced for, a breach offence that occurred at the time of the aggravated assault. Notably, Mr. Goodwin’s breach offence was more serious and more apt to aggravate his global sentence than Mr. Pearce’s breach offence. Indeed, while Mr. Pearce was in breach of a court-ordered residency requirement at the time of the assault, Mr. Goodwin breached a probationary order imposed for an unrelated aggravated assault, the very same kind of offence for which he was sentenced in the attack on Mr. Moore. [24] The sentencing judge was also made aware that Mr. Goodwin had pleaded guilty on October 16, 2019, four months after the assault occurred. He of course also knew that Mr. Pearce pleaded guilty much later, after seven days of trial had already elapsed. [25] Armed with this information, the sentencing judge was obliged to consider the principle of parity between co-accused offenders charged with the same crime. It is clear from his reasons for sentence that he did not do so. He therefore erred by failing to consider the principle of parity, when there was clear reason to do so. [26] The Crown argues that, nonetheless, the sentence imposed is appropriate. In able submissions before us, appeal counsel for the Crown relied primarily on the relative timing of the respective guilty pleas as justification for the disparity in the sentences imposed. [27] We accept that through his early guilty plea, Mr. Goodwin was entitled to mitigation both for accepting responsibility and for entering a plea that would avoid the need for a trial. With his later guilty plea, Mr. Pearce was entitled only to mitigation for accepting responsibility and for shortening a trial that was already underway. However, the timing of the plea alone does not justify giving Mr. Pearce a sentence that, at 60 months, is twice as long as the global sentence of incarceration of 30 months imposed on Mr. Goodwin. [28] To be sure, there is no settled mathematical formula for the sentence reduction that is warranted in recognition of an early guilty plea: R. v. Daya , 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 15. However, analogous cases such as R. v. Laverdiere , 2020 ABCA 290, [2020] A.W.L.D. 2666, highlight the substantial and marked nature of the sentencing disparity in this case. In Laverdiere , the Alberta Court of Appeal found that a sentencing judge erred by giving the accused a seven-year sentence after trial on a brutal assault, when his co-accused had received a four-year sentence after an early guilty plea. Here, of course, Mr. Pearce was not convicted after trial. He pleaded guilty, albeit during trial. [29] The sentencing judge therefore erred in failing to apply the principle of parity. This error clearly affected the sentence imposed, since the sentence of imprisonment Mr. Pearce received is, without justification, substantially and markedly longer than the sentence imposed on Mr. Goodwin. [30] Accordingly, it falls to us to substitute a sentence. In doing so, we bear in mind that the principle of parity between co-accused offenders cannot be relied upon to justify imposing a sentence that is so low as to be unfit: Clayton C. Ruby, Sentencing , 10th ed. (Toronto: LexisNexis Canada, 2020), at §2.59-2.63 . [31] In all the circumstances, including the extreme hardship that Mr. Pearce has experienced while in custody, where he was seriously injured as the result of several assaults, it is in the interests of justice to substitute a global sentence that is equivalent to approximately three and one-half years of imprisonment. When pre-sentence custody and sentencing credits are considered, the 100-day “time served” prison sentence we imposed at the end of the oral hearing to achieve this fit, global sentence is about one year longer than the global sentence imposed on Mr. Goodwin. The differential that remains reflects Mr. Goodwin’s earlier guilty plea. CONCLUSION [32] We grant Mr. Pearce leave to appeal his sentence, set aside the sentence of imprisonment imposed, and substitute a sentence of 100 days’ imprisonment, which Mr. Pearce has already served. We affirm the remaining components of Mr. Pearce’s sentence. “G. Pardu J.A.” “David Brown J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Penzes, 2021 ONCA 7 DATE: 20210108 DOCKET: C66895 Doherty, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Kevin Penzes Appellant Amy J. Ohler, for the appellant Manasvin Goswami, for the respondent Heard: January 4, 2021 by video conference On appeal from the sentence imposed by Justice A. Letourneau of the Ontario Court of Justice on October 11, 2018. REASONS FOR DECISION [1] The appellant pled guilty to bank robbery. The trial judge imposed a sentence of four years, the sentence requested by the appellant and the Crown. The appellant now appeals seeking a three-year sentence. We dismiss the appeal. [2] The appellant pled guilty and was sentenced on his first appearance only a couple of days after his arrest. Counsel for the appellant does not challenge the guilty plea. She acknowledges the trial judge made the appropriate inquiries and that the plea was voluntary and informed. Counsel does, however, submit the sentencing hearing was fundamentally unfair. She contends the trial judge should have adjourned the hearing, despite the appellant’s strong objection to any adjournment, and ordered a presentence report for the purpose of receiving additional information relevant to sentencing. [3] We do not agree the appellant was treated unfairly. The appellant made it clear he wanted to be sentenced immediately. He was no stranger to the criminal justice system. The appellant also readily acknowledged his guilt and expressed strong concerns about spending any time in the local jail. [4] The appellant told the trial judge he had been sexually assaulted several years earlier while in jail and had experienced serious emotional and mental problems as a result. He explained to the trial judge he had received help for those problems during his last stay in the penitentiary, but had been released on his mandatory release date before he was prepared to function effectively outside of the prison setting. The appellant was anxious to return to the federal correctional system in the hope he could re-enter the programs that had assisted him during his last incarceration. [5] The appellant knew the Crown was seeking a four-year sentence. The appellant told the trial judge that, having regard to his criminal record, which included two prior bank robberies and a five-year penitentiary sentence on another charge, he believed the Crown’s position was reasonable. Indeed, the appellant thought he might get more than four years. [6] Duty counsel spoke with the appellant. She told the trial judge that, while she was reluctant to support a guilty plea on a first appearance involving the imposition of a significant penitentiary term, she had been persuaded by the appellant that his request to be sentenced immediately and his agreement to a four-year sentence was appropriate in the circumstances. [7] The trial judge had the information necessary to fashion an appropriate sentence. Given the appellant’s record and the nature of the offence which involved a threat of violence against a teller, a significant penitentiary term was necessary. The four-year sentence suggested by the Crown, supported by the appellant, and ultimately imposed by the trial judge, did reflect various mitigating factors, including the appellant’s early guilty plea and the emotional and mental health issues the appellant had described to the trial judge. In fact, the sentence imposed was intended to enhance the appellant’s rehabilitative prospects by providing for access to the treatments and programs that had assisted the appellant on a previous occasion. At the same time, however, the four years imposed reflected the seriousness of the crime and the appellant’s significant criminal record. [8] The trial judge made no error in concluding four years was a fit sentence. [9] The court has considered the fresh evidence offered by both the appellant and the Crown. We need not detail that evidence. It is sufficient to say the evidence tends to confirm the appropriateness of the four-year sentence imposed by the trial judge. The medical records show the appellant has received the help he hoped to get in the federal correctional system. According to the medical reports, he has shown progress and continues to show progress. The appellant is scheduled for release in June 2021. Hopefully, his progress will continue and when he is released this time he will be able to effectively adapt to life outside of the penitentiary. [10] Leave to appeal sentence is granted, but the appeal is dismissed. “Doherty J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Peters, 2021 ONCA 121 DATE: 20210224 DOCKET: M52212 (C66399) Doherty, Watt and van Rensburg JJ.A. BETWEEN Her Majesty the Queen Respondent and George Peters Appellant Paolo Giancaterino, for the appellant Samuel Greene, for the respondent Heard: In writing REASONS FOR DECISION [1] The appellant is deceased. On consent, the appeal is dismissed as abated. “Doherty J.A.” “David Watt J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Zakhour v. Nayel, 2021 ONCA 339 DATE: 20210520 DOCKET: C68892 Juriansz, Huscroft and Jamal JJ.A. BETWEEN Maya Zakhour Applicant/Responding Party (Appellant) and Fady Nayel Respondent/Moving Party (Respondent) Maya Zakhour, acting in person Diane Condo, for the respondent Heard: May 10, 2021 by videoconference On appeal from the judgment of Justice Maria T. Linhares de Sousa of the Superior Court of Justice dated April 2, 2019. REASONS FOR DECISION [1] This is an appeal from the summary judgment granted by the motion judge dismissing the appellant, former wife’s, application for spousal support, equalization of net family properties, and other relief under the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”). [2] The appellant lived in Montr é al before she married the respondent, former husband. The parties married in May 2015 in Lebanon and lived together there until December 2015. From December 2015 to January 2016, the parties lived as husband and wife in Ottawa. They separated in January 2016. The respondent then returned to Lebanon, and the appellant returned to Montr é al. [3] The respondent began marriage “annulment” proceedings in Lebanon, in which the appellant participated. In October 2016, the appellant began an application in the Ontario Superior Court of Justice for spousal support (including indexing), equalization of net family properties, exclusive possession of the matrimonial home and its contents, freezing of assets and sale of family property, and a restraining/non-harassment order, all under the FLA . [4] In February 2018, the Maronite Unified Court of First Instance in Lebanon granted an “annulment” of the marriage, which was equivalent to a divorce. The parties are referred to in the annulment document as “divorced”. The Maronite Court of Appeal dismissed the appellant’s appeal of the annulment along with her claim for compensation. The annulment was registered in Lebanon in March 2019. [5] On the respondent’s motion for summary judgment, the respondent argued that the appellant was not entitled to relief because she was not a “spouse” under the FLA . The motion judge found that the marriage had been annulled in Lebanon and dismissed the application because the court lacked jurisdiction under the FLA. [6] In our view, the motion judge erred in law in concluding that the court lacked jurisdiction under the FLA . [7] Section 7 of the FLA permits a “former spouse” to bring an application to determine their entitlement to equalization of net family properties. During oral argument before this court, counsel for the respondent conceded that the appellant is a “former spouse” under the FLA who entered into the marriage in good faith. It is also settled law that a “former spouse” is not restricted to a person divorced in Canada: Okmyansky v. Okmyansky (2007), 86 O.R. (3d) 587 (C.A.), at paras. 43, 52. Therefore, the appellant is a “former spouse” under s. 7 of the FLA and the Ontario Superior Court of Justice has jurisdiction to consider her equalization claim under the FLA . [8] The respondent contends that the Superior Court of Justice nevertheless lacks jurisdiction because the proceedings in Lebanon dealt with the appellant’s claim for financial compensation. We disagree. That a foreign court has addressed a former spouse’s corollary relief claims in the foreign divorce proceedings does not deprive the Superior Court of jurisdiction under s. 7 of the FLA : see Okmyansky , at paras. 7-8, 43. [9] Finally, the appellant advised the court at the hearing of the appeal that she is no longer pursuing her claim for spousal support. [10] The appeal is allowed and the matter remitted to the Superior Court of Justice to consider the appellant’s equalization claim under the FLA . The appellant is awarded her disbursements and filing fees for the appeal in the amount of $1,120 , payable within 30 days. “R.G. Juriansz J.A.” “Grant Huscroft J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Powell, 2021 ONCA 271 DATE: 20210429 DOCKET: C66406 & C66665 Tulloch, Paciocco and Harvison Young JJ.A. DOCKET: C66406 BETWEEN Her Majesty the Queen Respondent and Joshua Powell Appellant DOCKET: C66665 AND BETWEEN Her Majesty the Queen Respondent and Jordan Powell Appellant Jon Doody, for the appellant Joshua Powell Fady Mansour and Vanessa Garcia, for the appellant Jordan Powell Tanya M. Kranjc, for the respondent Heard: in writing On appeal from the conviction entered on April 19, 2018 and the sentence imposed on December 20, 2018 by Justice Richard T. Knott of the Ontario Court of Justice (C66406). On appeal from the conviction entered on April 19, 2018 and the sentence imposed on February 20, 2019 by Justice Richard T. Knott of the Ontario Court of Justice (C66665). Tulloch J.A.: A. INTRODUCTION [1] The appellants are brothers. On August 12, 2016, they attended a gathering at a friend’s house in North Grenville, Ontario. At some point during the night, someone knocked over a beer bottle, causing a fight to break out. In the physical altercation that followed, the Crown alleged that four individuals – Jordan and Joshua Powell (the two appellants), as well as Bradley Fumerton, and Quincy O’Shea – collectively assaulted Quinn Millson. Quinn suffered serious bodily harm as a result, including a skull fracture. The Crown also alleged that Jordan and Quincy damaged Quinn’s vehicle after the altercation. [2] There was no dispute that Quinn sustained severe bodily injuries from the assault and that his vehicle was subsequently damaged. Rather, the only issue at trial was who caused the injuries and the damage to Quinn’s car. [3] The trial judge convicted Joshua, Jordan, Bradley and Quincy of assault causing bodily harm, contrary to s. 267(b) of the Criminal Code , R.S.C., 1985 c. C-46. He also found Jordan and Quincy guilty of mischief for damaging Quinn’s car, contrary to s. 430(4) of the Criminal Code . Lastly, he convicted Joshua of failure to comply with his probation order, contrary to s. 733.1(1) of the Criminal Code . [4] Both appellants were sentenced separately. Jordan was sentenced on February 20, 2019 to 60 days intermittent custody followed by 3 years probation. Joshua was sentenced on December 20, 2018 to seven months custody, followed by three years probation. Both Jordan and Joshua initially filed notices of appeal for both conviction and sentence. Joshua has since abandoned his sentence appeal. Jordan, however, has not. [5] Joshua and Jordan appeal their convictions on five grounds. They argue: 1. the trial judge entered unreasonable verdicts because the evidence tendered at trial was unable to support their convictions; 2. the trial judge misunderstood the mens rea for assault causing bodily harm; 3. the trial judge provided insufficient reasons for the assault convictions; 4. the trial judge erred in relying on his disbelief in the appellants’ exculpatory statements to ground a finding of guilt; and 5. the trial judge erred in rejecting the testimony of Zachary Powell (the appellants’ cousin) on the basis of bias when this was not raised by either party. [6] For the following reasons, I would dismiss both conviction appeals. B. OVERVIEW OF THE FACTS [7] As noted above, the events took place at a small house party in rural Ontario, on August 12, 2016. Five people who attended the party testified at trial: Quinn (the victim), Kayla Boisvert, Ben Huton, Zachary Powell, and Lindsay Fumerton. Each gave their own account of how the altercation arose and who was involved. Accordingly, the following sections summarize the narrative of each witness with respect to the events that unfolded. (i) Quinn Millson’s Evidence [8] The incident started as a friendly debate with Samuel Huton over a beer bottle that had been knocked over. Quinn was thinking about leaving the party when this debate arose. Samuel and Quinn were still going back and forth when Quinn approached his girlfriend, Kayla. She was standing with Vicky Holland-Dube, Joshua’s girlfriend. Vicky told him to stop yelling and calm down. Quinn tried to reassure her that he was not fighting with Samuel – they were having a friendly discussion. Vicky stepped towards Quinn and told him to get out of her face. [9] Bradley and Jordan stepped forward and joined the conversation, in support of Vicky. As Quinn stepped back to leave the garage, Joshua blocked his exit. Joshua grabbed Quinn’s shirt and demanded that he apologize to Vicky otherwise he would suffer “some sort of repercussion.” Bradley stepped forward and grabbed Quinn’s shirt as well. Quinn tried to de-escalate the situation when Joshua punched him in the face. A second punch by Bradley soon followed. Quinn turned around and covered his face. He was hit in the back of the head and then pulled to the ground. Bradley and Joshua went down to the ground with him. [10] Quinn saw Jordan and Quincy come towards him and join in with the other two. By that point, Quinn described the altercation as “a melee of getting punched and kicked and stomped on.” When Quinn looked up, he saw the four of them – Joshua, Jordan, Bradley, and Quincy – towering over him. Eventually, he managed to make his way to his car. He went inside the vehicle and waited for his girlfriend so that he could leave the party. As he waited, he saw Jordan and Quincy banging on the hood of his car. (ii) Kayla’s Boisvert’s Evidence [11] Kayla, Quinn’s girlfriend, spoke to police following the incident and provided a videotaped statement on August 21, 2016. She also testified at trial. Kayla saw Bradley punch Quinn. She identified Jordan, Joshua, and Quincy as being on top of Quinn, kicking and punching him. She attempted to pull the men off Quinn but was thrown to the floor. She was eventually picked up from behind and pulled outside the garage. Upset by what she witnessed, she went into the house and vomited. She heard that Quinn was leaving, so she went looking for his car. She then saw Jordan and Quincy banging on the hood of Quinn’s car. Quinn was sitting inside the car, waiting for her. He had a bloodied face. (iii) Ben Huton’s Evidence [12] Ben testified that he and his brother, Samuel, got into a discussion with Quinn regarding a broken beer bottle. Quinn was standing closest to the broken bottle, and Ben and Samuel told him to clean it up. Quinn expressed a desire to leave. He went over to where Kayla and Vicky were standing. Ben then saw Joshua engage with Quinn. When Quinn refused to apologize to Vicky, Joshua pushed Quinn. He then saw Joshua swing at Quinn; he was uncertain whether he actually made contact. He also thought he saw Bradley and Jordan push and swing at Quinn a couple of times. Quinn was suddenly on the ground, and “there was just, kind of, a melee of people everywhere.” (iv) Zachary Powell’s Evidence [13] Zachary, the appellants’ cousin, testified that he went outside after the fight had started. He saw Quincy on top of Quinn and believed there were others on top of him. He did not see Jordan nor Joshua in the pile of people. The fight was broken up, and he saw Quinn leave to his car. He began to follow Quinn, but Jordan intercepted him and led him inside. He observed Jordan searching for ice; his hand was slightly swollen. (v) Lindsay Fumerton’s Evidence [14] Lindsay, Bradley’s sister, testified that she heard an argument involving Bradley, Joshua and Quinn. She later saw six or seven people in a circle, including: Bradley, Joshua, Quinn, and possibly Jordan and Quincy. She could not say what the people were doing. She followed Kayla inside when Kayla indicated that she felt sick. She observed Jordan icing his hand. (vi) The Appellants’ Police Statements [15] The Crown also admitted the police interviews of Jordan and Joshua. In his statement, Jordan claimed that he was not involved in the altercation. His only role was to pull Vicky out of the commotion. He did admit that he threw one punch after he saw someone hit his cousin, Zachary. He said he missed and hit a van, hurting his hand. He denied damaging Quinn’s car. [16] In his statement, Joshua admitted that he got in a verbal disagreement with Quinn after he witnessed Quinn acting aggressively towards his girlfriend, Vicky. He said that Quinn pushed him and when Bradley got involved, he was pushed back. He stated that he stood and watched as the fight unfolded. He pulled people off Quinn and told him to leave. (vii) Defence Evidence [17] None of the accused testified at trial and the defence called no evidence. C. DECISION BELOW [18] The trial judge concluded that this could not be a consensual fight, given the extent of the injuries. He further noted that there was no evidence of self-defence or defence of person or property, as all the accused denied involvement in the altercation. The trial judge convicted the appellants without evidence that they had directly caused Quinn’s injuries. He convicted them based on their participation in a group assault in which Quinn suffered bodily harm. He cited R. v. Wood , [1989] 51 C.C.C. (3d) 201, at p. 220, (Ont. C.A.), for the following proposition: Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s. 229(a), or as aiders or abettors, pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear. Accordingly, the trial judge observed that “[i]f a person participated in the melee, I will find them guilty of assault causing bodily harm.” [19] With respect to the witnesses’ testimony, the trial judge stated that Quinn’s evidence in chief was straightforward and clear. Quinn identified all the co-accused as participating in the attack. However, after a “withering cross-examination", Quinn’s testimony was less clear. The trial judge made the following observation: “Were [Quinn] the only witness in this matter, I am not certain I could find a conviction on his evidence alone, due to his unreliability. He was credible, but parts of his evidence was unreliable.” [20] The trial judge noted that Kayla was not a witness to the entire altercation, as she left the area to vomit. However, he found her credible and reliable. Kayla’s testimony confirmed that all the accused were involved in the altercation. He accepted her evidence that Bradley punched Quinn and that there was a pile of people on Quinn, including Joshua, Jordan, Quincy, and Bradley. He also accepted her evidence that it was Jordan and Quincy who were damaging Quinn’s vehicle. [21] The trial judge also appeared to accept the evidence of Ben and Lindsay. Ben confirmed that Joshua, Jordan, and Bradley were involved in a violent altercation. Lindsay saw Bradley, Joshua, Jordan, Quincy and Quinn in a circle around the time of the altercation. [22] The trial judge rejected the evidence of Zachary because he did not view him as an independent witness. As noted above, Zachary is the appellants’ cousin. He is also friends with the other accused. He had testified that he did not see his cousins participate in the fight. [23] The trial judge rejected the exculpatory statements that Jordan and Joshua made to police. [24] With respect to Joshua Powell’s statement, the trial judge noted that his denial of any involvement was inconsistent with the other witnesses’ evidence. Joshua’s evidence provided significant detail about the argument leading up to the altercation, yet it provided no details about the fight that supposedly occurred right in front of him. While recognizing that an accused has the absolute right to remain silent, the trial judge observed that “if you choose to make a statement to police, then you must try to be accurate and tell the truth to the best of your ability.” He noted that “[Joshua’s] denial of any involvement in the altercation is rejected and does not raise a reasonable doubt in my mind.” The trial judge concluded that Joshua was “involved in the melee as one of the principal actors.” [25] The trial judge also rejected the evidence of Jordan. Similar to his brother, Jordan made a statement but provided no details as to what went on in the fight. The trial judge rejected Jordan’s excuse for needing ice for his hand after the fight. As noted above, Jordan had admitted that he took a swing but missed and hit a van. However, the trial judge noted that no one saw him punch a van. Rather, witnesses saw him involved in the fight and then attacking Quinn’s car. [26] The evidence against Quincy and Bradley was also clear. They had participated in the altercation. [27] With respect to the car, Quinn and Kayla’s evidence was clear that Quincy and Jordan were the ones who intentionally damaged it. [28] As noted above, all four co-accused – Joshua, Jordan, Bradley and Quincy – were convicted of assault causing bodily harm. Joshua was also convicted of a breach of probation as a result of his assault conviction. Jordan and Quincy were convicted of mischief. D. ISSUES ON APPEAL [29] The appellants challenge their convictions on five grounds: 1. the verdict was unreasonable as there was insufficient evidence to ground convictions on the assault count; 2. the trial judge misunderstood the mens rea for assault causing bodily harm; 3. the trial judge’s reasons were deficient; 4. the trial judge erred by grounding a finding of guilt in his disbelief of the appellants’ exculpatory statements to the police; and 5. the trial judge erred by rejecting Zachary Powell’s evidence on the basis of bias when the Crown did not impeach his credibility, contrary to the rule in Browne v. Dunn , (1893), 6 R. 87 (H.L.) (Eng.). E. ANALYSIS (i) The Verdict Was Reasonable [30] For an appellate court to conclude that a verdict is unreasonable, it must either: 1. determine that the verdict is one that a properly instructed jury or judge could not reasonably have rendered; or 2. determine that the trial judge drew an inference or made a finding of fact essential to the verdict that (a) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or (b) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. [31] This standard requires an appellate court to re-examine, and to some extent, re-weigh evidence and consider the effect of that evidence: Villaroman, at para. 55; R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 131; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186. Where the verdict is not unreasonable, an appellate court will not interfere with a trial judge’s factual findings unless the trial judge has committed a palpable and overriding error in making those findings: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9. [32] Each of the appellants argue that the verdicts finding them guilty of assault causing bodily harm were unreasonable. Both appellants submit that the evidence relied upon by the trial judge could do no more than place them in the pile of people. More was needed to ground findings of guilt on the assault counts. [33] For his part, Jordan submits that no witnesses said that he punched or kicked Quinn. Rather, according to Jordan, the evidence only placed him at the scene of the altercation. He argues that, absent a finding of fact about the role he played in the assault, the verdict was unreasonable. [34] Joshua argues that there was insufficient evidence to support a finding that he assaulted Quinn. Although Quinn testified that Joshua punched him, the trial judge made the following observation qualifying the extent to which he could rely upon Quinn’s evidence: Were [Quinn] the only witness in this matter, I am not certain I could found a conviction on his evidence alone, due to his unreliability. He was credible, but parts of his evidence was unreliable. [35] Joshua also submits that the evidence of Ben, Kayla, and Lindsay do not support the trial judge’s findings. In particular, while Ben testified that he saw Joshua throw a punch, he could not say with certainty that Joshua made contact. Additionally, both Kayla and Lindsay testified that Joshua was involved in the altercation, but neither provided any specific details about his participation. According to Joshua, since the trial judge made no finding of fact about whether he did in fact punch Quinn, there was insufficient evidence about his involvement in the assault. [36] The respondent submits that the verdict was reasonable and founded in the evidence. The trial judge was entitled to make reasonable inferences on the basis of compelling evidence about who was actively involved in the assault against Quinn, and these inferences should be afforded deference on appeal. Moreover, the findings of guilt were well founded on the evidence of multiple witnesses. [37] I would not give any effect to this ground of appeal. As indicated, the appellants bear a very heavy burden in seeking to displace a verdict on the basis that it was unreasonable. The direct evidence at trial implicating both appellants in the assault was overwhelming. [38] Quinn, the victim of the assault, identified Joshua as first blocking him from exiting the garage, then grabbing him by the shirt, and punching him in the face, after which he fell to the ground. Quinn saw Jordan come towards him and join in on the assault against him. Quinn described being kicked, stomped, and punched while on the ground by all four assailants, including both appellants. He specifically identified both appellants as being involved in the melee. Quinn also testified that he clearly saw Jordan and Quincy banging on the hood of his car. [39] The trial judge noted that while Quinn’s evidence was credible, portions were not reliable. As such, the trial judge correctly looked for other corroborative evidence to satisfy him beyond a reasonable doubt of the veracity of the material portions of Quinn’s evidence. [40] There was an abundance of evidence at trial that substantiated Quinn’s version of events. In her evidence, Kayla identified both appellants as being on top of Quinn when he was on the ground. She observed Jordan and Joshua punching and kicking him. She also observed Jordan and Quincy banging on the hood of Quinn’s car. The trial judge found her evidence credible and consistent. Additionally, Ben testified that he saw Joshua push Quinn at the start of the assault. As well, Ben testified that he saw Joshua push and swing at Quinn. He was “fairly certain” that Joshua hit him in the head. He also noted that, subsequently, Jordan and Bradley swung at Quinn “a couple of times”, but was unsure if they hit him. Finally, both Zachary and Lindsay testified that they observed Jordan icing his hand, which was slightly swollen. The trial judge was entitled to accept some, none, or all, of each witnesses’ evidence. [41] It is clear from the trial judge’s reasons that he considered all the evidence. In light of the evidence and all available inferences, it was certainly open to the trial judge to make the findings that he did, including that both appellants were active participants in the group assault, resulting in bodily harm to Quinn. [42] In his supplementary factum, Jordan also argues that his police statement, which contained an exculpatory version of events (namely, admitting to being part of the altercation but only throwing a punch in defence of his cousin), was entirely consistent with the evidence of all Crown witnesses. According to Jordan, it follows that there remained a reasonable doubt as to his guilt. [43] I do not agree. The trial judge’s findings of fact are entitled to deference, unless the appellant can establish that he has committed a palpable and overriding error. I see no error in the trial judge’s findings of fact that warrants judicial interference. As indicated, it was open to the trial judge to accept some, none, or all of a witnesses’ evidence, including Jordan’s evidence that he injured his hand by striking a van, as opposed to injuring it when he was striking Quinn during the assault. [44] I am satisfied that the verdicts were reasonable. I would dismiss this ground of appeal. (ii) Did the Trial Judge Err in His Understanding of the Mens Rea for Assault Causing Bodily Harm? [45] While the appellants do not explicitly argue this issue as a separate ground of appeal, they include this issue as an argument within their submissions on the reasonableness of the verdict. The appellants argue that the trial judge erred in his self-instruction on the mens rea required for assault causing bodily harm. The appellants point to the trial judge’s reasons, which state: “If a person participated in the melee [that caused the injuries to Quinn], I will find them guilty of assault causing bodily harm.” The appellant says this is an incorrect statement of the law, as the crime charged required both participating in the melee and an intention to participate. [46] I would not give effect to this ground of appeal. The trial judge’s reasons, when read as a whole, suggest that he understood the requisite elements of the offence that the Crown had to prove beyond a reasonable doubt. [47] Technically, the appellants are correct that mere participation in a melee in which the complainant suffered bodily harm will not support a conviction of assault causing bodily harm unless the accused person had the requisite mens rea . The accused person’s own act of participation must be intentional as opposed to accidental. Moreover, before he can be held responsible for bodily harm that may have been caused by another person involved in the group assault, it must be found that the accused knew that the others were engaging in an assault, and intended to assist in that assault: R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-17. In the specific circumstances of this case, there was no need for the trial judge to address those mens rea requirements expressly. [48] The trial judge found that the appellants joined in the assault. No suggestion was available on the evidence that this could have been accidental or unintended. [49] Moreover, the trial judge understood that the appellants’ convictions depended upon his finding that they acted in concert with others. Acting in concert is inherently purposeful conduct. Unless there is a live and realistic mens rea issue, it is implicit in finding that an accused person actively participated in a group assault by joining in the assault that the accused person did so intentionally and for the purpose of assisting in that group assault. The trial judge found that both appellants actively participated in the non-consensual assault on Quinn in which Quinn was kicked, punched and stomped. [50] Although the trial judge did not explicitly address the mens rea issues, in my view, he did not err in finding that the Crown discharged its burden of proof. [51] Finally, an accused who is involved in an intentional assault that results in bodily harm cannot argue that he only intended the assault and not the bodily harm that resulted, provided that a reasonable person, in the circumstances, would realize that the force intentionally applied would put the victim at risk of suffering some kind of bodily harm: R. v. Palombi, 2007 ONCA 486, 222 C.C.C. (3d) 528, at paras. 38-39. This principle applies equally in group assaults. Where a reasonable person would realize that the group assault would put the victim at risk of suffering some kind of bodily harm, an accused person who has joined in a group assault cannot avoid responsibility by arguing that they did not intend to cause bodily harm. Although the trial judge did not explicitly address the objective foreseeability aspect of this offence, I am satisfied that he was cognizant of the legal test to be applied. Indeed, it was patently obvious from the evidence in this case that a reasonable person in the appellants’ shoes would realize that bodily harm could result from their actions. [52] The mens rea requirement was therefore satisfied, and the trial judge was correct in finding both appellants guilty of the charge. Accordingly, this ground of appeal is also dismissed. (iii) The Trial Judge’s Reasons Were Sufficient [53] The appellants submit that the reasons are deficient because the trial judge did not make sufficient findings of fact regarding party liability and the nature of their participation in the assault. Joshua submits that although the trial judge found him to be involved as “one of the principle actors,” the reasons do not explain what his involvement in the altercation consisted of. Likewise, Jordan argues that the trial judge did not make any findings of fact regarding his role in the fight. Jordan points to the fact that he was scarcely mentioned in this portion of the trial judge’s reasons. [54] An appeal based on insufficient reasons can only succeed if the appellants establish that the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: R. v. Vlaski , 2019 ONCA 927, at para. 9, leave to appeal refused, [2020] S.C.C.A. No. 78; R. v. Vuradin 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. [55] Appellate courts considering the sufficiency of reasons “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes “are fulfilled if the reasons, read in context, show why the judge decided as he or she did”: R.E.M., at para. 17. [56] The key question is whether the reasons demonstrate that the trial judge seized upon the substance of the critical issues at trial in a way that permits meaningful appellate review: R.E.M. , at para. 55. [57] The main issues in this case were whether the accused individuals intentionally assaulted Quinn, and whether, as a result of the assault, Quinn sustained bodily harm.  In his reasons, the trial judge carefully assessed all the evidence, including the evidence of the two appellants, and gave very clear and cogent reasons why he accepted and rejected the evidence that he did. [58] In the reasons, it is clear that the trial judge found both appellants guilty of the offence of assault causing bodily harm based on being parties to the offence. In so doing, the reasons of the trial judge demonstrate that he was satisfied beyond a reasonable doubt that both appellants were parties to punching, stomping, and kicking Quinn on numerous occasions, and these assaultive acts resulted in the serious injuries that Quinn sustained. [59] The trial judge’s reasons are not deficient simply because he did not identify the precise actions of each appellant in the assault. It is clear when his decision is read as a whole that he accepted testimony that the appellants participated in a group assault in which everyone was punching and kicking Quinn. A trial judge is not held to a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their findings on each piece of evidence, so long as the findings linking the evidence to the verdict can be logically discerned: R.E.M, at paras. 16-29 and 43. [60] When the reasons are read as a whole, within the context of the evidence and the arguments at trial, they are more than sufficient and fulfill the purpose for which they were intended. Accordingly, I would not give effect to this ground of appeal. (iv) Exculpatory Statements and the Right to Silence [61] The appellants argue that the trial judge erred in the manner in which he rejected their exculpatory police statements. Jordan argues that the rejection of his statement appeared to stem from his decision not to provide details about the fight and this runs counter to his constitutional right to silence. Meanwhile, Joshua argues that the trial judge erred in using a disbelief in his exculpatory statement to ground the conviction. He also argues that the trial judge subtly reversed the burden of proof when he made the following comment: “Had Joshua Powell stated he was protecting his girlfriend from the argument with [Quinn] and a fight between the two had ensued, it may have been believable.” According to Joshua, failing to consider this alternative explanation was an error, notwithstanding that Joshua did not raise it himself as he did not bear the burden of proof. [62] I cannot accede to these arguments. I am satisfied that the trial judge did not err in the manner suggested by the appellants. [63] It is without a doubt that an accused has a constitutional right to remain silent during any part of a police interview. This right remains intact even if the accused opts to speak to police about certain matters: R. v. G.L. , 2009 ONCA 501, 67 C.R. (6th) 278, at para. 39. As the Supreme Court explained in R. v. Turcotte , 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 52: An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction. [64] The right to silence prevents jurists from drawing adverse inferences from an accused person’s decision not to say more: see Turcotte ; David Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence , 8th ed. (Toronto: Irwin Law, 2020), at pp. 420-421. It is an error of law for a trial judge to draw an adverse inference on an accused’s credibility from their silence during a police interview: G.L. , at paras. 38-39. [65] At first glance, the trial judge’s reasons appear to place some significance on Joshua’s choice not to say more in the police interview. Specifically, in assessing Joshua’s statement, the trial judge made the following comment: “There was no question a significant altercation occurred, but Joshua provided little or no details about who was involved.” The trial judge returned to this theme later in his reasons, noting that Joshua did not give “details about the fight that occurred right at his feet.” However, he then went on to comment: “[w]hat evidence [Joshua] did give about the altercation was inconsistent with the other witnesses’ evidence.” The trial judge then detailed the contradictory evidence of said witnesses, making clear that Joshua’s statement simply did not have the ring of truth to it. On this issue, he concluded: “…Mr. Powell’s denial of any involvement in the altercation is rejected and does not raise a reasonable doubt in my mind.” [66] A cursory review of the trial judge’s assessment of Jordan’s statement also appears to give weight to Jordan’s choice not to remain silent about particular details. Specifically, the trial judge commented: “He chose to make a statement, and yet provided no details as to what went on in the fight.” However, in the sentences that followed, the trial judge explained why Jordan’s statement did not raise a reasonable doubt. For example, he noted that Jordan’s excuse for needing ice for his hand was contradicted by the testimony of other witnesses, which confirmed that he was involved in the fight and had attacked Quinn’s car. [67] Certainly, the paucity of detail in the appellants’ police statements cannot give rise to an inference of guilt in these circumstances. But I am not convinced that the trial judge’s comments were significant or reflective of why the trial judge rejected the appellants’ exculpatory statements. In both cases, the trial judge followed these comments by providing a detailed analysis of why the appellants’ versions of events were blatantly contradicted by the other evidence. After considering the totality of the evidence before him, he was entitled to disbelieve the appellants’ version of events and find that they did not raise a reasonable doubt. [68] This, in my view, was a proper use of both statements and in no way infringed their Charter right to remain silent. Essentially, all the trial judge was saying was that the appellants chose to speak, as was their right, and in speaking, they lied to police. That is a factor that he could and should consider in assessing their credibility. After all, a right to silence is not a right to lie without impunity. [69] Had the trial judge drawn an inference of guilt from the fact that neither appellant testified nor called evidence in their defence, there would have been a breach of the appellants’ right to silence. Likewise, a breach would have occurred if the appellants had not provided a statement to the police and the trial judge had drawn an inference of guilt on that basis. In both circumstances, such comments would imply that an accused person is obliged to speak in their own defence, thus reversing the burden of proof, which firmly rests with the Crown. [70] However, in the case before us, I am satisfied that the trial judge did not improperly draw any adverse inferences from the appellants’ silence in their police interviews. Rather, the trial judge was aware of the appellants’ rights and instead rejected their statements due to a reasoned and considered assessment of all of the evidence. He was entitled to determine what weight, if any, he should afford to individual pieces of evidence, including the appellants’ police statements. [71] That being said, a trial judge must be careful not to equate disbelief of an accused’s version of events with guilt as that would displace the Crown’s burden to prove an accused’s guilt beyond a reasonable doubt: R. v. Coutts, [1998] 40 O.R. (3d) 198 (Ont. C.A.), at p. 203. I am satisfied that this did not occur in this case. While the trial judge disbelieved the evidence of the accused, he was mindful of the burden of proof on the Crown. For example, in his reasons, he noted: If I accept the statement of the accused, then I must acquit. If the statement raises a reasonable doubt, I also must acquit. It is only if the Crown has proven all the elements of the case beyond a reasonable doubt that I can convict an accused. [72] As noted above, Joshua also takes issue with the following statement by the trial judge: “Had Joshua Powell stated he was protecting his girlfriend from the argument with [Quinn] and a fight between the two had ensued, it may have been believable.” This statement must be taken in its proper context. It is evident that the trial judge was using this illustration to make the point that there was no suggestion on the evidence before him that self-defence was in play. Both Joshua and Jordan denied involvement in the altercation. There was no air of reality to self-defence as there was no evidence upon which a reasonable jury could acquit on that basis. [73] When all is considered, I am not satisfied that the trial judge committed the legal error alleged by the appellants. As such, I would not give effect to this ground of appeal. (v) The Rejection of Zachary Powell’s Statement [74] The appellants argue that the trial judge’s rejection of Zachary’s evidence was based on an unfounded inference of bias. They contend that the Crown did not raise the issue of bias in accordance with the rule in Browne v. Dunn, and it would be unfair to reject such evidence without any effort to impeach the witness or without any factual foundation to suggest bias. [75] I disagree. The appellants are essentially asking this court to interfere with the trial judge’s factual findings as to the credibility of Zachary. There is no basis for this court to interfere with the trial judge’s factual findings. A trial judge’s credibility findings are entitled to deference. An appeal court may only interfere with a trial judge’s factual findings – such as a finding of bias – where the error is palpable and overriding: Clark, at para. 9. I see no such error here. There was evidence before the trial judge about Zachary’s relationship with the appellants and one of their co-accused. The trial judge was entitled to consider it in deciding whether to rely on Zachary’s evidence. [76] I also do not agree that the rule in Browne v. Dunn was violated. The rule in Browne v. Dunn is a rule of trial fairness that applies where a cross-examiner intends to impeach a witness with contradictory evidence on a matter of substance. It is meant to ensure that the witness is given a fair opportunity to challenge contradictory evidence that the witness might have been able to explain away: R. v. Quansah , 2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 75, 81. The relationship between Zachary and the appellants is not contradictory evidence that challenged  anything Zachary said. It was biographical information relevant to his general credibility as a witness. Nor can there be any suggestion that the Crown conducted the cross-examination in a way that deprived Zachary or defence counsel from addressing this concern, had they chosen to do so. The rule in Browne v. Dunn was not offended. [77] The Crown is not precluded from inviting a trier of fact to be selective as to what part or parts of any witnesses’ evidence they should believe: R. v. Walker, [1994] 18 O.R. (3d) 184 (Ont. C.A.), at pp. 156-157. Similarly, as noted above, a trier of fact or a trial judge may choose to believe some, none, or all of a witness’ evidence. In this case, the trial judge used Zachary’s evidence in the manner suggested by the Crown, and this was permissible. [78] In all the circumstances, I would also dismiss this ground of appeal. F. DISPOSITION [79] Both conviction appeals are dismissed. I would also not grant leave to appeal Jordan’s sentence. Released: April 29, 2021 “M.T.” “M. Tulloch J.A.” “I agree. David M. Paciocco J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Quinton, 2021 ONCA 44 DATE: 20210125 DOCKET: C65249 Tulloch, Paciocco and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Carl Quinton Appellant Michael Dineen and Emily Lewsen , for the appellant Craig Harper, for the respondent Heard: August 17, 2020 by video conference On appeal from the conviction entered by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, on March 8, 2017, and from the sentence imposed on June 26, 2017. Harvison Young J.A.: A. Overview [1] The appellant appeals his conviction for the second degree murder of Mark Gilby. Mr. Gilby was found dead in his apartment on Gale Crescent on January 19, 2014. The appellant knew Mr. Gilby and occasionally bought marijuana from him. He was captured on surveillance footage entering and leaving Mr. Gilby’s apartment building during the morning of the murder. [2] Central to the Crown’s case was a confession that the appellant made to undercover police officers more than a year after Mr. Gilby was found dead in his apartment. The confession was the culmination of an eight-month operation during which the Niagara Regional Police befriended the appellant and recruited him into a fictitious criminal organization. [3] In the course of the confession, Mr. Quinton divulged a number of details of the murder that, according to the Crown, corroborated his confession. [4] In circumstances that I will discuss in greater detail below, the trial judge did not hold a voir dire on the issues as set out in R. v. Hart , 2014 SCC 52, [2014] 2 S.C.R. 544. The appellant argues that this was clearly an operation that fell within the parameters of a “Mr. Big” operation. This rendered the confession presumptively inadmissible and required the trial judge to conduct a voir dire to determine whether it met the Hart test for admissibility. Moreover, he takes the position that had the trial judge applied the Hart test and held a voir dire , there was ample basis to exclude the confession for two reasons: first, because its probative value did not outweigh its prejudicial effect; and second, because the circumstances leading up to the confession as a whole constituted an abuse of process on the part of the police, given the relationship that developed with the accused and his particular vulnerabilities. He seeks a new trial. [5] The appellant also submits that even if the trial judge did not err in admitting the confessions, he erred in failing to charge the jury in accordance with R. v. Mack , 2014 SCC 58, [2014] 3 S.C.R. 3. [6] The respondent Crown argues that the trial judge did not err in failing to hold a Hart voir dire because the defence counsel at trial waived it at trial. It takes the position that in any event, any concerns about the reliability of the evidence were addressed by the corroborative evidence and also submits that nothing in the circumstances gave rise to abuse of process concerns. Finally, it submits that the charge to the jury met the functional requirements of Mack . [7] For the reasons that follow, I would allow the appeal and order a new trial. This was clearly a case to which the Hart considerations applied. The appellant did not waive a voir dire , and even had he done so, the waiver of the voir dire would have been invalid. It is not clear that the statement would have been admitted had a voir dire been held. In particular, the confession raised abuse of process concerns that needed to be canvassed in a voir dire . B. The Factual Background (1) The murder [8] Mark Gilby was discovered shortly before 5:00 p.m. in his apartment entryway surrounded by blood and without vital signs. He died of blunt force injuries to the head, likely caused by a hammer or a hammer like tool. His friend Diane Doucette had become increasingly alarmed when she was unable to reach him on his phone throughout the day. She and a friend had gone to his apartment around 4:30pm. When there was no answer to the door, which was locked, they called 911. Paramedics found the body without vital signs. [9] Mr. Gilby had been given two sets of keys to his apartment, including electronic building fobs which had distinct serial numbers. Mr. Gilby was in frail condition and used a motorized scooter. One set of his apartment and scooter keys could not be located in his apartment after the murder. (2) The evidence against the appellant [10] The appellant quickly became a person of interest in the murder after surveillance footage indicated that he had been at the deceased’s apartment on the day of the murder. [11] Surveillance footage first captured the appellant at Mr. Gilby’s apartment shortly before 10 a.m. on the day of the murder. After waiting in the vestibule area, he left the building and walked back in the direction that he came from. Afterwards, the appellant was captured on St. Catharines Motorcycle Centre surveillance footage travelling on his bicycle northbound on Riordan Street, just north of where it intersects with Gale Crescent. He was wearing a dark jacket, dark pants, dark shoes, and gloves. [12] At 10:25 a.m., the appellant again approached the intercom panel in the vestibule area of Mr. Gilby’s building. After some discussion with a resident who was leaving the building, the appellant again left. [13] The appellant walked down the sidewalk before turning around and returning to the vestibule. At 10:29 a.m., he used the intercom to call Mr. Gilby and he was granted entry. The appellant walked towards the elevator. He was out of view for approximately seven minutes before he reappeared and exited the building at 10:37 a.m. When he reappeared, the surveillance footage appeared to show some discoloration in the pocket areas of the appellant’s jacket, as well as something bulging and protruding from his pockets. [14] The appellant conceded his identity in the surveillance footage and the fact that he was at the apartment to see Mr. Gilby. The appellant testified that, on his last visit that day, someone he thought was Mr. Gilby answered his call from the intercom and buzzed him into the building, but that when he knocked on Mr. Gilby’s unit there was no answer, so he left. [15] Approximately one-and-a-half hours after the appellant left Mr. Gilby’s apartment, he was captured on surveillance footage riding his bicycle. He was wearing a different jacket and shoes. The appellant testified that he changed his clothes because he got splashed while riding his bicycle. [16] The police searched the appellant’s apartment and seized clothing and a pair of boots. No blood was found on the items. [17] The appellant testified that he had been to Mr. Gilby’s Gale Crescent apartment 10-15 times to purchase marijuana prior to the date of the murder. On at least one occasion, he saw Mr. Gilby go into a toolbox in his bedroom and return with half an ounce of marijuana. He testified that, on January 18, 2014, the day before the murder, he attended Mr. Gilby’s residence and bought a gram of marijuana that Mr. Gilby had in a coat pocket in the closet of the apartment entryway. The appellant testified that on that date, there were no other people in the apartment that he could see. He further testified that on the other occasions when he visited Mr. Gilby, he was generally alone in the apartment. [18] The appellant’s friend Sharon Shaw testified that she and the appellant would meet regularly and smoke marijuana together, which she purchased from the appellant. The appellant would purchase the marijuana from a number of sources, including Mr. Gilby. Ms. Shaw told police that two weeks after the murder of Mr. Gilby, the appellant gave her $170 in cash and a half-ounce of marijuana for free. She testified that this was out of the ordinary for the appellant. Ms. Shaw also testified that around this time, the appellant told her that he had a female friend who helped him dispose of a weapon. (3) The circumstances of the appellant [19] At the time of the murder, the appellant was living on disability benefits, which usually amounted to just over $1,000 a month. He testified that he had a trustee who handled his money, because he was not very good with money. His trustee ensured that he had enough money for rent and hydro. [20] After his expenses, he had around $500 a month leftover, which he mostly spent on alcohol and marijuana. He would often become intoxicated by the afternoon and would regularly drink to the point of passing out. He frequented Start Me Up Niagara, where he could receive free meals. He resold cigarette packs at a $5 profit on the side. [21] The appellant had documented anxiety and clinical depression, for which he took medication. After the murder, the appellant appeared to be in a bad mental state. His 58 th birthday was coming up, and he was depressed because he was about to outlive his father, who had died by suicide over 20 years earlier. [22] In March, about two months after the murder, he sent Ms. Shaw a note. He and Ms. Shaw had a falling out, which he discussed in his note. He said he was depressed and heartbroken by what happened with Ms. Shaw. He also gave her his bank card and told her to withdraw $500 and to “do something useful with it.” She thought the note was a suicide note and went to the police with it. (4) Project Gale [23] In the spring of 2014, the Niagara Regional Police launched “Project Gale,” an undercover operation to investigate the appellant for the murder of Mr. Gilby. Detective Sergeant Sean Polly acted as the handler in charge of the operation. He testified that as a handler he did not tell the undercover operators anything about the investigation or the appellant. [24] On June 3, 2014, Ralph Hopiavuori, the principal undercover officer, established contact with the appellant by defending him from another undercover officer pretending to be an aggressive panhandler. Det. Hopiavuori was not aware of the details of the homicide, simply that there was a suspect. [25] Det. Hopiavuori then started attending breakfasts at Start Me Up Niagara. One day, the appellant invited Det. Hopiavuori to his home after they ran into each other on the street while the appellant was inebriated, and Det. Hopiavuori was carrying a six-pack of beer. This became a regular event. Det. Hopiavuori would attend the appellant’s apartment to watch movies together. Sometimes, Det. Hopiavuori would bring food or beer with him to share with whoever was in the appellant’s apartment. While the appellant would smoke marijuana almost daily, Det. Hopiavuori never smoked with him. During these encounters, the appellant would become very intoxicated, sometimes to the point of losing control of his bowels or bladder. [26] In mid-July 2014, Det. Hopiavuori recruited the appellant to Project Gale’s fictional criminal organization that trafficked in contraband cigarettes and stolen property from the United States and Southern Ontario and arranged for passports to be forged to enable its members to cross the border. The appellant went on “box runs” in which Det. Hopiavuori would drive him to various locations and the appellant would load boxes of what he thought was contraband with Det. Hopiavuori and other members of the organization. They also attended simulated business meetings. [27] In addition to Det. Hopiavuori, there were around a dozen other officers who pretended to work for the organization, although the appellant was not introduced to all of them. The appellant became acquainted with Detective Sergeant Chris Lemaich and Detective Constable Kevin Neufeld. Det. Lemaich acted as someone with a similar role as the appellant and Det. Neufeld acted as someone in a higher position within the organization. [28] Once, the appellant attended a clubhouse near Kitchener that was apparently affiliated with the organization. According to the appellant’s testimony the clubhouse had pool tables, a Bentley, and was lined with motorcycles. During this period, the appellant occasionally travelled to hotels and casinos with Det. Hopiavuori and others. The appellant testified that he thought that Det. Neufeld was connected to a biker gang. [29] In late August 2014, the appellant suffered a stroke and was hospitalized for 16 days. Det. Hopiavuori visited the appellant in the hospital regularly and Det. Neufeld visited once or twice. The appellant testified that no one else had come to see him, aside from one visit from a Start Me Up Niagara worker. Det. Hopiavuori also assisted the appellant by checking in on his home while he was in the hospital, delivering his marijuana and cigarettes to the hospital, and paying for a TV for his hospital room. He also returned the appellant’s overdue DVDs to the library and retrieved his bank card. [30] When the appellant was discharged, he had a severe leg tremor and was unable to walk or take showers unassisted. He was initially reliant on a wheelchair but Det. Hopiavuori bought him a walker as well as clothing, food, and a haircut. Det. Hopiavuori also drove him to doctor’s appointments. By his own words, the appellant was helpless after his stroke. He went from being a mobile person to being affected by leg tremors. The appellant continued to take part in the box runs after his stroke but in a modified capacity. Before his stroke, he assisted with moving boxes of contraband. After his stroke, his job was to keep watch for the police. He conducted 11 or 12 more runs, to further locations, and his compensation increased to between $50 and $100 per run. Det. Hopiavuori continued to provide him with food and beer. [31] While the appellant was in the hospital, he was questioned by homicide detectives about Mr. Gilby’s murder. He testified that the police would show up at his home and he would regularly bump into them on the street. In December, after what appeared to be months of increasing police pressure, Operation Gale staged a scenario where the appellant and Det. Hopiavuori were pulled over by the police. The police confiscated cigarettes from Det. Hopiavuori’s truck, purportedly worth thousands of dollars. When questioned by Det. Neufeld about how this happened, Det. Hopiavuori told him that the appellant was the suspect in a murder. Det. Neufeld assured them that he would arrange something that would get the police to leave the appellant alone. He came up with the following plan. The appellant would relay the details of the murder to Det. Lemaich, who was supposedly dying of cancer. In exchange, Det. Lemaich would receive $10,000 from Det. Neufeld, for him to give to his family. Det. Lemaich was going to receive $5,000 up front and then $5,000 after he confessed. It was in this context that the appellant ultimately confessed to the murder. [32] The lead-up to the confession began on Monday, February 2, 2015, when the appellant’s Red Cross worker did not show up to help the appellant shower. The next day, Det. Hopiavuori took him to a hotel where he could bathe himself. On Wednesday, Det. Hopiavuori drove him home to retrieve medication he left behind. As part of the scenario, police were outside the appellant’s door when they arrived. The appellant wanted to stop and speak to them, but Det. Hopiavuori convinced him to return to the hotel. On Thursday, Det. Hopiavuori took the appellant to the doctor to obtain a new prescription. They planned to go to a pharmacy on Friday. At multiple points, the appellant suggested that he call the police or that he go back to his place. Det. Hopiavuori told the appellant that he would not take the appellant back to his apartment. [33] By this point, the appellant was, in his words, a mess. He had been without his medication for several days and was in an altered mental state. He said that he had no idea what was happening with his head and that he did not know where he was. The increasing pressure he felt throughout the week from the undercover officers to confess exacerbated this. He confessed on Thursday and Friday. He stated that he attended Mr. Gilby’s apartment, stole his marijuana, and attacked him with a hammer that he brought with him. On his way out, he took Mr. Gilby’s keys from the ignition of his scooter and locked the door. He turned his jacket inside out, as he was covered in blood, called a cab and returned home. He left the hammer in a park and threw the keys in a sewer. [34] His confession came out in fragments. The appellant alleges that many details were prompted by Det. Hopiavuori and other officers. When his narrative contradicted known facts about the murder, Det. Hopiavuori challenged him on it and worked with him to create a coherent narrative. [35] On Thursday, Dets. Hopiavuori and Neufeld took the appellant to a hardware store where the appellant pointed out a hammer similar to the one he said he used to kill Mr. Gilby. No hammer was ever found in the park. [36] On Friday, the appellant said that he disposed of the keys with the hammer or elsewhere in the park. Later that day, however, the appellant brought Dets. Hopiavuori and Neufeld to a sewer where he said he threw the keys. The keys were found in the sewer. The appellant was arrested and charged shortly thereafter. C. The issues [37] There are three issues on appeal which will be addressed in turn: 1. Did the appellant waive the voir dire and, if so, was the waiver valid? 2. Would the confession have been admitted if a voir dire was held? 3. Was the jury charge adequate in warning the jury of the dangers inherent in the confession? D. Law and Analysis (1) Did the appellant waive the voir dire requirement from Hart ? The Application of Hart [38] The trial Crown took the position that Hart did not apply because the appellant did not make a Mr. Big confession. On appeal, the Crown did not seek to maintain this position, arguing instead that the appellant waived the need for a Hart voir dire . The appeal Crown’s concession that Hart applies to the appellant’s confession is correct. I will explain why this is so, and then address the Crown’s waiver argument. [39] Hart dealt with the admissibility of confessions made in the course of Mr. Big investigations. The classic Mr. Big operation involves the luring of a suspect into a fictitious criminal organization. The suspect is offered financial inducements and friendship. The operation “culminates with an interview-like meeting between the suspect and Mr. Big”: Hart , at para. 2. During this interview, Mr. Big questions the suspect about the crime and pushes the suspect for a confession. By confessing, the suspect can gain acceptance into the fictious criminal organization. Confessions made during a Mr. Big investigation are presumptively inadmissible, because of the dangers posed by the investigative technique. [40] In Hart , Moldaver J. foresaw that police might make superficial changes to their operations to avoid Hart . As a result, he defined a Mr. Big investigation broadly, at paras. 