COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.E., 2016 ONCA 243

DATE: 20160404

DOCKET: C58069

C58070

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.E.
[1]

Appellant

A.E., acting in person

Lisa Feinberg,
amicus curiae

Joanne Stuart, for the respondent

Heard: September 9, 2015

On appeal from the judgment of Justice Eric N. Libman of
    the Ontario Court of Justice dated October 30, 2007 and the judgment of Justice
    Peter A. J. Harris of the Ontario Court of Justice dated February 10, 2011.

Feldman J.A.:

[1]

Between 2005 and 2006, the appellant was convicted of four separate
    offences of driving a motor vehicle without insurance, contrary to the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990, c. C-25. He was sentenced to fines
    for each of these convictions.

[2]

The appellant did not seek to appeal his sentences until late 2007, when
    he brought a motion before a judge of the Ontario Court of Justice to extend the
    time in which to appeal three of the convictions. The judge refused to grant
    the extension of time. The appellant brought a second motion to extend the time
    in which to appeal on February 10, 2011. That motion concerned all four of his
    convictions. The second judge found that he had no jurisdiction to address the
    extension of time on the first three convictions, as they had been addressed by
    the first motion judge. He granted the extension of time to appeal sentence on
    the fourth conviction together with an extension of the time to pay the fine.

[3]

The appellant now appeals these two judgments to this court, having been
    granted an extension of time in which to appeal as well as leave to appeal
    sentence by Lauwers J.A.: 2013 ONCA 713, 118 O.R. (3d) 98. If successful, he asks
    for a suspension of his sentence or, in the alternative, that the fines be
    reduced. He also seeks to file fresh evidence on the appeal. Whether this court
    has jurisdiction to entertain an appeal from a refusal to extend the time to
    appeal the original sentences under s. 85 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P-33 (
POA
), is the first issue.

[4]

For the reasons that follow, I conclude that this court has jurisdiction
    to hear an appeal, with leave, from a refusal to extend the time to appeal
    under s. 85 of the
POA
. Leave having been granted on the basis of the
    fresh evidence of the appellants mental illness and inability to pay the
    substantial total fines, I would reduce the fines owed by the appellant.

Facts

[5]

All four convictions are for driving without insurance contrary to s.
    2(1)(a) of the
Compulsory Automobile Insurance Act
. The appellants
    first offence occurred on April 18, 2005. The appellant was self-represented at
    his trial on October 13, 2005. He requested an adjournment on the basis that he
    was not prepared, that he was in school and had a test that day. The
    adjournment request was denied, and the appellant pleaded guilty to the charge.

[6]

Though the minimum fine was $5,000, the court exercised its discretion under
    s. 59(2) of the
POA
to impose a fine below the minimum in exceptional
    circumstances. The court reduced the fine to $2,500 because it was the
    appellants first offence and he had pleaded guilty. He was given six months to
    pay. Also the court declined to suspend his licence. The appellant submitted
    that the amount of the fine was too high because he was in school, was not
    working, and had loans to pay, but the court rejected his submission.

[7]

The second offence occurred on June 30, 2005. There was a collision,
    resulting in a charge of following too closely as well as driving without
    insurance. At the trial on February 23, 2006, the appellant was again self-represented.
    He pleaded not guilty. The trial was adjourned following the appellants
    testimony for him to bring any further proof of insurance. There was evidence
    that both at the scene and prior to trial, he gave the officer false insurance
    documents. On September 15, 2006, he returned with an agent and advised the
    court that he had no further proof of insurance. The matter was adjourned for
    judgment. He was convicted of both offences on December 8, 2006.

[8]

He was represented by the agent at his sentencing hearing on February
    16, 2007. The Justice of the Peace rejected the agents submission that the
    court should exercise its discretion to impose a fine of $6000, below the
    minimum $10,000 required by s. 2(3) of the
Compulsory Automobile Insurance
    Act
for a second offence, and imposed the $10,000 minimum with 12 months
    to pay.

[9]

The third offence occurred on September 15, 2005. The appellants agent
    entered a guilty plea on his behalf on November 16, 2006. The evidence again
    was that the appellant presented the officer on the scene with a false
    insurance document. Based on a joint submission, the appellant was sentenced to
    a fine of $2,500 with 12 months to pay.

[10]

The
    fourth offence occurred on March 17, 2006. On November 22, 2006, the appellants
    agent again entered a guilty plea on his behalf. The judge accepted the joint
    submission of the prosecutor and the agent and sentenced the appellant to a
    fine of $2,000 with six months to pay.

[11]

Following
    the fourth sentence, the appellant faced fines of $17,000 together with a 25%
    surcharge totalling in excess of $21,250.

[12]

In
    August 2007, the appellant filed notices of appeal of all four sentences, and
    brought motions under s. 85 of the
POA
to extend time in which to
    appeal his sentences on three of the four convictions, citing his inability to
    pay the fines as his grounds for appeal. On October 30, 2007, those motions
    were heard by Libman J. at the Ontario Court of Justice. The motion judge
    denied the extension of time. He indicated that the appellants delay in
    waiting to appeal his sentences persuaded him that the appellant was treating
    the entire system as a joke.

[13]

The
    appellant brought a second motion for an extension of time to file an appeal at
    the Ontario Court of Justice, this time for all four sentences. At the hearing
    in February 2011, Harris J. explained to the appellant that for the three matters
    where the extension had already been denied, he would have to apply for leave
    to appeal to this court. On the fourth matter, the judge granted the extension
    of time to appeal sentence, refused to reduce the $2000 fine, but granted the
    appellant a further nine months in which to pay that fine.

[14]

In
    November 2012, the appellant again moved, this time before Boivin J., to extend
    time to appeal the first three sentences, seeking a reduction in the fines and
    informing the court that he had been under stress and had had a mental
    breakdown. Boivin J. held that he had no jurisdiction, as the motions had
    already been decided.

[15]

Finally,
    in November 2013, the appellant filed a notice of appeal in this court, seeking
    special leave to appeal the denials of an extension of time to appeal the
    sentences and in the case of the fourth conviction, to appeal the sentence.
    Lauwers J.A. granted an extension of time in which to appeal and also granted
    leave to appeal. He explained:

Significant minimum fines for the offence of operating a motor
    vehicle without insurance may well have a good public policy justification,
    particularly in acting as a general deterrent. It is nonetheless, in my view,
    in the public interest to determine whether in the particular circumstances of
    any individual defendant or appellant, some accommodation should be made for
    individuals with significant personal disabilities. Although it may well have
    been within the power of the provincial offences appeal court to consider this
    issue, there was never an opportunity for that court to consider that issue,
    because of the manner in which the appeal proceedings unfolded, and because the
    applicant evidently was unable to advance the issue.

[16]

Lauwers
    J.A. recognized that there was an outstanding issue regarding the jurisdiction
    of this court to entertain an appeal from a refusal to grant an extension of
    time under s. 85 of the
POA
to appeal a Part III offence, and
    expressly left that issue to be decided by the panel hearing the appeal.

Issues

[17]

The
    appellant appeals from the 2007 judgment of Libman J. refusing to grant an
    extension of time to appeal the first three sentences. He also appeals from the
    2011 judgment of Harris J., which granted the extension of time to appeal the
    fourth sentence and extended the time to pay the $2000 fine, but refused to
    reduce that fine.

[18]

The
    following are the issues to be addressed:

1. Does this court have jurisdiction to
    hear an appeal from the 2007 decision under s. 85 of the
POA
, denying
    an extension of time to appeal sentence in a proceeding commenced under Part
    III of the
POA
?

2. If so, did the motion judge err when
    he failed to grant the extension of time to appeal?

3. Should this court admit the fresh
    evidence relating to the appellants mental illness and inability to pay the
    fines, and, in light of that evidence, reduce the fines owed by the appellant?

[19]

I
    will address each issue in turn.

Jurisdiction

[20]

The
    issue of whether an appeal lies to this court, with leave, from the dismissal
    of a motion to extend the time to appeal under s. 85(1) of the
POA
,
    which does not include a right of appeal, has been the subject of conflicting
    decisions of single judges of this court sitting on motions, but has not been
    considered by a panel of the court.
[2]
As this courts jurisdiction over
POA
matters is statutory, its
    jurisdiction must be found in the
POA
and the proper interpretation of
    the governing provisions.

[21]

The
    governing sections of the
POA
are s. 85(1),(2), s.116(1),(2) and s.
    131(1),(2), which provide:

85. (1)

Subject
    to this section, the court may extend any time fixed by this Act, by the
    regulations made under this Act or the rules of court for doing any thing other
    than commencing or recommencing a proceeding, whether or not the time has
    expired.

(2)

No
    more than one application for an extension of the time for filing of an appeal
    may be made in respect of a conviction.

