WARNING

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

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

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

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

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

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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

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

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

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

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

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    shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.H., 2020 ONCA 1

DATE: 20200102

DOCKET: C64337

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.H.

Appellant

Catriona Verner, for the appellant

Joanne K. Stuart, for the respondent

Heard: December 9, 2019

On appeal from the conviction entered on January 25, 2017
    by Justice Wolfram U. Tausendfreund of the Superior Court of Justice, sitting
    with a jury.

Benotto J.A.:

[1]

A jury found the appellant guilty of sexual interference and incest in
    relation to one of his daughters. The complainant alleged that he had touched
    her and engaged in sexual intercourse with her over a period of years, up to
    the night before she disclosed the alleged abuse. The defence theory at trial
    was that the complainant had fabricated her allegations so that her mother, who
    was travelling for work, would return home.

[2]

The appellant alleges that the trial judge erred by: (i) allowing the
    Crown to cross-examine him about why his daughter would lie; (ii) failing to
    properly instruct the jury with respect to consistent and inconsistent
    statements of the witnesses; (iii) permitting the Crown to violate the rule in
Browne
    v. Dunn
(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); and (iv)
    misstating the evidence during his charge to the jury.

[3]

As I will explain, the cross-examination of the appellant about the
    complainants motive to lie was improper and prejudicial and the trial judges
    failure to instruct the jury on a prior inconsistent statement of a witness was
    an error of law. Taken together, these errors require a new trial. It is
    therefore not necessary to address the other grounds of appeal.

FACTS

[4]

The appellant lived with his wife and three daughters. In June 2011, his
    wife started a new job in Alberta that required her to be away from home for
    two weeks at a time. The complainant missed her mother very much.

[5]

A family friend, S.C., and her son lived with the appellant and his
    family. S.C. was close to the complainant and was like a second mother. In
    September 2014, the appellant began having an affair with S.C.

[6]

The complainant is the youngest of three daughters. She alleged that,
    beginning when she was six years old, the appellant touched her crotch in his
    room and in the backyard pool. Beginning when she was nine years old, he had
    intercourse with her several times, sometimes using a purple vibrator and
    Vaseline. He never used a condom and used a towel to wipe down the vibrator and
    himself. He would give her cash afterwards.

[7]

On March 3, 2015, the complainant disclosed the abuse to friends, a
    teacher, and the police. She told the police that intercourse had occurred the
    night before in the appellants bed.

[8]

The appellant was arrested the same day. S.C. was interviewed and
    told the police that the night before  on March 2, 2015  the complainant
    started out sleeping in her bed but got up in the night to go and sleep in the
    appellants bed.

[9]

The police searched the home and found a purple vibrator, Vaseline, and
    a towel near the appellants bed. One of the complainants pillows was on the
    bed.

[10]

DNA
    testing on the seized items showed the following:

·

The
    complainants DNA was not found on the vibrator, Vaseline or towel.

·

The
    appellants DNA was found on the complainants neck but not her genitalia. (He
    testified that he had kissed her when she left for school that day).

·

The
    appellants DNA was found on the vibrator, as was female DNA that did not match
    the complainant.

·

A
    small amount of semen, Vaseline and male DNA was found on the outside of the
    complainants vagina. No semen was found on internal and external vaginal
    swabs.

·

Semen
    was found on the crotch of the complainants underwear.

[11]

A
    physician examined the complainant but could not confirm whether she had been
    assaulted or whether she had ever engaged in intercourse.

THE TRIAL

Cross-examination of the appellant

[12]

At
    trial, defence counsel (not appellate counsel) cross-examined the Crown
    witnesses on the fact that the complainant had difficulty with her mother being
    away from home and that her mother had returned home immediately as a result of
    the allegations. The appellant, who testified at trial, did not state in his
    direct evidence that he thought the complainant fabricated the allegations to
    bring her mother home, or at all. His counsel had raised this as a theory in
    her cross-examination of the complainant and other Crown witnesses. However,
    the Crown cross-examined the appellant as follows:

Q. So, if we believe what youre indicating and that this never
    happened, [the complainant is] what, fabricating these allegations?

A. Yeah, obviously.

Q. She missed her mom so much that she made up these
    allegations against you, is that your understanding?

A. I would hope that she didnt,
    but it sure appears that way, yes. Im going to say, yes. She missed her
    mother. She wanted her mother home and yes, I believe that the easiest way to
    make sure her mother stayed home and did not go back out west was to ensure
    that there was a reason for her to stay here.

[13]

Defence
    counsel interjected as follows:

[CROWN]: Your Honour theres an objection.

[DEFENCE]: Your Honour my friend has canvassed this area with
    my client and he ....

THE COURT: Im sorry?

[DEFENCE]: My friend has canvassed this with my client. He has
    answered the questions. I dont think that he can know with any detail what was
    in his daughters head. He has answered the question and ....

THE COURT: Well, thats likely so,
    yes, but I think its relevant what [the appellant] believes that her
    motivation might have been. Its not about what was in her head, but what he
    believes. Please continue.

[14]

The
    questioning continued, and the Crown ended the cross-examination as follows:

Q: Im going to suggest to you the reason why she said the
    things that she did is because they are true?

A: They are not true. I did not sexually assault my daughter.

Q: And nothing else makes sense given what weve heard over the
    course of this trial. Isnt that correct?

A: I cant answer that question.

The prior inconsistent statement

[15]

Where
    the complainant slept on March 2, 2015 (the night before the disclosure) became
    a significant issue at trial.

