COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downs, 2014 ONCA 20

DATE: 20140113

DOCKET: C53767

MacPherson, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey William Downs

Appellant

Michael Lacy and Julianna Greenspan, for the appellant

Susan Magotiaux, for the respondent

Heard: October 9, 2013

On appeal from conviction entered by Justice M.J. Nolan
    of the Superior Court of Justice, sitting with a jury, dated on March 11, 2010
    and the sentence imposed on May 25, 2010.

Rouleau J.A.:

INTRODUCTION

[1]

This was a difficult trial for the judge and jury. It was acknowledged
    that the appellant was suffering from schizophrenia, and that on February 18,
    2008, he brutally killed Joseph Kearley and injured Bruno De Bortoli. The
    central issue for the jury was whether, when the appellant caused the death and
    injuries, his mental disorder was such that he did not appreciate the nature
    and quality of his actions or did not know that they were morally wrong. If so,
    the appellant ought to be found not criminally responsible (NCR).

[2]

The experts who testified at trial were divided in their opinions. The
    jury weighed these competing opinions and concluded that the appellant was not
    NCR. The appellant appeals, arguing that errors were committed by the trial
    judge in the handling of the trial and in the charge to the jury. The appellant
    argues that the finding that he was criminally responsible is unreasonable and
    unsupported by the evidence. The appellant also argues that errors in the trial
    judges instructions respecting
mens rea
warrant ordering a new trial.

[3]

Given the divided opinion of the experts and the well documented mental
    illness of the appellant, it is clear that the NCR issue could well have gone
    either way. In my view, however, the trial judge worked very hard to ensure
    that the trial was conducted properly and that the case was put fairly to the
    jury. The instructions to the jury are correct. Although much of the medical
    evidence could well have supported an NCR finding, there was also medical
    evidence supporting the jurys conclusion. For the reasons that follow I would,
    therefore, dismiss the appeal.

FACTS

The assault

[4]

In the early hours of the morning of February 18, 2008, the appellant
    violently assaulted and killed 74 year old Joseph Kearley. In the course of
    that assault, the appellant also attacked three other men, including 65 year
    old Bruno De Bartoli who suffered significant injuries.

[5]

The appellant and the victims were residents of the Marentelle Rest Home
    in Windsor. The appellant was 35 years old and living at the rest home because
    he suffered from schizophrenia.

[6]

Staff were alerted to the beating when they heard loud thudding coming
    from upstairs. After a few minutes, they went upstairs to investigate and saw
    Mr. Kearley lying still on the floor in the hallway with blood covering his
    face. Mr. De Bartoli was behind him. The appellant was standing over Mr.
    Kearley punching him repeatedly and stomping on his face. The staff ran
    downstairs and called 911.

[7]

Mr. Kearley had multiple significant blunt force injuries on his head, face
    and neck. His skull and jaw were fractured in 10 places. His ribs were
    fractured in 10 places. He had no defensive wounds. There was obvious and
    significant injury to his face and blood coming from his mouth, ears and nose.
    The pathologist could not determine the exact mechanism of death but found that
    he died from blunt force trauma with possible contributions of lack of oxygen,
    strangulation from the injuries to the throat and massive blood loss.

The arrest and interview

[8]

When the police arrived, they found Mr. Kearley lying in the hallway.
    The appellant was standing barefoot in the hall with blood on his ankles and
    hands. As the police put him under arrest, the appellant said: I am sorry.
    That was bad of me. I hurt those people. Later, when the police cautioned the
    appellant, he said: I want to go back to prison. He remained calm and
    cooperative while he waited with Constable Tanner to be transported. One member
    of the rest home staff said he looked kind of somewhere else and was
    whispering to himself.

[9]

As the appellant was being walked out of the home, another resident made
    a comment, something like I hope you get it up the ass everyday with no lube.
    The appellant responded Ill be back here in a coupla days buddy.

[10]

Officers
    found the appellant to be calm and compliant during booking. He was later
    observed talking to himself in his cell in a calm but loud voice. No one could
    hear particular words.

[11]

When
    the appellant was asked if he knew why he was in the police station, he
    responded I hurt some people. First degree murder. I am going to Kingston
    Penitentiary, but I have some stops along the way. I am going to die in prison
    from AIDS. Im going to get out just before I die. I am going to grow some
    wings and fly.

[12]

When
    the appellant was asked if he wanted to call a lawyer, he initially said no and
    said Ill just go to prison. I dont need a lawyer. When asked whether he
    understood the charge and what a lawyer does, the appellant responded Murder
    one, and a lawyer represents you. The appellant later agreed to talk to
    counsel and, after two unsuccessful attempts, was able to speak to a lawyer.

[13]

During
    his booking and processing, the appellant complained that his wrist was broken.
    He told an officer My wrist hurts. I hurt it hurting somebody else. He told
    police I hit some guys in the face and they were bleeding. The appellant was
    later taken to the hospital for x-rays and, while at the hospital, was heard to
    say Cant believe the mess Im in. At various points he was seen talking or
    mumbling to himself and staring straight ahead. After taking his medical
    history, the doctor gave him medication for his schizophrenia. After seeing the
    doctor he told the police My ankles are broken. I cant walk. They put me in a
    room. I couldnt breathe. I couldnt stand. I couldnt even piss. When the
    police reminded him that he had been walking in the cell, he responded Okay,
    forget it then.

[14]

Upon
    his return to the police station, the appellant was asked where the blood on
    his hands and feet came from. The appellant originally responded that it was
    his blood but after being asked if he was injured, the appellant responded that
    he hit some guys in the face.

[15]

After
    speaking with counsel, the appellant gave a video-taped statement. The
    statement was played at trial and was the subject of comment by the experts.
    The appellant was able to give accurate information about himself and his
    family and background and his diagnosis of schizophrenia. He at times indicated
    that he hurt people and they provoked it and at other times he denied hurting
    people. He did not know why he had beaten the victims. He acknowledged asking
    for cigarettes and being denied. He said he felt bad for himself. He was at
    times unresponsive and also said he was dizzy and wanted to lie down and to see
    a psychiatrist.

[16]

In
    the course of the video-taped statement, the appellant did not mention God or
    any hallucinations or delusions. Detective Thomson testified at trial and said
    he thought that the appellant was exaggerating the situation and putting on an
    act in some parts of the statement. He agreed, however, that contradictions in
    a police interview were common.

Psychiatric history

[17]

It
    was acknowledged at trial that the appellant had been suffering from
    schizophrenia since about the year 2000. Two of his treating psychiatrists, Dr.
    Velehorschi and Dr. Villella and a nurse, Ms. Aussant, testified regarding the
    appellants treatment. Their evidence was to the effect that he had a history
    of delusions, including religiously themed thoughts, and that at times the
    appellant believed that God had directed him to do things or influence his
    actions and thinking. It was also noted that compliance with medications was a
    fairly common problem for the appellant and that missed medication could
    potentially destabilize him. All three testified that they did not believe the
    appellant to be malingering his symptoms.

[18]

It
    was accepted that the appellant had experienced symptoms of schizophrenia in
    the weeks before the attack. In January of 2008, the appellant locked three
    residents in their rooms at the rest home. He was acting in a violent and
    uncontrolled manner but was cooperative when police arrived. On February 4, the
    rest home staff took the appellant to the hospital because of bizarre and
    disruptive behaviour.

[19]

On
    February 12, 2008, the appellant visited the psychiatrist for a follow-up where
    his medications were changed. He was also referred to an intensive community
    treatment program.

[20]

In
    the period preceding the offence, staff at the home had become concerned about
    the appellant. The owner of the rest home, Ms. Zebic, thought that the
    appellant was not in his right mind, and rest home staff noted that he was
    talking to himself and pacing.

Jail Assessment

[21]

The
    appellant was seen by a nurse at the jail on the day of the offences. He
    appeared to the nurse to be disoriented and he reported hearing voices but did
    not mention God. He was agitated and did not want to answer questions. The
    nurse put him on suicide watch.

