COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Glasner, 2013 ONCA 321

DATE: 20130514

DOCKET: C54807

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salim Richard Glasner

Appellant

Salim Richard Glasner, in person

Scott C. Hutchison, duty counsel

Thomas C. Lemon, for the respondent

Heard: April 17, 2013

On appeal from the sentence imposed on November 29, 2011
    by Justice Denis Power of the Superior Court of Justice, sitting without a
    jury.

Pepall
    J.A.:

[1]

The appellant pleaded guilty and was convicted of conspiring to traffic
    cocaine and oxycodone, committing an indictable offence for the benefit of a
    criminal organization, and failing to comply with probation orders.

[2]

The sentencing judge sentenced the appellant to three and a half years imprisonment
    on both of the conspiracy to traffic counts and to 60 days imprisonment for
    each of three failures to comply with probation.  All five of these sentences
    were to run concurrently. He also sentenced the appellant to three and a half
    years on the criminal organization charge, such sentence to be served
    consecutively as required by s. 467.14 of the
Code
. This resulted in a
    global sentence of seven years. He gave the appellant credit for 24 months of
    presentence custody on a two for one basis.

[3]

The appellant appeals his sentence. The issue of parity was the focus of
    the appellants submissions. In particular, he argued that the sentencing judge
    failed to give parity with the sentence of a co-accused, Steve Mavis.

Sentences of Co-Accused

[4]

Ramez Srouji, Billy Joe Krieger, Mavis and the appellant were involved
    in the sale of drugs. The charges they faced, and their subsequent convictions,
    arose from an undercover investigation into their activities. The various
    offences were committed between January 1 and October 15, 2009.

[5]

Initially, the appellant was charged jointly with Srouji and Krieger in
    a 74-count indictment. Srouji, the head of the criminal organization, pleaded
    guilty and received a ten year global sentence pursuant to a joint submission.
    The sentencing judge in that case described the sentence as being the minimum
    period of incarceration that was appropriate.

[6]

Krieger, who was also a principal of the criminal organization, pleaded
    guilty to charges similar to those of the appellant and received a global
    sentence of seven years. The transcript of his sentencing proceeding was
    unavailable before the sentencing judge. Before this court, the appellant
    elected to proceed without the Krieger transcript.

[7]

Mavis was lower in the chain of command than Srouji and Krieger. Mavis
    was arrested on June 19, 2009 and found in possession of 17.6 grams of crack
    cocaine. He pleaded guilty to possession and received a sentence of 18 months
    imprisonment. In November 2009, he was charged with conspiracy to traffic
    cocaine between January 1, 2009 and October 15, 2009, and that between those
    same dates, he committed an indictable offence for the benefit of a criminal
    organization. In August 2010, he pleaded guilty to the two additional charges. The
    convictions all arose from Mavis involvement in the sale of cocaine in Ottawa and
    Vancouver between May 28 and July 11, 2009.

[8]

The judge who sentenced Mavis, was convinced that while Mavis had a
    significant criminal record, he had made a genuine decision to change his life.
    The judge stated that absent Mr. Mavis efforts at rehabilitation, the
    sentence proposed by the Crown of five to seven years in jail would have been
    the appropriate sentence to address the principles of general and specific
    deterrence and denunciation. He decided that a sentence of four and a half
    years including pre-sentence custody of five to six weeks was appropriate for
    the conspiracy count and four years for the involvement in a criminal
    organization. They were ordered to be served concurrently.

Sentencing Hearing

[9]

At the appellants sentencing hearing, defence counsel submitted that
    the proper range for the appellant was between three and seven years
    imprisonment. He submitted that the appropriate sentence would be a global
    sentence of four and a half years imprisonment, with two for one credit for 24
    months of pre-sentence custody.

[10]

The
    Crown sought a global sentence of eight years less time spent in pre-trial
    custody on a one-to-one basis. The Crown submitted, and the sentencing judge
    accepted, that Mavis sentence should be considered to be an effective global
    sentence of six years imprisonment consisting of the 18 months plus the four
    and a half years.

Discussion

[11]

In
    my view, the sentencing judge made no error in principle; the sentence was
    within the appropriate range; and the principle of parity was properly
    considered and applied. In crafting a fit sentence, the sentencing judge considered
    the details of the sentences imposed on the co-accuseds.

[12]

It
    was open to him to treat Mavis convictions as arising from the same series of
    events and to give the appellant a longer sentence than that of Mavis.  Unlike
    Mavis, the appellant pleaded guilty to trafficking in oxycodone and to three
    charges of failure to comply. Also unlike Mavis, the appellants guilty plea
    came at a later stage in the proceedings.  Moreover, in this case, the
    sentencing judge properly recognized that the criminal organization offence
    required a consecutive sentence.

[13]

The
    sentencing judge considered the seriousness of the offences, the appellants
    lengthy and relevant criminal record that included convictions for drug offences
    and possession of firearms, and that he had spent 20 of his 42 years in
    custody. Furthermore, he continued to commit these offences while he was
    serving an intermittent sentence.

[14]

In
    my view, the sentencing judge made no error in principle and I see no reason to
    interfere with the sentence imposed.  The sentence was fit.

[15]

Leave
    to appeal sentence is granted and the appeal is dismissed.

Released:  May 14, 2013 RGJ                    S.
    Pepall J.A.

I
    agree R.G. Juriansz J.A.

I
    agree J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Grewal, 2013 ONCA 291

DATE: 20130501

DOCKET: C55959

Doherty, Laskin and LaForme JJ.A.

Her Majesty the Queen

Respondent

and

Shubhdeep Grewal

Appellant

Lakhwinder Sandhu, for the appellant

Peter Scrutton, for the respondent

Heard:  May 1, 2013

On appeal from the conviction entered by Justice Ian B.
    Cowan, of the Ontario Court of Justice, dated June 12, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We think the evidence on the theft charges was overwhelming.  We are
    also satisfied that there was a basis upon which the trial judge could infer
    the requisite knowledge as to the contents of the trailer.  We see no error in
    the trial judges reasons.

[2]

We are, however, satisfied that the trial judge should have
Kienappled

    the conviction on the possession charge relating to the truck (count 4) given
    the conviction on the charge of theft of the same truck (count 1).  Count 4
    should be stayed.  Consequently, the appeal is allowed to that extent.  The
    sentence on count 4 is set aside reducing the total fine by $1,250.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Ladouceur, 2013 ONCA 328

DATE: 20130521

DOCKET: C54831

Simmons and Hoy JJ.A. and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Ladouceur

Respondent

David Finley, for the appellant

Philip B. Norton, for the respondent

Heard: December 4, 2012

Application by the Crown for leave to appeal and, if
    leave is granted, appeal from the judgment of Justice Mark Edwards of the Superior
    Court of Justice dated December 7, 2011, affirming the Order of Justice Nancy
    Dawson of the Ontario Court of Justice dated November 9, 2010, quashing an
    information.

Speyer J. (
ad hoc
):

[1]

What effect does non-compliance with s. 508 of the
Criminal Code

have on the validity of an information? Is the information a nullity,
    resulting in loss of jurisdiction over the offence, or does non-compliance with
    s. 508 simply result in a loss of jurisdiction over the person? These questions
    of law are at the heart of this appeal.

[2]

There has been a significant lack of judicial consensus on the effect of
    non-compliance with s. 508, illustrated by multiple conflicting decisions in
    both the Superior Court of Justice and the Ontario Court of Justice. The issues
    of law in this appeal are matters of general importance to the administration
    of criminal law and require clarification. Leave to appeal is granted.

FACTS

[3]

On October 30, 2009, the respondent was stopped by police and charged
    with care and control over 80. He was released from the police station on a
    promise to appear that required him to attend court at the Ontario Court of
    Justice in Barrie on Monday, December 28, 2009. The officer who issued the
    promise to appear did not foresee that court was not scheduled to sit that day:
    Monday, December 28
th
was a non-juridical day due to Christmas
    falling on Friday the 25
th
and Boxing Day on Saturday the 26
th
.

[4]

On December 4, 2009, twenty-four days before the respondent was required
    to appear in court, the information was sworn by a police officer before a
    justice of the peace. The same day, the same justice issued a summons that
    required the respondent to appear in court on a new return date of December 21,
    2009. While it is not entirely clear from the record, it is reasonable to infer
    that the justice was alert to the fact that court was not scheduled to sit on
    December 28, 2009. Accordingly, rather than confirm the promise to appear, the
    justice decided to substitute a summons to compel the respondent to attend
    court on a different date.

[5]

Where an accused is released on a promise to appear prior to the laying
    of the information, s. 508 of the
Criminal Code
provides for judicial
    screening of the promise to appear before the accused is required to attend at
    his or her first court appearance. Once the information is sworn, s. 508
    provides the justice of the peace with the following statutory options:

i.

to confirm the promise to appear issued by the police, by so endorsing
    the information (which includes ticking off the appropriate box on the face of
    the information) (s. 508(1)(b)(i));

ii.

to cancel the promise to appear and issue a summons or warrant
    compelling the citizen to attend court and endorse on the warrant or summons
    that the promise to appear has been cancelled (s. 508(1)(b)(ii)); or

iii.

where the judicial officer considers that the case is not made out, to
    cancel the promise to appear altogether and cause the citizen to be notified
    forthwith of the cancellation (s. 508(1)(c)).

