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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    that could identify the victim shall not be published in any document or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. Santhosh, 2016 ONCA 731

DATE: 20161006

DOCKET: C58666

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renjit Santhosh

Appellant

Anthony Moustacalis, for the appellant

Rochelle Direnfeld, for the respondent

Heard: May 6, 2016

On appeal from the judgment of Justice Kenneth L. Campbell,
    sitting as a Summary Conviction Appeal Court, dated March 21, 2014, with
    reasons reported at 2014 ONSC 1802, upholding the conviction entered on April
    3, 2012, by Justice F. Bhabha of the Ontario Court of Justice.

Juriansz J.A.:

Background in Brief

[1]

The
    appellant was charged with sexual assault arising from an incident with a 52-year
    old female patient at a physiotherapy clinic in Toronto where the appellant
    worked as a physiotherapy assistant. The patient claimed that, near the end of
    a treatment with the appellant in a private cubicle, the appellant touched the
    middle of her chest, moved her t-shirt aside with his hand and, motioning to her
    with his finger to his lips to be quiet, reached inside her bra and touched her
    nipple and one of her breasts.

[2]

The
    appellant, 35 years old at the time of the trial, testified and denied any
    sexual contact with the complainant. He stated that, both on the day in
    question and during earlier treatment sessions, the complainant made sexually
    suggestive remarks and acted in a sexually provocative manner toward him. According
    to the appellant, on the day of the alleged assault, the complainant lowered
    her halter top and exposed her bra-covered breasts to him, while moving her
    eyes in a sexually suggestive or provocative manner, and said Im a bad girl.
    The appellant maintained that he ignored the incident, which he said lasted
    about 10 seconds, and carried on to complete the complainants treatment.

[3]

There
    was also evidence at trial that, some hours after the complainant had left the
    clinic on the day of the incident, the appellant told his supervisor that the
    complainant had exposed her breasts to him and said that she was a dirty girl
    or words to that effect. The appellants report of the incident was noted in
    the complainants chart.

[4]

The
    trial judge rejected the appellants testimony, finding that it was
    contrived, appeared to be well-rehearsed and made very little sense in
    several respects. She accepted the clinic owners evidence that the appellant reported
    the incident but held that the appellants disclosure was a pre-emptive
    reporting and an exercise in self-preservation, designed to control any
    potential damage in the event of a complaint against him. In contrast, the
    trial judge found that the complainants credibility was strong, that her
    testimony lacked guile or contrivance, and that the core of her account of the
    incident was consistent and believable. Accordingly, she convicted the
    appellant of one count of sexual assault. He received a 90-day conditional
    sentence, plus 12 months probation.

[5]

His
    appeal from his conviction was rejected by the Summary Conviction Appeal Court
    judge (the SCAC judge).

[6]

The
    appellant now seeks leave to appeal to this court. He argues that the SCAC judge
    erred in law by concluding the trial judge did not err by considering the complainants
    attire in court and her apparent religious beliefs as relevant factors in
    assessing her credibility.

Leave to Appeal

[7]

The
    test for leave to appeal to this court from the decision of a Summary Conviction
    Appeal Court under s. 839 of the
Criminal Code
, R.S.C. 1985, c. C-46,
    is well-established. To obtain leave, the applicant must demonstrate that the
    question sought to be raised on appeal is a question of law alone and that it
    either: i) has significance to the administration of justice beyond the
    particular case, even if the merits of the proposed appeal are not particularly
    strong; or ii) the merits of the proposed appeal appear to be very strong, even
    if the matters in issue have no general importance beyond the particular case:
R.
    v. R. (R.)
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37.

[8]

I
    am satisfied that the test for leave to appeal to this court has been met. The
    appellants proposed grounds of appeal involve questions of law alone
    concerning the trial judges assessment of the complainants credibility and
    reliability. As this court held in
R. v. M. (A.)
, 2014 ONCA 769, 123
    O.R. (2d) 536, at para. 19, a legal error made in the assessment of
    credibility may displace the deference usually afforded to a trial judges
    credibility assessment and may require appellate intervention. For a trial
    judge to rely on irrelevant factors to bolster a witness credibility is such
    an error. Further, in my opinion, although the merits of the appellants proposed
    appeal are not strong, the questions sought to be raised by him on appeal have significance
    to the administration of justice beyond the four corners of this case. I would
    therefore grant leave.

Issues

[9]

The
    appellant submits that the trial judge erred in her assessment of the
    complainants credibility by taking account of extraneous or irrelevant
    factors. Specifically, he argues that the trial judge erred by treating, as
    factors bolstering her credibility, the complainants manner of dress in court
    and her apparent religious beliefs. The SCAC judge erred, the appellant says, by
    holding that it was open to the trial judge to consider these factors in
    evaluating the complainants credibility.

Analysis

(1)

Complainants Appearance and Demeanour

[10]

I turn first to
    the trial judges comments about the complainants appearance and demeanour in
    court, including her manner of in-court attire.

(a)

Parties Positions

[11]

The appellant
    argues that the trial judge erred by relying on the complainants in-court
    dress as a factor enhancing her credibility. He further submits that, given
    this error by the trial judge, the SCAC judge erred by holding that the trial
    judges analysis of the complainants credibility was not tainted by reversible
    error.

[12]

The Crown, on
    the other hand, argues that the SCAC judge correctly concluded that the trial
    judge did not place undue emphasis on the complainants courtroom appearance
    and demeanour in assessing her credibility. The manner of the complainants
    dress in court was only a minor element of the trial judges credibility
    analysis and, essentially, was of no moment. In any event, the Crown submits, the
    appellants version of events at trial  that the complainant was the sexual
    aggressor and acted in a provocative manner toward him  entitled the trial
    judge to take account of the complainants in-court dress.

(b)

Discussion

[13]

In her analysis
    of the complainants credibility and reliability, the trial judge stated:

I have considered [the complainants] evidence very carefully. [The
    complainant] is a very diminutive person. She presented as very fragile .

.

I will again repeat that [the complainant] appeared to be
    someone who does not have a very forceful personality.
Certainly, her manner
    of dressing in court; again, this is something I have to take with a huge grain
    of salt, she did not present as someone who was provocative
[Emphasis
    added.]

[14]

The SCAC judge
    considered the appellants complaint regarding the trial judges reference to
    the complainants manner of dress in court. He held, at paras. 22 and 23 of his
    reasons, that the complainants demure dress in court was a factor, albeit
    [a] small factor, among others, that the trial judge was entitled to take into
    account as contributing to the complainants overall credibility.

[15]

With respect, I
    disagree. To the extent that the trial judge treated the complainants manner
    of dress in court as a relevant consideration bearing on the complainants
    credibility, she erred in law. It follows that, in failing to so hold, the SCAC
    judge also erred.

[16]

The manner of a
    witness appearance in court is irrelevant to assessing the witness creditworthiness.
    This court has held that how a witness dresses in court is no indicator of his
    or her credibility:
R. v. Minuskin
(2003), 68 O.R. (3d) 577, at para.
    31. The conservative nature of a witness in-court apparel, like flamboyant or
    provocative in-court dress by a witness, offers no assurance of the veracity of
    the witness testimony. Both are immaterial to the creditworthiness of the
    witness testimony.

[17]

There is no
    principled basis on which to conclude that a complainant in a sexual assault
    case who is modestly or demurely dressed in court is more likely to tell the
    truth than a complainant who is provocatively dressed. To conclude otherwise runs
    the risk of engaging in prohibited stereotypical reasoning. See, by analogy,
R.
    v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 82, 88-89,
per
LHeureux-Dubé J., concurring. A complainants manner of dress in a sexual
    assault case simply has no probative value in assessing the truthfulness and
    reliability of his or her testimony.

[18]

That said, it is
    also my opinion that the trial judges error in this case  treating the
    complainants manner of dress in court as a relevant factor in her assessment
    of the complainants credibility  falls short of justifying appellate
    intervention.

[19]

The trial judges
    reasons confirm that she appreciated that a witness demeanour, while relevant
    to the assessment of credibility, is not determinative of the witness credibility
    and must not be overemphasized. The trial judges reasons considered as a whole
    reveal that the complainants in-court appearance and demeanour, including the
    complainants manner of dress, did not form a material part of her reasoning
    regarding the complainants credibility.

[20]

I see no reason
    to interfere with the SCAC judges conclusion, stated at para. 23 of his
    reasons, that the trial judge was careful to place significantly reduced
    emphasis upon the courtroom demeanour of the complainant, properly focusing her
    attention on the substantive details of the complainants testimony (citations
    omitted).

[21]

Given the
    minimal weight accorded to this factor by the trial judge, I am not persuaded
    that the trial judges references to the complainants in-court appearance and demeanour,
    including her manner of dress, caused any substantial wrong or miscarriage of
    justice.

