COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poobalasingham, 2020 ONCA
    308

DATE: 20200522

DOCKET: C66068; C66193; C66261 & C66866

Watt, Huscroft and Trotter JJ.A.

DOCKET:
    C66068

BETWEEN

Her Majesty the Queen

Respondent

and

Bryan Poobalasingham

Appellant

DOCKET:
    C66193

AND BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Poobalasingham

Appellant

DOCKET:
    C66261

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Wilkins

Appellant

DOCKET:
    C66866

AND BETWEEN

Her Majesty the Queen

Respondent

and

Teshawndra Thomas

Appellant

Edmond Brown, for the appellants Bryan
    Poobalasingham, Ronald Wilkins and Teshawndra Thomas

Jill R. Presser and Jeff Marshman, for
    the appellant Brandon Poobalasingham

Leslie Paine and Nicolas
Demontigny, for the respondent provincial Crown (C66068 & C66193)

Bradley Reitz, for the respondent federal
    Crown (C66261 & C66866)

Heard: November 7, 2019

On appeal from the convictions entered
    on March 30, 2018 by Justice Fletcher Dawson (C66068 & C66193); December 7,
    2017 by Justice Steve A. Coroza  (C66261); and January 22, 2019  by Justice Jennifer
    Woollcombe (C66866), of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

In a jurisdiction in which trial proceedings are
    conducted in English and over 95% of the total population asserts knowledge of
    English, the English-speaking appellants obtained an order under s. 530(1) of
    the
Criminal Code
,

directing that their trials be
    held before a judge and ju
ry who spoke English.

[2]

At trial, the appellants invoked the orders
    under s. 530 and applied to challenge each prospective juror for cause under s.
    638(1)(f) of the
Criminal Code
on the ground that the juror did not
    speak English.

[3]

The judge who decided the challenge for cause
    issue in each case dismissed the application. In the result, no challenge for
    cause under s. 638(1)(f) was permitted at the appellants trials.

[4]

The appellants contend that the judges were
    wrong to deny their applications. They advance no other grounds of appeal.

[5]

As I will explain, I have concluded that the
    judges were right in dismissing the applications under s. 630(1)(f). It follows
    that I would dismiss the appeals and affirm the convictions entered at trial.

The Background Facts

[6]

These appeals originate in three separate
    prosecutions tried by three different judges of the Superior Court of Justice
    sitting with juries in Brampton. A brief description of the procedural history
    of each prosecution will provide the context necessary to resolve the narrow
    legal issue common to each.

The Orders under Section 530

[7]

As noted, each of the appellants obtained an
    order under s. 530(1) of the
Criminal Code.
This section authorizes
    judges and justices of the peace to make orders about the official language in
    which trial proceedings will be conducted. Some orders are mandatory, others
    discretionary. Relevant factors include the timing of the application and the
    language capacity of the applicant.

[8]

In these cases, all the appellants self-identify
    as speaking and understanding one of Canadas official languages  English. In
    these circumstances, provided their application was timely, an order directing
    that their trial take place before a judge and jury who spoke the same official
    language  English  was mandatory under s. 530(1)(c), as it then appeared.
[1]

[9]

An accused who fails to apply for a mandatory
    order under s. 530(1) may apply to the trial court for an order to the same
    effect:
Criminal Code
, s. 530(4). However, this authority is
    discretionary and requires the accused to persuade the trial court that it is
    in the best interests of justice that the order be made.

R. v. Poobalasingham

[10]

Bryan and Brandon Poobalasingham were charged
    jointly with a third person with counts of aggravated assault and attempted
    murder. All elected trial by judge and jury and requested a preliminary
    inquiry.

[11]

At the preliminary inquiry, Bryan Poobalasingham
    sought and obtained an order under s. 530(1)(c) of the
Criminal Code
that his trial be held before a judge and jury who spoke the same official
    language of Canada as he   English.

[12]

Counsel who represented Bryan Poobalasingham,
    who is one of his counsel on appeal, did not suggest to the preliminary inquiry
    judge that the order was necessary to ensure that the judge and jury at the
    appellants trial spoke English, the same official language as the appellant. Rather,
    counsel told the judge he always brings an application under s. 530(1) for
    the same order.

[13]

Neither Brandon Poobalasingham nor the third
    co-accused applied for the same order or joined in Bryans application.

R. v. Wilkins

[14]

The appellant Wilkins was
charged with two counts of offences under the
Controlled Drugs and Substances Act
,
S.C. 1996, c. 19
.
He elected trial
    before a  judge and jury and requested a preliminary inquiry. Represented by
    the same counsel who represented Bryan Poobalasingham, both at trial and in
    this court, Wilkins sought and obtained an order under s. 530(1)(c) of the
Criminal
    Code
that he be tried by a judge and jury who spoke the same official
    language as he  English.

R. v. Thomas

[15]

The appellant Thomas was charged with a single
    count of importing cocaine. She elected trial by judge and jury and requested a
    preliminary inquiry. As with the other appellants, counsel sought and obtained
    an order that Ms. Thomas be tried by a judge and jury who spoke the same
    official language as she  English.

The Applications to Challenge for Cause under Section 638(1)(f)

[16]

At trial, each appellant sought to challenge
    each prospective juror for cause under s. 638(1)(f). That section reads:

638(1) A prosecutor or an accused is entitled
    to any number of challenges on the ground that

(f) a juror does not speak the official
    language of Canada that is the language of the accused or the official language
    of Canada in which the accused can best give testimony or both official
    languages of Canada, where the accused is required by reason of an order under section
    530 to be tried before a judge and jury who speak the official language of Canada
    that is the language of the accused or the official language of Canada in which
    the accused can best give testimony or who speak both official languages of Canada,
    as the case may be.

[17]

The question counsel proposed to ask each
    prospective juror was in these or similar terms:

As His/Her Honour will tell you, it is your
    duty and responsibility as a juror to listen carefully to the spoken testimony
    of the witnesses, to examine the evidence in the exhibits filed, to attend
    diligently to the arguments of counsel and the instructions by the Judge on the
    law, and ultimately decide whether the Crown has proven the charges against the
    accused beyond a reasonable doubt. I am asking you, as a potential juror, to
    make a self-assessment. Do you understand written and spoken English well
    enough to take on the responsibility and obligations of a juror in this trial?

R. v. Poobalasingham

[18]

In support of his application to challenge
    prospective jurors for cause under s. 638(1)(f), counsel for Bryan Poobalasingham
    filed a notice of application and a factum, but no extrinsic materials. No
    evidence was adduced on the application, nor was the judge asked to take
    judicial notice of any census data, or any other facts, to support the
    application.

