COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2017 ONCA 238

DATE: 20170322

DOCKET: C60408

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Candice Dwyer

Appellant

Breana Vandebeek, for the appellant

Surinder Singh Aujla, for the respondent

Heard and released orally:  March 20, 2017

On appeal from the conviction entered on January 12, 2015
    by Justice Sproat of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted of importing cocaine into Canada.  She
    appeals conviction only.

[2]

There is one ground of appeal.

Did the trial judge err in refusing the defence request for a
    good character instruction?

[3]

The adequacy of a jury instruction is measured by reference to the
    specific issues raised in the case and the evidence adduced by the parties.
    This was a one issue case  had the Crown proved beyond a reasonable doubt that
    the appellant knew there was cocaine in her purse when she entered Canada at
    Pearson Airport?

[4]

The appellant testified and denied that she knew the cocaine was in her
    purse.  She explained that her friend had given her the purse shortly before
    she left St. Lucia.  It was the defence position that this person had
    befriended the appellant intending to use her to smuggle two kilograms of
    cocaine into Canada.

[5]

In her evidence in-chief, the appellant indicated that she had no
    criminal record and described her positive educational and employment
    background.  She was not cross-examined on these matters.

[6]

The trial judge instructed the jury that the Crown was obligated to
    prove that the appellant knew that the drugs were in her purse.  He told the
    jury that the Crown had to prove knowledge beyond a reasonable doubt and that
    the jury should consider all of the evidence relevant to that issue, including
    the appellants evidence.  The trial judge then specifically highlighted five
    areas of the evidence relevant to knowledge at the same time emphasizing to
    the jury that it could consider other parts of the evidence referred to by
    counsel.  The five areas highlighted by the trial judge included the following:

the evidence of Ms. Dwyer that she had no criminal record and
    was employed at this time in her own business

[7]

In our view, the jury would have understood that the appellants
    positive antecedents and absence of any criminal record could support the
    inference that she did not know that she was bringing cocaine into Canada.  The
    trial judges instruction that her absence of criminal record and background
    were relevant to knowledge could not be taken by the jury in any other way.

[8]

Later in his instruction, the trial judge summarized the appellants
    evidence, including her background and her evidence that she had no criminal
    record.  Shortly afterwards, in summarizing the position of the defence, the
    trial judge indicated that the defence position that the appellants evidence could
    be relied on was supported in part by the evidence of her background.  He
    indicated:

Ms. Dwyers testimony in court accounted for all the pieces of
    the evidence.  She was cooperative with the police at the time of the
    investigation.  Her evidence in court was challenged, but uncontradicted.  It
    was both internally and externally consistent.  She was also gainfully employed
    at the time, and has no criminal record.  The defence says that Ms. Dwyer was
    simply a truthful witness.

[9]

In our view, the trial judge properly treated the evidence of the
    appellants background and absence of any criminal record as relevant to the
    issue of knowledge and the appellants credibility.  The reference to the
    evidence within the context of the instruction on knowledge was appropriate
    given the nature of the case and the fact that knowledge was the only live issue
    at trial.  A separate, more general, character evidence instruction was
    unnecessary, probably redundant, and potentially confusing.

[10]

It follows from our assessment of the charge that we cannot accept the
    argument that trial counsel was somehow misled in making his closing
    submissions by the contents of the email provided by the trial judge outlining
    his initial reasons for declining to give a character evidence instruction.  We
    repeat, no character evidence instruction was necessary given the instruction
    on knowledge.

[11]

We should not be taken from these reasons as accepting that an accused
    who testifies that he or she has no criminal record necessarily puts his or her
    character in issue for all purposes.  In our view, that is an open question in
    this court.

[12]

The appeal is dismissed.

Doherty J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2017 ONCA 245

DATE: 20170324

DOCKET: C61875

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Graham

Appellant

Richard Litkowski, for the appellant

Joseph Selvaratnam, for the respondent

Heard and released orally: March 17, 2017

On appeal from the sentence imposed on August 21, 2015 by
    Justice P.A. Hardman of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal his sentence of three years
    following a guilty plea to possession for the purpose of trafficking of two
    ounces of methamphetamine.  Other charges were withdrawn.  The guilty plea was
    given ten days after arrest.  As counsel on appeal submitted, it is a very
    early guilty plea which is entitled to a substantial credit in the sentencing
    process.  See
R. v. Mann
, 2010 ONCA 342, at para. 21.

[2]

The appellant was a young man of 29 at the time with a very difficult
    background from a very young age including sexual abuse by his stepfather and
    early drug addiction.  He has a significant record but with no drug offences.
    His longest previous sentence was 2-1/2 years.

[3]

At the guilty plea and sentencing proceeding, Crown counsel asked for a
    penitentiary term of three years and defence asked for two years.  While the
    sentencing judge indicated that a great deal of credit needed to be given for
    the early guilty plea, she imposed the sentence suggested by the Crown.  Nor is
    there any other indication that credit was actually given for the early plea
    which not only indicates remorse but saves the system substantial cost.  Further,
    the case law brought before this court confirms that three years is at the high
    end for this quantity of methamphetamine.

[4]

In our view, the sentencing judge erred in principle by failing to give any
    real credit for the early guilty plea in this case.  As a result, this court is
    entitled to impose the sentence that it considers fit in the circumstances.

[5]

In our view, two years in penitentiary was a fit sentence having regard
    to not only the early guilty plea but also the appellants very difficult
    background circumstances.  We have also been given further information by counsel
    of the appellants progress in the institution, where he has achieved a number
    of high school equivalency credits.  He appears to have done well, which is
    encouraging with respect to his prospects for rehabilitation.

[6]

Leave to appeal sentence is therefore granted and the sentence is
    reduced to two years.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2017 ONCA 244

DATE: 20170324

DOCKET: C61981

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Green

Appellant

Lance Beechener, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: March 17, 2017

On appeal from the sentence imposed on October 13, 2015 by
    Justice Edward M. Morgan of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal his sentence based on the failure of
    the trial judge to give credit for restrictive bail terms following
R. v.
    Downes
(2006), 205 C.C.C. (3d) 488 (Ont. C.A.).

[2]

The trial judge addressed the issue at paragraphs 25-26 of his reasons.
    It appears clear that he misapprehended the amount of time that the appellant
    was out on bail.  He referred to 42 days, which was the amount of time the
    appellant was held in custody before he was first released on bail.  However,
    he was actually out on bail for 18 months.

[3]

The trial judge rejected the request for credit on the basis that bail
    conditions which allowed the appellant to be out accompanied by one of his
    sureties were not that onerous.

[4]

In our view, this approach by the trial judge was informed by what he
    misunderstood to be the short duration of the bail term.  However, had he
    understood that the appellant was on a house arrest regime similar to that in
Downes
for 18 months, he would have given the five months credit requested by defence
    counsel.  We note that Crown counsel at trial did not take any position on the
    defence request for credit for difficult bail conditions.

[5]

We are also satisfied that, given the way the trial judge addressed the
    issue, had he understood that the bail was for 18 months under restrictive
    conditions, he would have considered it appropriate to give credit for the
    strict bail conditions as part of his consideration of a fit sentence.

[6]

In the result, leave to appeal sentence is granted and the sentence is
    reduced by five months.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamilton, 2017 ONCA 179

DATE: 20170302

DOCKET: C60116

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rheal Michel Hamilton

Applicant/Appellant

Jonathan Dawe, for the appellant

Craig Harper, for the respondent

Heard: February 2, 2017

On appeal from the convictions entered on December 5,
    2014, by Justice Anne Mullins of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.:

OVERVIEW

[1]

A Rogers Wireless store was robbed.  Shortly
    afterwards, Rheal Michel Hamilton (the appellant) was arrested in connection
    with the robbery.  He was placed in the back of a police cruiser.  After having
    been read his rights to counsel, the appellant told the arresting officer that
    he wanted to speak to duty counsel.  Despite that, the officer continued to
    question him.  The appellant answered by giving an exculpatory statement about his
    whereabouts shortly before the robbery (the First Statement).

[2]

At the police station, the appellant spoke by
    telephone with duty counsel for four or five minutes.  Approximately an hour
    and a half later, the appellant was interviewed by a different police officer.
    During the interview, the appellant acknowledged that duty counsel had advised
    him not to speak to the police.  The interviewing officer also advised the
    appellant of his right to silence.  However, he did not tell the appellant that
    nothing the appellant had already said to the police should in any way affect
    his decision whether to speak with them at that time.  Over the course of the
    interview, the appellant gave substantially the same exculpatory statement as
    he had before (the Second Statement).

