COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lacelle, 2013
    ONCA 390

DATE: 20130612

DOCKET: C54433

Blair, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Lacelle

Appellant

Howard L. Krongold, for the appellant

Kevin Wilson, for the respondent

Heard: June 5, 2013

On appeal from the conviction entered on January 24, 2011
    by Justice P. Adams of the Ontario Court of Justice.

ENDORSEMENT

[1]

The convictions in this case derive from seizures of drugs and money
    made pursuant to a telewarrant.  The appellant submits that the trial judge
    erred in failing to exclude the evidence found during the execution of the
    warrant. The appellant asserts that the sworn information to obtain (ITO) was
    insufficient and false, and the execution of it constituted unreasonable search
    and seizure, contrary to section 8 of the
Canadian Charter of Rights and
    Freedoms
.

[2]

The ITO seeking the telewarrant was sworn by Constable Steve Whitehorne
    in the City of Cornwall, Ontario.  He swore that: There is no Justice of the Peace
    available at this time. Officer Whitehorne candidly admitted that he did not
    take any steps to ascertain the truth of the statement, nor did he know it to
    be true at the time that he signed.  The statement, however, turns out to have
    been true as a matter of fact.

[3]

This was Constable Whitehornes first ITO.  He had not received training
    in drafting it. He did not know the statutory requirements for an ITO or a
    telewarrant. He used a precedent. The draft ITO was reviewed by Constable
    Whitehornes supervisor, Assistant Sergeant Joseph, who proofread it for
    spelling and grammar only.

[4]

The trial judge made the following comments in his reasons for judgment
    on the
Charter
motion:

Officer Joseph, an acting Sergeant at the time had experience
    in drug prosecutions and warrants, said, and I believe his evidence to be true,
    that on January 8 after 5:00 p.m., the courthouse in Cornwall and area was
    closed He was told on cross-examination that the application was sent at 10:20
    p.m. and returned at 10:24 p.m. and in those circumstances there was no use, he
    said, to search the courthouse for a J.P. as opposed to a telewarrant.

[5]

The trial judge accepted Officer Josephs evidence that it would make
    sense to carry out the warrant immediately since the two [accused] were in
    custody and there was no justice available until the next day.  The trial
    judge concluded that there had been no breach of the
Charter
and that
    the request for the telewarrant was reasonable.

When I reviewed the paper work, secondly, filed as exhibit 2,
    endorsed thereon is the faxed time print of the warrant at 21:51 and on page 2,
    21:54 clearly these were hours that were later on in the evening and I am not
    persuaded that the standard of impractability was not met given the
    circumstances as outlined in British Columbia Court of Appeal in
R. v.
    Nguyen
, [2009] B.C.C.A. 89.  And I find that the telewarrant was both
    compelling and detailed.

[6]

The appellant urges the court to find that the telewarrant was
    inappropriately issued for two reasons.  The first is that the simple line: There
    is no Justice of the Peace available at this time, is insufficiently
    particular to justify the issuance of a telewarrant, not only in this case, but
    in general.  He submits that something more should be required, relying on
    the decision of the British Columbia Court of Appeal in
R. v. Scott
,
    [2012] B.C.J. No. 4 at para. 34.  We note, however, the observation of Neilson
    J.A. in the concluding line of that paragraph: I see nothing objectionable in
    the issuing Justice or, later, the reviewing Justice, taking judicial notice of
    concrete local circumstances in assessing the adequacy of the officers
    statement.  We find these words to be apt in the circumstances, and decline
    the appellants general invitation to go further.

[7]

We agree with the appellant that Constable Whitehornes approach to his
    task was somewhat casual, and his lack of knowledge and training was troubling.
    That said, the context provided circumstantial guarantees that the statement
    that a JP was not available was true in fact.  There was nothing in the context
    to suggest to the officer that the statement might not be true; for example, it
    is circumstantially unlikely that Officer Whitehorne would have been pursuing a
    telewarrant in the middle of the day when J.P.s are available in Cornwall, or
    that his supervising officer would have failed to question that statement. It
    was, however, during the evening.  The receiving J.P. in Newmarket would also
    have been aware of the unavailability of J.P.s in Cornwall given the time of
    the night.

[8]

Second, the appellant urges us to excise the offending statement, since Officer
    Whitehorne had no personal knowledge when he swore the information, making the
    statement false. He urges us to take an approach analogous to
R. v. Araujo
,
    [2000] 2 S.C.R. 992 and
R. v. Morelli
, [2010] 1 S.C.R. 253. He asserts
    that there would not be a reasonable ground to issue a telewarrant under
    subsection 487.1(1) and (4) of the
Criminal Code
if the offending
    statement were excised. This is what the trial judge should have done, he
    submits.

[9]

Assuming without deciding that this submission has merit, then the appellant
    says that the evidence would have been excluded under s. 24(2) of the
Charter
,

on the basis that it was
obtained illegally. That exclusion
    would have led to an acquittal.

[10]

The
    analytical framework for the application of s. 24(b) of the
Charter
was
    set by the Supreme Courts decisions in
R. v. Grant
and
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494. The Court framed the test for
    relief under s. 24(2) of the
Charter
at para. 71 of
Grant
.
Since the trial judge did not carry out the
Grant
analysis we are
    obliged to do so.

[11]

The
    first line of inquiry under
Grant
is into the seriousness of the
Charter
-infringing
    conduct.  In
R. v. Lao
, 2013 ONCA 285, at para. 75, this court found
    that the use of the telewarrant process without having adequately demonstrated
    that it was impractical to appear in person did not amount to a serious
Charter
breach. See also
R. v. Farewell
, 2008 BCCA 9 at para. 43.

[12]

In
R. v. Farewell
, 2006 BCSC 372, at para. 56, the trial judge, who was
    upheld on appeal, stated:

It would be difficult to explain to the community that the
    results of the search have been excluded because of the failure by the police
    officer to make a phone call in circumstances where it would almost inevitably
    have made no difference  either because a telewarrant was in fact the only
    option, or because an in-person appearance, if available, would have resulted
    in the warrant being issued anyway.

[13]

The
    parallel is this: had Officer Whitehorne made the simple inquiry about the
    availability of a JP, he would have been assured that none was available, so
    that a telewarrant was in fact necessary. The search would have been
    inevitable.

[14]

There
    is no hint here of defiance on the officers part; this was more an instance of
    ignorance and inadvertence.

[15]

The
    second line of inquiry in
Grant
is into the impact of the breach on
    the
Charter
-protected interests of the accused.  The interest here
    would be the freedom from unreasonable search and seizure.

[16]

The
    bulk of the drugs were found in the stash house, in which the appellants
    expectation of privacy would not have been high.

[17]

The
    third line of inquiry in
Grant
requires the court to take into account
    the prospect that the exclusion of the evidence might well prevent the
    prosecution of the offence.  The evidence of drugs and money obtained as a
    result of the execution of the telewarrant is highly reliable; it would be
    difficult, as the justices observed in
R. v. Farewell
,
to explain the exclusion of the
    evidence in the circumstances of this case, where the officer swore to a
    statement that he did not know to be true, but which was nonetheless true.

[18]

Taking
    the three lines of the
Grant
inquiry together, we therefore find that
    there is no
Charter
reason to exclude the evidence obtained on the
    execution of the telewarrant, and dismiss the appeal.

R.A. Blair
    J.A.

Alexandra Hoy
    J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm, 2013 ONCA 451

DATE: 20130628

DOCKET: C54724

Feldman, MacPherson, Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Densley Malcolm aka Densley Corrupt

Appellant

Appellant in person

Duty counsel: David Rose

Crown counsel: John Pearson

Heard: June 12, 2013

On appeal from the sentence imposed on April 30, 2007 by
    Justice D. Bellamy of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of attempted murder, aggravated assault,
    assault with a weapon and possession of a weapon for a purpose dangerous to the
    public peace, following a knife attack on his roommate, Garvin Kerr. In
    accordance with the principle in
R. v. Kienapple
, [1975] 1 S.C.R. 729,
    two of the charges, aggravated assault and assault with a weapon, were stayed
    by the trial judge. The appellant was sentenced to life in prison for the attempt
    murder conviction. He appeals that sentence.

[2]

The arrangement between the appellant and the victim was that the
    appellant contributed to the rent by supplying the victim with crack cocaine.
    The victim expressed an ongoing complaint that the appellant was overcharging
    him for the drugs. It was following such a complaint that the appellant
    proceeded to stab the victim with his large, Rambo-type knife, first in the
    back and continuing with approximately 14 knife stabs, only stopping when he,
    the appellant, had to catch his breath. The victim took that opportunity to
    escape from the apartment. The trial judge described the attack as extremely vicious
    and was satisfied from the nature of the attack that the appellant had the
    intent to kill. Following the attack the appellant did not get any help for the
    victim, but cleaned the knife, deliberately left it with another tenant in the
    building and tried to obtain another tenants identification.