[19]

Counsel for Brandon Poobalasingham joined in the
    motion in the sense of supporting it, but made no submissions. Counsel for
    the third co-accused said she was not part of the motion and would not be
    making submissions on it.

R. v. Wilkins

[20]

The application under s. 638(1)(f) was heard by
    a case management judge. In support of the application, counsel filed a copy of
    a sample Questionnaire about Qualifications for Jury Service. This document
    is Form 1 under Regulation 680 made under the
Juries Act
,

R.S.O. 1990, c. J.3
.
    Prospective jurors are asked to indicate their competency in reading, writing,
    and speaking English. They are also informed that completion of the form is
    required by Ontario law.

[21]

The appellant also filed a copy of a Census
    Profile for Peel Region in 2011. The document contains data about residents of
    the Region, including not only Canadian citizens, but also landed immigrants
    and non-permanent residents. Also included is data about residents mother
    tongue, their knowledge of Canadas official languages and the language most
    often spoken at home.

R. v. Thomas

[22]

Thomas application to challenge prospective
    jurors under s. 638(1)(f) was also heard by a case management judge. No
    evidentiary record accompanied the application. Counsel simply sought to pose
    the single proposed question as of right because of the order under s. 530(1).

The Rulings

[23]

In each case, the application under s. 638(1)(f)
    was dismissed. Common to each decision was a conclusion that the mere existence
    of an order under s. 530(1), without more, did not entitle an accused to
    challenge each prospective juror for cause, as of right, under s. 638(1)(f) to
    determine the jurors language facility. As under s. 638(1)(b), there must be
    an air of reality to a proposed challenge for cause. The materials filed by the
    appellants, if any, did not satisfy that standard.

The Grounds Of Appeal

[24]

The appellants advance a single ground of
    appeal. They say the judges who decided the applications erred in failing to
    permit them, as beneficiaries of orders under s. 530(1) of the
Criminal
    Code
, to challenge prospective jurors for cause under s. 638(1)(f).

The Arguments On Appeal

[25]

The principal arguments advanced are common
    among the appellants on the one hand and between the respondents on the other. The
    appellants Brandon Poobalasingham and Thomas make additional submissions based
    on their individual circumstances.

The Appellants

[26]

The appellants primary position is that, having
    obtained an order under s. 530(1) requiring that their trials be held before a
    judge and jury who speak English, they are entitled as of right to challenge
    each prospective juror for cause under s. 638(1)(f).

[27]

In accordance with the modern approach to
    statutory interpretation, a single condition must be met to engage the
    challenge for cause for which s. 638(1)(f) provides. That pre-condition, which
    is met here, is an order establishing the language of trial under s. 530. With
    an order under s. 530, s. 638(1)(f), a mechanism to ensure compliance with
    orders under s. 530, is engaged.

[28]

The appellants also point to the broader legal
    context.

[29]

Section 530 is a language rights provision.
    Language rights are fundamental. They must not be approached in an adversarial
    way since they serve the interests of justice and Canadian unity. The
    fundamental nature of the right of an accused to be tried by a trier of fact
    who understands the language of an accuseds choice is underscored by s. 16 of
    the
Official Languages
Act
, R.S.C., 1985, c.
    31 (4th Supp.)
. This right is
    substantive, not procedural. The choi
ce of official
    language for trial is the choice of the person charged made for their own
    reasons. To exercise this fundamental right of trial in the language of choice,
    an accused must be able to challenge prospective jurors for cause based solely
    on a s. 530 order.

[30]

The appellants reject any suggestion of a
    threshold standard as required where the challenge for cause is based on lack
    of impartiality under s. 638(1)(b). The threshold under s. 638(1)(b) is
    necessary because of the presumption of impartiality which adheres to each
    prospective juror. The air of reality standard is put in place to counter this
    presumption. But there is no presumption of linguistic competence, nor any
    presumption that a linguistically limited person could set aside their
    limitations and fulfil their duty as a juror.

[31]

The appellants say that by making a s. 530 order
    a precondition to a challenge for cause under s. 638(1)(f), Parliament ensured
    that the challenge was available to those with a demonstrated interest in
    guaranteeing a trial in their official language of choice. As the only
    precondition to invoking s. 638(1)(f), Parliament ensured that when an accused
    exercised their language rights, they would not be found to satisfy the
    challenge on the basis of some case-specific justification. By requiring a
    case-specific justification, the judge in these cases erred by going beyond the
    plain, unambiguous and rights-protective language enacted by Parliament.

[32]

In the alternative, and in the event that we
    conclude that a factual basis is required for an accused to gain an entrée into
    s. 638(1)(f), the appellants say the facts found by the case management judge
    in
Wilkins
satisfy the threshold. Indeed, the mere fact that
    prospective jurors identified language concerns on pre-vetting establishes
    this. Self-selection and pre-vetting are not sufficient nor do any other
    reasons mentioned by the judges at first instance warrant their conclusions.

[33]

The appellant Thomas adds that s. 16 of the
Charter
recognizes the equality of Canadas two official languages. In doing so, it
    does not assign a lesser place for those whose official language is that of a
    majority of the population. Whether the official language at issue is that of a
    majority or that of a minority is of no moment. Jurors must be linguistically
    competent and impartial. Just as impartiality must be tested on a challenge for
    cause, so must linguistic competence.

[34]

The appellant Brandon Poobalasingham
    acknowledges that he did not bring a formal application to challenge for cause
    at trial. Nonetheless, he submits that he should be permitted to advance his
    case in common with the other appellants. He supported the application at first
    instance, albeit his counsel made no submissions and filed no material. He was
    a party to the jury selection process and was bound by any ruling made. The
    trial judge considered him an applicant and invited submissions from his
    counsel.

[35]

The appellants stand as one on the issue of
    remedy. A ruling denying them a challenge for cause to which they were entitled
    meant that the jury, and thus the court, was not properly constituted for their
    trial. This error resulted in a loss of jurisdiction that is beyond the reach
    of any curative provision in the
Criminal Code
. The only remedy is a
    new trial.

The Respondents

[36]

The respondents deny any errors in the rulings below.
    They say there is not, as the appellants contend, any automatic right to
    challenge prospective jurors for cause under s. 638(1)(f) simply by virtue of
    having obtained an order under s. 530 of the
Criminal Code
. Instead
    and consistent with other
Criminal Code
provisions  a party who
    invokes s. 638(1)(f) must establish a realistic potential for the challenge.
    Finally, this realistic potential must be related to specific language rights
    concerns in the individual case.