(2)

Complainants Apparent Religious Beliefs

[22]

I reach a
    similar conclusion regarding the trial judges mention of the complainants
    apparent religious beliefs. Though I do not agree with the SCAC judges
    statement of the law, I would not interfere with the result given his
    conclusion the trial judge placed minimal weight on the complainants apparent
    religious beliefs.

[23]

At trial, the
    complainant testified that, after the assault by the appellant, she stayed in
    the room for a while, praying and wondering why this was happening to her. The
    trial judge noted this evidence in her reasons and went on to state:

I have considered [the complainants] evidence very carefully. [The
    complainant] is a very diminutive person. She presented as very fragile, and it
    was clear from her evidence that she is, A God-fearing type of person. She
    referred to prayer, and on more than one occasion indicated, As God is my
    witness. That does not necessarily mean that she is someone whose evidence the
    Court should accept without reservation, but certainly I find that this is part
    of who she was.

[24]

The appellant
    challenged these comments by the trial judge before the SCAC judge, arguing
    that they indicated that the trial judge improperly relied on the complainants
    apparent religious beliefs to bolster the complainants credibility.

[25]

The SCAC judge accepted
    that the complainants apparent religious beliefs were a small factor in the
    trial judges analysis and concluded they were a factor the trial judge was
    entitled to consider in assessing the overall credibility of the complainant. He
    stated:

[24]    It is important to appreciate that the comments of the
    trial judge as to the God-fearing personality of the complainant were based,
    quite accurately, upon aspects of the complainants testimony. As I have
    already indicated, the complainant did, in fact, testify that after she had
    been sexually assaulted, she remained in the treatment cubicle praying for
    about five minutes, asking Lord, help me  I dont know what to do, Im so
    scared  why did this happen to me? Further, at some points in her sworn
    testimony the complainant did, in fact, expressly draw upon her belief that God
    was a witness to the truth of her evidence. For example, in cross-examination,
    when defence counsel suggested that the appellant had never touched her bra or
    her breast in any way, the complainant responded: He did, God is my witness
    and Im telling the truth.

[25]    As a matter of principle, if the evidence reveals
    that a witnesss sworn oath has a greater hold over their conscience  and, in
    turn, the truthfulness of their testimony  as a result of their genuinely held
    religious beliefs, I do not see why that aspect of the evidence must be ignored
    by a trier of fact in assessing the credibility of the witness
.
Moreover, I am aware of no authority that would require a trier of fact to
    ignore such evidence. Indeed, as I understand them, the available authorities
    suggest that, in appropriate and limited circumstances, this kind of evidence
    may properly be weighed as one of the myriad of factors to be taken into
    account in assessing the credibility of a witness.

.

[28]    Accordingly, it seems to me that where, as in the
    present case, the evidence reveals that one of the witnesses has a personal
    religious commitment that might add some special additional security in
    support of the credibility of the witness, the trial judge is not obliged to
    wholly ignore that religious commitment in assessing the credibility and the
    reliability of the testimony of that witness
.

[Citations
    omitted; emphasis added.]

(a)

Parties Positions

[26]

Before this
    court, the appellant renews his argument that the trial judge erred by relying
    on the complainants apparent religious beliefs to buttress the complainants
    credibility.

[27]

The appellant
    argues that the SCAC judge compounded the trial judges error by holding that a
    witness personal religious commitment may add some special additional
    security in support of his or her oath and, hence, credibility. The appellant
    submits that should a witness testify about his or her religious beliefs, this
    evidence cannot enhance the value of the witness oath or render the witness
    more credible by reason of those beliefs. An inquiry into the genuineness of a
    witness oath may be conducted only in limited circumstances to avoid a fraud
    on the court. In concluding to the contrary, the appellant says, the SCAC judge
    erred by misapprehending and misapplying the governing authorities, in
    particular, this courts decisions in
Minuskin
and
R. v. Wiebe
(2006),
    207 O.A.C. 209.

[28]

The Crown argues
    that the trial judge did not err in her analysis of the complainants evidence.
    It maintains that, by noting that the complainant was a God-fearing type of
    person, the trial judge was simply making an observation about the
    complainants character that was inconsistent with the appellants depiction of
    the complainant and her conduct. Further, the complainants apparent religious
    beliefs were an insignificant factor in the trial judges overall assessment of
    the complainants credibility.

[29]

Similarly, the
    Crown contends that the SCAC judge did not err in his consideration of this
    issue. The Crown submits that the SCAC judges impugned comments were not
    intended to convey that a religious witness is more credible than a
    non-religious witness. Rather, in stating that a witness religious commitment
    might provide special additional security in support of his or her
    credibility, the SCAC judge was alluding to the history of the common law and
    the oath. The Crown says that the SCAC judge was correct to hold that evidence
    that a witness particular religious beliefs cause the witness to attach
    special significance to the importance of being truthful in statements made
    under sworn oath is a relevant and proper consideration in assessing the
    witness credibility.

(b)

Discussion

[30]

I agree with the
    SCAC judges conclusion that the complainants apparent religious beliefs were
    a small factor in the trial judges analysis. However, for two reasons, I do
    not agree with his conclusion it was a factor she was entitled to take into
    account in assessing the complainants credibility.

[31]

First, although
the Crown did not elicit the complainants testimony
from
    which the trial judge inferred she was a God-fearing type of person for any
    oath-helping purpose,
it is useful to examine the trial
    judges use of that testimony from an oath-helping perspective. Her use of it for
    credibility purposes was in the nature of impermissible oath-helping.

[32]

Second, setting
    aside any oath-helping concerns, reliance on evidence of the complainants
    religiosity for credibility purposes would nevertheless be improper. I do not
    agree with the SCAC judges conclusion that a trial judge is entitled to
    consider evidence
that reveals that one of the witnesses has a personal
    religious commitment that might add some special additional security in
    support of the credibility of the witness.

(i)

The Rule Against Oath-Helping

[33]

The rule against
    oath-helping bars parties in most circumstances from introducing evidence
    solely to support a witnesss credibility. In

R. v. B. (F.F.)
,
    [1993] 1 S.C.R. 697, at p. 729, Iacobucci J. stated the rule in the following
    manner:

The rule against oath-helping prohibits a party from presenting
    evidence solely for the purpose of bolstering a witness credibility before
    that witness credibility is attacked. This type of evidence is of the sort
    that would tend to prove the truthfulness of the witness, rather than the truth
    of the witness' statements.

[34]

Evidence that
    might have an incidental oath-helping aspect is admissible when tendered for
    some other admissible purpose. That said, where evidence is admissible for
    another purpose, but it is also oath-helping, a court should take any
    appropriate steps necessary to limit the oath-helping nature of the evidence,
    including cautioning the jury:
R. v. Mallory
, 2007 ONCA 46, 220
    O.A.C. 239, at para. 280. Trial judges sitting alone should heed this caution
    and use such evidence only for the other admissible purpose. In this case there
    was no other admissible purpose for the evidence.

[35]

Consequently, the trial judge could not use the evidence of the
    complainants religiosity for credibility purposes, unless
some
    exception to the rule against oath-helping applied. There are two primary exceptions
    to the rule against oath-helping, neither of which apply here.

[36]

First, the rule
    against oath-helping does not apply to an accused person testifying in a
    criminal proceeding:
R. v. Clarke
(1998), 129 C.C.C. (3d) 1 (Ont. C.A.),
    at para. 20. The law gives wide latitude to accused persons to introduce
    oath-helping and other character evidence.

[37]

Second, a party
    can introduce oath-helping evidence to bolster the credibility of a witness
    whose credibility has been attacked. However, the scope of permissible oath-helping
    evidence in such a situation is limited. In
R. v. Tash
,
2013 ONCA 380, [
2013] O.J. No. 2642, Watt J.A.
    helpfully laid out the interplay between an attack on credibility and the
    evidence that may be adduced in response to it:

[
42
]    A witness character for truthfulness
    or mendacity is relevant circumstantial evidence on the question of the
    truthfulness of the witness testimony. Evidence of a witness previous
    deception tends to demonstrate a character for untruthfulness. In turn, the
    existence of such a character trait increases, at least slightly, the
    probability that the witness has lied under oath. Proof of a witness character
    trait for untruthfulness can be accomplished in several ways including proof of
    prior untruthful conduct, the witness associations, and prior history. Any
    other acts offered to establish character should have a significant relation to
    credibility.

