COURT OF APPEAL FOR ONTARIO

CITATION: Popa v. Popa, 2018 ONCA 972

DATE: 20181130

DOCKET: M49814 (C66028)

Lauwers J.A. (Motions Judge)

BETWEEN

Lucia Tiberia Popa,
    Vincent Petrescu, Sherban Apostolina, Ramona Cean and Raul Turcu

Respondents in Appeal (Applicants)

and

Daniel Popa, NECC Telecom Inc. (Canada), NECC
    Telecom Inc., Pulse Telecom Inc., (Canada), Pulse Telecom, LLC, Pulse Telecom
    PTY, LTD (Australia), SRVR, LLC, Quickcall.com, LLC d/b/a Bluetone, LLC, and
    Bluetone Connect, PTY LTD (Australia)

Appellants in Appeal (Respondents)

Ryder Gilliland and Corey Groper, for the moving parties

Sahar Cadili, for the responding parties

Heard: November 29, 2018

On appeal from the judgment
    of Justice V. Chiappetta of the Superior Court of Justice, dated October 12,
    2018.

REASONS FOR DECISION

[1]

The moving party seeks an order under rule 63.01 of the Rules of Civil
    Procedure, lifting the automatic stay resulting from the appeal launched by the
    responding parties from the judgment of Chiappetta J. of the Superior Court of
    Justice on October 12, 2018.

[2]

The context of this case is well-explained in the decision of Chiappetta
    J. In the motion before her, the moving parties, led by Lucia Popa, sought an
    order recognizing and enforcing the order and judgment of the Jefferson Circuit
    Court of the Kentucky Court of Justice against the responding parties, led by
    Daniel Popa, issued on May 3, 2018.

[3]

The application judge found that in accordance with the ordinary
    principles of Ontario law, which she accurately recited, the Kentucky judgment
    should be recognized and enforced.

[4]

In the course of her reasons, the application judge set out at length
    the basis for the decision of the Kentucky court, and added several of her own
    observations. I have reviewed the record and the Kentucky judgment and find
    that the application judge accurately recited the facts, as conceded by the
    responding parties, who have taken no issue with them.

[5]

The application judge stated:

The reasons further demonstrate the impact of Mr. Popas
    testimony on the judges decision to render judgment on the action on a second
    hearing date of a motion. The court found:

1. Mr. Popas
    ongoing failure to pay taxes or to attempt to negotiate his resolution of
    outstanding liabilities bars his equitable claim for unjust enrichment,
    rescission and promissory estoppel.

2.
The
Uniform Voidable Transactions
    Act,
KRS 378A.005 et seq authorizes the
    order made as Mr. Popa, as a potential judgment debtor, has been transferring
    assets in an apparent effort to frustrate the judiciarys ability to grant
    relief to prospective judgment creditors.

3. The dismissal of
    Mr. Popas claim is consistent with the courts inherent power to determine
    that its judgments reflect the truth.

4.

Mr Popas testimony corroborated the applicants allegations
    and demonstrated that his second amended complaint was designed to perpetuate a
    fraud on the applicants and the court such that the court must sanction such
    conduct.

5. The appropriate remedy is to reinstate
    Mr. Popas obligations under the Settlement Agreement.

The respondents concede the facts on
    which the findings were made. The facts largely arise as a result of the testimony
    of Mr. Popa. His admissions to breaching the settlement agreement and depleting
    the value of the companies was sufficient for the reasons given on May 3, 2018,
    for the judge to dismiss his action.
The respondents complaint seems to
    be more with the merits of the judgment. I see no violation of the principles
    of natural justice. Mr. Popa was heard and the judge felt, based on that he
    heard, that he had cause and jurisdiction to render judgment. The order and
    judgment is not a summary judgment and was not borne of a process for summary
    judgment as is submitted by the respondents. The judge explained in his reasons
    of May 3, 2018 why the testimony of Mr. Popa resulted in an adjudication of the
    action. The court concluded Mr. Popa had used his amended second complaint as a
    means to perpetuate the respondents fraudulent scheme, drain the companies of
    whatever assets remained and frustrate the applicants ability to enforce a
    settlement agreement.

Finally, I do not accept the respondents submission that the
    judge was not impartial.
The testimony of Mr. Popa on
    January 29, 2018 was such that he admitted to fraudulent conduct.
The
    judge received that evidence and made decisions with respect to the action as a
    result of that testimony, not as a result of any other reason, despite
    statements attributed to him well before Mr. Popas testimony on January 29,
    2018.

For these reasons, the applicants motion is granted. An order
    shall issue it in accordance with that as set out at para. 83(a)-(f) of the
    applicants factum, dated October 8, 2018.

By way of cross-motion, the
    respondents seek an order staying the enforcement and recognition of the order
    and judgment pending the outcome of their current appeal in the Kentucky order.
    The respondents motion is denied. In my view, if it were granted, the
    applicants would suffer irreparable harm, as
the
    respondents have continued to engage in conduct, the result of which is
    dissipating funds and impeding the applicants from collecting the amounts
    awarded. On August 21, 2018, the respondents transferred US$230,000 from bank
    accounts in Ontario to bank accounts in Michigan.
At his
    cross-examination on August 30, 2018, Mr. Popa admitted to directing the
    companies to open bank accounts with many and all possible banks, the more the
    better. On August 23, 2018, this court issued a Mareva injunction with respect
    to the funds contained in the accounts belonging to NECC Telecom Inc., Pulse
    Telecom Inc. and Quickcall.com. The injunction was lifted on September 4, 2018,
    in exchange for the respondents agreement to transfer a percentage of the
    funds held in deposits in the accounts to an escrow account. The funds from the
    NECC accounts have been frozen by the Canada Revenue Agency as of September 5,
    2018, considering the $218,013.95 in outstanding taxes.
As
    recent as September 25, 2018, the Kentucky court held that the respondents
    continue to engage in conduct to avoid placing funds in accounts subject to
    potential garnishment. Mr. Popa admitted to such conduct in his
    cross-examination
(742, 748, 1185-1189, 1292, 1077, 1588). (Emphasis
    added.)

[6]

There have been some developments since the judgment of Chiappetta J.
    was issued. The chief financial officer of NECC Telecom, John F. Hatfield III,
    was deposed on November 20, 2018. Mr. Hatfield admitted that he did not know
    what Mr. Popa was doing. He claimed he was unaware of the number of bank
    accounts that Mr. Popa had established for diverting funds. The companies were
    obliged to use authorized accounts but were not doing so; Mr. Hatfield admitted
    that he did not know why.

[7]

The legal test for lifting a stay include the following factors: the
    financial hardship to the respondent if the stay is not lifted; the ability of
    the respondent to repay any amounts it receives as a result of the lift of the
    stay or its ability to provide security for the amount; and the merits of the
    appeal:
S.A. Horeca Financial Services v. Light
, 2014, ONCA 811, 123
    O.R. (3d) 542, at para. 13.

[8]

I am satisfied based on the evidence that the responding parties are
    utterly untrustworthy. If the stay is not lifted there is a serious risk that
    the funds in question will be siphoned off and the interests of the moving
    parties will be defeated. As to the ability of the moving parties to repay any
    amounts they receive, the moving parties proposed that third parties affected
    by the order be obliged to hold funds covered by the order until further order
    of this court.

[9]

I now turn to the merits of the appeal. The appellants put forward four
    grounds on which they assert that the application judge erred: (1) In finding
    that there was sufficient evidence before the Kentucky court to grant summary
    judgment when the motion before the Kentucky court was for an interlocutory
    order and no record of the evidence was available; (2) in finding that there
    was an opportunity for the appellants to file fresh evidence in light of the
    Kentucky courts warning that no affidavit materials be filed unless it offered
    proof of payment of taxes; (3) in failing to find that they had no opportunity
    to be heard by the Kentucky court; and, (4) in finding that the appellants were
    not denied natural justice in the Kentucky proceedings.

[10]

The
    application judges reasons expressly and fully address each of these proposed
    grounds of appeal. On a relative scale, the appeal is plausible but weak in
    light of the evidence.