[3]

The appellant and his co-accused were tried
    together on charges arising from the robbery.  The trial took place before a
    judge and jury.

[4]

A pre-trial
voir dire
was conducted
    concerning the admissibility of statements that each of the accused had given
    to the police.  The trial judge admitted the Second Statement.

[5]

The appellant testified at trial and advanced an
    alibi that was consistent with the Second Statement except that he said that,
    just prior to the robbery, he had been with his spouse as opposed to a woman
    named Sasha.

[6]

The jury found the appellant guilty of all
    charges against him (robbery, using an imitation firearm in the commission of
    an indictable offence, unlawful confinement, and wearing a disguise with intent
    to commit an indictable offence).  He was sentenced to a net term of 27 months
    and 10 days imprisonment.

[7]

He appeals against conviction on the basis that
    the trial judge should not have admitted the Second Statement.

[8]

For the reasons that follow, I would allow the
    appeal, quash the convictions and order a new trial.

BACKGROUND IN BRIEF

[9]

At approximately 9:05 p.m. on November 23, 2011,
    three men robbed a Rogers Wireless store in Vaughan, Ontario.

[10]

Exterior security footage from a Tim Hortons
    restaurant in the same plaza as the Rogers store showed the appellant walking
    across the parking lot approximately ten minutes after the robbery had ended.
    A short while later, a bystander reported to the police that someone had been
    seen running west along Highway 7.

[11]

Police Constable McCallum drove along the
    highway and saw the appellant in the plaza of a Wendys restaurant.  PC
    McCallum thought that the appellant matched the description of one of the
    suspects that had been aired over police radio, so he detained him.  He asked
    the appellant where he was coming from and the appellant replied, Tim
    Hortons.  PC McCallum searched the appellant for weapons, and told him that he
    was investigating an armed robbery at the Rogers store.

[12]

The appellant was then turned over to PC Armas,
    who had arrived in his own cruiser just behind PC McCallum.

[13]

At 9:23 p.m., PC Armas arrested the appellant
    and placed him in the rear of his police cruiser.  Approximately eight minutes
    after his arrest, PC Armas apprised the appellant of his rights to counsel.  After
    having been cautioned, the appellant indicated that he understood the information
    that he had been given.  He also told PC Armas that he wanted to speak with
    duty counsel.

[14]

Nonetheless, PC Armas continued to question the
    appellant.  The appellant made the First Statement to PC Armas, most of which
    was in response to questions by PC Armas after the appellant had indicated that
    he wanted to talk to duty counsel.

[15]

The essence of the appellants First Statement
    was that he had been taking the bus to Toronto along Highway 7 from his home in
    Brampton with a woman named Sasha Costello; they had argued; he had left the
    bus and was on his way to Wendys when he was detained by the police.

[16]

The appellant arrived at the police station with
    PC Armas shortly before 10 p.m.  Shortly after midnight, the appellant spoke privately
    with duty counsel, by telephone, for four or five minutes.

[17]

At approximately 1:45 a.m., the appellant was
    taken to an interview room, where DC Abreu questioned him.  The interview lasted
    until 3:36 a.m, with several breaks.  It was recorded by video and supervised
    by another officer.  During the interview, DC Abreu advised the appellant of
    his right to silence. But, he did not tell the appellant that his decision
    whether to speak with them should not be influenced by anything the appellant had
    already told the police

[18]

DC Abreu testified that although he expected to
    be briefed about any statements that the appellant had made to other police
    officers before he interviewed the appellant, at the time of that interview, he
    was unaware of the First Statement.

[19]

During his interview with DC Abreu, the
    appellant made the Second Statement, which was substantially similar to his
    First Statement.  He said that he and Sasha had been taking the York Region Transit
    #77 bus along Highway 7 and were travelling to Sashas home in Toronto.
    However, after they got into a fight he got off the bus at the stop in front of
    the plaza in which the Tim Hortons was located.  He said that he first went
    into the Tim Hortons but changed his mind and, while he was walking down the
    road to Wendys, he was arrested.

[20]

During the interview, the appellant mentioned
    several times to DC Abreu that he was repeating what he had already told the
    police.  For instance, when DC Abreu asked the appellant what he had been doing
    in Vaughan, the appellant began his answer by saying, I already talked to them
    about that.  The appellant then told PC Abreu what he had previously told PC
    Armas, namely, that he had been taking the bus with a friend.  When DC Abreu
    asked for the friends name, the appellant replied, Sasha. I already gave that
    to the police.

THE IMPUGNED RULING

[21]

The Crown brought a pre-trial motion in which it
    sought to adduce the Second Statement in order to discredit the appellants
    story as a fabrication and to invite the jury to infer consciousness of guilt.
    The Crown did not seek to adduce the First Statement.

[22]

The defence conceded the voluntariness of the
    statements and brought its own application to have the statements excluded on
Charter
grounds.  In that application, the appellant maintained that PC Armas had
    infringed his s.10(
b
) rights by continuing to question him after he had
    indicated his wish to speak with duty counsel and that the Second Statement was
    tainted.  He submitted that both statements should be excluded under s. 24(2)
    of the
Charter
.

[23]

When the pre-trial
voir dire
was conducted,
    both Crown and defence counsel mistakenly believed that the First Statement had
    not been audio-recorded.

[24]

Following the
voir
    dire
, in a ruling dated October 21, 2014 (the
    Original Ruling), the trial judge ruled that the Second Statement was admissible.
    She began by considering the voluntariness of the statements.  She concluded
    the voluntariness section of her analysis at para. 55 of her reasons, saying:

[55] Assuming for these analytic purposes, [the
    appellants] utterances at the scene were involuntary, and obtained in
    circumstances of a breach of his
Charter
rights, the admissibility of
    his [Second Statement] must be assessed on the basis of a number of factual
    determinations. These include the time between the [First Statement] and the [Second
    Statement], any advertence to the [First Statement], the presence or not of the
    same officers, and any other similarities of circumstances.

[25]

The validity of the trial judges reasons for
    admitting the Second Statement is in issue in this appeal.  Thus, I set them out
    below.

Tainting
     Mr. Hamilton [the appellant]

[56] In the case of
R. v. I & T
,
    jurisprudence is cited that confirms that there is no hard and fast rule.
    Tainting of a statement may be found if the same disqualifying circumstances
    are considered to be prevalent in the second statement, as were present at the
    first statement. Or that the evidence establishes that a first statement is a
    substantial contributing factor to the making of the second.

[57] Here the defence submits that Mr.
    Hamiltons [Second Statement] was tainted in that utterances attributed to him
    by Officer Armas to the effect that he was coming from Tim Hortons, that he had
    traveled by bus, that he was intending to visit a girlfriend, and/or was accompanied
    by that girlfriend, must have preyed on Mr. Hamiltons mind during the giving
    of his formal statement while interviewed by Officer Abreu.

[58] When the specific examples that are cited
    by the defence are considered, those at pages 14, 9 to 10, 18 to 19, 22, 33 and
    36 to 37, and having viewed the video-recorded statement, this is simply not
    borne out.

[59] Officer Abreu related to Mr. Hamilton
    during the video-recorded statement that witnesses had observed him running
    towards Wendys from Tim Hortons. Mr. Hamilton was not confronted with any
    allegation of having made a statement to any other officer as to his presence
    at Tim Hortons. Likewise, Mr. Hamiltons account of having been on a bus
    intending to visit a friend is not prompted by any assertions to him, of having
    recounted this previously to any other officer.

[60] In short, there is no demonstrable
    relationship between any utterance earlier made by Mr. Hamilton and his [Second
    Statement] that can be discerned as having subverted his choice to speak or not
    with Officer Abreu.

[61] Since the Crown is not seeking to tender
    the utterances of Mr. Hamilton that preceded his video-recorded statement, I
    need not make a ruling as to their voluntariness, nor given my finding that
    there was no taint of the latter by the former, need I make a ruling that
    excludes any earlier utterances from being given in evidence.

[26]

When counsel subsequently discovered that an
    audio recording of the First Statement was available, the trial judge granted
    leave to the defence to re-open its
Charter
application.

