COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Araya, 2015 ONCA 854

DATE: 20151207

DOCKET: C54733

Strathy C.J.O., Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nahoor Araya

Appellant

James Lockyer, Michael Lacy and Anida Chiodo for the
    appellant

Michael Bernstein, for the respondent

Heard: October 16, 2015

On appeal from the sentence imposed on December 8, 2011
    by Justice John B. McMahon of the Superior Court of Justice, sitting with a
    jury.

Laskin
    J.A.:

A.

Overview

[1]

This is a rather unusual sentence appeal.

[2]

In October 2008, Nahoor Araya and two or three other youths participated
    in a robbery in a Toronto park. During the robbery a 17-year-old boy was shot
    and killed. Araya was not the shooter and he did not even carry a gun. He was
    18 at the time.

[3]

Araya surrendered to the police and was charged with murder. No one else
    has ever been charged in the shooting. In November 2011, after a four-week jury
    trial, Araya was found guilty of manslaughter. Section 236(a) of the
Criminal
    Code
, R.S.C. 1985 c. C-46,
requires a mandatory minimum sentence of four years imprisonment for the use
    of a firearm in the commission of manslaughter. In December 2011, the trial
    judge sentenced Araya to eight years imprisonment (less 15 months for
    pre-sentence custody).

[4]

Araya appealed both his conviction and sentence to this court. A
    majority of this panel allowed the conviction appeal and ordered a new trial;
    Strathy C.J.O. dissented:
R. v. Araya
, 2013 ONCA 734, 305 C.C.C. (3d) 14.
    All three panel members agreed that in sentencing Araya, the trial judge erred
    in principle: despite the mandatory minimum required by s. 236(a) when a
    firearm is used, he also treated the use of a firearm as an aggravating
    consideration justifying a sentence beyond this minimum.

[5]

Relying on the Chief Justices dissent, the Crown appealed as of right
    to the Supreme Court of Canada. In March of this year, the Supreme Court allowed
    the Crowns appeal and restored Arayas conviction for manslaughter:
R v.
    Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581. The Supreme Court sent the case
    back to this court to consider the sentence appeal.

[6]

Thus, we are sentencing Araya seven years after the shooting and nearly
    four years after the trial judge sentenced him. And because the trial judge
    erred in principle, the eight-year sentence he imposed is not entitled to
    deference
[1]
:
    we must impose the sentence we think fit. Araya submits that a fit sentence is
    in the range of four to six years; the Crown submits that, despite the trial
    judges error in principle, an eight-year sentence less pre-sentence custody is
    still a fit sentence.

[7]

In deciding a fit sentence we must address two specific questions raised
    by the parties. First, should we admit the fresh evidence tendered by Araya in
    support of his appeal? Araya submits that it is admissible because it speaks to
    his current character and shows his ongoing efforts to rehabilitate himself.
    The Crown opposes the admission of the fresh evidence: the Crown submits that
    it has been filed too late and that it adds little to the mitigating evidence
    that was before the trial judge.

[8]

Second, should we treat Arayas alleged failure to cooperate with the
    police and to disclose the identities of the other assailants as an aggravating
    consideration on sentence?

[9]

Araya continues to maintain that he was not even at the park and that he
    does not know the names of those who participated in the robbery and shooting.
    But he also submits that though cooperation with the police may be a mitigating
    consideration on sentence, a failure to snitch can never be an aggravating
    consideration. The Crown submits that in sentencing Araya we should treat his
    continuing refusal to cooperate with the police as an aggravating
    consideration.

[10]

For
    the reasons that follow, I would admit the fresh evidence, hold that Arayas
    refusal to snitch is not an aggravating consideration, and sentence Araya to
    six years imprisonment (less the agreed on 15 months for pre-sentence
    custody).

B.

Additional
    Background

(a)

The Robbery and Shooting

[11]

On
    the evening of October 3, 2008, Boris Cikovic and a group of his friends were
    drinking and socializing in and around the tennis courts in Buttonwood Park in
    the west end of Toronto. At around 10:30 p.m., a group of three or four young
    men came into the park. Some of them were wearing bandanas or hoodies or had
    their hats pulled down low to conceal their identities. At least one had a gun.

[12]

This
    group of young men confronted some of Cikovics group, and robbed them at
    gunpoint.  According to several witnesses, the guns were brandished openly at
    the victims. And Cikovics knapsack was taken.

[13]

At
    some point during the robbery Cikovic resisted and used a taser on one of his
    assailants. The assailants then fled, and Cikovic chased them. One of the
    assailants turned around and shot Cikovic, killing him. The shooter has never
    been apprehended.

[14]

Araya
    testified at his trial and led an alibi defence. He claimed he was with his
    girlfriend at another friends house when the shooting took place. The jury
    rejected his alibi and convicted him of manslaughter.

(b)

The trial judges findings about Arayas participation

[15]

Based
    on the evidence and the jurys verdict, the trial judge made the following
    findings about Arayas participation in the shooting:

·

Araya did not shoot Cikovic and did not have a gun in his
    possession that night.

·

He agreed to participate in a robbery and thus was a party to it
    under s. 21(2) of the
Criminal Code.

·

He knew his confederates were armed with a gun or guns and
    knew that a gun was loaded.

·

Araya knew, or ought to have known, that it was likely or
    probable that the shooter would put any of the people in the tennis court at
    risk of some harm or injury that was more than brief or minor in nature.

·

Contrary to the Crowns contention on appeal that the robbery was
    premeditated, it had not been planned for a long time. The assailants did not
    originally intend to come into the tennis court, but entered following their
    verbal confrontation with the victim and his friends.

(c)

Arayas upbringing to the time of trial

[16]

Araya
    was born in Saudi Arabia but soon left for Canada with his mother and older
    brother to escape the Gulf War. In 1991, they arrived in Toronto as refugees.
    Arayas father came to Canada briefly, but returned to Saudi Arabia. He
    provided little support for his wife and children and died in 2003.

[17]

Arayas
    mother struggled to make ends meet while putting herself through school. She
    was a strict disciplinarian, and her views and values often clashed with those
    of her two sons. When Araya was 13, Childrens Aid took him from his mothers
    care and placed him in a series of foster homes. When he was 16, he returned to
    live with his mother. Although his relationship with his mother improved, at
    times she temporarily ejected him from her home. In October 2008, when the
    shooting took place, Araya was in one of these homeless periods.

[18]

Araya
    was released on bail pending his trial. During that time he finished high
    school and was admitted to Humber College where he took classes online. By the
    time of trial, he was one year away from finishing his degree in general arts
    and science.

C.

Discussion

[19]

A
    fit sentence for Araya must be proportionate to the gravity of his offence and to
    his moral blameworthiness. And it must be assessed in the context of the
    purposes and principles of sentencing in s. 718 of the
Criminal Code
. I
    agree with the trial judge that in this case the objectives of paramount
    concern are general deterrence and denunciation. However, because Araya is a
    youthful offender, rehabilitation should also be given significant weight.

[20]

I
    turn now, as the trial judge did, to consider the aggravating and mitigating
    considerations in this case. In discussing the aggravating considerations, I
    will deal with the trial judges error in principle and the relevance of
    Arayas failure to snitch. In discussing the mitigating considerations, I
    will address why I would admit the fresh evidence and its impact.

[21]

The
    starting point for Arayas sentence is four years imprisonment. The ultimate
    question is to what additional time in prison, if any, should Araya be
    sentenced?

(a)

The aggravating considerations found by the trial judge

[22]

The
    trial judge found three significant aggravating considerations.

·

The killing took place during the commission of a robbery.

·

The effect of the killing on the victims friends was
    traumatic, and the killing caused devastation for the victims family.
    Boris Cikovic was an only child. His parents must now live the best they can
    with the nightmare of losing an innocent son to a senseless gun killing. In
    the words of Boris mother:

My life, my joy, my energy, my future, my dreams, hopes and
    worries were buried with Boris I would give everything in this world to be
    able to bring him back and get my son back.

Im doing what I have to, struggling every day and night, with
    my own self and all kinds of nightmares. I have counselling on a weekly basis,
    medications on a daily basis, that help me make it through the day Life goes
    on, the world still exists, but I no longer participate in it. I never stop
    grieving for my son, what he was and what he could have been  Three years have
    passed since he was taken from me. Time helps me with just one thing, with the
    painful realization that I miss Boris more and more with every breath I take.

·

The offence involved the use of a firearm, even though Araya was
    neither the shooter nor armed.

[23]

I
    obviously accept the trial judges findings on the first two aggravating
    considerations. The third requires some discussion.

(b)

The use of a firearm as an aggravating consideration

[24]

This
    court held that the use of a firearm by itself cannot be an aggravating
    consideration in sentencing Araya because s. 236(a) of the
Code
already takes into account that a firearm was used in the commission of the manslaughter.
    In her majority reasons, Gillese J.A. put it this way, at paras. 52-55:

In light of my conclusion on the conviction appeal, strictly
    speaking I need not address the sentence appeal.  Nonetheless, there is
    utility in addressing the appellants submission that the sentencing judge
    erred in principle in treating use of a firearm as an aggravating factor when
    sentencing the appellant for manslaughter.

In my view, the appellant is correct in this submission.

The mandatory minimum sentence for manslaughter, where a
    firearm is used in the commission of the offence, is four years imprisonment:
    s. 236(a) of the
Criminal Code
.  Section 236 reads as follows:

Manslaughter
Every person who commits manslaughter
    is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the
    offence, to imprisonment for life and to a minimum punishment of imprisonment
    for a term of four years; and

(b) in any other case, to imprisonment for life.

In my view, on a plain reading of s. 236, the mandatory minimum
    punishment of four years imprisonment for manslaughter is predicated on a
    firearm having been used in the commission of the offence.  Given that the
    mandatory minimum sentence necessarily takes into consideration that the death
    resulted from an offence committed with the use of a firearm, it is an error in
    principle to also treat use of a firearm
simpliciter
as an aggravating
    factor.  This error appears particularly significant in this case where
    the appellant was not the shooter, his participation in the manslaughter was
    limited and unknown, and he was not in possession of a firearm.

