COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lowe, 2018 ONCA 110

DATE: 20180206

DOCKET: C58720 and C58721

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ishmael Lowe and Elijah Lowe

Appellants

Paul J.I. Alexander, for the appellants

David Quayat, for the respondent

Heard: November 16, 2017

On appeal from the conviction entered on November 29,
    2013 by Justice Alison Harvison Young of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2014 ONSC 396, 118 W.C.B. (2d) 363.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellants were both convicted of possession of a controlled
    substance for the purpose of trafficking and possession of proceeds of crime
    over $5000. Elijah was also convicted of possession of proceeds of crime under
    $5000.

[2]

The central issue at trial was the validity of the search warrant
    authorizing the search of Elijahs residence where drugs and money were found. The
    warrant had been obtained using information from a confidential informant (CI).
    As a result, the information to obtain (ITO) had been edited by redacting
    information that might have revealed the informants identity. The redacted ITO
    was insufficient to support the issuance of the warrant. The Supreme Court of
    Canada explained in
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421, at p. 1461,
what can be done in these
    circumstances. The Crown can apply to have the trial judge consider so much of
    the excised material as is necessary to support the authorization. To assist,
    the accused is to be given a judicial summary of the redacted material. This is
    the step six procedure outlined in
Garofoli
. Using the step six
    procedure in this case, the trial judge upheld the validity of the warrant and
    determined that the search was lawful.

[3]

On appeal, it is argued that the trial judge erred in both allowing the
    Crown to use the
Garofoli
step six procedure and in the manner she
    applied it. It is also argued that the CIs tip should not have been relied on
    as it did not satisfy the criteria for assessing reliability outlined in
R.
    v. Debot
,
[1989] 2 S.C.R.
    1140. The appellants also contend that the execution of the warrant at night
    was unreasonable.

[4]

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

B.

FACTS

[5]

Based partly on information from a confidential informant regarding a
    firearm, the police tried to obtain a warrant for the search of Elijah Lowes
    residence at 10 Turntable Crescent, unit 1. After the initial warrant
    application was denied, a new warrant application was submitted which contained
    additional information regarding possession of a handgun by Elijah, his
    vehicle, and the CIs reliability. The warrant was granted.

[6]

On April 15, 2010 at 9:46 p.m., police executed the warrant. Emergency Task
    Force officers entered Elijahs home after using a distractionary device and
    breaching the door. The appellants were present at the scene. Police found approximately
    300 grams of cocaine and $46,000 in cash, but no gun. Before trial, the
    appellants sought to exclude the evidence under ss. 8 and 24(2) of the
Charter
.

C.

Decision below

[7]

The appellants were given a heavily redacted version of the ITO. After
    conceding that the redacted ITO could not support the issuance of the warrant,
    the Crown sought and obtained consideration of the unredacted ITO by the trial
    judge pursuant to step six of the
Garofoli
procedure.

[8]

The unredacted ITO related considerable information obtained from a CI
    that pointed to Elijah being in possession of a firearm. It also contained
    observations made by the affiant, DC Armstrong, and another police officer.
    They observed Elijah keying his entry to 10 Turntable Crescent, unit 1. The ITO
    also contained information drawn from two community information reports (CIR).

[9]

Prior to testifying, the affiant advised the Crown that the summary of
    one of the two CIRs contained a significant error. The summary in the redacted ITO
    erroneously reported that Elijah had previously provided 10 Turntable Crescent,
    unit 1 as his address. In fact, it was Elijahs brother, Ishmael who had given
    the 10 Turntable Crescent, unit 1 address as his own. The CIR was produced to
    the defence and the error was put to the affiant in cross-examination. The
    affiant confirmed the error and had no explanation as to why or how it had been
    made. Given this error, the trial judge excised the portion of the ITO
    containing this reference.

[10]

The
    appellants also cross-examined the affiant on contradictory information
    contained in the redacted ITO regarding the colour of Elijahs vehicle. In
    portions of the redacted ITO, the affiant had stated that the CI and a police
    officer had reported observing Elijahs vehicle and indicated that it was blue.
    In other portions of the redacted ITO, however, the affiant reports that
    Elijahs car had been observed and was grey. Other than the difference in
    colour, the car was consistently reported as being a 4-door Honda Civic with
    licence plate ATBS 297. The trial judge noted the differences in reports as to
    the colour of Elijahs car but concluded that the issue of the car colo[u]r in
    this case was a red herring as there was no doubt about what car was referenced
    due to the other descriptors and identifying details such as the licence plate
    number.

[11]

Another
    issue at trial was the content of the second CIR. The portion of the ITO in
    which that CIR had been summarized was heavily redacted. A judicial summary of
    that portion had been provided and stated as follows:

The redacted information discloses more background details
    regarding the location/circumstances of the observations of the firearm which
    bear on Lowes
modus operandi

and
    of details given by the source which were subsequently corroborated in the
    course of the investigation.

[12]

At
    the end of the hearing on the s. 8 challenge, the trial judge invited the Crown
    to tender the second CIR. Because it contained information that might reveal
    the identity of the CI, it was tendered under seal and not disclosed to the
    defence. Following the production of the CIR itself, the trial judge determined
    that the judicial summary should be amended. After exchanges with the Crown,
    the following sentence was added to the judicial summary:

Part of this corroboration consisted of a C.I.R., where an
    independent police investigation corroborated information which the affiant had
    received from the CI.

[13]

The
    trial judge ultimately concluded that the warrant should be upheld and she
    dismissed the appellants
Charter
application.

[14]

The
    parties then tendered an agreed statement of facts and the appellants were
    found guilty.

D.

ISSUES

[15]

The
    appellants raise four issues:

1.

Did the trial judge err by allowing the Crowns step six application and
    relying on redacted portions of the ITO that the appellants were not able to
    challenge in argument or by evidence;

2.

Did the trial judge err by inviting the Crown to produce new undisclosed
    evidence during the
Garofoli
hearing;

3.

Did the CIs tip meet the
Debot
criteria and was it sufficient
    to justify the issuance of the warrant; and

4.

Was the night search unreasonable?

E.

ANALYSIS

[16]

In
    cases such as the present where it is conceded by the Crown that an authorization
    cannot be supported by the ITO as edited, the Crown may ask the judge to apply
    for step six of the
Garofoli
procedure. This final step in the
Garofoli
procedure allows the trial judge to consider so much of the unredacted
    version of the affidavit as necessary to support the authorization. The Supreme
    Court explained that the trial judge may only consider the redacted information
    if satisfied that the accused is sufficiently aware of the nature of the
    excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461.

[17]

The
    judicial summary plays an important role in providing sufficient information to
    the accused about the nature of the redacted information. However, its function
    is not to reveal all the details as to what was redacted, but to communicate only
    the nature of what has been redacted.

[18]

As
    this court noted in
R. v. Crevier
,
    2015 ONCA 619, 330 C.C.C. (3d) 305,
at para. 72, the trial judge
    must ensure that the accuseds awareness gained through the judicial summary
    and other available information is:

sufficient to allow the accused to mount a challenge of the
    redacted details both in argument
and by evidence
. In other words,
    the accused must, through the judicial summary, cross-examination of the
    affiant, or the leading of evidence, be in a position to mount both a facial
    and sub-facial attack on the warrant, including a challenge to those parts of
    the ITO that are redacted, but relied on by the trial judge. [Emphasis in
    original.]

[19]

In
Crevier
,

at para. 83, this court explained that: the summary
    must provide the accused with a meaningful basis upon which to challenge
    whether the affiant made full and frank disclosure regarding the reliability of
    the informer and his or her tips, as required by
Debot
. In assessing
    whether sufficient detail is provided by the summary, the trial judge should
    examine whether it contains information that could be relevant and does not
    risk revealing the identity of the informer:
Crevier
, at
    para. 84. Examples of this are the sources information, the sources
    relationship with the accused, whether the source previously provided information
    to the police, etc.

[20]

In
    the present case, the appellants mounted a sub-facial challenge to the ITO. As
    explained in
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 50,
    a sub-facial challenge is where the accused goes behind the ITO to attack the
    reliability of its content. As part of that challenge, the appellants
    cross-examined the ITO affiant. They sought to demonstrate that the information
    supporting the issuance of the warrant received from the CI was neither
    compelling nor corroborated, and that he/she was not credible.

[21]

On
    appeal from a reviewing judges decision, the court must be mindful of the test
    that a reviewing judge applies when considering the record for the
    authorization of the search warrant and mindful of the deference owed to the
    reviewing judges decision. The reviewing judges role is to assess whether
    there was at least some or sufficient evidence, as may be amplified on review,
    that might reasonably be believed and on the basis of which the authorization
    of the search warrant could have issued:
Araujo
, at para. 51
; R.
    v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38 and
R. v.
    Lising
, [2005] 3 S.C.R. 343, at para. 8. The reviewing judges decision is
    entitled to deference and, absent an error of law, misapprehension of evidence,
    or a failure to consider relevant evidence, an appellate court should not
    interfere:
Sadikov
, at para. 89.

[22]

I
    turn now to the four grounds of appeal raised by the appellants.

(1)

Did the trial judge err in allowing the Crown to use the step six procedure?

[23]

The
    ITO in this case was heavily redacted. The trial judge provided the appellants
    with a judicial summary of the redacted information. The summary tracked the
    redactions from the ITO but, in four instances, stated that no summary of what
    had been redacted could be provided to the appellants.

[24]

The
    appellants argue that, after acknowledging that certain portions of the
    redacted ITO could not be adequately summarized and disclosed, the trial judge
    nonetheless relied on these portions in confirming the validity of the warrant.