[16]

The
    complainant testified that she slept in the appellants bed where she woke up.

[17]

Both
    of the complainants sisters testified that the complainant slept in S.C.s
    bed. One sister testified that she explicitly remembered going to S.C.s room
    to wake the complainant for school. The other sister, a Crown witness,
    testified that she did not remember the complainant ever sleeping in the
    appellants room, let alone that night  except perhaps when she was sick.

[18]

S.C.
    testified that the complainant slept with
her
that night. She was
    cross-examined about the police statement where she had stated that the
    complainant started the night with her but got up during the night and went to
    the appellants room. She explained that, when she gave the statement on March
    3, 2015, she was confused as a result of the allegations, did not think there
    was any significance to the sleeping arrangements, and was in error. She did
    not adopt the prior inconsistent statement.

Crown closing

[19]

The
    Crown relied on the cross-examination of the appellant in closing submissions:

The Defence will have you believe that [the complainant]
    fabricated or made up these allegations because she missed her mother, wanted
    her back home. I ask you to apply your common sense and ask yourself does that
    make sense?

Is it logical that [she] waits
    five years before saying anything and at the age of eleven concocts this entire
    elaborate extreme plan just to get her mother home? No.

[20]

The
    Crown also asked the jury to disbelieve the sisters, the appellants and
    S.C.s trial testimony, and instead rely on S.C.s prior inconsistent
    statement, which on its face would corroborate what [the complainant] was
    saying.

The jury charge

[21]

The
    trial judge referred to the cross-examination of the appellant concerning the
    complainants motive to fabricate, and specifically invited the jury to
    consider this evidence in assessing the appellants guilt:

When asked about [the
    complainants] allegation of sexual touching and intercourse with him, he
    agreed with the Crown that [she] missed her mother, wanted her home and that
    she made up this evidence, he stated, to have her mom return from Alberta.

[22]

The
    trial judge also referred to S.C.s prior inconsistent statement when reviewing
    the evidence at trial. He stated:

[S.C.] agreed that in her statement
    of March 3
rd
, [the complainant] had gotten up during the night and had
    gone to her fathers room. She stated that this however was not correct. She
    had planned on correcting that statement at the time of the preliminary inquiry
    when she testified. However she did not as she was not asked about it.

[23]

The
    trial judge did not provide the jury with a limiting instruction regarding the
    use that could be made of the prior inconsistent statement.

DISCUSSION

The cross-examination of the appellant

[24]

This
    court has consistently held that it is improper to call upon an accused to
    comment on the credibility of his accusers: see
R. v. Rose
(2001), 53
    O.R. (3d) 417 (C.A.), at para. 27. In
R. v. L.L.
, 2009 ONCA 413, 96
    O.R. (3d) 412, Simmons J.A. explained the twofold rationale to preclude this
    line of questioning: it is improper for a witness to remark on another
    witnesss truthfulness and there is a risk the burden of proof may be
    improperly shifted to the accused. Moreover, in a jury trial, this type of
    questioning may lead the jury to draw an adverse inference if the accused is
    unable to provide a compelling answer for why the complainant made the
    allegations. A more comprehensive discussion of these concerns appears at
    paras. 15-16:

First, as a general matter, it is improper to
    invite one witness to comment on the veracity of another. This principle has
    particular application to an accuser and the accused. As noted by Charron J.A.
    in
R. v. Rose
, (2001),
2001 CanLII 24079
    (ON CA)
, 53 O.R. (3d) 417 (C.A.) at para.
27
,
    this court has held repeatedly that it is improper to call upon an accused to
    comment on the credibility of his accusers.

Second, questions of
    this type create a risk of shifting the burden of proof because they may
    mislead the trier of fact into focusing on whether the accused can provide an
    explanation for the complainants allegations instead of focusing on the
    central issue of whether the Crown has proved beyond a reasonable doubt that
    the allegations are true. As this court said in
R. v. F.(C.)
, [1996] CanLII 623 (Ont. C.A.), such questions create a risk that the
    jury may draw an adverse inference if the accused fails to provide a reasoned
    or persuasive response. [Citations omitted.]

[25]

In
R. v. T.M.,
2014 ONCA 854, leave to
    appeal refused, [2015] S.C.C.A. No. 110, this court explained the scope of
    permissible questions
about a complainants motive to fabricate.
    Questions that explore the nature of the
relationship
between the
    appellant and the complainant are proper. These questions elicit information
    within the appellants knowledge: at para. 40. However, questions that go to
    motive become improper when they go beyond eliciting facts known to the
    accused and instead invite the accused to speculate: at para. 41.

[26]

The
    Crown submits that the cross-examination was proper because defence counsel had
    raised recent fabrication and offered the motive for the fabrication. Thus, the
    Crown was entitled to explore this line of questioning in the cross-examination
    of the appellant.

[27]

I
    do not agree.

[28]

The
    questions were improper. The questions did not concern the relationship between
    the family members, but rather asked the appellant to offer an explanation for
    the complainants allegations. In asking the appellant about why the
    complainant made the allegations, the Crown stated, nothing else makes sense
    given what weve heard. As a result, the questions caused the appellant to
    speculate about the reasons for the accusation and to come up with a reason
    that makes sense.

[29]

The
    trial judges comments in response to defence counsels objection cemented the
    unfairness when he said that the questions were relevant because of what the
    appellant believed the complainants motivation may have been. This is both
    wrong and misleading. What the appellant believed to be the complainants
    motivation was not relevant. The questioning was misleading because the jury
    could have been left with the impression that he should have had a credible
    explanation for the allegations.

