COURT OF APPEAL FOR ONTARIO

CITATION: Posocco v. Battista, 2016 ONCA 419

DATE: 20160531

DOCKET: C61169

Laskin, Pepall and Brown JJ.A.

BETWEEN

Claudio Posocco

Applicant (Appellant)

and

Felice Battista, Domenic Battista, Casimiro
    Holdings Inc., and Justam Holdings Limited

Respondents (Respondents)

Ronald Birken, for the appellant

Andrea M. Habas, for the respondents Felice Battista and
    Domenic Battista

Christopher E. Reed, for the respondents Casimiro
    Holdings Inc. and Justam Holdings Limited

Heard: April 26, 2016

On appeal from the Judgment of Justice Suhail A.Q. Akhtar
    of the Superior Court of Justice, dated October 8, 2015.

Brown J.A.:

I.        OVERVIEW

[1]

At issue on this appeal is the enforceability of a judgment obtained
    against the appellant, Claudio Posocco, on a guarantee he gave in 2011 to
    secure an extension of the mortgage his company, Sedona Lifestyles (Dixie) Inc.,
    had granted to Nancy Battista. After Nancys death in 2011, her interest in the
    mortgage passed to her sons, the respondents Felice Battista and Domenic
    Battista (the Battistas). They obtained an unopposed judgment, dated February
    21, 2014, on the guarantee against Posocco in the amount of $794,471.41 (the
    Posocco Judgment).

[2]

In September 2015, Posocco applied for orders setting aside the Posocco
    Judgment and related writs of seizure and sale. He argued that when, in 2014, the
    Battistas postponed their first mortgage in favour of two other mortgages on
    the Sedona property, they materially altered the risk on his guarantee, thereby
    terminating it.

[3]

The application judge dismissed the application. Posocco appeals,
    seeking to set aside the Posocco Judgment and related writs. He also seeks a
    declaration that his guarantee has become void and unenforceable, relief he
    did not request in his notice of application.

[4]

I would dismiss the part of the appeal that seeks to set aside the
    Posocco Judgment. In my view, the application judge reasonably interpreted
    Posoccos guarantee as permitting the Battistas to postpone their first
    mortgage without Posoccos consent, and the validity of the Posocco Judgment
    was not affected by the postponements. However, I would allow that part of the
    appeal based on the fresh evidence Posocco filed about a foreclosure judgment
    obtained on the Sedona property. In my view, the fresh evidence raises an issue
    about the effect of the foreclosure judgment on the enforceability of the
    Posocco Judgment and related writs. I would remit that issue back to the
    application judge for a further hearing.

II.       FACTS

[5]

The material facts are not in dispute. Posocco is the president of
    Sedona, which owned a development property in Mississauga. In November 2008,
    Sedona granted a one-year first mortgage on the property to Nancy Battista in
    the principal amount of $700,000 (the Battista Mortgage).

[6]

The Battista Mortgage matured in November 2009. Several extensions to
    the mortgage maturity date were granted. To obtain one of the extensions,
    Posocco provided a personal guarantee to the Battistas dated December 22, 2011,
    guaranteeing due payment by Sedona of all sums of money loaned by the Battistas
    to Sedona (the Guarantee).

[7]

The Battistas granted a final extension of the mortgage until December
    31, 2012. Sedona did not pay the mortgage. The Battistas commenced an action on
    their mortgage.

[8]

By then, Sedona had granted two subsequent mortgages against its property:
    a second mortgage for $1 million to the respondent, Casimiro Holdings Inc.
    (Casimiro), and a third mortgage for $450,000 to Raimondo Holdings Inc.,
    which was assigned to Casimiro in September 2014.

[9]

On June 19, 2013, the Battistas obtained a consent judgment ordering the
    sale of the property and granting judgment against Sedona in the amount of
    $758,540.32 (the Sedona Judgment).

[10]

The Battistas then commenced an action on the Guarantee against Posocco,
    and obtained the Posocco Judgment on February 21, 2014.

[11]

On February 25, 2014, the Battistas filed a writ of seizure and sale against
    Posocco in respect of the Posocco Judgment.

[12]

On April 7, 2014, the Battistas assigned their beneficial interest in
    the Battista Mortgage, the Guarantee, the Posocco Judgment, and the Sedona
    Judgment to Justam Holdings Limited, a company with the same principal as Casimiro,
    Mr. Jose Casimiro. The assignment of the interest in the Battista Mortgage was
    not registered on title because, under the assignment agreement, the Battistas
    continued to hold legal title to all debt claims against Sedona and Posocco.
    Justam gave notice of the assignment to Posocco by counsels letter of April
    29, 2014. Posocco does not suggest that the assignment was not permitted by the
    terms of the Battista Mortgage.

[13]

On September 23, 2014, Raimondo transferred its third mortgage to
    Casimiro. So, by that point in time, companies controlled by Jose Casimiro held
    the three mortgages on the Sedona property.

[14]

Then occurred the two events that lie at the heart of this appeal.

[15]

First, on May 22, 2015, postponements of the Battista Mortgage to the
    second and third mortgages then held by Casimiro were registered on title. At
    the time, Posocco was not aware of the postponements, nor did he consent to
    them.

[16]

Next, Casimiro commenced a foreclosure action in June 2015 under its
    mortgage which, prior to the postponements, had stood second to the Battista
    Mortgage. The statement of claim was served on Posocco.

[17]

Casimiro obtained a judgment on August 14, 2015 foreclosing the right,
    title and equity of redemption of Sedona and the Battistas in the property. That
    Foreclosure Judgment was not before the application judge, and Posocco seeks to
    adduce fresh evidence about it.

[18]

In September 2015, Posocco started an application to set aside the
    Posocco Judgment and related writs. In support of his application, Posocco
    deposed that the postponements of the Battista Mortgage to Casimiros second
    and third mortgages materially altered the risk he had assumed in giving his Guarantee
    because the postponements rendered the Battista Mortgage worthless. Posocco
    argued that, as a result of that material change to which he had not given his
    consent, his Guarantee was no longer enforceable.

[19]

The application judge dismissed Posoccos application. He interpreted
    the Guarantee as permitting the postponement of the Battista Mortgage without Posoccos
    consent.

III.       THE STANDARD OF REVIEW

[20]

In his submissions, Posocco does not address the standard of review
    applicable to the application judges interpretation of the Guarantee, but he
    argues that a proper interpretation of the Guarantee would arrive at a
    different result than that reached below.

[21]

The respondents submit that the interpretation of a non-standard form
    contract, such as the Guarantee, raises a question of mixed fact and law, which
    attracts review on a palpable and overriding error standard, unless extricable
    errors of law are evident:
Sattva Capital Corp. v. Creston Moly Corp
,
    2014 SCC 53;
Energy Fundamentals Group Inc. v. Veresen,
2015 ONCA 514,
    at para. 29.

[22]

There is no dispute that the Guarantee was prepared by the Battistas.
    However, the Guarantee is not a pre-printed contract of adhesion prepared by an
    institutional lender, the interpretation of which would attract review on a
    correctness standard:
MacDonald v. Chicago Title Insurance Company of
    Canada,
2015 ONCA 842, at paras. 40-41. The Guarantee was sought by the
    estate of an individual lender in response to requests by Sedona to extend the
    term of the Battista Mortgage. The language of the Guarantee affects only the
    legal obligations of the present parties  the Battistas (and their assigns)
    and Posocco. As a result, the
Sattva
standard of review applies to the
    interpretation of the Guarantee.

IV.      THE ISSUES

[23]

Posocco raises three main issues on this appeal:

(i)

The first issue focuses on the changes in the
    guarantors risk permitted by the terms of the Guarantee. Posocco argues the application
    judge erred in interpreting the Guarantee as allowing the creditor, the
    Battistas, to postpone the Battista Mortgage to other security, without
    Posoccos consent, and without terminating Posoccos liability under the
    Guarantee;

(ii)

The second issue focuses on the effect of the
    postponement of a mortgage on a guarantors subrogation rights to any security
    held in respect of the guaranteed obligation. Posocco submits the postponement
    of the Battista Mortgage rendered it worthless. The resulting inability of the
    Battistas to return valuable mortgage security to Posocco in the event he paid
    the Posocco Judgment rendered the Guarantee unenforceable; and

(iii)

The third issue focuses on the effect of
    foreclosure on the obligation to pay the mortgage debt, which is the guaranteed
    obligation. The fresh evidence shows that Casimiro obtained and registered the
    Foreclosure Judgment. Posocco contends that by foreclosing on the right, title
    and interest of Sedona and the Battistas in the property, Casimiro looked to
    the property to satisfy its claims. As a result, the Posocco Judgment and
    associated writs should not be enforced.