[
43
]    Our adversary system requires that
    the proponent of a witness be afforded an opportunity to meet attacks on the
    credibility of the witness by presenting evidence rehabilitating the witness.
    But the
bolstering evidence must be responsive to the nature of the attack
    and not exceed permissible limits.
For example, supportive evidence of good
    character for honesty of a witness impeached by evidence of bad character for
    untruthfulness or dishonesty is permissible. Proof of prior consistent
    statements to rebut impeachment on grounds of recent fabrication is also
    permissible. At root, the admissibility of rehabilitative evidence should
    depend on whether what is proposed is logically relevant to rebut the
    impeaching fact.
The rehabilitating facts should meet the impeachment with
    relative directness. The wall, attacked at one point, may not be fortified at a
    distinctly separate point.
[Citations omitted; emphasis added.]

[38]

This was not a case in which oath-helping evidence was admissible
    for rehabilitative purposes. While the complainants credibility was, of
    course, attacked by implication, the defence did not introduce evidence of the
    complainants character for dishonesty. As noted by Watt J.A. in
Tash
,
    rehabilitative oath-helping evidence must respond with relative directness to
    some particular attack.

[39]

Neither oath-helping exception applies and there was no other
    admissible purpose for the evidence. Therefore, what the complainant said about
    her action of praying was at most part of her narrative of events in the
    immediate aftermath of the assault and the trial judge was wrong to rely on it
    for credibility purposes.

(ii)

Evidence of Religious Beliefs Should Not Be Used
    for Credibility

[40]

Oath-helping
    considerations aside, in my view, reliance on evidence of the complainants
    religiosity for credibility purposes would nevertheless be improper. I conclude
    that evidence of a witnesss religious beliefs is not admissible for the
    purposes of enhancing or impeaching his or her credibility, nor can it be
    relied upon for those purposes. I reach this conclusion for three reasons.

[41]

First,
    evidence of a witness religious beliefs is simply not useful in assessing
    credibility. In considering evidence potentially relevant to credibility the court
    must first ask whether the evidence indicates the witness is more or less
    likely to tell the truth in court. Our law recognizes that
the

tendency or disposition of a person to do a
    certain act is relevant to indicate the probability of his doing or not doing
    the act:
R. v. McMillan
(1975), 23 C.C.C. (2d) 160 (Ont. C.A.), affd
    [1977] 2 S.C.R. 824, at p. 167. So in order for character evidence to be relevant
    to credibility, it must establish a
tendency
or
disposition
to
    tell the truth or to lie.

[42]

For example, previous convictions for offences of dishonesty can
    help establish a track record of lying and thus, as a matter of logic and
    experience, a tendency to lie in the future. So too can evidence of an
    accuseds reputation for honesty in the community provide some limited evidence
    of a disposition or tendency to tell the truth (albeit our courts have come to
    view such evidence with increasing skepticism over time).

[43]

But our court has already held that the bare fact of membership in a
    particular faith group does nothing to establish such a tendency or
    disposition. Rosenberg J.A. said in
Minuskin,
at paras. 30-31, that a
    witnesss attendance at a religious school and wearing of a yarmulke in court
    were no indicia of his credibility. To hold otherwise would require the court
    to accept the spurious premise that members of religions are more likely than
    non-members to act morally or honestly.

[44]

Evidence that merely establishes a witness holds religious beliefs does
    not establish a tendency or disposition to tell the truth or to lie. Courts,
    generally, seem to recognize this. This court was not referred to any previous
    authority in which a judge used evidence of a witness religious beliefs, in
    and of themselves, as a basis for determining that he or she was more or less
    likely to tell the truth. There are people of all religious beliefs  and of no
    religious beliefs  who lie, just as there are those who are truthful.

[45]

In this case, there was no actual evidence of the complainants
    religious beliefs. The trial judge had before her nothing more than the
    complainants own assertion of religiosity  and no evidence of what her
    beliefs actually were. But even if more specific, independent evidence was led,
    a witness subjective religious belief, or fear of God, does not establish a
    tendency or disposition to tell the truth.

[46]

Second, and
    relatedly, the risk of prejudice associated with using evidence of a witness religious
    beliefs for credibility purposes is extremely high, far outstripping any
    possible probative value. There is a risk of both moral and reasoning
    prejudice, concepts described by Binnie J. in
R. v. Handy,
2002 SCC 56,
    164 C.C.C. (3d) 481, at paras. 139-147; see also
R. v. Pollock
(2004),
    187 C.C.C. (3d) 212 (Ont. C.A.), at paras. 99-111.

[47]

Evidence of a
    witness religious beliefs may distract the trier of fact from the core issues
    and lead them to draw improper inferences based on prejudice or stereotyping.
    This is particularly true in cases where a witness holds minority religious
    views that are poorly understood, or even disliked, by the majority in society.
    Of course, the converse is also of serious concern: there is a risk that the
    witness who holds more mainstream, popularly understood beliefs is more likely
    to be held credible.

[48]

And there is one
    final risk. In comparing two witnesses, one religious and one not, the
    religious witness may all too often benefit from the easy, ready-made inference
    of credibility that adherence to religious principles provides. No such
    ready-made inference is available to the non-believer, merely because her
    personal ethics may not fit within an easily understood or articulable
    archetype. I agree with the SCAC judge when, in his reasons, he wrote:

[31]     [A]ssessing
    the credibility of any witness is not a precise science or a purely
    intellectual exercise. Rather, it is a difficult and delicate task, often
    defying clear and comprehensive
verbalization
, especially given the complex intermingling of
    impressions that emerge after watching and listening to witnesses and
    attempting to reconcile the various versions of events.
[Citations
    omitted].

In such an
    exercise, the courts must be especially vigilant to excise from consideration
    factors that may lead to unconscious prejudice.

[49]

Third, public
    policy concerns militate against using evidence of a witness religious beliefs
    for credibility purposes. In s. 14 of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5, Parliament has made clear that an oath and affirmation are
    equivalent. This legislative policy reflects the
Charter
values of
    freedom of conscience and religion and of equality. This policy would be
    undermined by permitting or encouraging inquiry into the religious beliefs of
    witnesses in our courts for the purposes of assessing credibility. While there
    are some very limited circumstances in which inquiry into the degree to which
    an oath or affirmation binds a witness conscience is permissible, these are
    restricted to where there is reason to believe that the witness oath or
    affirmation is not genuine. Such an inquiry is primarily a question of
    testimonial competence as opposed to credibility. See for example:
R. v.
    T.R.J.
, 2013 BCCA 449, 6 C.R. (7th) 207, at para. 4;
R. v. A.K.H.
,
    2011 ONSC 5510, 97 W.C.B. (2d) 413, at paras. 27-28;
R. v. Bell
, 2011
    ONSC 1218, [2011] O.J. No. 603, at para. 57.

[50]

It would be
    inappropriate to permit any more invasive inquiry. If religious beliefs (or the
    absence thereof) were to be considered relevant to bolstering a witness
    credibility, then surely they would also be relevant to impeaching credibility.
    Under this approach, witness testimony could easily devolve into a roving
    inquiry into collateral facts relating to the religious beliefs of witnesses.
    The efficient and fair functioning of our courts would not be well served by
    such a development.

[51]

I find further support
    for these conclusions in the law of the United States. The United States has an
    approach to using character evidence for credibility purposes that closely
    resembles the Canadian approach. For example, United States
Federal Rules of
    Evidence
Rule 608 states:

A witnesss credibility may be attacked or supported by
    testimony about the witnesss reputation for having a character for
    truthfulness or untruthfulness, or by testimony in the form of an opinion about
    that character. But evidence of truthful character is admissible only after the
    witnesss character for truthfulness has been attacked.

(Pub. L. 93595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2,
    1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

[52]

At the same
    time, the United States has an explicit bar on using evidence of religious
    beliefs or opinions for credibility purposes. Rule 610 of the United States
Federal
    Rules of Evidence
explicitly prohibits introduction of evidence for this
    purpose. The Rule and commentary read as follows:

Rule 610. Religious Beliefs or Opinions

Evidence of a witnesss religious beliefs or opinions is not
    admissible to attack or support the witnesss credibility.

Notes

(Pub. L. 93595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of the Advisory Committee on Proposed Rules

While the rule forecloses inquiry into the religious beliefs or
    opinions of a witness for the purpose of showing that his character for truthfulness
    is affected by their nature, an inquiry for the purpose of showing interest or
    bias because of them is not within the prohibition. Thus disclosure of
    affiliation with a church which is a party to the litigation would be allowable
    under the rule. Cf.
Tucker v. Reil
, 51 Ariz. 357, 77 P.2d 203 (1938). To
    the same effect, though less specifically worded, is California Evidence Code
    §789. See 3 Wigmore §936
.