[27]

In a very brief decision dated November 4, 2014,
    the trial judge affirmed the Original Ruling.

THE ISSUES

[28]

On appeal, the appellant submits that:

1.

the trial judge applied the wrong test when
    deciding whether to admit the Second Statement and that application of the correct
    legal test leads to the conclusion that the Second Statement was tainted by the
    First Statement; and

2.

both statements should be excluded under s.
    24(2) of the
Charter
.

[29]

The Crown argues that the appellant should not succeed
    on either issue.  If he does, however, the Crown submits that:

3.

even if the Second Statement is excluded, the
    curative proviso should apply.

ANALYSIS

Issue #1      The Second Statement
    was Tainted

[30]

The appellant submits that, when deciding
    whether to admit the Second Statement, the trial judge applied the wrong test
    and made the same error that this court identified in
R. v. Plaha
(2004),
    188 C.C.C. (3d) 289 (Ont. C.A.).  He contends that a proper consideration of
    the temporal, contextual and causal connections between the First and Second Statements
    leads to the conclusion that the Second Statement was tainted.

[31]

The Crown submits that the Second Statement was
    not obtained in a manner that infringed the appellants
Charter
rights.
    The Crown contends that if there was a breach of the appellants rights in
    respect of the First Statement, the events that occurred between the First
    Statement and the Second Statement severed the two such that the Second
    Statement took place after a fresh start.

[32]

I accept the appellants submission.  To explain
    why, I begin by considering
Plaha
and the legal test that it
    established.  I then review the trial judges reasons to show that she did not
    decide whether the Second Statement was tainted using the
Plaha
test.
    Thereafter, I apply the
Plaha
test to the present case and show why the
    Second Statement was tainted.  Finally, I explain why no fresh start occurred
    in this case.

Plaha

[33]

In
Plaha
, the accused was charged with the
    murder of his wife.  He was detained following the killing.  During his interrogation
    by the police, the accused made five statements.  The trial judge found that the
    first, second and third statements had been obtained in violation of the
    accuseds right to counsel.  He excluded those statements.  He also excluded
    the fifth statement on the basis that it was involuntary.

[34]

However, the trial judge admitted the fourth statement
    (the impugned statement), which the accused made after consulting with
    counsel.  At the time that the impugned statement was made, the interviewing
    officers did not make mention of the accuseds earlier statements.  However,
    they failed to tell the accused that he was not obliged to speak with them and
    that nothing he had already said to the police should in any way affect his
    decision to speak to them at that time.

[35]

The trial judge found that the impugned
    statement was not obtained in a manner that infringed the accuseds right to
    counsel and was not tainted by his previous statements.  The accused was
    convicted.  He appealed to this court.

[36]

This court allowed the appeal.  It held that despite
    the impugned statement having been made after the accused had spoken with
    counsel, because of the breaches of the accuseds right to counsel that
    occurred prior to that consultation, the impugned statement was tainted and
    should have been excluded under s. 24(2) of the
Charter
.

[37]

Doherty J.A., writing for the court, explained
    that if the impugned statement was considered in isolation from the earlier
    statements, there was no
Charter
violation and, hence, no question of
    excluding it under s. 24(2).  However, the impugned statement could not be
    considered in isolation.  Its admissibility had to be resolved under s. 24(2)
    of the
Charter
:
Plaha
, at para. 42.

[38]

Doherty J.A. explained that there are two
    components to the s. 24(2) analysis.  The first is a threshold requirement: was
    the impugned statement obtained in a manner that infringed a
Charter
right?
    If that threshold is crossed, one turns to the second evaluative component of
    s. 24(2) to determine whether the admission of the impugned evidence would
    bring the administration of justice into disrepute:
Plaha
, at para. 44.

[39]

A generous approach is to be taken to the
    threshold issue. As Doherty J.A. explains at para. 45 of
Plaha
:

A causal relationship between the breach and
    the impugned evidence is not necessary. The evidence will be obtained in a
    manner that infringed a
Charter
right if on a review of the entire
    course of events, the breach and the obtaining of the evidence can be said to
    be part of the same transaction or course of conduct. The connection between
    the breach and the obtaining of the evidence may be temporal, contextual,
    causal or a combination of the three. The connection must be more than tenuous:
R. v. Goldhart
(1996), 107 C.C.C. (3d) 481 (S.C.C.), at 492-497.

[40]

A temporal connection between the
Charter
breach
    and the subsequent obtaining of a statement will usually suffice to bring the
    statement within the ambit of s. 24(2).  The measurement of the temporal
    connection is more than simply counting the minutes or hours between the two.
    Events that occur during the time interval can colour the significance of the passage
    of time:
Plaha
, at paras. 48-49.

[41]

Doherty J.A. found that the temporal connection
    in
Plaha
was made out.  The accused made the impugned statement some six
    and a half hours after the last violation of his right to counsel.  The mere
    ticking of the unheard clock could not distance the impugned statement from
    the earlier events because during the intervening period, the accused had been
    sitting by himself in a small interview room and was under the total control
    of the authorities:
Plaha
, at para. 49.

[42]

He also found that there was a contextual
    connection between the impugned statement and the earlier ones; the second,
    third and fourth statements were taken in the same place, by the same two
    police officers, using the same approach:
Plaha
, at para. 51.

The trial judge did not
    apply the
Plaha
test

[43]

The Crown submits that because counsel argued
Plaha
before the trial judge and the judge is presumed to know the law, this
    court should assume that the trial judge applied the correct legal test.  I do
    not accept this submission for three reasons.

[44]

First, the trial judge stated that the
voir
    dire
was to determine the voluntariness of the statements of the
    co-accused (Original Ruling, at para. 45), even though defence counsel for the
    appellant had conceded that voluntariness was not in issue in respect of the
    First and Second Statements and had framed his application exclusively in terms
    of the
Charter
.

[45]

Second, in determining whether the Second
    Statement was tainted, the trial judge referred only to
R. v. I. (L.R.) and
    T. (E.),
[1993] 4 S.C.R. 504, which addresses the admissibility of
    statements under the common law rules relating to confessions.  The trial judge
    did not set out or allude to the
Plaha
test for determining whether,
    when the police have obtained a statement in violation of s. 10(
b
), and
    the suspect gives a second statement after having consulted a lawyer, the
    second statement was obtained in a manner that infringed the
Charter
.

[46]

Third, the trial judges analysis focused
    entirely on whether the Second Statement was causally linked to the First
    Statement, and gave no consideration to the temporal or contextual connections
    between the two statements.

[47]

As para. 45 of
Plaha
(set out above) makes
    clear, a causal relationship between the breach and the Second Statement was
    not necessary.  However, the trial judge had to determine whether there was a
    temporal, contextual or causal link, or some combination of all three, between
    the First and Second Statements such that the Second Statement could be said to
    be part of the same transaction or course of conduct.  The sufficiency of the
    connection between the
Charter

breach and the subsequent statement could
    be determined only by a case-specific factual inquiry:
Plaha
, at paras. 45 and 47.  The trial
    judge did not undertake such an inquiry.

T
he
Plaha
test applied
    to this case

[48]

In the present case, after the appellant
    expressed a wish to see a lawyer, PC Armas continued to question the appellant.
    His failure to hold off further questioning until the appellant had spoken to
    counsel was a breach of the appellants s. 10(
b
) rights:
R. v.
    Prosper
, [1994] 3 S.C.R. 236, at p. 269.

[49]

Thus, in accordance with
Plaha
, to decide
    whether the Second Statement was tainted, the court must review the entire
    course of events from the breach to the Second Statement to determine whether
    the Second Statement can be said to be part of the same transaction or course
    of conduct.  In its review, the court must consider the connection between the
    breach and the obtaining of the Second Statement.  The connection may be temporal,
    contextual or causal, or some combination of the three but it must be more than
    tenuous (
Plaha
, at para. 45).

[50]

In my view, the temporal and contextual
    connections between the First and Second Statements bring the latter within the
    ambit of s. 24(2).

[51]

In the present case, there was a shorter
    separation in time between the appellants two statements than there was in
Plaha
.
     In
Plaha,
six and a half hours passed between the earlier statements
    and the making of the impugned statement.  In this case, the Second Statement
    was made four hours after the First Statement.  And, just as in
Plaha
,
    apart from the brief period of his telephone conversation with duty counsel,
    the appellant passed his time between the making of the two statements under
    the total control of the authorities.  Thus, the passage of a few hours between
    the breach and the Second Statement could not distance the latter from it.

