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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. A.R., 2018 ONCA 738

DATE: 20180910

DOCKET: C63688

MacPherson, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.R.

Appellant

Brian H. Greenspan and Michelle M. Biddulph, for the
    appellant

Katie Doherty, for the respondent

Heard: September 6, 2018

On appeal from the conviction entered on February 27,
    2017 and the sentence imposed on May 12, 2017 by Justice Jennifer Woollcombe of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant A.R. was convicted of six counts of sexual assault, two
    counts of uttering threats, and two counts of assault. The appellant received a
    global sentence of four years for these offences. At the conclusion of the
    hearing, we dismissed the appeal with reasons to follow. We now provide those
    reasons.

[2]

The various charges arose from allegations of domestic violence
    committed by the appellant against his wife (now ex-wife) L.R. between 2011 and
    2013. The trial lasted seven days and involved three witnesses.

[3]

The Crown called L.R. and L.R.s mother, who testified about the various
    allegations. Hundreds of text messages exchanged between the appellant and the
    complainant during the relevant time frame were introduced. Two police
    occurrence reports were also introduced on consent.

[4]

The appellant did not testify. He called one witness, his cousin F.D.,
    who gave evidence about an evening meeting involving A.R., L.R. and A.R.s
    parents that post-dated the time frame of the events giving rise to the
    charges.

[5]

The appellant does not challenge his convictions on the two counts of
    uttering threats. He appeals the convictions on the eight counts of sexual
    assault and assault. He also appeals his sentence. However, he concedes that,
    if the conviction appeal is dismissed, then his sentence should also be
    dismissed.

Conviction Appeal

[6]

On the conviction appeal, the appellant, especially in oral submissions,
    advanced two principal grounds of appeal.

[7]

First, the appellant contends that the trial judge erred by failing to
    properly scrutinize the complainants evidence. He makes two submissions on
    this issue.

[8]

The appellant submits that the trial judge failed to recognize the true
    extent of the complainants evasiveness in her testimony. He says that L.R.s
    evasiveness extended beyond questions about the alleged sexual assaults to
    encompass any questions that potentially painted her in a negative light.

[9]

We are not persuaded by this submission. The trial judge was alive to
    the need to carefully assess the credibility and reliability of the
    complainants evidence. She was not uncritical of the complainants testimony.
    For example, she said:

I agree with defence counsel that L.R.s perspective about the
    fighting between her and the accused seems to be that everything was his fault
    and that she was blameless. I agree that in the text messages she berated the
    accused, often repeating the same issues over and over. In her evidence, she
    did not seem to take any responsibility for the fights.

I take from this that the complainant lacked insight into the
    extent of the marital issues that they were having and that her perspectives
    were not always, when viewed objectively, fair or correct. However, this does
    not lead me to reject her evidence. Rather, it reinforces for me the need to
    approach her evidence with particular care.

[10]

Against
    the backdrop of this caution, the trial judge was entitled to find that L.R.s
    account of the various incidents giving rise to the ten counts in the
    indictment was believable. On each count, the trial judge gave reasons for
    accepting the complainants testimony. We do not fault her analysis or
    conclusions on the various counts.

[11]

On
    this issue, the appellant also asserts that the trial judge erred by not
    addressing a police occurrence report dated January 5, 2014 which, the
    appellant says, sharply contradicts the testimony of both the complainant and
    her mother about what they said to police that day.

[12]

We
    do not accept this submission. The police occurrence report did not relate to
    any of the 10 counts in the indictment; rather, it involved an incident several
    months after the events relating to the last count in the indictment. Moreover,
    any discrepancies between L.R.s testimony and the police officers report
    about their meeting on that date are, in our view, slight and trivial.

[13]

Second,
    the appellant submits that the trial judge applied different standards of
    scrutiny to the testimony of the complainant and her mother, the Crown
    witnesses, and F.D., the defence witness.

[14]

We
    disagree. F.D. was not a witness who testified about any of the 10 incidents
    giving rise to the various criminal charges. He was not present at any of them.
    Rather, he testified about a family meeting that is almost entirely peripheral
    to those charges. Even if we were to accept that the trial judge unfairly
    rejected his evidence, it would not have any impact on the central issues that
    the trial judge had to resolve.

Sentence Appeal

[15]

In
    light of our disposition of the conviction appeal, the sentence appeal does not
    arise.

Disposition

[16]

The
    appeal is dismissed.

J.C. MacPherson J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdella, 2018 ONCA 789

DATE: 20180928

DOCKET: C63236

Watt, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ganno Abdella

Appellant

James N. Frost, for the appellant

Jacob Sone, for the respondent

Heard and released orally: September 25, 2018

On appeal from the conviction entered on October 21, 2016
    and the sentence imposed on March 28, 2017 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was convicted of trafficking heroin and
    possession of the proceeds of crime. She was sentenced to a term of
    imprisonment of 26 months less credit of 3 days for time spent in
    pre-disposition custody.

[2]

The appellant challenges her conviction on the grounds that the trial
    judge erred in three respects, that is to say:

i.

by concluding that the Crown had proven the case against her beyond a
    reasonable doubt;

ii.

by engaging in impermissible speculation rather than drawing permissible
    inferences; and

iii.

by failing to consider other evidence that ran contrary to the findings
    made by the trial judge.

[3]

The appellant acknowledges that the trial judge identified the correct
    principles applicable when the case for the Crown consists wholly or
    substantially of circumstantial evidence. Where the trial judge failed,
    according to the appellant, was in finding the onus and standard of proof
    satisfied by the evidence adduced by the Crown.

[4]

We are not satisfied that the conclusion reached by the trial judge was
    the product of impermissible speculation rather than reasonable inference. In
    our view, it was open to the trial judge to infer that the appellant was the
    unknown caller whose communications with the target, Aden, were intercepted
    under a Part VI authorization. It was also a reasonable inference from the
    substance of one of those intercepted communications that a prior transaction
    had taken place between the caller and Aden, even though it was not itself the
    subject of an interception on any of Adens phones monitored during the
    investigation.

[5]

In addition to the intercepts, the uncontroverted evidence was that the
    appellant entered Adens vehicle on one side of Bloor Street, remained inside
    for about 30 seconds while the vehicle made a turn in heavy traffic, then got
    out on the other side of the street. The appellant, who was apprehended as she
    walked away from the vehicle, had $700 in her hand. For his part, Aden had 6.32
    grams of heroin in his sock when he was arrested shortly after the appellant
    left the car.

[6]

The trial judge considered several alternative inferences advanced by
    defence counsel at trial. After setting out those alternatives, the trial judge
    concluded:

I do not accept the alternative inferences suggested by the
    defence as other plausible theories or other reasonable possibilities based
    on logic and experience applied to the evidence, or absence of evidence.