[6]

In the instant case, the justice did not confirm the promise to appear,
    presumably because the return date on the promise to appear fell on a
    non-juridical day. Accordingly, the specific box on the front page of the
    information indicating that the process is confirmed is blank and that part of
    the information which provides for the signature of the justice is also blank.

[7]

Instead, the justice sought to substitute a summons with a new return
    date to compel the respondents first appearance in court. The flaw in the
    confirmation process stems from the justices failure to endorse on the summons
    that the original promise to appear was cancelled (see s. 508(1)(b)(ii)).

[8]

On December 21, 2009, in accordance with his summons, the respondent
    personally appeared in the Ontario Court of Justice. Although the respondent
    had retained counsel, counsel was unable to attend at the first appearance;
    instead, duty counsel spoke to the matter on behalf of the respondent. The
    transcript of the respondents first appearance discloses that the Crown
    elected to proceed by way of summary conviction and that Crown disclosure had
    been provided. Not surprisingly, with the respondents counsel not in
    attendance, there was no mention of jurisdictional issues.

[9]

The case was remanded on four further occasions before the trial date of
    November 9, 2010. The first complaint concerning the failure to comply with the
    confirmation process took place at trial. Prior to arraignment, the respondents
    counsel brought a
Gougeon
 motion before Dawson J. arguing,
    successfully, that the failure to adhere to the statutory options set out in s.
    508 deprived the court of jurisdiction over the offence. Dawson J., alive to
    the conflicting authorities, ruled that the
obiter dicta
of Morden
    J.A. in
R. v. Gougeon
(1980), 55 C.C.C. (2d) 218 (Ont. C.A.),
    indicating that a failure to confirm process results in loss of jurisdiction
    over the offence, is the authoritative statement of the law in Ontario, and quashed
    the information for want of compliance with the confirmation process.

[10]

The
    Crown appealed. Edwards J. dismissed the appeal, concluding:

The learned justice was quite correct in my view to follow
Gougeon
.
    If
Gougeon
is not to be followed in the future, it will require a
    decision of our Court of Appeal or an amendment to the
Criminal Code
.

Two divergent lines of authority

(1)

The
Gougeon
line of cases

[11]

Many
    judges in this province have felt bound by, and have followed, the
obiter
    dicta
expressed in
Gougeon
at pp. 227-28:

Accepting the principle that process is not essential to the
    jurisdiction of the Court (although with respect to some aspects of process
    this statement is probably too broad, as I shall indicate) and that its
    purpose, as far as we are concerned in these matters, is to bring the accused
    before the Court, I am not able to accept the submissions made on behalf of the
    accused persons. The situation would be otherwise, of course, if the objections
    related to defects of a jurisdictional nature  depending on the nature of the
    defect and when the objection is made.

While this is not intended to be an exhaustive list of
    jurisdictional defects respecting process to which a valid objection may be
    made, I would also include a failure to obtain prior judicial sanction under
    ss. 455.3(1) [now s. 507]
[1]
or 455.4(1) [now s. 508] of the
Code
, where the Crown purports to rely
    upon the kinds of process referred to in those provisions to bring the accused
    before the Court. I appreciate that there is not judicial unanimity on this
    point but it appears to me that the fundamental purpose of these provisions,
    which is to protect persons from having to appear in Court to answer charges
    where a judicial officer does not consider that a case for the issuing of
    process has been made out, would be thwarted if the law did not allow their breach
    to be raised on a timely objection to the Courts jurisdiction. In my view, the
    legislative policy underlying these provisions overrides the principle of
    acquisition of jurisdiction by mere appearance.

[12]

For
    example, in
R. v. Smith
, [2008] O.J. No. 381 (S.C.), Belobaba J. of
    the Superior Court of Justice, following
Gougeon
,

agreed that
    the failure to confirm the form of release on the information as required by s.
    508(1)(b)(i) resulted in a loss of jurisdiction over the offence, and
    accordingly ruled that the information was properly quashed for jurisdictional
    defect. In arriving at his conclusion, Belobaba J. recognized but distinguished
    a competing line of cases arriving at a contrary conclusion. He found the
    authority of
Gougeon
to be strong and compelling, no doubt because of
    the thoroughness of Justice Mordens analysis in
Gougeon
and because
    of the composition of the Court
[2]
(at para. 8). Moreover, like Edwards J. in the present case, Belobaba J. was of
    the view that a departure from the
Gougeon
dicta
would require
    a decision from this court to change the law.

[13]

Similarly,
    A. Campbell J. in
R. v. Sandoval
, [2000] O.J. No. 5591 (S.C.), at
    para. 1, citing
Gougeon
, was not persuaded that it was open to him to
    set aside the settled judicial understanding in this province that
    noncompliance with Code s. 508  is capable of affecting the jurisdiction of
    the trial judge to enter upon a trial.

[14]

Smith
,
Sandoval
and the present appeal are but a small sample of cases that
    illustrate the important pedigree accorded to the
Gougeon

dicta
and its influence in determining much of the s. 508 jurisprudence of this
    province where courts have found that a deficiency in the confirmation process
    does affect the validity of an information.

(2)

The Oliveira line of authority

[15]

A

second body of authority has confronted and rejected the view that a defect
    in the confirmation process affects the validity of an otherwise valid
    information. Two recent decisions declining to follow the
Gougeon
line
    of cases are Code J.s decision in
R. v. Millar
, 2012 ONSC 1809, 285
    C.C.C. (3d) 208, and Trotter J.s decision in
R. v. Duran
, 2011 ONSC
    7346, 285 C.C.C. (3d) 46. These decisions draw upon the
dicta
of
    Doherty J.A. in
R. v. Oliveira
, 2009 ONCA 219, 243 C.C.C. (3d) 217, at
    para. 30:

The purpose of the promise to appear is to secure the initial
    attendance of the accused in court. Subsequent court attendances are pursuant
    to court orders.
A defect in the promise to appear, or the process
    required to confirm a promise to appear, will not affect the validity of the
    information charging the offences referred to in the promise to appear. Nor
    will those defects affect the Crowns ability to proceed on the charges
    referred to in the promise to appear, or the ultimate disposition of those
    charges
: see
Criminal Code
, ss. 485(2), (3). In short, after the
    first appearance of an accused, the promise to appear is largely irrelevant to
    the criminal process. [Emphasis added; footnotes omitted.]

ANALYSIS

[16]

More
    than four decades ago, Parliament enacted the
Bail Reform Act
, S.C.
    1970-71-72, c. 37, which conferred upon police, in appropriate circumstances,
    the power to release a citizen following his arrest and to compel his
    attendance in court. A promise to appear, like an appearance notice, is a form
    of process that gives discretionary powers to the police to release a citizen
    in advance of any judicial scrutiny.

[17]

Where
    a promise to appear is issued before the swearing of an information, as
    occurred in this case, two requirements must be met before the accused is legally
    compelled to attend at his or her first court appearance. First, s. 505 of the

Code
requires that an information be laid as soon as practicable
    and, in any event before the time stated in the  promise to appear. Second,
    the issuance of process must be properly confirmed by a justice of the peace
    under s. 508 of the
Code
.

[18]

In
    the event of a failure to comply with the time limit for laying an information
    under s. 505, the law is well settled that the promise to appear is defective
    and non-compliance with s. 505 provides a complete defence to a charge of
    failure to appear as directed by the promise to appear. However, the defect
    does not affect the validity of the information. In a nutshell, jurisdiction is
    lost over the person, but not over the offence; that is, the validity of the
    information survives a defect in the process: see
R. v. Naylor
(1978),
    42 C.C.C. (2d) 12 (Ont. C.A.) and
R. v. Markovic
(2005), 200 C.C.C.
    (3d) 449 (Ont. C.A.).

[19]

So,
    if an information survives a defect in the time limit imposed by s. 505, the
    crucial issue raised in this appeal is whether there is any reason, based in
    logic or policy, why a deficiency in the confirmation process set forth in s.
    508 ought to operate differently so as to nullify a valid information. I am of the
    view that a defect in the confirmation process does not affect the validity of
    an information. The legal consequence of a deficiency in the confirmation
    process set forth in s. 508 is to provide a complete defence to a charge of
    failing to appear as directed by the promise to appear and to prohibit a
    warrant from issuing for the accuseds arrest. A failure to conform to the
    requirements of s. 508 results in a defect in the process and a loss of
    jurisdiction over the person; it does not result in loss of jurisdiction over
    the offence. I come to this conclusion for several reasons.