V.       FIRST ISSUE: THE INTERPRETATION OF THE
    GUARANTEE

The applicable principles of
    interpretation

[24]

In his reasons, the application judge correctly identified the basic
    principles concerning how a material alteration of the terms of the underlying contract
    of debt affects a guarantors continuing liability under a guarantee: (i) at
    common law and equity,
a guarantor will be released from liability on a guarantee in
    circumstances where the creditor and the principal debtor agree to a material
    alteration of the terms of the contract of debt without the consent of the
    guarantor; however, (ii) it is open to the parties to make their own
    arrangements, so a guarantor can contract out of the protection afforded by the
    common law or equity:
Manulife Bank of Canada v. Conlin
, [1996] 3 S.C.R.
    415, at paras. 2 and 4.

[25]

The application judge also correctly
    recognized
that determining the continuing liability of a guarantor
    requires
determining the intention of the
    parties as demonstrated by the words of the guarantee, as well as the events
    and circumstances surrounding the transaction as a whole:
Conlin
, at para. 6.

[26]

The
Conlin
decision summarizes several additional principles of
    interpretation applicable to guarantees:

(i)
    any contracting out of a guarantors protection against a material alteration
    of the terms of the contract of debt without his consent must be clear;

(ii)
    whether the guarantor contracted out of those protections must be determined by
    an interpretation of the clauses of the agreement, through a consideration of
    the transaction as a whole, and the application of the appropriate rules of
    construction;

(iii)
    any ambiguity in the terms used in the guarantee should be construed against
    the party which drew it by applying the

contra
    proferentem

rule;

(iv)
    if there is a doubt or ambiguity as to the construction or meaning of the
    clauses binding the guarantor, they must be strictly interpreted and resolved
    in favour of the guarantor; and

(v)
    the clauses binding guarantors must be strictly construed:
Conlin,
at paras. 4, 8, 15 and 22.

The Meaning of s. 2(iii) of the
    Guarantee

[27]

The dispute between the parties is a narrow one, with each advancing
    different interpretations of s. 2(iii) of the Guarantee which reads as follows:

2. The Guarantor agrees (except
    as specifically stated) as follows:

(iii) The Creditor, in its
    absolute discretion and without diminishing the liability of the Guarantor, may
    grant time or other indulgences to the Borrower or any other person or persons
    liable to the Creditor in respect of the principal sum and interest and may
    give up, modify, vary, exchange, renew or abstaining from, perfecting or taking
    advantage of any Promissory Note, or any security in whole or in part, and may
    discharge any part or parts or accept any composition or arrangement or realize
    upon the Promissory Note or any security when and in such manner as the
    Creditor or any officer thereof may think expedient, and in no case shall the
    Creditor be responsible for any neglect or omission with respect to any such
    security. Any accounts settled or stated by or between the Creditor and the
    Borrower or admitted by or on behalf of the Borrower may be adduced by the
    Creditor and shall in that case be accepted by the Guarantor as conclusive
    evidence that the balance or amount thereof thereby appearing is due by the
    Borrower to the Creditor.

[28]

Posocco acknowledges that where a
    guarantee is given as further security for a mortgage debt, a guarantor can
    agree that a postponement of the underlying mortgage security will not affect
    his liability on the guarantee. However, he argues that on a proper and narrow
    interpretation of s. 2(iii) which resolves any ambiguity in his favour, the
    section only deals with affairs between the creditor, the Battistas, and the
    borrower, Sedona, and does not include language which would allow the creditor
    to postpone its mortgage security to a third party - such as another creditor -
    without Posoccos consent.

[29]

For their part, the respondents point to the language in s. 2(iii)
    stating that the creditor
may give up, modify,
    vary, exchange, renew or abstaining (sic) from, perfecting or taking advantage
    of  any security in whole or in part. This language, they contend, permits
    the creditor to postpone the Battista Mortgage to other third party mortgages
    on the Sedona property without the consent of the guarantor, Posocco.

[30]

The application judge accepted the respondents interpretation of s.
    2(iii) of the Guarantee stating, at paras. 7-8:

Under the terms of the Guarantee, the applicant undertook
    liability notwithstanding any neglect or default of the creditor which might
    otherwise operate as a discharge, whether partial or absolute, of the Guarantor
    if it were a surety only of the Borrower: para. 2(ii) of the Guarantee. The
    applicant also explicitly contracted to allow the creditor to vary any
    security, in whole or in part, without the creditor being responsible for any
    neglect or omission with respect to any such security: para. 2(iii) of the
    Guarantee.

The language used in the Guarantee indicates that the intention
    of the parties was to ensure that the applicants liabilities remained
    extremely broad even if the mortgage arrangements were altered in a material
    fashion. The terminology contained in para. 2(iii) permitting the creditor to
    vary any security in whole or part must be read to include the subordination
    or postponement of the mortgages. It follows therefore that I reject the
    applicants argument that the terms postponement and subordination were
    required to be expressly stipulated in these paragraphs before the applicant
    could be held to have contracted out of his common law protection. By agreeing [to]
    the terms of the Guarantee, the applicant, agreed to forgo his common law
    rights.

[31]

In my view, the application judge arrived at a reasonable interpretation
    of s. 2(iii) of the Guarantee in light of the applicable principles of
    interpretation. Three reasons support the application judges interpretation
    that s. 2(iii) of the Guarantee permitted the postponement of the Battista
    Mortgage to the other mortgage security Sedona had granted to Casimiro and
    Raimondo.

[32]

First, s. 2(iii) identifies matters which concern both the relationship
    between the creditor and the borrower  such as granting indulgences to Sedona
    as well as those which concern the creditors ability to deal with the security
    it holds in respect of the underlying debt, including giving up, modifying and
    discharging the security.

[33]

Second, in s. 2(iii), Posocco, as guarantor, agreed that the creditor,
    in its absolute discretion and without diminishing the liability of the
    Guarantor, may give up, modify, vary, exchange, renew or abstaining (sic)
    from, perfecting or taking advantage ofany security in whole or in part. The
    terms modify and vary are broad terms of alteration and, when read in the
    context of s. 2(iii) as a whole, are not ambiguous. The postponement of a
    mortgage involves the modification or variation of a mortgage, specifically the
    priority of the mortgage, and therefore would fall within the ambit of those
    terms.

[34]

Third, given that s. 2(iii) of the Guarantee permits the creditor to
    give up the mortgage security or to discharge any part[of] any security
    when and in such manner as the Creditormay think expedient, in its absolute
    discretion and without diminishing the liability of the Guarantor, it is
    difficult to see how a lesser act  the postponement of the priority of the
    mortgage  would not fall within the terms modify or vary.

[35]

Given the breadth of the alterations s. 2(iii) authorizes the creditor
    to make to the mortgage security without diminishing the liability of the
    Guarantor, the application judge reasonably concluded that the Battistas
    postponement of their first mortgage fell within the permitted alterations.
    Although a postponement of the Battista Mortgage certainly would change Posoccos
    risks, under the plain language of s. 2(iii) Posocco had agreed that the
    creditor could alter his risk in that fashion in the creditors absolute
    discretion and without diminishing the liability of the Guarantor.

[36]

Although that is sufficient to dispose of this ground of appeal based
    upon the arguments advanced before the application judge and this court, I
    would add one observation. In my view, it is not at all clear that the common
    law protection afforded to guarantors against non-consensual material
    alterations in their risk would apply where a guarantor's liability under a
    guarantee had already been fixed by judgment
before
the material
    alteration took place.