[30]

The
    Crown compounded this impression in closing submissions, which referred to the
    appellants cross-examination as not making sense.

[31]

The
    trial judge should have instructed the jury to ignore the portion of the
    cross-examination requiring the appellant to explain the reasons for the
    allegations. In connection with this corrective instruction, the trial judge
    should have reminded the jury of the presumption of innocence and the burden of
    proof. In this case, the standard charge given on the presumption of innocence
    and the burden of proof was not sufficient to explain to the jury why this
    evidence, although referred to by the judge and the Crown, should be ignored.
    The failure to give proper jury instructions was an error.

The prior inconsistent statement of S.C.

[32]

A
    prior inconsistent statement can be used to cross-examine a witness. It can
    only be used on the issue of credibility. However, unless the prior
    inconsistent statement is adopted by the witness, it cannot be used for the
    truth of its contents. Failure to provide a limiting instruction to the jury
    has been held to be a reversible error:
Deacon v. The King
, [1947]
    S.C.R. 531;
McInroy and Rouse v. R.
, [1979] 1 S.C.R. 588;
R. v.
    Mannion
, [1986] 2 S.C.R. 272.

[33]

The
    Crown submits that the appellant is precluded from raising this issue now
    because defence counsel failed to pursue the request at the pre-charge
    conference. At the pre-charge conference, the trial judge appears to have been
    mistaken about the law. When the Crown referred to S.C.s prior inconsistent
    statement, the trial judge said:

These are two different statements
     and its up to [the jury members] to decide as to which of the two versions
    to accept .

[34]

In
    the present appeal, this error of law is not excused by the failure of defence
    counsel to object. As I explain below in connection with the
proviso
,
    the jury could have accepted the prior inconsistent statement for the truth of
    its contents and concluded that the complainant slept in the appellants bed on
    the night of March 2, 2015. It was up to the trial judge to make it clear to
    the jury that the prior inconsistent statement could not be used for the truth
    of its contents whether or not defence counsel raised the issue.  As stated by
    Spence J. in
R. v. Squire
, [1977] 2 S.C.R. 13, at p. 19:

It is  the duty of a trial judge
    to submit to the jury in his charge any defence available to the accused which
    had been revealed by the evidence whether or not counsel for the accused chose
    to advance that defence in his address to the jury. [Citations omitted.]

[35]

Nor
    can it be remedied, as submitted by the Crown, by the standard jury charge
    concerning the assessment of credibility. Those instructions are meant to help
    jurors assess credibility. One of the factors that can be considered is whether
    the witness said something different at another time. This standard charge is
    not a substitute for a specific limiting instruction when, as here, it is
    required. The trial judge should have explained to the jury the permitted use
    of the particular prior inconsistent statement at issue, followed by its
    prohibited use. Instruction on the evidentiary value of prior inconsistent
    statements  is essential to proper juror understanding of the use of this
    evidence: David Watt,
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson Canada, 2005), at p. 77. This instruction is important to
    remind jurors to use their common sense in assessing how much reliance to place
    on the witnesss testimony at trial and that the fact, nature and extent of
    the differences, as well as any explanation  for them are factors to consider
    in assessing the credibility and reliability of a witnesss testimony: Watt, at
    p. 78.

[36]

The
    importance of these jury instructions is exactly what is referred to in
R.
    v. Bevan
, [1993] 2 S.C.R. 599, at p. 618:

The real danger flowing from the failure of the trial judge
    to instruct the jury on the use that may be made of prior inconsistent
    statements is that the jury may not have understood that such statements could
    not be used as evidence to prove the truth of their contents. This danger was
    exacerbated by the trial judge's making a number of comments that may have
    caused the jury to conclude that all prior statements (consistent or
    inconsistent)
could

be used as substantive evidence.

[37]

The
    failure to provide a limiting instruction here was an error of law.

THE
PROVISO

[38]

The
    Crown submits that if this court concludes there were reversible errors, the
    curative provision should be applied. The Crown submits that there has been no
    substantial wrong or a miscarriage of justice as a result of the trial judge's
    errors because "the verdict would necessarily have been the same if such
    error had not occurred": see
Colpitts v. The Queen
, [1965] S.C.R.
    739,
per
Cartwright J. (as he then was), at p. 745;
Wildman v. The
    Queen
, [1984] 2 S.C.R. 311, at pp. 328-29.

[39]

I
    do not agree that the verdict would necessarily have been the same,
    particularly without a limiting instruction on S.C.s prior inconsistent
    statement. Absent that instruction, there was no way for the jury to know that
    S.C.s statement to the police could not be relied on for the truth of its
    contents. Given the significance of the sleeping arrangements on the night of
    March 2, 2015, it is entirely likely that the jury accepted the prior inconsistent
    statement to confirm that the complainant slept in the appellants bed. This
    prospect was all the more possible given the trial judges remarks regarding
    the earlier version of the statement.

[40]

I
    therefore do not accept that  absent the errors  the verdict would have been
    the same.

DISPOSITION

[41]

I
    would allow the appeal and order a new trial.

Released: January 02, 2020

MLB

M.L. Benotto J.A.

I agree. K. van
    Rensburg J.A.