[25]

Strathy
    C.J.O. agreed. He wrote, at para. 284:

As my colleagues would allow the conviction appeal, I do not
    propose to address the sentence appeal, except to say that I respectfully agree
    with my colleague that the trial judge should not have treated the use of a
    firearm as an aggravating factor, because the potency of that factor was spent
    in the four year mandatory minimum sentence applicable to the offence.

[26]

Although
    the use of a firearm itself cannot be an aggravating consideration on a
    sentence for manslaughter under s. 236(a) of the
Code
, the
    circumstances surrounding its use can aggravate the sentence. Here, two
    circumstances are aggravating: (1) the firearm was used during a robbery and
    (2) the firearm was used in a city park, thus undermining the communitys sense
    of safety and freedom in public places. The sentence we impose should reflect
    these two circumstances
[2]
.

(c)

Is a failure to snitch an aggravating consideration
?

[27]

The
    police asked for Arayas help in their investigation and specifically asked him
    to identify the assailants. Araya claimed he did not know who they were because
    he was not at the park when the shooting occurred. Of course, the jury found
    otherwise.

[28]

So
    the Crown argues that Araya knows who shot Cikovic and that his failure to
    disclose the killers and other assailants identities to the police should be
    an aggravating consideration on sentence. Araya argues that a failure to
    snitch cannot aggravate his sentence. This court addressed this very issue
    nearly 40 years ago in
R. v. Rosen
, [1976] O.J. No. 374. Dubin J.A.
    said succinctly, at para. 1:

It is a well-established principle of sentencing that the
    co-operation of an accused upon his arrest in the continuing investigation of
    the crime for which he has been arrested is a factor which may be taken into
    consideration in mitigation of the sentence to be imposed. It does not follow,
    however, that the failure of the accused to so co-operate is an aggravating
    factor to be taken into consideration in imposing a sentence greater than the
    sentencing tribunal would otherwise deem appropriate for the offence.

[29]

An
    accuseds failure to cooperate with the police is not, therefore, an
    aggravating consideration on sentence. There are at least two reasons why that
    is a sound principle. First, to say otherwise risks the prospect of false
    accusations. Second, it would likely put many accused who are being sent to the
    penitentiary in a difficult situation: either they snitch and risk danger
    while in custody, or they do not snitch and risk their sentence being increased
    for not doing so.

[30]

In
    the present case, Araya claims he is being asked to do something he cannot do.
    Even if that is not so, we cannot, because of his unwillingness to cooperate
    with the police, disregard all his efforts to rehabilitate himself. I now turn
    to those efforts and to the considerations that should mitigate his sentence.

(d)

The mitigating considerations found by the trial judge

[31]

Because
    he maintains his innocence, Araya cannot rely on remorse or an acknowledgement
    of harm to the victim to reduce his sentence. Nor, as I have said, can he rely
    on cooperation with the police. Still, the mitigating considerations found by
    the trial judge and enhanced by the fresh evidence lend powerful support to
    Arayas submission that an appropriate sentence is in the range of four to six
    years.

[32]

The
    trial judge found eight mitigating considerations.

·

Araya was youthful, only 18 when he committed this offence.

·

He had no previous youth or criminal record.

·

At the time of the offence, he was going to high school and
    working part-time.

·

While on bail, he continued his education and was one year short
    of graduating from college.

·

He had strong support within the community. Letters written by
    members of his family, teachers, professors, and friends showed that Araya
    successfully continued his education, had no further trouble with the law, and was
    a person of good character. Indeed his one criminal act, though serious and
    tragic, was out of character.

·

Araya served about seven and a half months of pre-trial custody,
    for which he was entitled to credit on a two for one basis, thus amounting to
    15 months.

·

Arayas culpability was less than that of the shooter. Although
    Araya participated in a robbery knowing one or more of his confederates was
    armed with a gun, the robbery had not been planned for long and Araya was
    neither the shooter nor had a gun.

·

The pre-sentence report on Araya was favourable. The report noted
    his difficult family dynamics and the positive steps he had taken within the
    community and to further his education.

(e)

Is the fresh evidence admissible
?

(i)

The fresh evidence

[33]

The fresh evidence consists of six sworn affidavits,
    including one by Araya on which he was examined, and four supporting letters.
    Several of the affiants gave evidence before the trial judge. The fresh
    evidence, however, speaks to Arayas character and conduct after his original
    sentencing hearing and even since his appeal was considered by this panel two
    years ago. As Mr. Lockyer said in his sentencing submissions, the fresh
    evidence is akin to an updated pre-sentence report.

[34]

I group the fresh evidence into four categories: Arayas
    changed character since his arrest and conviction; his academic and
    professional achievements; the opinions of his teachers; and his conduct while
    in custody.

·

Arayas changed character
.
All the fresh evidence shows that
    Araya has become a mature and responsible young adult. His mother may have
    described him best: In the last seven years, I have seen him transform from a
    rebellious teenager into a mature, responsible, kind, and caring young man.

·

Arayas academic and professional achievements
. Araya
    graduated from Humber College in 2012 and transferred his credits to York
    University. In the 2014-15 academic year, he achieved an A average and
    participated in several campus clubs. He also started a computer programming
    business and spent three months working part-time for a friend in the
    technology sector.

·

The opinions of his teachers
. Three of the teaching
    assistants who led Arayas seminar classes wrote letters of support. Each wrote
    positively about Araya. For example, his teacher in the Canadian Politics
    course wrote: Nahoor has been an excellent student and has demonstrated an
    engaged and active curiosity in the class material I think the combination of
    Nahoors active curiosity, work ethic, and overall drive will serve him well
    not only over his university career but also as he moves forward.

·

Arayas conduct while in custody
. Araya surrendered into
    custody on March 13, 2015, when the Supreme Court of Canada released its
    decision. He has been in custody ever since, initially at Joyceville and then
    at Beaver Creek. While at Joyceville he obtained a job as an office cleaner,
    considered within the institution to be a position of trust. At Beaver Creek he
    has applied for a paid position as a tutor of other inmates in computer courses.

(ii)

The test

[35]

The
    admission of fresh evidence on a sentence appeal is governed by the four
Palmer
criteria of due diligence, relevance, credibility, and impact on the result:
R.
    v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29. In determining
    whether to admit fresh evidence on an appeal against sentence, an appellate
    court must apply these criteria in the context of two competing interests: the
    desire to have current information about the offender and the importance of
    finality. In
Sipos
, Cromwell J. discussed these competing interests, at
    para. 30:

Fresh evidence addressing events that have occurred between the
    time of sentencing and the time of the appeal may raise difficult issues which
    bring competing values into sharp relief. On one hand, we must recognize, as
    Doherty J.A. put it in
R. v. Hamilton
(2004), 72 O.R. (3d) 1, at para.
    166, that [a]ppeals take time. Lives go on. Things change. These human
    realities cannot be ignored when the Court of Appeal is called upon to impose
    sentences well after the event. However, we must equally pay attention to the
    institutional limitations of appellate courts and the important value of
    finality.

[36]

And
    Cromwell J. recognized the undesirability of a fixed rule for when fresh evidence
    should be admitted on a sentence appeal, at para. 31:

Given the almost infinite variety of circumstances that may
    arise, it is neither desirable nor possible to formulate any hard and fast,
    detailed rules about the sorts of after-the-fact evidence that should or should
    not be considered in all cases. The abundant appellate jurisprudence cannot be
    reduced to a tidy set of rules, but rather reflects the courts attempts to
    balance these at times competing values in light of particular and widely varying
    sets of circumstances. [Citations omitted].

(iii)

Application of the test

[37]

Here
    the fresh evidence is relevant and credible. But the Crown submits that we
    should not admit it for two reasons. First, it does not meet the due diligence
    requirement of the
Palmer
test because it could have been filed on Arayas
    2013 appeal before this panel. And second, it could have no effect on the
    result because it adds little to the extensive evidence of mitigation before
    the trial judge.

[38]

I
    do not accept the Crowns submission. I suppose some of the fresh evidence
    could have been put before the panel when we heard this appeal in July 2013.
    But that was over two years ago, and without the fresh evidence we would be
    left with an incomplete picture of Arayas character today. And, in my opinion,
    this fresh evidence can reasonably be expected to have affected the sentence
    imposed on Araya. I would thus admit it.

[39]

Two
    important considerations in my decision to admit the fresh evidence are the
    nature of our task and the passage of time. This is not the usual sentence
    appeal where we must give deference to the sentence imposed by the trial judge.
    Instead, we must determine a fit sentence for Araya. And we must do so nearly
    four years after he was sentenced by the trial judge and over two years after
    this panel heard his appeal. Because of these two considerations, the interest
    in finality has less weight than the desirability of having current information
    about the offender. Doherty J.A.s comments in
Hamilton
, at para. 166
     and quoted by Cromwell J. in
Sipos
,
    at para. 30
 are especially apt here: Appeals take time. Lives go
    on. Things change. These human realities cannot be ignored when the Court of
    Appeal is called upon to impose sentences well after the event.

[40]

We
    can now only impose a fit sentence if we have, in addition to the evidence at his
    original sentencing hearing, a complete record of Arayas activities since that
    time and of his character today. For these reasons, I would admit the fresh
    evidence.

(f)

A fit sentence

[41]

The
    circumstances surrounding the use of the firearm in this case call for a
    sentence above the mandatory minimum of four years imprisonment. But the
    mitigating evidence  despite the absence of remorse and of cooperation with
    the police  is strong.

[42]

After
    his arrest and conviction, Araya could have gone down one of two paths: a path
    in which he continued to clash with the law or a path in which he tried to
    rehabilitate himself. He chose the second path. And the evidence, especially
    the fresh evidence, shows that he has excelled in his rehabilitation.

[43]

I
    would impose a sentence of six years imprisonment less the agreed on
    pre-sentence custody of 15 months. Six years strikes an appropriate balance
    between the aggravating and mitigating considerations applicable to Araya and
    his offence.

D.