[22]

On
    February 21, 2008, the appellant was seen by Dr. Child and was found to be
    speaking rationally and normally. He was on medication at the time.

Appellants Evidence

[23]

The
    appellant testified that his medications were screwed up and that he did not
    feel together in his brain during the time leading up to the offences. He was
    able to recall some of the events in question. He testified that he could not
    sleep that night because of changes to his medication. At some point, while in
    bed, he heard an animal-like figure in a tree outside the rest home. He
    testified that he believed this was God and, as a result he felt scared and was
    shaking. When he left his room and went to the common room, he saw lettering
    and numbering on the walls. With respect to why he started kicking and hitting
    Mr. Kearley, the appellant could only explain that he was supposed to meet God
    that night, to be closer to God, and because God told [him] to do it.

[24]

The
    appellant acknowledged that Mr. Kearley had not provoked him. He acknowledged
    that he may have said that Mr. Kearley was a bum or was going to hell but he
    nonetheless liked Mr. Kearley and thought of him as a friend. He may have asked
    Mr. Kearley for cigarettes before the attack.

[25]

The
    appellant testified that he did not know what he was doing when he was kicking
    Mr. Kearley. He said that he did not believe it was wrong at the time and did
    not know he was going to kill Mr. Kearley. The appellant had no recollection of
    the other assaults he committed and did not really remember being arrested or
    making various statements to police.

Expert Assessments

[26]

The
    court ordered assessment was conducted by a psychiatrist, Dr. Komer. He met
    with the appellant approximately 20 times during the 60 day NCR assessment
    conducted in 2008. Dr. Komer found the appellant difficult to assess. He
    confirmed that the appellant was suffering from schizophrenia and did not think
    that the appellant was malingering, although he agreed that this was a
    possibility. He concluded that the appellants illness was active at the time
    he committed the offences. Dr. Komers opinion was that the appellant likely
    appreciated the nature of his acts but lacked an understanding of wrongfulness.
    He concluded that the appellant was likely NCR on account of his mental
    disorder when he committed the offences.

[27]

Dr.
    Litman is a psychologist who assessed the appellant as part of Dr. Komers
    clinical team. Dr. Litman conducted two psychometric assessments of the appellant
    and interviewed him once. Dr. Litman was unable to testify at trial but his
    report was read in and relied upon by Dr. Komer. Dr. Litman concluded that the
    appellant was likely not criminally responsible but found that he was
    malingering psychiatric symptoms.

[28]

The
    Crown sought and obtained a second opinion on criminal responsibility. The
    assessment was carried out by Dr. Dickey, a psychiatrist. Dr. Dickey met with
    the appellant three or four times for a total of around two hours. He reviewed
    the opinions of Dr. Komer and Dr. Litman as well as police files. Dr. Dickey
    was unable to conclude that [the appellant] would clearly qualify for a
    defence of not criminally responsible. Dr. Dickey acknowledged that he was not
    far off from Dr. Komers opinion. However, he did not see evidence of florid
    and active symptoms of schizophrenia around the time of the offence that would
    impact on the appellants appreciation of the wrongfulness of his acts. He
    found that the changing nature of the reported hallucinations of God in the
    trees, including the form, colour, time and character of the alleged
    hallucinations strongly supported the conclusion that the appellant was
    malingering in his post-defence assessments. The appellant had not reported any
    religious hallucinations in his many statements to police and had not mentioned
    seeing God in the trees or feeling compelled by God to kill or beat anyone
    until April 8, almost two months after the offences.

[29]

Dr.
    Wright is a forensic psychologist who assessed the appellant as part of Dr.
    Dickeys team. Dr. Wright met with the appellant for 2.5 hours and reviewed
    case records. Dr. Wright concluded that it was quite unlikely that the
    appellant lacked knowledge of moral wrongfulness of his acts. Dr. Wright opined
    that the appellant was malingering symptoms of a mental disorder because some
    of the appellants descriptions of his hallucinations were inconsistent.

[30]

In
    his cross-examination of Dr. Wright, defence counsel highlighted a number of
    records that Dr. Wright had not been aware of when he formed his opinion. These
    included hospital records showing that the appellant had reported thinking
    another resident had a knife in the weeks before the offence, reports regarding
    treatment the appellant had received in the years prior to the offence that emphasized
    his history of religious preoccupation, hospital records from February 4, 2008
    referring to auditory hallucinations and talking to God, medication logs and
    some of the appellants utterances in police custody. Dr. Wright testified
    that, even with all of this new information, his overall opinion that the
    appellant was criminally responsible did not change.

[31]

As
    to the appellant having reported that God had directed him, Dr. Wright
    testified it was unusual that the appellant had a delusion so strong as to
    compel him to commit these offences and yet, did not remember the specifics of
    the delusion. Dr. Wright thought that it was unusual that the appellant would
    be labouring under such a fixed delusion and yet made no mention of the
    delusion or religious themes whatsoever in the police interviews and
    statements.

Trial Proceedings

[32]

The
    appellant admitted the
actus reus
of the killing and the aggravated
    assault. He argued that he was not criminally responsible by reason of his
    mental disorder. The Crown admitted that the appellant suffered from a mental
    disorder but argued that he was criminally responsible and had the necessary
mens
    rea
for second degree murder and aggravated assault.

[33]

The
    jury was instructed to accept that the
actus reus
had been proven and
    that their task was to determine criminal responsibility on a balance of
    probabilities standard. They were told that the onus was on the appellant to
    show that he was NCR. If they found that the appellant did not meet this onus,
    then the jury was to consider the intent for murder and aggravated assault. That
    intent had to be established beyond a reasonable doubt.

[34]

The
    jury found that the appellant had not made out a defence of NCR and convicted
    him of second degree murder and aggravated assault.

ISSUES

[35]

There
    are four issues raised in this appeal:

1)

was the verdict
    reasonable and supported by the evidence?

2)

did the trial judge
    err by failing to adequately instruct the jury on the steps to follow in their
    analysis and on the proper use of protected statements in that analysis?

3)

did the trial judge
    err by instructing the jury that they could use evidence of alleged malingering
    to infer that the appellant had the intent to kill? and

4)

did the trial judge
    err by telling the jury that the appellants ability to recall the events was
    relevant in determining whether he was NCR at the time of the offences?

1)       Was the Verdict Reasonable and Supported by the
    Evidence?

[36]

Determining
    whether a person who suffers from a mental illness is criminally responsible
    for his actions and is capable of having the subjective foresight required to
    be convicted of second degree murder is, by its very nature, very difficult for
    juries to assess. In the appellants submission, judicial experience has taught
    us that there are greater risks of miscarriages of justice in cases of this
    nature making them ripe for appellate review through an assessment of the
    reasonableness of the verdict.

[37]

The
    Supreme Court of Canada commented on this issue in
R. v. Molodowic
, 2000
    SCC 16, [2000] 1 S.C.R. 420, at para. 13:

This  is a case in which the weight of judicial experience
    must be brought to bear on the assessment of the reasonableness, as a matter of
    law, of the conclusion reached by the jury. There is a real danger, which
    manifested itself here, that a jury will be unduly sceptical of a defence
    that is often perceived as easy to fabricate and difficult to rebut. This is
    particularly so when the actions of the accused present a large component of
    rationality, as they do in a case such as this where it is conceded that the
    appellant knew what he was doing and realized that his actions were prohibited
    by law.

[38]

In
    the appellants view, the jurys conclusion in this case was, as it was in
Molodowic
,
    the product of an unreasonable verdict.

[39]

The
    appellant argues that on a reasonable assessment of the evidence as a whole, it
    is clear that the appellant had established on a balance of probabilities that
    he was not criminally responsible. Any other finding was simply legally
    unreasonable.