[3]

The appellant was 30 years old at the time of sentencing and had a
    significant record for crimes of violence. He also suffers from serious mental
    illness. His fitness to stand trial was the subject of a number of pre-trial
    inquiries before he was found to be fit. Following his convictions, the Crown
    sought to have the appellant found not criminally responsible and a
    post-conviction hearing was held by the trial judge. Based on the evidence of
    Dr. Pallandi, the trial judge denied the Crowns motion.

[4]

Dr. Pallandi diagnosed the appellant as a paranoid schizophrenic. He had
    no insight into his mental illness and despite being told by the doctor and
    others, he refused to acknowledge his mental illness or to take any treatment,
    including any medication. In his report, Dr. Pallandi offered the opinion that
    without treatment with antipsychotic medication as well as a high degree of
    supervision and support upon his release, the appellant would likely be at an
    elevated, if not substantial, risk for subsequent similar behaviour.

[5]

The Crown sought a life sentence. The appellant submitted that 8 to 10
    years imprisonment would be appropriate, given that he had served a substantial
    period in pre-sentence custody. The trial judge found the following factors to
    be significant: the seriousness of the crime, the criminal record of escalating
    acts of violence, the denial of a major mental illness for which the appellant
    had taken no treatment or medication, and the fact that the prognosis is that
    he will continue to be a danger to the community and it is uncertain when or if
    he will ever be cured.

[6]

In considering a life sentence, the trial judge noted specifically that
    a court could not impose a sentence that was not warranted by the facts simply
    because of an offenders mental deficiencies, and that a life sentence should
    not be used as an alternative to other provisions in the
Criminal Code
which refer to preventative detention.

[7]

However, based on the serious, brutal crime, the continuing danger posed
    by the appellant, and his failure to appreciate the seriousness of the attack
    and therefore the need for the protection of society, the trial judge found
    that a life sentence was appropriate. She concluded: There is nothing about
    this offence and this offender that would warrant anything less than a very
    substantial penitentiary term of imprisonment, and, in my view, that term is
    life.

[8]

Duty counsel on behalf of the appellant submitted that it was an error
    in principle for the trial judge to impose a life sentence without justifying
    why a lesser, but high definite sentence would not be sufficient to accomplish
    all the goals of sentencing.

[9]

We do not accept this submission. The case of
R. v. Simpson,
[1981] O.J. No. 34, a decision of a five-judge panel of this court, authored by
    Martin J.A., addresses the issue of when a life sentence is appropriate in
    circumstances such as the present. That case also involved a vicious stabbing,
    in that case in the throat, where the victim miraculously escaped lasting
    injury. The appellant suffered from a severe personality disorder and the
    psychiatrists considered him to be a danger to the community. Martin J. A.
    explained that the fundamental purpose of any sentence is the protection of
    society. In upholding the life sentence imposed by the trial judge, Martin
    J.A. stated, at para. 14:

I consider that the sentence of life imprisonment imposed by
    the trial judge on the appellant in respect of the conviction of attempting to
    murder Beatrice Deline standing alone [a new trial had been ordered on appeal
    from a second conviction] was in all the circumstances a fit sentence, regard
    being had to the uncertainty as to when he may be cured, or cease to be
    dangerous, to the cruelty and callousness of his act in stabbing Mrs. Deline
    and the severity of his personality disorder, which, at the present time, makes
    him a continuing danger to the physical safety of others.

[10]

Also
    in upholding the life sentence, the court recognized that it amounts
    effectively, to an indefinite sentence where it will be up to the parole board
    to determine, with the assistance of psychiatric examination, when it is
    appropriate to release the appellant into the community.

[11]

The
    Supreme Court of Canada clarified the law on life sentences in 2004 in its
    decision in
R. v. Cheddisingh
, 2004 SCC 16, [2004] 1 S.C.R. 433, where
    the court removed the concepts of stark horror and worst offence, worst
    offender as prerequisites for imposing a life sentence. However, the court
    emphasized that a maximum sentence is to be imposed only rarely, and is only
    appropriate if the offence is of sufficient gravity and the offender displays
    sufficient blameworthiness. As is always the case with sentencing, the inquiry
    must proceed on a case-by-case basis.

[12]

Recently,
    in
R. v. Anderson
, 2012 ONCA 373, [2012] O.J. No. 2473, this court
    also upheld a life sentence where the crime was horrific, and there was
    evidence that the appellant continued to be a danger to the community. In that
    case, the Crown initially sought a dangerous offender designation, but withdrew
    the application when the appellant refused to participate in a forensic
    psychiatric assessment. The trial judge was nevertheless entitled to impose a
    life sentence where the circumstances warranted it.

[13]

The
    appeal from sentence is therefore dismissed.

K. Feldman JA.

J.C. MacPherson
    JA.

E.A. Cronk JA.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2013 ONCA 442

DATE: 20130626

DOCKET: C52747 & C52758

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dustin McDonald

Appellant

and

Brandon Green

Appellant

Clayton Ruby
    and Gerald Chan, for the appellant Dustin McDonald

Mark Halfyard, for the appellant Brandon Green

David Lepofsky and Dan Guttman for the respondent

Heard: January 16, 2013

On appeal from the convictions entered on May 28, 2010 by
    Justice Robert M. Thompson of the Superior Court of Justice, sitting with a
    jury.

Lauwers J.A.:

[1]

After a nine-day jury trial, the appellants were convicted of common
    assault on Myles Bruer and aggravated assault on William Allen. They were
    sentenced to ten months incarceration for the aggravated assault, one month
    concurrent for the common assault, and an additional two years of probation. In
    argument before this court, it became clear that the appellants were
    challenging only their convictions for aggravated assault on Allen.

[2]

For the reasons set out below, I would allow the appeals with respect to
    the aggravated assault convictions, set aside these convictions and order a new
    trial on the charge of aggravated assault.

The Factual Context

[3]

On Friday, October 10, 2008, the appellants, together with their friends,
    Scott Graham and Andy Barber, met at Bridges Tavern in Thornbury, Ontario. There
    was also another group consisting of Myles Bruer, William Allen, Gregory
    Lafond, Kayla Anscomb and Amelia Clarke. The two groups shared some bad blood
    going back years, and after a brief physical altercation in the bar Green was
    ejected and escorted out by the bar owner. Eventually, Graham, McDonald and
    Green were outside the bar while Bruer, Allen and their friends stayed until
    closing time.

[4]

The two groups encountered one another on the street later and there was
    a short fight. William Allen suffered serious personal injuries.

[5]

Without admitting that either McDonald or Green had personally struck
    Allen and caused his injuries, the defence conceded that Allens injuries
    amounted to maiming within the meaning of s. 268(1) of the
Criminal Code.
Allen had therefore suffered an aggravated assault in the course of the fight.

[6]

The issue at trial was who caused the injuries to Allen that maimed him.
    On the facts, it could have been one of Graham, McDonald or Green, alone or in
    some combination.

[7]

Bruers evidence is that he was assaulted first by either McDonald or
    Green. He was punched in the face. His arm was twisted behind him and he was
    forced to the ground where he was kicked in the head and the body. The assault
    dazed him. His eyes swelled nearly shut and a contact lens had been knocked out
    of one of his eyes. He got up, went over to his girlfriend, Amelia Clarke, and
    they started walking away from the scene. They were about 150 feet away when
    Bruer turned and saw Allen lying on the ground getting kicked. Bruer
    testified that, despite the nighttime darkness, because there were street
    lights, and despite the loss of a contact lens, and his swollen eyes, he could
    see.  He identified the appellants as the attackers. He then ran to Allen to provide
    assistance.

[8]

Clarke also identified the appellants as the individuals who attacked
    Bruer. She testified that she saw Allen being dragged into the road by
    McDonald and another unknown male. In her examination-in-chief she stated that
    she saw the appellants kicking and stomping on Allen. She testified that when
    she approached them, they left. In cross-examination she maintained her
    position.

[9]

Graham admitted assaulting Allen (he had earlier pleaded guilty to doing
    so), but says that after kicking him a couple of times in the ribs he realized
    what he was doing was wrong and left the scene. He denied kicking Allen in the
    head and claimed to be unsure if either Green or McDonald had struck Allen.

[10]

Green
    testified that he exchanged punches with Bruer and that Graham had caused all
    of Allens injuries.

[11]

Stated
    briefly, Bruer and Clarke testified that they each saw McDonald and Green
    kicking Allen in the face. In his testimony, Green denied kicking anyone:
    rather, he identified Graham as the one who kicked Allen in the face. Graham
    denied doing so. At trial, the defence strongly contested the identification
    evidence in this melee.

