COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Florence, 2014 ONCA 443

DATE: 20140606

DOCKET: C56549 and C56740

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derrick Florence

Appellant

and

Terry Carder

Appellant

Matthew Gourlay and Kathleen Heap, for the appellants

Rick Visca and Aaron Shachter, for the respondent

Heard: March 14, 2014

On appeal from the convictions entered on March 19 and March
    22, 2012 by Justice Christopher Bondy of the Superior Court of Justice, sitting
    without a jury, and from the dismissal of s. 11(b) applications on March 15,
    2012 by Justice Renee M. Pomerance of the Superior Court of Justice, with
    reasons dated April 11, 2012.

Rouleau J.A.:

OVERVIEW

[1]

The appellants, Terry Carder and Derrick Florence, were among 70 people
    arrested in connection with drug trafficking, following an undercover police
    operation in the Leamington area. The appellants were arrested and charged on
    October 28, 2009, and their trials were ultimately set for March 19, 2012 and March
    22, 2012, respectively, a period of just under two and a half years between
    arrest and trial. Prior to trial each appellant filed an application asking for
    a stay of proceedings under s. 24(1) of the
Canadian Charter of Rights and
    Freedoms
, on the ground that the delay violated his right under s. 11(b)
    of the
Charter
to trial within a reasonable time.

[2]

The applications were dismissed and the appellants were subsequently
    convicted and sentenced. They now appeal on the basis that the application
    judge erred in dismissing their s. 11(b) applications. Mr. Carder also appeals
    his six-month sentence.

FACTS

[3]

As part of the Leamington-area sting operation conducted by the OPP and
    Leamington Police Service, Mr. Carder was charged with three counts of
    trafficking cocaine and two counts of possession of the proceeds of crime,
    offences allegedly committed between August 5, 2008 and August 26, 2009. Mr.
    Florence was charged with one count of trafficking marijuana, two counts of
    trafficking oxycodone, and two counts of possession of the proceeds of crime,
    offences allegedly committed between May 29, 2009 and July 14, 2009.

[4]

On December 3, 2009, the Crown produced disclosure and Mr. Marley,
    representing both Mr. Carder and Mr. Florence at trial, requested adjournments
    until January 7, 2010, in order to review disclosure with the appellants. On
    January 7, Mr. Marley requested adjournments for a further two weeks,
    indicating that he was still waiting for disclosure in Mr. Florences case and
    still needed to meet with Mr. Carder, who had not been able to make a scheduled
    meeting with Mr. Marley.

[5]

On January 21, 2010, an agent for Mr. Marley offered several dates for
    the preliminary inquiry of Mr. Florence, the earliest being April 20, 2010. The
    Crown was available that day, but not Constable Flewelling, whose earliest
    availability was July 8, 2010. That date was selected for the preliminary inquiry
    as it was acceptable to both Mr. Marley and the Crown.

[6]

Meanwhile, Mr. Carder had been arrested on other charges and appeared in
    court on January 22, 2010 to request that a bail hearing be set for the
    following week. On January 27, 2010, that bail hearing was adjourned until
    February 2, 2010, because Mr. Carders surety was not available. On February 2,
    2010, Mr. Carder was granted bail and his next court appearance was set for
    February 4, 2010. On February 4, 2010, Mr. Marley asked for an adjournment
    until March 4, 2010, for Mr. Carder to consider a resolution proposal from
    Crown counsel.

[7]

Early in the proceedings, the Crown had notified Mr. Marley that it
    intended to conduct the preliminary inquiries in a streamlined fashion by
    seeking to introduce witness statements and notes in accordance with s. 540(7)
    of the
Criminal Code
, R.S.C. 1985,
    c. C-46 (
Code
),
rather than calling
viva voce
testimony. On February 4, the Crowns
    intention to proceed in this manner was confirmed to Mr. Marley.

[8]

On February 5, 2010, Mr. Marley wrote to Dean J. indicating that he was
    seeking an order under s. 540(9) of the
Code
to compel the Crown to
    produce Constable Johnston.

[9]

On March 4, 2010, Mr. Carders case was set over to March 15, 2010 (for
    reasons unclear from the transcript).

[10]

On
    March 15, 2010, Mr. Marley argued his application under s. 540(9) to have the
    court order the Crown to produce Constable Johnston for cross-examination at
    either the preliminary inquiry or at a discovery-style examination. This
    application covered a number of cases including those of Mr. Florence and Mr. Carder.
    Justice Dean ruled in favour of the appellants and thereafter adjourned all of the
    cases until April 1, 2010 to set preliminary inquiry dates.

[11]

On
    March 22, 2010, Mr. Marley faxed a message to Crown counsel, Mr. Leardi,
    indicating that he was open to discussing, prior to April 1, the possibility of
    conducting discoveries of the witness (Constable Johnston) without having a
    Justice present. Apparently Crown counsel never responded to this request and,
    when contacted by Mr. Marley, indicated simply that he was instructed to oppose
    the request. In the faxed message of March 22, Mr. Marley also asked for
    disclosure that he had, according to the fax, previously requested.

[12]

On
    March 23, 2010, Mr. Leardi wrote to Mr. Marley asking to adjourn Mr. Florences
    preliminary inquiry, set for July 8, 2010, because the courtroom was
    over-booked with a trial guaranteed to proceed on that date.

[13]

On
    April 1, 2010, Constable Flewelling indicated that he had a number of preset
    dates for the preliminary inquiries, including February 24, 2011. The court
    accepted that date and scheduled Mr. Carders preliminary inquiry for February
    24, 2011. On the same date, April 1, 2010, Mr. Marleys agent for Mr.
    Florences case had received unclear instructions as to dates for the
    preliminary inquiry and Mr. Florences matter was adjourned until April 15,
    2010. The transcript from April 15, 2010 is missing, but the one from April 29,
    2010 indicates that the preliminary inquiry had already been set for March 8,
    2011. It appears, therefore, that it was on April 15 that the preliminary inquiry
    date was set.

[14]

There
    is no transcript of the preliminary inquiries on February 24, 2011 and March 8,
    2011, respectively.

[15]

On
    March 4, 2011, Mr. Carders case was in the Superior Court of Justice (no
    transcript) and judicial pre-trial was set for July 6, 2011.

[16]

On
    April 8, 2011, Mr. Florences case was in the Superior Court of Justice and
    judicial pre-trial was set for July 6, 2011.

[17]

On
    July 6, 2011, judicial pre-trial was completed in both cases.

[18]

On
    July 8, 2011, the trial date for Mr. Carder was set for March 19, 2012. The
    court offered February 27, 2012, but Mr. Marley was not available. He was also
    unavailable on March 12, 2012. The third date offered was March 19, 2012, which
    was acceptable to both Mr. Marley and the Crown.

[19]

Apparently
    also on July 8, 2011, the trial date for Mr. Florence was set for March 22,
    2012, although the record does not contain the transcript of the court
    appearance at which the date was set.

APPLICATION JUDGES DECISION

[20]

The
    application judge issued a joint ruling on the s. 11(b) applications of Mr.
    Carder and Mr. Florence, and of three other defendants who are not appellants
    herein. The application judge found it to be a close call, but ultimately
    dismissed the applications, noting that the delay in this case, while
    technically in excess of the guidelines, is not so excessive as to infringe s.
    11(b). Although it is not always clear from her reasons, the application judge
    seems to have attributed periods of delay as follows:

Mr. Florence:

From

To

# of days

Application judges attribution of this period

October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake/inherent time requirements

December 3, 2009

(disclosure produced)

April 1, 2010

(setting of preliminary inquiry date)

119

Neutral intake/inherent time requirements and perhaps
          (though not entirely clear from reasons) partly Crown delay

April 1, 2010

(setting of preliminary inquiry date)

March 8, 2011

(preliminary inquiry)

341

Institutional delay (though, again, the reasons are not
          entirely explicit on this point)

March 8, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

122

Neutral/inherent time requirements

July 8, 2011

(assignment of trial date)

April 2, 2012
[1]

(trial date)

269

Institutional delay

[21]

The
    application judge therefore found 341 days,
[2]
or 11.2 months, of institutional delay in the Ontario Court of Justice and 269
    days, or 8.8 months, of institutional delay in the Superior Court of Justice,
    for a total of 20 months of delay, 2 months beyond the outer limit of the
Morin
guidelines:
R. v. Morin
, [1992] 1 S.C.R. 771. She therefore determined
    that the length of the delay necessitated a consideration of prejudice to the
    accused and weighing any such prejudice against countervailing interests in
    seeing the case tried on the merits.

Mr. Carder:

From

To

# of days

Application judges attribution of this period

October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake/inherent time requirements

December 3, 2009

(disclosure produced)

April 1, 2010

(setting of preliminary inquiry date)

119

Neutral intake/inherent time requirements and perhaps
          (though not entirely clear from reasons) partly Crown delay

April 1, 2010

(setting of preliminary inquiry date)

February 24, 2011

(preliminary inquiry)

329

Institutional delay (though, again, the reasons are not
          entirely explicit on this point)

February 24, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

134

Neutral/inherent time requirements

July 8, 2011

(assignment of trial date)

March 19, 2012

(trial date)

255

Institutional delay

[22]

The
    application judge therefore found 329 days, or 10.8 months, of institutional
    delay in the Ontario Court of Justice and 255 days, or 8.4 months, of
    institutional delay in the Superior Court of Justice, for a total of 19.2
    months of delay, 1.2 months beyond the outer limit of the
Morin
guidelines. She therefore determined that the length of the delay necessitated
    a consideration of prejudice to the accused and weighing any such prejudice
    against countervailing interests in seeing the case tried on the merits.