[37]

In the present case, the Battistas obtained judgment against the
    borrower, Sedona, in June 2013, and judgment against Posocco on his Guarantee
    in February 2014. In other words, the borrower defaulted, and the creditor
    called on the Guarantee. The assignment and postponement of the Battista
    Mortgage took place after Posocco was adjudged liable on his Guarantee for
    $794,471.41.

[38]

The principle that a guarantor will be released from liability where his
    creditor materially alters the terms of the underlying contract of debt without
    his consent seeks to protect the guarantor against future risks for which he
    did not contract  i.e. the increased risk of a future default by the principal
    debtor resulting from the altered terms of the underlying debt. If those risks
    are altered without his consent, the common law releases the guarantor from
    liability for any default made by the primary debtor after the terms of risk have
    changed:
Conlin,
at paras. 2-3.

[39]

I therefore have difficulty seeing how the common law protection would
    assist a guarantor whose liability under a guarantee already had been crystallized
    and fixed by judgment following a default by the principal debtor, but before
    any material alterations were made to the underlying contract of debt. It
    strikes me that the liability of the guarantor under the guarantee would merge
    in the judgment. However, since the parties did not raise this issue below or
    before us, it is not necessary to decide it.

VI.      SECOND ISSUE: THE ENFORCEABILITY OF THE POSOCCO JUDGMENT
    IN LIGHT OF THE POSTPONEMENT OF THE BATTISTA MORTGAGE TO A POSITION OF NO VALUE

[40]

Posocco advances a second argument in support of his position that a
    postponement of the Battista Mortgage without his consent should terminate his
    obligations under the Guarantee. This ground concerns the right of subrogation
    a guarantor enjoys to any security held in respect of the guaranteed
    obligation: Kevin McGuinness,
The Law of Guarantee,
3d ed. (Markham: LexisNexis
    Canada, 2013), at para. 10.24.

[41]

Posocco relies on s. 2(1) of the
Mercantile Law Amendment Act,
R.S.O. 1990, c. M.10, which provides that where a surety pays the debt of
    another, the surety is entitled to have assigned to it every judgment,
    specialty or other security that is held by the creditor in respect of the debt.
    Posocco argues that the postponement of the Battista Mortgage rendered it
    worthless, thereby depriving Posocco of his right to an assignment of the
    security in the event he paid the debt.

[42]

Section 2(1) of the Act does not assist Posocco because it only entitles
    a surety to an assignment of the security where he has actually paid the debt,
    which Posocco has not done:
George and Asmussen Ltd. v. MCM Projects Inc.
(1992),
    6 O.R. (3d) 645 (Ont. Ct. J. (Gen. Div.)), at p. 648.

[43]

However, in
Bauer v. Bank of Montreal
, [1980] 2 S.C.R. 102, the Supreme Court of Canada stated, at p. 106,
    that where a creditor holds security for the performance of the obligations of
    a debtor or a surety, [t]he creditor, in the absence of agreement to the
    contrary with the debtor or the surety, must protect and preserve the security
    and be in a position, unless excused by other agreement, to return or reassign
    the security to the debtor or surety on repayment of the debt.

[44]

Posocco submits that by postponing their
    first mortgage to the second and third charges on the property, the Battistas
    rendered the first mortgage worthless, thereby preventing the return to Posocco
    of security with value should he ever decide to repay the guaranteed debt.

[45]

The application judge did not address this point in his reasons; it is
    unclear from the record whether the issue was even argued before him.  In any
    event, I would not give effect to Posoccos argument because the Guarantee
    contains an agreement to the contrary, in the language of the
Bauer
case.
    Specifically, s. 2(iv) of the Guarantee provides, in part:

[I]f the Guarantor pays to the Creditor all the money remaining
    unpaid, then the Guarantor shall be entitled, on demand made by it in writing
    to the Creditor, to the assignment of such of the security as remains in the
    Creditor at the times such notice is received by it.

[46]

By agreeing to s. 2(iv), Posocco limited his right of subrogation to any
    security. He expressly acknowledged that if and when he paid the amount owing
    under the Guarantee, he would be entitled only to an assignment of such of the
    security as remains in the Creditor. Given that s. 2(iii) permitted the
    creditor to give up or discharge the mortgage security without Posoccos
    consent, the language of the Guarantee specifically contemplates that no
    security might remain at the time Posocco paid the guaranteed debt, yet that
    would not diminish his liability as guarantor.

[47]

Moreover, in s. 2(ii) of the Guarantee, Posocco agreed
    that he would continue to be liable under all the covenants and terms and
    conditions as agreed upon between the Creditor and the Borrowernotwithstanding
    the releasing in whole or in part of any security held by the Creditor from
    time to time Accordingly, I would not give effect to this ground of appeal.

THIRD ISSUE: THE EFFECT OF THE FORECLOSURE
    JUDGMENT ON THE ENFORCEABLITY OF THE POSOCCO JUDGMENT

[48]

Posocco raises
    one final ground of appeal, a ground related to the fresh evidence he seeks to
    adduce. He submits that the registration of the Foreclosure Judgment renders
    the Posocco Judgment and associated writs unenforceable because the Foreclosure
    Judgment had the effect of extinguishing the guaranteed obligation.

The Evidence

[49]

In August 2015,
    Casimiro obtained the Foreclosure Judgment pursuant to its mortgage, which
    originally stood in second place, but moved up to first as a result of the
    postponements. Although the evidence before the application judge included the
    fact that Casimiro had initiated foreclosure proceedings, the Foreclosure
    Judgment was not brought to the application judges attention. Posocco contends
    that he was not aware of the Foreclosure Judgment at the time of the hearing
    before the application judge.

[50]

Posocco sought
    to file fresh evidence on this appeal that the Foreclosure Judgment was
    registered on title on December 15, 2015; the motion was not opposed.

Positions of the parties

[51]

Posocco submits
Casimiro elected to recover the interests of itself
    and Justam Holdings, a related company, in the mortgages on the Sedona property
by
foreclosing
    on the right, title and interest of Sedona and the Battistas in the property.
    In Posoccos view, that renders the Posocco Judgment unenforceable.

[52]

The Casimiro Respondents concede that as
    a result of the Foreclosure Judgment, all debts due under the (second, subsequently
    first) Casimiro mortgage were satisfied. However, they submit that the debts related
    to the Battista Mortgage, including the Posocco Judgment, remain due. They
    argue that no judicial authority supports the proposition that debts secured by
    a third mortgage (the ultimate position of the Battista Mortgage) are released
    when a first mortgagee (Casimiro) exercises its right of foreclosure. As well,
    they take the position that by the terms of the Guarantee, Posocco promised
    that he would pay the guaranteed debt even if the mortgage had been discharged,
    so he should be held to his bargain.

Analysis

[53]

Although the
    respondents did not oppose the fresh evidence, its admission is governed by the
    test established in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p. 775.
    In my view, Posocco has satisfied the due diligence requirement, and the
    evidence is relevant and credible. As well, had the Foreclosure Judgment been before
    the application judge, it could have affected the result. I would therefore
    allow Posoccos motion to adduce the fresh evidence of the obtaining and
    registration of the Foreclosure Judgment.

[54]

However, I have
    significant reservations that it would be appropriate for this court to decide
    the issue of the effect of the Foreclosure Judgment on the enforceability of
    the Posocco Judgment and related writs. For whatever reason, a full record on
    this issue was not before the application judge, and it appears the issue was
    not argued before him. Consequently, we do not have the benefit of the reasons
    of the court below based on a review of a full record.

[55]

What the record
    before us does reveal is that at the time of the postponements of the Battista
    Mortgage, all the mortgages on the property were held by related parties. Mr.
    Casimiro, through his corporations, controlled all three mortgages. As a
    result, whether subsequent encumbrancers would exercise rights of redemption in
    response to Casimiros foreclosure proceeding lay completely within the control
    of the senior mortgagee, Casimiro.

