COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Phung, 2012 ONCA
    720

DATE: 20121029

DOCKET: C47986

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Quang Nguyen Phung

Appellant

Peter B. Scully, David Butt and Maija Martin, for the
    appellant

James K. Stewart, for the respondent

Heard: September 18, 2012

On appeal from the conviction entered on May 26, 2007 by
    Justice Fred Graham of the Superior Court of Justice, sitting with a jury.

By the Court:

I.

overview

[1]

The appellant and Cong Tran were charged with one count of first degree
    murder and one count of attempted murder.  Both charges arose out of the same
    events.

[2]

It was the Crowns theory at trial that the appellant and Cong Tran, who
    were drug dealers, had arranged to purchase two kilograms of cocaine from the
    deceased and that at some point before the three men met to consummate the
    transaction, the appellant and the co-accused decided to steal the deceaseds
    cocaine and murder him.  The Crown alleged that the appellant was the shooter. Ms.
    Le, the other victim, was the deceaseds girlfriend.  She was also shot but
    survived.  The Crown did not allege that Ms. Le had anything to do with the
    drug transaction.  On the Crowns theory, she was shot because she was
    potentially a witness against the appellant and the co-accused.  She was very
    much in the wrong place at the wrong time.

[3]

The appellant did not testify.  At trial, he argued that the Crown had
    not proved that he was at the scene of the murder.  Alternatively, the
    appellant argued that the evidence relied on by the Crown demonstrated that the
    person who was outside of the vehicle had fired the gun.  On the Crowns
    theory, the appellant was the driver of the vehicle.

[4]

The co-accused, Cong Tran, did testify.  He testified that the appellant
    had arranged to purchase cocaine from the deceased.  According to Cong Tran,
    there was no plan to kill the deceased and steal his drugs.  On Cong Trans
    evidence, the appellant acted on his own when he shot the deceased and Ms. Le.
    Cong Tran insisted that he had no idea that the appellant intended to shoot
    anyone and that the shootings came as a total surprise to him.

[5]

Following a jury trial that spanned almost 20 months, the appellant was
    found guilty of first degree murder and attempted murder.  Cong Tran was
    acquitted on both counts.

II.

grounds of appeal

[6]

The appellant argues that the trial judge made three errors, each of
    which warrants quashing his convictions and ordering a new trial:

(1)

The trial judge denied the appellant an adjournment and forced the
    appellant to proceed unrepresented after he discharged counsel;

(2)

The trial judge did not put the appellants theory that Cong Tran killed
    the deceased in retaliation for the recent stabbing of Congs brother to the
    jury because it lacked an air of reality; and

(3)

The trial judge left speculative evidence of planning and deliberation
    with the jury.

III.

evidence review

[7]

On April 25, 2003, the appellant and Cong Tran picked up Peter Tran and
    his girlfriend, Emily Le, in Toronto in Cong Trans car. Cong Tran was driving.
    Cong Tran testified that he, the appellant and the deceased were involved in a
    drug transaction: the appellant had arranged to buy two kilograms of cocaine
    from the deceased. Ms. Le was just getting a ride home. The deceased placed the
    cocaine in the trunk and the four departed together. They headed towards
    Richmond Hill.

[8]

While in the car, there was some discussion about the fact that Cong
    Trans brother, Thuan Tran, had been stabbed less than a week earlier. Cong
    Tran missed Ms. Les exit off the highway, but they did not turn back. They
    instead got off the highway in a secluded area unfamiliar to the deceased and
    Ms. Le, at Gamble Road and Bathurst Street in the town of Richmond Hill. Cong
    Tran, the deceased and Ms. Le got out of the car, and the appellant took over
    the wheel. The appellant left in the car to get something at his uncles nearby
    house. Both Ms. Le and Cong Trans evidence was that, after the appellant had
    been gone some time, Cong Tran called the appellant to see what was taking so
    long. The Crowns theory was that the appellant went to get his handgun. It was
    known that he had a gun: both a friend of the appellant and Cong Tran testified
    that they had seen the appellant with a gun in the weeks before the murder.

[9]

Cong Tran testified that when the appellant returned, the appellant shot
    the deceased and Ms. Le with a handgun from the car. In a statement to the
    police, Ms. Le identified the appellant as the shooter.

[10]

After
    the shooting, Cong Tran quickly got into the car, and he and the appellant
    drove off.

[11]

The
    deceased and Ms. Le managed to get to a nearby house. One of the occupants had
    just heard a car pull up, argumentative voices, someone yell fuck you,
    motherfucker and/or youll pay for it you motherfucker and then five
    gunshots. The occupants tried to help the victims until the ambulance arrived.

[12]

Each
    of the victims sustained two gunshot wounds. The deceased succumbed to his injuries.
    Ms. Le survived.

[13]

Two
    days later, on April 27, 2003, the appellant and Cong Tran flew to Vancouver.
    They were accompanied by their girlfriends and Cong Trans brother, Thuan. They
    had bought one-way tickets that morning, and only some of them carried luggage.
    The appellant was apprehended by the police in Vancouver on May 4, 2003.

[14]

In
    a May 6, 2003 interview with the police submitted at trial, the appellant said
    that he was with his girlfriend on the night of April 25, 2003. However, that
    night, he received a call on one of his two cell phones, which was routed
    through a cell tower near the scene of the crime and not near his girlfriends.

[15]

Cell
    phone records showed that the appellant, Cong Tran and the deceased had all
    been in extensive contact with one another in the days leading up to, as well
    as on the day of, the shooting.

IV.

analysis

issue #1: did
    the trial judge err in refusing an adjournment and requiring the appellant to
    proceed without counsel?

[16]

This
    ground of appeal raises two distinct but related issues.  First, did the trial
    judge err in the exercise of his discretion when he refused to grant the
    appellant an adjournment to retain new counsel?  Second, even if the trial
    judge did not err in refusing the adjournment, did the appellant, who proceeded
    without counsel, receive a fair trial?

[17]

The
    first question examines the exercise of the trial judges discretion in the
    context of the circumstances presented when the adjournment request was made.
    The second question looks back on the conduct of the trial after the refusal of
    the adjournment and asks whether despite the absence of counsel, the appellant
    received a fair trial.

The first question: the exercise of the trial judges
    discretion

(1)

The context

[18]

The
    trial began on January 9, 2006. The appellant was represented by Mr. Sack. Pre-trial
    motions were complete by mid-February of 2006. The appellant and Cong Tran were
    put in the charge of the jury on March 1, 2006.

[19]

A
    lengthy
voir

dire
was held as to the admissibility of certain
    statements Ms. Le made to the police. On or about May 2, 2006, members of the
    appellants family contacted lawyers in an effort to retain other counsel for
    him.

[20]

On
    May 9, 2006, the trial judge ruled that the statement in which Ms. Le identified
    the appellant as the shooter was admissible. On or about that date, the
    appellant spoke with a lawyer, Ms. Shemesh, about retaining her as counsel. Ms.
    Shemesh told the appellant that he would have to speak to legal aid for
    permission to change counsel, and that he would have to discharge his current
    counsel in order to retain her. Ms. Shemesh was aware that the appellant had
    contacted other counsel.

[21]

On
    May 11, 2006, the appellant and Cong Tran applied for a mistrial based upon the
    submission that a prospective seven-week adjournment of the trial between July
    and September to accommodate the jurors schedules would be unfair.

[22]

On
    May 15, 2006, the trial judge dismissed the mistrial application.

[23]

On
    May 16, 2006, the appellant discharged Mr. Sack and requested an adjournment to
    seek new counsel. The matter was adjourned two days to May 18, 2006, at which
    point Mr. Reid, who acted as counsel for the appellant with respect to the
    adjournment application, advised that the appellants new counsel of choice, Mr.
    Reid`s colleague Dirk Derstine, was prepared to represent the appellant at
    trial and would be available starting mid-October.

[24]

At
    the
voir

dire
to determine if the adjournment should be
    granted, two court officers testified. The evidence of the first was that on
    May 15, 2006, while she was removing the appellants shackles, she heard him
    say: I have to get this judge off the panel.  The appellant then asked her: [I]f
    I fire a lawyer will I get a mistrial? or what happens if I fire my lawyer?  She
    told him: I dont believe youll get a mistrial, you might get a delay.

[25]

The
    second court officer testified that the appellant asked her if firing his
    lawyer would get a mistrial.

[26]

On
    May 24, 2006, after hearing evidence and argument, the trial judge dismissed
    the adjournment application. The trial judge strongly recommended to the
    appellant that the appellant continue to retain Mr. Sack, whom the judge
    observed had conducted himself at all times to the benefit of [the appellant]
    and effectively and with vigour. The following day, the trial judge again
    invited the appellant to re-visit his decision to discharge Mr. Sack. The
    appellant declined to do so.