[37]

This conclusion, the respondents argue, finds
    support in a purposive interpretation of s. 638(1)(f). The provision was
    enacted in 1978 along with Part XVII of the
Code
, which includes s. 530
    and imposes constitutional bilingualism on the criminal courts across Canada. As
    a complement to s. 530, s. 638(1)(f) must be interpreted in accordance with the
    purpose of that section. And the purpose of s. 530, we know, is to provide
    equal access to the courts to accused speaking one of the official languages of
    Canada in order to assist official language
minorities
in preserving
    their cultural identity.

[38]

Trial fairness and language rights, the
    respondents continue, are fundamentally distinct although they are sometimes
    complementary concepts. The right to make full answer and defence is linked
    with linguistic abilities only in the sense that an accused must be able to
    understand and be understood at their trial. For their part, language rights
    are not meant to enforce minimum conditions under which a trial will be
    considered fair, or even to ensure the greatest efficiency of the defence. To
    be sure, language rights may enhance the quality of legal proceedings, but their
    source lies elsewhere.

[39]

Issues related to language competency as a
    function of trial fairness, the respondents say, are properly addressed and
    more than adequately satisfied by other
Criminal Code
provisions, as
    well as the
Juries Act
. Section 2 of the
Juries Act
requires
    that prospective jurors be Canadian citizens. For an adult who is not otherwise
    a Canadian citizen to become one, the person must have an adequate knowledge of
    either English or French and pass a test in one of the official languages. A
    recent amendment requires that every juror be able to speak, read and
    understand English or French: see
Protecting What
    Matters Most Act (Budget Measures)
, S.O. 2019, c.
    7, Sched. 35, s. 2;

Juries Act
, s. 2(d).

[40]

In addition, under the
Juries Act
eligible
    jurors are identified through a questionnaire which asks recipients to certify
    whether they speak, read and understand English and/or French. The instructions
    make it clear that to answer Yes, the prospective juror must be fluent in the
    relevant language and understand it well enough to follow a trial where all
    evidence and legal instructions will be given in that language, without the
    assistance of an interpreter.

[41]

The respondents also point out that s. 632 of
    the
Criminal Code
permits the judge presiding over jury selection to vet
    the panel of prospective jurors in advance of the formal jury selection
    process. Among the issues routinely explored is the need for fluency in the
    language of trial. In each of the appellants cases, this issue was canvassed
    and some prospective jurors were excused because of inadequate language
    competency.

[42]

In addition, the respondents say, if during the
    trial a particular jurors language fluency comes up short, the presiding judge
    may discharge that juror to ensure trial fairness under s. 644(1) of the
Criminal
    Code
.

[43]

The respondents submit that the appellants
    reliance on the
Official Languages Act
is misplaced. To be sure, that
    Act imposes certain duties on federal courts: see
Official Languages Act
,
    ss. 3(2), 16. But the court where the appellants were tried  the Superior
    Court of Justice  is a creature of provincial statute: see
Courts of
    Justice Act
,
R.S.O. 1990, c. C.43,
ss. 11-17. The
Official Languages Act
does not apply.

[44]

The respondents accept that an order under s.
    530 is a necessary condition for a challenge under s. 638(1)(f). But it is not
    a sufficient one. Like any other challenge for cause available under the
    provision, s. 638(1)(f) requires that there be an air of reality or realistic
    potential for the challenge. An evidentiary foundation  whether satisfied by
    extrinsic evidence, judicial notice, admission or otherwise  must be
    established
.

[45]

And this evidentiary
    foundation, the respondents continue, must be related to the purpose of
s. 638(1)(f)
: ensuring equal access to justice in
    either official language. If this were not
so, Parliament
    would not have insisted on a s. 530 order as a condition precedent. And provided
    the request is timely, the s. 530 order is for the asking. Therefore, absent a
    requirement that the evidentiary foundation be linked to the purpose of s. 638(1)(f),
    every accused would enjoy an automatic right to challenge every juror under
    that provision  even absent any concern related to language rights. No such
    purpose can be teased out of either s. 530, s. 638(1)(f) or their combination.

[46]

The evidence adduced by the appellant Wilkins
    falls well short of the air of reality threshold. The Census Profile is dated
    and includes among the population, constituents who would not be eligible for
    jury service because they are under 18 or are not Canadian citizens. The data
    about a residents mother tongue is of little value because it lacks any
    direct correlation to competency in either official language. If anything, the Census
    Profile undermines Wilkins claims: fully 96% of respondents asserted knowledge
    of English.

[47]

In connection with the Poobalasingham
    appellants, the respondents say Bryans materials failed to recite any fair
    trial or (moreover) language rights concerns. As for Brandon, the interests of
    justice do not favour granting him leave. He failed to advance the issue at trial.
    And on appeal, he has failed to point to any negative impact on his rights
    occasioned by the decision below.

The Governing Principles

[48]

Although the issue ultimately requiring decision
    is a narrow one involving the interpretation of s. 638(1)(f) of the
Criminal
    Code
, that decision is informed by several other incidents of the jury
    selection process. For, as we know, context plays an important role in
    construing the written words of a statute:
Bell ExpressVu Limited
    Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 27.

[49]

As is well known, the jury selection process involves
    two stages.

[50]

The first  the pre-trial stage  involves the
    organization of a panel or array of prospective jurors who are made available at
    court sittings as a pool from which trial juries are selected. This pool is
    randomly assembled from the broader community. Governed by provincial
    legislation (in Ontario, the
Juries Act
), this stage includes the
    qualification of jurors; completion of the jury list; summoning of panel
    members; selection of jurors from the jury lists; and conditions for being
    excused from jury duty:
R. v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863,
    at paras. 19-20;
Criminal Code
, s. 626(1).

[51]

The second  the in-court stage  involves the
    selection of a trial jury from the panel. During this process prospective jurors
    may be excluded in two ways. Some may be excused by the presiding judge in a
    preliminary way. Others may be excluded as a result of a successful challenge
    by the parties:
Find
, at paras. 19, 21-24. This stage of the process
    is governed by federal legislation: see
Criminal Code
,
ss. 626-644.

The Pre-Trial Stage of Jury Selection

[52]

To be eligible for jury service in Ontario under
    s. 2 of the
Juries Act
, a person must reside in Ontario and be a Canadian
    citizen at least 18 years old. A recent amendment adds a further requirement
    for eligibility  the juror must be able to speak, read and understand English
    or French: see
Juries Act
, s. 2(d).