[20]

First,
    I agree with Trotter J. in
Duran
, at para. 11, as to the harmonious
    relationship between ss. 505 and 508. In view of the close connection between
    these two sections, he reasoned that a flaw in the confirmation process in s.
    508 should not produce a different result than that flowing from a deficiency
    in respect to s. 505. Trotter J. put it this way:

[T]hese sections must be considered together, hand-in-hand.
    Section 505 imposes a temporal requirement for swearing informations, not for
    its own sake, but for the purpose of ensuring that the confirmation process
    takes place in a timely fashion. Practically speaking, the swearing of the
    information (s. 505) and the confirmation process (s. 508) take place virtually
    simultaneously. Deficiencies touching on either aspect of this procedure should
    not lead to different results in terms of whether the state should be
    prohibited from continuing with a prosecution.

[21]

Moreover,
    just as ss. 505 and 508 should be considered together, hand-in-hand, there is
    also a significant overlap between ss. 507 and 508. Both sections govern the
    issuance of process in the case of police-laid informations. In the case of s.
    507, a justice issues process (a summons or a warrant) after the information
    has already been laid. With respect to s. 508, the laying of the information
    and the confirmation process occur subsequent to process having been issued by
    police. The main difference between the sections is the order in which events
    take place. In one case, the information is laid prior to the issuance of
    process; in the other, process is issued and then the information is laid and
    the process confirmed.

[22]

In
    the case of a s. 507 deficiency, the law is clear that an information is not
    rendered a nullity for want of process. In
R. v. Allen
(1974), 20
    C.C.C. (2d) 447 (Ont. C.A.), two informations were laid by a complainant and a
    hearing was conducted before a justice of the peace. The justice, after hearing
    the allegations, refused to issue process, specifically, a summons. The justice
    also purported to cancel the informations.

[23]

This
    court held that even though a justice of the peace, acting judicially, refused
    to issue a summons, the informations remained valid and, absent an abuse of
    process, the complainant was entitled to appear before another justice to
    request, on evidence presented, the issuance of a summons.

It is
    difficult to rationalize how a valid information can survive a failure of
    process under s. 507 and yet be considered a nullity for want of confirmation
    under s. 508.

[24]

In
    sum, s. 508 must be interpreted in light of the courts treatment of ss. 505
    and 507. The failure to follow the requirements of either of those provisions
    does not invalidate the information. I cannot see a reason for treating a
    failure to follow the requirements of s. 508 any differently.

[25]

Second,
    s. 508 has an important but limited purpose. Until the confirmation process is
    complete, a promise to appear does not bind an accused person. The judicial
    screening under s. 508 is aimed at protecting an accused from an unwarranted
    court appearance:
Gougeon
, at p. 227;
Millar
, at para. 48. In
    this way, the provision is a key accountability-enhancing feature of the
    police bail powers:
Duran
, at para. 5. For example, in appropriate
    circumstances, a justice may cancel the promise to appear altogether. Or, as in
    the present case, cancel the promise to appear and substitute a summons because
    no court was scheduled to sit on the return date on the promise to appear. What
    a justice scrutinizing the confirmation process does not have is the power to
    dismiss the charge.

[26]

If
    an accused is arrested and held for a bail hearing, no jurisdiction exists for
    the justice presiding at the bail hearing to inquire into the sufficiency of
    the allegations and quash the information or dismiss the charge. In such
    circumstances, there is no need to confirm process because the accused is
    already before the court:
R. v. Whitmore
(1987), 41 C.C.C. (3d) 555
    (Ont. H.C.J.), at p. 561. As Crown counsel argues in this appeal, it would be
    an incongruous situation that a flawed confirmation process could invalidate an
    information for want of jurisdiction, thereby terminating a criminal
    proceeding, yet, in the circumstances of an accused held for a bail hearing, a
    review of an informants allegations by the presiding justice would not be
    permitted.

[27]

Moreover,
    rational criminal law policy supports the finding that a justice should not
    have the power to dismiss charges under s. 508. At the time of the s. 508
    confirmation process, there is little evidence before the justice and the
    accused is not present. Furthermore, as Code J. pointed out at para. 52 of
Millar
:

[I]f there is truly no case to answer, or if the case is simply
    too weak to convict, the remedies available at trial are far more potent.
    Failure to confirm process under s. 508, or to issue process under s. 507,
    simply means the authorities can gather further and better evidence and then
    return and try again before a different Justice of the Peace.

[28]

Third,
    as noted, leave to appeal in the present case is granted to remove conflicts
    and uncertainty in the law as it pertains to the consequences of non-compliance
    with s. 508. Recent jurisprudence from this court, by way of clear
obiter
    dicta
, indicates that a flaw in the confirmation process will result in a
    loss of jurisdiction over the person, but not a loss of jurisdiction over the
    offence. Both Cronk J.A. in
Markovic
and Doherty J.A. in
Oliveira
held that despite deficiencies of process, the informations remain valid. The
    key passages in each case are the following:

·

Accordingly, the subsequent
    flawed confirmation of the promise to appear did not operate to vitiate what,
    in the circumstances, was valid information (
Markovic
, at para. 29).

·

A defect in the promise to
    appear, or the process required to confirm a promise to appear, will not affect
    the validity of the information charging the offences referred to in the
    promise to appear (
Oliveira
, at
    para. 30).

[29]

In
    considering this
dicta
, it is important to acknowledge that the
    jurisdictional consequences of a failure to conform to the statutory requirements
    of s. 508 was not the issue requiring determination in either case, though a
    flaw in the promise to appear existed on the facts of both.

[30]

That
    said, I find the
dicta
in
Markovic
and
Oliveira
compelling and difficult to reconcile with the
dicta
in
Gougeon
.
    Interestingly, in
Millar
, at paras. 29-41, Code J., in a scholarly
    analysis of the jurisprudence at the time of the
Gougeon

decision,
    explains that a state of confusion in the law existed with respect to
    jurisdiction over the person and jurisdiction over the offence. Subsequent
    developments in the law emanating from the Supreme Court of Canada, as well as
    Parliaments enactment of s. 485 of the
Code
, had the effect, in Code
    J.s view, of reversing the
Gougeon dicta
. I find considerable merit
    in Code J.s analysis.

[31]

In
    the result, I am persuaded that there is no principled reason why
    non-compliance with the confirmation process in s. 508 should affect the
    validity of a properly laid information. It results in a defect in process that
    causes a loss of jurisdiction over the person. This loss of jurisdiction over
    the person can be regained if the accused attends in court. There is no reason
    to depart here from that well-established principle: see
Naylor
, at p.
    19, and
Markovic
, at para. 24.

[32]

The
    appeal is allowed. A new trial is ordered. In this case, the respondent has
    been obligated to retain counsel on two Crown appeals. This factor might be
    considered in the Crowns decision as to whether to pursue a new trial.

Released:

MAY 21 2013                          Speyer J. (
ad
    hoc
)

JS                                          I agree
    Janet Simmons J.A.

I agree
    Alexandra Hoy J.A.

[1]
As discussed below, s. 507 sets out the procedure for issuing process after the
    information is laid. Section 508 governs the procedure for confirming process
    where the police issue process before the information is laid.

[2]
The panel in
Gougeon
was composed of Brooke, Martin and Morden JJ.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lu, 2013
    ONCA 324

DATE: 20130515

DOCKET: C56894

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sz-Yin Lu

Appellant

Michael A. Crystal, for the appellant

Alison Wheeler, for the respondent

Heard: May 9, 2013

On appeal from the sentence imposed on April 10, 2013 by Justice
    Lynn Ratushny of the Superior Court of Justice.

Gillese J.A.:

[1]

This case involves a young Taiwanese woman who was convicted, in Canada,
    of a serious offence but who wishes to be admissible to Canada where her
    Canadian husband lives.  It revolves around the recent decision of the Supreme
    Court of Canada in
R. v. Pham
, 2013 SCC 15, in which the Court
    explained how collateral immigration consequences are to be taken into account
    on sentencing.

OVERVIEW

[2]

Sz-Yin Lu is from Taiwan.  She is not a Canadian citizen.  She came to
    Canada on a student visa in 2006.  She met Vlad Precup, a Canadian citizen, and
    they began dating early in the winter of 2007.  She returned to Taiwan briefly
    that summer.  She came back to Canada in the fall of 2007 after being accepted
    into the Early Childhood Education program at Algonquin College.  She testified
    that she graduated from the program in 2008 and began working at a daycare.

[3]

Late in the evening of July 13, 2008, Mr. Precup hit a pedestrian with
    his car.  He did not stop his car after the accident.  Tragically, the
    pedestrian died.  Ms. Lu was a passenger in her boyfriends car at the time of
    the accident.

[4]

Police interviewed Ms. Lu twice about the accident, first on August 11,
    2008, and then again on November 26, 2008.  Both times, Ms. Lu denied any
    knowledge of, or involvement in, the accident.

[5]

On December 15, 2008, Ms. Lu and Mr. Precup voluntarily contacted the police
    and admitted their involvement in the hit and run.

[6]

In the summer of 2009, Ms. Lu and Mr. Precup were married.

[7]

On September 23, 2009, Ms. Lu pleaded guilty to obstruction of a peace
    officer in the execution of his duties, contrary to s. 129(a) of the
Criminal
    Code of Canada
.  At the sentencing hearing, Ms. Lu requested a conditional
    discharge.  The Crown sought a suspended sentence with a period of probation
    and community service.