[52]

As
Plaha
indicates, a temporal connection
    between the
Charter
breach and the subsequent obtaining of a statement
    is usually sufficient to bring the statement within the ambit of s. 24(2):
Plaha
,
    at para. 48.

[53]

In any event, in my view, there is also a close
    contextual link between the appellants two statements.  From the appellants
    perspective, DC Abreus interrogation was a continuation of PC Armas earlier
    questioning.  Although DC Abreu never confronted the appellant with his
    statement to PC Armas, the appellant noted several times that he was repeating
    what he had already told the police (i.e., PC Armas).

No Fresh
    Start

[54]

The police can make a fresh start by clearly
    severing their subsequent interrogation from the earlier
Charter

breach:
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 3.  The Crown
    contends that the Second Statement was made following just such a fresh start.
    In support of this contention, the Crown points to the following: the appellant
    received legal advice from duty counsel before the interview in which he gave
    the Second Statement; the appellant was given a further caution before the
    Second Statement was made; different officers were involved in the interview
    that led to the Second Statement than were involved when the First Statement
    was made; and, the Second Statement was given without the interviewing officer
    making reference to the First Statement.

[55]

I do not agree that a fresh start occurred in
    this case.

[56]

An accuseds consultation with counsel can have
    the effect of severing a subsequent statement from an earlier breach of the
    right to counsel but it does not automatically immunize the subsequent
    statements:
Plaha
, at para. 47.

[57]

I acknowledge all of the following: the
    appellant received legal advice after the First Statement and before he made
    the Second Statement; the appellant told DC Abreu that he was aware of his
    right to silence and that duty counsel had told him not to speak to police; the
    appellant was aware of the charges that he faced throughout; during the
    interview, DC Abreu affirmed the appellants right to silence; and, DC Abreu did
    not refer to the appellants First Statement during his interview with the
    appellant.

[58]

However, just as in
Plaha
, in the present
    case the police knew or ought to have known that the First Statement was taken
    in violation of the appellants s. 10(
b
) rights and would not be
    admissible.  Had they hoped to obtain a statement free of the possible effects
    of the earlier breach, they should have followed the clear guidance given in
    para. 53 of
Plaha
and:

made it clear to the [appellant] that he was
    not obliged to say anything to them
and more importantly, that his decision
    whether to speak with them should not be influenced by anything he had already
    said to them
. [Emphasis added.]

[59]

While DC Abreu did tell the appellant that he
    was not obliged to say anything to them, he did not tell the appellant that his
    decision whether to speak with them should not be influenced by anything he had
    already told the police (the secondary caution).

[60]

This courts decision in
R. v. Woods
,
    2008 ONCA 713, 79 W.C.B. (2d) 753 shows that a secondary caution will not
    always be necessary to prevent the tainting of a later statement.  However,
    the facts of
Woods
are materially different from those in the present case.

[61]

In
Woods
, the appellant made an initial
    statement to the police in similar circumstances to those of the present case.
    The appellant answered questions put to him while he was in the police cruiser
    on the way to the police station, in violation of his s. 10(
b
) rights.  At
    the time he made the initial statement, the appellant was under arrest for
    assault and weapons charges.

[62]

When the appellant arrived at the police
    station, he was taken to an interview room and told that he was now charged
    with murder.  The police made it clear that he was not obliged to speak to
    them.  However, the police did not give the appellant a secondary caution.

[63]

In the four-hour period that followed the
    appellants arrival at the police station, he spoke with three different lawyers
    for a total of more than 50 minutes before making his second statement.  During
    that period, the police made no effort to question the appellant except about
    the victims next-of-kin.

[64]

In short, in
Woods
, the second
    statement was made more than six hours after the appellant was advised that he
    faced new charges and after he had extensive consultation with three different
    lawyers.  This court held that the secondary caution was not required in that
    case because the connections between the initial statement and the later
    statement were so weak.

[65]

By contrast, in the present case, the charges
    that the appellant faced never changed and he spoke with duty counsel for only between
    four and five minutes. For the reasons already given, the temporal and
    contextual connections between the First and Second Statements were not weak.

[66]

Thus, in my view, the Second Statement was not
    made following a fresh start.

ISSUE #2    Exclusion of the Statements under
    s. 24(2) of the
Charter

[67]

Having found a sufficient connection between the
    First Statement and the Second Statement, the court must assess and balance the
    factors that the Supreme Court of Canada identified in
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, in order to determine whether to exclude the
    statements under s. 24(2).

[68]

Where a trial judge has considered the proper
    factors, appellate courts should accord considerable deference to the trial
    judges ultimate determination:
Grant
, at para. 86.  In this case, such deference
    is not owed to the trial judges s. 24(2) analysis because she failed to
    consider the s. 10(
b
) violation of the appellants rights by PC Armas
    and proceeded on the erroneous basis that the Second Statement was not tainted
    by the appellants earlier utterances to PC Armas.

[69]

In my view, all three
Grant
factors
    favour exclusion of the appellants statements to the police and, accordingly, I
    would exclude them.  In reaching this conclusion it bears repeating that, as a
    matter of practice, courts tend to exclude statements obtained in breach of the
Charter
on the ground that their admission would bring the
    administration of justice into disrepute:
Grant
, at para. 91.

i.

Seriousness of the
Charter
-infringing state
    conduct

[70]

Under this factor, the court is to consider the
    seriousness of the state conduct that led to the breach, including whether the
    police demonstrated a wilful or reckless disregard of
Charter
rights:
Grant,
at para. 74.

[71]

The police obligation to hold off questioning
    detainees who have requested a consultation with counsel is firmly established
    law of long-standing:
R. v. Manninen
, [1987] 1 S.C.R. 1233, at p. 1242;
R.
    v. Prosper
, [1994] 3 S.C.R. 236, at p. 269;
R. v. Taylor
, 2014 SCC
    50, [2014] 2 S.C.R. 495,

at para. 26.

[72]

The First Statement was made in 2011, at which
    time PC Armas should have been well aware that he was obliged to hold off
    questioning the appellant once the appellant indicated that he wished to
    consult counsel.  By continuing to question the appellant, in my view, PC Armas
    demonstrated either a wilful or reckless disregard of the appellants
Charter
rights.

[73]

The preservation of public confidence in the
    justice system requires that the police adhere to the
Charter
in
    obtaining statements from a detained accused:
Grant
, at para. 93.

[74]

Accordingly, the first
Grant
factor
    strongly favours exclusion.

ii.       Impact
    on the appellants
Charter
-protected interests

[75]

This factor is concerned with the interests
    engaged by the infringed right and the degree to which the violation impacted
    on those interests:
Grant,
at para. 77.

[76]

At para. 95 of
Grant
, the majority explains
    that the detainees right to make a meaningful and informed choice whether to
    speak, the related right to silence and the protection against testimonial
    self-incrimination are rights that protect the individuals interest in liberty
    and autonomy.

[77]

As in
Plaha
, it cannot be assumed that
    the appellant would have made the Second Statement had he not already given
    substantially the same account in the First Statement in violation of his s.
    10(
b
) rights.

[78]

Accordingly, this factor also militates in
    favour of exclusion of the statements.

iii.

Societys interest in an adjudication on
    the merits

[79]

At para. 97 of
Grant
, the majority
    explained the inquiry to be conducted under the third factor as follows:

The third inquiry focusses on the public interest
    in having the case tried fairly on its merits.  This may lead to consideration
    of the reliability of the evidence.  Just as involuntary confessions are
    suspect on grounds of reliability, so may, on occasion, be statements taken in
    contravention of the
Charter
.  Detained by the police and without a
    lawyer, a suspect may make statements to the police that are based more on a
    misconceived idea of how to get out of his or her predicament than on the
    truth.  This danger, where present, undercuts the argument that the illegally
    obtained statement is necessary for a trial of the merits.

[80]

In this passage from
Grant
, the Supreme
    Court explains that a suspect detained by the police and without a lawyer may
    make statements based on a misconceived idea of how to escape their
    predicament, rather than on the truth of those statements.  Where that danger
    is present, as indicated in the foregoing quotation from
Grant
, it undercuts
    the argument that admission of the statements is necessary for a trial of the
    merits.