[53]

The reasons for
    this rule are obvious. Rule 610 is in place because inquiry into religious
    beliefs or opinions is not sufficiently probative as to the credibility of a
    witness to be admitted when considered in light of the potential for unfair
    prejudice: Michael H. Graham,
Federal Rules of Evidence in a Nutshell,
9th
    ed. (St. Paul: West Publishing Co., 2015), at pp. 306-307. The Federal Rules, and
    the rules in many US states, prohibit this type of questioning for several
    reasons, outlined in Steven L. Emanuel,
Evidence
(New York: Aspen
    Publishers, 2007), at p. 145:

First, it is highly doubtful whether the witness religious
    beliefs have any probative value at all on his
truthfulness
. Second,
    use of such evidence is likely to have a prejudicial effect on the jury.
    Finally, use of such evidence would violate at least the spirit, and possibly
    the letter, of the U.S. Constitutions various provisions regarding freedom of
    worship [internal citations omitted; emphasis in original.]

The authors of
McCormick

on Evidence
come to a similar conclusion: Kenneth S. Broun et al, eds.,
McCormick on
    Evidence
, 7th ed. (St. Paul: Thomson Reuters, 2013), at
§46.

[54]

For those
reasons
, I do not agree with the comments of the SCAC judge
    at paras. 25 and 28 of his reasons, quoted above. It is an error of law to
    consider evidence of a witness religious beliefs in assessing his or her
    credibility. This is true whether the issue is framed in relation to the
    significance of the oath for the witness, or in some other manner.

[55]

However, as stated at the outset of the discussion, I do agree with
    the SCAC judges conclusion
that the complainants apparent religious
    beliefs were a small factor in the trial judges analysis. In fact, the trial
    judge did not even indicate the import of her observation that the complainant
    was a God-fearing type of person. Given that the trial judge made this
    observation in her discussion of the complainants credibility, the SCAC judge
    was entitled to infer she made some use of it. However, reading her reasons as
    a whole, it is apparent her use of the complainants religiosity was at most
    marginal and that she would have reached the same conclusion regarding the
    complainants credibility in any event. I am not persuaded that the trial
    judges observation of the complainants god-fearing nature caused any
    substantial wrong or miscarriage of justice.

(3)

Conclusion

[56]

Despite the SCAC judges errors, described above, I agree with the
    conclusion he reached. I would dismiss the appeal.

Released: October 6, 2016 (EAC)

R.G. Juriansz J.A.

I agree E.A. Cronk J.A.

I agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Srbinovski, 2016 ONCA 729

DATE: 20161004

DOCKET: C62123

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marijan Srbinovski

Appellant

Greg Dorsz, for the appellant

Rebecca De Filippis, for the respondent

Heard: September 27, 2016

On appeal from the sentence imposed on February 11, 2015
    by Justice Jane E. Kelly of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to assault causing bodily harm and was
    sentenced to six months imprisonment. He seeks leave to appeal his sentence on
    the ground he was unaware of the immigration consequences to him during the
    plea and sentencing proceedings. He asks that his sentence be reduced to six
    months less a day.

[2]

The Crown acknowledges and we agree that we should allow the appellants
    sentence appeal. The immigration consequences are significant; the reduction in
    the sentence is modest; and six months less a day remains a fit sentence.

[3]

Accordingly, leave to appeal is granted, the appeal is allowed
    and the sentence is reduced to six months less a day.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sriskantharajah, 2016 ONCA 740

DATE: 20161012

DOCKET: C59685

MacPherson, Epstein & Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. v. Kandiah Sriskantharajah

Appellant

Kandiah Sriskantharajah, acting in person

Davin Michael Garg, for the respondent

Heard: October 3, 2016

On appeal from the conviction entered on November 4, 2014
    by Justice Todd Ducharme of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction for fraud exceeding $5,000. The
    charge arose out of the appellants having purported to sell the victim airline
    tickets for $10,800.00. The appellants argument before this court is grounded
    on his assertion that the documents upon which the Crown relied in support of
    its case were fabricated. The record establishes no basis for this argument.
    The appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Gloria Epstein
    J.A.

P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Tung, 2016 ONCA 782

DATE: 20161026

DOCKET: C58322

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anderson Tung

Applicant/Appellant

Anderson Tung, in person

Erin Dann,
amicus curiae

Brock Jones, for the respondent

Heard: April 4, 2016

On application for leave to appeal from the order of Justice
    B. Croll of the Superior Court of Justice dated January 9, 2014.

Pepall J.A.:

Overview

[1]

On June 27, 2008, the applicant was convicted of assault with intent to
    resist arrest and of carrying a concealed weapon. He received a suspended
    sentence and three years probation.  On December 17, 2008, his appeal against
    conviction to the summary conviction appeal court (SCAC) was dismissed as
    abandoned.

[2]

On January 9, 2014, the applicants application for an order granting
    leave to re-open his appeal and for an extension of time to re-file the
    Notice of Appeal was dismissed by the summary conviction appeal court judge
    (the SCAC judge). The applicant now seeks leave to appeal that decision.

[3]

There are two issues to address:

(i)    Does this
    court have jurisdiction to hear the appeal from the decision of the SCAC judge?

(ii)    Should
    leave to appeal be granted?

[4]

Following oral argument on the issue of jurisdiction, this court
    concluded that we do have jurisdiction, with reasons to follow.  These are
    those reasons.  In addition, I would dismiss the application for leave to
    appeal.

Facts

[5]

On April 26, 2007, police officers stopped the applicants vehicle for
    speeding. The applicant exited his vehicle, but left it running. One of the
    officers asked the applicant for his licence and then for his name, but he
    refused to identify himself and began to walk away. The applicant was told that
    he was under arrest for failing to identify himself under the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8.

[6]

The applicant then engaged in a physical altercation with the police
    officers. Once the applicant was handcuffed, one of the police officers entered
    the applicants car to turn off the ignition, which was hanging down by its
    wires. He thought he saw a handgun concealed underneath the drivers seat. It proved
    to be a pellet gun. The applicant was subsequently charged and, as mentioned, on
    June 27, 2008, was convicted of assault with intent to resist arrest and
    carrying a concealed weapon.

[7]

The applicant filed a notice of appeal against his summary conviction on
    July 23, 2008, prior to his sentencing.

[8]

On August 5, 2008, the trial judge made an order for the applicants
    assessment pursuant to s. 21 of the
Mental Health Act
, R.S.O.
    1990, c. M.7. The mental health assessment revealed that he likely suffered
    from a delusional disorder. His case was adjourned to September 3, 2008 and
    then again to October 8, 2008. On that date, he did not appear and a bench
    warrant was issued for his arrest. He was arrested and brought to court on
    November 18, 2008. He remained in custody pending sentencing.

[9]

In the meantime, the applicants summary conviction appeal to the SCAC was
    spoken to on November 26 and December 17, 2008. However, the applicant did not
    appear. Apparently, he was in custody on those dates. Neither the presiding
    judge nor the Crown was aware of his detention. The appeal against conviction was
    dismissed as abandoned on December 17, 2008.

[10]

On December 18, 2008, the applicant received a suspended sentence and
    three years probation and was then released from custody. He has since
    completed his term of probation.

[11]

Approximately five years later, on January 6, 2014, the applicant
    brought an application before the SCAC for an order granting leave to re-open
    his appeal and an extension of time to re-file the Notice of Appeal. Due to
    the inadequate state of the application materials and in the absence of any
    notice of appeal, the SCAC judge proceeded on the basis that the applicant was
    requesting an extension of time to file a notice of appeal to appeal his conviction.

[12]

At that time, the applicant submitted that he missed the December 17,
    2008 date because he was in custody.  He also stated that he had been attacked
    while in custody, had been unable to find employment, and was living on social
    services.

[13]

On January 9, 2014, his application was dismissed. The SCAC judge found
    that, although some
bona fide
intention to appeal had been
    demonstrated, an extension of time was not warranted due to inordinate delay, the
    absence of evidence on the merits of the proposed appeal, and prejudice to the
    Crown.  She also found that there was no real concern that there was any
    injustice.

[14]

The applicant seeks leave to appeal from that dismissal.

Jurisdiction

(a)

History of Summary Conviction Appeals

[15]

Part
    XXVII of the
Criminal Code
creates two separate avenues of appeal for summary
    conviction matters. It is open to an appellant to choose which route to pursue.

[16]

The first
    avenue is under s. 813.  That section creates a broad right of appeal and s.
    822 describes the powers of the appeal court.  Historically, this avenue of appeal
    involved a trial
de novo
.  A
s a result of changes effected by
    the
Criminal Law Amendment Act
, S.C. 1974-75-76, c. 93, s. 94, an
    appeal based on the record, as opposed to an appeal by way of trial
de novo
,
    is now the usual procedure for summary conviction appeals under s. 813: see
R.
    v. Century 21 Ramos Realty Inc.
, [1987] 32 C.C.C. (3d) 353 (Ont. C.A.), at
    pp. 382-385.