[40]

The
    appellant also points to three errors that compromised the jurys ability to
    arrive to a just result, and no doubt contributed to their having reached an
    unreasonable verdict:

i.

the Crown led evidence that was contrary to the agreed facts that the
    appellant was suffering from a major mental illness (schizophrenia) and that
    there was no animosity between the appellant and the deceased;

ii.

the trial judges instructions did not adequately convey to the jury the
    fact that Dr. Wrights evidence was minimally probative and entitled to little
    weight; and

iii.

it was inappropriate for the Crown to repeatedly display to the jury the
    graphic photos of the murder particularly in light of the defences admission that
    the appellant had caused the death of Mr. Kearley.

[41]

I
    will deal with each of these three points in turn.

i.        Did
    the Crown lead evidence contrary to the agreed statement of facts?

[42]

Prior
    to trial, the parties had worked out an agreed statement of facts. It included
    the fact that the appellant was suffering from a major mental illness
    (schizophrenia) and that, prior to the offences, there were no known
    difficulties or arguments between the appellant and the victims. The appellant
    argues that the Crown, in its submissions and in the evidence led at trial,
    undermined these agreed statements. This would have confused the jury and have
    suggested to them that the appellant was motivated by
animus
and,
    further, that he was a malingerer who did not in fact suffer from
    schizophrenia.

[43]

I
    do not view the evidence led by the Crown or its submissions to be contrary to or
    to undermine the agreed statement of facts. I agree that a good deal of
    evidence was led that suggested that the appellant may be malingering in the
    sense of exaggerating or feigning particular symptoms of schizophrenia. It was,
    however, never suggested that he did not suffer from the condition. By stating
    that the appellant may have amplified or created symptoms of his mental
    illness, the trial judge was not suggesting that the admitted diagnosis was
    wrong. The issue for the jury was not whether the appellant was schizophrenic;
    it was whether some of the symptoms he described to the psychiatrist and in his
    testimony at trial were exaggerated or real.

[44]

With
    respect to the issue of
animus
, the evidence relied on by the
    appellant is testimony from a witness who recalled that the appellant had referred
    to one of the victims as a bum and suggested that the assault may have been
    over a victims refusal to share his cigarettes. This evidence does not
    contradict the agreed statement of facts. It does not suggest that there were known
    difficulties or arguments prior to the commission of the offences.

[45]

There
    was not, in my view any attempt by the Crown to resile from the agreed
    statement of facts.

ii.       Did
    the trial judges instructions adequately signal the weaknesses associated with
    Dr. Wrights evidence?

[46]

The
    appellant argues that, in the course of cross-examination, it was shown that,
    in preparing his report and reaching his opinion, Dr. Wright failed to take
    into account important and relevant information. In the appellants submission,
    the trial judges instruction was insufficient to protect against the
    possibility that the jury would place undue weight on Dr. Wrights evidence.
    The trial judges instruction simply noted for the jury that the appellant had
    shown that there were certain facts of which he had not been made aware before
    when he had formed his opinion. You could determine the weight to be put on
    that evidence.

[47]

I
    see no error in the trial judges treatment of Dr. Wrights evidence. The
    weaknesses in Dr. Wrights evidence, including his failure to review many
    psychiatric and medical records, were emphasized in the appellants closing
    arguments and, as noted above, the trial judge cautioned the jury accordingly.
    In other parts of her charge, the trial judge referenced the appellants
    submission that Dr. Komers evidence should be given more weight because of the
    greater contact he had with the appellant and because he would know the
    appellant much better than Dr. Wright. No more was requested by trial counsel
    and no more was required.

iii.      The
    use of the photographs

[48]

The
    Crown initially sought to admit over 600 photos of the crime scene, autopsy and
    the injuries to the victims. During a pre-trial motion, the appellant
    challenged approximately 60 of the photos and was successful in having all but
    three excluded. Ultimately, approximately 200 photographs were filed in a
    binder as an exhibit at trial.

[49]

Several
    of the photos of the crime scene and of the deceased were graphic, and viewing
    them may have made the jury uncomfortable. The Crown showed them to the jury
    four times through various witnesses. In the appellants view, there was no
    reason to do so in light of the appellants admission that he had caused the
    death and, in any event, any relevance was outweighed by the prejudicial impact
    of showing them to the jury. The appellant argues that the photos would have inflamed
    and alienated the jury.

[50]

The
    Crown notes, correctly in my view, that there was a ruling that the photographs
    were relevant and admissible as they allowed the jury to assess the sustained
    and vicious nature of the attack. This went on the one hand to support the
    Crowns position that intent could be inferred from the sustained and
    purposeful violent course of conduct. On the other hand, it also supported the
    appellants submission that the severity of the aggression was consistent, in
    Dr. Komers view, with the lack of criminal responsibility.

[51]

No
    appeal was taken from the judges ruling on admissibility. Further, the trial
    judge closely monitored the showing of the photos to the jury, ensuring that
    repetitive showing was limited and that the photos not be displayed on the
    screen any longer than necessary. While it is unfortunate that the jury was
    exposed to such violent images, there is no reason to assume that the jury
    would have been inflamed and would not have applied the law dispassionately, as
    they were required to.

iv.      Was
    the verdict reasonable?

[52]

I
    acknowledge that there was considerable evidence led at trial tending to show
    that the appellant was not criminally responsible at the time he committed the
    offence. He was schizophrenic, his mental health had shown signs of
    deterioration in the period leading to the offence and some of the experts
    supported a finding of NCR. Further, Dr. Wrights contrary opinion was
    certainly weakened in cross-examination and the jury heard a good deal of
    evidence suggesting that Dr. Wrights conclusion that the appellant was
    malingering was simply wrong.

[53]

In
    other words, a jury could very well have ruled in the appellants favour.

[54]

However,
    there was evidence, including expert evidence, going the other way. It was by
    no means an overwhelming case for either party. Faced with differing expert
    opinions on the NCR issue, the jury had a difficult decision to make. Nevertheless,
    it was the appellants burden to establish that he was NCR, and the jury was
    entitled on this record to find that he had not met that burden. The appellant
    has not shown any error in the trial judges careful treatment of the evidence
    and her charge on this issue. There is no basis for this court to intervene.

2)       Instructions
    to the jury on the steps to follow in their analysis and on the proper use in
    that analysis of protected statements

[55]

This
    case proceeded as a one stage, blended jury trial. The jury had two principal
    tasks. First, they had to determine whether, on a balance of probabilities, the
    appellant had established that he was NCR. If they concluded that the appellant
    had not met his burden, the jury was then to move on to the second stage of
    determining whether the appellant had formed the specific intent for murder.

[56]

It
    was incumbent on the trial judge to properly instruct the jury on the
    distinction between the two steps, including the differences in the onus and burden
    of proof, and on the evidence that could and could not be used by the jury in
    reaching their decision on both of these steps. In the appellants submission,
    the trial judges instruction did not provide the jury with sufficient guidance
    on how to carry out its analysis.

[57]

Further,
    the appellant argues that the trial judge erred in her instructions relating to
    the use that could be made of protected statements made by the appellant to the
    medical personnel who assessed his mental health. The appellant had made
    various utterances while on the assessment ordered by the court pursuant to s.
    672.11 of the
Criminal Code
. These statements are deemed to be
    protected by operation of s. 672.21 of the
Criminal Code
. Although
    the appellant consented to the admission of these statements for the purpose of
    assessing whether he was NCR, the appellant argues that this evidence could not
    be used by the jury in determining whether the Crown had proven intent.

i.

The adequacy of the instruction to the jury on the steps of analysis
    required

[58]

The
    steps of analysis portion of the charge is modelled after the Ontario specimen
    jury instructions. In her instructions, the trial judge told the jury that they
    were first to consider the criminal responsibility of the appellant on a
    balance of probabilities standard, and that on this issue the onus was on the
    appellant. She reminded the jury that mental disorder was admitted and then
    explained the law relating to an NCR determination. She also reviewed some of
    the relevant evidence.