10, 85: “ where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him any confession is presumptively inadmissible” (emphasis added). [41] Accordingly, this court took an expansive view of the application of Hart in R. v. Kelly , 2017 ONCA 621, 387 C.R.R. (2d) 93, leave to appeal dismissed, [2017] S.C.C.A. No. 474. Feldman J.A. wrote, at para. 35, that although the undercover operation in Kelly did not have the “most offensive tactics” of the traditional Mr. Big operation, Hart still applied. The relevant question to determine whether Hart applies to an operation is whether the operation poses the potential for the three dangers identified in Hart : “unreliable confessions, the prejudicial effect of the evidence of the appellant’s participation in the scheme, and the potential for police misconduct”: Kelly , at para. 35. [42] The appellant’s confession satisfies the requisite criteria. The operation satisfies the Hart definition because (i) the state recruited the appellant into a fictitious criminal organization of its own making in order to (ii) elicit a confession: Hart , at para. 10. The expanded criteria in Kelly are also met. As the following analysis discloses, the operation used to secure the appellant’s confession posed the potential of producing an unreliable confession, generated prejudicial evidence relating to the appellant’s participation in the scheme, and had the potential for police misconduct. The confession was presumptively inadmissible, and the requirement for a voir dire was triggered, in which the Crown would have to show the confession to be admissible. Waiver of the voir dire [43] The admissibility of evidence is for the trial judge to determine: R. v. J.H. , 2020 ONCA 165, at para. 56. The party seeking to admit presumptively inadmissible evidence “must apply to the trial judge for an order permitting its reception”: J.H. , at para. 57. The general practice is to invoke s. 645(5) of the Criminal Code and to have the application heard before jury selection: J.H. , at para. 58. [44] Of course, a party may generally waive the benefit of exclusionary rules, thereby permitting presumptively inadmissible evidence to be received. The respondent argues that this occurred here. It maintains that through his trial counsel the appellant exercised his right to waive a Hart voir dire . The respondent contends that absent an ineffective assistance of counsel argument (which the appellant did not advance), the appellant must live with the consequences of tactical decisions made by his counsel. Counsel is presumed to know the law. He was aware of Hart and the voir dire procedure, as is evident by his lengthy submissions to the trial judge on this issue. He made a tactical decision to dispense with the voir dire . [45] However, the law of waiver is unique as it applies to confessions, no doubt because a confession is often decisive in establishing guilt. A trial judge is obliged to conduct a voir dire into the admissibility of a confession, even in the absence of objection, unless the right to a voir dire has been expressly waived: Park v. R. , [1981] 2 S.C.R. 64, at p. 70. In R. v. Sabir , 2018 ONCA 912, 367 C.C.C. (3d) 426, at para. 24, Strathy C.J.O. described what is required: As the Supreme Court explained in R. v. Park , [1981] 2 S.C.R. 64, at p. 73, there is no particular wording or formula required to communicate an informed waiver. However, the waiver must be express. "The question is: Does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntary and admissible in evidence?": R. v. Park , at p. 74. In the context of a waiver made by defence counsel, the court stated that the trial judge must be "satisfied that counsel understands the matter and has made an informed decision to waive the voir dire ": at p. 73.The onus on a trial judge with respect to voluntariness is high, even where an accused is represented by counsel. As the Supreme Court noted in R. v. Hodgson , [1998] 2 S.C.R. 449, at para. 41: "The trial judge has a duty 'to conduct the trial judicially quite apart from lapses of counsel': see R. v. Sweezey (1974), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir dire whenever the prosecution seeks to adduce a statement of the accused made to a person in authority”. [46] Once a waiver has been offered the trial judge has discretion to accept the waiver, to hold a voir dire , or to make inquiries of counsel as to factual admissions underlying the waiver: Park , at p. 70. Although a trial judge is not required to make inquiries before accepting the waiver, the trial judge must be “satisfied that counsel understands the matter and has made an informed decision to waive the voir dire ”: Park , at p. 73. [47] In Hodgson , [1998] 2 S.C.R. 449, at para. 41, Cory J. noted that “where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence.” It follows that if a statement of the accused is admitted into evidence without a valid waiver, the trial judge will have committed a reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire . [48] As I will explain, this review of the law exposes problems in finding that the appellant waived his right to a voir dire . First, defence counsel did not purport to waive the right to a required voir dire . Instead, he erroneously conceded that a voir dire was not required because the rule requiring a voir dire did not apply. This concession was not a “waiver”. Second, it is evident that defence counsel did not understand the law that applies, and the trial judge accepted the “waiver” without satisfying himself that counsel understood the matter and made an informed decision. Indeed, there was clear evidence on the record that should have alerted the trial judge to the need for a voir dire to determine compliance with the rule in Hart , notwithstanding defence counsel’s mistaken concession that the rule did not apply. Hence, even if defence counsel’s concesssion amounts to a waiver, it was not a valid waiver. The circumstances of the purported waiver [49] In order to address the validity of the appellant’s purported waiver, it is necessary to consider the pre-trial and mid-trial discussions between counsel and the trial judge. [50] The admissibility of the statement was not properly canvassed at the judicial pre-trial. According to the trial Crown, there was brief discussion about the admissibility of the confession at the pre-trial stage. However, the appellant changed counsel after this pre-trial discussion. When new counsel attended a continued judicial pre-trial, he was not fully versed in the appellant’s case. There was no discussion about a Hart voir dire at that point . He stated that he believed that the only live issue at the continued pre-trial was the Charter compliance of the intercepts. [51] Defence counsel finally raised the issue a few weeks prior to the start of the trial, advising Crown counsel that he believed that Hart applied. Crown counsel disagreed and took the position that defence counsel bore the onus of proving that the investigation was a Mr. Big operation before the Crown was required to establish the admissibility of the confession. It seems that the Crown took this position because, according to him, there was no criminal hierarchy or violence. [52] The issue did not come up again until mid-trial. In his cross-examination of Det. Polly, defence counsel asked questions related to the nature of the operation and the officer’s understanding of the appellant’s alcohol addiction, seemingly to establish a factual record for admissibility. The trial judge challenged defence counsel on the relevance of this line of questioning. The next morning, on March 1, 2017, defence counsel made his first submissions on Hart : [A]t the end of my questioning of, of this witness, I would be arguing that Hart applies…after this witness is completed, I would be asking for you to make a finding. I would ask that then we would voir dire the, the next witness. Not necessarily about the statements themselves, just about circumstances in which the statements were taken, the utterances were taken. And, and Your Honour would, would make a finding that if the Crown had or had not satisfied the onus that I believe is now a common law onus. [53] Upon hearing this, the trial judge was concerned that this was not canvassed at the pre-trial stage and was specifically concerned that the jury would be inconvenienced by the time it would take to make a decision on this issue. The trial judge initially characterized the question as whether or not the confession would go into evidence. At this, defence counsel offered a “third course”: I think Your Honour will find that Mack is the, is, is – covers the ground here and that you will suggest that we just hear the evidence in front of the, the jury and then at the end Your Honour can make appropriate cautions about the, about the evidence…there are two – three outcomes…You could just deny the, the application, assuming that you’ll hear the application, you’ll deny the application. And I can understand how that could happen. You could grant the application, do the voir dire and – with the remedies that are available or I think with an eye to the Mack case which is a case, as I understand it, and please, I, I don’t – I’m not terribly familiar with it at this juncture . But in, in Mack the trial proceeded to, to the end and the issue was the, the judge making the appropriate cautionary remarks to the jury about what use they can put the evidence to. [Emphasis added.] [54] The trial Crown stated that he would have called its evidence in an entirely different manner had he known that this issue would have been raised. He also stated his position that, if there was a voir dire , that the Crown would have to introduce all 280 hours of recordings and call other police witnesses. [55] At this point, the discussion of the admissibility of the confession paused so that the cross-examination of Det. Polly could be completed. The issue was again addressed after the completion of the cross-examination. The trial judge summarized the live issues in this way: As I see it, there are two issues for the Court to consider at this point. The first is should there be consideration of the confession, at this point, based on pre-trial conference discussions. To put that another way, the whole point of pre-trial discussions is to sort out in advance issues that are going to impact the trial, so that once the trial begins, particularly with a jury, it can proceed with relative efficiency, if I can call it that. The second issue for me to consider at this point is – and I’ll put this in, in a short form, does Hart apply. In other words, is there sufficient evidence of a Mr. Big operation to trigger the presumption of inadmissibility at common law? [Emphasis added.] [56] Crucially, from this point on, it seems that the only submissions on the substantive law related to whether or not Hart applied – not whether the confession was ultimately admissible. [57] Crown counsel again insisted that if a voir dire was to be held he would have to play weeks of intercepted conversations to the Court: I don’t know what the procedure is for you to consult with your colleague but no such application was brought before the Court. The Crown would have called its evidence in an entirely different manner. And if we are compelled to enter into a voir dire at this stage, I can tell you there are – in order for the Crown to make the record complete, there are 280 hours of recorded conversations. It’s up to the Crown to put all of the admissible evidence that would be relevant, in terms of how this relationship developed, how it was fostered, the nature of it and, I would respectfully submit that if it isn’t being challenged on a voir dire , with all those factors in mind. [58] Both defence counsel and trial judge pushed the Crown on this position. Defence counsel stated that he anticipated that a voir dire would take a few hours. The trial judge stated that it would not be necessary or realistic to hear all the intercepts to determine whether there was a Mr. Big or not. The trial judge indicated that a voir dire with 280 hours of recordings would lead to a mistrial. However, Crown counsel reiterated his position that all 280 hours would have to be introduced into evidence. [59] On the substantive issue, Crown counsel stated that the onus was on the appellant to establish that it was a Mr. Big operation and that the groundwork for that argument had to have been done in a pre-trial motion. [60] The trial judge again expressed concern about the effect that a long voir dire would have on the jury and encouraged counsel to come to make reasonable concessions to shorten the time required for a voir dire . He also encouraged counsel to have an off-the-record discussion. Well, it might – can I suggest that rather than have a kind of an open, free flowing discussion on the record, you have a discussion and then based on what you may conclude you can advise me on the record. If, as between counsel, you can agree that the only other evidence, or I should say, testimony that’ll be called on this threshold issue of whether a Mr. Big operation applied and, if so, as to the Crown’s onus, if the only evidence that you require is what’s currently before the Court and the evidence of Mr. Hopiavuori then we can proceed on that basis. [Emphasis added.] [61] The Court took a recess so that the Crown and defence counsel could have an off-record discussion about how to proceed. They returned having come to an agreement that: (i) defence would accept the Crown’s position that there was no Mr. Big within the meaning of Hart ; (ii) the issue of the reliability of the statement would be left to the jury; and (iii) counsel would be expecting an instruction from the trial judge about the nature of the inducements provided to the appellant. The Crown addressed the court: Your Honour, Mr. Hadfield and I have had conversations and what I’ve suggested to him is if he concedes the Mr. Big point , the evidence could easily be used that we’ve already heard to tell the jury that perhaps Mr. Quinton’s will was overwhelmed when he was speaking with this officer and I think that’s, that’s fair play. So that’s what we’re aiming for. [Emphasis added.] [62] After the next recess, Crown counsel confirmed that they would be proceeding without a voir dire and that the reliability of the confession would be dealt with in the jury instruction. Defence counsel made no explicit factual admissions. [63] The trial judge made no inquiries about the legal basis for the conclusion that this was not a Mr. Big confession. But during the pre-charge discussions, defence counsel made the following comment, suggesting that in his view the criminal activity was not sufficiently serious, and the organization was not sufficiently hierarchical to technically constitute a Mr. Big operation: [W]hether Your Honour would have found this to be a Mr. Big operation or a Mr. Big style operation except with a very small Mr. Big and a very mundane and paltry criminal organization. There are analogues between, in my respectful submission, between Mr. Big style and this, this operation. [Emphasis added.] [64] The trial judge appeared to agree with the position that the crimes were not sufficiently serious for the operation to constitute a Mr. Big operation. In pre-charge discussions, he distinguished between Project Gale and a Mr. Big operation in the following way: [U]nlike a Mr. Big where they’re looking at some serious bad crime and in effect having to prove that you’re capable of similar bad crime … this is to me some petty crime about moving some cigarettes around. The purported waiver was not a waiver [65] The respondent’s submissions that the appellant waived his right to a Mr. Big voir dire cannot be accepted. Appellant’s trial counsel did not advise the court that the appellant was waiving his right to a voir dire into the admissibility of the confession. Instead, he had agreed to accept the Crown position that Mr. Big did not apply. No waiver occurred. [66] Even if defence counsel’s mistaken concession that Hart did not apply to the appellant’s confession qualified as a waiver, it would not have been a valid waiver. The decision made by defence counsel was not informed and the trial judge failed to determine that it was. [67] First, it does not seem that defence counsel appreciated the legal issues involved. The entirety of the on-the-record discussion, prior to the purported waiver, related to the question of whether Hart applied to the confession. None of the discussion related to the admissibility of the confession under Hart . [68] In addition, it does not appear that defence counsel had turned his mind to the abuse of process concerns in this case. Defence counsel’s response to the trial judge’s challenge to the relevance of his questioning of Det. Polly related to the nature of the inducements provided and how those inducements may undermine the reliability of the statement. Not once during this exchange or during pre-charge discussions did defence counsel highlight the abuse of process concerns. [69] The agreement counsel reached after their off-the-record discussion was not an agreement that fully informed defence counsel would have made. After the discussion, defence counsel agreed to accept Crown counsel’s position that Hart did not apply. In return, Crown counsel agreed that a Mack -style jury warning on the reliability of the confession would be given. However, the appellant would have been entitled to a jury warning on the reliability of the confession in any event if the evidence was admitted after a voir dire . A jury warning is required in every single case involving an admissible Mr. Big confession. Defence counsel received nothing in return for his concession. As appellant counsel described, this agreement was more of an unconditional surrender than it was a deal. [70] Finally, statements made by defence counsel further support the view that the waiver was not informed. Defence counsel was, by his own admission, unfamiliar with the law around Mr. Big confessions. During the pre-charge discussions, defence counsel characterized the operation as a “Mr. Big style operation, except with a very small Mr. Big and a very mundane and paltry criminal organization.” The only case that defence counsel relied upon in his submissions other than Hart and Mack was R. v. Derbyshire , 2016 NSCA 67, 340 C.C.C. (3d) 1. Derbyshire did not involve a Mr. Big investigation. Indeed, the circumstances of Derbyshire were far afield from this case. [71] Upon review of the statements made by counsel on the record, the nature of the agreement reached off-the-record, and the legal issues, the only reasonable inference is that defence counsel did not understand the legal issues and did not appreciate the implications of the waiver of the voir dire . In short, the purported waiver was not informed. Yet the trial judge failed to satisfy himself that counsel understood the matter and had made an informed decision to waive the voir dire. He should have done so. There was ample evidence on the record that should have alerted the trial judge that Hart applied, entitling the appellant to a voir dire . The trial judge erred in not holding one. [72] However, this is not the end of the analysis. When there is no voir dire at trial, appellate courts will not intervene if it is clear that the statement would have met the admissibility threshold if a voir dire had been held: R. v. Niemi , 2017 ONCA 720, 355 C.C.C. (3d) 344, at paras. 3, 28; Kelly , at para. 78. [73] In Niemi , the confession was admitted at trial, before the Supreme Court’s decision in Hart . Paciocco J.A. dismissed the appeal, as he found that the statements would have been admitted under the Hart test. In his confession, Mr. Niemi had provided a number of unreleased details of the murder. This bolstered the reliability of the confession, “in spite of the non-coercive inducements” given to secure the confession: at para. 29. The probative value of the statements was “impressive”: at para. 29. In addition, there was no abuse of process; the trial judge found that the Mr. Big operation was “exemplary” and “excellent police work”: at para. 31. (2) Would the confession have been admissible if a voir dire had been held? [74] The appellant argues that the record in this case is insufficient for this Court to resolve the ultimate question of the admissibility of the confession. However, he argues that, on the record available, there is doubt that the confession was reliable. In addition, he submits that it is highly arguable that the police conduct in this case would shock the conscience of the community. [75] The respondent argues that the confession would have been admitted. He argues that nothing in the circumstances of the investigation suggests that the appellant’s will was overborne and that his confession was unreliable. In addition, the confession had several markers of reliability, including that it contained precise details, including some not publicized, and that it led to the discovery of further evidence. On the abuse of process branch, the respondent argues that the investigation was skillful police work. The investigation did not involve coercive behaviour that would shock the conscience of the community. [76] A confession made during a Mr. Big operation is problematic because there is a risk that the confession is unreliable and an admitted confession is generally accompanied by bad character evidence: Hart , at paras. 68-77. In addition, Mr. Big operations “create a risk that the police will resort to unacceptable tactics in their pursuit of a confession”: Hart , at para. 78. Unacceptable police tactics can undermine the reliability of a confession or be an abuse of process. In recognition of these dangers, Mr. Big confessions are presumptively inadmissible. [77] In order to be admitted, the confession’s probative value must outweigh its prejudicial effect, and the police conduct must not have amounted to an abuse of process. The confession’s probative value is tied to the reliability of the statement, while its prejudicial effect arises primarily from the bad character evidence that must be disclosed during trial about the subject’s misconduct during the operation: Hart , at para. 85. [78] The abuse of process prong of the test “is intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”: Hart , at para. 113. The operation “cannot be permitted to overcome the will of the accused and coerce a confession”: Hart , at para. 115. Importantly, Moldaver J. stated, at para. 117, that “operations that prey on an accused’s vulnerabilities – like mental health problems, substance addictions, or youthfulness – are also highly problematic. Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system ” (emphasis added). [79] In addition to mental health problems and substance addiction, courts have explored whether the accused possessed traits such as intelligence and “street smarts” and have also explored the degree to which the accused was emotionally bonded to the undercover operatives, dependant on the fictional criminal organization, socially isolated, and destitute: Kelly , at paras. 38-39; Neimi , at para. 29; Yakimchuk , 2017 ABCA 101, 352 C.C.C. (3d) 434, at para. 69. [80] Notably, Moldaver J. wrote that the abuse of process in Hart was a “reinvigorated” analysis. He acknowledged, at para. 114, that the abuse of process doctrine was rarely used to guard against police misconduct in Mr. Big operations: I acknowledge that, thus far, the doctrine has provided little protection in the context of Mr. Big operations. This may be due in part to this Court’s decision in R. v. Fliss , 2002 SCC 16, [2002] 1 S.C.R. 535, where Binnie J., writing for the majority, described the Mr. Big technique as “skillful police work” (para. 21). But the solution, in my view, is to reinvigorate the doctrine in this context, not to search for an alternative framework to guard against the very same problem. The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them. [Emphasis added.] [81] The Mr. Big operation in Hart “preyed upon the respondent’s poverty and social isolation”: at para. 148. In addition, the police allowed Mr. Hart to drive long distances despite knowing that he had a risk of seizure and could have had an accident while driving. Moldaver J. commented, at para. 149, that “the police conduct in this case raises significant concerns, and might well amount to an abuse of process.” Analysis on admissibility [82] I agree with the appellant’s submissions that there are substantial issues related to the reliability of the confession and the police conduct in this case that require a new trial and a voir dire to properly address. I cannot say that had a voir dire been held, the confession would have been admitted. [83] It the outset, I note that the trial Crown’s position was that all 280 hours of intercepts would need to be introduced into evidence on a voir dire . This position was unreasonable and appears to be one of the root causes of why a voir dire was never held. In the face of the trial Crown’s submissions on this point, the trial judge stressed that counsel should attempt to come to an agreement and make reasonable concessions and, in the end, defence counsel conceded the Mr. Big point. The respondent now attempts to argue on appeal that there is enough of an evidentiary record to conclude that the appellant’s confession would have been admitted had a voir dire been held. (i) Probative value vs. prejudicial effect [84] The respondent is correct that the confession appears to have led to the discovery of powerful inculpatory evidence: Mr. Gilby’s missing set of keys, which were in the storm sewer that the appellant led police to. This is, on its face, a persuasive indicator of the reliability of the confession. The defence position at trial was that the police officers coached the appellant on the content of the confession and that the officers led the appellant to the location of the keys. The appellant was simply responding to non-verbal clues when he directed them to the correct storm sewer. The appellant says that the recordings of the confession support the coaching theory. He called evidence which suggested that the keys would have been discovered much earlier, had they been deposited in the storm sewer when the appellant said they were. Given my conclusion on the abuse of process concerns and the fact that the record is incomplete on this issue, it is not necessary to comment on the reliability of the appellant’s confession, other than to say that the evidentiary record on this point is incomplete. (ii) Abuse of process [85] The police conduct in Project Gale raised serious concerns about abuse of process. The appellant was an alcoholic. He had anxiety and depression that he was taking medication for, and at least one recent instance of suicidal ideation. He eked out an existence on disability benefits. He drank and smoked marijuana regularly and had to leave his disability cheques with a trustee out of fear that he would not be able to afford his living expenses due to his substance consumption. [86] When Det. Hopiavuori appeared as a new friend, the appellant’s life became easier. He suddenly had a network of people he cared for, and who appeared to care for him. Det. Hopiavuori regularly bought him food and alcohol. He received cash from the organization. The amounts may not seem like a lot of money for most, but the appellant was a man scraping by on his benefits. In eight months, he incurred $585 worth of debt and repaid $440. Over that same period, the organization paid the appellant about $910. During the time before the appellant’s stroke, Det. Hopiavuori spent $260 on alcohol for the two of them and whoever else was around. In total, he spent over $970 on alcohol and almost $1,900 on food during the operation. He spent around $160 on other expenses, including the walker, clothes, and a haircut for the appellant. The fictitious organization also spent $837.88 on hotels for the appellant. As Det. Polly acknowledged, the money was a lot for the appellant. Perhaps most importantly, he was also made to feel useful and valued by the organization, which began to give him tasks in this apparently criminal enterprise. [87] Up until the point of the appellant’s stroke in August 2014, the circumstances of Operation Gale, although still concerning, may not have been much different from many Mr. Big operations. However, from that point on, the police conduct raised even more significant concerns. As the appellant submits, Det. Hopiavuori took on a caregiving role in addition to a friendship role. Det. Hopiavuori visited him in the hospital; purchased things for him, including a walker and a TV; and picked up his medication. [88] This chronology reveals a significantly increased level of dependence and vulnerability on the part of the appellant after he suffered the stroke. While the evidence of Dets. Polly and Hopiavuori was that they were merely looking after him so that he would be able to continue in Operation Gale, it is clear that this also fostered a relationship of increased dependency on the part of the appellant. The appellant was even more vulnerable than he had been before the stroke. They accommodated his physical constraints by limiting his role to that of lookout. He testified that when he expressed some surprise at this, he was told that he was valued because he was smart. They also took him to a hotel and paid so he could bathe which he was unable to do, at least initially, at home. [89] It was during this period that the police increased the pressure on him. They pulled the appellant and Det. Hopiavuori over and seized what the police convinced the appellant were thousands of dollars worth of cigarettes. Under this pressure, Det. Neufeld purportedly came up with a plan that would relieve that pressure and provide the appellant’s friend, Det. Lemaich, with a way to support his family. [90] Then, in the final days before the confession, the appellant’s Red Cross worker did not show. The police staged an elaborate operation, where it appeared that his apartment was swarmed by police. When Det. Hopiavuori and the appellant saw the police cruisers, the appellant wanted to speak to the police and clear things up. The appellant also wanted to retrieve his medication. Det. Hopiavuori refused and convinced the appellant to leave. They ended up back at a hotel. During the time at the hotel, Det. Hopiavuori increasingly pressured the appellant to confess. Most concerning of all, the appellant did not have his medication for the entire time at the hotel. By the time he confessed, he was a mess, mentally. [91] In summary, the appellant was extremely vulnerable and came to depend on Det. Hopiavuori: he had very little money and lacked a social network; he had documented mental health issues, including addition to alcohol; by the time of his confession, he had significant physical health issues; and he was off his medication for three days in the lead-up to his confession. The appellant’s vulnerabilities were exploited, consciously or not, by the operation: the police officers provided him with money; they made him feel valued; they provided him food and alcohol; they were invaluable to the appellant while he was recovering from his stroke; and they actively prevented the appellant from obtaining medication right before the confession. [92] These are serious issues and it is by no means obvious that the confession would have survived the scrutiny of a voir dire . As the appellant states, it is highly arguable that the police conduct in this case would shock the conscience of the community. I stress that these statements were presumptively inadmissible, and the onus was on the Crown to show otherwise. [93] A search of the post- Hart case law indicates that very few Mr. Big confessions have been excluded because the police conduct amounted to an abuse of process, despite Moldaver J.’s comments that the doctrine must be reinvigorated to guard against abusive police conduct. It appears that the doctrine of abuse of process might still “be somewhat of a paper tiger”, especially in cases like the case at bar, where the accused was not threatened with overt or implied violence: Hart , at para. 79. This is despite Moldaver J.’s comments, at paras. 78, 114, that police conduct must be carefully scrutinized in light of the obvious “risk that the police will go too far”. [94] The promise of a “reinvigorated” abuse of process doctrine must not be an empty one. The facts of this case demonstrate that there is an ever-present risk that the police might go too far. It is the court’s role to provide for an “effective mechanism for monitoring the conduct of the undercover officers who engage in these operations” and to “protect against abusive state conduct”: Hart , at paras. 79-80. That did not happen in this case. These comments should not be taken to suggest that a particular result must be reached in a new trial of this matter. Instead, they are intended to signal to the courts more broadly that they must seriously consider the applicability of the abuse of process doctrine in cases of this nature. (3) The jury charge [95] Because of my conclusion on the admissibility of the confession, it is not necessary to decide whether the jury charge was adequate because a jury charge presupposes that the confession was properly admitted. Moreover, had a voir dire been conducted, additional evidence may have been admitted, thus affecting the necessary content of the charge. It may be useful, however, to restate a few applicable principles. [96] First, and most importantly, even if a confession obtained through a Mr. Big operation is determined to reach the admissibility threshold at a proper voir dire and is admitted into evidence, the issues about reliability and potential for prejudice identified in Hart are not eliminated. These evidentiary issues must still be mitigated at the jury instruction stage of the trial: Mack , para. 44. [97] The appellant argues that the jury charge fell well short of the guidelines in Mack . Specifically, the jury charge did not address specific reliability concerns associated with Mr. Big confessions and it did not review the circumstances relevant to the confession. As a result, it did not properly caution the jury about the reliability concerns in the confession. [98] The respondent argues that the jury charge was adequate. The charge as a whole accorded with the requirements of Mack . He argues that a more detailed charge about the circumstances of the confession would not have assisted the defence, because it would have included a list of evidence that confirmed the reliability of the confession. [99] It is well established that an accused is entitled to a properly, but not perfectly, instructed jury: Mack , at para. 48. An adequate jury charge must caution the jury about the two evidentiary concerns raised by Mr. Big confessions: the risk that the confession may be unreliable and the fact that any confession is accompanied by bad character evidence. These concerns do not disappear after the confession is admitted: Mack , at para. 44. The details of this evidence will, obviously, inform the specific content of the instructions to be given to the jury. [100] There is no magic formula for a jury instruction in Mr. Big cases. However, with respect to the reliability concerns, the trial judge should highlight that the reliability of the confession is a question for the jury: Mack , at para. 52. The trial judge should alert the jury to several factors relevant in assessing the  reliability of the confession, including “the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused”: Mack , at para. 52. The trial judge should also discuss any markers of reliability that the confession contains. [101] Because there was no voir dire held in this case, it is not useful to parse the trial judge’s charge beyond setting out these general principles. Depending on the voir dire , there may be more or less evidence adduced at trial in relation to the reliability of any statements or confession admitted. E. The sentence appeal [102] While the notice of appeal included a sentence appeal which has not been formally abandoned, the issue was not argued before us. In any event, it is not necessary to deal with the appeal given the conclusions I have reached in the conviction appeal. F. Disposition [103] For these reasons I would allow the conviction appeal and order a new trial. Released: January 25, 2021 “M.T.” “A. Harvison Young J.A.” “I agree M. Tulloch J.A. ” “I agree David M. Paciocco J.A. ”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.A., 2021 ONCA 126 DATE: 20210301 DOCKET: C67929 Tulloch, Harvison Young and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and R.A. Appellant Paul Calarco, for the appellant Vallery Bayly, for the respondent Heard: September 2, 2020 by audio and video conference On appeal from the sentenced imposed by Justice Patrice F. Band of the Ontario Court of Justice, dated September 30, 2019, with reasons reported at 2019 ONCJ 684. Tulloch J.A.: A. Introduction [1] This is an appeal of the sentence imposed on September 30, 2019. The appeal relates only to the length of the sentence, and not to any ancillary conditions imposed as part of the sentence. [2] The appellant pled guilty to sexual assault, making sexually explicit material available to a child, and two counts of child luring. He was sentenced to five and a half years of imprisonment, reduced to five years after factoring in time served. [3] For reasons that follow, the appeal is dismissed. B. Background Facts (1) M.D. [4] The complainant, M.D., was fifteen years old. The appellant met M.D. online. They chatted over Facebook for a few weeks and then met in person in January 2016. In July 2016, the Children’s Aid Society (“CAS”) learned that M.D. was residing with the 35-year-old appellant. While they lived together, M.D. slept in a spare bedroom. The appellant sometimes took M.D. to movies, gave him beer and food, and gifted him an old iPhone. [5] M.D.’s biological parents were aware of the living situation. Due to concerns about M.D.’s relationship with the appellant, the CAS apprehended him and placed him in foster care. M.D. was also directed to cease all contact with the appellant. [6] M.D. and the appellant continued to contact each other with inappropriate electronic messages. The CAS took steps to prevent further communication. [7] By October 2016, M.D. was moved to a group home after his foster parents reported finding child pornography on his phone. [8] The police subsequently found further online sexual communications between the appellant and M.D., which were sent between February and April 2016. These communications revealed that there had been sexual contact, and that the parties had exchanged sexually explicit material. The appellant and M.D. called each other pet names, had engaged in oral sex, and the appellant had sent the complainant sexually explicit images of naked males and anal penetration. A fictitious Facebook account was used to allow the parties to maintain contact without detection. [9] In September 2017, the police interviewed M.D. He indicated that: the parties had engaged in sexually explicit chats; the appellant touched M.D.’s penis over his clothing while he was at the appellant’s home; there was mutual touching of this nature; they performed fellatio on each other; and the appellant anally penetrated M.D. on at least two occasions. M.D. kept these incidents secret. (2) “Drake” [10] Between August 2016 and March 2017, an undercover police officer communicated with the appellant. The officer claimed to be a fourteen-year-old male named “Drake.”  When they first started chatting, the appellant was thirty- five. [11] The appellant sought to have sexual contact with “Drake.” He asked to have Drake’s picture and suggested that they go for coffee or to a movie or hotel together. He also suggested that Drake could sleep at the appellant’s house. The appellant asked Drake to keep their communications secret. C. The Sentencing Decision (1) Circumstances of the Offender [12] After setting out the facts surrounding the offence, summarized above, the sentencing judge turned to the circumstances of the offender. [13] R.A. is now 38 years old. He had a difficult upbringing. His parents divorced at a young age. His mother’s new partner was alcohol and drug dependent; he became abusive towards her. Beyond the instability in his childhood home, R.A. was sexually abused by a peer during high school. [14] Since then, the appellant has held steady employment. He lived with his mother and her partner until 2012, when his mother died unexpectedly. He is currently involved in a monogamous relationship with an age-appropriate partner. His partner has expressed a willingness to continue the relationship provided that R.A. makes changes in his life. (2) Reports of Dr. Julian Gojer [15] The sentencing judge next considered the reports of a psychiatrist, Dr. Julian Gojer, which were adduced by defence counsel. [16] Dr. Gojer diagnosed the appellant with homosexual hebephilia, being an attraction to pubescent males. The appellant was also attracted to adult males. His history demonstrated no major mental illness, substance abuse disorder or personality disorder. He took responsibility for his offending and accepted the need for counselling. [17] The doctor’s original report indicated that the appellant was a risk to underaged males, but the risk was in the low range and could be further lowered with treatment, which the appellant admitted that he needed. Upon request, Dr. Gojer provided two further reports that clarified and qualified this finding: he was careful to note that the appellant’s assessment of low risk was predicated on his participation in treatment, which had not yet occurred. [18] Dr. Gojer recommended treatment for the appellant while in custody and in the community. The indications were that the appellant would engage in treatment. He had the capacity to benefit from treatment, and since the appellant was also attracted to adult males, he could re-direct his urges in a lawful way. (3) Mitigating and Aggravating Factors [19] The sentencing judge set out several mitigating and aggravating factors. [20] The mitigating factors listed by the sentencing judge included: the appellant pled guilty; he was open to therapeutic intervention; he expressed remorse; he had no criminal record; he had no drug or alcohol issues; he was currently in an age appropriate relationship; and he had a strong work history with support in the community. [21] The sentencing judge also properly considered the aggravating factors, which included: the young age of M.D. and the perceived young age of the undercover officer (“Drake”); the twenty year age gap between the appellant and M.D.; the “grooming” techniques employed by the appellant; the vulnerability of M.D.; the appellant kept in contact with M.D. knowing that they were not supposed to communicate with each other; the use of a fictitious Facebook page to conceal their contact; the progression of the conduct over a nine month period; and the repeated instances of fellatio and unprotected anal penetration with M.D. (4) Counsel Proposals for the Sentence and the Disposition [22] At the sentencing hearing, the Crown requested a global sentence of six years’ imprisonment. The defence requested two years, followed by three years of probation. [23] The sentencing judge imposed a global sentence of five-and-a-half years, reduced to five years after taking into account pre-sentence custody and restrictive bail conditions. D. Positions of the Parties (1) Position of the Appellant [24] The appellant argues that the sentencing judge erred by not considering the appellant’s rehabilitative prospects as mitigating. Specifically, it is submitted that the sentencing judge erred by considering the fact that the appellant had not engaged in counselling without also considering the practical availability of counselling. The appellant had been arrested in January 2018 and was held in pre-trial custody. There was no basis to believe he could receive counselling in provincial pre-trial facilities. He was released on very restrictive bail conditions in March 2018, which provided little, if any, opportunity to engage in counselling. The appellant argues that the sentencing judge effectively held it against him that he had not engaged in counselling, while not appreciating how difficult it was for him to actually obtain counselling. In doing so, the sentencing judge erred in law. (2) Position of the Respondent [25] The respondent argues that there is no basis for appellate intervention. The appellant has not shown that the sentencing judge committed any error of law or principle, nor that the sentence is demonstrably unfit. [26] The sentencing judge did not exercise his discretion unreasonably in weighing the relevant aggravating and mitigating factors. The weight that the judge assigned to each individual factor is owed deference. [27] The sentencing judge did not fail to consider the appellant’s rehabilitative prospects. When considering the evidence before the court in its totality, it was open to the judge to conclude that the appellant’s risk of re-offending was not so low that it comprised a separate mitigating factor. The judge’s treatment of this factor as neither mitigating nor aggravating was within his discretion and is owed deference on appeal. Furthermore, the appellant’s sentence is fit when measured against the gravity of the offence and moral culpability of the offender. [28] Regarding Dr. Gojer’s report, the respondent submits that the sentencing judge did not disregard Dr. Gojer’s expert opinion. Rather, he acknowledged Dr. Gojer’s finding that the risk of reoffending was in the low range. The sentencing judge declined to characterize the appellant’s risk level as mitigating because Dr. Gojer was careful to predicate his finding of low risk on the appellant’s participation in counselling. As of the date of the sentencing hearing, the appellant had not engaged in counselling or treatment. The respondent submits that this was not in error. The evidence indicated that there was some risk to re-offend, but again the risk would be lowered if the appellant made a strong commitment to his rehabilitation. [29] The respondent submits that the sentencing judge was not required to consider the “practical availability” of counselling under the appellant’s bail conditions. A finding that counselling was unavailable would have required speculation. There was no evidence about the availability of treatment while the appellant was on bail, either before or after the house arrest condition was considerably loosened to permit the appellant to pursue employment opportunities. Further, the respondent points out that defence counsel did not raise this issue in submissions at the hearing, despite affirming that the appellant had not yet engaged in treatment. E. Discussion (1) The Standard of Review [30] On review, appellate courts afford significant deference to sentencing judges in crafting a proportionate sentence. An appellate court may intervene only if: (i) the sentence was demonstrably unfit, or (ii) the sentencing judge made an error of law or error in principle that had an impact on the sentence: R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 25-26; R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44, 51. [31] The sentencing judge’s weighing of relevant factors is a matter of discretion that is owed deference: Lacasse, at para. 49. It can constitute an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”: Friesen, at para. 26. In other words, an appellate court cannot intervene simply because it would have weighed the relevant factors differently: Lacasse, at para. 49. Moreover, not every error in principle is material. Again, intervention is only justified where it is apparent from the judge’s reasons that the error impacted the sentence: Friesen, at para. 26. [32] On appeal, the court must show deference to the sentencing judge’s findings of fact and their identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle: Friesen , at paras. 26, 28. (2) The Sentencing Judge Did Not Err in Law or Principle [33] I do not see any error of law or principle committed by the sentencing judge. The sentencing judge properly considered and weighed the mitigating and aggravating factors. If the appellant receives counselling now, that will be to his credit. However, the fact that he had not obtained counselling at the time of sentencing does not appear to have been of any overriding importance to the sentencing judge. It was only one consideration and related to the risk posed by the appellant. Moreover, the sentencing judge cannot be faulted for failing to consider the unavailability of counseling when that was neither raised nor explored in the evidence. [34] Contrary to the appellant’s submissions, the trial judge considered significant mitigating factors bearing on the appellant’s rehabilitative potential when reaching the decision as to sentence: namely, his openness to therapy; his guilty plea; his expression of remorse; his lack of a criminal record; his strong work history; and his support in the community. In light of the absence of any error in law or principle, the sentencing decision is entitled to deference. (3) The Sentence Imposed Was Not Demonstrably Unfit [35] Deterrence and denunciation are of prime importance for offences involving a sexual assault of a child: see the Criminal Code, R.S.C. 1985, c. C-46, s. 718.01; Friesen, at paras. 101-105. Sentences for such offences should be strict. Factors justifying longer sentences include conduct found to be “grooming,” as well as the degree of physical interference with the victim’s bodily integrity: Friesen , at paras. 125, 138, 153. [36] It must be considered that the appellant expressed remorse, which reflects some insight into his conduct, and also that he was willing to seek treatment. [37] However, the Supreme Court of Canada recently emphasized the need to impose sentences that accurately reflect the wrongfulness and harmfulness of sexual offences against children: Friesen, at para. 5. Courts must take heed of the well known and longstanding consequences of sexual offences against children. This court summarized some of these consequences in R. v. D.M ., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 38, citing this court’s earlier decision in R. v. D.(D.), [2002] 58 O.R. (3D) 788 (Ont. C.A.): (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. [38] While the Supreme Court did not establish a precise range, it stressed that “mid-single digit penitentiary terms for sexual offences against children are normal”: Friesen, at para. 114. This court has also stated that adults who sexually abuse children “must face the prospect of a significant penitentiary term”: R. v. Woodward , 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 75. It has upheld sentences between four and six-and-a-half years in similar circumstances: see Woodward, at para. 75; R. v. Saliba , 2019 ONCA 22, at para. 28; R. v. R.B., 2014 ONCA 840, 327 O.A.C. 20, at paras. 7-12; D.(D.), at paras. 32-35, 44; and D.M ., at paras. 36-44. [39] The sentence imposed on the appellant fell within the mid-single digit range. [40] The appellant preyed on a vulnerable young person for an extended period of time. He tried to prey on another young person not knowing that he was an undercover officer. While the appellant is remorseful, and hopefully will make efforts to obtain counseling, it cannot be said that the sentence imposed by the sentencing judge was demonstrably unfit. F. Disposition [41] Leave to appeal the sentence is granted. The sentence appeal is dismissed. Released: March 1, 2021 “M.T.” “M. Tulloch J.A.” “I agree. Harvison Young J.A.” “I agree. M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.H., 2021 ONCA 236 DATE: 20210415 DOCKET: C67927 Pardu, Brown and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and R.H. Appellant R.H., acting in person Brian Snell, duty counsel Philippe Cowle, for the respondent Heard: April 9, 2021 by videoconference On appeal from the sentence imposed on December 17, 2019 by Justice Peter C. West of the Ontario Court of Justice, with reasons reported at 2019 ONCJ 892. REASONS FOR DECISION [1] R.H. appeals from sentences totaling six years, imposed following his guilty pleas to sexual interference, making child pornography and accessing child pornography. He was sentenced to prison terms of five years, one year consecutive, and one year concurrent, respectively. The sentencing judge also imposed a number of ancillary orders, including a lifetime prohibition order under s. 161(1) which, among several other things, forbids the appellant from accessing the internet except in accordance with conditions set by the court. [2] The appellant submits on appeal that the sentences were too harsh. [3] The appellant sexually abused C.S. for years, beginning when C.S. was only ten years old. The appellant was 35 years senior and there was a family connection: he was a cousin of C.S.’s stepfather. The appellant began by taking C.S. on short overnight trips where they would wake up in the same bed with their hands on each other’s intimate body parts. Oral and anal intercourse later began. They would meet each other every 1-3 months. A system of penalties was established. If the complainant did not communicate with the appellant every day, he would have to atone for it by performing sexual acts. [4] The appellant submits that the sentencing judge erred by concluding that the appellant created the penalty regime. It is of no moment to the sentence whether the appellant created this or merely participated in it. Other factual concerns raised by the appellant were also immaterial to the sentence imposed, which was at the lower end of the appropriate range, reflecting the appellant’s guilty pleas. [5] The offences came to light in 2018 when C.S.’s girlfriend, S.L. learned of the abuse. She initially pretended to be C.S. and would communicate with the appellant as was expected. She offered to take C.S.’s place and sent the appellant some unclothed pictures of her. Finally, S.L. went to a police station to complain that the appellant was threatening her and C.S. The police executed a search warrant at the appellant’s apartment and found nude pictures of both C.S. and S.L. [6] At the sentencing hearing, the Crown sought a nine-year sentence. The defence suggested 3-4 years, arguing that the appropriate range was 3-5 years, and that the lower range was fit because of the guilty pleas. [7] The sentencing judge was guided by R. v. D.(D.) (2002), 58 OR (3d) 788 (C.A.), holding that the appropriate sentence range where the offender is in a position of trust and sexually abuses children on a regular basis over substantial periods of time should be mid-to-upper-single-digit penitentiary terms. [8] The aggravating factors included the abuse of children under 18 years of age, abuse of a position of authority or trust in relation to C.S., grooming C.S. starting at the age of 10, the escalation of the nature of the sexual abuse towards C.S., the large number of incidents, multiple victims, the severe impact on the complainants, the control exercised over C.S., and the tendency of the appellant to blame C.S. for the sexual contact. Both complainants inflicted self-harm as a result of the abuse. C.S. had suicidal thoughts and on several occasions fashioned nooses in his room with that purpose in mind. He suffered from severe depression as a result of the abuse. Both S.L. and C.S. suffered damage to their relationships with family and friends. The sentencing judge concluded that the sexual abuse had “a significant and serious impact on their emotional well-being and development.” [9] The mitigating circumstances included the absence of any criminal record, the guilty pleas, the appellant’s gainful employment, and that he was the sole provider for his elderly mother. The appellant was 53 years old at the time of sentencing. [10] The sentencing judge concluded that anything less than a global six-year sentence would not properly address denunciation and deterrence and the need to protect the wellbeing of children. [11] The sentencing judge’s careful and detailed reasons reveal no error in principle in his selection of a six-year global sentence and the sentence imposed was fit. [12] As noted in R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26: an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence. If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [Internal quotations and citations omitted.] [13] In Friesen , the Court held that an appellate court was wrong to decrease the six-year sentence imposed by the trial judge for child sexual abuse to four-and-a-half years incarceration. In doing so, the Court emphasized that denunciation and deterrence must be prioritized for offences of sexual offences against children, because of the serious harm caused by these crimes and the inherent vulnerability of the victims. The sentencing judge’s weighing of the factors is entitled to deference. [14] Duty counsel, on behalf of the appellant, points out that the prohibition order relating to internet use is too broad, having regard to this court’s decision in R. v. Brar , 2016 ONCA 724, 134 O.R. (3d) 103. The prohibition imposed by the sentencing judge forbids the appellant from: using the Internet or other digital network, unless the offender does so in accordance with the conditions set by the court, including but not limited to: any digital medium for the purpose of accessing, viewing, downloading, sharing, or otherwise any material that meets the definition of pornography and/or obscenity and not to participate in file sharing by any means. [15] The Crown and the appellant agree that this language should be deleted. They submit, and we agree, that the following lifetime prohibition should be substituted: The Offender is prohibited from using the internet or any similar communication service to: 1. Access any content that violates the law; 2. Access any social media sites, social network, internet discussion forum or chat room, or to maintain a personal profile on any such service; 3. Access, view, download, or share and material that meets the definition of pornography or obscenity. [16] It also appears that the appellant was not given credit for 17 days pre-sentence custody. The sentence on the making child pornography charge, contrary to s. 163.1(2), and the accessing child pornography charge, contrary to s. 163.1(4.1), are reduced by 26 days, for a net sentence of 339 days on those counts, to reflect this amount. [17] There is no basis for further appellate intervention and the appeal is otherwise dismissed. “G. Pardu J.A.” “David Brown J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ramelson, 2021 ONCA 328 DATE: 20210517 DOCKET: C68767 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Appellant and Corey Daniel Ramelson Respondent Katie Doherty, Tracy Kozlowski and Lisa Fineberg for the appellant Richard Litkowski, for the respondent Heard: January 12-13, 2021 by videoconference On appeal from the stay imposed by Justice Chris de Sa of the Superior Court of Justice on October 8, 2020, with reasons reported at 2020 ONSC 5030. Juriansz J.A.: [1] This Crown appeal was argued together with three defence appeals: R. v. Jaffer , R. v. Dare , and R. v. Haniffa . All of the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. [2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. The escorts section of Backpage expressly advertised sexual services. The police ads indicated the age of the escort was 18, the minimum age Backpage allowed. However, the police intended to suggest a certain level of inexperience and youth by featuring words such as “young”, “tight”, “shy”, and “brand new”. The police included in the ads photos of female officers posing as escorts. Individuals would respond to the ads by text message and in the ensuing negotiation of sexual services, the police officer posing as the escort would tell them that “she” was younger than 16. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival. [3] The common issue in the four appeals is whether the individuals were entrapped by the police. In the three defence appeals, the appellants’ applications to stay the proceedings because of entrapment were dismissed and they have appealed. [4] In this Crown appeal, the trial judge, in reasons released November 28, 2019, first dismissed the respondent’s entrapment application. The respondent was still before the trial court in May 2020 when the Supreme Court of Canada’s decision in R. v. Ahmad , 2020 SCC 11, 445 D.L.R. (4th) 1, was released. The trial judge invited the parties to make further entrapment submissions about the impact of the Ahmad decision. In a second decision, released October 8, 2020, the trial judge concluded the respondent had been entrapped and stayed the proceedings. [5] The three defence appellants and this respondent presented a united front on the entrapment issues. The respondent in this appeal expressly adopted the submissions made by counsel for Haniffa. The reasons in this appeal deal comprehensively with the united argument presented, and separate reasons in the other appeals are released at the same time. [6] Project Raphael is the first of this type of investigation carried out in Ontario. Police in British Columbia carried out a similar investigation by posting analogous ads on Craigslist. In R. v. Chiang, 2012 BCCA 85, 286 C.C.C. (3d) 564, the court concluded Mr. Chiang had not been entrapped on a charge of communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to s. 212(4) (now s. 286.1(2)) of the Criminal Code , R.S.C. 1985, c. C-46. [7] For the reasons that follow, I would allow the Crown’s appeal in this case, set aside the stay of proceedings, and remit the matter to the trial judge for sentencing. [8] At trial the Crown sought a s. 486.4(1)(a)(i) publication ban and the trial judge was obliged to make the order as provided by s. 486.4(2)(b). In this court the Crown took the position the order should not be maintained as all the witnesses who testified in the Crown’s case were police witnesses and there is no public interest prohibiting disclosure of their identity. This court set aside the non-publication order, and the respondent’s name is not initialized in these reasons. A. BACKGROUND [9] The advertisement, in this case, was posted on Monday, March 27, 2017 in the Toronto escorts section of Backpage. It purported to have been placed by “Michelle”, whose stated age was 18. Michelle described herself as a “Tight Brand NEW girl” who is “sexy and YOUNG” and who has a “YOUNG FRIEND” (emphasis in original). The advertisement included three photographs of a female police officer, whose face was not shown, posing as Michelle. In one of the photographs, she was wearing a t-shirt with the name of a local high school printed on it. [10] At around 4:00 p.m. on the same day, the respondent texted Michelle and began chatting with her. About 27 minutes into the chat, just after the respondent indicated he wanted to see both Michelle and her friend, Michelle texted back, “Just so you know we under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.” The respondent replied a minute later, “I’m cool with it. I’ll be gentle as long as you’re sexy and willing.” Two minutes later, Michelle texted “We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable??”. The respondent replied, “Should be lots of fun”. Later in the chat, in response to the respondent’s text “Can you girls dress up for me”, Michelle texted “I’m 14 I got regular clothed and my bra and underwear.” The chat continued intermittently for more than two hours and ended when the respondent arrived at the hotel and Michelle told him to come up to her room. The entire text chat is appended to these reasons. [11] On his arrival at the room, the respondent was arrested and charged with: 1) telecommunicating with a person he believed was under the age of 16 years for the purpose of facilitating the commission of an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16); 2) communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to s. 286.1(2) ( communicating to obtain sexual services from a minor) ; and 3) telecommunicating to make an arrangement with a person to commit an offence under s. 152 (invitation to sexual touching) contrary to s. 172.2 (2) (arrangement to commit sexual offences against a person under 16). [12] At his trial, the respondent testified that he believed Michelle was at least 18 and that she was engaged in role-play as somebody younger. He testified that if he had found, on his arrival, that Michelle was actually 14 years old, he would have been disgusted, would have complained to the front desk, and would have even called the police. [13] The trial judge found the respondent guilty on all three counts. The respondent applied for a stay of proceedings on the basis he had been entrapped. In the decision under appeal, the trial judge applied Ahmad and found that the respondent had been entrapped and entered a stay of proceedings. [14] Whether the trial judge interpreted and applied Ahmad correctly is the central issue in this appeal. In the Jaffer , Haniffa , and Dare appeals, the entrapment applications were decided before Ahmad was released. They rely on Ahmad in submitting their cases were wrongly decided. All the appeals turn on the proper understanding of the law of entrapment and its application to the simple facts in each of these appeals. [15] It is apt to begin with setting out the law of entrapment as I understand it. B. The Law of Entrapment (1) Pre- Ahmad articulation of the entrapment doctrine [16] In deciding the respondent’s first application, the trial judge applied the law of entrapment as articulated in the foundational cases of R. v. Mack , [1988] 2 S.C.R. 903, and R. v. Barnes , [1991] 1 S.C.R. 449. [17] Both decisions were authored by Lamer J. (Lamer C.J. when Barnes was written). In Mack , he explained that “the court’s sense of justice is offended by the spectacle of an accused’s being convicted of an offence which is the work of the state”: at p. 942. In Barnes , at p. 459, he stated the following rationale for the “defence” of entrapment: The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement. [18] Entrapment is not a true defence, as the accused has committed the crime and is properly found guilty. The remedy for entrapment is a stay of proceedings. Entrapment is a type of abuse of process. As Lamer J. explained in Mack , at p. 942: The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. [19] Entrapment seeks to balance two competing interests: the individual has an interest in being left alone free from state intrusion, and the state has an interest in protecting society from crime. [20] The traditional statement of the circumstances in which the defence is available is set out in Mack , at pp. 964-965, and in Barnes , at p. 460. The defence is available when: a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. [21] There are two branches of the entrapment defence. The first, sub-paragraph (a) above, is opportunity-based entrapment and the second, sub-paragraph (b), is inducement-based entrapment. All four of the appeals before us raise opportunity-based entrapment claims. As only Jaffer raises inducement-based entrapment, I leave a discussion of inducement-based entrapment to the reasons in his appeal. [22] As can be seen, opportunity-based entrapment provides two exceptions to the general rule that police cannot offer people the opportunity to commit a criminal offence. The first exception arises when the police have reasonable suspicion that the suspect is already engaged in the criminal activity before extending the offer. The Crown does not take the position the police had reasonable suspicion that the individual in any of the four appeals was already engaged in the criminal activity. The application of the first exception is not an issue in the appeals. [23] The second exception arises when the police are acting pursuant to a bona fide inquiry when they extend offers to people to commit an offence. Barnes is the archetypical example of this exception. In Barnes the police offered people at the Granville Mall in Vancouver the opportunity to sell them drugs. Lamer C.J. explained, at p. 463, that: An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry. [Emphasis in original.] [24] Lamer C.J. summarized, at p. 463, that: Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [Emphasis in original.] [25] In Barnes the police had limited the investigation to a six-block area, which the court considered reasonable in the circumstances. There was no suggestion the police were not acting in good faith. The court concluded the police were acting in the course of a bona fide inquiry. Therefore, though the police did not have reasonable suspicion that Barnes, himself, was engaged in drug trafficking, they had not engaged in random virtue testing. (2) The Ahmad decision (i) The facts and result of Ahmad [26] Ahmad involved two separate appeals, one from Ahmad and another from Williams, from convictions for drug-related offences. In each case, the police had received tips that a named person associated with a phone number was dealing drugs. The police called each of the numbers, presented the person who answered the call with the opportunity to sell them drugs, arranged a meeting to buy the drugs, and arrested them when they turned up at the meeting. After Ahmad and Williams were convicted, they both claimed the proceedings against them should be stayed because they had been entrapped. [27] The Supreme Court by a majority of five-four concluded that Ahmad had not been entrapped but that Williams had been entrapped. Because the tips the police had acted upon were anonymous and unsubstantiated, the police did not have reasonable suspicion that the phone numbers and named persons associated with those numbers were trafficking in drugs. Hence, the police could not claim they were carrying out bona fide inquiries of the phone numbers. Absent a bona fide inquiry, the police had to have reasonable suspicion that the individuals to whom they were speaking were involved in trafficking before they could present them the opportunity to sell drugs. [28] When Ahmad answered the call from the police, he confirmed the name provided by the unsubstantiated tip and used language particular to the drug subculture by asking “What do you need?”. His use of this drug culture language corroborated the tip and gave the police reasonable suspicion he was involved in the drug trade. Once they had acquired reasonable suspicion, the police could offer him the opportunity to sell drugs. Therefore, Ahmad was not entrapped. [29] Williams, however, was entrapped. Before the police offered him the opportunity to sell drugs, Williams had said nothing in the conversation that gave the police a reasonable suspicion the phone number was being used to sell drugs. (ii) Entrapment applies in virtual spaces [30] The Ahmad decision is significant because the court confirmed that the doctrine of entrapment applies to police investigations carried out in virtual spaces. Ahmad is especially pertinent to these appeals because Project Raphael was an investigation of a virtual space. [31] As Ahmad was the first case involving virtual spaces, the court took full advantage of the opportunity to stress how virtual spaces differ from physical areas and what those differences mean for courts’ oversight of police investigations in virtual spaces. [32] The court begins by observing that “a person reasonably expects privacy in most digital communications” and that “conversations over text message, social media messaging, or email, are not analogous to a ‘public post’”: at para. 36. The court notes the “increasing prominence of technology as a means by which individuals conduct their personal lives” and emphasizes that police investigations of such virtual spaces raise “unique concerns for the intrusion of the state into individuals’ private lives”: at para. 36. The court expresses concern that the breadth of some virtual spaces such as social media websites enables the police, using technology, to remotely access a potentially large number of targets with ease. [33] The court states “that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space”: at para. 37. The court continues on to note that technology and remote communication significantly increase the number of people to whom the police can provide opportunities, which heightens the risk that innocent people will be targeted: at para. 37. Obviously contemplating sting operations such as Project Raphael, the court observes “online anonymity allows police to increasingly fabricate identities and ‘pose’ as others to a degree that would not be possible in a public space like the Granville Mall”: at para. 37. Police can pose as fabricated identities “anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life”: at para. 37. The court cautions that “individuals must be able to enjoy that privacy free from state intrusion subject only to the police meeting an objective and reviewable standard allowing them to intrude”: at para. 37. [34] In Ahmad the court provides guidance as to how the law of entrapment should be applied to police investigations in virtual spaces. The court did not, however, change the law of entrapment. The majority in Ahmad makes that point repeatedly. They describe the law as set out in Mack and Barnes as “settled doctrine”: at para. 3. They say there is no reason to alter the carefully calibrated balance between the need to protect private interests and personal freedom from state overreach and the state's legitimate interest in prosecuting crime that was struck in Mack and affirmed in Barnes : at paras. 