Conclusion

[44]

I
    would grant leave to appeal sentence, allow the sentence appeal, and reduce
    Arayas sentence from eight years imprisonment to six years imprisonment
    (less 15 months credit for pre-sentence custody).

Released: December 7, 2015 (G.S.)

John Laskin J.A.

I agree. G.R. Strathy C.J.O.

I agree. E.E. Gillese J.A.

[1]

R. v. Rezaie
(1996), 31 O.R. (30) 713 (Ont. C.A.) at 719; and
R. v. Hamilton
(2004),
    72 O.R. (3d) 1 (Ont. C.A.) at para.
164.

[2]
Whether the type of firearm  in this case, a handgun  can be an aggravating
    consideration was not argued before us at either hearing of the sentencing
    appeal. This issue should be decided in a case where it is raised by the
    parties.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benson, 2015 ONCA 827

DATE: 20151202

DOCKET: C58262

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Orton Benson

Appellant

John Collins, for the appellant

John Pearson, for the respondent

Heard: May 5, 2015

On appeal from the conviction entered by Justice A.J.
    Stong of the Superior Court of Justice, sitting without a jury, on April 5,
    2013, and from the sentence imposed on January 28, 2014.

Tulloch J.A.:

A.

introduction

[1]

The appellant, John Benson, was convicted of four arson related charges.
    The charges arose out of a fire set to a truck located on his neighbours
    property on April 13, 2010. The neighbour, Brian Timmons, suffered minor burns
    and damage to his property.

[2]

The crucial evidence at trial was a video of a man approaching the truck
    with something in his right hand, reaching into the drivers side of the
    vehicle, igniting a fire, and quickly moving back in the direction he came
    from. Timmons recognized the appellant as the arsonist and testified to this at
    trial.

[3]

The appellant appeals his conviction, and raises three grounds of
    appeal. First, he contends that the trial judge did not consider the effect of
    the evidence of the Crowns expert forensic video analyst on the quality, as
    opposed to the admissibility, of the lay opinion recognition evidence.

[4]

Second, he submits that the trial judge failed or refused to engage in
    any analysis whatsoever concerning Timmons credibility based on his admitted
    animus towards the appellant, his history of criminal misconduct, and the fact
    that he lied about this misconduct to the trial judge.

[5]

Finally, the appellant submits that the trial judge drew an unwarranted
    negative inference against the credibility of the appellant in his assessment
    of the appellants videotaped statement to the police.

[6]

Although the appellants factum suggests that he sought leave to appeal
    sentence, he made no submissions, either oral or written, on the sentence
    appeal.

[7]

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

B.

FACTS

[8]

The sole issue at trial was the identity of the person who set fire to
    the truck. The appellant did not testify.

[9]

At the time of the fire, the appellant and Timmons had known each other
    for at least six years. Timmons purchased his property from the appellant. At
    one point, Timmons and the appellant had a friendly, neighbourly relationship,
    in which the appellant would attend Timmons property regularly. Their relationship
    deteriorated and became acrimonious to the extent that the appellant made
    regular complaints to the Ministry of Natural Resources about the business
    activities, including sandblasting, that Timmons engaged in on his property.

[10]

On
    the day of the fire, Timmons had been working on fixing the drivers side
    window of a truck lent to him. During the six oclock news, Timmons heard
    percussion sounds and saw a cloud of smoke out his window. He saw the truck
    engulfed in flames. The truck was near a garage that contained chemicals for
    his business. He used a forklift that he had in his yard and backed the truck
    out of its position near his garage. A passerby called the fire department.

[11]

When
    the police arrived at the scene to investigate the fire, Timmons insisted that
    he was responsible for accidentally setting it. He testified that he did not
    want them to conduct an investigation because he did not want the hassle of
    having to deal with the authorities. Timmons did not call the fire department
    or the police when he realized his property was on fire.

[12]

A
    few weeks before the fire, Timmons had installed surveillance video cameras on
    his property. When the police arrived on the property to commence their
    investigation, he did not immediately disclose to them that there was a
    surveillance video.  Timmons later testified that he had actually forgotten
    that he had had the cameras installed.  Once the police became aware of the
    existence of the surveillance cameras, they asked about the cameras, but
    Timmons was reluctant to give them the tapes, believing that he had caused the
    fire and he did not hand the videos over to the police until he was threatened
    with a warrant. The surveillance video captured the image of the person setting
    the fire. Timmons saw the video while with the police and immediately
    identified the appellant.

C.

Discussion

(1)

The Evidence of the Expert Forensic Video Analyst

[13]

At
    trial, the Crown adduced video evidence. The police expert who testified to
    tender the video evidence was not called as an identification witness, but as a
    forensic video analyst. He was not asked to do a lengthy comparative analysis
    report. The expert prepared the video evidence introduced at trial, including
    the surveillance recording of the crime scene showing a person of interest
    reaching inside the victims truck when it erupted in flames.

[14]

The
    appellant argues that Timmons identification of the appellant should be viewed
    in light of the experts testimony about the low quality of the surveillance
    video evidence and the experts inability to identify the characteristics of
    the person captured by the video.

[15]

The
    officers evidence was technical in nature and relevant to whether or not the
    video evidence was in any way compromised or altered. Once it has been
    determined that the video was not altered or changed and that it accurately
    depicts the scene, the video may indeed be a silent, trustworthy, unemotional,
    unbiased and accurate witness who has complete and instant recall of events:
R.
    v. Nikolovski
, [1996] 3 S.C.R. 1197, at para. 28.

[16]

The
    trial judge noted the pixilation of the video and that it could not be further
    enhanced. Whether the video recordings were of sufficient quality to form the
    basis for the identification was a question of fact for the trial judge. This
    courts jurisdiction to review that finding is limited:
R. v. Abdi
,
    2011 ONCA 446, [2011] O.J. No. 2639, at para. 6.

[17]

The
    quality of the recording was relevant to the trial judges consideration of the
    content of the video. It pertained to the question of whether or not it was
    clear enough for the trial judge to review and place any weight on the video or
    on Timmons observations and identification. But there was no need for the
    trial judge to further refer to the testimony of the expert, as his testimony on
    the content of the video was of minimal probative value. Those who are not
    acquainted with the accused are in no better position than the trial judge to
    identify persons in video evidence:
R. v. Leaney
, [1989] 2 S.C.R. 393,
    at para. 33. The experts description of the arsonist and evidence on the
    content of the video would not assist the trial judge on the ultimate
    identification issue.

[18]

It
    is clear from the reasons that the trial judge examined the video. He provided
    a detailed description of what he was able to glean from it despite its
    pixilation. A review of the surveillance video confirms that the trial judges
    assessment of it was reasonable. Of note, the trial judge did not make a
    positive identification from his viewing of the video. He relied on the
    recognition evidence of the complainant and his own supporting observations in
    making his decision on the appellants guilt.

(2)

The Credibility of the Identification Witness and the Reliability of the
    Recognition Evidence

[19]

In
    light of the quality of the surveillance video, the appellant argues there was
    an increased need for an analysis of Timmons credibility, and submits that the
    trial judge failed or refused to engage in any credibility analysis whatsoever.

[20]

I
    disagree. It is clear from a reading of the reasons as a whole that the trial
    judge accepted Timmons testimony, found him to be credible, and found his
    identification of the appellant to be reliable.

[21]

While
    appellate courts retain the power, pursuant to s. 686(1)(a)(i) of the
Criminal
    Code
to reverse trial courts verdicts where the assessment of credibility
    made at trial is not supported by the evidence,  this is done sparingly.
    Appellate courts show great deference to findings of credibility made at trial,
    and will only interfere with findings of credibility in exceptional
    circumstances:
R. v. W. (R.)
, [1992] 2 S.C.R. 122, p. 131;
R. v.
    Burke
, [1996] 1 S.C.R. 474, at paras. 5-7. Trial judges are in a special
    position to assess credibility issues as they have the advantage of seeing and
    hearing the evidence of witnesses.

[22]

The
    appellants main issue is that the trial judge did not consider Timmons
    admitted animus toward the appellant, his history of criminal misconduct, or
    that he lied about his criminal misconduct, in considering his credibility and
    the reliability of his identification.

[23]

All
    of these issues were raised by the defence and acknowledged by the trial judge
    at the beginning of his decision. He noted the history of the relationship
    between the appellant and Timmons and the clear animosity between the two. He
    also engaged in a lengthy discussion about Timmons actions and motivations on
    the evening of the fire. The trial judge concluded: I accept his explanation.
    He had had his hassle with the authorities. He was conducting his business and
    did not want to have more problems. At this point he believed that he was
    responsible for the fire.

[24]

With
    respect to the reliability of the identification and the weight to be assigned
    to it, the trial judge reviewed Timmons testimony and compared it to his own
    observations of the video. The trial judge summarized Timmons testimony as
    follows:

[H]e said he was one hundred percent sure that it was John
    Benson on the video by the way he moved his arms, by the way he walked, by the
    way he limped as he was moving, by his hairstyle, his face, his body shape, his
    thinning hair, his age, his build, the extended body that he saw, meaning his
    enlarged stomach, the clothing that he always wore, meaning his plaid shirt, particularly.
    He referred to the person depicted in the video as Mr. Benson and described Mr.
    Bensons hairstyle as an Einstein hairstyle.

[25]

Recognition
    evidence such as Timmons evidence in this case is a form of identification
    evidence. The caution with respect to the frailties of eyewitness
    identification evidence still applies:
R. v. Olliffe
, 2015 ONCA 242,
    322 C.C.C. (3d) 501, at para. 39. However, as the court in
Olliffe
noted, the level of familiarity between the accused and the witness may enhance
    the reliability of the identification evidence. This applies here. The trial
    judge considered that the two men had known each other for a long period of
    time and had interacted on a regular basis. Their relationship and familiarity
    with one another certainly served to enhance the reliability of the
    identification.

[26]

This
    court in
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d) 137, discussed the
    threshold admissibility for recognition evidence from the examination of a
    photograph or video. The court held, at para. 22, that the ability of a witness
    to point to a unique identifiable feature or idiosyncrasy of the person to be
    identified was a concern better resolved when determining the ultimate
    reliability of the evidence, and not its admissibility.