116. (1)

Where
    a proceeding is commenced by information under Part III, the defendant or the
    prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(b) a dismissal;

(c) a finding as to ability, because of mental
    disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to costs.

(2)
An appeal under
    subsection (1) shall be,

(a) where the appeal is from the decision of a
    justice of the peace, to the Ontario Court of Justice presided over by a
    provincial judge; or

(b) where the appeal is from the decision of a
    provincial judge, to the Superior Court of Justice.

131. (1)

A
    defendant or the prosecutor or the Attorney General by way of intervention may
    appeal from the judgment of the court to the Court of Appeal, with leave of a
    judge of the Court of Appeal on special grounds, upon any question of law alone
    or as to sentence.

(2)

No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[22]

The
    jurisprudence began with the decision of G. Blair J.A. in
R. v. Valente
(1982), 40 O.R. (2d) 535, which dealt with the predecessor to s. 131 of the Act
    (then s. 114). At the first level of appeal from a conviction for careless
    driving obtained through Part III proceedings, the Provincial Court judge
    declined to decide a
Charter
issue regarding the jurisdictional
    competence of provincially appointed judges. The Crown sought leave to appeal
    to the Court of Appeal, and the issue was whether the decision declining to
    decide the appeal was a judgment within the meaning of s. 114.

[23]

G.
    Blair J.A. held that the term judgment in s. 114 should be given a broad
    meaning consistent with the intent of the
POA
to avoid undue
    technicality. He also analogized to the similar interpretation given to the term
    decision in then s. 771 of the Criminal Code, dealing with summary conviction
    appeals.

[24]

The
    result and reasoning in
Valente
were followed and applied by Gillese
    J.A. in
R. v. Belanger
,

[2006] O.J. No. 3453 (C.A.), where, as in this case, the underlying
    decision was the denial of an extension of time to appeal, in that case,
    convictions for driving with a suspended licence. In granting leave to appeal
    under s. 131, Gillese J.A. referred to
R. v. Gonsalves
, [1995] O.J.
    No. 4046 (C.A.), where, in a brief endorsement, the court expressed doubt as to
    its jurisdiction to hear an appeal with leave from the denial of an extension
    of time to appeal a summary conviction.
[3]
This contradicted part of the reasoning in
Valente
. Nevertheless,
    Gillese J.A. agreed with G. Blair J.A. that the word judgment in s. 131 of
    the
POA
should be broadly interpreted, noting that the British
    Columbia Court of Appeal had made a similar decision in
R. v. Burgar
(2003), 176 C.C.C. (3d) 253, interpreting British Columbias provincial
    offences legislation.

[25]

Two
    decisions of single judges of this court take the contrary view. In
R. v. Melaku
(2011), 106 O.R. (3d) 481, the applicant had been convicted of a number of
Highway
    Traffic Act
offences. As the time had passed to launch an appeal, the
    applicant had to obtain an extension of time to appeal under s. 85. His
    application was denied. It was from that denial that he sought leave to appeal
    to this court.

[26]

The
    offences in
Melaku
were prosecuted as Part I offences under the
POA.
Charges brought under Parts I and II are commenced by a certificate and
    are generally for less serious offences, while prosecutions under Part III are commenced
    by an information and are more serious, with higher potential penalties.

[27]

The
    appeal provisions that apply are also different. For proceedings under Parts I
    and II, the first level of appeal is provided in s. 135(1), and a further
    appeal to the Court of Appeal with leave is provided in s. 139(1). Those
    sections read:

135. (1)

A
    defendant or the prosecutor or the Attorney General by way of intervention is
    entitled to appeal an acquittal, conviction or sentence in a proceeding
    commenced by certificate under Part I or II and the appeal shall be to the
    Ontario Court of Justice presided over by a provincial judge.

139. (1)
An appeal lies from
    the judgment of the Ontario Court of Justice in an appeal under section 135 to
    the Court of Appeal, with leave of a judge of the Court of Appeal, on special
    grounds, upon any question of law alone.

[28]

Epstein
    J.A. observed that an appeal to this court under s. 139(1) only lies from a judgment
    made by an appeal court under s. 135 on appeal from a conviction, an acquittal
    or from sentence. As the denial of an extension of time to appeal is not a
    judgment in an appeal under s. 135, no appeal lies to this court. Epstein J.A.
    also considered whether the dead-end created by s. 85 for Part I offences was
    consistent with the overall scheme of the
POA
and the intent of the
    legislature. She concluded that for the less serious Part I offences, a more
    limited number of appeal opportunities and routes was fair and consistent with
    the scheme of the legislation.

[29]

In
R. v. Borges
,
2011
    ONCA 621, 107 O.R. (3d) 377, the Crown asked the chambers judge in this court
    to apply the principle of a limited right of appeal for Parts I and II proceedings
    from
Melaku
to a decision denying an extension of time to appeal in a
    Part III proceeding.

[30]

Juriansz
    J.A. rejected the analysis from
Valente
and
Belanger
that turned
    on the scope of the term judgment in s. 131. He found that the
POA
creates
    a two-tier route for appeals to this court and reasoned that because an appeal
    to the Court of Appeal has to be a second level of appeal, therefore the appeal
    provided by s. 131 with leave, must be only from first-level appeal decisions
    under s. 116.  Because a decision granting or denying an extension of time
    under s. 85 is not a decision under s. 116, it could not be appealed under s.
    131.

[31]

I
    do not agree that s. 131 only allows appeals to this court as a second level of
    appeal. Rather, it allows only appeals from judgments of a court designated
    to hear appeals at the first level. This is confirmed by the definition of the term
    court in Part VII of the
POA
 which contains the appeal provisions,
    including s. 131  as the court to which an appeal is or may be taken under
    this part (s. 109). However, those judgments do not have to be judgments made
    under s. 116.

[32]

There
    is no limiting language in s. 131, as there is in s. 139, which is the
    comparable provision for appeals to this court in Part I and Part II proceedings.
    Section 139 provides an appeal only from a judgment  in an appeal under s.
    135. In s. 131, appeals are from the judgment of the court, but there is no
    specific reference to a judgment of the court that was made under s. 116. Had
    the legislature intended to limit the jurisdiction of this court to hear
    appeals of Part III proceedings in the same way as Part I and Part II proceedings,
    it could have structured the appeal provision in a manner similar to the one
    governing those appeals.

[33]

A
    motion for an extension of time to appeal sentence is made to the first level
    of appeal court, as defined in s. 109, and may be brought together with the
    notice of appeal appealing one of the five dispositions that are listed in s.
    116. The order dismissing the motion to extend time is a judgment of that
    court, although it is not the appeal judgment itself.

[34]

I
    agree with Gillese J.A. that the term judgment is essential to the proper
    interpretation of the section, and there is no reason to restrict the meaning
    of the word judgment so as to exclude certain decisions (
Belanger
,
    at para. 15). By contrast with Part I and II proceedings, there is good reason
    to allow a slightly less restricted opportunity to appeal in Part III proceedings,
    which generally involve more serious offences and which may carry more
    significant penalties.

[35]

The
    effect of this analysis is that this court does have jurisdiction to grant
    leave to appeal under s. 131 of the
POA
from a judgment that denies an
    extension of time to appeal under s. 116. However, because of the strict
    requirements of s. 131(2) governing the granting of leave, coupled with the
    deference owed to discretionary decisions such as denying an extension of time
    to appeal, leave to appeal to this court from such decisions will necessarily be
    rarely granted.

Did the Motion Judge Err by Denying the Extension of time to
    Appeal?

[36]

As
    leave to appeal was granted by Lauwers J.A., subject to this courts finding on
    the issue of jurisdiction, I now turn to the merits of the appeal. The test for
    granting an extension of time to appeal is set out in this courts decision in
R.
    v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21:

There is no absolute rule to be applied in the exercise of the
    discretion whether or not to grant an extension of time.  The court will,
    however, usually consider the following three factors:

(i)      whether the applicant has shown a
bona fide
intention to appeal within the appeal period;

(ii)      whether the applicant has accounted for or explained
    the delay; and

(iii)     whether there is merit to the proposed appeal.

Depending on the case, the court may take into consideration
    other factors such as whether the consequences of the conviction are out of all
    proportion to the penalty imposed, whether the Crown will be prejudiced and
    whether the applicant has taken the benefit of the judgment.  In the end, the main
    consideration is whether the applicant has demonstrated that justice requires
    that the extension of time be granted.

[37]

The
    position of
amicus
is that on the motion to extend time for three of
    the sentences, the appellant was not given a full hearing by the motion judge,
    who did not apply the test in
Menear
before denying leave to appeal.