[25]

This,
    they submit, clearly contravened the direction in
Crevier
, at para. 87,

that

when assessing the validity
    of the warrant, the trial judge should disregard those redacted portions the
    nature of which could not be summarized and provided to the accused.

[26]

In
    support of this submission, the appellants point to paras. 44 and 45 of the
    trial judges reasons where she agreed with and cited
R. v. Browne
,
    2013 ONSC 5874, 294 C.R.R. (2d) 57, at para. 37: [t]he reviewing court should
    not set aside the search warrant unless the applicant establishes
on the
    whole of the material presented
that there was no basis upon which it
    could have been issued (emphasis added). This, the appellants maintain,
    demonstrates that the trial judge relied on all of the unredacted ITO in
    reaching her decision to confirm the warrant, including the parts that were not
    summarized.

[27]

I
    would reject this ground of appeal for two reasons. First, the trial judge was
    satisfied that the content or nature of the four passages where she stated that
    nothing more can be released were adequately disclosed by other parts of the
    judicial summary to allow for a sub-facial challenge. In fact, at para. 45 of
    her reasons, she explained that:

The unredacted text surrounding the redacted paragraphs of the
    ITO about which the judicial summary states nothing more can be released does
    and can appropriately be relied upon to provide the defence with sufficient
    information as to the nature of the redacted information. As I have stated
    above, I am satisfied that the redacted ITO as well as the judicial summary
    (and the evidence from the agreed statement of fact and cross examination of DC
    Armstrong) did make the defence sufficiently aware of the nature of the
    redacted information.

As this passage shows, the trial judge did not say
    that the information could not and had not been summarized, despite the
    appellants contention to the contrary.

[28]

Second, the trial judges comment has to be read in the pre-
Crevier
context. Had the trial judge been assisted by the
Crevier
decision
, she likely would have used
    slightly different language in these four instances.
Crevier
instructs
    that a trial judge should provide a summary that, where possible, tracks the
    redactions in the ITO. The judicial summary should inform the accused not only
    of what was redacted but also where in the ITO the redacted information is
    contained. As well, the judicial summary should say if the nature of a
    redaction in a specific paragraph of the ITO cannot be summarized:
Crevier
,
    at para. 85. This was the context for the quotation from
Crevier
relied
    on by the appellants to the effect that redacted portions, the nature of which
    could not be summarized, should be disregarded. The trial judge did not say
    that the nature of what was redacted in those four instances could not be
    summarized, but rather that nothing more can be released.
Nor did the trial judge state that she would rely on
    the redacted parts even if they could not be summarized.

[29]

This court
having reviewed the unredacted
    ITO, it is apparent that there was no prejudice to the appellants ability to
    challenge the redacted information in those four instances in argument or by
    evidence. In two of the instances, the information consisted largely of information
    already summarized in other parts of the judicial summary. In the third
    instance, the redacted text relates to information received by the CI. The
    affiant inquired into that information, but it proved to be of no assistance. Had
    the trial judge had the benefit of
Crevier
,

she may well have
    summarized it in this way even though this would have added nothing useful. In
    any event, this portion of the unredacted ITO would have been essentially
    disregarded or ignored by the issuing justice and by the trial judge.

[30]

With
    respect to the fourth instance of redacted text where the trial judge indicates
    that nothing more could be released, specific information from the CI is
    reported. That information cannot be disclosed without running the risk of
    disclosing the CIs identity. A generic description might have been formulated,
    although it would have added little to the generic descriptions provided in
    other parts of the judicial summary. The addition of generic information in
    lieu of saying nothing more can be released would not, however, have assisted
    the appellants in their sub-facial challenge. They were not prejudiced by the
    trial judges failure to do so.

[31]

As
    for the appellants submission that the trial judges comment in her reasons that
    the right to full answer and defence was attenuated at the pre-trial stage constituted
    an error, this comment must be viewed in its context. The trial judge
    referenced Code J.s similar statement in
R. v. Learning
,

2010
    ONSC 3816, 258 C.C.C. (3d) 68,
a pre-
Crevier
decision.
As explained in
Crevier
,
    at para. 102, the cases using the attenuated phrase did not use it in the
    sense of lessening the right but rather as an acknowledgment that the right is
    of necessity adapted taking into account that it is an admissibility hearing
    and because of the need to maintain [the informer] privilege. I view the trial
    judges reference to the right to make full answer and defence being somewhat attenuated
    in the same sense.

(2)

Did the trial judge err by inviting the Crown to produce a CIR that was
    not disclosed to the accused?

[32]

The
    ITO contained the summary of a CIR. The information it contained corroborated
    critical information provided by the CI. This CIR was viewed by the trial judge
    as being important to her corroboration analysis.

[33]

The
    appellants maintain that the trial judge was not content to rely on the summary
    of the information from the CIR reproduced in the ITO. As a result, she
    requested that the CIR itself be produced by the Crown and provided to her.
    Because it contained information that could serve to reveal the CIs identity,
    it could not be provided to the accused.

[34]

The
    appellants argue that this was an unprecedented expansion of the use of secret
    evidence in a criminal court. It was, in their view, both inappropriate for the
    judge to embark on an evidence-gathering process and to have done so in
    circumstances where that evidence is not disclosed to the accused.

[35]

The
    appellants also maintain that, even if new secret evidence could be introduced,
    the judicial summary of that evidence was inadequate. The accused had no idea
    as to the nature of the information in the CIR, its source, whether it was
    dated, gathered unconstitutionally, or if the affiant had taken any steps to
    confirm its accuracy.

[36]

I
    would dismiss this ground of appeal. Admittedly, the circumstances in which the
    CIR was produced were quite unusual. The affiant had made reference to two CIRs
    in the ITO. He had realized prior to testifying that the summary he had
    included in the ITO for one of the CIRs contained a significant mistake. He
    advised the Crown of the mistake. As noted by the trial judge, the CIR was
    provided to the appellants and they cross-examined the affiant quite
    effectively on the error as well as on other issues.

[37]

The
    trial judge took the unusual step of asking that the second CIR itself be
    provided to her. Contrary to the appellants submission, I do not see this as
    the trial judge taking steps to supplement the record. Rather, it was to ensure
    that information contained in the ITO, the nature of which had been disclosed
    in the judicial summary, was an accurate summary of the CIR. It does not
    constitute amplification in the usual sense, as no new information of
    significance was obtained by the trial judge having access to the CIR itself.

[38]

In
    any event, even if it were considered as amplification evidence, in the unusual
    circumstances of this case I do not consider that the trial judge acted
    improperly in ensuring that the information found in the ITO was an accurate
    summary of the CIR. Amplification evidence may be used to correct good faith
    errors of the police in preparing the ITO, as long as it was available at the
    time of the warrant application:
R. v. Morelli
, 2010 SCC 8, [2010] 1
    S.C.R. 253, at paras. 41-43. In this case, the CIR was available to police
    when it applied for the warrant.

[39]

The
    trial judge considered it appropriate to have the Crown produce the second CIR
    itself. This was due in part to the fact that the affiant had made an error in
    summarizing the first CIR and because much of the detail from this second CIR was
    redacted. Further, the second CIR could not be disclosed to the appellants so
    that they could confirm the accuracy of the summary. Had it been unable to
    support the information contained in the ITO, the reference to the CIR would
    have been excised. As it did support the information contained in the ITO, the
    trial judge was satisfied that the summary could be relied on. The additional
    relevant information drawn from her review of the CIR was added to the judicial
    summary.

[40]

I
    turn now to the appellants concerns regarding the nature of the information in
    the CIR, their inability to cross-examine the affiant on it, its source,
    whether it was dated, gathered unconstitutionally, or if the affiant took any
    steps to confirm the accuracy of the CIR.

[41]

In
    my view, the trial judge was careful to provide a useful judicial summary of
    the information drawn from the CIR that had been redacted from the ITO. She
    supplemented it after the CIR was provided to her. The amended judicial summary
    disclosed that the impugned CIR was obtained in an independent police
    investigation. The affiant testified that he played no role in that
    investigation nor did he follow up with the officers who did. The appellants
    were therefore able to argue that the affiant took inadequate steps to confirm
    the information contained in the CIR, but there would have been little, if any,
    ability to cross-examine the affiant on the contents of the impugned CIR. As
    for the other concerns, a review of the unredacted information clearly
    demonstrates that it was obtained in a constitutional manner during the
    relevant time period.

[42]

The
    appellants also argue that, had the CIR not been provided, the trial judge
    would have been left with a doubt as to the accuracy of the summary contained
    in the unredacted ITO. The appellants then explain that because this
    information was critical to the corroboration element of
Debot
and but
    for its inappropriate production, the trial judge would have found the
    corroboration element to be weak and would have struck the search warrant.

[43]

I
    disagree. It is apparent to me that the trial judge, conscious that an error
    occurred with respect to the one CIR, felt it was prudent and in the accuseds
    interest to verify the accuracy of the summary of the second CIR referenced in
    the ITO. But for its confidential nature, the CIR may well have been provided
    to the accused who could have verified the accuracy of the summary themselves.

[44]

The
    trial judges request that the CIR be produced does not signal disbelief in the
    affiant or in the summary. In fact, the trial judge specifically found that the
    affiant was a credible witness, had not failed in his duty to make full and
    frank disclosure, and had provided reliable information. Given that prior to
    testifying, the affiant had himself identified the error in the first CIR,
    there was no reason to reject his sworn testimony regarding the second CIR even
    in the absence of the supporting document.

[45]

In
    all of the circumstances, I do not consider it to have been improper for the
    judge to have sought production of the CIR and, in any event, the appellants
    were not prejudiced by its production.

(3)

Did the CIs tip meet the
Debot
criteria?

(a)

Did the redactions make it impossible to mount a proper challenge?