(2)

The trial judges ruling

[27]

In
    his reasons, the trial judge found, at paras. 56-57, that the evidence of the
    court security officers was reliable and credible, and clearly supported an
    inference that the appellants discharge of his counsel and his request for an
    adjournment were motivated by an intent to delay and obstruct the trial
    process.

[28]

The
    trial judge noted, at para. 58, that the effect of the requested adjournment
    might well be a mistrial:

It could reasonably be anticipated that a number of jurors
    would not be willing to accept a five-month hiatus in the trial and, in
    addition, Mr. Phung could decide to retain counsel other than Mr. Derstine to
    apply for a mistrial based on a hiatus of that length. Such an application
    could certainly be expected from Mr. Tran, given that he applied for a mistrial
    based on seven-week hiatus.

[29]

The
    trial judge dismissed the argument that the appellants inquiries of other
    counsel before May 16, 2006 showed that the appellants motive in dismissing
    counsel was not improper. The trial judge concluded, at para. 59, that the
    chronology of the matter suggested otherwise. The trial judge characterized
    the appellant, at para. 69, as attempting to create an escape route in case
    the evidentiary ruling was not in his favour. He noted the suspicious turn of
    events:  it was only during the week that his decision regarding the
    admissibility of Ms. Les evidence was under reserve that the appellants
    family started looking for new counsel; the appellant spoke with Ms. Shemesh
    about the time that he delivered his ruling;  the appellant applied for a
    mistrial immediately after the admissibility ruling; soon after the mistrial
    application was dismissed, the appellant made his statements to the court
    security officers; and the next morning the appellant dismissed his counsel.

[30]

The
    trial judge also observed, at para. 66, that if the appellant retained a
    different lawyer, come October, that lawyer would not be bound by Mr.
    Derstines position that mid-trial rulings would apply.

[31]

At
    para. 70, the trial judge described the conduct of the appellant as patent
    manipulation.

(3)

Analysis

[32]

In
    our view, the trial judge did not err in the exercise of his discretion to deny
    the adjournment.

[33]

The
    exercise of his discretion to deny the adjournment application was rooted in
    his finding that the appellant, in discharging counsel and seeking an
    adjournment to retain new counsel, was attempting to manipulate the process and
    delay the proceeding. In our view, that considered and pivotal finding is
    unassailable.

[34]

Nor
    are we persuaded by the appellants argument that the trial judge erred in
    principle when he eventually, and then only gently, pressed the appellant for
    an explanation as to why he was dismissing counsel. The appellant submits that
    when seeking an adjournment an accused has no obligation to explain why he has
    dismissed counsel and that the trial judge improperly impinged upon
    solicitor-client privilege. Viewed in context, the trial judge was attempting
    to give the appellant the opportunity to rebut the clear inference that the
    appellants discharge of his counsel and his request for an adjournment were
    motivated by an intent to delay and obstruct the trial process, and to explore
    the possibility of a continued solicitor-client relationship as an alternative
    to the appellant representing himself.  There was nothing improper about this.

The second question: did the appellant receive a fair trial?

[35]

We
    also reject the appellants argument that the appellant did not receive a fair
    trial as a result of proceeding without counsel.

[36]

With
    the consent of the appellant, Mr. Derstine and his colleague Mr. Reid were
    appointed as
amicus
to assist the court in fulfilling its duty to
    ensure that the appellant received a fair trial.

[37]

The
    trial judge permitted
amicus
a wide scope, including permitting them

to cross-examine witnesses at a
voir dire
. A
micus
provided a great deal of help as the trial proceeded. At no point did the trial
    judge refuse to allow
amicus
to assist the appellant in the conduct of
    any facet of the trial.

[38]

The
    trial judge observed that the appellant had been able to cross-examine
    effectively before the jury with the assistance of
amicus
. The trial
    judge instructed the jury that the appellants decision to represent himself,
    with the assistance of
amicus
, was not relevant in its deliberations.

[39]

The
    appellants counsel does not point to anything in the trial record, for example
    the appellants closing address to the jury or a ruling by the trial judge,
    which in his view was deficient or would have been dealt with differently had the
    appellant been represented by counsel. The appellant has failed to demonstrate
    how his trial was unfair or appeared to be unfair because he represented
    himself.

issue #2:  did
    the trial judge err in refusing to put to the jury the appellants claim that
    the co-accused killed the victim in retaliation for an attack on the
    co-accuseds brother?

[40]

As
    outlined above, the appellant advanced two positions at trial.  First, he
    argued that he was not present at the shooting and had nothing to do with it.
    Second, the appellant contended that the fatal shots were fired by the person
    who was outside of the vehicle and that on the Crowns evidence, that person
    was the co-accused Cong Tran.  The trial judge put both positions to the jury
    and summarized the evidence in support of those positions.

[41]

Counsel
    on appeal submits that the trial judge wrongly told the jury that there was no
    evidence that Cong Tran shot the victim in retaliation for an earlier assault
    on Cong Trans brother.  Counsel submits that the connection between the
    homicide and the earlier assault could be inferred from the evidence and could
    potentially provide powerful evidence to support the appellants position that
    Cong Tran shot and killed the victim.

[42]

Counsel
    characterized this submission as one based on the failure to leave a defence
    that on the evidence had an air of reality.  We think the claim is properly
    framed a little differently.  The defence contention that Cong Tran, the person
    outside of the vehicle, fired the gun was clearly available on the totality of
    the evidence.  The appellant was entitled to have any evidence or inferences
    from the evidence capable of supporting that position put to the jury.
    Evidence Cong Tran had a motive to kill the victim  the attack on his brother
     could support the appellants position that Cong Tran was the shooter.

[43]

The
    appellant was not, however, entitled to have speculative claims with no basis
    in the evidence marshalled by the trial judge in support of the defence
    position that Cong Tran was the shooter.  We agree with the trial judges
    conclusion that there was no evidence connecting the shooting to the earlier
    assault on Cong Trans brother.  Specifically, there was no evidence connecting
    the deceased to the earlier assault or more importantly suggesting Cong Tran
    believed that the deceased was in any way connected to the attack on his
    brother.  In his evidence, Cong Tran specifically denied any such connection.
    While the jury was, of course, entitled to reject that evidence as untrue,
    rejection of Cong Trans denial of any connection between the homicide and his
    brothers assault could not become positive evidence that a connection
    existed.

[44]

The
    trial judges instruction was correct on the record before him and necessary to
    ensure that the jury would not engage in speculation invited by the defence
    questioning of Cong Tran.

issue #3:  was
    there evidence capable  of supporting a conviction on the charge of first
    degree murder?

[45]

The
    Crown submitted at trial that the murder was planned and deliberate.  The
    appellant and the co-accused unsuccessfully moved for a directed verdict on the
    charge of first degree murder at the end of the Crowns case.  The co-accused
    then testified and in the course of doing so identified the appellant as the
    killer.

[46]

In
    the course of his detailed instructions, the trial judge left with the jury
    several pieces of evidence which he told them could be considered by them in
    determining whether the murder, if they found there to be murder, was planned
    and deliberate.

[47]

Counsel
    for the appellant argues that the evidence left with the jury could not
    reasonably support the inference of planning and deliberation.  He addresses
    each piece of evidence left with the jury and suggests inferences other than an
    inference of planning and deliberation.  For example, counsel submits that some
    of the evidence supports an inference that the appellant and the co-accused had
    planned to rob the victim, but does not support the inference that they had
    planned to kill the victim.  Crown counsel responds in kind explaining why each
    and every piece of evidence does potentially support the inference of planning
    and deliberation.

[48]

We
    do not propose to review every piece of evidence and the inferences available
    from them.  We are satisfied that the evidence left with the jury could,
    considered as a whole, reasonably support an inference of planning and
    deliberation.  Stripped to its essentials, the evidence could support a finding
    that the murder was the product of a scheme devised by the appellant to lure
    the victim to an isolated place, shoot him in cold blood and steal his drugs.
    While there were no doubt other inferences potentially available from the
    evidence, the inference of planning and deliberation was reasonably available
    on the evidence.  The trial judge properly left planning and deliberation with
    the jury.  This ground of appeal cannot succeed.

V.

DISPOSITION

[49]

The
    appeal is accordingly dismissed.

Released: October 29, 2012 (D.D.)

Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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.
    Rainford, 2012 ONCA 691

DATE: 20121012

DOCKET: C52424

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Luke Rainford

Appellant

Bradley Pearson, for the appellant

Michael Medeiros, for the respondent

Heard:  October 11, 2012

On appeal from the conviction entered by Justice Lack of
    the Superior Court of Justice dated April 13, 2010 and the sentence imposed on
    June 30, 2010.

APPEAL BOOK ENDORSEMENT

[1]

In our view, there was ample evidence on which a reasonable trier of
    fact could come to the conclusions that the trial judge did.  We are not
    persuaded that the trial judge misapprehended any of the evidence.