[38]

The
    appellant told the judge that he was a student, and that he was not able to pay
    the fines imposed. The judge observed that the appellant waited until August
    after being in court in February before he attempted to challenge the sentences
    imposed, and concluded that the appellant was treating the entire system as a
    joke. He also referred to the fact that the appellant had three convictions
    for driving without insurance, and that he could ask a justice to extend the
    time to pay.

[39]

I
    agree that the hearing before the motion judge can be viewed as somewhat perfunctory.
    However, in the context of a busy Ontario Court of Justice docket, I would not
    view the proceeding as failing to give the appellant the opportunity to be
    heard, nor did the motion judge fail to apply the correct test. His conclusion
    indicates that he was not satisfied that the appellant formed the intention to
    appeal within the 30 day appeal period, nor that the justice of the case
    required an extension of time. In my view, the motion judge did not err in his
    discretionary decision to deny an extension of time to appeal.

The Fresh Evidence

[40]

Some
    fresh evidence that the appellant suffered from a mental illness was placed
    before Lauwers J.A. on the application for leave to appeal to this court. Upon
    granting leave to appeal, he suggested that
amicus
assist the
    appellant to obtain further evidence regarding the appellants mental illness
    and his financial circumstances. In response, the appellant attended an
    assessment by Dr. Gojer, an expert psychiatrist, who filed a report. The
    appellant also filed a further affidavit.

[41]

Although
    the Crown does not object to the admissibility of the fresh evidence, it takes
    the position that it has limited relevance.

[42]

In
    his report, dated February 9, 2015, Dr. Gojer gave the opinion that the
    appellant suffers from paranoid schizophrenia and chronic major depression
    following on post-traumatic stress disorder as a result of his background in
    Nigeria, the loss of his parents there and his abuse on the voyage to Canada.
    He opined further that the appellant likely had these illnesses at the time of
    the offences but he could not give an opinion on whether the appellant was NCR
    at the time.

[43]

He
    commented as follows with respect to the offences:

The account that Mr. [E] gives with respect to the 4 insurance
    related offences do[es] not make sense. It appears that he either used very
    poor judgment secondary to his illness or was simply making a rational choice
    not to pay for his insurance Given his history, it is more likely that his
    mental illness was responsible for the very poor judgment at the time of all
    four offences

My concern is that he has a history of not handling his
    finances well and owes money on his credit cards and an OSAP loan. He has
    struggled to also complete his real estate course and only recently completed
    all the requirements, taking almost 7 years to do it. It is likely that his
    mental illnesses precluded him from handling his finances.

[44]

Apparently
    the appellant had been under the care of a treating psychiatrist for several
    years at the time of the assessment and Dr. Gojer stated that his illness had
    stabilized, although he was not fully well. He doubted that given the
    appellants minimal earnings as a real estate agent ($12,673.91 net income in
    2013), he would be able to pay his fines within a reasonable amount of time.

[45]

In
    his affidavit also sworn in February 2015, the appellant gave details of his
    financial circumstances with his current debts. On November 12, 2014, his licence
    was suspended for non-payment of his fines. He states that without his licence it
    is difficult to operate as a real estate agent because the time and cost of
    showing properties is increased. He states further that he is not able to pay
    the fines on his current income. He expresses remorse for the offences and
    states that he has come a long way since they were committed and that he will
    continue to make efforts to seek treatment for his mental conditions. He asks
    the court to assist with his rehabilitation by reducing the fines he owes.

[46]

To
    be admissible on appeal, fresh evidence must meet the criteria in
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759, the last of which is that the evidence could
    reasonably be expected to have affected the outcome of the decision under
    appeal.

[47]

I
    am prepared to admit the fresh evidence on the basis that it does meet the
Palmer
criteria in respect of the decision to deny an extension of time to appeal. I
    am satisfied that had the motion judge had this evidence, he may well have
    taken a different view of the reason for the appellants delay in appealing and
    of the circumstances of his convictions and sentences generally, and may thus have
    granted the extension of time to appeal.

[48]

I
    conclude that although the motion judge made no error on the record before him,
    had he had the fresh evidence, he would have had the basis to grant the
    extension of time to appeal. On that basis, this court may consider the merits
    of the appeals against sentence on those three charges as well as on the fourth
    charge, where the extension of time to appeal sentence was granted by the
    appeal judge but there was no reduction in the fine owed.

Sentence appeal

[49]

Having
    concluded that this court may address the propriety of the sentences imposed in
    light of the fresh evidence, the court must decide how the evidence that the
    appellant has suffered and to some extent continues to suffer from mental
    illness should affect the amount of the fines imposed for driving without
    insurance.

[50]

Amicus
submits that while the fines imposed were within the appropriate range at the
    time, based on the fresh evidence regarding the appellants mental illness, it
    would be contrary to the public interest and would result in extreme hardship
    if this court did not reduce or eliminate those fines.
Amicus
relies
    on two decisions of this court that involved jail sentences, where the fresh
    evidence of mental illness showed that the appellants mental health had deteriorated
    or would deteriorate significantly in jail and that an appropriate sentence
    would be a conditional sentence (
R. v. Jacobson
(2006),
207 C.C.C. (3d) 270;

R. v. Tran
, 2008 ONCA 471).

[51]

The
    Crown submits that to the extent that the appellants mental illness affects
    his ability to pay the fines imposed, or to manage his finances, that issue is
    more properly raised in default proceedings under s. 69 of the
POA
where
    a judge may reduce or waive a fine. Although such proceedings may not currently
    be initiated by the defaulter  there has been a pending amendment since 2009
    (s. 69(14.1))  the Crown has undertaken to facilitate the commencement of such
    a proceeding if the appellant so requests.

[52]

The
    Crown also points out that for three of his four convictions, the sentencing
    judges did exercise their discretion and imposed a reduced fine in recognition
    of the appellants student status and therefore his reduced ability to pay. He
    only received the mandatory minimum of $10,000 for a second offence on the
    occasion where he was found guilty after a trial, and where he had caused an
    accident with damage to both cars. This was the occasion when the appellant
    tendered two false insurance slips to the officer, once at the scene and again
    before trial.

[53]

In
    my view, there is merit to the position taken by the Crown in the context of
    sentencing for this particular offence. The purpose of the escalating fine
    structure for convictions for driving without insurance is obvious: to deter
    persons who have been given the privilege of driving a car from driving without
    compulsory liability insurance, the purpose of which is to protect other people
    who are personally injured or suffer damage to their property in an accident
    with an uninsured motorist. It is expected that if a person can qualify for a
    licence and own a car, that person is able to comply with the licensing and
    registration requirements of doing so.

[54]

However,
    the sentencing judges were not made aware of the appellants mental illness. I
    note that the judges who sentenced the appellant could have suspended his
    licence for up to one year as part of the sentence but did not do so:
Compulsory
    Automobile Insurance Act
, s. 2(3). It may be that had they felt
    constrained from imposing fines on the appellant because of his mental illness
    and its effect on his financial management capability, they may have suspended
    his licence instead of or in addition to a smaller fine.

[55]

Relief
    from minimum fines under the
POA
is governed by s. 59(2), which
    provides, in part, that where in the opinion of the court exceptional
    circumstances exist so that to impose the minimum fine would be unduly
    oppressive or otherwise not in the interests of justice, the court may impose a
    fine that is less than the minimum or suspend the sentence. Similar
    considerations apply in the circumstances of this appeal.

[56]

This
    appeal comes down to whether it is in the interests of justice to relieve the
    appellant of his fines and whether they are unduly oppressive. A somewhat
    confusing picture is presented by the fresh evidence. The appellant states in
    his affidavit that he wants his licence back so that he can drive for his work
    as a real estate agent. To do so, he will need the financial capability to
    access a car and insurance. Dr. Gojer opines that [the appellants] symptoms
    continue to interfere with his thinking and are likely to impact on any future
    ability to generate a sustainable income.

[57]

In
    my view, it is not in the interests of justice for the appellant to be fully
    relieved of these fines, so that he can immediately drive again. The specific
    deterrence purpose of the fines remains essential. However, given the
    appellants mental illness and its detrimental effect on his ability to earn
    money to pay the fines, it is also in the interests of justice that the total
    amount of the fines be reduced, to give the appellant the hope and opportunity
    to pay the reduced fines and be able to get on with his life.

[58]

The
    appellant has made attempts to pay the fines, including payments totalling $480
    in August and November 2014. I would reduce the balance owing to $5000.

Disposition

[59]

In
    the result, I would allow the appeal against sentence, and reduce the total
    fines to $5000 with two years to pay.

Released: KNF April 4, 2016

K. Feldman J.A.

I agree. J.C. MacPherson J.A.

I agree. B.W. Miller J.A.

[1]
Pursuant to the decision of Lauwers J.A. dated November 21, 2013, an order
    restricting publication in this proceeding is in place. Any information that
    could identify the appellant in this appeal shall not be published in any
    document or broadcast or transmitted in any way.