[23]

Weighing
    the factors, the application judge concluded as follows:

This is a close case. Mr. Marley, on behalf of the accused,
    took positive steps to expedite the hearing of the preliminary inquiry. While
    there was some complexity at the outset of the prosecution, it largely
    evaporated once the cases were set for preliminary hearing. The preliminary
    inquiry involved one witness testifying for one hour. Similarly, the trials
    were set for 1-2 days of court time. These factors favour the position of the
    defence on the s. 11(b) application.

On the other hand, as noted above, the defence has demonstrated
    no prejudice, above and beyond the inferred [prejudice] flowing from the delay.
    In addition, the seriousness of the offences must weigh in the balance. In
Tran
,
    the court observed that: while not the most serious of drug offences, the
    allegations in this case include commercial trafficking in marijuana and a
    hydro bypass in a residential area. In this case, the charges allege trafficking
    of various substances such as crack cocaine and oxycodone. There is a public
    interest in seeing that these charges be tried on the merits.

On balance, having regard to all of the factors, the delay in
    this case is not so outside the acceptable range or guideline that a judicial
    termination of the proceedings is appropriate.

[24]

In
    the end, neither appellant had a fully contested trial. Mr. Carder invited the
    trial judge to make findings of guilt based on acknowledged facts introduced by
    the Crown, resulting in Mr. Carder being convicted. Mr. Florence eventually
    negotiated a resolution with the Crown and pleaded guilty to a single charge.

ISSUES

[25]

On
    appeal, the appellants submit that the application judge committed the
    following three distinct but related errors in her ruling on the s. 11(b)
    applications:

1.

she did not
    penalize the Crown for its unexplained tactical decisions that delayed the
    proceedings;

2.

she erred in her
    allocation of the various periods of delay as among the Crown, the defence,
    institutional and neutral; and

3.

she
    mischaracterized the seriousness of the charges and gave decisive weight to the
    seriousness of the charges in her final balancing exercise.

[26]

Mr.
    Florence also seeks to set aside his guilty plea to the extent necessary to
    consider his appeal of the application judges dismissal of his s. 11(b)
    application. He has submitted fresh evidence to support his claim that he
    entered a guilty plea on the understanding  communicated without objection to
    trial Crown counsel  that his right to challenge the decision on the s. 11(b)
    application would be preserved.

[27]

Mr.
    Carder also appeals his six-month sentence.

ANALYSIS

[28]

Before
    turning to the issues raised by the appellants, let me briefly set out the
    framework for a s. 11(b) analysis and the standard of review on appeal.

Framework of a s. 11(b) analysis

[29]

In
Morin
, the Supreme Court of Canada set out the factors a court must
    consider when assessing the reasonableness of delay for purposes of s. 11(b).
    Writing for the majority, Sopinka J. stated, at pp. 787-88:

While the Court has at times indicated otherwise, it is now
    accepted that the factors to be considered in analyzing how long is too long
    may be listed as follows:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a)

inherent time
    requirements of the case,

(b)

actions of the
    accused,

(c)

actions of the Crown,

(d)

limits on
    institutional resources, and

(e)

other
    reasons for delay;

and

4. prejudice to the accused.

[30]

At
    p. 788, Sopinka J. explained that the judicial process referred to as
    balancing requires an examination of the length of the delay and its
    evaluation in light of the other factors. A judicial determination is then made
    as to whether the period of delay is unreasonable.

[31]

In
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18, the Court
    gave a succinct summary of the balancing required under s. 11(b): Whether
    delay has been unreasonable is assessed by looking at the length of the delay,
    less any periods that have been waived by the defence, and then by taking into
    account the reasons for the delay, the prejudice to the accused, and the
    interests that s. 11(
b
) seeks to protect. In
Godin
, at para.
    18, the Court also reiterated Sopinka J.s warning in
Morin
, at p. 787,
    that the general approach  is not by the application of a mathematical or
    administrative formula but rather by a judicial determination balancing the
    interests which [s.11(
b
)] is designed to protect against factors which
    either inevitably lead to delay or are otherwise the cause of delay.

[32]

The
    issues raised in this appeal relate principally to the application judges
    categorization of the delay periods into the types of delay identified in
Morin
.
    A brief description of the different categories is set out in the following
    paragraphs.

Reasons for the delay

(a)

Inherent time requirements

[33]

The
    inherent time requirements are to be assessed on a case-by-case basis, though
    they include activities such as retention of counsel, bail hearings, police
    and administration paperwork, disclosure, etc.:
Morin
, at p. 792.

(b)

Actions of the accused

[34]

Actions
    of the accused falling short of a waiver may also be relevant to assessing the
    reasonableness of delay. In
Morin
, at p. 793, Sopinka J. described the
    significance of the accuseds actions to this factor:

There is no necessity to impute improper motives to the accused
    in considering this factor. Included under this heading are all actions taken
    by the accused which may have caused delay.  Actions which could be included
    in this category include change of venue motions, attacks on wiretap packets,
    adjournments which do not amount to waiver, attacks on search warrants, etc.

(c)

Actions of the Crown

[35]

In
Morin
, at p. 794, Sopinka J. characterized this factor as follows:

As with the conduct of the accused, this factor does not serve
    to assign blame. This factor simply serves as a means whereby actions of the
    Crown which delay the trial may be investigated. Such actions include
    adjournments requested by the Crown, failure or delay in disclosure, change of
    venue motions, etc. An example of action of this type is provided in
Smith
,
supra
, where adjournments were sought due to the wish of the Crown to
    have a particular investigating officer attend the trial. As I stated in that
    case, there is nothing wrong with the Crown seeking such adjournments but such
    delays cannot be relied upon by the Crown to explain away delay that is
    otherwise unreasonable.

(d)

Institutional delay

[36]

In
Morin
, at p. 794, Sopinka J. described institutional delay as the
    most common source of delay and the most difficult to reconcile with the
    dictates of s. 11(
b
) of the
Charter
. The period of time to
    be ascribed to limits on institutional resources is the period that starts to
    run when the parties are ready for trial but the system cannot accommodate
    them:
Morin
at pp. 794-95. At p. 799, Sopinka J. found it

appropriate for this Court to suggest a period of institutional
    delay of between 8 to 10 months as a guide to Provincial Courts. With respect
    to institutional delay after committal to trial, I would not depart from the
    range of 6 to 8 months that was suggested in
Askov
.

[37]

However,
    as noted, the Court has stressed the need for a flexible approach to weighing
    each of these reasons for delay, and in particular that the courts should not
    treat the guidelines on institutional delay with mathematical precision.

[38]

Where
    the guidelines are exceeded, therefore, the court must weigh various factors
    including the prejudice to the accused caused by the delay and the publics
    interest in seeing the charges tried on the merits.

Standard of review

[39]

On
    appeal, a correctness standard of review applies to an application judges
    characterization of the various time periods between the date the accused was
    charged and the date of his trial. As Rosenberg J.A. stated in
R. v. Ralph
,
    2014 ONCA 3, at para 5:

The characterization of periods of delay and the ultimate
    decision on an application for a stay of proceedings on the basis of
    unreasonable delay are reviewable on a standard of correctness:
R. v. Tran
,
    2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19. The underlying facts are
    reviewed on a standard of palpable and overriding error:
Tran
, at
    para. 19.

[40]

I
    turn now to the issues raised on the appeal.

(1)

Did the application judge err in not penalizing the Crown for its
    unexplained tactical decisions that delayed the proceedings?

[41]

The
    appellants argue that the Crowns application under s. 540(7) of the
Code
,
    the Crowns insistence that Constable Johnston not be produced at the
    preliminary inquiry, and the Crowns unexplained refusal to consent to a
    discovery-type cross-examination in lieu of a preliminary inquiry all caused
    delay. In the appellants submission, the application judge should have:

(a)

attributed some of the period before
    April 1, 2010 to Crown delay; and

(b)

determined that delay caused by
    the Crown because of its tactical decision to try to avoid having Constable
    Johnston testify at the preliminary inquiry should weigh more heavily in the s.
    11(b) balance than ordinary institutional delay.

[42]

In
    support of this latter point, the appellants rely on cases such as
R. v.
    Brown
, 2005 ONCJ 201 and
R. v. Yun
, 2005 CanLII 13454 (ON SC). In
    these cases the court held that delay attributable to Crown actions should
    weigh more heavily in favour of finding a s. 11(b) violation than mere
    institutional delay.

[43]

In
    the appellants submission, the application judges treatment of the delay
    caused by the Crowns decision to invoke s. 540(7) of the
Code
is
    unclear. The application judge first notes, at para. 19 of her reasons, that
    the decisions taken by the Crown caused some delay, but that she is not
    prepared to attribute all of that delay to the Crown for purposes of s. 11(b).
Some of it
is more properly characterized as neutral time arising out
    of the inherent time requirements of the case (emphasis added).

[44]

However,
    in the same paragraph, the application judge appears to attribute the entire
    delay caused by the ss. 540(7) and (9) dispute to inherent time requirements of
    the case. After acknowledging that the Crown application under s. 540(7) was a
    tactical decision that was ultimately challenged successfully by the defence,
    she goes on to find that the Crowns decisions was on its face, authorized by
    the Criminal Code, and that from the perspective of s. 11(b), the merits of a
    legal application are usually beside the point. Where there is a legitimate
    point to be debated, the debate becomes part of the inherent requirements of
    the case. As a result, she appears to have concluded that the whole of the
    delay flowing from these Crown actions is properly characterized as part of the
    cases inherent time requirements. None of it was attributed to Crown or
    institutional delay.

[45]

In
    the appellants submission, the application judge erred both in not
    specifically allocating some of the delay caused by these tactical decisions to
    Crown delay and in not weighing that delay more heavily than ordinary
    institutional delay because it is avoidable delay for which there is no
    acceptable excuse: see
Yun
at para. 42.