[2]

In our view, the sentence was fit and within the appropriate range.  We
    note the appellant was in a position of trust.  The two child victims were in a
    licenced daycare in his home.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rand, 2012
    ONCA 731

DATE: 20121030

DOCKET: C53113

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Rand

Appellant

Travis Rand, acting in person

Emily Morton, as duty counsel

Andreea Baiasu, for the respondent

Heard: August 16, 2012

On appeal from the conviction entered on September 13,
    2010 and the sentence imposed on November 23, 2010 by Justice Richard G. Byers
    of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

With the assistance of duty counsel, the appellant appeals from his
    conviction and sentence for sexual assault and breach of probation. The
    appellant and his co-accused, Daniel See, were tried by Byers J. without a
    jury. The appellant was sentenced to four years imprisonment for the sexual
    assault and 30 days concurrent for the breach of probation. For the following
    reasons, I would dismiss the appeal.

THE CONVICTION APPEAL

[2]

The principal issue raised by duty counsel is the sufficiency of the
    trial judges reasons and, in particular, whether he adequately dealt with a
    gap in the complainants memory shortly before the sexual assault.

[3]

At the time of the events leading to the sexual assault, the appellant
    was 27 years of age. His companion, Mr. See, was 20 years of age. The
    complainant was 17 years of age. She had never met the appellant and Mr. See
    before. The sexual assaults occurred at Zwicks Park in Belleville the evening
    of June 21, 2008. There was an open-air concert with several performers, most
    notably, the Tragically Hip. Before attending the park, the complainant drank a
    considerable amount of alcohol: at least three bottles of beer, some shots,
    some mixed drinks such as Margaritas and some Rockstars, a cooler with vodka.
    She was intoxicated by the time she and her friends left for the park around
    7:00 p.m. At the park, she had several large gulps of liquor from a mickey she
    and her friends had smuggled into the park, before it was confiscated by
    security personnel.

[4]

Once at the park, the complainant socialized with her friends and
    others, and at some point she met the appellant and Mr. See. Despite the fact
    that she had never met these men, she began dancing and flirting with the
    appellant. The flirting included a brief period of consensual kissing. During
    this period, the complainant lost contact with her friends. By this time, the
    concert had begun, there were many more people present and the complainant felt
    quite confused. She believed from her last conversation with her friends that they
    had gone to the washrooms and so she headed towards them. At this point, the
    complainants recollection of events became blotchy. She did not think she
    made it to the washrooms. Her next memory is lying on the ground in the bushes
    with her pants down and the appellant lying on top of her, penetrating her
    vaginally. She felt that she had no control over her body and felt very weak.
    She wanted to get up but she could not. She was in and out of consciousness
    throughout. She told the appellant No. No. No. You dont have a condom. No.
    She remembered the appellant reassuring her that it was okay. She kept
    repeating the same things. The appellant stopped the vaginal intercourse and
    engaged in oral sex. She felt dizzy and kept trying to move. At some point, she
    was able to roll over but the appellant then penetrated her anally.

[5]

The appellant finally stopped and left the area. At this point, Mr. See
    came into the bush and penetrated the complainant vaginally. The complainant
    also said no to him.

[6]

The complainants evidence was unclear as to the gaps in her memory. She
    did not know how long the gap in her memory was. She heard the Tragically Hip
    playing both when she headed over to the bathrooms and when she came to in the
    bushes with the appellant on top of her. She therefore agreed with counsel for
    Mr. See that the gap in her memory may have been fairly brief. Independent
    evidence established that the Tragically Hip started playing at 8:45. This
    would have been about three hours after the complainant last had any alcohol to
    drink.

[7]

In cross-examination, the complainant conceded that because of her lack
    of memory, there may have been some conversation between her and the appellant
    in which she consented to sex. But, she added: And irregardless if there was
    consent beforehand, when I was conscious and able to speak for myself, I was
    not consensual [
sic
].

[8]

After the assaults, the complainant woke up alone in the bush. She was
    able to get dressed and leave the bush. She had no money and was unable to
    locate her friends. She eventually walked to her friends home with the
    assistance of a man, whom she had never met. The complainant told her friend
    what happened. When the complainant woke up in the morning, she was bleeding
    from her anus and there was blood on the sheets.  That morning, the complainant
    went to the hospital where she was examined and samples were taken. The
    complainant had suffered relatively minor injuries to her back and right arm
    and an abrasion between her vagina and her anus. When seen at the hospital, she
    was visibly upset and crying.

[9]

The appellant and Mr. See were eventually identified through DNA
    identification. When they were arrested, both men admittedly lied to the
    police. The appellant lied about who he was with and he claimed that he and
    another man were accosted by the complainant who grabbed their penises. She
    then dragged the appellant into the bush and had sex with him.

[10]

The
    appellant did not testify. Mr. See did testify. He confirmed that he and the
    appellant met the complainant and engaged in flirting with her. At some point,
    he needed to go to the bathroom and so the three of them went there. After they
    all used the toilet, the appellant and the complainant went into the bush. The
    complainant then came out and took him into the bush where she performed oral
    sex on him and they engaged in consensual intercourse. They left the bush, but
    Mr. See realized that he had dropped his cell phone. He went back to get it,
    and when he returned the complainant was gone.

[11]

The
    trial judge accepted the evidence of the complainant and rejected Mr. Sees
    evidence. The trial judge gave extensive reasons for doing so. The ground of
    appeal raised by duty counsel concerns the trial judges failure to explicitly
    deal with what counsel at trial characterized as the complainants convenient
    memory lapse. Defence counsel put the issue this way to the trial judge:

And I suggest to you its convenient that theres this period
    of time when she says she wakes up unconscious, she cant defend herself and
    her friends comment the next morning, how could this happen unless she was
    drugged, unless she was date raped drugged because [the complainants] a
    strong, assertive girl.

And:

[T]heres a complete loss of intellectual and physical function
    on her part and a sudden regaining of it during the commission of the criminal
    offence. If an accused went into the witness stand and said to you in the
    immediate prelude to committing this crime, I for unexplained reasons lost
    memory or lost function and I suddenly regained it in the midst of committing
    this criminal offence, Your Honour would say I dont believe you.  Theres no
    explanation for that.  Thats not true. Thats too convenient. Such a
    fundamental part of the case of the sequence of events that night is that the
    person claims without any legitimate explanation, a complete absence of memory
    or a complete absence of the function we knew she had immediately before and
    after and Your Honour can look at that and say not only do I not believe that
    part of the evidence, I find that causes me to doubt her whole evidence.

[12]

In
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, Charron
    J. summarized the trial judges duty to give reasons in a case such as this as
    follows:

As I explained at the outset of the analysis, the inquiry into
    the sufficiency of the reasons should be directed at whether the reasons
    respond to the case's live issues. In this case, the complainant's truthfulness
    was very much a live issue -- the trial judge recognized it as so during the
voir
    dire
to determine whether the complainant was competent to testify. At
    trial, two of the witnesses testified that the complainant could be untruthful
    and manipulative. While it was open to the trial judge to conclude that he was
    convinced beyond a reasonable doubt of the guilt of the accused, it was not
    open to him to do so without explaining how he reconciled the complainant's
    inconsistent testimony, particularly in light of the accused's own evidence
    denying her allegations.

[13]

At
    para. 32 of the same decision, Charron J. explained that where the reasons are
    deficient, the reviewing court must examine the evidence and determine whether
    the reasons for conviction are, in fact, patent on the record. However, it is
    not open to an appellate court to engage in a reassessment of aspects of the
    case not resolved by the trial judge. Thus, [w]here the trial judge's
    reasoning is not apparent from the reasons or the record, as in the instant
    case, the appeal court ought not to substitute its own analysis for that of the
    trial judge.

[14]

In
    this case, the trial judge did not expressly deal with the effect of the
    complainants memory gap on her credibility. The question then is whether the
    reasons for conviction are nevertheless patent on the record. In my view, they
    are. The trial judge dealt both with the complainants credibility, in the
    sense of honesty, and with her reliability. He saw the issues as whether the
    complainant was honest in her testimony that she did not consent and whether
    her recounting of events was reliable.

[15]

In
    my view, the reasons respond to the real issues in the case. The trial judge
    fully understood that consent was an issue, particularly given the
    complainants earlier conduct with the appellant and Mr. See. The memory gap
    was not a material issue in the case because the trial judge accepted that
    irrespective of what had occurred earlier, the complainant clearly and
    unequivocally expressed her lack of consent in the course of the sexual acts
    with the appellant. In other words, even if the complainant did consent to some
    kind of sexual acts initially, she withdrew that consent. The trial judges
    reasons make that clear.  In the course of his reasons, the trial judge
    referred to a portion of the complainants testimony in these terms:

[41] There was a moment towards the end of Mr. Hurleys
    cross-examination I shall not soon forget. Mr. Hurley was pressing hard and the
    following took place.

Question: And it was then between the vaginal sex and the anal
    sex that Mr. Rand performed oral sex on you?

Answer: Yes.