[46]

The
    appellants first argument with respect to the
Debot
criteria is that
    the ITO relied heavily on the CIs tip and that the redactions made it
    virtually impossible to mount a proper challenge to it. In
Crevier
, at
    para. 70, this court explained that to give effect to the right to make full
    answer and defence, the accused must be able to mount an effective challenge
    to the ITO and, in particular, challenge in argument or by evidence whether the
Debot
criteria of compellability, credibility and corroboration have
    been met.

[47]

In
    the present case, the focus of the appellants sub-facial challenge of the ITO
    was on whether, in the totality of the circumstances, the CIs tip upon which
    the ITO affiant relied was compelling, credible and corroborated:
Debot
, at p.1168
.

[48]

At
    the outset, it is important to recall, as this court noted in
Crevier
,
    at para. 65, that the ultimate issue in a sub-facial challenge is

not the truth of a confidential informers tips . The fact
    that an informer provided inaccurate or false information to police will be
    relevant only to the extent the ITO affiant knew or should have known it was
    false, because then one of the preconditions for issuing the warrant would not
    have been met: reasonable belief in the existence of the necessary statutory
    grounds.

[49]

In
    my view, the nature of the information redacted is sufficiently clear in the
    judicial summary so as to allow the appellants to pursue their challenge. It,
    together with the redacted ITO, revealed:

a.

That the
    information was based on the informants own observations;

b.

The currency of
    the information (i.e., 2010);

c.

That the
    informant had previously provided information to the Toronto Police Service (in
    cross-examination it was revealed that the informant had provided information
    twice before);

d.

That the
    informant had a criminal record;

e.

That the
    informant had identified a photograph of Elijah Lowe shown by the informants
    handler; and

f.

The degree
    of detail of the information provided by the informant (i.e., particulars
    regarding the locations/circumstances of the observation of a firearm as well
    as description of the nature of the firearm). The summary ultimately
    characterized the information as providing great detail.

[50]

The
    judicial summary also helpfully points out not only what was contained in the
    redacted information, but also what was absent. For example, it advises that the
    unredacted ITO did not disclose whether the criminal record included crimes of
    dishonesty, nor whether other tips received by the CI had proved useful. In
    cross-examination, the affiant also revealed that he did not make any inquiries
    of the officer who prepared one of the CIRs that served to corroborate the
    informants tip.

(b)

Did the CIs tip satisfy the
Debot
factors?

[51]

Alternatively,
    the appellants argue that the CIs tip did not meet the three
Debot
factors. As a result, the trial judge erred in concluding that the issuance of
    the search warrant was supported by the unredacted ITO.

[52]

As
    I will explain, I agree with the trial judges findings that the information
    was highly compelling and corroborated, and that this overcame the weakness in
    the CIs credibility. Her conclusion that in the totality of the circumstances
    the warrant could have issued is well supported:
Canada (Commissioner of
    Competition) v. Falconbridge Ltd.
(2003), 173 C.C.C. (3d) 466 (Ont. C.A.),
    at para. 35;
R. v. Reid
, 2017 ONCA 430, 139 W.C.B. (2d) 115, at para.
    28 and
Debot
, at p. 1168.

(i)

Was the tip compelling?

[53]

It
    was not seriously contested that the tip provided by the CI was compelling. As
    explained by the trial judge:

The CI provided specific information that set out first-hand
    knowledge indicating that he/she had recently observed a firearm. The firearm
    was described with precision. The CI provided a very detailed account regarding
    the date(s), circumstances, location(s) and timing of the observation(s). The
    CI also provided various background particulars about the applicant, including
    his description, and information about the vehicle he drove (a blue four-door
    Honda Civic). The CI also identified or recognized Elijah Lowe from a RICI
    photo that he was shown as the person about whom he/she was providing
    information and stated that he supplied cocaine to bars near Dupont Street and
    Lansdowne Avenue in Toronto.

(ii)

Is the informant credible?

[54]

The
    judicial summary explained that the informant had a criminal record. The summary
    did not, however, disclose whether the criminal record included crimes of
    dishonesty. The summary also revealed that the confidential informant provided
    the information in hopes of receiving some consideration.

[55]

The
    record was amplified to include information that the CI had been used twice in
    the past. The amplification did not, however, give any indication as to how the
    reliability of these additional tips had been assessed.

[56]

Given
    the limited information regarding the CI, the trial judge acknowledged that
    this element of the
Debot
analysis was weak.

(iii)

Has the information been corroborated?

[57]

Given
    the weakness of the second
Debot
criteria, corroboration was of
    particular importance. Here, the appellants attack centered on two points. The
    first is the affiants error in summarizing the CIR. As explained earlier, the
    affiant indicated in the ITO that a CIR revealed that on August 8, 2008 Elijah
    had given 10 Turntable Crescent, unit 1, as his address. However, under
    cross-examination, the affiant acknowledged that it was Ishmael and not Elijah who
    had given this address. This, the appellants argue, constituted a significant
    error and as a result, it was not safe to rely on other details in the unredacted
    ITO which were insulated from challenge.

[58]

The
    trial judge was aware of this error and the fact that the affiant had drawn it
    to the Crowns attention after realizing the error had been made. The trial
    judge correctly determined that the reference to the CIR should be excised from
    the ITO. She determined, however, that this was an inadvertent error by the
    affiant which did not raise issues as to the affiants credibility or
    reliability. This was her assessment to make and I see no basis to interfere
    with it.

[59]

The
    trial judge also considered the second major concern raised by the appellants.
    That concern was that the ITO contains conflicting references to the colour of Elijahs
    car. The registration for Elijahs vehicle shows that it is silver in colour.
    The CI and a police officer who reported observing Elijahs car both described
    it as blue.

[60]

Again,
    I would not interfere with the trial judges conclusion that little weight should
    be placed on this discrepancy in colour. In her view, the affiant properly
    included all of the details reported to him concerning the car even though
    there were inconsistencies. The discrepancy in colour, however, did not
    undermine the central corroborative claim that Elijah drove a four-door Honda
    Civic with licence plate number ATBS 297.

[61]

Moreover,
    the trial judge relied on the fact that the details of the CIs tip about the
    circumstances of the observation of Elijah with a firearm were corroborated by
    a CIR. The contents of that CIR were summarized in the judicial summary. As noted
    earlier, the CIR related information obtained from an independent police
    investigation. Although the details of the CIR were redacted, the nature of its
    contents was disclosed.

[62]

As
    mentioned above, the appellants were not prejudiced by their inability to
    cross-examine the affiant on the CIRs content. The affiant indicated that he
    played no role in the investigation related to that CIR nor had he followed up
    with the officers who prepared it. As a result, there was virtually no basis for
    cross-examination of the affiant on the contents of the CIR. The appellants
    could, however, argue that less weight should be placed on it because of the
    affiants failure to make enquiries of the officers involved.

[63]

When
    the trial judge weighed all of the factors, she concluded as follows:

In this case, the tip was compelling. While the credibility of
    the informant was not strongly established in the ITO, the investigation
    corroborated a number of details, some significant, which, particularly when
    considered cumulatively, compensate for the weakness in the credibility of the
    CI as evidenced by the ITO.

The trial judges conclusion in this regard is
    supported by the record and I see no basis to interfere.

(4)

Was the night search unreasonable?

[64]

Where
    police seek to conduct a night search, s. 488 of the
Criminal Code
provides that the ITO is to include reasonable grounds for the search to be
    executed by night. In the absence of any basis being provided in the ITO for
    the night search, the appellants submit that the search was unreasonable and in
    violation of the s. 8
Charter
rights. A night search is only meant to
    be invoked exceptionally: see
R. v. Sutherland
(2000), 150 C.C.C. (3d)
    231 (Ont. C.A.), at para. 25.

[65]

The
    appellants argue that the ITO provided no basis upon which a night search of
    the premises could be authorized. Under the heading request for night grounds
    in the ITO, there is only one basis listed in support of the request. That
    basis is the belief that evidence is currently located in the premises and that
    delay could result in the potential loss of that evidence. Nothing in the rest of
    the redacted ITO or judicial summary, however, gave any reason to believe that
    the evidence would in fact be lost. As a result, the trial judge ought to have
    found the search to have been unreasonable.

[66]

I
    disagree. The trial judge acknowledged that the record did not support the
    concern that the evidence may be lost if it was not seized in a timely manner.
    She went on, however, to find that the ITO clearly showed that there was a
    basis for the police being concerned about public safety. Although those
    concerns were not specifically articulated as the basis for the request for
    night entry, the circumstances described in the ITO as a whole were sufficient
    to support and justify a night time entry into the targeted address on the
    basis of public safety. As found by the trial judge:

The imminence related not to any evidence that the firearms
    were going to be disposed of or moved, but to the imminence of a threat to
    public safety arising from the firearms as described in the ITO. The ITO set
    out the grounds for believing that there was a firearm in the residence. The
    ITO specifically requested night time authorization and it was granted. The
    requirements of s. 488 were met.

[67]

Therefore,
    in my view, when the circumstances are viewed in their totality, there existed
    reasonable grounds justifying the warrant being executed by night, and the
    trial judges conclusion that the requirements of s. 488 were met is supported
    by the record:
Sutherland
, at para. 27. That conclusion is also owed
    deference by this court, which should decline to interfere with the reviewing
    judges decision absent an error of law, misapprehension of evidence, or
    failure to consider relevant evidence:
Sadikov
, at para. 89.

F.