I agree. Harvison
    Young J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ghadghoni, 2020 ONCA 24

DATE: 20200116

DOCKET: C65659

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Saied Ghadghoni

Appellant

David M. Humphrey and Jill D. Makepeace, for the appellant

Hannah Freeman, for the respondent

Heard: December 6, 2019

On appeal from the conviction entered on June 9, 2017 and
    the sentence imposed on June 27, 2018 by Justice Hugh K. OConnell of the Superior
    Court of Justice.

Pardu J.A.:

[1]

Saied Ghadghoni appeals from his conviction for sexual assault and seeks
    leave to appeal from the 30-month sentence which followed upon his conviction. The
    basis for the conviction was a finding that the appellant initiated sexual
    intercourse with a sleeping woman, circumstances inconsistent with consent on
    her part.

[2]

The appellant submits that the trial judge applied uneven scrutiny to
    the evidence, rigorously scrutinizing his evidence but tolerating
    inconsistencies in the complainants evidence.

[3]

I would reject this ground of appeal. The appellants statement to the police
    regarding the relevant events was inconsistent with other objective, relatively
    uncontroversial evidence, which went to the heart of whether he had intercourse
    with a sleeping woman. The inconsistencies in the complainants evidence went
    to peripheral matters which the trial judge found did not materially affect the
    complainants credibility and reliability regarding the central sexual assault allegation.

[4]

I would allow the sentence appeal. The trial judge made an unreasonable
    factual finding that affected the sentence.

A.

Factual narrative

[5]

The appellant met the complainant at a gym. They exchanged a few social
    media and text messages. About a day later, they both separately went to a
    nightclub event. The complainant went with her own friends and family. They
    arrived at about 11:45 p.m. and sat at a booth they had reserved. The appellant
    said he met his own friends and family at the club.

[6]

The complainant said that she had less than three drinks, but she became
    profoundly intoxicated. The appellant did not consume alcohol. The appellant
    and the complainant interacted at some points throughout the evening, sometimes
    dancing together.

[7]

Video surveillance captured the appellant and the complainant leaving
    the nightclub at about 2:39 a.m. She had gone out for a cigarette but was so
    intoxicated she could barely stand up or light her own cigarette. The bouncer
    refused her re-entry. After a short discussion, the appellant took the
    complainant to his car. She needed his physical support to get to the car.

[8]

In his police statement, the appellant said the complainant told him she
    could not go home, and she agreed with his suggestion to go to his parents
    home, which was about 40 minutes away. According to the appellant, the complainant
    vomited in his car after they left the club. He said they arrived at his home
    around 3:30 a.m. He noted that the complainant was so intoxicated she could not
    get out of the car or walk by herself.

[9]

The appellant says he helped the complainant clean the vomit off her
    person, gave her clothing to wear, helped her change, and gave her food and
    water. Afterwards, according to the appellant, the complainant really wanted to
    have sex with him, initiated that contact, and participated enthusiastically and
    vigorously. The appellant said they then cuddled and fell asleep at around 5:00 a.m.

[10]

The appellant said he and the complainant slept until about 8:00 or 8:30
    a.m. She asked him the time and said she had to go home so she could be at work
    by 11:00 a.m. The appellant told the police that the complainant then initiated
    sexual intercourse again, and that she was a willing and active participant.

[11]

The complainant had no memory of events unfolding after 12:30 a.m. She
    testified that she woke around 8:00 a.m. to find herself naked, lying on her
    stomach with the appellant having intercourse with her from behind. She said
    she told the appellant stop two or three times and the appellant replied,
    hold on, hold on, at which point she got up from the bed. She said about 20
    seconds elapsed between the time she realized the appellant was having
    intercourse with her and the time she pushed herself off the bed.

[12]

The complainant asked the appellant to drop her off at her friend R.s
    home. She said she had no idea where she was and was nervous about antagonizing
    the appellant. Once she was dropped off at her friends car, she began crying
    and told her friend what she thought had happened. Her friend took her to a
    police station. An investigation began, leading to the charge against the
    appellant.

B.

The trial judges reasons

[13]

The trial judge concluded that the complainants intoxication level was
    incompatible with the appellants description of the first sexual encounter
    after they arrived at his home. The trial judge relied on the toxicologists evidence
    and video surveillance of the complainant and appellant outside the club, just
    before they left.

[14]

The toxicologist calculated that the complainant would have had a very
    high blood alcohol concentration at around 1:30 a.m. (between 175-344
    milligrams of alcohol in 100 milliliters of blood) and around 3:00 to 3:30 a.m.
    (between 155-314 milligrams of alcohol in 100 milliliters of blood). The trial
    judge noted the effects of such levels of alcohol at paras. 175-176 of his
    reasons:

[S]uffice it to say I do find that
    the B.A.C. contents as [the toxicologist] described them to be are [
sic
]
    consistent with the evidence of [the complainant] and the video outside of the
    bar of her level of impairment.

Some of the indicia of impairment referred to by this witness
    once you get higher up between the 150 and 200 milligrams of alcohol in your
    blood are consistent with the effects [the complainant] was showing: loss of
    balance, issues with gross fine motor coordination, and I refer to the video
    again, possibly nausea and vomiting and possibly severe sedation, which I take
    it is a very deep sleep.

[15]

The trial judge also described the video surveillance of the complainant
    outside the club, at paras. 94-96 and 142:

[I]n the video its clear she is having serious trouble gaining her
    balance
. She appears at one point in time on the video, and
    indeed does, not simply appears, to stumble backwards into the rope cord, and
    the bouncer has to actually put his hand up to ensure she doesnt fall over,
    and that is manifestly obvious.