[2]
The jurisprudence I refer to below includes only those cases that have
    considered this issue in some depth. I have not referred to appeals or
    applications disposed of on consent or where one party did not make any
    submissions on jurisdiction.

[3]
This issue has not been reconsidered by this court since
Gonsalves
. But
    see
R. v. Burgar
(2003), 176 C.C.C. (3d) 253 (B.C. C.A.);
R. v.
    Belaroui
(2004), 186 C.C.C. (3d) 386 (Que. C.A.); and
R. v. West
,
    2007 NSCA 5, 250 N.S.R. (2d) 106, as well as
R. v. Menear
(2002), 162
    C.C.C. (3d) 233 (Ont. C.A.), where this court granted leave to appeal without
    adverting to the issue of jurisdiction.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.F., 2016 ONCA 263

DATE: 20160412

DOCKET: C58002

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.F.

Appellant

Russell Silverstein, for the appellant

Kevin Rawluk, for the respondent

Heard: March 10, 2016

On appeal from the convictions entered on August 9, 2013
    by Justice David Salmers of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

A.F. appeals from his convictions by a judge, sitting without a jury, for
    sexual offences involving his step-granddaughter. The offences include two
    counts each of sexual interference and invitation to sexual touching and one
    count each of sexual exploitation, sexual assault, and possession of child
    pornography. The sexual assault conviction was stayed pursuant to
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.

[2]

The offences took place when the complainant was between 11 and 16 years
    of age.

[3]

The credibility of the complainant and of the appellant was the central
    issue at trial. However, there was significant evidence confirming the
    complainants account of the abuse, as is outlined below, including text
    messages to the complainant that were deleted from the appellants cell phone,
    one of which instructed the complainant to Get nude and get on top for a min.

[4]

The appellant raises three issues on appeal. First, he submits that the
    trial judge erred by scrutinizing the appellants evidence more strictly than
    the complainants. Second, he submits that the trial judge misapprehended two
    aspects of the evidence. Third, he submits that the trial judge failed to properly
    apply the test in
R. v. W.(D.),
[1991] 1 S.C.R. 742
.
The
    appellant also brings a motion to introduce fresh evidence.

[5]

We reject these arguments and the appellants motion to introduce fresh
    evidence for the reasons that follow.

(1)

Different Standards of Scrutiny

[6]

It is well established that it is difficult to succeed on a different standards
    of scrutiny argument on appeal. As Laskin J.A. explained in

R. v.
    Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:

It is difficult for two related reasons: credibility findings
    are the province of the trial judge and attract a very high degree of deference
    on appeal; and appellate courts invariably view this argument with skepticism,
    seeing it as a veiled invitation to reassess the trial judges credibility
    determinations.

In
R. v.
    J.H
.
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, Doherty J.A. said:

To succeed in this kind of argument, the appellant must point
    to something in the reasons of the trial judge or perhaps elsewhere in the
    record that make it clear that the trial judge had applied different standards
    in assessing the evidence of the appellant and the complainant.

[7]

The appellant contends that the trial judge failed to address
    inconsistencies in the complainants evidence and uncritically accepted
    favourable interpretations of her evidence. In contrast, the trial judge wrongly
    discounted the evidence of the complainants cousin, B., which supported the testimony
    of the appellant, and failed to consider the appellants level of intelligence,
    his anxiety about testifying, or whether inconsistencies in his evidence could
    be attributed to bad memory.

[8]

We disagree.

[9]

The trial judge carefully scrutinized the complainants evidence. He
    acknowledged inconsistencies in her testimony and determined how much weight
    they should carry. He provided clear and cogent reasons for accepting much
    but not all  of the complainants evidence. It was open to the trial judge to
    do so and there is no basis for this court to interfere with his findings.

[10]

The
    same is true of the trial judges evaluation of the evidence provided by the
    complainants cousin. The trial judge acknowledged that the complainants
    allegations of sexual abuse were not supported by her cousins testimony that
    she had never seen anything improper between the complainant and the appellant,
    or experienced anything improper herself. The trial judge carefully considered
    the cousins testimony and decided to give her evidence limited weight. The
    trial judge found that the cousins testimony did not support a finding that
    the appellant lacked opportunity to do what was alleged or that he had made the
    same get nude statements to other grandchildren in circumstances that were
    not improper. It was open to the trial judge to make these findings, and his treatment
    of the cousins evidence does not constitute legal error.

[11]

The
    trial judge noted many problems with the appellants testimony and found that
    he was tremendously evasive during cross-examination. The trial judge found
    that the appellants testimony often did not make sense. It changed many times,
    concerning both unimportant and significant matters, and was often inconsistent
    with his statement to the police. These findings were open to the trial judge
    and are entitled to deference from this court.

[12]

The
    trial judges reasons reflect a careful consideration of the appellants
    evidence and are well-founded in the trial record. There is no basis to
    conclude that the trial judge applied different standards of scrutiny to the
    evidence at trial.

[13]

We
    reject this ground of appeal.

(2)

Misapprehension of the Evidence

[14]

Although
    the appellants primary submission was framed as a different standards of
    scrutiny argument, in oral argument the appellant raised what he characterized
    as misapprehensions of the evidence by the trial judge. First, the appellant
    says the trial judge misapprehended the evidence concerning the colour of the
    appellants pubic hair. Second, the trial judge misapprehended the evidence concerning
    the complainants knowledge of distinguishing features on the appellants body
    and the sort of underwear he wore. The appellant submits that the first error
    resulted in a failure to discount the complainants credibility, while the
    second resulted in improper enhancement of the complainants credibility.

[15]

In
    her statement, the complainant described the appellants pubic hair as grey,
    but at trial she testified that it was black and grey. A friend of the
    appellant testified that the complainant was present, along with several
    others, at a discussion at the appellants home prior to trial and that the
    colour of the appellants pubic hair was discussed. The friend testified that
    his wife asked the appellants wife: Is [the appellant] grey down there?, and
    that the appellants wife answered: No, hes not.

[16]

The
    appellants wife did not testify at trial. The only other evidence on pubic
    hair colour came from the appellants family physician, who testified that the
    appellant had brown pubic hair.

[17]

The
    trial judge did not misapprehend the evidence concerning pubic hair colour. He recognized
    that the complainants inconsistency raised concerns about her credibility. The
    trial judge considered all of the evidence on the pubic hair issue, found that it
    did not assist him, and reduced the weight given to all of the pubic hair evidence
    as a result. That finding was open to the trial judge.

[18]

It
    is clear, however, that the trial judge misapprehended the evidence concerning
    the complainants knowledge of a scar on the appellants hip. The trial judge
    rejected the appellants testimony that the complainant would have seen the
    scar when she visited the appellant in hospital following hip surgery, but the
    complainant testified that she saw it at the hospital. The Crown concedes that
    this is a misapprehension of the evidence, and that there was no evidence
    confirming the complainants testimony concerning either the brand of underwear
    worn by the appellant or the existence of a red spot on the appellants leg
    close to his groin.

[19]

However,
    it is not enough for the appellant to identify a misapprehension of the evidence
    in order to succeed. As Binnie J. stated in
R. v. Lohrer
,
2004
    SCC 80, [2004] 3 S.C.R. 732 at para. 2:

The misapprehension of the evidence must go to the
    substance rather than to the detail. It must be material rather than peripheral
    to the reasoning of the trial judge.  Once those hurdles are surmounted,
    there is the further hurdle (the test is expressed as conjunctive rather than
    disjunctive) that the errors thus identified must play an essential part not
    just in the narrative of the judgment but in the reasoning process resulting
    in a conviction (citing
R. v. Morrissey
(1995),
    97 C.C.C. (3d) 193 at 221).

[20]

The test is not satisfied in this case.

[21]

The
    trial judge found that the misapprehended evidence enhanced the complainants
    credibility, but her credibility did not turn on that evidence. The trial judge
    provided many reasons for accepting the complainants account of the abuse,
    including:

1.

her compelling disclosure of abuse and her answers to open-ended
    questions during her statement to the police;

2.

her maintenance of her allegations knowing that she was on her own and
    the possible harm it would cause to her family;

3.

her demeanour;

4.

the age-appropriate nature of her testimony;

5.

her candour about receiving money from the appellant;

6.

her absence of a motive to fabricate;

7.

the good relationship between the complainant, her mother, and the
    appellant prior to the complainant making her disclosures;

8.

her disclosure to her mother, after prodding, subsequent to her mother
    overhearing a phone conversation in which the appellant used a sexy tone and
    arranged to meet the complainant at a school; and,

9.

significantly, the deleted text messages recovered from the appellants
    cellphone including, in addition to the text message noted above, text messages
    from the appellant to the complainant saying pics please; then kiss u all
    over; and for me (sent one minute after the complainant asked the appellant
    for money); as well as a message from the complainant saying: Dont say
    anything in reference to her friend having her phone.