[46]

In
    my view the application judge erred in her reasoning for attributing all of the
    delay to inherent time requirements. The fact that the Crown is under no legal
    or constitutional obligation to call a witness in a venue other than a
    courtroom, as the application judge notes at para. 22, does not mean that any
    delay caused by its refusal to do so will be neutral time in the s. 11(b)
    analysis. As Sopinka J. explained in
Morin
, at p. 794 (quoted more
    fully above), many Crown actions that are perfectly legal may count against the
    Crown for purposes of calculating s. 11(b) delay:

Such actions include adjournments requested by the Crown,
    failure or delay in disclosure, change of venue motions, etc.
An example of
    action of this type
is provided in
Smith
,
supra
, where
    adjournments were sought
due to the wish of the Crown to have a particular
    investigating officer attend the trial
. As I stated in that case, there is
    nothing wrong with the Crown seeking such adjournments but such delays cannot
    be relied upon by the Crown to explain away delay that is otherwise
    unreasonable. [Emphasis added.]

[47]

It
    must be remembered that the onus rests on the Crown to ensure that a matter
    proceed expeditiously to trial:
R. v. Askov
,
[1990] 2 S.C.R. 1199, at p. 1225. In my view, therefore,
    to the extent that the Crowns decision to invoke s. 540(7) of the
Code
rather than produce Constable Johnston for cross-examination at the preliminary
    inquiry (until ordered to do so by the court) contributed to delay beyond the
    usual delay encountered in scheduling a preliminary inquiry, this delay should count
    against the Crown in the s. 11(b) analysis.

[48]

I
    do not, however, agree with the appellants submission that the Crown should be
    further penalized for its decision to invoke s. 540(7) of the
Code
.
    The Crowns decision to invoke the procedure in s. 540(7) and its subsequent
    decision to refuse to produce Constable Johnston for a discovery-type
    cross-examination were within the Crowns exercise of discretion in choosing the
    manner of proceeding with the prosecution. Although it would have been
    preferable for the Crown to have explained on the record why it chose to proceed
    with a preliminary inquiry rather than agree to produce Constable Johnston for a
    discovery-type cross-examination, I see no basis to infer any improper motive
    or bad faith on the Crowns part.

[49]

The
    situation in these appeals is quite different from the facts in both
Yun
and
Brown
. Those cases involved the simple failure of the police to do
    their job,
Brown
at para. 48, or the police or Crown fail[ure] to do
    what they are expected to do [with] no acceptable excuse for the delay,
Yun
at para. 42. In other words, the court in those cases found the conduct of the
    police or Crown particularly worthy of blame or condemnation. The Crowns
    tactical decisions in the present case do not warrant any such condemnation. As
    a result, I would give the delay caused by the Crowns decisions the same
    weight as institutional delay.

[50]

I
    acknowledge that there may well be cases where the Crowns refusal to cooperate
    with the defence to accelerate a proceeding will be considered a form of Crown
    delay that weighs more heavily at the final balancing stage of the s. 11(b)
    analysis. In the normal course, however, a delay in the setting of a
    preliminary inquiry date caused by an unsuccessful tactical decision by the
    Crown will be considered Crown delay and given the same weight as institutional
    delay. There may also be cases where the Crowns explanation for such a
    decision will warrant considering the delay as neutral. I expect, however, that
    such cases will be exceptional in nature.

[51]

I
    turn now to the analysis of the various periods of delay encountered in both
    the Carder and Florence cases.

(2)

Did the application judge err in her allocation of the various periods
    of delay?

[52]

On
    appeal, the appellants and the Crown both argue that the application judge erred
    in her characterization of the various periods of delay encountered. However,
    they adopt, unsurprisingly, contrasting views as to whether the application
    judge attributed too much or too little time to Crown and institutional delay.

[53]

Specifically,
    the appellants argue that at least part of the period prior to April 1, 2010 (when
    the preliminary inquiry dates were set) should count as Crown delay. They argue
    that the period from, at the latest, February 5, 2010, when Mr. Marley wrote to
    Dean J. to seek an order compelling the Crown to produce Constable Johnston, up
    until April 1, 2010, should count as Crown delay. This adds two months to the
    delay and puts the overall institutional and Crown delay beyond what is
    reasonable and acceptable.

[54]

As
    I have explained, I agree that, to the extent that the Crowns tactical
    decisions in this case added to the time it would have taken to set the
    preliminary inquiry dates, that time should be counted against the Crown.
    Determining the impact of the Crowns tactical decisions on the calculations,
    however, is not as straightforward as suggested by the appellants. The impact
    on Mr. Florences case is different from the impact on Mr. Carders and it is
    not as simple as adding two months to the period of delay. In addition, the
    Crown points to other errors committed by the application judge which resulted
    in her overstating the length of the institutional delay. In the Crowns
    submission, if all of the application judges errors are corrected, including
    the addition to Crown delay proposed by the appellants, the period of
    institutional and Crown delay is in fact shorter than the period calculated by
    the application judge.

[55]

The
    focus of the Crowns submissions is the application judges finding that all of
    the time between setting the dates of the preliminary inquiries and the holding
    of the preliminary inquiries had to be characterized as institutional delay. As
    explained by Rosenberg J.A. in
Ralph
, at least some of the delay
    following the fixing of a date for a preliminary inquiry should be considered
    neutral delay, as it is time necessary for the defence to review the disclosure
    and prepare for the preliminary inquiry. In
Ralph
, at para. 8,
    Rosenberg J.A. determined, in the context of that cases drug trafficking and
    related charges, that at least four months of the delay from the end of the
    intake period until the first date for the preliminary inquiry must be
    considered either neutral or defence delay.

[56]

I
    will first set out the adjustments that are appropriate in Mr. Florences
    matter and then will deal with Mr. Carders matter.

(a)

Adjustments in the Florence matter

[57]

In
    the Florence matter, intake covers the period from October 28, 2009 to January
    21, 2010. I would then attribute a period of three months following the setting
    of the preliminary inquiry date to neutral inherent delay. A three-month period
    of neutral inherent delay is justified given the size of the undercover
    operation and the number of arrests made as well as the fact that Mr. Marley
    represented many of the accused. Counsel would need time to prepare for the
    preliminary inquiry. In February 2010, Mr. Marley explained that he planned a
    vigorous defence based on possible
Charter
violations and other common
    law defences. He made similar submissions on March 15, 2010 attesting to the
    complexity of the case.

[58]

I
    have selected three months as appropriate for this period of inherent delay,
    rather than four as was decided in
Ralph
,
because the record in this case discloses that on January
    21, 2010, Mr. Marleys agent offered April 20, 2010 as the earliest date for
    the holding of a preliminary inquiry for Mr. Florence.

[59]

In
    Mr. Florences case, therefore, the breakdown is as follows: disclosure took
    until December 3, 2009, followed by a period of neutral intake until January
    21, 2010 during which Mr. Marley reviewed disclosure and met with his clients,
    followed then by three months of neutral preparation time, i.e. inherent time
    requirements of the case, until April 20, 2010, by which point Mr. Marley was
    in a position to proceed with the preliminary inquiry of Mr. Florence.

[60]

The
    dispute concerning the Crowns attempt to avoid having Constable Johnston
    testify at the preliminary inquiry did not ultimately cause any delay in
    proceeding with the preliminary inquiry. This is because the parties had set
    the preliminary inquiry date before that dispute arose. As Mr. Florence points
    out, the progress of his case might have been expedited had the Crown accepted
    defence counsels proposal to conduct a discovery-type cross-examination of
    Constable Johnson in place of the preliminary inquiry. However, the time that
    might have been saved through such a procedure has in any case been attributed
    to institutional delay, as it was by the application judge. For reasons
    explained above, whether such period of time is attributed to institutional delay
    or re-characterized as Crown delay does not, in the circumstances of this case,
    make any difference. This is because, as explained above, I see no basis for
    placing greater weight on Crown versus institutional delay in the final
    balance.

[61]

The
    period from April 20, 2010 to the preliminary inquiry on March 8, 2011 is then,
    with one adjustment, attributed to institutional delay. This is institutional
    delay because Mr. Marley was prepared to proceed as early as April 20, 2010, but
    the preliminary inquiry could not be scheduled before July 8, 2010. It was
    subsequently adjourned at the Crowns request and ultimately rescheduled for March
    8, 2011.

[62]

The
    one adjustment to the length of the institutional delay period is a 14-day
    reduction. This is because on April 1, 2010, when the parties attended court to
    set a new date for Mr. Florences preliminary inquiry (because the July 8, 2010
    date originally set was no longer available), Mr. Marleys agent had received unclear
    instructions as to dates for the preliminary inquiry. An adjournment until April
    15 was therefore necessary to allow the agent to obtain proper instructions. Had
    the defence been prepared to set a date on April 1, the date offered by the
    court would, arguably, have been earlier than March 8, 2011, the date ultimately
    selected for Mr. Florences preliminary inquiry. For this reason, I would
    attribute a 14-day delay to the defence.

[63]

The
    Crown argues that a further adjustment is necessary to the application judges
    calculation of institutional delay. I agree. The application judge attributed
    the entire period from the assignment of the trial date until the trial itself to
    institutional delay. Again following
Ralph
, I would attribute some of
    that time to neutral preparation. The defence could not be expected to be ready
    to start the trial immediately. Some time following the setting of a trial date
    is necessary to prepare. There is little in the record to assist as to the
    appropriate length of time for that preparation. In
Ralph
, Rosenberg
    J.A. considered one month to be a reasonable length of time. I will do the same.