CONCLUSION

[68]

As
    explained in
Crevier
, the Supreme Court of Canada clearly contemplated
    that an accused would not be privy to all of the information contained in the unredacted
    ITO when it provided for the sixth step of the
Garofoli
procedure. This,
    despite the fact that the information contained in the unredacted ITO would be
    reviewed and relied on by the reviewing judge. This is permissible when the
    summary of the redacted material allows the accused to be sufficiently aware
    of the nature of the excised material to challenge it by argument or by
    evidence:
Crevier
, at para. 97. In the present case, the nature
    of the redacted information was adequately summarized in the judicial summary.

[69]

Where
    step six is followed, the accuseds sub-facial challenge to the ITO is inevitably
    less focused than if the accused had access to all of the details contained in
    the redacted ITO. It is, however, important not to lose sight of the fact that
    a sub-facial challenge attacks the reasonableness and honesty of the affiants
    belief as to the existence of reasonable and probable grounds, and not the
    ultimate accuracy of the information relied on by the affiant. In other words,
    did the affiant know or ought to have known that the information in the ITO was
    false or misleading?

[70]

Taking
    the contested CIR as an example, the challenge is not to the truth of its
    contents, but to the reasonableness of the affiants reliance on it. Here, the
    affiant admitted that he did not follow up on the accuracy of the CIR. The
    appellants can and did argue that the failure to follow up rendered the affiants
    reliance on the contents of the CIR unreasonable. It is then up to the trial
    judge who has access to the unredacted ITO to consider those submissions.

[71]

In
    conclusion, therefore, I see no basis to interfere with the trial judges
    decision and would dismiss the appeals.

Paul Rouleau J.A.

I agree S.E. Pepall
    J.A.

I agree B.W. Miller J.A.

Released: February 6, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lynch, 2018 ONCA 102

DATE: 20180202

DOCKET: C63634

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tabitha Lynch

Appellant

Janani Shanmuganathan, for the appellant

Aaron Shachter, for the respondent

Heard: January 31, 2018

On appeal from the sentence imposed on November 16, 2016
by Justice Lesley M. Baldwin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We are not persuaded that the trial judge made any error. The sentence
imposed on the appellant was if anything lenient in the extreme.

[2]

The appellant is to be commended for her efforts  she has been
drug-free for ten months and we hope she will continue those efforts.

[3]

However, the appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manasseri, 2018 ONCA 136

DATE: 20180212

DOCKET: C61010

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charlie Manasseri

Appellant

Charlie Manasseri, appearing in person

Delmar Doucette, duty counsel

Susan Magotiaux, for the respondent

Heard: February 8, 2018

On appeal from the conviction entered on June 19, 2015
    and the sentence imposed on September 4, 2015 by Justice M. Hoffman of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant advances a single ground of appeal  his trial counsel was
    ineffective because he refused to permit him to testify at his own trial.

[2]

The record does not support this submission. In the cross-examination on
    an affidavit prepared for this appeal, it is clear that the appellant may have
    felt strongly that he wanted to testify but, in the end, accepted his trial
    counsels advice not to do so.

[3]

The appeal as to conviction and sentence is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martinez-Rodriguez, 2018 ONCA 178

DATE: 20180223

DOCKET: C63418

Hoy A.C.J.O., Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mariano Martinez-Rodriguez

Appellant

Eva Taché-Green, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally:  February 12, 2018

On appeal from the conviction entered on September 23,
    2010 and the sentence imposed on September 30, 2010 by Justice J. Westman of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

In September 2010, the appellant was convicted of criminal harassment
    and sentenced to a suspended sentence and two years probation, in addition to
    the 210 days served in pre-sentence custody. For immigration purposes, the
    seven months he spent in pre-sentence custody was deemed to constitute a period
    of imprisonment of more than six months.

[2]

The appellant has abandoned his conviction appeal. He seeks leave to introduce
    fresh evidence and to appeal his sentence on grounds that it was imposed
    without consideration of the collateral immigration consequences that later
    attached to it as a result of amendments to federal immigration legislation introduced
    after he was sentenced.

[3]

The Crown concedes that had these collateral immigration consequences
    been known at the time of the appellants sentencing, they can be expected to
    have affected the result and acknowledges that a suspended sentence with credit
    for six months less a day for pre-sentence custody is a fit sentence within the
    acceptable range for this offence and this offender. The Crown also consents to
    the appellants fresh evidence application.

[4]

Accordingly, the appellants fresh evidence application is granted,
    leave to appeal sentence is granted, and the appeal against sentence is
    allowed. A suspended sentence is imposed with credit for six months less one
    day of pre-sentence custody and two years probation on the terms imposed by
    the trial judge.

Alexandra Hoy A.C.J.O.

Janet Simmons J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntosh, 2018 ONCA 142

DATE: 20180213

DOCKET: C62883

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn D. McIntosh

Appellant

Shawn D. McIntosh, acting in person

Grace Choi, for the respondent

Erika Chozik, duty counsel

Heard: February 6, 2018

On appeal from the conviction entered on April 29, 2016
    and the sentence imposed on March 29, 2016 by Justice Richard T. Knott of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was charged with criminal
    harassment, breach of recognizance (x2) and point a firearm. The appellant pled
    guilty to all offences except pointing a firearm.

[2]

The appellant testified. He was disbelieved. The
    trial judge found that the evidence established guilt beyond a reasonable
    doubt.

[3]

There is no basis to disturb the trial judges
    conclusions. The appellant raised concerns about how his trial was conducted. He
    complains that there was no territorial jurisdiction established to conduct his
    trial. We disagree. The appellant complains that the trial judge misused his
    criminal record. Again, we disagree, but in any event, it had no impact on the
    ultimate result. Finally, we disagree that the trial judge erred in how he
    assessed the victims credibility. The appeal from conviction is dismissed.

[4]

The appellant seeks a one-month reduction in his
    sentence so that he can complete the remaining weeks of his time in a provincial
    institution. There is no basis to make this adjustment when he is so close to
    being released. We also note that the appellant is being held until his warrant
    expiry date. We would not interfere with this process. The appeal from sentence
    is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meads, 2018 ONCA 146

DATE: 20180216

DOCKET: C63093

Sharpe, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Justin Meads

Respondent

Michael Perlin and Jennifer Epstein, for the appellant

Erec Rolfe and Ruchira Kulkarni, for the respondent

Heard: December 18, 2017

On appeal from the constitutional ruling made on November
    18, 2016, and the sentence imposed on December 9, 2016 by Justice M. Fuerst of
    the Superior Court of Justice, with reasons reported at 2016 ONSC 7156 and 2016
    ONSC 8186.

Sharpe J.A.:

[1]

Offenders who do not obtain bail pending trial and sentencing ordinarily
    receive credit of 1.5 days for every day spent in pre-sentence custody. This is
    to account for the fact that no credit is given towards parole eligibility,
    earned remission or statutory release for time spent in pre-sentence custody.
    Enhanced credit for pre-sentence custody ensures that those detained pending
    trial or sentence serve custodial sentences comparable to those served by offenders
    who obtained bail.

[2]

The sole issue raised on this Crown appeal is the constitutionality of the
    second prong of s. 719(3.1) of the
Criminal Code
, which restricts pre-sentence
    custody to 1:1 credit in cases where judicial interim release was cancelled
    because of the accuseds alleged misconduct while on bail (the bail misconduct
    exclusion). This appeal was argued together with
R. v. Hussain
, 2018
    ONCA 147 which also involved a
Charter
challenge to the bail
    misconduct exclusion and these reasons take into account the arguments
    presented in
Hussain
. The reasons in
Hussain
are being
    released at the same time as these reasons.

[3]

Although I accept the Crowns position that the legislative purpose of
    the bail misconduct exclusion is to deter misconduct by those on release, for
    the reasons that follow, I find that the provision is overbroad and violates s.
     7.

FACTS

[4]

Following his arrest February 10, 2015 for home invasion offences,
    Justin Meads sought bail and was released on May 4, 2015 on a recognizance in
    the amount of $100,000 with a surety and conditions. The terms of his release
    included house arrest and required him to wear a GPS ankle bracelet. Meads cut
    off the ankle bracelet and absconded on July 28, 2015. He was arrested on
    August 4, 2015 and charged with two counts of breach of recognizance and was
    held in custody. On December 8, 2015, the Crown sought and obtained
    cancellation of Meads bail on the home invasion charges pursuant to s. 524(8).
    The Crown application was not opposed and Meads did not re-apply for release.

[5]

Meads pleaded guilty to breach of recognizance on July 14, 2016 and was
    sentenced to 30 days custody. He entered a guilty plea to the home invasion charges
    on September 29, 2016 and was sentenced on December 9, 2016.

CHARTER
CHALLENGE

[6]

Prior to being sentenced on the home invasion charges, Meads brought a
Charter
challenge to the bail misconduct exclusion in s. 719(3.1), following the
    cancellation of his bail on account of the breach of recognizance charges.

[7]

Section 719(3.1) was part of the
Truth in Sentencing Act
, S.C.
    2009, c. 29 package of amendments to the
Criminal Code
. Section 719(3)
    provides that a court may take into account any time spent in custody by the
    person as a result of the offence but the court shall limit any credit for that
    time to a maximum of one day for each day spent in custody. Section 719(3.1)
    creates an exception to the requirement that credit for pre-sentence custody be
    restricted to 1:1, providing that a maximum of 1.5 days credit may be given if
    the circumstances justify it. As interpreted by this court and by the Supreme
    Court of Canada, the implications of this exception are very significant. In
R.
    v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, affirming 2013 ONCA 147, 114
    O.R. (3d) 641, the Supreme Court observed that as the time spent in
    pre-sentence custody does not count for purposes of parole eligibility, earned
    remission or statutory release, giving only 1:1 credit for pre-sentence custody
    results in persons held in custody pending sentence serving longer custodial sentences
    than those released on bail. Accordingly, the court held that the mathematical
    quantitative effects of the loss of early release taken alone will generally
    be a sufficient basis to award enhanced credit.