[53]

Any person who is not a Canadian citizen by
    birth and who is between 18 and 54 years old (inclusive) can only become a Canadian
    citizen if they have an adequate knowledge of one of Canadas official
    languages and can demonstrate in that language an adequate knowledge of Canada
    and the privileges of citizenship:
Citizenship Act
, R.S.C. 1985, c.
    C-29, ss. 5(1)(d) and (e).

[54]

The process of compiling a jury list begins with
    the Director of Assessment mailing out a statutorily prescribed form  a jury
    questionnaire  to residents of a county, district, regional municipality or
    city, based on information obtained from the most recent enumeration of
    inhabitants under the
Assessment Act
,
R.S.O. 1990, c. A.31
.

[55]

The purpose of the jury questionnaire  to
    determine eligibility for jury service  is stated on the first page. At the
    time of the appellants trials, the form also provided the following warning:

If you fail to return this form without reasonable
    excuse within five (5) days of receiving it, or
knowingly give false
    information on the form, you are committing an offence. If convicted of this
    offence, you may be fined up to $5000.00 or imprisoned up to six (6) months, or
    both
. [Emphasis added.]

[56]

Question nine of the questionnaire addresses
    language competency. Part A asks whether the respondent speaks, reads and
    understands English. Part B asks the same question with respect to French. The
    instruction for this question, which the respondent is directed to review,
    states:

If you are chosen to sit on a jury, the trial
    will be conducted in either English or French. If indicating a Yes response
    to English or French, you must be fluent in either language and understand it
    well enough to follow a trial where all evidence and legal instructions will be
    given in English or French, without the assistance of an interpreter.

[57]

When the questionnaires are returned and opened,
    a jury roll is compiled from those who are eligible to serve as jurors. The
    jury roll is divided into three parts based on declared language competency:
    (i) English, (ii) French, or (iii) both English and French.

The In-Court Pre-Selection Procedure

[58]

When a jury panel arrives in the courtroom to
    begin the formal process of jury selection, s. 632 of the
Criminal Code
authorizes
    the presiding judge to vet the panel members to determine whether any of them
    should be excused from jury service. Typically, this involves the presiding
    judge advising members of the jury panel about some requirements for jury
    service. This includes an understanding of the language of trial. A
    representative question on this issue is in these terms:

Our law also requires that each juror be able
    to understand the language that will be used in the trial. In this case,
    witnesses will testify and others involved in the case will speak in English.
    Documents written in English may be made exhibits.

If you have any difficulty understanding English
    as it is spoken or written, please raise your hand and come to the front of the
    courtroom.

See
Find
,
    at paras. 22-23;
R. v. Sherratt
, [1991] 1 S.C.R. 509, at pp. 527-28, 534-35.
    See also
R. v.
Jimenez
    Leon
, 2012 ONSC 575
, 283 C.C.C. (3d) 243, at
paras. 11-12, affd 2014 ONCA 813;
R. v. Smith and Mathers
, 2019 ONSC 4816, at para. 11
; and
R. v. E.
, 2019 ONSC 3813, at
    para. 23.

[59]

When a prospective juror expresses concern, the presiding
    judge will make inquiries of the juror to determine their language facility. In
    some cases, the judge may be aware of the nature of the evidence to be adduced and
    can formulate their questions accordingly. At the end of the inquiry, the judge
    will determine whether the prospective juror has the language facility
    necessary to understand the evidence, submissions and jury instructions at
    trial: see e.g.
Jimenez Leon
, at para. 18.

Section 530 of the
Criminal Code

[60]

Section 530 of the
Criminal Code
is not
    part of Part XX,
Jury Trials
, but rather is contained in Part XVII,
Language
    of Accused
. At the time of the relevant proceedings in this case, s.
    530(1)(c) of the
Criminal Code
provided:

530(1) On application by an accused whose language
    is one of the official languages of Canada, made not later than

(c) the time when the accused is ordered to
    stand trial, if the accused

(i) is charged
    with an offence listed in section 469,

(ii) has elected
    to be tried by a court composed of a judge or a judge and jury, or

(iii) is deemed
    to have elected to be tried by a court composed of a judge and jury,

a justice of the peace, provincial court judge
    or judge of the Nunavut Court of Justice shall grant an order directing that
    the accused be tried before a justice of the peace, provincial court judge,
    judge or judge and jury, as the case may be, who speak the official language of
    Canada that is the language of the accused or, if the circumstances warrant, who
    speak both official languages of Canada.

[61]

While the wording has changed since the
    appellants trials, the substance of this provision remains the same: see
Criminal
    Code
, s. 530(1). And this language permits of no doubt: an order directing
    that the trial of an accused be before a judge and jury who speak the official
    language of the accused is mandatory, provided the accuseds application is
    timely.

[62]

Section 530 is a language rights provision. Section
    530(1) creates an absolute right of an accused to equal access to designated
    courts in the official language which that accused considers their own. It
    requires that criminal courts be institutionally bilingual in order to provide
    for the equal use of the two official languages of Canada. The right is
    substantive, not procedural. It brooks no interference:
R. v. Beaulac
,
    [1999] 1 S.C.R. 768, at paras. 23, 25 and 28.

[63]

The purpose of s. 530 is to provide equal access
    to the courts to accused who speak one of Canadas official languages in order
    to assist official language minorities in
preserving
their cultural identity:
Beaulac
, at para. 34;
R. v.
Munkonda
, 2015 ONCA 309, 126 O.R. (3d) 646, at
para. 49.

[64]

Language rights are a particular kind of right.
    They are distinct from the principles of fundamental justice. Language rights
    are meant to protect official language minorities and to ensure the equal status
    of English and French. They are not meant to support the legal right to a fair
    trial, but to assist [an] accused in gaining equal access to a public service
    that is responsive to [their] linguistic and cultural identity:
Beaulac
,
    at paras. 23, 25, 41, 45 and 53;
Munkonda
, at para. 59; and
Bessette
    v. British Columbia (Attorney General)
, 2019 SCC 31
,
376 C.C.C.
    (3d) 147,
at para. 38.

[65]

This court
addressed an application under s. 530 by an
    English-speaking accused in
R. v. Leon
, 2014 ONCA 813  albeit in the context
    of a discretionary order under s. 530(4). This court agreed with the trial
    judge
that there
    was no basis to make a s.
530

order
, since the accused was already scheduled
    to have a trial in English:
Leon
, at paras. 3-4.

Challenges for Cause and Section 638(1)(f)

[66]

The aim of a challenge for cause is to assist in
    the selection of a jury who will decide the case impartially and base its
    verdict on the evidence adduced and in accordance with the legal instructions
    provided by the trial judge.