The Grounds for Appeal

[12]

The
    appellant McDonald, supported by the appellant Green, raises as one ground of
    appeal that the trial judge erred in failing to properly charge the jury on the
    doctrine of common purpose under s. 21(2) of the
Criminal Code.

The
    appellants also submit that the misuse of hearsay evidence further complicated
    the jurys task. The appellants raise other grounds of appeal that do not, in
    my view, require a decision of this court.

The Context for the Common Purpose Issue

[13]

Counts
    one and two of the indictment provide as follows:

HER MAJESTY THE QUEEN PRESENTS THAT DUSTIN McDONALD AND BRANDON
    CHRISTOPHER GREEN on or about the 11th day of October, 2008, at the Town of The
    Blue Mountains, Central West Region and elsewhere in the Province of Ontario,
    did commit an assault on Myles BRUER, contrary to Section 266 of the Criminal
    Code of Canada;

AND FURTHER, THAT DUSTIN McDONALD AND BRANDON CHRISTOPHER GREEN
    on or about the 11th day of October, 2008, at the Town of The Blue Mountains,
    Central West Region and elsewhere in the Province of Ontario, did maim William
    Allen, thereby committing an aggravated assault, contrary to Section 268 of the
    Criminal Code of Canada.

[14]

The
    parties characterized McDonald and Green as being jointly charged.

[15]

As
    noted, Green denied assaulting Allen. Green testified, but McDonald did not.
    Graham had earlier pleaded guilty to assaulting Allen and testified at this
    trial, but denied kicking Allen in the face; he asserted that he stopped the
    assault on Allen and was leaving the scene when Allen was further assaulted.

[16]

The
    defence challenged Clarkes and Bruers evidence identifying Green and McDonald
    as Allens assaulters. There was also some evidence that two unidentified
    males were responsible for assaults on Allen, the implication being that his
    assaulters were neither Green nor McDonald. The appellants argue that the Crown
    pursued the common purpose approach under s. 21(2) of the Code in order to
    avoid the manifest identity challenges.

[17]

Section
    21(2) of the
Criminal Code
provides
:

Where two or more persons form an intention in common
    to carry out an unlawful purpose and to assist each other therein and any one
    of them, in carrying out the common purpose, commits an offence, each of them
    who knew or ought to have known that the commission of the offence would be a
    probable consequence of carrying out the common purpose is a party to that
    offence.

[18]

The
    Crowns closing address to the jury focussed heavily on common purpose, as
    the following excerpt shows:

Now, I'm going to go and speak a little bit about some of the
    evidence. First of all, you're going to recall that at the very beginning of my
    opening, I asked you to think of this framework I was going to give you to sort
    of organize your evidence. I said, "Consider the evidence of the state of
    mind of the individuals as a group as they left the bar and as they walked down
    Bruce Street later on. How they were feeling. How they were acting. Did they
    have a motive to enter into a confrontation?"

The second thing I said, "Consider any evidence of whether
    either Mr. McDonald or Mr. Green directly struck either Mr. Allen or Mr.
    Bruer."

Third, "Consider any evidence that shows Mr. McDonald or
    Mr. Green had entered into a common purpose either with each other or with the
    other three males in the group."

I'm going to go through that except in more accessible language
    in relation to the evidence.

. . .

The far easier and quicker way is the concept of common
    purpose. Common purpose, and His Honour is going to explain all of this to you,
    is where a group of people enter in to a common purpose to assault somebody,
    such as Myles Bruer. If there is a common purpose to assault somebody, the
    group gets held accountable for the actions of the group if one of them does
    another crime, such as the aggravated assault on Mr. Allen.

There is all sorts of evidence in relation to the common
    agreement. A common agreement, and His Honour will tell you about this, it
    doesn't have to be sitting down and working out like a football play. It can
    happen instantaneously on the spur of a moment.

. . .

The common purpose is borne out by that action, which in my
    respectful submission really isn't even in contention, that a common purpose to
    assault Myles Bruer and in the course of that struggle, in the course of that
    assault, in the course of that beating, Will Allen got his jaw broken, and that
    makes them each, along with Mr. Graham, liable for that. It doesn't matter if
    Graham did it. It didn't matter if both of them did it. That's the short answer
    to the whole case right there, but knowing me, you know you're not going to get
    the short answer to that question.

. . .

Common purpose, in my respectful submission, is a totally
    different route to convicting both of these individuals, which is a lot more
    straightforward and in my respectful submission, in some ways it doesn't even
    rely on any of the evidence, or very little of the evidence, if any, of Myles
    Bruer, Amelia, or Greg. Most of it is admitted or comes out of Mr. Graham or
    out of Mr. Green. And I'm going to go through that and it's not going to be
    long, but it's important and it's incredibly strong.

By the way, just another thing, there's this thing in law,
    again His Honour will instruct you, there's something, not all of you have to
    be satisfied beyond a reasonable doubt in regards to the fact they were all
    direct perpetrators. Not all of you have to be satisfied there were common
    purpose or liability route. You can be satisfied, all of you, of both of those,
    but four can be satisfied it was common purpose and six or five can be
    satisfied that they were direct perpetrators as long as you're satisfied beyond
    a reasonable doubt that both of these individuals had done what they're charged
    with.

[19]

It
    is clear from Crown counsels closing address that he anticipated that the
    trial judge would be giving the customary common purpose jury instruction.  The
    defence anticipated this as well.  Both the Crown and the defence had provided
    statements of their respective positions to the trial judge, for inclusion in
    the jury charge, that were designed to complement the anticipated common purpose
    section of the charge.

The Pre-charge Conference

[20]

There
    were two surprises for counsel.  The first was the trial judges decision at
    the pre-charge conference, which began just after counsels jury addresses, that
    he would not provide the jury with the common purpose instruction.

[21]

The
    trial judge initially based this decision on his understanding that assault and
    aggravated assault are too closely related for aggravated assault to constitute
    the second offence implicated in s. 21(2). In my view, this reason for not
    providing the common purpose jury instruction was incorrect, given this
    courts decision in
R. v. Vang
(1999), 118 O.A.C. 75, leave to appeal to
    S.C.C. refused, [1999] S.C.C.A. No. 203.

[22]

After
    hearing argument, the trial judge took the position that s. 21(2) was inapplicable
    for two additional reasons. The first was that the assaults were in two
    timeframes. He stated:

what I took from [Ms. Clarkes] evidence, is there was two
    timeframes from what she was seeing. She was seeing the assault, what I would
    call the first assault on William Allen, then she and Myles Bruer start going
    away at different speeds and different lengths or whatever it may be. She then
    looks back and then sees what I call the second assault taking place involving
    both accused.

[23]

Second,
    he noted that Graham, the perpetrator of the first assault on Allen, had left
    the scene. The trial judges position inferentially was that the second
    confrontation was not sufficiently closely related to the assault on Bruer on
    which the Crown was relying to fall within the common purpose. The trial
    judge therefore declined to provide a common purpose instruction.

[24]

As
    noted, the Crown and the defence had previously provided statements of their
    respective positions to the trial judge for inclusion in the charge based on
    the understanding that the common purpose instruction would be given. As a
    result of the trial judges decision at the pre-charge conference not to give
    the common purpose instruction, both sides were obliged to change the statements
    of their respective positions to be included in the jury charge. Just before
    the delivery of the charge, the Crown provided the trial judge with his
    position, slightly amended in the light of the trial judges decision not to
    charge on common purpose. The Crowns revised summary dealt with common
    purpose in the following way:

Both Dustin McDonald and Brandon Green should be convicted of
    the aggravated assault that resulted in the maiming of Will Allen either as
    direct perpetrators as testified to by Amelia Clarke and Myles Bruer, or as
    parties to the offence by their agreement to assault Myles Bruer and his group.

[25]

The
    Crown explained that the original statement of the Crowns position for
    inclusion in the charge was drafted as a common purpose being a separate
    purpose aside from assaulting Myles [Bruer], so I have got to change that. The
    trial judge used the new language proposed by the Crown for its position.

[26]

Given
    the trial judges decision not to charge on common purpose, the defence also
    submitted a revised summary, The new wording provided: The prosecution has not
    proven beyond a reasonable doubt that Mr. Green was part of any agreement to
    assault anyone, and: The prosecution has not proven beyond a reasonable doubt
    that Mr. McDonald was part of any agreement to assault Myles Bruer and his
    group.