[27]

Timmons
    clearly noted the unique, distinctive, and recognizable features of the
    appellant in his testimony. These were, in the trial judges opinion, the
    badges of reliability of identification. That he was not able to identify the
    particular features of the appellants face or eye colour was not fatal to his
    identification.

[28]

The
    distinctive features relied upon by the complainant are easily observed upon
    viewing the video. In
Leaney
, the main identification evidence against
    the accused was a video of the break-in and the testimony of five police
    officers. The Supreme Court of Canada held that the evidence of four police
    officers was inadmissible. The identification evidence and testimony of a
    sergeant who had known the accused since childhood and who gave evidence about
    features and idiosyncrasies of the accused that were identifiable on the video
    was admissible.  The trial judge made his own observations of the video made
    and compared the identifiable features of the accused. The conviction was
    upheld despite the inadmissible evidence on the basis of the trial judges own
    observations of the video and his comparison of the tape to the accused.

[29]

Here,
    the identification evidence was supported by the trial judges own
    observations.  As mentioned, the quality of the surveillance video was low and
    the trial judge could not positively identify the appellant based only on his
    viewing of the tape. However, he noted in particular the appellants limp from
    his left side and the predominant use of his right arm, that the contours of the
    face in the video were that of an older male with full cheeks, and that the
    arsonist had disheveled hair that was standing up.  All of this was consistent
    with Timmons testimony.  It was also consistent with the video of the
    appellant at the police station, seemingly wearing the same plaid shirt as the
    arsonist in the surveillance video, and with the same hairstyle and puffy
    cheeks.

[30]

The
    trial judge in the present case considered all the evidence, including the lack
    of physical evidence to corroborate the identification.  It was open to him to
    accept those parts of Timmons evidence that coincided with his own
    observations and which identified the person depicted in the video as the
    appellant.  This was particularly so in the absence of any evidence to the contrary
    from the appellant.

(3)

The Credibility of the Appellant

[31]

The
    trial judge reviewed the videotaped statement made by the appellant to the
    police on the day after the fire. He found the appellant to be polite,
    unrehearsed, and consistent in his denial.  However, the trial judge also noted
    an inconsistency with respect to whether the appellant had gone over to the
    complainants property after the fire began and before the fire department
    arrived.  The trial judge found that he changed his story to include that he
    ran up there out of concern for his dogs.  This comment was made after the
    appellant was questioned by police and confronted with the possibility that
    there were surveillance cameras on Timmons property.

[32]

The
    trial judge was entitled to consider the inconsistency in the appellants
    statement and the comment about him running, despite his mobility and health
    issues.  I agree with the Crown that the trial judge did not violate the
    principle in
R. v. W. (D.)
, [1991] 1 S.C.R. 742, in his analysis of the
    evidence.  The appellant did not testify at his trial, and the trial was not a
    credibility contest between the appellant and the identification witness.  The
    trial judge was satisfied beyond a reasonable doubt that it was the appellant
    who was depicted on the video setting fire to the truck.  The trial judge
    considered the appellants denial to police, but based his conclusion on
    Timmons identification and his own observation of the video in light of
    Timmons testimony on the distinctive features of the appellant. This was
    appropriate in the circumstances.

D.

Disposition

[33]

For
    the reasons above, I would dismiss the conviction appeal.  In the total absence
    of submissions on sentence, I would not grant leave to appeal sentence.

Released: EEG DEC 2 2015

M. Tulloch J.A.

I agree. E.E. Gillese
    J.A.

I agree. P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boateng, 2015 ONCA 857

DATE: 20151208

DOCKET: C57429

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ernest Boateng

Appellant

John Norris and Meara Conway, for the appellant

Brendan Gluckman, for the respondent

Heard:  November 10, 2015

On appeal from the conviction entered on October 2, 2012
    by the Honourable Justice Bruce Durno of the Superior Court of Justice.

Doherty J.A.:

I

overview

[1]

The appellant was arrested at Pearson International Airport on July 24,
    2010 and charged with importing a narcotic into Canada.  The authorities had
    discovered 2.38 kilograms of heroin secreted in the false bottom of the appellants
    suitcase.  On August 17, 2012, the appellant brought an application to stay the
    prosecution, claiming that his right to a trial within a reasonable time under
    s. 11(b) of the
Charter
had been infringed.  The application was
    dismissed.  On October 2, 2012, the appellant was convicted on the basis of an
    agreed statement of facts that effectively conceded the appellants guilt.  On
    February 1, 2013, the appellant was sentenced to 12 years imprisonment, less
    credit for pretrial custody.

[2]

The appellant appeals his conviction, contending that the application
    judge erred in dismissing his s. 11(b) application.

[3]

The argument on appeal, like the argument on the s. 11(b) application,
    focused on the delay caused by the procedural steps necessary to allow the
    appellant to retain counsel of choice.  The appellant argues that the 15½ months
    attributed to those steps by the application judge were caused by the
    unreasonable refusal of Legal Aid Ontario (LAO) to transfer the appellants
    Legal Aid certificate to new counsel and were exacerbated by the courts
    failure to grant the appellants first
Rowbotham
 application.  The
    appellant submits that the resulting delay should be characterized as either
    institutional or Crown delay.  The appellant contends that a proper
    characterization of the 15½ months as institutional or Crown delay makes the
    total delay of some 26 months unreasonable and breaches the appellants
    constitutional right to be tried within a reasonable time.

[4]

At the end of oral argument, the court advised counsel that the appeal
    was dismissed with reasons to follow.  These are those reasons.

II

the timeline

[5]

The appellant was arrested on July 24, 2010.  He quickly obtained a
    Legal Aid certificate and retained counsel.  By mid to late August 2010, his
    relationship with that lawyer had broken down.  The appellant asked Legal Aid
    to transfer the Legal Aid certificate from the first lawyer to Mr. Norris.
    Legal Aid refused, citing a policy applicable to requests to transfer certificates.
    The appellant, with Mr. Norriss assistance, appealed that decision through
    Legal Aids internal appeal processes.  Two appeals were taken.  Both failed.  The
    internal appeals had been exhausted by the end of November 2010.

[6]

Mr. Norris quickly launched a
Rowbotham
 application seeking
    an order staying the prosecution conditionally until the appellant had
    counsel.  Wein J. heard the application on January 28, 2011 and dismissed it on
    February 15, 2011.  In her reasons, Wein J. gave the appellant 30 days to file
    additional material addressing the evidentiary deficiencies she had identified
    in her reasons for rejecting the
Rowbotham
 application.  On March 7,
    2011, the appellant advised the court that he would not submit further material.

[7]

After the unsuccessful
Rowbotham
 application, the appellant
    made several appearances in the Ontario Court of Justice between March 7 and
    August 17, 2011.  The appellant was unrepresented but did have the assistance
    of duty counsel on some appearances.  In his appearances in the Ontario Court
    of Justice, the appellant made it clear that he wanted counsel.  The Crown
    acknowledged that representation by counsel at trial was necessary for the
    appellant to obtain a fair trial.  It is fair to say that attempts to provide
    the appellant with some form of legal assistance precipitated some of the
    adjournments in the Ontario Court of Justice.

[8]

There was also some delay occasioned in the Ontario Court of Justice by
    efforts to provide the appellant with the necessary disclosure.  Mr. Norris had
    been provided with disclosure, but had returned it after he could not be
    retained by the appellant.  Disclosure was made more difficult, both because
    the appellant was self-represented and because he was in custody and unable to
    keep the disclosure with him while in his cell.  The appellant consented to his
    committal for trial on August 17, 2011.  Some disclosure-related issues
    remained outstanding.

[9]

The appellant made his first appearance in the Superior
    Court of Justice on September 2, 2011, about two weeks after his committal for
    trial.  Mr. Norris launched a second
Rowbotham
 application on
    September 16, 2011.  That
application was
    heard by Wein J. on October 24, 2011 and granted on November 9, 2011.  By
    December 2
nd
, the federal Crown had provided the necessary funding
    and the appellant had retained Mr. Norris.  Various disclosure-related
    procedures were undertaken by Mr. Norris and the Crown between December 2
nd
and January 17, 2012.

[10]

The parties were prepared
    to set a date for trial on January 17, 2012.  The court offered a trial date of
    April 10, 2012.  Mr. Norris indicated that he may not be available on the April
    date and suggested May 22, 2012.  That date was fixed for trial and the defence
    acknowledged that it had waived the six weeks between April 10 and May 22.  In
    early May, the defence requested a further adjournment to obtain transcripts
    that inadvertently had not been ordered.  The trial was adjourned to October 1,
    2012.  The s. 11(b) application proceeded on August 17, 2012.

III

the reasons of the application judge

[11]

After reviewing the chronology and setting out the relevant
    legal principles, the application judge focussed on the delays caused by the
    appellants efforts to obtain counsel of choice.  She concluded that the entire
    15½ month period from the arrest in July 2010 to the successful second
Rowbotham
 application in November 2011 was attributable to the
    appellants efforts to obtain counsel (para. 37).  She rejected the submission
    that the delays should be attributed to the Crown or characterized as
    institutional delay.  Instead, she treated the 15½ months as time the appellant
    required to retain counsel and therefore part of the inherent time requirements
    of the case (paras. 37, 40).  Inherent time requirements are neutral in the s.
    11(b) calculation.

[12]

The application judge
    did not address the time period between the retaining of counsel in December
    2011 and the ultimate trial date of October 1, 2012 in any detail.  She did
    observe, however, that once counsel was retained the matter proceeded to trial
    without undue delay (para. 38).

[13]

The application judge
    also considered any prejudice to the appellant flowing from the delay.  She
    held that the delay had caused no prejudice to the appellants fair trial
    rights.  That finding is not challenged in light of the appellants virtual
    admission of the case against him when the matter went to trial.  The
    application judge also held that any prejudice to the appellants liberty and
    security interests while awaiting trial were counterbalanced by the benefit he
    gained by obtaining counsel of choice to represent him.  She held, at para. 40:

While the applicant is not faulted for delays occasioned for
    the purpose of seeking counsel, he should also not be permitted to claim
    prejudice for delays caused for his own benefit as a result of his own
    decisions.