[67]

The ultimate requirement of a system of jury
    selection is that the system result in a fair trial. A fair trial is not a
    perfect trial. Nor is it a trial that is the most advantageous from the
    perspective of the accused:
Find
, at paras. 26, 28.

[68]

The presiding judge has authority to control the
    jury selection process. To make effective use of court resources. And to ensure
    fairness to all participants, including prospective jurors:
R. v. Husbands
,
    2017 ONCA
607, 353 C.C.C. (3d)
    317, at
para. 31, leave to appeal
refused, [2017] S.C.C.A. No. 364;
R
. v. Province
, 2019 ONCA 638, at para.
    69.

[69]

This inherent authority extends specifically to
    the challenge for cause component of jury selection. It is exercised to prevent
    an abuse of the challenge for cause process and to ensure fairness to the
    parties and the prospective jurors:
Province
, at para. 68. A challenge
    for cause with no purpose beyond increasing delays or intruding on the privacy
    of prospective jurors is ripe for extinction in the exercise of this authority:
Find
, at para. 29;
R. v. Hubbert
(1975), 29 C.C.C (2d) 279 (Ont.
    C.A.), at p.
291, affd
[1977] 2 S.C.R. 267
.

[70]

Section 638 of the
Criminal Code
authorizes challenges for cause. Sections 638(1) and (2) provide an exhaustive
    catalogue of the grounds upon which a challenge for cause may be advanced. The
    plain language of s. 638 entitles each party to any number of challenges for
    cause:
Criminal Code
, s. 638(1);
Sherratt
, at p. 521.

[71]

Section 638 is silent
    on whether an applicant must meet a particular threshold requirement or
    preliminary burden
in order to challenge a prospective
    juror on the basis of an enumerated cause. But it follows from the presiding
    judges degree of control over the selection process that some burden is
    settled on the challenger to ensure that selection accords with the governing
    principles and that the presiding judge is provided sufficient information so
    the truth of the challenge is contained within reasonable bounds:
Sherratt
,
    at pp. 535-36.

[72]

Among the six articulated grounds upon which a
    prospective juror may be challenged for cause under s. 638(1), the most
    frequently invoked is s. 638(1)(b)  i.e., that the prospective juror is not
    impartial as between the Crown and the accused. An accused who seeks to
    challenge prospective jurors under s. 638(1)(b) must establish a realistic
    potential for the existence of partiality on a ground sufficiently articulated
    in the application:
Sherratt
, at pp. 535-36;
Find
, at para.
    31;
R. v. Yumnu
, 2010 ONCA
637, at paras. 70, 88,
260 C.C.C. (3d) 421,
    affd
2012
    SCC 73, [2012] 3 S.C.R. 777;
and
R. v. Williams
,
    [1998] 1 S.C.R. 1128, at para. 14. In assessing whether an accused has met this
    threshold, courts have considered the availability and efficacy of various
    components of the trial process to serve as antidotes in ensuring impartiality:
Find
, at paras. 41-42. Only where these components are insufficient to
    negate a realistic potential of partiality will the challenge be permitted to
    proceed.

[73]

A challenge for cause under s. 638(1)(f)
    contests the language competency of prospective jurors. The challenge for cause
    is available only where the accused is
required
by an order under s.
    530 to be tried by a judge and jury who speak the same official language as the
    accused. The challenge is that the prospective juror does not speak the same
    official language.

The Principles Applied

[74]

Several reasons persuade me that this ground of
    appeal fails.

[75]

First, the circumstances in which the orders
    under s. 530(1) were obtained.

[76]

As we have already seen, s. 530 is a language
    rights provision. Its purpose is to provide equal access to the courts to
    accused who speak an official language of Canada in order to assist official
    language
minorities
in preserving their cultural identity. An order
    ensures that an accused will understand and be understood in the proceedings.
    Language rights are not meant to enforce minimum conditions under which a trial
    will be considered fair.

[77]

The timeliness of the applications under s.
    530(1)(c) in these cases dictated that an order would be made in view of the
    mandatory language in the section. But the application, which counsel said he always
    made, was at best frivolous and at worst abusive. For it had nothing to do
    with language rights or assisting official language minorities in preserving
    their cultural identity.

[78]

In these cases, as the appellants well knew,
    their trials would be held in the official language with which they identified
     English. No order under s. 530 was required to achieve this result: see
Leon
, at paras. 3-4. The appellants would understand the language of
    proceedings.

[79]

In addition, the juror qualification requirement
    under the
Juries Act
and the pre-vetting of jurors for language
    competency ensured that the trier of fact would understand the proceedings in
    their official language. In each of the appellants cases, the presiding judge conducted
    screening for language competency. And in each case, several prospective jurors
    were excused.

[80]

As it would appear to me, counsel sought the order
    not to enforce language rights, but to secure a foothold to challenge
    prospective jurors for cause on the ground of language competency in the
    absence of any warrant for doing so. Indeed, the focus of the proposed question
    is more directed at the fairness of the trial process than the language in
    which the trial was conducted.

[81]

Second, the interpretation of s. 638(1)(f).

[82]

The interpretation of s. 638(1)(f) proposed by
    the appellants, that the mere existence of an order under s. 530 entitles an
    accused to challenge the language competency of each prospective juror as of
    right, would be inconsistent with the threshold requirements for all other
    challenges for cause  in particular, s. 638(1)(b)  in the absence of any
    statutory language or principle requiring it.

[83]

The threshold to be met under s. 638(1)(b)  a
    realistic potential for the existence of partiality on a ground sufficiently
    articulated in the application  does not emerge from the language of the
    section. Nor can s. 638(1)(b) be distinguished based on the presumption of
    impartiality in prospective jurors. Indeed, the functional equivalent of a
    similar presumption  one of language competency  could as easily be grounded
    on the combination of jury qualification requirements in place under provincial
    law and the pre-vetting of panel members for language competency by the
    presiding judge.

[84]

Further, a requirement of the threshold showing
    for each ground of challenge for cause is consistent with basic principles. To
    take advantage of an entitlement to challenge for cause, one which has the
    effect of eliminating from the jury as sworn persons not disqualified by the
    statute under which jurors are selected, a challenger must make a preliminary
    showing before being allowed to proceed.

[85]

Finally, challenges for cause which, as here,
    serve no useful purpose but to increase delays and intrude on the privacy of
    prospective jurors must be avoided.

Disposition

[86]

For these reasons, I would dismiss the appeals.

Released: DW May 22, 2020

David Watt J.A.

I agree. Grant Huscroft J.A.

I agree. Gary Trotter J.A.