[56]

Further, as a
    result of the registration of the Foreclosure Judgment, the Battista Mortgage,
    the Raimondo mortgage and the postponements were deleted from title. The
    abstract of title records the amount of the Foreclosure Judgment as $2.15
    million, which is the aggregate of the principal amounts of the Battista
    Mortgage ($700,000), the Casimiro second mortgage ($1 million), and the
    Raimondo third mortgage ($450,000).

[57]

It is the
    position of the beneficial holder of the Battista Mortgage, Justam Holdings,
    that although the Foreclosure Judgment extinguished the debt under the first,
    Casimiro mortgage, the amounts due under the postponed Battista Mortgage
    including the Sedona Judgment and Posocco Judgment  remain due and owing.

[58]

Yet, the law
    provides that in order to bring an action on the mortgage covenant, the
    mortgagee must be able to re-convey the property upon payment of the debt. An
    exception exists in the case of a junior mortgagee. Such a mortgagee may bring
    an action on the covenant, despite a prior foreclosure, where the junior
    mortgagee did not initiate the foreclosure proceeding and was not responsible
    for the loss of the security:
Halsburys Laws of Canada,
Mortgages,
    (Markham: LexisNexis Canada, 2011), at para. HMO-73 Second Mortgage.

[59]

As applied to
    the facts of the present case, these principles of law raise the question as to
    whether the Foreclosure Judgment obtained by the senior mortgagee, Casimiro  a
    company related to the junior mortgagee, Justam Holdings  would affect the
    enforceability of a judgment in respect of the junior mortgage debt where the
    junior mortgagee was no longer in a position to reconvey the property upon
    payment of the debt because it had participated in a postponement transaction
    which resulted in the loss of the security. If, in those circumstances, a
    foreclosure could extinguish a junior mortgage debt, arguably it might
    extinguish the related guarantee obligation.

[60]

Posocco raised this
    issue in connection with his fresh evidence motion. At para. 43 of his factum,
    he argues that by foreclosing after the postponements, Casimiro elected not to
    pursue any debt obligations of [Posocco]. Unfortunately, none of the parties
    squarely addressed this issue or provided full argument on it.

[61]

In those
    circumstances, since the issue was not argued before the application judge, but
    does arise on the facts of the case given the registration of the Foreclosure
    Judgment, in my view the appropriate course of action is to remit to the
    application judge for further hearing the issue of the effect of the
    Foreclosure Judgment on the enforceability of the Posocco Judgment and related writs.

VIII.    DISPOSITION

[62]

The application sought to set aside the Posocco Judgment and related writs.
    The application was dismissed. For the reasons set out above, I would dismiss
    the appeal from the refusal of the application judge to set aside the Posocco
    Judgment: the real issue is not the Posocco Judgments validity, but its
    enforceability in light of the Foreclosure Judgment. I would allow the appeal
    to the extent of remitting for a further hearing before the application judge
    the issue of the effect of the Foreclosure Judgment on the enforceability of
    the Posocco Judgment, including the enforceability of any writs of seizure and
    sale filed pursuant to it.

[63]

In light of the divided success on this appeal, I would make no order as
    to the costs of the appeal.

Released: May 31, 2016 DB

David
    Brown J.A.

I
    agree John Laskin J.A.

I
    agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2016 ONCA 387

DATE: 20160519

DOCKET: C59113

Laskin, Gillese and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Allen

Appellant

Julie Santarossa, for the appellant

A. Cappell, for the respondent

Heard and released orally: May 17, 2016

On appeal from the conviction entered on April 30, 2014
    by Justice Steven Rogin of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of aggravated assault for stabbing the
    victim in the stomach with a knife. The only issue at trial was self-defence,
    which was rejected by the trial judge.

[2]

The appellant appeals his conviction and makes two main submissions: (1)
    the trial judge misapprehended the evidence about the residue on the gate, and
    (2) the trial judge erred in finding as confirmatory of the victims testimony
    several items of evidence he relied on.

[3]

On the appellants first submission it was reasonable for the trial
    judge to rely on the opinion of the police identification officer that the
    residue on the gate was blood. Although the officer acknowledged that the
    residue had not been tested and could have been red oil, in her opinion it was
    blood. She based her opinion on her years of experience and the freshness of
    the residue. Accordingly, we would not give effect to this ground of appeal.

[4]

On the appellants second submission, the trial judge treated the victim
    as a
Vetrovec
witness and he looked for evidence that was confirmatory
    of the victims testimony. The trial judge listed ten items of evidence, each
    independent, which he said confirmed the victims testimony. The Crown fairly
    acknowledges that item six is not confirmatory, but relies on the other nine
    items. The appellant challenges several of the items, especially the trial
    judges reliance on the appellants utterances after the stabbing. In our view,
    looking at the list of nine items cumulatively, we think the trial judge was
    justified in concluding that these items served to confirm the victims
    evidence.

[5]

Accordingly, the appeal is dismissed.

John
    Laskin J.A.

E.E.
    Gillese J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boyd, 2016 ONCA 380

DATE: 20160518

DOCKET: C61323

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clinton Boyd

Appellant

Angela Ruffo, for the appellant

Katie Doherty, for the respondent

Heard: May 16, 2016

On appeal from the sentence imposed on January 30, 2015
    by Justice Robert B. Reid of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the 42 month sentence imposed for a string of
    serious offences committed over a two hour period while he was intoxicated.
    During the time of the offences, the appellant was involved in an altercation
    with a taxi driver and drove very dangerously for an extended period of time.

[2]

The appellant contends that the sentencing judge erred by imposing five
    consecutive sentences to reach a total sentence of 42 months and by imposing a
    total sentence of 42 months that was too harsh.

[3]

We do not accept these submissions. There is a broad discretion to
    impose consecutive sentences if, as here, separate legal interests are
    implicated in the various offences. Nor does the total sentence of 42 months
    strike us as unduly harsh. The appellant has a very long criminal record and
    these were very serious offences.

[4]

In considering these factors, the sentencing judge recognized and took
    account of the appellants aboriginal background and the
Gladue
factors.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brouillard, 2016 ONCA 342

DATE: 20160506

DOCKET: C59883 & C60164

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse
    Brouillard

Steven Taing

Appellants

James Foord, for the appellant, Jesse Brouillard

Michael Davies, for the appellant, Steven Taing

Scott Latimer, for the respondent

Heard: March 29, 2016

On appeal from the conviction entered on July 3, 2014 and
    the sentence imposed on October 16, 2014 by Justice Célynne S. Dorval of the Ontario
    Court of Justice, sitting without a jury.

Pardu J.A.:

[1]

The appellants, Jesse Brouillard and Steven Taing, were both convicted
    of aggravated assault of a customer, Ikechukwu Ukwu who had been ejected from
    the bar where they were managers. Each appeals from their conviction for
    different reasons, and also seeks leave to appeal sentence.

[2]

Mr. Brouillard argues that the verdict identifying him as an assailant
    was unreasonable, because the video evidence was of such poor quality that it
    was insufficient to identify him as the second assailant, and that the trial
    judge misapprehended that evidence, in any event.

[3]

Mr. Taing argues that while he indisputably threw the first punch that
    knocked Mr. Ukwu to the ground, Mr. Ukwu got back up after that punch, and
    appeared unresponsive only after the second punch was thrown by another person.
    It was at that point that Mr. Ukwu fell and hit his head on the curb or ground,
    and became unresponsive. Given the sequential nature of the blows, Mr. Taing
    submits that it was unreasonable to attribute responsibility to him for Mr.
    Ukwus serious head injury, and unreasonable to conclude that he and the other
    assailant were acting in concert. He submits that the trial judge erred by not
    engaging in any causation analysis connecting the blow he struck with Mr. Ukwus
    injuries.

[4]

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

(1)

The findings of the trial judge

[5]

The trouble began inside the bar where Mr. Brouillard and Mr. Taing were
    both managers. There was some kind of altercation, following which three males,
    Mr. Ukwu among them, and two females were ejected from the bar. A video of the
    inside of the bar showed Mr. Brouillard actively involved in this melee. At
    the end of this scuffle, Shawn Mahmoud, the manager of another bar, had Mr. Ukwu
    in a full nelson hold and was removing him from the bar. Mr. Brouillard and Mr.
    Taing followed them outside.