[8]

Ms. Lu was given a suspended sentence, six months probation, and 75
    hours of community service.  The six months have now elapsed and she has
    completed the community service requirement.

[9]

In December 2009, Mr. Precup applied to sponsor Ms. Lu to become a permanent
    resident of Canada.

[10]

In
    May 2011, Mr. Precup was convicted of dangerous driving causing death and failing
    to remain at the scene.  He was sentenced to two years imprisonment.  That
    conviction is currently under appeal with this court.

[11]

Ms.
    Lus pending application for permanent residency in Canada was rejected in the
    summer of 2011.  The reason that was given was that Mr. Precups incarceration
    made him ineligible to sponsor her.

[12]

After
    her application for permanent residency was turned down, Ms. Lu was contacted
    by the immigration authorities and asked to leave the country voluntarily. She did
    so and returned to Taiwan in September 2011, where she found work in her field.

[13]

While
    in Taiwan, Ms. Lu learned that even though she is married to a Canadian citizen,
    pursuant to s. 36(2) of the
Immigration and Refugee Protection Act

(
IRPA
),
    S.C. 2001, c. 27, because she had been convicted of an offence punishable by
    indictment to Canada, she was inadmissible on grounds of criminality.

[14]

Section
    36(2) of the
IRPA

provides:

A foreign national is inadmissible on grounds of
    criminality for (a) having been convicted in Canada of an offence under an Act
    of Parliament punishable by way of indictment

[15]

Section
    36(3)(a) deems hybrid offences to be indictable for the purpose of this
    provision.  Thus, the rule in s. 36(2) applies to Ms. Lu even though the Crown
    had elected to proceed summarily.  Since a discharge is not a conviction, the
    rule would not apply if she were given a conditional discharge rather than a
    suspended sentence.

[16]

Consequently,
    although Mr. Precup has now been released on bail pending appeal, and is no
    longer incarcerated, Ms. Lu remains inadmissible.

[17]

Ms.
    Lu appealed her sentence, seeking to have an absolute discharge substituted for
    the suspended sentence that she had been given.

[18]

With
    the agreement of counsel and in light of the new evidence regarding the
    consequences of conviction on Ms. Lus immigration status, the summary appeal
    court judge (SCAJ) conducted a
de novo
sentencing hearing.  While the
    SCAJ was sympathetic to Ms. Lus immigration plight, on April 10, 2013, she
    dismissed Ms. Lus sentence appeal.

[19]

Ms.
    Lu now seeks leave to appeal to this court.  She is facing imminent deportation
    from Canada and has been allowed to remain here only temporarily, for the
    purposes of her sentence appeals.

[20]

If
    leave to appeal sentence is granted, Ms. Lu will ask that her suspended
    sentence be replaced with a conditional discharge.

[21]

For
    the reasons that follow, I would grant leave but dismiss the sentence appeal.

THE DECISION BELOW

[22]

The
    SCAJ began by considering the background facts leading to the obstruction
    offence, including Ms. Lus explanations for why she had lied to the police.
    She then indicated that Ms. Lus collateral immigration consequences, as that
    phrase is used in
Pham,
had not been given full consideration on
    sentencing and thus, with the agreement of counsel, she was undertaking a
de
    novo
sentencing hearing.

[23]

The
    SCAJ summarized testimony given by Ms. Lu at the sentencing hearing.  She noted
    the presumption that Ms. Lu would be refused admission to Canada if the
    conviction stood.  She also noted the defence position that an absolute
    discharge was appropriate, in light of Ms. Lus otherwise good character and
    all the other circumstances, including the significant immigration consequences
    flowing from a conviction by way of suspended sentence.  She noted the Crowns
    position that a discharge was outside the appropriate range of sentence for the
    offence in question, despite Ms. Lus personal circumstances, including the immigration
    consequences.  She also recorded that the Crown had pointed out various
    ameliorating procedures that might be available to Ms. Lu, such as a record
    suspension or a pardon.

[24]

The
    SCAJ then fully and carefully reviewed the numerous mitigating factors in Ms.
    Lus favour, including that she is young and of good character, has no criminal
    record (apart from this offence), bears no responsibility for her boyfriends
    dangerous driving or the accident, pleaded guilty to the offence, voluntarily
    disclosed to the police that she had been at the scene of the fatality, and is
    genuinely remorseful.  Like the sentencing judge, the SCAJ found it highly
    unlikely that Ms. Lu would ever again be before the criminal courts, noting
    that she is a teacher by profession and has been gainfully employed.  She
    concluded her consideration of the mitigating factors by referring to Ms. Lus
    friends, who attested to her beautiful heart and sense of responsibility.

[25]

In
    terms of the aggravating factors, the SCAJ noted that Ms. Lu: lied to police about
    a fatality, which is a very serious offence; maintained her lies to the police
    on two separate occasions and over a five-month period; and, did not make the
    lies impulsively or spontaneously, in the confusion of the moment.  The SCAJ
    stated that Ms. Lu deliberately impeded the progress of proper law enforcement
    in the community and contributed to the anguish and grief suffered by the deceaseds
    family.

[26]

The
    SCAJ then considered the immigration consequences for Ms. Lu, including her
    probable deportation, and the authorities likely refusal to allow her re-entry
    into Canada.  She described these immigration consequences as a significant factor
    to be considered as part of Ms. Lus personal circumstances.

[27]

In
    determining an appropriate sentence, the SCAJ described the applicable
    sentencing objectives as follows:

Denunciation, deterrence, both general and specific, the
    providing of reparation for the harm done, and the promoting of a sense of
    responsibility and an acknowledgment of the harm done to the victims, including
    the deceaseds family in this case, and to the community including the
    police[.]

[28]

After
    noting that a discharge is available only if it is a sentence that is not
    contrary to the public interest, the SCAJ concluded that despite the
    immigration consequences, she would not exercise her discretion and grant a
    conditional discharge.  In her view, a discharge would not adequately reflect
    the serious nature of the offence or the sentencing objectives of denunciation,
    deterrence and reparation, nor would it achieve proportionality.

[29]

The
    SCAJ then considered
P
h
am
.  She noted that the facts in
Pham

are inapplicable to Ms. Lus situation, but that the reasoning in paras.
    13-16 of the decision applied.  She set out those paragraphs in full and
    concluded that Ms. Lus collateral immigration consequences did not serve as a
    dominant circumstance.  In light of all the other circumstances, they did not
    trump the appropriate sentence which, at a minimum, was a suspended sentence.

THE ISSUES

[30]

This
    proceeding raises two issues:

1. Should
    this court grant leave to appeal sentence?

2.  If so, should
    this court substitute a conditional discharge for the suspended sentence
    imposed by the SCAJ?

LEAVE TO APPEAL SENTENCE

[31]

The
    appellants only route of appeal to this court is through s. 839 of the
Criminal
    Code
, which requires leave.  The test for leave is stringent and limited to
    questions of law alone: see
R. v. R.(R.)
, 2008 ONCA 497, 234 C.C.C.
    (3d) 463, at paras. 24 and 37.

[32]

The
    appellant urged the court to grant leave, noting that this is the first time
    this court has considered such a case since
Pham
was decided.

[33]

Arguably,
    the appeal would raise a question of law and, without question, it is of
    potential significance to people beyond those in this specific case  that is,
    it is of significance to the administration of justice in the province.

[34]

Moreover,
    the stringent leave requirements set out in
R.(R.)

are
    predicated on the situation where an appellant is seeking a second appeal.
    That is not  strictly speaking  the situation in this case, where the full
    immigration consequences for the appellant were considered for the first time
    before the SCAJ.  Granting leave to appeal sentence in this case would, in
    effect, permit the appellant a first appeal.

[35]

Accordingly,
    in my view, leave to appeal should be granted and the sentence appeal decided on
    its merits.

THE APPEAL

[36]

Ms.
    Lu argues that the SCAJ erred in holding that a discharge was not available or
    was outside the appropriate range of sentence for this offence.  She contends
    that a conditional discharge is consonant with sentencing principles, and is in
    Ms. Lus best interests and not contrary to the public interest.

[37]

Before
    dealing with these submissions, it is important to recall the role of an
    appellate court when reviewing a sentencing decision.  Appellate courts are to
    grant sentencing judges considerable deference when reviewing the fitness of a
    sentence.  They are to interfere only where the sentence is demonstrably unfit,
    or where it reflects an error in principle, the failure to consider a relevant
    factor or the over-emphasis of a relevant factor.  An appellate court cannot
    interfere with the sentence simply because it would have weighed the relevant
    factors differently.  See
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, at para. 46.

[38]

This
    deference extends to the sentencing judges consideration of the immigration
    consequences.  Where the issue of immigration consequences has been brought to
    the sentencing judges attention and that judge has applied the proper
    sentencing principles in deciding sentence, deference is owed: see
Pham
,
    at para. 23.