[1]
While
the structure of s. 530 has changed slightly since the
    appellants trials, its substance remains the same. Accordingly, the expression
    as it then appeared is not repeated in subsequent references to the
    provision.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Potvin, 2020 ONCA 299

DATE: 20200513

DOCKET: C63033

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Marcel Potvin

Appellant

Howard L. Krongold, for the appellant

Nicolas de Montigny, for the respondent

Heard: in writing

On appeal from the sentence imposed by
    Justice Jonathan Brunet of the Ontario Court of Justice on May 12, 2016.

REASONS FOR DECISION

A.

Overview

[1]

The appellant was convicted of breaching his
    long-term supervision order (LTSO) and sentenced to an indeterminate sentence
    pursuant to s. 753.01 of the
Criminal Code
, R.S.C. 1985, c. C-46
. He argues on appeal that the trial
    judge failed to properly consider the principle of proportionality and to
    consider certain mitigating factors in imposing this sentence. For the
    following reasons, we dismiss his appeal.

B.

Background

(1)

Criminal History and Dangerous Offender
    Designation

[2]

The appellant was declared a dangerous offender
    in 2012. This designation followed his conviction for criminal harassment and
    other offences. It was the culmination of a 30-year history of crimes against
    women. His conduct included breaking into victims residences, following them
    from place to place, relentless phone calls, and making threats. As noted by
    the sentencing judge, in the course of his offending conduct the appellant has
    caused severe psychological damage to several women and has left a large swath
    of misery, anxiety, mistrust and emotional scars on these individuals.

[3]

The appellant also has convictions for indecent
    acts, by exposing his penis to women he had called over to his motor vehicle
    under the pretext of asking for directions. As well, he has been convicted of
    sexual assault, obstruction of justice, break and enter, assault and uttering
    threats. A number of these offences were committed while on bail or probation.

[4]

After being declared a dangerous offender in
    2012, the appellant was sentenced to time served, equivalent to 844 days in
    jail, followed by a 10-year LTSO. One of the terms of the LTSO was that the
    appellant had to immediately report to his parole supervisor all contacts with
    females with whom he associated.

(2)

Index Offence

[5]

In the fall of 2013, the appellant became
    friendly with a 23-year old female employee of a local coffee shop. He would
    regularly walk her home and did so approximately 40 times over the course of
    two months. The woman became uncomfortable with the continued contact when the
    appellant caused the conversations to become personal and sexually explicit,
    for example when he asked how many sexual partners she had had. The appellant
    also shared with her that he had masturbated with the blinds open and a woman
    across the street had seen him. She testified that he would call her several
    times a day.

[6]

After a time, the woman made it clear to the
    appellant that she did not want him walking her home. When he continued to
    attend her workplace, she did not wish to deal with him. On one occasion, she
    left through the back door and went home feeling afraid. Shortly after arriving
    home she heard the doorbell ring and a knock on the door. She pretended not to be
    home, but the appellant rang the doorbell again and she eventually answered the
    door. She told the appellant that she needed to be left alone.

[7]

The appellant also gave the woman gift cards and
    an elliptical machine. When pressed by the appellant the woman agreed to meet
    with him to talk about us. It is then that the appellant told her that he had
    a file or a background check he had done on her and told her he had asked a
    contact to look up her name, where she was from, and her family and personal
    history. This made the woman scared and furious, after which she went to the
    police to report her concerns. As it turned out, the appellant had never
    reported to his parole officer the fact that he had been pursuing this woman
    for several months. He was therefore arrested and charged with breach of his
    LTSO.

[8]

In his reasons for conviction, the trial judge
    expressed the view that the appellants behavior could be considered courting
    or grooming and was very close to, if not tantamount to, stalking as
    described [in s.] 264 of the
Criminal Code
.

(3)

Sentencing Hearing and Reasons for Sentence

[9]

At the sentencing hearing, the Crown called two
    experts. Dr. Philip Firestone was qualified as an expert in the area of
    clinical psychology. Dr. Firestone had provided the appellant with
    psychological counseling from 2012 until his arrest in December 2013. Dr. Scott
    Woodside, a forensic psychiatrist, performed a psychiatric assessment of the
    appellant and was qualified as an expert in the area of diagnoses, risk
    assessment and risk management.

[10]

In the course of his assessment by Dr. Woodside,
    the appellant displayed no reluctance in speaking with him, but it was apparent
    that the information he provided was not always accurate or consistent.

[11]

Dr. Woodside diagnosed the appellant with a
    mixed personality disorder with paranoid, antisocial, borderline and dependent
    traits, as well as exhibitionistic disorder. Dr. Firestone agreed with this
    diagnosis.

[12]

Based on both clinical and actuarial evaluations,
    Dr. Woodside concluded that the appellant continues to pose a high risk of sexual
    recidivism. According to Dr. Woodside the risk of reoffending was highest with
    respect to exhibitionism, stalking and harassment.

[13]

Dr. Firestone was concerned that although the
    appellant had been under intense supervision, he nonetheless returned to his
    offence cycle. In his view, there was little that he could recommend to add to
    the conditions already in place that might mitigate or reduce the risk of
    reoffending. He concluded that even if subjected to an LTSO with strict
    conditions, the appellant was at a moderate to high risk to reoffend.

[14]

Dr. Woodside expressed significant pessimism
    regarding the appellants future manageability in the community even if strict
    conditions were in place. In his own words:

[T]his is now the
    third time he's faced dangerous offender proceedings of one kind or another.  This
    is not a good prognostic factor, right? I mean, this is someone who should have
    known, even if he says he didn't, known what was at stake. And yet he could not
    restrain his behavior and was not willing or able to make use of treatments
    that were available to him, in a way that would actually result in a different
    approach to relationships.

[15]

Dr. Woodside acknowledged that two types of
    treatment had not yet been attempted with the appellant: antipsychotic
    medication and sex drive reducing medication. Dr. Woodside however had
    significant reservations about the outcome of these potential treatment
    options. It was unclear whether the appellant would accept and persist with
    these forms of treatment, nor was it known whether they would be effective.

[16]

The sentencing judge considered the appellants
    entire history, the psychiatric and psychological evidence, and the evidence
    emanating from the offences and victim impact statements, and concluded that
    the criteria in s. 753.01(5) for the imposition of an indeterminate
    sentence were met.

C.

Analysis

[17]

The appellant argues that, in assessing what
    form of sentence would sufficiently protect the public, the trial judge does
    not appear to have considered the principles of proportionality, the
    appellant's moral culpability, or the mitigating factors that exist in this
    case. The appellant maintains that the trial judge made only tangential
    reference to the sentencing principles set out in s. 718 of the
Criminal
    Code
, the common law and relevant jurisprudence.