[11]

In
    my view, the factors in the applicable test favour the moving parties, and I
    lift the stay. I now consider the terms.

[12]

During
    submissions, I expressed a concern about the ability of the affected companies
    to function, since it is clear that they are operating businesses.

[13]

The
    moving parties put forward four different variations of an order lifting the
    stay. They pressed for the first, which was effectively the re-imposition of a
    full Mareva injunction. It would end the ability of the companies to carry on
    business.

[14]

The
    responding parties said they would prefer the reinstatement of the order made
    by Hainey J., which provided:

4. This court orders that the respondent shall pay eleven
    percent (11%) of the aggregate amounts held by them in the Bank of Montreal,
    which accounts are listed at Schedule A hereto (the BMO accounts), into the
    escrow account.

5. This court orders that until further order of the court, the
    respondents shall each day deposit eleven percent (11%) of the aggregate
    amounts deposited into BMO accounts the day prior into the escrow account.

6. This court orders that the accumulating amounts of the
    escrow account shall remain in the escrow account until further order of the
    court.

7. This court orders that all monies received from the respondents
    businesses operating in Canada shall be deposited into the BMO accounts.

[15]

The
    moving parties take the position that the order of Hainey J. produced little
    return during its short currency, in part because the Canada Revenue Agency
    pounced. They add that the figures chosen by Hainey J. were his own and were
    not rooted in any evidence. They point out that the responding parties have
    provided no evidence related to their operating needs or margins to assist me
    in crafting terms for lifting the stay. I agree.

[16]

In
    the circumstances, an order in the form of Schedule A to these reasons
    including the initialed figures will be issued.

P Lauwers 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 complainants 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. B.C., 2018 ONCA 951

DATE: 20181126

DOCKET: C61816

Paciocco, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.C.

Appellant

Margaret Bojanowska, for the appellant

Holly Loubert, for the respondent

Heard and released orally: November 22, 2018

On appeal from the conviction entered on July 16, 2014 by
    Justice Robert Kelly of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

B.C. was convicted of the brutal sexual assault of a young woman he had
    been having a sexual relationship with, after they had a falling out. He was
    also convicted of unlawful confinement, obstructing a peace officer and breach
    of recognizance related to the same event. He appeals against his convictions
    of sexual assault and unlawful confinement. The complainant said she did not
    consent to what happened. B.C. said she had. Despite difficulties with the
    complainants evidence, the trial judge found the complainant to be credible
    and reliable. He found that B.C. was not credible and reliable, and that his
    evidence was incapable of raising a reasonable doubt.

[2]

B.C. raises numerous grounds in appealing his conviction. We accept none
    of those grounds, which can be conveniently addressed in the following order.

[3]

The trial judge did not take improper judicial notice in rejecting the defence
    theory that the complainant had concocted her evidence. He simply applied
    common sense.

[4]

The trial judge did not err by failing to discuss in his decision the
    testimony of the sexual assault nurse. We agree with the Crown. That evidence
    was incapable of compromising the testimony of the complainant.

[5]

Nor did the trial judge err by not addressing all of the contradictions
    in the complainants evidence. The trial judge, under no obligation to address
    all of the evidence, offered a thorough decision that dealt extensively with
    those concerns that were material.

[6]

The trial judge did not err in finding support for the complainants
    testimony in a photograph of her taken during the event. Given her posture in
    the photograph, he was entitled to accept that it was consistent with her
    narrative and not B.Cs.

[7]

The appellants suggestion that the trial judge gave uneven scrutiny to
    the evidence is unpersuasive. B.C.s evidence was not rejected because of a
    harsher evaluation of its consistency than was applied to the complainants
    evidence. His evidence was found to be implausible and contradicted by the
    physical evidence relating to the straps and the photographs, yet hers was
    supported.

[8]

The legal representation B.C. received at trial was not ineffective. His
    counsel made a tactical decision not to use the evidence that B.C. relies upon to
    demonstrate ineffectiveness. Counsels conduct fell within the ambit of
    reasonable professional assistance. There is no miscarriage of justice or
    unfairness resulting.

[9]

We do not accept that the trial judges reliance on the details provided
    in the complainants evidence was an error. Just as it is permissible for a
    judge to doubt a bare assertion, the trial judge was entitled to consider the
    coherence and content of the narrative in deciding whether to believe it.

[10]

Even
    though the trial judge erred by relying on the accuseds
voir

dire
testimony to illustrate that he scripted his trial testimony, the trial judge
    gave other poignant examples of this. The error could not have affected the
    outcome in light of the evidence as a whole and the trial judges caution to
    himself on the limited effect he was to give demeanour evidence.

[11]

We
    therefore dismiss the appeal.

David M. Paciocco J.A.

Fairburn 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 complainants 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. Beaton, 2018 ONCA 924

DATE: 20181120

DOCKET: C62480 & C62612

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent on C62480/

Appellant on C62616

and

Michael Beaton

Appellant on C62480/

Respondent on C62616

Howard K. Krongold, for Michael Beaton (deceased)

Hannah Freeman, for the Crown

Heard: June 13, 2018

On appeal from the conviction entered on June 23, 2016
    and on appeal by the Crown from the sentence imposed on August 9, 2016 by
    Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

Michael Beaton was convicted of three sexual offences committed on three
    different complainants at various times during a professional relationship. He
    was sentenced to a term of imprisonment of 15 months to be served in the
    community.

[2]

Michael Beaton appealed his convictions. The Crown appealed the
    sentence. The appeals were heard together on June 13, 2018. The court reserved
    its decision.

[3]

Unfortunately, on September 29, 2018 Michael Beaton died. About one
    month later, the Registrar was advised of Mr. Beatons death.

[4]

In a conference call with a member of the panel of judges who had heard
    the appeal, counsel were invited to make written submissions about the legal
    consequences of Mr. Beatons death on the outstanding appeals. Counsel have
    made those submissions. These reasons explain our conclusion that these appeals
    should be dismissed as moot.

The Positions of the Parties

[5]

Although counsel for Mr. Beaton acknowledges that, as a general rule, an
    appeal abates with the death of a party, he contends that the court has a
    discretion to decide an appeal after the partys death where it is in the
    interests of justice to do so. The interests of justice are typically engaged
    where there is an issue of broad public importance extending beyond the facts
    of the case. While counsel for the appellant recognizes that there is no issue
    of broad public importance engaged by this appeal, he says that the interests
    of justice favour delivery of judgment because a final resolution is of
    importance to Mr. Beatons family and friends. Mr. Beaton was for decades a
    respected professional, and the convictions, which were widely publicized, cast
    a cloud over his reputation. His family would like closure in the form of the
    determination of the appeal on the merits.

[6]

The Crown says that both appeals should be dismissed. The Crown contends
    that the courts discretion to determine an appeal after a partys death should
    only be exercised in exceptional circumstances where there is a continuing
    controversy which, notwithstanding the death of the person most directly
    affected, requires resolution in the interests of justice. The Crown maintains
    that there are no exceptional circumstances in this case.

The Governing Principles

[7]

The traditional view in Canada is that a criminal appeal ought never to
    survive the death of an accused. The death of the accused causes the appeal to
    abate whether the accused is the appellant or respondent, and abatement occurs
    even if the appeal has been argued and the decision reserved:
R. v. Cadeddu
(1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;
R. v. Smith
, 2004
    SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the
    courts nonetheless recognized some discretion to proceed to judgment despite
    the death of the accused:
Cadeddu
, at pp. 118-119.

[8]

In
Smith
, where the accused was the appellant, the Supreme
    Court of Canada held that the appellants death rendered the appeal moot. But the
    court acknowledged a discretion to proceed with a moot appeal, provided the
    discretion was exercised in accordance with judicial principles. The court
    emphasized, however, that this discretion should be exercised only in
    exceptional circumstances where the appellants death is survived by a
    continuing controversy which requires resolution in the interests of justice:
Smith
,
    at paras. 4, 20.

