WARNING

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

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

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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the following
    offences;

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

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

(iii)     REPEALED: S.C. 2014,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

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

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

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

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

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    identify the victim shall not be published in any document or broadcast or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. E.C., 2019 ONCA 688

DATE: 20190904

DOCKET: C64996

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

E.C.

Respondent

Mabel Lai, for the appellant

Ariel Herscovitch, for the respondent

Heard: April 25, 2019

On appeal from the sentence imposed by Justice J.
    Christopher Corkery of the Superior Court of Justice on January 22, 2018.

van Rensburg J.A.:

[1]

The Crown seeks to appeal the respondents
    sentence for sexual interference on the basis that it was demonstrably unfit.

[2]

The respondent was charged with one count each
    of sexual assault and sexual interference. The charges arose out of events
    occurring during the evening of June 24 into the morning hours of June 25, 2015,
    after the complainant, who was 15 years old, and the respondent, who was almost
    22, and their friends were drinking and doing drugs together in a trailer park.
    There was evidence of three sexual encounters between the complainant and the
    respondent: (1) over the clothing fellatio while the group was driving in a
    truck; (2) sexual intercourse in a field near the trailers; and (3) sexual
    intercourse in an enclosed shelter attached to a trailer, called the fuck
    hut. The DNA of both the respondent and another male were identified in oral
    and vaginal swabs, although the complainant had no memory of sexual contact
    with the second individual.

[3]

After a trial by jury, the respondent was found
    guilty on both counts  of sexual interference, contrary to s. 151 of the
Criminal
    Code
, R.S.C., 1985, c. C-46, and sexual assault, contrary
    to s. 271. The sexual assault charge was conditionally stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.
    On the day sentence was imposed, the respondent also pleaded guilty to one
    count of a breach of undertaking. He was sentenced to six months custody, less
    three months pre-sentence credit, for a total sentence of 90 days to be served
    intermittently for sexual interference and 30 days concurrent for the breach of
    undertaking.

[4]

The parties agreed, and the trial judge
    determined, that the least culpable version of events that was consistent with
    the jury verdict was that the respondent had believed the complainant was over
    16 but did not take reasonable steps to confirm her age, and that they had
    engaged in a single incident of
de facto

consensual intercourse in the fuck hut. The respondent was
    sentenced based on this version of the evidence.

[5]

Mitigating factors were: the respondents lack
    of criminal record; the support of his parents and the mother of his young
    child; his meaningful work history; and his sincere efforts toward
    rehabilitation, demonstrated by the measures he had taken since the events
    leading to the charges to address a problem of alcohol dependence.

[6]

There were a number of aggravating factors: first,
    there were two incidents of sexual contact, one of which involved unprotected
    sexual intercourse. The respondent had supplied alcohol to the complainant, and
    she was severely intoxicated at the time of both incidents. The effects of the
    offence on the complainant were profound, as confirmed by her victim impact
    statement, and notwithstanding the trial judges acceptance that it was
impossible
    to determine the degree to which the impact on her was attributable to the
    respondents conduct or the other encounter involving the second male.
At the time of the events, the respondent was in breach of an
    undertaking prohibiting him from purchasing, possessing or consuming alcohol. And,
    finally, in a
Gardiner

hearing (
R.
    v. Gardine
r
, [1982] 2
    S.C.R. 368), the Crown had established that the respondent was a willing
    participant in the first encounter of fellatio in the truck, and that the
    respondent was reckless as to the complainants age.

[7]

The Crown sought a custodial sentence of two
    years less a day, followed by two years probation. The defence sought a
    sentence of 90 days to be served intermittently, or alternatively, six months,
    with credit for pre-sentence custody and house arrest, leaving an effective
    sentence of 90 days.

[8]

In his reasons for sentence, the trial judge
    outlined the various mitigating and aggravating factors (which are consistent
    with the factors I have noted, except as indicated below). He referred to and
    followed
R. v. Hussein
,
    2017 ONSC 4202, as authority that the one-year minimum sentence for sexual
    interference was unconstitutional.
[1]
After referring to a number of cases where offenders had received sentences of
    90 days for sexual interference (but without considering that a number of such
    cases involved very different circumstances from the present case, or were
    silent about the relevant circumstances), the trial judge imposed a sentence of
    six months imprisonment. After credit, the respondent was sentenced to 90
    days, to be served intermittently, on weekends. The trial judge also imposed an
    order of two years probation, with a term that the respondent receive
    counselling for substance abuse issues, a DNA order, a SOIRA registration order
    for 20 years, and a weapons prohibition for ten years, under s. 109 of the
Criminal
    Code
.