I also note that in the video [the
    appellant] lights a cigarette for her. Perhaps he did so in a chivalrous
    manner, but I certainly find she has no recollection of this event and it
    appeared to my eye on that video that he lit her cigarette because she was in no
    position to actually stand there, hold it and light it herself.
Her motor skills were grotesquely affected, and
    again resort only be made [
sic
] to that video which is an exhibit in
    this proceeding.

...and there was some evidence
    there was ice outside, but Im completely satisfied on all the evidence this
    wasnt a slip based on ice.
This was
    loss of balance based on manifestly severe intoxication by [the complainant] on
    that evening.

But again, as I found,
    her inability to gain balance outside, even while standing still, and thats
    critical, and that video speaks a million words, is because she was so
    inebriated that she couldnt stand. And I remind again that it was the bouncer
    whose good hand stopped her from literally falling right over the velvet cord

[16]

The appellant also told police that the complainants phone was dead. When
    she woke around 8:00 a.m., the complainants cellphone was turned off and was on
    the appellants side of the bed. The complainant testified that the appellant told
    her he had turned off her phone as it had no battery power. However, when the
    complainant turned on her phone after waking, the battery was at 27 percent
    power, and she saw she had missed calls and texts from friends who were
    concerned about her after she disappeared from the club. As also reflected in
    the cellphone records produced, her use of the phone after she woke around 8:00
    a.m. and on the way to her friends home demonstrated that the battery was not
    dead at that time. The trial judge concluded that the appellant had turned off the
    complainants phone so that his activities with the complainant would not be
    interrupted.

[17]

The trial judge concluded that the appellants narrative of the events
    at his home was not true and did not raise a reasonable doubt. The complainant
    would have been incapable of the activities the appellant described as the
    first consensual sexual intercourse. The appellant himself said that the
    complainant was incapable of walking by herself when they arrived at his home.
    The trial judge found this first incident of intercourse described by the
    appellant did not occur. This rejection of the appellants evidence was
    grounded in other objective evidence and went to the central issue of consent
    to sexual contact between the parties.

[18]

The trial judge also found that the complainant was asleep when the
    appellant penetrated her in the morning, around 8:00 a.m. As the complainant
    was asleep, she could not and did not consent to the sexual intercourse. Consequently,
    the trial judge found the appellant guilty of sexual assault.

C.

Analysis

(1)

Appeal from conviction

[19]

I begin with the observation that the defences argument at trial was
    that the complainant regretted going to a near strangers home and having
    sexual relations with him. As a result, the complainant reinvented her
    account of what had occurred. Defence counsel indicated that he did not doubt
    the complainants sincerity but suggested to her that she decided this
    gentleman was not [her] best choice and [she] decided to block it.

[20]

The appellant submits the complainants evidence required heightened
    scrutiny because of the large gap in her memory, her intoxication, and various
    inconsistencies in her evidence.

[21]

The complainants intoxication level was incompatible with her stated
    alcohol consumption. The trial judge accepted her evidence that she had three
    drinks. However, he found that she clearly had had more alcohol than that, but
    he could not say how that came to pass. The toxicology evidence provided the
    most reliable evidence of the complainants intoxication level.

[22]

Defence counsel pointed out several inconsistencies in the complainants
    evidence. In examination in chief, she said she finished her third drink; in
    cross-examination she said she did not remember finishing it. At trial, she
    said that she held her shoes in her hands and was barefoot when she went out to
    the appellants car in the morning, when the appellant was about to take her to
    her friends home. Defence counsel pointed out that she had also said her shoes
    were on her feet at this time.

[23]

The trial judge did not view these as material inconsistencies. The
    complainant was testifying at trial about events occurring more than three
    years previously.

[24]

The appellant argues the trial judge unfairly scrutinized and did not
    give fair consideration to evidence favouring the defence.

[25]

There was video surveillance showing the appellant lighting a cigarette
    for the complainant, and dialogue with the bouncer outside the club. The
    appellant argues the trial judge should have used this footage to confirm the
    appellants evidence that the complainant initiated the departure from the bar.
    Instead, the trial judge found that the appellant initiated the departure. He
    concluded that:

she wasso inebriated the bouncer wouldnt let her back in. She
    couldnt get a jacket, and [the appellant]s mind at that point in time, Im
    completely satisfied, was to get her into the car and get her back to his place
    so that things could happen as he wanted them to, and in a situation where
    there is not one iota of consent to her doing it, even after I carefully have
    assessed [the appellant], the now found guilty partys evidence as to what he
    said happened at that house where he resided with his parents at the material
    time.

[26]

The appellant submits that the trial judges unfounded finding that the
    appellant initiated the departure became an integral component of his analysis
    that tainted his assessment of the entire evidence. Specifically, the trial
    judge viewed this as the first of several steps in what he concluded was the
    appellants deliberate scheme to isolate and take advantage of the complainant.
    The trial judges error resulted in uneven scrutiny leading him to accept the
    complainants evidence and reject any evidence that did not fit within this
    frame.

[27]

I agree that the evidence does not support that the appellant planned
    the offence from the time he and the complainant left the nightclub. This would
    have required the appellant to have foreseen that the complainant would go
    outside to smoke, that the bouncer would not allow re-entry into the club, and
    that the complainant would say she could not go home. The earliest indication
    of planning might be when the appellant took the complainants cell phone and
    turned it off, sometime after they were both in bed.