[9]

Three principal rationalia underlie the policy or practice governing the
    continuance of moot appeals and inform the exercise of the circumscribed
    discretion to determine the appeal despite the party litigants death:

i.

the existence of a truly adversarial context;

ii.

the presence of particular circumstances which justify the expenditure
    of limited judicial resources to resolve the issue; and

iii.

the respect shown by courts to limit themselves to their proper
    adjudicative role, as opposed to making freestanding legislative-type
    pronouncements.

See
Borowski v. Canada (Attorney General),
[1989]
    1 S.C.R. 342, at p. 358;
Smith
, at para. 39.

[10]

The
Borowski
court outlined a two-step approach to the hearing of moot
    appeals. The first step involves an inquiry and determination whether the
    required tangible and concrete dispute has disappeared and the issues have
    become academic. If the case ascends the first step, the court should then
    determine whether it should exercise its discretion to hear the case:
Borowski,
at p. 353;
Smith,
at para. 33.

[11]

In
    the end, the general test an appellate court should apply when considering
    whether to proceed with an appeal rendered moot by the death of an accused, is
    whether there exist special circumstances that make it in the interests of
    justice to proceed:
Smith
, at para. 50.

The Principles Applied

[12]

We
    are unable to find any exceptional circumstances in this case to justify
    departure from the general rule that the death of the accused renders both
    appeals moot.

[13]

First,
    the controversy in this appeal does not survive Mr. Beatons unfortunate death.
    He would not benefit if the conviction appeal were allowed, or from any
    determination of the Crowns appeal against sentence.

[14]

Second,
    the issues raised on both appeals do not transcend the circumstances of this
    case in their significance to the administration of justice. None of the
    grounds advanced in argument of the appeals raise any issue of importance to
    the administration of criminal justice. Nothing has a constitutional dimension.
    Nothing requires the interpretation of a statutory provision or common law rule
    of frequent application and unresolved controversy in the daily business of our
    trial courts. And no issue raised is evasive of appellate review.

[15]

Third,
    while we recognize that convictions for sexual offences carry with them a
    stigma, most serious crimes carry with them a stigma. But if stigma, coupled
    with media coverage, were sufficient to constitute exceptional circumstances,
    the rule that generally forecloses continuation of an appeal by a deceased
    party would be supplanted by its exception. Put otherwise, the rule would
    become the exception and the exception, the rule.

Conclusion

[16]

In
    the result, we see no reason to depart from the general rule that the death of
    an accused renders this appeal from conviction and the Crowns appeal from
    sentence moot. The appeals are dismissed.

David Watt J.A.
K. van Rensburg J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berhe, 2018 ONCA 930

DATE: 20181122

DOCKET: C62881

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohannes Berhe

Appellant

Yohannes Berhe, in person

Louis Strezos, duty counsel

Andrew Hotke, for the respondent

Heard: November 5, 2018

On appeal from the decision
    of the Summary Convictions Appeal Court dated October 17, 2016 by Justice
    Akhtar of the Superior Court of Justice, allowing the appeal from the sentence
    imposed on July 22, 2015 by Justice Hogan of the Ontario Court of Justice and
    dismissing the appeal from the sentence imposed on September 10, 2015 by
    Justice Khawly of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal from the decision of the summary
    conviction appeal court in respect of the sentences imposed following
    convictions in two cases. In the first case, the summary conviction appeal
    judge set aside the sentence imposed by Hogan J., because it constituted an
    illegal sentence under s. 731 of the
Code
with three components:  a
    period of custody, probation and a fine. Under that section, a period of
    probation may be added to either a fine or a period of custody but not both. The
    sentencing judge had added the small fine to the sentence of custody and
    probation in order to reduce the amount of the victim fine surcharge.

[2]

The summary conviction appeal judge corrected the illegality by removing
    the fine. He also imposed a $100 victim fine surcharge on each count, holding
    that imposing a small fine in order to reduce the mandatory victim fine
    surcharge is improper. In the second case, the summary conviction appeal judge
    upheld the sentence imposed by Khawly J., who had refused to impose a small
    fine as part of the sentence only for the purpose of reducing the amount of the
    victim fine surcharge.

[3]

The issue on which the applicant seeks leave to appeal is whether the
    summary conviction appeal judge was correct in holding that a sentencing judge
    may not impose a small fine as part of a sentence for the purpose of reducing
    the mandatory victim fine surcharge. This issue was explained and submitted by
    Mr. Strezos, acting as duty counsel.

[4]

Despite his helpful articulation of the issue, leave to appeal is
    dismissed for two reasons.

[5]

First, the issue does not arise squarely on the facts of either case. The
    issue of the propriety of a small fine imposed only to reduce the victim fine
    surcharge arose on the appeal from Hogan J. to the summary conviction appeal
    judge, but in addressing the issue, he was entitled to impose the sentence he
    did. Everyone agrees that the summary conviction appeal judge turned an
    unlawful sentence into a lawful sentence. The applicants complaint is that he
    chose to delete the fine rather than the period of custody or the probation, as
    the means by which to turn the sentence into a lawful one. That decision fell
    within an exercise of his discretion. Similarly on the appeal from Khawly J.,
    the original sentence imposed was a legal sentence which was upheld on summary
    conviction appeal. Deference is owed to those decisions.

[6]

Second, the appeal of this courts decision in
R. v Tinker
, 2017
    ONCA 552, 136 O.R. (3d) 718, challenging the constitutional validity of the
    victim fine surcharge, is under reserve at the Supreme Court of Canada, where
    that court will have the opportunity to consider and discuss the purpose and
    parameters of the victim fine surcharge. That discussion may well impact the
    concern raised by the applicant.

[7]

Accordingly, the sentences that were ultimately imposed attract
    deference and there is no issue of significance to the administration of justice
    beyond what will likely be dealt with in
Tinker
.
The
    application for leave to appeal is therefore dismissed.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bjornaa, 2018 ONCA 939

DATE: 20181122

DOCKET: C63887

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Michael Bjornaa

Respondent

Katherine Beaudoin, for the appellant

Andrew Menchynski, for the respondent

Heard and released orally: November 15, 2018

On appeal from the acquittals entered on May 12, 2017 by
    Justice Ian S. McMillan of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The respondent was charged with several offences. One group of charges
    arose out of an alleged assault on Alex Gingras (the Gingras charges). The
    second group arose out of the shooting of Jayme Bellerose (the Bellerose
    charges). A co-accused, Bernie Nadon, pleaded guilty to some of the charges
    prior to the respondents trial.

[2]

The respondents trial proceeded before a judge alone. At the end of the
    Crowns case, the respondent moved for a directed verdict on all charges. The
    trial judge directed acquittals on the Gingras charges. The trial proceeded
    on the Bellerose charges. The respondent chose not to call evidence. The
    trial judge found the respondent guilty on some of the Bellerose charges.

[3]

The Crown appeals from the directed acquittals on the Gingras charges,
    arguing that the trial judge went beyond his limited authority on a directed
    verdict application and improperly assessed the credibility and reliability of
    the Crown witness Gingras.

[4]

The respondent does not appeal from the convictions.

[5]

Counsel for the respondent correctly concedes that the trial judge
    improperly assessed the reliability of the witness Gingras, in concluding that
    the respondent was entitled to a directed verdict on those charges. The respondent
    argues however, that the Crowns appeal should be dismissed.

[6]

He submits that there was no evidence capable of supporting convictions
    on any of the three counts on which the trial judge directed acquittals. First,
    he argues that there was no evidence that the respondent broke into the
    residence and that consequently the directed verdict of acquittal on the break
    and enter count was correct. Second, the respondent submits that there was no
    evidence that he, either as a perpetrator or as aider and abetter, pointed a
    firearm at Mr. Gingras. The evidence revealed that the co-accused, Mr. Nadon,
    was the person who pointed the firearm at Mr. Gingras. The respondent argues
    that there is no evidence that he knew that Mr. Nadon had a firearm, and no
    evidence that he knew that Mr. Nadon pointed the firearm at Mr. Gingras, or
    that it was reasonably foreseeable that he would do so in the course of the
    altercation. Third, the respondent submits there is equally no evidence that he
    was party to any forcible conferment, either as an aider and abetter, or
    through s. 21(2).