[39]

With
    that standard of review in mind, I turn to the appellants submissions.  As I
    will explain, I do not accept them.

The SCAJs Treatment of a Conditional Discharge

[40]

I
    see nothing in the reasons of the SCAJ to suggest that she thought a
    conditional discharge was outside the range or legally unavailable, as the
    appellant contends.  Rather, the SCAJ concluded that a conditional discharge
    was not a fit sentence in the particular circumstances of this case.  In
    reaching this conclusion, the SCAJ took into consideration all mitigating and
    aggravating factors and the applicable sentencing principles.

[41]

Further,
    the SCAJ had the benefit of
Pham

and she followed its direction
    when considering the immigration consequences that would flow from imposing a
    suspended sentence.

[42]

As
    the SCAJ noted, the facts in
Pham

are very different than in
    the present case.  Nonetheless, a brief overview of those facts is helpful to
    place in context the Courts direction on how to take into account collateral
    immigration consequences on sentencing.

[43]

In
Pham
, the sentencing judge imposed a two-year sentence on the accused,
    who was a non-citizen.  Under the
IRPA
, a non-citizen sentenced to a
    term of imprisonment of at least two years loses the right to appeal a removal
    order against him or her.  Neither party had raised the issue of these collateral
    immigration consequences before the sentencing judge.  A majority of the Alberta
    Court of Appeal dismissed the sentence appeal.

[44]

On
    further appeal to the Supreme Court, the Court allowed the appeal and reduced
    the sentence to two years less a day.  It held that as the sentencing judge was
    not aware of the collateral immigration consequences, the appellate court had
    the authority to intervene.  Further, it found that as a sentence of two years
    less a day was within the range of otherwise fit sentences, it was an error for
    the appellant court to have refused the one-day reduction solely on the basis
    of the appellants prior criminal record or because it felt he had abused the
    hospitality that Canada had afforded him:
Pham
, at para. 25.

[45]

Justice
    Wagner, writing for the Court, explains that the collateral consequences of a
    sentence are any consequences the sentence has on the particular offender and
    may be taken into account as part of the offenders personal circumstances.
    They are neither aggravating nor mitigating factors.  Their relevance flows
    from the application of the principles of individualization and parity, and may
    also flow from the sentencing objective of rehabilitation. The weight to be
    given to collateral consequences varies from case to case and should be
    determined having regard to the type and seriousness of the offence.
    Therefore, while the collateral immigration consequences may be relevant in
    tailoring the sentence, their significance depends on the individual case:
Pham
,
    at paras. 11-13.

[46]

Justice
    Wagner further explains that the sentence imposed must be fit having regard to
    the particular crime and the particular offender.  While a sentencing judge may
    exercise his or her discretion to take collateral immigration consequences into
    account, the sentence ultimately imposed must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender.  The
    collateral immigration consequences must not be allowed to dominate the sentencing
    exercise or skew the process:
Pham
, at paras. 14-16.

[47]

The
    SCAJ in this case followed
Pham
.  She considered the mitigating and
    aggravating factors and then considered the collateral immigration consequences
    as part of Ms. Lus personal circumstances.  She recognized that as a result of
    the criminal conviction and suspended sentence, Ms. Lu is inadmissible to
    Canada unless she obtains a record suspension or, possibly, an exemption from
    inadmissibility on humanitarian and compassionate grounds pursuant to ss. 24
    and 25 of the
IRPA
.  However, in light of the seriousness of the
    offence, the sentencing objectives of denunciation, deterrence and reparation,
    and the need for proportionality, a discharge was not a fit sentence.  It was
    open to her to so conclude.

The SCAJs Conclusion that a Discharge was not in
    the Public       Interest

[48]

The
    SCAJ correctly observed that a discharge cannot be granted if it would be contrary
    to the public interest.  In determining whether it would be contrary to the
    public interest, one consideration is whether the sentence will be a deterrent
    to others who might be minded to commit a like offence: see
R. v.
    Sanchez-Pino
, [1973] 2 O.R. 314 (C.A.), at p. 320.

[49]

The
    SCAJ held that a discharge would be contrary to the public interest because it
    would not give adequate effect to the sentencing objectives of denunciation,
    deterrence, and reparation.  Furthermore, it would not achieve the fundamental
    principal of proportionality in sentencing, which requires that a sentence be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender.

[50]

The
    SCAJ made a case-specific determination that a discharge would be contrary to
    the public interest.  It was open to her to reach this conclusion and there is
    no basis for interfering with it.  Lying to the police, particularly in the
    context of an investigation into a fatality, is a very serious offence.  I am
    sympathetic to Ms. Lus personal circumstances and her desire to be in Canada
    with her husband as soon as possible.  However, those circumstances were fully
    considered by the SCAJ, who concluded that, at a minimum, her sentence must be
    a suspended one.

CONCLUSION

[51]

In
    my view, there is no basis for interfering with the sentence imposed by the
    SCAJ.  Her articulation and application of the relevant legal principles is
    impeccable.  She fully, fairly and thoughtfully considered all of the relevant
    factors.  She had the benefit of
Pham

and gave appropriate
    consideration to the collateral immigration consequences of a suspended
    sentence, rather than a discharge.

[52]

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

Released: May 15, 2013 (K.M.W.)

E.E. Gillese
    J.A.

I agree. K.M. Weiler J.A.

I agree. Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meech, 2013 ONCA 338

DATE: 20130524

DOCKET: C54753

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Meech

Appellant

Anthony Marchetti, for the appellant

Jason J. Wakely, for the respondent

Heard: May 21, 2013

On appeal from the conviction entered on January 27, 2011
    and the sentence imposed on March 23, 2011 by Justice Tamarin M. Dunnet of the Superior
    Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking. He appeals his conviction on the basis that the trial judge erred
    when she refused to issue a material witness warrant.

[2]

A confidential informant told the police that the appellant was a
    cocaine dealer who would be bringing a large quantity of cocaine from British
    Columbia to Toronto. An undercover officer called the appellant at the number
    the informant provided, confirmed this, and agreed to purchase a kilogram from
    him after he arrived.  When the appellant arrived in Toronto he was arrested.
    He had four kilograms of cocaine in his knapsack.

[3]

The appellant subpoenaed a person he referred to as Mr. R. whom
    he believed was the informant. When Mr. R. did not appear he sought a material
    witness warrant pursuant to s. 705 of the
Criminal Code.

The appellant submitted that the Crown made an
    improper claim of informer privilege in relation to the informant or, in the
    alternative, that the innocence at stake exception to informer privilege
    applied. He also contended that he was arbitrarily detained and searched.

[4]

At the conclusion of the appellants submissions seeking a new trial
    because of the trial judges refusal to issue a material witness warrant, we
    indicated we did not need to call on the Crown and dismissed the appeal with
    reasons to follow.  These are those reasons.

[5]

The decision to grant or refuse a material witness warrant is an
    exercise of the trial judges discretion that should not be lightly overturned
    by an appellate court:
R. v. Scott,
[1990] 3 S.C.R. 979, at para. 55.
    It is a question of mixed fact and law.

[6]

A person who seeks a material witness warrant must first show
    that the proposed witness is likely to give evidence that is material to the
    issues at trial.

[7]

There were two live issues at trial: the
    validity of the appellants arrest and entrapment.
With respect to the
    validity of the appellants arrest, the police knew from their telephone
    conversation with him that he would be arriving by bus from Vancouver to
    Toronto and that he would be bringing cocaine with him. The police had
    reasonable and probable grounds to arrest the appellant based on his own
    evidence. On appeal, the appellant rightly conceded that the evidence of Mr. R.
    was not relevant to this issue.

[8]

With respect to the issue of entrapment, the appellant was required to
    show that the proposed witness was the source who tipped the police, that he
    was a state agent and therefore not protected by informer privilege. The trial
    judge held that there was no evidence that Mr. R was acting as a state agent
    and that the submission his evidence was material and necessary was tantamount
    to a fishing expedition.

[9]

The appellants principal argument on appeal was that the trial judge
    conflated the requirement for the innocence at stake exception and the material
    witness concept because, after holding that there was no evidence Mr. R. was
    acting as a state agent, she commented, Even if he was the informant, there is
    no evidentiary basis that the disclosure sought is necessary to raise a
    reasonable doubt.

[10]

We
    do not read the trial judges reasons as conflating the innocence at stake
    concept and the material witness concept.  On the basis of the argument as presented
    by the defence at trial, she had to deal with both.  She did. We do not agree
    that she applied the more onerous innocence at stake test to determining
    whether a material witness warrant should issue.  Reading her reasons as a
    whole, she found that the appellant had not met the test of showing Mr. R. was
    likely to give material evidence on the issue of entrapment.  This finding was
    open to her and we see no basis for interfering.