[22]

Moreover,
    as noted above, the trial judge outlined many cogent reasons for rejecting the
    appellants testimony, including his evasiveness during cross-examination. The
    appellants testimony often did not make sense, changed many times, and was
    often inconsistent with his statement to the police.

[23]

In
    summary, the misapprehension of the evidence did not play an essential part
in the reasoning process resulting in the convictions
. This
    ground of appeal must be rejected.

(3)

W. (D.)

[24]

The
    appellants argument that the trial judge erred in applying the test in
R. v.
    W. (D.)
was not pursued in oral argument. We are satisfied the trial judge
    properly identified and applied the test. The trial judge reiterated that the
    burden of proof beyond a reasonable doubt remained on the Crown at all times.
    He rejected the appellants evidence, did not have a reasonable doubt as a
    result of it, and concluded on the basis of the whole of the evidence that the
    case had been proved beyond a reasonable doubt.

(4)

Fresh Evidence

[25]

The
    appellant sought to adduce fresh expert evidence in relation to the colour of his
    pubic hair, indicating that it was brown and had not been dyed.

[26]

In
    our view, the appellant fails to meet the requirements for the admission of
    fresh evidence set out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759.
    The evidence could have been adduced at trial with due diligence; it does not
    bear upon a decisive or potentially decisive issue at trial; and although it is
    credible, taken with the other evidence, it could not reasonably be expected to
    have affected the result. Although the complainants evidence concerning the
    colour of the appellants pubic hair was inconsistent, the trial judge
    acknowledged and addressed the inconsistency, and there was ample evidence to
    support the appellants convictions.

[27]

The
    appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.


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. Chica, 2016 ONCA 252

DATE: 20160406

DOCKET: C57416

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Heli Samuel Chica

Appellant

Elmé G. Schmid and Lina Anani, for the appellant

Mabel Lai, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered by Justice David P.
    Cole of the Ontario Court of Justice, dated March 5, 2013.

Cronk J.A.:

(1)

Background

[1]

After a two-day trial before a judge alone, the appellant Heli Samuel
    Chica was convicted of one count of sexual assault relating to his friends
    girlfriend, T.F. He was sentenced to two years imprisonment, plus three years
    probation. He appeals from his conviction.

[2]

The appellant advances two grounds of appeal. First, he argues that his
    counsels assistance at trial was ineffective, compromising his right to make
    full answer and defence and leading to a miscarriage of justice. Second, he
    contends, for the first time on appeal, that his right to an interpreter under
    s. 14 of the
Charter of Rights and Freedoms
was breached because he is
    a native Spanish speaker and his trial was conducted in English, without the
    assistance of an interpreter.

[3]

For the reasons discussed below, I would dismiss the appeal.

(2)

Fresh Evidence

[4]

The appellant seeks leave to file fresh evidence on appeal relating to
    both the ineffective assistance of counsel and s. 14 claims.

[5]

In my view, it is in the interests of justice to receive the fresh
    evidence relating to the appellants ineffective assistance of counsel claim:
R.
    v. Howell
, 2015 ONCA 728;
R. v. Nwagwu
, 2015 ONCA 526;
R. v.
    Qiu
, 2010 ONCA 736, 268 O.A.C. 352;
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.);
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 347. However, for the
    reasons explained below, I would not admit the fresh evidence directed at
    whether the appellant required the assistance of an interpreter at trial.

(3)

Ineffective Assistance of Counsel Claim

[6]

The appellant maintains that his trial counsels assistance was
    deficient in several respects. Relying on the audio recording and transcript of
    the trial, together with affidavits and other materials filed as part of the fresh
    evidence, the appellant argues that trial counsel:

(i)    was
    incapable of advocating effectively in the English language;

(ii)   failed
    to call material witnesses, whose evidence would have supported the appellants
    defence;

(iii)  breached
    the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L. (Eng.)) by failing to
    put evidence of past sexual history between the appellant and the complainant
    to the complainant during cross-examination, thereby undermining the
    appellants ability to challenge the complainants credibility and to make out
    the defence of honest but mistaken belief in consent;

(iv)  was generally unprepared for trial;

(v)   waived
    the appellants right to a preliminary inquiry and a Superior Court trial
    without first advising the appellant of his rights under s. 11(f) of the
Charter
; and

(vi)  failed
    to arrange for a Spanish language interpreter to assist the appellant.

[7]

The appellant faces a high hurdle in attempting to demonstrate ineffective
    assistance of trial counsel. For an appeal to succeed on this ground, the
    appellant must establish the following: i) the material facts underlying the
    allegation, on a balance of probabilities; ii) that counsels acts or omissions
    constituted incompetence, measured on a reasonableness standard and in light of
    a strong presumption that trial counsels conduct fell within the wide range of
    reasonable professional assistance (the performance component); and iii) that
    counsels ineffective representation caused a miscarriage of justice by
    resulting in procedural unfairness or undermining the reliability of the
    verdict (the prejudice component):
R. v. Meer
, 2016 SCC 5;
R. v.
    G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras.
26-28;
Archer
, at paras.
119-20.

[8]

In considering a claim of ineffective assistance of counsel, this court
    must first assess the prejudice component. If the claim fails on this ground,
    it is unnecessary to assess the adequacy of trial counsels performance:
G.D.B.
,
    at para. 29;
Archer
, at para. 121.

[9]

Having reviewed the trial record and the fresh evidence, I conclude that
    the appellants ineffective assistance claim must fail. I assess each of the
    appellants allegations of incompetence below.

(i)

Failure to Advocate Effectively in English

[10]

While
    a failure by trial counsel to advocate effectively in English may lead to a miscarriage
    of justice, the record in this case confirms that the appellants counsel, a
    certified Spanish language translator, communicated adequately at trial. Considered
    in its entirety, the trial record does not support the claim that he either
    misunderstood the trial judge or that the trial judge misunderstood him.

[11]

In
    particular, the record reveals that the trial judge was left in no doubt about
    the appellants claim that the complainant had consented to sexual intercourse
    and his alternative claim that he had an honest but mistaken belief in her consent.
    At the end of the day, for reasons he made clear, the trial judge simply
    rejected these defences on the basis of the evidence before him. He was
    entitled to do so. The appellant has therefore failed to rebut the presumption
    that trial counsels conduct in this regard fell within the wide range of
    reasonable professional assistance.

(ii)

Failure to Call Material Witnesses

[12]

The
    appellant has not established any miscarriage of justice arising out of counsels
    decision not to call certain witnesses.

[13]

The
    fresh evidence includes an affidavit by the appellants trial counsel and the
    transcript of his cross-examination on that affidavit. In his evidence, trial
    counsel outlines a reasonable tactical basis for his decision not to call the
    additional witnesses identified by the appellant. This was counsels call to make.
    In my opinion, it cannot be said that his decision in this regard was
    unreasonable or clearly prejudicial to the appellant.

(iii)

Breach of the Rule in
Browne v. Dunn

[14]

I
    agree with the respondents submission that it is arguable whether trial
    counsel breached the rule in
Browne v. Dunn
by failing to cross-examine
    the complainant on the details of her alleged prior sexual contact with the
    appellant. The complainant categorically denied such contact during her
    evidence-in-chief. It is a reasonable inference that, if pressed on
    cross-examination on this issue, she would simply have done so again.

[15]

More
    importantly, this omission by trial counsel did not figure in the trial judges
    rejection of the appellants version of events.  On the contrary, the trial
    judge explicitly considered the appellants evidence that the complainant had
    consented to sexual intercourse with him and, alternatively, that he had an
    honest but mistaken belief in her consent, and rejected this evidence on its
    own terms.  For example, with respect to the defence of honest but mistaken
    belief in consent, the trial judge specifically addressed, and rejected, the
    appellants testimony that he and the complainant had had prior consensual
    sexual contact.  He stated, at pp. 52-53 of his reasons:

I have carefully reviewed what the accused said in his
    affidavit on the s. 276 motion which I am entitled to do.  I have carefully
    reviewed what he said in his evidence-in-chief on this point.  I reject his
    evidence entirely about prior sexual contact with the complainant.  I reject
    the accuseds idea that he had an honest but mistaken belief that  [the
    complainant] was consenting.

The trial judge later reiterated, at pp. 53-54: As I
    say, I think the accuseds supposed belief in what had happened before is
    dishonest.  I reject his evidence on that as I reject his evidence that she was
    consenting.

[16]

Accordingly,
    even assuming that trial counsel should have pursued the suggested line of
    cross-examination, no prejudice flowed to the appellant from his failure to do
    so.