[7]

The respondents alternative submission is as follows. He submits that
    this court can consider the trial judges ultimate assessment of the evidence,
    in particular, the evidence of Mr. Gingras. He contends that it is crystal
    clear that had the trial judge not directed a verdict of acquittal, he would
    inevitably have rejected Mr. Gingras evidence and acquitted the respondent on
    those counts at the end of the trial. The respondent argues that the Crown
    cannot demonstrate that the verdicts would not necessarily have been the same
    had the trial judge properly dismissed the motion for a directed verdict and
    proceeded to the end of the trial.

[8]

We are satisfied that there was some evidence that the respondent and
    Nadon broke into the Gingras residence. Under the deeming provision in s.
    350(b)(ii), Mr. Gingras evidence provided a basis upon which a reasonable
    trier could find that the respondent and Nadon entered the home without
    invitation at the same time that another person left. That entry constitutes breaking
    and entering under the deeming provision.

[9]

The submission that there was no evidence to support convictions on
    forcible confinement and pointing a firearm fails on a review of the totality
    of the evidence. There was a basis in the evidence upon which a reasonable trier
    could have found the respondent to be a party with Mr. Nadon to those offences,
    either as an aider or abetter, or under the common purpose provisions of s.
    21(2).

[10]

Turning
    to the no substantial wrong argument, counsel correctly acknowledges that
    this argument depends on the court accepting counsels submission that it is
    clear from this record that the respondent would not have testified had the
    motion been dismissed.

[11]

The
    court cannot assume that the respondent would not have testified. While in
    exceptional cases it may be that the trial record allows the court to come to
    that conclusion, this is not such a case. In fact, counsels comments after the
    trial judge directed acquittals on the Gingras charges make it clear that the
    question of whether the respondent would testify may have depended on the trial
    judges decision with respect to the directed verdict motion. We cannot say
    what the evidence would have been at the end of the trial had the trial judge
    properly refused to direct the verdicts of acquittal. This is enough for the
    Crown to meet its onus of showing that the result would not necessarily have
    been the same.

[12]

The
    appeals are allowed, the acquittals are set aside and a new trial is ordered on
    those counts.

Doherty J.A.

Paul Rouleau J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bruce, 2018 ONCA 933

DATE: 20181120

DOCKET: C65305

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derval Bruce

Appellant

Megan Howatt, for the appellant

Eric Siebenmorgen, for the respondent

Heard: November 16, 2018

On appeal from the sentence imposed on February 1, 2011
    by Justice Gary T. Trotter of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the sentence is varied but in one respect only. The credit for presentence custody is varied from 6 months to 6 months less one day.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Callaghan, 2018 ONCA 969

DATE: 20181130

DOCKET: C63843

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Callaghan

Appellant

Anil K. Kapoor and Ian B. Kasper,
    for the appellant

Jill Cameron, for the
    respondent

Heard and released
    orally: November 26, 2018

On appeal from the convictions entered by Justice Nola
    Garton of the Superior Court of Justice on July 29, 2016, with reasons reported
    at 2016 ONSC 2764, and from the sentence imposed on March 24, 2017, with
    reasons reported at 2017 ONSC 1853.

REASONS FOR
    DECISION

[1]

The appellant was convicted of various firearm and driving offences
    after he discharged a handgun on a residential street and later led police on a
    high-speed chase. He appeals from his firearm convictions and his sentence of
    10 years.

[2]

On the conviction appeal, the appellant argues that the trial judge
    erred in her approach to the evidence. In the appellants submission, she
    approached the evidence in a piecemeal fashion, misapprehended parts of that
    evidence, and engaged in improper speculation to account for dissimilarities
    between the description of the shooter and the appearance of the appellant. The
    appellant further submits that the trial judge used her disbelief of his
    videotaped statement as circumstantial evidence of guilt.

[3]

We reject this ground of appeal. We see no basis for the appellants
    suggestion that the trial judge erred in her approach to and assessment of the
    evidence or that she engaged in speculation to bridge evidentiary gaps. In
    effect, the appellant seeks to have this court retry the case.

[4]

The trial judges extensive reasons demonstrate a meticulous and
    detailed review of all the evidence. She carefully weighed the competing accounts
    conveyed in the trial witnesses testimony and the appellants statement to
    police. The trial judge addressed the inconsistencies in the evidence and
    concluded, based on the record as a whole, that they did not raise a reasonable
    doubt that the appellant was the shooter. Her findings in this regard disclose
    no error.

[5]

We also reject the suggestion that the trial judge used her disbelief of
    the appellants statement to police as circumstantial evidence of guilt. Her
    assessment of the credibility and reliability of the appellants statement to
    police was made in the context of a
W.(D.)
analysis. In that portion
    of her reasons, the trial judge explains why she rejected the exculpatory
    aspects of the appellants statement and why the statement did not raise a
    reasonable doubt.

[6]

The appellant further argues that the verdict was unreasonable. We
    disagree. Although this was a circumstantial case, there was substantial
    evidence pointing to the appellant as the shooter. The critical evidence tying
    the appellant to the shooting was the evidence of an independent witness who
    saw a person put something into the bushes after apparently discharging a
    firearm, compounded with the subsequent recovery from those bushes of a bag
    containing a gun and the appellants identification and cellphone. The
    appellant did not testify.

[7]

We see no basis to interfere with the trial judges conclusion that the
    appellants guilt was the only reasonable inference to be drawn from the
    totality of the evidence.

[8]

On the sentence appeal, the appellant argues that the sentencing judge
    misapprehended the evidence in two respects. First, she found that the
    appellant attempted to fire a third shot but was prevented from doing so because
    the gun jammed. This, in the absence of evidence suggesting that the gun in
    fact jammed. Second, the sentencing judge found that the appellants denial of
    gang involvement affected his rehabilitative prospects when, in the appellants
    submission, there was no evidence that he was in fact a gang member.

[9]

The appellant also argues that the two counts of possessing a firearm while
    prohibited  each of which was particularized to a distinct prohibition order
    should not have been sentenced consecutively. Assuming without deciding that
    the sentencing judge committed the alleged errors, we consider the overall
    sentence imposed to be clearly fit given the serious nature of the offences and
    the appellants criminal record. As a result, we see no basis to interfere with
    the sentence imposed by the sentencing judge.

[10]

In
    conclusion, therefore, the conviction appeal is dismissed. Leave to appeal
    sentence is granted but the sentence appeal is also dismissed.

Paul Rouleau J.A.

David Watt J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clarke, 2018 ONCA 905

DATE: 20181113

DOCKET: C63672

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Monique Clarke

Respondent

Andrew Hotke, for the Crown

Monique Clarke, in person

Amy Ohler, for the respondent

Heard and released orally: November 7, 2018

REASON FOR DECISION

[1]

The Crowns appeal of sentence is granted on consent, including the
    following terms: (1) the imposition of a fine in lieu of forfeiture in the
    amount of $321,945.79, and: (2) an increase in the restitution order to
    $321,945.79. The court also orders that if the fine is not paid within ten
    years of the respondent's release of serving all current sentences she will be
    subject to a term of imprisonment of three years.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    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 complainants 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. Dixon, 2018 ONCA 949

DATE: 20181126

DOCKET: C61975

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sascha Jermaine Dixon

Appellant

William Luke, for the appellant

Andrew Cappell, for the respondent

Heard: November 22, 2018

On appeal from the conviction entered by Justice Beth A.
    Allen of the Superior Court of Justice sitting without a jury on September 25,
    2015.

REASONS FOR DECISION

A.

Overview

[1]

The appellant was convicted of sexually assaulting the
    complainant following a party at the home of mutual friends. At trial, he did
    not dispute that he had sexual intercourse with the complainant during the
    evening in question, but testified that the encounter was consensual. On
    appeal, he submits that the trial judge erred in her consideration of: the
    complainants capacity to consent, a toxicology report, DNA evidence, and his
    criminal record. We do not give effect to any of these grounds of appeal and,
    accordingly, dismiss the appeal.