[6]

It appears from the bars surveillance video of the street that Mr. Mahmoud
    spoke to Mr. Brouillard just before releasing Mr. Ukwu. Almost immediately, Mr. Taing
    punched Mr. Ukwu, who fell to the ground. As Mr. Ukwu got back up, Mr. Brouillard
    quickly circled around to the area where Mr. Ukwu had just risen to his feet.
    Just before Mr. Ukwu fell from the force of the second blow, Mr. Brouillard
    was admittedly identified as being close by, in a lunging position, with a
    cocked bare arm visible above the forward lunging leg. The contact of the
    second punch with Mr. Ukwu is not visible on the video, but Mr. Ukwu fell in a
    direction which would be consistent with a blow struck by Mr. Brouillard.

[7]

The trial judge found that only three people were close to Mr. Ukwu at the
    time of the second blow: Mr. Brouillard, Stefan Ilic, and Rodrigo Brand. No
    challenge is made on appeal to this finding. The trial judge excluded Mr. Brand
    as the second assailant because Mr. Brand was wearing a jacket and tie, and therefore
    his arms were not visible, in contrast to the arms of the second assailant,
    which she found were visible in the video immediately before and after the
    blow. The trial judge also found from the video, as well as from a second City
    of Ottawa street camera recording, that Mr. Ilic moved towards Mr. Ukwu after
    the second blow, and that he came from behind Mr. Ukwu, opposite to the
    direction in which Mr. Ukwu was sent flying by the punch. She therefore
    excluded him as the second assailant as well. She concluded that the person who
    delivered the second punch was Mr. Brouillard.

[8]

Finally, on the basis of the sequence of events in which Mr. Taing and Mr. Brouillard
    assaulted Mr. Ukwu, the trial judge concluded that they acted in concert to
    exact retribution on Mr. Ukwu for the trouble he had caused in the bar.

(2)

Was Brouillards conviction reasonable?

[9]

Mr. Brouillard submits that the video evidence was of insufficient
    quality to enable the trial judge to exclude Mr. Ilic as the second assailant,
    and to conclude that it was Mr. Brouillard.

[10]

However, as pointed out by Rosenberg J.A. in
R. v. Abdi
, 2011
    ONCA 446, at para. 6:

Whether the video recordings were of sufficient quality was a
    question of fact for the trier of fact, here the trial judge.  This
    courts jurisdiction to review that finding is limited.  The leading case
    on the issue is the decision of the Supreme Court of Canada in
R. v.
    Nikolovski
, [1996] 3 S.C.R. 1197, where Cory J., speaking for the majority
    of the court, said the following at para. 23:

If an appellate court, upon a review of the tape, is
    satisfied that it is of sufficient clarity and quality that it would be
    reasonable for the trier of fact to identify the accused as the person in the
    tape beyond any reasonable doubt then that decision should not be disturbed.
    Similarly, a judge sitting alone can identify the accused as the person
    depicted in the videotape.

[11]

Here, there is no dispute that the appellants were accurately identified
    in the videos and that their paths of travel could be traced. The issue here is
    whether a finding that Mr. Brouillard threw the second punch can safely be made
    from the videos.

[12]

I have reviewed the video evidence and conclude that the trial judges findings
    were reasonable in light of all the evidence before her. She had the benefit of
    software that slowed down the sequence of events, and enabled her to view them
    very slowly. She had recognition evidence from police officers who knew the
    appellants. Their paths of travel were highlighted with coloured circles, and
    their whereabouts in the crowd outside the bar were not in dispute. She also had
    the benefit of two different videos of the street, one recovered from the bars
    surveillance camera and another City of Ottawa recording. Mr. Brouillard was
    admittedly in a lunge position close to Mr. Ukwu immediately before the second
    blow, and the direction Mr. Ukwus body flew was consistent with a blow struck
    by Mr. Brouillard, while it was inconsistent with one struck from Mr. Ilics
    position. Moreover, Mr. Ilic moved towards Mr. Ukwu after the second blow.

[13]

For these reasons, I am not persuaded that there was a misapprehension
    of the evidence, nor do I see any basis on which to interfere with the trial
    judges finding that Mr. Brouillard threw the second punch.

(3)

Did the trial judge err by finding that the appellants were acting in
    concert and by failing to deal with causation?

[14]

Given the animus evidenced by the physical confrontation inside the bar,
    the ejection of Mr. Ukwu, and the fact that Mr. Brouillard and Mr. Taing followed
    Mr. Mahmoud and Mr. Ukwu outside for no evident purpose and then each punched Mr.
    Ukwu within seconds of each other, it was open to the trial judge to conclude
    that the appellants were acting in concert. She was therefore not required to analyse
    which blow caused the injury. The trial judge correctly relied on
R. v.
    McMaster
, [1996] 1 S.C.R. 740, in which the Supreme Court of Canada
    stated, at para. 33:

It is a well-established principle that where a trier of fact
    is satisfied that multiple accused acted in concert, there is no requirement
    that the trier of fact decide which accused actually struck the fatal blow.

[15]

Taing told police in his interview of managements intention to discourage
    undesirable customers. This supports the trial judges finding that both bar
    managers were acting in concert. The fact that blows are struck sequentially,
    rather than concurrently, does not exclude a finding that two parties acted in
    concert.

[16]

For example, in
R. v. Biniaris
, 2000 SCC 15,
[2000]
    1 S.C.R. 381,

Biniaris and another teenager
    attacked a victim causing fatal head injuries. According to the medical
    evidence at trial, Biniaris did not participate in the attack until after the
    fatal injuries had already been inflicted. In its closing submissions to the
    jury, the Crown advanced a three-part theory of liability for second degree
    murder: liability as a principal, liability as a co-perpetrator, or liability
    as an aider or abettor. The jury convicted Biniaris of second degree murder.
    The B.C. Court of Appeal substituted a conviction for manslaughter on the basis
    that the jurys verdict was unreasonable, but the Supreme Court of Canada
    restored the jurys conviction. The court noted, at paras. 45-49, that in light
    of Biniariss liability as a party, the fact that
the blows
    inflicted by him were not the immediate cause of the mans death was of no
    significance
.

[17]

Another example is
R. v. P. (L.)
(2003), 172 C.C.C. (3d) 195
    (Ont. C.A.). In that case, L.P. punched the victim in the head area several
    times. The victim fell to the ground, and R.B. then kicked him hard in the
    head. L.P. and R.B. were both convicted of aggravated assault, and this court
    dismissed their appeals. The court noted, at paras. 17-18:

Counsel also submitted that the trial judge erred in finding
    that R.B. and L.P. acted jointly in committing the assault, making it
    unnecessary for the purposes of liability to determine whether the punch or the
    kick caused the injury. Counsel rely on the acquittal of K.H. [a third accused]
    and the gap in time between the punches and the kick in support of this
    submission.

It was open to the trial judge to find that the appellants
    acted together as joint perpetrators of the assault. They went after [the
    victim] together and confronted him together. In the course of the same series
    of events which occurred in a short time span both appellants assaulted [the
    victim]. We cannot agree that the brief interval between the punches and the
    kick rendered the conclusion that the appellants acted together unreasonable.
    To the contrary, we think the attempt to portray the two assaults as discrete
    and unconnected events is a strained and unrealistic interpretation of the
    events.

[18]

In my view, the trial judge did not err in finding that the appellants
    were acting in concert, and she was not obligated to determine whether Mr.
    Taings punch was the direct cause of Mr. Ukwus injuries.

(4)

Was the sentence unfit?

[19]

The appellants submit that the three-year sentence given to Mr. Taing,
    and the three-and-a-half-year sentence given to Mr. Brouillard, were outside
    the range and excessive, given that this was a one-punch case for each of them.
    They also argue that the trial judge made inconsistent findings by first stating
    in her reasons for conviction that the assault occurred spontaneously as Mr. Ukwu
    was ejected from the bar, while later indicating in her reasons for sentence that
    although the assaults were not premeditated, they also were not spontaneous.
    Finally, the appellants argue that having found that there was insufficient
    evidence to conclude that the appellants themselves reformatted the bars video
    surveillance recording in an attempt to destroy evidence, the trial judge erred
    in using the appellants failure to ensure the recording was not tampered with
    by others as an aggravating factor on sentencing.