[7]

In our view, the trial judge was entitled to reject trial counsels
    submissions about what counsel characterized as alternative inferences. We
    agree that these alternatives were not reasonable inferences arising from the
    evidence, rather constituted impermissible speculation.

[8]

In the result, the appeal from conviction is dismissed. The appeal from
    sentence is dismissed as an abandoned appeal.

David Watt J.A.

L.B. Roberts J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Banovac, 2018 ONCA 737

DATE: 20180910

DOCKET: C63122

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paval Banovac

Appellant

Amy Ohler, for the appellant

James Clark, for the respondent

Heard and released orally: September 5, 2018

On appeal from the sentence imposed on November 18, 2016
    by Justice B.A. Allen of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his sentence for possession for the purpose
    of trafficking in heroin. The appellant was found in possession of 21.91 grams
    of heroin, divided into four 8-ball 3.5 gram packages. He pleaded guilty to
    possession of the heroin, but asserted that it was for personal use and not for
    trafficking. He admitted that he was badly addicted at the relevant time.

[2]

The trial judge accepted the expert evidence about the amounts of heroin
    used by addicts. She concluded that given his limited financial resources, the
    appellant had to have been trafficking in heroin to support his habit. The
    agreed statement of facts confirmed the amount of drugs found and indicated
    that this amount would have provided 1103 hits of heroin.

[3]

The appellant submits that the sentencing judge made the following
    errors in principle:

1.

She treated the absence of pro-social life factors as an aggravating
    factor;

2.

She considered outstanding charges alleging domestic violence more than
    two years after the arrest for drug-trafficking as an aggravating factor; and

3.

She failed to exercise restraint and should have imposed a two-year
    sentence as urged by defence counsel.

[4]

We agree that the absence of a
    pro-social life network might more appropriately be treated as relevant to the
    likelihood that the appellant could rehabilitate himself rather than being
    treated as an aggravating factor. We also agree that the outstanding charges of
    assault against the domestic partner were irrelevant to the sentence to be
    imposed for possession for the purpose of trafficking in heroin. There was no
    nexus between the later charges and the offence for which the appellant was to
    be sentenced  see
R. v. Edwards
,
    [2001] O.J. No. 2582.

[5]

That said, despite these errors, the
    sentence imposed was fit and well within the range for other offenders, even
    those with no previous record, unlike the appellant and with significantly
    smaller amounts of heroin: see
R. v. Farizeh
, [1994] O.J. No. 2624;
R. v. Bahari
, [1994] O.J. No. 2625 and
R. v. Pimentel
, [2004] O.J. No. 5780.

[6]

Leave to appeal sentence is granted,
    but the appeal is dismissed.

P. Lauwers J.A.

G. Pardu J.A.

David. M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhandol, 2018 ONCA 769

DATE: 20180920

DOCKET: C63696

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aman Bhandhol

Appellant

Glen Henderson, for the appellant

Justin Reid, for the respondent

Heard: September 17, 2018

On appeal from the conviction entered by Justice C. Ann
    Nelson of the Ontario Court of Justice on December 22, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for various impaired and
    dangerous driving offences. At the conclusion of the hearing of the appeal, we
    dismissed the appeal with reasons to follow. These are those reasons.

[2]

The main issue at trial was the identification of the driver of the
    motor vehicle (the Acura) that hit the victims motor vehicle and sent it
    smashing into a pole, causing the victim very serious, permanent injuries. The
    appellant admitted that he was impaired, that the driving of the Acura, which
    belonged to his father, was dangerous, and that it caused the victim bodily
    harm. For the purposes of the appeal, it is conceded as a reasonable finding by
    the trial judge that the appellant was associated with and an occupant of the
    Acura. However, the appellant maintains that the trial judge erred in finding
    that he was the driver.

[3]

The appellant submits that the verdict was unreasonable because of the
    unreliability of the four witnesses called by the Crown. Each testified about
    seeing one or two people fleeing from the Acura. The appellant says the trial
    judge erred by failing to recognize the exculpatory effect of the serious
    inconsistencies in the witnesses description of the drivers clothing,
    including the possibility that there was a third person in the Acura who may
    have been the driver. This should have left the trial judge with a reasonable
    doubt as to the identity of the driver of the Acura.

[4]

We are not persuaded by these submissions.

[5]

The present case is entirely distinguishable from the circumstances of
R.
    v. Boucher
, [2000] O.J. No. 2373 (CA), where the conviction of one of the
    appellants was founded primarily on inconsistent eye-witness testimony about
    the clothing worn by one of the parties to a robbery and there was not a
    scintilla of other evidence connecting him to the offence (paras. 19-20).
    Here, the trial judge did not base her conviction of the appellant on the
    eye-witness testimony alone nor did she consider it in isolation from the
    totality of the evidence. As she correctly noted, the Crown had amassed a
    formidable circumstantial case against the appellant, which she carefully
    reviewed in her meticulous reasons.

[6]

In addition to the appellants concessions and the portions of the
    eye-witness testimony that the trial judge accepted as credible and reliable,
    the Crowns case included the video footage from the adjacent church showing
    the appellant running through the church parking lot, away from the crash site
    while frequently looking behind him, and into the forest where he was found and
    arrested in due course by the police in company with the other occupant of the
    Acura, who was light-skinned and wearing shorts. The appellants darker skin
    colour, the fact he was wearing pants, and his movements following the crash
    were also corroborated by the eye-witness testimony accepted by the trial
    judge. There was no dispute that the appellant was the person seen in the video
    and that at the time of his arrest he was wearing the same clothing  a dark
    grey t-shirt, blue jeans and white sneakers  as also shown in the still from
    the booking video at the police station and confirmed by the arresting
    officers evidence.

[7]

The trial judge approached the eye-witness testimony with the necessary
    caution that she acknowledged was required because of its inherent frailties.
    As she was entitled to do, she accepted the evidence of two of the four
    eye-witnesses that the appellant exited from the drivers side of the Acura and
    then ran through the church parking lot and into the forest. She was clearly
    alive to the discrepancies in the eye-witness testimony and their potentially
    exculpatory nature, as is demonstrated by her examination of the evidence. She
    returned to these discrepancies several times in her reasons as she looked at
    them from the perspective of the various defence arguments, including whether
    they gave rise to the possibility of a third occupant of the Acura.