Question: And throughout this period of time youre not doing
    anything to resist him, or are you?

Answer: I couldnt do much to resist him. I was pushing at
    this point. Like I had said before, I was saying no.

Question: Were you trying to push him off?

Answer: Yes.

Question: You were actually physically doing that?

Answer: Trying to. It was...  I cant explain what it was
    like. It was... Does it matter where? Like, is...

Question: Did you move your legs or your body in any way?

Answer: I didnt want to be there. I said no. I said no over
    and over and over again. I said, You dont have a condom on. Get off me. I
    said no. Thats what should matter. What the fuck? Excuse my language, Your
    Honour. These stupid things are not what matters. What matters is that I said
    no.

[42] Reading from that evidence does not do justice to that
    electrifying exchange in this court room. You could hear a pin drop when it was
    over. It was obvious to me and everyone else that [the complainant] was
    spontaneously angry and outraged.

[16]

Later
    in his reasons, the trial judge described what happened the night of the
    assault in these terms:

[69] This was fast, grubby sex with two strangers in the dark,
    in the bush, in the middle of a rock concert. And I believe [the complainant]
    when she says that she did not consent to it.

[70] Her memory of that night is not perfect. She got some
    things wrong. But she got most of it right. Two strange men had sex with her.
    At that point she couldnt know that DNA would prove that two men did have sex
    with her. And she said one used a condom and one did not. That turned out to be
    true. One of those men had a Mohawk. That was true too. Her description of the
    two men was basically accurate.

[71] Her chances of ever finding these men were remote. Notwithstanding
    she told the police about it. Why bother? Her story to the police was
    essentially consistent throughout. She says she did flirt with the men, but she
    also said she did not consent to the sex, and I believe her.

[72] I do not believe them  either of them. In my view they
    would say anything to escape their predicament.

[73] Is her evidence reliable. Defence argues that the
    flirting, the making out is consistent with someone consenting to sex later on;
    that her decision to stay with the men is consistent with her consenting to sex
    later on; that her failure to tell the first available policeman about the
    assault somehow taints her disclosure hours later; that she couldnt have been
    that drunk given how little alcohol she had had at the concert.

[74] She was foolish to make out with a strange man that
    evening. But she was young, and she was still intoxicated. Maybe she ought to
    have reported the assault to the first available policeman, but she just wanted
    to get home, and she did report it then. Her demeanour at home and at the
    hospital was consistent with the notion that something bad had happened to her.

[75] I accept Kristens evidence about how [the complainant]
    was crying when she disclosed, and later her complaints about pain and about
    the blood. The marks found on her body tend to support her evidence.

[76] And finally I was struck by her evidence about the two men
    consoling her during sex. In all my years as a judge hearing hundreds of these
    sorts of cases, Ive never heard that. She didnt make that up. It really
    happened. And I cant see having to console someone having consensual sex. You
    console someone who doesnt like whats happening to them.

[77] So in my view her evidence is reliable. That means I am
    satisfied beyond a reasonable doubt that [the complainant] did not consent to
    sex that night with Mr. Rand, and she did not consent to sex with Mr. See.

[17]

The
    complainants memory loss, which was probably brief, did not undermine her
    credibility or the reliability of her evidence on the crucial issue of whether
    she consented to the sexual acts with these two strangers. Whether or not she
    voluntarily went into the bushes with the appellant and whether or not some
    kind of consensual activity may have occurred during the memory gap period, the
    complainant did not consent to the continuing sexual acts with the appellant.
    For the purpose of determining whether the
actus reus
of the offence
    was committed, the relevant period of time was when the sexual touching was
    occurring, not what occurred earlier in the evening or even earlier in the
    sexual touching in the bushes. The Supreme Court of Canada reiterated this
    point in the recent decision in
R. v. J.A.
, 2011 SCC 28, [2011] 2
    S.C.R. 440, at para. 46:

The only relevant period of time for the complainant's consent
    is while the touching is occurring:
Ewanchuk
, at para. 26. The
    complainant's views towards the touching before or after are not directly
    relevant. An offence has not occurred if the complainant consents at the time
    but later changes her mind (absent grounds for vitiating consent). Conversely,
    the
actus reus
has been committed if the complainant was not
    consenting in her mind while the touching took place, even if she expressed her
    consent before or after the fact.

[18]

Accordingly,
    I would dismiss the appeal from conviction.

THE SENTENCE APPEAL

[19]

The
    appellant also appeals from his sentence of four years imprisonment. I would
    not interfere with the sentence. The appellant took advantage of a vulnerable
    intoxicated young woman. He committed acts of unprotected anal and vaginal sex.
    He has a prior criminal record dating back to 2004 that includes offences of
    dishonesty and also convictions for crimes of violence, including assault,
    assault with a weapon, and assault with intent to resist arrest. Two of the
    assault convictions, in 2004 and 2007, involved incidents of domestic violence.
    The sentence imposed by the trial judge in this case was well within the
    appropriate range. The trial judges reasons disclose no errors in principle.

[20]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appeal.

Released: M.R. October 30, 2012

M.
    Rosenberg J.A.

I
    agree R.A. Blair J.A.

I
    agree M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Rathe, 2012
    ONCA 669

DATE: 20121003

DOCKET: C52160

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles N. Rathe

Appellant

Frank Miller, for the appellant

Avene Derwa, for the respondent

Heard and released orally: September 26, 2012

On appeal from the decision of the Summary Conviction
    Appeal Court dated April 28, 2010 by Justice R. Pomerance of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on February 15,
    2008 by Justice M. Rawlins of the Ontario Court of Justice.

ENDORSEMENT

[1]

The applicant seeks leave to appeal under s. 839(1)(a) of the
Criminal
    Code
from an order of the judge of the Superior Court
of Justice sitting as a summary conviction appeal court
    dismissing his appeal from his conviction of assault.  The only argument on
    appeal is that the summary conviction appeal court judge erred in dismissing
    the applicants appeal from the trial judges dismissal of his application for
    an order staying the proceedings based on unreasonable delay.

[2]

Appeals to this court from decisions of
    the Superior Court of Justice sitting as a summary conviction appeal court are
    limited to grounds of appeal that involves question of law alone and require
    leave to appeal.  In
R. v. R.(R.)
(
2008), 234 C.C.C. (3d) 463, this
    court held that leave to appeal should be granted sparingly.  Two factors cover
    the determination of whether leave to appeal should be granted on a question of
    law alone: the significance of the legal issues raised to the general
    administration of criminal justice and the merits of the proposed grounds of
    appeal:
R.(R.)
at para. 37.

[3]

In our view, the proposed grounds of
    appeal, if questions of law alone rather than questions of mixed fact and law,
    do not have significance to the administration of justice beyond the
    circumstances of this case.  Counsel for the appellant candidly conceded this
    point.

[4]

Leave to appeal may also be granted,
    however, even where the issues raised are not of general importance to the
    administration of justice provided the merits of the appeal appear very strong.
    It is especially so if the conviction in issue is serious and the applicant is
    facing a significant deprivation of his or her liberty:
R.(R.)
at para. 37.

[5]

Even if we were to agree with the applicant that there may be an error with respect to the issue of waiver, the summary conviction appeal judge provided an alternative basis to characterize the period of time in question.  In the light of that alternative characterization, we do not agree that this is a strong appeal.  Further, it cannot be said that in being sentenced to a conditional discharge plus 12 months of probation, the applicant faces any significant deprivation of his liberty.

[6]

In our view, this case does not meet
    the high threshold established in
R.(R.)
where another appeal is warranted.  Therefore leave to
    appeal is refused.

Robert
    J. Sharpe J.A.

Janet Simmons J.A.

Gloria J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rocha, 2012 ONCA 707

DATE: 20121024

DOCKET: C53745

OConnor A.C.J.O., Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Rocha

Respondent

Nicholas E. Devlin and Aaron Shachter, for the appellant

P. Andras Schreck, for the respondent

Heard: June 22, 2012

On appeal from the acquittal entered on May 13, 2011 by Justice Beth A. Allen of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

The Crown appeals from the
    respondents acquittal on drug and weapons charges following a ruling by Allen
    J. ordering the exclusion of evidence seized following execution of search
    warrants at the respondents home. Search warrants were executed on October 1,
    2008 at a restaurant operated by the respondent and his brother and at the
    residence where the respondent lived with his brother and his parents, the
    owners of the restaurant. The search of the restaurant led to the seizure of a
    small amount of cocaine. The search at the residence resulted in a much more
    substantial seizure of prohibited weapons, cash, cocaine, Oxycodone pills and a
    shotgun.