(iv)

Unpreparedness for Trial

[17]

The
    appellant has failed to establish that trial counsels state of preparedness
    for trial resulted in a miscarriage of justice. Even assuming the appellants allegations
    are true, I am not persuaded that counsels conduct had any impact on the reliability
    of the verdict or trial fairness.

[18]

In
    any event, the appellants complaints regarding counsels preparation are
    undercut by counsels records. Trial counsels extensive dockets form part of
    the fresh evidence. They detail his numerous preparatory steps for trial,
    including several consultations with the appellant. That another defence
    counsel might have prepared for trial differently, or in a more extensive
    fashion, is irrelevant.

(v)

Failure to Advise the Appellant of his s. 11(f)
Charter
Rights

[19]

While
    a failure to advise an accused about the available modes of trial may constitute
    incompetence leading to a miscarriage of justice in the appropriate case, I
    conclude that the appellant has failed to demonstrate any such failure on the
    part of his trial counsel.

[20]

Contrary
    to the appellants contention, trial counsel swore in his affidavit that he
    advised the appellant of his right to a jury trial in the Superior Court and to
    request a preliminary inquiry. Counsels docket entries support this claim.

[21]

Parts
    of the trial record and fresh evidence also support trial counsels assertion
    that the decision to stand trial in the Ontario Court of Justice, before a
    judge alone, was driven by the following considerations: i) the appellants
    desire to obtain an early resolution of the prosecution; and ii) concerns that a
    jury trial would not serve the appellants interests, given his professed
    belief that a Canadian jury would favour a female complainant in a sexual
    assault case and his problematic views towards women.

(vi)

Failure to Arrange for a Spanish Language Interpreter

[22]

Finally,
    I address the appellants complaint that he was prejudiced by trial counsels
    failure to request a Spanish language interpreter in my discussion of his
    second ground of appeal.  As I will explain, I am not persuaded that this omission
    led to any impairment of trial fairness or that it undermines the reliability
    of the verdict.

[23]

The
    ineffective assistance of counsel claim therefore fails.

(4)

Section 14
Charter
Claim

[24]

The
    appellant maintains that he had great difficulty at trial understanding the questions
    and issues being put to him and in expressing himself, and that his
    difficulties were apparent to the trial judge. As a result, he submits, the
    trial judge was obliged to inquire about whether the appellant required
    interpreter assistance. He says the trial judges failure to appoint an
    interpreter, and defence counsels failure to request one, violated his s. 14
Charter
rights and deprived him of the opportunity to participate meaningfully in his
    own defence, to make full answer and defence and to benefit from a fair trial.

[25]

I
    would reject these submissions.

[26]

A
    right to interpreter assistance is not automatic. To establish a violation of
    s. 14, the appellant must demonstrate, on a balance of probabilities, that he
    was actually in need of such assistance at trial  i.e., that he did not
    understand or speak the language being used in court:
R. v. Tran
, [1994]
    2 S.C.R. 951, at pp. 979-80. I am not persuaded that the appellant has
    satisfied this burden.

[27]

The
    record in this case, read as a whole, amply demonstrates that the appellant
    understood the trial proceedings and made himself understood.

[28]

In
    support of his claim that he needed the assistance of an interpreter, the
    appellant relies heavily on one exchange with Crown counsel at trial. On
    cross-examination, Crown counsel inquired of the appellant whether he had asked
    the complainant if she wanted to have sex with [him]. The appellant replied:
    No. Why should I?  You dont  when youre  . The trial judge then
    interjected to ask the appellant if that was his answer. The appellant
    responded Sorry. Um  it just went with the flow. I dont know. Just  just
    went.

[29]

Before
    this court, the appellant maintains that his initial answer to this question
    was misunderstood and that he meant to say, Why would I? instead of Why
    should I? He asserts that, in his answer, he intended to convey that he did
    not ask the complainant whether she wanted to have sex with him because of the
    way things happened and because one thing led to another thing, and that his
    efforts at trial to explain or clarify his answer were frustrated by the trial
    judges interventions. He says that the trial judge relied on his misspoken
    words to reject his defence of honest but mistaken belief in consent and that
    this demonstrates that he was prejudiced in his defence by his English language
    difficulties.

[30]

I
    disagree.

[31]

The
    appellant clearly articulated his position to the trial judge during
    re-examination by his own counsel. When asked to explain what he meant when he
    said Why should I?, the appellant replied:

Like, I had a girlfriend before and I never  I never asked her
    like, if he  she wants to have sex.  I dont know if is [
sic
] the
    right word to say, like  like we went with the flow, right, like I was giving
    her a massage and thats  thats about it, right.  And one  one thing lead to
    another thing and then we start  we ended up having sex.

[32]

I
    would therefore reject the contention that the appellants exchange with Crown
    counsel established any need for interpreter assistance at trial. As his answer
    on re-examination indicates, the appellant had no difficulty in making his
    position clear to the trial judge. That the trial judge ultimately rejected the
    appellants testimony with respect to his belief in consent and also accepted
    the complainants testimony that she did not consent, does not establish that
    the appellant needed the assistance of an interpreter. It simply means that the
    trial judge, having observed the appellant and hearing his testimony, did not
    believe him.

[33]

It
    is also noteworthy that the appellant did not request the assistance of an
    interpreter at trial. Nor did he complain at any point about having difficulty
    understanding the questions posed to him or the testimony given, although the
    trial judge expressly invited him to do so at the outset of trial, should the
    need arise.

[34]

Instead,
    the appellant raises the issue of interpretation for the first time on appeal.
    The appellants s. 14
Charter
rights do not depend on his having asserted
    the right to interpreter assistance. Nonetheless, the timing of his interpreter
    complaint further undermines his assertion that he needed such assistance to
    properly comprehend the evidence or defend himself at trial. The comments of
    Lamer C.J. in
Tran
, at p. 982, are apposite in this case:

Where there are no outward indications which point to a lack of
    understanding on the accuseds part and where the right [to an interpreter] has
    not been invoked by the accused or by counsel (in the case of represented
    accused), these may be factors which are weighed against the accused if, after
    sitting quietly throughout the trial, the issue of interpretation is suddenly
    raised for the first time on appeal.

[35]

On
    a fair reading of the trial transcript, there were no positive indications that
    the appellant did not understand the proceedings or that he could not be
    understood for language-related reasons. Absent any such indication, the trial
    judge was not obliged, on his own motion, to conduct an inquiry into the
    appellants need for an interpreter or to order one:
Tran
, at pp.
    979-81.

[36]

In
    all these circumstances, I conclude that the interests of justice are not
    served by receiving the fresh evidence directed at the question whether the
    appellant required the assistance of an interpreter.

[37]

However,
    I note that the fresh evidence would not alter my conclusion on the s. 14
    claim, in any event. The appellants trial counsel swore in his evidence that
    he both advised and encouraged the appellant to exercise his right to interpreter
    assistance at trial. Despite this advice, the appellant refused the services of
    an interpreter on the grounds that he was a College Student, that he had come
    to Canada when he was young and that he knew English well. Counsels evidence
    also furnishes a reasonable explanation for his decision to accept the
    appellants refusal of an interpreter and the appellants assertion that his
    proficiency in English was good enough for trial. Finally, the proposed fresh
    evidence provides several examples of the appellants ability to understand and
    speak the English language and his practice to seek language assistance when he
    needs it.

[38]

In
    my view, therefore, the appellant has failed, both on the trial record and on
    the proposed fresh evidence, to establish that the lack of interpreter
    assistance at trial breached his s. 14
Charter
rights or occasioned any
    miscarriage of justice.

(5)

Disposition

[39]

This
    was a short, relatively straightforward trial where credibility was the central
    issue. The trial judge rejected the appellants account of events, for clear
    and cogent reasons. He accepted the complainants conflicting evidence, again
    for considered reasons. Her testimony was supported by other evidence regarding,
    among other matters, her post-event demeanour and actions. In all the
    circumstances, I agree with the Crown that the appellants conviction rested,
    not on any fault of the trial judge or defence counsel at trial, but on the
    evidence including, especially, that of the appellant himself.  Accordingly, the
    appellant has not demonstrated any miscarriage of justice.

[40]

For
    the reasons given, I would grant leave to admit the fresh evidence concerning
    the appellants ineffective assistance claim, deny leave to admit the fresh
    evidence directed at whether the appellant required interpreter assistance, and
    dismiss the appeal.

Released:

APR -6 2016                           E.A. Cronk J.A.

BM                                         I agree John
    Laskin J.A.

I agree B.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhillon, 2016 ONCA 308

DATE: 20160428

DOCKET: C59630

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Beant Dhillon

Respondent

Rick Visca, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent

Heard: January 8, 2016

On appeal from the acquittals entered on October 27, 2014
    by Justice Clayton J. Conlan of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2014 ONSC 6287.