[8]

At the conclusion of her thorough analysis, the trial judge came to
    grips with the crucial question of whether these discrepancies left her with a
    reasonable doubt as to the identity of the driver:

A final point, does the issue of the
    clothing discrepancy raise a reasonable doubt that Mr. Bhandhol was the driver?
In other words, when the clothing discrepancy is considered as part of the totality
    of the evidence, as it must be, is, nevertheless, the only reasonable inference
    available one of guilt, that is, that Mr. Bhandhol was the driver of the Acura
    owned by his father at the time of the accident; that it was Mr. Bhandhol who
    departed the accident scene through the church parking lot, and that it was Mr.
    Bhandhol who was arrested by police in the clearing in the woods near the
    church parking lot? The answer, in my view, is yes.
There
    is no other reasonable explanation based on the totality of the evidence,
    notwithstanding the discrepancy in the description of the clothing
.
    [Emphasis added.]

[9]

We see no error in the trial judges analysis and conclusions which were
    open to her on the record.

[10]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

Doherty J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fiddaoui, 2018 ONCA 759

DATE: 20180918

DOCKET: C62653

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Fiddaoui

Applicant/Appellant

Grzegorz Dorsz, for the appellant

Carmen Elmasry, for the respondent

Heard: September 17, 2018

On appeal from the decision of the Summary Convictions
    Appeal Court dated August 15, 2016 by Justice Robert Pelletier of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on October
    21, 2014 by Justice Jean G. Legault of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the concession that the proposed appeal does not raise a
    question of law of importance to the administration of justice.

[2]

We do not agree, however, that the merits of the proposed appeal are
    sufficiently strong to warrant granting leave to appeal. Indeed, we are not
    satisfied there is any merit on the proposed appeal.

[3]

Leave to appeal is refused.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty
    of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.E., 2018 ONCA 740

DATE: 20180910

DOCKET: C65422

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.E.

Appellant

G.E., acting in person

Breana Vandebeek, duty counsel

Nicole Rivers, for the respondent

Heard and released orally: September 5, 2018

On appeal from the finding of guilt entered on March 20,
    2018 and the disposition imposed on April 27, 2018 by Justice Thomas P. Cleary
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

G.E., a youth, was discovered in possession of a loaded handgun and a
    bag containing many rounds of ammunition. He was in the company of
    approximately a dozen other youths.

[2]

After G.E. was charged he was released on a recognizance prohibiting him
    from possessing firearms or ammunition. As the result of an unrelated wiretap less
    than 3 weeks later, G.E., while still a youth, was then found to be in
    possession of a loaded prohibited weapon, a sawed-off shotgun.

[3]

After serving 401 days of related pre-sentence custody G.E. pled guilty
    to three charges from these two events, namely, unlawful possession of a loaded
    handgun contrary to
Criminal Code
, s.95(1); unlawful possession of the
    shotgun contrary to
Criminal Code
, s. 92(1) and breach of recognizance,
    contrary to
Criminal Code,
s.145(3).

[4]

A joint position was presented to the youth court judge for time served.
    That joint position included the allocation of time for pre-sentence custody,
    with no time to be allocated to the breach of recognizance charge.

[5]

The parties agreed that a probationary sentence should also be imposed
    but disagreed on its length. No joint position was offered on the ancillary
    orders that would be made.

[6]

Counsel for G.E. alerted the youth court judge that G.E. intended to
    speak before sentencing, but G.E. was not given the opportunity to do so.

[7]

The youth court judge accepted the joint position of time served, but
    not the allocation. Without inviting further submissions from the parties, the youth
    court judge allocated 3 months of presentence custody to the breach of
    recognizance charge. A 15 month probationary sentence was also imposed, as was a
    7 years weapons prohibition pursuant to the
Youth Criminal Justice Act
,
    s. 51(1).

[8]

G.E. appeals his sentence. He contends that the youth court judge erred
    in not respecting the joint position on the allocation of time served, and by
    failing to grant G.E. the right to speak before his sentencing. G.E. also
    contends that his probationary sentence of 15 months is too long, and that it
    is an illegal sentence for the s. 95 offence, in violation of
Youth
    Criminal Justice Act
s. 42(14). It should have been 12 months. Finally, G.E.
    also argues that the weapons prohibition should have been for 6 years or less
    from the termination of his custodial sentence. This latter submission is tied
    to G.E.s contention that, as a matter of principle, ancillary orders made in
    youth cases should expire by the time the youth record is sealed.

[9]

We agree that the youth court judge should not, in the face of a joint
    sentencing submission, have varied the allocation for time served without
    alerting the parties and giving them an opportunity to be heard. This variation
    did not, however, affect the length of the sentence and does not render the
    sentence imposed unfit.

[10]

Nor
    would we interfere with the sentence because G.E. was not afforded the
    opportunity to speak at his sentencing hearing. We have reviewed the fresh
    evidence affidavit indicating what G.E. would have to say. While he has made
    impressive progress, the sentence imposed remains fit for the serious offences
    G.E. committed. He was not prejudiced by the way the sentencing hearing was
    conducted.

[11]

We
    would set aside the concurrent 15 month probationary term attached to the s.95
    offence and substitute a concurrent probationary term of 12 months. This is
    necessary to bring the sentence into compliance with s. 42(14). We would not,
    however, interfere with the 15 month probationary terms attached to the other
    two offences. The youth court judge determined appropriately that the
    principles of sentencing required a 15 month term of probation, and that is a
    legal sentence for those offences.

[12]

Finally,
    we would not interfere with the seven year weapons prohibition. It is not an
    error in principle to have a weapons prohibition outlive the record retention
    period, and given the seriousness of the weapons offences in this case, the 7
    year prohibition was manifestly appropriate.

[13]

We
    would therefore grant leave to appeal, and set aside the 15 month concurrent
    term of probation imposed on the s.95 offence in Count 1 on information
    17-Y996892. We would substitute a concurrent probationary sentence of 12 months
    from April 27, 2018, imposing the same terms and conditions as those imposed by
    the youth court judge on April 27, 2018. The other grounds of appeal are
    dismissed.

P. Lauwers J.A.

G. Pardu J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. John, 2018 ONCA 702

DATE: 20180904

DOCKET: C63386

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathaniel John

Appellant

Gerald Chan, Stephen Aylward and Janani Shanmuganathan,
    for the appellant

Joan Barrett, for the respondent

Heard: June 27, 2018

On appeal from the conviction entered by Justice
    Jennifer Woollcombe of the Superior Court of Justice on August 3, 2016 and the
    sentence imposed on February 7, 2017, with reasons reported at 2017 ONSC 810.

Pardu J.A.:

[1]

The appellant appeals from both conviction and
    sentence on charges of possession of child pornography. He submits that the
    trial judge erred by failing to exclude the evidence of child pornography found
    on a computer used by him, on the ground that the search of the device was
    unreasonably invasive, and therefore amounted to an unreasonable search
    contrary to s. 8 of the
Canadian
Charter of Rights and Freedoms
.