IV

the section 11(b) claim

(i)

Delays in obtaining counsel

[14]

Mr.
    Norriss forceful submissions focus on the delays attributable to the
    appellants efforts to retain counsel of choice.  He accepts that time required
    to retain and instruct counsel is treated as part of the inherent time
    requirements needed to bring a criminal case to trial and is treated as neutral
    for the purposes of s. 11(b):
R. v. Morin
, [1992] 1 S.C.R. 771, at
pp. 792-793
;
R. v. Qureshi
(2004)
, 190 C.C.C. (3d) 453, at para. 33
    (Ont. C.A.).  He also accepts that retaining counsel can be more complicated in
    some cases than in others.  If there are complications, it will take more time
    to retain counsel.  That added time will also be treated as part of the
    inherent time requirements of the case:
R. v. MacDougall
, [1998] 3
    S.C.R. 45 at para. 45;
R. v. M.(N.N.)
(2006)
, 209 C.C.C. (3d) 436, at para. 14.  On that approach, Mr.
    Norris submits that the appellants request to transfer his Legal Aid
    certificate to a second lawyer added some small amount of time, at most a few
    weeks, to the inherent time requirements of the case.

[15]

Mr.
    Norris argues, however, that the delay caused in this case had nothing to do
    with the time needed to accommodate the appellants request to transfer the
    Legal Aid certificate.  He maintains that what should have been a
    straightforward, quick process transferring the certificate to the new lawyer became
    a prolonged, multi-step, legal battle because of LAOs arbitrary and
    unreasonable refusal to transfer the certificate.  He argues that LAO had no
    business refusing the appellants reasonable request to transfer the
    certificate and that delays caused by that unreasonable refusal must count
    either against the Crown or as institutional delay for the purposes of the s.
    11(b) analysis.

[16]

This
    argument can succeed only if counsel can persuade the court first, that a
    review of the reasonableness of the conduct of LAO is part of the s. 11(b),
    inquiry, and second, that LAOs conduct was unreasonable.  The second of the
    two inquiries is fact-specific and straightforward in this case.  I will begin
    there.

[17]

There
    is no evidence in this record that would permit an assessment of the
    reasonableness of LAOs refusal to transfer the appellants Legal Aid certificate.
    Mr. Norris argues that the facts speak for themselves.  He contends that there
    can be no possible reasonable justification for LAOs refusal to transfer the
    certificate to a second lawyer within a few weeks of issuing the certificate.

[18]

What
    counsel describes as an irresistible inference, is in reality an assumption
    about explanations offered to LAO for the requested transfer and LAOs
    explanation for refusing the transfer.  The appellant alleged that LAO acted
    unreasonably.  He had the onus of demonstrating unreasonableness.  For whatever
    reason, the appellant chose not to lead evidence on this issue.  For example,
    apart from indicating that LAO had a policy concerning the transfer of Legal
    Aid certificates, the evidentiary record says nothing about the substance of the
    policy.  Even if, as counsel suggests, leading evidence may have compromised
    the appellants solicitor/client privilege with his first lawyer, the absence
    of evidence cannot justify assumptions about what the evidence might have shown.

[19]

The
    application judge may have gone too far in inferring, in the absence of
    evidence to the contrary, that LAOs conduct was based on sound and
    justifiable considerations (para. 34).  However, she did not err in declining
    to assume in the absence of evidence that LAOs conduct was unreasonable.

[20]

I
    am satisfied that even if the application judge was required to examine the
    reasonableness of LAOs conduct as part of her s. 11(b) analysis, the appellant
    failed to demonstrate that LAO acted unreasonably.  I could stop here.  I will,
    however, address the broader question of whether the reasonableness of LAOs
    decision is reviewable on a s. 11(b) application.

[21]

Section
    11(b) protects the rights of an accused to liberty, security of the person and
    a fair trial by requiring that the accused be brought to trial within a
    reasonable time.  The analysis required by s. 11(b) looks to the overall delay
    between the charge and the trial.  It considers the reasons for various parts
    of the delay, characterizes the delay as defence delay, Crown delay,
    institutional/systemic delay, or neutral/inherent delay. Finally, the analysis considers
    the prejudice caused to the accused by the delay.  Ultimately, the court will
    decide whether having regard to the total delay, the attributions of the
    various periods of delay, the prejudice to the accused, and the societal
    interest in a trial on the merits the overall delay was unreasonable.  The
    inquiry is clearly fact-specific and focuses on the timeline of each individual
    case and the explanations for the delays revealed in the timeline:  see
R.
    v. Morin
, at pp. 787-788;
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 18;
R. v. Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d)
    270, at para. 5;
R. v. Lahiry
, 2011 ONSC 6780, 283 C.C.C. (3d) 525 at
    paras. 3-9.

[22]

Applying the s. 11(b) analysis to this case, the appellants
    attempts to retain counsel of choice stalled the progress of the prosecution
    from his arrest in late July 2010 through to early March 2011 when the
    appellant declined to file further material on the first
Rowbotham

    application.  Further efforts to retain counsel, again stalled the proceedings between
    early September 2011 when the second
Rowbotham
 application was made and
    December 2011 when that application was granted and Mr. Norris was retained
.  On my calculation, about 10½ months elapsed while
    the appellant made efforts to retain counsel, initially by way of his
    application for Legal Aid, followed by his attempt to transfer his certificate
    to Mr. Norris, followed by two internal appeals, and finally by two
Rowbotham
 applications.
[1]

[23]

As indicated above, the
    appellant accepts that time needed to retain counsel is part of the inherent
    time requirements of the case.  He also accepts that the task of retaining
    counsel can be more complex in some cases than in others and that added
    complexity will add to the inherent time required to retain counsel.  Counsels
    submission must come down to this.  If LAO makes a decision that adds
    complexity and hence delay to the process through which the appellant eventually
    retains counsel, the time needed to go through the process will be treated as
    part of the inherent time requirements of the case unless the court is
    satisfied that LAOs decision was unreasonable in which case the same delay
    will become institutional delay.

[24]

On this approach, the
    ultimate characterization of the delay will depend in part on the application
    judges assessment of the merits of decisions taken by LAO and presumably the
    merits of the policies that drive those decisions.  This approach refocuses the
    s. 11(b) inquiry from the timeline of the case and the delays revealed by that
    timeline, to a consideration of the reasonableness of LAOs response to the
    appellants efforts to obtain counsel of choice.

[25]

The approach urged by the appellant is inconsistent
    with this courts decision in
R. v. Peterman
, 70 O.R. (3d)
    481 (C.A.).  In
Peterman
, an application judge had made a
Fisher

    order directing that the appellant be represented by a named counsel and junior
    counsel and ordering that counsels fees and various specified expenses be paid
    by LAO or the Ministry of the Attorney General.  The application judge stayed
    the criminal proceedings pending compliance with her order.

[26]

In
    holding that the application judge had erred in making the order, Rosenberg
    J.A. said, at para. 25:

In considering these issues, the application judge was again,
    not entitled to review the reasonableness of the decisions made by Legal Aid.
    Her focus had to be on whether the respondents right to a fair trial was imperilled
    because of the conditions under which he was being defended.

[27]

As
    my late colleague so often did, he captures a key point in very few words.  The
    application judge in
Peterman
was charged with determining whether the
    accused could get a fair trial without a lawyer.  The reasonableness of LAOs
    decisions in respect of his representation was irrelevant to that question.
    Whether LAO had reasonably or unreasonably imposed the restrictions it did, the
    question remained  could the accused get a fair trial without a lawyer?

[28]

Whether
    reasonable or unreasonable, LAOs decisions do not alter the explanation for
    the relevant part of the delay or the length of the delay.  The appellant
    wanted to retain Mr. Norris.  As it turned out, in order to retain Mr. Norris the
    appellant had to take several procedural steps, beginning with a request to
    transfer the LAO certificate, followed by two appeals from the refusal to
    transfer the certificate, followed by two
Rowbotham
 applications.  Regardless
    of the reasonableness of LAOs decisions, the same delay occasioned by these
    procedural steps would have occurred and was necessary so that the appellant
    could obtain his counsel of choice.

[29]

The
    appellants argument really goes beyond a claim that LAO acted unreasonably.
    He seeks to have an application judge, hearing a s. 11(b) application sit in
de
    facto
appeal from the decisions made by LAO.  The appellant would have the
    court pass upon the correctness of LAOs decisions, consider the time that
    would have been required for the appellant to retain counsel had LAO made the
    correct decision, and treat the rest of the time actually required to retain
    counsel as institutional delay.

[30]

LAO
    operates under a statutory mandate.  It must make a variety of decisions in respect
    of applications to publicly fund counsel for accused.  Those decisions, including
    decisions about transferring certificates, will involve a variety of
    considerations, including fiscal ones.  The Legislature decides when, by whom,
    and on what grounds LAOs decisions can be reviewed.  A criminal court sitting
    on a s. 11(b) application has neither the statutory authority, nor the
    institutional capability to properly assess the correctness of LAOs decisions
    or the policies reflected in those decisions.

[31]

In
    holding that the reasonableness, much less the correctness, of LAOs decisions
    are not relevant on a s. 11(b) application, I do not mean to suggest that delays
    by LAO in considering and determining issues in relation to Legal Aid
    applications will never impact on the s. 11(b) analysis.  If, based on the
    evidence in a specific case, an application judge determines that LAO has not
    acted in a timely fashion in rendering or implementing decisions pertaining to counsel,
    the delays caused by LAOs failure to act in a timely fashion would not fall
    into inherent time requirements of the case.  Assuming the necessary evidence was
    before the application judge, she could characterize delay beyond that
    reasonably required for LAO to make the relevant decisions as delay
    attributable to other reasons.  As explained in
Morin
, at p. 800,
    those delays can ultimately count against the Crown:

An investigation of unreasonable delay must take into account
all
reasons for the delay in an attempt to delineate what is truly
    reasonable for the case before the court.  One such factor which does not fit
    particularly well into any other category of delay is that of actions by trial
    judges.  An extreme example is provided by Rahey, [citation omitted].  In that
    case it was the trial court judge who caused a substantial amount of the delay
     Such delay is not institutional in the strict sense.  Nevertheless such delay
    cannot be relied on by the Crown to justify the period under consideration
    [emphasis in original].