[9]

The parties agree that the trial judge erred in
    treating as a mitigating factor the fact that the complainant was three months
    short of her 16th birthday when she was assaulted by the respondent. The Crown,
    however, does not advance this error as a stand-alone basis for this courts
    intervention. Rather, the Crown says that the sentence was demonstrably unfit
because
    it unreasonably departs from the fundamental principle of proportionality, and
    from the acceptable range of sentence for similar offences committed in similar
    circumstances by similar offenders.

[10]

I agree that the sentence imposed on the
    respondent was demonstrably unfit.

[11]

The offence of sexual interference can be
    committed in any number of ways, and with varying levels of moral turpitude.
    The broad range of available sentences is rooted in the infinitely variable
    ways in which the offence can be committed:
R. v. M.B.
, 2013 ONCA 493, at para. 21. Within the wide range of available sentences,
    the court must impose an appropriate sentence  one that is proportionate to
    the gravity of the offence and the degree of responsibility of the offender,
    and, respecting the principle of parity, is proportionate to
sentences
    imposed for similar offences committed in similar circumstances:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[12]

In my view, the six-month sentence imposed by
    the trial judge was too lenient. The sentence did not adequately reflect the
    objectives of deterrence and denunciation, which are key in sentencing offences
    of this kind:
Criminal Code
, s. 718.01;
R.
    v. Al-Shimmary
, 2017 ONCA 122, at para. 6. The sentence
    also was not proportionate to the offenders level of moral culpability and the
    serious circumstances of the offence. Before turning to the appropriate
    sentence, I will address the arguments made by the respondent to support the
    fitness of the sentence imposed by the trial judge.

[13]

First, the respondents counsel asserts that the
    offence in this case was at the less serious end of the spectrum because,
    according to the facts found by the trial judge, the complainant initiated the
    sexual contact with the respondent. I would reject this argument in the
    strongest terms.
De facto

consent of an
    underage complainant is not a defence and cannot be a mitigating factor in a
    case of sexual interference:
Criminal Code
,
s.

150.1(1);
R. v. Hajar
, 2016
    ABCA 222, 39 Alta. L.R. (6th) 209, at para. 1;
R. v. Scofield
,
    2019 BCCA 3, at paras. 8 and 38.
In any event, the
    circumstances of this case were highly aggravating: when the sexual contact
    took place, the complainant was extremely intoxicated by alcohol and drugs, a
    fact that was known to the respondent, and a condition to which he had
    contributed by supplying her with alcohol. Whether she was the
de
    facto

initiator of the sexual contact or not does
    not render the respondents conduct in relation to this vulnerable complainant
    any less morally culpable.

[14]

Nor does the parties relative proximity in age detract
    from the complainants vulnerability, or from the respondents blameworthiness
    in taking advantage of that vulnerability. While a greater discrepancy in age
    can be an aggravating factor, the opposite is not true. It is not a mitigating
    factor that the respondent was only six years and two months older than the
    complainant. The gravamen of the offence of sexual interference was described
    by Feldman J.A. in
R. v. A.B.
, 2015 ONCA 803,
    333 C.C.C. (3d) 382, at para. 45, as follows:

[T]he protection for children is
    not simply from sexual exploitation but from any sexual contact or the
    invitation to sexual contact with adults. Parliament viewed the protection to
    be necessary because of the inherent power imbalance that undermines consent,
    and because of the physical and psychological consequences of a sexual
    encounter between a child and an adult stemming from that imbalance.

See also
R. v. J.D
.
, 2015 ONSC 5857, at paras. 22-24.

[15]

Finally, the respondents counsel argued that
    the sentence imposed by the trial judge could be justified by consideration of
    the respondents aboriginal heritage. I disagree.

[16]

There was information at the sentencing hearing that
    the respondent, who was adopted at birth, is part Cree through his biological great-grandmother.
    There was no
Gladue
report, or even a pre-sentence
    report that might have informed any real consideration of the respondents
    aboriginal heritage as a factor in his sentencing. More is required than a bare
    assertion of aboriginal status:
R. v. F.H.L.
,
2018 ONCA 83, 360 C.C.C. (3d) 189, at
    paras. 38-47;
R. v. Monckton
, 2017 ONCA 450,
    349 C.C.C. (3d) 90, at paras. 114-117;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60. The trial judge
    properly gave little weight to the respondents aboriginal status in sentencing
    in this case, and so would I.