[8]

However, s. 719(3.1) also provides that enhanced credit is not available
    in two situations: first, where the reason for detaining the person in custody
    was stated in the record under subsection 515(9.1); or second, where the
    person was detained in custody under subsection 524(4) or (8).

[9]

The first exclusion, labelled by the sentencing judge as the criminal
    record exclusion, applies where the justices written reasons indicate that bail
    was refused, in the words of s. 515(9.1), primarily because of a previous
    conviction.

[10]

In
R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, the
    Supreme Court of Canada ruled that the criminal record exclusion infringed s. 7
    of the
Charter
. The court found that the denial of enhanced credit was
    a denial of liberty and that the criminal record exclusion was overbroad and
    therefore not in accordance with the principles of fundamental justice.

[11]

The
    second exclusion, the one that applies in this case, is the bail misconduct
    exclusion. It applies where an accused has been released on bail but the bail
    is then terminated pursuant to s. 524(4) (for s. 469 offences) or s. 524(8),
    for all other offences (applicable to the case at bar). In
Safarzadeh-Markhali
,
    the Supreme Court expressly stated that it was not dealing with the bail
    misconduct exclusion.

[12]

Subsections
    524(1) and (2) provide that a person subject to a bail order may be arrested if
    a justice or peace officer has reasonable grounds to believe that the accused
    has or is about to contravene the terms of his or her release, or has
    committed an indictable offence while on release. The person arrested is then
    taken before a justice pursuant to s. 524(8). If the justice finds:

(a) that the accused has contravened or had been about to
    contravene his summons, appearance notice, promise to appear, undertaking or
    recognizance, or

(b) that there are reasonable grounds to believe that the
    accused has committed an indictable offence after any summons, appearance
    notice, promise to appear, undertaking or recognizance was issued or given to
    him or entered into by him,

he shall cancel the summons, appearance notice,
    promise to appear, undertaking or recognizance and order that the accused be
    detained in custody unless the accused, having been given a reasonable
    opportunity to do so, shows cause why his detention in custody is not justified
    within the meaning of subsection 515(10).

[13]

The
    sentencing judge concluded that the bail misconduct exclusion was overbroad and
    violated s. 7. She held that the bail misconduct exclusion has the same
    legislative purpose as the criminal record exclusion, as articulated by the
    Supreme Court in
Safarzadeh-Markhali
:  to enhance public safety and
    security by increasing violent and chronic offenders access to rehabilitation
    programs.

[14]

The
    sentencing judge then listed the ways in which the bail misconduct exclusion overreached
    and caught behaviour outside of this legislative purpose. She noted that it
    catches all individuals who breach or allegedly breach their terms of release
    and are unable to obtain further release  even accused persons who commit minor
    breaches and pose no threat to public safety. The reverse onus provision applicable
    at s. 524 hearings also means that many economically and socially disadvantaged
    persons will fail to gain release and thereby suffer denial of enhanced credit
    for pre-sentence custody even though they are not chronic or violent offenders.
    Similarly, an individual may be acquitted of the alleged breach of conditions
    or offence yet the individual would still be denied enhanced credit for
    pre-sentence custody.

[15]

The
    sentencing judge held that because the bail misconduct exclusion denies 1.5:1
    credit to these classes of individuals, who are not chronic or violent
    offenders and who pose no threat to public safety or security, it is overbroad and
    violates the s. 7 right not to be deprived of liberty except in accordance with
    the principles of fundamental justice. The Crown did not seek to justify s.
    719(3.1) under s. 1 of the
Charter
and the sentencing judge granted a
    declaration of invalidity pursuant to s. 52 of the
Constitution Act
,
1982
.

SENTENCE IMPOSED

[16]

The
    sentencing judge imposed a sentence of five years imprisonment less credit for
    time served in pre-sentence custody fixed at 23 months and 10 days. Although
    she declared the relevant portion of s. 719(3.1) to be unconstitutional, the
    sentencing judge resorted to the common law discretion to deny
enhanced credit for pre-sentence custody where the
    offender was re-arrested and detained because of a breach of bail conditions:
R.
    v. Warren
(1999), 127 O.A.C. 193,

[1999]
    O.J. No. 4591 (C.A.);
Summers
,
    at para. 71.
She recognized that Meads had been sentenced for the breach
    but described the appellants conduct in cutting off the electronic monitoring
    bracelet as a deliberate and flagrant breach of his recognizance for which he
    had offered no explanation. Accordingly, she gave only 1:1 credit for the
    period from the date of the s. 524(8) revocation order to the appellants
    guilty plea on the home invasion charges. However, due to delays in the
    sentencing proceedings, the sentencing judge gave 1.5:1 credit for the period
    from the appellants guilty plea to the date of sentencing, a period of 71 days
    for which Meads received credit of 107 days. Meads does not appeal the denial
    of 1:5:1 credit from the date of the s. 524(8) order revoking his bail until
    the date of his guilty plea.

THE CROWNS APPEAL

[17]

The
    Crown appeals the declaration of invalidity and argues that if it is set aside,
    the sentence should be increased by 36 days as Meads would be statutorily
    barred from receiving enhanced credit of 107 days for the 71 day period
    following the guilty plea.

ANALYSIS

[18]

The
    Crown does not dispute that Meads right to liberty is engaged by the bail
    misconduct exclusion. The issue is whether Meads liberty has been denied in
    accordance with the principles of fundamental justice.

[19]

Before
    the sentencing judge and before this court, Meads argues that the bail
    misconduct exclusion violates the principles of fundamental justice on the
    grounds that: (i) it is overbroad because it targets conduct and individuals
    that bear no relation to its purpose; and (ii) it results in sentences that are
    grossly disproportionate between equally culpable offenders, and to the offence
    and circumstances of the offender. He also argues that as the punishment
    resulting from s. 719(3.1) is grossly disproportionate to what is appropriate
    having regard to the offence and the circumstances of the offender, the bail
    misconduct exclusion also violates s. 12 of the
Charter
.

[20]

The
    focus of Meads submissions, those of Hussain in the related appeal and those
    of the Crown in both appeals was on overbreadth, the ground which the Supreme
    Court in
Safarzadeh-Markhali
found was fatal to the criminal record exclusion.

(i)

Overbreadth and the Legislative Purpose of the Criminal Record
    Exclusion:
Safarzadeh-Markhali

[21]

In
Safarzadeh-Markhali
,
at para. 51, McLachlin C.J. adopted and applied the definition of overbreadth
    stated in
Canada (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3
    S.C.R. 1101, at para. 112:

Overbreadth deals with a law that is so broad in scope that it
    includes
some
conduct that bears no relation to its purpose. In this
    sense, the law is arbitrary
in part
. At its core, overbreadth
    addresses the situation where there is no rational connection between the
    purposes of the law and
some
, but not all, of its impacts. [Emphasis
    in original.]

[22]

The
    first step in the overbreadth analysis is to determine the purpose of the
    impugned law using the method described in
R. v. Moriarity
, 2015 SCC
    55, [2015] 3 S.C.R. 485.
Safarzadeh-Markhali
summarized the
Moriarity
method as follows, at paras. 26-29:

First, the laws purpose is distinct from the means used to
    achieve that purpose:
Moriarity
, at para. 27. A laws means may be
    helpful in determining its objective, but the two must be treated separately.

Second, the laws purpose should be characterized at the
    appropriate level of generality, which resides between the statement of an
    animating social value  which is too general  and a narrow articulation
    that amounts to a virtual repetition of the challenged provision, divorced from
    its context:
Moriarity
, at para. 28.

Third, the statement of purpose should be both precise and
    succinct:
Moriarity
, at para. 29. Precision requires that courts focus
    on the purpose of the particular statutory provision subject to constitutional
    challenge:
ibid
.; see also
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1995] 3 S.C.R. 199, at para. 144.

Fourth, the analysis is not concerned with the appropriateness
    of the legislative purpose. The court must take the legislative objective at
    face value and assume that it is appropriate and lawful:
Moriarity
,
    at para. 30. The appropriateness of a legislative objective may be relevant to
    its constitutionality under other
Charter
provisions. But it has no
    place in the s. 7 analysis of overbreadth.

[23]

The
    sources to be considered to determine the legislative purpose are (1)
    statements of purpose in the legislation, if any; (2) the text, context, and
    scheme of the legislation; and (3) extrinsic evidence such as legislative
    history and evolution:
Safarzadeh-Markhali
,

at para. 31;
Moriarity
, at para. 31.

[24]

The
Truth in Sentencing Act
contains no statement of legislative purpose
    so the purpose of the bail misconduct exclusion falls to be determined by the
    second and third categories of sources. In
Safarzadeh-Markhali
, at
    para. 34, the court derived from the text, context and scheme of the
    legislation the purpose of enhancing confidence in the justice system and
    making the process of giving enhanced credit more transparent. However, that
    purpose is pitched at a high level of generality and, under the
Moriarity
framework, is more of an animating social value than a statement of purpose.
    Turning to the legislative history and ministerial statements made when the
    legislation was introduced, the court found, at para. 47, that the legislative
    purpose of the criminal record exclusion was to enhance public safety and
    security by increasing violent and chronic offenders access to rehabilitation
    programs.

[25]

The
    court found that when the criminal record exclusion was measured against that
    legislative purpose it was overbroad. First, it applied to all persons denied
    bail primarily because of past offences without regard to the seriousness of
    those offences. In other words, it would catch many individuals who are neither
    chronic nor violent offenders and do not pose a threat to public safety. Second,
    at least in some circumstances, the decision to tag a bail decision with an
    endorsement under s. 515(9.1) was unreviewable. This meant that erroneous
    endorsements, or successful appeals from the conviction underlying the
    endorsement, would not be accounted for on sentencing, and that some individuals
    would be denied enhanced credit even though they were not chronic or violent offenders.