The Jury Charge

[27]

Counsel
    were surprised a second time when, despite the trial judges decision at the
    pre-charge conference that he would not provide the common purpose jury
    instruction, he inserted a short paragraph into the jury charge; it is underlined
    in the following excerpt:

In this case, there is more than one way for the Crown to prove
    Brandon Green's and Dustin McDonald's guilt of the crime charged in count
    number two [aggravated assault]. The Crown does not have to prove each one of
    these ways. One, any one, is enough. All of you do not have to agree on the
    same way as long as everyone is sure that one of the required ways has been
    proven beyond a reasonable doubt.

In law, a person commits an offence if he alone, or along with
    someone else or others, does everything necessary to constitute the offence.

A person also commits an offence if he does anything for the
    purpose of helping another person to commit the offence.

Anybody who actively encourages somebody else to commit an
    offence is as guilty of the offence as the person who actually commits it.

A person may also commit an offence by being involved with
    others in a joint criminal enterprise. If any one of the group commits an
    offence in carrying out their original enterprise, any other member of the
    group who knew, or should have known, that the offence would likely be
    committed by a group member carrying out their original design, is guilty of
    the offence the other person actually commits.

Where a criminal offence is committed by two or more persons,
    each may play a different part. If they are acting together, as part of a joint
    plan or agreement to commit the offence, each may be found guilty of it.

It is important to remember, however, that although the accused
    have been charged and are being tried together, each is a separate individual who
    cannot be found guilty of any offence unless the evidence relating to him
    proves his guilt of that offence beyond a reasonable doubt. Each person is
    entitled to separate consideration. Each is entitled to have his case decided
    on the basis of his conduct and state of mind and from the evidence that may
    apply to him.  [Emphasis added.]

[28]

Later
    in the charge, the trial judge described the Crowns position in the following
    words:

It is the Crowns position, both Dustin McDonald and Brandon
    Green should be convicted of the aggravated assault that resulted in the
    maiming of William Allen, either as direct perpetrators as testified to by
    Amelia Clarke and Myles Bruer or as parties to the offence by their agreement
    to assault Myles Bruer and his group.

The evidence of that agreement comes from, number one, both
    Dustin McDonald and Brandon Green's dislike of Myles Bruer stretching back to
    high school.

Number two, the events of October 10th and 11th, 2008, at
    Bridges Tavern, which resulted in Brandon Green and Dustin McDonald having to
    leave that establishment early because of the confrontation with Myles Bruer
    and William Allen.

Number three, the lingering feelings of being riled up on the
    part of all the defendants' group resulting from the eviction that continued right
    up to their walking towards the pier on Bruce Street.

Number four, the actions of both Brandon Green and Dustin
    McDonald in standing side by side, remaining on the sidewalk, and walking
    directly into Myles Bruer as he held hands with Amelia Clarke.

It is the position of the Crown that this evidence either alone
    or in conjunction with the evidence of Leslie Lewis that she saw four to five
    males in front of her window before the attack, who later participated in the
    confrontation at two a.m. saying, "Let's go back to Bridges and get
    him," establishes a common intention to assault Myles Bruer and therefore
    makes both Dustin McDonald and Brandon Green guilty as parties to the
    aggravated assault on William Allen regardless of which one or combinations
    thereof of Dustin McDonald, Brandon Green, or Scott Graham caused the injuries.

The Positions of the Parties

[29]

The
    appellants submit that trial judge erred in not properly explaining the law on
    s. 21(2) of the
Criminal Code
to
    the jury
.

[30]

The
    appellants argue that Crown counsel left the jury with the mistaken impression
    that all it had to do was to find that McDonald, Green and Graham had a common
    purpose to assault Bruer, and that this was sufficient to fix McDonald and
    Green with criminal liability for Allens broken jaw. The appellants argue that
    this was a very powerful submission because it presented the jury with an
    attractively simple method for resolving a complicated case.

[31]

On
    appeal, the Crown asserts that there were three possible routes to criminal
    liability for McDonald and Green for aggravated assault: the first was as
    principals, standing alone; the second was as co-conspirators in a plan or
    agreement on which they acted, to assault Allen, as a member of the Allen/Bruer
    group regardless of who did the actual kicking, (inferentially referring to s.
    21(1) of the
Code
); and the third was that under s. 21(2) of the
Code
,
    Graham, McDonald and Green shared the common purpose of assaulting Bruer with
    the attack on Allen being an objectively foreseeable probable consequence.

[32]

The
    appellants point out that the Crown made a subtle shift in position in asking
    the trial judge to use the following phrase in his statement of the Crowns
    position: their agreement to assault Myles Bruer
and his group

    (emphasis added). The use of the underlined words had the effect of broadening
    the common purpose from the assault on Bruer alone to an assault on anyone in
    his group, including Allen.

Discussion

[33]

The
    role of the trial judge in fashioning the jury charge and the function of the
    jury charge itself were set out by this court in
R. v. J.S.
, 2012 ONCA
    684,
296 O.A.C. 184,
at paras. 34-40. As Watt J.A. put
    it in
J.S.
, at para. 35: Proper instructions leave the jury with a
    sufficient understanding of the facts as those facts relate to the issues the
    jury has to decide (citations omitted). He added, at para. 36:

In the end, the jury must understand:

i.

the
    factual issues to be determined;

ii.

the legal
    principles applicable to the issues and the evidence adduced at trial;

iii.

the positions of the
    parties; and

iv.

the substantial parts of the
    evidence relevant to the positions of the parties on the issues to be decided.

[34]

Although
    the trial judge may take into account the closing addresses of counsel in
    deciding how to discharge his or her obligation to review and relate the
    evidence to the relevant issues, a closing address does not relieve the trial
    judge of the obligation to ensure that
the jury is aware
    of the substance and understands the significance of the evidence to the
    critical issues in the case
(at para. 39). As this court said in
R.
    v. A.(S.)
(1992),
76 C.C.C. (3d) 522
, at p. 527:
    trial judges are uniquely placed to, and, indeed are obligated, to tailor their
    instructions to the particular case.

[35]

The
    Crowns address to the jury had the effect of leaving three different routes
    for members of the jury to find criminal liability on the part of McDonald and
    Green for aggravated assault. These were: first, as noted in the charge, as direct
    perpetrators as testified to by Amelia Clarke and Myles Bruer, or [second] as
    parties to the offence by their agreement to assault Myles Bruer and his group.
    But the Crowns heavy emphasis in the jury address was on the third: common
    purpose.

[36]

The
    jury heard nothing from the trial judge on common purpose and a very few
    words from him on the notion of criminal liability flowing from common
    enterprise. I repeat them here for convenience:

A person may also commit an offence by being involved with
    others in a joint criminal enterprise. If any one of the group commits an
    offence in carrying out their original enterprise, any other member of the
    group who knew, or should have known, that the offence would likely be committed
    by a group member carrying out their original design, is guilty of the offence
    the other person actually commits.

[37]

The
    trial judge had not discussed with counsel his use of the expression, joint
    criminal enterprise, before he delivered the charge, and did not explain the
    term to the jury in his charge. The words in the preceding paragraph comprise
    the full extent of the trial judges charge on either joint criminal enterprise
    or common purpose. He provided no further guidance to the jury on the issue.

[38]

There
    is considerable force in the appellants submission that the trial judges
    substitution of the language of joint criminal enterprise for the statutory
    language relating to common purpose in s. 21(2) leads to uncertainty around
    what the jury might have understood the joint criminal enterprise to have
    been. If the enterprise was the assault on Bruer, then the appellants submit
    that the assault on Allen could not properly form part of the joint criminal
    enterprise because of its separation in time and space: accordingly the court
    cannot and should not be confident that the jury convicted the accused of
    aggravated assault on the right basis.

[39]

In
    the circumstances of this case, especially in light of the complexity of the
    facts, the number of participants in the fight, and the Crowns emphasis on
    common purpose in its jury address, once the trial judge raised the prospect
    of a joint criminal enterprise route to liability, he was obliged to provide
    a legally adequate jury instruction on s. 21(2).  To ground a conviction on the
    basis of common purpose, the jury was required to find the three elements of
    the offence: (1) an agreement to carry out an unlawful purpose, (2) the
    existence of a second offence, and (3) the requisite degree of knowledge that
    another participant would commit that second offence.

[40]

In
    this case the Crowns basic allegation in relation to common purpose was that Graham,
    McDonald and Green agreed to carry out the unlawful purpose of assaulting
    Bruer.  The jury should have been instructed, in determining whether there was
    any such agreement on the evidence, to take into account what each person did
    or did not do, how they did it and any communications between them.

[41]

The
    second element to be proven by the Crown in relation to common purpose was that
    the aggravated assault on Allen was the second offence related to the common
    purpose.  The instruction should have indicated that the aggravated assault on
    Allen must have occurred in the course of carrying out the original unlawful
    purpose of the assault on Bruer. As Justice David Watt states in
Watts Manual
    of Criminal Jury Instruction on Common Purpose
, 2005 at p. 257: The [second]
    offence committed, in other words, must be one that the members of the original
    agreement did not set out to commit, but one that still took place in the
    course of carrying out their original agreement or plan.