3, 22-23. They observe “the entrapment framework has proved workable for decades in a variety of contexts” and “has stood the test of time, furnishing a principled, stable and generally applicable doctrine”: at para. 23. They add that “[n]o principled reason supports departing from it”: at para. 23. [35] The majority specifically recites and adopts the traditional statement of entrapment from Mack and Barnes . Those decisions, as set out earlier in these reasons, state that the opportunity-based entrapment defence is established when the police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in the criminal activity or pursuant to a bona fide inquiry. It is not an issue in these four appeals whether the police had a reasonable suspicion that the individuals to whom they made offers were already engaged in the criminal activity. The Crown accepts the police did not have such reasonable suspicion. That leaves, as the central issue in these appeals, the question of whether the police were acting pursuant to a bona fide inquiry when they offered the individuals the opportunity to arrange the sexual services of an underage person. [36] In Ahmad the court elaborates on what is necessary to constitute a bona fide police inquiry in virtual spaces. As I will show, Ahmad makes apparent that judicial assessment of whether a police investigation is a bona fide inquiry is multi-faceted. A bona fide inquiry requires that the police have the genuine purpose of investigating and repressing crime, that the police have objectively verifiable reasonable suspicion that people are engaged in the criminal activity within the space, that the space being investigated is sufficiently precise and narrow, and finally, that consideration of an open-ended list of factors enables the court to conclude that random virtue testing was avoided. (iii) Reasonable suspicion [37] Reasonable suspicion that the criminal activity is occurring in the space being investigated is an absolute requirement. In Barnes , Lamer C.J. said at p. 463: Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [Emphasis in original.] [38] In Ahmad , the court made this more explicit at para. 19: “police may present an opportunity to commit a crime only upon forming reasonable suspicion that either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry.” [39] The court in Ahmad described at length the essential role of reasonable suspicion in a bona fide inquiry. The court pointed out that, “ The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion”: para. 20. At para. 27, the court said, “The opportunity-based branch of the Mack test therefore establishes that police cannot subject anyone to random virtue testing — virtuous or non-virtuous, predisposed or non-predisposed — without reasonable suspicion” (emphasis in original). [40] Reasonable suspicion must be supported by objective factors: para. 42. At para. 45, the court stated “[r]easonable suspicion is, by definition, an objective standard that protects individuals’ interests and preserves the rule of law by ensuring courts can meaningfully review police conduct” (emphasis in original). However, quoting Mack , the court added that reasonable suspicion is not “unduly onerous”: at para. 45. It is “a lower standard than reasonable grounds,” which “allows police additional flexibility in enforcing the law and preventing crime”: at para. 45. Reasonable suspicion “requires only the possibility, rather than probability, of criminal activity”: at para. 46. But it is “subject to ‘rigorous,’ ‘independent’ and ‘exacting’ judicial scrutiny” because it “provides police officers with justification to engage in otherwise impermissible, intrusive conduct”: at para. 46. Police suspicion “must be focused, precise, reasonable, and based in ‘objective facts that stand up to independent scrutiny’”: at para. 46. Highlighting judicial oversight over police conduct, the court said that “[u]ltimately, the evidence said to satisfy reasonable suspicion must be carefully examined” and “the facts must indicate the possibility of criminal behaviour” (emphasis in original): at paras. 46-47. [41] At para. 48 of their reasons, the majority describes reasonable suspicion as “individualized”. This is the only place in the majority’s reasons that the word “individualized” appears. In the paragraph, the majority is providing their answer to the concern of Moldaver J. in his dissenting reasons. Moldaver J. expressed the view that subsequent to the court’s decision in R. v. Chehil , 2013 SCC 49, [2013] 3 S.C.R. 220, “reasonable suspicion” had to be “individualized” and this resulted in “ dissonance between the entrapment framework set out in Mack and Barnes and the reasonable suspicion standard required by Chehil ”: at paras. 48 and 138. In responding to this concern, the majority said “reasonable suspicion is also individualized, in the sense that it picks an individual target – whether a person, an intersection or a phone number – out of a group of persons or places” (emphasis in original): at para. 48. It is apparent that in the majority’s view “reasonable suspicion” can be sufficiently “individualized” when it focuses, as the court said it may in para. 20, on a place defined with sufficient precision. To the same effect, the court said in para. 20, “ An investigation is ‘ bona fide ’ where the police have a reasonable suspicion over a location or area, as well as a genuine purpose of investigating and repressing crime.” [42] While Moldaver J. would have revisited the court’s decision in Barnes because of Chehil’s requirement of individualized suspicion, the majority affirmed the principles of Barnes saying, at para. 22: This framework balances and reconciles important public interests. The rule of law, and the need to protect privacy interests and personal freedom from state overreach are balanced against the state’s legitimate interest in investigating and prosecuting crime by permitting but also constraining entrapment techniques. [Emphasis in original.] (iv) Precisely defined virtual space and narrow scope of investigation defined [43] In Ahmad the court could not make clearer that reasonable suspicion cannot attach to a place unless it is “precisely and narrowly defined”. In Barnes , Lamer C.J. had indicated that “the size of the area itself may indicate that the investigation is not bona fide ”: at p. 462. Ahmad makes this more exacting. The court stat ed, “[t]he offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision , or a combination of both” (emphasis added): at para. 19. In para. 35 the court warned that “some virtual spaces may be too broad to support a sufficiently particularized reasonable suspicion.” The issue of breadth of the virtual space did not arise in Ahmad because an individual phone number, the virtual space at issue in Ahmad , was “sufficiently precise and narrow to qualify as a place for the purposes of the first branch of the entrapment doctrine”: at para. 42. [44] The breadth of the virtual space is related to how the police have designed their investigation. I draw this from para. 41 of Ahmad . There the court said, “We emphasize that the virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.” [45] Where reasonable suspicion relates to a wide area, the courts must consider whether the police could have focused their investigation on a narrower area. [46] Where the evidence establishes the police have narrowed their investigation as much as the evidence allows, it may be acceptable that reasonable suspicion relates to a wider area. (v) The factors [47] In determining whether the virtual space has been defined with sufficient precision to ground reasonable suspicion and to ensure random virtue testing is avoided, the court in Ahmad , at para. 41, suggested consideration of the following factors “may be helpful”: 1) the seriousness of the crime in question; 2) the time of day and the number of activities and persons who might be affected; 3) whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; 4) the level of privacy expected in the area or space; 5) the importance of the virtual space to freedom of expression; 6) and the availability of other, less intrusive investigative techniques. [48] The court indicated that this was not a closed list and other factors could be relevant in other cases. The court must consider all the circumstances of a particular case “to ensure that random virtue testing is avoided”: at para. 41. (vi) Reasonable suspicion can be obtained in the course of the investigation [49] In Ahmad , the tips the police had received about the dial-a-dope operations were of unknown reliability. The court had no trouble concluding the police, at the time they placed the call to the telephone number in the tip, did not have reasonable suspicion that the person who answered the phone was involved in drug trafficking. Hence, without reasonable suspicion the police could not offer the person the chance to sell them drugs. However, as the court said, at para. 54, “it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime.” [50] This explains the different results in the two appeals before the court in Ahmad . In the police conversation, Ahmad used drug culture jargon by responding “what do you need?”. This response gave rise to a reasonable suspicion he was engaged in drug trafficking and the police could then offer to buy drugs from him. He was not entrapped. On the other hand, Mr. Williams’ only responses before the police offered to buy drugs from him were “yeah”, “who is this?”, and “Vinnie who?”. These responses did not give rise to a reasonable suspicion he was engaged in drug trafficking. Therefore, he was entrapped. [51] This, then, is the legal framework for the determination of these appeals. C. decisions below (1) The trial judge’s first entrapment decision [52] The trial judge’s first entrapment decision is pertinent only for the background and the facts he found that were incorporated, or presumed to be incorporated, by his second decision. [53] In his first decision, the trial judge extensively reviewed the evidence, including the background of Project Raphael, the posted advertisement, and the text chat between Michelle and the respondent. Detective Constable Cook, who had the text chat with the respondent under the persona of Michelle, testified at trial and Detective Sergeant Truong (later promoted to Inspector, herein “Truong”), the architect of Project Raphael, testified at the entrapment hearing. The materials filed at the entrapment hearing included Truong’s evidence at the respondent’s preliminary inquiry, Truong’s evidence at the entrapment hearing in R. v. Haniffa , 2017 ONCJ 780, and the trial decision in R. v. Dare , (June 22, 2018), Newmarket, CR-16- 00002298 (S.C.) . [1] [54] The trial judge found that “Backpage was well known for underage prostitution” and that it was “clear that individuals were actively purchasing sex from underage females through the website.” He concluded that the “police had a reasonable basis to believe that individuals were routinely involved in the purchase of sexual services from juvenile prostitutes on Backpage.com” and that “[t]hey engaged in an investigation to target this type of criminal activity.” He observed that the evidence tendered by the Crown “indicates that the demand for juvenile prostitutes was driven not only by those who were specifically looking for underage girls, but also by those who were open and willing to obtain sexual services from juvenile prostitutes.” He stated that Project Raphael targeted both of these groups. [55] The trial judge concluded Project Raphael “was a bona fide investigation, and in this context, the police were entitled to randomly offer individuals the opportunity to commit crimes of the sort known to be occurring on the website, Backpage.com (the opportunity to purchase sexual services from underage girls).” [56] The trial judge also rejected the respondent’s argument that the police had improperly induced the respondent to commit the offence. (2) The trial judge’s second entrapment decision [57] In his second entrapment decision, the one under appeal, the trial judge reviewed the Ahmad decision in detail. He observed the Supreme Court had taken the opportunity “to clarify the requisite standard to be applied in assessing a claim of entrapment under the first branch of the doctrine (opportunity-based entrapment).” He quoted with emphasis, from para. 42 of Ahmad : The question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime ? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both. [Emphasis in original.] [58] The trial judge stated the principle that “the standard of reasonable suspicion calls for an objective assessment of the information the police actually had before offering an individual an opportunity to commit a crime” (emphasis in original). Drawing on passages from the reasons in Ahmad , he explained why the requirement of reasonable suspicion was important: Providing individuals with the opportunity to commit offences without the foundation of a reasonable suspicion unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. Random virtue testing unduly increases the risk that individuals who would not otherwise commit offences will become enticed into criminal activity. [59] The trial judge noted that while the Supreme Court stated virtual locations “can qualify as places over which the police can have reasonable suspicion” the court indicated a key requirement is that “the virtual space in question must be defined with sufficient precision”. The court said, “[i]t is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime”: at para. 39. The trial judge paraphrased the Supreme Court’s explanation that, as he put it, [V]irtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives, because of the breadth of some virtual places (for example, social media websites), the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives. [Emphasis in original.] [60] The trial judge reiterated the findings of his previous decision that “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com”, and that “the police were justified in conducting an investigation into ongoing juvenile prostitution on Backpage.com given the information available to them.” [61] Next, the trial judge expressed his concern about the large number of persons who were looking for an adult when they responded to the police ad. He observed Backpage “was not a website or ‘place’ dedicated to underage prostitution”. He noted that the evidence indicated that in the escorts section of Backpage “the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls”. He said the evidence was that most men did not continue the text chat once they were told Michelle was underage. [62] The trial judge further observed, “given the breadth of the potential pool…the undercover officer should have done more to satisfy himself that [the respondent] was looking for an underage girl before inviting [the respondent] to commit the offence.” The trial judge observed that the undercover officer revealed that Michelle was 14 years old some 27 minutes into the conversation, after the respondent had already made arrangements about the sexual services to be provided and their cost. This “bait and switch” approach, he held, was “problematic and raises clear entrapment concerns”. He suggested the undercover officer could have disclosed Michelle’s age at the outset of the conversation. [63] The trial judge noted that the Supreme Court explained in Ahmad the conversation itself can be used to support a reasonable suspicion. He remarked that the respondent said nothing in his initial text messages to indicate he was looking for an underage girl. Then, evidently having in mind reasonable suspicion over the individual, the trial judge concluded, “In the absence of reasonable suspicion, it was improper for the police to invite [the respondent] to commit the offence.” [64] The trial judge recognized that the respondent was “clearly willing to participate in the criminal activity under investigation” but noted that “the question here is not on whether the [respondent] was willing or perhaps predisposed to commit the offence” as “the focus is on the police conduct and the investigative approach”. [65] The trial judge concluded the police had entrapped the respondent and ordered a stay of proceedings. D. ISSUES ON APPEAL (1) The Crown’s position [66] The Crown submits that the trial judge misapplied the law of entrapment to the facts before him. The Crown says he proceeded on the misunderstanding that Ahmad changed the law to require the police to have reasonable suspicion of the individual in all cases. After finding “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com” and that “the decision to investigate Backpage.com for individuals seeking underage prostitutes was a legitimate police initiative”, the trial judge erred by going on to consider whether the police had reasonable suspicion that the respondent was seeking an underage person before they could offer him the opportunity to commit the crime. The Crown submits the trial judge found Project Raphael was a bona fide police inquiry and that finding allowed the police to virtue test any person who responded to their ads posted on the escorts section of Backpage. (2) The respondent’s position [67] The respondent submits that the trial judge properly found that the Supreme Court in Ahmad provides clarification and guidance as to how to apply the entrapment framework to virtual spaces. He submits the trial judge stated the law correctly and made no reversible legal error in reassessing his reasons in light of Ahmad and concluding the police entrapped the respondent. [68] The respondent also adopts the submissions made by the appellant Haniffa. Haniffa’s primary argument is that the evidence was insufficient to give the police a reasonable suspicion that persons were going onto Backpage seeking to engage the sexual services of underage persons. In the alternative, he submits that if the police had a reasonable suspicion, it related only to the s. 286.1(2) offence (communicating to obtain sexual services from a minor), and so the police conduct constituted entrapment on the s. 172.1 (child luring) offence. Finally, he argues that the police virtue tested far too many innocent people to meet the Ahmad requirement of an investigation into a precisely and narrowly defined space. (3) Issues to be decided [69] The positions taken by the parties can be conveniently arranged and dealt with under the following four questions: 1) Did the police have reasonable suspicion that the criminal activity under investigation was taking place on Backpage? 2) Did the trial judge misapply Ahmad by holding that reasonable suspicion of the individual was required under the bona fide inquiry prong of the entrapment framework? 3) Did the trial judge err by concluding the respondent was entrapped because the majority of persons tested by the police declined to engage an underage prostitute? 4) Applying Ahmad , what is the proper analysis in this case to determine whether the space in which the police virtue tested persons randomly, was sufficiently precisely and narrowly defined to avoid a finding of entrapment? E. ANALYSIS (1) The police had reasonable suspicion that the criminal activity under investigation was taking place on the escort section of Backpage [70] I begin with an analysis of Haniffa’s argument, adopted by this respondent, that the police lacked reasonable suspicion that persons were engaged in the targeted criminal activity on Backpage. (i) The police had reasonable suspicion with respect to offences under s. 286.1(2) (obtaining sexual services from a minor) [71] Counsel accepts, as the evidence clearly established, that juvenile persons were being advertised on Backpage and that some men were purchasing the sexual services of juvenile persons on Backpage. In the first entrapment decision, the trial judge found that in the York Region, “[v]irtually all of the online investigations involving juveniles had been linked to Backpage.” [72] While counsel accepts the evidence gave the police a reasonable suspicion that juveniles were being sold on Backpage, he contends that it does not logically follow that the police reasonably suspected that customers were seeking or attempting to purchase juvenile persons on Backpage. He submits the proper question is not whether the police had a reasonable suspicion the sexual services of juveniles were being sold on Backpage, but whether they had a reasonable suspicion that customers were going onto Backpage to buy sexual services from juveniles. [73] I accept the premise of the argument. The reasonable suspicion of the police had to relate to what the customers seeking sexual services had in mind. That is because, in cases where sexual services have been obtained for consideration, the accused’s knowledge or belief that the person from whom they have obtained those services is under 18 is an essential element of the offence under s. 286.1(2) (obtaining sexual services from a minor). It would not be enough if police had reasonable suspicion only that underage persons were being sold on Backpage to unwitting customers. The selling of sexual services, even by juveniles, is not a crime. In order to fall within the bona fide inquiry exception to the opportunity-based entrapment defence the police had to have a reasonable suspicion that s. 286.1(2) was being breached. That means the police had to have reasonable suspicion that customers were going onto Backpage and communicating to obtain sexual services for consideration from persons they knew or believed to be under the age of 18. [74] Truong’s testimony, counsel submits, shows it would be futile for a customer to go onto Backpage with the intention of engaging an underage person. That is because, as officer Truong confirmed, underage persons would never be advertised indicating their actual ages or with their actual photographs. Truong testified that underage persons and those who arrange their bookings would not disclose their real age to unknown customers. Underage persons advertised on Backpage are sometimes given or have in their possession false identification showing an older age. Underage persons know revealing their real age would increase the probability that the police will get involved. Truong also agreed there was no coded language used on Backpage to signal that the person advertised was underage because the pimps who traffic underage persons realize the police would soon learn the codes. Customers could hope to learn the age of an escort they have engaged only upon meeting them. Truong said even that is unlikely, as underage persons asked for their age will typically lie and claim to be an adult. In fact, he said in the majority of sexual interactions between adults and a juvenile, the adults are never told the age of the juvenile. [75] Counsel submits that since police know all this, they could not reasonably suspect that persons who want to have sex with underage persons would go onto Backpage to seek them. [76] Counsel stresses that Truong could point to no basis, other than his own “anecdotal” experience, that persons go on Backpage to seek the sexual services of underage persons. He contends that in Project Raphael the police used their reasonable suspicion that underage persons were being sold on Backpage to randomly virtue test persons who went onto Backpage seeking to purchase the sexual services of an adult not an underage person. [77] The argument fails to appreciate Truong’s ample and extensive experience. While Truong, in cross-examination, readily conceded he had no statistics and data to support his testimony in-chief that persons were going onto Backpage seeking to engage the services of underage escorts, he did not retreat from that testimony. I disagree with counsel’s characterization of Truong’s testimony based on his experience as “anecdotal”. His experience forms the foundation for a specialized knowledge on the subject. His experience included dealing with prostitutes, pimps, and purchasers of sex on an almost daily basis for eight years. He conservatively estimated that he had interviewed hundreds of “girls” involved in the sex trade, both juveniles and adults. Truong acquired his knowledge not only from his dealings with juveniles but also from his dealings with adult escorts who were recruited into the sex trade when they were children. He testified that he had “interacted, communicated, interviewed girls involved in the sex trade, juveniles and adults, in York Region, Toronto, in the GTA, in Québec, in the United States in Las Vegas, in Miami, in Los Angeles”. Truong had attended conferences in the United States and Canada with respect to juvenile prostitution at which case studies involving underage children being advertised on Backpage were presented and he met with “survivor based organizations”. [78] Truong did introduce some data. In York Region in the years from 2011 to 2016 the YPR identified 427 persons working in the sex industry, of whom 85 were underage. Where the police were able to lay charges of pimping or human trafficking based on victim cooperation, the victim was classified as a “rescue”. 49 of the 85 juveniles mentioned above were classified as “rescues” because they, by cooperating, enabled the police to lay charges. Truong testified that in one prior investigation aimed at identifying and rescuing underage persons, the police made contact with 31 escorts, nine of whom were underage, and he learned that the average age at which their sexual services were first sold was 14.8 years. [79] Truong testified that “there were men actively looking for prostituted children on backpage and were looking to purchase children.” He said this information was acquired “from speaking with child prostitutes, former child prostitutes, speaking with many NGOs and organizations, victims in court, during interviews.” [80] I do not accept that Truong’s testimony is undermined by counsel’s claim it would be futile for a person to go onto Backpage to engage an underage person. An individual user may have little prospect of engaging an underage person on Backpage upon visiting the site on a single occasion. But a determined individual using Backpage persistently could succeed in engaging underage persons. Truong said that customers who meet underage persons on Backpage may then engage them directly without going through Backpage. Keeping this testimony in mind, some Backpage users may engage persons who, even if they claimed to be 18, would be apparently underage, except to those wilfully blind. [81] As Truong’s testimony was not undermined, the trial judge was entitled to rely on it to find as he did, on a higher standard than required, “that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com.” Put in terms of the Criminal Code , the police had a reasonable suspicion that some users of Backpage were obtaining for consideration the sexual services of persons under the age of 18 contrary to s. 286.1(2). (ii) The s. 172.1(1)(b) (child luring under 16) offence is rationally connected and proportionate to the s. 286.1(2) (obtaining sexual services from a minor) offence [82] Counsel advances an alternative argument. Even if the police had a sufficient basis to provide an opportunity to commit the s. 286.1(2) offence, the police lacked reasonable suspicion to provide a person who responded to the ad the opportunity to commit the more serious offence of luring someone under the age of 16 under s. 172.1(1)(b). Given that the ads stated the escort was 18 years of age, and given that underage persons on Backpage were unlikely to reveal their true age to a customer, the police could not reasonably suspect users of Backpage were telecommunicating to facilitate a sex crime with persons they believed were under 16. An essential element of the s.172.1(1)(b) offence is that the accused know or believe at the time of the communication that the person with whom they are communicating is under the age of 16: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551. [83] I accept the police lacked reasonable suspicion that the customers responding to ads on Backpage were committing or intending to commit the child luring offence under s. 172.1(1)(b). [84] In the next step of his argument, counsel contends the doctrine of entrapment requires that the reasonable suspicion relate to the same criminal conduct under investigation and the police can only present persons in the space with the opportunity to commit that particular offence. It follows, he submits, that since the police did not have reasonable suspicion persons were committing the child luring offence under s. 172.1(1)(b), they could not offer customers the opportunity to commit that offence. The police offered customers the opportunity to commit the child luring offence by disclosing “she” was under 16 and giving the customer the opportunity to continue the conversation. [85] Lamer J. in Mack made clear that the police can provide a person with the opportunity to commit a different offence that is rationally connected and proportional to the offence for which there is reasonable suspicion. At p. 958 of Mack , Lamer J. explained: Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence . In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence , such as importing narcotics, although other facts may justify their doing so. [Emphasis added.] [86] In the context of Project Raphael, the child luring offence under s. 172.1(1) is rationally connected to the investigation of the commodification of sex offence under s. 286.1(2). In offering the opportunity to commit the s. 286.1(2) offence for which the police did have reasonable suspicion, they could not avoid offering the opportunity to commit an offence under s. 172.1. That is because in this investigation the offer to commit the s. 286.1(2) offence was necessarily conveyed using telecommunication. Once the police presented the offer to commit the s. 286.1(2) offence, the customer, by any response other than terminating the chat, would commit an offence under s. 172.1(1). [87] I do not attach much significance to the fact that in each of these cases the police disclosed the girl in question was under 16, with the result that the customers, by continuing to negotiate to obtain sexual services, committed the offence under s. 172.1(1(b)) (child luring under 16) rather than s.172.1(1)(a) (child luring under 18). As noted above, the police had an evidentiary basis to believe the average age at which underage persons first had their sexual services sold was 14.8 years. I regard the s. 172.1(1)(b) (child luring under 16) offence to be rationally connected and not disproportionate to the s. 286.1(2) (obtaining sexual services from a minor) offence. [88] Furthermore, the s. 172.1(1)(b) offence and the s. 286.1(2) offence as charged share essential elements. As no sexual services were actually obtained in these appeals, the offence charged under s. 286.1(2) related to communicating for the purpose of obtaining sexual services from a person under 18. Both offences require communication for the purpose of facilitating sexual contact with a person who is underage. [89] The s. 172.1(1)(b) offence is a more serious offence that is subject to a longer period of incarceration. However, in my view, the child luring under 16 offence is not a “much more serious” and “totally unrelated” offence to the commodification offence. [90] I would not give effect to the argument that the police did not have reasonable suspicion of the criminal conduct under investigation. The remaining question is whether the virtual space under investigation was defined with sufficient precision to ground the reasonable suspicion that the police had. I consider that question later in these reasons after rejecting the Crown’s reading of the trial judge’s decision and identifying the trial judge’s errors. (2) The trial judge did not hold that the police required reasonable suspicion about the respondent even though they were acting pursuant to a bona fide inquiry [91] As the Crown reads the trial judge’s decision, the trial judge found the police investigation of Backpage was a bona fide inquiry. Then, because he misinterpreted Ahmad to require that the police have “individualized” reasonable suspicion in all cases, he found the respondent was entrapped because the police did not have reasonable suspicion that the respondent was seeking to engage an underage person. [92] I read the trial judge’s decision differently. The trial judge did find, on a higher standard than necessary, that “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com.” He did not, however, go on to conclude the police investigation was a bona fide inquiry. Instead, he turned to consider the number of persons affected by the police investigation. He found that “within the Escort section, the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls” and that “most males contacting the ad were looking for a female who was not underage” (emphasis in original). I understand the trial judge to have concluded the scope of the virtual space being investigated was too broad to allow the investigation to qualify as a bona fide inquiry. This reading of his decision is supported by his colloquy with Crown counsel during argument. [93] Since he did not accept that Project Raphael was a bona fide inquiry, the trial judge proceeded with the analysis on the basis that the police required reasonable suspicion about the respondent before they could offer him the opportunity to engage an underage person. That is why he turned to consider the content of the text chat between the respondent and the undercover officer. He found that the respondent had said nothing to suggest he was looking for an underage person before the police had invited him to commit the offence. Consequently, he found the police had entrapped the respondent. (3) The trial judge erred by unduly focusing on the number of persons affected by the investigation and failing to consider other relevant factors [94] It bears repeating that in Ahmad the court recognized that “virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives because of the breadth of some virtual places”, that “state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space”, and that “online anonymity allows police to increasingly fabricate identities and ‘pose’ as others to a degree that would not be possible in a public space like the Granville Mall”: at paras. 36-37. These risks make it “important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime”: at para. 39. [95] The trial judge rightly understood that Ahmad requires trial courts, in entrapment cases involving virtual spaces, to exercise heightened vigilance in striking the balance between individuals’ privacy in virtual spaces secure from state intrusion and society’s general interest in the repression of harmful criminal activity. It was proper and necessary for the trial judge to consider the number of innocent people in the virtual space being investigated who would have their virtue tested by the police. In Ahmad, both the majority and the minority indicated the number of people potentially affected should be expressly considered: at paras. 41 and 161. [96] The trial judge’s error was in failing to consider other relevant factors. The number of people affected is but one of the factors the court suggests, at para. 41, would be helpful in ensuring random virtue testing is avoided. As noted, the court indicated that list was not closed. A court must consider all the relevant circumstances in each case. [97] In this case, the number and nature of activities affected, the nature and level of the privacy interest affected, and the importance of the virtual space to freedom of expression are important factors that the trial judge erred by not considering. [98] Below I discuss all the factors of this case I consider important in determining whether unacceptable random virtue testing was avoided. I conclude that the respondent was not entrapped. (4) The proper and complete analysis leads to the conclusion that the respondent was not entrapped [99] The starting point of the analysis is the trial judge’s finding that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from underage persons on Backpage and the investigation of Backpage was a legitimate police initiative. The next step is to consider whether the virtual space being investigated was defined with sufficient precision to ground that reasonable suspicion and whether the police had narrowed the scope of their investigation so that the purview of their inquiry was no broader than the evidence allowed. (i) The seriousness of the target criminal activity [100] The police investigation, Project Raphael, was aimed at reducing the demand for sexual services from juveniles in the York Region. The trial judge noted that attempting to purchase sexual services from someone underage is a serious crime. Quoting from R. v. Mills , 2019 SCC 22, [2019] S.C.R. 320, at para. 23, he recognized that children are especially vulnerable to sexual crimes, that the internet allows for greater opportunities to sexually exploit children, and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society. [101] Truong testified that the juveniles being sold on Backpage were “a very vulnerable population in the community”. Truong stated that a lot of the juveniles come from broken homes and are susceptible to recruitment, manipulation, and exploitation. They were being assaulted, exploited, and threatened, and both pimps and customers were committing crimes against them. Truong had never come across a juvenile selling sexual services who was not being exploited. Truong explained that the children had nowhere to go. Even the older ones, i.e. those over the age of 16, were extremely vulnerable. Finding safe accommodation for “rescued” juveniles over the age of 16 was made difficult because they could not be placed with child and family services agencies. [102] Obtaining the sexual services of a juvenile for consideration is an extremely grave crime. Parliament’s view of its gravity is evident from the punishment it has enacted: a person found guilty of an offence under s. 286.1(2) (obtaining sexual services from a minor) is liable to imprisonment for up to 10 years. (ii) Child prostitution is difficult to investigate, and less intrusive investigative techniques were not available [103] I am not persuaded by counsel for Haniffa that the difficulty of investigating consensual crimes, such as the one in this case, should be considered in assessing only inducement-based entrapment. He points out the factor was discussed in Mack in the context of inducement. That is understandable because Mack involved a case of inducement. Mack ’s description of the factor, at p. 966 – “the availability of other techniques for the police detection of its commission” – is simply a different articulation of the factor described in Ahmad , at para. 41, as “the availability of other, less intrusive investigative techniques”. The Ahmad factors are discussed in the context of the first branch of entrapment. Even before Ahmad it was recognized the factor is relevant to both branches of entrapment. In Chiang the British Columbia Court of Appeal referred to Mack to conclude that ordinary methods of detection might not work when investigating consensual crimes under the first branch: at paras. 19-20. [104] In his second decision, the trial judge simply stated that the police must be given considerable latitude in investigating criminal activity, especially where the crimes are serious and difficult to investigate. In his first decision, he had reviewed the evidence fulsomely. He said the challenge with investigating juveniles selling sexual services was that the activity was taking place inside hotel rooms or other private spaces. The juveniles did not report offences to the police, and even when identified, many underage persons did not cooperate with the police. Truong testified that juveniles fear repercussions if they cooperate with the police, or do not believe the police can help because of prior bad experiences with police. Truong testified that police attempts to rescue juveniles by focusing on the pimps was “not doing anything to stop the demand for child sex”. The police realized that to reduce the demand they “had to focus on the men who were driving the industry”. This led to the creation of Project Raphael. [105] The availability of less intrusive investigative techniques than those used in Project Raphael should be weighed heavily in the analysis. [106] In his testimony, Truong described an alternative technique for dealing with juveniles being sold on Backpage. He called the technique a “vice probe”. In a vice probe the police would peruse the ads on the escorts section of Backpage, attempt to identify those advertising underage persons, arrange to meet with them by posing as purchasers, and then attempt to ascertain their age upon meeting them. As recounted earlier, underage persons tended to not cooperate with the police, but, nevertheless, the technique did enjoy some success. [107] Truong included on his resume the number of underage persons involved in prostitution the YRP identified in each year from 2011 through 2016. In those years, a total of 85 underage persons were identified of whom 49 were classified as “rescues”. A person was classified as a “rescue” if they cooperated with the police such that charges could be laid. Police worked with other social agencies to find suitable safe situations for these underage persons. [108] Truong testified about a specific vice probe called “Home for Christmas” that the YRP ran in December 2013. The police reviewed hundreds of ads on Backpage and arranged “to meet with 31 escorts. Of these 31, the police were able to determine that 9 were underage. [109] The vice probe, unlike Project Raphael, focuses on actual young people being sold on Backpage. Finding juveniles being sold and ensuring they are placed in safe situations is a positive feature of the vice probe technique. However, Truong explained that the police, in consultation with other social agencies, concluded vice probes did nothing to reduce the demand for sexual services from juveniles in the region. That is why Project Raphael was created to target the “buyer side” of the activity. [110] Despite the advantageous aspects of the vice probe, in the entrapment analysis the vice probe cannot be considered a less intrusive investigative technique to Project Raphael. That is because it is concerned with different criminal conduct. Project Raphael investigated persons who were obtaining for consideration the sexual services of underage persons contrary to s. 286.1(2) of the Criminal Code . My impression is that the primary purpose of the vice probe technique was to rescue juveniles being sold on Backpage. The vice probe could investigate the offence of procuring an underage person to provide sexual services contrary to s. 286.3(2) of the Criminal Code . To do so successfully the vice probe would require the cooperation of the underage persons who have been identified. [111] I conclude that the vice probe is not an alternative investigative technique to Project Raphael. Rather, it is a technique that does not investigate the same offences. It has a different purpose altogether. [112] The trial judge suggested several things the police might have done differently. They all amount to the police using the text chat itself to support obtaining reasonable suspicion the caller was seeking an underage prostitute before extending the offer. This is understandable since the trial judge concluded there was no bona fide inquiry. Such suggestions are not relevant if the police are conducting a bona fide inquiry. The techniques by which the police might be able to obtain reasonable suspicion over a specific caller are best left to be considered, if necessary, after the determination of whether the investigation is a bona fide one. [113] This factor is deserving of weight. In Ahmad , at para. 35, the court observes that “technology aids in the commission of crime” and so “in order to investigate and detect those crimes, police must also make use of technology.” In Mack the Supreme Court had said that “the state must be given substantial leeway” when investigating drug trafficking because the traditional devices of police investigation are not effective: at p. 978. Investigating trafficking requires the police or their agents to get involved and gain the trust and confidence of the people trafficking or supplying the drugs: Mack , at p. 978. The Supreme Court further noted that trafficking is “a crime of enormous social consequence which causes a great deal of harm in society generally”: at p. 978. (iii) The definition of the virtual space and the scope of the police investigation [114] I find it convenient to discuss the definition of the virtual space and the scope of the police investigation together. Both play a role in determining whether the reasonable suspicion is sufficiently grounded to ensure random virtue testing is avoided. [115] In Ahmad , at para. 41, the majority stated that “[r]eviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.” This means that though the police have reasonable suspicion of criminal activity in an area, they must narrow the scope of the investigation as much as the evidence allows. [116] Lamer C.J. scrutinized the evidence this way in Barnes and considered whether the police could have restricted their investigation to a smaller area despite their reasonable suspicion of drug trafficking at the Granville Mall. He concluded, at p. 461, they could not do so and so the police could extend offers to people throughout the mall: The police department in this case focused its investigation on an area of Vancouver, a section of Granville Street covering approximately six city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place. It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations. [117] In this appeal, the police had reasonable suspicion persons were going on the escort section of Backpage to seek the sexual services of underage persons. The escort section of Backpage is the virtual space to which reasonable suspicion attaches. The escort section of Backpage is a precisely defined virtual space. Whether the police have acted within or outside that virtual space can be determined easily and definitely. [118] The trial judge quite rightly pointed out that “the overwhelming majority of ads and traffic” on the escort section did not relate to men seeking sexual services from underage girls. That, however, is not the end of the matter. The next step is to “scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows”. [119] The police narrowed the scope of the investigation to only the users who responded to their ads, which offered escorts’ sexual services in the York Region, and which emphasized the escorts’ youthfulness by stating their age to be 18 and describing them in terms that the police intended “to hint at the fact that the purchaser could be purchasing a young girl or child”. The British Columbia Court of Appeal expressed the view that such techniques narrowed the scope of the investigation: “ The reach of the investigation was carefully limited through the nature of the investigative tool employed, specifically an ad on Craigslist that spoke of ‘young bodies’”: Chiang , at para. 21 . [120] That “the overwhelming majority” of ads and traffic on the escorts section of Backpage did not relate to the sexual services of underage persons must be considered together with the narrowed scope of the investigation. The police did not offer the services of underage persons to users of the escorts section of Backpage in general. The people who clicked on the police ads to see the ad’s full content and then responded to the ads were the only persons who could be offered an opportunity to engage the sexual services of someone underage. [121] The trial judge did suggest, if I understand correctly, that the police investigation should have been conducted to engage in a prolonged text chat with a smaller pool of persons. He said, “ Given the breadth of the potential pool, in my view, the undercover officer should have done more to satisfy himself that the Applicant was looking for an underage girl before inviting the Applicant to commit the offence.” He criticized the undercover officer in this case for not revealing that Michelle was 14 years old until 27 minutes into the text chat. He described the late disclosure as a “bait and switch” approach that was “problematic” and raised “clear entrapment concerns”. He said the officer’s initial texts “encouraged or enticed” the respondent to commit the offence before having any suspicion he was seeking someone underage. These comments are surprising as, in his first decision, he unambiguously rejected the respondent’s claim he had been induced and did not revisit that conclusion. [122] The trial judge’s finding of delayed disclosure must be put into perspective. Truong testified that when persons responded to the ads seeking to purchase sexual services, the undercover officer would bring up the issue of age at the earliest possible stage of the conversation. The disclosure, in this case, was made in the 8 th text from the officer, the first 7 were extremely brief. [123] In any event, the question the trial judge raised is whether the scope of the investigation should have somehow been narrowed to exclude those who were not specifically looking for sex with an underage person but who would take up the opportunity when it was offered. [124] In my view, customers who are merely indifferent that the 18-year-old they seek to engage may actually be an underage person are legitimate targets of the police investigation. Their indifference exhibited in responding to police offers would manifest itself equally in real life encounters. These indifferent persons add to the social evil of child prostitution by contributing to the market for it. I agree with the trial judge’s finding in his first entrapment decision that “the demand for juvenile prostitutes was driven not only by those who were specifically looking for underage girls, but also by those who were open and willing to obtain sexual services from juvenile prostitutes.” Truong had testified that when designing Project Raphael persons who would take the opportunity, though not seeking one, to engage in sex with a minor were seen as part of the target group. In my view, defining the scope of the investigation to include such persons was justifiable. [125] Counsel for Haniffa also contended the police could have narrowed the scope of the investigation by seeking the cooperation of Backpage to allow the police to post an ad with a lower age. I don’t regard the suggestion as feasible. Further, I have explained why the investigation did not have to be narrowed in that way. [126] I am satisfied the police narrowed the scope of the investigation as much as the evidence warranted. (iv) The activities affected by the investigation [127] The trial judge did not consider the activities that would be affected by the investigation. In Barnes , for example, the persons potentially solicited by the police were going about their lawful business, perhaps on their way to work, shopping, dining out, or seeing a movie. [128] In this case, all the persons who possibly could be tested by the police were persons seeking to engage prostitutes. The persons who responded to the police ads, and other similar ads, were engaged in communicating to obtain for consideration the sexual services of a person, which is a criminal offence under s. 286.1. The communication to obtain sexual services for consideration is the single activity affected by the investigation. [129] Society has little interest in shielding the criminal activity of engaging a prostitute from state intrusion. (v) The nature and level of privacy expected in the virtual space [130] The nature and level of privacy expected are other relevant factors that the trial judge did not consider. [131] The relevant interest, in this case, is the privacy that the customers responding to the ad were entitled to expect during the text chat before the undercover officer disclosed that “she” was underage. After that disclosure, customers who continued the chat could not reasonably expect privacy online with juveniles they did not know: Mills , at para. 23. [132] As Ahmad noted, at para. 36, people reasonably expect privacy in their text messages. I reiterate once again that the court said that “virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives” and that individuals should be able to enjoy their privacy free from state intrusion, except where that intrusion is objectively justified: at para. 36. [133] I expect that customers would want to keep their text messages with a prospective sex worker confidential. In such text messages customers would disclose their sexual predilections, the sexual activities in which they wanted to engage, and how much they were willing to pay for them. [134] The customers used their phone to engage in the text chats. In Ahmad the court had commented, at para. 36, that: A phone number provides access to an intensely private virtual space. We cultivate personal, work and family relationships through our phones; they are a portal of immediate access reserved for the select few closest to us. We carefully guard access to that space by choosing to whom we disclose our phone number and with whom we converse. [135] The police carrying out Project Raphael intruded upon an intensely personal privacy interest. (vi) The importance of the virtual space to freedom of expression [136] The virtual space the police intruded upon was comprised of advertisements for sexual services and text messages from would-be customers. The expression in this space was devoted to specifying sexual services and negotiating their cost and where they would be performed. Such expression does not fall into the traditional categories of expression valued in a democratic state, such as political speech, social commentary, or religious opinion. [137] While the customers could claim a privacy interest in their text messages, it is relevant to this factor that the expression by the customers in the virtual space, i.e. communicating to obtain sexual services for consideration, would constitute a criminal offence under s. 286.1. [138] The escorts section of Backpage had little importance to freedom of expression. (vii) Racial profiling, stereotyping or reliance on vulnerabilities [139] There was no latitude in Project Raphael for undercover officers to engage in racial profiling or stereotyping, or to rely on vulnerabilities not related to the offence. (viii) The number of persons affected [140] The number of innocent people who would be affected by a police investigation is a significant factor in the analysis. This factor, although important, must be considered in the context of the other factors discussed above, which provide the necessary context for the proper assessment of its weight. [141] The trial judge did not make a finding quantifying the relative number of innocent people affected. The police did not keep a record of the number of persons who responded to the ads who discontinued the text chat upon learning the escort was underage. Counsel for Haniffa, whose submissions the respondent adopted, puts forward a method of arriving at an estimate of the relative number. From material disclosed by the Crown under a production order, he advises that during an eight-day period during which Project Raphael ran during 2016, 50 customers were arrested. While the total number of persons who responded to the ad was not recorded, it is known there were 17,000 lines of text communication from all callers during that eight-day period. Counsel estimates there were 30 to 40 lines of text per call on average. Using the figure 40 he attributes a total of 2,000 lines of text to the 50 persons arrested. That leaves the remaining 15,000 lines of text to be attributed to persons who discontinued the text chats or did not show up at the hotel room. He submits this calculation demonstrates that the great majority of customers refused to engage a juvenile person. [142] I agree that these calculations corroborate the impressions offered by the police testimony – that a considerable majority of the persons who responded to the police ads refused to engage the sexual services of a juvenile when offered the opportunity to do so. The import of this fact must be assessed in light of the entrapment jurisprudence. [143] Earlier cases addressed the number of innocent persons affected only implicitly by circumscribing the space in which police could solicit individuals. As noted earlier, in Barnes Lamer C.J. said, at p. 462, “in many cases, the size of the area itself may indicate that the investigation is not bona fide .” However, he did not expressly consider the number of innocent persons at the Granville Mall who could have been solicited by the police. I imagine the vast majority of persons at the Granville Mall were not drug traffickers. Moldaver J., in his dissent in Ahmad , observed “ Barnes enabled the police to target thousands of unknown persons and provide them with an opportunity to traffic in drugs”: at para. 117. [144] Barnes is still good law. [145] That a considerable majority of men who responded to the ad disengaged when the undercover officer disclosed “her” age is not determinative on its own. Ahmad , in expressly including the number of persons affected as a factor to be considered, did not assign it greater prominence than the other factors listed. In fact, Ahmad confirmed that Barnes , in which a considerable majority of persons at the Granville Mall did not traffic in drugs, was still good law. The court must consider all the circumstances of the case in determining whether the space within the scope of the investigation is sufficiently precisely and narrowly defined. F. Conclusion [146] All the above considerations must be taken into account in determining the balance between individuals’ right to be left alone and society’s interest in eliminating the exploitation of juveniles. [147] The factors, the seriousness of the crime, and the difficulty of investigating it, weigh heavily in favour of finding random virtue testing was avoided. The invasion of intensely personal privacy interests and the number of innocent persons affected support the opposite conclusion. The police investigation intruded only on persons engaged in criminal activity and in a virtual space that has little or no value to freedom of expression. There is no less intrusive investigative technique available. There is no suggestion of racial profiling, stereotyping or reliance on vulnerabilities in the design or implementation of the investigation. [148] Considering the above factors, all the circumstances and the applicable principles, I conclude that Project Raphael was a bona fide police inquiry and that the police did not require reasonable suspicion that the person responding to the ad was seeking someone underage before extending offers to commit the offence of communicating to obtain for consideration the sexual services of an underage person. In the course of the investigation the police necessarily provided persons with the opportunity to commit the rationally connected and proportionate offence of communicating with a person they believed to be underage to facilitate sexual contact with them. I would conclude the respondent was not entrapped. [149] I would grant the appeal and set aside the trial judge’s order to stay the respondent’s convictions. I would remit the matter to the trial judge for sentencing. Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.’ [1] Although Truong provided testimony that called upon specialized knowledge, n o expert evidence voir dire was conducted. This was not raised as an issue in this appeal, no doubt because it was not problematic in the circumstances of this case. When the question of Truong’s expertise arose in Haniffa , defence counsel effectively waived the need for a voir dire by advising the court that he had no problem with Truong’s evidence on the issue of entrapment, that he had been expecting it, and did not expect Truong to have to be qualified. The respondent clearly took the same position by agreeing to have this transcript, including this exchange, admitted as evidence during his entrapment voir dire , while raising no objection to Truong’s qualifications during that hearing. Moreover, Truong clearly had the specialized experience to offer the evidence he did.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Reid, 2021 ONCA 206 DATE:  20210331 DOCKET: C68387 Hourigan, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Brian Donald Reid Appellant Bruce Sosa, for the appellant Mark Luimes, for the respondent Heard and released orally: March 30, 2021 by video conference On appeal from the sentence imposed on May 6, 2020 by Justice Peter C. West of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant pleaded guilty to the following counts: assault, obstructing a peace officer, failure to appear for court, possession of property obtained by crime under $5,000, two counts of driving while disqualified, and dangerous driving. [2] At the sentencing hearing, both parties suggested a global sentence of three years' incarceration. The only issue was credit for pre-sentence custody of 63 days. The Crown sought a three-year term in addition to the pre-sentence custody. The appellant's position was that the sentence should be three years less the pre-sentence custody. The trial judge acceded to the Crown’s position and imposed a global three-year sentence. [3] The appellant seeks leave to appeal his sentence, arguing that the sentencing judge erred in principle by not taking into account pre-sentence custody credit. [4] We do not give effect to this submission. The Crown initially sought a four-year sentence but agreed to reduce the sentence to three years. It is evident on the record that the reduced sentence imposed took into account the guilty plea, the impact of the COVID-19 pandemic and the pre-sentence custody. [5] Leave to appeal sentence is granted, but the sentence appeal is dismissed. “C.W. Hourigan J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Robinson, 2021 ONCA 282 DATE: 20210503 DOCKET: C67570 Huscroft, Nordheimer and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Tracy Robinson Appellant Stephen Proudlove, for the appellant Natalya Odorico, for the respondent Heard: in writing On appeal from the convictions entered by Justice Hugh K. O’Connell of the Superior Court of Justice on July 19, 2019. REASONS FOR DECISION [1] Mr. Robinson appeals his convictions for causing damage by fire to property and for arson with intent to defraud, after a judge alone trial. [2] The appellant was accused of setting fire to a trailer that he owned and that was located in a trailer park. The trailer was insured. The appellant owed the trailer park money for fees, which had been outstanding for some time. Some days before the fire, the trailer park had threatened to remove the trailer from the park and to send the appellant’s account to collection. [3] On the evening that the fire occurred, the appellant had attended at the trailer park and promised the person in charge that he would pay his outstanding account by the end of the month. The appellant then visited his trailer, including turning on the air conditioning. A short time after the appellant left the trailer park, smoke, and then fire, was seen coming from the windows of the trailer. The trailer was destroyed. [4] As part of the investigation, the appellant gave three statements to the police. He denied setting the fire. Two of his statements were put into evidence as part of the prosecution’s case. The appellant did not give evidence at the trial. [5] The prosecution’s case was entirely circumstantial. Central to it was a report done by an investigator from the office of the Ontario Fire Marshal (“OFM”). The investigator, who was accepted as an expert, opined that the fire was deliberately set, and that it started on the surface of the floor in the west bedroom. The defence also called an expert who was critical of the investigation done by the OFM investigator. The defence expert suggested that the fire might have been caused by an electrical problem – a proposition that the prosecution’s expert had expressly rejected. [6] The trial judge gave detailed reasons for his conclusion that the prosecution had proven the offences beyond a reasonable doubt. Importantly, the trial judge accepted the opinion of the OFM investigator as to the cause of the fire and explained why he did so. The trial judge also noted that the appellant had the opportunity, and a motive, to commit the offences. [7] The appellant’s challenges to the trial judge’s reasons are largely challenges to the trial judge’s factual and credibility findings. Absent the demonstration of a palpable and overriding error, those findings are entitled to deference from this court : R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. No palpable and overriding error has been shown. The trial judge was entitled to accept the opinion of the OFM investigator. [8] We also do not accept the appellant’s argument that the trial judge applied uneven scrutiny to the evidence, an argument, we note, on which it is very difficult to succeed: R. v. Radcliffe , 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 274. [9] We do agree that the trial judge erred in his enunciation of the test from R. v. W.(D.) , [1991] 1 S.C.R. 742. Its application is not restricted to “straight credibility” cases, as suggested by the trial judge. However, reading his reasons as a whole, it is clear that the trial judge applied the test properly in considering the exculpatory evidence included in the appellant’s statements to the police. [10] Finally, we do not see any merit in the argument that the verdicts were unreasonable. [11] The appeal is dismissed. “Grant Huscroft J.A.” “I.V.B. Nordheimer J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Romano, 2021 ONCA 211 DATE: 20210408 DOCKET: C65842 Strathy C.J.O., Watt and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Remo Romano Appellant Brian Greenspan and James Foy, for the appellant, Remo Romano Holly Loubert, for the respondent, the Crown Heard: November 13, 2020 On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on January 24, 2018 and from the sentence imposed by Justice Brian P. O’Marra of the Superior Court of Justice on September 13, 2018 with reasons reported at 2018 ONSC 5172. Zarnett J.A.: I. Introduction [1] On the evening of February 12, 2014, the appellant, a police officer, was driving an unmarked vehicle on a Toronto street as part of a police surveillance team. Having fallen behind the team, and in an effort to catch up, he accelerated to about 115 kilometres per hour (“km/h”) in a zone with a posted speed limit of 60 km/h. His vehicle struck and killed Ms. Carla Abogado. [2] Ms. Abogado had nothing to do with the police surveillance. At the time of the fatal collision, she had been on her way home from work and was crossing the street (but not at an intersection) [1] after exiting a Toronto Transit Authority (“TTC”) bus. [3] The appellant was charged with dangerous operation of a motor vehicle causing death, contrary to what was then s. 249(4) of the Criminal Code of Canada , R.S.C., 1985, c. C-46. [2] He has been tried three times for this offence. [4] At his first trial, the jury was unable to agree on a verdict. [5] At his second trial, the appellant was acquitted, but the Crown successfully appealed to this Court. The acquittal was set aside, and a new trial directed: R. v. Romano, 2017 ONCA 837, 142 W.C.B. (2d) 539 (“ Romano 2017 ”). [6] At his third trial, the appellant was convicted and received a custodial sentence of eight months. [7] The appellant appeals both his conviction and sentence. [8] The conviction appeal relates to the trial judge’s charge to the jury. The appellant submits that the trial judge improperly focussed the jury on the consequences of his driving and whether the specific accident was foreseeable and avoidable, rather than on the proper questions — whether the manner of his driving was dangerous to the public and was a marked departure from the required standard in the circumstances. The appellant also submits that the trial judge failed to provide proper guidance to the jury on how to determine what would constitute a “marked departure” from the required standard. [9] On the sentence appeal, the appellant submits that the circumstances did not require an eight month, or any, term of imprisonment. He argues that this court should reduce his sentence or substitute a conditional sentence. [10] For the reasons that follow, I would dismiss both the conviction appeal and the sentence appeal. II. BACKGROUND [11] In order to put the issues to be decided into context, I begin with an outline of the elements of the offence of dangerous driving causing death. I then turn to a description of the circumstances of the offence and the theories advanced at trial. Against that backdrop, I address the grounds of appeal and why, in my view, they should be rejected. (1) Dangerous Operation of a Motor Vehicle Causing Death [12] At the relevant time, ss. 249(1) and (4) of the Code provided: 249 (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. (4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [13] It was conceded at trial that the appellant’s operation of the vehicle caused Ms. Abogado’s death. The only issue was whether the appellant’s driving met the elements of the offence of dangerous operation of a motor vehicle. The Supreme Court of Canada described these elements in R. v. Beatty , 2008 SCC 5, [2008] 1 S.C.R. 49 and R. v. Roy , 2012 SCC 26, [2012] 2 S.C.R. 60. [14] The actus reus is established when the accused’s conduct, viewed objectively, meets the standard in s. 249(1)(a) of the Code of “driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place”: Beatty , at paras. 