(ii)

Significance of
Safarzadeh-Markhali
to this Appeal

[26]

To
    what extent does
Safarzadeh-Markhali
determine the result in this
    appeal? At para. 10, the Supreme Court explicitly declined to rule on the
    constitutionality of the bail misconduct exclusion, so the question is an open
    one.

[27]

The
    issue was considered most directly by two appellate courts before the Supreme
    Courts decision in
Safarzadeh-Markhali
with mixed results. In
R.
    v. Kovich
;
R. v. Bittern
, 2016 MBCA 19, 333 C.C.C. (3d) 1, the
    Manitoba Court of Appeal struck down both the criminal record and the bail
    misconduct exclusion. In
R. v. Chambers
, 2014 YKCA 13, 316 C.C.C. (3d)
    44, leave to appeal refused, [2014] S.C.C.A. No. 534, the Yukon Court of Appeal
    rejected a
Charter
challenge to the bail misconduct exclusion.
    However, in a decision released after these reasons were drafted, the British
    Columbia Court of Appeal departed from
Chambers
, followed
Safarzadeh-Markhali
and struck down the bail misconduct
    exclusion:
R. v. Romanchych
, [2018] BCCA 26.

[28]

Trial
    judges have also reached different conclusions. Both
R. v. Dinardo
,
2015 ONSC 1804, 321 C.C.C. (3d) 525 and
R. v. Norman
, 2015 ONSC 6849, 331 C.C.C. (3d) 550 followed the
    decision of this court in
R. v.

Safarzadeh-Markhali
, 2014
    ONCA 627, 122 O.R. (3d) 97 that the criminal record exclusion violated a
    principle of fundamental justice, namely proportionality in sentencing, and
    applied that reasoning to the bail misconduct exclusion. In
R. v. Hussain
,
    2015 ONSC 7115, [2015] O.J. No. 6159, the trial decision at issue in the
    related appeal, Edwards J. followed
Chambers
(without the benefit of
    the Supreme Courts analysis in
Safarzadeh-Markhali
) and upheld the
    bail misconduct exclusion. However, in
R. v. Campbell
, 2017 ONSC 26, [2017]
    O.J. No. 633, as in the case at bar, McWatt J. applied the Supreme Courts
    analysis in
Safarzadeh-Markhali
and ruled that the bail misconduct
    exclusion was overbroad.

[29]

I
    do not propose to conduct a detailed review of each of these decisions for two
    reasons. First, while the Supreme Courts decision in
Safarzadeh-Markhali
does not determine the result in this appeal, it does lay out a framework for
    analysis that was not available to the courts who decided earlier cases. In particular,
Safarzadeh-Markhali
rejects the proposition that proportionality in
    sentencing is a principle of fundamental justice and holds that the proper way
    to assess the validity of s. 719(3.1) is by way of an overbreadth analysis.
    Second, in the post-
Safarzadeh-Markhali
decisions, including the case
    at bar, and that of the British Columbia Court of Appeal in
Romanchych
,
    it was determined that the legislative purpose behind the bail misconduct
    exclusion is the same as the purpose of the criminal record exclusion. As I
    will explain, I disagree with that reasoning.

(iii)

Legislative Purpose of the Bail Misconduct Exclusion

[30]

Meads
and
Hussain
urge us to accept and apply the Supreme Courts
    finding of legislative purpose in
Safarzadeh-Markhali
to the bail
    misconduct exclusion. If we do so, as the Crown fairly conceded in oral
    argument, there can be no doubt about the result. The bail misconduct exclusion
    catches a significantly greater number of individuals than the criminal record exclusion
    who are neither chronic nor violent offenders in need of rehabilitative
    programming. Bail violations include conduct such as failing to report in a
    timely fashion or failing to observe curfews or other like restrictions.
    Conduct of that nature bears no relation to violence and little meaningful
    relation to the kind of recidivism from which the public requires protection or
    for which offenders require rehabilitation.

[31]

A
    central feature of the Crowns argument on this appeal is that there is a
    different legislative purpose motivating the bail misconduct exclusion and that
    if that purpose is accepted, a different result follows. The Crown argues that
    the legislative purpose of the bail misconduct exclusion is to deter all forms
    of misconduct on release, regardless of the severity of the breach, and thereby
    reduce the number of accused persons in remand pending trial or sentencing and
    enhance public safety and security. The Crown submits that measured against
    that legislative purpose, the bail misconduct exclusion is not overbroad.

[32]

Although
    we are dealing with two exclusions found in the same subsection of the
Criminal
    Code
, I agree with the Crown that there is no reason why the two
    exclusions cannot be motivated by different legislative purposes. The two
    groups identified by the exclusions may be quite different and, in the words of
R. v. Akintunde
, 2015 ONCA 597, 337 O.A.C. 341, at para. 43: It is
    open to Parliament to treat these two groups differently. Misconduct on bail does
    not necessarily give rise to the same concerns as having a prior criminal
    record. It seems to me entirely possible that Parliament could have one purpose
    for limiting credit for pre-sentence custody for those denied bail because of a
    criminal record and a different purpose for according the same treatment to those
    who breach their bail. Identical treatment  namely, the denial of enhanced
    credit for pre-sentence custody  does not require an identical purpose.

[33]

I
    accept that the bail misconduct exclusion is animated by the same social value
    as the criminal record exclusion, namely enhancing public confidence in the
    justice system. However, when one turns to the text, context, and scheme of the
    legislation and the extrinsic evidence relating to legislative history, it is
    my view that a different legislative purpose can be identified.

[34]

I
    agree with the Crowns submission that the manner in which the bail misconduct
    exclusion operates offers some guidance as to its purpose. The exclusion
    attaches consequences to misconduct while subject to a release order. It
    focusses on a specific group of offenders who are granted release but then lose
    it because of their alleged misconduct and cannot thereafter establish that
    they are suitable candidates for release. That group is treated differently
    from those offenders who are denied bail at first instance.

[35]

While
    far from compelling, the legislative history supports the Crowns position on
    the legislative purpose of the bail misconduct exclusion. The legislative
    record suggests that Parliament was concerned about the rising number of
    persons in custody awaiting trial and perceived enhanced credit for
    pre-sentence custody to be a contributor to that problem. The Ministers
    reasoning appears to have been that reducing credit would deter bail violations
    and thereby contribute to a reduction in the remand population.

[36]

The
    Minister of Justice, the Honourable Rob Nicholson, also stated that one
    objective of the
Truth in Sentencing Act
was to encourage good
    conduct by accused persons while on bail:
House of Commons Debates
, 40th
    Parl., 2nd Sess., No. 041 (20 April 2009) at 2419.

[37]

Accordingly,
    I accept the Crowns submission that the legislative purpose of the bail
    misconduct exclusion is to deter misconduct while on release, thereby reducing
    the number of accused persons in remand pending trial or sentencing and enhancing
    public safety and security.

(iv)

Overbreadth Analysis

[38]

Is
    the bail misconduct exclusion overbroad when measured against this legislative
    purpose? In my view, the answer is yes. To paraphrase the
Bedford
test, adopted in
Safarzadeh-Markhali
, there is no rational connection
    between the purpose of the law and some of its impacts.

[39]

The
    bail misconduct exclusion denies enhanced credit where:

(i)

the
    judge or justice finds

·

that the accused has contravened the terms of release; or

·

the accused was about to contravene the terms of release; or

·

there are reasonable grounds to believe that the accused has
    committed an indictable offence while on release (s. 524(4) and (8)); and

(ii)

the
    accused is unable to satisfy the reverse onus of showing cause why his or her
    detention in custody is not justified (ss. 524(9) and 515(10)).

[40]

The
    wording of these provisions leaves open the possibility that the bail
    misconduct exclusion will operate to deny enhanced credit for pre-sentence
    custody to individuals who did not, in fact, violate their bail or engage in
    the misconduct identified by s. 719(3.1).

[41]

A
    hearing before a justice to revoke release pursuant to s. 524(8) is a judicial
    hearing but it is summary in nature. The rules of evidence on bail hearings are
    relaxed (s. 518(1)(d) and (e)), and hearsay and other forms of evidence not
    admissible at trial may be considered: see Gary Trotter,
The Law of Bail in
    Canada
, loose-leaf, 3rd ed.
(Toronto: Thomson Reuters Canada, 2010), at 5-51 to 5-57. Those rules apply to
    revocation hearings: s. 524(12).

[42]

Most
    importantly, the justice does not make a conclusive finding that the accused in
    fact breached the terms of his or her release, was about to breach those terms
    or that the accused committed an indictable offence while on release. That can
    only happen after a trial of the alleged offences where the Crown bears the
    burden of proving on admissible evidence the guilt of the accused beyond a
    reasonable doubt.

[43]

There
    will be many cases where the accused will eventually be acquitted of the
    alleged breach or where the charges leading to revocation of bail are withdrawn
    or stayed. Section 719(3.1) fails to contemplate that possibility. Yet once the
    justice makes an order revoking release, unless the accused can show cause for
    release, the bail misconduct exclusion is triggered and the accused will be
    denied enhanced credit for the resulting pre-sentence custody. As the Manitoba
    Court of Appeal put it in
Kovich
,

at para. 74, [t]he offender is being punished for charges, not
    necessarily for convictions. The result is that through the operation of s.
    719(3.1), some accused will be deprived of liberty on account of conduct that
    he or she did not in fact commit.

[44]

In
    my view, this means that s. 719(3.1) is overbroad. Punishing those innocent of
    misconduct on release bears no rational relation to the legislative purpose of
    deterring misconduct on release.