[18]

While the objective of public protection is
    enhanced in cases involving individuals designated as dangerous offenders, a
    court must nonetheless balance this against the other sentencing principles, including
    proportionality:
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at
    para. 53. In the present case, the appellant submits he had received few
    interventions before or while living at the halfway house. For someone exhibiting
    the depth of problems faced by the appellant, the limited intervention and
    treatment provided to him was a recipe for failure. In the appellants
    submission, this ought to have informed the trial judges disposition in this
    case.

[19]

The appellant further maintains that he posed only
    a limited risk of hands on reoffending and committing a serious personal
    injury offence. In the appellants submission, had the trial judge fully
    grappled with the mitigating factors in fashioning a sentence, he ought not to
    have imposed an indeterminate sentence.

[20]

We disagree. As conceded by the appellant, it is
    well accepted that the dominant purpose of the dangerous offender regime is
    public protection:
R. v. Steele
, 2014 SCC 61, [2014] 3 S.C.R. 138, at
    para. 29. The conduct underlying the offence for which the appellant was
    convicted was strikingly similar to that which led to the appellant's original
    dangerous offender designation. It went to the heart of his offence cycle and
    it therefore created a direct link to his risk to public safety.

[21]

The sentencing judge properly focused on the
    narrow issue of whether there was a reasonable expectation that something less
    than an indeterminate sentence could adequately protect the public against the
    commission of a serious personal injury offence by the appellant:
Criminal
    Code
, s. 753.01(5). He reviewed the sentencing principles and mitigating
    factors identified by defence counsel, including the relative lack of hands on
    violence in the record, the fact that the appellant had not spent time in a
    penitentiary with access to the programming available there, the appellant's
    expressed desire to change his ways, as well as Dr. Woodside's evidence that he
    could not completely rule out a delusional disorder diagnosis and that a trial
    of antipsychotic medication could be attempted.

[22]

The evidence at the hearing, however, was that
    the appellant had a history of declining medication and had been unable to
    meaningfully engage in treatment. He had denied responsibility for his crimes
    and demonstrated a lack of insight into his offence cycle and mental illness. The
    trial judge considered the relevant factors, both mitigating and aggravating,
    and concluded that the breach was very significant because the condition that
    was breached was directly tied to the nature of the offence that formed the
    basis of the dangerous offender designation itself. On the basis of all the
    evidence that was produced at the sentencing hearing, the sentencing judge
    concluded that there was no reasonable expectation that something less than an
    indeterminate sentence would adequately protect the public.

[23]

In our view, the trial judge was alive to the
    factors that the appellant alleges received inadequate consideration. The
    psychiatric evidence was that the appellant is likely to continue his
    longstanding pattern of criminal harassment. The sentencing judges conclusion
    that only an indeterminate sentence would adequately protect the public from
    future serious personal injury offences, specifically, further instances of
    criminal harassment causing severe psychological damage, was reasonable and
    well supported by the evidence. We see no basis to interfere with this conclusion.

D.

Disposition

[24]

As part of the appellants sentence, a $200
    victim surcharge was imposed. In accordance with
R. v. Boudreault
,
    2018 SCC 58, [2018] 3 S.C.R. 599, leave to appeal is granted and this victim
    surcharge is set aside.

[25]

For the reasons given above, the appeal is otherwise
    dismissed.

Paul
    Rouleau J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.R., 2020 ONCA 327

DATE: 20200528

DOCKET: C64708

Doherty, Juriansz and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.R.

Appellant

Richard Litkowski and Jessica Zita, for
    the appellant

Jennifer Trehearne, the respondent

Heard: May 19, 2020 via videoconference

On appeal from the convictions entered
    by Justice K.A. Sherwood of the Ontario Court of Justice, dated August 29,
    2017, and on appeal from the sentence imposed on November 28, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    sexual assault. The offences occurred in 1996 and 1997, but were not reported
    until years later. The appellant was charged in 2016, convicted in August 2017,
    and sentenced to 14 months in November 2017. He appeals conviction and sentence.
    The appellant has been on bail pending appeal for 2½ years.

[2]

For the reasons that follow, the appeals are
    dismissed.

[3]

The two complainants, J.P. and C.P., are
    cousins. In 1996 and 1997, J.P. and her mother shared a duplex with J.P.s
    grandmother. J.P. and her mother lived on one side and her grandmother lived on
    the other side.

[4]

C.P. often came to visit her grandmother and
    played with J.P. They moved back and forth between the two parts of the duplex.
    At the relevant time, J.P. was five or six and C.P. was between eight and ten.

[5]

J.P.s mother was involved in a relationship
    with the appellant. He was often at the duplex.

[6]

J.P. and C.P. both described being sexually
    assaulted by the appellant on two occasions. All four occasions occurred at the
    duplex when the complainants were very young. All four incidents involved the
    appellant putting his hand under the complainants clothing, including their underpants.
    On at least three of the four occasions, he digitally penetrated the
    complainants vaginas. On three of the four occasions, the complainants were
    sitting on the appellants lap or knee.

[7]

J.P.s mother testified. She recalled an
    incident when she saw the appellant put his hands under J.P.s covers and near
    her private area. She told the appellant to get away from her daughter. This
    incident was quite similar to one of the assaults described by J.P.

[8]

In addition to describing the two sexual
    assaults, J.P. also testified that the appellant photographed her and C.P. when
    they were in the bath together. J.P.s mother confirmed that the appellant took
    a picture of J.P. alone when J.P. was in the shower. C.P. testified that she
    was not aware of any photos being taken of her when she was in the bath or
    shower.

[9]

The appellant testified and denied the
    allegations. He indicated he had a brief relationship with J.P.s mother in
    late 1996 and early 1997. He ended the relationship because of her lifestyle.
    J.P. and the appellant ended up in a custody dispute over their son. The
    appellant eventually got custody.

[10]

The appellant admitted taking a photograph of
    J.P. when she was in the bathtub. He indicated that J.P.s mother had asked him
    to take the photograph.

[11]

Several witnesses called by the defence gave
    what the trial judge properly characterized as character evidence for the
    appellant. They had little to say about the events giving rise to the charges.

The Conviction Appeal

[12]

There are two grounds of appeal:

·

Did the trial judge err in admitting the
    evidence directly relevant to one count as similar fact evidence on the other
    counts?

·

Did the trial judge apply different levels of
    scrutiny as between the complainants evidence and the appellants evidence?

The Similar Fact Evidence Ruling

[13]

The trial judge ruled the evidence directly
    relevant to each count was admissible on the other counts. He held the evidence
    was admissible to prove the
actus reus
of the allegations in each count.
    In so holding, the trial judge referred to the many similarities between the
    allegations of the two complainants, and the absence of any evidence of
    collusion.