43, 45; Roy at para. 28. [15] The offence also requires that the accused’s objectively dangerous driving be accompanied by the required mens rea . That will be present where the degree of care exercised by the accused was a “marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”: Beatty , at para. 43. “While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment”: Roy at para. 28 (emphasis in original). The risks created by the manner of driving, and their foreseeability, are an important part of the analysis. “(T)he trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused”: Beatty , at para. 43. (2) The Circumstances of the Offence [16] The appellant was 46 years old at the time of trial. He was an experienced police officer who joined the York Regional Police in 2003. He had received surveillance training and had participated in a significant number of surveillance operations. [17] On the evening of the collision, the appellant was part of a team of officers who were engaged in undercover mobile surveillance of a van suspected of involvement in unarmed, non-violent break-ins at several retail outlets. The team’s purpose was to gather information. The circumstances were not considered urgent nor to involve risks to public or police safety. No arrests were immediately contemplated. [18] During the surveillance, the appellant and one other officer fell behind the other team members. The appellant testified that it was important for team members to stay close as they depended on radio contact with each other. [19] The appellant’s vehicle was travelling eastbound in the passing lane on St. Clair Avenue East, in the vicinity of Victoria Park Avenue. St. Clair is a four-lane road with two lanes for each direction. The evening was clear, the area moderately well lit, and the road dry with some wet spots. [20] To catch up with the other team members, the appellant decided to accelerate. He was travelling at 80 to 90 km/h when he reached the intersection of St. Clair and Victoria Park, and then progressively faster as he continued in an easterly direction on St. Clair, through a section (west of Herron Avenue) that had a posted speed limit of 50 km/h and then, on a green light, through the intersection of St. Clair and Herron to an area with a posted speed limit of 60 km/h. The appellant was familiar with the area; he knew it had residential houses on the south side of St. Clair and a healthcare facility on the north side. He did not activate his emergency lights or siren, given that he was involved in undercover surveillance. [21] The Crown’s accident reconstruction expert testified that at the time the collision occurred on St. Clair just east of the intersection with Herron, the appellant had reached a speed of about 115 km/h and was still accelerating. [22] Ms. Abogado got off a TTC bus at the bus shelter just east of Herron on the north side of St. Clair. This was about 40 metres from her house. She proceeded to jaywalk across St. Clair toward its south side. She was wearing dark, non-reflective clothing. [23] The appellant’s vehicle struck Ms. Abogado just as she crossed the centre line of St. Clair into the eastbound passing lane. Her body was thrown nearly 80 metres. She died almost instantly. [24] The appellant testified that as he approached the intersection of St. Clair and Herron, he saw nothing in front of him and so he proceeded. The appellant did not see Ms. Abogado until just before the collision. He did not apply the brakes and only started to swerve less than one-half second before the collision took place. He admitted that, at the speed he was travelling, even if he had seen a pedestrian in the roadway, he could not have done anything to avoid a collision. [25] The appellant agreed that it was foreseeable that someone would be jaywalking on St. Clair that evening, as jaywalkers are generally foreseeable. He stated that he was focussed on the “roadway ahead of me” and did not account for hazards such as “pedestrians and jaywalkers”, or traffic pulling out or making sudden lane changes. [26] The Crown’s accident reconstruction expert testified that at the speed the appellant was driving and given when an “unalerted” driver would have seen a pedestrian in the circumstances, the collision was unavoidable as there was insufficient distance to stop the vehicle. He testified that the collision would have been avoidable if the appellant had been travelling at 80 km/h or less. (3) The Competing Positions at Trial [27] The parties did not contest, at trial or in this court, that the Highway Traffic Act exempts police officers from the requirement to comply with posted speed limits in the performance of their duties, but does not exempt them from criminal offences such as dangerous driving; that police officers must always act reasonably and prudently; and that police are subject to a higher standard of care when exercising their privilege to drive faster than the speed limit. [28] The Crown’s theory was that the appellant’s driving was objectively dangerous to the public, that the appellant should have foreseen the risks created by his driving and taken steps to avoid them, and that his failure to do so was a marked departure from what a reasonably prudent police officer in his circumstances would have done. The Crown relied on the “common sense reality” that a jaywalking pedestrian at St. Clair and Herron was foreseeable, given that it was, to the knowledge of the appellant, a residential area with a health centre and townhouses; that the posted speed limit which other motorists and pedestrians would expect vehicles to be travelling at was 60 km/h (the appellant believed it was 50 km/h); that the speed that the appellant was travelling gave him insufficient time to do anything about a hazard in the roadway even if observed from a distance of 85 metres; that the appellant was involved in low risk and non-urgent surveillance; and, that there were options available to the appellant instead of accelerating to that speed in that area to catch up to the rest of the team. [29] The theory of the defence was that the appellant’s driving did not meet the elements of the offence. Police officers are permitted by law to exceed the speed limit in the lawful performance of their duties and are not required to activate emergency lights or sirens. The appellant, who was part of an undercover police surveillance team, drove at the speed he did without activating emergency equipment because he had fallen behind the rest of the team, the traffic signal at St. Clair and Herron was green, and the road appeared clear of vehicles and pedestrian traffic. The appellant’s position was that Ms. Abogado made a “fateful decision” to cross the street, and her death was the direct result of this unexpected event. The defence relied on the inability of the Crown’s expert to answer the question: “What is a safe speed to avoid an unexpected event”? III. THE CONVICTION APPEAL [30] The appellant submits that the trial judge erred in two respects when instructing the jury. [31] First, he argues that the trial judge erred by inviting the jury to consider the consequences of the appellant’s driving — whether this particular collision was avoidable, and specifically, whether the appellant should have foreseen Ms. Abogado and avoided her — rather than addressing whether the manner of driving was objectively dangerous to the public and a marked departure from the standard of care. [32] Second, the appellant submits that the trial judge failed to give the jury the necessary guidance on what was required to determine whether the appellant’s driving was a marked departure from the standard of care. (1) Did the trial judge improperly focus the jury on the wrong questions? [33] As the Supreme Court explained in Beatty , the issue in a dangerous driving case is the manner of driving, not the consequences. The consequences may elevate the offence to one covered by s. 249(4), and may otherwise be relevant to assist in assessing the risk involved. However, “(t)he court must not leap to its conclusion about the manner of driving based on the consequence”. The consequences do “not answer the question whether or not the vehicle was operated in a manner dangerous to the public”: Beatty , at para. 46; see also R. v. Anderson , [1990] 1 S.C.R. 265 at p. 273. [34] These principles were applied in this court’s decision in Romano 2017 , reversing the appellant’s acquittal at his second trial. Paciocco J.A., writing for the court, explained that for both the actus reus and mens rea of dangerous driving, the focus should be on the manner of driving, not the consequences or the cause of those consequences: at paras. 68-69. A consequence can verify the nature of the risks that existed but should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm. “In assessing the dangerousness of the driving the relevant risk is not the risk that the specific accident event would materialize…what is of interest is danger to the public generally”: at para. 72. [35] The charge at the second trial failed to observe these requirements. Although it at times referred to the general manner of driving and the general risks created, it “gave undue focus to the collision, and to questions of responsibility for the collision, when it should have focused on [the appellant’s] driving, and whether that driving constituted a marked departure from the standard of care expected of a police officer in [the appellant’s] circumstances”: at para. 74. The charge had “focused the jury on the risk posed by Ms. Abogado’s jaywalking, and not the general risks to the public that may have been posed by [the appellant’s] manner of driving”: at para. 76. It put an improper focus “on the foreseeability and avoidability of the collision with Ms. Abogado”: at para. 80, and contained a “misdirected and misleading focus on the consequence or collision, and on the blameworthiness of Ms. Abogado...”: at para. 83. [3] [36] The charge at the second trial thus invited the jury to: evaluate the dangerousness of the driving and the degree of departure from the norm by examining the circumstances of the collision rather than the manner of [the appellant’s] driving…[giving] emphasis to the conduct of Ms. Abogado. The issue for the jury…was not the specific question of whether the collision with Ms. Abogado was foreseeable and avoidable. It was the more general question whether the manner of driving presented foreseeable and avoidable risks to the public, including risks that would arise if persons entered or were on the roadway: at para. 78. [37] The appellant argues that the charge given by the trial judge involved a similar error to that identified by Paciocco J.A. — that it focussed the jury on whether the specific collision with Ms. Abogado was foreseeable and avoidable, and not on the question of whether the appellant’s driving presented foreseeable and avoidable risks to the public, including risks that would arise if persons entered or were on the roadway. [38] I would not give effect to this argument. [39] First, the error in the charge at the second trial consisted of placing a focus on the circumstances of the collision with an emphasis on the conduct and blameworthiness of Ms. Abogado. That is not the error complained of here. [40] Second, the trial judge’s proposed charge was discussed at a pre-charge conference and specific submissions were made with a view to avoiding the problems identified in Romano 2017 . Trial counsel did not take the position that the proposed charge, as adjusted at the pre-charge conference, would place undue emphasis on the cause of the specific collision. Nor was the charge objected to after it was delivered. [41] Third, the charge, read as a whole, unlike the charge under consideration in Romano 2017 , did not focus the jury on the wrong questions. [42] The appellant points to various parts of the charge where the trial judge summarized and commented on the evidence of the Crown accident reconstruction expert, and told the jury that based on that evidence, they might conclude that the appellant would not have been able to avoid hitting Ms. Abogado no matter how she “got from the curb to the spot where she was hit”. He also points to the fact that the trial judge invited the jury to consider various details about the specific collision including the fact that Ms. Abogado was jaywalking; that she was wearing dark clothing that would have made it difficult to see her at night; the evidence of various witnesses as to when and what they saw of the collision; and the evidence of the Crown reconstruction expert as to whether there was enough time, at the speed the appellant was travelling, to avoid hitting Ms. Abogado. [43] These passages must, however, be considered in light of the charge in its entirety. The trial judge cautioned the jury to focus on the appellant’s manner of driving, and “not on the tragic consequences that occurred, that is, the death of Ms. Abogado”. He instructed them that it would be wrong to conclude, because a death occurred, “that the manner of driving must therefore have been dangerous”. He instructed them to consider “all of the risks created by the manner in which [the appellant] was driving”, one of which was the risk of striking a jaywalker. He told them that “[t]he collision with Ms. Abogado is only one of the risks that may have been created by [the appellant’s] manner of driving”, that the fact that she was jaywalking “is only relevant to the foreseeability of the risk”, and that the question that they must ask themselves was “in light of all the circumstances, would a reasonable, prudent police officer have foreseen the risks created by the manner of driving and taken steps to avoid them?” [44] Moreover, the trial judge specifically cautioned the jury that the question was not whether the collision with Ms. Abogado was foreseeable and avoidable: Now, while I discuss the circumstances of the collision with Ms. Abogado I do not mean to suggest that the dangerousness of the driving is to be determined by examining the circumstances of the collision, rather than the manner of [the appellant’s] driving. The issue for you is not whether the collision with Ms. Abogado was foreseeable and avoidable. Rather the question is whether the manner of [the appellant’s] driving presented foreseeable and avoidable risks to the public, including risks that would arise if a jaywalker entered or was on the roadway. [45] As these clear and unequivocal statements and cautions demonstrate, the charge did not improperly focus the jury on the question — “Was the specific collision foreseeable and avoidable?” — or invite it to overemphasize the significance of the consequences of the driving. The jury was instructed that the consequences did not answer the question of whether the driving was dangerous. The jury was effectively told not to “leap to its conclusion about the manner of driving based on the consequence”: Beatty , at para. 46. [46] Fourth, the law does not proscribe all reference to the consequences of the driving in considering a dangerous driving charge. It permits consideration of the consequences to “assist in assessing”, or to “verify”, the risk involved: Beatty , at para. 46; Romano 2017 , at para. 71. It recognizes that in some circumstances, “the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused”: Anderson , at p. 273. [47] Both sides used the circumstances of the collision to assist in assessing or verifying the risks. The defence position relied on the circumstances of the collision; that the appellant was driving safely and that Ms. Abogado’s sudden appearance in the path of the appellant’s vehicle, as a result of jaywalking, was an unexpected event of her creation, rather than something indicative of a type of risk the appellant should have foreseen and avoided. The Crown’s position was that the appellant’s manner of driving created the foreseeable risk of being unable to avoid striking a hazard on the roadway; Ms. Abogado’s presence on the road and the collision turned out to be a tragic verification of this. The trial judge’s charge, including the portions dealing with the specific collision and the cautions about the proper questions to consider, allowed the jury to appropriately consider those positions, without falling into the error identified in Romano 2017 . [48] The adequacy of the trial judge’s charge is assessed by considering whether it left the jury with a sufficient understanding of the facts as they related to the relevant issues so that “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: Romano 2017 , at para. 84. In my view, it did. I would therefore reject this ground. (2) Did the trial judge err in his instruction about what constitutes a marked departure from the required standard of care? [49] The parties agree that the mens rea issue in this case was whether the degree of care exercised by the appellant was a marked departure from the standard of care that a reasonably prudent police officer would observe in the appellant’s circumstances: Beatty , at para. 43. [50] On that question, the trial judge instructed the jury as follows: And secondly, if so, was [the appellant’s] failure to foresee the risks and take steps to avoid them, if possible, a marked departure from the standard of care expected of a reasonable, prudent police officer in [the appellant’s] circumstances? […] Now, the dangerous operation of a motor vehicle involves more than just carelessness in [the appellant’s] driving. Carelessness, by itself, does not constitute dangerous driving. The offence of dangerous driving requires a higher degree of negligence than careless driving. Crown Counsel must satisfy you, beyond a reasonable doubt that [the appellant’s] manner of driving was a marked departure from what a reasonable, prudent police officer would do in the same circumstances. Your good common sense will tell you the difference between simple carelessness and a marked departure. That said, Crown counsel does not have to prove that [the appellant] meant to cause death to, or endanger the life of, Ms. Abogado, or anyone else who was, or who might have been, there at the time. What you have to decide, in these circumstances, is not what [the appellant] meant to do, but whether [the appellant] drove in a manner that was a marked departure from the manner in which a reasonably prudent police officer would operate in the same circumstances. It is the manner of [the appellant’s] driving that you must focus on. [51] The appellant submits that this instruction was inadequate because it did not properly explain how high the “marked departure” standard is. The jury should have been told that the standard is beyond negligence, beyond momentary inattention, and beyond errors of judgment. Moreover, the trial judge should have explained the concept by relating it to real-world examples. [52] The appellant further argues that the instrument the trial judge invited the jury to use — its common sense — would not assist in evaluating what a trained police officer would do in the circumstances. The suggestion invited use of personal and idiosyncratic standards about speeding, but unlike the public, the appellant had some latitude to speed while on surveillance. Finally, the appellant says the jury should have been explicitly instructed to consider how and in what way the appellant’s driving was a marked departure from the standard of care. [53] I do not accept these arguments. [54] In my view, the charge appropriately equipped the jury to appreciate the central mens rea issue, namely, that the departure from the expected standard had to be beyond that required for civil liability and “serious enough to merit punishment”: Roy , at para. 28. The charge accomplished this, as the jury was told that the departure had to be “marked”, that more than carelessness was required, and that a higher degree of negligence was required than for careless driving. The jury would have thus appreciated that more than mere negligence, a momentary lapse of attention, or understandable misjudgment was required: R. v. Chung , 2019 BCCA 206, 155 W.C.B. (2d) 337 (“ Chung (BCCA) ”), at para. 30, aff’d 2020 SCC 8, 386 C.C.C. (3d) 523 (“ Chung (SCC) ”). [55] It is unclear what real-world examples would have assisted the jury to better appreciate this standard. Nor was any further explanation about the difference between momentary inattention and a marked departure necessary. [56] As the Supreme Court held in Chung (SCC ) at para. 22 : Although this Court in Roy and Beatty determined that momentary lapses in attention and judgment would usually not raise criminal liability, this was because momentary lapses often result from the "automatic and reflexive nature of driving" ( Beatty , at para. 34) or "[s]imple carelessness, to which even the most prudent drivers may occasionally succumb" ( Roy , at para. 37). These are examples of conduct that, when assessed in totality against the reasonable person standard, only represent a mere departure from the norm. Momentary conduct is not assessed differently from other dangerous conduct. Conduct that occurs over a brief period of time that creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm ( Beatty , at para. 48). A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds. This is what actually occurred in Mr. Chung's case. Risky conduct at excessive speeds foreseeably can result in immediate consequences. Therefore, the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving. [57] The jury was instructed to consider whether the appellant’s failure to foresee the risks arising from his manner of driving, and to take steps to avoid them, if possible, was a marked departure from the standard of care expected of a reasonable prudent police officer in the circumstances. The jury was told the departure had to be more than carelessness and was thus able to consider whether the appellant’s “excessive speeding” established mens rea because, “having regard to all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care a reasonable person in the same circumstances would have exhibited”: Chung (SCC) , at para. 19. [58] I agree with the Crown’s submission that this is not a case like R. v. Stephan , 2017 ABCA 380, 357 C.C.C. (3d) 10, rev’d 2018 SCC 21, [2018] 1 S.C.R. 633, (dealing with the offence of failing to provide the necessaries of life). In Stephan , the charge was inadequate because it did not tell the jury that it needed to consider whether the accused’s conduct fell sufficiently below the standard expected of a reasonable parent, nor did it caution the jury that notwithstanding the significant medical evidence it had heard, the standard was not to be equated to what a doctor would do in the circumstances: at paras. 246-54. Unlike in Stephan , the jury here was equipped to understand the standards of reasonable driving, and how far the appellant’s conduct departed from them. [59] Nor is this a case like R. v. Laverdure , 2018 ONCA 614, 365 C.C.C. (3d), also relied on by the appellant. The issue in that case was the failure of a trial judge, in a judge alone trial, to fully analyze the evidence related to mens rea . The trial judge erred by focussing solely on the actus reus and concluding that the act of dangerous driving necessarily constituted a marked departure . As such, he did not identify “how and in what way” the driver went beyond mere carelessness. In this case, the instructions to the jury clearly required them to analyze both the actus reus and the mens rea elements of the offence. [60] Finally, the issue of how the jury should be charged on this topic was the subject of dialogue at the pre-charge conference. The trial judge was asked by trial counsel to include the sentence: “The offence of dangerous driving requires a higher degree of negligence than careless driving”. The trial judge did so. The charge was not otherwise objected to before or after its delivery. [61] While the trial judge has the responsibility of adequately charging the jury, counsel are expected to assist in fulfilling that responsibility. Here, the trial judge accommodated trial counsel’s suggestions about the charge. Trial counsel did not otherwise object to it. While not determinative, this supports the conclusion that the charge on “marked departure” was adequate: R. v. Mack , 2014 SCC 58, [2014] 3 S.C.R. 3 at para. 60. [62] I would therefore reject this ground of appeal. IV. The Sentence Appeal [63] The appellant asks that we set aside or shorten the term of incarceration, or alternatively, impose a conditional sentence. [64] The appellant argues that the sentencing judge erred by failing to apply the principle of restraint. Under that principle, a sentencing judge is required to consider all sanctions apart from incarceration and impose imprisonment only when there is no other reasonable punishment: Code , s. 718.2(d) and (e). It follows that where imprisonment is required, the term should be as short as is reasonable given the circumstances. The appellant argues that a proper application of the restraint principle leads to no, or a shorter, custodial term. [65] At the time of sentencing, a conditional sentence – a sentence of incarceration served in the community subject to conditions – was not available for the offence of dangerous driving causing death, since the offence is punishable by a maximum term of imprisonment of 14 years: Code , s. 742.1(c). In R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, 39346 (January 14, 2021), a majority of this court found s. 742.1(c) to be unconstitutional. The appellant alternatively submits that this court should substitute a conditional sentence, as this was not an egregious case of police misconduct and involved no exploitation of power. [66] I would not give effect to these arguments. [67] In my view, the sentencing judge did not overlook the principle of restraint. It was expressly referred to in submissions made to him, and he stated that he had considered the principles set out in s. 718 of the Code . [68] The sentencing judge noted the appellant’s commendable personal, familial, and professional history, the lack of a need for specific deterrence, and the appellant’s remorse for the accident. But he also found that Ms. Abogado’s tragic death was an important factor in determining an appropriate sentence, and noted that it had had a devastating impact on her family. Although he did not agree with the Crown that general deterrence should be an “overriding” or “dominant” consideration, he did find a need, albeit “diminished”, for the sentence to reflect that principle. Although the defence request was for a non-custodial sentence, the sentencing judge found a term of eight months incarceration to be “required”. His reasons can only be taken to mean that he found this sanction to be necessary after considering all principles of sentencing. [69] Appellate variation of a sentence is only justified if the sentence is demonstrably unfit, or if the sentencing judge made an error of law or principle that had an impact on the sentence imposed : R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 40-41, 43-44. The sentencing judge in this case considered the relevant principles and exercised his discretion to arrive at a sentence that was not demonstrably unfit. [70] In light of Sharma , it is open to this court to consider the appropriateness of a conditional sentence for this offence. However, the fact that a conditional sentence is now available does not mean that one will necessarily be imposed: R. v. Gray , 2021 ONCA 86 at paras. 44-45. The issue is whether, post- Sharma , the sentencing judge’s decision remains sound, given the “newfound availability of a conditional sentence”, after considering the sentencing judge’s reasons, the applicable principles, and any fresh evidence : Gray , at para. 52 . [71] The sentencing judge referred, in his reasons, to the non-availability of a conditional sentence. But he did not say that he would have imposed one if it were open to him to do so. He did not accept the defence submission that a non-custodial sentence was appropriate. His view, from his reasons read as a whole, was that an actual custodial sentence was “required” because of the nature and circumstances of this particular offence and the harm done. His sentencing decision thus remains sound. His findings do not support the view that a conditional sentence would be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”: Code , s. 742.1(a). [72] As I have described, the sentencing judge did not err in failing to consider the principle of restraint. He did not impose a sentence that was demonstrably unfit. It would not be appropriate, on the findings that he did make and the relevant principles, to set aside or reduce the custodial sentence, or substitute a conditional sentence. V. Conclusion [73] I would dismiss the conviction appeal. Although I would grant leave to appeal sentence, I would also dismiss the sentence appeal. Released: April 8, 2021 “G.R.S.” “B. Zarnett J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. David Watt J.A.” [1] She was “jaywalking”. [2] In these reasons I refer interchangeably to dangerous operation of a motor vehicle and dangerous driving. [3] For example, the judge at the second trial told the jury: In considering whether the driving in question was dangerous as I have defined it, you will take into account that Ms. Abogado was jaywalking, that is, she was crossing St. Clair Avenue East in the middle of the road, not at an intersection or at a crosswalk. Jaywalking is an inherently risky activity. Pedestrians must be aware, when they jaywalk, that drivers are not always paying attention, not always concentrating on what is going on ahead of them. Also, Ms. Abogado was wearing generally dark clothing, meaning that she would be more difficult for a driver to see, especially given that it was night time and it was dark out.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. S.H., 2021 ONCA 41 DATE: 20210121 DOCKET: C64838 Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and S.H. Appellant Howard Krongold, for the appellant Michael Dunn, for the respondent Heard: January 15, 2021 by videoconference On appeal from the convictions entered by Justice W. Danial Newton of the Superior Court of Justice on July 8, 2016, with reasons reported at 2016 ONSC 4492. REASONS FOR DECISION [1] The trial judge convicted the appellant of sexual interference, contrary to s. 151 of the Criminal Code , and sexual assault, contrary to s. 271 of the Criminal Code . The appellant was found to have committed these offences against the complainant, his step-daughter, on an almost daily basis, over a number of years. [2] At the trial, the complainant testified about the alleged sexual abuse. She also testified that after she told her mother about the abuse, the appellant came into her room and apologized to her. [3] The complainant’s mother testified that after the complainant told her of the sexual abuse, she confronted the appellant, who did not deny the allegations but said he could not remember, perhaps because he had consumed drugs. She testified that she then heard the appellant apologize to the complainant, and that the appellant left the family home the next day. [4] In his testimony, the appellant denied the alleged sexual acts and denied apologizing to the complainant. He said that he left the house because the complainant’s mother admitted that she was having an affair. The appellant suggested that the complainant’s allegations were motivated by his response to the complainant being caught shoplifting, and that the complainant’s prior complaints to her friends had been motivated by the negative influence of those friends, and her desire to “fit in”. [5] In his decision finding the appellant guilty, the trial judge accurately set out the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742, for the application of the reasonable doubt standard in credibility cases. He identified the three stages in the W.(D.) analysis that are customarily described, including by citing the formula expressed in W.(D.) , at p. 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [6] In the analysis section of his reasons for decision, the trial judge explained that he did not accept the appellant’s evidence, and that he was satisfied of the appellant’s guilt beyond a reasonable doubt based on the evidence he did accept, namely the testimony of the complainant and her mother. These holdings address the first and third steps in the W.(D.) analysis. In describing his analysis, the trial judge did not expressly address the second stage of the W.(D.) analysis. [7] The appellant urges us to find that despite citing the principles correctly, the trial judge misapplied the law by failing to consider the second stage of the W.(D.) analysis. He therefore asks that his convictions be set aside and that a new trial be ordered. [8] Notwithstanding that the trial judge did not advert expressly in his analysis to the second stage of W.(D.) , we are not persuaded that the trial judge committed this error. [9] It is telling that the trial judge did not simply reproduce the W.(D.) formula in his decision. He said that he was obliged to consider each step in his reasoning, and, commendably, explained what each of those steps entails. This included a two paragraph explanation of how the second stage of the W.(D.) analysis was to be conducted, culminating in a self-direction that even if he does not believe the accused, the trial judge must consider the accused’s evidence in the context of the evidence as a whole to determine whether he may nonetheless have a reasonable doubt as to the accused’s guilt. [10] The trial judge’s detailed examination of the law is instructive on the ground of appeal before us. In order to accept that the trial judge failed to apply the second stage of the W.(D.) analysis, we would have to infer that the trial judge somehow failed to undertake the very analysis that he not only said he would undertake but explained in appreciable detail. A review of the reasons for decision does not support this conclusion. When the decision is read as a whole, it can be inferred that the trial judge rejected the appellant’s exculpatory testimony in its entirety, leaving that testimony incapable of raising a reasonable doubt. [11] This can be seen most clearly in the trial judge’s treatment of the appellant’s explanation for his abrupt departure from the family home. Although the trial judge did not say so expressly, he clearly concluded that this testimony was contrived. That the trial judge reached that conclusion is apparent from the trial judge’s explanation that this testimony so undercut the appellant’s credibility that his denial of the assaults could not be accepted. [12] The trial judge then moved on to the appellant’s testimony about the influence of the complainant’s friends on her prior complaints, and said, “I also reject [that] assertion” (emphasis added). Here, “also” is clearly a reference to the trial judge’s finding, made immediately prior, that he did “not accept” the appellant’s denial that he assaulted the complainant. It follows, from the use of “also” in reference to the friends’ influence, that the trial judge rejected the appellant’s exculpatory denial. Put otherwise, the trial judge not only found that he did not affirmatively believe the appellant’s denial, he rejected it in its entirety leaving it incapable of raising a reasonable doubt. [13] To be sure, it would have been preferable for the trial judge to expressly address each of the three W.(D.) stages in his analysis. Had he done so, it is unlikely that the decision would have been appealed. Had it been appealed, it would not have been necessary to provide the close analysis just undertaken to determine whether an error occurred. Having undertaken that exercise, however, we are not persuaded that the law was misapplied. [14] The appeal is therefore dismissed. “R.G. Juriansz J.A.” “M. Tulloch J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sangster, 2021 ONCA 21 DATE: 20210112 DOCKET: C65913 MacPherson, Tulloch and Lauwers JJ.A. BETWEEN Her Majesty the Queen Respondent and Alexander Sangster Appellant Erin Dann and Angela Ruffo, for the appellant Gerald Brienza, for the respondent Heard: December 17, 2020 by video conference On appeal from the convictions entered on March 27, 2018, and the sentence imposed on April 25, 2018, by Justice Jon-Jo Douglas of the Ontario Court of Justice. MacPherson J.A.: [1] After a five-day trial before Douglas J. of the Ontario Court of Justice in Huntsville, the appellant, Alexander Sangster, was found guilty of possession and careless use of a firearm, pointing a firearm, aggravated assault against his friend Courtney Carpenter, and assault causing bodily harm against his girlfriend Samantha Lambertsen-Downing. He pleaded guilty to fail to comply with recognizance. The appellant appeals all of the convictions except the fail to comply with recognizance. [2] The trial judge imposed a global sentence of seven years and seven months for the convictions. The appellant appeals the sentence. [3] On the sentence appeal, the appellant seeks to introduce fresh evidence about his rehabilitative progress while in custody post-sentence (25 months) and while on bail pending appeal (7 months). [4] For the reasons below, I would dismiss the conviction appeal and allow the sentence appeal on the basis of the fresh evidence application. The conviction appeal [5] The events that ground the appellant’s convictions, as described accurately in his factum, “arise out of a tumultuous evening at the apartment building where the Appellant was living on May 29, 2017. Everyone was intoxicated and several fights took place.” [6] The appellant and his girlfriend were staying with S.S. and Ryan Davey in apartment #4 in an apartment building in Huntsville. They had been living there, by invitation, for about three weeks. Courtney Carpenter and Patricia Hickey lived in apartment #3. [7] On May 29, 2017, people in both apartments became heavily intoxicated. The appellant and his girlfriend were involved in a fight that spilled into the hallway outside the apartment. Carpenter and Hickey heard the fight in the hallway, left their apartment, and intervened. The appellant and Carpenter wrestled on the floor before separating. The appellant was violent toward his girlfriend the rest of the evening. At one point in the evening the appellant was walking around with a gun; he pointed it at Davey, and then at S.S. when she stepped in front of Davey. [8] During his fight with the appellant, Carpenter was stabbed in the kidney. Carpenter did not realize he had been stabbed or, in any event, did not remember it happening. The next morning Carpenter called his sister who rushed over to meet him at his apartment. She was pulled over by police for speeding before she could get to him. Police learned about the stabbing from her during the traffic stop. When police arrived at Carpenter’s apartment, he told them he could not remember who had stabbed him and suggested that he may have been jumped outside the apartment building or bitten by a dog. Later, after speaking with Hickey in hospital, he remembered the fight with the appellant in the hallway. [9] While police were investigating the stabbing, two Children’s Aid Society workers noticed the police cars parked outside the apartment building. They decided to visit S.S. who had missed her appointment with CAS that morning, was pregnant and had a child in care. One of the police officers at the scene, Constable Fleming, accompanied them to apartment #4. The CAS workers asked if they could enter the unit. S.S. agreed. Constable Fleming entered, but remained in the hallway. One of the CAS workers asked S.S. if she would open the bedroom door; when S.S opened the door, the CAS worker saw the appellant holding a gun. The CAS worker screamed something to the effect of “he has a gun” and ran out of the bedroom. Constable Fleming went to the bedroom where he saw the appellant hiding something under the mattress. Later, he obtained a search warrant and seized a shotgun from under the mattress and some shells from the vicinity. [10] At the start of the trial, the appellant brought an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude the evidence obtained from the search of apartment #4 by the CAS workers and the police. [11] The trial judge dismissed the Charter application. In determining that there was no s. 8 breach, the trial judge reasoned that although the appellant had “some expectation of privacy” as a guest, that expectation did not reasonably extend to prevent the search to which S.S., the principal resident of the apartment, consented, including to open the door to the bedroom. The trial judge also addressed s. 24(2) of the Charter , concluding that if there was a breach of s. 8 it was minor and the Grant factors favoured admission of the evidence: R. v. Grant , 2009 SCC 32 . [12] The trial judge found the appellant guilty of wounding Carpenter by stabbing, assault causing bodily harm to Lambertson-Downing, pointing a firearm at Davey, careless use of a firearm and possession of a loaded prohibited weapon. [13] The appellant appeals his conviction on two grounds. [14] First, the appellant contends that the trial judge erred in dismissing his Charter application. The appellant says that he had a reasonable expectation of privacy in his bedroom that could not be nullified by S.S.'s consent to the search and, in any event, there was no valid consent by S.S. to search the apartment. [15] With respect to the first component of this argument, the starting point is R. v. Reeves , 2018 SCC 56, where Karakatsanis J. said, at para. 12: Section 8 of the Charter is only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state ( R. v. Cole , 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances” ( R. v. Edwards , [1996] 1 S.C.R. 128, at paras. 31 and 45(5)). [16] In Edwards , Cory J. said, at para. 45: The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [17] The appellant was present in the apartment’s only bedroom at the time of the search. [18] The appellant had no control over the premises. He was a guest of the apartment’s lessees. [19] The appellant did not own the apartment. [20] The appellant had no historical use of the apartment. He had stayed there, as a guest of the lessees, about three weeks. [21] The appellant had no ability to regulate access to the apartment or even to the bedroom where he and the gun were found. He slept in the bedroom only because S.S. and Davey preferred to sleep on a mattress on the living room floor because it was cooler there. Referring to the bedroom, S.S. said: “I kept almost everything in there, my clothes, my dresser, my crib, my baby stuff, my stroller, car seat.” She also kept her mattress in the bedroom during the daytime and moved it to the living room at night. [22] The appellant testified in the voir dire on the Charter application and said that he had an expectation of privacy in the bedroom. His testimony was the only evidence that he contributed groceries or rent to the apartment. The trial judge rejected his evidence: “The accused testified as to his living arrangement. Broadly speaking his evidence is not to be considered reliable.” [23] If the appellant had a subjective expectation of privacy in the bedroom and apartment, it was not objectively reasonable. He and his girlfriend had been there only three weeks. They were there as guests of S.S. and Davey. And, as the trial judge observed, “[t]his is a very small apartment.” [24] In summary, an application of the Edwards factors overwhelmingly supports the trial judge's conclusion that the appellant had only a low expectation of privacy with respect to the bedroom and that it did not extend to render the search of the bedroom unreasonable. [25] The appellant's second argument on this issue is that in any event, contrary to the trial judge's conclusion, S.S. did not validly consent to the entry of the CAS workers and police into either apartment #4 or the bedroom. [26] I do not accept this submission. In his judgment, the trial judge described the circumstances of the entry into the apartment and bedroom of, first, the CAS workers and, second, Constable Fleming: CAS knocked on the door. [S.S.] answered. CAS had no statutory authority to enter and search unless apprehending the child. They thus have a well established protocol of requesting permission to enter. They did, and [S.S.] agreed. … This is a very small apartment. [S.S.] and the CAS entered near to the kitchen area while Fleming hung back in the hall area. … Again, pursuant to protocol, CAS asked to search the cupboards, fridge et cetera. Permission was granted. … The only bedroom door was closed. [S.S.] was asked if they could look in the room. [S.S.] said to CAS, Ms. Fraser, “go ahead and open the door”. Ms. Fraser said “no, you open it”. [S.S.] did. [27] In my view, this chronology, with care taken throughout to ensure that S.S. was consenting to each step in the process, easily complies with the test for determining whether a consent is valid, set out by this court in R. v. Wills (1992), 70 C.C.C (3d) 529 (Ont. C.A.), at p. 546. [28] The appellant's second ground of appeal is that the trial judge misapprehended the evidence in such a way that renders the convictions on three counts a miscarriage of justice. The convictions that the appellant challenges on this basis are the aggravated assault (stabbing) of Carpenter, the assault causing bodily harm against Lambertsen-Downing, and the possession and careless storage of a firearm. [29] I am not persuaded by this submission. In R. v. Lohrer , 2004 SCC 80, at para. 2, Binnie J. articulated the high bar that must be met to satisfy this ground of appeal: Morrissey , it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [30] In my view, the appellant cannot meet either component of this test. The trial judge was entitled to accept Carpenter’s testimony, supported by his wife’s recall, that the appellant stabbed him, and to accept S.S.’s testimony that she heard Hickey yell “he just…stabbed him”, referring to the appellant. He was entitled to rely on S.S.’s testimony about the appellant’s assault on Lambertsen-Downing. He was entitled to rely on S.S.’s testimony that the appellant pointed a gun at her and Davey. [31] I would dismiss the conviction appeal. The sentence appeal [32] The trial judge imposed a global sentence of seven years and seven months on the appellant. As an introduction, he stated: The five offences can be categorized into four parts: 1. The stabbing of the neighbour; 2. The assault [causing] bodily harm on the accused’s girlfriend; 3. The pointing of and carrying of a loaded prohibited weapon, being the sawed-off shotgun; and 4. The related concurrent possession of that shotgun prior to these … incidents and when ultimately arrested by the police the following morning. [33] The trial judge imposed the following sentences: Count 1 – aggravated assault, three years and 3 months; Count 3 – assault causing bodily harm, one year consecutive; Counts 5, 6 and 7 – the gun charges, three years and three months concurrent to one another but consecutive to all other sentences; and Count 9 – the breach, one month consecutive. [34] At the sentence hearing, the Crown proposed a sentencing range of six years and seven months to eight years and two months. The defence proposed a sentence of approximately four years and seven months. Hence the sentence imposed by the trial judge was squarely inside the Crown position and outside the defence position. [35] The trial judge gave credit for pre-trial custody on a 1.5:1 basis totalling 497 days. He concluded: His total sentence of seven years and seven months is a sentence of 2,768 days from which I deduct the 497 days, leaving him 2,271 days to serve or six years and 81 days to serve. [36] The appellant advances two arguments on the sentence appeal. [37] First, the appellant contends that the global sentence of seven years and seven months was unfit. [38] I do not accept this submission. Although the sentence was certainly at the high end of the range, it was not, in my view, outside the range. On the night and morning in question, the appellant went on a crime binge that injured his girlfriend, almost killed his friend and neighbour, and could have resulted in harm to several other people. [39] Second, on the basis of a fresh evidence application, the appellant seeks an order that the sentence appeal be allowed and the sentence be reduced to one of time served. [40] The background to the fresh evidence application is this chronology: the appellant was sentenced to seven years and seven months imprisonment on April 25, 2018 at which time he began to serve his sentence; he perfected his appeal in March 2020; he was granted bail pending appeal on May 28, 2020. Since being granted bail, a period of just over seven months, he has been living at his mother’s home in Huntsville. This chronology establishes that the appellant has served about three years and five and a half months of his sentence (one year and four and a half months in pre-trial custody and two years and one month in post-sentence custody). The appellant’s parole eligibility date is May 21, 2020. His statutory release date is June 17, 2022. His warrant expiry date is July 12, 2024. [41] I would allow the application to introduce fresh evidence. The evidence meets the requirements of the test in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775: it could not have been adduced at trial, it is relevant, it is credible, and it could reasonably be expected to have affected the result. [42] There are two categories of material that are relevant on the fresh evidence application – the evidence relating to the appellant’s progress during his 25 months in the Beaver Creek Institution after the sentence was imposed, and the evidence relating to the appellant’s progress during his seven months on bail pending this appeal. [43] There is strong evidence that the appellant made substantial progress during his 25 months in custody at the Beaver Creek Institution. There are two comprehensive reports about the appellant’s attitude and behaviour while in custody that are highly complimentary about the appellant and promising in terms of his future prospects in the community. [44] These two reports were before the motion judge who heard and granted the appellant’s bail application in May 2020. In R. v. Sangster , 2020 ONCA 332, at para. 17, Jamal J.A. said this about these reports: Reports prepared by the Beaver Creek Institution in September, 2019 and March, 2020 confirm the applicant has made substantial progress in managing his addiction and his personal risk factors: · The September 2019 report notes “substantial gains” in the applicant’s ability to recognize and address problems and confirms that “he has been sober for two years”. It notes that he participated in a methadone program, “communicates positively with staff”, has improved relations with his family as a result of his sobriety, and is “determined to set boundaries with anyone who uses drugs”, whereas previously he was “never sober” and “began to become more violent and aggressive the more drugs he used”. The report notes that he has “made sobriety his number one priority” and has “planned a continuum of care using community supports”. His rated ability and commitment to manage his thinking that justifies and supports the use of violence, partner violence, and general violence has improved from “needs a lot of improvement to moderate”. The report concludes that the applicant’s “current overall ability and commitment to use the skills required to manage his various risk factors improved and is currently rated as good”. · The March 2020 report highlights continued improvement. It confirms that the applicant “conducts himself respectfully with staff”, “has successfully completed his correctional programs, is enrolled in school, and has maintained employment.” It notes that his risk to public safety is “reduced from moderate to low”. The report states that he has “demonstrated accountability for his offences” and “[t]here are no indicators of substance abuse during his incarceration.” The report also states that “[h]e is not currently assessed to be a candidate for detention”. It concludes that “he has demonstrated limited negative conduct and there is no evidence of violent behaviour or substance abuse institutionally.” [45] This first category of evidence, demonstrating the appellant’s significant progress while at the Beaver Creek Institution, supports a reduction in the appellant’s sentence. [46] In the second category – the appellant’s situation since he was granted bail on May 28, 2020 – there is also strong evidence to support the appellant’s actual, and likely continuing, rehabilitation. [47] The appellant has been living with his mother while on bail. In a letter filed with the court, she records: I have had many conversations with my son which have clearly demonstrated to me that his past behaviour, which was greatly influenced by severe drug and alcohol abuse/addiction, is a thing of the past. I feel that I now have back the son that I raised. In my view Alex has taken full responsibility for his past poor life choices, which led to the loss of his good reputation and culminated in his criminal behaviour, for which he was found guilty. Alex became a first time father during his incarceration. His daughter … has brought great happiness and a deep bond between them. I believe Alex will forever fulfill his role as a father, along with his long time mate Samantha (mother of his child). Alex and Samantha have a loving, devoted and respectful relationship towards each other and co-parent very well. He has clearly benefited from the programs he attended at Beaver Creek. [48] While on bail, the appellant reports that he has been working with the Ontario Addiction Treatment Centre to connect with resources to help him manage his addiction challenges. This is confirmed in a letter from Dr. Michael DeRoode of the OATC in Huntsville who sees the appellant on a weekly basis and reports excellent progress: Since starting the program, Alex has been focused and goal oriented. He has worked hard to make the program work for him and has reaped the rewards. He also attends my general medical clinic where we have worked hard at treating some of his underlying psychologic issues. He now takes medication for these issues and they have helped his concentration and impulsiveness. He is on stable doses of these meds. This has allowed him to achieve a goal of gainful employment. [49] The last sentence of Dr. DeRoode’s report is confirmed by Matthew Marietta, a friend of the appellant: I have known Alex Sangster for over 20 years, we met while attending Huntsville High School…. [H]e took a path that led him to make very poor choices. Since Alex’s temporary release from Beaver Creek, I have noticed a huge change in his mannerism, drive and demeanor. He has been volunteering some hours around my home with repairs, clean up and other household chores that I have needed assistance with. As I own a small local business, Premier Northern Exteriors, it would be a great pleasure to have Alex join my team after his court date. [50] Taking all these factors together – his mother’s support and supervision, a very young first child born while he was incarcerated, a revived relationship with his partner, good medical and psychological support, and the promise of stable employment – I conclude that the second category of fresh evidence also supports a reduction in the appellant’s sentence. [51] At this juncture, and bearing in mind that the original sentence was a stiff sentence, I see that no good purpose – for the appellant or the administration of justice – would be served by reincarcerating the appellant. Disposition [52] I would dismiss the conviction appeal. I would allow the sentence appeal on the basis of the fresh evidence application only and substitute a sentence, at this juncture, of time served. Released: “JCM”  JAN 12 2021 “J.C. MacPherson J.A.” “I agree. M. Tulloch J.A.” “I agree. “P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Seip, 2021 ONCA 101 DATE: 20210219 DOCKET: C67573 MacPherson, van Rensburg and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Marcel Seip Appellant Marcel Seip, acting in person Danielle Robitaille, appearing as duty counsel Jeffrey Wyngaarden, for the respondent Heard: February 9, 2021 by video conference On appeal from the conviction entered on May 21, 2019 and the sentence imposed on October 9, 2019 by Justice Diane M. Lahaie of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant Marcel Seip appeals his conviction and sentence for the offences of using a restricted or prohibited firearm in a kidnapping with intent to confine, break and enter, aggravated assault, assault, possession of a firearm while prohibited by reason of an order under s. 109 of the Criminal Code , R.S.C. 1985, c. C-46, breach of recognizance, and two counts of uttering threats to cause death. [2] The trial judge made the following findings relevant to this appeal: · The appellant participated in a home invasion and kidnapping with an accomplice to collect a $300 drug debt. The appellant was the “mastermind” and “principal driving force” of the home invasion and kidnapping. He knew his accomplice had a gun and decided it was time to be taken seriously regarding the money owed to him. · The appellant asked his girlfriend to knock on the door of the home as a decoy. She knew nothing about the accused’s plan in advance. · The door was opened by an 18-year-old high school student who lived at that address with his mother. The appellant and the accomplice barged in and the accomplice shot the student in the arm. The trial judge found that the accomplice “put the gun to [the student’s] forearm and shot him”. The bullet travelled through his arm and into the arm of the accomplice. · The appellant and the accomplice threatened to kill or harm the five occupants if they called the police, and did so again when they screamed with fear. · The appellant punched the individual who owed the drug debt in the face. Then, the appellant and the accomplice kidnapped him to force him to get the money to repay the debt. Eventually he escaped. · The trial judge found that although the appellant and the accomplice discussed and intended to use the gun as part of the home invasion, she was not prepared to find beyond a reasonable doubt that the plan was to shoot the gun into the student or anyone else. The trial judge was left in doubt by the evidence of the appellant’s girlfriend, that the gun “went off” when the student “flinched” after opening the door, and because in shooting the student the accomplice shot himself, which suggested the gun might have been fired accidentally. The trial judge therefore acquitted the appellant of discharging a firearm with intent to wound, but found him guilty of aggravated assault. · The appellant was sentenced to a global sentence of 10 years in jail, less 866 days credit for pre-sentence custody, and various ancillary orders. [3] On the conviction appeal, duty counsel argues that because the trial judge acquitted the appellant of discharging a firearm with intent to wound, she could not convict the appellant of aggravated assault. She asserts that the trial judge’s conclusion that she could not find beyond a reasonable doubt that the shooting was intentional precluded any finding of an intentional application of force needed to convict him for aggravated assault. Duty counsel submits that if the aggravated assault conviction is set aside, a global sentence around 6 to 7 years would be more appropriate. No other argument was made in relation to the sentence appeal. [4] We do not accept this submission. In our view, the trial judge was entitled to find the appellant guilty of aggravated assault in the circumstances. [5] Section 268(1) of the Criminal Code provides: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [6] The essence of aggravated assault is captured by Morris Manning and Peter Sankoff in Manning, Mewett & Sankoff — Criminal Law , 5th ed. (Toronto: LexisNexis, 2015), at p. 998: The most serious type of assault short of homicide is called aggravated assault, which occurs when a person wounds, maims, disfigures or endangers the life of another. Conduct of this sort is punishable by imprisonment for up to 14 years. The elements of the offence are fairly well established. In addition to proving the basic requirements for an assault, it must also be shown that one of the prohibited consequences — wounding, maiming, disfiguring or endangering — was caused by the assault. Although it is not necessary to prove that the accused intended those consequences in all cases, the Crown must demonstrate that the conduct was at least objectively likely to cause bodily harm . [Emphasis added.] [Footnotes omitted.] [7] The mens rea for aggravated assault is the mens rea for the offence of assault coupled with objective foreseeability of harm. As Cory J. stated in R. v. Godin , [1994] 2 S.C.R. 484, at p. 485: The mens rea required for s. 268(1) of the Criminal Code , R.S.C., 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. [8] Here, the trial judge found the accomplice put the gun to the student’s arm. This intentional act was an assault. Even if the accomplice did not intend to shoot the student, the trial judge was entitled to find that the resulting injury was objectively foreseeable as a result of this assault, and was thus an aggravated assault. The trial judge was also entitled to find that the appellant was a party to this offence. He was the mastermind of the home invasion and knew his accomplice had a gun and intended to use it in the crime. We therefore see no error in the following analysis and conclusion of the trial judge: [The appellant] was a party to the offence of aggravated assault committed against [the student]. The mens rea of this offence is objective foresight of bodily harm. The Crown need not show that an accused alleged to be a party to the offence of aggravated assault had any greater mens rea than the actual perpetrator and, in particular, need not show an objective foresight of the specific wounds resulting from the assault. ( R. v. Vang (1999), 132 C.C.C. (3d) 32 (Ont. C.A.), leave to appeal to S.C.C. refused; R v. Cuadra (1998), 125 C.C.C. (3d) 289 (B.C.C.A.) I am convinced beyond a reasonable doubt that all the elements of this offence have been established. [9] The appellant also argues that the trial judge erred in her credibility findings. He says that he was waiting in the car downstairs and that he did not participate in the home invasion. The trial judge rejected the appellant’s evidence at trial, stating: I reject the entirety of [the appellant’s] evidence because it is inconsistent and illogical. [The appellant] is not an honest man. He has a criminal history which includes convictions for crimes of dishonesty and breaches of court orders. That being said, it was his inconsistent evidence and version of events which made no sense which leads to my conclusion in regards to his evidence. [10] We see no error in the trial judge’s rejection of the appellant’s evidence. Nor do we see any error in how the trial judge evaluated the credibility of the other witnesses or in finding the appellant guilty. [11] Because the conviction appeal is dismissed, there is no basis for the sentence appeal. Leave to appeal the sentence is denied. [12] The appeal is dismissed. “J.C. MacPherson J.A.” “K. van Rensburg J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Smith, 2021 ONCA 310 DATE: 20210512 DOCKET: C67990 Hoy, Hourigan and Zarnett J.J.A. BETWEEN Her Majesty the Queen Respondent and Christopher Smith Appellant Christopher Smith, acting in person Daniel A. Stein, acting as duty counsel Jeffrey Wyngaarden, for the respondent Heard: May 4, 2021 by videoconference On appeal from the conviction entered on December 4, 2019 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury, and the sentence imposed on January 14, 2020. REASONS FOR DECISION [1] As a result of a search by the police of a residence on Cannon Street in Hamilton, the appellant was charged with a number of offences: two counts of possessing, without lawful authority, identity documents that related to another person contrary to s. 56.1(1) of the Criminal Code of Canada , R.S.C., 1985, c. C-46; two counts of possessing, without lawful authority, a counterfeit mark contrary to s. 376(2)(b) of the Code ; and one count of possessing cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [2] The same items formed the basis of the identity document charges and the counterfeit mark charges – a driver’s licence and Ontario health cards. They each bore the Ontario government trillium logo — the fact at the core of the allegation of a counterfeit mark. They each had a photograph of the appellant, but a different name and various dates of birth — the facts at the core of the allegation that they were identity documents that related to another person. They were each found in a box on the main floor of the Cannon Street premises. [3] The cocaine — approximately 4.5 grams — was found beneath clothing on the second floor of the Cannon Street premises. [4] The appellant was tried by a judge and jury. The central issue at trial was whether the identity cards and cocaine were in the possession of the appellant and whether he had knowledge of them. This issue largely turned on the appellant’s connections to the Cannon Street premises. [5] The trial judge’s charge to the jury explained that there were limited matters for them to consider. He instructed the jury to find that the driver’s licence and health cards were identity documents that related to another person (as s. 56.1 requires), that the marks (the trillium logo) on them were counterfeit (as s. 376(2)(b) requires), and that there was no lawful authority for their possession (as both sections require). He also instructed the jury that there was no issue that the drug was cocaine. [6] After describing the essential elements of each count of each offence, the trial judge said: Therefore, to help you in your analysis, the issues in this case for all of the charges related to Mr. Smith's alleged possession of the false identity cards in question, and/or the cocaine found in the residence. Therefore, the only questions or essential elements for all of the counts relates to your consideration of Mr. Smith's possession and his knowledge over the identity cards and/or the cocaine. [7] The trial judge then outlined for the jury the evidence from which an inference might or might not be drawn of possession and knowledge, instructing them that they needed to be satisfied that the essential elements were proven beyond a reasonable doubt for each count. [8] The jury convicted the appellant on all counts. [9] Given the conviction on the counterfeit mark charges, the trial judge entered a conditional stay of the convictions on the identity documents charges. He imposed a global sentence of four months incarceration after credit for pre-trial custody, allocating four months to the counterfeit mark charges and 90 days concurrent to the cocaine charge, to be followed by two years probation. He also made certain ancillary orders. [10] Duty counsel advanced six grounds of appeal on behalf of the appellant, which are discussed below. The other grounds in the Notice of Appeal were not pursued. [11] The first four grounds raised by duty counsel revolve around the interrelated contentions that the trial judge allowed inadmissible evidence to be led of suspected drug dealing at the Cannon Street premises and of the appellant’s involvement in it, that he failed to instruct the jury about the use of evidence across counts, and that he failed to instruct the jury not to engage in propensity reasoning. We decline to give effect to these arguments. [12] The appellant was represented by counsel at trial. No objection was made to the evidence now characterized as inadmissible. [13] The trial judge did not ignore his gatekeeping role. Rather, he exercised it in light of the theories and positions taken by the parties. The trial judge, on his own, limited the narrative evidence of a police officer about the suspected drug dealing that was the backdrop to the search of the premises, noting that the validity of the warrant was not challenged. It was also the trial judge who voiced a concern, and invited a defence objection that he gave effect to, when an officer offered opinion evidence about whether trafficking was taking place at the premises. Although the appellant now argues that a caution to the jury should have been given, the trial judge’s intervention would have made the lack of relevance of those lines of questioning clear to the jury. Moreover, no caution or limiting instruction to the jury was requested during trial. The evidence about drug dealing was not referenced in the judge’s charge, and a limiting instruction about it would have required a repetition of the evidence which may have been contrary to the appellant’s interests: R. v. M.P. , 2018 ONCA 608, 363 C.C.C. (3d) 61 at para. 108. [14] Similarly, no request for a cross-count or propensity reasoning instruction was made, despite the evidence led by the Crown and counsel’s participation in a pre-charge conference. Nor was there any objection to the jury charge after its delivery. [15] While a cross-count or propensity instruction would have been appropriate, we do not view the failure to provide one in this case as a reversible error. In R. v. Beausoleil , 2011 ONCA 471, 277 C.C.C. (3d) 50, this court set out relevant considerations in determining whether such limiting instructions are required. These include the nature of the evidence, the issue to which the evidence is relevant, and the likelihood that an instruction would confuse the jury or draw attention to the discreditable conduct: at para. 20. The key question is whether the appellant was prejudiced by the absence of the instruction. [16] In our view, given the way the case was framed, the circumstances did not demand a cross-count instruction, nor was the appellant prejudiced by the absence of one. Importantly, the central evidence related to each count was the evidence that connected the appellant to the Cannon Street premises. This evidence was relevant to each count and was approached as such by both sides at trial. Although the jury was not told that guilt on one charge did not mean guilt on any other, the jury was told it needed to be satisfied on each count before convicting on that count. [17] A propensity reasoning instruction is given to address the risk that evidence of discreditable conduct (not forming the basis of the charge before the court) will be used by the jury to stigmatize the accused as a person of bad character and convict him on that basis, or in a manner that distracts them from the proper issues they are to consider. As noted, there was evidence that police suspicion of the appellant was the reason for surveillance of the Cannon Street premises, but that evidence was limited in scope including by rulings of the trial judge. The bulk of the evidence of the police officers dealt with what they observed during surveillance, what was found when the premises were searched, and the circumstances of the appellant’s arrest (away from the premises). These were relevant to the issues on the charges and were relied on by both sides. In this relatively brief trial with relatively focussed issues, the risks of moral or reasoning prejudice were not high. [18] The conclusion that the absence of a cross-count or propensity reasoning instruction did not prejudice the appellant is reinforced by the lack of request for such instructions and the lack of an objection to the charge at trial. Where the defence was  alerted to, and had a meaningful opportunity to raise such matters, but strategically chose not to, a complaint on appeal about missing instructions may be unavailing: R. v. Graham , 2015 ONCA 113, 330 O.A.C. 394 at para. 32. [19] Duty counsel’s other two grounds of appeal are that the convictions on the counterfeit mark charges were unreasonable, as the marks were not proven to be counterfeit, as opposed to being genuine but appearing on otherwise false documents. [20] We are satisfied that this argument was sufficiently referenced in the pre-charge conference to permit its consideration on appeal. [21] Section 376(2)(b) of the Code provides: Every one who, without lawful authority, (b) sells, or exposes for sale, or has in his possession a counterfeit mark, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [22] The Code defines “mark” to include the mark of a province of Canada. It is not disputed that the trillium logo on the driver’s licence and health cards fits that description. The Code does not define “counterfeit”. [23] In R. v. Sommani , 2007 BCCA 199, 218 C.C.C. (3d) 168, the court held that counterfeit marks are those that “falsely purported to be genuine official marks”: at para. 66. This statement was made in the context of a case where the accused had made false ID cards and argued (unsuccessfully) that the marks he had put on them did not look enough like the genuine government marks to be considered counterfeit versions. In R. v. Ariri , 2007 ONCJ 535, 75 W.C.B. (2d) 468, the accused possessed driver’s licences in other persons’ names that had been “illegally altered”. They were genuine cards but “with illicit photo and information substitutions”. It was held that “once the original photo was removed and a new one with new information substituted, the ‘mark’ or ‘design’ became a counterfeit”: at paras. 