Tulloch J.A.:

A.

Introduction

[1]

The respondent was acquitted of three counts of possession of heroin and
    methamphetamine for the purpose of trafficking. The Crown invited acquittals
    after the respondent successfully applied to have evidence excluded on the
    basis that his right to not be arbitrarily detained or imprisoned under s. 9 of
    the
Charter of Rights and Freedoms
was infringed. The Crown now
    appeals the acquittals, on the basis that the trial judge erred in his
Charter
ruling.

[2]

Beginning in April 2011, police received information from three
    confidential informants that the respondent was trafficking heroin and crystal
    methamphetamine. The police investigated and began surveillance of the
    respondent in May.

[3]

At the time of the investigation Constable Whitlock was working in the
    drug unit with Peel Regional Police, where he had several years experience in
    drug investigations. On October 19, 2011, Constable Whitlock and several other
    police officers set up surveillance outside the respondents Brampton
    residence. Constable Whitlock testified at the
voir dire
that he saw
    three encounters that day that he believed were drug transactions. In all
    three, the respondent left his home and entered the front passenger seat of a
    vehicle that had pulled up in front of his house or into his driveway. The
    first car, a Nissan SUV, was stopped by police shortly after leaving the
    respondents residence. The driver fled the car on foot, and was arrested by
    police. He was carrying approximately $3,000 in cash.

[4]

At 1:53 p.m., while the respondent was in the passenger seat of a silver
    Ford in his driveway, police intervened and arrested him. Police found 9.3
    grams of heroin near his feet in the car. They then entered the home believing
    exigent circumstances required them to secure the residence to preserve
    evidence and ensure officer safety. There were five adult women and one young
    child in the home. A search warrant was issued and executed later that day.
    Police found 46.8 grams of heroin and approximately 300 grams of
    methamphetamine in a bedroom.

[5]

The trial judge found that Constable Whitlock, subjectively, had
    reasonable and probable grounds to arrest the respondent. However, these
    grounds were not objectively reasonable. The judge held that the tipster
    information was not credible, it was not compelling, and there was little
    material corroboration of the trafficking allegations. After finding a s. 9
    violation, he excluded the evidence found in the silver Ford and the respondents
    home under s. 24(2) of the
Charter
.

[6]

The Crown appeals the trial judges decision on the following grounds:

1. The trial
    judge erred in considering the alleged violations of a third partys rights
    under the
Charter
;

2. The trial
    judge erred in finding that there were insufficient reasonable grounds to
    arrest the respondent; and

3. The trial
    judge erred in excluding evidence seized from the vehicle and the residence.

[7]

The only issue I will address is whether there were reasonable grounds to arrest the respondent. As the respondent acknowledges, if the Crown succeeds on this issue, it is dispositive of this appeal. I conclude that, even without the information related to the arrest of the Nissan driver, the police had reasonable and probable grounds to arrest the respondent. On this ground alone, I would allow the appeal. I therefore do not find it necessary to address the Crown's other grounds of appeal.

B.

Background

(1)

The Confidential Informant Information

[8]

The information provided to police by three confidential informants is
    central to this case. Constable Whitlock testified about when and from whom he
    received this information. The Information to Obtain (ITO) the warrant to
    search the respondents residence also describes the confidential sources and the
    information they gave to police. Constable Barbara swore the ITO.

[9]

Constable Barbara received information from the first confidential
    informant (C.I. 1) in April 2011. Both he and Constable Stafford informed
    Constable Whitlock about this informant on May 10, 2011. C.I. 1 told police
    that a man by the name of Beant Dhillon trafficked in moderate amounts of
    drugs, namely heroin, from his residence at 21 Alfonso Dr. in Brampton. The
    informant told police that the man was known as Bunt, is of South Asian descent,
    and is associated with a larger group of South Asian men who are involved in
    organized criminal activity. C.I. 1 also alleged that the respondent was
    involved in stealing tractor trailer loads. The ITO stated that C.I. 1 knew the
    respondent and had knowledge of his actions, but the length of time during
    which C.I. 1 was familiar with the respondent was redacted.

[10]

The date on which Constable Mullinder received information from a second
    informant (C.I. 2) is unknown. C.I. 2 told Constable Mullinder that an East
    Indian man known as Bunt deals heroin and crystal methamphetamine from his
    residence at 21 Alfonso Crescent in Brampton. Bunt is approximately 30 years
    of age and drives a white BMW. The informant purchased heroin from Bunt. The
    informant also told police that Bunt usually sells from inside his garage or
    from locations near his residence, and retrieves the heroin from his residence.
    Other information, including the price the informant paid for the brown heroin
    and for how long C.I. 2 had been purchasing heroin from Bunt, was redacted
    from the ITO.

[11]

At some point before October 19, 2011, Constable Whitlock was approached
    and provided information from a third confidential informant (C.I. 3). The
    informant told him that an East Indian male named Bunt Dhillon is an active
    heroin and crystal methamphetamine dealer. Bunt lived on Alfonso Crescent in
    Brampton with his family. He said that Bunt is the mans nickname and that
    his real name was something similar. He also described Bunt as having a
    large, muscular build, and being in his early 30s. He said that Bunt drives
    an older style white BMW with an unknown license plate. C.I. 3 said that Bunt
    sold heroin for certain amount per gram that was redacted in the ITO. The
    informant had purchased heroin from Bunt at the Alfonso Crescent residence.
    The informant said that Bunt would usually come out of his residence and get
    into the informants vehicle in the driveway to complete the transaction.

[12]

Notably, none of the three confidential informants had been used by
    police in the past. The first was said to be reliable and accurate in the ITO,
    but there is no reason given to support this assessment. Confidential
    informants 2 and 3 were both described as being deeply entrenched in the drug
    sub-culture. No assertion was made about their reliability or credibility.
    However, both were said to understand that if they lied or embellished, they
    would not receive consideration and could face criminal charges.

[13]

During the
voir dire
, counsel for the respondent attacked the
    independence of the informants. Constable Whitlock testified that he was sure
    C.I. 1 and C.I. 3 were different people and that C.I. 2 and C.I. 3 were also
    different people. The trial judge determined that it was unknown whether these
    three tipsters were independent of one another as their information could have
    been parroting of what they all had heard together.

(2)

The Police Investigation

[14]

The police initially searched the respondent on various databases. They
    discovered that Beant Dhillon resided at 21 Alfonso Crescent in Brampton. He
    was in his late 30s in 2011. He had no prior convictions but was arrested and
    eventually acquitted in relation to stolen property and firearms charges.

[15]

The police began surveillance on the respondent. In May 2011, they
    observed the respondent driving a white BMW. A database check revealed that it
    was a 2001 BMW registered to another person who resided at the respondents
    home. The respondent was seen driving the white BMW on other occasions.

[16]

The ITO describes numerous days of surveillance. On May 10, 2011, the
    affiant, Constable Barbara, observes two encounters between the respondent and
    two other men, that he believed were drug transactions. There was no testimony
    about this surveillance at the
voir dire
, and there is little
    information supporting the affiants opinion.

[17]

Constable Whitlock testified that he observed the respondent during the
    afternoon on May 10, 2011 and August 8, 2011. He saw nothing suspicious on May
    10. On August 8, he saw the respondent drive from his home to a nearby plaza.
    He got into the front seat of another vehicle that was parked at the plaza and
    remained there for 13 minutes. He then returned to his car and left. Constable
    Whitlock described this incident as strange and suspicious, but due to the
    length of time that the respondent spent inside the other car, it was probably
    not a drug transaction.

[18]

The police set up surveillance at the respondents residence on October
    19, 2011, commencing at 10:55 a.m. A Nissan SUV arrived at the residence at
    1:02 p.m. The respondent entered the passenger seat and the vehicle pulled
    away.

[19]

One minute later, a black Ford truck stopped at the bottom of the
    driveway at the residence. The driver went to the front door of 21 Alfonso Crescent
    and waited. At 1:06 p.m., the respondent was observed walking back towards his
    home. He spoke with the black Ford driver and then entered his residence. Four
    minutes later, he exited his house and Constable Whitlock believed he was
    holding something small cupped in his left hand. He entered the passenger
    seat of the black Ford and returned to his house empty-handed two minutes
    later. The trial judge viewed the surveillance video from this meeting and was
    unable to conclude whether or not the respondent was carrying something in his
    left hand when he entered the black Ford.

[20]

Meanwhile, police pursued the Nissan SUV. Their attempt to arrest the
    driver resulted in a foot chase. On arrest, the driver was found in possession
    of approximately $3,000 in cash and a cell phone. Constable Whitlock was
    informed of the circumstances of the arrest shortly after 1:12 p.m. He was
    concerned that the driver may have had a chance to contact the respondent.