[59]

After
    this review, the trial judge moved to the second stage of considering intent
    for murder and aggravated assault. The trial judge instructed that here, the
    onus was on the Crown, and that intent had to be proven beyond a reasonable
    doubt. The trial judge was careful to ensure that the jury understood that the
    appellants mental condition remained relevant. She told the jury: Evidence of
    mental illness or mental disorder, falling short of a finding that he is not
    criminally responsible, should be considered along with all the other evidence
    in determining whether Mr. Downs had the intent required for murder .

[60]

The
    trial judges review of the evidence and guidance as to how the jury should
    carry out their analysis of the issues was proper and would not, as the
    appellant suggests, have confused the jury. So long as the evidence is put to
    the jury in a manner that will allow it to fully appreciate the issues and the
    defence presented, the charge will be adequate: C. Granger,
The Criminal
    Jury Trial in Canada
, 2nd ed. (Scarborough: Carswell, 1996), at p. 249,
    cited with approval in
R v. Daley
, 2007 SCC 53, at para. 57. In this
    case, given that intent had to be determined on the whole of the evidence,
    including evidence of mental condition but excluding the protected statements,
    it was not an error to mention both criminal responsibility and intent when
    reviewing particular portions of evidence, as suggested by the appellant. Other
    than the protected statements, the evidence on mental state was relevant to
    both issues. Further, the trial judge was careful to give the jury the defence
    counsels theory along with relevant supporting points of evidence highlighted
    in exactly the form created by defence counsel. This would have helped ensure
    that the jury understood the appellants position as well as the steps required
    to determine the two legal issues.

ii.

The limited use that could be made of protected statements

[61]

As
    set out earlier, utterances made by an accused in the course of a court-ordered
    assessment pursuant to s. 672.11 of the
Criminal Code
are
    presumptively inadmissible at an accuseds trial. The appellant consented to
    the protected statements being admitted for the limited purpose of assessing
    whether he was NCR. The appellant acknowledges that the trial judge correctly
    instructed the jury that they could not consider the protected statements to
    determine whether the appellant had the requisite intent to commit murder. The
    appellant argues, however, that the trial judge undermined this instruction by
    telling the jury that they could consider the appellants after-the-fact
    conduct and motive in deciding whether the Crown had proven
mens rea
.
    In the appellants submission, this instruction, when combined with the Crowns
    submission that the appellant was angry, unhappy at the home and was
    malingering, would have confused the jury. This, the appellant explains, is
    because the evidence of anger, unhappiness and malingering could, almost
    exclusively, be found in the protected statements.

[62]

I
    would not give effect to this ground of appeal. Contrary to the appellants submission,
    there is considerable evidence in the record beyond the protected statement
    that supports the inference that the appellant was unhappy and angry at the
    home. I also disagree with the suggestion that the Crown relied on the
    appellants malingering to show intent. The Crown did not rely on the protected
    statements but rather relied on the post-arrest statements and conduct of the
    appellant, including evidence of malingering, to support its submission that
    the appellant was aware of his actions as well as their wrongfulness, thereby
    establishing criminal responsibility. The jury was not told that it could use
    the appellants malingering, months after the offence, to demonstrate intent. To
    establish intent, the Crown relied principally on the violent nature of the
    offences as well as utterances made by the appellant that were admitted on
    consent.

[63]

There
    was no unfairness in the way the Crown sought to use the protective statements or
    in the trial judges instructions. The jury would have understood the limited
    use to which they could be put.

3)       Did
    the trial judge err by instructing the jury that they could use evidence of
    alleged malingering to infer that the appellant had the intent to kill?

[64]

The
    appellant submits that in the portion of the charge dealing with post-offence
    conduct, the trial judge effectively told the jury that the appellants post-offence
    conduct, including the allegation that he was malingering, could be considered
    in deciding whether the appellant had the necessary intent.

[65]

I
    disagree. There is no mention at all of intent in the brief post-offence conduct
    instruction. The instruction on post-offence conduct was tailored to the unique
    circumstances of this case. Some post-offence conduct, including evidence that
    the appellant was malingering, may have had relevance in deciding the
    appellants NCR defence. In pre-charge submissions, the Crown expressed
    uncertainty, however, as to whether malingering should be referred to in the
    charge as an example of post-offence conduct. The trial judge indicated she was
    grappling with the issue but had determined that it made some sense to put it
    there. Defence counsel agreed with the proposed instruction, interjecting as
    follows:

It makes absolute sense because the Crowns theory is that my
    client, as a result of the death of Mr. Kearley, malingered, so that he could
    get out of going to prison. Hes made that very clear throughout his case and
    his closing to the jury. That is post-offence conduct, so that is exactly where
    it should be, your honour.

[66]

The
    instruction was appropriate in the circumstances and would not have resulted in
    the jury improperly using the post-offence evidence of malingering to infer the
    intent for murder.

4)       Did
    the trial judge err by telling the jury that the appellants ability to recall
    the events was relevant in determining whether he was NCR at the time of the
    offences?

[67]

In
    her charge to the jury, the trial judge instructed the jury that if they
    believed the appellant when he stated that he did not remember and was not
    conscious of hitting, punching and kicking the victims, in combination with the
    other evidence they accepted, the appellant would not be capable of
    appreciating the nature and quality of his actions and they must find him NCR
    on account of mental disorder. That was clearly wrong. The Crown properly
    requested a recharge to clarify that the ability to recall the events at a
    later date was not relevant. Consciousness at the time of events was, however,
    relevant to the appellants ability to appreciate the nature and consequences
    of his actions. For that reason the trial judge recharged the jury as follows:

As an example, if you believe [the appellant], that he does not
    remember and was therefore not conscious of hitting, punching, kicking or
    stomping Mr. Kearley or Mr. De Bortoli, at the time he did those actions, as a
    result of his mental disorder, in combination with the other evidence you
    accept, he would not be capable of appreciating the nature and consequence of
    his actions, then you must find [the appellant] not criminally responsible on
    account of mental disorder, your deliberations would be over.

Defence counsel agreed that the original charge had
    been an error and did not object to the proposed re-charge.

[68]

On
    appeal, the appellant argues that, because the various statements made to the
    police and others on the day of his arrest showed that the appellant was able
    to recall the events immediately after they happened and that he was also able
    to recall the events during some of the assessments carried out in the ensuing
    months, the trial judge erred in her recharge. She should have said that the appellants
    ability to recall his actions was irrelevant in assessing the applicability of
    the NCR defence. In the appellants submission, if the jury understood that the
    inability to remember was a prerequisite to the appellant being able to avail
    himself of the defence of NCR, the recharge might have been relied on by the
    jury to reject the NCR defence.

[69]

I
    acknowledge that a better example could have been selected. However, in my view
    there is no unfairness or disadvantage to the appellant in the recharge.
    Contrary to the appellants submission, the example did provide a basis on
    which the jury could find the appellant NCR. The appellant testified that he
    was not in control of his body at the time of the offences and could not recall
    the details of the killing or anything at all about the beating of the other
    man. In common sense terms, this evidence, if accepted by the jury, could have
    been interpreted as the appellant not being conscious or remembering much of
    what he did at the time of the offence, and therefore, that the appellant lacked
    the capacity for rational choice or understanding. If so, the jury could well have
    concluded that the appellant was NCR.

CONCLUSION

[70]

This
    was not an overwhelming case for either party. Assessing mental disorder,
    capacity and intent is not a science and the lines defining them are not black
    and white. The jury was given the responsibility of sorting through conflicting
    impressions, subjective opinions and differing perspectives on what the appellant
    was thinking and why. The trial judge did an admirable job in her handling of
    the trial. The instructions she gave to the jury equipped the jurors for their
    task, and their conclusion was available on the evidence.

[71]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree J.C.
    MacPherson J.A.

I agree G. Strathy
    J.A.