14, 48. [24] The appellant’s argument is that there was no evidence in this case as to how the licence or health cards came to be issued or appear as they did – that is, with the trillium logo, the appellant’s photograph, but a different name and birthdate(s). There was no evidence they were not issued by the government in that form. Put differently, there was no evidence that the government did not issue those cards at all (as in Sommani ), or that they were issued by the government and then altered after issuance (as in Ariri ). [25] Trial counsel raised this concern during the pre-charge conference. The trial judge noted that, “I don’t think that’s a necessity the Crown has to prove, quite frankly. The document speaks for itself…I don’t think you’re going to make a lot of headway in that regard”. Ultimately, despite the lack of evidence, the trial judge concluded that, “the cards had a counterfeit mark, I’m going to direct on that they find that.” He then instructed the jury that there was no issue that the identity cards bore a counterfeit mark. [26] It is unnecessary for us to decide the precise scope of the counterfeit mark offence in s. 376(2) of the Code to resolve this appeal. Even on the scope contended by the Crown before us, the trial judge erred in giving the direction that he did. The result is that the convictions on the counterfeit mark counts cannot stand. [27] The Crown concedes that for a mark on a government issued document to be counterfeit, the document on which it appears must at least have been altered in some way after the government issued the document and applied the mark. While there was no direct evidence of alteration, Crown counsel argues that the jury could compare the impugned driver’s licence and health cards to others legitimately issued to the appellant (which were also in evidence), and draw the conclusion that the impugned identity cards had been altered post-issuance. [28] Although there was evidence on which the jury could have made such a comparison, the trial judge took that issue away from the jury with his instruction to treat the marks as counterfeit. [29] Accordingly, the convictions on the counterfeit mark charges must be set aside. It follows that we must also set aside the conditional stay of the convictions on the identity documents charges. It was not argued, nor do we see any basis, why the net global sentence would be varied as a result of this change, other than to allocate the net term of four months incarceration to the identity documents charges. [30] Accordingly, the conviction appeal is allowed to the extent of setting aside the convictions on Counts 3 and 4 (the counterfeit mark charges). The conditional stay of the convictions on Counts 1 and 2 (the identity documents charges) is lifted. Leave to appeal sentence is granted, but the sentence appeal is dismissed, other than to vary it to provide that the sentence allocated to Counts 3 and 4 be allocated to Counts 1 and 2. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. Failure to comply (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Snache, 2021 ONCA 323 DATE: 20210513 DOCKET: M52434 Fairburn A.C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Justice Snache Applicant Jay Herbert, for the applicant Amy Alyea, for the respondent Heard: May 12, 2021 by video conference [1] A non-publication order under s. 517 of the Criminal Code , R.S.C. 1985, c. C-46, was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast, or transmission of any evidence taken, information given, representations made, and reasons given. [2] The decision in R. v. Snache , 2021 ONCA 323 , contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s website once the non-publication order ceases to be in effect. [4] In the interim, a copy of the full decision is available at the Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Steele, 2021 ONCA 186 DATE: 20210325 DOCKET: C67111 van Rensburg, Benotto and Thorburn JJ.A. BETWEEN Her Majesty the Queen Appellant and Thomas Steele Respondent John Patton, for the appellant Lindsay Board and Mark Halfyard, for the respondent [1] Heard: November 30, 2020 by video conference On appeal from the acquittals entered by Justice Edward J. Koke of the Superior Court of Justice on May 27, 2019, with reasons reported at 2019 ONSC 3207. Benotto J.A.: [1] This is a Crown appeal from acquittals. [2] The respondent, T.J., was charged with sexual assault against A.V. and two counts of breaching a recognizance. T.J. was 23 years old at the time of the alleged assault and A.V. was 18. The only issue at trial was consent. There were no witnesses to the alleged assault. Credibility was the main issue. [3] The Crown submits that the trial judge erred by: (i) excluding the complainant’s prior consistent statement; and (ii) improperly assessing the complainant’s credibility by relying on stereotypes about victims of sexual assault. [4] For the reasons that follow, I have concluded that the trial judge erred in law by relying on rape myths to assess the complainant’s credibility. It is therefore not necessary to address the other ground of appeal. Background [5] A.V. lived in the small town of Britt, Ontario, near Parry Sound. T.J. lived in Bracebridge, but his parents lived in Britt. In July 2018, T.J. went to Britt and asked his mother about meeting people his age. His mother told him about A.V. T.J. sent A.V. a friend request on Facebook, they exchanged messages and agreed to meet when he was in Britt. [6] They first met at a school yard. The next day they, together with a female friend of A.V.’s, went swimming at the local docks. While there, they drank alcohol. They then went to A.V.’s home, visited with A.V.’s parents and consumed more alcohol. They were both noticeably intoxicated when it was time for T.J. to go home. A.V. said she would walk him halfway. [7] Up until this point in the narrative the evidence of A.V. and T.J. was consistent. It then diverged. [8] A.V. testified as follows. During the walk, T.J. attempted to kiss her, but she pushed him away. Further along the walk, they came upon an abandoned trailer. T.J. suggested they go inside. When they entered the trailer, T.J. tried to kiss her, but she told him she just wanted to go home. T.J. then kissed her, came up behind her, grabbed both of her wrists and held them while pulling her shorts down. He then penetrated her vaginally and anally while she repeatedly asked him to stop and insisted that she wanted to go home. T.J. was bigger than she was, and she could not get away from him. T.J. called her a “bitch”, ordered her to “shut up”, and told her that he could provide for her and buy a house for her. [9] T.J. testified as follows. They shared a kiss on the walk, and A.V. did not resist or push him away. A.V. suggested they go inside the trailer. He was reluctant to go inside because it was someone else’s property. They kissed some more. Once inside the trailer, A.V. took off her clothes, he did the same and they then had vaginal and anal intercourse for about 30-40 minutes. They hugged goodbye before they separated. [10] A.V.’s parents started calling her because she was taking too long. She eventually responded and told her father that she was near the legion and would be home soon. Her mother testified that after the phone call it took A.V. longer to get home than it should have if she was at the legion. The trial judge’s credibility assessment [11] The trial judge concluded that both T.J. and A.V. were credible, but there were two areas of A.V.’s testimony that raised questions about her credibility: 1. A.V. could not provide a reason or explanation for her decision to enter the abandoned trailer. The trial judge said she could not have been motivated by curiosity because she had been inside the trailer previously and also noted that she did not say she was coerced into the trailer. The trial judge found that A.V.’s decision to walk T.J. part-way home and enter the trailer was inconsistent with her testimony that she did not like T.J. 2. There was inconsistency with respect to the phone call with A.V.’s parents. A.V.’s parents had been calling her to find out where she was because it was getting dark. When A.V. returned the call, she told her father she was close to home, by the legion. A.V.’s mother testified that it took quite a while for A.V. to get home even though the legion was only a few minutes from her home. The testimony of A.V.’s mother was consistent with T.J.’s testimony that A.V. talked to her father after they had engaged in sexual activity and then walked home, which was about a 20-minute walk. The trial judge found that this meant A.V. was not being candid with her father. The trial judge found that this was not “the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes.” [12] The trial judge relied on R. v. W.(D.) , [1991] 1 S.C.R. 742, and found that while he was not prepared to believe all of T.J.’s evidence, he was left with a reasonable doubt. The trial judge entered acquittals on all counts. Position of the parties [13] The Crown submits that it was an error for the trial judge to demand a reason for the complainant’s decision to go into the trailer. The Crown submits that A.V. did not have to advance a reason for going into the trailer because a location does not imply consent to sexual activity. The Crown submits that the fact that A.V. entered the trailer with T.J. is not inconsistent with her testimony that she did not like T.J. in a sexual way. The complainant explained her decision to walk T.J. home as being polite. The Crown submits that the entire topic of why A.V. went into the trailer was irrelevant to whether she consented to sexual contact with the respondent. As such, the trial judge erred in drawing an inference that the complainant wanted to have sex with T.J. based on her decision to enter the trailer. The Crown submits that this conclusion was based on stereotypical and myth-based reasoning. [14] The Crown submits that the trial judge also erred in finding that A.V.’s conversation with her father was not consistent with how someone who had been sexually assaulted would act. The trial judge’s comments amount to a direct violation of the fundamental legal principle that there is no inviolable way a victim of crime, in particular a victim of a sexual crime, may react. The Crown submits that any reaction to sexual violation, including selective or delayed disclosure, is personal and should have no bearing on whether a complainant should be believed. [15] The respondent submits that the trial judge did not demand a reason for entering the trailer. The trial judge concluded that A.V.’s decision to enter the trailer was inconsistent with her evidence that she did not like the respondent. The respondent submits that this was an appropriate and necessary line of reasoning as to credibility. [16] The respondent acknowledges that the trial judge’s language was not ideal with respect to the A.V.’s conversation with her father. However, the respondent submits that the trial judge’s finding was one that was available to him based on the larger context of the complainant’s evidence and considering the respondent’s contrary evidence. The respondent submits that the trial judge’s challenged remarks should not be viewed in isolation and relies on R. v. Morissey (1995), 97 C.C.C. (3d) 193, at p. 203, for the following: “[w]here a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application.” Analysis [17] The Crown’s right of appeal from acquittals is restricted to questions of law alone: s. 676(1)(a) of the Criminal Code . An assessment of the evidence on a wrong legal principle constitutes and error of law: R. v. J.M.H ., 2011 SCC 45, [2011] 3 S.C.R. 197, at para 29; R. v. Luceno , 2015 ONCA 759, 341 O.A.C. 223, at para. 34. Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: R. v. A.R.J.D. , 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. [18] R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 95, demonstrates that the law has been seeking to eradicate myths about the appropriate behaviour of victims of sexual assault for decades : Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. [19] The use of a common-sense approach to credibility assessment is fraught with danger for it can “mask reliance on stereotypical assumptions”: R. v. A.B.A. , 2019 ONCA 124, 145 O.R. (3d) 364, at para. 7. [20] Here, the trial judge applied irrelevant stereotypical views about the behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment. He did this twice: first when considering A.V.’s evidence about why she went into the trailer; second when discussing her call with her parents. A.V.’s reasons for entering the trailer: [21] The trial judge said this: A.V. was unable to provide the court with a reason or an explanation for her decision to enter the abandoned house trailer with T.J. She could not have been motivated by curiosity…she testified that she had been inside the trailer previously. Also, she did not suggest that she was “talked into” or in any way coerced into entering the trailer by T.J. In my view, A.V.’s decision to walk T.J. partway home, for no discernable reason, followed by her decision to enter the trailer with [him] especially at that late hour, is inconsistent with her testimony that she did not like T.J. Her refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility. [Emphasis added.] [22] Although the trial judge refers to the inconsistency in A.V.’s testimony – not liking T.J. but going into the trailer with him anyway – as part of his credibility assessment, inherent in the analysis is a stereotypical assumption. The implication in the trial judge’s reasons is that consent can be inferred from the complainant’s entry into the trailer. This is wrong in law. [23] In the emphasized text above, the trial judge went beyond assessing credibility and made an inference about consent because he could not imagine another reason to enter the trailer other than to have consensual sex. It was open to the trial judge to hold that the complainant’s inability to answer impacted her credibility, but he went further. In so doing, he relied on stereotypes and assumptions – that a woman would not enter a building at night with a man unless she wanted sex – to conclude that the complainant wanted to have sex. [24] It may be that a person’s reasons for entering a premise – whether a trailer or a hotel room – may have relevance to a credibility assessment. I recognize the subtlety. But stereotypical assumptions are often couched as credibility assessments. Significantly, this was not the trial judge’s only use of stereotypical reasoning. His use of the evidence concerning the phone call significantly crosses the line into impermissible reasoning and compounds my concern about his use of the complainant’s reasons for entering the trailer. A.V.’s communication with her parents [25] The evidence surrounding A.V.’s communication with her parents was imprecise at best. [26] A.V. testified that she texted her father that she would be home soon. She did not recall speaking to either parent but testified that she did not speak to either parent when she was in the trailer. [27] T.J. testified that they had sex for 30-40 minutes. He said that A.V. got a call and declined it, then she got another phone call and answered it. In chief he said, “I think it was her dad, and he said where are you, and she’s like I’m at the Legion, I’ll be home soon.” In cross-examination he said he was not sure if it was the father or the mother. [28] A.V.’s mother – who was not on the call – testified. The father did not. The mother said her husband was told that A.V. was close to the Legion and would be home in a few minutes. [29] The trial judge said this about A.V.’s communication with her parents: The second area of concern I have about A.V.’s testimony is in relation to her conversation with her father. A.V.’s mother testified that after noticing how dark it was becoming she called A.V. on her cell phone, but did not receive an answer. She then called 10 to 15 minutes later and again no answer. Later, her husband called A.V. and A.V. returned his call, informing him that she was close to home, by the legion and would be home shortly. Notwithstanding the fact that the legion was only a several minute walk from her home, her mother testified that it was “quite a while” before A.V. returned home. Her mother’s testimony with respect to the phone call is consistent with the evidence of T.J., who testified that after they had engaged in sexual activities for about 30-40 minutes A.V. received a call from her father and informed him that she would be home soon. Immediately thereafter, she put her clothes back on and started her walk home, which was about a 20 minute walk. If I accept her mother’s evidence about the phone calls, which I do, I can only come to the conclusion that A.V. was not being candid with her father when she informed him that she was close to the legion, only minutes away and would be home shortly. Given the time it would have taken her to walk home from the trailer, it would appear that she was still in the trailer when she spoke to her father, but for some reason she did not want him to know this. In my view, A.V.’s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes . It is more consistent with the response of someone who is attempting to conceal her activities and whereabouts from her parents. [Emphasis added.] [30] The comments emphasized above reflect the use of an impermissible assumption. [31] Relying on R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, the respondent submits that a complainant’s conduct after an alleged assault can be considered in the context of a particular set of facts. In Roth, the complainant testified that she was being assaulted by the accused when she realized that she left her phone in a taxi. The accused allowed her to call the taxi company and go to the door to get her phone provided that she say nothing about the assault. She testified that she answered the door, leaving it only partly open and remained inside fearing that the accused was nearby. Consequently, she said nothing to the taxi driver. The taxi driver testified that the complainant had come outside and closed the door behind her to keep her dogs from getting out. Under these circumstances, the court said at paras. 129-30: Let me pause here to note that the judge correctly rejected defence counsel’s improper suggestion, based on this evidence, that the “mere fact” the complainant did not say something about a sexual assault to the driver (or call the police), undermined her credibility on the issue of consent. It is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous “common sense” assumptions about how a sexual assault complainant is expected to act, including that they would immediately disclose the fact of an assault or seek assistance. However, this does not mean that the evidence surrounding the driver’s attendance at the home, including the complainant’s conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it. The risk of myths and stereotypes distorting a judge’s fact‑finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”. In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all. [Citations omitted.] [32] Roth is of no assistance here. There were no assumptions about the reason for the complainant’s conduct. There was no suggestion that the complainant was acting in an unexpected way for a victim of sexual assault. Rather, the complainant’s evidence that she did not ask the cab driver to call the police because she was afraid of the appellant was inconsistent with the cab driver’s evidence that she was outside of the house and the door to the house was closed. The distinction is significant. [33] Here the trial judge specifically found that A.V.’s conversation with her father “does not appear to be the response of someone who has just been sexually assaulted”. This is a classic example of an assumption made by a trial judge as to what a victim of an assault would do. Impact of the error [34] I do not agree with the respondent that regardless of the trial judge’s misuse of stereotypes, ultimately his W.(D.) analysis resolved the case. The respondent points to para. 77, where the trial judge states: In this case I find that both T.J. and A.V. generally presented as credible witnesses, notwithstanding the fact that A.V.'s evidence raised some questions and concerns in my mind… In the circumstances, although I am not prepared to find that I believe all of the evidence of T.J., his evidence does leave me with a reasonable doubt, and in the circumstances, I must acquit him. [35] The trial judge’s articulation of A.V.’s failure to explain her decision to enter the trailer and his description of her communication to her father, were based on the legally impermissible assumptions that: (i) by going into the trailer A.V. must have consented to sex; and (ii) A.V. did not disclose to her father because she had consented. The compounding effect of these two references defeats the respondent’s reliance on Morissey. [36] I now turn to remedy. [37] To overturn an acquittal, the Crown must show, to a reasonable degree of certainty, that the verdict might have been different had the error not been made: Vézeau v. The Queen , [1977] 2 S.C.R. 277, at p. 282; R. v. MacKenzie , [1993] 1 S.C.R. 212, at pp. 247-48. [38] As this court said in R. v. A.B.A. , 2019 ONCA 124, 145 O.R. (3d) 634, at para. 15: The Crown does not have to establish that the verdict would necessarily have been different. In R. v. Graveline , 2000 SCC 16, [2006] 1 S.C.R. 609, at para. 14, Fish J. for the majority held that the Crown must establish that the errors “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”, and elaborated as follows: It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different. [39] The respondent submits that any alleged error is immaterial because there was an independent pathway to acquittal – the trial judge was left in doubt by the respondent’s evidence. Therefore, on the W. (D.) analysis, T.J. would have been acquitted. I do not agree that the issue of materiality can be so easily solved. [40] The only issue before the trial judge was credibility. The result turned on his weighing the evidence of the complainant and the respondent. The evidence of the complainant was considered in relation to the respondent and assumptions were made as to her consent. For example: T.J. testified that A.V. initiated the visit to the trailer. The trial judge said that his evidence suggests that she intentionally chose the privacy of the trailer to engage in sex with him before returning home. [41] Had the trial judge not made the errors that he did in assessing A.V.’s credibility, he might have come to a different conclusion with respect to T.J.’s credibility and may not have been left with a reasonable doubt as to the respondent’s guilt. [42] The trial judge assessed the complainant’s credibility by applying stereotypical views about how victims of sexual assault would behave. The reasonable doubt that he found in the respondent’s evidence was inextricably linked to his credibility assessment of A.V. This assessment was fundamentally flawed. [43] I am satisfied that the errors had a material bearing on the acquittals. [44] I have read my colleague's concurring reasons. I agree with her articulation of the error of the trial judge in refusing to admit the evidence of the complainant's call with C.D. In my view this error exacerbates his improper use of the stereotypical reasoning I have described. [45] I would allow the appeal and order a new trial. “M.L. Benotto J.A.” “I agree Thorburn J.A.” van Rensburg J.A. (Concurring): [46] I have read my colleague’s reasons for allowing the Crown’s appeal in this case. I agree that the appeal should be allowed, however, I reach this result for different reasons. [47] The Crown raised two issues on appeal, having to do with: (1) the trial judge’s reliance on prohibited stereotypical reasoning in two areas of the complainant’s testimony; and (2) his refusal to admit evidence of the complainant’s prior consistent statements. Both errors are said to have affected the trial judge’s assessment of the complainant’s credibility in a fundamental way, such that the Crown would meet its heavy burden of showing that there is a reasonable possibility that, if the errors had not been made, the verdict would have been different. [48] As I will explain, I disagree with my colleague that the trial judge relied on stereotypical assumptions about how victims of sexual assault behave in his treatment of A.V.’s evidence about why she entered the trailer, where the alleged sexual assault occurred. I do however agree that the trial judge crossed the line into impermissible stereotypical reasoning in his treatment of A.V.’s lie about her whereabouts in her conversation with her father. Because in my view this error standing alone would not be sufficient to undermine the trial judge’s assessment of the complainant’s credibility, I find it necessary to also address the Crown’s second ground of appeal: that the trial judge erred in refusing to admit evidence of the complainant’s call with C.D. [49] In my view the trial judge erred when he considered only whether A.V.’s prior consistent statement to C.D. was admissible to rebut an allegation of recent fabrication, and he did not address the Crown’s argument that the evidence of the call should be admitted as “narrative as circumstantial evidence” to assist in the assessment of the complainant’s credibility. Nor did the trial judge consider the admissibility of the evidence of A.V.’s emotional state when she made the call. [50] I am satisfied that, when these legal errors are considered together, the Crown has met its burden to satisfy this court that the errors “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: see R. v. Graveline , 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. [51] I will begin my concurring reasons by discussing the trial judge’s alleged reliance on impermissible myths and stereotypes, explaining where my views differ from those of my colleague. Then, I will address the trial judge’s decision not to admit the evidence of A.V.’s conversation with C.D. I will conclude by explaining why the errors in this case are sufficient to warrant allowing the Crown’s appeal, setting aside the acquittals, and directing a new trial. (1) The Trial Judge’s Alleged Reliance on Impermissible Myths and Stereotypes [52] This case highlights the challenge that appellate courts can face in distinguishing between prohibited lines of reasoning and reasonable, context-specific inferences drawn by a trial judge in assessing credibility in sexual assault cases. I begin with a summary of the principles that in my view inform the consideration of this ground of appeal. [53] The point of departure is that evidence of the surrounding circumstances, including the complainant’s conduct, leading up to, during, and after an alleged sexual assault can be relevant to the determination of whether or not a complainant consented. Because consent, which is part of the actus reus of the offence, is subjective, the court must determine the complainant’s state of mind at the time of the sexual activity. Although the complainant’s testimony is typically the only direct evidence regarding her subjective state of mind, “credibility must still be assessed by the trial judge, or jury, in light of all of the evidence”: see R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 29. As the majority of the Supreme Court observed, in defending a sexual assault allegation, “[i]t is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place”: at para. 29. The trial judge will consider “whether the totality of the complainant’s conduct is consistent with her claim of non-consent”: at para. 30. [54] Accordingly, it is appropriate and necessary for the trier of fact to consider the circumstances surrounding the alleged sexual assault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to and following the incident. Circumstantial evidence can assist the defence in raising a reasonable doubt on the issue of consent; it can also assist the Crown in proving non-consent: see Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at pp. 328-29 . [55] It is however an error for the trier of fact to rely on erroneous myths and stereotypes about how a sexual assault complainant is expected to act. “It is impermissible to assess a complainant’s credibility by looking at consistencies or inconsistencies grounded in a search for ‘expected’ post-sexual assault behaviour”: R. v. A.R.D. , 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 64, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. Triers of fact may rely on “reason and common sense”, “life experience” and “logic” in making assessments of credibility; however, they fall into error if they rely on prejudicial or stereotypical reasoning in making such assessments: see R. v. Delmas , 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371. [56] The concern arises when the trier of fact draws inferences based on generalizations about human behaviour; it is in this process that drawing a common-sense inference may mask stereotypical or discriminatory reasoning: see A.R.D. , at paras. 6-7; R. v. A.B.A. , 2019 ONCA 124, 145 O.R. (3d) 634, at para. 7; and R. v. Cepic , 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 13. Stereotypical reasoning is a substitute for reasoning that is grounded in the evidence: see R. v. Mann , 2020 BCCA 353, at paras. 64, 70-72. See also R. v. Quartey , 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687. [57] It is a fact-finder’s reliance on myths and stereotypes as part of the credibility assessment that is objectionable, and not the consideration of evidence of the complainant’s conduct itself. A trial judge is entitled to draw reasonable inferences which are rooted in the evidence to assess the complainant’s conduct as part of the credibility analysis. In R. v. Roth , 2020 BCCA 240, 66 C.R. (7th) 107, after noting that it is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous “common sense” assumptions about how a sexual assault complainant is expected to act, DeWitt-Van Oosten J.A. observed at para. 130: The risk of myths and stereotypes distorting a judge’s fact-finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”. In my view, what A.R.D . and like cases warn against is the improper use of this type of evidence, not any use at all . [Emphasis added; citations omitted.] [58] It can be difficult on appeal to determine whether a trial judge crossed the line from drawing legitimate inferences from circumstantial evidence to reliance on stereotypical reasoning. See, for example, the majority and dissenting reasons in the Alberta Court of Appeal and the Supreme Court in Delmas about whether the trial judge relied on myths and stereotypes in his assessment of the evidence of the appellant who was convicted of sexual assault. As Pepall J.A. observed in R. v. Lacombe , 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 55, express identification by the trial judge of the impugned assumptions is unnecessary; a review of the trial judge’s reasons may demonstrate that impermissible stereotypical sexual and myth-based reasoning was employed in assessing a complainant’s credibility and reliability. Trial judges may rely on stereotypical reasoning, even where they have instructed themselves appropriately to avoid such reasoning: see e.g. A.B.A. , at para. 8. In determining the issue, the trial judge’s reasoning must be taken as a whole and viewed in context: see Mann , at para. 72. [59] It is helpful in conducting the analysis of whether impermissible reasoning has occurred to specifically identify the myth or stereotype that the trial judge is said to have relied on. A non-exhaustive list of common myths and stereotypes about victims and perpetrators of sexual assault is set out in R. v. Seaboyer ; R. v. Gayme , [1991] 2 S.C.R. 577, at pp. 651-54. The central issue is to determine whether the trier of fact has drawn inferences that are rooted in the particular facts of the case and supported by the evidence or has drawn inferences based on generalizations about human behaviour that on closer examination reveal stereotypical reasoning. [60] I turn now to address the two areas where the trial judge is alleged to have relied on impermissible myths and stereotypes in his assessment of the complainant’s credibility. The first has to do with the evidence about the entry of A.V. and the respondent T.J. into the abandoned trailer where the sexual contact took place. The second is said to arise in the trial judge’s treatment of the complainant’s lie in a conversation with her father. (a) A.V.’s Reasons for Entering the Trailer [61] The Crown argued, and my colleague agrees, that inherent in the trial judge’s analysis is a stereotypical assumption that consent could be inferred from A.V.’s entry into the trailer, and that the trial judge went beyond assessing credibility and drew an inference about consent because he could not imagine that a woman would enter a building at night with a man unless she wanted to have sex. [62] I disagree. In my view the trial judge’s treatment of the evidence about why A.V. and the respondent entered the trailer was a proper, and in the circumstances of this case necessary, part of his overall assessment of the evidence. The trailer was where the sexual contact took place and the evidence of A.V. and T.J. about what happened before, during, and after they entered the trailer was relevant to the issue of consent. [63] A.V. testified that she had no problem when her mother refused her request that the respondent sleep over because she did not want T.J. at her home in the first place, he was loud and obnoxious, she was pretty sure he had asked her father for marijuana, and he was giving her “weird vibes”. She explained that she had offered to walk the respondent partway home because she did not want to be rude, and that they left the house around 8:00 p.m. A.V. testified that T.J. tried to kiss her as they were walking past the Legion (about a minute away from her house), and she had pushed him away. [64] A.V. testified that when they were about 20 minutes away from her house, they came upon a trailer that was about 20 feet off the road in a field. She knew the trailer had been abandoned for years and she had been in it before. When asked whose idea it was to go to the trailer, A.V. responded that it was T.J.’s idea. She added however that she “walked to the trailer willingly” (in contrast to the police statement put to her in cross-examination, in which she said she had been taken or brought to the trailer). When the Crown asked why she walked to the trailer A.V. replied, “I do not know … We just kind of walked there”. She was asked what her thoughts were when T.J. asked her about the trailer before they entered it. She responded, “I didn’t think anything of it at all”. Under cross-examination A.V. reiterated her response about why she thought she would be entering the trailer, “[n]othing, there was no thought about it”. When asked what she was expecting to do in the trailer, she said: “Nothing, we were just looking around”. [65] T.J.’s evidence was that he and A.V. had shared a kiss by the Legion and that it was mutual, that it was A.V. who suggested they go inside the trailer, and that they had kissed for a while on the road in front of the trailer before entering it. [66] The Crown points to para. 70 of the reasons for judgment as revealing reliance on impermissible myths and stereotypes where the trial judge stated: In my view, A.V.’s decision to walk T.J. partway home, for no discernable reason, followed by her decision to enter the trailer with [T.J.], especially at that late hour, is inconsistent with her testimony that she did not like T.J. Her refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility. [Emphasis added.] [67] The Crown’s first argument about this passage is that the trial judge erred in demanding a reason from A.V. for why she entered the trailer when no explanation was required. The Crown submits that “the entire topic” of why A.V. entered the trailer was irrelevant. I disagree. “Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible”: Roth , at para. 131, citing Dufraimont, at p. 353; R. v. Cooke , 2020 NSCA 66, at para. 29. In the circumstances of this case what was in A.V.’s mind when she entered the trailer – which is where the alleged sexual assault took place – was something that was appropriate for the trial judge to consider. [68] The Crown also contends that the trial judge’s reference to A.V. not providing a reason for entering the trailer demonstrates a reliance on the assumption or myth that a woman would not enter a building at night with a man unless she wanted sex to then conclude that A.V. consented to the sex. [69] I do not read the trial judge’s reasons in this way. In my view the trial judge was properly assessing A.V.’s testimony that she did not like T.J. and was only walking him partway home to be polite against the fact that she had gone into the trailer with him at a late hour “for no reason” when she was expected home. In para. 69 of his reasons the trial judge referred to A.V.’s testimony that she had no problem with her mother’s refusal to permit T.J. to spend the night because she did not want him at her home that evening in the first place, that she did not like the way he talked to her parents, that he was loud and obnoxious, and that she was pretty sure that he asked her dad for pot. It was in the context of his assessment of this evidence that the trial judge stated that the complainant “was unable to provide the court with a reason or an explanation for her decision to enter the abandoned house trailer with T.J.” He had observed that A.V. could not have been motivated by curiosity, as she had testified that she had been inside the trailer previously, and that “she did not suggest that she was ‘talked into’ or in any way coerced into entering the trailer”. [70] After concluding that A.V.’s decision to walk T.J. partway home followed by her decision to enter the trailer with him, especially at that late hour, was “inconsistent with her testimony that she did not like T.J.”, the trial judge fairly commented that A.V.’s “refusal or inability to provide the court with a reason for entering the trailer with T.J. detracts from her credibility.” This final comment about A.V.’s credibility, when read in context, does not imply that consent could be inferred from her entry into the trailer. As my colleague acknowledges, “[i]t was open to the trial judge to hold that the complainant’s inability to answer impacted her credibility.” The trial judge’s statement about A.V.’s credibility was rooted in the evidence and did not invoke stereotypical assumptions. [71] I therefore disagree with my colleague’s conclusion that the trial judge invoked impermissible myths and stereotypes in his analysis to infer consent from A.V.’s entry into the trailer based on assumptions that a woman would not enter a building at night with a man unless she wanted sex. (b) A.V.’s Communication with Her Parents [72] The second area of concern about A.V.’s evidence identified by the trial judge is in relation to her having told her father she was at the Legion and would be home soon, when she was still in the trailer with the respondent. In asserting that the trial judge improperly relied on stereotypical myths, the Crown focusses on the statement in the trial judge’s reasons that “A.V.’s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes.” The Crown asserts that the trial judge improperly compared the complainant to a “typical” sexual assault victim who would have told her father the truth about her whereabouts. [73] I begin by observing that while this statement considered in isolation may suggest that there was stereotypical reasoning (because it compares the complainant with “someone who has just been sexually assaulted”) the statement must be considered in context to determine whether, as the respondent submits, this was simply an unfortunate choice of words in circumstances where the trial judge was properly considering a possible lie and inconsistency in assessing the complainant’s credibility. [74] The evidence about A.V.’s communications with her parents while she was in the trailer was inconsistent and somewhat confusing. [75] A.V. testified that at the relevant time, in terms of outgoing communications, she could only send messages by text on her cell phone; and that, although she could receive calls, she could not make an outgoing call except by using her data. In her evidence-in-chief A.V. did not mention any text messages or calls with her parents. Under cross-examination A.V. said that, not long after she and the respondent got to the trailer, her parents started calling her. She testified that she thought she had responded to the first call with a text to her father saying that she would be home soon. She testified that her parents had called back 15 or 20 minutes later, but she could not remember speaking to her mother before she got home that night. In re-examination A.V. testified that her mother had called before she was assaulted, while she was in the bedroom of the trailer, and that she had ignored the call. She testified that she did not remember her mother calling and telling her mother that she was near the Legion and would be home shortly, and she denied having spoken to her parents while she was in the trailer. [76] A.V.’s mother testified that, after noticing how dark it was, she made two calls to her daughter, receiving no answer, and that later A.V. had returned a call from her father in which she told him she was “close to the Legion and she'll be home in a few minutes”. It was however “a while after she’d made the call” before A.V. got home. [77] The trial judge noted that the mother’s testimony with respect to the call was consistent with the respondent’s evidence – he testified that A.V. received a call from her father while they were in the trailer, that she had responded that she would be home soon, and that she immediately got dressed and left the trailer. [78] It would have been appropriate for the trial judge to consider the evidence about the calls in assessing A.V.’s credibility – for example, in determining whether the timing of the calls and A.V.’s response were consistent with her narrative of how the sexual assault had unfolded. In assessing the evidence of the text messages and calls and its impact on A.V.’s credibility however the trial judge focussed only on the fact that during a call (that A.V. did not remember), she had lied to her father. His conclusion about how this affected the complainant’s credibility is stated at para. 74 of his reasons: In my view, A.V.’s response to her father does not appear to be the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes. It is more consistent with the response of someone who is attempting to conceal her activities and whereabouts from her parents. [79] The problem with the trial judge’s reasoning is that there was no evidentiary foundation for any inference or conclusion to be drawn about the credibility of the complainant’s assertion that she had been sexually assaulted based on the lie she told her father. She was not questioned about why she might have lied, because she did not remember the call, and she denied having talked to her parents when she was in the trailer. The trial judge appears to have assumed, based on a hypothetical victim of a sexual assault who was kept in the trailer, that the complainant would have told her father the truth if she had been sexually assaulted. He compared A.V.’s lie with what he would have expected a victim of sexual assault to have done. However, there was nothing in the evidence to support the conclusion that A.V. would have told her parents the truth about her whereabouts if she had been sexually assaulted. Lying to her father about her whereabouts, and not telling her parents she was at the trailer, was equally consistent with non-consensual as consensual sex. [80] For these reasons, while I do not agree with my colleague that the trial judge engaged in stereotypical reasoning in relation to the evidence about why the complainant entered the trailer, I agree that he engaged in such prohibited reasoning in his analysis of the evidence concerning the complainant’s call with her father. I turn to consider the second ground of appeal: that the trial judge erred in excluding evidence of the complainant’s prior consistent statements. (2) The Trial Judge’s Exclusion of A.V.’s Prior Consistent Statements [81] The Crown contends that the trial judge misapprehended and misapplied the law in deciding that A.V.’s prior consistent statements were inadmissible. [82] A.V. testified that after leaving the trailer she had immediately called her best friend C.D. through her data, that she told C.D. what happened, and that C.D., who had to go to work the next day, told her to go to the police. C.D. testified that she received a call from A.V. the night of the alleged assault in which A.V. said that T.J. raped her. C.D. testified that A.V. was clearly upset and crying very hard, and she had the impression A.V. was “pretty intoxicated”. [83] A.V. also testified that she had texted her sister and her ex-boyfriend on the way home, that both had called her back, and that she had told them what had taken place. She also stated that after she returned home, she had talked to her neighbour and had told him what had happened. There was no other evidence at trial about these calls or conversations, and the sister, ex-boyfriend, and neighbour were not called as witnesses at the trial. [84] At trial Crown counsel argued that the court should consider the evidence of C.D., which included the fact of the telephone call and its timing, the substance of what A.V. said, and the complainant’s demeanour during the call. The Crown argued that A.V.’s statements to C.D. were admissible to rebut an allegation of recent fabrication. The Crown also relied on the narrative as circumstantial evidence exception recognized in R. v. Khan , 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139 to argue that the trial judge could use the statement as context and background to assist in his assessment of the complainant’s credibility. Finally, the Crown argued that C.D.’s evidence about A.V.’s emotional state so close in time to the incident was “very probative” evidence. [85] On appeal Crown counsel makes two arguments. First, he submits that the trial judge erred in failing to determine the admissibility of all of the complainant’s prior consistent statements, which included A.V.’s evidence that she had called her ex-boyfriend and her sister and had told them she had been raped, and that she had spoken with her neighbour after she got home. The trial judge addressed only the admissibility of A.V.’s prior consistent statement to C.D. in his reasons for judgment, when he should have considered all of A.V.’s prior consistent statements which demonstrated a “nuanced disclosure pattern”. [86] Second, Crown counsel submits that the trial judge erred in considering the admissibility of C.D.’s evidence only as evidence to rebut recent fabrication, and that he failed to consider the other viable ground argued by the Crown – that the evidence should be admitted under the “narrative as circumstantial evidence” exception. In addition, the trial judge failed to consider the evidence that C.D. provided of the complainant’s emotional state during the call, which occurred just after she left the trailer. [87] The respondent asserts that the trial judge addressed and properly rejected both grounds for the admission of C.D.’s evidence, and that he may well have considered the post-offence demeanour evidence that the complainant was crying and upset when she called C.D. in his assessment of the complainant’s credibility, giving it the weight it deserved. [88] I would not give effect to the Crown’s argument that the trial judge erred in failing to consider the admissibility of the evidence of prior consistent statements made by A.V. to her sister, former boyfriend, and neighbour. The trial judge did not rule on the admissibility of this evidence because he was not invited to do so, nor did the Crown at trial make an argument about the complainant’s disclosure pattern. The Crown’s submissions at trial on prior consistent statements were all directed to the evidence of C.D. Since the statements to the sister, former boyfriend and neighbour were presumptively inadmissible, and the Crown did not argue for their admissibility for any purpose – whether to show a “nuanced disclosure pattern” or at all – the trial judge cannot be faulted for failing to address the admissibility of the complainant’s prior consistent statements other than those made to C.D. [89] I do however agree with the Crown that the trial judge erred in failing to consider the admissibility of C.D.’s evidence about the conversation with A.V. under the narrative as circumstantial evidence exception and as post-event demeanour evidence. Contrary to the respondent’s submission, the trial judge’s reasons cannot be read as having addressed these bases for admission of the evidence. The trial judge referred only to the Crown’s submissions on rebutting an allegation of recent fabrication and his reasons only respond to that argument. [90] The trial judge stated at paras. 61 and 62 of his reasons: The Crown submits that the statements to C.D. should be admitted on the basis that their admission is intended to rebut a suggestion by the defence of a recent fabrication. In my view, the statements to C.D. should be excluded. A.V. testified that on the way to her home from the trailer she spoke by telephone not only to C.D., but also to her sister and to a former boyfriend. She confirmed that she told all of them that she had been “raped”. I find that A.V.’s statements that she was the victim of a sexual assault was consistent from the time of the trailer incident and thereafter, and that there is no evidence of recent fabrication. In the circumstances I cannot accept as evidence her statements to C.D. that she was raped as proof of their contents. Also, I cannot accept her statements to C.D. as evidence in support of her credibility. As was noted by the Court in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”. [91] It is apparent from this passage that the trial judge only considered the admissibility of the statements to C.D. as evidence to rebut an assertion of recent fabrication. He concluded, correctly in my view, that such use could not be made because there was no recent fabrication. Defence counsel had suggested that the complainant’s motives to fabricate (to protect her reputation and in the hope of getting back together with her ex-boyfriend) occurred immediately, and before she spoke to C.D. The trial judge concluded that in the circumstances he could not accept the complainant’s statements for the proof of their contents (I note that the Crown did not seek to admit the statements for their truth) or in support of her credibility. The trial judge concluded with the quotation from Divitaris , suggesting that his focus was on preventing the improper use of a prior consistent statement – as enhancing credibility by mere repetition. [92] The trial judge did not however refer to or address the Crown’s argument that C.D.’s evidence, including the prior consistent statements made by A.V., were admissible as circumstantial narrative for the limited purpose of assisting with the assessment of the credibility of the complainant. [93] The narrative as circumstantial evidence exception was explained by Hourigan J.A. in Khan , at paras. 31-34. It applies when there is something in the circumstances of the making of the statement that can assist in the assessment of the credibility or reliability of the witness’s in-court claims: see Khan , at para. 31; David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 Can. Crim. L. Rev. 181, at p. 199. If admitted, the evidence can be used to assess a complainant’s credibility, but not for the prohibited inference that consistency enhances credibility or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony. “The probative value of the statement lies in the inferences that can be drawn from the timing and circumstances of the statement, rather than the simple fact that the complainant has said the same thing before”: R. v. M. E-H. , 2015 BCCA 54, 319 C.C.C. (3d) 352, at para. 46. In the circumstances of this case, the trial judge ought to have considered whether the evidence as to the timing of A.V.’s call to C.D. and A.V.’s emotional state during the call were admissible under the narrative as circumstantial evidence exception, and then, if admitted, evaluated the weight of such evidence and its effect on his assessment of A.V.’s credibility. [94] Post-event demeanour evidence of a sexual assault complainant can serve as circumstantial evidence to corroborate the complainant’s testimony: see R. v. Mugabo , 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25; Murphy v. The Queen , [1977] 2 S.C.R. 603, at pp. 612, 616. C.D.’s evidence about how A.V. sounded during the call, if accepted, may have served to corroborate the complainant’s evidence that she had not consented to the sexual contact in the trailer. Contrary to the respondent’s submissions, I see nothing in the trial judge’s reasons to suggest that he considered and rejected or discounted such evidence. Indeed, he concluded at para. 77 that there was “an absence of available corroborating evidence to support the testimony of either [the complainant or the respondent]”. [95] In my view, the trial judge erred when he applied too narrow a test in determining the admissibility of C.D.’s evidence and A.V.’s prior consistent statement to C.D. If he had considered the relevant permissible uses of C.D.’s evidence, he may have concluded that C.D.’s evidence was admissible, not for the truth of the contents of the prior consistent statement made by A.V., but as relevant circumstantial evidence to assist in his assessment of A.V.’s credibility. (3) Do the Trial Judge’s Errors Meet the Threshold for a New Trial? [96] In an appeal from an acquittal, to obtain a new trial, the Crown must demonstrate that the error might reasonably be thought to have had a material bearing on the acquittal, or in other words, that had the error not been made, the verdict might have been different: see Graveline , at paras. 14-17; R. v. Barton , 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 160; and R. v. MacKenzie , [1993] 1 S.C.R. 212, at pp. 247-48. [97] The respondent argues that, even if the trial judge made the errors alleged by the Crown, the verdict would have been the same. According to the respondent, the errors can only be relevant to the trial judge’s assessment of the credibility of the complainant, however, the trial judge stated that he found both A.V. and T.J. to be credible and that he decided the case based on the second branch of W.(D.) ( R. v. W.(D.) , [1991] 1 S.C.R. 742). [98] The trial judge stated at para. 77: In this case I find that both T.J. and A.V. generally presented as credible witnesses, notwithstanding the fact that A.V.’s evidence raised some questions and concerns in my mind. Also, there is an absence of available corroborating evidence to support the testimony of either of them. In the circumstances, although I am not prepared to find that I believe all of the evidence of T.J., his evidence does leave me with a reasonable doubt, and in the circumstances I must acquit him. [99] In A.B.A. , this court allowed a Crown appeal from acquittal in a sexual assault case where the trial judge had relied on impermissible myths and stereotypes in her assessment of the complainant’s credibility, notwithstanding that the trial judge acquitted the respondent based on the first prong of W.(D.). Pardu J.A. noted that the trial judge “gave several reasons for believing [the respondent] which were independent of her assessment of the complainant’s testimony”, however, she also noted that the trial judge’s assessment of the complainant’s credibility played a prominent role in her determination of whether to believe the respondent. [100] Similarly, in the present case, although the trial judge acquitted the respondent based on the second branch of W.(D.) , this does not mean that his assessment of the complainant’s credibility had no bearing on his reasoning. To the contrary, the trial judge did not explain why the respondent’s evidence raised a reasonable doubt, nor had he specifically addressed the respondent’s credibility earlier in his reasons, apart from a general observation that both the complainant and the respondent had given testimony in a calm manner with few inconsistencies and that the essence of their testimony remained unchanged despite rigorous cross-examination. He had however discussed two areas of A.V.’s testimony which raised questions about her credibility. He referred to these “questions and concerns” when coming to his conclusion on the verdict. [101] And, as I have already noted, the trial judge pointed to the absence of corroborating evidence. C.D.’s evidence, if admitted, could have been considered as circumstantial evidence of A.V.’s mental state after the sexual contact, and supportive of her testimony that she had been sexually assaulted. This could have been a factor in assessing A.V.’s credibility, especially on the issue of consent, that could have helped the trial judge to resolve conflicting evidence and not be left with a reasonable doubt by the respondent’s evidence. (4) Conclusion [102] In my view the combination of the trial judge’s improper reliance on myths and stereotypes in assessing the evidence of A.V.’s conversation with her father and his failure to consider the admissibility of the evidence of C.D. as circumstantial narrative constituted legal error in the assessment of the complainant’s credibility that, “in the concrete reality of” this case, had a material bearing on the acquittals, such that the Crown’s appeal should be allowed. Released: March 25, 2021  “KMvR” “K. van Rensburg J.A.” [1] Mr. Halfyard was appointed by MacPherson J.A. to act as amicus. Prior to the hearing, he advised the court that the appellant was content that he represent him and did not wish to attend the appeal.