[2]

The trial judge held that
    informations to obtain the warrants (the ITOs) were insufficient and that
    accordingly the respondents right to protection against unreasonable search
    and seizure as guaranteed by s. 8 of the
Canadian Charter of Rights and
    Freedoms
was violated. She held that admission of the evidence found at
    the residence would bring the administration of justice into disrepute and
    accordingly the evidence must be excluded pursuant to s. 24(2) of the
Charter.
She would have admitted the evidence in relation to the search of the
    restaurant. Following the trial judges ruling, the Crown elected to offer no
    further evidence and the respondent was acquitted of all charges. The Crown
    appeals only against the acquittal on the charges in relation to the search of
    the respondents residence.

[3]

For the following reasons, I
    would dismiss the appeal. I agree with the trial judge that the ITOs relating
    to the seizures at the respondents residence were insufficient. While I do not
    agree that the ITO for the warrant to search the restaurant was insufficient,
    in my view, the trial judges error in relation to the restaurant ITO did not
    taint her ruling under s. 24(2) in relation to the contraband seized from the
    residence. It is my view that the trial judge erred in her application of the
    s. 24(2) test, especially in the manner in which she characterized the police
    conduct in obtaining the warrants. However, when the test from
R. v. Grant
,
    2009 S.C.C. 32 is properly applied, the evidence should nevertheless be excluded.

THE FACTS

The Informations to Obtain

[4]

The ITOs were identical. The
    grounds set out in the ITOs turned almost exclusively on information provided
    by a confidential informer. The ITOs were edited to protect the identity of the
    informer. The record before the trial judge consisted of the preliminary
    inquiry evidence of the affiant of the ITOs, Detective Constable Zamparo, and
    the sub-affiant, Detective Constable Naidoo. It was D.C. Naidoo who dealt with
    the informer. Detective Reids preliminary inquiry evidence was filed and he
    testified before the trial judge. Detective Reid did some surveillance of the
    house, which was referred to in the ITOs. The Crown elected not to disclose the
    entire unredacted ITOs to the trial judge and thus the respondent was not
    provided with a judicial summary of the redacted material. Accordingly, the
    sufficiency of the ITOs stood or fell on the redacted versions. The information
    provided by the informer, as disclosed in the redacted ITOs, may be summarized
    as follows:

·

Two brothers, the respondent and his brother Robin, were selling
    cocaine from their restaurant, the Os Dragoes Sports Bar and Grill located at 703
    College Street on the 2nd floor.

·

The cocaine was normally kept behind the bar, in the kitchen and
    inside the restaurants walls.

·

The cocaine was packaged in small, white plastic baggies.

·

The customers would use the cocaine in the restaurant washroom.

·

The informer had observed 10 to 15 drug transactions at the
    restaurant.

·

The informer had seen the respondents brother obtain the drug
    from near the espresso machine in the service area.

·

The informer had also seen the respondents brother go to the
    kitchen area to obtain some packages.

·

Most of the cocaine was kept at the brothers home at 64 Crawford
    Street; the informer described the outside of the house.

·

The informer also described the two vehicles that the brothers
    used to transport the drugs.

[5]

The informations to obtain
    also disclosed the independent investigation conducted by the police, the
    results of which may be summarized as follows:

·

The brothers were connected to the restaurant and the vehicles.

·

The exterior of the house was consistent with the description
    provided by the informer.

·

On the afternoon of October 1, 2008, police officers saw the
    respondents brother leave the restaurant, go to the house, leave the house
    with an unknown male, return to the restaurant and then briefly leave the
    restaurant to retrieve something from his vehicle.

·

The respondents mother had been charged with possession of
    cocaine for the purpose of trafficking in 2002.

·

The respondents brother was charged with simple possession of
    cocaine in February 2007.

·

A Crime Stoppers tip was received in 2006 to the effect that the
    respondent and his brother were involved in drug dealing and were selling drugs
    out of their restaurant.

[6]

There is some odd wording in
    the ITOs. For example, they describe the informer has having no convictions for
    perjury or public mischief. The ITOs do not set out whether the informer
    otherwise has a criminal record.  They indicate that the informer has
    previously provided information to the police that led to persons being
    arrested/charged and illegal narcotics and stolen property seized. The ITOs
    do not clearly indicate that any persons was convicted as a result of the
    information provided by the informer.

THE TRIAL JUDGES REASONS

[7]

The trial judge dealt first
    with the sufficiency of the information to obtain the warrant to search the
    house. She pointed out that this ITO contained no information about the
    informers source of knowledge of the existence of drugs in the house. She
    considered the evidence relating to the house to be scant; there was no
    information as to when the informant received the information, no information
    placing a time on when the drugs were being stored at the house. In short,
    there was nothing in the information that compels the belief that the drugs
    would be located at the house at the time of the search.

[8]

The ITO did not indicate
    whether the informer had a criminal record for crimes of dishonesty besides
    perjury and public mischief and did not state the informers motivation for
    providing the information to the police.

[9]

Finally, the investigation
    in relation to the house was not sufficient to corroborate the information
    provided by the informant. In particular, it was simply speculation that the
    observations of the respondents brother going and coming from the restaurant
    and house on October 1 had anything to do with drug trafficking.

[10]

Accordingly,
    the ITO in relation to the house was insufficient to satisfy the test set out
    in
R. v. Debot,
[1989] 2 S.C.R. 1140, and the search was unreasonable
    and a violation of s. 8. As to s. 24(2), the trial judge conducted the
    inquiries as mandated by
R. v. Grant
.  As to the first inquiry, the
    seriousness of the
Charter
-infringing conduct, she held, in part, as
    follows:

The police did an intensive search throughout the rooms of the
    house based on very little information. I have no problem finding that the
    police search of the accuseds house was a serious violation of his s. 8
Charter
rights and that there is a need for the court to dissociate itself from that
    conduct.  The conduct cannot be said to be a technical or inadvertent breach as
    it was deliberate in the sense it was planned in advance and obtained through
    the warrant authorization process.

[11]

The
    trial judge referred to the scant information in the ITO and that there were no
    extenuating circumstances since there was no urgency. The police should have
    taken time to conduct a better investigation. The circumstances point away
    from good faith error on the part of the police officers who committed the
    breach.

[12]

As
    to the second inquiry, the impact on the accuseds
Charter
-protected
    interests, the trial judge found that the breach was at the profoundly
    intrusive end of the spectrum because it involved a search of a private
    residence where there is a high expectation of privacy. A violation of the
    accuseds right to be secure in his home would have a serious impact on his
    protected right to privacy which in this case was compounded by the fact the
    police had little information going in [to the house].

[13]

As
    to the third inquiry, the societal interest in a trial on the merits, the trial
    judge found that the contraband and weapons were highly reliable evidence and
    critical evidence that could be conclusive proof of the accuseds knowledge and
    possession. The trial judge also considered the seriousness of the offences but
    noted that the seriousness of the offence was not to be given disproportionate
    weight. In relation to the items found at the house, she held as follows:

Looking at the police conduct in relation to the search of the
    house, I conclude the police misconduct was sufficiently serious and deliberate
    as to outweigh the seriousness of the offence. The invasion of a persons
    private abode based on a negligible amount of information in circumstances that
    were not urgent must certainly be frowned upon and discouraged. The balance in
    relation to the drugs and other items seized at the house against the
    seriousness of the violation I find weighs in favour of exclusion. If the court
    appeared to condone
Charter
violations that represent such a significant
    invasion of protected rights, rather than enhancing the long-term repute of the
    administration of justice, would undermine it.

[14]

The
    trial judge reached a somewhat different conclusion in relation to the seizure
    at the restaurant. The deficiencies in the ITO in relation to the restaurant
    were not as serious. Thus, more information was provided about drug dealing at
    the restaurant so that the informers tip in relation to the restaurant might
    appear to be somewhat more compelling than for the house. Nevertheless, the
    trial judge concluded that there was not much in the ITO that would compel a
    reasonable expectation that drugs or drug transactions involving the accused
    would be found at the restaurant at the time the warrant was executed. The
    same problems identified in relation to the house about the credibility of the
    informer and the independent investigation existed in relation to the
    restaurant. The trial judge concluded in relation to the restaurant that the
    failure of the police to establish the reliability of the information from the
    informer and to corroborate it through their investigation, blurred the line
    between trustworthy information and information that could be based in rumour
    or gossip. Accordingly, the respondents s. 8 rights in relation to the
    restaurant were also violated.

[15]

However,
    the trial judge held that the evidence found at the restaurant should not be
    excluded. As to the first inquiry, the violation was substantially less
    intrusive and on the lower end of the spectrum of seriousness. While the search
    of the restaurant was no doubt deliberate and planned and hence not the result
    of technical error or inadvertence ... [it] was also conducted based on a
    greater level of information than is true of the house. There was therefore not
    as great a need for the court to dissociate itself from the violation. As to
    the second inquiry, the search of the restaurant was not profoundly intrusive
    as it was a public place with a limited expectation of privacy. As to the third
    inquiry, the trial judge noted the reliability of the evidence, its importance
    to the Crowns case and the seriousness of the offence. Balancing the three
    inquiries, especially that the violation was on the less serious end of the
    spectrum as was the impact on the respondents privacy, the evidence found at
    the restaurant should not be excluded.