[17]

The
    second avenue of appeal is under s. 830.  That section creates the right
    of appeal and s. 834 describes the powers of the appeal court.  Section 830 is
    the successor to provisions providing for an appeal by stated case on questions
    of law or jurisdiction only: see
R. v. Kapoor
, [1989] O.J. No. 1887 (Ont.
    H.C.J.). As a result of the
Criminal Law Amendment Act
, S.C. 1985, c. 19, s. 182,
    the appeal by way of stated case was replaced by a new procedure providing for
    an appeal based on the transcript or on an agreed statement of facts. Sections
    829 to 838 permit a summary appeal to be taken under s. 830 only on the grounds
    that the decision is: (a) erroneous in point of law; (b) in excess of
    jurisdiction; or (c) constitutes a refusal or failure to exercise jurisdiction.

[18]

The
    routes of appeal under s. 813 and s. 830 are mutually exclusive: pursuant to s.
    836, an appeal under s. 830 is deemed to be an abandonment of all appeal rights
    under s. 813. In Ontario, an appeal court under s. 813 is defined as the Superior
    Court of Justice sitting in the region, district or county or group of counties
    where the adjudication was made, and an appeal court under s. 830 is defined
    as the superior court of criminal jurisdiction for the province.

(b)

Further Right of Appeal

[19]

A further
right of appeal from either
    avenue to a court of appeal, such as this court, is limited by s
ection
    839(1) of the
Code
.  It states that:

an appeal to the court of appeal as defined in section 673
    may, with leave of that court or a judge thereof, be taken on any ground that
    involves a question of law alone, against

(a) a decision of a court in respect of
    an appeal under section 822; or

(b) a decision of an appeal court under section 834, except
    where that court is the court of appeal.

[20]

As mentioned, s. 822 describes the
    powers of an appeal court on an appeal under s. 813 and s. 834 describes the
    powers of an appeal court under s. 830. Thus, s. 839(1) of the
Criminal
    Code
governs whether this court has jurisdiction
    to hear an appeal from a summary conviction appeal proceeding.

(c)

Positions of Parties

[21]

The applicant was self-represented. In his written submissions,
    he focused primarily on the route governed by ss. 830 and 834. In his
    materials, at various points he also made reference to ss. 813 and 822.

[22]

Amicus
relied on s.
    839(1)(a) of the
Code
which
    addresses s. 822 (and hence s. 813) appeals.  She
submitted
    that this court does have jurisdiction to hear an appeal from the decision of a
    summary conviction appeal court judge dismissing an application for an
    extension of time to appeal or to reopen an appeal previously dismissed as
    abandoned. The Crown did not dispute that this court may have jurisdiction.

[23]

Given
    the positions adopted by the applicant and
amicus
, I will address each avenue
    of appeal.

(d)

Analysis

[24]

For this
    court to have jurisdiction to consider the applicants request for leave to
    appeal from the SCAC judges decision dismissing his application, depending on
    the applicable avenue, the decision of the SCAC judge must be in respect of an
    appeal under s. 822 or a decision of an appeal court under s. 834.  In
    addition, as s. 839(1) contemplates an appeal on a question of law alone, the
    application must allege a question of law.  In the face of such an allegation and
    a request for leave to appeal from a s. 822 or s. 834 decision, this court will
    have jurisdiction to consider the application seeking leave to appeal.  Having
    taken jurisdiction, the court will then address whether a question of law is
    engaged and, if so, whether the merits of the application for leave to appeal demand
    that the leave requested be granted.  If leave is granted, this court will
    subsequently consider the merits of the appeal from the SCAC judges decision.

[25]

While
    cases such as
R. v. Brown
(2003), 173 C.C.C. (3d) 23 (Ont. C.A.),
R.
    v. Kubassek
,
    [2004] 188 C.C.C. (3d) 207 (Ont. C.A.), and
R. v. West
, 2007 NSCA 5 might be construed
    as treating the establishment of a question of law as an essential requirement
    on which jurisdiction is predicated, I would not adopt that interpretation.
    Rather, those cases and their progeny reflect the need to raise or, put
    differently, allege a question of law for this court to have jurisdiction to
    consider the application.

[26]

Applying
    these principles to this case, the application does allege a question of law in
    relation to the decision of the SCAC. Secondly, regardless of which appeal
    route the applicant is pursuing, the order constituted either a decision of a
    court in respect of an appeal under section 822: see
R. v.
    Robertson
(1978),
    45 C.C.C. (2d) 344 (Ont. C.A.), or a decision of an appeal court under section
    834.  If the former, this court has jurisdiction under s. 839(1)(a) and
    if the latter, it has jurisdiction under s. 839(1)(b).  Whether the applicant
    brought his appeal under ss. 813 and 822 or ss. 830 and 834, the order of the
    summary conviction appeal court falls within the language of s. 839 under
    either avenue of appeal.

[27]

With respect to s. 839(1)(a), this treatment is consistent with the
    Supreme Courts holding in
The Queen v. Dennis
, [1960] S.C.R. 286, where
    the court held that a decision as to whether an appeal court will hear an
    appeal is a decision of the court in respect of an appeal, and with
R. v.
    Burgar
(2003), 176 C.C.C. (3d) 253 (B.C.C.A.), dealing with similar
    language and an appeal under the
Offences Act
, R.S.B.C. 1996, c. 338.

[28]

As noted in
The Queen v. Dennis
, in relation to the predecessor
    to s. 839(1)(a), the broad scope of the section is reflected in the French
    language version of the section that states: de toute décision dun tribunal
    relativement à un appel prévu par larticle 822.

[29]

In the past, this court has exercised jurisdiction in similar circumstances:
    see for example
R. v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.),
    leave to appeal refused [2002] S.C.C.A. No. 116; or has assumed jurisdiction
    without deciding the issue:
R. v. Dalgleish
, 2005 CanLII 45736 (Ont.
    C.A.), at para. 1;
R. v. Gonsalves
, [1995] O.J. No. 4046, at para. 4. Other
    appellate courts have concluded that there is such jurisdiction:
R. v.
    Lenko
, 2010 MBCA 10, 196 A.C.W.S. (3d) 198, at para. 3;
R. c. Belaroui
,
    [2004] 186 C.C.C. (3d) 386 (Que. C.A.); Furthermore, we were not directed to
    any appellate authority holding that there is no jurisdiction.
[1]

[30]

Lastly, in comparison, the
Provincial Offences Act
, R.S.O.
    1990, c. P.33 (
POA
) uses more restrictive language with respect to
    appeals to the Court of Appeal. Section 131(1) of the
POA
says that an
    appeal may be brought from the judgment of the court. This court recently
    decided in
R. v. A.E.
, 2016 ONCA 243, [2016] O.J. No. 1704, that it
    had jurisdiction to hear an appeal from a dismissal of an application for the
    extension of time under that section. Given that jurisdiction exists under this
    more restrictive language, it must also exist under the
Code
s more
    expansive language of a decision of a court in respect of an appeal.

[31]

While no authorities were submitted on s. 839(1)(b), I am satisfied that
    the dismissal of the applicants application would likewise constitute a
    decision of an appeal court within the meaning of that subsection, based on a
    comparable rationale.

[32]

First, such an interpretation is consistent with this courts decision
    in
A.E.
, as noted above.

[33]

Second, in my view, both s. 839(1)(a) and s. 839(1)(b) reflect a right
    of appeal that flows from the two summary conviction appeal routes.  Although
    s. 839(1)(b) does not use the broader in respect of an appeal wording,
    there is no principled basis upon which there should be jurisdiction in this
    court in relation to one provision and not the other.

[34]

A decision in relation to either an extension of
    time or an application to reopen is a decision of an appeal court under the
    powers of that court.
Both avenues of summary conviction appeal
    specifically permit the granting of extensions of time (s. 815(2) in relation
    to s. 813/822 appeals and s. 838 in relation to s.830/834 appeals). There is
    long recognized ancillary or inherent jurisdiction of appeal courts to control
    their own process by allowing the re-opening of an appeal that has been
    dismissed as abandoned and not heard on its merits:
see
R. v. Robertson

(1978), 45 C.C.C. (2d) 344
    at 347;
R. v. Gironda
, [1995] O.J. No. 1231 at para. 7, dismissed as
    abandoned, [1997] O.J. No. 1573; and
R. v. H.(E.F.)
,
R.
    v. Rhingo

(1997),

115 C.C.C. (3d) 89

at
101 (Ont. C.A.)  This would extend to either avenue of summary
    conviction appeal.

[35]

Accordingly, having alleged a question of law and having fallen within
    the ambit of s. 839(1), this court has jurisdiction to hear this application
    for leave to appeal.

Question of Law and Leave to Appeal

(a)      Applicable Test

[36]

Having accepted
    that this court has jurisdiction, the first issue to address is whether a
    question of law alone is engaged.
To reiterate, s. 839(1)
    provides for an appeal to this court, with leave, "on any ground that
    involves a question of law alone".