Released: January 13, 2014


WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

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

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

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

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

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

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. D.G., 2014
    ONCA 75

DATE: 20140128

DOCKET: C55352

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Timothy Breen, for the appellant

Susan Magotiaux, for the respondent

Heard: January 23, 2014

On appeal from the conviction entered on January 25, 2012
    by Justice Margaret F. Woolcott of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of child pornography by
    Woolcott J. of the Ontario Court of Justice (Youth Justice Court) on January
    25, 2012.  He appeals from his conviction on a single ground.

[2]

Section 487(1) of the
Criminal Code
authorizes a justice to
    issue a search warrant on the basis of information on oath in Form 1.

[3]

Form 1 sets out the territorial jurisdiction and general structure of an
Information to obtain a search warrant
.  It concludes with this jurat:

Sworn before me this                     ....           day
    of ., A.D                  (Signature of informant)          .. at .

A Justice of the Peace
    in and for

[4]

Effective March 10, 2005, the WARRANT APPLICATION GUIDELINES ONTARIO COURT
    OF JUSTICE, KITCHENER ONLY mandated that search warrant informants should swear
    the Information to Obtain (ITO) before a Commissioner of Oaths (not a Justice
    of the Peace) and submit the ITO and draft copies of the search warrant to a
    Justice of the Peace.  Commissioners of Oaths would be made available at each
    police division, the Kitchener Court, and the office of the Crown Attorney.
    The rationale behind the guideline was to eliminate the practice of police
    officers selecting the judicial officer before whom warrant applications were
    made.  In addition, the guideline would eliminate the possibility of informants
    supplementing the ITO through oral representations before the Justice of the
    Peace.

[5]

In this case, the ITO of P.C. Feizal Rhab was commissioned by Shirley
    Atkinson, a Commissioner of Oaths for the Waterloo Regional Police Service.
    The warrant was then issued by Justice of the Peace Legate Exon.

[6]

The trial judge ruled that an Information to Obtain a search warrant may
    be sworn before a commissioner for oaths.

[7]

The appellant contends that this step in the process violates s. 487 of
    the
Criminal Code
.  This breach resulted in an unlawful search
    contrary to s. 8 of the
Charter
.  Accordingly, the appeal should be
    allowed and the appellant should be acquitted.

[8]

We do not accept this submission.  There is nothing in the wording of s.
    487(1) of the
Code
requiring that the information on oath must be
    sworn by a justice; rather s. 487(1) provides that a justice must issue the
    warrant.

[9]

The role of a justice commissioning an oath comes into play only by
    virtue of the wording of Form 1.  Section 32 of the
Interpretation Act
,
    R.S.C. 1985, c. I-21, provides that [w]here a form is prescribed, deviations
    from that form, not affecting the substance or calculated to mislead, do not
    invalidate the form used.  Section 849 of the
Criminal Code
permits
    forms in the
Criminal Code
to be varied to suit the case.  That is
    what has happened in this case.  Form 1 has been amended in the Kitchener area
    (as it has been amended in other regions in Ontario and elsewhere in Canada) to
    permit commissioners of oaths to commission ITOs.  This is entirely appropriate
    and does not alter the essential point of s. 487(1), namely, that a justice
    must consider and issue the search warrant based on sworn evidence.

[10]

On
    both of these points  the language of s. 487(1) and Form 1  we explicitly
    endorse the reasoning of the trial judge in this case.  We also agree with
    Foley J.s similar analysis in
R. v. Spencer
, 2009 SKQB 341, at paras.
    20-25.

[11]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

E.E. Gillese J.A.

C.W.
    Hourigan 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. G.B., 2014 ONCA 33

DATE: 20140115

DOCKET: C57041

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. B.

Appellant

G. B., in person

Vincenzo Rondinelli, duty counsel

Michelle Campbell, for the respondent

Heard and released orally: January 13, 2014

On appeal from the sentence imposed on March 21, 2013 by
    Justice B. Thomas of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant seeks leave to appeal her sentence of three years for
    sexual assault and for a parent procuring sexual activity contrary to ss.
    271(1) and 170 of the Code.  She submits that the sentencing judge erred in: underemphasizing
    her lack of criminal record; failing to give appropriate weight to the
    appellants issues and frailties; overemphasizing her role in the procurement
    offence and failing to consider the evidence that the activity stopped when the
    complainant objected; and failing to give proper weight to the effect that a
    lengthy period of incarceration would have on the appellants husband who is
    now deceased.

[2]

The sentencing judge considered the absence of any criminal record and
    the appellants difficult personal background.  He made no error with respect
    to her involvement in the procurement offence.  The fact that sexual activity
    ceased when a child objects is an irrelevant consideration in sentencing.  He
    also noted that her husband was ill and in declining health.

[3]

The crime involved sexual assault and procurement by a mother, a person
    in a position of trust and authority, over an extended period of time.  We see
    no error.  A sentence of three years imprisonment was fit in the circumstances.

[4]

Leave to appeal sentence is granted but the appeal is dismissed.

K. Feldman J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gour,
    2014 ONCA 51

DATE: 20140121

DOCKET: C55796

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Gour

Appellant

Sam Goldstein, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 20, 2014

On appeal from the conviction entered on June 28, 2012
    and the sentence imposed on November 2, 2012 by Justice John McIsaac of the Superior
    Court of Justice sitting without a jury.

ENDORSEMENT

[1]

The appellant ran a company that purported to raise money to support
    children with serious illnesses by using canvassers who solicited donations
    from the public, either by telephone solicitation or by way of display boxes
    set up near large stores.  The appellant instructed his employees to refer to
    themselves as volunteers, if asked, when in fact they were paid commissions of
    14 to 35 per cent.  During the seven month period this scheme operated, the
    appellant received about $288,000.  Less than three per cent of these funds
    were turned over to any charitable cause.  It follows that the appellant, who
    did not testify at his trial, retained approximately 62 to 83 per cent of
    $288,000.

[2]

The appellant was convicted of fraud over $5,000 by McIsaac J. of the
    Superior Court of Justice on June 28, 2012.  On November 2, 2012, the appellant
    received a custodial sentence of 15 months, a fine of $280,000, a restitution
    order for $500, and a victim surcharge of $37,000.

[3]

The appellant appeals his conviction and sentence.

[4]

The appellant appeals his conviction on two grounds, one factual and the
    other legal.

[5]

The appellant contends that the trial judge erred in fact in finding
    that he told his canvassers to lie to the public if asked if they were being
    paid for their work.

[6]

We do not accept this submission. The trial judges finding that the
    appellant had instructed his canvassers to mislead the public about the profits
    made from public donations was reasonably based on the testimony of several
    former employees of the appellant and the testimony of a donor who was told
    that her donation would go directly to the child that she wanted to support.

[7]

The appellant submits that the trial judge erred by concluding that the
    appellants failure to disclose a material fact  that his canvassers were not
    volunteers  was relevant in establishing the offence of fraud.

[8]

We disagree.  Based on
R. v. Theroux
, [1993] 2 S.C.R. 5 and
R.
    v. Zlatic
, [1993] 2 S.C.R. 29, which held that the words other fraudulent
    means in the offence of fraud proscribed in s. 380(1) of the
Criminal Code
allow convictions grounded in non-disclosure of important facts, we have no
    hesitation affirming the trial judges key conclusions:

1.

the failure to
    disclose the handsome commissions being paid to these apparent volunteers
    constituted the hiding of a fundamental and essential element of this
    fundraiser-contributor relationship; and

2.

this failure to
    disclose was such as to mislead the reasonable contributor.

[9]

We hasten to add that non-disclosure of
    the status (volunteer v. employee) of a canvasser will not be relevant in every
    charitable fundraising context.  That would be too sweeping a proposition.
    However, in this case there was extensive evidence that the appellant operated
    his team of canvassers in a manner calculated to mislead the public.  His
    conduct went beyond mere use of the word volunteer.  He also instructed them
    to state that all money would be disbursed to the families of the affected
    children and to deny that they were being paid, and he provided pamphlets that
    claimed that the charity had no paid staff.  In these circumstances, the
    combination of material non-disclosure and outright lying supports the trial
    judges conclusion that a reasonable contributor would have been misled.