[45]

Another
    feature of s. 719(3.1) pointing to overbreadth is that s. 524(4) and (8) orders
    are made on the basis of the accuseds failure to show cause that his or her
    detention is not required. The denial of enhanced credit is triggered not by
    the alleged misconduct, but by the fact that the accused subsequently fails to
    show cause. Well-heeled members of society with resources and ties to the
    community will be able to show cause why their detention is not required and preserve
    the availability of enhanced credit.

[46]

I
    agree with Meads submission that poor and socially isolated individuals who are
    alleged to have committed minor breaches of the terms of release will often
    have difficulty satisfying the reverse onus of proving that they are suitable
    for subsequent release because of poverty, mental health and addiction
    problems. Those individuals will be detained not primarily because of actual misconduct
    while on release but because of social and economic disadvantage that makes it
    difficult for them to show cause. As the court in
Kovich
stated, at
    para. 73, [i]n such cases, it is clear the impugned exemption does not deny
    enhanced credit because of bad conduct, but rather because of the inability to
    obtain bail. See also
Dinardo
,
at
    para. 86. Increasing punishment for those who lack the resources to secure
    release bears no rational connection to the objective of deterring misconduct
    on release.

[47]

In
    his very able argument on behalf of the Crown, Mr. Perlin submits that the s.
    524(4) or (8) order revoking release is reviewable and that the mischief of
    attaching punishment for mere allegations of misconduct can thereby be avoided.
    An appeal to this court lies from a s. 524(4) order pursuant to s. 524(6) and
    s. 680. A s. 524(8) order may be reviewed by a judge at any time prior to trial
    (ss. 524(13) and 520). The trial judge can vacate the order at any time (s.
    523(2)(a)) and a justice may vacate the order at the conclusion of the
    preliminary inquiry, unless the index offence is a s. 469 offence (s.
    523(2)(b)).

[48]

In
    my view, the design and wording of s. 719(3.1) and the review provisions make these
    possibilities for post-revocation review an ineffective remedy to redress the
    problems of overbreadth that I have identified.

[49]

The
    provisions providing for review of s. 524(4) and (8) orders provide an avenue
    of redress for an accused who seeks release from custody following the
    revocation of the earlier terms of release. They are not designed or worded in
    a way that is capable of dealing with the issue of credit for pre-sentence
    custody. Even if the s. 524(4) or (8) order were successfully reviewed and
    vacated, the offender will still have been detained in custody under subsection
    524(4) or (8) within the meaning of s. 719(3.1). That period of detention remains
    a fact and cannot be erased or vacated. By its terms, s. 719(3.1) limits the
    pre-sentence credit to be given for that period of custody. To restore enhanced
    credit where the s. 524(4) or (8) order has been successfully reviewed and
    vacated would require an unusually inventive interpretation of s. 719(3.1).

[50]

Another
    problem is that the charges leading to the s. 524(4) or (8) order will often be
    dealt with after the offender is sentenced and denied enhanced credit for
    pre-sentence custody pursuant to s. 719(3.1). Those charges may be withdrawn,
    stayed or the accused may be acquitted, after the accused is sentenced and
    denied enhanced credit for the pre-sentence custody that flowed from those
    charges. Mr. Perlin submits that s. 523(2)(c) provides an answer to this
    problem. That section provides that with the consent of the accused and the
    prosecutor, a s. 524 order may, on cause being shown, be vacated by a judge
    or justice up until the accuseds trial is completed. Mr. Perlin argues that
    this would allow the offender to have the s. 524 order vacated after sentence
    and use the order vacating the s. 524 order as fresh evidence on a sentence
    appeal to the Court of Appeal.

[51]

I
    am unable to accept the contention that s. 523(2)(c) provides an effective
    remedy. First, review would depend in almost all cases upon the offender
    obtaining the consent of the prosecutor. It would, of course, be in the best
    tradition of the role of the prosecutor to give consent but I do not think that
    an offenders constitutional rights should be contingent upon prosecutorial
    consent. Furthermore, there is no consensus as to the meaning of consent in
    this provision: Trotter, at 8-78 to 8-80. Second, by its terms, s. 523(2) is
    intended to deal with orders that are operational at the time of the review. The
    possibility of an order being vacated under s. 523(2)(c) is available only
    until [the accuseds] trial is completed. It would be arguable that once the
    s. 524(4) or (8) order is spent upon the conviction of the accused, an attempt
    to review it would be moot. Third, there remains the problem I have already
    identified, namely, that vacating a s. 524(4) or (8) order cannot erase the
    fact that the offender was detained in custody under s. 524(4) or (8) within
    the meaning of s. 719(3.1).

[52]

Finally,
    the possibility of review cannot cure the overbreadth that flows from the fact
    that s. 524(4) and (8) orders are made on the basis of the accuseds failure to
    show cause why he or she should not be detained pending trial, and not on the
    basis of the alleged breach of release or alleged commission of an indictable
    offence.

[53]

I
    conclude that the avenues of review for s. 524(4) and (8) orders identified by
    the Crown do not provide a persuasive answer to the problem of overbreadth
    created by s. 719(3.1).

SECTION 1

[54]

The
    Crown concedes that if s. 719(3.1) infringes s. 7 of the
Charter
, it
    cannot be saved by s. 1.

OTHER GROUNDS

[55]

Given
    my conclusion with respect to s. 7 and overbreadth, it is unnecessary for me to
    consider the arguments relating to gross disproportionality or cruel and
    unusual punishment under s. 12.

DISPOSITION

[56]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree L.B. Roberts
    J.A.

I agree Fairburn J.A.

Released: February 16, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Oddi, 2018 ONCA 120

DATE: 20180207

DOCKET: M48191 and M48388 (M47930)

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert James Oddi

Applicant

Albert Oddi, acting in person

Michael McEachren, for the responding parting

Heard and released orally: January 30, 2018

REASONS FOR DECISION

[1]

There are two motions before this court: (1) to review the order of the chambers
    judge refusing an order to extend time to appeal a forfeiture order made by Watson
    J. April 11, 2007; and (2) for an order appointing counsel representing his
    interests in the within matter.

[2]

In his reasons the motion judge set out correctly the test to be met by
    a litigant who seeks an extension of time to appeal.

[3]

As to the first issue, the motion judge concluded: Mr. Oddis attempt
    to now challenge the agreed upon forfeiture order because of the burdens it has
    caused him lacks merit. We agree. The forfeiture order in question was the
    subject of a joint submission in relation to Mr. Oddis plea of guilty to a
    number of criminal offences. The order as originally drafted orders forfeiture
    of $120,000 as offence related property. Watson J. who was the sentencing
    judge changed offence-related property to proceeds of crime. Now more than
    a decade after the fact, Mr. Oddi seeks to appeal that portion of the
    forfeiture order. There is no record before this court in relation to what
    submissions were made to the court at the time and what facts Mr. Oddi admitted
    to on his plea of guilty. In short there is simply no evidence that would
    support any basis for Mr. Oddis proposed appeal.

[4]

As the result, there is no need to appoint counsel on his behalf even if
    there were any evidence before this court  and there is not  to support his
    claim. There is only his own evidence that he is unable to afford counsel and
    the evidence before this court would suggest otherwise.

[5]

The motions to review and to appoint counsel are both dismissed.

J.
    MacFarland J.A.

G. Pardu
    J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Powell, 2018 ONCA 131

DATE: 20180209

DOCKET: C55866

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Powell

Appellant

Derek Powell, appearing in person

Grace Choi, for the respondent

Heard: February 5, 2018

On appeal from the conviction entered on January 25, 2011
    and the sentence imposed on July 11, 2012 by Justice Margaret P. Eberhard of
    the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant makes a lengthy submission that does nothing more than
    attack the factual findings of the trial judge. He calls the principal
    witnesses, the complainant and her mother, liars and challenges the professional
    integrity of the Barrie Police and the prosecutor.

[2]

There is no merit in any of this. The appeal is dismissed.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2) Subsection (1) does not apply

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.K., 2018 ONCA 109

DATE: 20180205

DOCKET: C63547

Juriansz, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.K.

Appellant

Ian B. Kasper, for the appellant

Elena Middelkamp, for the respondent

Heard: February 2, 2018

On appeal from the conviction entered on October 11, 2016
    and the sentence imposed on November 4, 2016l by Justice Anton Zuraw of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

In light of the Crowns appropriate concession
    that the sentence imposed exceeded the maximum available under the
YCJA
, it is for this court to craft a fit sentence. It is unnecessary to
    deal with the other grounds raised.

[2]

Recognizing the seriousness of the offences, and
    considering the fresh evidence, which the Crown concedes shows the appellant
    has made rehabilitative strides, we would vary the sentence to one of 24
    months custody and supervision broken down as follows: 16 months secure
    custody and 8 months community supervision, 494 days of custody shall be
    credited against this sentence. The custodial sentence to be followed by 12
    months probation on the following terms: report to a probation officer as
    directed, reside at an address approved by the probation officer, attend school
    or seek and maintain employment, and actively participate in counselling as
    directed by probation and sign releases to allow probation to monitor the
    counselling, and abide by any curfew imposed by the probation officer, and not
    purchase, possess or consume any drugs stated in the
CDSA
except with a medical prescription.

[3]

Leave to appeal sentence is granted and the
    appeal is allowed and the sentence varied as set out above.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reyes, 2018 ONCA 156

DATE: 20180214

DOCKET: M48751 (C64769)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Althea Reyes

Moving Party

Althea Reyes, in person

Andrea Baiasu, for the respondent

Heard: In writing

Motion for directions.