[32]

The
    Crown bears the responsibility of bringing an accused to trial within a
    reasonable time:
R. v. Godin
, at para. 11;
R. v. Morin
, at pp.
    801-802.  As the prosecutor, the Crown is best positioned to spot and react to
    potential delay-related problems caused when an institutional participant in
    the criminal justice system, like LAO, drags its feet and places the rights
    protected under s. 11(b) in jeopardy.  If the Crown fails to react to these
    delays, it will bear responsibility for them in the s. 11(b) calculus.  That
    responsibility exists regardless of whether LAO is classified as part of the government
    or the prosecution:  see
R. v. Neil
, 2001 ABQB 474, at paras. 50-60;
R.
    v. Chang
, [2005] O.J. No. 4381 (S.C.); see also
R. v. Dow
, 2012
    MBQB 122, at paras. 35-47.
[2]

[33]

There is no suggestion here that LAO did not make the
    decisions it had to make in a timely fashion.  The trial judge correctly held
    that the time spent requesting the transfer of the certificate, challenging the
    refusal to transfer the certificate, and the
Rowbotham
 applications were properly attributable to the
    appellants efforts to obtain counsel and therefore a part of the inherent time
    requirements of the case.

[34]

In oral argument, Mr.
    Norris focussed on the reasonableness of the decisions of LAO.  In his factum,
    however, he made a similar argument aimed at the reasons of the application
    judge on the first
Rowbotham
 application. He contended that the application judge fell into
    several errors, including using the appellants refusal to waive client/solicitor
    privilege as a basis for dismissing the application.  He argued that on a
    proper application of the
Rowbotham
 principles, the application judge should have
    appointed counsel on the first application, thereby avoiding the delay between
    March 2011 and December 2011.

[35]

For the same reason that
    a s. 11(b) application is not the place to review the merits of decisions of
    LAO, it is also not the forum in which to conduct a collateral attack on a decision
    made on a
Rowbotham

    application.  The correctness of the decision on the first
Rowbotham
 application was irrelevant to the outcome of the s.
    11(b) application.

[36]

The
Rowbotham
 applications were decided in a timely fashion.  The
    application judges willingness on the first
Rowbotham
 application to receive additional material directed
    at the deficiencies she had highlighted in her reasons indicates that she was
    sensitive to the delays being caused by the appellants efforts to retain
    counsel of choice.  The appellant, as he was entitled to do, declined the
    application judges invitation to provide her with further material.

(ii)

The other time periods

[37]

I turn to the time
    periods other than the time attributable to the appellants efforts to obtain
    counsel.  Little was said in argument about these time periods and little need
    be said here.  There are two time periods:

·

March 2011  August 2011;
    and

·

December 2011  October 2012.

[38]

Between
    March 2011 and August 2011, the case was in the Ontario Court of Justice.  The
    appellant was unrepresented.  Efforts were being made to provide legal
    assistance to the appellant while at the same time providing him with the
    disclosure that had previously been provided to counsel when it was anticipated
    that counsel would be acting for the appellant.  The record does not warrant,
    nor do the circumstances require, an appearance-by-appearance assignment of
    responsibility for the various segments of the March to August time period.  To
    some extent the case spun its wheels while efforts were made to sort out the problems
    associated with the appellant obtaining counsel.  Putting this part of the cases
    chronology in the best light for the appellant, two of the five months could be
    described as institutional delay.  The rest is inherent delay and therefore
    neutral.

[39]

An
    examination of the time period between November 2011 and October 1, 2012 begins
    with the deduction of the 1½ month period between early April and mid-May
    2012.  That time period was waived by the defence when it requested the May
    trial date.  Of the remaining 9½ months, about five months can be characterized
    as an intake period (December 2011  April 2012).  Two months of that period
    involved disclosure procedures.  The other three months represents the time
    between the date when the parties were prepared to set a trial date and the
    date offered for trial.  The additional four-month delay was occasioned by the
    defence request for a further adjournment from late May 2012 to October 1
st
.
    The trial judge, charitably, characterized this delay as neutral and also part
    of the inherent time requirements of the case (para. 38).  She could well have
    attributed that delay to the late defence request for an adjournment.

[40]

I
    doubt that any of the 9½ months that the case was in the Superior Court could properly
    be viewed as institutional delay.  Even if a month or two between December 2011
    and April 2012 could be so characterized, the delay falls well within the guidelines
    offered in
Morin
.

(iii)

Prejudice

[41]

There
    is no claim that the appellants right to make full answer and defence or otherwise
    have a fair trial was prejudiced by any delay.  He was, however, denied bail
    and was in custody for the two years between his arrest and his trial date.  Any
    delay in bringing the appellant to trial would inevitably significantly impact
    on his right to liberty.  That negative impact is, however, mitigated by the explanation
    for the delay.  All but perhaps two or three months is attributed to the inherent
    time requirements of the case.  Prejudice to a liberty interest accruing during
    a time period that is part of the inherent time requirements of the case cannot
    justify a finding of a breach of s. 11(b) and the automatic stay of proceedings
    that follows.  Were it otherwise, time said to be part of the inherent time requirements
    of the case can hardly be described as neutral for the purposes of s. 11(b).

[42]

The
    prejudice to the appellants liberty interest factors into the overall s. 11(b)
    mix.  Considered along with the other relevant factors, it does not justify a
    finding that any delay in bringing the appellant to trial fell below
    constitutionally accepted requirements and infringed s. 11(b) of the
Charter
.

V

conclusion

[43]

The
    application judge properly dismissed the s. 11(b) application.  As indicated at
    the end of oral argument, the appeal is dismissed.

Released: DD  DEC 08 2015

Doherty J.A.

I agree John I.
    Laskin J.A.

I agree M. Tulloch
    J.A.

[1]
Unlike the application judge, I would not ascribe the five months between March
    2011 and August 2011 to the appellants efforts to retain counsel.  In my view,
    that time period relates to the steps needed to eventually move the matter
    through the Ontario Court of Justice to committal.  My different attribution of
    that five-month time period has no impact on the result:  see
infra
,
    para. 37.

[2]
My analysis would also support the conclusion that defence foot dragging
    during the Legal Aid process would count against the defence.  Practically
    speaking, on a s. 11(b) application it may make little, if any, difference
    whether delay is treated as neutral or attributed to the defence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budhoo, 2015 ONCA 912

DATE: 20151223

DOCKET: C56507

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Budhoo

Appellant

Michael W. Lacy and Brad Greenshields, for the appellant

Michael Bernstein, for the respondent

Heard: October 19, 2015

On appeal from the conviction entered by Justice Faye E.
    McWatt of the Superior Court of Justice, sitting with a jury, on November 29,
    2012.

Benotto J.A.:

Overview

[1]

The appellant was sitting in a pizza restaurant when another patron
    allegedly insulted his companion. The appellant got up and punched the
    offending patron.

[2]

A brawl broke out between two groups of men  the appellant and his
    companion on one side, and the man the appellant punched and his friends on the
    other. The fight lasted less than 60 seconds and was captured on video
    surveillance.

[3]

During the course of the brawl, the appellant brandished a knife.
    Shortly thereafter, the man who was initially punched by the appellant was
    stabbed with the knife.

[4]

The appellant was charged with aggravated assault by wounding,
    possession of a weapon for a purpose dangerous to the public peace (weapons
    dangerous) and assault.

[5]

The appellant testified that he brandished the knife to protect his
    friend and then continued to hold it to protect himself. He said that he never
    intended to stab the man; rather, he claimed it was an accident. The jury was
    not charged on self-defence. The appellant was convicted of all three counts.

[6]

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

FACTS

The fight begins

[7]

In the early morning hours of January 21, 2007, the appellant was
    sitting in a Pizza Pizza restaurant with his friend, Franklin Bishop. The
    appellant was not drunk. Bishop most likely was  he had been drinking
    excessively, was unsteady on his feet and was slurring his words.

[8]

Jeffery Burns was also in the restaurant with a group of his friends.
    There was evidence that Burns friends were being disrespectful to a black
    woman who appeared to have mental health issues. The appellant testified that
    Bishop told Burns friends to leave her alone.

[9]

Shortly thereafter, as Burns was leaving the restaurant, he allegedly
    uttered a racial slur directed at Bishop. In response, the appellant stood up
    and punched Burns twice in the head. Burns then punched the appellant in the
    head, knocking him to the ground.

[10]

Bishop
    stood up to assist the appellant, but was dragged away by Burns. The appellant
    testified that Burns and his friends began punching Bishop.

The Appellant brandishes a
    knife

[11]

The
    appellant testified that as he was getting up from the ground, he reached into
    his coat pocket hoping to find his keys to put in his fist. Instead, he found a
    folding knife that he had used at his office to take apart cardboard boxes. He
    took the knife out, held it up, and told the men assaulting Bishop to stop.

[12]

The
    appellant said that he was concerned for Bishops safety because Bishop was
    drunk and Burns was saying he was going to kill Bishop. The appellant said this
    in his testimony:

[S]o, I take the knife out and hold it in  my hand and I said,
    Leave him alone. I shouted, Leave him alone, at which point  the guy with
    the toque  he lets go of Mr. Bishop.

Im looking over at whats going on. I can clearly see that
    Bishops still getting  pounded.

Burns  hes still shouting, Im gonna kill you, Im gonna
    kill you, and taking shots at  Bishop. The other guy in the pea coat, to me,
    seemed like he was holding onto Bishop as  Burns is taking shots at him.

[13]

The
    guy with the toque was Brett Rowlands, one of Burns friends. After he let go
    of Bishop, he approached the appellant and tried to hold him back from Burns
    and Bishop. Burns was still hitting Bishop. The appellant was still holding the
    knife.