[17]

I agree with the Crown that in all the
    circumstances of this case, the respondent ought to have received a substantial
    reformatory sentence.  Taking into consideration the various aggravating and
    mitigating circumstances that were present here, a sentence of 18 months
    imprisonment was warranted.

[18]

The respondent, who has served the custodial
    part of the sentence imposed by the trial judge, asked that this court stay the
    execution of any further custodial sentence that might be imposed on appeal. The
    respondent asserted that society would be better served by his continued
    rehabilitation, including allowing him to complete his probation order and
    associated counselling, reducing the likelihood that he would commit further
    offences associated with the consumption of alcohol, rather than
    re-incarcerating him.

[19]

No fresh evidence was tendered on the appeal,
    and no information was provided in order that the respondents request could be
    properly considered. As such, the court consulted with counsel, ordered and
    obtained a post-sentence report, and received further submissions. The
    post-sentence report has been considered only for the purpose of determining
    whether to stay the balance of the respondents custodial sentence, and not to
    evaluate the fitness of the sentence that was originally imposed.

[20]

While typically this court has been reluctant to
    re-incarcerate an offender who has served the sentence originally imposed and
    has been released into the community, ultimately the issue is whether the
    principles of denunciation and deterrence require re-incarceration or whether
    the community is best protected if the offender continues along the
    rehabilitative path that he has followed since his release from custody. The
    overarching issue is whether re-incarceration is in the interests of justice:
R.
    v. Davatgar-Jafarpour
, 2019 ONCA 353, at para. 50 (and
    cases cited therein).

[21]

Having reviewed the post-sentence report and the
    submissions of counsel, in the context of the exhibits filed at the sentencing
    hearing and the sentencing judges reasons, in my view it is appropriate to stay
    the execution of the balance of the respondents sentence.

[22]

The respondent completed his sentence in January
    2018, and has been in the community for more than 20 months without incident. He
    has not reoffended. He remains bound by a probation order, until January 2020.
    As the post-sentence report indicates, there is no indication that substance
    use, including alcohol (that played a role in the commission of the offence),
    is an ongoing concern. After receiving social assistance for a number of
    months, the respondent has been working again since at least June 2019. He has
    the ongoing support of his family. There is no question that all of this is
    positive, and consistent with the observations and expectations of the
    sentencing judge.

[23]

This is not to say that the post-sentence report
    is exemplary. The respondent has been resistant to the psychological
    counselling and anger management program directed by his probation officer. Moreover,
    he has yet to fully accept responsibility for the serious harm he caused to the
    complainant.  One of the purposes of sentencing is to promote a sense of
    responsibility in offenders, and an acknowledgment of the harm they have done:
Criminal
    Code
, s. 718(f). While requiring the respondent to serve
    the balance of his sentence in prison is one way to bring home to him the
    seriousness of the offence he committed, it is not the only way. The respondent
    remains bound by a probation order. The law requires that he follow the direction
    of his probation officer, including that he participate in counselling and address
    his anger issues. Failure to follow the direction of his probation officer may
    lead to further legal consequences.

[24]

In the circumstances, while the respondent
    served an inadequate sentence for this serious offence, on balance, I am
    satisfied that the principles of deterrence and denunciation, which are the
    primary sentencing objectives for this offence, can be addressed without
    further incarceration.

[25]

I would therefore allow the Crowns appeal,
    substitute a sentence of 18 months, less pre-sentence credit, and stay the
    execution of the remaining custodial portion of the sentence. All other aspects
    of the sentence imposed by the trial judge will remain in place.

Release:
    September 4, 2019

K. van Rensburg J.A.

I agree. P. Lauwers J.A.

I agree. G.T. Trotter J.A.

[1]

The
    issue of the constitutionality of the one-year mandatory sentence is currently
    before this court, and under reserve in an appeal of
R. v. B.J.T.
, 2016 ONSC 6616.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hakimi, 2019 ONCA 749

DATE: 20190925

DOCKET: C65246

Juriansz, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roehid Hakimi

Appellant

Stephanie DiGiuseppe, for the appellant

Jill Cameron and Katie Doherty, for the
    respondent

Heard: September 16, 2019

On appeal from the conviction entered by
    Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on
    March 3, 2016 and the sentence imposed on January 25, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted by a jury of
    aggravated assault and three firearm offences. He appeals his convictions and
    seeks leave to appeal his 12-year global sentence.