[21]

Constable Whitlock continued to observe 21 Alfonso Crescent. He
    requested backup. At about 1:40 p.m., a silver Ford vehicle entered the
    driveway of the home. The respondent exited the residence and entered the
    passenger seat of the silver Ford. Constable Whitlock ordered his arrest,
    believing he had reasonable grounds to do so.

C.

Discussion

(1)

The Standard of Review

[22]

The trial judges factual findings are entitled to deference. Whether
    the factual findings of the trial judge amount at law to reasonable and
    probable grounds is a question of law and is reviewed on a standard of
    correctness:
R. v. Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at
    para. 20.

(2)      The Sufficiency of the Grounds to Arrest the
    Respondent

[23]

Section 495(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    allows a peace officer to make an arrest without a warrant when he or she
    believes, on reasonable grounds, that the person has committed or is about to
    commit an indictable offence.

[24]

The trial judge accurately summarized the general understanding of
    reasonable and probable grounds as articulated in
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at pp. 250-251. An arresting officer must subjectively
    have reasonable and probable grounds on which to base the arrest. Further,
    those grounds must be objectively justifiable to a reasonable person placed in
    the position of the officer.

[25]

The standard does not require that the police demonstrate anything more
    than reasonable and probable grounds. They are not required to establish a
prima
    facie
case for conviction before making the arrest. The standard is met at
    the point where credibly-based probability replaces suspicion. Of course, the
    totality of the circumstances is to be considered.

[26]

Although the trial judge correctly articulated the law, he erred in his
    consideration of the totality of the circumstances. In my view, he considered
    the confidential informant information and the observations of the police in
    isolation and improperly discounted the informants information due to their
    weak credibility. When viewed with the police investigation and surveillance,
    the information provided by the informants was sufficiently compelling and
    corroborated to overcome the credibility concerns.

Constable Whitlock had Subjective Reasonable and Probable Grounds to Arrest

[27]

With respect to the subjective grounds to arrest, Constable Whitlock
    testified that his decision was based on a combination of the confidential
    informant information and the observations on October 19, 2011. The suspicious
    circumstances from that day included: the drivers of the vehicles did not enter
    the residence, the brief nature of the meetings, that the meetings occurred in
    cars and not in public view, there were several within less than an hour, the
    large amount of currency found on the Nissan driver, and the respondents hand
    being cupped as he approached the black Ford truck.

[28]

Constable Whitlock testified that he made his decision to arrest the
    respondent after learning about the Nissan drivers arrest. But he later said
    that he had grounds to arrest the respondent even without the information about
    the police pursuit of the Nissan driver. The trial judge accepted the latter
    evidence but noted the inconsistency. I agree that Constable Whitlock
    subjectively had reasonable and probable grounds to arrest the respondent.

The Grounds to Arrest were Objectively Reasonable

[29]

The main issue is whether these grounds were objectively reasonable. In
    my opinion, even without the information about the arrest of the Nissan driver,
    they were.

[30]

In circumstances where confidential informant information is at issue,
    the Supreme Court of Canadas comments in
R. v. Debot
, [1989] 2 S.C.R.
    1140, apply. One must weigh whether the informant was credible, whether the
    information predicting the commission of a criminal offence was compelling, and
    whether the information was corroborated by police investigation:
Debot
,
    at p.1168. The totality of the circumstances must meet the standard of
    reasonableness.

[31]

First, the credibility of the three informants was obviously weak. They
    were all untested. C.I. 1 was said to be reliable and accurate, but no support
    was given for this assessment. There was no claim that the other two informants
    were credible or reliable. There was no information about whether they had
    criminal records, though C.I. 2 and C.I. 3 were described as being deeply
    entrenched in the criminal sub-culture.

[32]

I would note though that the information was not derived from anonymous
    tips. Police knew the informants, and the second and third informants were
    informed of potential criminal consequences if they lied or embellished the
    information they provided.

[33]

The lack of indicators of credibility and reliability does not mean that
    the confidential informant information has no evidentiary value. It can still
    contribute to the reasonable grounds to arrest if it is compelling and
    corroborated. As Wilson J. explained in
Debot
at pp. 1170-1171, where
    the police rely on an untried informant, the quality of the information and
    corroborative evidence may have to be such as to compensate for the inability
    to assess the credibility of the source.

[34]

The trial judge found the confidential informant information to not be
    compelling. I disagree. The information was fairly detailed and specific. It
    described various personal characteristics of the respondent, the types of
    drugs being trafficked, where the transactions occurred, and how they were
    carried out. All the informants identified the respondents Alfonso Crescent
    residence as the hub. Two of the confidential informants identified the precise
    address.

[35]

C.I. 1 was said to know the respondent personally, though no details
    were provided. C.I. 2 and C.I. 3 were described as customers of the respondent.
    They had first-hand knowledge of the trafficking. This relationship helps to
    alleviate the concern that they were just perpetuating rumours or gossip.

[36]

The second and third informants described the manner in which the
    transactions occurred in slightly different ways. C.I. 2 said Bunt usually
    retrieved the drugs from his residence and sold them from inside his garage or
    locations near his residence. C.I. 3 said Bunt would usually come out of his
    residence and enter the informants vehicle in the driveway. A common thread is
    that the purchasers would not enter the residence, and the transaction would
    occur near the residence  either in the garage, locations near the residence,
    or the informants car while parked outside.

[37]

On the other hand, with the exception of C.I. 1, who spoke to Constable
    Barbara in April 2011, the currency of the information is unknown.

[38]

In these circumstances, I would describe the informant information
    predicting the trafficking of heroin and crystal methamphetamine by the
    respondent from 21 Alfonso Crescent as moderately compelling.

[39]

With respect to corroboration, the consistency of the information from
    the three informants should be given some weight. There was significant overlap
    in their description of the respondents nickname and name, approximate age,
    ethnicity, residence, vehicle, types of drugs in which he trafficked, location
    at which the transactions occurred, and, as described above, certain
    similarities in the manner in which the transactions would occur. These
    consistencies increase the significance and reliability of the informant
    information and distinguish this case from circumstances in which there is only
    one anonymous or untried informant.

[40]

The trial judge found little corroborative value in the police
    investigation. Again, I disagree. Police confirmed the accuracy of specific
    information during their investigation. This included: the respondents name,
    though not his nickname; the colour, make, and age of the respondents vehicle;
    the respondents ethnicity; the respondents address; his approximate age; and
    that he had been arrested but not convicted in relation to the possession of
    stolen property. Police confirmation of these details, as in
R. v. Caissey
,
    2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25, affd 2008 SCC 65, [2008] 3
    S.C.R. 451, tends to substantiate the reliability of the informants
    information.

[41]

Not only was there corroboration of personal characteristics, there was
    some indication that the criminal activity alleged was indeed occurring. As
    this court stated in
R. v. Lewis
(1998), 38 O.R. (3d) 540, at pp.
    547-548, there is no need to confirm the very criminality of the information
    given by the tipster, but there must be more than corroboration of innocent or
    commonplace conduct when the police are relying on an untested informant.

[42]

Here, there were three brief meetings within one hour, all of which
    occurred outside the respondents residence in various cars. This behaviour
    must be considered in light of the knowledge and experience that Constable
    Whitlock brought to the investigation. Constable Whitlocks experience and
    conclusions about these meetings helps inform the inferences that can be drawn
    when assessing the objective reasonableness of the grounds to arrest.

[43]

He testified that these meetings were consistent with drug transactions
    in that they were very brief, took place outside of public view but not inside
    a residence, and were numerous and within quick succession of each other. His
    observation of the respondents hand being cupped as he left his residence and
    entered the black Ford increased his suspicion and the inference that a drug
    transaction ensued in the vehicle.

[44]

Further, the sequence of events conformed sufficiently to the pattern
    predicted by C.I. 2 and C.I. 3 as to remove the possibility of innocent
    coincidences: see
Debot
, at p. 1172;
R. v. Whyte
, 2011 ONCA
    24, 266 C.C.C. (3d) 5, at paras. 30-31. Again, three brief meetings took place
    in the cars of those who showed up at the respondents residence while the
    vehicles were either parked in the driveway or directly outside the residence,
    or within a brief time, drove away. This corroborated the confidential
    informant information of C.I. 3, in particular on the manner in which the
    respondent engaged in drug transactions.

[45]

In the totality of the circumstances, regardless of the information
    about the arrest of the third party Nissan driver, the police had subjectively
    and objectively justifiable reasonable and probable grounds to arrest the
    respondent. Accordingly, there was no violation of the respondents rights
    under s. 9 of the
Charter
.

D.

Conclusion

[46]

I would therefore allow the appeal and set aside the acquittals.

Released: EAC  APR 28 2016

M. Tulloch J.A.

I agree. E.A. Cronk
    J.A.

I agree. K. van
    Rensburg J.A.