[14]

Rowlands
    confirmed in his testimony that the appellant was holding the knife up and
    telling Burns to stop hitting Bishop.

Burns is stabbed

[15]

The
    appellant moved around Rowlands and managed to get between Bishop and Burns.
    Bishop was then removed from the brawl and was no longer being punched by
    Burns. This left the appellant and Burns face-to-face.

[16]

The
    appellant testified he held the knife in front of him to keep Burns away. He
    then testified that Burns came toward him and was stabbed by the knife:

[A]t that point, Mr. Burns, he came in. He was trying -- it
    looked like he was trying to come -- I dont know what his intent was, but he
    came forward and thats when I believe that the knife  went into his  body.

[17]

The
    appellant said that he held the knife first to defend Bishop and then, when
    Bishop was removed from the brawl, to defend himself.

[18]

The
    appellant said he did not mean to stab Burns  it was an accident. He said that
    he held the knife out only to keep Burns away. He said that Burns either walked
    or lunged into the knife as he approached the appellant to assault him.

THE JURY CHARGE

[19]

The
    trial judge charged the jury on the three counts: (1) assault arising from the
    first two punches; (2) weapons dangerous in relation to the knife; and (3)
    aggravated assault by wounding. I will discuss them in reverse order.

Charge on Aggravated
    Assault

[20]

I
    will address two aspects of the charge on aggravated assault: the rejection of
    self-defence and the two pathways to conviction.

(i)

Rejection of Self-Defence

[21]

At
    the conclusion of evidence, the trial judge asked for submissions on
    self-defence. Both counsel agreed that the only self-defence provision that
    should be put to the jury, if any, was s. 35 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which has since been repealed. This was the provision for
    self-defence in the case of aggression.

[22]

For
    ease of reference, I will set out s. 35:

35. Every one who has without justification
    assaulted another but did not commence the assault with intent to cause death
    or grievous bodily harm, or has without justification provoked an assault on
    himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable
    apprehension of death or grievous bodily harm from the violence of the person
    whom he has assaulted or provoked, and

(ii) in the belief, on
    reasonable grounds, that it is necessary in order to preserve himself from
    death or grievous bodily harm;

(b) he did not, at any time before the necessity of
    preserving himself from death or grievous bodily harm arose, endeavour to cause
    death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated
    from it as far as it was feasible to do so before the necessity of preserving
    himself from death or grievous bodily harm arose.

[23]

The
    Crown submitted that s. 35 should not be left with the jury because there was
    no evidence that the appellant reasonably believed he was at risk. Further,
    even if he did, there was no evidence he declined further conflict and quitted
    or retreated.

[24]

Defence
    counsel submitted that it was not feasible for the appellant to retreat in the
    circumstances, given the timing, the physical location and the positioning of
    those involved in the brawl.

[25]

In
    coming to her conclusion that there was no air of reality to self-defence under
    s. 35, the trial judge relied extensively on the video surveillance. She was
    also of the view that the theories of self-defence and accident were
    incompatible in this case. For this, she relied on
R. v. Teskey
, 2008
    BCCA 288, [2008] B.C.J. No. 1266, where the court commented, at para. 19, that:

Since the appellant did not intend to stab [the victim], it cannot
    be said that his motive or purpose in doing so was to preserve himself from
    harm. It follows that a finding of self-defence was not open and it was not a
    live issue at the trial.

(ii)

Two Pathways to Conviction

[26]

The
    Crown urged the trial judge to include the definition of assault under s.
    265(1)(b) of the
Criminal Code
as a means by which the
actus reus
of aggravated assault could be established. Here, it is helpful to review the
    provisions.

[27]

Aggravated
    assault is found under s. 268 of the
Criminal Code
:

268. (1) Every one commits an
    aggravated assault who wounds, maims, disfigures or endangers the life of the
    complainant.

[28]

Aggravated
    assault is, at is core, an assault. Therefore, it incorporates the definition
    of assault under s. 265 of the
Criminal Code
: see
R. v. Cuerrier
,
    [1998] 2 S.C.R. 371, at para. 10. The relevant portions of s. 265 are:

265. (1) A person commits an assault when

(
a
) without the consent of another
    person, he applies force intentionally to that other person, directly or
    indirectly;

(
b
) he attempts or threatens, by an act
    or a gesture, to apply force to another person, if he has, or causes that other
    person to believe on reasonable grounds that he has, present ability to effect
    his purpose;

[29]

The
    Crown asked the trial judge to put both definitions of assault to the jury
    ss. 265(1)(a) and 265(1)(b). The Crown relied on the evidence of a threat prior
    to the allegedly accidental stabbing and submitted that the facts of this case
    were analogous to other cases in which both pathways were given to the jury:
R.
    v. Nurse
(1993), 83 C.C.C. (3d) 546 (Ont. C.A.), at 556;
R. v. MacKay
,
    2004 NBCA 66, 274 N.B.R. (2d) 302, at para. 30, affd 2005 SCC 79, [2005] 3
    S.C.R. 725, at paras. 1-4.

[30]

The
    trial judge agreed with the Crowns submissions. As such, the jury charge
    provided that the
actus reus
element of the offence of aggravated
    assault could be proven one of two ways.

[31]

First,
    it could be proven if the appellant intentionally applied force. This referred
    to the stabbing. Second, it could be proven if the appellant intentionally
    threatened, by act or gesture, to apply force and had the ability to carry out
    that threat. This referred to the brandishing of the knife.

[32]

With
    respect to these two pathways to conviction, the trial judge explained to the
    jury members that they did not all have to agree on the same pathway  it would
    be sufficient that all jury members agree that one of the two pathways had been
    proven beyond a reasonable doubt.

[33]

If
    the jury members agreed that the appellant either intentionally applied force,
    or intentionally threatened to apply force, the decision tree led them to
    decide whether the applied force wounded Burns. If yes, the decision tree led
    to a guilty verdict on aggravated assault.

Charge on Weapons Dangerous

[34]

The
    trial judge instructed the jury on the three essential elements of weapons
    dangerous.

[35]

She
    then directed the jury to find that the first two essential elements were
    proven beyond a reasonable doubt: that (1) the appellant possessed a weapon;
    and (2) that the appellant knew what he possessed was a weapon.

[36]

The
    only issue left for the jury to decide was whether the appellant had the weapon
    for a purpose dangerous to the public peace.

Charge on Assault

[37]

On
    consent of both counsel, the trial judge directed a verdict of guilty on the
    assault charge. This related to the first two punches thrown by the appellant
    before the brawl began.

THE JURY VERDICT

[38]

The
    jury convicted the appellant of all three counts  aggravated assault, weapons
    dangerous and assault.

ISSUES ON APPEAL

[39]

The
    issues on appeal are:

1. On the
    aggravated assault charge, did the trial judge err in holding there was no air
    of reality to self-defence?

2. On the
    weapons dangerous charge, did the trial judge err in her charge to the jury?

3. On the
    assault charge, did the trial judge err in directing a verdict of guilty?

ANALYSIS

Issue #1: On the aggravated
    assault charge, did the trial judge err in holding there was no air of reality
    to self-defence?

[40]

A
    determination as to whether there is an air of reality to a defence is a question
    of law, subject to appellate review on a correctness standard: see
R. v.
    Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.

[41]

I
    have concluded that the trial judge erred in three ways: (1) by usurping the
    function of the jury in making factual findings; (2) by finding that
    self-defence and accident were incompatible defences; and (3) by not
    considering other sections of the
Criminal Code
relating to
    self-defence.

(i)

Judicial Findings of Fact

[42]

In
Cinous
, the Supreme Court of Canada set out the role of a trial judge
    in determining whether an air of reality exists (at para. 54):

The threshold determination by the trial judge is not aimed at
    deciding the substantive merits of the defence. That question is reserved for
    the jury. The trial judge does not make determinations about the credibility of
    witnesses, weigh the evidence, make findings of fact, or draw determinate
    factual inferences  The question for the trial judge is whether the evidence
    discloses a real issue to be decided by the jury, and not how the jury should
    ultimately decide the issue. [citations omitted.]

[43]

In
    determining whether the evidence discloses a real issue to be decided, the
    Supreme Court explained that (at para. 53):

In applying the air of reality test, a trial judge considers
    the totality of the evidence, and assumes the evidence relied upon by the
    accused to be true. The evidential foundation can be indicated by evidence
    emanating from the examination in chief or cross-examination of the accused, of
    defence witnesses, or of Crown witnesses. It can also rest upon the factual
    circumstances of the case or from any other evidential source on the record.
    [citations omitted.]

[44]

Here,
    the trial judge was entitled to view the surveillance video as part of her
    consideration of the totality of the evidence. However, by using the video to
    make factual findings, while at the same time ignoring reasonable inferences
    that could arise from the appellants testimony, the trial judge usurped the
    function of the jury as the trier of fact.

[45]

Section
    35 of the
Criminal Code
required that the appellant decline further
    conflict and quit or retreat as far as was feasible. This was an issue for the
    jury.

[46]

The
    trial judge concluded, based on her view of the video, that the appellant made
    no attempt to retreat. She said this in her ruling:

There is no evidence in this case that [the appellant] declined
    further conflict and quitted or retreated from it as far as it was feasible to
    do so before the necessity of preserving himself from death or grievous bodily
    harm. He testified he went into the fray out of concern for his friend yet he
    offered no evidence and there is no other evidence that he tried to assist Mr.
    Bishop from being assaulted. Once his friend had been extricated from the
    danger of Mr. Burns assault by others, [the appellant] began to fight with Mr.
    Burns with a knife in his right hand. He made no attempt to retreat. This is
    clear from the videotape evidence; this is evident from his own testimony. The
    defence cannot be given to the jury in the charge. It lacks an air of reality.

[47]

These
    were findings of fact that were within the purview of the jury, particularly in
    light of the appellants testimony that:

·

the events happened very quickly in a short time frame;

·

he was fearful;

·

he was worried about Bishop, who was drunk;

·

he heard Burns repeating that he was going to kill Bishop; and

·

he held up the knife to get Burns and his friends to stop hitting
    Bishop and then to protect himself.