[2]

The victim had
    a confrontation inside an after-hours restaurant with a man who fired a gun
    twice into the ceiling. When the victim exited the restaurant, he was shot in
    the stomach and hand. The central issue at trial was whether the appellant was
    identified beyond a reasonable doubt as the person who fired the shots inside
    the restaurant and as the person who shot the victim.

[3]

At trial, the
    victim and two witnesses recanted from prior statements given to the police.
    One witness, a waiter who was familiar with the appellant, gave two statements to
    the police and testified at the preliminary inquiry. Until trial, he
    consistently identified the appellant as the person who fired the gun inside
    the restaurant, including in a photo line-up. Another witness, the owner of the
    restaurant who was also familiar with the appellant, gave video-recorded police
    statements dated January 8, 2011 and January 18, 2011. He, too, identified the
    appellant in a photo line-up as the person who fired the gun inside the
    restaurant. The victim, who was also a witness, gave a January 14, 2011 video-recorded
    statement to the police describing the shooter and identifying him as the same
    man who also shot his gun inside the restaurant.

[4]

Before this
    court, the appellants counsel advanced a substantive reliability analysis as
    described in the Supreme Court of Canadas recent decision in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865. She argued there was
    insufficient corroborative evidence to establish the threshold reliability of
    the statements. In our view, her reliance on the substantive reliability
    analysis in
Bradshaw
is misplaced. The threshold reliability
    of the statements in this case was established by procedural, not substantive,
    reliability. The Supreme Court in
Bradshaw
reiterated that procedural reliability
    can establish threshold reliability, at para. 28:

Procedural
reliability is established when there are adequate substitutes for
    testing the evidence, given that the declarant has not state[d] the evidence
    in court, under oath, and under the scrutiny of contemporaneous
    cross-examination. These substitutes must provide a satisfactory basis for the
    trier of fact to rationally evaluate the truth and accuracy of the hearsay
    statement. Substitutes for traditional safeguards include a video recording of
    the statement, the presence of an oath, and a warning about the consequences of
    lying. However, some form of cross-examination of the declarant, such as
    preliminary inquiry testimony or cross-examination of a recanting witness at
    trial, is usually required. [Citations omitted; emphasis in original.]

[5]

We find it unnecessary to discuss the circumstances
    of each of the statements in detail. It is sufficient to say the statements
    were video-recorded and the declarants were under oath or were otherwise
    cautioned to tell the truth. Two of the witnesses had been cross-examined at
    the preliminary inquiry. At trial, all three witnesses were effectively
    cross-examined. The trial judge made no error in admitting the statements for
    the truth of their contents.

[6]

The evidence at trial, including the statements,
    readily provided the jury with a basis for finding the appellant was the person
    who fired the gun both inside and outside the restaurant. The verdict was not
    unreasonable.

[7]

Turning to the jury charge, we note that defence
    counsel did not object to the trial judges instructions on identification
    evidence or on post-offence conduct.

[8]

The trial judge gave the jury thorough and
    accurate instructions as to how to approach their assessment of the
    identification evidence. She pointed out the frailties in that evidence and
    adopted the language from
R. v. Miapanoose
(1996), 30 O.R. (3d) 419
    (C.A.). We see no error in her instructions on identification evidence.

[9]

In the context of this case and considering the
    trial judges post-offence instructions as a whole, we are also satisfied the
    jury was not misled in what use could be made of the post-offence conduct
    evidence.

[10]

Accordingly, we dismiss the appellants appeal
    of conviction.

[11]

The appellant also sought leave to appeal his
    global sentence of 12 years, less credit of 32 months on account of
    pre-sentence custody. The trial judge imposed a sentence of eight years for the
    aggravated assault conviction, four years concurrent for the careless use of a
    firearm conviction, four years consecutive for the pointing of a firearm conviction,
    and four years concurrent for the possession of a weapon conviction. She gave
    the appellant credit of 32 months for pre-sentence custody on a 1:1 basis.

[12]

We see no basis for appellate intervention. The
    consecutive term was appropriate as the offences inside the restaurant and
    outside the restaurant were separate transactions. The trial judges
    conclusions on aggravating and mitigating factors were available on the
    evidence before her. The sentence she imposed is not demonstrably unfit.