[11]

Even
    accepting the appellants evidence that the proposed witness, Mr. R., asked the
    appellant to bring cocaine back from Vancouver and that he was the only person
    who knew about the proposed transaction, the appellant adduced no evidence to
    indicate that Mr. R. was a state agent. The police had a conversation with the
    appellant in which they indicated they were seeking to buy a kilo of cocaine.
    The appellant offered them two.
By his response,
    the applicant confirmed that he was not being encouraged to do something that
    he was not otherwise engaged in. He was trying to push the caller to take more
    on his own initiative.
He arrived in Toronto with four kilos.  He did
    not explain why he had four kilos. The trial judge correctly held that there
    was no evidence Mr. R. was a state agent for whom the police were responsible.

[12]

In
    light of our conclusion, it is unnecessary for us to deal with other ancillary
    arguments raised by the appellant.

[13]

The
    appeal is dismissed.

[14]

While
    the notice of appeal states that the appellant also requested leave to appeal
    sentence, the issue was not brought up before us and, therefore, the appeal as
    to sentence is dismissed as abandoned.

Released: May 24, 2013                                         K.M.
    Weiler J.A.

KMW                                                                          R.A.
    Blair J.A.

G.R.
    Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moran, 2013 ONCA 342

DATE: 20130524

DOCKET: C54689

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elidio Moran

Appellant

Erec Rolfe, for the appellant

Howard Piafsky, for the respondent

Heard: May 23, 2013

On appeal from the conviction entered on April 7, 2011 by
    Justice Mark L. Edwards of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The overarching issue on this appeal is whether the information to
    obtain contained sufficient information so that a warrant could issue. In
    support of his position that it did not, the appellant makes two submissions: (1)
    the information from the Confidential Informants (CIs) was not sufficiently
    reliable because there was insufficient corroboration for the information of
    the CIs; and (2) he submits that the issuing judge did not turn his mind to
    whether some of the information should be excised from the ITO because the
    reliability of information from CI A is exaggerated.  There is nothing to
    indicate that this is direct information from the CI as opposed to the opinion
    evidence of the affiant.

[2]

We disagree that the information from the CIs was not sufficiently
    reliable. Even if, as the appellant submits, the very limited information from
    CI A is excised, and the initial information from CI B is insufficient,
    standing alone, to issue the ITO, the ITO considered as a whole was sufficient.
    Based on the information from the CIs, the police confirmed the existence of
    the Kirby residence, the buzz number and the fact that a person named Jamal
    Moran had been in a car with a known drug dealer. Thus, there was some
    independent corroboration of the CIs information in terms of the location of
    the transaction and Jamals involvement in the drug culture.  In December 2009,
    CI C advised of information that a source had just purchased crack cocaine
    from Jamal who visits a female at the apartment who goes by the name of Kirby.
    He gave the correct buzz number of the apartment on Fittons Road and the
    appellant rightly concedes this is some corroboration. Also, in December, CI
    B, who was a known and trusted source had just spoken to Kirby, directly, and
    asked if Jamal Moran was there. When Kirby answered Yes, CI B then told
    Kirby that they wanted to order up, meaning they were ordering cocaine.
    Kirby told CI B that it wasnt a problem.  In addition, CI D said that he
    had purchased crack from Jamal in the past.  Considered as a whole the
    information from the CIs provided a basis on which a warrant could issue.

[3]

In light of our holding we need not address the appellants arguments
    respecting s. 8 and s. 24(2).  The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nwagwu, 2013 ONCA 347

DATE: 20130527

DOCKET: C55665

Doherty, Simmons and Rouleau JJ.A.

Her Majesty the Queen

Respondent

and

Chibuike Nwagwu

Appellant

Talman W. Rodocker, for the appellant

John Patton, for the respondent

Heard:  May 21, 2013

On appeal from the conviction entered by Justice R. Clark
    of the Superior Court of Justice, dated June 15, 2011 and the sentence imposed
    on June 29, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellants argument that the trial judge made unreasonable findings
    of fact really comes down to the claim that the trial judges finding that the
    appellant was not credible was based on factors and facets of the evidence that
    could not reasonably support the finding that the appellant was not credible.

[2]

We agree that some of the factors and evidence referred to by the trial
    judge would not, standing alone, justify the rejection of the appellants
    evidence.  However, the trial judge did not rely only on the factors challenged
    by the appellant and, indeed, described two of the five as not material to his
    ultimate rejection of the evidence.

[3]

The trial judges rejection of the appellants evidence was based on a
    myriad of factors identified by the trial judge.  Those factors, apart from the
    five referred to by the appellant, provided overwhelming grounds for rejecting
    the appellants evidence as totally incredible.  This ground of appeal fails.

[4]

With respect to the alleged misapprehension of the evidence, we agree
    with the Crown that any misapprehension related to peripheral matters that were
    not material to the outcome.  The fact is that the Crowns case was very strong
    and the appellants evidence verged on the incredible.  This argument cannot
    succeed.

[5]

With respect to the sentence, having regard to:

·

the need, in light of the aggravating factors, to impose a
    sentence significantly higher than the five-year minimum on the gun charges;

·

the need to impose a significant consecutive sentence on the
    charges involving breaches of the weapons prohibitions; and

·

the need to impose a consecutive sentence on the charges
    involving the assault on the police.

[6]

We see no error in the sentence imposed.

[7]

The appeal is dismissed.


WARNING

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

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

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

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

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

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

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

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

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

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

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

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6
    (1)

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.S., 2013 ONCA 297

DATE: 20130506

DOCKET: C53977

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.S.

Appellant

Daniel F. Moore, for the appellant

Molly Flanagan, for the respondent

Heard and released orally: April 29, 2013

On appeal from the conviction entered on February 14,
    2011 by Justice James A.S. Wilcox of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The appellant raises three grounds of appeal.  First, he argues that the
    trial judges reasons are inadequate because he failed to address the defences
    theory that the complainant had a motive to fabricate.  We disagree.

[2]

The complainant denied that she had any motive to fabricate.  The trial
    judge accepted her evidence.  In so doing, he implicitly rejected the defences
    theory.

[3]

Second, the appellant argues that the trial judge failed to assess the
    reliability of the testimony of Cormier and Joamie before accepting their
    evidence.  We do not agree with this argument.  This was a short trial and, in
    the circumstances of this case, it was unnecessary for the trial judge to
    expressly analyze the reliability of the evidence of these two witnesses before
    accepting it.

[4]

Finally, the appellant argues that the trial judge applied a stricter
    standard of scrutiny to the evidence of the appellant than to the evidence of
    the complainant.  This is a difficult argument to make and we do not think it
    is made out in this case.  The trial judge recognized that the complainants
    evidence was in part imprecise, but nonetheless, accepted her testimony.  That
    was his call to make.

[5]

Moreover, the trial judge also accepted that the appellant had made two inculpatory
    statements to his friends.  This confirmatory evidence supported the
    credibility of the complainant.

[6]

The appeal is dismissed.

John Laskin J.A.

H.S. LaForme
    J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prime Real Estate Holdings Corp., 2013 ONCA
    346

DATE: 20130527

DOCKET: M42317-M42455-C56789

Doherty, Simmons and Rouleau JJ.A.

Prime Real Estate Holdings Corp.

Plaintiff (Respondent
    in Appeal)

and

Her Majesty the Queen, FirstOntario Credit Union
    Limited and
Fercan Developments Inc.

Respondents
    (Appellants)

William Friedman and Patrick Bakos, for the respondent (appellant),
    Fercan Developments Inc.

Charles P. Criminisi and Louis A. Grilli, for the
    respondent (appellant) FirstOntario Credit Union Limited

Morris Pistyner, for the respondent (appellant), Her
    Majesty the Queen

L. Leslie Dizgun, for the plaintiff (respondent) Prime
    Real Estate Holdings Corp.

Heard:  May 21, 2013

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied there is no right of appeal by Fercan from the order of
    Mulligan J.

[2]

Mulligan J.s order was made on a motion brought by FirstOntario (the
    mortgagee).  That motion requested a variation of the original restraining
    order which had permitted the sale of the property subject to the requirement
    that the proceeds would be held by A.G. Canada pending further order.
    FirstOntario sought a variation allowing the sale with payment to FirstOntario
    of the amount owing under the mortgage plus certain additional costs.  The
    remaining proceeds would be held by AG Canada.  The Crown did not oppose the
    variation.  Mulligan J. made the order as it related to funds owing under the
    mortgage, but did not make the order as it related to the additional costs.

[3]

This is a criminal proceeding.  There is no provision in the
Controlled
    Drugs and Substances Act
(
CDSA
)
which expressly gives a right of appeal from an order varying a restraining
    order:  see
A.G. (Canada) v. 31165 B.C. Ltd.
2011 B.C.C.A. 409.

[4]

Fercan
relies on s. 15(1)
    of the
CDSA
which incorporates s. 490 of the
Criminal Code
.
    That section contains a right of appeal from certain orders made under s. 490:
    see s. 490(17).

[5]

The orders appealable
    under s. 490(17) all involve determinations of entitlement of seized property.
    From Fercans perspective, the motion to vary the restraining order had nothing
    to do with Fercans entitlement to the property.  To the extent that s. 490(17)
    may create a right of appeal from an order varying a restraining order made
    under s. 14 of the
CDSA
(a matter on which we express no final opinion), it cannot be read as giving a
    party in the position of Fercan a right of appeal.