[37]

If a
    question of law is engaged, the next issue to address is whether leave to
    appeal should be granted.

[38]

In
R.
    v. R.R.
,
2008
    ONCA 497, 90 O.R. (3d) 641, this court addressed applicable principles for
    leave to be granted under s.839 for summary conviction appeals to this court
    and held that leave under s.839 should be granted sparingly.  The focus in
R.R.
was on appeals that had
    already been heard on their merits by the summary conviction court.  As Doherty
    J.A. explained, the two key variables to granting leave are the significance of
    the legal issues raised to the general administration of criminal justice and
    the merits of the proposed appeal.  If the issues have significance to the
    administration of justice beyond the particular case, then leave to appeal may
    be granted even if the merits are not particularly strong, though the grounds
    must at least be arguable.  Where the merits appear very strong, leave to
    appeal may be granted even if the issues have no general importance, especially
    if the convictions in issue are serious and the applicant is facing a
    significant deprivation of his or her liberty: see
R.(R.).
,
at para. 37
.

[39]

However,
    an order refusing to extend time or to reopen an appeal does not involve an
    appeal that has already been heard on the merits.  In such circumstances, it is
    unlikely that the first variable dealing with the significance of the legal
    issue would be applicable. Therefore, typically, greater weight will be placed
    on the second variable, namely the merits of the proposed appeal from the order
    of the SCAC judge.

(b)      Application of Test

(i)

Question of Law

[40]

Turning to whether a question of law
    is raised,
amicus

submits that in reaching her
    decision, the SCAC judge used the wrong test by applying the test for an
    extension of time and also failed to properly consider the history of the
    proceedings leading up to the dismissal of his appeal.

[41]

The respondent rejects
amicus
 submissions and submits that,
    although engaging different requests, the test for an extension of time and the
    test for reopening an appeal are essentially the same. Both address whether the
    application is in the interests of justice.

[42]

Dealing first with the issue of the history of the proceedings, while the
    SCAC judge did not have the entire file, the materials before her did address
    the history, as did the parties oral submissions.  It is evident from her
    reasons for decision, delivered the same day as the oral submissions, that she
    did consider the applicants history and that of the proceedings. In any event,
    a question of law alone is not raised by this issue.

[43]

Turning to whether the SCAC judge applied the correct test, a request
    for an extension of time is different from a request to reopen an appeal. Ultimately,
    however, the governing concern is the interests of justice.

[44]

As explained in
R. v. Menear
, on an application for an
    extension of time, the applicant must demonstrate that justice requires that
    time be extended. The court will usually consider the following three factors
    in determining whether an extension of time is in the interests of justice:

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

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

(iii)   is
    there merit to the proposed appeal.

[45]

The decision to reopen a criminal appeal involves setting aside an order
    of an appellate court.  As mentioned, the power to reopen is restricted to
    cases where the appeal has not been heard on its merits.  The court then has a
    discretion to reopen the appeal if it is in the interests of justice to do so:
R. v. McDonald
, 2016 ONCA 288 at para. 5;
Rhingo
; and
R.
    v. Sipos
, 2008 ONCA 325, at paras. 4 and 6.

[46]

Relying on the confusing materials before her and oral submissions, the SCAC
    judge treated the applicants application as a request for an extension of time
    rather than an application to reopen the appeal. She was persuaded that the applicant
    had demonstrated some intention to appeal, but observed that it had been five
    years since the appeal was dismissed as abandoned. Furthermore, the applicant
    had taken no further steps to advance his appeal, nor had he provided a
    reasonable explanation for his delay. In addition, if the applicant were
    successful on the appeal, the Crown would be prejudiced by the delay in that it
    would have to attempt to prove the elements of offences that had occurred more
    than eight years ago. The SCAC judge also noted that there was no evidence
    before her to suggest that there was merit to the appeal.  She concluded by
    stating that there was no real concern that there was any injustice.

[47]

I accept that, reading the materials as a whole, the applicants
    application before the SCAC judge was more in the nature of a request to reopen
    his appeal rather than a request to extend time to appeal and that the test for
    the latter was applied to the former.  As such, this ground of appeal from the
    decision of the SCAC judge involves a question of law alone. However, as will
    be explained, the impact of that treatment is of no moment.

(ii)

Leave to Appeal

[48]

Having established a question of law, the next issue to consider is
    whether leave to appeal should be granted.  As noted above at paras. 38-39, this
    involves a consideration of the merits of the proposed appeal from the SCAC
    judges order denying a re-opening of the appeal, which analysis requires an
    examination of the interests of justice.  The interests of justice may
    encompass a consideration of the merits of the proposed appeal from conviction.

[49]

The SCAC judge concluded that no injustice occurred. Put differently, it
    was not in the interests of justice to grant relief to the applicant. I agree
    with that conclusion.

[50]

Quite apart from the extensive delay and the lack of a reasonable
    explanation for the delay, the merits of the proposed appeal from conviction do
    not favour a reopening of the applicants appeal.
Amicus
submits that
    there is merit to the proposed appeal because the trial judge failed to
    properly consider whether the arrest was lawful and failed to provide adequate
    assistance to the self-represented applicant.

[51]

The record before the trial judge supported both a conviction for
    carrying a concealed weapon and assault with intent to resist arrest.  The trial
    judge found as a fact that the applicant was in possession of a pellet gun, had
    an admitted intention to use it as a weapon if he believed it was necessary and
    was carrying it concealed in his car over which he had care and control.  The
    trial judge also found that the officers had a lawful basis to make an arrest
    under the
Highway Traffic Act
. There was a basis in the record to make
    this finding: the applicant was asked for his licence and then for his name but
    refused to identify himself and began to walk away.  Moreover his lack of
    co-operation constituted sufficient physical activity to result in his
    resisting arrest.

[52]

Lastly,
amicus
 argument that the trial judge was required to
    provide greater assistance to the applicant is not borne out by the record.
    First, a trial judge has a duty to ensure that an accused has a fair trial and
    to provide guidance but not to act as an advocate for the accused:
R. v.
    Chemama
, 2016 ONCA 579, at paras. 13-14;
R. v. Tran
, (2001), 55
    O.R. (3d) 161 at para. 31. Second, throughout the trial, the trial judge
    provided the applicant with reasonable guidance.

[53]

In conclusion, while this court has jurisdiction and while a question of
    law is raised, I am not persuaded that leave to appeal should be granted.

Disposition

[54]

For these reasons, I would dismiss the applicants application for leave
    to appeal.

Released:

OCT 26 2016                                              S.E.
    Pepall J.A.

KF                                                               I
    agree K. Feldman J.A.

I
    agree Janet Simmons J.A.

[1]
In
Gonsalves
, this court expressed some doubt about jurisdiction
    without an explanation as to the basis of that doubt, but assumed jurisdiction
    nonetheless.


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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassell, 2016 ONCA 785

DATE: 20161027

DOCKET: C59014

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the conviction entered on May 5, 2008 and
    the sentence imposed on July 6, 2011 by Justice Thomas P. Cleary of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault. The trial judge
    subsequently declared him to be a dangerous offender and sentenced him to indeterminate
    detention under s. 753(4) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[2]

The appellant appeals his conviction for sexual assault. While the
    notice of appeal included a sentence appeal, it was not pursued. If the
    conviction appeal is successful, then the sentence would fall.

[3]

In procedural terms, the appellant was convicted on May 5, 2008 and
    sentenced on July 6, 2011. Between the conviction and sentencing dates, he was
    tried, convicted and sentenced on other charges by Justice Antonio Di Zio,
    which led to the companion appeal (C59054).

[4]

The appellant argues the reasons of the trial judge are insufficient to
    justify conviction, citing
R. v. Wigle
, 2009 ONCA 604, 252 O.A.C. 209.
    To pass muster, the reasons must advance the accused's understanding of the
    reasons for his conviction and facilitate meaningful appellate review of the
    correctness of the decision:
R. v. Brown
(2002), 61 O.R. (3d) 619
    (C.A.), at para. 26. As the Supreme Court noted in
R. v. Vuradin
, 2013
    SCC 38, [2013] 2 S.C.R. 639, at para 11: Credibility determinations by a trial
    judge attract a high degree of deference. Further, the Court noted the
    importance of a contextual approach, at para. 12:

Ultimately, appellate courts considering the sufficiency of
    reasons "should read them as a whole, in the context of the evidence, the
    arguments and the trial, with an appreciation of the purposes or functions for
    which they are delivered": [
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
    S.C.R. 3], at para. 16. These purposes "are fulfilled if the reasons, read
    in context, show why the judge decided as he or she did" (para. 17).