[48]

The
    trial judge did not consider competing factual inferences that could reasonably
    be drawn from the record, including whether retreat was feasible. She rejected
    or ignored the appellants testimony and other evidence favourable to the
    defence, which she was required to accept for the purposes of applying the air
    of reality test.

[49]

In
    doing so, the trial judge usurped the jurys function and erred in law. The
    impugned findings directly impacted the low threshold for the air of reality
    test.

(ii)

Compatibility of Self-Defence and Accident

[50]

By
    determining that self-defence and accident could not co-exist, the trial judge
    misapprehended the defence position. The appellant testified that he held out
    the knife at first to protect Bishop and then kept it out to protect himself.
    The subsequent stabbing was an accident. This sequence of events allowed the
    two defences to co-exist.

[51]

In
R. v. Mulligan
(2006), 80 O.R. (3d) 537 (C.A.), this court held that
    self-defence and accident could co-exist in a similar fact scenario. Although
    this court held that the trial judges error in this regard did not cause
    prejudice, the comments of Rosenberg J.A. are instructive. At para. 15 he
    stated:

It is the appellants submission, with which I agree, that the
    two defences were closely related. The appellants defence was that he shot the
    deceased by accident (
i.e.
, without an intent to kill) while brandishing
    the rifle in self-defence.

[52]

Likewise
    in this case, the defences were closely related and compatible. The appellant
    had a two-pronged defence  he acted in self-defence by brandishing the knife
    and by continuing to hold it out. He then accidentally stabbed Burns.

[53]

The
    trial judges reliance on
Teskey
does not withstand scrutiny. On the
    surface, the facts of this case appear similar to those in
Teskey
. An
    argument began on a bus about a skateboard. It continued off of the bus. The
    accused produced a knife, the complainant was stabbed and the accused was
    convicted of aggravated assault. The accused testified that he took out the
    knife to scare the complainant and did not intend to stab him. The stabbing, he
    said, was an accident.

[54]

The
    trial judge, sitting without a jury, did not believe the accused. Specifically,
    he did not believe that the accused took out the knife for defensive purposes.
    He also found that the accused intentionally stabbed the victim. Those factual
    findings distinguish that case.

[55]

Here,
    the consequences of the judges conclusion as to the incompatibility of
    self-defence and accident were magnified when the trial judge agreed to provide
    the jury with a second pathway to conviction.

[56]

As
    a result of there being two pathways to conviction on the aggravated assault
    charge, the appellant could have been found guilty for intentionally applying
    force or for intentionally threatening to apply force.

[57]

In
    conjunction with the instruction to the jury on the second pathway to
    conviction  the threat by brandishing the knife  the defence of self-defence
    had to be put to the jury. Without self-defence on the threat, the jury members
    were required to convict the appellant under the second pathway, even if they
    believed or had a reasonable doubt about his testimony.

[58]

In
    short, the trial judge did not make it clear to the jury that the defence was
    that the appellant raised and held up the knife in self-defence and then
    stabbed Burns by accident.

[59]

In
    light of these conclusions, I do not need to address the defence position at
    trial that it was not appropriate to add section 265(1)(b) to the
actus
    reus
of the aggravated assault.

(iii)

Additional Self-Defence Provisions

[60]

The
    appellant submits that the trial judge, having rejected s. 35, should have gone
    on to consider s. 37 or perhaps even s. 27 of the
Criminal Code.

[61]

I
    agree.

[62]

A
    trial judge must put to the jury all defences that arise on the facts, whether
    or not specifically raised by an accused: see
Cinous
, at para. 51.
    Here, notwithstanding the submissions of both counsel, the trial judge should
    have considered and ruled on the applicability of the other self-defence
    provisions.

[63]

Section
    37, now repealed, justified the use of the minimum force necessary to defend
    oneself or anyone under ones protection from assault:

37.
(1) Every one
    is justified in using force to defend himself or any one under his protection
    from assault, if he uses no more force than is necessary to prevent the assault
    or the repetition of it.

[64]

The
    appellant repeatedly testified that he initially brandished the knife, and
    threatened Burns, to protect Bishop, who was in a vulnerable state as a result
    of being drunk. This was also corroborated by other witnesses.

[65]

Further,
    s. 37 would have provided a wider defence than s. 35, in that there was no
    requirement to retreat. It also would have addressed the brandishing of the
    knife in the first place and the initial threat against Burns, which is not
    addressed under s. 35.

[66]

There
    may also have been an air of reality to self-defence under s. 27 and it too
    should have been potentially considered. This section allows a party to use no
    more force than is reasonably necessary to prevent the commission of an
    offence.

[67]

The
    trial judge should have considered whether these additional sections met the
    air of reality test, particularly after rejecting the s. 35 defence. In not
    doing so, when there was evidence capable of supporting the defences, the trial
    judge erred in law.

(iii)

The New Self-Defence Provisions

[68]

The
    appellant conceded in oral argument that, in light of this courts decision in
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, the new self-defence
    provisions could not be applied.

[69]

For
    the reasons just articulated, I would allow the appeal on the conviction for
    aggravated assault.

Issue #2: On the weapons dangerous charge, did the
    trial judge err in her charge to the jury?

[70]

I
    have concluded that there should also be a new trial on the weapons dangerous
    charge.

[71]

The
    trial judge erred in two respects: (1) she failed to adequately instruct the
    jury on the appellants purpose for possessing the knife; and (2) she usurped
    the function of the jury by directing the jury to find that the first two
    essential elements of the count were proven beyond a reasonable doubt.

(i)

The Purpose of
    Possession

[72]

The
    appellant was convicted of weapons dangerous in relation to the knife used in
    the stabbing. The use of a dangerous weapon for a dangerous purpose is not
    enough for a finding of guilt. The jury must find that the appellant possessed
    the knife for a purpose dangerous to the public peace.

[73]

That
    purpose must be determined at the instant of time which preceded the use of the
    weapon. The use of a knife in a manner dangerous to the public peace does not
    constitute the offence, although the formation of the unlawful purpose may be
    inferred from the circumstances in which the knife was used: see
R. v.
    Proverbs
(1983), 9 C.C.C. (3d) 249 (Ont. C.A.), at 251.

[74]

In
    this case, the appellant testified that he reached into his coat to grab his
    keys and did not realize that the knife was in his pocket. He then claimed he
    took out the knife in self-defence.

[75]

The
    trial judge did not explain the significance of this evidence to the jury. The
    trial judge erred by not telling the jury members that, for the appellant to be
    found guilty of weapons dangerous, they had to reject his evidence that his
    purpose for brandishing the knife was self-defence.

[76]

Instead,
    the trial judge instructed the jury on the opposite:

No single circumstance, even a claim that the purpose of having
    a weapon was so that [the appellant] could defend himself or others under his
    protection or his property against others is conclusive.

[77]

This
    instruction misdirects the jury on this count. The jury members should have
    been instructed that if they believed that the appellant possessed the knife
    for the purpose of self-defence, then they could not be satisfied beyond a
    reasonable doubt that the appellant possessed the knife for a purpose dangerous
    to the public.

(ii)

Directing a Finding on the Essential Elements

[78]

Additionally,
    the trial judge erred by directing the jury to find that the first two elements
    of weapons dangerous were proven beyond a reasonable doubt.

[79]

In
R. v. Gunning
, 2005 SCC 27, [2005] 1 S.C.R. 627, the Supreme Court of
    Canada held that a trial judge should not assess the evidence or provide a
    direction to a jury that to an essential element of an offence had been proven
    beyond a reasonable doubt (at para. 31):

Hence, it is never the function of the judge in a jury trial to
    assess the evidence and make a determination that the Crown has proven one or
    more of the essential elements of the offence and to direct the jury
    accordingly. It does not matter how obvious the judge may believe the answer to
    be. Nor does it matter that the judge may be of the view that any other
    conclusion would be perverse. The trial judge may give an opinion on the matter
    when it is warranted, but never a direction.

[80]

Even
    if the essential elements seem obvious, it remains a determination for the
    jury.

Issue #3: On the assault
    charge, did the trial judge err in directing a verdict of guilty?

[81]

The
    parties consented to a directed verdict on the assault charge. The appellant
    now submits that defence counsel made a strategic decision on the expectation
    that self-defence would be before the jury. In essence, it was believed that if
    the appellant admitted his guilt on the first assault, it would enhance his
    credibility before the jury on his self-defence claim for the remaining counts.

[82]

The
    appellant argues that if this court allows the appeal on the first two counts,
    then the assault charge should also be sent back to trial as it is inextricably
    linked. In particular, because defence counsel made a strategic decision on the
    basis of a defence that should have been before the jury, it would be a
    miscarriage of justice to not order a new trial on the assault charge as well.

[83]

I
    accept that the strategic decisions on all charges were inextricably linked. In
    order to avoid a miscarriage of justice, the assault charge should be also be
    retried.

CONCLUSION

[84]

The
    appellants defence was never put to the jury. It was this: he held up the
    knife to defend Bishop, then to defend himself. He never intended to stab Burns
     it was an accident. Self-defence and accident can co-exist.

[85]

By
    incorporating s. 265(1)(b) into the first essential element of the offence of
    aggravated assault, without charging on self-defence, the trial judge
    effectively took away both self-defence and accident from the jury. The essence
    of the appellants defence was eliminated and there was no path to acquittal
    even if the jury believed the appellants testimony.

[86]

On
    the weapons dangerous count, the jury members should have been told that to
    find the appellant guilty, they had to reject his evidence that he had the
    knife for the purpose of self-defence. There should not have been an assessment
    of the evidence or a direction that the Crown had proved the first two
    essential elements beyond a reasonable doubt.

[87]

Finally,
    to prevent a miscarriage of justice, the assault charge should also receive a
    new trial.

DISPOSITION

[88]

I
    would allow the appeal, set aside the jury verdict and order a new trial on all
    three counts.

Released: December 23, 2015

M.L. Benotto J.A.

I agree K. Feldman
    J.A.

I agree L.B. Roberts
    J.A.