[2]

As to sentence, he submits that the six-month
    mandatory minimum sentence for possession of child pornography in force at the
    time of his offences
[1]
violates s. 12 of the
Charter
, and that in any event the ten-month sentence of imprisonment (less
    60 days credit for time spent on house arrest) imposed by the trial judge was
    unfit with or without the mandatory minimum.

Background

[3]

In April 2014, Detective Constable Spence of the
    Halton Regional Police Internet Child Exploitation Unit learned that an
    Internet Protocol (IP) address in Halton was associated with 174 files
    believed to contain child pornography. Spence determined from the hash values
    of the 174 files that 7 of the files were videos containing child pornography. A
    hash value is a unique identification number assigned to a file that functions
    like a fingerprint for a file. Police maintain a database of the hash values of
    known child pornography. The other 167 files had names typically associated
    with child pornography.

[4]

Spence asked the internet service provider for
    the name and address of the subscriber assigned to the IP address. He learned
    that the subscriber was the appellants father and that the municipal address was
    for a residence in Oakville. The appellant lived in this home as well as his
    sister.

[5]

Spence applied for a warrant to search the
    residence and any computer system found in the home. He indicated in the
    Information to Obtain a Search Warrant that police would try to minimize the
    scope of the computer search. Specifically, with respect to the scope of the
    proposed search, he stated:

The computer forensic examination will be
    conducted by the qualified technicians of the Halton Police Technological Crimes
    Unit. The examination involves the creation of a complete mirror image of the
    data stored on the devices. I know from my training and experience that this
    type of examination can take several weeks to complete.

Attempts will be made to focus and minimize
    the scope of the forensic examination for the above described data. However,
    for several reasons, a thorough examination of the entire data contained in the
    items will need to be undertaken to locate the sought data.

Firstly, computer searches need to be
    relatively broad in order to cope with the practical realities of an
    ever-changing and developing age of technology. Analysts must be able to adapt
    their investigation to the systems they discover. New or unanticipated
    techniques may be required to respond to new technological challenges.
    Ultimately, it is not feasible to envisage every type of data that would fall
    under the specified categories.

[Secondly], computer files can be disguised in
    any number of ingenious ways, the simplest of which is to give files a misleading
    name (pesto.recipe in lieu of blackmail.photos) or a false extension (.doc in
    lieu of .jpg or .gz); therefore, files names alone are not necessarily
    indicative of their content. Accordingly, an expansive search of the entire
    data content of the items will need to be undertaken to locate the relevant
    data.

It is intended that the forensic analysis will
    include:

·

on-site previewing of the data contained in
    located devices

·

removal of found devices to a forensically
    secure facility for subsequent examination

·

imaging / mirroring of the entire contents of
    the devices for the preservation of data integrity

·

broad previewing of seemingly irrelevant data
    for the purpose of locating relevant data[.]

[6]

The search warrant was issued on May 21, 2014
    and contained the following terms:

Once seized, [computer systems and data
    storage devices] will undergo a computer forensic examination. The examination
    and analysis will be based on the offences set out in this warrant and will [be]
    conducted in relation to the following data:

·

Data relating to child pornography [footnote
    omitted] as defined by the
Criminal Code
.

·

Data relating to the Gnutella 2 Peer to Peer
    Network.

·

Data relating to use, ownership and access of
    the seized items.

·

Data relating to the configuration of the seized
    items.

[7]

Police executed the warrant the next day. They
    found a computer in the appellants bedroom. Detective Constable Mazzuto, an
    officer with technical expertise, conducted an on-site preview of that
    computer. He found files with titles associated with child pornography, but he
    did not view any actual pictures or videos of child pornography during the
    course of his preliminary review. Mazzuto also found evidence of a peer-to-peer
    file sharing program, although it had been deleted. The police seized the
    computer.

[8]

Several months later, police conducted a more extensive
    examination of the seized computer. Mazzuto began the process by copying all of
    the data on the computers hard drive. He then conducted a pre-categorization
    of all the images and videos that were on the hard drive and identified files
    bearing the hash values of known child pornography. He provided the results of
    this pre-categorization to Spence.

[9]

Spence examined the pre-categorized files and
    determined that there were 50 unique images of child pornography on the appellants
    computer.

[10]

The appellant takes no objection to this step,
    but says the next steps taken by the officer went too far.

[11]

First, Spence systematically examined every
    image and video located on the hard drive. He ultimately found 89 unique videos
    containing child pornography. Forty-nine of these videos were found in the
    incomplete download folder of the peer-to-peer file sharing program the
    appellant was using. Spence testified that he could not have narrowed his
    search by searching by hash values alone, because if even one pixel in an image
    had been changed, the hash value would be different. According to his sworn
    statement in the ITO, he could not have relied on file names because a title
    given to a file by a user might not be reflective of the content of the file.

[12]

Second, Spence reviewed the computers internet
    search history. It demonstrated that the user was searching for child
    pornography. The fact that the appellants email account was accessed relatively
    close in time to when files with names suggestive of child pornography were opened
    suggested that the appellant was the person searching for and viewing the child
    pornography.

[13]

In the course of his review of each image and
    video on the computer, as well as the computers internet search history,
    Spence learned of information about the appellant that was unrelated to child
    pornography, such as his interest in computer games and in Star Trek. However, Spence
    did not look at documents or other personal information unconnected to his
    search for images and videos of child pornography and his attempts to identify
    the person responsible.

[14]

Spence ultimately determined that there were 50
    unique images and 89 unique videos amounting to child pornography stored on the
    appellants computer.

The Trial Judges Decision

[15]

At trial, the Crown acknowledged that the
    warrantless request for subscriber information was a
Charter
breach.
    The request for that information was made six weeks before the Supreme Court of
    Canada released its decision in
R. v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212,
holding that there is a reasonable expectation of privacy in this information. In
    these circumstances, the trial judge found this breach to be less serious and determined
    that it did not require the exclusion of evidence.

[16]

The trial judge rejected the appellants
    argument that the manner in which police searched his computer was
    unreasonable. She adopted the test described by Cromwell J. in
R. v. Vu
,
    2013 SCC 60, [2013] 3 S.C.R. 657, at para. 22, that a reasonable search is no
    more intrusive than is reasonably necessary to achieve its objectives and
    concluded that she was not satisfied that police would or should have had the
    ability to narrow the scope of their search of the computer in this case.

[17]

The appellant submits that the trial judge
    conflated the difficulty of imposing pre-search protocols with an after the
    fact assessment of whether the search was unreasonably conducted. A search may
    still be conducted in an unreasonable manner even if authorized by a search
    warrant.