B.

Facts

[2]

On December 15, 2012, the complainant attended a
    Christmas party hosted by her female friend, S.J. The appellant, who had known
    the complainant for over ten years, also attended the party.  It is uncontested
    that the appellant was drinking vodka and smoked marihuana during that evening,
    although his level of intoxication was the subject of conflicting evidence at
    trial. The testimony of the complainant and the appellant contrasts sharply
    regarding the nature of their interactions that evening.

[3]

According to the complainant, at some point that
    evening she made her way to S.J.s bedroom and laid down fully clothed beside
    S.J. She testified that she did so because she was feeling dizzy and sick as a
    consequence of her alcohol consumption. She fell asleep almost immediately but
    was awoken after being slapped on her bottom. Her evidence was that she did not
    see who slapped her and did not turn around to see who it was because she could
    barely keep her eyes open. The complainant testified that she did not know what
    was happening and felt like she was going in and out of consciousness. She says
    that she has no recollection of physical contact with the appellant. However,
    she did remember feeling that she was swaying, like she was being pushed and
    pulled.

[4]

The complainant further testified that the next thing
    she remembered was S.J. and her partner, M.A., waking her up and screaming at
    her to get out of their apartment. She says that she felt very drunk and
    disorientated. M.A. threw the complainants pants and underwear at her and
    escorted the complainant out of the apartment. She asked S.J. and M.A. for cab
    fare. M.A. threw her a $5 bill and she threw it back. The complainant remembers
    meeting the appellant in the corridor and next remembers being in the
    appellants car in the front passenger seat. According to the complainant, she
    looked over and saw the appellant sitting in the drivers seat masturbating.

[5]

The complainants next memory was waking up on her
    living room floor at 6:30 p.m. that evening. She was surprised to discover that
    she was not wearing any underwear and that a tampon she had put in the night
    before was gone. She became concerned about what had happened the previous
    evening and called S.J. to enquire about what had transpired. S.J. told the
    complainant that she had sex with the appellant. The complainant later attended
    at the Rouge Valley Hospital because she did not know if the tampon was still
    inside of her.  Eventually she went to Scarborough Grace Hospital to complete a
    sexual assault kit, which revealed the appellants DNA inside her.

[6]

The testimony of the appellant is at odds with the evidence of the complainant
    in most material respects. He testified that sometime after 3:30 a.m., as the party
    was starting to wind down, he saw the complainant in the hallway between the
    master bedroom and washroom. He says that she gestured for him to come over and
    speak to her and that she did not seem intoxicated. After a brief conversation,
    the complainant grabbed the appellants hand and led him into the bedroom,
    where he believes she took off her pants. The appellants evidence is that the
    complainant led him to the bed and pulled him on top of her. He was still
    wearing his clothes at the time. According to the appellant, he started
    stimulating the complainants genitals with his hands.

[7]

The appellant testified that about a minute later, S.J. woke up and was
    very angry. She left the room and came back with M.A. The appellant went to
    wash his hands in the bathroom and could hear screaming among the complainant, S.J.,
    and M.A. The complainant then joined him in the bathroom and told him that she
    did not have a way home. The appellant testified that he offered her a ride and
    the complainant accepted and told him to wait for her outside of the apartment.
    A short time later, the complainant exited the apartment and he walked her to
    his minivan. He testified that this occurred at approximately 6:30 to 7:00 a.m.
    The appellants evidence was that at this point he was very sober and the
    complainant seemed fine. He said that the complainant drank more vodka and they
    then engaged in consensual intercourse in the minivan. Afterwards, he drove her
    home.

[8]

S.J. testified at trial that she was awoken to sound of moaning and she
    observed the appellant, whose pants were pulled down, on top of the complainant,
    who was wearing a shirt but no pants or underwear. She says that she screamed,
    What the fuck? and went to get M.A. in the living room. The appellant went
    into the bathroom and the complainant followed him in there. S.J. believes that
    it was about 5:30 to 6:00 a.m. at this point. She says that she was very upset
    and that she and M.A. kicked out everyone who was still in the apartment. Later
    when cleaning her bedroom, S.J. discovered a used tampon under her bed.

[9]

S.J. next heard from the complainant at about 12:30 p.m. that day. She
    testified that the complainant seemed confused and out of it. S.J. explained
    to the complainant that she had sex in her bed with the appellant. At about 8
    p.m. that evening the complainant called again; she was crying and seemed
    groggy.

[10]

M.A.
    also testified. He gave evidence that around 4 a.m. S.J. started a commotion
    and he went to the bedroom. He was told by S.J. that she had woken up to the
    appellant and complainant in their bed.  The appellant came out of bedroom with
    his clothes on and went into the bathroom. The complainant followed shortly
    thereafter in a t-shirt and panties. M.A. confirmed the complainants testimony
    about tossing her a $5 bill and having it thrown back at him. He also said that
    she retrieved her vodka bottle before leaving the apartment.

C.

Decision of the Trial Judge

[11]

The
    trial judge began her analysis by making credibility findings about the
    witnesses. She found the complainant to be a credible witness and concluded
    that the defence did not make meaningful inroads into her credibility. S.J. was
    also found to be credible.  The trial judge provided detailed reasons why she
    found the appellant and M.A. not to be credible. She preferred the evidence of
    the complainant and S.J. regarding the complainants level of intoxication over
    the evidence of the appellant and M.A., finding that the latter witnesses
    downplayed her level of intoxication.

[12]

After
    commenting on the credibility of the witnesses, the trial judge found that the Crown
    had proved beyond a reasonable doubt that the complainant was sexually
    assaulted by the appellant when he engaged in non-consensual intercourse with
    her in S.J.s bedroom. With respect to the issue of consent, she accepted the
    testimony of the complainant and S.J. that the complainant was very intoxicated
    and noted that this evidence was supported by a toxicology report on the
    complainants blood alcohol level tendered by the Crown. The trial judge made a
    specific finding that the complainant had no capacity to consent to sexual
    activity.

[13]

In
    support of her finding that the appellant sexually assaulted the complainant in
    S.J.s bedroom, the trial judge relied on, among other things, the evidence of
    S.J. that she saw the appellant on top of the complainant in her bed with his
    pants down and her pants off, the presence of the used tampon, the discrepancy
    between the evidence of S.J. and the appellant regarding whether his pants were
    down, and inconsistencies in the appellants testimony regarding the timing of
    when he left the bedroom and when he arrived at his minivan.

[14]

The
    trial judge went on to consider the issue of what occurred in the appellants
    minivan. She concluded that there was no evidence of the complainants
    conscious agreement to engage in any sexual activity in the vehicle.

D.

Issues

[15]

The
    appellant submits that the trial judge erred in:

(a) Applying the incorrect
    test regarding consent;

(b) In her use of the
    toxicology report;

(c) In her use of the
    DNA evidence; and

(d) In her use of the
    appellants criminal record.

[16]

These
    arguments are considered in turn below.

E.

Analysis

(1)

Consent

[17]

The
    appellant submits that the trial judge erred by failing to advert to the law of
    capacity to consent and the inferences that can be drawn with respect to the
    complainants capacity to consent. Specifically, he argues that intoxication is
    only indicative of a lack of capacity to consent if the complainant, by reason
    of her intoxication, could not understand the sexual nature of the act or
    realize that she could decline to participate. He points to the complainants purposive
    behaviour after she left the bedroom, including asking for a ride, throwing the
    $5 bill at M.A., and retrieving her vodka bottle, along with her willingness to
    let the appellant drive her home, as raising a reasonable doubt about whether
    she was incapable of consent moments earlier in the bedroom.