[64]

I
    note that Mr. Florence accepts the application judges classification of the
    four-month period from the preliminary inquiry until the assignment of his
    trial date as inherent delay. This is the time it took to transfer the matter
    to the Superior Court, schedule and hold the judicial pre-trial and set the
    date for trial. In appropriate cases, it may be open to accused to argue that
    for at least part of such period they were prepared to move forward with
    proceedings but the system was not able to accommodate them.

(b)

Adjustments in the Carder matter

[65]

Mr.
    Carders situation involves somewhat different considerations. Because Mr.
    Carder was arrested on other charges before a preliminary inquiry date could be
    set, additional delay was incurred. This additional delay is attributable to
    either neutral or defence delay.

[66]

As
    explained earlier in these reasons, delay was caused by Mr. Carders bail
    application following his second arrest and by Mr. Marleys request for
    additional time in order to consider the Crowns resolution proposal. This
    delay extended the intake period until March 4, 2010. From March 4, 2010
    forward, the reasons for delay are not altogether clear. Some of the delay is
    certainly due to the Crowns decision not to produce Constable Johnston for
    cross-examination at the preliminary inquiry and Mr. Carders successful
    challenge of this decision. For reasons that are not apparent from the record,
    it seems that neither the Crown nor Mr. Carder sought to set a date for the
    preliminary inquiry until after this matter was resolved. Had they done so
    pending resolution of the matter no delay would be attributable to the Crown.
    However, because there was delay in setting the date for the preliminary
    inquiry from March 4, 2010 to April 1, 2010, I consider this period to be properly
    characterized as Crown delay.

[67]

From
    April 1, 2010 forward, I would, in accordance with the reasoning of this court
    in
Ralph
, make the same three-month and one-month adjustments as I
    made in the analysis of the delay incurred in Mr. Florences matter. That is,
    the three months from April 1, 2010 until July 1, 2010 are neutral preparation
    time forming part of the inherent time requirements of the case, as is the
    month following the assignment, on July 8, 2011, of Mr. Carders trial date.

[68]

One
    further adjustment is necessary. Arguably, the delay in Mr. Carders trial from
    February 27, 2012 to March 19, 2012 should be characterized as defence rather
    than institutional delay. This is because the court offered the date of
    February 27, but Mr. Marley was not available. The court also offered the date
    of March 12, which Mr. Marley refused because he was again unavailable. In my
    view an adjustment is appropriate but not for the entire period. As the Supreme
    Court of Canada stated in
Godin
, at para 23: Scheduling requires
    reasonable availability and reasonable cooperation; it does not, for s. 11(
b
)
    purposes, require defence counsel to hold themselves in a state of perpetual
    availability. I would not, therefore, attribute the entire period from
    February 27, 2012 to March 19, 2012 to defence delay. I will attribute only
    half, i.e. 10 days, to defence delay. I also reject the Crowns submission
    that, because Mr. Marley was not available on February 27, 2012, the first date
    offered, we should attribute all of the period from July 8, 2011 to March 19,
    2012 to defence delay. This is simply unreasonable. Nothing in the record
    suggests that Mr. Marley would not have been available prior to February 27,
    2012 had dates been offered.

[69]

Finally,
    I note that, like Mr. Florence, Mr. Carder accepts the application judges
    classification of the approximately four-month period from the preliminary inquiry
    until the assignment of his trial date as inherent delay. Again, in appropriate
    cases, it may be open to accused to argue that for at least part of such period
    they were prepared to move forward with proceedings but the system was not able
    to accommodate them.

[70]

The
    results of my calculations are as follows:

Mr. Florence:

From

To

# of days

Attribution of this period

October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake

December 3, 2009

(disclosure produced)

January 21, 2010 (first setting of preliminary inquiry date)

49

Neutral intake

January 21, 2010

(first setting of preliminary inquiry date)

April 20, 2010

(date first offered by defence for preliminary inquiry)

89

Neutral inherent / preparation time

April 20, 2010

(date first offered by defence for preliminary inquiry)

March 8, 2011

(preliminary inquiry)

322

308 days of institutional delay; and 14 days of defence
          delay

March 8, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

122

Neutral intake / inherent time requirements

July 8, 2011

(assignment of trial date)

March 22, 2012

(trial date)

258

227 days of institutional delay;

31 days neutral preparation

[71]

The
    total delay for Mr. Florence is 535 days, or 17.6 months, of institutional and Crown
    delay, which is within the range set by the
Morin
guidelines, though
    near their outer limit.

Mr. Carder:

From

To

# of days

Attribution of this period

October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake

December 3, 2009

(disclosure produced)

March 4, 2010

91

Neutral intake and defence delay due to additional charges

March 4, 2010

April 1, 2010

(setting of preliminary inquiry date)

28

Crown delay

April 1, 2010

(setting of preliminary inquiry date)

July 1, 2010

91

Neutral inherent / preparation time

July 1, 2010

February 24, 2011

(preliminary inquiry)

238

Institutional delay

February 24, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

134

Neutral intake /  inherent time requirements

July 8, 2011

(assignment of trial date)

March 19, 2012

(trial date)

255

214 days of institutional delay;

31 days neutral preparation;

10 days defence delay

[72]

The
    total delay for Mr. Carder is 480 days, or 15.8 months, of institutional and Crown
    delay, which is within the range set out in the
Morin
guidelines.

(3)

Did the application judge mischaracterize the seriousness of the charges
    and give decisive weight to the seriousness of the charges in the final
    balancing exercise?

[73]

The
    adjustments I have made to the application judges calculations bring the delay
    incurred in both matters within the
Morin
guidelines and well below
    the delay that the application judge considered acceptable in the
    circumstances. As a result, even if I were to accept the appellants
    submissions that the application judge mischaracterized the seriousness of the
    charge, I see no basis to interfere with the application judges decision.

(4)

Should Mr. Florence be allowed to set aside his guilty plea?

[74]

Mr.
    Florences submissions indicated that he sought to have his guilty plea set
    aside only to the extent that this was necessary in order to challenge the
    application judges ruling on his s. 11(b) application. In light of the
    conclusion I have reached on Mr. Florences appeal of the application judges
    s. 11(b) ruling, I need not deal with this issue.

(5)

Mr. Carders sentence appeal

[75]

Mr.
    Carder seeks a reduction in his sentence from six months to time served. He
    argues that, although the sentence was fit at the time it was set, he was
    granted bail pending appeal and has now been on bail without incident since
    March 2013. He is 61 years old and, in his submission, the interests of justice
    would not be served by re-incarcerating him at this time.

[76]

The
    Crown, for its part, maintains that there is no basis to interfere with Mr.
    Carders sentence. The sentence imposed was entirely fit, especially in light
    of Mr. Carders significant criminal record and admission that he had been
    dealing drugs regularly as a job for a purely commercial motive.

[77]

I
    agree with the Crowns submission, and see no basis to interfere with the
    sentence imposed.

CONCLUSION

[78]

For
    these reasons, I would dismiss the appeals.

Paul Rouleau J.A.

I agree Robert J.
    Sharpe J.A.

I agree E.E. Gillese
    J.A.

Released: June 06, 2014

[1]

The application judge took the trial date for
    Mr. Florence to be April 2, 2012, by all appearances because Mr. Florences
    application record mistakenly included the transcript of a court appearance by
    another defendant represented by Mr. Marley. That defendants trial was set for
    April 2, 2012, while Mr. Florences trial was set for March 22, 2012.

[2]

The application judge calculates 342 days for this
    period, presumably by counting both the start date (April 1, 2010) and the end
    date (March 8, 2011). I have included the end date, but not the start date, in
    calculating the length of each period, so as not to double-count days.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2014 ONCA 483

DATE: 20140620

DOCKET: C58499

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Robert Foster

Applicant/Appellant

Robert Sheppard, for the applicant/appellant

Katie Doherty, for the respondent

Heard and released orally: June 18, 2014

On appeal from the sentence imposed on January 20, 2014 by
    Justice A.T. McKay of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty to break, enter and theft of a dwelling
    house and possession of a weapon for a purpose dangerous to the public peace.
    He was sentenced to 12 months imprisonment, less credit at the rate of 1:1 for
    99 days of pre-sentence custody.  His effective sentence, therefore, was 8
    months and 21 days imprisonment.

[2]

The appellant appeals against sentence.

[3]

The sole issue on appeal is whether the sentencing judge erred by declining
    to grant the appellant credit for his pre-sentence custody at the rate of 1.5:1.
    The appellant argues that the sentencing judge erred by concluding that there
    was insufficient information before him to justify enhanced credit for the
    appellants pre-sentence custody.

[4]

We reject this argument.

[5]

The decision whether to grant pre-sentence custody credit and, if so,
    the amount of credit to be granted (up to a maximum credit calculated at the
    rate of 1.5:1), are matters squarely within the sentencing judges discretion.
    As the Supreme Court recently confirmed in
R. v. Summers
, 2014 SCC 26,
    an offender who seeks enhanced credit for pre-sentence custody bears the onus
    of demonstrating that enhanced credit is warranted in all the circumstances.

[6]

In this case, the sentencing judge concluded that the appellant failed
    to discharge this onus.  Consequently, he denied the defence request for
    enhanced credit.  This was his call to make.  The sentencing judges evaluation
    of the sufficiency of the record in respect of pre-sentence custody credit, and
    his assessment of an appropriate amount of credit, attract deference from this
    court.  We note that, in this case, there was no information or evidence before
    the sentencing judge regarding the appellants behaviour while in custody or
    the likelihood of his early release.