[18]

The appellant points to paras. 72 and 73 of the
    trial judges reasons to support this argument:

But, the Supreme Court of Canada has
    recognized that it is very difficult to impose effective limits, in advance, on
    the search of a computer. As Cromwell J. stated at para. 57 of
Vu
, at
    the point at which police are seeking a warrant and the issuing justice is
    considering imposing parameters on the search to be conducted,

57 an authorizing justice is
    unlikely to be able to predict, in advance, the kinds of investigative
    techniques that police can and should employ in a given search or foresee the
    challenges that will present themselves once police begin their search. In
    particular, the ease with which individuals can hide documents on a computer
    will often make it difficult to predict where police will need to look to find
    the evidence they are searching for. For example, an authorizing justices
    decision to limit a search for child pornography to image files may cause
    police to miss child pornography that is stored as a picture in a
Word
document. In short, attempts to impose search protocols during the
    authorization process risk creating blind spots in an investigation,
    undermining the legitimate goals of law enforcement that are recognized in the
    pre-authorization process. These problems are magnified by rapid and constant
    technological change.

In my view, this was a case in which it was
    appropriate not to place limits on the scope of the police search for evidence
    of the offences. The ITO explained the very broad search that was to be
    conducted and the police were authorized to do this. There is no evidence
    before me that the police would or should have had the ability to narrow the
    scope of their search of the computer in this case.

Analysis

[19]

The trial judge discussed both advance
    restrictions on computer searches and the reasonableness of the manner of
    search. Reading her reasons as a whole, I interpret her reasons as a conclusion
    that the manner of search here was reasonable. I agree with that conclusion.

[20]

Where a user has some child pornography on his
    or her computer, identified by the search methods used initially by police
    here, it is not unreasonable to look at the other image and video files on the
    computer to see if there is more child pornography there. Searching by hash
    value would only uncover known examples of child pornography already in the
    police database and would also miss any of those known examples if the hash
    value had been changed in any way, whether intentionally or not. A search that relied
    on the name attached to a file might not uncover further child pornography
    files as a user could attach any name he or she wished to an image or video or
    folder and that name might not be indicative of its content.

[21]

Given this context, it was reasonable for police
    to look at all image and video files when they were looking for images and
    videos of child pornography. It was also reasonable for them to examine the
    internet search history and the dates and times of access to the appellants internet
    accounts to identify the person searching for child pornography. Here, in
    addition to the appellant, three other persons were potential users of the
    computer, namely the appellants father (the owner of the home and the
    subscriber assigned to the IP address), his sister (who had a user profile on
    the computer) and his sisters boyfriend (who visited the home).

[22]

Moreover, there is no evidence that the police
    looked at documents, banking records or other programs or files unrelated to
    the search for child pornography and the identity of the person in possession
    of that material. The search was appropriately tailored to the type of evidence
    being sought and the offences being alleged.

[23]

As this court noted in
R. v. Jones
,
    2011 ONCA 632, 107 O.R. (3d) 241, at paras. 43-44:

The focus on the type of evidence being
    sought, as opposed to the type of files that may be examined is helpful, it
    seems to me, particularly in cases where it may be necessary for the police to
    do a wide-ranging inspection of the contents of the computer in order to ensure
    that evidence has not been concealed or its resting place in the bowels of the
    computer cleverly camouflaged.

To the extent they are required to examine any
    file or folder on the computer to reasonably accomplish that authorized search,
    the police are entitled to open those files and folders and to examine them, at
    least in a cursory fashion, in order to determine whether they are likely to
    contain evidence of the type they are seeking. [Citations omitted].

[24]

I do not accept the argument that there must be
    prior evidence of concealment of incriminating evidence before police can look
    at all images and videos stored on a computer in this kind of investigation
    where some child pornography has been located on the computer on initial
    examination. Rather, a search of all images and videos is appropriate in an
    investigation like this precisely to determine whether there is more child
    pornography on the computer. To limit police to searches by hash values, file
    names and download folders would be to provide a roadmap for concealment of
    files containing child pornography.

[25]

I also do not accept the argument that the
    search was overbroad because it was not tailored to a date range in terms of
    the files searched. Here the police were looking for images and videos of child
    pornography and evidence that might show who was responsible for that content.
    This was not a broad search of multiple devices or large amounts of data unrelated
    to the specific investigation, such as in
R. v. Sop
, 2014 ONSC 4610,
    at paras.116-149, or
R. v. Marek
,

2016 ABQB 18, at paras.
    120-147.

[26]

Finally, I reject the argument that the search
    of all images and videos here was overly invasive because the vast majority of
    the offending material would have been located using a combination of hash
    value comparison, keyword searching of file name, and searching the file
    folders most likely to contain child pornography. This argument fails because
    it uses the ultimate results or fruits of the search to dictate whether the
    scope of the search was reasonable. Given the limitations of searching only by
    hash value or file or folder name discussed above, hindsight should not be used
    in this way to turn what was once a reasonable search in all the circumstances
    into an unreasonable one.

[27]

The appellant does not argue that the evidence
    should be excluded based on the
Spencer
breach alone. I agree with the
    trial judges conclusion that that breach does not justify exclusion of the
    fruits of the search of the computer under s. 24(2) of the
Charter
.

Mandatory Minimum Sentence

[28]

I need not repeat the analytical framework I summarized
    in
R. v. Morrison
, 2017 ONCA 582, 136 O.R. (3d) 545, at para. 115, leave
    to appeal granted, [2017] S.C.C.A. No. 290, appeal heard and reserved May 24,
    2018,

for determining whether a mandatory minimum sentence violates s.
    12 of the
Charter
.

[29]

The appellant does not argue that the mandatory
    minimum sentence would be grossly disproportionate if applied to him, but
    argues that application of the mandatory minimum leads to grossly
    disproportionate sentences when applied to reasonable hypothetical situations like
    the following:

1)

An 18-year-old who receives and keeps a sext from his 17-year-old
    girlfriend on his phone. The sext is a selfie of the girlfriend.

2)

An 18-year-old who receives a sext from his 17-year-old boyfriend.
    The sext is a 30-second video the 17-year-old secretly recorded of the pair
    engaged in consensual sexual activity.

3)

An 18-year-old whose friend forwards him a sext from the friends
    17-year-old girlfriend without her knowledge. The 18-year-old doesnt forward
    the sext but keeps it on his phone.

[30]

The appellant defines sext as a sexually
    suggestive digital image, video or text message transmitted by cell phone or
    the internet.

[31]

The appellant submits that these are not
    far-fetched or remote hypothetical examples given the pervasiveness of
    sexting among adolescents.