[81]

In the present case, the First Statement was
    taken in contravention of the appellants
Charter
rights and the Second
    Statement was tainted by the First Statement.  Thus, the danger described in
    para. 97 of
Grant
is present, with the result that there is a very real
    concern about the reliability of the statements.

[82]

Further, and in any event, the Crown was not
    relying on the Second Statement for its truth.  It sought to have the Second
    Statement admitted so that it could establish its falsity in support of an inference
    of consciousness of guilt. That inference was contested because, while the
    appellant acknowledged that he had lied to the police, he denied having done so
    in order to conceal his guilt.  In the circumstances, it seems self-evident
    that the Second Statement was not reliable within the meaning of the third
Grant
factor.

[83]

Finally, the statements were not necessary for a
    trial on the merits.  This point is most clearly demonstrated by that fact that
    the Crown never sought to have the First Statement admitted and, on appeal, argues
    that the proviso should apply even if the Second Statement is excluded.

Conclusion

[84]

Accordingly, all three factors favour exclusion
    of the Second Statement.

ISSUE #3    The Proviso

[85]

The Crown submits that even if the Second Statement
    is excluded, the curative proviso in s. 686(b)(iii) of the
Criminal Code
should apply because the overwhelming circumstantial case against the appellant
    inevitably would have led to a conviction.

[86]

I do not agree.

[87]

In
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53, Moldaver J.,
    writing for a majority of the
Supreme Court, stated:

As this Court has repeatedly asserted, the
    curative proviso can only be applied where there is no reasonable possibility
    that the verdict would have been different had the error . . . not been made (
R.
    v. Bevan
, [1993] 2 S.C.R. 599, at p. 617, affd in
R. v. Khan
, 2001
    SCC 86, [2001] 3 S.C.R. 823, at para. 28).  Flowing from this principle,
    this Court affirmed in
Khan
that there are two situations where the use
    of [the proviso] is appropriate: (1) where the error is harmless or trivial; or
    (2) where the evidence is so overwhelming that, notwithstanding that the error
    is not minor, the trier of fact would inevitably convict (paras. 29-31).

[88]

The admission of the Second Statement cannot be
    said to be a harmless or trivial error.  The appellant testified at trial and
    his credibility was in issue.  His acknowledged lies to the police would have
    affected the jurys assessment of his alibi.  While the Crowns case against
    the appellant was strong, in the circumstances, it cannot be said that notwithstanding
    the error, the trier of fact would have inevitably convicted.

[89]

Accordingly, this is not an appropriate case for
    the application of the curative proviso.

DISPOSITION

[90]

For these reasons, I would allow the appeal,
    quash the convictions and order a new trial.

Released: March 2, 2017 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hess, 2017 ONCA 220

DATE: 20170320

DOCKET: C61790

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Allan Alexander Hess

Respondent

Lisa Joyal and Jennifer Crawford, for the appellant

Erin Dann, for the respondent

Heard:  February 8, 2017

On appeal from the decision of Justice H.S. Arrell of the
    Superior Court of Justice, dated January 28, 2016, dismissing the Crowns
    dangerous offender application.

Hoy A.C.J.O.:

[1]

The Crown appeals the sentencing judges denial of its
    application to designate the respondent Allan Hess as a dangerous offender
    pursuant to s. 753(1)(a) of the
Criminal Code
.

[2]

For the following reasons, I would dismiss the appeal.

Background

The offender and the predicate offence

[3]

The respondent, an Aboriginal person, grew up in a dysfunctional family.
    Both biological parents were alcoholics. Both parents physically abused him,
    and his father sexually abused him. He started using alcohol at age seven, by
    age 11 he was contemplating suicide, and at age 12 he started using drugs.

[4]

He received his first custodial sentence in the same year. Between then
    and the time he committed the predicate offence in 2008 at the age of 21, he
    amassed a lengthy criminal record, including for violent offences, and spent
    all but 12 months in youth and adult correctional facilities.

[5]

While in custody in 2005, after being subjected to a racial slur, the
    respondent attacked a jail guard, causing three puncture wounds to his neck. He
    pled guilty to aggravated assault.  Stong J. dismissed the Crowns ensuing
    application for a dangerous offender designation and sentenced the respondent
    to a time-served sentence of 18 months, followed by 3 years probation.

[6]

The predicate offence occurred in 2008, shortly after the respondent was
    released from custody in relation to the 2005 assault. He had spent more than 21
    of the 31 months preceding his release in segregation. He was released with
    virtually no supports in place. Thirty-six days after his release, he stabbed
    his uncle in the neck during a whiskey-fuelled celebration. His uncle reported
    that the respondent was growling at him before the stabbing, and that the
    respondent didnt come out normal after his long period in the hole. The
    respondent was immediately remorseful.

The issue before the
    sentencing judge

[7]

At the time of the respondents predicate offence in 2008, if a
    sentencing judge found an offender to be a dangerous offender, he or she was
    required to impose a sentence of detention in a penitentiary for an
    indeterminate period. However, a sentencing judge had discretion to instead
    designate an individual a long-term offender, if the individual also satisfied
    the three criteria under s. 753.1(1) of the
Criminal Code
.
[1]
Under s. 753.1(3), long-term offenders are sentenced to a definite term of
    imprisonment followed by a long-term community supervision order of a maximum
    of ten years in accordance with the
Corrections and Conditional Release Act
(CCRA).

[8]

The sentencing judge agreed with the parties that the respondent met the
    statutory criteria for the dangerous offender designation. As the Supreme Court
    noted in
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, almost every
    offender who satisfies the dangerous offender criteria will satisfy the first
    two criteria in s. 753.1(1). The analysis typically turns  and in this case
    turned  on whether the third criterion in the long-term offender provision is
    satisfied.

[9]

At the time of the respondents predicate offence, that criterion was
    is there a reasonable possibility of eventual control of the risk in the
    community?
[2]

[10]

In
R. v. Johnson
, the Supreme Court directed that if an
    individual satisfies the criteria to be designated a long-term offender, the
    sentencing judge should find the individual to be a long-term offender, and not
    a dangerous offender. At para. 32, Iacobucci and Arbour JJ., for the court,
    wrote: [if] the public threat can be reduced to an acceptable level through
    either a determinate period of detention or a determinate period of detention
    followed by a long-term supervision order, a sentencing judge cannot properly
    declare an offender dangerous and sentence him or her to an indeterminate
    period of detention.

[11]

As the sentencing judge observed, the real issue before him was
    whether there was a reasonable possibility of eventual control within the
    community of the respondents risk of reoffending and causing harm to others.
    If so, he correctly observed, he should find the respondent to be long-term
    offender and not a dangerous offender.

The evidence before the
    sentencing judge on the real issue

[12]

In September 2011, the respondent was transferred to the St Lawrence
    Valley Correctional and Treatment Centre (SVCTC)  a psychiatric hospital
    within a correctional setting  because of the severity of his symptoms. He had
    made suicide attempts. Initially, he was experiencing symptoms of acute
    psychosis and was in seclusion. He was diagnosed with schizophrenia, major
    depression and post-traumatic stress disorder.

[13]

For the first time in the respondents troubled life, he began to
    receive consistent, comprehensive psychiatric care.

[14]

The respondents treatment involved both medication and individual and
    group therapy. His treating psychiatrist, Dr. Watson, saw very significant
    improvements. The respondent developed significant insight into his mental
    illness and his need for medication, crucial factors in predicting compliance with
    future treatment.  Dr. Watson had no reason to believe he would not be
    compliant with medication. Further, Dr. Watson testified the respondent
    appreciates he needs to stay away from peers and family who drink and knows
    that drinking and drugs will make his mental illness worse. He was eager to
    undergo treatment.

[15]

Dr. Watson testified that, in the treatment teams opinion, the
    respondent could be successfully and safely transitioned into the community.
    Dr. Watson proposed a plan involving graduated supervised release from the
    hospital.

[16]

Dr. Watson explained that once the respondent was sentenced, he would
    have access to a social worker who would focus on setting up a comprehensive
    discharge plan.

[17]

She suggested that the respondent could be released to a forensic
    hospital where privileges would gradually be increased. From hospital, he could
    be transitioned to a mental health boarding home. She recommended the
    involvement of an Assertive Community Treatment Team (an ACT)  an outpatient
    team that meets with patients in the community to assist with keeping
    appointments, getting medication, engaging in activities and providing support
    and assistance with life skills.  Finally, she recommended the imposition of a
    community treatment order (CTO)  an order issued by a physician and agreed
    to by a patient requiring the patient to take medication.  The respondent
    indicated that he was agreeable to such an order and to a graduated transition
    to the community.