[28]

However, I do not accept that the trial judges error tainted his entire
    view of the evidence or his determination of the central issue in the case,
    namely, whether the appellant had sexual intercourse with a sleeping woman. As
    a result, the question of who initiated the departure from the bar was
    peripheral to the central issue in the case.

[29]

The appellant argues that the trial judge should have given more weight
    to his fathers testimony, who saw the complainant in the home after she woke
    up and was preparing to leave. The father testified that he came downstairs in
    the morning, said hello and that his son then introduced him to the complainant.
    He said the complainant did not appear upset during their brief exchange. After
    they left a few minutes later, the father went upstairs to a window on the
    second floor. He saw the appellant and the complainant in the car together and
    they appeared to be taking a selfie photograph and they were smiling. The trial
    judge found that the fathers evidence was embellished and held that the
    complainant was anxious to get out of the home, did not know who the person
    was, she was scared and was trying to stay calm.

[30]

The trial judge accepted that the complainant was anxious to get out of
    the home, did not know who the father was and did not exhibit any upset to the
    father during their meeting for understandable reasons.

[31]

The appellant submits that differences between the evidence of the complainant
    and her friend R. about the precise timing of the disclosure to R. and whether
    they went to Tim Hortons before going to the police station should have
    undermined the complainants credibility and reliability. The appellant makes
    the same argument about differences between the evidence of the complainant and
    R. about the frequency of the complainants visits to nightclubs on other
    occasions. Again, the trial judge did not regard these differences as material
    to his assessment of the complainants credibility and reliability.

[32]

The appellant argues that the trial judge erred by equating incapacity
    to consent to sexual relations with the entire period for which the complainant
    had no memory (i.e. from around 12:30 a.m. until the complainant woke up around
    8:00 a.m.). Whether or not she had the capacity to consent to sexual relations
    during this earlier period was not relevant to the question of whether the
    appellant initiated sexual intercourse with her when she was sleeping.

[33]

Nothing in either the appellants or the complainants narrative of
    events or defence counsels submissions suggests that the complainant was
    impaired by alcohol when she woke up to the extent that she could not be a
    reliable historian of what she experienced as she woke up. She got up, got
    dressed, looked for her underwear, found her phone, called and texted friends,
    spoke to the appellant and asked for a ride to a friends home. She went to the
    police station and the hospital and recounted her experience, as she saw it.

[34]

The trial judge expressly cautioned himself to apply
R. v. W.(D
.
)
,
    [1991] 1 S.C.R. 742, to the statement the appellant gave to police. He expressly
    considered the complainants reliability and credibility, and the other
    evidence. He cited
R. v. H.C.,
2009 ONCA 56, 241 C.C.C. (3d) 45, at
    para. 41, which states:

Credibility and reliability are
    different. Credibility has to do with a witnesss veracity, reliability with
    the accuracy of the witnesss testimony. Accuracy engages consideration of the
    witnesss ability to accurately

i.

observe;

ii.

recall; and

iii.

recount

events in issue. Any witness whose evidence on an issue is not
    credible cannot give reliable evidence on the same point. Credibility, on the
    other hand, is not a proxy for reliability: a credible witness may give unreliable
    evidence. [Citations omitted.]

[35]

To subject the evidence favouring the defence to a stricter level of
    scrutiny than the evidence of the Crown is an error of law, which displaces the
    deference ordinarily owed to the trial judges credibility assessment:
R.
    v. Phan
, 2013 ONCA 787, 313 O.A.C. 352, at paras. 30-31.

[36]

In
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    paras. 58-59, Doherty J.A. described the difficulties associated with this
    argument,

Counsel  contends that the trial judge applied a higher
    standard of scrutiny in his assessment of the appellant's evidence and
    credibility than he did when considering the evidence and credibility of [the
    complainant].

This argument or some variation on it is common on appeals from
    conviction in judge alone trials where the evidence pits the word of the
    complainant against the denial of the accused and the result turns on the trial
    judge's credibility assessments. This is a difficult argument to make
    successfully. It is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to expressly set out legal
    principles relevant to that credibility assessment. To succeed in this kind of
    argument, the appellant must point to something in the reasons of the trial
    judge or perhaps elsewhere in the record that make it clear that the trial
    judge had applied different standards in assessing the evidence of the
    appellant and the complainant.

[37]

This difficulty was reiterated in
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183
, at para.
    39:

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

[38]

Here, I am not persuaded that the trial judge applied different scrutiny
    to Crown and defence evidence. He rejected the appellants evidence and accepted
    the complainants evidence based on the evidence as a whole, logical
    inferences, and the importance of particular testimony to the central issue in
    the trial. The trial judge expressly considered the same arguments about the
    credibility and reliability of the evidence now made on appeal.

[39]

This is not a case like
Howe
, where both the defence and Crown
    witnesses lied under oath, and defence evidence was rejected because of the
    lie, but the Crown witnesss lie did not affect the assessment of her
    credibility.

[40]

Nor am I persuaded that the trial judge materially misapprehended the evidence
    on the central issue,
which is whether the appellant had
    sexual intercourse with a sleeping woman
.

(2)

Appeal from sentence

[41]

When the appellant was a child, he suffered a severe head injury that
    left him with serious cognitive deficits. Dr. MacGregor explained that people
    with this type of brain injury, just cant put the brakes on, they just have
    to keep going, thats the impulsivity, distractibility, just cant stop it.
Dr. MacGregor further testified that

he has problems with impulsivity, distractibility and self-control.
    Expert evidence indicated that he has difficulty recognizing social cues in
    interactions with others. He has limited ability to learn from punishment.