[18]

In
    considering this submission, we note that the defence theory at trial was not
    that the complainant consented to sexual intercourse while in the bedroom, but
    that the intercourse took place later in the appellants minivan. We also note
    the trial judges finding that the complainant was intoxicated to the point
    where she went into a deep sleep, faded in and out of consciousness, and did
    not know what was happening to her. Given this finding, it would have been
    impossible for her to consent to sexual activity:
R. v. J.A.
, 2011 SCC
    28, [2011] 2 S.C.R. 440, at para 66. We see no error in the trial judges
    conclusion that the complainant was incapable of consenting to sexual activity.

(2)

Toxicology Report

[19]

The
    trial judge made reference to the toxicology report tendered by the Crown in
    support of her conclusion that the complainant was too intoxicated to consent to
    sexual activity. That report indicates that between 1:00 a.m. and 7:30 a.m. on
    the date of the offence, the complainants blood alcohol level ranged between a
    minimum of 177mg/100ml and a maximum of 512mg/100ml of blood.

[20]

In
    addition to noting the broad range of blood alcohol levels in the report, the
    appellant submits that the trial judge failed to consider that the
    complainants alcohol levels would have been impacted by the vodka she consumed
    while in the minivan. He argues that when the post-offence drinking is factored
    in, the complainants blood alcohol level would have been lower at the time of
    the offence. The appellants position is that this was a misapprehension of
    evidence by the trial judge entitling him to a new trial.

[21]

In
    our view, when the trial judges reasons are read as a whole, her finding
    regarding the complainants level of intoxication is based primarily on her
    acceptance of the evidence of the complainant and S.J. on this issue. The
    toxicology report was merely referenced as being supportive of and consistent
    with that evidence. Further, we are not satisfied that the trial judge
    misapprehended that the blood alcohol levels in the toxicology report would
    have included post-offence alcohol consumption.

(3)

DNA Evidence

[22]

The
    trial judge relied on the presence of the appellants DNA inside the
    complainant in finding that the appellant had non-consensual intercourse with
    the complainant in the bedroom. The appellant submits that this was an error
    because the trial judge also found that the appellant and the complainant
    engaged in intercourse in the minivan. He argues that the DNA evidence might
    have resulted solely from intercourse in the minivan.

[23]

We
    do not read the trial judges reasons as making a finding that the complainant
    and the appellant engaged in intercourse while in the minivan. The trial judge
    was obliged to consider this scenario as it was the centrepiece of the
    appellants defence. A fair reading of her reasons makes clear that the trial
    judge had grave doubts about the appellants evidence in this regard. However,
    even accepting his evidence for the purpose of her analysis, she rejected the
    idea that the complainant was capable of consenting to sexual activity while in
    the minivan.

(4)

Criminal Record

[24]

In
    the section of her reasons dealing with the appellants credibility, the trial
    judge makes reference to his criminal record. The appellant properly concedes
    that his criminal record can be used by the trial judge to assess his
    credibility. However, he argues that there is nothing in the reasons stating
    what use the trial judge made of the criminal record and that she failed to caution
    herself not to use the record for an improper purpose, such as propensity
    reasoning.

[25]

The
    manner in which the evidence was elicited at trial is troubling. The trial
    Crown started this area of his cross-examination by asking the appellant if he
    was a violent person. He then proceeded to go beyond the criminal record itself
    to ask questions about the circumstances of the offences. Crown counsel on
    appeal conceded that the questioning was improper and that if this were a jury
    trial, this cross-examination would be very problematic.

[26]

Despite
    these concerns, we would not give effect to this ground of appeal. The trial
    judge is presumed to know that an accuseds criminal record cannot be used as
    evidence of his propensity to commit the crimes with which he was charged. While
    it would have been preferable if the trial judge included a specific caution in
    her reasons that she could not use the evidence for a prohibited purpose, such
    a caution is not absolutely necessary. Further, there is nothing in the reasons
    to suggest that the trial judge used the appellants criminal record for an
    improper purpose. The fact that it was referenced in the section dealing with
    her analysis of the appellants credibility logically supports the conclusion
    that it was properly used.

F.

Disposition

[27]

The
    appeal is dismissed for the foregoing reasons.

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter 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 complainants 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. Daoud, 2018 ONCA 963

DATE: 20181128

DOCKET: C60344

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammed Daoud

Applicant/Appellant

Randall Barrs, for the appellant

Jill Witkin, for the respondent

Heard: November 21, 2018

On appeal from the conviction entered on September 5,
    2014 and the sentence imposed on April 15, 2015 by Justice Sheila Ray of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting the complainant. The
    prosecution that led to his conviction was based on the theory that the
    complainant woke up to find the appellant having sex with her. Because she was
    passed out from intoxication at the time, she was incapable of consenting to
    the sexual acts that occurred.

[2]

The appellant appeals his conviction, arguing that the trial judge erred
    by failing to consider whether the complainants lack of memory raised a
    reasonable doubt that there was either consent, or an honest but mistaken
    belief in consent.

[3]

We dismiss the appeal. The trial judge provided compelling reasons for
    not believing the appellants testimony. She then recognized that a witnesss
    belief that something did not happen could be based simply on a lack of memory
    before making clear that her decision was not based on the complainants
    testimony that she did not believe she consented. The trial judge explained
    that she convicted the appellant because of evidence confirming the
    complainants extreme intoxication, testimony that the complainant passed out
    in a drunk-induced sound sleep upon being put in the bed, and that, in her intoxicated
    condition it was impossible for her to have consented. Finally, the manner in
    which the complainant fled the bed confirmed her shock, her surprise and further
    confirmed her extreme intoxication at the time. Simply put, while the
    complainants testimony did not prove beyond a reasonable doubt that she did
    not wake up and consent, the totality of the evidence did so.

[4]

As for the attempt by the appellant to rely on the mistaken belief in
    consent defence, that defence rested entirely on the rejected testimony of the
    appellant, and he made damaging admissions that could not get beyond the wilful
    blindness obstacle. The trial judges reasons for rejecting this defence are
    cogent and correct.

[5]

The appeal is dismissed.

S.E. Pepall J.A.

David M. Paciocco J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ebagua, 2018 ONCA 898

DATE: 20181109

DOCKET: C61425

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Ex Rel.
    City of Toronto

Respondent

and

Junior Ebagua

Appellant

No one appearing for the appellant

Amanda Ross, for the respondent

Heard: November 6, 2018

APPEAL BOOK ENDORSEMENT

[1]

On consent of the Crown, the appeal is allowed and a new trial ordered
    in the Ontario Court of Justice. The appellant shall appear on December 10,
    2018 in courtroom N at Old City Hall at 1:30 p.m. to set a date for trial.


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 complainants 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. Fells, 2018 ONCA 881

DATE: 20181106

DOCKET: C63995

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Fells

Appellant

Ingrid Grant, for the appellant

Joe Hanna, for the respondent

Heard: October 26, 2018

On appeal from the conviction entered on January 31,
    2014, by Justice Harvison Young of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant had multiple assault convictions relating to tricking
    women into submitting to foot massages and then surreptitiously rubbing his
    penis on their feet. The convictions date back to April 2008 and March 2011. As
    a result of the 2011 convictions, he was sentenced to a term of imprisonment
    plus probation, which included terms that he keep the peace and be of good
    behaviour, that he not touch any persons feet without their consent, and that
    he not represent himself as either involved in, or having had, training for
    massage therapy.

[2]

The appellant was released from prison on January 2, 2012. On that day
    he went to an apartment in Toronto where he stayed until January 12, 2012. He
    then went to a London residence until the morning of January 13, 2012. The
    trial judge found that while in both Toronto and London the appellant breached
    the terms of his probation by holding himself out as a massage therapy student
    and that in London, he unlawfully confined, assaulted, and threatened a nine
    year old girl, A.F., in the basement of her home and that he also sexually
    assaulted her by forcing her to rub her feet on his penis.

[3]

The appellant appeals against his convictions on counts 6 to 12 of the
    indictment, being all but one of the London charges.

[4]

The appellant raises three issues on appeal.

[5]

First, he argues that the trial judge erred by failing to adequately
    scrutinize the evidence of A.F. and give reasons for her acceptance of A.F.s
    evidence. In this regard, the appellant asserts that there were multiple fabrications
    and implausibilities in the complainant's evidence and that the trial judge
    either failed to explain how she resolved them or resorted to speculation to do
    so.