[18]

The opinion of Dr. Watson was contrary to that of the forensic
    psychiatrists who had interviewed the respondent. In their opinions, the
    respondent could not be safely managed in the community under a long-term
    supervision order. One of them, Dr. Rootenberg, had concluded that the
    respondent suffered from an anti-social personality disorder rather than
    schizophrenia. Dr. Rootenberg completed his assessment report prior to the
    respondents transfer to and treatment at SVCTC.

[19]

Another forensic psychiatrist, Dr. McMaster, assessed the respondent
    seven months into his stay at SVCTC. He also diagnosed the respondent with
    anti-social personality disorder. However, he noted he could not be absolutely
    certain the respondent did not instead have schizophrenia, in part because it
    is difficult to sort out his self-report of psychotic-like symptoms. Dr.
    McMaster also noted the respondents upward trajectory since starting
    treatment at SVCTC.

The sentencing judges
    decision

[20]

The sentencing judge reviewed the relevant facts, including the
    respondents violent history.

[21]

The sentencing judge preferred the evidence of Dr. Watson, whose team
    had worked with the respondent daily for nearly four years, to that of the
    forensic psychiatrists who had only seen the respondent in formal interview
    settings on a few occasions, and before any meaningful treatment had been
    provided to him.  He found that her evidence on the issue of treatability and
    management in the community was more accurate, comprehensive and probative that
    the forensic psychiatric evidence.

[22]

The sentencing judge specifically noted that protection of the public
    must be paramount in his analysis.

[23]

He found that there was clear, undisputed evidence that the treatment
    the respondent had been receiving was working. The progression of improvement
    in the respondent was evidence of his treatability. He concluded the release
    plan proposed by Dr. Watson has a very high degree of probability that it will
    be successful and will protect the public.

[24]

On January 28, 2016, the sentencing judge found the respondent to be a
    long-term offender and imposed a total jail term of two years less one day on
    the predicate offence of aggravated assault. The sentencing judge gave the
    respondent seven years and ten months credit for pre-sentence custody (March
    2008 to January 2016) for an effective sentence of nine years and ten months.
    The respondent was also placed on a five-year Long Term Supervision Order
    commencing upon his release after serving the two years less one day term of
    imprisonment. In total, the sentence imposed provided for seven years of
    incarceration/supervision of the respondent from the date of sentence.

[25]

The sentencing judge was satisfied that the sentence he imposed properly
    reflected the
Gladue
principles that he was required to consider.

Issues

[26]

The Crown does not dispute that deference is accorded to a sentencing
    judge on issues of fact-finding, including on the question of whether there is
    a reasonable possibility of eventual control of an offender in the community:
R.
    v. Ramgadoo
, 2012 ONCA 921, 300 O.A.C. 149, at para. 42;
R. v. R. M.
,
    2007 ONCA 872, 231 O.A.C. 198, at para. 53.

[27]

However, it argues that the sentencing judges fact-finding process was
    tainted by several errors of law. I would characterize some of the alleged
    errors as arguments that there was an absence of evidence supporting the
    sentencing judges finding that there is a reasonable possibility of eventual
    control of the respondent in the community. The balance consist of what the
    Crown says are fatal flaws in the proposed release plan. Below, I address the
    Crowns arguments under these two rubrics.

[28]

As I will explain, I am not persuaded the sentencing judges
    fact-finding process was tainted by legal error. In my view, his finding that
    there is a reasonable possibility of eventual control in the community is
    reasonable and is entitled to deference.

1.

Absence
    of evidence to support the finding of a reasonable possibility of eventual
    control within the community

The Crowns Position

[29]

The Crown argues there was no admissible evidence supporting the
    sentencing judges conclusion there was a reasonable possibility of eventual
    control of the risk that the respondent poses to the community.

[30]

It says that Dr. Watson is not a forensic psychiatrist and was not
    qualified to opine on the respondents risk or whether he could ever be safely
    released back into the community. It also says her opinion was based on the
    unproven underlying assumption that schizophrenia was the reason for the
    respondents past offending in the community.

[31]

The Crown submits a sentencing judge may only resort to the long-term
    offender regime where there is evidence that is more than an expression of hope
    that the offender could be meaningfully treated within a definite period of
    time. It submits this requirement is necessary to achieve the goal of
    protection of the pubic under the dangerous offender and long-term offender
    provisions, relying on several decisions of this court:
R. v. McCallum
(2005)
, 196 O.A.C. 101, 201 C.C.C. (3d)
    541 (C.A.), at paras. 47-49;
R. v. Higginbottom
(2001)
, 150 O.A.C. 79, 156 C.C.C. (3d)
    178 (C.A.), para. 24-27;
R. v. Solano
, 2014 ONCA 185,

309 C.C.C. (3d) 386, para. 15. It argues Dr. Watsons
    opinion that the respondent could be safely transitioned into the community is
    nothing more than an expression of hope and, moreover, that she was required
    to, but did not, say when the respondent would be ready to be released into the
    community without supervision.

Analysis

[32]

I reject these arguments.

[33]

The sentencing judge properly instructed himself that any decision that
    a lesser measure than an indeterminate sentence can control the offender must
    be based on evidence introduced during the course of the hearing.

[34]

Dr. Watson was qualified as an expert in the diagnosis and treatment of
    psychiatric disorders. She provided a clinical prognosis for reintegration into
    the community. There was no challenge to her expertise in this area.  The
    sentencing judge recognized that Dr. Watson was not a forensic psychiatrist,
    and Dr. Watson admitted in her testimony she could not provide an opinion on
    the risk of recidivism based on an actuarial risk assessment.  The sentencing
    judge was nevertheless entitled to accept Dr. Watsons evidence and to prefer
    it to the evidence of the forensic psychiatrists.

[35]

Dr. Watsons evidence was that once the respondents illness had been
    appropriately identified and treated, the respondent stopped engaging in
    violent and threatening behaviour. The respondents aggression was not
    previously controlled, even in custody. Further, the respondents brother was
    diagnosed with schizophrenia at age 17. There is an adequate foundation for the
    assumption underlying her opinion and the sentencing judges conclusion that
    the respondents untreated psychosis was a significant factor underlying the
    respondents past conduct.

[36]

And Dr. Watsons evidence was far more than an expression of hope that
    the respondent could be meaningfully treated within a definite period of time.

[37]

There was concrete evidence of treatability over the nearly four years
    the respondent was at the SVCTC.  There was very significant improvement in the
    respondents condition. Staff described him as a different person than he was
    at the time of admission. As the sentencing judge found, the progression of
    improvement in [the respondent] is evidence of his treatability.

[38]

Further, Dr. Watson opined that the respondent would be ready to begin
    the proposed process of gradual release into the community in a years time.
    After she explained that St Lawrence would need approximately a year to put a
    graduated release plan in place, the following exchange took place:

Q: Youve indicated that the facility is about a years time to
    put everything all in place. Is [the respondent], are you able to give the
    court an opinion, is [the respondent] ready to start the process of a gradual
    release into the community such that you dont anticipate any violent
    outbursts, any violent acting out on members of the community?

A: Its our, its our opinion that, that he certainly is ready
    to begin the process

[39]

The evidence in this case is very different from that in the cases that
    the Crown relies on.

[40]

McCallum
most clearly articulates the principle that the Crown
    relies on. At para. 47, Feldman J.A., citing
Higginbottom
and an
    earlier decision,
R. v. Poutsoungas
(1989), 49 C.C.C. (3d) 388 (Ont.
    C.A.), wrote that there must be evidence of treatability that is more than an
    expression of hope and that indicates that the specific offender can be treated
    within a definite period of time.

[41]

In
McCallum
, the sentencing judge relied on comments that the
    offender had shown some progress and demonstrated the ability to benefit from
    treatment to conclude that there was a reasonable possibility of eventual
    control in the community of the risk that the offender would re-offend. But the
    sentencing judge did not assess those positive comments in light of subsequent
    negative comments, the diagnosis of sexual sadism, and the three violent sexual
    offences the respondent committed after those comments were made.  Feldman J.A.
    characterized the evidence before the sentencing judge as no more than a hope
    that the offender would either be amenable to treatment or that, if amenable,
    he would be treatable within a definite period of time.