[42]

The trial judge concluded that an appropriate sentence would have been
    36 months. However, he ultimately imposed a 30-month sentence, because serving
    prison time would be more difficult for the appellant, due to his disabilities.

[43]

The appellant submits that the trial judge erred by failing
    to recognize that his disabilities reduced his moral blameworthiness.
The appellant submits further that the trial judge erred in concluding that the
    offence was methodically planned over a sustained time. Finally, the appellant
    argues that the trial judge misidentified the appropriate range of sentence as
    from two years less a day to four years. The appellant submits that the usual
    range of sentence for intercourse with a sleeping or incapacitated victim is
    between 18 months and three years.

[44]

The trial judge did not mitigate the sentence further because he
    concluded that there was no causal link between the appellants disabilities
    and the offence. He noted the offence was not an impulsive act based on the
    personality defect based on his brain injury or that can rationally be
    connected to his brain injury. The trial judge observed that it was clear from
    the appellants videotaped police statement that he was well aware of the
    issue of consent.

[45]

Cognitive impairment, where it affects behaviour resulting in criminal
    liability, can attenuate the moral blameworthiness attached to that behaviour.
    It can also justify less emphasis on the principles of specific and general
    deterrence:
R. v. Manitowabi
, 2014 ONCA 301, 318 O.A.C. 175, at para.
    64.

[46]

On this record, however, it cannot be determined whether this offence
    was committed impulsively or whether the appellants cognitive deficits otherwise
    contributed to his commission of the offence.

[47]

However, as earlier explained in para. 27, I agree that the evidence
    does not support the trial judges finding that the offence was methodically
    planned from the time they left the club. The trial judge therefore erred in
    relying on this characterization of the offence as an aggravating factor that
    was not established by the Crown beyond a reasonable doubt.

[48]

I further agree that the usual range identified in past jurisprudence
    for sexual assaults committed in similar circumstances has been between 18
    months and three years: see, for example,
R. v. Christopher Smith
,
2015 ONSC 4304, at paras. 32-33. Even
    if the trial judge identified a range that slightly exceeds that imposed in
    similar circumstances, the actual sentence imposed is within the appellants
    proposed range. Deviation from a sentencing range is not, in itself, an error
    in principle:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    60.

[49]

The appellant submits that a lesser sentence would have been appropriate
    because he was only 22 years old at the time of the offence, the offence was
    not planned, his head injury reduced his moral blameworthiness, he immediately
    desisted when the complainant told him to stop, he had no prior record, and the
    offence was out of character. He argues that rehabilitation should have been
    given more weight in fashioning an appropriate sentence.

[50]

I agree further that the trial judge could have imposed a lesser
    sentence within the appropriate range that has been identified. The fact that
    he did not, does not open the door to appellate interference, absent an error
    in principle that had an impact on the sentence.

[51]

In my view, the trial judge erred by finding an aggravating factor, that
    the appellant methodically planned to commit the offence from the time he left
    the club; this was not proven beyond a reasonable doubt. As a result, I would
    reduce the appellants sentence to two years less a day.

[52]

Accordingly, the appeal from conviction is dismissed. I would allow the
    appeal from sentence and substitute a sentence of two years less a day.

Released: January 16, 2020

GP

G. Pardu J.A.

I agree L.B. Roberts
    J.A.

I agree J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gignac, 2020 ONCA 42

DATE: 20200128

DOCKET: C64528

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Steven
    Gignac

Appellant

Daniel Santoro and Nicola Fernandes, for the appellant

Jeremy Streeter, for the respondent

Heard: January 6, 2020

On appeal from the conviction entered on August 1, 2017 and the
    sentence imposed on February 28, 2018 by Justice Graham Wakefield of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of drug offences related to drugs found in a
    safe in the living room of his house where he lived with his wife. The
    appellant submits that the trial judge erred in failing to exclude a statement he
    made shortly after police violated his rights to counsel under section 10(b) of
    the
Canadian Charter of Rights and Freedoms
.

[2]

The trial judge concluded that the appellant was not a credible witness
    on the
Charter
motion. On that basis, he
    dismissed the appellants application to exclude the evidence. He did not
    expressly deal with the argument that the officers evidence alone was sufficient
    to establish
Charter
violations and result in
    the exclusion of the evidence and it falls to this court to consider that
    argument.

[3]

Upon arrest at 3:01 a.m. on January 22, 2016, the appellant indicated he
    did not wish to give a statement until after he had consulted counsel. The
    arresting officer continued to read from a pre-printed card to ask twice
    whether the appellant wished to make a statement. The appellant indicated that
    he did not.

[4]

The appellant was handcuffed and placed in the back of a van to await
    transport to the Durham police station. Shortly after, the appellant asked the
    arresting officer whether his wife was going to be arrested. The arresting
    officer told the appellant that there [was] a search warrant being
    executed...at his home in Oshawa and that he couldnt really give an answer
    as to whether or not [the appellants] wife was actually going to be arrested.
    The appellant then said there was a safe in the living room of his home, the
    safe had cocaine in it, and the cocaine was his. The appellant also advised the
    officer of the combination to the living room safe where the drugs were found.

[5]

The appellant submits that the officer violated his s. 10(b)
Charter
rights because 1) the officer asked twice
    whether the appellant wanted to make a statement, even though the appellant said
    he wanted to speak to counsel; and 2) the officers truthful response to the appellants
    question amounted to an elicitation of a statement.