[6]

We do not accept these submissions. In our view, the trial judge
    recognized the problems with the complainant's evidence but also recognized
    that the complainant was nine at the time of the alleged events and eleven when
    she testified at trial. The child gave a police statement the day after the
    alleged events and had also testified at the preliminary inquiry. Not
    surprisingly, she was not able to provide a consistent chronology of how the
    events unfolded. The trial judge assessed the complainant as unsophisticated
    and noted that one of her teachers had described her as a struggling student,
    but the trial judge concluded she was a child who was trying to tell the truth.

[7]

Significantly, although the trial judge found the complainants
    allegations that she was assaulted upstairs had not been established, she
    concluded that the complainant was unshaken in her core allegations about what
    happened in the basement, namely that the appellant blocked her from leaving
    the basement, grabbed her by the wrist and arm, forced her onto a mattress,
    threatened her and rubbed his penis against her feet. Notably, numerous
    complainants had described the appellant engaging in the latter behaviour. This
    provided powerful support for A.F.'s complaint of sexual assault.

[8]

The trial judge noted there were other less reliable aspects of the
    complainant's testimony, however, she concluded that these frailties were
    explained by the passage of time, the child's focus on the frightening event
    that occurred, the child's nervousness and eventual fatigue while testifying,
    and the fact that many of the frailties were peripheral to the core event that
    happened in the basement. Although the trial judge did not resolve each and
    every inconsistency raised by the appellant, she was not required to. It was
    her job to weigh the evidence and assess whether the complainant's evidence was
    sufficiently reliable and credible to be relied upon. She explained that the
    child was unshaken in her central allegations and that a key aspect of those
    allegations was supported by powerful corroborative evidence.

[9]

Second, the appellant argues that the trial judge misused the similar
    fact evidence, using it to corroborate evidence that it contradicted.

[10]

We
    reject this argument. As noted by the trial judge, in the absence of collusion
    or conspiracy, findings the appellant does not challenge on appeal, it was
    objectively impossible that A.F. could have described the sexual conduct in
    which the appellant had engaged if it had not occurred. In the trial judges
    view, the fact that the appellant had used trickery rather than force with the
    prior adult complainants did not detract from the weight of the similar fact
    evidence in supporting the complainant's evidence. The trial judge assessed the
    complainant as unshaken in her evidence of how the incident unfolded. She believed
    that the appellant resorted to force to get this young complainant to comply
    with his request.  That was her call to make.

[11]

Third,
    the appellant argues that the trial judge misapprehended the defence evidence.

[12]

This
    argument relates to defence evidence from two of the complainant's teachers
    concerning the timing of the complainant's disclosure to them. This evidence
    lacked sufficient force to detract from the complainants evidence. The trial
    judge treated it as such.

[13]

Despite
    the able submissions of counsel, the conviction appeal is dismissed. The
    sentence appeal is dismissed as abandoned in accordance with the previously
    filed notice of abandonment.

Janet Simmons J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Freeman, 2018 ONCA 943

DATE: 20181122

DOCKET: C64080

Sharpe, Hourigan and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Freeman

Appellant

Jill Presser and Jeff Marshman, for the appellant

Howard Leibovich, for the respondent

Heard: November 20, 2018

On appeal from the conviction entered on November 1, 2016
    by Justice George T. Valin of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of the second degree murder of Patrice
    Gregoire.

[2]

On July 17, 2014, the two men engaged in a fight outside the appellants
    residence. Mr. Gregoire intended to confront the appellant for abusing his (the
    appellants) girlfriend. Anticipating that someone might pay him a visit and
    inflict violence upon him, the appellant armed himself with a large steak
    knife. He went to a friends house to buy marijuana. He was unsuccessful. As he
    was leaving, the appellant told this friend, somebody might get hurt. The
    appellant then returned to his apartment.

[3]

In the meantime, Mr. Gregoire was at a pub across the street from the
    appellants apartment. He saw the appellant returning home and walked over to
    confront him. According to the appellants statement to the police, as the two
    men walked towards each other, Mr. Gregoire said, Youre dead. The appellant
    said, Bring it.game on. Mr. Gregoire then lunged at the appellant with a
    kick. The appellant fell to the ground and Mr. Gregoire got on top of him and
    started beating him. In the course of this fight, the appellant stabbed Mr.
    Gregoire 19 times with the knife that he was carrying. Eventually, Mr. Gregoire
    stopped punching the appellant and collapsed. The police asked the appellant if
    he knew why he was arrested. He answered, Yes, attempted murder. Hope he
    fucking dies.

[4]

Throughout the trial, the appellants position was focused on
    self-defence. Defence counsel and Crown counsel at trial (none of whom appeared
    as counsel on this appeal) focused their closing jury addresses on
    self-defence. In a pre-charge conference, which was held after counsel
    delivered their addresses, one of the appellants trial counsel floated the idea
    that the partial defence of provocation set out in s. 232 of the
Criminal
    Code
ought to be left with the jury, based on Mr. Gregoires utterance,
    Youre dead. The trial judge observed that this was the first time that
    provocation had been mentioned, and that neither Crown nor defence counsel raised
    the issue in their closing addresses.

[5]

More senior counsel representing the appellant suggested that the issue
    of provocation should be addressed after a short break to consider the
    situation. When the pre-charge conference continued, he advised the trial judge
    that he did not wish to have provocation left with the jury. The following
    exchange occurred:

The Court
:  So,
    the defence is saying to the court theres no air of reality to that defence?

Mr. Walker:
Yes.

[6]

The following morning, the trial judge delivered a brief ruling on the
    issue, in which he said (in part):

I spent some time last evening to consider this matter further
    and after reflection I am satisfied that the utterance bythe deceased, Youre
    dead, in the circumstances it was made is not reasonably capable of supporting
    the inference necessary to make out the defence of provocation. That utterance
    is certainly relevant to the defence of self-defence. I therefore do not
    propose to instruct the jury on the defence of provocation.

[7]

The appellants sole ground of appeal is that the trial judge erred in
    refusing to instruct the jury on provocation. He contends that there was an air
    of reality to the defence and, notwithstanding defence counsels ultimate
    position before the trial judge, the jury should have been instructed on provocation.
    We disagree.

[8]

It is common ground that a trial judge must instruct the jury on any
    defence for which there is an evidential foundation sufficient to raise an air
    of reality. Correspondingly, [a] defence that lacks an air of reality should
    be kept from the jury:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3,
    at para. 51. An air of reality must exist for each and every element of the
    defence in question.

[9]

With the partial defence of provocation, there are numerous elements in
    play. Some are objective considerations; others relate to the accused persons
    subjective mental state: s. 232(2). There must be an evidential foundation for
    both types of elements: see
R. v. Pappas
, 2013 SCC 56, [2013] 3 S.C.R.
    452, at para. 21; and
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420,
    at para. 21.

[10]

Boiled down to its essential components, the partial defence of
    provocation requires an evidential foundation on the following four elements:

Objective Components

1.There was a wrongful act or insult;
    and

2.The wrongful act or insult must be
    sufficient to deprive the ordinary person of the power of self-control.

Subjective Components

3.The accused must have acted in
    response to the provocation; and

4. The accused must have acted on the sudden before there was
    time for his or her passion to cool.

See
Cairney
, at paras. 33-34; and
R. v.
    Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36.

[11]

The issue on appeal may be disposed of by reference to the subjective
    elements in s. 232(2). Whether or not the words Youre dead are capable of
    depriving an ordinary person of the power of self-control, there was no
    foundation for the proposition that the appellant was actually provoked by
    these words. As Watt J.A. said in
R. v. Boukhalfa
, 2017 ONCA 660, at
    para. 92:

It is uncontroversial that suddenness must characterize not
    only the wrongful act or insult, but also the responsive conduct of the
    accused.
To be more specific, the wrongful act or insult must strike upon a
    mind unprepared for it, make an unexpected impact that takes the understanding
    by surprise and set the passions aflame
:
R. v. Tripodi
, [1955]
    S.C.R. 438, at p. 443;
R. v. Thibert
, [[1996] 1 S.C.R. 37] at para. 20. [Emphasis
    added.]