[42]

The
    third element required by s. 21(2) is proof that the person having the
    intention in common knew or ought to have known that the commission of the
    aggravated assault would be a probable consequence of carrying out the common
    purpose.  The trial judge should have addressed the prospect that Graham, McDonald
    and Green each knew or ought to have known that one or more of them would
    assault Allen, and also that one or more of them would commit an aggravated
    assault, all as part of the original unlawful purpose of assaulting Bruer.

[43]

The
    requirement that a criminal jury be unanimous applies only to the essential
    elements of the offence and not to the facts that establish those elements: see
R. v. Thatcher
, [1987] 1 S.C.R. 652;
R. v. G.M.L.
, 1999 BCCA
    467, 128 B.C.A.C. 102. This influenced the legal context within which the
    charge must be assessed.

[44]

In
    this case, had the jury been properly instructed, some or all of its members might
    well have concluded that the aggravated assault on Allen was not sufficiently
    related in time and space to the assault on Bruer to constitute that second
    offence.

[45]

The
    trial judge declined to give a common purpose jury instruction on the basis
    that, in his view, the original assault and the aggravated assault were too separate
    in time and space.  This perspective on the common purpose theory was not put
    to the jury: but such an interpretation of the facts is not, on its face, a
    completely implausible basis for finding that no common purpose existed on
    the facts. In my view, whether the assault and the aggravated assault were too
    separated in time and space was an issue of fact that ought to have been left
    to the jury to decide.

[46]

In
    short, the trial judges charge did not accomplish the essential purposes of a
    jury charge as laid out in
R. v. J.S.
As a consequence of the inadequate
    jury instruction in this case, those jury members who were only prepared to
    take the common enterprise route to criminal liability could well have
    concluded, on proper instructions, that this route was not factually available
    on the evidence.  This is a reasonable prospect on the facts, and therefore renders
    the jury verdict unreliable: see
R. v. Denbigh
(1993)
,
21 B.C.A.C. 241
.

[47]

This
    is a sufficient basis on which to allow the appeals of McDonald and Green.

[48]

The
    parties also addressed this court on the admissibility of certain hearsay evidence
    and its treatment in the jury charge.

The Admissibility of a Statement Heard by Leslie
    Lewis

[49]

Leslie
    Lewis lives in a second storey apartment near the tavern. Her evidence was that
    after 1:00 a.m., she heard a rowdy group of individuals outsideand there was
    just a very loud ruckus.  She looked out of the bedroom window and saw three
    or four males.  She heard: just a lot of yelling but specifically lets go
    back to Bridges and get him.  She described the mood of this group as very
    elevated, very aggressive, a lot of adrenaline, almost a growling type of
    yelling and the comments towards going back to Bridges. At that time, however,
    the group was walking away from Bridges Tavern. She testified that later she was
    awakened again about an hour later by the fight itself involving the same group
    of individuals she had seen earlier and some others.

[50]

The
    appellants submit that the statement, lets go back to Bridges and get him,
    was hearsay and was presumptively inadmissible.

[51]

The
    Crown relied on Ms. Lewiss evidence that she heard the statement.  In his jury
    address, Crown counsel recited this evidence from Ms. Lewis, although he noted
    that at the time the statement was made, the group was actually heading away
    from Bridges.  The Crown then made the following submission to the jury on this
    evidence:

There are several identifiers involved in this.  There is the
    fact that they were all male, the fact of a group between three and five, the
    fact that they were aggressive males, growling, yelling.  We know from Scott
    Graham that they were all riled up.  And theres a him involved.  We know that
    there is Myles Bruer was the major antagonist in the eyes of this group [
sic
].

[52]

The
    Crown observed that Ms. Lewis had no axe to grind, and ultimately linked this
    evidence to his argument that the group members had a common intention.

[53]

Defence
    counsel for Mr. Green made the following comment to the jury on Ms. Lewiss
    evidence:

Ms. Lewis testified that she heard somebody from her upstairs
    bedroom window on Louisa Street saying, lets go back to Bridges and get him.
    Now, whether or not she could identify the group is debatable, but the group,
    whoever she heard say that, didnt go back to Bridges Street, they turned south
    and walked up Bruce Street, away from Bridges Tavern.  So there is no evidence
    that even if somebody did say that, that they acted on that suggestion.

[54]

Defence
    counsel for Mr. McDonald described Ms. Lewis as very even-handed.  He
    submitted that she was not especially precise in her evidence and was unable to
    identify the person who made the statement, and added:

Even if you assume, ladies and gentlemen, even if you assume
    that someone said, lets go back to Bridges to get him, and if you assume that
    in the company of Mr. McDonald, we dont jump from there to a conclusion that
    there was some plan or common purpose or common goal shared by Mr. McDonald to
    go beat anyone up.  The Crown has to prove that, and the evidence comes down to
    this comment that Ms. Lewis says she heard from an unknown person, of unknown
    description, at an unknown time, where her focus was on her store and the busy
    long weekend.  Thats not proof to the threshold required.

[55]

In
    his jury charge, the trial judge briefly reviewed the testimony of Ms. Lewis without
    commenting on the use to which the jury could put the statement.

The Positions of the Parties on the Admissibility of the
    Statement

[56]

The
    Crowns position is that the statement was not hearsay.  The Crown asserts the following:

The value of the statement stems not from the truth of its
    contents but from the fact it was made by one of the appellants group.  The
    jury was not invited to use that statement as proof of the truth of any earlier
    events.  Instead, the Crown offered this as the unidentified speakers
    invitation to his group.  A verbal transaction such as this is not hearsay.
    The rule against hearsay is not a
per se
presumptive bar against
    admission into evidence of any words ever spoken outside the courtroom.  It is
    a limited rule against a specific use of evidence about words spoken outside
    the courtroom.

[57]

The
    appellants argue that the statement is hearsay and since it was not tested under
    the criteria of necessity and reliability, it should not have been admitted.  The
    appellants assert that the burden is particularly high in this case where the
    identity of the declarant is unknown: further, if reliability is established,
    the Crown has the additional burden of attributing the statement to the
    appellants.  They assert that: the Crown appeared to rely on the hearsay
    utterance in this case to establish a common group intention  i.e. to go back
    and renew the hostilities with the Bruer/Allen/Clarke group.  They argue that
    the statement is only admissible under the common intention for co-conspirators
    exception to the hearsay rule, or through the principled exception.

Discussion

[58]

The
    Crowns purpose in introducing Ms. Lewiss evidence of the statement was to
    help establish that the common intent of the members of the appellants group
    was to assault Bruer.  For the Crowns purposes, it would have been no
    different had the declarant said, We are going to Bridges to assault Bruer.
    The Crown sought to prove both the statement itself, and the intention of the
    declarant to assault Bruer, which the Crown sought to have the jury impute to
    the group.

[59]

This
    is not a case where the statement was adduced for the non-hearsay purpose of
    showing the statements impact on the recipient: see e.g.
R. v. Delafosse
(1988), 47 C.C.C. (3d) 165 (Que. C.A.), affd [1990] 1 S.C.R. 114;
R. v.
    Eisenhauer
(1998),
165 N.S.R. (2d) 81
, leave to
    appeal to S.C.C. refused, [1998] S.C.C.A. No. 144. In those cases, whether the
    declarant was mistaken or dishonest was irrelevant, and therefore so were the
    concerns underlying the hearsay rule. The out-of-court statements were used to
    show their effects on someone else, and not to prove the truth of the matter
    asserted by the declarant.

[60]

In
    my view, in this case the Crown was attempting to adduce the truth content of
    the statement: the intention of the declarant to assault Bruer, which the Crown
    urged the jury to impute to the group. Since the statement was tendered to
    prove the truth of its contents, it is presumptively inadmissible hearsay.

[61]

A
    somewhat similar fact pattern is found in
R. v. Middleton
, 2012 ONCA
    523,
294 O.A.C. 82, leave to appeal to S.C.C. refused, [2012]
    S.C.C.A. No. 423
.  In that case the appellant was part of a group that
    assaulted a group of Asian fishermen.  As Feldman J.A. noted at para. 2:

The unknown declarants said that they were going nip-tipping
    and that that meant that they were going to push them in the river.  The word
    nip was described in the evidence as a derogatory reference to Asian people.
    Some of the victims group were of Asian descent.