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Stennett, 2021 ONCA 258 DATE: 20210426 DOCKET: C65598 Fairburn A.C.J.O., Watt and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Lerrell Stennett Appellant Paul J.I. Alexander, for the appellant Eric W.G. Taylor, for the respondent Heard: October 16, 2020 by video conference On appeal from the conviction entered on April 19, 2018, and the sentence imposed on July 11, 2018, by Justice Joseph F. Kenkel of the Ontario Court of Justice. Watt J.A.: [1] On a wet highway, a driver lost control of his vehicle. The vehicle began to rotate, struck a curb and left the roadway. [2] After the vehicle left the roadway, it sheared off two light standards and continued on to the lot of a used car dealership. There, it hit a parked pickup truck. The force of the collision drove the pickup truck into another vehicle. Then another. And another. And another. [3] The vehicle returned to the road surface. Three people were inside. The driver. A front seat passenger. A rear seat passenger. The driver and front seat passenger suffered serious injuries. The front seat passenger’s injuries were life-threatening. Fortunately, she survived. [4] Lerrell Stennett (the appellant) was the driver of the vehicle. [5] A judge of the Ontario Court of Justice found the appellant guilty of counts of dangerous operation and impaired operation of a motor vehicle causing bodily harm. [6] The appellant appeals his conviction and one ancillary order included as part of his sentence. [7] In the reasons that follow, I explain why I would dismiss the appeals from conviction and set aside the victim surcharge included as part of the sentence imposed. The Background Facts [8] The trial proceedings consisted of a blended voir dire to determine the admissibility of an interview of the appellant by investigating officers; an Agreed Statement of Facts (“ASF”), which included a Collision Reconstruction Report and a Toxicology Letter of Opinion by qualified experts in each field; and the viva voce evidence of a qualified forensic toxicologist. The appellant did not testify or otherwise adduce evidence. [9] In large measure, the circumstances underlying the offences with which the appellant was charged are uncontroversial. Their brief recital affords a sufficient frame for the decision that follows. The Nightclub [10] On the evening before the accident, the appellant drove to a birthday party for one of his brothers at a nightclub. He drove there in a rear-wheel drive Jaguar owned by another of his brothers. He had driven the car previously. [11] The appellant had arranged for bottle service at the nightclub. This included a 1.5-litre bottle of vodka. The appellant did not plan to drink at the nightclub, but rather, as he explained to police when interviewed, he planned to get “lit” later. However, he acknowledged having had two shots, which he considered would have resulted in an “alert” reading if tested on an alcohol screening device. The Departure [12] As the birthday celebration came to a close, the appellant left the club with two others. One sat in the front passenger seat, the other in the rear passenger seat. The appellant was the driver. [13] The group stopped at a McDonald’s restaurant where one of the members got some water. The Accident Scene [14] The accident occurred on a straight level stretch of Highway 7 at about four o’clock one mid-August morning. The road surface was paved with two lanes running in each east-west direction. There was no median or other obstruction on the road surface. The posted speed limit was 60 km/h. [15] The road surface was wet at the time of the accident. The Accident [16] According to the collision reconstructionist, the accident occurred when the appellant was driving west on Highway 7. The Jaguar rotated clockwise with its centre mass continuing in a westerly direction, but its front facing north. The rear tire on the passenger side struck the curb. The vehicle left the travelled surface of the highway and sheared off two light standards as it continued towards several vehicles parked on a used car lot. [17] The driver’s side of the appellant’s vehicle struck a truck parked on the used car lot on the north side of the highway. The force of the impact pushed the pickup truck into an adjacent vehicle parked in a line with several others. Four vehicles in this line were damaged in the chain reaction that followed. [18] The Jaguar continued to rotate clockwise after the chain reaction collisions in the used car lot. The vehicle continued south off the shoulder of the road until it finally came to rest in the westbound lanes of Highway 7, its original direction of travel. The Vehicle [19] A post-accident examination of the Jaguar disclosed no pre-existing defect in its operating system or fittings. There was extensive damage to the driver’s side of the car. The front wheel was detached from the axle. The rear driver’s door was no longer attached. There was a cylindrical dent in the roof above the door. The driver’s airbag had deployed. Both front and side windows on the driver’s side had shattered. The Speed of the Vehicle [20] The Jaguar was not equipped with an Event Data Recorder (“EDR”). As a result, there was no record of any pre-accident information such as the speed of the vehicle before, at the time and after the various collisions. The vehicles parked on the used car lot and struck by the Jaguar or each other in the chain reaction that followed were not powered, thus their EDRs did not record any events in which they were involved. The collision reconstructionist was unable to calculate the pre-collision speed of the Jaguar. [21] In his report, the collision reconstructionist wrote that wet roads can reduce the dynamic friction between the tire on a vehicle and the surface of the road. This can contribute to a loss of control if a vehicle is travelling at a speed that exceeds the available friction. Other factors that can contribute to a loss of control on wet conditions include steering input, a curve in the road, abrupt acceleration and braking. The reconstructionist was unable to determine which, if any, of these factors may have caused the Jaguar to enter a rotation. The Toxicology [22] The accident occurred between 4:00 and 4:09 a.m. on August 20, 2016. Blood samples were taken from the appellant at hospital and later analyzed by forensic toxicologists at the Centre of Forensic Sciences. The projected blood alcohol concentration of the appellant at the time of the collision was 66-96 milligrams of alcohol per 100 millilitres of blood. [23] Elizabeth Hird is a forensic toxicologist at the Centre of Forensic Sciences. She testified that impairment of driving ability due to alcohol consumption becomes significant at a blood alcohol concentration of 50 milligrams of alcohol per 100 millilitres of blood and increases from that point as blood alcohol concentration increases. Impairment refers to a decreased ability to perform a complex task such as driving a motor vehicle. Intoxication refers to the physiological or observable effects alcohol has on a person. These effects may be less apparent in those with a tolerance for alcohol, but tolerance has no effect on impairment. [24] Ms. Hird testified that the ability of a person with a blood alcohol concentration in the range of 66-96 milligrams of alcohol in 100 millilitres of blood to operate a motor vehicle would be impaired. Driving requires the use of several faculties almost simultaneously. Divided attention must be maintained. Judging speed and distance. Responding to unexpected events. Taking corrective action. The witness could not say whether a person with a blood alcohol concentration of 60 milligrams of alcohol in 100 millilitres of blood who displayed no visible signs of intoxication could operate a vehicle safely. But she did say that the person’s ability to operate the vehicle would be decreased due to the complexity of the task and their decreased ability to perform that task well. [25] In cross-examination, Ms. Hird acknowledged that she could not say whether the appellant was impaired at a blood alcohol concentration because she had never tested him. Similarly, she could not express an opinion about where within the projected range of 66-96 milligrams of alcohol per 100 millilitres of blood the appellant would have fallen at the time of the collision. However, she noted that the entire range was beyond 50 milligrams of alcohol per 100 millilitres of blood at which impairment generally becomes significant. She also testified that although she could not rule out a blood alcohol concentration at the lower end of that range, either generally or for the appellant in particular, she considered it more likely that a person would be at the higher end due to the average rates of elimination. The Signs of Impairment [26] No one reported having seen any signs of impairment of the appellant at the nightclub, the collision scene, or the hospitals to which he was taken or transferred after the collision. The Consequences of the Collision [27] Neither the appellant nor either of his passengers could recall the circumstances of the collision. None gave evidence at trial. The appellant and his front seat passenger were severely injured in the collision. Each suffered internal and brain injuries. The Grounds of Appeal against Conviction [28] On his appeal from conviction, the appellant says the trial judge erred: i. in drawing conclusions contrary to the ASF based on misapprehensions of or lack of support in the evidence adduced at trial; ii. in inferring guilt from the consequences of the collision; and iii. in finding each offence proven through circular reasoning. Ground #1: Erroneous Findings of Fact [29] This ground of appeal alleges that the trial judge erred in finding that the accident was caused by grossly excessive speed. This finding, the appellant says, is anchored in a combination of three discrete, yet related errors that vitiate both convictions. Those errors consist of: i. misapprehending the evidence; ii. making findings contrary to the ASF; and iii. making findings in the absence of any supporting evidence. [30] It is unnecessary to repeat what has already been said about the circumstances of the accident as described in the ASF, the report of the collision reconstructionist and the testimony of the forensic toxicologist. [31] A brief reference to the reasons of the trial judge will provide a suitable foundation for the discussion that follows. The Reasons of the Trial Judge [32] The trial judge began his consideration of the offences alleged in the indictment with the counts charging impaired operation. The issue, he said, was whether the Crown had proven the alleged impairment beyond a reasonable doubt on the basis of the evidence of the appellant’s projected blood alcohol concentration, the manner of driving and the expert evidence of the forensic toxicologist. He acknowledged that there was no direct evidence of the manner of the appellant’s driving and that the evidence was that the appellant had displayed no signs of physical impairment at the nightclub, at the accident scene and at the hospital. [33] In examining the evidence about the speed of the appellant’s vehicle at the time of the accident, the trial judge affirmed the absence of any direct evidence of the precise speed before or at any point during the accident. However, the trial judge recognized that, like any fact in issue, the relative speed of the vehicle could be established by circumstantial evidence. [34] The cumulative effect of several items of evidence persuaded the trial judge that when he lost control of his vehicle, the appellant was travelling at a speed that was far beyond what was safe under the conditions and constituted a marked departure from the standard of a reasonably prudent driver. Among the items of evidence were these: i. the absence of any mechanical defect as a contributing factor; ii. the straight, level, unobstructed nature of the highway and road surface; iii. the posted speed limit of 60 km/h; iv. the absence of any difficulty for first responders and other motorists to navigate the wet surface of the roadway safely; v. the absence of evidence of skid marks suggesting the intervention of some external factor requiring evasive action; vi. the relationship between a speed that exceeds the available friction between the tire and road surface and loss of control of the vehicle; and vii. the circumstances of the several collisions with light standards and parked vehicles including the extent of damage caused. [35] In determining whether the evidence established that the appellant’s ability to operate a motor vehicle was impaired by his consumption of alcohol, the trial judge reviewed the testimony of the forensic toxicologist. He concluded that the circumstantial evidence relating to the appellant’s driving showed the indicia of mental impairment. [36] The trial judge accepted that driving was a complex task involving divided attention, choices, reaction time, and judgment of speed and distance. All these mental processes are impaired when a driver’s blood alcohol concentration is 50 milligrams of alcohol per 100 millilitres of blood and impairment increases as the blood alcohol concentration increases. The appellant’s blood alcohol concentration at the time of the accident exceeded 50 milligrams of alcohol per 100 millilitres of blood. The trial judge recognized the possibility of an outlier at a blood alcohol concentration of 50 milligrams of alcohol per 100 millilitres of blood, but noted that this prospect diminished as the blood alcohol concentration increased. [37] The absence of common indicia of physical impairment, such as loss of balance and slurred speech, were important. What was critical, however, was not physical impairment, but rather mental impairment, that is to say, impairment of the ability to perform the complex task of driving a motor vehicle. The trial judge concluded that the appellant drove while impaired: The circumstantial evidence as to the accused's driving shows the indicia of mental impairment as described by the toxicologist. Mr. Stennett was able to travel across Highway 7 to Kipling without incident, but he failed to perceive the need to slow his speed and he failed to react to the wet road condition. The evidence shows Mr. Stennett is not the rare, theoretical outlier as discussed in cross-examination. On the contrary, his driving errors show the effects of alcohol impairment on the mental faculties necessary to drive safely that were identified by the toxicologist. The Crown is not required to prove intoxication or marked impairment. Considering all of the evidence and the legal test, I find the lack of physical indicia and other circumstances do not reasonably leave a doubt. The Crown has proved impairment by alcohol in the mental faculties necessary for safe driving. [38] On the count charging dangerous operation causing bodily harm, the trial judge expressed his conclusion in this way: The whole of the evidence including the circumstances of the multiple collisions shows that the accused drove far in excess of the speed that was safe for the road conditions that evening. He was driving while his ability to judge safe speed and react to road conditions was impaired by alcohol consumption which is a departure from the standard of care required for safe driving. The Crown has proved beyond a reasonable doubt that the accused's manner of driving was dangerous to the public and a marked departure from the standard of care a reasonable person would observe. The Arguments on Appeal [39] The appellant contends that the finding of fact upon which the convictions are grounded is that the appellant was driving at a grossly excessive speed at the time of the accident. This finding, the appellant says, was fatally flawed for three reasons. It was based on a misapprehension of the evidence. It was contrary to the ASF. And it was unsupported by the evidence adduced at trial. It follows that neither conviction can stand. [40] The misapprehension of the evidence, the appellant submits, has to do with the collision reconstructionist’s reference to the effect of the speed of the vehicle exceeding the available friction between the tire and road surface on the loss of control. The report said that if the speed of the vehicle exceeded the available friction between the tire and the roadway, a loss of control over the operation of the vehicle may occur. But the collision reconstructionist did not say that a speed exceeding the available friction was the cause of the accident as the trial judge concluded. The expert pointed to several other factors that might cause a driver to lose control of their vehicle and said that he could not determine which factor was at work here. [41] In addition, the appellant says, the finding of excessive speed was contrary to the ASF. There it was clear that the pre-impact speed of the vehicle could not be determined. It was and remained an unknown. The report of the collision reconstructionist, which was part of the ASF, offered no reason for the loss of control of the vehicle and did not say that excessive speed caused or contributed to the loss of control. [42] In the end, the appellant concludes, the evidence adduced at trial simply cannot support the trial judge’s conclusion that excessive speed caused the accident. There were other explanations for the loss of control. But the trial judge never considered them, nor their impact upon proof of the essential elements of the offences charged. As a whole, the evidence falls short of the standard of persuasion required. Acquittals should be entered. [43] The respondent rejects any suggestion of error in the trial judge’s conclusion or in the analysis that underpins it. [44] The ASF and the language used in the report of the collision reconstructionist were not so definitive or conclusive that they foreclosed an examination of the evidence, the available inferences and making findings of fact concerning the cause of the loss of control. Nothing suggested that speed was not a factor or that the cause of the loss of control could not be determined. The absence of direct evidence did not preclude the use of circumstantial evidence or conclusions based on inferences from that evidence taken as a whole. [45] The trial judge properly concluded that the phrase “travelling at a speed that exceeds available friction” meant simply driving too quickly for the road conditions, given the wetness and the available friction, irrespective of the actual speed at which the vehicle travelled. This conclusion was not at odds with the ASF. [46] At trial, the respondent continues, it was uncontroversial that the appellant lost control of the car and that this caused the accident. It fell to the trial judge to determine, if he could, why the appellant lost control. The trial judge recognized that this was his task and that he had to consider other plausible theories or reasonable possibilities. He did so and concluded that excessive speed was the cause. He was not required to consider speculative possibilities. [47] The respondent says that the trial judge’s finding that the appellant drove far in excess of the speed that was safe for the road conditions was grounded in the evidence adduced at trial. Although it was not possible to know or find a precise or exact pre-impact speed of the vehicle, the nature of the accident itself could provide circumstantial evidence about the speed of the vehicle relative to the road conditions at the time of the accident. This could inform the decision on whether the appellant’s driving amounted to dangerous operation of a motor vehicle. The Governing Principles [48] Several disparate strands of principle woven together inform the decision on this ground of appeal. [49] First, misapprehension of evidence. [50] The phrase “misapprehension of evidence” encompasses at least three errors. The failure to consider evidence relevant to an issue. A mistake about the substance of an item or items of evidence. And a failure to give proper effect to evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-18. [51] Where an appellant advances misapprehension of evidence as a ground of appeal, the reviewing court considers first the reasonableness of the verdict rendered by the trier of fact. If the verdict is not unreasonable, then the reviewing court must decide whether the misapprehension of evidence caused a miscarriage of justice. If the appellant fails on this ground as well, the court must inquire whether the misapprehension amounted to an error of law, and if so, whether that error occasioned the appellant a substantial wrong or miscarriage of justice: Morrissey , at pp. 219-20. [52] Whether a misapprehension of evidence renders a trial unfair and results in a miscarriage of justice requires an examination of the nature and extent of the misapprehension and its significance to the verdict rendered at trial. Where the mistake relates to a material part of the evidence and the error plays an essential part in the reasoning process leading up to the conviction, the conviction is not grounded exclusively on the evidence and constitutes a miscarriage of justice: Morrissey , at p. 221. This is a stringent standard: R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. [53] Second, drawing inferences. [54] A trier of fact may draw inferences from the evidence adduced at trial. However, the inferences must be ones that can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is not a permissible inference but rather impermissible conjecture and speculation: Morrissey , at p. 209. [55] Third, admissions of fact. [56] In proceedings on an indictment, an accused or their counsel may “admit any fact alleged against him” for the purpose of dispensing with proof of that fact. This is the effect of s. 655 of the Criminal Code , R.S.C. 1985, c. C-46 . These are formal admissions. They dispense with the need to prove the fact admitted by other evidence. They are binding on the party and may only be withdrawn with leave of the court: Castellani v. The Queen , [1970] S.C.R. 310, at p. 317; R. v. Korski , 2009 MBCA 37, 244 C.C.C. (3d) 452, at paras. 121-22. [57] Sometimes, admissions may be informal. They are not conclusive but rather may be contradicted or explained by evidence adduced at trial. In essence, they are items of evidence, thus subject to qualification or rebuttal. Informal admissions may be or include statements of what a witness could or would say if called to give evidence: Korski , at paras. 123-24, citing Matheson v. The Queen , [1981] 2 S.C.R. 214, at p. 217. [58] Informal admissions may be labelled or designated “Agreed Statement of Facts”, but that does not make them so. Those that recite what a witness would say retain their true character, however they may be styled. An agreement about what a witness could say or would have said is not an agreement that what they say is true: Korski , at para. 125. [59] Fourth, circumstantial evidence and the burden and standard of proof. [60] Circumstantial evidence is about drawing inferences and the range of reasonable inferences that may be drawn from that evidence. In an assessment of circumstantial evidence, a trier of fact is required to consider, or be directed to consider, “other plausible theories” and “other reasonable possibilities” inconsistent with guilt. In its effort to establish guilt, the Crown must negate those “reasonable possibilities”. However, the Crown need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. These “other plausible theories” or “other reasonable possibilities” must be rooted in logic and experience applied to the evidence or absence of evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. See also R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. [61] Circumstantial evidence does not have to totally exclude other conceivable inferences. The trier of fact must not act on alternative interpretations of the circumstances that it considers unreasonable. Alternative inferences, whether arising from the evidence or an absence of evidence, must be reasonable, not simply possible: Villaroman , at para. 42. Non-culpable inferences, based on the evidence or the absence of evidence, must be reasonable when assessed logically and in light of human experience and common sense: Villaroman , at para. 36. [62] The final point concerns the analysis of a trial judge’s reasons. [63] A reviewing court must not read or analyze a trial judge’s reasons as if they were the final instructions to a jury. Reasons for judgment delivered after a trial before a judicial trier of fact do not equip jurors with what is required to reach an informed decision, a verdict in accordance with the evidence and compliant with the applicable legal principles. Reasons for judgment explain why the judge reached their verdict. They are not to be read as an enumeration of the entire deliberative process: Morrissey , at p. 204. The Principles Applied [64] As I will explain, I would not give effect to this ground of appeal. [65] This ground of appeal challenges the trial judge’s finding that the accident was caused because of the grossly excessive speed at which the appellant was travelling. This was a marked departure from the standard of care of a reasonably prudent driver. This finding is said to be fatally flawed on three grounds: i. it is contrary to the ASF; ii. it is based on misapprehensions of the evidence; and iii. it is unsupported by any evidence adduced at trial. [66] First, the claim that the finding is contrary to the ASF and, in particular, the report of the collision reconstructionist that forms part of the ASF. [67] In my respectful view, this argument is based on a mischaracterization of the ASF and, in particular, the Collision Reconstruction Report. [68] The Collision Reconstruction Report is not a formal admission of fact within s. 655 of the Criminal Code . It follows that it is not conclusive of the facts stated but rather subject to contradiction or qualification. It is an informal or evidentiary admission, in essence, a “will say” or “can say” statement of what the author of the report could or would say if called to testify about its subject-matter. It dispenses with the swearing or affirmation of the witness and the taking of evidence by admitting what their evidence would be if it were called. Labelling the document that refers to the report as “Agreed Statement of Facts” does not alter the fundamental character of the report. [69] As with any item of evidence received at trial, the trial judge, as the trier of fact, could accept or reject the contents of the report in whole or in part. He was entitled to draw reasonable inferences from it. His conclusion that the appellant drove at a grossly excessive speed in the circumstances was not foreclosed, as the appellant contends, by the ASF or the contents of the Collision Reconstruction Report. [70] Further, to the extent that the Collision Reconstruction Report represents the opinion of its author, it is debatable whether it could be the subject of a formal admission under s. 655 of the Criminal Code . The section only permits an accused or counsel to admit “any fact alleged against him”. [71] Second, misapprehension of evidence. [72] The appellant urges that the trial judge misapprehended the collision reconstructionist’s opinion in concluding that the appellant’s speed was so excessive that it amounted to the criminal offence of dangerous operation. However, when read as a whole, the reasons of the trial judge do not support the interpretation the appellant advances. [73] At trial, it was undisputed that the appellant lost control of the vehicle he was driving. The trial judge recognized that he needed to determine, if he could on the available evidence, why this loss of control occurred. This involved consideration of various possible explanations and whether it amounted to either offence charged. One such explanation was that the appellant was driving too fast for the conditions of the road at the time. The trial judge examined other possible explanations for the loss of control, such as a curve in the road, sudden braking and a need for steering correction, and rejected them, as he was entitled to do. Of some assistance on the issue of degree of departure from the speed safe for the road conditions were the circumstances of the collisions involved. The conclusion that the manner in which the appellant was driving amounted to dangerous operation was one reached on the basis of the evidence as a whole, not on a misapprehension of any particular item of evidence including the opinion of the collision reconstructionist. [74] Third, the innocent explanations. [75] In order to conclude that the only reason that the appellant lost control of the vehicle was because of the grossly excessive speed at which he was driving, the trial judge was required to consider whether all other plausible theories or reasonable possibilities inconsistent with culpability could account for the accident. These non-culpable inferences could arise from the evidence or the absence of evidence. However, to be availing, those inferences must be reasonable, given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense. Circumstantial evidence does not have to exclude merely conceivable or possible inferences, only those that are reasonable and not speculative. [76] It remains fundamentally for the trier of fact to determine whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt. In other words, it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. Here, it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt. Ground #2: Inferring Guilt from Consequences of the Accident [77] The second ground of appeal focuses on the conviction of dangerous operation causing bodily harm. The complaint is that the finding of guilt was not based as it should have been on an analysis of the manner in which the appellant operated the motor vehicle, but rather on the consequences of the accident. [78] An assessment of this alleged error does not require any further reference to the evidence adduced at trial. A brief reference to the arguments advanced and the reasons of the trial judge will provide the background essential to determining the viability of this claim. The Arguments on Appeal [79] The appellant submits that the actus reus or conduct requirement in the offence of dangerous operation of a motor vehicle focuses on the manner in which the vehicle is operated, and the risks associated with it. The focus is not on the consequences of the manner of operation. [80] The fault element in dangerous operation, the appellant says, required the Crown to prove that the manner of driving was a marked departure from the standard of care of a reasonable person in equivalent circumstances. This is a modified objective standard, more than mere carelessness or momentary inattention. And it cannot be established by simply drawing an inference from proof of the conduct requirement. [81] In this case, the appellant continues, the trial judge conflated the consequences of the accident with the manner in which the vehicle was operated and the extent it departed from the standard of a reasonable person. In essence, the trial judge inferred both the conduct and fault elements from the mere fact of the accident and its consequences. [82] The appellant argues that the trial judge undertook no meaningful inquiry into either essential element of dangerous operation. He did not examine the manner of driving but rather simply found grossly excessive speed, a conclusion at odds with the ASF and unsupported by the evidence. Likewise for the fault element. No meaningful inquiry. And a conclusion of marked departure from nothing more than the consequences of the accident. [83] The respondent rebuffs the appellant’s claim that the trial judge’s finding of guilt of dangerous operation rested on an impermissible inference from the consequences of the accident. [84] A review of the reasons for judgment betrays any claim that the findings on the conduct and fault elements of the offence were no more than inferences from the bodily harm caused and property damaged by the accident. Admittedly, the reasons could have been more expansive. But his reasons show that he was aware of the tests for both elements and why he was satisfied that they had been met. [85] Read as a whole, together with the colloquies with counsel during submissions, what emerges clearly is that the trial judge was keenly aware of the essential elements of the offence and why the evidence satisfied him that those elements had been established with the required degree of certainty. The trial judge relied upon his finding of grossly excessive speed which caused the appellant to lose control of the vehicle as the basis for his conclusion that the conduct requirement had been met. In connection with the fault element, the trial judge relied on his finding of impaired ability to appreciate the risk created by driving too fast in the conditions to conclude that this was a marked departure from the requisite standard of care. The Governing Principles [86] Like the first ground of appeal, this submission relates to the count of dangerous operation causing bodily harm, not that of impaired operation causing bodily harm. The controlling principles are those associated with the offence of dangerous operation simpliciter as there is no issue of causation in controversy here. [87] As the language of the offence-creating provision makes clear, it is the manner in which the motor vehicle was operated that is at issue, not the consequences of the driving. The consequences, such as bodily harm, may make the offence more serious. But the consequences have no say on whether the offence of dangerous operation has been established: R. v. Beatty , 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46. [88] The focus of the inquiry into whether an accused’s driving, viewed objectively, was dangerous to the public in all the circumstances is on the risks created by the manner of the accused’s driving, not its consequences such as an accident which ensued from that driving. However, the consequences of the driving may assist in assessing the risk involved even though they do not answer the fundamental question of whether the accused operated the vehicle in a manner which was dangerous to the public: Beatty , at para. 46; R. v. Roy , 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35. [89] The conduct requirement or actus reus of the dangerous operation offence requires that the trier of fact be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public in all the circumstances: Beatty , at para. 43. [90] The focus of the analysis on the fault element or mens rea is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances: Beatty , at para. 48; Roy , at para. 36. [91] In considering the issue of the fault element, it is helpful to ask two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If the answer to the first question is “yes”, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in equivalent circumstances: Roy , at para. 36. [92] As a general rule, a trier of fact may infer the required objective fault element or mens rea from the fact that an accused drove in a manner that constituted a marked departure from the norm. But this is an inference, not a presumption. And even where the manner of driving is a marked departure from the norm, the trier of fact must examine all the circumstances to decide whether it is appropriate to draw the inference of fault from the manner of driving: Roy , at para. 40. [93] The fault element or mens rea of dangerous operation can be established by momentary excessive speeding on its own, provided, in light of all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care that a reasonable person would have exhibited in the same circumstances: R. v. Chung , 2020 SCC 8, 386 C.C.C. (3d) 523, at para. 19; Roy , at para. 41. [94] Finally, it is not permissible to infer the marked departure simply from the fact that an accused’s driving, viewed objectively, was dangerous: Roy , at para. 44. The Principles Applied [95] In my respectful view, this ground of appeal fails. [96] Like the respondent, I would characterize the trial judge’s reasons on the count charging dangerous operation causing bodily harm as spare. However, the appellant does not suggest that they are insufficient to permit meaningful appellate review. Nor am I persuaded otherwise when they are considered as a whole, together with the evidence adduced, the positions advanced and the exchanges between counsel and the trial judge during final submissions. [97] The trial judge found the conduct element or actus reus established on the basis of the persuasive force of several circumstances. Speed that was far in excess of the speed that was safe in view of the existing road conditions. A blood alcohol concentration consistent with impairment of the ability to carry out the complex tasks associated with the operation of a motor vehicle, including timely and appropriate responses to the unpredictable. The circumstances of the accident as indicative of the relative speed of the vehicle. The conclusion is barren of any reference to the consequences of the accident to the appellant or his passengers. This combination of factors and circumstances provided an adequate evidentiary predicate to ground a finding that the conduct element or actus reus of the dangerous operation offence had been proven beyond a reasonable doubt. [98] The trial judge concluded on “[t]he whole of the evidence” that the fault element or mens rea of dangerous operation had been proven beyond a reasonable doubt. As with the conduct element, this finding was not contaminated by any improper consideration of the consequences of the accident to the appellant and his passengers. As we have seen from Chung , excessive speed alone can establish the required fault element where, in all the circumstances, it supports the inference that the driving resulted from a marked departure from the standard of care that a reasonable person would have exhibited in the same circumstances. In this case, that inference from excessive speed and the conduct element was further supported by evidence of impairment of the ability to operate a motor vehicle due to consumption of alcohol. [99] I would not accede to this ground of appeal. Ground #3: Circular Reasoning [100] The final ground of appeal converts elements of its two predecessors into a complaint that the convictions rested on circular reasoning. The appellant drove dangerously because his ability to drive was impaired by alcohol, and because he drove dangerously, his ability to operate a motor vehicle was impaired by alcohol. In other words, dangerous operation proved impairment and impairment, dangerous operation. The Arguments on Appeal [101] The appellant says that the evidence of the forensic toxicologist was generic, based on statistical models. She acknowledged that she could not provide an opinion about impairment of any individual’s ability to operate a motor vehicle after consuming alcohol without testing that person. She did not perform any tests on the appellant, who showed no physical signs of impairment. Not everybody with a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood will be impaired. Yet the trial judge found, based on this generic evidence, that the appellant’s ability to operate his motor vehicle was impaired by his consumption of alcohol. [102] According to the appellant, he could not be found guilty of impaired operation solely on the basis of his own blood alcohol concentration and the expert’s generic opinion about impairment at blood alcohol concentrations of 50 milligrams of alcohol in 100 millilitres of blood and beyond. Case-specific information was required. The trial judge found the appellant guilty of impaired operation based on his conclusion that the appellant had driven dangerously. That he drove dangerously proved his ability to operate a motor vehicle was impaired by alcohol. But, the appellant continues, the trial judge also reasoned that the appellant drove dangerously because he drove while impaired when he found as follows: “He was driving while his ability to judge safe speed and react to road conditions was impaired by alcohol consumption which is a departure from the standard of care”. This reasoning is circular. In the result, neither conviction can stand. [103] The respondent takes the position that the trial judge did not engage in circular reasoning in reaching his conclusion that the essential elements of each offence were proven beyond a reasonable doubt. [104] In the respondent’s submission, the trial judge recognized that impairment was not only an essential element of one offence, but also relevant to proof of an essential element of the other. The judge was aware that there was a conflict between the observations of those who saw the appellant before, at the scene, and after the accident and the testimony of the forensic toxicologist. No one saw any physical signs of impairment or intoxication. Yet the toxicologist testified that impairment of the ability to operate a motor vehicle begins at a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood. [105] The respondent says that the trial judge dealt with these apparent inconsistencies. There were differences between the physical indicia of impairment and impairment of the mental faculties required to drive safely. Impaired operation only requires proof of the latter. The judge also referred to the toxicologist’s evidence that although a person with the appellant’s blood alcohol concentration might be able to successfully drive between two points on a familiar roadway without becoming involved in a collision, their ability to operate their motor vehicle would be impaired nonetheless. This impairment would affect their ability to recognize and respond correctly to any unusual circumstance they encountered. [106] In this case, the trial judge drew reasonable inferences from the evidence. His finding on the conduct element of the dangerous operation count was not based on any finding of impairment, but rather on a finding that the appellant lost control of his vehicle because he was driving at a speed well in excess of what the circumstances permitted. The reference to the appellant’s impairment was only considered in relation to the fault element where it was relevant to the question of whether the appellant’s conduct amounted to a marked departure from the standard of care a reasonably prudent driver would exercise in equivalent circumstances. The Governing Principles [107] The appellant recruits no specific authority to advance this ground of appeal. Nor does the respondent in answer. [108] Whether the essential elements of any offence have been proven beyond a reasonable doubt requires an assessment of all the evidence tendered to establish them. Sometimes, an item of evidence may assist in proof of one or more elements of an offence or of other offences. That it does so does not involve circular reasoning. [109] Evidence of the impairment of a person’s mental processes caused by the consumption of alcohol is relevant to both the offences of dangerous operation of a motor vehicle and of impaired operation of a motor vehicle. [110] Evidence of an accused’s actual state of mind may be relevant to determine whether the objective fault element in dangerous operation of a motor vehicle has been proven beyond a reasonable doubt: Beatty , at para. 43; Roy , at para. 39. It is well settled that evidence of impairment by consumption of alcohol is relevant in determining a person’s state of mind. [111] In prosecutions for impaired operation of a motor vehicle, the essential element of impairment is proven if the evidence establishes any degree of impairment ranging from slight to great: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384, aff’d [1994] 2 S.C.R. 478. The Principles Applied [112] In my respectful view, this ground of appeal cannot succeed. [113] The findings of guilt entered in this case are not the product of circular reasoning. Evidence that the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol was relevant to proving an essential element of the impaired operation offence. That same evidence was also relevant in proof of the objective fault element on the count of dangerous operation. The mere fact the same evidence is relevant and admissible in proof of both elements exemplifies multiple relevance or admissibility, not circular reasoning. The Sentence Appeal [114] The appellant submits that the victim surcharges the trial judge imposed on the appellant were made under a regime that the Supreme Court of Canada later held to be unconstitutional, so that the surcharge order should be quashed. The respondent agrees that the surcharges should be quashed. [115] As the victim surcharge regime has been ruled unconstitutional, I agree that the victim surcharges should be set aside. Disposition [116] For these reasons, I would dismiss the appeal from conviction. I would grant leave to appeal sentence and allow the appeal from sentence to the extent of setting aside the victim surcharges. Released: “JMF” April 26, 2021 “David Watt J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sunda, 2021 ONCA 319 DATE: 20210512 DOCKET: C66808 Tulloch, Roberts and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Rajin Sunda Appellant Harpreet Saini, for the appellant Kelvin Ramchand, for the respondent Heard and released orally: May 10, 2021 by video conference On appeal from the conviction entered on October 23, 2018 by Justice Alan D. Cooper of the Ontario Court of Justice, and from the sentence imposed on March 14, 2019. REASONS FOR DECISION [1] On April 27, 2021, the appellant abandoned his appeal from his convictions for possession of heroin for the purpose of trafficking and simple possession of cocaine. In the exceptional circumstances of this case, the appellant and the respondent jointly propose that the sentence appeal be allowed in part and that the remainder of the net twenty month sentence be stayed, and a one-year period of probation be substituted. [2] The sentencing judge accepted that the appellant was an addict-trafficker. The pre-sentence report highlighted the appellant’s addiction to heroin since 2016, as well as the appellant’s very significant progress in dealing with his addiction issues. In addition to giving credit for pre-sentence custody, the sentencing judge noted and gave additional credit for the 3.5 months that the appellant had spent on restrictive release conditions without incident. The sentencing judge also ordered a probationary period of 12 months to enable the appellant to continue addiction counselling. [3] The appellant filed an inmate appeal on April 10, 2019. He served 6.5 months of his custodial sentence before being released on October 1, 2019 and has since been on a house arrest interim judicial release without incident. [4] Following a serious mental health episode, on December 25, 2020, the appellant was admitted to a 60-day in-treatment program. The appellant was diagnosed with anxiety and depression that was connected to substance abuse issues. The appellant received a certificate of completion of this program on February 23, 2021. [5] We agree that it is in the interests of justice that the sentence appeal be allowed as proposed by the parties. While the sentence imposed was fit, re‑incarceration of the appellant in the particular circumstances of this case is not in the public interest and would be deleterious to his prospects for rehabilitation. The appellant has served a meaningful portion of his sentence and has not re‑offended or breached his bail conditions. He has continued to undergo treatment for his addiction issues. It is in the public interest that the appellant’s rehabilitative progress continues uninterrupted and that he reintegrates to society as a productive and law-abiding individual. Disposition [6] Accordingly, leave to appeal sentence is granted, and the remaining custodial sentence is stayed. The existing probation order is vacated, and a new probation order is to be entered for a period of 12 months, with the compulsory conditions under s. 732.1(2) of the Criminal Code but no other optional conditions, except to continue drug addiction and related counselling or programming and to provide a consent to confirm compliance with same. All other ancillary orders as ordered by the sentencing judge remain in place. “M. Tulloch J.A.” “L.B. Roberts J.A.” “Gary Trotter J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tayongtong, 2021 ONCA 281 DATE: 20210503 DOCKET: C67022 Watt, Benotto and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Nelson Tayongtong Appellant Delmar Doucette, Angela Ruffo and Zahra Shariff, for the appellant Mabel Lai, for the respondent Heard: March 1, 2021 by videoconference On appeal from the conviction entered on October 18, 2017, and from the sentence imposed on October 27, 2017 by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury . Benotto J.A.: [1] Aicha Saludares was killed in her home. She had been stabbed 138 times. Her estranged husband – the appellant Nelson Tayongtong – was arrested and charged with her murder. While in a courtroom awaiting his matter to be spoken to, the appellant shouted out that he had killed his wife. Psychiatric assessments followed. Upon being found fit to stand trial, a jury convicted him of second-degree murder. He appeals his conviction on the grounds that the trial judge erred by admitting his in-court statements as evidence and by not allowing self-defence and provocation to be left with the jury. He also appeals the 17-year period of parole ineligibility established by the trial judge. BACKGROUND [2] Aicha Saludares emigrated from the Philippines to Canada with her family when she was 14 years old. After graduating from high school, she began working at the Bank of Montreal where she rose to become branch manager. In 2003, she married the appellant while on holiday in the Philippines. He eventually joined her in Toronto. In 2010, he had a stroke and spent months in a long-term health care facility. He no longer worked. A series of financial setbacks occurred, and the couple had to sell the family home. Their marriage was in difficulty and there were discussions about divorce. Aicha began a relationship with another man. [3] The appellant’s health appeared to deteriorate, and he planned to return to the Philippines. In September 2012, he was days away from departure. Aicha was, at that point, living with her mother and her mother’s boyfriend in their apartment in Mississauga. They agreed that the appellant could stay with them for a few days until he left for the Philippines. [4] On September 8, 2012 Aicha’s mother and her boyfriend left around 6 a.m. to go to work. When they left, Aicha and the appellant were alone in the apartment. Surveillance video shows the appellant leaving the building at 7:37 a.m. At 1:30 p.m., the mother’s boyfriend found Aicha’s dead body lying face down on the kitchen floor. A blue-handled knife was in her right hand. She was left-handed.  No one else was in the apartment. [5] Aicha suffered a total of 138 wounds, including: 17 stab wounds and 3 incised wounds to the head; 10 stab wounds and 8 incised wounds to the neck; 20 stab wounds to the upper and middle back; 10 stab wounds and 1 incised wound to the chest; 14 stab wounds and 8 incised wounds to the abdomen; 10 stab wounds and 12 incised wounds to the left arm and hand; 3 stab wounds and 12 incised wounds to the right arm and hand; and 1 stab wound to the right leg. One of the stab wounds to the head resulted in the knife tip breaking off and being lodged in the mandible. None of the twelve knives found in the kitchen of the apartment, including the blue-handled knife found in Aicha ’s non-dominant hand, was the source of the broken tip. [6] Days later, the appellant was found passed out in a convenience store and admitted to hospital. He was arrested on September 19, 2012 and charged with murder. He has remained in custody. [7] On November 13, 2014, the court ordered an assessment to determine whether he was fit to stand trial. He was assessed by Dr. Colleton at the Centre for Addiction and Mental Health and found fit to stand trial. [8] The appellant was to attend court on March 11, 2015, for a routine “to be spoken to” appearance. His counsel said that before court, the appellant had exhibited strange behaviour and wanted counsel fired. Later, while in court with his counsel, and waiting for his case to be called, he interrupted another matter as follows: Appellant: I’m guilty. The Court: All right. I’ll speak to you in a moment, sir. Could the - is the tagalog interpreter here? All right. If you could just indicate to this gentleman that I’m going to deal with his... Appellant: I’m guilty. The Court: … case in a couple of - I’m going to deal with his case in a couple of minutes? Appellant: I’m so sorry. I want to tell the truth that I’m guilty, what happened between me and my wife. I love her. Because.... The Court: Okay. All right. Sir.... Appellant: I love her so so much. But she don’t love me anymore. She pretended everything she do to me. The Court: Okay. Sir Appellant: That’s why I tell the truth. The Court: All right. I’m going to deal with your case Appellant: Tell the truth that I am the one who killed my wife. The Court: All right Mr. Tayongtong, I’m going to speak to your case in a couple of moments. I want you to sit down, please. Minutes later a second exchange took place: Appellant: Justice The Court: All right. We’ll deal with Mr. Tayongtong if the Appellant: I’m guilty. That’s the truth. Justice, I’m guilty. The Court: Thank you. Appellant: That is the truth. The Court: Thank you. All right. Appellant: Justice, I’m guilty. I tell the truth. Justice, I’m guilty. I am so sorry for what happened between me and my wife, what happened to us. I’m telling the truth. I don’t want to lie anymore. It’s better for me to tell the truth. It’s better for me to tell the truth. Justice, I’m guilty. The Court: Thank you. [9] The presiding judge immediately conducted a summary fitness inquiry. The appellant’s responses demonstrated an understanding of the charges, but the judge nonetheless ordered a fitness assessment pursuant to s. 672.1(1)(a) of the Criminal Code . The matter was adjourned to March 17 when Dr. Colleton would be available at the courthouse to conduct the assessment. [10] On March 17, Dr. Colleton observed that the appellant’s mental health had deteriorated and that he demonstrated a “circular and self-contradictory thought process”. He concluded that the appellant may not be able to instruct counsel and his fitness to stand trial was in question. The judge ordered a 60 day in-hospital assessment pursuant to s. 672.14(3) of the Criminal Code . [11] On May 14, 2015, Dr. Daly reported on the appellant’s fitness. He concluded that the appellant was likely feigning mental illness and was fit to stand trial. [12] In August 2016, his fitness again became an issue and another in-hospital assessment was conducted, following which the judge made a make-fit order as requested by the Crown. The appellant was treated by Dr. Prakash. The appellant was agitated, not cooperative with Dr. Prakash and refused to answer his questions. Dr. Prakash said that good psychological testing could be done “once he is calmed down, whether with oral medications or injections”. Dr. Prakash added that he was torn between Dr. Daly’s view that he was malingering and whether he had a psychotic disorder rendering him unfit. Dr. Prakash testified that he had not been able to engage him at all. [13] The appellant was treated with anti-psychotic medication while subject to a series of keep-fit orders. [14] The trial began before a jury on September 11, 2017. THE RULINGS AT TRIAL [15] There were two rulings made by the trial judge at issue in this appeal: the admissibility of the statements on March 11, 2015; and whether there was an air of reality to self-defence and provocation. The Statements of March 11 [16] The trial judge ruled that the appellant’s utterances on March 11 were not protected statements.  They were not made to a person in authority. They were “spontaneous, volunteered statements made in a public courtroom to the presiding justice”. Their admissibility was not impacted simply because the Crown and the investigating officer happened to be in the public place at the time. [17] The appellant’s challenge to admissibility, based on Charter principles failed. The defence had not established, on a balance of probabilities, that the appellant did not have an operating mind on March 11, 2015. Even if the confessions rule applied, the trial judge “would nevertheless have found the Crown had established beyond a reasonable doubt that the appellant had an operating mind on March 11, 2015”. He relied on Dr. Daly’s assessment. He concluded that Dr. Prakash did not assist the appellant given the failure of the appellant to engage with him. [18] The March 11 statements were admitted. [1] Self-defence and provocation [2] [19] The appellant asked the court to instruct the jury on self-defence and provocation. He argued that an inference could be drawn that Aicha had the knife in her hand and was threatening the appellant with it. The trial judge ruled that there was no air of reality to support an instruction on either self-defence or provocation. He explained: · Aicha must have been on the floor when she was stabbed. This is evident from the fact that the blood spatter was almost all below the countertops. She could not therefore have been standing with the knife in her hand. · The blue-handled knife was in her non-dominant hand. It had her blood on it. There was overwhelming evidence that it was placed there after her death: o The placement of the blade was unusual in that it is standing straight up as though to keep it on its edge. o There was no aspirated blood from Aicha on the blade but there was everywhere else. o The blood spatter pattern was uniform even when the knife was removed. There was no spot (or void) behind the blade with no blood as there would have been had she been holding it before she died. o Aicha had blood over her entire hand. The handle marks left on her hand were not consistent with the knife having been grabbed by her while alive. · The appellant’s blood was found in the apartment. · The appellant was found to have small, healed cuts on his fingers and some healed scratches. · Aicha had several defensive wounds on her hands and arms. [20] Following the air of reality test set out in R. v. Cairney , 2013 SCC 55, [2013] 3 S.C.R. 420, the trial judge considered the elements of self-defence and provocation. [21] He found there was no reasonable inference available to the jury to conclude that Aicha first attacked or threatened the appellant. In any event, it would “defy all logic” that the appellant did not use more force than necessary to defend himself. She suffered 138 stab wounds. Further, there was no evidence that would meet the criteria of any of the Criminal Code provisions dealing with self-defence. [22] With respect to provocation, he found that, without any evidence as to what, if any, wrongful act was allegedly done by Aicha, there was no basis for the jury to determine whether, objectively, it would cause a reasonable person to lose control. Nor was there any evidence of the subjective element. There was simply a vacuum that could not be filled by speculation. ISSUES (1) Did the trial judge err by admitting the March 11, 2015 utterances? (2) Did the trial judge err by concluding that there was no air of reality to self-defence or provocation? (3) Did the trial judge err by imposing a 17-year period of parole ineligibility? ANALYSIS (1) Did the trial judge err by admitting the March 11, 2015 utterances? [23] The appellant raises four reasons to support his submission that the statements should not have been admitted. [24] First, the appellant submits that the March 11 statements were protected statements and therefore inadmissible pursuant to s. 672.21(2) of the Criminal Code because they were made during the course and for the purposes of an assessment or treatment directed by a disposition. He urges a broad and liberal interpretation of the protection. He submits that the statements were so closely linked to the Taylor test inquiry that they are part of the assessment: R. v. Taylor (1992) , 11 O.R. (3d) 323 (C.A.). [25] Second, he submits that the statements were analogous to an aborted guilty plea. Relying on Thibodeau v. The Queen , [1955] S.C.R. 646, he submits that when a guilty plea is entered and then permitted to be withdrawn, it cannot be adduced at a subsequent trial. [26] Third, he submits that the statements were not the product of an operating mind and thus it creates a great unfairness to the appellant to have the statement admitted. Fitness, he submits, is a “fluid issue” and the fact that the appellant was fit after March 11 does not mean he was fit on March 11. Indeed, the judge found reasonable grounds to order a fitness assessment on that day. [27] Finally, the probative value of the statement was outweighed by its prejudicial effect. By admitting the statement into evidence, the trial judge effectively eliminated potential defences. [28] I do not agree that the statements fall within the protection of s. 672.21(1) which provides: 672.21 ( 1 ) In this section, protected statement means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction. [29] The appellant’s statements were made in open court, during a “to be spoken to” appearance. There was no assessment underway. They were made before an assessment had been ordered and not during the course of or for the purposes of an assessment or treatment. They were not made to a person specified in the assessment. [30] Nor do I accept the analogy to a withdrawn guilty plea. The appellant did not attempt to plead guilty. He had not been arraigned. There was no plea inquiry, no reading of the allegations and no judicial consideration of the plea. The appellant’s utterances were interrupting other ongoing matters. [31] The trial judge concluded that the appellant had an operating mind when he made the statements. He relied on the opinion of Dr. Daly who authored the May 14 report. Dr. Daly said that the appellant surpassed the fitness threshold and his purported symptoms are feigned. The trial judge was entitled to rely on this evidence. The trial judge considered and rejected Dr. Prakash’s conclusions because the appellant did not engage with him. [32] Finally, while the evidence did bolster the Crown’s case, and increase the risk of conviction, it does not follow that the probative value is outweighed by the prejudicial effect. Evidence is prejudicial if its reception would threaten trial fairness, or there is a real risk that the jury will misuse the evidence: R. v. Frimpong , 2013 ONCA 243, 106 W.C.B. (2d) 326, at para. 18. Those factors do not exist here. There was no scope for misuse by the jury as the evidence included the entire context of the statement. Also, at the request of the appellant’s trial counsel, the statement was edited to eliminate the implication of the mental health issues. [33] The trial judge did not err by admitting the March 11, 2015 utterances. (2) Did the trial judge err by concluding that there was no air of reality to self-defence or provocation? [34] The appellant’s theory with respect to self-defence and provocation rests with the blue-handled knife. [35] There are three aspects of the forensic evidence that the appellant says allow for the inference that Aicha was holding the knife before she died: (a) The blood stains lower than the countertops could only have resulted from stab wounds which caused bleeding. There could have been stab wounds – such as a stab to the heart – that would not have caused immediate bleeding. Aicha could have been stabbed in the heart while standing. This would have produced no immediate blood loss and would explain why there was no blood spatter above the countertop height. The forensic evidence could not identify the sequence of stab wounds. Consequently, she could have endured a fatal stab wound while standing with a knife in her hand. (b) If she had been stabbed in the heart while standing it could have resulted in her immediate death and a cadaveric spasm causing her to grasp the knife she had been holding. (c) The void of aspirated blood behind the knife could have been the result of her movement while on the ground. There was evidence of her hair in various places in the kitchen indicating that her body was moving while she was being stabbed on the ground. This could explain the lack of a void and eliminate the inference that the knife was placed in her hand after her death. [36] Ultimately, the appellant submits that, by finding that the knife was placed in Aicha’s hand after her death, the trial judge usurped the function of the jury. The jury could have found that the knife was in her hand before her death and there is thus an air of reality to self-defence and provocation. [37] Whether there is an air of reality to a defence is a question of law, reviewed on a correctness standard: R. v. Cinous , 2002 SCC 29, at para. 55. The air of reality test will be satisfied if there is evidence on the record upon which a properly instructed jury acting reasonably could acquit: Cinous , at para. 51. [38] A properly instructed jury acting reasonably could not have acquitted on the basis of self-defence or provocation, even when the evidence is taken at its highest. As the trial judge concluded, the appellant’s theories are pure speculation.  Even if the jury believed that Aicha had a knife and threatened the appellant with it, there were still significant gaps in the evidence about the subjective and objective components of the tests for self-defence and provocation. [39] Consider the elements of self-defence under each section of the Criminal Code : · Section 34: there was no evidence that Aicha had first attacked or threatened the appellant with a knife. Further, as the trial judge said, it was not possible to conclude that, if she did attack first, the response was no more than necessary to defend himself. In addition, there was no evidence about the sequence of events or about the appellant’s state of mind. · Section 35: there was no evidence about the appellant’s state of mind, or whether he retreated as far as reasonably possible. · Section 37: it is impossible to conclude that the appellant used no more force than necessary to prevent the assault. [40] The jury would have had to speculate about events surrounding her death and the appellant’s state of mind. [41] Similarly, there was no evidence with respect to the subjective and the objective analysis required to make a determination with respect to provocation, including whether the wrongful act was sufficient to deprive an ordinary person of self-control, whether the appellant acted in response to the provocation, and whether the appellant acted on the sudden before there was time for his passion to cool: R. v. Tran , 2010 SCC 58, at paras. 25, 36. [42] The evidence does not support either defence. Aicha suffered 138 knife wounds, contusions, abrasions and defensive wounds. The appellant had a few scratches. The knife was in her right hand. She was left-handed. Dr. Herath, the forensic pathologist, and Det. Hofstetter, the blood pattern analyst, testified that in their opinion the knife was placed in her hand after her death. [43] The trial judge did not err by concluding that there was no air of reality to self-defence or provocation. (3) Did the trial judge err by imposing a 17-year period of parole ineligibility ? [44] The appellant submits that the period of parole ineligibility is unfit. He says the trial judge failed to consider that the appellant had suffered a stroke and had no history of domestic violence. [45] The trial judge did refer to an absence of prior domestic abuse. But this is not a mitigating factor. [46] The trial judge was aware of the appellant’s stroke and concluded that little weight should be given to this fact. His reasons explain: The Defence points to Mr. Tayongtong’s stroke in 2010 to submit that he is disabled. I am not persuaded this is a significant factor. First, the evidence is that, during the few months leading up to the murder, Mr. Tayongtong took martial arts lessons, went to the gym, walked frequently, and was capable of giving massages. In addition, Dr. Chan’s evidence was that this was a mild stroke and had seen him attend numerous medical appointments unassisted. Lastly, given the amount of strength and effort needed to commit this murder, it belies any finding that Mr. Tayongtong was physically disabled to the extent it impacts his sentence. There is also evidence that Mr. Tayongtong used a cane when necessary to persuade a doctor that he needed social assistance. But there is also some evidence that Mr. Tayongtong had used a cane on at least another occasion. I am not prepared to go so far as to find that the evidence shows Mr. Tayongtong was a manipulative man when it came to his physical abilities. [47] An appellate court may only interfere with a sentence if there is an error of law or principle that has an impact on the sentence or the sentence is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 2 S.C.R. 1089, at para. 11. I see no error in principle in the trial judge’s discretionary conclusion that the parole ineligibility period should be 17 years. The brutality of the murder of a domestic partner and the lack of mitigating factors permit the court to impose a term of up to 17 years: R. v. French , 2017 ONCA 460, at para 31. There was no error in principle and the sentence was fit. CONCLUSION [48] I would dismiss the appeal as to conviction. I would grant leave to appeal the sentence but dismiss the sentence appeal. Released: May 3, 2021 “DW” “M.L. Benotto J.A.” “I agree David Watt J.A.” “I agree M. Jamal J.A.” [1] There was also a March 17, 2015 statement which the trial judge ruled admissible. The Crown did not seek to admit it at trial and it does not form part of this appeal. [2] Self-defence and provocation in this case are governed by the former provisions, not the current scheme.