[12]

Here, nothing happened that could be said to have caused the appellant
    to lose his power of self-control and act on the sudden. The evidence suggests
    the opposite. The appellant was not surprised by Mr. Gregoires aggressive
    stance. Far from having a mind unprepared for what Mr. Gregoire said to him,
    the appellant prepared himself for a fight by obtaining a steak knife, which he
    carried openly as he approached Mr. Gregoire. In his statement to the police,
    the appellant said that it was perfect timing when he saw the victim
    approach.

[13]

There is little doubt that the appellant was very angry at the time of
    the fight. However, standing alone, this is insufficient to ground an air of
    reality for the purposes of s. 232(2): see
R. v. Parent
, 2001 SCC 30, [2001]
    1 S.C.R. 761.

[14]

The appeal is dismissed.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Georgiev, 2018 ONCA 961

DATE: 20181128

DOCKET: C63946

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emilio Georgiev

Appellant

Paul Calarco, for the appellant

Jennifer Trehearne, for the respondent

Heard: November 20, 2018

On appeal from the convictions entered by Justice Carole
    J. Brown of the Superior Court of Justice, sitting with a jury, on November 9,
    2016, and from the sentence imposed on March 24, 2017, with reasons reported at
    2017 ONSC 1265.

REASONS FOR DECISION

[1]

The trial judge accepted Emilio Georgievs guilty plea to the offence of
    breach of recognizance. Mr. Georgiev was also convicted by jury for the
    offences of robbery, assault causing bodily harm, aggravated assault, uttering
    a threat to cause death and possession of a weapon for a purpose dangerous to
    the public peace (weapon dangerous). During the trial involving the slashing
    and robbery of a 57 year old blind male complainant, identity was the only
    issue. The sole witness to the crime was the complainant.

[2]

The crimes occurred when the complainant was accosted after bumping into
    a car with his cane. The assailant slashed the complainants neck with a knife,
    threatened to stab him, and took money and other things from his wallet.  The
    assailant referred to the car as my car. Shortly after the knife attack and
    robbery, the complainant was able to describe the location of the car to the
    police. The only car at that location proved to belong to Mr. Georgievs
    mother. It was parked near a residence that Mr. Georgiev was visiting at the
    time of the crimes. Contents of the complainants wallet were found in the
    garbage behind the residence and his white cane was found leaning against the
    residence itself. An associate of Mr. Georgiev, Tyler York, described seeing
    Mr. Georgiev inside the residence after Mr. York had initially gone to bed. He
    said Mr. Georgiev was wearing a mask and washing something in the sink, saying,
    fuck that guy, fuck that guy.

[3]

Mr. Georgiev defended himself in part by presenting Mr. York as an
    alternative suspect. He raises several grounds of appeal from these convictions,
    all but one of which relate to the sufficiency of the jury charge.

[4]

Mr. Georgievs first ground of appeal is that the trial judge failed to
    set out adequately the evidence related to the alternative suspect. Both Mr.
    Georgiev and Mr. York met the general physical descriptors the complainant was
    able to provide. Mr. Georgiev contends that this was not driven home adequately
    by the trial judge, and he points to several items of circumstantial evidence
    that he claims should have been linked directly by the trial judge to the
    alternative suspect issue.

[5]

Despite the able submissions, we find no error here. The case was
    lengthy, but straightforward. The only contested issue was whether the Crown
    could identify the accused beyond a reasonable doubt, and the alternative
    suspect defence was inextricably linked to the Crowns identification case. The
    key points of evidence identified by Mr. Georgiev were included in the charge in
    a fashion that enabled the jury to fully appreciate the value and effect of the
    evidence on the alternative suspect issue, including that the limited physical descriptions
    provided by the complainant, taken alone, could not rule out the alternative
    suspect. We are satisfied that when the charge is viewed functionally, the jurors
    would have adequately understood the alternative suspect issue, the governing
    law, and the evidence they should consider in resolving this question. Although
    not determinative, we note that the appellant did not object to the trial
    judges charge in this regard.

[6]

We also find the
Vetrovec

charge to have been sufficient.
    That charge adequately reviewed problems with Mr. Yorks evidence. Although the
    trial judge did not mention in her
Vetrovec

charge that no mask
    was found at the residence, or advert to Mr. Yorks lies to the police, these
    points were made elsewhere in the charge. In this straightforward case we are
    satisfied that the jury would have given these points consideration.

[7]

Nor are we troubled by the trial judges passing reference to the consistency
    of Mr. Yorks testimony. This was mentioned by the trial judge when alerting
    the jury to the inconsistency in some of Mr. Yorks statements to the police,
    and provides fair context in evaluating the inconsistency claim.

[8]

We find no error in the trial judges comment that a reasonable doubt
    can be left by evidence that shows or tends to show that Tyler York committed
    the offences with which Emilio Georgiev is charged, taken together with the
    rest of the evidence. It is true that reasonable doubt raised by an alternative
    suspect theory is enough on its own to command an acquittal, however, a jury is
    obliged when determining whether they have a reasonable doubt to consider the
    evidence as a whole. This direction says no more than that.

[9]

Mr. Georgiev also challenges his conviction of weapon dangerous, contrary
    to
Criminal Code
, R.S.C. 1985, c. C-46, s. 88(1). He says that there
    is no evidence that before the knife was used in a dangerous manner, it was possessed
    for a dangerous purpose. We disagree, even leaving aside that Mr. Georgiev
    admitted this element of the offence at trial. Assuming the knife was not
    possessed for a dangerous purpose before the complainants throat was slashed,
    the assailant continued to possess the knife while following the complainant down
    the street before accosting him a second time. The crime is made out.

[10]

We
    would therefore deny Mr. Georgievs conviction appeal.

[11]

Mr.
    Georgiev also seeks leave to appeal his sentence, claiming that it was illegal,
    contrary to the rule against multiple convictions, unduly long, and that it was
    imposed contrary to proper sentencing principles.

[12]

We
    accept, as does the Crown, that a concurrent sentence of seven years was an
    illegal sentence for the uttering a threat to cause death and breach of
    recognizance convictions, since seven years exceeds the maximum sentences for
    those offences.

[13]

We
    also agree with the Crowns concession that the trial judge erred in not
    staying the aggravated assault and weapon dangerous convictions pursuant to the
    principles outlined in
Kienapple v. R.
, [1975] 1 S.C.R. 729.

[14]

We
    do not agree with Mr. Georgiev, however, that the uttering a threat to cause
    death conviction also had to be stayed. The robbery charge was based on the
    specific allegation that Mr. Georgiev stole and immediately thereafter used
    violence, contrary to
Criminal Code
, s. 343(b). The robbery charge was
    not based on an allegation of robbery by threat of violence contrary to
Criminal
    Code
, s. 343(a). The death threat therefore adds an additional element to
    the robbery conviction, capable of supporting an additional conviction.

[15]

We
    do not accept that the seven year global sentence was unfit or arrived at
    contrary to principle. The relevant circumstances and principles were
    considered by the trial judge, and based on those circumstances and principles,
    the robbery conviction alone warranted a seven year sentence. We would not
    interfere.

[16]

We
    therefore dismiss the conviction appeal, but impose a stay on the aggravated
    assault and weapon dangerous convictions. We grant leave to appeal sentence and
    vary the sentence on the uttering a threat to cause death conviction contrary
    to
Criminal Code
, s. 264.1(1)(a) to 18 months concurrent. We also vary
    the sentence on the breach of recognizance conviction contrary to
Criminal
    Code
, s. 145(3)(a) to three months concurrent. We dismiss the sentence
    appeal from the robbery conviction and affirm the global sentence of 7 years,
    less 771 days credit for pre-sentence custody.

S.E.
    Pepall J.A.

David
    M. Paciocco J.A.

Harvison
    Young J.A.