[32]

The appellant points out that it is illogical for
    the law to recognize a 17-year-olds choice to have sexual relations with an 18-year-old
    partner, and to record images of him  or herself for his or her own personal use,
    but to then impose a mandatory six-month jail sentence on the 18-year-old
    partner for possessing the same images sent to him or her by the 17-year-old.
    Equally, the appellant submits that to send an 18-year-old to jail for six
    months for failing to delete a sexually suggestive, unsolicited image on his
    cell phone of a friends 17-year-old girlfriend would be grossly
    disproportionate.

[33]

The Crown does not take issue with the
    reasonableness of the hypotheticals advanced by the appellant. The Crown submits
    in its factum that the three hypotheticals posited by the appellant come
    remarkably close to falling within the exceptions carved out in
Sharpe
for self-expression but does not suggest that the conduct embodied in the
    hypotheticals advanced would not attract criminal liability.   The Crown submits
    that the application of the mandatory minimum to these hypothetical offenders is
    not so excessive as to outrage standards of decency or to be intolerable or
    abhorrent to society.

[34]

In
R. v. Sharpe
,

2001 SCC 2,
    [2001] 1 S.C.R. 45, at para. 105, McLachlin C.J. for the majority of the court
    held that the criminal prohibitions on possession of child pornography went too
    far by criminalizing possession of materials that arguably posed little or no
    risk to children, and in a manner that seriously affected freedom of
    expression. The majority granted a remedy by reading in an exception to the
    prohibition for the following:

1.
Self-created
    expressive material
: i.e., any written material or visual representation
    created by the accused alone, and held by the accused alone, exclusively for
    his or her own personal use; and

2.
Private recordings of
    lawful sexual activity
: i.e., any visual recording, created by or
    depicting the accused, provided it does not depict unlawful sexual activity and
    is held by the accused exclusively for private use (para. 115).

[35]

None of the hypotheticals advanced by the
    appellant would fall within the first exception, as none of these involve
    materials created by the accused alone, and held by him or her alone.

[36]

The majority in
Sharpe
described the
    second exception (the private use exception) as follows, at para. 116:

The second category would protect
    auto-depictions, such as photographs taken by a child or adolescent of him- or
    herself alone, kept in strict privacy and intended for personal use only. It
    would also extend to protect the recording of lawful sexual activity, provided
    certain conditions were met. The person possessing the recording must have
    personally recorded or participated in the sexual activity in question. That
    activity must not be unlawful, thus ensuring the consent of all parties, and
    precluding the exploitation or abuse of children. All parties must also have
    consented to the creation of the record. The recording must be kept in strict
    privacy by the person in possession, and intended exclusively for private use
    by the creator and the persons depicted therein. Thus, for example, a teenage
    couple would not fall within the laws purview for creating and keeping
    sexually explicit pictures featuring each other alone, or together engaged in
    lawful sexual activity, provided these pictures were created together and
    shared only with one another.

[37]

It may be arguable whether the conduct described
    in the first two reasonable hypotheticals comes within the private use
    exception. For example, in the first hypothetical, the exception would have
    applied had the 18-year-old taken the photo that formed the sext. Instead, it
    was a selfie.
[2]

In the second
    hypothetical, the exception would have applied had the 18-year-old consented to
    being recorded. Instead, he was a victim of the surreptitious recording.

[38]

For purposes of my analysis here, I need not
    definitively decide whether the first and second hypotheticals fall within the
    private use exception or whether they are instead on the fringes of criminal
    responsibility. It is clear that the private use exception cannot apply to the
    third hypothetical (18-year-old who fails to delete a sext from a friends
    17-year-old girlfriend that was sent to him without her knowledge).

[39]

I am of the view that the application of the
    mandatory minimum sentence to the offender in the third hypothetical is grossly
    disproportionate. Most members of the community would consider a six-month jail
    sentence a substantial interference with individual liberty and would find it
    intolerable that such a punishment could be applied to this behaviour,
    especially given the number of images/videos involved (one single image), the
    nature of the image in question (lawfully self-created), the manner of
    acquisition (passive recipient) and the nature of the offender (young adult).

[40]

Accordingly, I am of the view that the mandatory
    minimum sentence is grossly disproportionate at least in relation to the
    offender in the third reasonable hypothetical, violates s. 12 of the
Charter
,
    and must therefore be struck down. The Crown acknowledges that the
Charter
violation cannot be saved by s. 1 of the
Charter
.

[41]

The mandatory minimum is entirely unnecessary.
    This court has recently emphasized the importance of denunciation and
    deterrence for any offence involving abuse of a child, and that those
    principles are the primary principles of sentencing applicable for such
    offences involving child pornography:
R. v. Inksetter
, 2018 ONCA 474,
    at para. 16. In another recent decision,
R. v. J.S.
, 2018 ONCA 675,
    this court upheld a sentence of 18 years for sexual abuse of young children,
    making child pornography depicting that abuse, and distribution of that
    material.

Sentence Appeal

[42]

The appellant was sentenced to 10 months jail
    less 60 days credit to reflect conditions of house arrest. He spent an
    additional 24 days in custody before being released on bail pending appeal.

[43]

The appellant submits that the trial judge is
    owed no deference if the mandatory minimum is struck down, arguing that the
    mandatory minimum created an inflationary effect on the sentence. The appellant
    submits that a 90-day sentence would be appropriate, and asks this court to
    substitute a sentence of time served.

[44]

The appellant was 29 years old at the time of
    the offence and 31 years old at the time of sentencing. He has suffered from
    serious mental health problems for which he was inadequately treated. At times
    he was suicidal. He has pursued a course of psychotherapy with a view to dealing
    with his problems. The appellant is employed and is continuing counselling. He
    is remorseful, and no risk factors have been identified requiring further
    treatment.

[45]

Despite these mitigating factors, the size and
    nature of the appellants collection is a seriously aggravating factor. The
    appellant had possession of 89 unique videos and 50 unique images of child
    pornography. He actively sought out these images and videos. His collection included
    images of children as young as four years old, and some perhaps as young as two
    or three years old, subjected to anal and vaginal penetration with sex toys and
    adult penises. This is terrible abuse of young children. In
R. v. Lynch-Staunton
,
    2012 ONSC 218, at para. 57, Ratushny J. pointed out that:

[i]t is to be understood by those trolling the
    Internet for child pornography that these pictures are acts of violence against
    children, that viewing and possessing them perpetuates the original violence,
    that viewing and possessing them encourages new child victims, and that as a
    consequence, jail terms will result.

[46]

But for the appellants very considerable
    efforts at rehabilitation, the sentence imposed could have been much higher.

[47]

The sentence imposed was fit and proportionate
    to the gravity of the offence and the degree of responsibility of the offender
    without regard to the mandatory minimum. I would dismiss the appeal from
    sentence.