[20]

I reject these arguments.

[21]

Mr. Ukwu suffered devastating injuries as a result of the assault. In a
    letter submitted to the court, Mr. Ukwus treating physician observed:

Mr. Ukwu has marked impairments at a time point almost 2 years
    post injury. He will continue to have lifelong deficits as a result of his
    injuries secondary to the assault in June 2012. He will always need support to
    live in the community. He will never be competitively employable and he will
    not be able to reach the potential that his university education would have
    afforded him.

[22]

At the time of the assault, Mr. Ukwu was not acting in an aggressive
    manner. He was defenceless at the moment of each punch. The fact that each
    appellant punched him only once does not lessen the severity of what they did. There
    is no basis to conclude that the sentences were manifestly unfit. (
R. v.
    Lacasse
, [2015] 3 SCR 1089)

[23]

The trial judge also did not err in her treatment of spontaneity. She
    first stated in her reasons for judgment, at para. 29:

In this case, section 21(2) does not apply as there is no
    evidence that the two assailants formed a common intention to carry out an
    assault on Mr. Ukwu. The assault occurred spontaneously as Mr. Ukwu was ejected
    from the bar.

[24]

Later, in her reasons for sentence, she stated, at para. 23:

The assaults were not premeditated for any lengthy period of
    time, but neither are they spontaneous. Mr. Taing had to approach Mr. Ukwu
    to strike him. Mr. Brouillard had to follow the movements of Mr. Mahmoud
    and had time to consider his own actions when he saw the victim fall to the
    ground after being struck by Mr. Taing. His blow is not spontaneous; he winds
    up and strikes Mr. Ukwu as soon as he is standing.

[25]

The trial judge used spontaneous in two different contexts. In the
    first, she was referring to the fact that the appellants did not form a plan inside
    the bar to commit the assault. In the second, she was referring to the degree
    of coordination between the appellants when they acted jointly to commit the
    assault on Mr. Ukwu outside the bar.

[26]

Finally, even if the trial judge erred in treating as an aggravating
    factor the failure of the appellants to prevent other misguided individuals
    from attempting to destroy evidence, the sentences imposed were nonetheless
    fit.

(5)

Disposition

[27]

Accordingly, I would dismiss the appeals from conviction, grant leave to
    appeal from the sentence, but dismiss the sentence appeals.

Released: (RAB) May 6, 2016

G. Pardu J.A.

I agree R.A. Blair J.A.

I agree M. Tulloch J.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

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

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

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

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

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

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

WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO S. 38 OF THE ACT WHICH
    PROVIDES:

38.(1)  Subject to this section, no person shall
    publish by any means any report

(
a
)   of an offence committed or
    alleged to have been committed by a young person, unless an order has been made
    under section 16 with respect thereto, or

(
b
)   of a hearing, adjudication,
    disposition or appeal concerning a young person who committed or is alleged to
    have committed an offence

in which the name of the young person, a child or
    a young person who is a victim of the offence or a child or a young person who
    appeared as a witness in connection with the offence, or in which any
    information serving to identify such young person or child, is disclosed.

* * *

(2)  Every one who contravenes subsection (1),

(
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. C.G., 2016 ONCA 316

DATE: 20160502

DOCKET: C56860

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.G.

Appellant

Daniel J. Brodsky, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on December 13,
    2012 by Justice Joyce Elder of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of the sexual assault of C.D. The Crown
    alleged that in 1984, he and K.I., the complainants cousin, had intercourse
    with the then-8-year-old complainant at her home while K.I. was babysitting
    her. The appellant was 13 years old at the time.

[2]

The appellant testified at trial in 2012 that he was at the
    complainants home on one occasion when he was 13. He confirmed that K.I. was
    babysitting the complainant, and testified that K.I.s younger brother was also
    there. He recalled both K.I. and the younger brother going into the
    complainants bedroom, but denied knowing that a sexual assault had occurred,
    or that he had sexually assaulted the complainant.

[3]

The trial judge found that the appellant was not a credible witness and
    concluded that the appellants guilt had been established beyond a reasonable
    doubt.

[4]

The trial judge erred in two respects in coming to these conclusions:

·

She drew an adverse inference as to the appellants credibility
    from his pre-trial silence concerning the younger brothers presence; and

·

She used K.I.s guilty plea to sexual assault of the complainant
    to corroborate the evidence of the complainant.

[5]

The Crown concedes that it would be an error to draw an adverse
    inference from an accuseds pre-trial silence, but submits that the trial judge
    did not draw such an inference. The Crown submits that the trial judge found
    that the appellant was not credible because of his selective memory and
    inconsistencies in his testimony about the younger brothers role in the
    incident.

[6]

The trial judges reasons make it clear that she did, in fact, draw an
    adverse inference from the appellants pre-trial silence:

I found [C.G.s] explanation for remembering K.I. and [the
    younger brother] going into the bedroom with the complainant difficult to
    follow.
When this is coupled with his admission that he
    had never previously disclosed that K.I.s brother was there and might have
    been involved, I do not find C.G. to be a credible witness.
[Emphasis
    added.]

[7]

This was an error. The trial judge also erred in using K.I.s guilty plea
    to corroborate the evidence of the complainant. Had K.I. been available to be called
    as a witness  which he was not, as he died before the appellants trial  his
    guilty plea would have been relevant to his credibility and to his own involvement
    in the sexual assault. However, a guilty plea by a co-accused, not called at
    trial, cannot be used to support the Crowns case.

[8]

For example, in
R. v.

C. (P.)
, 2015 ONCA 30, 321
    C.C.C. (3d) 49, a young offender was tried separately from four adults on a
    charge that he had aided and abetted a murder. The four adults pleaded guilty
    one to murder, two to manslaughter, and one to aggravated assault. The trial
    judge instructed the jury that the guilty plea to murder by one of the four adults
    could be used as evidence against the accused. On appeal, this court held, at
    paras. 43-46, that the trial judge had erred:

The trial judge explained that the determination that Xiao had
    committed murder was the logical first step in deciding whether the appellant
    had aided and abetted Xiao in committing an unlawful act. She told the jury
    they could use that plea and conviction to conclude that Xiao had committed
    murder.

The trial judge erred in law when she told the jury that it
    could use Xiaos guilty plea and conviction as evidence against the appellant.
    See
R. v. Simpson
, [1988] 1 S.C.R. 3;
R. v. MacGregor
(1981),
    64 C.C.C. (2d) 353 (Ont. C.A.);
R. v. Pentiluk
(1974), 21 C.C.C. (2d)
    87 (C.A.), at 92.

Xiaos guilty plea was no more than hearsay evidence that Xiao
    had committed murder, and could not be considered in determining the
    appellants guilt. In
R. v. MacGregor,
Martin J.A. said, at pp.
    357-58:

Admittedly, it was an error for the trial judge to fail to
    instruct the jury that in considering the case against the appellant they
    should disregard the pleas of guilty of manslaughter by the co-accused and that
    those pleas were not in any way to be taken into account in considering the
    case against the appellant.

This statement of the law was adopted by the Supreme Court in
R.
    v. Simpson
.

[9]

In the present case, it was an error for the trial
    judge to rely on K.I.s guilty plea as support for the complainants version of
    events.

[10]

Given
    that this case turned on credibility, the Crown has not established that the
    verdict would necessarily have been the same without the two errors identified
    above  one error undermining the appellants credibility, the other enhancing
    the complainants credibility.

[11]

In
    the result, the appeal is allowed, the conviction set aside, and a new trial
    ordered.

G.R. Strathy C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cumor, 2016 ONCA 410

DATE: 20160526

DOCKET: C58013

Laskin, Gillese and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hasan Mohamed Cumor

Appellant

David Quayat and Leo Rayner, for the appellant

Bradley Reitz, for the respondent

Heard and released orally: May 19, 2016

On appeal from the convictions entered on August 1, 2012
    by Justice Robert T. Weseloh of the Ontario Court of Justice.