[13]

The appellant submits the trial judge erred in
    denying him enhanced credit for time served. The trial judge concluded the
    appellant was not a good candidate for early release. This conclusion was open
    to her based on the evidence of his institutional misconduct, his conviction
    for aggravated assault during a prior release, and the escalation in his
    violence. We see no error.

[14]

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

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lisenco, 2019 ONCA 691

DATE: 20190906

DOCKET: C62708

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lisenco Vitali

Appellant

Lisenco Vitali, self-represented

Michael Fawcett, for the respondent

Heard: September 3, 2019

On appeal from the
    conviction entered and the sentence imposed on August 12, 2016 by Justice A.A.
    Ghosh of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to two counts of
    failure to comply with a recognizance and three counts of break and enter a
    dwelling house and commit theft. The sentencing judge acceded to the
    submissions of defence counsel and sentenced the appellant to time served,
    amounting to 585 days of pre-sentence custody credited at 878 days. The
    appellant appeals from both conviction and sentence.

[2]

The appellant argues that his defence counsel
    was ineffective in multiple respects and makes the following unsworn
    allegations:

1.

His lawyer did not provide him with a Russian
    interpreter and he did not understand what was happening when he pleaded
    guilty.

2.

He did not instruct his lawyer to negotiate a
    global resolution.

3.

His lawyer did not explain what time served
    meant.

4.

His lawyer did not provide him with disclosure
    materials, including the DNA report linking his genetic profile to blood found
    at the scene of the break and enters.

5.

His lawyer lied to him by saying his bail was
    revoked

6.

His lawyer made a global resolution on the three
    break and enter charges for which she was not representing him, and for which
    he was represented by another lawyer.

[3]

These allegations are not credible given the record
    of the plea inquiry and the written instructions given to his counsel.

[4]

At the time of the guilty pleas on August 12,
    2016 the appellant indicated that he understood all that was taking place, and
    that he did not want a translator,

DEFENCE COUNSEL: There will be a plea to the
    counts that Mr. Demczur has identified. And I have made the plea inquiry of my
    client and he recognizes that, by pleading guilty to these five counts, that he
    is giving up his right to a trial on each of them. And he advises me that he
    has been promised nothing. He has not been threatened in any way and his is
    doing these pleas on his own volition. And he recognizes that although Mr.
    Demczur and I are making submissions, that Your Honour will be the ultimate
    determination of the sentence.

THE COURT: Very good. He can be arraigned.

THE CROWN: And just for the record, Your
    Honour, Mr. Lisenco was nodding his head in assent

THE COURT: He has been throughout, yes.

THE CROWN:  When [defence counsel] has been
    pleading  or indicating that he understood.

THE COURT: Yes. Mr. Lisenco, everything that
    your lawyer said is correct, right?

VITALI LISENCO: Yes.

THE COURT: Okay.

THE CROWN: And could I just put on the record
    also, it was canvassed with regard to a translator issue, but; we are  we are
    content to go forward without a translator. You understand sufficiently, sir?

DEFENCE COUNSEL: It has been a situation where
    M. Lisenco has been using the services of a translator for nuances, but for the
    purposes of today, he is content to proceed without one.

VITALI LISENCO: Yes.

THE COURT: All right. You have understood
    everything so far?

VITALI LISENCO: I understand everything.

THE COURT: All right.

VITALI LISENCO: Its very  its sometimes
    hard to talk within the court, maybe everything I pronounce is not well, but I
    understand everything.

THE COURT: You understand everything.

VITALI LISENCO:
    Yes sir.

[5]

When asked How do you plead to these five
    counts as read, guilty or not guilty? the appellant responded I plead guilty,
    Your Honour

[6]

The appellant was observed out and about without
    his surety, in breach of the terms of his recognizance. Three houses were
    broken into and property was stolen from them. The DNA found at the scene was
    linked to the appellant. Defence counsel advised that those facts were
    substantially correct.

[7]

The plea followed a pretrial conference with the
    sentencing judge. Defence counsel indicated that the appellant was remorseful
    and that he was led to commit the offences because of a drug problem which he
    had been able to overcome while in custody. Defence counsel indicated that he
    had employment immediately available if a time served sentence was imposed.

[8]

When asked if he had anything to say before
    sentence was imposed, the appellant apologized for his conduct and said that he
    was then free of drug problems.

[9]

The sentencing judge observed that property
    taken in the break and enters had been seized by police and that the Crown
    would not have had difficulty proving some of the charges.