[7]

In these circumstances, we see no basis for appellate intervention with
    the sentencing judges ruling.  Accordingly, the appeal is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Goebel, 2014 ONCA 451

DATE: 20140609

DOCKET: C56174-M43602

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Goebel

Appellant

Ken J. Berger, for the appellant

Amy Alyea, for the respondent

Heard:  June 3, 2014

On appeal from the decision of Justice Ian Nordheimer of
    the Superior Court of Justice, dated October 2, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The parties agree that the appeal is moot.  The charge against the
    appellant was withdrawn a year ago and he is no longer facing any jeopardy.
    All of the relief he seeks relates to the prosecution which is no longer
    extant.

[2]

This is not a case in which we should hear the appeal despite its
    mootness.

[3]

First, one of the issues raised here, the admissibility of the evidence
    of the experts evidence on the application, is unique to this case.  Second,
    the other issues raised, the constitutionality of s. 717, and the
    constitutionality of the manner in which the Attorney General exercised his
    discretion under s. 717, raise issues which, in our view, can be addressed in a
    live case where the charges remain before the courts and a live controversy
    exists between the parties.  These are not the kind of issues that are unamenable
    to judicial review in the normal course.

[4]

The motion to quash is allowed and the appeal is quashed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Heartz, 2014 ONCA 463

DATE: 20140612

DOCKET: C54522

Doherty, Rouleau & Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Laurence Heartz

Appellant

James N. Frost, for the appellant

Joanne Stuart, for the respondent

Heard: June 11, 2014

On appeal from the conviction entered by Justice Croll of
    the Superior Court of Justice, dated June 20, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellant accepts, as we think he must, the trial
    judges findings and her credibility assessments.  He argues that the verdict
    is unreasonable based on three considerations:

1.

The evidence of different
    methodologies used in the various transactions when compared to the methodology
    used in the two days where the appellant was captured in the photo on video:

We
    see no evidence of differences in the methodology, only an absence of evidence
    of some of the specifics of the methodology of some of the other withdrawal
    transactions.

2.

The absence of exclusive opportunity:

The
    judge did not suggest that the appellant had exclusive opportunity.  However,
    the fact that the appellant was caught misapprehending the funds on two days
    and had knowledge of the victims P.I.N. number distinguished the appellants
    situation from that of the other tenant, the other person with an opportunity
    to commit the offence.  The claim that the other tenant may have committed the
    offence is hardly viable on the totality of the evidence and gives no cause to
    doubt the reasonableness of this verdict.

3.

The logistics suggest that the
    appellant could not have misappropriated the funds:

The
    so called logistics seem to us to be primarily concerned with the likelihood
    that the withdrawals could have gone on as they did without the victims
    knowledge, and not with identifying the perpetrator, assuming there was a
    fraud.  Any problems arising from the logistics would apply equally to the
    appellant and the other tenant.  Once the trial judge accepted that the
    withdrawals were unauthorized, the logistics tend to point to the appellant,
    the person with the P.I.N. number and the access to the banking documents, and
    not to anyone else.

[2]

The verdict is not unreasonable.  The appeal is dismissed.


WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.C., 2014 ONCA 452

DATE: 20140609

DOCKET: C58271

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason C.

(A Young Person within the meaning of the
Youth
    Criminal Justice Act
)

Appellant

Craig Penney, for the appellant

Michael Fawcett, for the respondent

Heard:  June 6, 2014

On appeal from the sentence imposed by Justice J.R.
    Morgan, of the Ontario Court of Justice (Youth Justice Court), sitting without
    a jury, on January 28, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The seriousness of the offence and the horrible, but hardly unexpected,
    consequences for the victim demanded incarceration as the only penalty capable
    of reflecting the seriousness of the offence and the appellants degree of
    responsibility.  The length of the sentence imposed was well within the
    appropriate range.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnstone, 2014 ONCA 504

DATE: 20140630

DOCKET: C54136

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Lyle Johnstone

Appellant

Alan D. Gold, for the appellant

Elise Nakelsky and Sean Doyle, for the respondent

Heard: May 20, 2014

On appeal from the conviction entered on February 4, 2010
    by Justice Robert Pelletier of the Superior Court of Justice, sitting with a
    jury.

Rouleau J.A.:

Facts

[1]

The deceased, Mary Lou Wolfe, lived alone in Newington, Ontario. She was
    a health care worker, responsible for home care visits to clients. She had two
    children, Jamie and Erin. Erin was married to the appellant and lived nearby. She
    had a spare key for the deceaseds home which she kept hanging inside the door
    of the house she shared with the appellant.

[2]

On January 11, 2006, Ms. Wolfe was found dead in the bathroom of her
    home. She had been left lying face down covered in blood and completely naked
    except for her underwear which were partially rolled down. She had suffered
    multiple blows and stab wounds to her face, neck and body, and she had injuries
    consistent with strangulation. She died from a horrific neck wound, described
    by the forensic pathologist as an incomplete decapitation. Her head was left
    dangling by a five-inch piece of skin at the back of her neck.

[3]

Ms. Wolfe was found by her step-sister, Dolores Stubbs, who had entered
    Ms. Wolfes home to check on her after not seeing any activity in the home and
    after Ms. Wolfes employer had told Ms. Stubbs that she had been unexpectedly
    absent from work.

[4]

Physical and forensic evidence established that the attack originated in
    Ms. Wolfes bedroom while she was in bed.

[5]

She was severely assaulted there and then appears to have been dragged
    from her bed to the bathroom. The evidence suggested that Ms. Wolfes sweatshirt
    had been taken off after the stabbing had begun. Damage to the bathroom door
    confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks
    on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning
    against the back of the door while bleeding profusely. A pattern of bloody boot
    prints revealed that her killer had twice travelled between the bedroom-bathroom
    area and the kitchen. The murder weapon was a steak knife, evidently taken from
    Ms. Wolfes cutlery drawer and found near her body. The blood-soaked blade was
    broken into several pieces, with one piece embedded in her bloody sweatshirt
    found near the body.

[6]

The appellants fingerprints were found on a serrated knife located on a
    kitchen chair and the appellants palm print was recovered from an otherwise
    clean stovetop. No other fingerprints were found at the scene and no other
    cutlery was out of place.

[7]

Blood on the kitchen stove and inside the cutlery drawer contained DNA
    belonging to both the appellant and Ms. Wolfe. The evidence led at trial indicated
    that the appellant had not been inside Ms. Wolfes house since the previous
    summer.

[8]

There was no sign of forced entry into Ms. Wolfes home. Only the
    bathroom door exhibited damage consistent with the application of force to the
    door from outside the bathroom.

[9]

The motive alleged by the Crown at trial was that the appellant was
    upset by Ms. Wolfes plans to help her daughter and daughters two children,
    Sara and Charlie, move away from the appellant because of the appellants generally
    disruptive behaviour. Sometime before the murder, during an argument with the
    appellant, Erin blurted out Ms. Wolfes plan. The appellant responded by
    telling Erin that she would never leave with his son.

[10]

On
    the night of January 9 and into the early morning hours of January 10, 2006,
    the appellant was out all night. He had consumed a large quantity of alcohol
    and was searching for cocaine. For several hours after midnight or so, his
    whereabouts were unaccounted for.

Evidence of post-offence conduct

[11]

The
    Crown led evidence of post-offence conduct, including evidence that the appellant
    showed up at his friends house around 5:30 a.m. on January 10 in need of a
    shower. He rushed into his friends bathroom, wearing only his boxer shorts,
    holding a pair of work boots and a shirt, and stated if anyone asks, I wasnt
    here.

[12]

The
    Crown also led evidence that in the days following Ms. Wolfes murder, the
    appellant exhibited somewhat suspicious conduct including: getting rid of his
    brand new work boots (explaining that oil had spilled into them); lying to his
    boss on the morning after the murder by claiming that he had been up all night
    with his child at the hospital; getting rid of or washing his clothes (explaining
    that he had spilled transmission fluid on them); and falsely claiming that his
    fingerprints might be on Ms. Wolfes body because he had been having a sexual
    relationship with her.

Evidence of other disreputable conduct

[13]

The
    Crown also brought an application seeking to adduce evidence of other
    disreputable conduct as relevant to the Crowns theory that the appellants
    motive for killing Ms. Wolfe was to prevent her from helping the appellants
    spouse and son move away.

[14]

The
    trial judge allowed the application in part. He determined that the Crown could
    lead evidence of the appellants alcohol and drug consumption, of his gambling
    habits, of his frequent absences from home, and of financial difficulties including
    evidence of Ms. Wolfe lending money to her daughter and the appellant and their
    being unable to pay it back, in part because of his alcohol and drug
    consumption.

[15]

The
    trial judge, however, would not allow the Crown to lead evidence of an incident
    in which the appellant damaged a China cabinet in anger or evidence of sexual
    relations the appellant was alleged to have had with a 14-year-old babysitter
    some five years before the murder.

[16]

The
    appellant did not testify and did not call a defence.

Issues

[17]

In
    his factum, the appellant raises four grounds of appeal. Prior to the hearing
    of the appeal, the appellant advised that he was not pursuing one of these
    grounds, namely the trial judges disallowance of his application to adduce evidence
    of an alternative suspect, Ron Deschambeault.

[18]

At
    the hearing of the appeal, the appellant relied on his factum in respect of two
    of the grounds: whether the trial judge erred in allowing evidence of other
    discreditable conduct and whether the trial judge erred in his instructions to
    the jury on the use they could make of the appellants post-offence conduct.

[19]

The
    appellants oral submissions focused on the final ground of appeal, whether the
    trial judges instructions on first degree murder were correct.

[20]

For
    the reasons that follow, I would dismiss the appeal.

Analysis

(1)

Did the trial judge err in allowing evidence of other discreditable
    conduct?