[6]

We add for the sake of
    completeness, that we see no arguable ground of appeal had there been a right
    of appeal.  We would not have stayed the order.

[7]

The appeal is quashed.  This being a
    criminal mater, there is no right to costs.


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(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.
    (1)
Any
    proceedings against an accused shall be held in open court, but the presiding
    judge or justice may order the exclusion of all or any members of the public
    from the court room for all or part of the proceedings if the judge or justice
    is of the opinion that such an order is in the interest of public morals, the
    maintenance of order or the proper administration of justice or is necessary to
    prevent injury to international relations or national defence or national
    security.

(2)
For the purpose of subsection
    (1), the proper administration of justice includes ensuring that.

(a)     the interests
    of the witnesses under the age of eighteen years   are safeguarded in all
    proceedings; and

(b)     justice
    system participants who are involved in the proceedings are protected.

(3)
If an accused is charged with
    an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, reference to the
    circumstances of the case, the reason for not making an order.  R.S., c. C-34,
    s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25;
    R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s.
    9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.L., 2013 ONCA 358

DATE: 20130531

DOCKET: C54981

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.L.

Appellant

Alan S. Price, for the appellant

Michael Medeiros, for the respondent

Heard: May 29, 2013

On appeal from the conviction entered on April 14, 2011
    and the sentence imposed on January 25, 2012 by Justice Sharon M. Nicklas of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of four counts of sexual abuse and was sentence
    to 30 months in prison.  He appeals both his conviction and his sentence.

[2]

On his conviction appeal, the appellant challenges the conviction on
    count 9, the conviction for sexual assault.  He submits that the trial judge
    failed to reconcile inconsistence in the evidence of the incident giving rise
    to this conviction.  He argues that the evidence of the complainant is not only
    inconsistent with the appellants evidence, it is inconsistent with that of the
    appellants son, Brandon, and with the email from the complainants mother.
    The appellant submits that the trial judges error on count 9 colours the
    remainder of her credibility findings.

[3]

We do not accept this submission.  The trial judge was alive to the
    alleged inconsistencies  see page 89 of her reasons.  As the Crown points out,
    there is no inconsistency between Brandons remark having been made and the
    incident having taken place.  Therefore, we see no error in the trial judges
    reasons convicting the appellant on count 9.

[4]

The sentence of 30 months imprisonment is well within an acceptable
    range for an offence of this nature.

[5]

Accordingly, both the conviction and sentence appeal are dismissed.


WARNING

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

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

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

(a)        any of the following
    offences;

(i)    an offence under section
    151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

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

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

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

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

(4)
An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2013 ONCA 333

DATE: 20130524

DOCKET: C56273

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. M.

Applicant/Appellant

Alan D. Gold, for the applicant/appellant

Randy Schwartz, for the respondent

Heard: May 3, 2013

On appeal from the decision of Justice Faye McWatt of the
    Superior Court of Justice, sitting as a summary conviction appeal court, on November
    14, 2012, dismissing an appeal from the conviction entered on June 27, 2011,
    and allowing in part an appeal from the sentence imposed on February 15, 2012,
    by Justice Lucia Favret of the Ontario Court of Justice, sitting without a
    jury.

Epstein J.A.:

Introduction

[1]

On September 2, 2009, a physical encounter took place between the
    applicant, who is a police officer, and the victim, a university student.
    Difficulties arose after the police stopped the victim while he was driving his
    car at a high rate of speed. The applicant was charged with assault and sexual
    assault, and after a judge-alone trial, the trial judge was persuaded that the
    applicant did assault the victim and that the assaultive behaviour included
    grabbing the victims genitals. The applicant was convicted on both charges.

[2]

The trial commenced on January 17, 2011, and when argument concluded on
    March 7, 2011, the trial judge put the matter over to May 31, 2011, for the
    delivery of a verdict. Prior to May 31, however, the trial judge indicated that
    she had not yet completed her reasons, and she postponed the verdict to June 27.
    On that date, the trial judge delivered a guilty verdict with reasons to follow.
    The parties agreed upon the date of November 21, 2011, for sentencing.

[3]

After various delays and postponements, the reasons were delivered at
    the November 21, 2011, court attendance. As a result of the delay in the
    reasons, the sentencing hearing was adjourned to February 2, 2012. In the
    interim, defence counsel (not Mr. Gold) brought an application for a stay under
    s. 11(b) of the
Charter
. The hearing of the application and the sentencing
    hearing both took place on February 2 and 7. On February 15, the trial judge
    dismissed the s. 11(b) application and sentenced the applicant to 30 days in
    jail.

[4]

The applicant appealed his convictions and sentence to the summary
    conviction appeal court. The conviction appeal was dismissed. The sentence
    appeal was allowed in part and the sentence was varied by allowing the
    applicant to serve the 30 days intermittently.

[5]

The application for leave to appeal is with respect to conviction and
    sentence. However, in oral argument, counsel for the applicant conceded that he
    could not raise an error of law with respect to sentence, and therefore
    effectively abandoned that ground of appeal. The remaining application with
    respect to the conviction appeal is narrowly cast: the applicant reinvigorates
    his argument under s. 11(b).

Analysis

[6]

Appeals to this court in summary conviction proceedings are not as of
    right or unrestricted in the nature of grounds that may be advanced. Section
    839(1) of the
Criminal Code
controls and requires that the ground of
    appeal must involve a question of law alone.

[7]

Here, the proposed ground of appeal relates to the trial judges characterization
    of various periods of time relevant to the s. 11(b) claim, and therefore

raises
    a question of law: see
R. v. Conway
, [1989] 1 S.C.R. 1659, at para.
    41;
R. v. Schertzer
, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.

[8]

Even where the proposed appeal raises a question of law, the decision to
    grant leave is discretionary. The discretion must be exercised in the interests
    of justice. Two factors dominate the proper exercise of that discretion. The
    first is the significance, beyond the specific case, of the proposed question
    of law to the administration of justice in the province. The second is the
    strength of the proposed appeal: see
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641
,
    at para. 30.  Leave to appeal is granted sparingly: see
R.R.
, at para.
    37.

[9]

The applicants arguments about the characterization of the delays he
    experienced in the completion of this matter do not have significance to the
    administration of justice beyond the circumstances of this case. The principles
    to be applied in a determination of whether the criminal proceedings were
    concluded within a reasonable time are well-established: see
R. v. Nguyen
,
    2013 ONCA 169, at paras. 47-52. Application of these principles to the factual
    matrix of any case is of significance to the individual person or persons
    charged, but not to the administration of criminal justice as a whole. No new
    principle is advanced here. Fairly, the applicant does not press this factor.

[10]

This
    takes me to the second factor established in
R.R
.
Where the
    merits of the appeal appear very strong, leave to appeal may be granted despite
    the lack of any general significance, especially if the conviction at issue is
    serious and the applicant is facing a significant deprivation of his or her
    liberty.

[11]

The
    applicant submits that the appeal judge erred by failing to engage in any
    meaningful analysis of the 2 years, 1 month and 28 days it took to conclude
    this matter. As a result, the appeal judges holding that the trial judge made
    no reviewable error must be scrutinized by this court. The applicant contends that
    the trial judge erred in failing to characterize certain periods as
    institutional delay  particularly the periods associated with the trial
    judges delay in providing reasons for conviction.

[12]

The
    essence of the applicants argument is that, properly calculated, the total
    institutional delay is close to thirteen months as opposed to the ten months assessed
    by the trial judge.

[13]

As
    a relatively minor part of his argument, the applicant challenges the trial
    judges characterization of some pre-trial delays, such as the time between
    setting the judicial pre-trial and the actual date of the judicial pre-trial,
    and part of the time it took for the trial to start.

[14]

I
    see no reason to interfere with the appeal courts conclusion that the trial
    judge made no error in her characterization of the pre-trial delays. The Crown
    and defence jointly requested an adjournment of the judicial pre-trial. As for
    trial preparation, the preparation time assigned by the trial judge was on the
    low end of the relevant range: see e.g.
R. v. Schertzer
, at para. 94;
R.
    v. Khan
, 2011 ONCA 173, 277 O.A.C. 165, at paras. 32-33. I also observe
    that at no time did the defence indicate a preparedness to proceed earlier: see
R. v. Schertzer
, at para. 94;
R. v.
Lahiry
, 2011 ONSC
    6780, 109 O.R. (3d) 187, at paras. 25-35.

[15]

This
    takes me to the applicants main argument  the delay in the delivery of the
    reasons and the consequences of that delay. Counsel for the applicant candidly admits
    that the delay directly attributable to the timing of the release of the
    reasons cannot be taken to have started until September. This is because had
    the reasons been given on June 27, 2011, taking into consideration the time
    required to arrange for the evidence needed for the sentencing hearing, September
    was the earliest the sentencing hearing could have taken place.

[16]

It
    follows that the period to be considered with respect to the time lag in the
    delivery of the reasons is the eleven weeks between September and November 21,
    2011. These eleven weeks, added to the ten months of institutional delay assessed
    by the trial judge, amounts to about 13 months of institutional delay.