ANALYSIS

The Sufficiency of the ITOs

[16]

The
    test for sufficiency of an ITO that is based on an informers tip is, as the
    trial judge recognized, dependent upon whether the tip is compelling, whether
    the informer is credible and whether the tip has been confirmed by independent
    police investigation:
R. v. Debot
, at 1168. Weaknesses in one area may
    be compensated by strengths in the other two areas.

[17]

The
    trial judge found weaknesses in all three areas in respect of the ITO for the
    restaurant and the one for the house. Thus, considering the totality of
    circumstances, both ITOs were insufficient to support granting search warrants.
    In my view, the trial judge erred in her assessment of the sufficiency of the
    ITO supporting the warrant to search the restaurant.

[18]

Contrary
    to the finding of the trial judge, the information predicting that drugs would
    be found in the restaurant was compelling. The informer had personally observed
    10 to 15 drug transactions in the restaurant. The informer described in detail
    where the drugs were stored, how they were packaged, how the drugs were
    obtained by the respondents brother for clients of the restaurant and where
    the clients used the drugs. The information did not take the form of bald
    conclusory statements or mere rumour or gossip:
R. v. Debot,
at
    1168-69.

[19]

I
    agree with the trial judge, that the information concerning the credibility of
    the informer was weak. I say this primarily because of the awkward wording of
    the ITO. The critical paragraph in the ITO is this:

The SOURCE in this matter is a registered human asset of the
    Toronto Police Service for over two years. The information they provided is of
    such detail, timing and geographic specifics that it goes beyond mere chance
    and/or coincidence. In some cases the information has been corroborated, by
    Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has
    no convictions for Perjury or Public Mischief. The SOURCE previously provided
    information to police that has led to persons arrested/charged in addition to
    the seizure of illegal narcotics and stolen property. The SOURCE acknowledges
    that they will face criminal charges for making false reports to police
    regarding information on past, present and future investigations. The SOURCE
    understands that there [sic] assistance is only eyes and ears and they are
    not to participate in any criminal activity whatsoever as a Confidential
    Source.

[20]

It
    seems that the affiant is attempting to convey the idea that information from
    the informer has led to the finding of contraband but this assertion is
    confused with the assertion that the informers information has merely led to
    the laying of charges. Also the phrase, In some cases the information has been
    corroborated, by Handlers or Investigators forming Reasonable Grounds to
    Believe is confusing. The fact that police officers have formed reasonable
    grounds is not the kind of corroboration required to confirm the reliability of
    a confidential informer. That said, there is some indication of credibility of
    the informer.

[21]

I
    disagree with the trial judge about the independent confirmation of the
    information in the informers tip. The error in the trial judges approach is
    found in this statement:

As I noted earlier, Officer Naidoo conceded at the preliminary
    inquiry that he had not corroborated the information provided in paragraph 19
    about the layout of the restaurant or about drug use and drug transactions at
    the restaurant. Nor is there evidence any other officer corroborated the
    information about drug transactions at the restaurant, although the ITO states
    the restaurant was under surveillance before the warrant was executed.

[22]

The
    police will rarely be able to confirm the tip to the extent of having observed commission
    of the offence and that level of confirmation is not required. In a very short
    judgment in
R. v. Caissey
, [2008] 3 S.C.R. 451. the Supreme Court of
    Canada said the following:

The dissenting judge advanced the view that only corroboration
    of some criminal particular of the offence offered the necessary assurance for
    the issuance of the warrant. This is the question of law that brings the appeal
    before us. On this issue, we agree with the test adopted by the majority.

[23]

In
    the Alberta Court of Appeal, the majority described the independent
    confirmation as: the police independently confirmed a number of details,
    including the identity of the respondent and his residential address, that no
    children lived in the home, the name of his roommate, and the description of
    his vehicle:
R. v. Caissey
, 2007 ABCA 380 at para. 22. In that case,
    the informer claimed to have seen a large quantity of drugs in the appellants
    apartment. Thus, the details confirmed by the police tended to show that the
    informer had actually been in the apartment even though they did not on their
    own show that the appellant was in possession of drugs.

[24]

In
    this case, the police had confirmed the address and layout of the interior of
    the restaurant and the involvement of the respondent and his brother in the
    restaurant. While not as compelling as the independent confirmation in
Caissey
,
    this information could not be disregarded.

[25]

Considering
    the totality of circumstances and particularly the compelling nature of the
    informers tip, the ITO concerning the restaurant was sufficient.

[26]

I
    do, however, agree with the trial judge that the ITO was not sufficient to
    justify granting a warrant to search the respondents home. Unlike the
    restaurant, the information in the informers tip was not compelling. It was a
    mere conclusory statement that drugs were stored at the house. While it was
    apparent that the informer had personally observed drug transactions in the
    restaurant, the source of the informers information about the house is
    completely unknown. Given the weaknesses in the credibility of the informer and
    independent confirmation, the totality of circumstances could not support
    granting the warrant.

Application of s. 24(2) of the
Charter

The seriousness of the Charter-infringing conduct

[27]

The
    key finding by the trial judge on the first
Grant
inquiry was that the
    breach was not technical or inadvertent as it was deliberate in the sense it
    was planned in advance and obtained through the warrant authorization process.
    In my view, this was not the correct approach. The touchstone of analysis of
    this first inquiry is whether admission of the evidence would bring the
    administration of justice into disrepute by sending a message that the courts
    effectively condone state deviation from the rule of law by failing to
    dissociate themselves from the fruits of the unlawful conduct:
R. v. Grant,
at para. 72.  Police conduct that shows a wilful or reckless disregard of
Charter
rights will inevitably have a negative effect on the public confidence in the
    rule of law, and risk bringing the administration of justice into disrepute:
R.
    v. Grant
, at para. 74.

[28]

Applying
    for and obtaining a search warrant from an independent judicial officer is the
    antithesis of wilful disregard of
Charter
rights. The search warrant
    process is an important means of preventing unjustified searches before they
    happen. Unless, the applicant for exclusion of evidence can show that the
    warrant was obtained through use of false or deliberately misleading
    information, or the drafting of the ITO in some way subverted the warrant
    process, the obtaining of the warrant generally, as I explain below, tells in
    favour of admitting the evidence. In this case, the police submitted the fruits
    of their investigation to a justice of the peace who granted the warrants. I
    have held that the warrant was properly granted in relation to the restaurant.
    The warrant should not have been granted in relation to the house, but it must
    be remembered that an independent judicial officer did authorize the search.

[29]

I
    should not be taken as holding that whenever a search warrant has been granted,
    the first
Grant
inquiry favours admission of the evidence. But the
    approach is not, as held by the trial judge, to hold in favour of exclusion
    because obtaining a search warrant is a deliberate process. The approach rather
    should be to look at the ITO and consider first if it is misleading in any way.
    If so, the court should then consider where it lies on the continuum from the intentional
    use of false and misleading information at one end to mere inadvertence at the
    other end. Fish J. made this point in
R. v. Morelli
, [2010] 1 S.C.R.
    253, at paras. 99-103:

First, the
Charter
-infringing state conduct in this
    case was the search of the accused's home and the seizure of his personal computer,
    his wife's laptop computer, several videotapes, and other items. The search and
    seizure were unwarranted, but not warrantless: they were conducted pursuant to
    a search warrant by officers who believed they were acting under lawful
    authority.
The executing officers did not wilfully or even negligently
    breach the Charter. These considerations favour admission of the evidence. To
    that extent, the search and seizure cannot be characterized as particularly
    egregious.

The opposite is true on considering the ITO upon which the
    warrant was obtained. The officer who prepared the ITO was neither reasonably
    diligent nor mindful of his duty to make full and frank disclosure. At best,
    the ITO was improvidently and carelessly drafted.
Not only did the ITO
    fail to specify the correct offence (accessing rather than possession of child pornography); it
was also drafted in a misleading way
, resulting in
    the issuance of a warrant on insufficient grounds.
While the trial judge
    found no deliberate attempt to mislead, no attesting officer, acting
    reasonably, could have failed to appreciate that repeated references to
    "'Lolita Porn' on the screen" and to the deletion of "all the
    child porn off the computer" would cause most readers -- and, more
    particularly, the issuing justice -- to believe there was evidence that child
    pornography was actually viewed on-screen by the witness Hounjet.

Similarly, the officer should have known -- if he in fact did
    not -- that the immediate juxtaposition of these misleading statements and the
    incomplete description of the "web-cam pointing towards toys" would
    be unjustifiably inflammatory.

The repute of the administration of justice is jeopardized by
    judicial indifference to unacceptable police conduct. Police officers seeking
    search warrants are bound to act with diligence and integrity, taking care to
    discharge the special duties of candour and full disclosure that attach in
ex
    parte
proceedings. In discharging those duties responsibly,
they must
    guard against making statements that are likely to mislead the justice of the
    peace.
They must refrain from concealing or omitting relevant facts. And
they
    must take care not to otherwise exaggerate the information
upon which they
    rely to establish reasonable and probable grounds for issuance of a search
    warrant.