Disposition

[48]

I would dismiss the appeal from conviction,
    grant leave to appeal from sentence, declare that the mandatory six-month
    minimum sentence under s. 163.1(4)(a) of the
Criminal Code
, in force
    from August 9, 2012 to July 16, 2015, is of no force and effect, but dismiss
    the appeal from sentence.

G. Pardu J.A.

I agree David Watt
    J.A.

I agree L.B. Roberts
    J.A.

Released: September 4, 2018

[1]

On July 17, 2015, the mandatory minimum sentence for these
    offences was increased to one year in jail:
Tougher Penalties for Child
    Predators Act
, S.C. 2015, c. 23, s. 7(2).

[2]
I pause here to note that a trial court in another province has concluded that,
    when interpreted purposively, the private use exception should apply to the A
    records A for B scenario: see
R. v. Keough
, 2011 ABQB 48, at paras.
    273-77.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Klickermann, 2018 ONCA 739

DATE: 20180910

DOCKET: C63366

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Klickermann

Appellant

Justin Klickermann, acting in person

Hannah Freeman, for the respondent

Heard and released orally: September 4, 2018

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 9, 2017 by Justice Michel Z. Charbonneau of the
    Superior Court of Justice, dismissing the appeal from the conviction entered on
    December 9, 2015 by Justice Franco Giamberardino of the Ontario Court of
    Justice.

REASONS FOR DECISION

[1]

Mr. Klickermann seeks leaves to appeal a summary conviction appeal court
    decision denying his appeal from a trial decision. His main complaint is that the
    trial judge relied upon the testimony of one officer to find reasonable grounds
    for Mr. Klickermanns impaired driving arrest, despite the failure of another
    officer to note a number of the grounds of impairment testified to by the first
    officer.

[2]

The summary conviction appeal court denied Mr. Klickermanns appeal. The
    summary conviction appeal judge found that the trial judge recognized the
    discrepancies between the two officers and was entitled to accept the evidence
    based on the different vantage points the two officers had.

[3]

Mr. Klickermann argues that the summary appeal court judge erred by
    failing to find the trial judges decision to be unreasonable and based on a
    misapprehension of the evidence. He also attempts to raise new grounds of
    appeal here not raised before the trial court or the summary conviction appeal court,
    including bolus drinking, and the denial of his
Charter
motion.

[4]

In addition, he brings a fresh evidence application in support of a new
    claim made for the first time before this court that he did not receive
    disclosure of the certificate of a qualified breath technician.

[5]

We see no basis for granting leave to appeal.

[6]

Mr. Klickermanns main grounds of appeal, relating to the decision by
    the trial judge to believe the testimony of the arresting officer, do not raise
    arguable points of law that have significance to the administration of justice.
    Mr. Klickermann is essentially asking this court, as he asked the summary
    conviction appeal court, to retry the case, which is not the role of an
    appellate court. The summary conviction appeal court properly recognized that
    findings of credibility are for the trial judge to make. We see no basis for
    interfering.

[7]

The attempt by Mr. Klickermann to raise new grounds of appeal before
    this court is improper. There is no foundation before us for finding that these
    grounds of appeal could not have been raised below with due diligence.

[8]

Leave to admit fresh evidence is denied and leave to appeal is denied.

P. Lauwers J.A.

G. Pardu J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omar, 2018 ONCA 787

DATE: 20180927

DOCKET: C63343

Hourigan, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Omar

Appellant

Mark Halfyard, for the appellant

Diana Lumba and Bradley Reitz, for the respondent

Heard: September 26, 2018

On appeal from the convictions entered on October 24,
    2016 by Justice Joseph De Filippis of the Ontario Court of Justice, with
    reasons reported at 2016 ONCJ 633.

REASONS FOR DECISION

[1]

Mr. Omar appeals his conviction on one count of possession for the
    purpose of trafficking and one count of possession of proceeds of crime.  At
    the conclusion of the hearing, we dismissed the appeal with reasons to follow.
    We now provide those reasons.

[2]

The trial proceeded as a blended
voir dire
. There were two
    separate
voir dire
components. First, there was an application in
    which the appellant asserted that the police violated his ss. 8 and 9
Charter
rights when they arrested and searched him on the basis of a tip from a
    confidential informant.  The appellant submitted that the evidence seized
    should be excluded pursuant to s. 24(2) of the
Charter
.

[3]

Second, there was an application brought by the respondent to admit
    certain calls made to cellular phones seized from the appellant after his
    arrest.  The respondent submitted that the calls were admissible pursuant to
    the principled exception to the hearsay rule.

[4]

The trial judge rejected the appellants
Charter
challenge.
    The trial judge also admitted the evidence of the telephone calls.  The trial
    judge convicted the appellant and sentenced him to 18 months in custody.

The facts

[5]

The background facts can be stated briefly.  About a month before the appellants
    arrest, the police received a tip from a confidential informant that a black
    male with a big beard known as J.J. sold crack cocaine.  The tipster told the
    police that J.J. drove a black Jeep and provided the licence plate number.  The
    confidential informant had been used in the past and he or she had given
    reliable information.

[6]

About a month later, the same police officer who had received the tip
    spotted the black Jeep in an area of St. Catherines known for drug activity and
    prostitution.  The driver parked the Jeep some distance from a building and
    then went inside.  The driver matched the description of J.J.  A few minutes
    later, the driver returned to the Jeep and drove off.

[7]

The officer called for back-up and began surveillance on the Jeep.  The
    Jeep next went to another building where it again parked some distance from the
    entrance.  The Jeep left a short time later.  The police followed the vehicle
    to a motel in Niagara Falls.  The motel was also in a known drug area.  The
    Jeep took a back way to the motel, which the police officers thought was
    consistent with the driver being surveillance conscious.  Once again, the
    driver parked some distance from the motel.  The driver went to a room, emerged
    a few minutes later and returned to his vehicle while talking on his cell
    phone.

[8]

At this point, the police decided to arrest the driver.  They blocked in
    the Jeep and proceeded to effect the arrest.  On arrest, the appellant was
    found with a cell phone and $100 on his person.  A search of the Jeep revealed
    three more cell phones, a knife and $1,175 in Canadian currency. At the police
    station, the appellant was strip searched.  The police located 20 grams of
    crack cocaine concealed in his underwear.

[9]

During the course of the arrest, calls came in to at least two of the
    cell phones.  A police officer answered three calls on one of the cell phones
    and one call on another.  In each instance, the call was brief.  Language was
    used that indicated that the caller was looking to purchase drugs.  In two of
    the calls, the callers expressly referred to J.J.