[21]

The
    appellant argues that the trial judge erred in allowing the Crown to lead
    evidence of the appellants substance abuse, gambling and financial
    difficulties. In his submission, that evidence was not admissible as it did not
    go directly to the appellants alleged motive for the killing. It was only
    relevant to the peripheral issue of Ms. Wolfes motive for wanting to assist
    her daughter and grandchildren to leave the appellant. Further, the evidence
    was unnecessary given that the appellant did not contest the claim that Ms.
    Wolfe planned to move the family away. However, the evidence of bad character
    led by the Crown was clearly prejudicial as it showed the appellant to be a
    generally bad person. As a result the appellant maintains that the evidence was
    not relevant and any probative value it may have had was outweighed by its
    prejudicial impact.

[22]

I
    disagree. Although evidence of other discreditable conduct is presumptively
    inadmissible, it may nonetheless be admitted if it satisfies two criteria: (1)
    it is relevant to one or more issues at trial; and (2) its probative value
    outweighs its prejudicial effect: see
R. v. Handy
, 2002 SCC 56, [2002]
    2 S.C.R. 908, at paras. 71, 150.

[23]

This
    was a circumstantial case in which the identity of the killer was contested.
    The appellant suggested that the true culprit was the deceaseds step-sister, Ms. Stubbs,
    on the basis that she had opportunity and motive. The appellants motive and
    the relative strength of that motive were, therefore, genuine issues for the
    jury. The evidence of discreditable conduct led at trial tended to prove that
    Ms. Wolfe did formulate a moving plan and that the appellant, having learned of
    it, would have been motivated to prevent it from being implemented.

[24]

Contrary
    to the appellants submission, there is no requirement of a direct connection
    between the evidence of discreditable conduct and the appellants motive to
    kill Ms. Wolfe. The evidence of the appellants prior misdeeds must simply be
    relevant to a live issue at trial:
Handy
, at para. 73. The evidence of
    his substance abuse, gambling and financial difficulties was probative as it
    provided support for the Crowns theory that the appellant would have taken
    seriously Ms. Wolfes plan to move her family away from him and therefore had a
    motive for killing Ms. Wolfe.

[25]

The
    risk of prejudice was very limited. The prior discreditable conduct was akin to
    the evidence the jury would hear in any event regarding the appellants conduct
    leading up to and after the murder. The risk of prejudice is further reduced by
    the fact that the evidence of other discreditable conduct goes to conduct far
    less serious than that for which the appellant stood charged.

[26]

Finally,
    the evidence was neither lengthy nor complicated and was not seriously
    challenged by the appellant.

[27]

Deference
    is due to a trial judges decision because the trial judge is in the best
    position to assess the significance of the evidence and the impact it may have
    on the jury. I see no basis to interfere.

[28]

The
    appellant then argues that the trial judges instructions were deficient in
    that they failed to include an explicit statement of the rationale for the
    rule [governing permissible and impermissible uses of evidence of other
    discreditable conduct] and the prohibited uses so that the jury properly
    understood this important rule.

[29]

I
    would not give effect to this submission. The trial judge properly instructed
    the jury both in a mid-trial instruction and in his final instructions on both
    the permitted and prohibited uses of this evidence. The appellant provides no
    authority for the proposition that the trial judge must provide an explicit
    statement of the rationale for the rule. As explained in
R. v. Samuels
, 2013 ONCA 551, 310 O.A.C. 175
, at para.
    48, the question is whether or not the instruction accomplished its purpose,
    not whether it follows a particular formula. Here the combined effect of the
    trial judges mid-trial and final instructions accomplished their purpose and
    nothing more was required.

(2)

Did the trial judge misdirect the jury on the use it could make of the
    appellants post-offence conduct?

[30]

The
    appellant argues that the trial judge misdirected the jury on the proper use of
    the evidence of post-offence conduct when, towards the end of his charge, he
    stated only that the evidence needs to be consistent with a guilty mind but
    failed to state that it must be inconsistent with any other explanation.

[31]

I
    would not give effect to this submission. In the portion of his charge dealing
    with post-offence conduct, the trial judge, at the outset, clearly explained
    the proper use of this evidence. He told the jury that they could not use that
    evidence to help them decide whether the appellant committed the offence unless
    they were able to reject any other innocent explanation for what [the
    appellant] may have done or said. He repeated this caution later in this
    portion of the charge telling the jury that after determining what was actually
    said or done, they should decide what weight you give that evidence in
    considering whether it is consistent with someone who committed the offence or
    not or what other innocent explanations there are.

[32]

The
    trial judge then went on to review the items of evidence of post-offence
    conduct and he concluded with a reminder that you must consider any other
    explanation for what he may have done or said. It is only if you decide that
    his conduct after the murder is consistent with the guilty conscience that you
    can use this evidence in helping you decide, together with all of the other
    evidence, whether the accused is guilty. It is this last portion of the charge
    on post-offence conduct that the appellant claims is deficient because it does
    not repeat the earlier caution that they must reject any other innocent
    explanation.

[33]

Read
    in context, the challenged wording was simply a reminder by the trial judge of the
    caution he gave at the outset of this portion of the instruction. It emphasized
    the fact that the appellants lifestyle was not on trial and that the jury
    could not infer from the bad character evidence that the appellant was more
    likely to have committed the offence. Read in its entirety, the charge makes
    clear that post-offence evidence was probative, if at all, only if the jury
    were able to reject any other innocent explanation. The final reminder not to
    infer guilt from the bad character evidence did not undermine the clear earlier
    statements.

(3)

Did the trial judge misdirect the jury on first degree murder?

[34]

In
    his factum and in oral submissions, the appellant argued that the trial judge
    committed several errors in instructing the jury as to what was needed to find
    the appellant guilty of first as opposed to second degree murder. The appellant
    alleges three separate misdirections in the instructions: (a) on unlawful
    confinement; (b) on sexual assault; and (c) as to what is necessary to elevate murder
    from second to first degree pursuant to s. 231(5) of the
Criminal Code
,
    R.S.C. 1985 c. C-46.

[35]

I
    will deal with each of these concerns in turn.

(a)

The instruction on unlawful confinement

[36]

The
    appellant does not take issue with the portion of the trial judges charge setting
    out the requirements for first degree murder pursuant to s. 231(5) where the
    murder is accompanied by the additional offence of unlawful confinement. In
    that portion of the charge the trial judge explained that the jury would have
    to conclude that Ms. Wolfes death was

part of a continuing series of events constituting a single
    transaction that establishes both her death and the distinct offence of
    unlawful confinement. The required connection is established if the unlawful
    confinement creates a continuing illegal domination of the victim that provides
    the accused with a position of power which he exploits in order to murder the
    victim.

Confinement that is inherent or necessarily accompanies the act
    of killing is not unlawful confinement which would render first degree murder.

[37]

The
    appellant argues, however, that the trial judge misdirected the jury when, in
    summarizing the Crowns position, he told the jury that:

[T]he Crown argues that the evidence established that the
    murder was first degree since, according to the Crown, the deceased found
    herself confined in the bathroom area as a direct consequence of the accuseds
    actions and that he exploited this position of domination in committing murder.

[38]

In
    the appellants submission there was no basis in the evidence from which the
    jury could conclude that Ms. Wolfe had been confined to the bathroom. In the
    appellants view, Ms. Wolfe was not confined to the bathroom. She had locked
    the bathroom door and the appellant was trying to un-restrain her by breaking
    down the door.

[39]

I
    would reject this submission. Ms. Wolfe was unlawfully confined if for any
    significant period of time she was coercively restrained or directed contrary
    to her wishes, so that she could not move about according to her own
    inclination and desire:
R. v.
Pritchard
, 2008 SCC 59, [2008] 3
    S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at
    trial was that the appellants attempt to un-restrain Ms. Wolfe was to get
    access to her in order to kill her. There is no suggestion that he sought to
    open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe
    having been dragged to the bathroom by the appellant and her being left there
    while he went to the kitchen to obtain a knife. During this time he stood
    between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door
    in the hope that it might prevent further assaults. From the moment the appellant
    left to obtain a knife up until he returned to the bathroom with the knife,
    there can be little doubt that Ms. Wolfe was not free to move about according
    to her own inclination and desire. The appellants submission that she was not
    confined and that he simply sought to un-restrain her is without merit.

[40]

The
    appellant then argues that there was no evidentiary basis for the jurys
    finding that the separate offence of unlawful confinement had been committed. Any
    unlawful confinement that might have occurred in this case was, according to
    the appellant, confinement incidental to the murder. The confinement was part
    of and for the purpose of the murder.

[41]

I
    disagree. Section 231(5)(e) of the
Code
applies when an accused causes
    death while committing or attempting to commit unlawful confinement. As
    Binnie J. wrote for a unanimous Supreme Court in
Pritchard
, at para.
    35, the murder and unlawful confinement must be

linked together both causally and temporally in circumstances
    that make the entire course of conduct a single transaction . The
    temporalcausal connection is established where the unlawful confinement
    creates a continuing illegal domination of the victim that provides the
    accused with a position of power which he or she chooses to exploit to murder
    the victim. [Citations omitted.]

[42]

The
    murder and unlawful confinement, however, must constitute discrete criminal
    acts. They cannot be one and the same. Doherty J.A. explained the rationale in
R.
    v. Kimberley
(2001), 56 O.R. (3d) 18 (C.A.), at para. 108:

[A] confinement which is inherent in the very act of killing
    could not be relied on to impose liability under s. 231(5)(e). This is not
    because there is no confinement, but because s. 231(5)(e) requires two discrete
    criminal acts, a killing that amounts to murder and a confinement that is
    unlawful. It is the occurrence of the two criminal acts in the course of the
    same transaction or series of events that justifies the added punishment
    imposed for first degree murder.