We are bound to accept the trial judge's finding that there was
    no deliberate misconduct on the part of the officer who swore the Information.
    The repute of the administration of justice would nonetheless be significantly
    eroded, particularly in the long term, if such unacceptable police conduct were
    permitted to form the basis for so intrusive an invasion of privacy as the
    search of our homes and the seizure and scrutiny of our personal computers.
    [Emphasis added.]

[30]

Given
    the trial judges erroneous approach to the seriousness of the violation
    inquiry, it falls to this court to properly apply the
Grant
inquiries,
    bearing in mind the trial judges findings of fact and those other aspects of
    her analysis that are not tainted by any legal errors. As to the trial judges
    error in finding that the ITO in relation to the restaurant was insufficient,
    she dealt with the admissibility of the evidence from the house and the
    restaurant separately. I am not convinced that the trial judges erroneous
    conclusion on the sufficiency of the restaurant ITO tainted her factual
    findings in relation to the house.

[31]

I
    begin then with correctly situating the police conduct in this case on the
    continuum as explained in
Morelli
and by Doherty J.A. in
R. v.
    Blake,

at paras. 24-5:

The trial judge found that the police acted in "good
    faith" in their attempt to acquire legal authorization for the search. I
    accept that finding. The police were clearly aware of the need to obtain a
    warrant and proceeded accordingly. They cannot be said to have acted
    negligently or in ignorance of any of the applicable
Charter
requirements. A finding of "good faith" obviously reduces the need
    for the court to disassociate itself from the state conduct that resulted in
    the
Charter
infringement, and supports the admissibility of the
    challenged evidence.

Not only do I agree with the trial judge's finding of good
    faith on the part of the investigators, I can see no possible criticism of the
    police conduct on this trial record. Throughout the process that culminated in
    the seizure of the evidence, they acted exactly as they were obligated to under
    the law. They were required to obtain a warrant before entering the residence.
    They did so. They were required to make full disclosure to the justice of the
    peace. There is no suggestion that they did not do so. The police, and later
    the Crown, were legally obligated to protect the identity of the confidential
    informants by removing all material from the information that could identify
    the informants before making that material available to the defence. They did
    that. Given the manner in which the s. 8 claim was litigated, the police acted
    not only in good faith, but as required by the law. The police conduct in this
    case does not fit anywhere on the misconduct continuum described in
Grant,
at para. 74.

[32]

Giving
    full weight to the fact that the police made use of the warrant procedure so
    that the conduct, as in
R. v. Morelli
, cannot be described as
    egregious, there are problems with the wording of the ITOs that are so
    significant as to situate the conduct here toward the serious end of the
    continuum.

[33]

First,
    is the failure to disclose the criminal record of the informer.  The entire
    record was not placed before the justice of the peace; rather there was the
    oddly worded statement that the informer did not have a record for perjury and
    public mischief.  This paragraph was drafted by D.C. Naidoo and was obviously
    intended to leave the impression of honesty on the part of the informer. But,
    perjury and public mischief are not the only types of offences that would
    fairly bear on the honesty and hence credibility of a confidential informer.
    The preliminary inquiry evidence of D.C. Naidoo shows that this was a
    deliberate decision. It was also a decision rooted in a systemic practice on
    the part of D.C. Naidoo, at least where he was the sub-affiant. As the
    respondent points out, D.C. Naidoo gave conflicting and inconsistent
    explanations for why the record was not placed before the justice of the peace.
    But, the officer made it clear that it was his practice not to disclose the
    informers full criminal record to the justice of the peace.

[34]

More
    troubling is the wording of paragraphs 19 and 20 of the ITOs:

At [redacted] Detective Constable NAIDOO advised me of the
    following:

a.

There are
    two males who are selling powder cocaine from their bar.

b.

The bar is
    located at 703 College Street on the 2nd floor.

c.

The bar
    (Os Dragoes Sports Bar and Grill) is located on the south-west corner of
    Montrose Ave. and College St. above the Pizza restaurant.

d.

The front
    door is the first door to the west of the Pizza restaurant and has a set of
    yellow stairs which lead directly to the bar.

e.

The back
    door of the bar is located at the top a fire  escape, which is located at the
    rear of the building.

f.

[redacted]

g.

Robin and Jason
    allow their customers to do lines of cocaine in the bathroom of the bar.

h.

Robin and
    Jason will also deliver drugs to their customers.

i.

Robin
    and Jason operate the following vehicles when delivering drugs to the
    customers: AERR990  a older dark coloured Mercedes, AZYH679  a silver Nissan
    and AVAR782  a grey truck/van.

j.

Robin
    and Jason live with there parents at 64 Crawford Street.

k.

The
    residence is located north of Queen Street and is on the west side of Crawford
    Street.

l.

The
    residence is surrounded by a blue metal fence.

m.

[redacted]

At [redacted] Detective Constable NAIDOO had already
    corroborated the information from the confidential source.

[35]

These
    paragraphs are misleading. Perhaps they are a product of D.C. Zamparos
    inexperience. But the fact remains that they would leave the impression that
    D.C. Naidoo had independently confirmed the information from the informer.
    That was not the case, as pointed out by the trial judge in her reasons at
    paras. 43-5 and 58. I accept her findings on this aspect of the ITO. I agree
    with her that while the statement was not intentionally misleading such an
    unclear statement should [not] be put before a court with the responsibility of
    determining the reliability of the information when a clearer statement could have
    easily been drafted. This was a serious matter because, having the potential
    to mislead the justice of the peace, effectively deprives the judicial officer
    of the ability to independently assess the sufficiency of the ITO.

[36]

Third,
    as the trial judge pointed out, D.C. Zamparo never swore to the basis of his
    belief on reasonable and probable grounds that drugs would be found at the
    house; only that they would be found at the restaurant. No doubt this is a
    product of carelessness on the part of the officer and the unfortunate decision
    to use identical ITOs for the warrants for the restaurant and the house. But,
    this error is also symptomatic of the lack of care that is demonstrated by the
    wording of important parts of the ITOs.

[37]

In
    my view, the ITO in this case in relation to the house is of such a quality as
    to put this case towards the serious end of the continuum in considering the
    first
Grant
inquiry. It suffers from similar problems identified by
    Fish J. in
R. v. Morelli
.

The impact of the breach on Charter-protected interests of
    the accused

[38]

I
    agree with the trial judge that the impact of the breach on the
Charter-
protected
    interests of the respondent favoured exclusion of evidence. This was a serious
    intrusion into a place where there is a high expectation of privacy. See
R.
    v. Grant,
at para. 78.

Societys interest in adjudication of the case on its
    merits

[39]

In
    considering the third line of inquiry, the principal factor is the reliability
    of the evidence. As the majority said in
R. v. Grant,
at para. 81: exclusion
    of relevant and reliable evidence may undermine the truth-seeking function of
    the justice system and render the trial unfair from the public perspective,
    thus bringing the administration of justice into disrepute. The court will
    also consider the importance of the evidence:
R. v. Grant,
at para.
    83. The trial judge properly recognized that the importance of the evidence,
    especially as regards the contraband found at the house, favoured admission of
    the evidence.

[40]

It
    remains then to balance the three inquiries in accordance with the test laid
    down in
R. v. Grant
and
R. v. Harrison,
2009 S.C.C. 34. In
    particular see para. 36 of
Harrison
:

The balancing exercise mandated by s. 24(2) is a qualitative
    one, not capable of mathematical precision. It is not simply a question of
    whether the majority of the relevant factors favour exclusion in a particular
    case. The evidence on each line of inquiry must be weighed in the balance, to
    determine whether, having regard to all the circumstances, admission of the evidence
    would bring the administration of justice into disrepute. Dissociation of the
    justice system from police misconduct does not always trump the truth-seeking
    interests of the criminal justice system. Nor is the converse true. In all
    cases, it is the long-term repute of the administration of justice that must be
    assessed.

[41]

In
    my view, both the seriousness of the violation and impact on the
Charter
-protected
    interests favour exclusion. As to the latter, this was a serious intrusion into
    a domain that carries a very high expectation of privacy. As to the former, the
    apparent good faith of the police in resorting to the warrant process is
    undermined by the misleading and careless wording of the ITO.

[42]

In
R. v. Blake
, the court found that the evidence should be admitted,
    although because of the editing of the ITO there was not sufficient information
    to sustain the granting the warrant. In doing so, the court noted the following
    at para. 33:

Absent any claim of police misconduct or negligence in the
    obtaining of the initial search warrant, and absent any attempt to go behind
    the redacted information, it would be inappropriate to proceed on any basis
    other than that the police conducted themselves in accordance with the
    applicable legal rules. If there were a taint of impropriety, or even
    inattention to constitutional standards, to be found in the police conduct,
    that might well be enough to tip the scales in favour of exclusion, given the
    very deleterious effect on the accused's legitimate privacy interests. I can see
    none. The evidence is admissible under the approach to s. 24(2) set out in
Grant.