ENDORSEMENT

[1]

Police received information from reliable confidential informants
    concerning cocaine trafficking in Owen Sound. As a result, they conducted
    surveillance on Ryan Desroches and Trina Wright, and obtained a production
    order to examine their text messages. They established that a person who went
    by Ali was their supplier.

[2]

After receiving a tip from the confidential informer that Ali was to
    deliver cocaine to the Desroches and Wright residence on November 30, 2011, the
    police arrested the appellant without a warrant when he arrived at the
    residence driving an orange Ford. The orange Ford had been seen in front of the
    residence on earlier occasions when text messages and surveillance indicated
    that Wright and Desroches were dealing in cocaine.

[3]

Although an initial search of Ali failed to turn up anything, a later
    search of the police cruiser where he had been sitting, after arrest, revealed
    a bag of cocaine and marijuana.

[4]

At trial, Officer Dazé gave opinion evidence relating to things such as the
    meaning of words used in the text messages, and the value and consumption rates
    of cocaine.

[5]

The appellant raised three main grounds of appeal:

1. Did the
    trial judge err in finding that the police had reasonable and probable grounds
    to arrest the appellant?

2. Did the
    trial judge err in his assessment of the identification evidence relating to
    the appellant? and

3.  Did the
    trial judge err in admitting Officer Dazés opinion evidence?

Did the
    trial judge err in finding that the police had reasonable and probable grounds

to arrest the appellant?

[6]

In our view, he did not.

[7]

On November 30, an informer told the police that Wright and Desroches
    would be receiving a delivery of cocaine that evening.  The police went there
    to watch.  When the orange Ford pulled up, the police were convinced that the
    driver  the appellant  was there to supply Wright and Desroches with
    cocaine.  The information provided by the confidential informants, who had
    proven track records, was corroborated in significant ways.

[8]

We see no error in the trial judges determination that the arresting
    officer had an objectively reasonable belief that the driver of the orange Ford
    possessed cocaine.

Did the
    trial judge err in his assessment of the identification evidence relating to
    the appellant?

[9]

The trial judge relied on Wrights identification evidence. The
    appellant had stayed with Wright on a number of weekends. The trial judge found
    her identification evidence to be strong and compelling. There is no basis on
    which to interfere with his treatment of the identification evidence.

Did the trial judge err in admitting
    Officer Dazés opinion evidence?

[10]

On appeal, the Crown concedes that Officer Dazés opinion evidence was
    inadmissible.  However, it urges this court to find that the inadmissible evidence
    occasioned no substantial wrong and no miscarriage of justice.

[11]

We accept this submission. On the face of the text messages alone, it
    was clear that the appellant was supplying product to Desroches for sale to
    customers.  Desroches testified that the product was cocaine, and he also
    provided testimony about the meaning of a number of the text messages. In the
    circumstances, we are satisfied that the verdict would necessarily have been
    the same.

Disposition

[12]

Accordingly, the appeal is dismissed.

John
    Laskin J.A.

E.E.
    Gillese J.A.

L.B
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Delay, 2016 ONCA 416

DATE: 20160527

DOCKET: C61222

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terry Delay

Appellant

Terry Delay, acting in person

Craig Harper, for the respondent

Heard: May 10, 2016

On appeal from the conviction entered on September 21,
    2015 and the sentence imposed on October 2, 2015 by Justice D.M. Lahaie of the
    Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit to this appeal.  The evidence at trial disclosed that
    the complainant was assaulted by the appellant over a period of time.  The
    investigating officer observed fresh blood and injuries on the complainant
    consistent with her evidence.

[2]

There was also independent evidence from the 911 call heard by the
    investigating officer which corroborated the evidence of the civilian
    witnesses.  All of this evidence was considered in the trial judges assessment
    of the credibility of all the witnesses.

[3]

We see no basis to interfere with his findings.  Accordingly, the appeal
    as to the conviction is dismissed.

[4]

With respect to the sentence appeal, the appellant has a record with
    some 85 previous convictions, a number of which are domestic-related assaults.
    In our view, the sentence imposed was appropriate considering this appellants
    criminal antecedents, and the relevant principles of sentencing.

[5]

Accordingly, while leave to appeal sentence is granted, the sentence
    appeal is dismissed.


WARNING

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

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

Criminal
    Code
provide:

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

6.

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

7.

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

8.

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doell, 2016 ONCA 350

DATE: 20160509

DOCKET: C58889

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Doell

Appellant

Robert Sheppard, for the appellant

Moiz Rahman, for the respondent

Heard: May 5, 2016

On appeal from the convictions entered on October 21,
    2013 by Justice Alan Bryant of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was charged with seven counts of historical sexual
    offences involving his underage neighbour, Karen H.  The charges spanned a
    three-year period when the complainant was residing with her mother,
    step-father and siblings at a farm located across the road from the farm owned
    by the appellant and his wife.

[2]

Following a trial by judge and jury, the appellant was convicted of one
    count of sexual assault and one count of gross indecency.  He was acquitted of
    four other sexual offences and the remaining charge, a count of indecent
    assault, was withdrawn by the Crown.

[3]

The appellant appeals from his convictions.

[4]

On appeal, the appellant raises one issue.  He submits that the jurys
    verdicts are inconsistent and cannot be reconciled.  He contends that, as the
    jury clearly concluded that the complainants credibility fell short of
    establishing the offences of which he was acquitted, including the complainants
    claim that she was raped by the appellant at a conservation area situated near
    the appellants farm, the appellant should have been acquitted of all counts.
    The appellant says that, given the acquittals on the rape charge and three
    other sexual offences, there is a realistic concern that the jury must have
    reached an impermissible credibility compromise in order to convict him of the
    remaining two counts.

[5]

We disagree.  In our view, the verdicts are not inconsistent.

[6]

Credibility was the central issue at trial.  The appellant testified and
    denied any sexual contact with the complainant, at any time.

[7]

The jury was entitled to accept some, all or none of the complainants
    evidence.  The four counts on which the appellant was acquitted, including the alleged
    rape incident at the conservation area, all involved or were related to the
    complainants allegations of vaginal or anal intercourse.  In contrast, neither
    of the two counts of which the appellant was convicted (sexual assault and
    gross indecency) required intercourse.

[8]

By its verdicts, it is apparent that the jury accepted the complainants
    evidence that the appellant engaged in some sexual activity with her before and
    after the date of the conservation area incident but it was not convinced, to the
    requisite criminal standard, that the appellant had intercourse with her.  As
    the trial judge noted in his sentencing reasons:

The jury verdicts clearly distinguished between the acts of
    penetration, which first occurred at the conservation area, and the
    non-penetration sexual offences, which [preceded] and continued after the
    alleged incident at the conservation area.

Thus, the essential elements of the six offences that
    the jury had to consider were different.

[9]

In his charge, the trial judge properly instructed the jury on the
    necessary elements of the charges and on the need to consider each count
    separately, based on the evidence relating to each count.  He also made clear
    that the jury was entitled to decide how much of a witnesss evidence it chose
    to believe.  Based on these unchallenged instructions and the elements of the
    offences charged, it was open to the jury to distinguish between the offences
    involving intercourse and those that did not.

[10]

The jury was not required to reject all the complainants allegations
    simply because they did not accept her evidence of forced penetration, beyond a
    reasonable doubt.  The verdicts, therefore, are supportable on the basis of
    this distinction, consistent with the trial judges instructions to the jury.
    See for example,
R. v. A.W.B.
, 2015 ONCA 185, (2015) 322 C.C.C. (3d)
    130;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381;
R. v. B.H.
,
    2015 ONCA 642.

[11]

Accordingly, the appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David Watt J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dyce, 2016 ONCA 397

DATE: 20160525

DOCKET: M46424 (C60818)

Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Dyce

Applicant (Appellant)

Wayne Dyce, acting in person

Lorna Bolton, for the respondent

Heard and released orally: May 11, 2016

ENDORSEMENT

[1]

The applicant seeks release pending the determination of his appeal from
    convictions of sexual assault and sexual assault with a weapon. He also seeks
    leave to appeal sentence.