[10]

The appellant appeals his sentence.  He
    submits that it ignores rehabilitative considerations and is, therefore, too
    harsh.

[11]

We do not accept this submission.
    Custodial sentences are the norm in cases of large-scale fraud: see
R.
    v. Dobis
(2002), 58 O.R. (3d) 536 (C.A.) and
R.
    v. Bogart
(2002), 61 O.R. (3d) 75 (C.A.).  The
    imposition of a 15-month custodial sentence was entirely appropriate against
    the backdrop of the trial judges description of this offender and this offence,
    with which we agree:

The offenders fleecing of the
    unsuspecting public was vile and despicable when one realizes that he did so
    using the incentives of unknowing sick and terminally-ill children and their
    families to line his own pockets.  I find the extent of moral blameworthiness
    of the offender to have been at the extreme level.  He has not even accounted
    for the 30 to 40 percent net proceeds that were allegedly to go to the
    beneficiaries of these so-called charities.

[12]

The conviction and sentence appeals are
    dismissed.

J.C. MacPherson J.A.

E.E. Gillese J.A.

C.W. Hourigan 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. G.P., 2014 ONCA 39

DATE: 20140117

DOCKET: C55654

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.P.

Appellant

Stephen F. Gehl, for the appellant

Mabel Lai, for the respondent

Heard: November 29, 2013

On appeal from the conviction entered on September 29,
    2011, and the sentence imposed on March 28, 2012 by Justice R.J. Haines of the Superior
    Court of Justice, sitting without a jury.

Rouleau J.A.:

[1]

This appeal was heard on November 29, 2013 and was dismissed with
    reasons to follow. These are those reasons.

OVERVIEW

[2]

The appellant was convicted of historical sexual offences  incest and
    sexual assault  against his biological daughter R.P. and son L.P. He was
    sentenced to eight years imprisonment. At trial, the sole issue was
    credibility. In thorough and detailed reasons, the trial judge explained why he
    accepted the evidence of the complainants R.P. and L.P., rejected the defence
    evidence and was not left with a reasonable doubt.

[3]

The appellant appeals both conviction and sentence. He argues that the
    trial judge gave insufficient reasons, misapprehended the evidence, rendered
    unreasonable verdicts and imposed an unfit sentence.

[4]

For the reasons that follow, the appeal is dismissed.

FACTS

[5]

In the early 1990s, when R.P. was about five or six years old, till she
    was about 12 years old, she was sexually assaulted by the appellant. The
    assaults started with hugging and kissing, progressing gradually to fellatio
    and vaginal intercourse. By the end, the sexual activity would occur about
    three times a week. The assaults ended when R.P. began to menstruate.

[6]

With respect to L.P., the sexual assaults started with the appellant
    touching L.P.s penis with his hands and mouth and L.P. performing oral sex on
    the appellant. It progressed to anal sex with L.P. penetrating the appellant
    and vice versa. By the time it came to an end, when L.P. was about 12, sexual
    activity had become pretty much a daily routine.

[7]

In 1992, the appellant pled guilty to sexual interference and invitation
    to sexual touching in relation to a young boy who lived in the neighbourhood.
    The appellant received a sentence of nine months custody followed by two years
    probation, during which time he had limited contact with R.P. and L.P. During
    the period of imprisonment and probation, no incidents of sexual assault
    involving R.P. and L.P. are reported. The evidence about the 1992 conviction
    appears to have been admitted to explain some of the incidents, especially the
    disclosure by R.P. and a possible motive to fabricate by R.P.

[8]

The appellant testified at his trial and denied any impropriety. The
    trial judge rejected the appellants evidence finding that there were
    significant inconsistencies in his evidence and that certain aspects of that
    evidence were improbable, contrived and unconvincing. The trial judge also
    rejected the other defence evidence. That evidence consisted of testimony from the
    appellants spouse, another of the appellants daughters, as well as other
    relatives and friends. The trial judge found that the evidence of the
    appellants spouse was simply not credible. As to the evidence of the other
    defence witnesses, the trial judge determined that it was either unreliable or
    provided little assistance to resolving the issues at trial.

[9]

Applying the analysis prescribed by
W.(D.)
, the trial judge
    concluded that the defence evidence when considered in the context of all the
    evidence, does not raise a reasonable doubt.

[10]

The
    trial judge then considered the Crowns evidence. The trial judge found both
    complainants to be credible, accepted their evidence and convicted the
    appellant.

ISSUES

[11]

The
    appellant argues that, although the trial judge gave extensive reasons, he did
    not resolve significant conflicts in the evidence of the complainants,
    misapprehended evidence and came to an unreasonable decision. In his
    submissions, the appellant focussed on the six problems with the complainants
    evidence. The appellant argues that these problems, either individually or in
    combination, justify quashing the convictions or, in the alternative, ordering
    a new trial. The problems raised by the appellant are as follows:

1.

R.P.s desire to
    separate the appellant from his grandchildren;

2.

R.P.s
    description of her most dominant memory of sexual abuse;

3.

R.P.s
    uncertainty about whether the appellants spouse witnessed the sexual abuse;

4.

R.P and L.Ps differing
    recollections about witnessing each others sexual abuse;

5.

The conflicting
    evidence between L.P. and the appellants spouse as to whether the appellants spouse
    witnessed the sexual abuse;

6.

R.P.s alleged
    blackmail of L.P. and L.P.s initial denial that the appellant had sexually
    abused him.

ANALYSIS

[12]

There
    were a number of inconsistencies in the testimony of both complainants. Their
    recollection of certain events varied as between them and, in some cases, was
    at variance with the evidence of their mother and other relatives and friends
    who testified for the defence. However, it is apparent from the trial judges
    reasons that the trial judge was alert to these problems in the evidence. He
    dealt with them and, in the end, found both complainants to be truthful and their
    testimony and consistent on the critical evidence establishing the offences.

[13]

The
    record discloses that the complainants had had a difficult adolescence and had
    resorted to the use of illegal drugs at various points. R.P. went through
    therapy to assist her in dealing with the issues and, as noted by the trial
    judge, has coped remarkably well. L.P., however, did not manage as well
    following the abuse.

[14]

L.P.
    initially denied to the authorities that he had suffered any abuse. Ultimately,
    however, with R.P. pressing on with the allegations, L.P. decided to come
    forward and he reported the abuse to police. L.P. explained that at first he simply
    wanted to forget and not become involved. Later however, he found the courage
    to come forward and tell the truth.

[15]

In
    a case such as this one, the trial judge is in the best position to assess the
    credibility of the complainants, the defendant and the other trial witnesses. Review
    of the trial judges credibility assessments is limited and informed by the
    special position of the trier of fact on matters of credibility:
R v. W.
    (R.)
, [1992] 2 S.C.R. 122, at para. 21
.
    His findings are entitled to deference.

[16]

The
    appeal centers almost exclusively on the complainants evidence. As I will
    explain, the trial judge addressed the concerns with that evidence raised on
    appeal and his conclusions are reasonable and supported by record.

1.       R.P.s desire to separate the appellant from his
    grandchildren

[17]

The
    appellant argues that R.Ps allegations are false and that she was motivated by
    hatred towards the appellant. The appellant submits that she lied about the
    allegations in order to punish the appellant by separating him from his
    grandchildren. The appellant argues that the trial judge did not deal with
    R.P.s motive to lie, and this puts into doubt his conclusion as to the
    credibility of R.P.

[18]

R.P.
    testified that before any complaint was made to the police, she had become
    concerned that the appellant not have contact with his grandchildren, one of
    whom was living with the appellant. R.P. therefore told the Childrens Aid
    Society (CAS) that the appellant was a convicted sex offender. When the CAS
    told R.P. that the 1992 conviction was too dated to justify the appellants
    removal from the home, the CAS went on to ask R.P. if she was aware of any
    other instances. In response, R.P. disclosed to the CAS the sexual assaults
    committed against her by the appellant. As a result, the appellant was removed
    from the home in 2010. R.P. later reported the offences to the police resulting
    in charges being laid.