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tenthorey, 2021 ONCA 324 DATE: 20210518 DOCKET: C67163 Feldman, Paciocco and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Nathan Lowell Tenthorey Appellant James Lockyer and Jessica Zita, for the appellant Elena Middelkamp, for the respondent Heard: March 10, 2021 by videoconference On appeal from the conviction entered on April 5, 2019 by Justice Kirk W. Munroe of the Superior Court of Justice, sitting with a jury. Paciocco J.A.: OVERVIEW [1] Nathan Tenthorey was tried before a jury and convicted of committing an aggravated assault on Robert Brochu, contrary to s. 268 of the Criminal Code of Canada , R.S.C. 1985, c. C-46. He appeals that conviction. [2] Mr. Tenthorey’s first ground of appeal is that the trial judge erred in law by failing to instruct the jury on the included offences of (a) simple assault, contrary to s. 266 of the Criminal Code , and (b) assault causing bodily harm, contrary to s. 267(b) of the Criminal Code . [3] In making this argument, Mr. Tenthorey relies upon s. 662(1) of the Criminal Code , which provides that a person charged with an offence is in jeopardy of being convicted not only of the charged offence, but alternatively of any “included” offences. He maintains that, in law, the offences of simple assault and assault causing bodily harm are included offences in a non-particularized charge of aggravated assault, the charge he faced. He submits that where (1) legally , an offence qualifies as an included offence, and (2) factually , there is a realistic possibility a jury could find the accused committed that included offence but not the charged offence, a trial judge is required to instruct the jury on the included offence. He argues that in his case both preconditions were met, yet the trial judge failed to charge the jury on the offences of simple assault and assault causing bodily harm. Mr. Tenthorey’s position is that, had the jury known he was also being tried for simple assault and assault causing bodily harm, they may have found it more suitable to find him guilty of one of those less serious offences, rather than aggravated assault. [4] Mr. Tenthorey also argues, based on the line of authority following R. v. Soobrian (1994), 96 C.C.C. (3d) 208 (Ont. C.A.), that the trial judge erred in law by failing to give a “ Soobrian limiting instruction” directing the jury not to draw an adverse inference against Mr. Tenthorey based on the Crown’s impeachment of one of its own witnesses, Jessica Gregory. [5] For reasons that follow, I would allow the appeal on the included offences ground, but not on the Soobrian limiting instruction ground. I would set aside Mr. Tenthorey’s aggravated assault conviction and order a new trial. MATERIAL FACTS Events prior to the assault on Mr. Brochu [6] The assault on Mr. Brochu occurred at a house party in the early morning of July 23, 2016 in Lakeshore, Ontario (formerly known as Belle River). The events relevant to the assault began hours earlier at a local festival. Mr. Tenthorey and Mr. Brochu were at the festival, as were many of the party guests later present at the time of the assault. Everyone called as a witness to the assault had been drinking that evening. [7] There had been tension between Mr. Tenthorey and Mr. Brochu at the festival. Mr. Tenthorey’s girlfriend [1] , Ms. Gregory, had complained to Mr. Tenthorey that Mr. Brochu touched her inappropriately while they were both in the festival’s beer tent. Mr. Tenthorey confronted Mr. Brochu at the festival, but the encounter ended peacefully. [8] After the festival, Mr. Tenthorey and Ms. Gregory crossed paths with Mr. Brochu again at the house party, which was at the home of John Markakis. At the party, an incident involving Ms. Gregory, Mr. Brochu, and Jonathan Snider occurred in the kitchen area of the house. This incident led to the assault on Mr. Brochu that is the subject of this appeal, and it led to Mr. Snider being knocked to the ground. Mr. Brochu’s injuries [9] During the altercation, Mr. Brochu sustained aggravated facial injuries. When treating Mr. Brochu, Dr. Morhaf Sadek observed “blunt force injuries”, namely, fractures to “four different facial bones”. Dr. Sadek said Mr. Brochu’s facial injuries were caused by “more than one” instance of “blunt force trauma”. While it was impossible for Dr. Sadek to describe the exact degree of force used, he noted that not all blunt force trauma is forceful enough to cause bone fractures. Evidence relating to the assault on Mr. Brochu [10] Whether because of the alcohol consumption of the witnesses, or for other reasons, it is fair to say that the Crown was challenged in presenting a description of the entire confrontation in which Mr. Brochu was injured. Three of the Crown witnesses, including Mr. Snider, testified they had no memory of the events that evening due to alcohol consumption. None of the others could provide a complete narrative of the entire assault on Mr. Brochu. [11] Mr. Brochu testified that he did not see who assaulted him. He stated that the confrontation in the kitchen began with Ms. Gregory hitting Mr. Snider. Mr. Brochu said he was trying to intercede to separate Ms. Gregory and Mr. Snider when a man whom Mr. Brochu could not identify began punching Mr. Snider. Mr. Brochu said he then saw Mr. Tenthorey come over. He expected Mr. Tenthorey to “pull his girlfriend off” of Mr. Snider. Mr. Brochu testified that he himself was then “clubbed across the side of the face”. He did not see the blow, only a flash, but he concluded that he had been assaulted by Mr. Tenthorey because he was struck on the left side of his face and Mr. Tenthorey had been the only person in the room to his left side. [12] Mr. Brochu testified that after being struck, he fell to the ground and someone administered numerous kicks to his face, which he described as “soccer” style kicks. He could not look up during the attack to see who was attacking him. He could see only shoelaces and a big sneaker. He assumed it was Mr. Tenthorey who was kicking him. [13] Mr. Brochu testified that he got up when the kicking ended and saw Mr. Tenthorey standing as though they were going to “square off and have another fight.” [14] During his examination-in-chief, Mr. Markakis testified that he saw Mr. Brochu on the ground but that there were “two other guys fighting beforehand”. He identified the two men as Mr. Snider and a man named “Daniel”. He said those two were fighting in or near the bathroom, right next to the kitchen. Mr. Markakis testified that he was trying to break up that fight, and so was Mr. Brochu, who was behind Mr. Markakis at the time. Mr. Markakis testified he was not present when Mr. Brochu was assaulted but that he saw Mr. Brochu on the ground with his nose bleeding and tried to help him, but that Mr. Brochu had refused his help. [15] Mr. Markakis further testified that he later saw Mr. Brochu “trying to figure out who hit him”, and that Mr. Brochu and Mr. Tenthorey eventually went outside where Mr. Markakis observed the two men “trying to fight each other”. [16] While being cross-examined by Mr. Tenthorey’s trial lawyer (who did not argue the appeal before us), Mr. Markakis said that when he saw Mr. Brochu on the ground, Mr. Tenthorey was “standing right by him”. Mr. Markakis agreed with the suggestion that he had no idea who injured Mr. Brochu. He initially said he did not know whether Mr. Tenthorey had done anything to Mr. Brochu, but then said, “I think I only seen [Mr. Tenthorey] – I – I think I only seen him – sorry. I think I only seen one kick. That’s it.” He said that the kick was into Mr. Brochu’s face, “like kicking … a soccer ball”. When asked if he was sure about this, Mr. Markakis said, “‘[c]ause after I … broke up the fight, I remember saying, ‘Why – why’d you kick him to his face’”. Mr. Markakis then agreed with the suggestion that he was unsure whether he saw Mr. Tenthorey kick Mr. Brochu because he had been drinking, the event occurred “four years” before, and people had told him “a lot of stuff since then about this”. [17] Ms. Gregory was also called as a witness by the Crown. She testified that Mr. Brochu had been touching her in the kitchen and she punched him in the chest. Mr. Tenthorey was outside on the patio at the time. Ms. Gregory said Dylan Lafreniere and Mr. Snider began punching Mr. Brochu. At this point, she said Mr. Tenthorey came into the kitchen and led her away from the altercation. [18] Mr. Lafreniere did not testify at the trial. [19] As indicated, Mr. Snider testified that he could not remember what happened. [20] Billie-Jo Lemire testified that Mr. Brochu and Mr. Snider were “hitting” on her and Ms. Gregory at the party. Jesse Broadfoot, Ms. Lemire’s boyfriend at the time, told Mr. Brochu and Mr. Snider to stop. She said there were two “loud bangs” and she saw Mr. Brochu and Mr. Snider on the ground. She saw that Mr. Snider was dazed but uninjured. She then heard a third bang coming from the kitchen and saw Mr. Brochu bleeding from the nose. She said she did not know who hit the men. [21] Ms. Lemire also testified that she subsequently saw Mr. Brochu outside, attempting to fight Mr. Tenthorey. She heard Mr. Tenthorey trying to de-escalate the situation and apologizing to Mr. Brochu for something. [22] Mr. Brochu’s brother, Jean-Paul, who was not at the party, testified that the morning after Mr. Brochu was assaulted he began to make inquiries about what had happened, including in a phone call to Mr. Markakis. Shortly after the call with Mr. Markakis, Jean-Paul received a phone call from a man who identified himself as “Nate”. Jean-Paul testified that Nate told him that he had “smashed my brother’s face in because he hit on his girlfriend.” [23] Jean-Paul further testified that during his call with Nate a woman was shouting in the background that she was going to press charges against Jean-Paul’s brother for sexual assault. [24] Mr. Markakis confirmed that Jean-Paul had called him to inquire about what had happened at the party and that Jean-Paul’s phone number was visible to him through caller ID. Mr. Markakis also said he gave Jean-Paul’s phone number to Mr. Tenthorey. [25] Ms. Gregory denied being part of any such phone conversation. Events relevant to a Soobrian limiting instruction [26] During Ms. Gregory’s testimony, the trial Crown (who did not argue the appeal before us) was given leave pursuant to ss. 9(1) and 9(2) of the Canada Evidence Act , R.S.C. 1985, c. C-5 to cross-examine Ms. Gregory about the prior inconsistent testimony she had given at Mr. Tenthorey’s bail hearing. Specifically, at trial Ms. Gregory provided the above-described account of the assault against Mr. Brochu, yet at Mr. Tenthorey’s bail hearing she testified she was not present during the assault on Mr. Brochu and therefore had not seen what happened. [27] When requesting leave to cross-examine Ms. Gregory pursuant to s. 9(2) of the Canada Evidence Act , the trial Crown made clear that he would not suggest to the jury that Ms. Gregory was “colouring” her evidence in favour of Mr. Tenthorey such that Mr. Tenthorey “is somehow in cahoots”. He simply wanted her evidence disregarded and expected the trial judge “would give a specific charge”. [28] At the end of the s. 9(2) voir dire , the trial Crown requested a ruling under s. 9(1) of the Canada Evidence Act that Ms. Gregory was an adverse witness. As a result, a voir dire regarding s. 9(1) followed. During the s. 9(1) voir dire , the trial judge said he was “looking for” an instruction to the effect that “this is not evidence of any collusion or any linking of … what [Ms. Gregory’s] giving evidence [of] to [Mr. Tenthorey].” [29] After delivering his s. 9 rulings in favour of the Crown, the trial judge shared with counsel a draft mid-trial instruction he had prepared and asked for their input. The draft mid-trial instruction contained the following clause addressing the Soobrian concern: This cross-examination on a previous statement can be used on the issue of credibility of that witness, but it is not to reflect on the accused person as indicating that they are not credible or are guilty. [30] Mr. Tenthorey’s trial counsel told the trial judge he wanted to reserve his comments on the proposed charge until after the Crown’s cross-examination of Ms. Gregory was complete. During the further exchange that followed, the trial judge decided not to include the proposed mid-trial Soobrian limiting instruction because he did not yet know whether Mr. Tenthorey would testify. The trial judge provided the balance of the proposed mid-trial direction relating to the proper use of prior inconsistent statements. [31] The trial Crown then confronted Ms. Gregory with her inconsistent testimony. She attempted to explain the inconsistency by claiming that she thought she had been called at the bail hearing to testify only about the assault allegedly committed by Mr. Tenthorey, not about “the whole night”. [32] Later that afternoon, after a recess during the testimony of another witness, the trial judge noted that he had not gotten back to Mr. Tenthorey’s trial counsel as to whether there should be a further mid-trial instruction relating to Ms. Gregory’s testimony. Mr. Tenthorey’s trial counsel responded: “Well, no. I think it’s … just as easy if you leave it to the end because again, [Ms. Gregory’s] evidence is fairly close to the end [of trial] in any event.” No further mid-trial instruction was provided. [33] In his closing address, the trial Crown submitted the following to the jury: Ms. Gregory has no respect for the oath. She’s making up her evidence. She is trying to protect her fiancé [Mr. Tenthorey]. Her testimony as to – her explanation for that testimony [at the bail hearing] rings very hollow, and [I] say in the strongest terms – but it’s up to you – that you should reject her evidence out of hand. [34] Nothing was said by anyone about a Soobrian limiting instruction during the pre-charge conference. Nor was a Soobrian limiting instruction included in any of the draft charges, or in the final charge to the jury. The jury charge on the offences to be considered [35] Section 268(1) of the Criminal Code sets out four distinct ways in which an aggravated assault can be committed, by: (1) wounding, (2) maiming, (3) disfiguring, or (4) endangering the life of another. It does so in simple terms: 268 (1) Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [36] The aggravated assault charge in the indictment against Mr. Tenthorey did not specify the mode of committing aggravated assault that was being alleged. It was a general, non-particularized charge. It simply said that “he, on or about the 23 rd day of July, 2016, at the town of Lakeshore in the said Southwest Region, did commit an aggravated assault on Robert Brochu”, contrary to s. 268 of the Criminal Code . [37] Initially, the trial judge anticipated charging the jury on the included offences of simple assault, contrary to s. 266 of the Criminal Code , and assault causing bodily harm, contrary to s. 267 of the Criminal Code . The draft charges the trial judge prepared included instruction on both offences, but he indicated when he shared the draft charges with counsel that he had yet to finally decide whether to give such instructions. [38] In the initial pre-charge conference on April 2, 2019, Mr. Tenthorey’s trial counsel took the position that simple assault, contrary to s. 266 of the Criminal Code , was certainly an included offence in the aggravated assault charge Mr. Tenthorey faced. However, he was unsure whether assault causing bodily harm, contrary to s. 267, was an included offence as a matter of law. The trial judge decided to leave that question “open” for further discussion in subsequent pre-charge conferences. [39] The next day, April 3, 2019, Mr. Tenthorey’s trial counsel advised the trial judge that his research had led him to conclude that, as a matter of law, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. He said this despite acknowledging that leaving the offence of assault causing bodily harm with the jury might benefit Mr. Tenthorey. As he wanted his client tried according to law, Mr. Tenthorey’s trial counsel advised that he was not seeking a charge on assault causing bodily harm, but reiterated his request that the trial judge charge the jury on the included offence of simple assault. [40] The trial Crown disagreed with Mr. Tenthorey’s trial counsel about whether assault causing bodily harm was an included offence, as a matter of law. The trial Crown advised the trial judge that it was. [41] However, as he had done the day before, the trial Crown asked the trial judge not to charge the jury on either assault causing bodily harm or simple assault. He submitted that the trial judge should give an “all or nothing” charge. It was the trial Crown’s position that factually there was no view of the evidence, when considered as a whole, that could cause the jury to acquit of aggravated assault but convict of either of the two included offences. The trial Crown submitted that the only evidence others were involved in the assault came from Ms. Gregory and, if the jury believed or were left in doubt about whether to accept her version of events, “obviously that’s complete exculpation”. He submitted that, in the circumstances, it would cause “mischief in the thinking of the jury” to instruct them on the included offences. [42] The trial judge urged Mr. Tenthorey’s trial counsel to explain what reasonable view of the evidence could lead the jury to convict on either of the included offences. Counsel responded that the Crown had not proved beyond a reasonable doubt that Mr. Tenthorey was the only one who had administered blows to Mr. Brochu. Since it was open to the jury to find that Mr. Tenthorey only punched Mr. Brochu once, or kicked him once, a simple assault verdict was available. During the colloquy, the trial judge expressed disagreement with this submission, commenting that “[t]here’s no evidence that [Mr. Tenthorey] was involved and then other people jumped in”. He challenged Mr. Tenthorey’s theory that there may have been more than one assailant as speculative and inconsistent with the defence position that no charge was required on joint responsibility. [43] On April 4, 2019, the trial judge gave an oral ruling, declining to charge the jury on either assault causing bodily harm or simple assault. Specifically, he held that, as a matter of law, assault causing bodily harm was not an included offence in this case “and therefore cannot be put to the jury”. [44] He then ruled that although, as a matter of law, the offence of simple assault is included in a non-particularized aggravated assault allegation, factually, there was no reasonable view of the evidence that could cause a jury to acquit of aggravated assault but convict of simple assault. The trial judge said: The Crown does not want the assault to be given to the jury. The defence does, arguing that the jury could find [Mr. Tenthorey] punched [Mr. Brochu] once but others assaulted [Mr. Brochu], causing his injuries. But this scenario is not part of the evidence. The only evidence that anyone else struck [Mr. Brochu] comes from [Ms. Gregory], who testified that others beat [Mr. Brochu] and [Mr. Tenthorey] was not involved at all in the beating. Obviously if the jury accepts this evidence or believes it raises a reasonable doubt, [Mr. Tenthorey] will be acquitted. This is the major defence: Mr. Tenthorey did not assault Mr. Brochu. The evidence of [Mr. Brochu’s] injuries as a result of the blows received at the house that night was unchallenged factually. Assuming the jury concludes that [Mr. Tenthorey] assaulted Mr. Brochu, in my view there is no reasonable prospect that a jury could properly find that those serious injuries were not caused by that assault. Accordingly, I decline to give the jury the lesser included offence of simple assault. [45] The trial judge therefore directed the jury only on the offence of aggravated assault, focusing exclusively on the three modes of commission in s. 268 that necessarily involve assaultive behaviour: wounding, maiming, or disfiguring. [46] The jury returned a verdict of guilty of aggravated assault. ISSUES [47] The two grounds of appeal raised by Mr. Tenthorey can conveniently be stated and approached in the following order: (1)     Whether the trial judge erred by failing to leave the jury with the included offences of simple assault, contrary to s. 266 of the Criminal Code , and/or assault causing bodily harm, contrary to s. 267 of the Criminal Code ; and (2)     Whether the trial judge erred by failing to provide the jury with a “ Soobrian limiting instruction” relating to Ms. Gregory’s testimony. [48] In his notice of appeal, Mr. Tenthorey also sought leave to appeal his sentence. However, on May 26, 2020, Mr. Tenthorey abandoned his sentence appeal. ANALYSIS 1.       The Included Offence Errors (a)     The Offence of Assault Causing Bodily Harm is Included in a Non-particularized Charge of Aggravated Assault [49] The Crown concedes the trial judge committed a legal error in holding that, as a matter of law, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. This concession is correct. It is well-established that, legally, assault causing bodily harm is an included offence in a non-particularized charge of aggravated assault: R. v. Wong (2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 11; R. v. Lucas (1987), 34 C.C.C. (3d) 28 (Que. C.A.), at pp. 32-33; R. v. Soluk , 2001 BCCA 519, 46 C.R. (5th) 380, at para. 16. [50] The error committed by the trial judge, and by Mr. Tenthorey’s trial counsel for that matter, is understandable. Each applied a test for identifying included offences that is adequate if there is only one mode of committing the charged offence. However, that same test produces inaccurate results if applied where there is more than one mode of committing the charged offence, as in the case of a non-particularized charge of aggravated assault. [51] In order to discourage similar errors in future cases, I will explain the source of the error in more detail. I also propose the following test, which can be used in identifying included offences, regardless of the nature of the charged offence: an offence will be an included offence if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence. [52] To understand the source of the error in this case, one must begin with the underlying concept of an included offence. As a matter of fundamental justice, an accused person “is only called upon to meet the charge put forward by the prosecution”: R. v. G.R. , 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 2. This is because an accused person must have “fair notice” of the charges they face. As Martin J.A. instructed in R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 133, fair notice is an “operative principle governing the meaning of an ‘included offence’”. Martin J.A. explained that “the offence charged, as described either in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet”. [2] An offence is therefore an “included offence” if it is part of the “main” or charged offence, or is “embraced” by the main or charged offence: Simpson (No. 2) , at p. 133; R. v. G.R. , at para. 25. [53] Where either the charge itself or the enactment creating the offence provides only one mode of committing the charged offence, it is possible and indeed customary to test whether an offence is embraced by the main charge by asking whether that offence is “ necessarily committed in the commission of the principal offence as described in the enactment creating it” (emphasis in original): R. v. G.R. , at para. 30, quoting R. v. Harmer and Miller (1976), 33 C.C.C. (2d) 17 (Ont. C.A.), at p. 19. This test works where there is only one mode of committing the charged offence because if that one mode of commission cannot be accomplished without also committing the included offence, the accused person will have fair notice that the elements of the included offence are at issue. It is therefore fair or just to convict the accused person of the included offence if the elements of the included offence are proved but the Crown falls short of proving all the elements of the charged offence. The offence of “dangerous driving causing death” provides an example. As I explained in R. v. Romano , 2017 ONCA 837, 41 C.R. (7th) 305, at para. 12: “Dangerous driving” is an included offence in a charge of “dangerous driving causing death” because it is impossible to commit the offence of dangerous driving causing death without satisfying the legal requirements or elements of the offence of dangerous driving. Dangerous driving causing death is an aggravated version of the offence of dangerous driving, distinguishable only by the added legal requirement that the dangerous driving must cause the death of another. [54] Things are somewhat more complicated where there is more than one mode of committing the charged offence. Since the Crown may succeed in proving the charged offence by establishing any one of the available modes of committing the charged offence, an offence will be included if it is necessarily proved by establishing any one of the different ways in which the charged offence can be committed: Simpson (No. 2) , at p. 139; Luckett v. The Queen , [1980] 1 S.C.R. 1140; R. v. Benoit , 2014 ONCA 457, [2014] O.J. No. 2770. This is because an accused person, alerted by law that the Crown can succeed in the prosecution by establishing any one of the modes of commission, will have fair notice that the Crown may ultimately prove any offence that is necessarily proved when establishing any one of those modes of commission. [55] A non-particularized charge of aggravated assault falls into this latter category. As indicated, where an aggravated assault charge is not particularized, the Crown may succeed in establishing aggravated assault by proving any one of the four modes of commission. Three of those modes of commission (wounding, maiming, and disfiguring) cannot be committed without also committing an assault causing bodily harm. An accused person, such as Mr. Tenthorey, facing a non-particularized charge of aggravated assault will therefore have fair notice that the elements of assault causing bodily harm are at issue. [56] Yet if one set out to determine whether assault causing bodily harm is an included offence in a non-particularized charge of aggravated assault by applying the test used for offences that have but one mode of commission, a different – and incorrect – answer would result. Since the fourth mode of committing aggravated assault (endangering the life of another) can be committed without also committing an assault causing bodily harm, assault causing bodily harm is not “necessarily committed in the commission of the principal [or charged] offence”. [57] Both the trial judge and Mr. Tenthorey’s trial counsel erred in this way; by employing the test identified in R. v. G.R. , at para. 30, a case involving an offence with a single mode of commission. In fairness, their errors are understandable because, unfortunately, it is not uncommon for judges deciding single-mode of commission cases to describe the test articulated in R. v. G.R. as the test for identifying included offences. Regrettably, I did so myself in Romano , at para. 11. [58] Obviously, the confusion that occurred in this case could have been avoided if the test for included offences was described in a way that would work for both single-mode and multiple-mode charged offences. Hence the test I have articulated here: an offence will be an included offence if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence. [59] Applying this test, the offence of assault causing bodily harm would necessarily be proved if the Crown were to successfully establish any one of three legally available avenues of convicting Mr. Tenthorey of the non-particularized offence of aggravated assault; wounding, maiming, or disfiguring. Therefore, as a matter of law, assault causing bodily harm is an included offence in the charge Mr. Tenthorey faced. The trial judge erred in finding otherwise. (b)     The Crown’s Harmless Error Submission [60] The Crown conceded before us that the trial judge erred in holding that, legally, assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault. Nevertheless, the Crown submits that this error was harmless, contending the trial judge was nonetheless correct in not instructing the jury on the included offence of assault causing bodily harm because the factual precondition to such instruction was not met. Specifically, the Crown argues that there is no reasonable view of the evidence on which a jury could acquit Mr. Tenthorey of the charged offence of aggravated assault yet convict him of the offence of assault causing bodily harm. [61] This argument by the Crown mirrors the trial judge’s reasoning relating to the offence of simple assault, contrary to s. 266 of the Criminal Code . The trial judge recognized that, as a matter of law, simple assault is an included offence in a non-particularized charge of aggravated assault, contrary to s. 268 of the Criminal Code : R. v. Rocchetta , 2016 ONCA 577, 352 O.A.C. 130, at para 38. However, he held that, factually, there was no reasonable view of the evidence on which the jury could acquit Mr. Tenthorey of the charged offence of aggravated assault yet convict him of the offence of simple assault. The trial judge therefore refused to charge the jury on the offence of simple assault. [62] The Crown’s harmless error argument and Mr. Tenthorey’s ground of appeal that the trial judge erred in failing to charge the jury on the offence of simple assault thus turn on whether the factual precondition to a mandatory included offence charge was met. There is overlap in determining whether the factual precondition for each offence was met. I will therefore address together the factual preconditions to a mandatory jury charge on both included offences; assault causing bodily harm and simple assault. (c)     Factually, the Included Offences of Assault Causing Bodily Harm and Simple Assault Were Available on a Reasonable View of the Evidence [63] Even if, as a matter of law, an offence is included in a charged offence, trial judges are not required to instruct a jury on the law applicable to that included offence unless there is an “air of reality in the evidence adduced at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established”: R. v. Luciano , 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75; R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 174-75. Realistic possibility: the factual precondition to an included offence charge [64] In R. v. Ronald , 2019 ONCA 971, Doherty J.A. helpfully framed this rule of law, at para. 42: There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence. [65] To be clear, Doherty J.A. was not purporting to jettison the air of reality test as the standard to be used in determining whether a jury instruction is required relating to an included offence. He was simply adding precision to the description of the air of reality test as it applies to included offences. He did so in order to prevent confusion with the application of the air of reality test when it is used to determine whether a positive defence should be left with a jury: Ronald , at paras. 43-46. However, in both contexts, the air of reality test performs the same basic function. As Doherty J.A. explained, “[b]oth inquiries seek to focus the jury’s attention on the live issues actually raised by the evidence. By doing so, the risks of unreasonable verdicts, juror confusion, or improper compromise by jurors, are reduced”: Ronald , at para. 43. [66] Whether applied in identifying included offences or available defences, the air of reality test performs another function: ensuring that trial judges do not encroach on the role of the trier-of-fact when determining whether there is a live issue in a jury trial. The existing restrictions to accomplish this can best be illustrated by examining more generally how the law limits the operation of the threshold tests for identifying the live issues in a case. There are two such tests: (a) the air of reality test; and (b) the more familiar prima facie case test, which is used to determine committal at preliminary inquiries and directed verdict applications at the close of the Crown’s case. [67] In applying the prima facie case test, in order to prevent a trial judge from encroaching on the role of the trier-of-fact, a trial judge is disqualified from considering the credibility and reliability of evidence, and from considering their own view on whether the Crown’s case would succeed. The sole weighing exercise permitted is for the trial judge to determine whether the inferences required for the Crown to prove its case beyond a reasonable doubt are, as a matter of logic, reasonably available on the evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-24. [68] The air of reality test works in much the same way and for the same reason. The majority’s statement in R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54, referring to the air of reality test and defences, applies mutatis mutandis to the application of the air of reality test in included offence cases: The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [Citations omitted.] [69] Therefore, in determining whether it is possible for a jury to have reasonable doubt on the charged offence but to convict on an included offence, a trial judge should not consider how likely or unlikely the trial judge believes that outcome to be. Nor should the trial judge pay regard to concerns about the credibility or reliability of the evidence required to reach that outcome. In a circumstantial evidence case, the appropriate inquiry is into the logical reasonableness of the inferences that are available to be relied upon to support a realistic possibility of an acquittal on the main charge and a conviction on an included offence. [70] In Ronald , at paras. 52-56, when determining in a circumstantial evidence case whether there was a reasonable possibility that a jury could acquit on the main charge but convict of an included offence, Doherty J.A. therefore looked at “ reasonable inferences ”. He no doubt used the term “reasonable inferences” in much the same way that Cromwell J. employed that phrase in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 36, when he held that an inference of not guilty is available in a circumstantial evidence case only if that inference is “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”. [71] Therefore, in applying the Ronald test, if there is direct evidence that the accused has committed an included offence but not the charged offence, or if the state of circumstantial evidence yields logical inferences in light of human experience and common sense that the accused has committed an included offence but not the charged offence, there will be a “realistic possibility” of an acquittal on the main charge but a conviction on an included offence. In that case, the included offence must be left with the jury, regardless of how incredible or unreliable the evidence may be, or how unlikely it is that the trier-of-fact will ultimately draw the relevant inferences. Case law applying the realistic possibility standard for included offences [72] The cases argued before us conform to this standard. For example, in Wong , the appellant, who claimed he had acted accidentally or in self-defence, acknowledged that he had caused the aggravated injury or wound to the victim. Since, in these circumstances, “[t]here was no reasonable view of the evidence that would yield an acquittal on the charge of aggravated assault by wounding and a conviction on the included offence of assault causing bodily harm”, this court concluded that the trial judge had erred by leaving the included offence with the jury: Wong , at paras. 13-15. [73] In R. v. Grewal , 2019 ONCA 630, 379 C.C.C. (3d) 201, the charged offence was kidnapping. The appellant argued that the trial judge should have directed the jury on the included offence of attempted kidnapping. This court disagreed. At paras. 38-45, van Rensburg J.A. reasoned that the only available inference from the uncontested evidence was that if the appellant did not participate in the kidnapping, he aided in the kidnapping. Both avenues enabled a conviction on the charged offence, and neither could support a “realistic possibility” of a conviction for attempt. [74] In Romano , the charged offence was dangerous driving causing death. It was not contested that the vehicle driven by the appellant struck the victim and that she died. The appellant argued that even if his driving was dangerous, which he denied, his dangerous driving did not cause the victim’s death, and therefore the trial judge erred by failing to instruct the jury on the included offence of dangerous driving. This court disagreed. As a matter of law, if the appellant’s driving was found to be dangerous, he would necessarily be convicted of dangerous driving causing death because “there was simply no proper basis on which the jury could find that [the appellant’s] driving did not meet the legal requirements of causation” relating to the victim’s death: Romano , at para. 25. In those circumstances, it would have been improper for the trial judge to leave the simple charge of dangerous driving with the jury. [75] None of these illustrative cases turned on weaknesses in the credibility or reliability of the evidence, and none had to do with the unlikelihood of an included offence inference. In each of them, there was “no realistic possibility of an acquittal on the main charge and a conviction on an included offence” because the respective included offences were simply not on the table. Mr. Tenthorey’s submissions with respect to included offences [76] Mr. Tenthorey argued at trial that there was a realistic possibility the jury could acquit him of the charged offence of aggravated assault but convict him of the offence of simple assault. Although not separated as cleanly in his submissions, he presented two paths to that realistic possibility that I will describe later in these reasons. [77] Mr. Tenthorey adopts this argument on appeal and contends that those same paths also present a realistic possibility that the jury could have acquitted him of aggravated assault but convicted him of assault causing bodily harm. [78] He points out that his trial counsel did not pursue the assault causing bodily harm option because of his mistaken belief that, legally, assault causing bodily harm was not an included offence. Mr. Tenthorey argues that since a trial judge is legally obliged to charge a jury on included offences that have an air of reality, and since it is clear that his trial counsel’s position that no such direction was required was based on an erroneous understanding of the law and not a tactical choice, that position is not an impediment to relying, as a ground of appeal, on the trial judge’s failure to charge the jury on assault causing bodily harm. [79] The Crown does not argue otherwise. I will therefore consider not only whether the trial judge erred in failing to charge the jury on the offence of simple assault, but also whether he failed to charge the jury on assault causing bodily harm. The realistic possibility standard was met for both included offences [80] In my view, using either of the paths I am about to describe, there was a realistic possibility of an acquittal on the main charge and a conviction on either the included offence of assault causing bodily harm, or the included offence of simple assault. Both paths assume that the jury would accept either the circumstantial evidence of Mr. Brochu that Mr. Tenthorey punched him in the face, knocking him to the ground, and/or the direct testimony of Mr. Markakis that Mr. Tenthorey administered one soccer kick to Mr. Brochu’s face. [81] The first path Mr. Tenthorey advances rests on the Crown’s failure to produce any witness who testified to seeing who perpetrated the entire assault. Mr. Tenthorey argues that, given the absence of such evidence, a jury could find that the Crown had failed to establish beyond a reasonable doubt that Mr. Tenthorey acted alone in administering the blows. In such circumstances, the jury could be unable to conclude that Mr. Tenthorey caused the aggravated injuries required to support an aggravated assault conviction. The jury would then be left to determine whether the blow or blows Mr. Tenthorey administered caused Mr. Brochu bodily harm. If the jury was able to infer from the nature of the blow or blows that they must have caused some bodily harm not rising to the level of wounding, maiming, or disfiguring, the appropriate verdict would be guilty of assault causing bodily harm. If the jury was not prepared to infer that the blow or blows caused bodily harm at all, the appropriate verdict would be guilty of simple assault. [82] To be clear, even on the path just described, if a jury were persuaded that Mr. Tenthorey and any other assailants acted in concert or “jointly” when attacking Mr. Brochu, aggravated assault would still be the appropriate verdict. However, there was no suggestion on the evidence of joint participation. Appropriately, this theory of party liability was not before the jury. Therefore, in the circumstances of this case, the path I have just described would lead to an included offence conviction and a verdict of not guilty of aggravated assault. [83] The second path Mr. Tenthorey advances is similar but relies on the affirmative evidence of Ms. Gregory that Mr. Lafreniere and Mr. Snider punched Mr. Brochu. A jury accepting that testimony but finding that Mr. Tenthorey also punched and/or kicked Mr. Brochu could equally be left with a reasonable doubt about whether Mr. Tenthorey caused the aggravated injuries, or any injury at all. This scenario, too, would lead to a verdict of guilty of assault causing bodily harm or simple assault, but not guilty of the charged offence of aggravated assault. [84] The trial judge concluded that neither of these paths was realistically possible on the totality of the evidence. In his included offence ruling, the trial judge held that a jury could not properly accept the theory that Mr. Tenthorey was not the only one to assault Mr. Brochu, stating “this scenario is not part of the evidence.” When this submission was raised by trial counsel in oral argument, the trial judge challenged the submission by saying: You’re asking them to speculate. There is no other evidence – there’s evidence that [Mr. Tenthorey] was either involved or he wasn’t involved. There’s no evidence that he was involved and then other people jumped in. I have nothing of that. [85] Later, the trial judge said of the same submission, “[the jury are] not to speculate on [whether] something may have happened when they have no evidence of it.” [86] With respect, the trial judge erred in dismissing the paths I have identified to an included offence verdict on the basis that there was “no evidence that [Mr. Tenthorey] was involved and then other people jumped in”. He also erred by finding this theory to be speculative. [87] Speaking of reasonable doubt in circumstantial evidence cases in Villaroman , at para. 35, Cromwell J. explained why “inferences consistent with innocence do not have to arise from proven facts”: Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. [88] Cromwell J. also cautioned, at para. 36, that “a reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.” [89] In Ronald , Doherty J.A. gave several reasons why the trial judge in that case had erred in failing to leave the included offence of second-degree murder with the jury. One such reason was that the jury could choose not to infer planning and deliberation from the circumstantial evidence that the Crown had relied upon, leaving an absence of evidence of planning and deliberation. He reinforced the point, at para. 54, that “[j]uries are not obliged to draw all inferences that are reasonably available on the evidence.” Earlier in the decision, at para. 47, Doherty J.A. explicitly linked this proposition to included offences, as follows: When the defence, or the Crown, argues that a jury should be instructed on the possibility of a conviction on the included offence of second degree murder, it is not essential that the party seeking the instruction point to evidence capable of supporting inferences that are inconsistent with planning and deliberation. Unlike positive defences, there is no evidentiary burden on the defence, or the Crown, to put the possibility of a conviction for the included offence … ‘in play’. It is sufficient if, on the totality of the evidence, a reasonable jury could be left unconvinced, beyond a reasonable doubt [of the charged offence]. That potential uncertainty can provide the basis for a proper verdict of not guilty of [the charged offence], but guilty on the included offence…. [90] Because of the gaps in the evidence, the Crown’s case that Mr. Tenthorey administered all the blows to Mr. Brochu was circumstantial. Even if it is likely that the jury would draw the inference that Mr. Tenthorey administered all the blows, the trial judge should have proceeded on the basis that the jury might not do so. [91] Nor was Mr. Tenthorey under any obligation to fill the gaps with evidence that others did administer blows. He was entitled to rely on the absence of evidence to raise a reasonable doubt about this possibility. Mr. Tenthorey’s submission that a jury could have a reasonable doubt on the charged offence of aggravated assault because of the absence of evidence that he administered all the blows was not speculative. It arose from the absence of evidence and required a jury charge on the included offences. [92] Although not essential to this outcome, it is also worth noting that the realistic possibility the jury could be left in doubt by the absence of evidence finds additional support in the confusing testimony about exactly how events unfolded. Taken together, that evidence suggested there was a melee underway, which in my view enhances the prospect that the jury could have a reasonable doubt as to whether Mr. Tenthorey administered all the blows to Mr. Brochu. The jury was entitled to accept some, none, or all of Ms. Gregory’s evidence [93] The trial judge provided an additional reason for rejecting Mr. Tenthorey’s second suggested path to a jury finding that he committed simple assault, but not aggravated assault. This additional reason is also problematic. The trial judge said that Ms. Gregory provided the “only evidence” that anyone else struck Mr. Brochu and that Mr. Tenthorey was not involved in the beating. As such, he asserted that if the jury believed Ms. Gregory, or was left in reasonable doubt by her evidence, Mr. Tenthorey would be acquitted. [94] With respect, the trial judge erred by treating Ms. Gregory’s evidence as an all or nothing proposition. As McLachlin J. (as she then was) affirmed in R. v. François , [1994] 2 S.C.R. 827, at p. 837, a jury “may accept some of the witness’s evidence while rejecting other parts of it”. Ms. Gregory gave direct evidence that she saw Mr. Lafreniere and Mr. Snider punching Mr. Brochu. The jury was entitled to accept this part of Ms. Gregory’s evidence but reject her testimony that Mr. Tenthorey was never involved in the incident and never assaulted Mr. Brochu. On this basis, as well, there is a realistic possibility that the jury could have acquitted Mr. Tenthorey of aggravated assault but convicted him of one of the included offences. [95] In her able oral argument, appeal counsel for the Crown urged us not to accept this submission without a realistic basis on which to conclude that a jury would have accepted the part of Ms. Gregory’s evidence putting the included offences on the table, while rejecting the balance of her evidence. [96] I do not accept that it would be appropriate for us to engage in this exercise. I say this even though it is obvious that Ms. Gregory’s evidence suffered from serious credibility problems that could cause a jury to reject her testimony in its entirety. The Crown’s submission that we should confine juries to readily explicable choices about what to believe encroaches too heavily on the province of the jury. The air of reality test does not include consideration of the reasonableness of a jury’s choices about what evidence to believe. If it did, there would be no principled basis on which to refrain from the same evaluation when determining whether the Crown has established a prima facie case. Wisely, this has not been judicial practice. [97] Indeed, even when an appellate panel engages in an ex post facto evaluation of the reasonableness of a jury verdict, it is reluctant to question a jury’s credibility determinations: R. v. W.H. , 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 32. To assign judges the responsibility to pre-screen the reasonableness of a jury’s potential credibility determinations when applying the air of reality test would be inconsistent with the deference accorded to credibility determinations of juries, and incompatible with the threshold tests that have developed to limit trials to the matters in issue. (d)     Conclusion on the Included Offence Errors [98] Accordingly, I would find that the factual preconditions requiring the trial judge to direct the jury on the included offences of assault causing bodily harm and simple assault were present in this case. There was a realistic possibility that the jury, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, could have acquitted Mr. Tenthorey on the main charge of aggravated assault yet convicted him of assault causing bodily harm or simple assault. [99] I would therefore find that the trial judge’s error in holding that assault causing bodily harm is not an included offence in a non-particularized charge of aggravated assault was not harmless. He was required to charge the jury on that included offence. [100] I would also find that the trial judge erred in finding the air of reality test was not met with respect to the included offence of simple assault. He was obliged to charge the jury on that offence as well. 2.       tHE SooBRIAN Limiting iNSTRUCTION ISSUE [101] Mr. Tenthorey argues that the trial judge erred in law by failing to give a Soobrian limiting instruction directing the jury not to draw an adverse inference against the defence as a result of the Crown’s impeachment of Ms. Gregory’s testimony. [102] As I will explain, I would not give effect to this ground of appeal. (a)     The Governing Legal Principles [103] Proof that a witness lied to protect the accused cannot properly be treated as proof that the accused encouraged or directed the witness to do so, absent an evidentiary foundation for a finding of collusion. It is therefore improper for the Crown to call a witness who is expected to testify favourably to the accused and then impeach that witness in an effort to discredit the defence by inviting an unsupported inference that the accused was complicit in the false testimony the witness provided: Soobrian , at p. 216; R. v. Figliola (No. 1) , 2011 ONCA 457, 105 O.R. (3d) 641, at para. 45. If this is the Crown’s purpose, the trial judge should exercise their discretion to prohibit the impeachment from occurring: R. v. Figliola (No. 2) , 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 52 and 58. [104] If the Crown does impeach its own witness without foundation for this improper purpose, the trial judge must generally give a ‘ Soobrian limiting instruction’ to prevent the jury from misusing the impeachment to draw an adverse inference against the defence that the accused is also a liar, or has acted to hide their guilt: Soobrian , at p. 219; Figliola (No. 1) , at paras. 38 and 61-63. [105] Even where the Crown calls the witness for a proper purpose, if the Crown ultimately impeaches its witness and “strays into impermissible Soobrian territory”, a Soobrian limiting instruction will generally be required: Figliola (No. 1) , at paras. 61-62. This will occur where the impeachment, whether wittingly or not, is conducted in a manner that has created a “real risk that the jury would misuse their rejection of [the witness’s] evidence” to discredit the defence: R. v. Figliola (No. 2) , at paras. 45-46, 52 and 58. (b)     A Soobrian Limiting Instruction Was Not Required in This Case [106] Mr. Tenthorey does not suggest that the trial Crown called Ms. Gregory for an improper purpose. Nor would there have been any basis for such a suggestion. As Doherty J.A. explained in Figliola (No. 2) , at para. 61: [I]f the Crown has a good faith basis for believing that a witness has relevant evidence to give, the Crown may call that witness even though the Crown expects that the witness will give evidence inconsistent with the Crown position and evidence that contradicts the witness’ prior statements. The Crown may call that witness even though it anticipates applying for leave to cross-examine that witness and challenging the credibility of that witness in certain respects. [Citations omitted.] [107] Other witnesses had testified that Ms. Gregory was implicated in the events leading to the assault on Mr. Brochu. This alone provided the Crown with a good faith basis for believing that Ms. Gregory had relevant evidence to give, notwithstanding her testimony at Mr. Tenthorey’s bail hearing. The Crown was clearly entitled to call her and to impeach her, if necessary, based on her prior inconsistent testimony. [108] As indicated, Mr. Tenthorey’s submission is that a Soobrian limiting instruction was required given the manner in which Ms. Gregory was impeached and the use the Crown made of that impeachment in his submissions to the jury. I do not agree. In my view, the trial Crown’s impeachment of Ms. Gregory and his use of that impeachment in his jury submissions did not raise the kind of “real risk” that the jury would misuse her evidence to discredit the defence that would have required a Soobrian limiting instruction. [109] To the contrary, the trial Crown was aware that it would be improper to attempt to taint Mr. Tenthorey’s defence by impeaching Ms. Gregory. He explicitly stated this was not his intention and invited the trial judge to provide a Soobrian limiting instruction, a point to which I will return. [110] More importantly, the trial Crown exercised restraint in impeaching Ms. Gregory. He did not seek permission to cross-examine her at large, nor did he attempt to do so. He impeached her testimony efficiently, by confronting her with her prior inconsistent testimony from the bail hearing. That prior inconsistent testimony did not implicate Mr. Tenthorey. It consisted simply of Ms. Gregory’s denial that she had any evidence to give. Therefore, this was not a case such as Soobrian , where, as described by Doherty J.A. in Figliola (No. 1) , at para. 61, the effect of the Crown’s cross-examination was to “shred the credibility” of the witness it called and to create a “factual matrix” in which the jury might well conclude that the witness was not only a liar, but lying for the very purpose of covering up for the wrongful deeds of the accused and that the accused “were therefore liars themselves, and guilty too”. [111] Nor did the Crown present the jury with a “cover up” theory, as occurred in Figliola (No. 1) , at paras. 53-55. Instead, the Crown attributed responsibility to Ms. Gregory for the testimony she gave, with the trial Crown in his jury address stating as follows: “Ms. Gregory has no respect for the oath. She’s making up her evidence. She is trying to protect her fiancé”. [112] Simply put, I see no “real risk” or likelihood that the jury would blame anyone but Ms. Gregory for her testimony, given that the impeachment was restrained and confined to suggestions that she alone was responsible for the false evidence she gave. [113] In his submissions before us, Mr. Tenthorey emphasized that: (1) when seeking to impeach Ms. Gregory, the trial Crown expressed the expectation that a Soobrian limiting instruction would be given; (2) the trial judge also suggested that he would be “looking for that kind of instruction”; and (3) when asked if there should be a mid-trial Soobrian limiting instruction, Mr. Tenthorey’s trial counsel expressed the view that such an instruction would best be given in the final jury charge. [114] However, the issue before us is not whether the parties expected a Soobrian limiting instruction, but whether the trial judge was legally required to give one. For the reasons I have expressed, he was not. [115] More importantly, circumstances had changed by the end of the trial. It is evident from the trial judge’s comments that his belief a Soobrian limiting instruction would be required was linked to his concern the jury might improperly rely on Ms. Gregory’s impeachment to find Mr. Tenthorey was not a credible witness. Recall that the trial judge decided not to give that mid-trial instruction because it was not known at that time whether Mr. Tenthorey would testify. By the time the charge to the jury was provided, it was clear that Mr. Tenthorey had not done so. [116] Defence counsel’s position at the end of the trial is even more telling. After opting not to request a mid-trial Soobrian limiting instruction, and after reviewing draft jury charges containing no such instruction, Mr. Tenthorey’s trial counsel never asked for one to be included. Nor did he object to the charge that was given. He had clearly been alive to the availability of a Soobrian limiting instruction during the trial yet still said nothing. [117] In these circumstances, it would not be unfair to infer that, not unlike defence counsel in R. v. Dayes , 2013 ONCA 614, 117 O.R. (3d) 324, Mr. Tenthorey’s trial counsel recognized that a Soobrian limiting instruction could enhance the risk that Ms. Gregory’s impeachment would taint the defence by planting the seed that perhaps Mr. Tenthorey, out of consciousness of guilt, was complicit in her “false” testimony. At the very least, the failure by defence counsel to object reinforces my view that a Soobrian limiting instruction was not legally required in the circumstances of this case. [118] I am persuaded that the trial judge’s decision not to provide a Soobrian limiting instruction fell well within the bounds of his discretion. Accordingly, I would dismiss this ground of appeal. CONCLUSION [119] For reasons above, I conclude the trial judge erred in failing to instruct the jury on the included offences of assault causing bodily harm and simple assault. [120] I would therefore allow the appeal, set aside Mr. Tenthorey’s conviction for aggravated assault, and order a new trial. Released: May 18, 2021 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. S. Coroza J.A.” [1] By the time of trial, Mr. Tenthorey and Ms. Gregory were engaged to be married. As such, they are respectively referred to as “fiancé” and “fiancée” in parts of the record re-produced below. [2] As pointed out in R. v. G.R . , 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 29, statutory provisions may also expressly create included offences.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Topol, 2021 ONCA 217 DATE: 20210407 DOCKET: C67875 Pardu, Brown and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Robert Topol Appellant Robert Topol, acting in person Chris G. Bendick, for the respondent Heard and released orally: April 6, 2021 by video conference On appeal from the decision of Justice Nyron Dwyer of the Ontario Court of Justice, dated April 12, 2019, dismissing the appeal from the conviction entered by Justice of the Peace Rhonda Shousterman on August 14, 2018 REASONS FOR DECISION [1] The appellant was convicted of speeding by a justice of the peace for driving at 91 km/h in a 50 km/h zone. His appeal to the provincial offences appeal court was dismissed. [2] Roberts J.A. granted leave to appeal that decision, noting “there is good reason to believe that the appeal judge misapprehended the mathematical errors the moving party highlighted and erred in mischaracterizing the discrepancies as minor.” Citing R. v. Morillo , 2018 ONCA 582, 362 C.C.C. (3d) 23, she added that the appeal “raises special ground in that it concerns process issues essential to the public interest and for the administration justice”, namely the scrutiny of officers’ oral testimony in traffic offences involving self-represented accused. [3] The charging officer testified at trial that he measured the time and distance travelled by the appellant, but this testimony implied a speed widely different from that measured by the radar device. The respondent concedes that the discrepancy between the officer’s testimony and the radar reading was significant and could have raised a reasonable doubt as to whether the speed-measuring device was functioning properly. The respondent concedes that the justice of the peace made a palpable and overriding error in failing to consider this evidence and that a new trial is required. We agree. [4] The conviction is set aside, and the matter is remitted back to the trial court for a new trial. The respondent indicates that it will withdraw the charge as it is no longer in the public interest to continue the prosecution. [5] Mr. Topol seeks costs for his expenses, time, and trouble dealing with this proceeding. The general rule is that no costs are awarded in a proceeding under the Provincial Offences Act , R.S.O. 1990, c. P.33: see R. v. Felderhof (2003), 68 O.R. (3d) 481 (Ont. C.A.), at para. 100; R. v. Kazemi , 2013 ONCA 585, 117 O.R. (3d) 300. These appeals resulted from an error by the trial justice, and we see no basis to award costs. “G. Pardu J.A.” “David Brown J.A.” “David M. Paciocco J.A.”

C OURT OF APPE AL FOR ONTARIO CITATION: R. v. Trought, 2021 ONCA 379 DATE: 20210603 DOCKET: C 64815 Feldman, Lauwers and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Trought Appellant R. Craig Bottomley and Andrea Vanderheyden, for the appellant Lisa Csele, for the respondent Heard: February 16, 2021 by video conference On appeal from the conviction entered by Justice Robert F. Goldstein of the Superior Court of Justice on December 19, 2016. Trotter J.A.: A. Introduction [1] The appellant was convicted on a single count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. He appeals his conviction on two grounds. First, he submits that the trial judge erred in dismissing his application under s. 11(b) of the Canadian Charter of Rights and Freedoms . Second, he contends that he received ineffective assistance from his trial counsel, particularly as it related to his decision to testify. [2] The following reasons explain why I would dismiss the appeal from the trial judge’s s. 11(b) ruling. However, I would allow the appeal because the appellant received ineffective legal assistance. B. Factual Overview [3] The case against the appellant was rooted in the fruits of a search of his apartment, where the police found a large amount of cocaine, along with assorted drug paraphernalia. The search was conducted pursuant to a warrant that was based on information supplied by a confidential informant. The appellant challenged the warrant under s. 8 of the Charter by attacking the information said to have come from the informant. [4] The confidential informant referred to two locations relevant to the narrative of events. The first is 165 Legion Road, Unit 1225 in Toronto. The police believed Unit 1225 was being used as a stash house for drugs and/or the proceeds of crime. Keeli Stith, a woman the appellant was seeing at the time, lived at 165 Legion Road, in Unit 434. The appellant went to her apartment on the evening of Sunday, July 28, 2013. An unrelated break-in occurred in the building in the early morning hours of July 29th that resulted in considerable police presence. The police knocked on Ms. Stith’s door at about 2:00 a.m. The appellant and Ms. Stith told the police that they heard a loud bang, but they were unable to provide any further information. [5] Shortly after the police visit, the appellant left the building and went home. The appellant lived at 80 Harrison Gardens Boulevard, Unit 520, which is roughly half an hour away. This is the second location to which the confidential informant referred. Later that day, at about 4:00 p.m., the appellant returned to 165 Legion Road for a short visit with Ms. Stith. There was still a significant police presence. [6] The police arrested the appellant in the Ford Fusion on July 30, 2013. Armed with a search warrant, they searched the appellant’s apartment, where they found 2 ½ kilograms of powder cocaine, 7 grams of crack cocaine, $440 in cash, a money counter, packaging paraphernalia, a debt list, as well as correspondence and identification bearing the appellant’s name. [7] The issuance of the search warrant was explained in the trial judge’s ruling dismissing the appellant’s s. 8 Charter application (see R. v. Trought , 2016 ONSC 7919). The trial judge noted that the confidential informant reached out to the Toronto police on July 30, 2013, and provided the following information: • an unknown male was parked in the vicinity of 165 Legion Road; • the unknown male was described as Black, athletic, and slender; • the unknown male was driving a black Ford Fusion with Ontario licence DLJX 572; • the unknown male met with a white male; • the white male was described as 6’1”, 150-160 lbs., with short brown hair; • the unknown male showed the white male a large quantity of cocaine in kilo bricks in the trunk of the Ford Fusion; • several police cruisers showed up while the unknown male was showing the white male the cocaine bricks; • the unknown male drove to the area of Harrison and Everson Drive in Toronto, where he had his stash house; and • the Ford Fusion was a rental vehicle that could not be traced back to the unknown male. [8] Trial counsel initially challenged the validity of the search warrant by alleging that the police fabricated the information said to have come from the confidential informant. He later backed off from that position, maintaining that, if the information did originate with the confidential informant, the part about the appellant showing bricks of cocaine from the trunk of the car was so ridiculous that it must be false. [9] The appellant testified on the Charter voir dire for the s. 8 challenge. In his evidence in chief, he claimed that he did not show anyone bricks of cocaine in the trunk of his car. In cross-examination, the appellant admitted to trafficking in cocaine. He acknowledged that half a kilogram of the cocaine seized from his apartment belonged to him; however, the rest belonged to a friend (who was also his supplier). The appellant allowed his friend to leave drugs in the apartment on the day of the seizure. [10] During a colloquy with the trial judge after the appellant testified, trial counsel agreed that the trial could proceed in a blended fashion (i.e., the appellant’s voir dire evidence would be applied to the trial proper if the Charter application failed). It did, and trial counsel invited the trial judge to find the appellant guilty. He did, and then sentenced the appellant to 5 ½ years’ imprisonment. C. Unreasonable Delay [11] The appellant submits that the trial judge erred in failing to find that his right to be tried within a reasonable time under s. 11(b) of the Charter was infringed. It is not necessary to examine all of the steps taken in the proceedings in minute detail, because the appellant advances two focused arguments in support of this ground of appeal: (1) the trial judge erred in relying on the transitional exceptional circumstance; and (2) the trial judge erred in the manner in which he dealt with the asserted prejudice. [12] The appellant was charged on July 30, 2013. When he applied for a stay of proceedings under s. 11(b), his trial in the Superior Court of Justice was expected to finish by October 29, 2016 – 39 months from the date the appellant was charged. [13] Until the later stages of the trial proceedings, the parties were governed by the framework in R. v. Morin , [1992] 1 S.C.R. 771. However, the landscape shifted dramatically on July 8, 2016 when the Supreme Court of Canada released its judgment in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631. Under the new regime, after deducting 5 months for defence delay, the remaining 34-month delay exceeded the applicable presumptive ceiling of 30 months. [14] The trial judge concluded that the transitional exceptional circumstance applied in this case. As he said, at para. 25 of his ruling: “The parties reasonably relied on the law as it existed at the time.” See also paras. 26-27 and the reference to R. v. Coulter , 2016 ONCA 704, 133 O.R. (3d) 433, at para. 56. [15] The appellant contends that the trial judge did not explain why it was appropriate to apply the transitional exceptional circumstance. He submits the Crown had an onus to justify the application of the transitional exceptional circumstance, yet the trial judge’s reasons do not disclose how the Crown relied on the pre- Jordan jurisprudence. I disagree. It was apparent from the Crown’s trial submissions that it relied on the law as it existed throughout most of the proceedings, until Jordan ushered in a new approach. In R. v. Powell , 2020 ONCA 743, 153 O.R. (3d) 455, at para. 37, Nordheimer J.A. said: “There was no reason … for the parities to believe that they would be judged by a different standard.” The same conclusion may be drawn in this case. [16] The manner in which the parties proceeded in the pre- Jordan stages of the proceedings reflects an adherence to the dictates of Morin . Regrettably, it also reflects the impetus for change that inspired Jordan – both sides seemed content with a relaxed approach to the progress of the case. On the one hand, the Crown took too long to disclose a redacted version of the relatively straightforward Information to Obtain a search warrant (“ITO”); however, the trial judge accounted for this lapse by attributing three months of Crown delay. On the other hand, trial counsel adjourned the preliminary inquiry so that he could take a vacation, resulting in a five-month delay. Neither side distinguished itself in terms of efficiency. [17] Nevertheless, the case was close to (if not within) the Morin guidelines. The trial judge found that the institutional plus Crown delay in the Ontario Court of Justice was 11 months (set against a guideline of 8-10 months), whereas in the Superior Court the delay was 9 months (with a guideline of 6-8 months). On appeal, the Crown submits that the trial judge made mathematical/rounding errors such that the institutional/Crown delay was properly 17.5 months, just below the Morin guidelines. The appellant did not contradict this re-calculation during the hearing. [18] I need not resolve this issue definitively. The trial judge subsequently mentioned in his discussions with counsel that his s. 11(b) determination involved a “close call”. I agree with his assessment. [19] The appellant also submits that the trial judge erred in the manner that he addressed asserted prejudice by the appellant. In an affidavit, the appellant claimed that, as a result of the delay in his proceedings, he developed high blood pressure, his income-earning opportunities decreased, and his inability to travel outside Canada resulted in him missing “family functions and funerals”. Lastly, he asserted that a long-term relationship with a woman (not Ms. Stith) experienced “significant deterioration”. [20] The appellant acknowledged that the Crown consented to “some relatively minor variations” of his bail. However, missing from the appellant’s affidavit is any indication that he sought other bail variations to ameliorate the hardships he sought to rely upon. He failed to back up his medical complaints with any supporting documentation typically seen in these circumstances. His affidavit was also light on detail, especially in relation to the impact of his inability to travel outside Canada. [21] In dismissing the s. 11(b) application, the trial judge said, at para. 40: “Having reviewed Mr. Trought’s affidavit, I am not satisfied that the prejudice he has suffered, while real, arose out of the delay rather than the fact of the charges.” I agree with the appellant’s counsel that this aspect of the trial judge’s reasons is cursory. However, given the lack of initiative on the appellant’s part to address the bail restrictions he faced, I see no reason to disturb the trial judge’s finding. [22] I would dismiss this ground of appeal. D. Ineffective Assistance of Counsel (1) Introduction [23] The appellant submits that he received ineffective assistance from his trial counsel. [1] Although the appellant’s application was initially quite broad when filed, his factum and oral argument focused on the manner in which trial counsel conducted the s. 8 Charter application. The appellant submits that trial counsel’s ineffectiveness is reflected in his agreement to a blended procedure without first obtaining instructions from the appellant. [24] The appellant claims that he was blindsided by this decision. He thought that his evidence would only be used on the voir dire . Relatedly, because he was unaware of the concept of constructive possession, the appellant did not realize that his testimony about allowing his friend to keep cocaine at his apartment was inculpatory. The appellant never intended to confess under oath to possessing all of the cocaine seized from his apartment. Had he been properly advised about the legal effect of his evidence, and had he known about the use to which it would ultimately be put, he would not have testified at all. He said that trial counsel’s ineffectiveness deprived him of his right to stay silent at trial, or at least the ability to make a meaningful and informed choice on this fundamental issue. [25] The respondent submits that the appellant was adequately represented. The case was always about the validity of the search warrant: if the Charter application failed, guilt would inevitably follow. The respondent points to an Agreed Statement of Facts that was filed at trial in which the fruits of the search are acknowledged. The appellant was involved in the preparation of this document, reflecting that he knew all along that he would be found guilty if he was unsuccessful in excluding the evidence. In short, the respondent submits that any missteps by trial counsel were inconsequential. (2) Proceedings at Trial [26] A good deal of the case against the appellant was based on preliminary inquiry transcripts that were filed on consent. In the lead up to the Charter voir dire , trial counsel advised the trial judge that the appellant would testify that he had “nothing to do with what the confidential informant allege[d]” and would give evidence “admitting that the apartment was his, admitting that some of the drugs in that apartment were his.” Trial counsel later said that the appellant would “have some comment about what of those drugs were actually his drugs”. The trial judge inquired: “And that’s in relation to the warrant. This is not the trial itself.” Trial counsel said, “Yes, on the application.” [27] I pause here to observe that trial counsel’s approach to attacking the search warrant was somewhat unique. At the preliminary inquiry, he was unsuccessful on a motion to cross-examine the affiant of the ITO. He considered renewing the application at trial, but ultimately decided against doing so because he received further information from the Crown. Consequently, without challenging any police officer about the existence of the confidential informant, or the plausibility of the information supplied to the police, trial counsel put the appellant forward to imply that either the informant did not exist or the information they provided to the police was fabricated. [28] As noted above, Keeli Stith testified as a witness. She lived at 165 Legion Road, Unit 434 and testified about the appellant’s presence in her apartment during the evening of Sunday, July 28, 2013 and the police visit in the middle of the night in relation to the burglary in the building. The appellant left about 30 to 45 minutes after the police visit. The appellant returned to Ms. Stith’s apartment around 4:00 or 5:00 p.m. that same day, July 29, to bring her food. Ms. Stith accompanied the appellant downstairs when he was leaving. There were many police cars parked out front. Ms. Stith suspected that there was an undercover officer in the lobby. After the appellant left, she returned to her apartment. [29] Ms. Stith knew nothing of the appellant’s involvement with drugs. She thought he was a stock trader. [30] The appellant testified that July 28, 2013 was the first time he went to 165 Legion Road. He denied showing anyone bricks of cocaine from the back of a car. In fact, he did not have cocaine on him when he went there. The appellant testified that, when he left the building in the early morning hours on July 29, there were as many as 10 police cars outside. The appellant said that he returned to the building later that day with food for Ms. Stith. There was still a “massive” police presence. The appellant stayed for half an hour and then left. Ms. Stith walked him outside. He went home. The next day, he was arrested in his vehicle on his way home from a community barbecue. [31] While the appellant’s examination-in-chief was focused on issues related to the search warrant, the appellant was cross-examined extensively on his activities as a drug dealer. [32] The appellant admitted that half a kilogram of the cocaine found in his apartment belonged to him. He allowed his friend/supplier to leave some cocaine in his apartment on the day that the search warrant was executed. His friend was to retrieve his portion of the cocaine later that day. The appellant admitted that the scales were his, as was the money counter. He acknowledged that there was over $100,000 worth of cocaine in his apartment. [33] The appellant testified that he did not traffic cocaine on a large scale. He estimated he sold drugs to four people a month. He had never purchased cocaine at the kilogram level. In relation to a notebook that the police said contained a drug debt list, which was found in close proximity to a large quantity of drugs, the appellant claimed that it was used to record gym promotions, another line of work he pursued, “partner draws”, and his stock trading information. [34] During their search, the police also discovered seven grams of crack cocaine. The appellant disavowed any prior knowledge of crack in his apartment. He surmised that his supplier gave him a “sample” of crack cocaine. [35] After the appellant testified, the trial judge addressed counsel to “be clear about [what was] going on [that] morning.” He observed that they were in the midst of a s. 8 Charter voir dire , but he heard a lot of evidence that did not relate to the preconditions to the issuance of the search warrant. The trial judge said that he assumed it was meant to be a blended procedure. Trial counsel responded immediately: The reality is that this is a blended hearing . The reality is that all of the evidence, including my client’s evidence and eyewitness, although strictly I said I’d call him on the motion … I’m content they be heard on the trial. My client’s, if you admit the evidence, would be sufficient to establish a guilt regardless of his admission, so his evidence doesn’t hurt him on the trial at all. This witness doesn't hurt him on the trial at all. So all of the evidence can apply to both the motion and the trial. It’s a true blended hearing. [Emphasis added.] [36] There was further discussion and trial counsel agreed with the trial judge that, if the evidence were to be admitted, the appellant’s evidence could be considered in mitigation or aggravation of sentence. [37] After another police witness gave evidence and the parties made closing submissions, the proceedings were adjourned for approximately six weeks. When the trial resumed, the trial judge dismissed the Charter application. In his written reasons, the trial judge thoroughly rejected the appellant’s evidence. As he said at para. 40: “I simply do not accept that Mr. Trought is a credible witness. Although a self-confessed drug dealer, he took pains to minimize his involvement in the business.” He repeated his rejection of the appellant’s evidence at a number of junctures in his reasons [2] and made detailed findings in support of his conclusions. [38] After providing counsel with a written copy of his ruling, the trial judge asked about “next steps”. Trial counsel advised: “Well, there’s no other issue in the trial Your Honour, so the next steps is for you to make a finding of guilt. … All of the evidence applies. It’s the only issue I was litigating.” The trial judge made the finding of guilt and the case was adjourned for sentencing. (3) Fresh Evidence on Appeal [39] The appellant filed an affidavit in support of his claim of ineffective assistance of counsel. Trial counsel filed an affidavit in response. Both were cross-examined. The parties agreed that the affidavits and cross-examination transcripts were properly before us for the purpose of considering this issue: see R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 232-33; R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp. 43-44; and R. v. Chica , 2016 ONCA 252, 348 O.A.C. 12, at para. 5. [40] The key issues are whether trial counsel properly advised the appellant about the implications of acknowledging that he allowed his friend to leave drugs in his apartment, and whether he trammeled on the appellant’s right to decide whether to testify without consulting him about the blended procedure. Typical of this type of application, trial counsel and the appellant are at odds as to what happened. (4) Analysis: The Appellant was Ineffectively Assisted by Counsel [41] I begin with a discussion of the governing principles and then consider the evidence. (a) Introduction [42] The framework for assessing claims of ineffective assistance of counsel is well-established. The appellant must establish: (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B . , 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; Joanisse , at p. 59. [43] Elaborating on the third criterion, miscarriages of justice may take various forms. Some may impact on the outcome of the trial; others may disclose unfairness in the proceedings: R. v. K.K.M . , 2020 ONCA 736, at paras. 