[62]

The
    parties in
Middleton
agreed that the statement was hearsay, but differed
    on its admissibility.  The trial judge admitted the statement under the
    principled exception to the hearsay rule.  He found that the evidence was both necessary
    and reliable.  Feldman J.A. stated at para. 45:

With respect to reliability, the trial judge found that the
    pushing incident corroborated and therefore rendered sufficiently reliable the
    statements as evidence of the common intention. He further found that the
    statements were reliable in terms of their applicability to the appellant
    specifically based on the anticipated corroborating evidence of the appellant's
    leadership in the incident and his direct involvement as one of the pushers.
    Therefore, I do not find that the trial judge erred in his application of the
    principled exception.

[63]

By
    contrast, in this case, the group did not immediately do what the declarant
    suggested, but did exactly the opposite by continuing to walk away from Bridges
    Tavern.  The group returned about an hour later.  Based on the separation in
    time and space, I conclude that, taken on its own, the reliability of the unidentified
    declarants statement was at issue under the principled exception to the
    hearsay rule. Perhaps because no one objected to the admissibility of the
    statement at trial, the trial judge did not address the use, if any, to which
    the statement could be put by the jury.

[64]

In
    my view, the statement appears to fall within the rule in
R. v. Starr
,
    2000 SCC 40, [2000] 2 S.C.R. 144, to the effect that hearsay statements of
    common intention are not admissible to prove the intentions of a third party
    under the present intentions exception to the hearsay rule.  See also
Middleton
at paras. 35-37.

[65]

In
    the circumstances of this case, the admissibility of the undisclosed
    declarants statement put in through Ms. Lewis is an issue to be addressed at
    the new trial if the Crown seeks to introduce it.

Disposition

[66]

For
    these reasons I would allow the appeals of McDonald and Green, set aside their
    convictions for aggravated assault and order a new trial on that charge.

Released: June 26, 2013 (M.R.)

P. Lauwers J.A.

I agree. M. Rosenberg J.A.

I agree. Gloria Epstein 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. Mekonnen, 2013 ONCA 414

DATE: 20130621

DOCKET: C51878 and C51376

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yonatan Mekonnen

Appellant

Jonathan A. Shime, for the appellant

Kim Crosbie, for the respondent

Heard: February 11, 2013

On appeal from the conviction entered by Justice Joseph
    W. Bovard of the Ontario Court of Justice on September 14, 2009 (C51376), with
    reasons reported at 2009 ONCJ 643, and the conviction entered by Justice James
    J. Keaney of the Ontario Court of Justice on January 26, 2010 (C51878).

Cronk J.A.:

I.        Introduction
[1]

[1]

The appellant, Yonatan Mekonnen, is HIVpositive.  Following two
    separate trials in 2009, he was convicted of two counts of aggravated sexual
    assault in relation to two different women for not disclosing his HIVpositive status
    prior to sexual activity.  He appealed both convictions.  He has fully served
    the sentences imposed at his trials.

[2]

While the appellants conviction appeals were pending, the Supreme Court
    of Canada released its decision in
R. v. Mabior
, 2012 SCC 47, [2012] 2
    S.C.R. 584, together with its companion decision in
R. v. D.C.
, 2012
    SCC 48, [2012] 2 S.C.R. 626.  In
Mabior
, the Supreme Court revisited
    its approach in
R. v. Cuerrier
, [1998] 2 S.C.R. 371 to the
    determination whether fraud vitiates consent to sexual relations and whether
    the non-disclosure of HIVpositive  status prior to sexual relations can constitute
    fraud vitiating consent within the meaning of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[3]

The parties accept that
Mabior
has overtaken the original
    grounds of appeal advanced by the appellant and the Crowns responding
    positions on the appellants conviction appeals.

[4]

Although the appellant in his factum originally sought acquittals
    concerning his convictions, during oral argument he submitted that, based on
Mabior
,
    his appeals should be allowed and stay orders should be granted in respect of
    all proceedings on the charged offences.

[5]

The Crown initially argued in its post-
Mabior
factum that the
    appellants appeals should be allowed and new trials ordered in each case.  However,
    during oral argument, the Crown also altered its position.  The Crown now
    supports the appellants request that the appeals be allowed and stay orders
    granted in relation to each proceeding.

[6]

Given the significantly narrowed scope of the appeals, the task for this
    court is to apply the
Mabior
decision to the facts of these cases and,
    if the appeals are allowed, to fashion proper remedies in the circumstances.

[7]

For the reasons that follow, I agree that the appeals should be
    allowed.  I am also of the view that the Crowns position at the appeal hearing
    regarding suitable remedies was professional and appropriate.  I would accept
    the joint position of the parties, allow the appeals, set aside the convictions
    and grant a stay of each proceeding.  I would also alter the ancillary orders
    imposed at the appellants trials in the manner described below.

II.       Background Facts

[8]

The relevant background facts are essentially undisputed and may be set
    out in brief compass.

(1)

The First Trial  Complainant L.L. (C51376)

[9]

On September 26, 2008, the appellant was charged with one count of aggravated
    sexual assault involving the complainant, L.L.  It was alleged that between
    November 2007 and January 2008, the appellant had vaginal intercourse with L.L.
    on three separate occasions without disclosing his HIVpositive status.

[10]

The
    appellant was tried before Bovard J. of the Ontario Court of Justice in September
    of 2009.  At trial, the complainant testified that during each of the three
    sexual encounters, the appellant wore a condom prior to intercourse.  On one
    occasion, the complainant performed fellatio on the appellant.  The complainant
    said that the appellant may have worn a condom when she fellated him, but she
    could not recall.  She testified that he probably did not ejaculate in her
    mouth.

[11]

Based
    on an agreed statement of facts filed at trial, it was established that the
    appellant knew he was HIVpositive before he met the complainant.  The
    complainant said that the appellant did not disclose his HIVpositive status to
    her.  She claimed that she would not have engaged in sexual activity with the
    appellant if she had known he was HIVpositive.

[12]

The
    complainant discovered that the appellant had HIV when a friend told her that
    she had seen his picture in the newspaper.  The complainant then saw her doctor
    and was tested for HIV.  She testified that she was in agony during the
    ensuing month as she awaited her test results.  She said that she was scared,
    devastated, cried daily, and thought that she was going to die.  Fortunately, the
    complainants test results eventually revealed that she had not contracted HIV.

[13]

The
    appellant testified in his own defence.  He denied having any sexual contact
    with the complainant.

[14]

No
    medical or expert evidence was called by the Crown to quantify the risk
    associated with the three acts of protected sexual intercourse described by the
    complainant. Although the agreed statement of facts contained an acknowledgment
    that HIV can be transmitted through the exchange of any bodily fluid, there
    was no evidence that bodily fluids, in fact, were exchanged on any of the three
    occasions of sexual intercourse.

[15]

Defence
    counsel at trial (not counsel on appeal) conceded that if the trial judge found
    that the appellant and the complainant had engaged in either sexual intercourse
    or oral sex and that the appellant had not disclosed his HIVpositive status to
    the complainant, a conviction for aggravated sexual assault should follow.

[16]

The
    trial judge rejected the appellants claim that he had not engaged in sexual
    activity with the complainant.  He accepted the complainants account of
    protected sexual activity without disclosure by the appellant that he was
    HIVpositive.

[17]

Accordingly,
    and in light of defence counsels concession, the appellant was convicted on
    September 14, 2009, of aggravated sexual assault.  On December 15, 2009, he was
    sentenced to 12 months incarceration, plus three years probation.  A ten-year
    weapons prohibition order, a lifetime order under the
Sex Offender
    Information Registration Act
, S.C. 2004, c. 10 (SOIRA), and a DNA data
    bank order were also imposed.

(2)

The Second Trial  Complainant K.S. (C51878)

[18]

In
    a separate information dated June 20, 2008, as amended on July 14, 2009, the appellant
    was charged with two counts of aggravated sexual assault involving the
    complainant, K.S.  In respect of these charges, it was alleged that the
    appellant had sexual relations with the complainant during the months of
    January and February 2008, without disclosing his HIVpositive status.  Justice
    James J. Keaney of the Ontario Court of Justice presided over this trial.

[19]

At
    trial, it was established that the complainant met the appellant in December
    2007, one month after he learned that he had HIV.  The complainant testified
    that she began to date the appellant and first had sex with him in January of 2008.
    She said that during their first sexual encounter, the appellant performed oral
    sex on her and they then had vaginal intercourse, without the protection of a
    condom.  The complainant claimed that immediately afterwards, she and the
    appellant discussed the possibility of contracting sexually transmitted
    diseases.  She said that the appellant lied to her, claiming that he was free
    of infection.

[20]

The
    complainants relationship with the appellant continued over the next few
    months, during which they had sexual intercourse, on a protected and
    unprotected basis, on numerous occasions.