[19]

I
    do not share the appellants concern. R.P.s motive was clear from the
    evidence. R.P. readily acknowledged that she wanted to keep the appellant away
    from his grandchildren. The sequence of events, however, shows that the laying
    of charges was not foremost on R.P.s mind. R.P. was reluctant to disclose the
    allegations and her explanation of why she disclosed the information to the CAS
    and later to the police is logical and consistent with the allegations being
    truthful. R.P.s concern that the children be protected from the appellant and
    that they not suffer the same abuse she had suffered is both a logical and a
    reasonable explanation for her reporting of the incidents.

[20]

Whether
    and to what extent R.P. may have been motivated by hatred or a desire to punish
    rather than a concern for the welfare of the grandchildren did not, in the
    circumstances, have to be specifically addressed by the trial judge.

2.       R.P.s description of her most dominant memory of
    sexual abuse

[21]

In
    her evidence-in-chief, R.P. described how sexual activity with the appellant
    escalated over time. For the first two years it went from hugging, kissing to
    touching his penis and fellatio. She explained that it was not until the
    appellant completed his sentence in relation to the 1992 conviction for sexual
    interference and invitation to sexual touching that the sexual activity with
    R.P. escalated into full blown intercourse.

[22]

In
    cross-examination, however, R.P. was asked about the sexual abuse and,
    specifically, the very first incident of abuse that she remembered. R.P.s
    response was I would have to go with being in the room  when it actually
    turned into the sexual intercourse . R.P. then described this incident in
    considerable detail. When the appellants counsel asked her I want to go back
    to make sure you just understood what I just asked you  Is that the very first
    event of sexual abuse you remember? R.P. responded:

This is the one that is very dominant in my memory that I would
    consider actual sexual abuse. I will take the hugging and kissing as actual
    love. You know, the way a parent is supposed to interact with your child. Its
    not like we french kissed. It was how I would think you would interact with
    your child. Like, it wasnt  so thats the most dominant memory for me, yeah.

[23]

In
    re-examination, R.P. explained as follows:

I may not have answered the question appropriately. If you want
    to know, like, the very first  he asked me what, what my memory was, so my
    memory goes to my dominant memory. Its not what led up to it. So, yes, there
    were hand-jobs before, its just not, to me  sex is a big deal. Okay, its the
    sex that matters to me. Its the sex that brings back all my flash backs.
    Thats the part that Im having a really hard time dealing with in my own life
    moving forward.

[24]

The
    trial judge reviewed this evidence and did not see that it was indicative of
    un-truthfulness. The trial judge explained that the evidence disclosed that
    R.P. had difficulty being intimate with adult partners because of the sexual
    abuse she suffered and:

[this] is the aspect of the abuse that haunts her. I do not
    find it surprising that she would focus on it as she did. I do not, therefore,
    see that this part of her evidence diminishes the veracity of the balance of
    her testimony in any view.

[25]

The
    appellant argues, as he did at trial, that this explanation is ridiculous and that
    the trial judge ought to have found that it shows R.P. to be a liar who
    concocted the allegations. In the appellants submission, the trial judge erred
    in accepting this explanation.

[26]

I
    do not consider R.P.s answer to be as problematic as suggested by the
    appellant. R.P.s answer must be viewed in context. It came towards the end of
    R.P.s cross-examination, after she had fully explained the events. It is
    apparent from the series of questions and answers that the answer from R.P. at
    issue was in response to a different question than the one she was asked. She
    was not being evasive or untruthful. Rather, she was explaining what she
    considered to be the true sexual abuse that has haunted her in ensuing years.
    The trial judge was entitled to accept her explanation and to view the exchange
    as being a little more nuanced than the appellant alleges.

3.       R.P.s
    uncertainty about whether the appellants spouse witnessed the abuse

[27]

R.Ps
    friend testified that R.P. had told her that her mother had walked in while the
    appellant was sexually assaulting R.P. In her testimony, R.P. repeated this allegation
    but added that she was uncertain and that it may have been a dream. R.P. acknowledged
    that she had not told her friend that this recollection might have been a dream
    and accepted counsels suggestion that she may have once believed it to be a
    true memory.

[28]

In
    cross-examination, R.P. explained:

I had said that I am not sure if it was a dream or reality,
    but I have a vivid memory of her walking in and walking out, but I dont know
    because my dreams are so realistic that, like, the flashbacks are so strong.

[29]

The
    trial judge found that R.P.s candid admission about the unreliability of this
    one memory did not taint the reliability of the rest of her evidence. R.P.
    clearly had concerns as to this particular memory, but was confident as to the
    seven years of sexual abuse she suffered.

[30]

The
    appellant argues that there was no basis in the evidence for the trial judges conclusion
    and that it was pure speculation and conjecture.

[31]

I
    disagree. The trial judge was in the best position to assess the reasonableness
    of R.P.s explanation. The trial judges reasons outline why he accepted R.P.s
    explanation. The appellant has not satisfied me that the trial judge erred in
    doing so.

4.       R.P.
    and L.P.s differing recollection about witnessing each others sexual abuse

[32]

R.P.
    recalled that L.P. had, on several occasions, witnessed the appellant having sexual
    contact with R.P. Those occasions had, according to R.P., been used as a model
    to teach L.P. how to perform sexual intercourse.

[33]

L.P.
    acknowledged that the appellant was always explaining sex to them but, as far
    as he could recall, he had not witnessed sexual contact between R.P. and the
    appellant.

[34]

The
    appellant argued at trial and argues again on appeal that this contradiction in
    the testimony of the complainants is glaring and sufficient to raise serious
    doubt as to the credibility of the complainants.

[35]

The
    trial judge agreed with the appellant that this represented a significant
    difference in the complainants testimony. He nonetheless accepted R.P.s
    version of events, reasoning that her memory was more detailed and reliable
    than L.P.s. To the trial judge, it was apparent that L.P. had pushed many
    painful memories associated with the abuse out of his mind. As a result, the
    trial judge did not find it surprising that L.P. did not recall witnessing the
    assaults on R.P. and did not consider that it detracted from the reliability of
    the balance of L.P.s testimony.

[36]

These
    conclusions were open to the trial judge and available on the evidence. The
    trial judges findings are owed deference and I see no basis to interfere.

5.       The
    conflict between L.P. and the appellants spouse as to whether the appellants spouse
    had witnessed the sexual abuse of L.P.

[37]

L.P.
    was firmly of the view that, on a few occasions, his mother had walked in on
    him and the appellant when the appellant was sexually abusing him. L.P.s mother
    denies ever having witnessed any such abuse.

[38]

The
    trial judge dealt with this conflict in the evidence by rejecting the evidence
    of the appellants spouse. In the appellants submission, however, there was
    insufficient justification for rejecting the evidence of the appellants spouse,
    and the trial judge ought to have rejected the evidence of L.P. instead.

[39]

Credibility
    findings are in the domain of the trial judge. The trial judge assessed the
    evidence of the appellants spouse and concluded that she was not a credible
    witness. The appellants spouse testified that, although the appellant was
    chronically unemployed and virtually always at home, he had never been left
    alone with either of the complainants for the many years that the abuse was
    alleged to have occurred. As he was entitled, the trial judge found this not to
    be credible and that it constituted a basis for rejecting the spouses evidence.
    The trial judge explained that, although she claimed not to be taking sides, it
    was apparent that she was doing her best to deflect potential responsibility
    for any of the abuse from herself. The trial judges finding of credibility is
    reasonable and I see no basis to interfere.