[2]

It is settled law in this province that second and subsequent
    applications for release pending appeal require an appellant to demonstrate a
    material change in circumstances from those under consideration on the prior
    application or applications. A material change in circumstances requires
    information that could alter the assessment of one or more of the statutory
    factors governing release pending appeal. See,
R. v. Baltovich
(2000),
    144 C.C.C. (3d) 233 (Ont. C.A.).

[3]

Mr. Dyce raises two points in his submissions about changes in
    circumstances. He contends that he now has obtained a copy of the decision tree
    provided to the jury on the count of sexual assault with a weapon. He says it
    is flawed because it fails to display a not guilty verdict in a box opposite a
    negative finding about the use of a weapon and also contains a flawed
    definition of weapon, or no definition at all of weapon or bodily harm.

[4]

A decision tree is not a jury instruction. It is, rather, a deliberation
    aid to assist jurors in the deliberation process. It is the jury charge that
    describes and defines the constituent elements of the offences on which jurors
    are to deliberate. The absence of definitions or accurate definitions from a
    decision tree is of no moment, provided the essential elements are explained,
    as they were here, in the charge to the jury. Weapon is exhaustively defined
    in s. 2 of the
Criminal Code
as is bodily harm. Bodily harm is not
    an essential element of sexual assault with a weapon.

[5]

There is no material change in circumstances that would justify a fresh
    look at the issue of release pending appeal. The information provided,
    including the decision tree that was filed as a lettered exhibit at trial, is
    incapable of altering the assessment of any of the statutory factors governing
    release pending appeal, in particular, the requirement that the appeal not be
    frivolous.

[6]

The application is dismissed.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ferdinand, 2016 ONCA 353

DATE: 20160509

DOCKET: C60638

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khamidi Ferdinand

Appellant

Carol Cahill, for the appellant

Katie Doherty, for the respondent

Heard and released orally: May 5, 2016

On appeal from the sentence imposed on May 3, 2011 by
    Justice Robert Kelly of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty to robbery with a firearm, unlawful
    confinement and two other firearms offences arising out of his participation
    with another armed man in a brazen home invasion. He received a cumulative
    sentence of 8 years, which the sentencing judge reduced by 9.5 months for the
    time the appellant had spent in pre-disposition custody. The net sentence was
    one of 86.5 months in the penitentiary.

[2]

In sentencing submissions, trial counsel for the appellant sought
    enhanced credit of 1.5 days for each day spent in pre-disposition custody. The
    appellant had sought, but could not obtain counselling programs, had been
    incarcerated in a facility with substantial periods of lockdowns and had earned
    no remission.

[3]

The trial judge, who did not have the benefit of either the decision of
    this court in
R. v. Summers
, 2013 ONCA 147, 114 O.R. (3d) 641, or that
    of the Supreme Court of Canada in the same case,
R. v. Summers
, 2014
    SCC 26, [2014] 1 S.C.R. 575, rejected counsels submission for enhanced credit.
    In this court, the respondent acknowledges that, under
Summers
, the
    appellant was entitled to the enhanced credit he sought for pre disposition
    custody.

[4]

We agree.

[5]

In the result, leave to appeal sentence is granted, the appeal from
    sentence is allowed, and the cumulative sentence of 8 years is varied to
    reflect an additional 143 days credit for pre-disposition custody. This results
    in a net sentence of 8 years, less 428 days credit for pre-disposition custody.
    The
remanet
is a sentence of 6 years, 302 days.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A.

David
    Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Iyeke, 2016 ONCA 349

DATE: 20160510

DOCKET: C59076

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Iyeke

Appellant

Andrew Furgiuele, for the appellant

John A. Neander, for the respondent

Heard: May 3, 2016

On appeal from the convictions entered on November 28,
    2013 and the sentence imposed on January 17, 2014 by Justice Michael G. Quigley
    of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted of several drug and firearm offences by a
    jury. He appeals his convictions on three counts relating to the possession of
    a prohibited firearm and two counts of breach of a firearm prohibition order.
    He does not appeal his convictions on two counts of possession of cocaine for
    the purpose of trafficking and one count of possession of the proceeds of
    crime.

[2]

The police received information from a confidential informant that the
    appellant trafficked in cocaine and was in possession of a gun. The
    confidential informant provided police with details about the appellant,
    including the address of his apartment and the kind of car he drove. The police
    conducted surveillance to corroborate some of the information the confidential
    informant had provided. They saw him engaged in what appeared to be hand-to-hand
    drug transactions. The police obtained a search warrant to search the
    appellants car and his apartment. The police stopped the appellant in his car
    and arrested him. They found cocaine in the car. Later that day they executed a
    search warrant at his one-bedroom apartment and discovered a large quantity of
    cocaine, several thousand dollars and a loaded prohibited handgun.

[3]

The appellant testified at trial and admitted that the drugs found in
    his car and bedroom belonged to him. He however denied that the gun was his. He
    called evidence that others had access to the apartment. The jury rejected his
    evidence and he was convicted.

[4]

On appeal, the appellant submits that Crown counsel impermissibly urged
    the jury to reject his testimony by relying on the confidential informants
    hearsay statement that the appellant possessed a gun for the truth of its
    contents. The Crown counsel did this even though the informants hearsay
    statement was not in evidence. The appellant further submits that the trial
    judge magnified the prejudice by repeating the Crowns submission that the
    confidential informant had told the police the appellant had a gun and then
    went on to instruct the jury it could consider the statement as part of the
    evidence when determining the case.

[5]

The Crown submits that, understood in the context of the case, Crown
    counsels reference in her closing address to the informants statement did not
    result in any unfairness to the appellant. The Crown points out that defence
    counsel at trial did not object to the Crowns closing or request the trial
    judge to give a limiting instruction. Therefore the appellant should be
    precluded from raising this ground on appeal.

[6]

At trial, the police officer who testified that the police had received
    information from a confidential informant did not attribute the police
    knowledge of the gun to the confidential informant. He said the police had
    received a confidential tip and had other information. This testimony was
    admissible as a narrative to explain the actions taken by the police.

[7]

Crown counsel in her closing address told the jury that the informant
    had told the police that the appellant was in possession of a gun and they
    should consider this fact. This was no casual passing reference but, rather,
    the centrepiece of the Crowns closing address. She repeatedly linked the
    information about the presence of the gun to the confidential informant. She
    also invited the jury to consider whether it was reasonable that the gun
    belonged to somebody else given the fact that the confidential source had told
    the police that the appellant was in possession of a gun.

[8]

The trial judge also misstated the police officers testimony. He, too,
    told the jury that the confidential informant had told the police the appellant
    had a gun at the apartment. Then, in summarizing the Crowns position, the
    trial judge repeated the Crowns rhetorical question: Is it reasonable that
    the gun belonged to someone else given that a confidential source had told the
    police that [the appellant] was in possession of a gun?

[9]

We see no plausible tactical reason to explain the trial counsels failure
    to object and seek an instruction correcting the misinformation and directing
    the jury it could not use the informants tip for the truth of its contents. In
    any event, the jury charge is ultimately the responsibility of the trial judge,
    not defence counsel.

[10]

Crown counsels mistaken and improper closing address, left uncorrected,
    rendered the trial unfair. This is a not a case for the application of the
    proviso. It is for a jury to assess the credibility of the appellants
    testimony the gun was not his.

[11]

The appeal is allowed. The firearms and breach of the firearm prohibition
    order convictions are vacated and those charges are remitted to the Superior
    Court of Justice for a new trial.

[12]

It is necessary to clarify the sentencing order. The trial judge,
    applying the totality principle, reduced the total sentence imposed by one
    year. The appellant concedes that the reduction in total sentence for totality
    falls away when the firearms and breach of prohibition order convictions are
    quashed. However, he submits, and the Crown agrees, that the credit he received
    for presentence custody should remain. The appellant received two concurrent
    three-year sentences for the cocaine offences and a concurrent one-year
    sentence for possession of proceeds of crime. He received 27 months credit for
    presentence custody. The result is that his effective sentence is nine months.

E.A. Cronk J.A.

R.G.
    Juriansz J.A.

David Watt J.A.