[43]

As
    explained in
R. v. Menard
, 2009 BCCA 462, 281 B.C.A.C 14, at para. 24,
    the confinement and the killing cannot be so closely connected that they are
    coextensive, that the confinement is
consumed
in the killing, that
    they are one and the same (emphasis in original).

[44]

On
    the facts of this case, all of the elements to establish murder are made out in
    the period commencing when the appellant forced his entry into the locked
    bathroom. Everything that had occurred before the appellant broke into the
    bathroom is sufficiently distinct from the killing so as to constitute a
    different offence or several different offences. This would include the initial
    assault by the appellant in the bedroom, his dragging (as suggested by the
    evidence) Ms. Wolfe to the bathroom, confining her by blocking any possible
    escape while he equipped himself with a knife, and his illegal domination of
    her throughout. All of these discrete unlawful acts are linked temporally and
    causally in circumstances such as to make the entire course of conduct a single
    transaction as required under s. 231(5)(e). They are not, therefore, consumed
    in the killing, as explained in
Menard
.

[45]

Whether
    the appellant intended to confine Ms. Wolfe solely for the purpose of killing
    her or for some other purpose is
of no moment. As
    Doherty J.A. explained in
Kimberley
, at para. 107:

[I]f in the course of a continuous sequence of events an
    accused commits the crime of unlawful confinement and chooses to exploit the
    position of dominance over the victim resulting from that confinement to murder
    the victim, then the accused has committed first degree murder as defined in s.
    231(5)(e).
The purpose of the confinement is not relevant
. [Emphasis
    added.]

Similarly, the Supreme Court in
Pritchard
rejected the argument that where the purpose of an unlawful confinement is to
    carry out an offence not listed in s. 231(5), the unlawful confinement does not
    justify the application of s. 231(5). At para. 31, the Court quoted with
    approval the response of the
British Columbia Court of Appeal in
R.
    v. Gourgon
(1979), 19 C.R. (3d) 272, at p. 279: Nothing is expressed or
    implied in those sections
about
the purpose
of the confinement.
    Neither is there anything in the history of the legislation to suggest a
    limitation of that nature to be placed upon the word confinement (emphasis
    added by the Supreme Court).

[46]

Therefore
    the question here is simply whether the appellant
intended
to confine
    the victim, and whether the confinement was a distinct criminal act. The
    appellants ultimate purpose in confining the victim is not relevant to
    assessing the distinctness of the confinement from the act of murder. The trial
    judges instructions adequately conveyed to the jury the
mens rea
requirements of both offences and the importance of deciding whether they were
    discrete criminal acts.

[47]

On
    the evidence there is no way of knowing exactly how long the confinement
    lasted. Ms. Wolfe may have been confined to the bathroom and bedroom areas of
    the home for several minutes or for an hour or more. We do not know. She may
    have been dragged to the bathroom as the evidence suggests or she may have
    found her own way there when the appellant went to get the knife. There was,
    however, ample evidence from which a jury could conclude that it was the
    appellants actions of dominating Ms. Wolfe that led her to take refuge behind
    the locked bathroom door. Ms. Wolfe had no reasonable escape route and was
    confined up until the murder. The confinement was not coextensive with and
    consumed in the killing, but rather created an illegal domination of the victim
    that the appellant then chose to exploit to murder her: see
R. v. Luxton
,
[1990] 2 S.C.R. 711, at p. 723;
Pritchard
,
    at para. 35,
Kimberley
, at para. 107. In other words, there was
    confinement
not
limited to what was integral to the particular act of
    killing disclosed by the evidence:
Pritchard
, at para. 27 (emphasis in
    original).

(b)

The instruction on sexual assault

[48]

The
    appellant raises two objections to the trial judges charge on sexual assault.
    He argues that the trial judge ought to have specifically instructed the jury
    that the appellants intention or lack of intention of a sexual nature is a
    highly relevant factor.

[49]

I
    do not view the trial judges failure to give such a specific direction as
    constituting an error. The trial judge properly instructed the jury on the
    elements of sexual assault. The sexual nature of an assault is to be determined
    objectively from the perspective of a reasonable observer. A sexual purpose or
    intention is not an essential element and the offence may be made out in the
    absence of any evidence of sexual intention and even where the accuseds
    intention was not sexual. This court in
R. v. V. (K.B.)
(1992), 8 O.R.
    (3d) 20 (C.A.), affd [1993] 2 S.C.R. 857, stated as follows, at p. 23:

What elevates
    an assault to a sexual assault will depend on the circumstances of each case. A
    sexual assault does not require sexuality and, indeed, may not even involve
    sexuality. It is an act of power, aggression and control. In general, sexual
    gratification, if present, is at best a footnote.

Just as Parliament criminalized assault because certain conduct
    represents an unacceptable interference with the victims physical integrity,
    Parliament has criminalized sexual assault because it represents an
    unacceptable intrusion upon, or violation of, the victims sexual privacy or
    integrity.

[50]

Intention
    of a sexual nature is simply one factor to be considered in determining whether
    the assault was sexual, the importance of which will vary depending on the
    circumstances:
R. v. Chase
[1987] 2 S.C.R. 293, at p. 302. There was,
    in this case, ample evidence from which a jury could conclude that the assault
    was not only violent but also of a sexual nature. Ms. Wolfe was found almost
    naked, her underwear partially rolled down with a swipe blood pattern near her
    upper buttocks. Her blood-soaked sweatshirt was found nearby in circumstances
    and in a condition suggesting that it had been removed during the attack. The
    trial judge did not, on the facts of this case, err in failing to specifically
    instruct the jury that whether or not the appellant had a sexual intention or
    purpose was a highly relevant factor.

[51]

The
    appellant also submits that the trial judge further erred in his instruction on
    sexual assault when he told the jury that the physical contact that took place
    between the appellant and Ms. Wolfe was of a sexual nature if the contacts
    violated the deceaseds sexual integrity
or privacy
 (emphasis added).

[52]

In
    the appellants submission the insertion of sexual privacy in the charge is
    not supported by the jurisprudence and is overly broad and vague. He argues
    that privacy and integrity are not sufficiently similar to be used
    interchangeably.

[53]

I
    would not give effect to this submission. I acknowledge that the cases in which
    the Supreme Court of Canada has dealt with sexual assault generally refer only
    to the requirement that the contact be in violation of the victims sexual
    integrity. This court in
V. (K.B.)
did, however, refer to sexual
    privacy.

[54]

Given
    that sexual assault requires an underlying assault, I see little difference
    between a violation of sexual privacy and a violation of sexual integrity in
    this context. That is, any assault that violates a persons sexual privacy
    would, it seems, also violate that persons sexual integrity. Further, the
    appellants trial counsel did not raise any issue with this portion of the
    charge and on appeal the appellant did not articulate how a jury may have
    viewed the evidence of the assault as amounting to a violation of sexual
    privacy but not sexual integrity. Although the more prudent route may be to
    refer only to sexual integrity, I do not, on the facts of this case, consider
    the reference to sexual privacy to constitute misdirection.

(c)

The trial judges instruction on what is necessary to qualify as first
    degree murder pursuant to s. 231(5)

[55]

For
    constructive first degree murder to be made out under s. 231(5) of the
Code
,
    the accused must cause death while committing one of the listed predicate
    offences. The trial judge in his jury instructions repeatedly substituted the
    term accompanied by for while committing. In the appellants submission
    accompanied by is a broader term. This raises the concern that the jury may
    have found the appellant guilty of first degree murder even though the two
    offences  whether sexual assault and murder or unlawful confinement and murder
     were not committed in a single transaction.

[56]

This
    error, in the appellants view, was compounded when the trial judge told the
    jury that the events had to be part of the same transaction
or
series
    of events (emphasis added). The appellant maintains that the proper instruction
    is that the offences should constitute one continuous sequence of events
    making up a single transaction. Series of events is, according to the
    appellant, not a permissible alternative and undermines the accepted one
    transaction language.

[57]

I
    would not give effect to this submission. Although it would have been
    preferable had the trial judge used the actual words  while committing  of
    s. 231(5), the charge read as a whole would have conveyed to the jury the requirement
    that the killing to be closely connected both temporally and causally to the
    enumerated offences. On the facts of this case, if the jury determined that the
    underlying offences of unlawful confinement and/or sexual assault occurred,
    then the offences could not have failed to form part of a continuous sequence
    of events making up a single transaction with the murder.

[58]

All
    the evidence led in support of the sexual assault pointed to it being closely
    connected with the murder both temporally and causally. Ms. Wolfe was found
    naked, except for her underwear which had been partially rolled down, and there
    was a bloody swipe mark on her upper buttocks. Her bloodied sweatshirt was
    found next to her. The damage to the sweatshirt indicated that Ms. Wolfe had
    been stabbed while wearing it. Because it would have been difficult to remove the
    sweatshirt after the murder, given the partial decapitation, a reasonable
    inference is that it was removed during the series of events, culminating in
    her murder.

[59]

As
    to the unlawful confinement, it could not be seriously disputed that this would
    have occurred during the same transaction as the murder. In fact, the
    appellants position was that the unlawful confinement in this case was so
    closely connected to the murder that it should be found to be inherent in the
    act of killing.

[60]

Finally,
    I do not share the appellants concern over the trial judge instruction to the
    jury that the events had to be part of the same transaction
or
series
    of events (emphasis added). The expression same transaction or series of
    events has been used by this court in
Kimberley
and by the British Columbia
    Court of Appeal in
Menard
. In addition, as I have explained, once the
    jury concluded that there had been either a sexual assault or an unlawful
    confinement, the jury would, on the facts of the case, inevitably have
    concluded that it was committed as part of the same transaction. I cannot see
    how the trial judges instruction would constitute misdirection.