[42]

In
Higginbottom
, the offender was a pedophile who denied that
    he had a problem. This court held the sentencing judge erred in relying on
    general evidence that it is was premature to label the offender untreatable
    because it is
possible
to eventually rehabilitate sexual offenders who
    deny they have a problem. The only evidence specific to that particular
    offender was from a physician who testified there was no realistic possibility
    of treatment in the community. This court concluded the trial judge erred in in
    exercising his discretion to impose a determinate sentence in the absence of
    any evidence
specific to the offender
that he could be rehabilitated
    within a fixed period of time.

[43]

In
Poutsoungas
, the evidence was that
if
the accused was able to appreciate and
    accept his personal responsibility for his crimes, was genuinely remorseful,
    was able to come to grips with his addiction to alcohol and drugs, and received
    proper treatment, there could be positive results that could lead to his
    rehabilitation. This court concluded that the sentencing judges reasoning was
    dependent on so many contingencies as to be little more than an expression of
    hope that the respondent might or could be rehabilitated.

[44]

Finally, in
Solan
o
,
    an offender diagnosed as a psychopath with anti-social personality disorder and
    substance dependence, together with possible schizophrenia, appealed his
    designation as a dangerous offender.  In designating the offender as a
    dangerous offender, the sentencing judge noted the offenders historical lack
    of response to anti-psychotic medications, his past refusals to continue
    prescribed or recommended treatment, and his proven repeated unsuccessful
    attempts at reintegration in the community.  This court held that the
    sentencing judge did not err in dismissing the evidence of two psychiatric
    nurses that that the offenders risk could be managed to an acceptable level if
    he participated in community based programs offered by Correction Services
    Canada as no more than an expression of hope, and dismissing the evidence of
    the offenders psychiatrist about the possibility of treatment with a new
    anti-psychotic drug as speculative.

[45]

In this case, unlike all of the above cases, there was concrete
    evidence of meaningful treatment.

2.

The release plan

The Crowns Position

[46]

The Crown argues the sentencing judge erred in law in three respects in
    accepting the release plan proposed by Dr. Watson as a basis for concluding
    there was a reasonable possibility of eventual control of the respondent within
    the community.

[47]

First, citing
R. v. G.L.
, 2007 ONCA 548, 87 O.R. (3d) 683, at
    paras. 58  70,
R. v. M.J.O.
, 2008 ONCA 361, 90 O.R. (3d) 241, at
    paras. 136-137,
R. v. D.V.B.
, 2010 ONCA 291, 100 O.R. (3d) 736, leave
    to appeal dismissed, [2011] S.C.C.A. No. 207, and
R. v. Trevor
,
2010 BCCA 331, 257 C.C.C. (3d) 72, the
    Crown submits that if the restrictive provisions necessary to control an
    offenders risk of re-offending and protect public safety essentially replicate
    jail-like conditions in the community, an indeterminate sentence is required.
    The Crown argues that the release plan proposed by Dr. Watson  including
    release to a forensic hospital where privileges would gradually be increased
    replicates jail-like conditions. Therefore, it argues, the sentencing judge
    erred in law in imposing a determinate sentence, followed by an LTSO.

[48]

Second, it says that the proposed plan improperly relies on the
    provisions of the
Mental Health Act
, and not correctional services, to
    control the respondents risk to public safety.

[49]

Third, and again relying on
G.L.
and
Trevor
, it says
    that a sentencing judge must be satisfied that the resources necessary to
    supervise the offender in the community will be available and that there was no
    evidence that the resources required to implement the proposed plan will be
    available.

[50]

I reject these arguments. Below, I address them in turn.

Jail-like conditions

[51]

I do not agree that Dr. Watson recommended jail-like conditions. Dr.
    Watson testified that a forensic hospital could be the first stop on a
    graduated release plan and that if it were, privileges would be gradually
    increased over the course of the respondents stay at the hospital.  She
    described this as a transitional placement to assist the respondent in
    gaining the skills needed to live in the community. Then, when appropriate, he
    could be discharged to a mental health group home or rented accommodation. While
    Dr. Watsons evidence was that the respondent would initially need extensive
    support, the objective of her proposed release plan was to enable him to function
    in a non-jail like environment.

[52]

The type and extent of the supervision proposed in this case is very
    different from that found to be jail-like in
G.L.
,
M.J.O.
and
Trevor
. In those cases, the offenders were not treatable and it
    was accepted that round-the-clock supervision would be required throughout the
    term of the long-term supervision order.

[53]

In
G.L.
, the sentencing judge sentenced the offender to a
    ten-year term of imprisonment for the predicate offence, to be followed by a
    ten-year supervision order. The offender was diagnosed as a psychopath and the
    evidence was that he was not amenable to treatment. The recommended conditions
    included almost twenty-four hour monitoring of the offender by officials expert
    in psychopathy, coupled with residency in a controlled environment, for ten
    years.  The court concluded that the resources necessary to provide the
    community supervision envisaged were not available, but commented, at para. 61,
    that even if they were, the overall form of supervision proposed comes close
    to replicating in the community the form of monitoring and supervision that the
    state provides in custodial settings. At para. 62, Cronk J.A. wrote that while
    conditions of supervision may be imposed under the CCRA, I do not believe that
    that statute or the long-term offender regime is intended to virtually
    replicate jail-like conditions in the community for offenders released from
    custody.

[54]

M.J.O.
also involved a diagnosed and untreatable psychopath
    where the risk he posed to the community could only be reduced to an acceptable
    level with round-the-clock community supervision. The court applied
G.L.
and concluded that a long-term offender finding was not appropriate.

[55]

In
Trevor
, an offender with limited intellectual and cognitive
    abilities had a history of sexual offences. He lacked the intelligence and
    skills needed to benefit from treatment aimed at helping him control his
    inappropriate sexual urges.  As in
G.L.
, the safe control of the
    offenders risk in the community was reliant on supervision, rather than
    treatment.

[56]

The offender proposed that Community Living British Columbia (CLBC),
    a social-service agency that exists to deliver services on a voluntary basis to
    developmentally-disabled adults in British Columbia, could provide the
    structure required to manage his risk as a long-term offender. Citing
G.L.
,
    Frankel J.A. held that one of the reasons that a long-term offender order was
    not appropriate was because the control-mechanisms [the offender] seeks to
    have imposed on himself are tantamount to detention. In essence, he seeks to be
    imprisoned outside of a prison.

[57]

The graduated release plan contemplated in this case stands in sharp contrast
    to the proposed conditions of supervision in
G.L.
,
M.L.O.
and
Trevor
.

Inability of correctional
    services to control the respondents risk

[58]

I turn next to the Crowns argument that, because the proposed plan
    employs tools under the
Mental Health Act
, correctional services
    will be unable to control the respondents risk to public safety.

[59]

While the proposed release plan relies in part on resources provided by
    the mental health care system, I am satisfied that the key components of the
    release plan are enforceable through the LTSO and fall within the control of
    the Parole Board and Correctional Services Canada (CSC).  Further, in my
    view, the availability and suitability of treatment and programming beyond that
    which is directly offered by CSC are relevant to the issue of potential control
    of risk in the community.

[60]

First, the key terms are under the Parole Boards control. The Parole
    Board has a broad power to craft and impose conditions for long-term
    supervision. It can establish conditions that it considers reasonable and
    necessary in order to protect society and to facilitate the successful
    reintegration into society of the offender:
Corrections and Conditional
    Release Act
, S.C. 1992, c. 20, s. 134.1(2) (
CCRA
). The
    conditions imposed are subject to regular review and can be varied by the
    Parole Board.

[61]

Under the
CCRA
, offenders may be ordered to reside at a
    specific place, including a psychiatric facility or community residential
    facility: s. 133(4.1). The Parole Board can limit the time that the offender
    spends in the community and require the respondent to meet with members of an
    ACT at specified intervals. Perhaps most importantly for this case, as this
    court held in
Ramgadoo
, at para. 58  59, the Parole Board can impose
    mental health treatment conditions in the LTSO.

[62]

While the Board might not directly
provide
the services it orders the respondent to use, it has the power to ensure
    compliance. Under s. 135.1(1) of the
CCRA
, where the Parole Board is
    satisfied that it is necessary and reasonable to suspend an LTSO to protect the
    public or prevent a breach, it is empowered to authorize the apprehension and
    commitment of the offender to a mental health facility for up to 90 days. And
    if the offender breaches a condition in the LTSO, he may be detained and then
    prosecuted for the breach.