[5]

The key issues in the case were the complainants credibility and the
    presence or absence of consent.

[6]

The trial judge, in about 30 pages of reasons, noted points at which the
    complainants evidence about the events over the course of the evening was
    corroborated by other evidence. The assault itself was not corroborated, which
    is not unusual.

[7]

The trial judges reasons record the following evidence. The
    complainant, K.M., testified she was sexually assaulted on January 13, 2007 in
    the front seat of the appellants car in the parking lot of a McDonalds
    restaurant.

[8]

The complainants evidence was that after the assault in the McDonalds
    parking lot, the appellant drove her to a Coffee Time restaurant. She used the
    washroom and then sat with the appellant in the restaurant for about 13 minutes,
    according to the restaurant video. Two Coffee Time employees described her distraught
    state.

[9]

The appellant told the complainant he would drive her home, so she
    returned to his car. When she was back in his car, the appellant told her to
    remove her pants. She immediately got out of the car without her shoes or a
    jacket. Her actions in leaving the appellants car and crossing the street to an
    Esso service station were captured by video. She called the police from there.
    They found her distraught and shoeless in the service station kiosk, in the
    middle of winter.

[10]

The appellant did not testify. Counsel argues that the actions of the
    complainant in sitting with the appellant in the Coffee Time restaurant is
    enough to raise a reasonable doubt about the complainants consent to sexual
    intercourse.

[11]

As the trial judge observed, the complainants mental and physical state
    and her state of dress in winter weather, were all inconsistent with any such
    consent. The trial judge noted:

[I am] satisfied beyond a reasonable doubt that there was
    proved a lack of consent for the physical action of intercourse that took
    place. As I said before, that does not end the inquiry, but I want to indicate
    the reason is I accept her evidence that she said no, that she tried to push
    him away, that she made some comments about why youre doing this to me? What
    if you had a daughter, which from a reasonable mans point of view would
    clearly be indicating non-consent.

[12]

He added:

[I have] reviewed the evidence of the complainant that I
    accepted to arrive at the decision that she  it has been shown beyond a
    reasonable doubt she was not consenting, and considered the circumstances that
    I had before me, keeping in mind that I can only make true inferences on the
    basis of a reasonable view of facts proven.

[13]

Considering the reasons as a whole, and the context of unfolding events,
    it is clear that the trial judge accepted the complainants evidence that she
    was forced into sexual intercourse. There was no contrary evidence.

[14]

The record is sufficient to allow the appellant to understand why he was
    convicted and to permit meaningful appellate review. We would therefore not
    give effect to the argument that the trial judges reasons are insufficient.

[15]

The appeal is dismissed.

J.C. MacPherson
    J.A.

Gloria Epstein J.A.

P. Lauwers 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassell, 2016 ONCA 786

DATE: 20161027

DOCKET: C59054

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the convictions entered on July 20, 2009
    and the sentence imposed on March 18, 2011 by Justice Antonio Di Zio of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

This appeal relates to a sexual assault that occurred on June 2, 2007. The
    appellant was convicted on July 20, 2009 of sexual assault causing bodily harm,
    unlawful confinement, uttering a death threat, threatening bodily harm while
    committing a sexual assault, overcoming resistance by choking, assault and
    breach of probation. The appellant was sentenced on March 18, 2011 to 13.7
    years in custody after credit for pre-trial custody.

[2]

The appellant appeals the convictions and the sentence imposed.

The conviction appeal

[3]

The appellant raises a single issue with respect to the conviction
    appeal. He challenges the treatment of certain evidence under s. 276(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which provides in part:

[E]vidence that the complainant has engaged in sexual
    activity, whether with the accused or with any other person, is not admissible
    to support an inference that, by reason of the sexual nature of that activity,
    the complainant

(a) is more likely to have consented to the
    sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

[4]

In the course of her evidence, the complainant, N.G., testified that she
    would not have consented to have sex with the appellant because she had
    previously decided that she would not resume sexual activity within three
    months of having given birth. However, in the course of giving information at
    the hospital about the assault, she told the nurse she had been sexually active
    and had had intercourse two weeks before the incident in question. Defence
    counsel wanted to cross-examine her on this conflict in her evidence. The Crown
    objected on the basis of s. 276.

[5]

The trial judge did not allow defence counsel to cross-examine the
    complainant about this conflict. He held that the proposed cross-examination
    would go to credibility  a prohibited area in s. 276. The trial judge also noted
    that the defence had brought a written application under s. 276 several months
    earlier and had adjourned it.

[6]

The appellant argues the trial judge ought to have adopted the approach
    taken by this court in
R. v. Harris
(1997), 102 O.A.C. 374 (C.A.),

[1997] O.J. No. 3560, at para. 50: The probative value of the evidence
    did not depend upon resort to the now debunked myths suggesting some connection
    between prior sexual activity and a lack of veracity but in its ability to
    contradict specific evidence given by the complainant that was central to her
    version of the relevant events. The thrust of the cross-examination was not
    going to be the complainants sexual activity, but her credibility, and it
    would have been proper cross-examination in the context. Had her credibility
    been shaken, then it might have proved to be a tipping point in assessing the
    complainants evidence in the appellants favour. The appellant seeks a new
    trial on this basis.

[7]

The Crown points out that some months earlier in the pre-trial period
    the appellant had initiated an application under s. 276(2) for leave to
    cross-examine the complainant on the conflict in her evidence about her
    willingness to engage in intercourse at that particular time but adjourned it.
    Appeal counsel, who was not trial counsel, asserts nothing should be taken from
    the earlier adjournment of the motion. He argues, as a matter of principle,
    that s. 276 simply does not apply, so an application was not necessary.
    However, he conceded it would have been entirely open to trial counsel to
    pursue the s. 276 application before the trial judge when the Crown objected to
    the evidence.

[8]

We agree with the Crowns submission that the process prescribed by
    s. 276 for the admission of evidence of prior sexual history is mandatory.
    Perhaps the appellant would have succeeded on the s. 276 application had it
    been pursued, but it was not. That is a consequence of a tactical decision made
    at trial. Accordingly, this ground of appeal against conviction has no merit.

The sentence appeal

[9]

This is not a case governed by the current statutory 1.5:1 ratio for
    determining credit for time served.

[10]

It is common ground the appellants pre-trial custody was 1291 days. The
    appellant raises two issues about the sentence. First, the trial judge only
    gave credit for time served at the ratio of 1:1, not 2:1. The appellant argues
    that there should be a 2:1 credit because there was no available programming
    during the time of pre-trial custody.

[11]

The determination of the credit ratio is a discretionary decision. The
    trial judge instructed himself that he had discretion to give no credit for
    pre-trial custody, or credit at a rate of 2:1, or higher. He noted that the
    trial proceeded more slowly than he would have liked, but did not blame the
    appellant for that.

[12]

The trial judge noted that he would normally give credit on a 2:1 basis
    but, he said:

In Mr. Vassells case, I am not going to follow the usual rule
    but I will give credit on a one for one basis for two reasons.

1. Based on the information I have today, Mr. Vassell is
    unlikely to get parole because of his past breaches of court orders and a
    record of escaping custody and further because of the high risk of recidivism.

2. Based on the information I have today, he poses a serious
    danger to society and therefore he should remain in custody as long as legally
    possible.

The evidence to which the trial judge was referring was
    the psychiatric reports. His reasons are consistent with the decision of this
    court in
R. v M.O.
, 2016 ONCA 236, 348 O.A.C. 216, at para. 31.

[13]

The appellants second issue regarding sentence is the apportionment of
    pre-trial custody. Trial counsel argued all of the pre-trial custody should be
    apportioned to the charges in this appeal, and appeal counsel argues the same. The
    trial judge did not take the approach requested by trial counsel. Instead he
    took half of the available credit into account in determining the length of the
    sentence. This amounted to 646 days, which he rounded up to 1.8 years. The
    trial judge left the other half for the case to be decided by Justice Cleary, which
    is the subject of the companion appeal (C59014), and in which the appellant was
    declared a dangerous offender and sentenced to indeterminate detention. Counsel
    points out the credit became useless once the sentence of indeterminate
    detention was imposed.

[14]

The trial judges decision to apportion half of the pre-trial custody credit
    to this case is also discretionary. The appellant was not able to point to an
    error of principle in the trial judges apportionment.

[15]

The conviction appeal is dismissed. Leave to appeal sentence is granted,
    but the sentence appeal is also dismissed.