[10]

Contemporaneous notes taken by counsel on April
    15, 2015 record that the appellant wished to retain her on both the Newmarket
    and 1000 Finch charges, and gave her a package he said was disclosure given to
    previous counsel. Trial counsels notes indicate she told him that it was not
    safe to work with partial disclosure, that she needed the complete package. The
    notes indicate that she verified the appellants comprehension of English and
    that he told her he understood her well. He told her that his DNA would be in
    three homes and that the Crown had nothing on the other counts. He asked her to
    be his lawyer for all charges, and listed them for her in his own handwriting.
    She noted her agreement to act for him on all the charges.

[11]

Some 11 months before pleading guilty on
    September 24, 2015, the appellant gave his lawyer written instructions. Those
    instructions indicate that he rejected the resolution offer from the Crown to
    plead to 7 of the 16 counts of break and enter. Those instructions tell his
    counsel to go back to the Crown with a counter offer of a guilty plea to the 3
    counts of break and enter for which there was DNA evidence linking him to the
    offence (he specified the addresses of those properties) plus 2-3 counts of
    possession of Stolen property or 1-2 counts of breach of recognizance for time
    served. He specifically instructed counsel that he did not want to seek bail
    at this time.

[12]

Trial counsel advised that the Crown initially
    rejected the appellants counter-proposal, and the appellant instructed his
    counsel to continue to advocate for his proposed resolution. She did so at a
    further judicial pretrial on November 16, 2015 and on December 2, 2015 counsel
    set trial dates for the Newmarket charges.

[13]

There was a change in the assigned Crown. There
    was a further judicial pre-trial on July 19, 2016 at which the presiding judge
    expressed his approval of the defence position in the event of a resolution. On
    July 21, 2016, trial counsel says the appellant authorized her again to proceed
    with the resolution on the same terms as his written instructions to her.

[14]

The claims of ineffective assistance do not
    withstand scrutiny given the written instructions given to counsel, the express
    waiver of the need for a translator in court, and the guilty plea proceedings
    themselves. There is no basis to conclude that the appellant did not completely
    understand what was happening and did not agree to the resolution of the
    matters on terms he dictated. There is no basis to conclude that there was any
    miscarriage of justice arising from any procedural unfairness, or compromise of
    the reliability of the result. It is apparent that the appellant understood the
    process in which the plea was entered, could communicate with counsel and could
    make a conscious choice. (See
R. v. Cherrington
, [2018] O.J. No. 4012)

[15]

There is no basis upon which this court could
    intervene on the sentence appeal, given the record before this court.

[16]

Leave to appeal sentence is granted but the
    appeal from sentence is dismissed. The appeal from conviction is dismissed.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Melnyk, 2019 ONCA 697

DATE: 20190906

DOCKET: C66729

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Walter Melnyk

Appellant

Walter Melnyk, self-represented

Michael Fawcett, for the respondent

Heard and released orally: September 4, 2019

On appeal from the order of Justice Maureen D. Forestell
    of the Superior Court of Justice dated, March 20, 2017.

REASONS FOR DECISION

[1]

Mr. Melnyk appeals from the refusal of Forestall J. to grant
mandamus
with
certiorari
in aid in relation to a decision of a justice of the
    peace refusing to issue process on a private prosecution initiated by Mr.
    Melnyk.

[2]

At the outset of the hearing, Mr. Melnyk sought an adjournment on the
    grounds that firstly, this appeal should for reasons of efficiency be combined
    with another appeal relating to events occurring after the proceedings which
    gave rise to this appeal and secondly, because he has had difficulty preparing
    for the hearing because of his personal situation. This request was refused.
    This hearing must be decided on the record before us. The issue is whether
    Forestall J. erred having regard to the record before her.

[3]

The allegations relate to events in 2008, a pre-enquete in 2016 and the
    application judges decision of 2017. This matter has been set for hearing
    since April 2019 and fairness requires that the appeal proceed today rather
    than acceding to a request made for the first time on the date of the hearing
    of this appeal, without supporting evidence.

[4]

The appellant has not identified any error in the reasons given by
    Forestall J. and we agree with those reasons. Forestall J. concluded that the
    justice of the peace had not committed any jurisdictional error, consisting of any
    breach of the rules of natural justice, or any other error permitting review by
    the Superior Court.

[5]

Accordingly, the appeal is dismissed.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.