[43]

This
    case is different. There was at least negligence in the obtaining of the search
    warrant. Counsel for the respondent did attempt to go behind the redacted
    information by cross-examining both the affiant and sub-affiant. The Crown was
    unable to provide a summary of the unedited ITO that could serve as a judicial
    summary. While there was no impropriety or bad faith, there was a sufficient
    inattention to constitutional standards to tip the scales in favour of
    exclusion given the deleterious effect on the respondents privacy interests.
    Notwithstanding the significant public interest in a trial on the merits, I
    would uphold the trial judges decision to exclude the evidence, despite her
    error in approach to the first
Grant
inquiry.

DISPOSITION

[44]

Accordingly,
    I would dismiss the appeal.

M.
    Rosenberg J.A.
Juriansz J.A. (concurring):
[45]

I
    agree with the reasons of Rosenberg J.A. deciding that the warrant to search
    the respondents restaurant was properly issued, but there was insufficient
    information in the Information to Obtain (ITO) to support the warrant to
    search the respondent's home. The defect in the ITO is that it fails to
    indicate the basis for the confidential informants allegation that drugs would
    be found at the respondents home.

[46]

However,
    I wish to expand on an observation Rosenberg J.A. made about a feature of this
    case. He points out early in his reasons that the version of the ITO considered
    by the trial judge, and in the record before this court, was redacted by the
    Crown to protect the identity of the confidential informant. Rosenberg J.A.
    points out that the Crown did not propose that a judicial summary of the
    redacted information be provided to the defence.

[47]

There
    are several redactions in the ITO. One redaction is located where one would
    expect to see set out the basis of the informant's allegation that the drugs
    sold at the respondents restaurant were kept in his home.

[48]

This
    case is not unique. It is not at all uncommon that the question of whether the
    warrant should have been issued is decided on the basis of a redacted ITO.
    Deciding whether the warrant should have been issued on the basis of a redacted
    ITO has several disadvantages.

[49]

Reviewing
    a judicial decision without the complete record that was before the decision
    maker seems inimical to the appellate process. That the court reviews an
    issuing justice's decision to authorize a search without looking at all the
    information before the justice may make the process of review appear somewhat
    artificial to the ordinary citizen. The ordinary citizen might think there are
    two standards for assessing a search warrant: one for deciding whether a search
    warrant should be issued, and another for deciding, after the fact, whether the
    search warrant should have been issued.

[50]

The
    process unfairly reflects on the work of the issuing justice and the police.
    The police may include sufficient credible and reliable information in the ITO
    and the issuing justice may authorize the warrant on the basis of that
    information, only to have the reviewing court decide, on the basis of an
    incomplete ITO, the warrant should not have been issued. Without the redactions
    for context, the reviewing court may even find some of the statements made by
    the drafting police officer in the ITO to be groundless or even misleading.

[51]

There
    is reason to believe that, in many cases, the information excised from the ITO
    may well be the most pertinent.  An informant who can be easily identified by
    the accused is more likely to be able to provide detailed and reliable
    information about the accuseds activities.

[52]

Finally,
    there is a great waste of resources. The work of the police in gathering
    information to support a search, drafting a compelling ITO and then executing
    the search is wasted when the warrant is set aside on the basis of a redacted
    ITO. In some cases, a preliminary inquiry or even a jury trial may have taken
    place before the warrant is set aside on the basis of a redacted ITO.

[53]

On
    the other hand, allowing a reviewing court to make a decision to uphold a
    warrant on the basis of information not made available to the accused in a
    criminal proceeding is an anathema to the principles governing the criminal
    justice process. Hence this is a dilemma.

[54]

Code
    J., in thoughtful reasons in
R. v. Learning
,

2010 ONSC 3816, 258
    C.C.C. (3d) 68, at para. 107, remarked that it is unfortunate that the
    procedure in step six in
Garofoli
, [1990] 2 S.C.R. 1421,

is
    the only legal mechanism available to resolve the dilemma created by the
    competing demands of the Crowns obligation to provide reasonable and probable
    grounds for a search and its obligation to protect the identity of confidential
    informants. Yet, he observed, the mechanism is simply not being tried or tested.

[55]

The
    procedure based on step six in
Garofoli
permits the Crown to apply
    to have the reviewing judge consider as much of the excised material as is
    necessary to support the search warrant, which the trial judge may do upon
    providing the accused with a judicial summary of the excised material to
    attempt to ensure the accused is sufficiently aware of the nature of the
    excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461.

[56]

It
    is difficult to understand why the Crown does not request the court to employ
    step six of
Garofoli
more frequently. There may be many cases in
    which the Crown considers the redacted information to be inconsequential, but
    there must be cases in which the information is significant. In such cases, there
can be no advantage to the Crown in defending
    the issuance of a warrant on less than all the information that supports it. It
    may be that the Crown believes that any summary of the redacted information
    whatsoever will risk betraying the confidential informant's identity. Judges
    too may be
reluctant to prepare judicial summaries of the excised
    material lest they unwittingly betray the identity of the informant.

[57]

Perhaps
    because of such concerns, the Supreme Court of Canada crafted the last element
    of the step six procedure. Where the Crown is dissatisfied with the judicial
    summary the judge proposes to provide to the accused, it can decline to rely on
    the excised information to support the search warrant.

[58]

The
    Crown in this case did not request the trial judge to consider the excised
    information. And this court has found there was insufficient information in the
    ITO to support the issuance of the warrant to search the respondent's home,
    without considering all the information upon which the warrant was issued in
    the first place.

[59]

I
    have added these concurring reasons to highlight the dilemma raised in such
    cases and to encourage attention being paid to it in future cases. I appreciate
    there may be practical questions about the procedure to be followed in applying
    step 6 of
Garofoli
and about the content of the judicial summary.
    However, only resort to the procedure will lead to the development of
    jurisprudence to resolve those questions.

Released: DOC October 24, 2012               R. G.
    Juriansz J.A.

I
    agree D. OConnor A.C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Saboon, 2012 ONCA
    729

DATE: 20121026

DOCKET: C52872

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Musab Saboon

Appellant

Craig Parry, for the appellant

Eric Siebenmorgen, for the respondent

Heard and released orally: October 22, 2012

On appeal from the conviction entered on August 20, 2010
    by Justice Robert T. Weseloh of the Ontario of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant makes several arguments in this appeal. First, he says
    that the trial judge misapprehended evidence in finding that the appellant
    admitted he was part of a group surrounding the victims.

[2]

We do not agree. The particular finding referred to is no more than that
    the appellant admitted he was present and part of the group, some of whom
    committed the robbery.  That accurately reflects the appellants admission.

[3]

Then the appellant says the trial judge erred in disregarding evidence
    that the appellant was separate from those robbing the victims.

[4]

Again we disagree. There was ample evidence on which the trial judge based
    his conclusion that the appellant was part of the circle of intimidation. It was
    not necessary in this relatively simple trial for the trial judge to explicitly
    reject evidence to the contrary.

[5]

Finally, the appellant says the trial judge misapprehended the evidence
    of Perez concerning whether the appellants hat had earflaps. While that may be
    so, it was an insignificant mistake. The victim McGuinty said his robber wore a
    distinctive hat with earflaps, and the appellant admitting wearing just such a
    hat. The Perez evidence was not essential to the trial judges reasoning or to
    his conclusion.

[6]

In summary, there was ample evidence, including importantly, the
    appellants own admissions to conclude that there is nothing unsafe about the
    appellants conviction. The appeal must be dismissed.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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. Taylor, 2012
    ONCA 665

DATE: 20121002

DOCKET: C55392

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Taylor

Appellant

Robert McGowan, for the appellant

Philippe Cowle, for the respondent

Heard: October 1, 2012

On appeal from the conviction on December 9, 2010 and the
    sentence imposed on July 7, 2011 by Justice D.M. Nicholas of the Ontario Court
    of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We do not agree that the trial judge misapprehended or failed to
    appreciate material aspects of the evidence. The trial judge specifically
    addressed each of the point raised by the appellant on appeal, specifically,
    the location of the truck, the phone call from the apartment, the MSN message
    and the squishy penis and explained why she was persuaded that the evidence
    of the complainant was reliable and trustworthy.

[2]

While there were discrepancies in the evidence to be explained, at the
    end of the day, the evidence of the complaint was supported in significant
    respects.

[3]

The trial judge explained why she rejects KCs evidence regarding the
    location of the truck. The mothers evidence regarding the phone call and the
    MSN message significantly corroborated that of the complainant. Given the age and
    experience of the complainant at the time, her description of the penis does
    not undermine her story.

[4]

We see no error that would justify appellate intervention. Appeal
    dismissed.