[14]

The appellant does not take issue with the trial
    judges determination the evidence on each count had probative value on the
    other counts. He submits, however, the trial judge failed to balance that
    probative value against the prejudicial effects of admitting the evidence across
    counts.

[15]

The trial judge gave detailed reasons for
    admitting the evidence. He specifically identified the issue on which the
    evidence had probative value. The trial judge described, on at least two
    separate occasions, the nature of the potential prejudice inherent in the admission
    of similar fact evidence. He was obviously alive, both to the probative value
    of the evidence and the nature of the potential prejudice inherent in the
    evidence.

[16]

This was a judge alone trial. There was no
    objection to the joinder on the same information of all four counts. It was
    understood the trial judge would hear the evidence on all counts. He
    specifically alerted himself to both the legitimate and the illegitimate
    purposes for which the evidence can be used. In deciding to admit the evidence,
    he was obviously satisfied the legitimate probative value of the evidence
    outweighed any risk of misusing the evidence. Indeed, it is difficult to see any
    risk that this trial judge would misuse the evidence after repeatedly and
    accurately identifying how the evidence could and could not be used.

The Uneven Scrutiny Argument

[17]

As with most allegations of sexual assaults
    against children, the outcome at trial turned, to a large extent, on the trial
    judges assessment of the credibility of the witnesses. The trial judge dealt
    at length with the credibility and reliability of the complainants testimony.
    He also addressed the appellants credibility. He did so in the context of the
    presumption of innocence and the burden on the Crown to prove its case beyond a
    reasonable doubt.

[18]

The trial judge ultimately rejected the
    appellants evidence as untrue. He believed the complainants evidence.

[19]

The appellants complaint that his evidence was
    subject to a more rigorous examination than the complainants evidence seems
    based in large measure on the different assessments ultimately made by the
    trial judge. Not surprisingly, the evidence of the complainants and the
    evidence of the appellant gave rise to very different credibility
    considerations. The trial judge concluded that the appellants veracity was
    tainted by his obvious animus towards J.P.s mother. Nothing in the
    complainants evidence raised a comparable credibility related issue.

[20]

We see little value, for the purposes of
    appellate review, in comparing the trial judges assessment of the impact on
    the appellants credibility of his animus towards J.P.s mother with the trial
    judges assessment of the impact on the complainants credibility of some
    entirely different feature of their evidence. A trial judges finding that
    factor A had a negative impact on the assessment of one witnesss
    credibility, but a completely different factor B did not have the same impact
    on the assessment of a different witnesss credibility is not uneven scrutiny. To
    the contrary, it reflects a proper individualized assessment of the different
    evidence offered by the different witnesses.

[21]

The trial judge did not err in the manner in
    which he approached and assessed the evidence of the witnesses.

The Sentence Appeal

[22]

The appellant was sentenced to 14 months
    concurrent on the charges. The defence at trial sought a conditional sentence.
    They renew that request on appeal.

[23]

A conditional sentence was legally available. It
    would, however, have been inappropriate. These were serious crimes committed
    against very young victims. The appellant took advantage of his access to the
    duplex through his friendship with J.P.s mother to commit the crimes. The
    nature of the offences fully warranted a significant reformatory sentence. Nothing
    in the character or antecedents of the appellant supports the imposition of a
    non-custodial sentence. The sentence imposed was fit.

[24]

The appellants
    bail pending appeal was varied to allow him to surrender into custody, as
    directed by the court. As his appeals have been dismissed, he shall surrender
    into custody by no later than noon on Friday, May 29, 2020, failing which a
    warrant may issue for his arrest.

Doherty J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Renaud, 2020 ONCA 302

DATE: 20200513

DOCKET: C68244

MacPherson, Pardu and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jennifer Renaud

Appellant

Amanda Warth, for the appellant

Michael Fawcett, for the respondent

Heard: May 12, 2020 by
    Teleconference

On appeal from the sentence imposed on February
    24, 2020 by Justice Erin J. Lainevool of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Jennifer Renaud, pled guilty to,
    and was convicted of, several criminal offences: unauthorized possession of a
    weapon; theft of a motor vehicle; being an occupant of a vehicle with a weapon;
    possession of a dangerous weapon; possession of break-in instruments; personation;
    and failure to comply with recognizance. She received a custodial sentence of
    ten months after the sentencing judges calculation of credit for pre-sentence
    custody. The appellant appeals the sentence.

[2]

At the sentence hearing, the appellant sought a
    conditional sentence of 12 to 15 months. The Crown position was that the
    appellant should receive a custodial sentence of 9 to 12 months less credit for
    pre-trial custody. The trial judge rejected a conditional sentence and imposed
    the custodial sentence set out above.

[3]

On appeal, the appellant does not contend that
    the sentencing judge erred by declining to impose a conditional sentence. She
    does assert that the custodial sentence imposed by the sentencing judge was too
    harsh. We agree with this submission, essentially for three reasons.

[4]

First, and most importantly, the sentence
    imposed by the sentencing judge was above that sought by the Crown. The very
    top of the Crowns range was 12 months. Although the sentencing judge never
    said what her global sentence was, the reality is that when you add the
    custodial sentence she imposed and the credit the parties acknowledge should
    have been given for pre-sentence custody, the global sentence is about 13 ½
    months. The Crown acknowledges this point and agrees with the proposition that
    when a sentencing judge imposes a sentence more harsh than that sought by the
    Crown, the judge should explain the reasons for so doing. The sentencing judge
    did not do this. There is no indication in her reasons that she intended to
    impose a sentence exceeding the maximum sought by the Crown. This outcome may
    have been related to the error in calculation of pre-sentence custody;
    submissions made to her about this credit were not precise.

[5]

Second, the Crown concedes that the sentencing
    judge underestimated, by about 15 days, the appropriate credit the appellant
    should have been given for pre-sentence custody.

[6]

Third, although the sentencing judge mentioned
    some of the mitigating factors favouring the appellant, she did not refer to
    the appellants guilty plea.

[7]

Although we would not say that any of these
    factors, taken in isolation, would necessarily warrant appellate interference
    with a sentence, in this appeal these factors, taken together, lead us to
    conclude that the sentence imposed by the sentencing judge was too harsh.

[8]

The appeal is allowed. The sentence imposed for personation
    (90 days consecutive) is varied to 90 days concurrent to the other sentences
    imposed. This results in an effective sentence today of time served.
    Accordingly, it is ordered that the appellant be released from custody.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.