[17]

The
    applicant submits that delay of this length is on the cusp of unconstitutional
    delay according to
R. v. Morin
, [1992] 1 S.C.R. 771. The applicant
    further argues that this troubling amount of delay, together with two other
    factors, call for a stay. First, it must be borne in mind that the trial judge
    was the cause of the delay under scrutiny and therefore was required to assess the
    effects of her own conduct, and second, the delay caused actual prejudice to
    the applicant.

[18]

For
    the following reasons, I disagree.

[19]

In
    my view, none of the time between June 27 (the verdict) and November 21 (the
    reasons) should be characterized as institutional delay. I agree that the delay
    in the delivery of the reasons was indeed long. It must have seemed
    particularly so to those involved in the prosecution in the light of the fact
    that in that period of time the trial judge regularly promised to deliver the
    reasons and then later found herself unable to honour the promise.

[20]

However,
    the real concern is not the delay itself but whether it affected the pace of
    the case. I do not see how the first half of the delay under consideration affected
    the prosecutions trajectory. On June 27, when the verdict was rendered, the Crown
    and defence consented to the November 21 date for sentencing submissions.
    Significantly, the defence neither requested an earlier date nor indicated he
    would have been available before November 21. Moreover, the pre-sentence report
    and many of the letters the defence obtained to support his sentencing
    submissions were not available until the end of October or into November. I therefore
    conclude that the trial judge did not err in failing to attribute any of this
    time to institutional delay.

[21]

This
    takes me to the period between November 21, 2011, and February 2, 2012. About
    two months of this period are not in dispute  it was necessary because of the
    trial judges failure to provide her reasons earlier. The trial judge recognized
    this and unequivocally took responsibility, characterizing 54 days as
    institutional delay.

[22]

The
    parties take issue over 19 days attributed to the defence because of defence counsels
    unavailability between November 21, 2011, and February 2, 2011. I see no error
    in the trial judges refusal to attribute 19 days to institutional delay  the
    Crown was ready as early as November 30, so it is reasonable to attribute some
    of the delay to the defence. However, even if I were to cede to the applicants
    position, the total institutional delay would be approximately ten and a half months
     in the circumstances of this case, hardly at the tipping-point of
    unconstitutional delay.

[23]

As
    noted, the applicant submits that this court should take into consideration
    that the trial judge was assessing her own conduct. I do not see the relevance
    of this point. There are many occasions on which judges must assess their own
    conduct, such as the appropriateness of particular jury instructions and rulings
    on mistrial applications for reasonable apprehension of bias. In such
    circumstances, it is assumed that judges execute their functions in a judicious
    and impartial manner. I see no reason to conclude that the trial judge did otherwise
    in this case. The trial judge thoughtfully assessed her own conduct and
    attributed delay to her actions where appropriate.

[24]

Turning
    to the applicants submission regarding prejudice, I note that the trial judge
    did find some evidence of actual prejudice. However, I see no reason to
    interfere with the trial judges findings, grounded in the evidence before her,
    that the applicants stress did not prevent him from working and did not cause
    him to be alienated. While the applicant was no doubt adversely affected by the
    delay in awaiting his sentence, on this record I see no difference between his
    stress and anxiety, and that of any other offender. There is nothing here that
    transforms what is otherwise a reasonable delay into a constitutional
    violation.

[25]

In
    my view, therefore, the merits of this appeal are far from strong.

[26]

In
    terms of the other relevant consideration under the second
R.R
.
factor, I would add that while the convictions may attract additional consequences
    given the applicants status as a police officer, it cannot be said that as a
    result of these convictions he faces any significant deprivation of his
    liberty. He received a brief intermittent sentence, much of which has been
    served.

Conclusion

[27]

I
    do not regard this as an appropriate case for granting the applicant leave to
    appeal and would therefore dismiss the application.

Released:

MAY 24 2013                                   Gloria
    Epstein J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree H.S. LaForme J.A.


W A R N I N G

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

An order restricting publication in this
    proceeding under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may, if
    application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he or she
    is discharged; or

(d)

if he or
    she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

(4)

[
Repealed
, 2005, c. 32,
    s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005,
    c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scott, 2013
    ONCA 286

DATE: 20130501

DOCKET: C56323

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradford Scott

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice John A. McMunagle of
    the Superior Court of Justice, dated October 31, 2012, dismissing the
    application for certiorari and upholding the order of Justice Rommel G. Masse
    of the Ontario Court of Justice, dated January 12, 2012, committing the
    appellant to stand trial on a charge of second degree murder.

ENDORSEMENT

[1]

JA was stabbed to death during a home invasion drug rip-off robbery.
    The Crown alleged that the appellant was a party to the murder because he
    facilitated entry to the victims apartment building by the two intruders, NT
    and PM.

[2]

The appellant was not present during the robbery that led to JAs death.

[3]

The appellant was committed to stand trial on a charge of second degree
    murder after a contested preliminary inquiry.  He stands jointly charged with
    PM.  The two co-accused were charged with first degree murder.  NT plead guilty
    to manslaughter and testified during the preliminary inquiry.

[4]

The appellant brought an application for
certiorari

to
    quash his committal for second degree murder.  In reasons dated October 31,
    2012, his application was dismissed.

[5]

He appeals that dismissal.

[6]

We would allow the appeal, quash the second degree committal and
    substitute a committal on a charge of manslaughter.

ANALYSIS

[7]

The appellant makes a number of submissions as to why the reviewing
    justice erred in failing to find that the preliminary inquiry judge made
    jurisdictional errors in committing the appellant on a charge of second degree
    murder. As in our view the appellant succeeds on the issue of the subjective
mens
    rea
for party liability under s. 21(2) of the
Criminal Code
, we
    will deal only with that issue.

[8]

The reviewing judge carefully and correctly set out the law on this
    matter, noting that an accused will only be guilty of murder as a party,
    pursuant to s. 21(2), if he foresaw that the murder was a probable consequence
    of carrying out the common purpose, in this case the robbery.  He referred to
    this courts decision in
R. v. Laliberty

(1997), 117 C.C.C.
    (3d) 97, at para. 36, in which the necessary
mens rea
for the purposes
    of s. 21(2) is stated to be the requirement of actual foresight or actual
    knowledge that [the principal offender] would stab the deceased with the intent
    to kill him in carrying out the robbery of the deceased.  He also referred to
    this courts decision in
R. v. Ferrari
, [2012] O.J. No. 2649, at para.
    61, which described subjective foresight as the requirement that the
    non-participant knew that the principal offender would probably commit murder
    in carrying out the unlawful purpose.

[9]

The appellant submits that while there was some evidence upon which a
    properly instructed jury could find that the appellant possessed the subjective
    foresight that harm to the deceased might occur during the course of the robbery,
    there was no admissible evidence adduced before the preliminary inquiry judge
    on which he could conclude that the appellant had the subjective foresight that
    the principal offender would kill the deceased in carrying out the robbery.

[10]

We
    agree.

[11]

Certainly,
    a home invasion robbery is inherently dangerous and can give rise to violence,
    which could ultimately result in harm to the victims.  And, there was evidence
    that the appellant knew of PMs violent propensities.  But there was no
    admissible evidence at the preliminary inquiry that the appellant knew that NT
    and PM went to the robbery with a weapon and he was not present at the robbery
    itself.

[12]

The
    process of drawing inferences from the evidence is not the same as
    speculating.  In this case, the evidence at the preliminary inquiry, fully
    considered in the context of a drug rip off robbery, did not provide some
    evidence of the subjective
mens rea

requirement for second
    degree murder.

[13]

Accordingly,
    the appeal is allowed, the committal for second degree murder is quashed and a
    committal on a charge of manslaughter is substituted.

E.E. Gillese
    J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2013 ONCA 315

DATE: 20130510

DOCKET: C54622

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shameel Singh

Appellant

M. Gourlay duty counsel

Mabel Lai, for the respondent

Heard and released orally: April 16, 2013

On appeal from the conviction entered on March 11, 2011 and
    the sentence imposed on November 7, 2011 by Justice J.M. Fragomeni of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

This appeal must be allowed because of Crowns counsels improper
    cross-examination of the appellant which rendered the trial unfair. In a
    sustained fashion, repeated for each of the three co-accused, the Crown
    cross-examined the appellant about the co-accuseds motives to fabricate their
    testimony.

[2]

The trial judge did not deliver an adequate correcting instruction and,
    in fact, in his summary of the evidence, he reinforced the improper line of
    questioning by saying that the co-accused had no reason to falsely accuse the
    appellant.

[3]

Credibility and identification were at the heart of the case. The
    determination of these issues depended on the co-accuseds testimony. The
    testimony of the three co-accused  was inconsistent.

[4]

We are satisfied that there was an appearance of unfairness and we infer
    actual prejudice.

[5]

The appeal is allowed and the matter is remitted for a new trial.

R.G. Juriansz J.A.

J. MacFarland J.A.

S.E. Pepall J.A.