55, 91. As Major J. said in G.D.B . , at para. 28: “In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.” [44] In R. v. Stark , 2017 ONCA 148, 347 C.C.C. (3d) 73, this court found that the appellant’s trial counsel made the election as to mode of trial without consulting his client, resulting in a finding of ineffective assistance of counsel. Lauwers J.A. said, at para. 20: “The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.” See also K.K.M . , at para. 91. This court has recognized that public confidence in the administration of justice is just as shaken by the appearance, as by the fact of an unfair proceeding: see, for example, R. v. Olusoga , 2019 ONCA 565, 377 C.C.C. (3d) 143, at para. 13; and R. v. McDonald , 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51. [45] The appellant acknowledged that he was aware that, if the s. 8 Charter application failed, the case against him was formidable, if not worse. However, the appellant’s claim is based on the fundamental unfairness of being undermined by trial counsel’s combined failure to properly advise him about the implications of his anticipated testimony and to obtain proper instructions on the decision to have his testimony apply at trial. (b) The Decision to Testify [46] The appellant’s allegation of ineffective assistance engages consideration of the respective roles of defence counsel and the client in a criminal proceeding. Who is in charge of what? Modern criminal practice assigns the vast majority of decisions in a criminal trial to defence counsel. Counsel is expert in the law. They are required to assist the accused person in navigating the criminal trial process by providing sound legal advice. However, it is recognized that certain decisions belong to the client: David Layton & Hon. Michel Proulx, Ethics and Criminal Law , 2nd ed. (Toronto: Irwin Law, 2015), at p. 105. [47] In his famous article, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87, G. Arthur Martin (later, the Honourable G. Arthur Martin, of this court) identified the following decisions that are the client’s to make: (1) how to plead; (2) whether to waive the right to a jury trial (where that option is available); and (3) whether to testify. [48] This list has been modified over the years. For instance, item (2) in Justice Martin’s article now encompasses the choice between a judge alone trial in the Ontario Court of Justice and the Superior Court: Stark , at para. 18. In R. v. Szostak , 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 77-80, this court held that it is the client’s decision whether to advance the defence of not criminally responsible on account of mental disorder under s. 16 of the Criminal Code ; counsel cannot advance this defence without instructions. [49] Because the right to make these decisions belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in Stark , the question is whether “counsel has made certain decisions that should have been made by the accused person because they relate to the accused person’s fundamental right to control his or her own defence”: at para. 16, citing R. v. Swain , [1991] 1 S.C.R. 933, at p. 972. [50] With respect to these fundamental decisions, ones that belong to the client, all the lawyer can do is provide advice and act on proper instructions. But that advice must be competent. As Doherty J.A. said in K.K.M . , at para. 91: An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial . Either results in a miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict…. [Emphasis added.] [51] The quality of advice on the decision to testify was at issue in R. v. Faudar , 2021 ONCA 226. Faudar was charged with firearms offences that were discovered through the execution of a search warrant. He testified that, unbeknownst to him, his friend left a handgun and ammunition in his music studio. Faudar moved the items to his locked bedroom, where they were discovered days later when the police executed the search warrant. His innocent possession defence was rejected, and he was found guilty. [52] On appeal, Faudar alleged that he received ineffective assistance from his trial counsel – his lawyer insisted that he testify, even though he did not want to. As in this case, appellate counsel submitted that trial counsel essentially set his client up for certain failure by having him admit, under oath, the legal elements of possession. In response, it was the Crown’s position that Faudar chose to testify, but it had no impact on the verdict in any event – because Faudar’s s. 8 Charter application was unsuccessful, the evidence that was admitted overwhelming established his guilt. [53] This court dismissed the appeal. Writing for the court, Tulloch J.A. endorsed the holdings in Stark and K.K.M . concerning the right of the accused to make fundamental trial choices and the lawyer’s corresponding obligation to “offer sage advice in this regard”: at para. 80. He concluded that Faudar’s decision to testify was informed and voluntary, at para. 82: “Defence counsel detailed the significant risk of conviction on the basis of constructive possession in a reporting letter provided to the appellant prior to trial.” Moreover, Tulloch J.A. observed that there was ample evidence pointing to constructive possession, even without Faudar’s testimony: at para. 88. Nevertheless, he held that there was some faint hope of success in Faudar’s innocent possession assertion that justified the decision to elicit his evidence. [54] Lastly, combined with other allegations of incompetence, Tulloch J.A. determined that, even if defence counsel had made some missteps, Faudar failed to establish that counsel’s performance undermined the integrity or reliability of the verdicts, or that it rendered the trial unfair: at para. 109. [55] With these principles in mind, I turn to assess the evidence proffered by the appellant and counsel. (c) The Appellant’s Affidavit and Cross-Examination [56] In his affidavit, the appellant acknowledged discussing with trial counsel the possibility of testifying. As he said: In one of our meetings, [trial counsel] and I discussed the possibility of me testifying. My understanding was that if I were to testify on the section 8 motion, my evidence would not be part of the substantive trial. It was [trial counsel’s] idea that I not testify on the trial, only the motion. It was also [trial counsel] who told me that my testimony on the motion could not be used at the trial. [Trial counsel] knew that if I were to testify under oath I would have to admit that a portion of the cocaine found by the police belonged to me. The bulk of it belonged to a friend of mine. [Trial counsel] did not explain the concept of constructive possession. [57] The appellant stated that trial counsel advised the trial judge that the procedure would be a blended procedure after the s. 8 Charter motion was dismissed. In fact, this occurred after the appellant testified, but before the trial judge’s ruling. The important point is that the appellant swore that trial counsel did not confer with him before agreeing to the blended procedure, saying: “[I]t was in direct contradiction to how [trial counsel] had told me my evidence could be used. Had I known that my evidence would be admissible at my trial, I would not have testified”. [58] In his cross-examination, the appellant testified that he had never previously been arrested or charged with a criminal offence. He said, “[T]his charge is the first I’ve ever been through the process”. Nevertheless, he knew that if the evidence was admitted, the case against him was “overwhelming”. [59] The appellant testified that he was not aware of what a “blended trial” meant. When he eventually learned that his evidence would be used on the trial, he did not raise the issue with trial counsel. As he said: No, I did not raise that concern with my counsel. And at the end of the day, what I was told, my evidence would not be used against me. I wouldn’t have gone up there and confessed. I -- that’s what I was told. It would not be used against me. He gave me multiple examples of people going up there and saying they did this and then it cannot be used in the trial. And I also asked him, “Well, if a judge hears it, how is he going to unhear it?” Kind of, if you know understand what I mean. He goes, “Well” -- (d) Trial Counsel’s Affidavit and Cross-Examination [60] The essence of trial counsel’s affidavit is that he was in frequent communication with the appellant about the conduct of his trial. As he said, “[the appellant] was fully engaged in each and every decision both up to and including the trial.” He emphasized that the defence of the case was always focused on attempting to exclude the evidence seized pursuant to the search warrant. Trial counsel said: “It was all or nothing, win or lose. If the drugs were excluded we win, if the drugs were admitted we lose.” [61] Trial counsel characterized as “nonsense” the appellant’s assertion that he first heard about the blended procedure when it happened. As he explained: “He was fully aware of my tactics and that it would be a blended trial and that this approach was specifically designed to be effective with the learned trial judge and maximize our chances of success. If he had not testified the chances of success were zero.” However, trial counsel could not pinpoint precisely when he advised the appellant about a blended procedure. [62] I wish to comment on an unfortunate passage in trial counsel’s affidavit. In his introductory paragraphs, he indicated that he had known the appellant for a couple of decades and had been introduced to “friends and associates of his who were also engaged in the sale of cocaine and other illicit drugs.” Trial counsel then said: “It has always been abundantly clear to me that Mr. Trought was a career drug dealer although he also engaged in other lawful employment from time to time to earn an income and pay taxes, his primary vocation was the sale of drugs.” [63] This assertion is at odds with the appellant’s trial evidence, and his evidence on the fresh evidence application. The appellant does not have a criminal record; in fact, before this case, he had never been charged with a criminal offence. [64] I appreciate that a claim of ineffectiveness is unpleasant for the lawyer who is the target of such an allegation. However, such gratuitous comments about a former client are unhelpful and unnecessary to respond to the allegations of ineffectiveness. [65] The cross-examination of trial counsel revealed shortcomings in his response to the allegations of ineffectiveness. When questioned by the respondent, trial counsel claimed that he received instructions on the decision to testify. Asked whether he got written instructions, he said: “Absolutely not. I, perhaps, am flawed in this regard. I do not get written instructions from my clients.” Trial counsel spoke of “rare occasions” when he might get written instructions and said, “But I wouldn’t say that 10 times out of a 47-year career have I received written instructions on an issue like that.” [66] When trial counsel was asked whether he advised the appellant about a “blended trial”, he said, “Well, I don’t know if I ever used the term ‘blended trial’ to [the appellant]. I made it clear that he would give evidence on the voir dire and that I would have the -- that the -- suggest that the evidence apply to the trial itself.” He was unable to specify when this discussion occurred. [67] The cross-examination of trial counsel revealed confusion as to when the decision was made to go with a blended procedure. Trial counsel acknowledged that he did not mention it to the trial judge at the outset of the motion, or when the appellant testified. Yet, he maintained that the appellant always knew that his only hope of success was to exclude the evidence of the drugs, otherwise “[they] were toast on the trial.” The appellant’s counsel referred trial counsel to the exchange with the trial judge referred to in para. 35 above and suggested that this was the point in time when the decision was made. Trial counsel gave the following answer: That’s the way it looks, in reading. I don’t have a perfect memory of what was going on in my mind. The judge caught me by surprise when he raised that. I thought it was a valid thing for him to raise. I thought it was in [the appellant’s] interest that if we lost the motion, that the other evidence that [the appellant] had given was beneficial to him in things like sentence. [Emphasis added.] (e) Factual Findings on the Evidence of Ineffective Assistance [68] Comparing the competing accounts by the appellant and trial counsel against the backdrop of the trial transcript, I am able to reach the following conclusions: · the appellant and trial counsel had many discussions over the 39 months it took to bring this case to trial, yet trial counsel could not pinpoint when he discussed the blended procedure with the appellant; · the appellant understood that if he was unsuccessful on his s. 8 Charter motion, he would be found guilty; · although an Agreed Statement of Facts was filed at trial, the appellant’s understanding of this document and any participation he may have had in its production, remained a question mark. Moreover, neither in his affidavit nor during cross-examination did trial counsel rely on the creation of this document to justify having the appellant admit his guilt under oath; · the excerpt from the trial transcript (at paras. 26 and 35, above) and trial counsel’s cross-examination (at para. 67, above) strongly suggest that the first time he turned his mind to the possibility of a blended procedure was mid-trial, when the trial judge raised the issue. It is also clear from the record that, after the trial judge raised the issue, trial counsel did not consult with the appellant before answering the trial judge’s question and agreeing to a blended procedure; and · trial counsel did not explain, nor did the appellant understand, the concept of constructive possession as it related to all of the drugs found at his apartment. (f) Conclusions on Ineffective Assistance [69] I am satisfied that the appellant did not receive proper legal advice about his right to decide whether to testify, nor did he authorize the expanded use of his testimony. These failings resulted in an appearance of injustice that requires appellate intervention. [70] To begin with, the appellant was not made aware of the concept of constructive possession. He took to the witness stand and testified that about a fifth of the drugs seized “belonged” to him; the rest “belonged” to his friend. The trial judge rejected this factual assertion as untrue. But it did not matter who owned the drugs in these circumstances – as a result of the appellant’s admitted control over his apartment, and his knowledge that his friend’s drugs were being stored there, he would have been guilty by virtue of constructive possession: see Criminal Code , R.S.C. 1985, c. C-46, s. 4(3); R. v. Morelli , 2010 SCC 8, [2008] 1 S.C.R. 253, at para. 17. [71] In light of this shortcoming in advice, the appellant’s decision to testify was not an informed one. To repeat the words of Doherty J.A. in K.K.M . , at para. 91: “An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.” [72] This misstep was compounded by trial counsel’s decision to convert the proceeding into a blended procedure, whereby the appellant’s sweeping (and unwitting) admission of guilt lost the protective shield of the voir dire . It was incumbent on trial counsel to discuss the issue with the appellant and to obtain instructions: G.D.B . , at para. 34. Through a lack of proper professional advice, coupled with a failure to consult and obtain instructions, the appellant chose to testify on the voir dire , not knowing that his evidence would become the functional equivalent of a guilty plea, or a sworn confession, as his counsel characterized it on appeal. [73] I wish to be clear that the trial judge’s inquiry about a blended procedure was proper and timely. The cross-examination of the appellant had taken the voir dire in a different direction, having little to do with the warrant, and mostly focused on the appellant’s drug dealing activities. But this was predictable. In the circumstances, trial counsel ought to have paused, both for the purposes of consulting with the appellant, and to review the appellant’s just-completed testimony with him before making the critical decision to have it apply to the trial proper. By any measure, the appellant’s cross-examination went terribly. This is confirmed by the trial judge’s numerous and adverse credibility findings (see para. 37, above). [74] The appellant’s trial became unfair because he received inadequate legal advice. I accept that the case against him was considerable. Once the drugs were admitted, a conviction was inevitable. But the appellant was still entitled to competent advice in negotiating the criminal trial process. As noted above, although he is an intelligent man, this was the first time he had been charged with an offence. He needed to understand the legal implications of his version of events, whereby he effectively confessed to possessing over $100,000 worth of cocaine. He did so believing that his own evidence could not be used against him when it came time to determine his ultimate guilt or innocence. [75] The case was serious and the evidence was strong. Nevertheless, to let this result stand in light of what happened at trial would gut the right to effective assistance at a criminal trial, which is seen as a principle of fundamental justice: see G.D.B . , at paras. 24-25; Joanisse , at p. 57. [76] In concluding this ground of appeal, I wish to comment on trial counsel’s failure to obtain written instructions from the appellant about the decision to testify. In R. v. W.E.B . , 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill-advised and contrary to counsel’s best interests”: at para. 10. See also R. v. Shofman , 2015 ONSC 6876, 90 M.V.R. (6th) 257, at para. 48. [77] The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism: see Christine Mainville, “Professionally Serving and Managing Clients: Defence Counsel’s Role in the Solicitor-Client Relationship”, For the Defence , 39:3 (13 February 2019), at p. 9. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness. [78] The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal: see R. v. Hamzehali , 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal refused, [2017] S.C.C.A. No. 380, and R. v. Wells (2001), 2001 CanLII 24130 (Ont. C.A.), at para. 61. Written instructions may resolve competing claims on appeal. In R. v. Archer (2006), 202 C.C.C. (3d) 60 (Ont. C.A.), Doherty J.A. observed, at para. 143, “The largest hurdle faced by the appellant in trying to convince the court that the decision to testify was made by trial counsel is the direction signed by the appellant during the trial.” Similarly, in Faudar , at para. 82, Tulloch J.A. referred to a reporting letter sent by trial counsel about the perils of constructive possession. The same approach would also have been helpful in this case, avoiding the necessity of dueling affidavits and cross-examinations. E. Disposition [79] I would allow the appeal, set aside the conviction, and order a new trial. Released: June 3, 2021 “KF” “Gary Trotter J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.” [1] Neither Mr. Bottomley nor Ms. Vanderheyden. [2] For example, he said: “I do not accept Mr. Trought’s explanation” for renting a car through an intermediary (para. 41); “I do not believe him” in relation to only 500 grams of cocaine belonging to him (para. 42); “Mr. Trought’s innocent explanation that the notebook referred to gym promotions is simply not worthy of belief” (para. 42); “I found [his] evidence to be contrived” in relation to meeting visitors in the lobby of his building (para. 43). He later referred to the appellant’s evidence as a whole as being “highly suspect” (para. 55).

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tyrell, 2021 ONCA 15 DATE: 20210111 DOCKET: C67939 Juriansz, Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Levar Tyrell Appellant Matthew Gourlay, for the appellant Benita Wassenaar, for the respondent Heard: December 8, 2020 by videoconference On appeal from the conviction entered by Justice David L. Corbett of the Superior Court of Justice on March 6, 2018, and from the sentence imposed on April 25, 2018. Juriansz J.A.: [1] The appellant appeals his convictions by a judge sitting alone on charges of attempted murder and assault of a police officer with intent to resist arrest. For the reasons that follow, I would allow the appeal from both convictions. The appellant also appeals his convictions for firearm offences arising out of the same incident as the attempted murder charge. As I explain below, I would dismiss the appeals from those convictions. A. the attempted murder charge (1) The relevant facts [2] Early in the morning of May 1, 2016, the victim was shot in the abdomen while at an after-hours club. A single bullet shattered his pelvis as it passed through his body. He was in a coma for 16 days, underwent several surgeries, and remained in the hospital for a month. A photo array was presented to the victim soon after he emerged from the coma and while still under medication. He picked the appellant’s photo but said he was not sure. He did not mention having seen a gun. When a second photo array was presented some days later the victim positively identified the appellant, said he had not seen a gun, but added the appellant was known to carry a gun. [3] At trial the victim testified he was at the after-hours club in the early morning when he saw the beginnings of a physical altercation between two men. Acting as “a good Samaritan” he physically intervened by pushing one man aside. Then, while inquiring what was going on, he was shot. He testified that after being shot he saw the appellant holding a gun. The victim had seen the appellant a few times before and knew him by a nickname. Nothing negative had ever passed between them and he did not know of any reason the appellant might have to harm him. [4] A few weeks after the shooting the police spotted the appellant’s car while he was driving and boxed it into a parking space. When they approached his car, he tried to flee and collided with one of the officers . The police recovered a loaded handgun from the car that matched the spent bullet and casing found at the club after the shooting. [5] The appellant testified at trial . He acknowledged being at the after-hours club at the time of the shooting and standing in the room where the victim placed him at the time of the shooting. However, he denied being the shooter. He claimed that about a week after the shooting the owner of the club offered to sell him a gun at an extremely low price. He bought the gun intending to sell it for a sizable profit. It never occurred to him the gun might be “hot”. [6] The appellant testified he did not know the victim, did not recognize him from seeing him at the club before, and had no reason to hurt him. (2) The trial judge’s reasons for finding the appellant guilty of attempted murder [7] The trial judge found the appellant’s testimony “utterly unbelievable” and found it did not raise a reasonable doubt of his guilt. [8] The trial judge accepted the victim’s testimony at trial identifying the appellant and placing a gun in his hands. The trial judge said there was no reason to believe the victim was deliberately trying to set up the appellant to take the fall for the shooting. The victim had identified the appellant after regaining consciousness from a coma, and it would be a remarkable coincidence that he just happened to point the finger at the person who was found in possession of the gun that had been used. The victim’s testimony and the ballistics evidence were independent of each other, and both pointed to the appellant’s guilt. [9] The trial judge found additional support in the appellant’s conduct after the shooting. First, he had driven a friend to her place and then had spent the night there. The trial judge observed he had “no good explanation” for not going home. He accepted the Crown’s submission “that he did not go home because he was afraid that police would be looking for him and the first place they would look was his house.” Second, after the appellant’s illegally parked car had been towed away during the night, the appellant did not retrieve his car himself but sent a friend. The trial judge did not believe he had another family obligation and accepted the Crown theory “that [the appellant] knew he had hidden the gun in the car and he was afraid that he would be arrested if he went to pick up the car himself”. [10] The trial judge rejected the defence’s argument at trial that the position of the victim, the apparent trajectory of the bullet, and the position of the bullet and shell casing after the shooting supported an inference that the shot came from a place in the room other than from where the appellant was standing. The trial judge found the bullet and shell casing may have been kicked as people fled the room and the argument was not supported by expert testimony. [11] The trial judge said the eyewitness identification of the shooter combined with the police locating the gun in the car trunk of the person whom the eyewitness had identified as the perpetrator made this “an overwhelming crown case”. [12] The trial judge instructed himself as to the specific intent required for attempted murder, saying: Attempted murder is a specific intent offence. The crown must establish beyond a reasonable doubt that [the appellant] intended to kill [the victim]. Not just that he intended to shoot into a crowd of people or intended to fire the shot that ultimately hit [the victim]. The crown must establish beyond a reasonable doubt that [the appellant] had the specific intention to kill [the victim]. [13] Though there was no evidence of the motive for the shooting, the trial judge observed that “[t]he crown need not prove motive and intent may be inferred from the circumstances of the acts that took place.” The trial judge then inferred the appellant had the specific intent to kill the victim, saying: Here, I find [the appellant] intentionally fired his handgun across about 20 feet of distance, about 6 metres, striking [the victim] in the abdomen. There is no evidence of accident. There is no evidence of mistaken identity. There is no evidence that [the appellant] was aiming for someone else. In all of these circumstances I am prepared to infer that [the appellant] intended the natural and probable consequences of his act, given his relative proximity to [the victim] and the absence of any evidence that he intended something other than the natural consequences of shooting [the victim]. In my view, that is sufficient to make out the specific intent requirements for attempted murder. (3) The appellant’s argument [14] The appellant stressed that the Crown had to prove not only that the appellant discharged the firearm, but that he discharged it with the specific intent to kill: R. v. Boone , 2019 ONCA 652, 56 C.R. (7th) 432, at para. 51; The Queen v. Ancio , [1984] 1 S.C.R. 225, at pp. 248-49. As the doctrine of transferred intent does not apply, the Crown had to prove the appellant intended to kill the person he shot: R. v Gordon , 2009 ONCA 170, 94 O.R. (3d) 1, at para. 69, leave to appeal refused, [2009] S.C.C.A. No. 177. The “recklessness” arm for intent to murder does not apply: Ancio , at pp. 250-51. [15] The appellant submits that while the trial judge accurately stated the legal standard for the intent required, he erred in how he applied that legal standard to the facts of this case . [16] The appellant does not take issue with the trial judge’s finding of fact that the appellant “intentionally fired his handgun across about 20 feet of distance, about 6 metres, striking [the victim] in the abdomen.” Rather, he argues the finding of intent was with respect to his physical act of firing the handgun, not with respect to the consequence of striking the victim in the abdomen. The trial judge’s conclusion he had the specific intent to kill was an inference. The appellant accepts that where the evidence proves beyond a reasonable doubt the accused has committed a particular act, the common-sense inference may bridge the inferential gap allowing the trier of fact to make a finding of specific intent. As Cory J.A. (as he then was) observed in R. v. Bains , [1985] O.J. No. 41 (C.A.), at para. 27, leave to appeal refused, [1985] S.C.C.A. No. 158: All firearms are designed to kill . A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when , at close range , a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. [Emphasis added] [17] However, the appellant argues the application of the common-sense inference was manifestly inappropriate here. He proffers as an example an accused who, wildly brandishing a handgun, pulls the trigger and happens to hit the head of a bystander 100 yards away. While it could be said that the accused shot the victim in the head, one could not make a common-sense inference that the accused had the specific intent to kill the victim. The appellant submits that in the circumstances of this case the trial judge misapplied the common-sense inference that sane and sober people intend the natural and predictable consequences of their acts and reversed the burden of proof. [18] Here, there was no hint of a motive. Both men testified there was no animus between them. During argument the trial judge had recognized that the gap between the proven act of shooting and proof of the required intent was wide. He had observed “I don’t have any evidence of what [the appellant’s] intent was other than the fact that he fired at these men.…So, I mean, I don’t think that’s enough to get me beyond a reasonable doubt that he intended to hit [the victim].” [19] The appellant submits the trial judge erred by abandoning his initial instinct. He resorted to the common-sense inference and found the inference should be drawn because the appellant had not led any evidence of accident or mistake. This resulted in the reversal of the burden of proof. The appellant submits the resort to the common-sense inference was unreasonable in the circumstances of this case. (4) The Crown’s argument [20] The Crown took the position that the trial judge made a factual error in stating that the appellant fired his handgun from a distance of 20 feet. The Crown points out that the victim had testified the appellant was 10 feet away when the victim saw him holding the gun. No other witness had testified about the distance between the appellant and the victim. The Crown submits the distance of 20 feet in the trial judge’s reasons is without evidentiary support. [21] Had the trial judge considered the distance from which the appellant fired the handgun to be 10 feet from the victim, as the victim testified, the Crown submits, the common-sense inference that the appellant intended to kill the victim would have been very strong. The Crown submits that the common-sense inference is still available if the distance is considered to be 20 feet but recognizes the inference would be less compelling in that case . (5) Discussion [22] I am not persuaded that there is no evidentiary support for the trial judge’s finding that the distance between the appellant and the victim was about 20 feet. The location of the appellant and the victim at the time of the shooting were each clearly marked on photographs in the record. The photographs make clear that they were each standing in diagonally opposite corners of the room. A police witness who had measured the room had testified it was 4.05 metres wide and 6.87 metres long, or 13 ¼ feet wide and 22 ½ feet long. Therefore, the distance between the diagonally opposite corners would necessarily be appreciably greater than the 6.87 metres or 22 ½ feet measured length of the room. [23] The better view is that the trial judge did not make a mistake but that he based his finding of the distance between the appellant and the victim on their positions in the room and the dimensions of the room. It is worth noting that in his reasons for sentence the trial judge said the distance between the appellant and the victim at the time of the shooting was six to seven metres. The trial judge’s finding was not clearly wrong, unsupported by the evidence, or otherwise unreasonable, and should not be interfered with: R. v. Clark , 2005 SCC 2, [2005] S.C.R. 6, at para. 9. [24] When the distance between the shooter and the victim is taken to be about 20 feet or six metres as found by the trial judge, I am satisfied the circumstances cannot support the inference beyond a reasonable doubt that the appellant had the specific intent to kill the victim. [25] The trial judge had accepted the evidence of the appellant that he had no reason to hurt the victim. This was corroborated by the evidence of the victim. The victim offered an account of having intervened in an altercation between two men, neither of whom bore any known connection to the appellant. The appellant had fired a handgun from a distance of about 20 feet across a dimly lit, crowded room in the direction of the victim with the men who were involved in an altercation standing near him. As the trial judge had commented during argument, there was no evidence of what the shooter’s intent was other than that he had fired at these men. The trial judge noted there was no evidence of accident or mistaken identity. He might have noted there was no evidence that the victim was the intended target. That the shooter might have intended to shoot a different person, perhaps one of the men involved in the altercation, is not an irrational or fanciful conjecture. The trial judge should have considered this reasonable possibility: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. [26] I would allow the appeal of the conviction for attempted murder. (6) Other issues [27] It is unnecessary to deal with the appellant’s other arguments in detail . First, the appellant argues that the trial judge’s assessment of his post-incident conduct was based on misapprehensions of the evidence and these affected his assessment of the appellant’s credibility. Second, the appellant argues that the trial judge erred in summarily dismissing his application to admit video statements from two witnesses who were at the club but did not witness the shooting. The appellant submits the admission of this evidence would have undermined the victim’s credibility. [28] I am not persuaded the post-incident conduct was of much , if any, importance in undermining the appellant’s credibility. Before referring to post-incident conduct the trial judge had already found the coincidence of the victim identifying the appellant and the appellant’s possession of the gun was “way too remarkable for [him] to be able to accept [the appellant’s] story”. The trial judge made no mention of the post-incident conduct in describing this as an “overwhelming crown case”. As well , the trial judge used the appellant’s post-incident conduct as additional evidence to support his finding that the appellant was the shooter, a finding that was not attacked in the argument on appeal. [29] Nor am I persuaded that the video statements, had they been admitted, would have had any material effect on the trial judge’s assessment of the victim’s credibility. That the statements should have been admitted was pressed far more vigorously on appeal than it seems to have been at trial . [30] These two grounds of appeal, which apply to all the appellant’s convictions arising from the shooting incident, fail. Neither of these grounds has any bearing on the appellant’s conviction for assaulting a police officer with intent to resist lawful arrest. B. the Assault Police charge (1) The trial judge’s reasons for finding the appellant guilty of assaulting a police officer with intent to resist lawful arrest [31] Count 11 of the indictment charged the appellant with assaulting a police officer with intent to resist lawful arrest contrary to s. 270(1)(b) of the Criminal Code . [32] The trial judge summarized the evidence of how the police arrested the appellant. They spotted his car when he was driving and boxed it into a parking space. As the police approached the car, they ordered the appellant to stay inside the vehicle and told him there was an arrest warrant for him. The appellant disobeyed their direction and attempted to run away, colliding with one of the officers . The appellant testified he was seeking to avoid contact with the officer as he was trying to get away. [33] The trial judge accepted the appellant’s motivation and intention was to escape from the police and found him guilty of assaulting police with intent to resist arrest contrary to s. 270(1)(b) of the Criminal Code . Speaking of the appellant’s collision with the officer, the trial judge said: This is a natural consequence of the attempt by [the appellant] to resist arrest, this physical contact between the two of them , and is a natural consequence of his intent to run headlong as fast as he could to try to get around the officer. In my view, in those circumstances, the physical contact that took place was a result of reckless disregard as to whether there would be physical contact between the two of them and his conduct for which [the appellant] is liable under this charge to a finding of guilt. There was not a specific intent to assault . There was an intent to run headlong towards an officer whose duty and obvious intention was to stop [the appellant] in order to effect a lawful arrest. [Emphasis added.] (2) The appellant’s position [34] The appellant submits he was found guilty of this charge on the basis of recklessness. He points out that the offence of assaulting police with intent to resist arrest in s. 270(1)(b) of the Criminal Code combines the basic intent to assault with the additional intent to resist a lawful arrest. He quoted this passage from Morris Manning and Peter Sankoff, Manning, Mewett & Sankoff – Criminal Law , 5th ed. (Toronto: LexisNexis Canada, 2015), at p. 975: “applications of force that are careless or negligent do not constitute assault, and the fact that an injury resulted from the force does not alter the need for the offender’s intention to be proven beyond a reasonable doubt.” [35] The appellant also relied on the decision of this court in R. v. Palombi , 2007 ONCA 486, 225 O.A.C. 264, at para 35, stating: “[t]here is, of course, also a mens rea or fault element for the simple (common) assault offence. The force must have been applied intentionally.” [36] The appellant submits that while the trial judge found that he intended to resist arrest, the trial judge also expressly found he lacked the specific intent to assault the officer. Given these findings, the trial judge erred by convicting him on this charge. (3) The Crown’s argument [37] The Crown accepted the appellant’s exposition of the law and reviewed the testimony of the two police officers in detail . The appellant had dipped his shoulder, buckled up like a hockey or football player, and had charged at the officer. The Crown pointed out that the appellant, himself, had said he tried to “run through” the officer. This evidence, the Crown submitted , made clear beyond a reasonable doubt that the appellant had the intention to assault – not just an intention to resist arrest. (4) Discussion [38] I agree with the Crown that the testimony of the officers and of the appellant himself could well support a finding that the appellant intentionally collided with the officer while attempting to get away. However, the trial judge accepted the appellant’s testimony that he tried to avoid contact with the officer. He convicted the appellant on the basis of his “reckless disregard” as to whether he would make contact with the officer. The trial judge’s express finding that the appellant did not have the specific intent to assault is a finding of fact. Given this finding of fact, the conviction on this charge cannot stand and must be set aside. As the trial judge’s finding is determinative of this charge on its merits, an acquittal must be entered. C. Conclusion [39] I would allow the appeals from conviction, and set aside the appellant’s convictions for attempted murder and assaulting a police officer with intent to resist lawful arrest and enter acquittals on those charges. I would dismiss the appeals from the other convictions appealed from. [40] Count 2 of the indictment charged the appellant with committing an aggravated assault on the victim contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46. At the conclusion of sentencing, the trial judge conditionally stayed this count pursuant to Kienapple v. The Queen , [1975] 1 S.C.R. 729 as the appellant was convicted of attempted murder on count 1. At the end of oral argument, the appellant acknowledged that, if his conviction on count 1 were to be set aside, the proper result would be a conviction for aggravated assault. Proceeding in accordance with the Supreme Court’s decision in R. v. Provo , [1989] 2 S.C.R. 3, at p. 22, I would remit the matter to the trial judge to register a conviction on the aggravated assault charge and sentence the appellant for that offence. [41] I would set aside the conditional stay on the aggravated assault charge and remit the matter back to the trial judge to enter a conviction and sentence the appellant on that charge. In light of this disposition I would dismiss the appellant’s request for leave to appeal the sentence as moot. Released: January 11, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Jamal J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ukwuaba, 2021 ONCA 152 DATE: 20210310 DOCKET: C65917 Feldman, Paciocco and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Peter Ifejuna Ukwuaba Appellant Jessica Zita, for the appellant Brian G. Puddington, for the respondent Heard: March 8, 2021 by video conference On appeal from the convictions entered by Justice Casey Hill of the Superior Court of Justice on May 11, 2015, with reasons reported at 2015 ONSC 2953, [2015] O.J. No. 2349, and from the sentence imposed on February 17, 2016, with reasons reported at 2016 ONSC 3109, [2016] O.J. No. 2817. REASONS FOR DECISION OVERVIEW [1] The appellant, Peter Ukwuaba, was convicted after a trial by judge alone of three offences involving approximately one kilogram of heroin: (1) possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”); (2) importing heroin, contrary to s. 6(1) of the CDSA ; and (3) conspiracy to import heroin, contrary to s. 465(1)(c) of the Criminal Code of Canada , R.S.C. 1985, c. C-46. He was sentenced to 11 years’ imprisonment, concurrent on each charge. [2] Mr. Ukwuaba’s appeal counsel conceded, appropriately, that evidence showing he possessed the heroin for the purpose of trafficking was overwhelming. Accordingly, the conviction contrary to CDSA s. 5(2) is not being appealed. The appellant does, however, appeal the remaining two convictions and he seeks leave to appeal his sentences. [3] We notified counsel at the end of the oral hearing that, for reasons to follow, the conviction appeals are dismissed, but that leave to appeal the sentences is granted and the sentence appeal is allowed. The sentences of 11 years’ incarceration concurrent on each conviction are set aside, and concurrent sentences of 9 years’ incarceration are ordered. These are our reasons. ANALYSIS Appeals from conviction [4] Mr. Ukwuaba rested his conviction appeals on the absence of evidence linking him to the importation of the heroin until July 15, 2011, the day after the heroin left India by courier secreted in a box of automobile parts. On July 15, 2011, Mr. Ukwuaba received a text message containing the tracking number for the package and, on July 25, 2011, he received delivery of the package. He argues that, in the absence of any evidence of his participation in discussions leading to an agreement to export the heroin from India, the conspiracy conviction is unreasonable. He also submits that the fact that he took delivery of the couriered package upon its arrival cannot support a finding beyond a reasonable doubt that he was complicit in the importation. [5] We do not agree with either submission. It is evident that a package of valuable contraband would be sent to a trusted recipient. This couriered package of valuable contraband was addressed to a former resident of a rooming house. There was evidence that Mr. Ukwuaba was aware that the former resident no longer lived there. There was also evidence that Mr. Ukwuaba had formerly lived there himself and continued to receive mail deliveries at that residence, so he was aware that he could easily gain entry to receive a couriered package. [6] It is also evident that Mr. Ukwuaba was aware of the time when the couriered package would be delivered. He arrived at the subject residence shortly before the delivery, after having received a phone call from the same number used to text him the tracking number. Upon his arrival, he was observed conducting counter- surveillance of the residence before taking delivery of the couriered package. He was apprehended shortly after attempting to destroy the packaging information showing the origin of the box containing the heroin. [7] In these circumstances, it was appropriate for the trial judge to infer that Mr. Ukwuaba was the trusted recipient and that he would necessarily have agreed to perform that role prior to the decision to send the heroin by courier to his former residence. It was entirely reasonable, in the circumstances, for the trial judge to infer that Mr. Ukwuaba would have provided the details required to give effect to the importation plan before the courier shipment was arranged. [8] Accordingly, his convictions of importing heroin and conspiracy to import heroin were not unreasonable. Appeal from sentence [9] In support of his request for leave to appeal the 11-year concurrent sentences of imprisonment imposed on each of the three charges for which he was convicted, Mr. Ukwuaba urges that the trial judge failed to consider the principle of restraint or the mitigating circumstances that he was a first offender and the principal caregiver to his autistic son. [10] We do not accept this submission. The trial judge recognized in his sentencing decision that Mr. Ukwuaba was a first offender, and he imposed a sentence that reflects the principle of restraint. It was open to the trial judge to conclude that the sentence he imposed was “necessary” to satisfy the operative sentencing principles. [11] However, fresh evidence introduced on appeal shows that circumstances have changed materially since Mr. Ukwuaba was sentenced in February 2016. In May 2017, he suffered a debilitating stroke that left him largely immobile and with serious impairment of his ability to communicate. Given his poor health, the circumstances of Mr. Ukwuaba’s incarceration are no doubt harsher than anticipated at the time of his sentencing, and the needs for specific deterrence and incapacitation have lessened. When Mr. Ukwuaba was initially sentenced, the Crown sought a sentence of 9 to 12 years’ incarceration. We are persuaded by Ms. Zita, Mr. Ukwuaba’s appeal counsel, that it is in the interests of justice to set aside the 11-year concurrent sentences imposed, and to substitute concurrent sentences of 9 years’ incarceration. DISPOSITION [12] The conviction appeals are therefore dismissed. We grant leave to appeal the sentence, set aside the sentences imposed, and substitute sentences of 9 years’ imprisonment, to be served concurrently on each of the three convictions. All other terms of the sentence remain. “K. Feldman J.A.” “David M. Paciocco J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. V.E., 2021 ONCA 254 DATE: 20210422 DOCKET: C67695 Fairburn A.C.J.O., Doherty and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and V.E. Appellant Cassandra Richards, for the appellant Gregory Furmaniuk, for the respondent Heard: April 14, 2021 by video conference On appeal from a conviction on a charge of sexual assault entered by Justice Marc D’Amours of the Ontario Court of Justice, dated April 1, 2019. REASONS FOR DECISION [1] The appellant appeals his conviction on a charge of sexual assault. [1] At the end of counsel’s submissions, the court dismissed the appeal with reasons to follow. These are those reasons. [2] It is not necessary to go into the details of the evidence. This was essentially a two-witness case. The complainant testified she did not consent to sexual intercourse. The appellant testified the complainant consented and only told him to stop after he had ejaculated. The outcome at trial turned on the trial judge’s assessment of the credibility of the appellant and the complainant, and the proper application of the burden of proof to those credibility assessments. [3] The trial judge’s reasons demonstrate he appreciated the issues, the position of the parties, the centrality of his credibility assessments, and the importance of the burden of proof. He structured his reasons to a large degree to track the submissions of trial counsel. He also specifically directed himself on the three-step approach set down in R. v. W. (D.) , [1991] 1 S.C.R. 742. [4] The trial judge began with a consideration of the appellant’s evidence. After a thorough review of that evidence, the trial judge said, at p. 13: Given all these contradictions, the testimony of the defendant cannot be believed. His testimony does not raise a reasonable doubt. [5] Having completed steps one and two of R. v. W.D. , the trial judge moved to the third step which, on the evidence adduced in this case, turned entirely on his assessment of the credibility of the complainant. Once again, the trial judge thoroughly reviewed the evidence. He ultimately determined the complainant was credible and the Crown had proved its case beyond a reasonable doubt. [6] On appeal, the appellant argues the reasons are so deficient as to constitute an error in law. In her oral submissions, counsel advanced three arguments in support of this submission. She claims the trial judge: · summarized, but did not analyze the evidence and failed to make necessary findings of fact; · failed to address the argument that the complainant had a motive to fabricate her allegation; and · made a finding that the appellant admitted wrongdoing in a text message when that finding could not be justified on the totality of the relevant evidence. [7] As the appellant acknowledges, the trial judge did thoroughly review the evidence. The reasons did not, however, stop there. The trial judge provided cogent, detailed reasons for rejecting the appellant’s evidence and concluding it could not raise a reasonable doubt. Those reasons are supported by the evidence. [8] The trial judge also explained why he accepted the complainant’s evidence, albeit in a somewhat less detailed manner. In the course of reviewing the complainant’s evidence, the trial judge referred to and explained why he rejected various arguments that had been advanced on behalf of the appellant, challenging the complainant’s credibility. [9] In the circumstances, it was not necessary for the trial judge to make discrete findings of fact in relation to matters other than whether the sexual conduct was consensual. The trial judge’s credibility findings, which are adequately explained in his reasons, lead inevitably to a finding the complainant did not consent to sexual intercourse. On reading these reasons, there is no doubt why the trial judge convicted the appellant. [10] The second submission arises out of the trial judge’s failure to deal with the defence argument that the complainant had a motive to fabricate an allegation of sexual assault against the appellant. The trial judge did not deal with this argument in his reasons. Given the credibility findings, however, it is implicit that the trial judge rejected the argument that the complainant decided to fabricate a false allegation of sexual assault to get the appellant out of her home. [11] A trial judge is not required to address each and every argument in the reasons for judgment. On the evidence adduced in this case, the argument the complainant fabricated the allegation of sexual assault to get the appellant out of her home, made little sense. She testified she called the police because she was physically afraid of the appellant and wanted him out of her home. When she called, she made no allegation of sexual assault and, on her evidence, did not intend to make any such allegation. The complainant first referenced the sexual assault when questioned by the police after they had arrived. The evidence concerning the manner in which the allegation of sexual assault was made to the police is not consistent with the complainant having formulated a plan to call the police and falsely accuse the appellant of sexual assault. [12] In the course of her able submissions in this court, counsel suggested a variation on the argument put forward at trial. She suggested the complainant may have formulated the false allegation after the police arrived to buttress her request that the police remove the appellant from the home. This suggestion was not put to the complainant and does not appear to have been part of the defence theory at trial. It is not surprising the trial judge did not advert to this possibility in his reasons. [13] The final point deals with the trial judge’s treatment of a text exchange between the appellant and the complainant, during which the appellant appears to acknowledge prior wrongs done to the complainant. The appellant argues the trial judge took this as an admission by the appellant in respect of the sexual assault charge. He argues not even the complainant put that interpretation on the appellant’s text message. [14] We do not read the trial judge’s reasons as making a finding of an admission with respect to the specific events giving rise to this charge. Rather, he took the appellant’s words as an admission of having treated the complainant in an abusive manner. That admission was relevant both to whether the sexual intercourse was consensual, and the appellant’s credibility. [15] In summary, the trial judge’s reasons adequately served their intended purposes. They explained why the trial judge reached the verdict he did, and they sufficiently exposed the trial judge’s reasoning to effective appellate review. [16] The appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “L. Sossin J.A.” [1] The appellant pleaded guilty to other charges and was acquitted on still other charges. None of those charges are before this court.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Van Ravenswaay, 2021 ONCA 393 DATE: 20210604 DOCKET: C66787 Tulloch, Roberts and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Wim Van Ravenswaay Appellant Daniel Ciarabellini, for the appellant Michael Malleson, for the respondent Heard: May 14, 2021 by video conference On appeal from the order of Justice David L. Edwards of the Superior Court of Justice dated September 12, 2018, with reasons at 2018 ONSC 5348. REASONS FOR DECISION [1] The appellant appeals from the dismissal by Edwards J. (“the application judge”) of the appellant’s certiorari application to quash the order of Colvin J. (“the appeal judge”). [2] At the conclusion of the hearing of this appeal, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons. [3] At the commencement of the appellant’s appeal from his April 26, 2017 conviction under s. 186(1) of the Environmental Protection Act , R.S.O. 1990, c. E.19, and from his 45-day sentence imposed by Justice of the Peace K. Boon, the appeal judge refused to allow the appellant’s agent, Gary McHale, to represent him, and he refused to adjourn the appeal to allow the appellant to obtain other representation. The appeal was not completed, and a portion of the argument was adjourned. In the interim, the appellant applied for certiorari of the appeal judge’s decisions disqualifying Mr. McHale and refusing the appellant’s adjournment request. The application judge dismissed the appellant’s application for certiorari but, with the respondent’s support, permitted the appeal to be restarted in its entirety before the appeal judge. [4] The appellant submits that the application judge erred by dismissing the certiorari application because he failed to recognize and rectify the substantial wrongs or miscarriages of justice that the appellant argues were occasioned by the appeal judge’s disqualification of the appellant’s agent of choice and by his refusal to adjourn the appeal. [5] We are not persuaded by these submissions. We see no error justifying appellate interference. [6] We do not accept that the application judge and the appeal judge applied the wrong test. The application judge correctly framed his review of the appeal judge’s reasons for disallowing Mr. McHale to act as the appellant’s agent by reference to the governing principles articulated by this court in R. v. Romanowicz (1999), 178 D.L.R. (4th) 466 (Ont. C.A.), as interpreted and applied in R. v. Allahyar , 2017 ONCA 345, 348 C.C.C. (3d) 206. [7] Romanowicz involved the competence of unlicensed paralegals to represent accused persons in summary conviction matters and was decided prior to the licensing of paralegals by the Law Society of Ontario. The court reiterated an accused’s constitutional rights to a fair trial and to competent representation by legally trained counsel, and recognized that accused persons have the right to choose their mode of representation as part of their constitutional right to control their own defence, namely, whether to be represented by a lawyer, an agent, or to represent themselves. [8] However, the court did not conclude that accused persons have a constitutional right to representation by the non-lawyer of their choice. On the contrary, the court highlighted a court’s authority, by statute or pursuant to its inherent power to control its own processes, to bar any person from appearing as an agent who is not a barrister and solicitor if the court finds that the person is not competent to properly represent or advise the person for whom he or she appears as agent, does not understand and comply with the duties and responsibilities of an agent, or if competent, on whom the court cannot rely for their “integrity, honesty, or forthrightness” or ability “to conduct a trial ethically and honourably”: Romanowicz , at para. 74. [9] Indeed, the court in Romanowicz described a court’s power to deny audience to an agent “whose participation in proceedings would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process”, as part of the court’s obligation “to protect the integrity of the proceedings, including the accused’s right to a fair trial and the accused’s right, within the limits of the law, to choose a representative”: at paras. 61 and 64. [10] This court in Allahyar concluded, at para. 28, that the principles articulated in Romanowicz “are of broader application” and apply in the context of the representation of accused persons by unlicensed representatives in provincial offences matters. Citing R. v. Cunningham , 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18-19, the court confirmed, at para. 11, that “[t]he right of a representative to appear is subject to the court’s authority to control its own process”. [11] Also in Allahyar , this court detailed the procedure set out in Romanowicz to be followed when a party attends with an unlicensed representative. This includes determining whether the party has made an informed choice to be represented by the agent, followed by an inquiry into the propriety of the representation. This fact-specific inquiry involves the kinds of concerns suggested in Romanowicz , namely “questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials”: Allahyar , at para. 17. The court confirmed that disqualification of an accused’s chosen representative is a serious matter and is justified only where it is necessary to protect the proper administration of justice. [12] Returning to the particular circumstances of this case, the application judge noted that the appeal judge properly followed the Romanowicz principles and procedure to assess the propriety of the appellant’s representation by Mr. McHale, a non-lawyer and non-paralegal. Specifically, the application judge observed that, following a detailed discussion of these issues with Mr. McHale and the respondent, the appeal judge concluded that Mr. McHale did not understand and properly comply with the duties and responsibilities of an agent. The application judge also agreed that Mr. McHale’s conduct prior to the trial “was not one which would lead one to believe that either he understood or was complying with those duties and responsibilities”. The application judge referenced the appeal judge’s example that as an admitted tactic, Mr. McHale and the appellant intentionally did not notify the court or the respondent that Mr. McHale would represent the appellant, knowing that the respondent would object because Mr. McHale had been disqualified from acting for the appellant in a previous, related proceeding. [13] Both the application and appeal judges viewed this conscious omission, correctly in our view, as a deliberate and improper attempt by the appellant and Mr. McHale to put the respondent at a disadvantage in a manner inconsistent with the obligations of litigants and their representatives to ensure the smooth operation of court proceedings so that precious court time is not wasted. Such deceitful misconduct is contrary to the proper administration of justice and undermines the purpose of the Provincial Offences Act , which is to provide a “speedy, efficient and convenient method of dealing with [the] offences” that it governs: R. v. Sciascia , 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 18, citing R. v. Jamieson (1981), 64 C.C.C. (2d) 576 (Ont. C.A.), at pp. 551-52. Whether or not Mr. McHale was simply following the appellant’s instructions in concealing his involvement, as the appellant argued he was, is a distinction without a difference. The fact is that he was knowingly engaged in misconduct that affected the due administration of justice. The appeal judge’s decision disqualifying Mr. McHale from acting for the appellant was therefore justified in these circumstances. [14] Finally, we agree with the application judge’s determination that the appeal judge’s refusal to grant an adjournment caused no substantial wrong or miscarriage of justice. As the application judge observed, it should have come as no surprise to the appellant that, having indicated on his court filings that he would represent himself, he would be required to proceed with the appeal if his stratagem to have Mr. McHale represent him failed. In any event, the appeal was adjourned and, noting the respondent’s support, the application judge stated that the appellant, either personally or with counsel or an agent who is not disqualified, could restart his appeal before the appeal judge. As such, there is no prejudice to the appellant and the adjournment issue has become moot. [15] Accordingly, the appeal is dismissed. “M. Tulloch J.A.” “L.B. Roberts J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Veerasingam, 2021 ONCA 350 DATE: 20210526 DOCKET: C66227 Watt, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Sivanesan Veerasingam Appellant Richard An, for the appellant Katie Doherty, for the respondent Heard: May 18, 2021 by video conference On appeal from the conviction entered on June 4, 2018 by Justice Christine Pirraglia of the Ontario Court of Justice. REASONS FOR DECISION [1] Project Raphael is a police undercover operation designed to address the sale of sexual services of children. The police post an ad pretending to be a young girl in the section of a website called Backpage which advertises sexual services of “escorts”. The ad in this case included a photograph ostensibly of the young girl but was actually a police officer. She was scantily dressed and her face was not shown. The ad professed that the poster was 18 years old, the minimum age required by Backpage. [2] The appellant responded to one of the ads. A series of text messages followed between the appellant and the officer. They included the following three exchanges: Officer:        are you OK if I’m not 18 yet hun? Some guys are down and some aren’t Appellant:    If you OK with Officer:        Im 15 hun im okay with it if u are Appellant:    I’m OK Appellant:    Are you new in the businesses??? Officer:        Im 15 of course im new [3] The appellant was given the hotel address and the room number. He went to the hotel and was arrested when he arrived at the room. The appellant was charged with and convicted of luring a person under 16 by means of telecommunication (s. 172.1(2) of the Criminal Code ) and procuring the sexual services of a person under 18 (s. 286.1(2)). [4] At trial, the appellant called no evidence and his counsel made no submissions regarding his guilt or innocence. The trial judge convicted the appellant. [5] After the conviction, the appellant applied to stay the proceedings based on entrapment. During the entrapment hearing, he testified that he was confused about the girl’s age and was not convinced she was under 18. He said he tried to call her to find out her age but could not reach her because the ad said to communicate only by text. He said he went to the hotel room to “check it out” and see for himself how old she was. The trial judge dismissed the application. [6] The appellant appeals the convictions and the entrapment decision. Convictions [7] To support the conviction appeal, the appellant relies on the evidence he gave at the entrapment application. He says that pursuant to the Supreme Court’s decision in R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3, the Crown failed to prove beyond a reasonable doubt that he believed the girl was under 18 or did not make reasonable efforts to verify her age. [8] The appellant relies on no authority to support the use of the entrapment application evidence on the conviction appeal. Instead he draws an analogy to a fresh evidence application. He did not make a fresh evidence application. Nor did he seek to comply with the requirements of R. v. Palmer , [1980] 1 S.C.R. 759. [9] The conviction appeal is to be considered solely on the record before the court at trial. He called no evidence and, based on the text message exchange, there was ample evidence to support the conviction. The trial judge did not err and there is no reason to overturn the conviction. Entrapment [10] The day before this appeal was argued, this court released four decisions in a grouped appeal dealing with Project Rafael and entrapment. [1] The court found in those cases that there had been no entrapment. [11] The appellant argues that the basis for entrapment in his case is different. He submits that the police developed a scheme that prevented him from taking reasonable steps to verify the girl’s age. He could not call her, and he could not meet her in person to verify that she was over 18. [12] We do not accept this submission. [13] First, the design of the project did not deprive him of taking reasonable steps during the communication. During the communication, he made no inquiries about her age. He only inquired about her willingness to engage in a specific sex act. [14] Second, as the application judge found, once the communication was completed, the offence was complete. For that reason, the appellant’s argument that he should have been afforded the opportunity to verify her age by visually assessing or calling her must fail. The offences in which he was charged arise from the communications. By the time he got to the hotel, the offence had already been committed: R. v. Drury , 2020 ONCA 502, at paras. 50-51. [15] The trial judge’s finding that there was no entrapment, and in particular no inducement, was consistent with the principles on entrapment articulated in R. v. Mack , [1988] 2 S.C.R. 903, and R. v. Ahmad , 2020 SCC 11. [16] The notice of appeal and factum raised the issue of ineffective assistance of counsel. However, this court’s protocol was not followed, and no oral submissions were made in this regard.  We therefore treat this ground as abandoned. [17] The appeal is dismissed. “David Watt J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.” [1] R. v. Ramelson , 2021 ONCA 328, R. v. Jaffer , 2021 ONCA 325, R. v . Harrina, 2021 ONCA 326, R. v. Dare, 2021 ONCA 327.