[6]

The Crown concedes that the officer committed the error described in
R. v. G.T.D.
, 2018 SCC 7, [2018] 1 S.C.R 220 (
G.T.D.
), by twice asking the appellant whether he
    wished to make a statement after the appellant indicated he wished to consult
    counsel. However, the Crown disagrees that the officers truthful response to
    the appellants spontaneous question could in any way be construed as an elicitation
    of a statement from the appellant.

[7]

The Crown concedes that the temporal connection between the admitted
Charter
violations and the appellants incriminatory
    statements is sufficient to require a consideration of s. 24(2) of the
Charter
.

[8]

The Crown submits that the following factors
favour
admitting the appellants statements:

·

the individual good faith of the officer
    who read the rights to counsel and posed the questions from a pre-printed card
    some two years before the decision in
G.T.D
.;

·

the absence of any causal connection between the
Charter
violations and the incriminatory statements made;

·

the
Charter

violations negligible effect on the appellants
Charter
protected interests;

·

the reliability of the evidence; and

·

the strong societal interest in a trial on the
    merits.

Analysis

[9]

The appellant spontaneously asked police if his wife was going to be
    arrested. The officer answered truthfully that a search warrant was then being
    executed at the appellants home and that the officer did not know whether the
    appellants wife was to be arrested. This truthful answer cannot be construed
    as an attempt by the officer to elicit evidence from the appellant. The
    officers answer to the appellants question did not therefore violate the
    appellants s. 10(b)
Charter
rights.

[10]

However,
    we agree that the
Charter
violations conceded
    by the Crown and their temporal connection to the incriminatory statements,
    which the Crown also concedes, are sufficient to engage s. 24(2) of the
Charter
:
R. v. Plaha
(2004)
, 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45.

[11]

We
    therefore turn to whether admitting the evidence obtained in breach of the
Charter
would bring the administration of justice into
    disrepute. This requires assessing three factors: 1) the seriousness of the
Charter
infringing state conduct; 2) the impact on the
Charter
protected interests of the accused; and 3) societys
    interest in an adjudication of the case on the merits:
R.
    v. Grant
, 2009 SCC 32, [2009] 2 SCR 353 at para. 71.

[12]

In
Grant
at paras. 91-98, the Supreme Court of
    Canada pointed out that courts have tended to exclude statements obtained in breach
    of the
Charter
. Having said that, the court also
    noted at para. 96 that particular circumstances may attenuate a
Charter
breachs impact on the accuseds protected
    interests, for example:

[I]f an individual is clearly
    informed of his or her choice to speak to the police, but compliance with s.
    10(
b
) was technically defective at either the
    informational or implementational stage, the impact on the liberty and autonomy
    interests of the accused in making an informed choice may be reduced. Likewise,
    when a statement is made spontaneously following a
Charter
breach, or in the exceptional circumstances where it can confidently be said that
    the statement in question would have been made notwithstanding the
Charter
breach, the impact of the breach on the
    accuseds protected interest in informed choice may be less. [Citation
    omitted.]

Seriousness of the
Charter
infringing conduct

[13]

There
    is no real dispute that the arresting officer acted in good faith. We
    acknowledge that the officers pre-printed card, which indicated what was to be
    read to an arrested person, raises concerns about systemic failures to protect
Charter
rights. However, as the Alberta Court of Appeal
    noted, there was a degree of legal uncertainty on this issue that tempered the
    seriousness of the breach:
R. v. G.T.D.
, 2017 ABCA 274, 57 Alta. L.R. (6th) 213,
    at para. 93 (
G.T.D.
(ABCA))
. Although
G.T.D.
was based on long established Supreme Court of
    Canada jurisprudence, the decision only brought clarification some two years
    after the arrest in this case.

Impact on the appellants
Charter
protected interests

[14]

The
    police must hold off from attempts to elicit evidence from an accused until he
    or she has had a reasonable opportunity to consult counsel:
G.T.D.
at para. 2. This case is different from
G.T.D.
,
in which the accused made incriminatory statements in response to the questions
    posed from the flawed standard caution.

[15]

Here,
    there was no causal connection between the
Charter
violations and the appellants incriminatory statements. The appellant clearly
    understood that he did not have to speak to police and asserted his right to
    consult counsel. He refused to make any statement after asserting his wish to
    speak to counsel, despite the two questions about whether he wished to make a
    statement after that assertion. The breaches up to that point had no impact on
    his
Charter
protected interests.

Societal interest in a trial on the merits

[16]

There
    is no doubt the statement was voluntary. It was reliable evidence. The
    combination opened the living room safe in which the drugs were found. The
    statement was strong evidence of the appellants knowledge of the contents of
    the safe and control of those contents. Twelve 75 microgram per hour Fentanyl
    patches, as well as cocaine and other drugs, were in the safe. This court has
    reiterated the dangers that Fentanyl poses to the community on several
    occasions.

[17]

Balancing
    these factors, we conclude that admitting the appellants statement would not
    bring the administration of justice into disrepute. The appeal from conviction
    is dismissed.

[18]

The
    appeal from sentence concerns the sentences imposed for offences related to
    drugs found in the appellants car when he was arrested. In the event the
    conviction appeal related to the drugs found in the living room safe is
    dismissed, the appellant does not pursue the sentence appeal. Accordingly, the
    appeal from sentence is also dismissed.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.