[21]

In
    about February 2008, the appellant began living with the complainant and her
    mother.  Towards the end of February or early March, the complainant and the
    appellant decided to rent their own apartment together.  The complainant
    maintained that on the day before they were scheduled to move, the appellant
    told her that he had just learned that he was HIVpositive.

[22]

The
    complainant was shocked and upset.  The next day, she broke down at work and her
    boss arranged for her to attend a public health clinic where she was tested for
    HIV.  Fortunately, she later learned that she had not contracted the disease.

[23]

Notwithstanding
    these events, the complainant and the appellant moved into their own apartment together
    and continued to have sex, using a condom.  The complainant said that, on occasion,
    the use of a condom was delayed.  Their relationship ended in April or May 2008.

[24]

The
    Crown also called Dr. David Richardson, the appellants HIV doctor.  He testified
    that the use of condoms substantially reduces, but does not eliminate, the risk
    of HIV transmission.  However, he provided no evidence concerning the specific
    level of risk associated with unprotected sex or the reduction in that risk to
    be gained with condom use.

[25]

Dr.
    Richardsons clinical notes were filed as an exhibit at trial.  In one of his
    notes, dated April 2, 2008, Dr. Richardson recorded that he had explained to
    the appellant that his viral load is low.  It appears that the issue of the
    appellants viral load was not addressed at the trial.

[26]

The
    appellant testified that he was in denial about being HIVpositive when he
    first met the complainant.  He said that he and the complainant had intercourse
    once  on Valentines Day in February 2008  before moving into their own place
    together.  He claimed that they used a condom on that occasion but acknowledged
    that he did not disclose his HIVpositive status to the complainant.  According
    to the appellant, the couple used a condom on each subsequent occasion when
    they had sex together.

[27]

The
    trial judge held, on the authority of
Cuerrier
, that because the
    appellant admitted to having had sex with the complainant without first
    disclosing his HIVpositive status, the appellants own evidence established fraud
    vitiating the complainants consent to sex regardless of whether a condom had
    been used.  He found that condom use, in any event, is not absolutely safe and
    that the appellant had endangered the complainants life when he knowingly
    failed to disclose his HIVpositive to her on their first sexual encounter.

[28]

However,
    the trial judge was unable to conclude that the complainant and the appellant
    had sex in January of 2008.  Accordingly, he convicted the appellant on the
    count of aggravated sexual assault pertaining to the events of February 2008
    and acquitted him of the like count relating to the alleged events of January
    2008.  The appellant was subsequently sentenced to nine months incarceration,
    plus three years probation.  He was also ordered to provide a sample of his
    DNA and to register, for life, under the SOIRA.  A lifetime weapons prohibition
    order was also made under s. 109 of the Code.

III.      The
Cuerrier
Decision

[29]

In
Cuerrier
, the Supreme Court held that the failure to inform a sexual
    partner of ones HIV status may constitute fraud vitiating consent.  The
    Supreme Court emphasized that the essential elements of fraud are dishonesty
    and deprivation or risk of deprivation.  Justice Cory, writing for the
    majority, described the proof of dishonesty requirement of fraud in part in
    this fashion, at paras. 125127:

Persons knowing that they are HIVpositive who engage in sexual
    intercourse without advising their partner of the disease may be found to
    fulfil the traditional requirements for fraud namely dishonesty and depri-vation.
    That fraud may vitiate a partners consent to engage in sexual intercourse.

[T]he dishonest action or behaviour must be related to the
    obtaining of consent to engage in sexual intercourse, in this case unprotected
    intercourse.  The actions of the accused must be assessed objectively to
    determine whether a reasonable person would find them to be dishonest.  The
    dishonest act consists of either deliberate deceit respecting HIV status or non-disclosure
    of that status.

Without disclosure of HIV status there cannot be a true
    consent.  The consent cannot simply be to have sexual intercourse.  Rather it
    must be consent to have intercourse with a partner who is HIVpositive.  True
    consent cannot be given if there has not been a disclosure by the accused of
    his HIVpositive status.  A consent that is not based upon knowledge of the
    significant relevant factors is not a valid consent.

[30]

Justice
    Cory then turned to the second requirement of fraud  that the dishonesty result
    in deprivation or risk of deprivation.  He said, at para. 128:

[The deprivation or risk of deprivation] may consist of actual
    harm or simply a risk of harm.  Yet it cannot be any trivial harm or risk of
    harm that will satisfy this requirement in sexual assault cases where the
    activity would have been consensual if the consent had not been obtained by
    fraud.  For example, the risk of minor scratches or of catching cold would not
    suffice to establish deprivation.  What then should be required?
In my
    view, the Crown will have to establish that the dishonest act (either
    falsehoods or failure to disclose) had the effect of exposing the person
    consenting to a significant risk of serious bodily harm.  The risk of
    contracting AIDS as a result of engaging in unprotected intercourse would
    clearly meet that test.
[Emphasis added.]

[31]

Justice
    Cory then added this important observation, at para. 129:

To have intercourse with a person who is HIVpositive will
    always present risks.  Absolutely safe sex may be impossible.  Yet the careful use
    of condoms might be found to so reduce the risk of harm that it could no longer
    be considered significant so that there might not be either deprivation or risk
    of deprivation.

[32]

The
    application of the
Cuerrier
test sometimes proved difficult and
    controversial.  The Crown fairly put it this way in its supplementary factum,
    at para. 26:

The test was viewed by many as vague, resulting in considerable
    uncertainty concerning the scope of disclosure obligations and the protection
    of the public.  Further, establishing a threshold for determining what a
    significant risk actually was had become a numbers game  and given the
    variable factors that impact on transmission rates, that assessment often proved
    difficult.  Triers of fact applied different thresholds to determine the
    significance of the risk, with inconsistent results across the country and
    within provinces.

[33]

Since
    HIV poses a risk of serious bodily harm, the operative offence under the Code
    is aggravated sexual assault.  Although
Cuerrier
established the requirements
    for this offence, the precise circumstances in which the failure to disclose
    HIV status would vitiate consent, thereby giving rise to criminal liability,
    remained unclear.  In
Mabior
, the Supreme Court was asked to clarify
    those circumstances and the
Cuerrier
test of significant risk of
    serious bodily harm.

IV.     The
Mabior
and
D.C.
Decisions

[34]

In
Mabior
, the accused was charged with nine counts of aggravated sexual
    assault for failing to disclose his HIVpositive status to nine complainants
    before they had sex with him.  None of the complainants contracted HIV.  At
    trial, the accused was convicted on six of the counts.  He was acquitted on the
    other three counts on the basis that protected intercourse  the use of a
    condom  when the HIVpositive persons viral loads are undetectable does not
    place a sexual partner at significant risk of serious bodily harm within the
    meaning of
Cuerrier
.

[35]

The
    Manitoba Court of Appeal varied the trial decision, holding that
either
a
    low viral load or condom use could negate significant risk of serious bodily
    harm.  The Court of Appeal upheld the convictions on two counts where neither
    was established and entered acquittals on the remaining four counts, based on
    proof of either condom use or a low viral load.

[36]

On
    a Crown appeal from the acquittals, the Supreme Court restored the convictions
    for the incidents in which the accused did not have a low viral load and use of
    a condom was not established.  The court confirmed the continuing validity of
    the
Cuerrier
test of a significant risk of serious bodily harm,
    commenting, at para. 58, that the tests approach to consent accepts the
    wisdom of the common law that not every deception that leads to sexual
    intercourse should be criminalized, while still according consent meaningful
    scope.

[37]

The
Mabior
court also sought to clarify the meaning of the significant
    risk of serious bodily harm test by indicating when the test is met in terms
    of principle and concrete situations:
Mabior
, at para. 81.  Chief Justice
    McLachlin, writing for a unanimous court, held at para. 84:

In my view, a significant risk of serious bodily harm
    connotes a position between the extremes of no risk (the trial judges test)
    and high risk (the Court of Appeals test).
Where there is a

realistic possibility of transmission of HIV
,
    a significant risk of serious bodily harm is established, and the deprivation
    element of the Cuerrier test is met.
[Underlined emphasis in original; italicized
    emphasis added.]

[38]

After
    reviewing various considerations that supported this approach, McLachlin C.J.
    indicated, at para. 91:

These considerations lead me to conclude that
the Cuerrier
    requirement
of significant risk of serious bodily harm
should be
    read as requiring disclosure of HIV status if there is a realistic possibility
    of transmission of HIV
.  If there is no realistic possibility of
    transmission of HIV, failure to disclose that one has HIV will not constitute
    fraud vitiating consent to sexual relations under s. 265(3)(
c
) [of the
    Code].  [Emphasis added.]