[63]

Second, I see no error in the sentencing judge considering possible use
    of treatment and reintegration options not directly provided by CSC in
    assessing the possibility of controlling the respondents risk. I agree that
    the Parole Board cannot forcibly medicate the respondent, nor impose a CTO upon
    him involuntarily. But Dr. Watsons assessment of how likely it was the
    respondent could be effectively managed and reintegrated through measures such
    as dispositions under the
Mental Health Act
was clearly relevant
    evidence regarding risk management.

[64]

And that evidence was especially probative in light of the evidence that
    the respondent was interested in and willing to carry on his medication and
    treatment regime once released into the community. Indeed, Dr. Watson evidence
    was that the respondent was reluctant to reduce his anti-psychotic medication
    even where his treatment team suggested doing so. The sentencing judge was
    entitled to rely on this evidence to support his conclusion there was a
    reasonable possibility of eventual control of the respondents risk in the
    community.

Evidence of availability
    of the necessary resources in the community

[65]

This leaves the Crowns final argument:
G.L.
and
Trevor
require evidence of the availability in the community of the resources
    necessary to supervise the respondent and such evidence was not adduced.

[66]

I do not find this submission persuasive. First, Dr. Watsons evidence
    did provide an evidentiary basis to conclude the necessary services were
    available in the community.

[67]

Second, this case is very different from
G.L.
and
Trevor
.
    As noted above, the offender in
G.L.
was untreatable and the Crown
    adduced evidence that many of the requisite resources  including an expert in
    psychopathy to monitor the offender  were unavailable or unrealistic. Cronk
    J.A. wrote, at para. 59, that where the determination that an offenders risk
    may be safely controlled in the community rests, as it did here, on adequate
    community supervision, rather than treatment, the availability of the resources
    necessary to implement such supervision effectively cannot be uncertain.

[68]

In
Trevor
, there was evidence that CLBC did not have the
    mandate or capacity to supervise a high-risk offender such as Mr. Trevor, who
    required a secure residential facility with 24-hour monitoring. Citing para. 62
    of
G.L.
, Frankel J.A. wrote, at para. 35, that, A judge can hardly be
    satisfied that there is a reasonable possibility of controlling [the risk
    posed by a particular offender] in the absence of evidence that the means to do
    so are in fact available.

[69]

The statements in
G.L
. and
Trevor
on which the Crown
    relies were made where (i) the control of the offenders risk in the community
    relied on twenty-four hour or almost twenty-four hour supervision, and not
    treatment, (ii) the resources required in the community were in some way
    special and not of a type generally provided by the applicable institution,
    and (iii) there was evidence that the required resources were unavailable or
    unrealistic.

[70]

In this case, unlike in
G.L.
and
Trevor
, there is
    evidence that the respondent is treatable. The control of the respondents risk
    does not rely solely on community supervision. The recommended resources within
    the community are within the mandate of the provincial mental health care
    system and available to persons diagnosed as needing them, subject to wait
    lists. And Dr. Watsons evidence was that there would be sufficient time
    between the imposition of sentence and the respondents release on an LTSO to conquer
    the waiting lists and permit a plan such as that proposed to be in place on the
    respondents release.

[71]

For all of these reasons, in my view, the sentencing judge was entitled
    to consider the proposed release plan in concluding that there was a reasonable
    possibility of eventual control of the respondent in the community.

[72]

A final note on this subject. After this appeal was argued, this court
    delivered its decision in
R. v. Radcliffe
, 2017 ONCA 176, [2017] O.J.
    No. 1060, another dangerous offender case. I am mindful of Watt J.A.s
    comments, at para. 58 of
Radcliffe
, regarding the need for [e]vidence
    of the existence and availability of community resources that will provide the
    essential level of extra-custodial supervision to adequately protect the public.
    Those comments were not essential to the courts holding in
Radcliffe
,
    and in any event the facts and issues in that case are markedly different from
    this one. I am satisfied that
Radcliffe
is consistent with these
    reasons.

Conclusion

[73]

The sentencing judges conclusion that there is a reasonable possibility
    of eventual control of the respondents risk in the community is not tainted by
    legal error and is reasonable. I would dismiss the appeal.

Released: MAR 20 2017  AH

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree B.W. Miller J.A.

[1]

Effective July 2008, Parliament amended the
Criminal Code
to remove judicial discretion in the context of a dangerous offender
    designation. Under the new regime, a sentencing judge is required to designate
    an offender as a dangerous offender wherever the criteria in s. 753(1) are met.
    However, the court is no longer required to impose an indeterminate sentence
    for all dangerous offenders. The court now has the option of sentencing a
    dangerous offender to a determinate sentence combined with a long-term
    supervision order, provided the judge is satisfied the sentence will adequately
    protect the public: ss. 753(4) and (4.1), see also
R. v. Steele
, 2014
    SCC 61, [2014] 3 S.C.R. 138, at para. 31.

[2]

Under the new regime, where the criteria for a dangerous
    offender designation are met, the court may only impose a determinate sentence
    and a long term supervision order instead of an indeterminate sentence where
    there is a reasonable expectation such a sentence will adequately protect
    the public against the commission by the offender of murder or a serious
    personal injury offence: s. 753(4.1).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huffman, 2017 ONCA 255

DATE: 20170327

DOCKET: C61674

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Huffman

Appellant

Robert N. Morris, for the appellant

Kelvin Ramchand and Tom Lemon, for the respondent

Heard:  March 24, 2017

On appeal from the sentence imposed on November 6, 2015
    by Justice R. Reid of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The reasons for sentence demonstrate that the trial judge fully
    considered the relevant factors.  Given the commercial nature of the enterprise
    and the appellants level of involvement in the conspiracy, a conditional
    sentence would not have been appropriate.  A significant reformatory sentence
    was required.

[2]

The trial judge did consider parity.  He recognized that Welch had an
    extensive record, and that he was higher in the organizational chain of
    command.  He reflected those considerations by imposing a 30-month sentence on
    Welch as compared to the 20 months imposed on the appellant.

[3]

We cannot say that the different sentences imposed by the trial judge do
    not give adequate weight to the parity principle.  The distinctions cannot be
    drawn with mathematical certainty.  The sentences imposed do not reflect a
    failure to consider and apply the parity principle.

[4]

We see no error in the sentence imposed.

[5]

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.

(2)
    Subsection (1) does not apply

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.T., 2017 ONCA 250

DATE: 20170324

DOCKET: C60398

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.T.

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Andrew Cappell, for the respondents

Heard:  March 23, 2017

On appeal from the sentence imposed by Justice Donna G.
    Hackett of the Ontario Court of Justice on April 17, 2015.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from conviction.  The appellant must convince the
    court that the trial judge erred in her assessment of whether the appellants
    s. 8 rights were breached in the circumstances of this case.

[2]

The trial judge found that the level 3 search was reasonable save for
    the squat and cough requirement at the end of the search.  She concluded that
    this procedure was unreasonable in the circumstances.

[3]

The trial judge thoroughly reviewed the evidence.  She concluded that
    the search was justified to locate the property of the victim and because of
    safety concerns associated with the transportation of the appellant to court
    for a show cause hearing.

[4]

We see no error in her findings.  The police had good reason to suspect
    that the appellant was in possession of property related to the robbery and
    that it could be secreted anywhere on her person.  Furthermore, on the facts of
    this case, the police cannot be criticized for concluding that any release of
    the appellant should be by way of a judicial order which could properly address
    the adequacy of any supervision that might be available before releasing the
    appellant back into the community.

[5]

The Crown does not challenge the finding that the squat and cough
    technique rendered the conduct of the search unreasonable.  Nor does the Crown
    challenge the reduction of the sentence granted by the trial judge as a remedy
    under s. 24(1).

[6]

The appellant suggests that a stay should have been granted.  This
    argument is premised on submissions which target alleged systemic deficiencies,
    none of which affected the reasonableness of this search except as it related
    to the squat and cough.  A stay is an extreme remedy.

[7]

In our view, the remedy chosen by the trial judge properly addressed the
    breach in this case.  We see no reason to interfere with the trial judges
    exercise of her discretion as to the appropriate remedy.

[8]

The appeal is dismissed.