6.       R.P.s
    alleged blackmail of L.P. and L.P.s initial denials that the appellant had
    sexually abused him

[40]

Two
    of the defence witnesses testified that L.P. had told them that R.P. was
    blackmailing him by threatening to withhold access to his son unless he
    supported her allegations of abuse by the appellant. At the time, R.P. had applied
    to adopt L.P.s son. L.P. is also alleged to have told these two defence witnesses
    that he had never been assaulted by the appellant.

[41]

L.P.
    acknowledged that he had originally denied that any abuse had occurred but went
    on to explain why he later came forward with the truth. However, L.P. adamantly
    denied ever having been blackmailed by R.P. and denied ever having told the two
    defence witnesses of any blackmail.

[42]

The
    trial judge accepted L.P.s explanation as to why he had originally denied any
    abuse. The trial judge also considered the conflict in the evidence as to
    whether L.P. had told the witnesses about being blackmailed. He resolved the
    conflict by finding that it seems more likely that the prospect of blackmail
    was introduced into the conversation by someone else and eventually attributed
    to L.P. In any event, I accept L.P.s testimony that he never told anyone R.P.
    was blackmailing him.

[43]

The
    appellant argues that the trial judges explanations for accepting L.P.s
    testimony are without any evidentiary foundation.

[44]

In
    my view, it was open to the trial judge to accept L.P.s explanation and to
    conclude, as he did, that there had been no blackmail. The trial judge engaged
    in a reasoned analysis of L.P.s evidence on these points and found L.P. to be
    credible. Although the trial judges suggestion that the notion of L.P. being
    blackmailed may have been introduced into the conversation by someone else and
    eventually attributed to L.P. is, to an extent, speculative, it does not detract
    from his acceptance of L.P.s clear denials.

7.       Conclusion on the conviction appeal

[45]

In
    my view, therefore, the trial judge committed no error in his review of the
    evidence and of the applicable law. He made the necessary findings of fact and
    gave reasoned explanations for his findings of credibility. The appellant has
    neither shown that the trial judges findings and conclusions are in error, nor
    that the verdicts are unreasonable.

THE SENTENCE APPEAL

[46]

The
    appellant acknowledges that the sentence was within the range of sentences
    appropriate for offences such as these. The appellant was in a position of
    trust. The abuse was frequent and ongoing. Although there was no collateral
    physical violence, the appellants manipulation and ongoing abuse of the
    complainants left both complainants psychologically scarred. The appellant had previously
    served a custodial sentence on an earlier sexual assault and remained
    undeterred. As a result, I consider the trial judges determination that a
    global eight year sentence appropriate and that it reflects no error.

CONCLUSION

[47]

For
    these reasons, the appeal is dismissed and, although leave to appeal sentence
    is granted, the sentence appeal is also dismissed.

Paul Rouleau J.A.

I agree M. Rosenberg
    J.A.

I agree G. Pardu.
    J.A.

Released: January 17, 2014


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Jafarian, 2014 ONCA 9

DATE: 20140108

DOCKET: C57629

Doherty, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Masoud Jafarian

Appellant

Mark C. Halfyard, for the appellant

Stacey D. Young, for the respondent

Heard: December 20, 2013

On appeal from the sentence imposed on June 20, 2013 by
    Justice Howard I. Chisvin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pled guilty to breaches of outstanding court orders and a
    charge of criminal harassment. He has several prior convictions for breaches of
    court orders. All of the breaches arise out of court orders forbidding direct
    or indirect contact with his former wife.

[2]

We agree with the trial judge that the time had come to impose a
    denunciatory sentence. Specific deterrence had to be the primary purpose of the
    sentence.  This court has imposed mid-range reformatory sentences in similar
    cases.

[3]

However, the trial judge erred in principle in using the sentencing of
    the appellant as an opportunity to send a message that sentences for this kind
    of offences were ridiculously low because of the direction of this court. The
    trial judge is obliged to accept the direction of this court and should have
    concentrated on the specifics of the offence and the circumstances of the
    offender.

[4]

We think that the submission made by the Crown at trial accurately
    reflected the appropriate range of sentence  that is 12 to 15 months. We think
    a sentence of 15 months would be appropriate. The Crown and defence agree that
    the respondent is entitled to 30 days credit for pre-trial custody resulting in
    a sentence of 14 months.

[5]

Leave to appeal is granted, the appeal is allowed and the
    sentence is reduced accordingly.


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. J.D., 2014 ONCA 58

DATE: 20140123

DOCKET: C56628

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. D.

Appellant

Vincenzo Rondinelli, for the appellant

Suhail Akhtar, for the respondent

Heard and released orally:  January 15, 2014

On appeal from the convictions entered on October 27,
    2011 by Justice Peter J. Wright of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The Crown concedes that there were material misapprehensions of evidence
    in relation to counts 2 and 3 and that there must be a new trial on those
    counts. We agree. However, the Crown disputes that there was a misapprehension
    of evidence in relation to count 1 and that the misapprehensions of evidence in
    relation to counts 2 and 3 have no bearing on count 1.

[2]

At para. 54 of his reasons for judgment in relation to count 1, the
    trial judge said:

His concluding comments on this incident were that had he hit
    her in the fashion described he would have done far more injury to her head and
    face than that of which [J.] spoke and is demonstrated in Exhibits 1 and 2.

[3]

Although his counsel made a submission to that effect in oral argument,
    there was no evidence from the appellant to that effect. In the very next para. 55,
    the trial judge said:

In short, I conclude the defendants explanation with respect
    to what occurred in the bedroom is no explanation at all and I reject it
    preferring instead the evidence of [J.D.].

[4]

It is clear that his misapprehension of the evidence relates directly to
    his credibility finding leading to the appellants conviction.  While standing
    alone this misapprehension of evidence on count 1 may not result in a new trial,
    when taken together with the conceded misapprehension on the other two counts,
    and where credibility is the central issue on all three counts, the cumulative
    effect of the three renders the verdict unreliable on all three counts.

[5]

The appeal is allowed and there will be a new trial on all three counts.

K. Feldman J.A.

J. MacFarland J.A.

S.E. Pepall 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. J.P., 2014 ONCA 54

DATE: 20140122

DOCKET: C56826

Goudge, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

J. Di Luca, for the appellant

Tracy Kozlowski, for the respondent

Heard and released orally: January 21, 2014

On appeal from the conviction entered on October 26, 2012
    by Justice
Johanne N.
Morissette of the Superior Court
    of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises two arguments.  First, he says that the trial judge
    rendered inconsistent verdicts, particularly in convicting on three counts of
    sexual assault, but acquitting on a fourth count and then convicting on the
    charge of choking in relation to sexual assault where the complainants
    evidence of choking focused largely on the fourth count.

[2]

We do not agree.  The test for unreasonable verdicts based on
    inconsistency is a strict one, requiring that the verdicts be irreconcilable on
    any realistic view of the evidence.  That is not this case.  There was an ample
    basis in the evidence for the trial judge to find guilt on the first three
    incidents testified to by the complainant, but find that on all the evidence
    the timeline of events raised a reasonable doubt about whether the fourth
    incident occurred.

[3]

Moreover, there was enough evidence about the appellants assaultive
    behaviour over the entirety of these incidents and evidence of choking in
    relation to a fifth incident, to permit the conclusion that, apart from the
    fourth incident, at some point in this entire episode, the appellant choked the
    complainant in relation to a sexual assault.

[4]

Second, the appellant argues that the trial judge applied a stricter standard
    of scrutiny to the appellants evidence than to the evidence of the
    complainant.  As Mr. Di Luca very fairly acknowledges, this is not an easy
    argument to make successfully, and in our view cannot be done in this case.
    The trial judge gave careful scrutiny to the evidence of both the complainant
    and the appellant.  She found some inconsistencies in both.  It was up to her
    to determine their significance.  Moreover, she was entitled to determine what
    weight to give the various aspects of the evidence of each of them.  We see no
    basis to say that she erred in doing so.  She had ample basis on the record to
    make the credibility findings that she did.

[5]

The appeal from conviction must therefore be dismissed.