[10]

The
    police did not make any effort to locate and interview these four callers, even
    though three of the callers showed up on call display with either a name or a name
    and telephone number.  No efforts were made to obtain authorization to search
    the telephones to see if there was contact information in the phones that might
    match to these callers.  Further, the evidence from the police was that they
    had made efforts in the past to convince callers in such situations to be
    witnesses but they had never had any success in so doing.

The arrest and search

[11]

The
    trial judge correctly applied the test from
R. v. Debot
, [1989] 2
    S.C.R. 1140 in his consideration of the arrest and search based on the
    information provided by the confidential informant.  The trial judge concluded
    that the information provided was compelling, that the confidential informant
    had a measure of credibility and that the information provided was corroborated
    by the police surveillance of the appellants activities.

[12]

We
    do not see any error in the trial judges conclusions in this regard.  The
    information provided by the confidential informant was detailed, both with
    respect to the description of J.J. and also with respect to the black Jeep,
    including the licence plate number.  The informant had provided reliable
    information to the police in the past.  And the police surveillance of the
    appellant did provide corroboration for the information that the confidential
    informant had provided.

[13]

It
    is the cumulative effect of the three factors in
Debot
that is
    important.  On this point, it is worth repeating what Lamer J. said in
Debot
,
    at p. 1168:

Rather, I concur with Martin
    J.A.'s view that the "totality of the circumstances" must meet the
    standard of reasonableness. Weaknesses in one area may, to some extent, be
    compensated by strengths in the other two.

The drug calls

[14]

The
    other issue is the admission of the so-called drug calls.  This issue is
    largely determined by the decision in
R. v. Baldree
, 2013 SCC 35,
    [2013] 2 S.C.R. 520.  In that case, the court overturned the trial judges
    admission into evidence of a single telephone call that suggested that the
    accused was a drug dealer.  In doing so, however, the court was clear that it
    was not concluding that such evidence could never be properly admissible under
    the principled exception to the hearsay rule.  In his reasons, Fish J. said, at
    para. 70:

In concluding as I have, I take
    care not to be understood to have proposed a categorical rule for drug purchase
    calls. Although the call at issue here does not withstand scrutiny under the
    principled approach, this need not always be the case.

[15]

The
    court went on in
Baldree
to identify circumstances where the
    principled exception to the hearsay rule would permit the admission of this
    type of evidence.  In particular, the court identified the number of calls as a
    significant factor in that analysis.

[16]

In
    reaching his conclusion to admit the evidence, the trial judge undertook the
    type of analysis contemplated in
Baldree
.  He concluded that the
    evidence was reliable because of its connection to the information provided by
    the confidential informant and the observations made by the police of the
    appellants activities, all of which suggested drug dealing.  While the trial
    judge considered the necessity requirement to be more difficult, he concluded
    that it was made out because of the common sense reality that the callers would
    be unlikely, if located, to assist the police, coupled with the experience of
    the police officer in this case regarding the lack of cooperation of
    individuals in such circumstances.  The trial judge did note that the necessity
    requirement was not as strongly made out as the reliability requirement, but he
    also noted that any weaknesses in the former could be compensated by strengths
    in the latter.

[17]

In
    our view, the situation here mirrors the situation contemplated in
Baldree
at paras. 71-72.  As noted therein, the quantity of calls can suffice to
    establish reliability.  Here there were four separate calls, all of them
    clearly revealing efforts by the callers to purchase drugs.  As noted in
Baldree
,
    it would defy belief that all of these calls were erroneous or
    misunderstood.  This is the same conclusion that was reached by this court in
R.
    v. Bridgman
, 2017 ONCA 940, 138 O.R. (3d) 721 at para. 56 and in
R. v.
    Malcolm-Evans
, 2016 ONCA 28, at para. 7.

[18]

In
    a similar fashion, the number of calls can also satisfy the necessity
    requirement.  As Fish J. said in
Baldree
, at para. 72:

The Crown cannot be expected, where there are numerous
    declarants, to locate and convince most or all to testify at trial

[19]

The
    failure of the police to undertake any efforts to locate any of these callers
    risks undermining a conclusion that the threshold necessity requirement is made
    out.  However, that risk is avoided by the particular circumstances of this
    case, notably, the number of calls received, that they were received in a short
    time frame (i.e. within minutes of each other), the specific contents of the
    calls clearly being to purchase drugs, and the unchallenged evidence of the
    police witness that prior efforts to enlist drug callers as witnesses had
    proved futile.

Conclusion

[20]

It
    is for these reasons that the appeal was dismissed.

C.W.
    Hourigan J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Romano, 2018 ONCA 754

DATE: 20180914

DOCKET: M49590 (C65842)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Remo Romano

Applicant

Frank Addario and James Foy, for the applicant

Holly Loubert, for the responding party

Heard and released orally: September 13, 2018

ENDORSEMENT

[1]

Mr. Romano seeks bail pending appeal pursuant to
Criminal Code
,
    s. 679(3). A police officer, he was convicted by a jury of dangerous driving
    causing death while on duty, and sentenced to eight months in prison.

[2]

The Crown opposes Mr. Romanos release. It agrees that there is
    absolutely no basis for fearing that Mr. Romano will fail to attend court as
    required, or will commit further offences. It argues, however, that his grounds
    of appeal are without merit and that the public confidence in the
    administration of justice is best served if he is not released. I do not agree.

[3]

Although the Crown has made artful submissions in favour of denying Mr.
    Romanos grounds of appeal, his grounds of appeal do not warrant a prejudgment
    of no merit. The grounds of appeal in this case relate to sufficiency  the
    sufficiency of the focus on the dangerous driving as opposed to the
    consequences of the driving, and the sufficiency of the guidance provided on
    the meaning of marked departure. These grounds of appeal cannot be summarily
    dismissed as pointless and unarguable. They warrant close examination on the entire
    record. In my view, they pass the not frivolous standard.

[4]

Nor do I believe that the public interest is best met by requiring Mr.
    Romano to begin if not complete serving his sentence of incarceration before he
    has had an opportunity to have his conviction reviewed.

[5]

I am mindful that this case involves the death of an innocent member of
    our society. In that important sense, the crime Mr. Romano has been convicted
    of is obviously serious. As the Crown conceded, however, Mr. Romanos crime
    does not warrant a lengthy punitive sentence. The Crown asked for a sentence of
    one year in jail. And, as I have said. Mr. Romano has demonstrated that his
    grounds of appeal are worth listening to.

[6]

In my view, Mr. Romano has established that a reasonable member of the public
    would understand that, in this case, the interests of justice are best served
    by giving Mr. Romano an opportunity to challenge this life-altering conviction
    before the sentence imposed is enforced.

[7]

He will be released on the terms of a bail release order that has been
    agreed to.

David M. Paciocco J.A.