Watt J.A.:

[1]

Althea Reyes is self-represented. Sometimes, she has a lawyer. She still
    may have a lawyer. At least for the time being. I say this because this is one
    of those cases where lawyers come and lawyers go. Discharged. Or removed from
    the record at their own request.

The Background

[2]

Althea Reyes is charged with failure to comply with a term of a
    recognizance on which she was released from custody on various charges. The
    breach alleged is that she failed to reside with her surety as the recognizance
    required her to do.

[3]

It seems that the Crown elected to proceed summarily
[1]
.
    The trial was scheduled for February 2, 2017 but was not completed on that day.
    To this day, the trial remains a work in progress.

[4]

The evidence portion of the trial has been completed but no submissions
    have been made or decision rendered. Several dates have been fixed for
    submissions. On each date, Ms. Reyes has failed to appear. Two counsel, who
    previously represented her, have asked to be removed from the record. In both
    instances, the trial judge acceded to their request.

[5]

On September 8, 2017, after several occasions on which Ms. Reyes failed
    to appear, the presiding judge issued a bench warrant with discretion
    returnable on September 12, 2017. Ms. Reyes did not appear. Another counsel appeared
    on her behalf with a designation under s. 650.01(1) of the
Criminal Code
.
    The trial judge refused to accept the designation because another lawyer was
    already counsel of record. Ms. Reyes did not appear. After having extended the
    bench warrant with discretion on several occasions, the trial judge finally
    ordered that the warrant be executed on December 15, 2017.

The Motion to Quash the Bench Warrant

[6]

On December 18, 2017 Ms. Reyes, represented by yet another counsel,
    moved to quash the bench warrant issued by the trial judge to compel her
    appearance for the completion of the trial. The motion was dismissed.

The Appeal

[7]

Ms. Reyes has filed a notice of appeal in this court from the order of
    the judge of the Superior Court of Justice who dismissed her motion to quash
    the bench warrant. The appeal has not been perfected.

The Motion

[8]

By this motion in writing, Ms. Reyes seeks an order:

i.

directing the trial judge to hear motions filed with the trial court and
    previously scheduled for hearing, in advance of the hearing of the outstanding
    appeal from the dismissal of the motion to quash; and

ii.

expediting the hearing of the motions and permitting counsel for Ms.
    Reyes to set a trial date.

[9]

According to the notice of motion filed in this court, styled as a
    Motion for Directions, the motions outstanding before the trial judge seek:

i.

a mistrial based on the erroneous reception of inadmissible evidence;

ii.

dismissal of the charges for lack of evidence; and

iii.

any other remedy under ss. 24(1) and/or 52(1) of the
Charter
for breach of the right to full and timely disclosure or the
    unconstitutionality of s. 145(3) of the
Criminal Code
.

Discussion

[10]

As
    I will briefly explain, the orders sought on this motion are unavailable.

[11]

To
    begin, it is beyond controversy that appellate courts are creatures of statute.
    Their jurisdiction is defined and circumscribed by the enabling statutory
    authority. Likewise, rights of appeal are entirely statutory. So to, the
    remedies available from panels and single judges of appellate courts, on
    appeals properly before the court.

[12]

In
    this, a criminal case, an appellants rights of appeal and the authority of a
    panel or single judges of this court to dispose or otherwise deal with the
    appeal are defined and limited by the
Criminal Code
. It follows that
    any remedy sought or relief claimed on a Motion for Directions to a single
    judge must fall within the remedies or relief authorized by the
Criminal
    Code.

[13]

The
    only appeal that Althea Reyes has in this court is one, authorized by s. 784(1)
    of the
Criminal Code,
from the decision refusing to quash the bench
    warrant issued for her arrest by the trial judge. That appeal is her only
    gateway to this court. Any remedy she seeks from a panel or single judge of this
    court must have its origins in that appeal.

[14]

Recall
    the relief sought here. To repeat:

i.

directing the trial judge to hear motions filed with the trial court and
    previously scheduled for hearing, in advance of the hearing of the outstanding
    appeal from the dismissal of the motion to quash; and

ii.

expediting the hearing of the motions and permitting counsel for Ms.
    Reyes to set a trial date.

[15]

Keep
    in mind the issue on the outstanding appeal from the motion to quash the bench
    warrant: the jurisdiction of the trial judge to issue a bench warrant to compel
    the personal attendance of the accused in summary conviction proceedings. In
    other words, the issue is whether the trial judge exceeded her discretionary
    authority under s. 800(2) of the
Criminal Code
in issuing the warrant.

[16]

The
    directions sought by this motion have nothing to do with the outstanding appeal
    under s. 784(1) of the
Criminal Code
or with the perfection, hearing
    or determination of that appeal to this court. The absence of any such nexus
    puts paid to the relief claimed.

[17]

Second,
    Ms. Reyes has no stand-alone right to the relief sought in the absence of a
    link to her appeal from the dismissal of her motion to quash. The Crown elected
    to proceed by summary conviction. The appellant forum in such cases is the
    appeal court as defined in s. 812(1)(a) of the
Criminal Code
, that
    is to say, the Superior Court of Justice sitting in the region where the
    adjudication is made. That is not this court. And that appeal must await final
    disposition, not be advanced
in limine litis
.

[18]

Third,
    the provisions of the
Courts of Justice Act
, RSO 1990, C. 43, in
    particular s. 134(2), is of no assistance to Ms. Reyes. These proceedings are
    not governed by provincial legislation, rather controlled by the
Criminal
    Code
and the enabling rules of court passed pursuant to s. 482(1) of the
Criminal
    Code
. As we have seen, the cupboard of authority under those provisions is
    bare.

[19]

Finally,
    the authority of this court to review proceedings taking in courts of first
    instance does not extend to our superintendence of ongoing proceedings. We are
    not entitled to reach in to the conduct of trial proceedings to dictate to
    trial judges when and how to hear and determine motions advanced by the
    parties, whether they seek exclusion of evidence, provision of disclosure, a
    stay of proceedings or simply matters of scheduling. We await the conclusion of
    the trial proceedings to review their conduct.

Conclusion

[20]

The
    motion is dismissed, the relief sought refused.

David Watt J.A.

[1]
I use the term seems because of a passage in the motion judges reasons which
    refers to s. 800(2) of the
Criminal Code
. The motion record does not
    contain a copy of the information.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Syed, 2018 ONCA 161

DATE: 20180216

DOCKET: C63075

Hoy A.C.J.O., Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashique Syed

Appellant

Michael A. Crystal, for the appellant

Helena Solin, for the respondent

Heard: February 13, 2018

On appeal from the conviction entered on October 14, 2016
    and the sentence imposed on January 30, 2017 by Justice N.M. Karam of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant submits that the trial judge erred
    in concluding that the appellant had possession of the cocaine and
    hydromorphone found in a safe in the basement room the appellant had rented.

[2]

The appellants tenancy ended some two or three
    weeks before the landlords discovery of the drugs. The appellant had rented a
    room for 30 days. His landlord lived in the home but did not give the appellant
    a key to the house. The landlord was reclusive and did not permit visitors. The
    home had an alarm system; on the rare occasions that the landlord left the
    house, he locked it and set the alarm. Even the appellant could not get into
    the house when the landlord was out. When the landlord went to the basement to
    clean it, some two or three weeks after the appellants departure, he found
    materials in an open red safe that caused him concern. The landlord called
    police who removed drugs, some $15,000 worth of cocaine and hydromorphone from
    the safe. When the appellant came to the landlords home as earlier agreed to
    retrieve his personal possessions he was arrested by police, who found the key
    for the red safe on the appellants person.

[3]

The trial judge correctly observed that the
    evidence was circumstantial, and that in order to establish possession, the
    Crown had to prove knowledge of and control over the drugs, beyond a reasonable
    doubt.

[4]

The trial judge found the landlord credible, and
    accepted his evidence that no one else had entered the home in the period
    between the appellants departure and the discovery of the drugs. He accepted
    that the appellant had been the last and only person to occupy the area where
    the drugs were found. He concluded that the appellant must have been confident
    that the drugs were secure in the basement, given his landlords reclusive
    nature, and that no other person would have left such valuable drugs in the
    basement.

[5]

The appellant submits that the trial judge erred
    in several respects:

1.

He misapplied the law on circumstantial evidence
    by (a) failing to appreciate that a reasonable doubt can arise from a lack of
    evidence; and (b) failing to consider other reasonable possibilities.

2.

He failed to sufficiently consider that the
    presence of a health card registered to an unknown person, in the safe beside
    the drugs could give rise to a reasonable doubt.

3.

He placed too much emphasis on the landlords
    demeanour while testifying.

[6]

We do not agree.

[7]

The trial judge did not err in his approach to
    this case that depended on circumstantial evidence. The trial judge expressly
    referred to and considered the evidence which the appellant says should have
    raised a reasonable doubt, including the evidence that a third partys health
    card was found in the safe. The fact that the landlord gave a house key to his elder
    brother on occasions when the landlord was out of the country, or that the
    appellants other brother, who was involved in drug related activities, came to
    the front door on one occasion but did not enter the house did not undermine
    the trial judges acceptance of the landlords evidence that no one else
    entered the basement premises during the relevant period. Nor are we persuaded
    that the trial judge over-emphasized the landlords testimonial demeanour.

[8]

The trial judges conclusion that he was satisfied
    beyond a reasonable doubt that the appellant had knowledge of and possession of
    the drugs was logically based on the evidence before him, was reasonable, and free
    of error.

[9]

Accordingly, the appeal from conviction is
    dismissed, and as the sentence appeal is dependent on the success of the
    conviction appeal, leave to appeal sentence is refused.

Alexandra Hoy A.C.J.O.

Janet Simmons J.A.

G. Pardu J.A.