[39]

As
    McLachlin C.J. noted, at para. 92,  significant risk depends both on the
    degree of harm and risk of transmission.  These two factors vary inversely.
    With respect to when there is a realistic possibility of transmission of HIV,
    McLachlin C.J. made this central finding, at para. 94:

The evidence adduced here satisfies me that, as a general
    matter, a realistic possibility of transmission of HIV is negated if (i) the
    accuseds viral load at the time of sexual relations was low,
and
(ii)
    condom protection was used.  [Emphasis in original.]

[40]

Chief
    Justice McLachlin went on to add, at paras. 101 and 104:

[O]n the evidence before us, the ultimate percentage risk of
    transmission resulting from the combined effect of condom use
and
low
    viral load is clearly extremely low  so low that the risk is reduced to a
    speculative possibility rather than a realistic possibility.

.

[T]he general proposition that a low viral load combined with
    condom use negates a realistic possibility of transmission of HIV does not
    preclude the common law from adapting to future advances in treatment and to
    circumstances where risk factors other than those considered in the present
    case are at play.

[Emphasis in original.]

[41]

The
    Supreme Court summarized its findings in
Mabior
, at paras. 104-105, in
    these terms:

To summarize, to obtain a conviction under ss. 265(3)(
c
)
    and 273, the Crown must show that the complainants consent to sexual
    intercourse was vitiated by the accuseds fraud as to his HIV status.  Failure
    to disclose (
the dishonest act
) amounts to fraud where the complainant
    would not have consented had he or she known the accused was HIVpositive, and
    where sexual contact poses a significant risk of or causes actual serious
    bodily harm (
deprivation
).  A significant risk of serious bodily harm
    is established by a realistic possibility of transmission of HIV.  On the
    evidence before us, a realistic possibility of transmission is negated by
    evidence that the accuseds viral load was low at the time of intercourse and
    that condom protection was used.

The usual rules of evidence and proof apply.  The Crown bears
    the burden of establishing the elements of the offence  a dishonest act and
    deprivation  beyond a reasonable doubt.  Where the Crown has made a
prima
    facie
case of deception and deprivation as described in these reasons, a
    tactical burden may fall on the accused to raise a reasonable doubt, by calling
    evidence that he had a low viral load at the time and that condom protection
    was used. [Emphasis in original.]

[42]

The
    holdings in
Mabior
were directly applied in the companion case of
D.C.
In that case, the accused was charged with sexual assault and aggravated
    assault.  It was alleged that when the accused first engaged in vaginal
    intercourse with her male partner, she did not disclose her HIVpositive status.
    At the time, the accuseds viral load was undetectable.  The critical issue,
    therefore, was whether the couple had used a condom.

[43]

Based
    on the accuseds and her partners evidence at trial, there was conflicting
    evidence regarding whether a condom had been used.  The trial judge, relying on
    a dated note in the accuseds medical records, inferred that no condom had been
    worn and convicted the accused of both charges.  Contrary to the standard
    subsequently set out in
Mabior
, the Quebec Court of Appeal set aside
    the convictions on the ground that even without condom use, the significant
    risk test established in
Cuerrier
had not been met, given the accuseds
    undetectable viral load.

[44]

The
    Supreme Court applied the
Mabior
significant risk standard, holding
    that condom use, in addition to a low viral load, was necessary in order for
    the accused to avoid criminal liability for failing to disclose her HIVpositive
    status.  In other words, in accordance with
Mabior
,
D.C.
also
    holds that condom use is required to preclude a realistic possibility of HIV
    transmission.  In the result, the Supreme Court dismissed the appeal but set
    aside the convictions based on the trial judges impermissible inference from
    the accuseds medical records that a condom had not been used.

V.      Application of
Mabior
and
D.C.
to
    the Facts of these Cases

[45]

The
    appellant argues that in light of
Mabior
and
D.C.
, these
    appeals must be allowed.  I agree.

[46]

First,
    and importantly, the Crown concedes that the appeals should be allowed.

[47]

Second,
    based on the
Mabior
courts clarification of the significant risk of serious
    bodily harm test enunciated in
Cuerrier
, the findings at both of the
    appellants trials are insufficient to support the convictions entered.

[48]

The
    conviction at the appellants first trial (involving L.L.) was grounded, at
    least in part, on defence counsels concession at that trial that the appellant
    should be convicted of aggravated sexual assault if sexual intercourse or oral
    sex was found to have occurred without disclosure by the appellant of his HIVpositive
    status.  I agree with Crown counsels submission before this court that a conviction
    on this basis alone does not meet the
Mabior
standard of a realistic
    possibility of HIV transmission.

[49]

The
    conviction entered at the appellants second trial (involving K.S.) is also
    unsustainable.  There was no evidence at this trial as to the risk associated
    with the sexual activity engaged in by the appellant.  Critically, the trial
    judge made no finding to resolve the conflicting evidence on whether a condom
    was actually used.  On the state of the law at the time, the trial judge
    regarded it as immaterial to resolve this issue.  However, under the
Mabior
standard, proof of condom use, while not always essential, may be highly
    material to the demonstration of a realistic possibility of transmission of
    HIV.  Without such a realistic possibility, a significant risk of serious
    bodily harm cannot be made out.

[50]

Accordingly,
    I would accept the parties joint position that the appeals must be allowed.

[51]

That
    leaves only the question of remedy.  Although originally contested, the parties
    now agree that stay orders should be granted in respect of both proceedings.

[52]

Generally,
    a stay of criminal proceedings is granted only in exceptional circumstances.
    The high threshold for a stay recognizes that stayed charges may never be
    prosecuted or resolved by a trier of fact.  See for example,
R. v. Regan
,
    2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.   In the cases at bar, in my
    opinion, there is a basis on which the appellant could be convicted of the charges
    against him, in accordance with the
Mabior
standard, depending on how
    the evidence played out at new trials.  It is therefore not axiomatic that a
    stay of proceedings should be granted in cases of this kind.

[53]

That
    said, I am persuaded that several compelling factors justify a stay order in
    respect of both proceedings against the appellant.  First, the appellant has
    fully served and complied with all components of his sentences.  Second, the hearing
    of his appeals was twice adjourned pending the release of
Mabior
and
D.C.
As a result, the appellant has been engaged in the appeal process for about
    three years, with the ever-present stigma of his convictions throughout.
    Finally, and importantly, the Crown now professionally and appropriately consents
    to the requested stay orders.  As I understood Crown counsels submissions, the
    Crown acknowledges that stay orders in these cases are warranted in the
    interests of the administration of justice.

[54]

In
    these specific circumstances, I would accede to the joint request of the Crown
    and the defence that stay orders be granted.  In my view, both fairness and the
    public interest are served by this outcome.

VI.     Disposition

[55]

Accordingly, for the reasons given, I would allow the appeals, set aside
    the appellants convictions and grant a stay of each proceeding.  As agreed by
    the parties, I would also direct that the appellants name be removed forthwith
    from the provincial sex offender registry (Christophers Law) and from SOIRA,
    that the sample of the appellants DNA previously provided be destroyed
    forthwith, and that the convictions and charges also be removed forthwith from
    the appellants vulnerable sector check.

Released:

JUN 21 2013                                    E.A.
    Cronk J.A.

EAC                                                I
    agree Gloria Epstein J.A.

I
    agree P. Lauwers J.A.

[1]
These appeals were heard together with a companion appeal in
R. v. Felix
,
    2013 ONCA 415.  This courts reasons in
Felix
are being released
    contemporaneously with these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicevski, 2013
    ONCA 435

DATE
: 20130621

DOCKET: C53617

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nicevski

Appellant

Mark Halfyard and Daniel Brown, for the appellant

Kim Crosbie, for the respondent

Heard: June 18, 2013

On appeal from the conviction entered on February 10,
    2011 by Justice Edwin B. Minden of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

The main issue on this appeal is whether the proposed fresh evidence of
    the toxicologist is admissible.  In our view, it is in the interests of justice
    to admit the fresh evidence.  Although this evidence was available at trial we
    accept defence counsels affidavit that his failure to lead this evidence was
    an oversight, not a tactical decision.  That the due diligence requirement was
    not met does not, in this case, preclude the admission of the fresh evidence.

[2]

Thus, the admission of the fresh evidence turns on the fourth
Palmer
criterion:  whether the evidence, when taken with the other evidence adduced at
    trial, could reasonably be expected to have affected the verdict.  We think the
    appellant has satisfied this criterion.  The fresh evidence is independent,
    objective evidence that is capable of raising sufficient concern about the
    complainants credibility that it may well have affected the finding of guilt.

[3]

Accordingly, the fresh evidence is admitted.  Based on the fresh
    evidence, the appeal is allowed.  The conviction is set aside and a new trial
    is ordered.