Conclusion

[61]

For
    these reasons, I would dismiss the appeal.

Paul
    Rouleau J.A.

E.E.
    Gillese J.A.

S.E. Pepall J.A.

Released: June 30, 2014


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kanagarajah, 2014 ONCA 513

DATE: 20140630

DOCKET: M43890 (C56562, C56593, C56594 and C57374)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Rajitha
    Kanagarajah, Ramanan Kenegarajah, Anantha

Neeranjan and Kuhen Neshan

Applicant/Appellant

Ian Scott, for Rajitha Kanagarajah

Paul J.I. Alexander, for Ramanan Kenegarajah

Michael Dineen, for Anantha Neeranjan

Mark Halfyard, for Kuhen Neshan

Molly Flanagan, for the respondent

Heard: June 10, 2014

On motion for an order appointing counsel under s. 684 of
    the
Criminal Code
, R.S.C. 1985, c. C-46.

Juriansz J.A.:

[1]

Each of the four appellants applies for an order appointing counsel
    under s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46. They are
    extended family members who were tried as co-accused on over 100 offences
    related to conspiracy, fraud, money laundering and identity theft. The two men,
    Mr. Kenegarajah and Mr. Neshan, were convicted of many of the counts. The two
    women, Ms. Kanagarajah and Ms. Neeranjan, were convicted of two and three
    counts respectively. Notably, all were convicted of participating in a criminal
    organization between 2005 and 2010.

[2]

After credit for time served, Mr. Kenegarajah was sentenced to six
    years' imprisonment, Mr. Neshan to five and a half years' imprisonment, and Ms. Kanagarajah
    and Ms. Neeranjan received 18-month conditional sentences with house arrest.
    None are now in custody. They are separately represented and their s. 684(1)
    applications are interrelated on some of the issues. Mr. Kenegarajah and Mr.
    Neshan are appealing only some of the many counts of which they were convicted.

[3]

An applicant under s. 684(1) must satisfy the court that it appears
    desirable in the interests of justice that he or she should have legal
    assistance and that he or she does not have sufficient means to obtain that
    assistance.

[4]

Where, as here, it is conceded that the applicants lack sufficient means
    to retain counsel, the applicants, relying on
R. v. Bernardo
(1997
)
,

121 C.C.C. (3d) 123 (C.A.),
    submit the interests of justice involve only two considerations: whether the
    applicant advances arguable grounds for appeal, and whether the applicant can effectively
    advance the grounds of appeal without the assistance of counsel.

[5]

In
Bernardo
, Doherty J.A. observed that the useful list of
    factors indicated in earlier cases reflects these two principles. On my reading,
    he did not intend to exclude the factors indicated in the earlier cases from
    consideration. For example, one of the cases he cited,
R. v. M. (A.)
(1996),
    30 O.R. (3d) 313 (C.A.) (per Austin J.A.), lists the seriousness of the
    matter as one of the factors to be considered. Justice Doherty considered this
    factor at para. 27 of
Bernardo
, stating that [t]he seriousness of the
    offences and sentences imposed work in the appellants favour on this motion.
    This is consistent with decisions of the courts of appeal of British Columbia
    and Saskatchewan:
R. v. Butler
,
2006 BCCA 476,
R. v. Lerioux
, 2014 SKCA 60.

[6]

In another case cited in
Bernardo
,
R. v. LeCompte
,
    [1997] O.J. No. 987 (C.A.), Laskin J.A. took into account the serious
    consequences that a dismissal of the appeal would have for the applicant. I
    note that at para. 27 of
Bernardo
, Doherty J.A., rather than
    dismissing the argument as irrelevant, considered and dealt with the argument
    the appeal would have no practical consequences for the appellant.

[7]

The Crowns position is that the applications should be dismissed
    because the proposed grounds of appeal do not have sufficient merit to warrant
    the appointment of counsel. The Crown concedes that if I find the proposed
    grounds of appeal have sufficient merit I should allow the applications.

[8]

I have already indicated that, in my view, a number of factors may be
    relevant to whether it is in the interests of justice that an accused have
    legal assistance under s. 684. In the circumstances of this case, I accept that
    the determinative factor is the merit of the appeals.

[9]

I consider the applications and grounds of appeal in the order in which
    they were advanced.

(1)

Ms. Neeranjan

[10]

Counsel
    for Ms. Neeranjan submits she has two arguable grounds of appeal.

[11]

Ms.
    Neeranjan was convicted of possession of property obtained by crime. Counsel
    submits the trial judge erred by reversing the burden of proof with regard to
    whether she had knowledge of the criminal activities of her husband,
    Mr. Neshan. I do not regard this ground of appeal as arguable. The reasons
    of the trial judge, when read as a whole, amply support his conclusion that
    the evidence points to her knowledge of the criminal conduct of Neshan and
    Kenegarajah.

[12]

Counsel
    for Ms. Neeranjan submits that she should not have been convicted of participating
    in a criminal organization as the evidence did not establish her involvement in
    an activity that resulted in a direct or indirect benefit to the group. She was
    convicted only of two counts of possession of property obtained by crime based
    on knowledge of or willful blindness to her husbands activities. Crown counsel
    concedes this is an arguable ground of appeal. In my view, it is desirable in
    the interests of justice that she be represented on this ground of appeal.

(2)

Mr. Kenegarajah

[13]

Counsel
    for Mr. Kenegarajah submits that some of the counts of which Mr. Kenegarajah
    was convicted offend the single transaction rule in s. 581(1) of the
Code
.
    Mr. Neshan also advances this argument. For example, count one alleged the
    involvement of all of the accused in the offence of fraud over $5000 between
    2001 and 2010; counts 3-10 and 64 alleged the involvement of Mr. Kenegarajah
    and Mr. Neshan in fraudulent activities and personation between 2001 and 2010;
    and count 92 alleged the involvement of all accused in money laundering between
    1997 and 2010. Counsel submits that the wording of the Information, which
    includes an extended timeframe of almost a decade, offends the single
    transaction rule and that the charges ought to have been quashed.

[14]

The
    trial judge provided detailed reasons for rejecting this argument. He observed
    that the Crown alleged that the means of the fraudulent activity were consistent
    throughout the periods in question and represented a continued course of
    conduct that effectively amounted to a global operation. He concluded that each
    of the impugned counts alleged a single transaction. In my view, the applicants
    do not have an appreciable prospect of persuading a panel of this court to
    interfere with the trial judges conclusion.

[15]

Mr.
    Kenegarajah also submits that the trial judge erred in convicting him on counts
    1 and 92 as these counts were overbroad. These counts alleged time frames of 9
    and 13 years respectively, and there was no admissible evidence of Mr.
    Kenegarajahs participation until the last two years of the range. Counsel
    points out that Mr. Kenegarajah was not even in the province of Ontario until
    April 2008.

[16]

In
    my view, this ground is not arguable. The evidence established
    Mr. Kenegarajahs involvement as early as 2001 in Ontario and the trial
    judge explained why he could consider Mr. Kenegarajahs activities in British
    Columbia.

[17]

Finally,
    counsel for Mr. Kenegarajah points out that a criminal organization means a
    group composed of at least three persons. Ms. Neeranjan, as discussed above,
    has an arguable appeal that she should not have been found to be a member of a
    criminal organization. Counsel for Mr. Kenegarajah argues that Ms. Kanagarajah,
    like Ms. Neeranjan, should not have been found to be a member of a criminal
    organization. That would leave only Mr. Kenegarajah and Mr. Neshan, an
    inadequate number to establish a criminal organization.

[18]

I
    do not regard the submission as arguable as there was evidence to support the
    trial judges finding that Ms. Kanagarajah was a member of a criminal
    organization. She herself was convicted of fraud to support the purchase of a
    property. The trial judge found she tendered or knowingly allowed Mr. Neshan
    and Mr. Kenegarajah to tender a forged letter, purportedly from her employer, to
    the mortgagee. She collected the rent from the tenant, and the trial judge
    found the property was one used by the criminal organization as a means to
    launder money.

(3)

Mr. Neshan

[19]

Mr.
    Neshans application is based on the same submissions as that of Mr. Kenegarajah.
    His application fails for the reasons given in regard to Mr. Kenegarajahs
    application.

(4)

Ms. Kanagarajah

[20]

Ms.
    Kanagarajahs submission that she should not have been convicted of being a
    member of a criminal organization is not arguable, as discussed above.

[21]

Counsel
    for Ms. Kanagarajah submits that while the forged employment letter that was
    used to obtain a mortgage bore her name, there was no evidence that she
    actually commissioned the production of or tendered the forged document to the
    bank for its truth. However, there was much evidence linking her to the
    criminal enterprise. The property was in her name and she collected the rent
    from the tenant occupying the property by meeting him in a restaurant. When the
    police executed a search warrant at 21 Rockport Drive, they encountered her
    inside. A new Mercedes Benz parked at the house had been leased in her name by
    a compromised credit card.  The police seized a Blackberry connected to her
    that revealed over 1000 calls to financial institutions. The trial judge
    explained why he connected this and other incriminating evidence to her and not
    to her husband, Nesarajah, who was acquitted. Against the backdrop of this
    evidence, my view is that Ms. Kanagarajah has slim prospects of persuading a
    panel of this court that the trial judge erred by inferring that she tendered
    or knowingly allowed Mr. Neshan and Mr. Kenegarajah to tender the forged
    letter.

Conclusion

[22]

The
    applications of Ms. Kanagarajah, Mr. Neshan and Mr. Kenegarajah are dismissed.
    Ms. Neeranjans application is allowed and counsel will be appointed to
    represent her in her appeal of her conviction of participating in a criminal
    organization.

R.G. Juriansz J.A.