J.C. MacPherson J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Villeneuve, 2016 ONCA 743

DATE: 20161011

DOCKET: C60420

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maurice Villeneuve

Appellant

Margaret Bojanowska, for the appellant

Jocelyn Speyer, for the respondent

Heard:  October 3, 2016

On appeal from the conviction entered on January 15, 2015
    and the sentence imposed on February 4, 2015 by Justice W. G. Rabley of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Villeneuve argues
    the trial judge erred in failing to have him psychologically assessed in
    preparation for his trial. Such an assessment would not have been relevant to
    the factual determinations made at his trial on which he was convicted. The
    appellant made no argument concerning his sentence which in our view is a fit
    sentence for very serious crimes.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Virgo, 2016 ONCA 792

DATE: 20161027

DOCKET: C59092

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roderick Virgo

Appellant

Mark C. Halfyard and Breana Vandebeek for the appellant

Chris Chorney, for the respondent

Heard: April 14, 2016

On appeal from the conviction entered by Justice Thomas
    A. Bielby of the Superior Court of Justice, sitting with a jury, dated March 6,
    2014.

B
.W. Miller J.A.:

Overview

[1]

Two brothers, Shahroze Shah and Shahzeb Shah, were stabbed in a barroom
    brawl at the Jet Fox Bar in Mississauga. The fight began at a pool table, near
    the DJ booth where the appellant was working, and carried on into the parking
    lot.

[2]

In a police interview admitted into evidence, the appellant admitted he
    was at the bar, he was involved in the fight, and he was in possession of a
    knife for a period of time during the fight. He denied he stabbed either of the
    brothers and insisted that he was only involved in the altercation as a
    peacekeeper.

[3]

A jury convicted the appellant of aggravated assault of Shahzeb, and
    acquitted him of aggravated assault of Shahroze. The conviction turned on the
    evidence of Shahzeb, who testified that, as he was exchanging punches with
    another patron, the appellant stabbed him from the side. He did not see it
    happen, but testified that, after being stabbed, he turned and saw the appellant
    beside him holding out a knife.

[4]

The appellant argues he was convicted on the basis of uncorroborated eyewitness
    testimony of a single witness, and the jury ought to have been cautioned about
    the frailties associated with eyewitness identification. The Crown disagrees,
    and argues no caution was necessary: the appellant admitted he was present, was
    in close proximity to the witness, and was involved in the altercation. The
identity
of the person that Shahzeb believed to have stabbed him was not in dispute: only
    whether that person, the appellant, in fact stabbed him.

[5]

I reject the Crowns attempt to distinguish this case from other eyewitness
    identification cases, for the reasons set out below. I would allow the appeal
    on the basis that the trial judge erred in not specifically instructing the
    jury on the frailties of eyewitness identification and would order a new trial.

Issues

[6]

The appellant raises three issues on appeal. He argues the trial judge
    erred: (1) by not providing the jury with an eyewitness identification
    instruction; (2) by providing a confusing instruction on lack of evidence; and (3)
    by not instructing the jury that certain after-the-fact evidence could be
    evidence of innocence. Given my conclusion that the appellant has succeeded on
    the first issue on appeal, it is not necessary to consider the remaining issues
    in these reasons.

Analysis

[7]

The only question, as the trial judge instructed the jury, was whether
    it was the appellant who stabbed Shahzeb: the real issue for you to decide is
    whether or not the Crown has proven to you beyond a reasonable doubt that it
    was Mr. Virgowho stabbed Shahzeb Shah.

[8]

The Crown argued on appeal that this should not be treated as a typical eyewitness
    identification case, and that no special instruction was needed. There was,
    after all, no issue as to the identity of the appellant. This is not a
    fleeting glance identification case. The appellant admitted to being present
     he was working at the bar as the DJ  and admitted to being involved in the
    fight. The blood of Shahzebs brother was found on his clothing. The appellants
    appearance was distinctive since he had dreadlocks. Although the appellant told
    police that there were two other black males with dreadlocks in the bar, these
    individuals were not involved in the bar fight.

[9]

The Crown argues that it is unsurprising that trial counsel did not
    raise the issue of eyewitness identification, because the case did not depend
    on Shahzebs identification of the appellant. It was not about whether it was
    the appellant who was there; it was about whether the appellant stabbed
    Shahzeb. The Crown urges this court to adopt the proposition from
R. v. Slater
,
    [1995] 1 Cr. App. R. 584 (Eng. CA) that where the accused admits to being
    present, and the only issue is whether the accused committed the offence, no
    specific eyewitness identification instruction is needed.

[10]

I reject the Crowns submission for two reasons.

[11]

First, it relies on an untenable distinction between eyewitness
    identification of an accused which requires a specific jury charge, and
    eyewitness observation of an accused committing the
actus reus
of an
    offence, which does not require a specific jury charge. Eyewitness
    identification, however, is most often (though not always) in the context of a person
doing
something: e.g. committing some element of an offence, leaving
    the scene of a crime, communicating with another party. In this case, the
    question is not whether the witness observed the appellant at the bar on the
    night in question. Rather, it is whether the witness observed the appellant
    thrusting a knife towards him. Both are questions of identification.

[12]

Second, the same reasons for providing the jury with a caution in
    fleeting glance cases may also apply to cases where the presence of the
    accused is not in dispute. In both cases, the reliability of a witnesss
    observation is in issue. The fact that an accused admits to being present at a
    crime scene does not resolve that issue. The fact that the appellant admitted
    being in the bar, participating in the fight, and being in close proximity to
    Shahzeb, does not resolve the question of whether the appellant stabbed
    Shahzeb, or enhance the reliability of Shahzebs evidence that he observed the
    appellant with a knife at his side, thrusting it towards him.

[13]

The general principles governing jury instructions for eyewitness
    identification are of long standing and were surveyed by this court in
R.
    v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras. 79-83. In that
    case, this court adopted the statement of principle from Scarman L.J. in
R.
    v. Keane
(1977), 65 Cr. App. R. 247 (C.A.), at p. 248
:

The principle is the special need for caution when the issue
    turns on the evidence of visual identification: the practice has to be a
    careful summing-up, which not only contains a warning but also exposes to the
    jury the weaknesses and dangers of identification evidence both in general and
    in the circumstances of the particular case.

[14]

See also
R. v. Bailey
, 2016 ONCA 516 where this court recently
    discussed the importance of tailoring model jury instructions to the particular
    eyewitness identification issue in the case.

[15]

In this case, in the opening instructions to the jury, the trial judge
    gave standard guidance about the testimony of witnesses:

But here are a few questions you might want to keep in mind as
    we proceedDoes the witness seem able to make accurate and complete
    observations about the event? Did he or she have a good opportunity to do so?
    What were the circumstances in which the observation was made, and what was the
    condition of the witness? Was the event itself usual or routine? Does the
    witness have any reason to remember what was  what it was about which or she
    testified? Does the witness seem to be reporting to you what he or she saw or
    heard or simply putting together an account based on information obtained from
    other sources, rather than personal information?

[16]

These instructions were sound, but did not go far enough. The trial
    judge was obligated to specifically call to the jurys attention the dangers of
    eyewitness identification. In the charge to the jury, there was neither a
    general nor a specific instruction addressing the frailties of eyewitness
    identification in the circumstances of this particular case. While defence
    counsel reviewed the draft charge to the jury and did not object at the
    pre-charge conference to the absence of an eyewitness instruction, it is
    ultimately the responsibility of the trial judge to ensure that the necessary
    charge is given.

[17]

The charge to the jury ought to have drawn attention to the
    circumstances under which the identification of the appellant was made,
    including:

(i)       The chaos of the bar fight;

(ii)      The poor lighting;

(iii)     The speed at which events transpired;

(iv)     The stress the complainant was under;

(v)     The
    distractions faced by the complainant, including his participation in multiple
    fights with multiple assailants;

(vi)     The
    inconsistency between the complainants testimony that he was stabbed from the
    side and the objective evidence placing the stab wound directly to his front;

(vii)    The
    complainants lack of prior dealings with the appellant;

(viii)   The
    complainants initial uncertainty as to whether the weapon was a knife or a
    piece of broken glass;

(ix)     The
    complainants testimony that another individual similar in appearance to the
    appellant was involved in the bar fight;

(x)     The
    complainants increased certainty as to the identification of the appellant by
    the time of trial.

[18]

In addition to these instructions specific to the facts of the case,
    there ought to have been a general caution about the tenuous relationship
    between a witnesss confidence in identifying an accused and the accuracy of
    the evidence.

Disposition

[19]

Identification was a central issue in this case. The appellants
    conviction largely turned on Shahzebs eyewitness evidence that it was the
    appellant who stabbed him. The failure to properly instruct the jury on eyewitness
    identification both generally and with reference to the facts in this case
    therefore goes beyond a mere minor wrong or substantial irregularity, and therefore
    a new trial is required.

[20]

I would allow the appeal and order a new trial.

Released: DW  OCT 27 2016

B.W. Miller J.A.

I agree. David Watt
    J.A.

I agree. P. Lauwers
    J.A.