COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hassanzada, 2016 ONCA 284

DATE: 20160421

DOCKET: C55326

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jawad Hassanzada

Appellant

James Lockyer and Lance Beechener, for the appellant

Tracy Kozlowski, for the respondent

Heard: October 20, 2015

On appeal from the conviction entered on December 1, 2011
    by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a
    jury.

Watt J.A.:

[1]

Rajeswaran Saravanamuthu had
    a business. A recycling business. Tiga Metals. He recycled things made of
    metal. Used auto parts. Like catalytic converters.

[2]

One cold winter morning a
    man drove up to the entrance of Tiga Metals in a white van. The man entered
    Tiga Metals. Five minutes later, he drove away.

[3]

After the white van left, no
    one spoke to Rajeswaran Saravanamuthu again. Not by telephone. And not in
    person.

[4]

About five hours later, two
    other men entered Tiga Metals. They found Rajeswaran Saravanamuthu lying dead
    on the floor. In a pool of blood. Stabbed. And bludgeoned.

[5]

A jury concluded that Jawad
    Hassanzada killed Rajeswaran Saravanamuthu. The killing, the jury decided, was
    unlawful and amounted to second degree murder.

[6]

Jawad Hassanzada appeals.
    The judge, he says, made some mistakes. In the way she restricted the defence
    address but not the Crown address to the jury about the absence of forensic
    evidence linking him to the killing. And in instructing the jury about the significance
    of this absence of forensic link in deciding whether the Crown had proven his
    guilt beyond a reasonable doubt.

[7]

As I will explain, I would
    reject the claims of error advanced on behalf of Hassanzada and dismiss his
    appeal.

THE BACKGROUND FACTS

[8]

The evidence adduced at
    trial was entirely circumstantial. Jawad Hassanzada did not testify or call any
    witnesses.

[9]

The grounds of appeal
    advanced do not require an elaborate recitation of the evidence admitted at
    trial. A brief summary provides a sufficient setting within which to understand
    the grounds of appeal and permit their determination.

1.

Tiga
    Metals

[10]

The primary business of Tiga Metals involved the purchase and sale of
    used car parts, mainly catalytic converters. The business had few employees. Rajeswaran
    Saravanamuthu worked there. And so did his brother-in-law. Others had worked
    there from time to time over the several months prior to Rajeswaran
    Saravanamuthus death.

[11]

Rajeswaran Saravanamuthu dealt in cash. He kept a large amount of cash
    on hand, often in a money pouch. He also carried a wallet but did not keep much
    cash in it.

[12]

Tiga Metals was a preferred buyer of used car parts because it paid
    sellers more than many of its competitors. Regular customers would make
    appointments by calling Rajeswaran Saravanamuthu on his cellphone or on the
    landline associated with the business. Some customers would bring used parts to
    Tiga Metals several times a day.

2.

The
    Business Premises

[13]

The business premises of Tiga Metals were in a warehouse. There were
    four pedestrian entrances, one on each side of the building.

[14]

The main entrance to Tiga Metals was on the south side of the building.
    On that side were two garage doors. One opened to a ramp leading to the south
    driveway. Customers often entered through that door, which was usually open
    during business hours. The other garage door opened to a loading dock occupied
    by a large dumpster.

[15]

The east and west doors were used infrequently. And the north door used
    only rarely.

[16]

Tiga Metals had a sophisticated security system. An alarm system
    monitored the pedestrian entrances and garage doors. A CCTV camera system
    monitored all but the east entrance. The cameras were motion-activated. Inside
    the warehouse was a security camera, but it did not capture the entirety of the
    interior. No evidence described the specifications, range or sensitivity of the
    cameras.

3.

The Relationship between Rajeswaran Saravanamuthu and Jawad Hassanzada

[17]

Jawad Hassanzada was a customer of Tiga Metals, as was his brother.
    Hassanzada was known as Jayy.

[18]

For about six months prior to February 2009, Hassanzada attended
    university in Oshawa. He stopped frequenting Tiga Metals during this six month
    period, but resumed his attendance thereafter.

[19]

By all accounts, the relationship between Rajeswaran Saravanamuthu and
    Hassanzada was cordial.

4.

The
    Appointment

[20]

On March 12, 2009, Rajeswaran
    Saravanamuthu agreed to drive his sister-in-law, who was pregnant, to her
    medical appointment at a local hospital. Shortly before leaving for the
    hospital, Rajeswaran Saravanamuthu returned a telephone call to Hassanzada. He
    was overheard to say that he would be there in half an hour. He made this
    call around 9:45 a.m.

[21]

Rajeswaran Saravanamuthu dropped
    his sister-in-law and her friend off at the hospital shortly after 10:00 a.m.
    He explained to them that he was going to Tiga to take delivery of a catalytic
    converter and then to a garage to get the lock on his Jeep fixed. He told his
    passengers that he would be back to pick them up in half an hour, but asked
    them to call him if the medical appointment was delayed.

[22]

Rajeswaran Saravanamuthu called
    Hassanzadas cellphone at about 10:07 a.m. The call was transmitted by a tower
    near Tiga Metals business premises.

5.

The
    Warehouse and the White Van

[23]

Rajeswaran Saravanamuthu returned
    to Tiga Metals at 10:09 a.m. He entered through the south door, disarmed the
    alarm system, and began removing items from in front of the garage door leading
    to the loading ramp inside the warehouse. He unlocked and opened the garage
    door then headed east inside the warehouse.

[24]

Rajeswaran Saravanamuthu never
    appeared on any surveillance video after he entered the warehouse.

[25]

At about 10:14 a.m., a white van
    backed up the loading ramp to the open garage door. The back doors of the van
    remained closed. The driver of the van got out of the vehicle, closed the door
    behind him, walked up the ramp and entered the warehouse.

[26]

No one identified the driver of
    the van. There was evidence, however, on which the jury could find on the basis
    of the colour, model, external features and incidental markings, including a
    damaged right headlight, a rust pattern on the body, the absence of a window in
    the rear doors, bug deflectors on the grille, and bird droppings on the roof
    that the white van belonged to Jawad Hassanzada. Police surveillance over a
    period of days following the killing revealed that no one other than Hassanzada
    drove the van.

6.

The
    Departure of the White Van

[27]

Around 10:19 a.m., the driver of
    the white van walked out of the warehouse and down the ramp. He got into the
    van and drove away. The large garage door at the top of the ramp remained open.
    The air temperature, including wind chill, was minus 15 degrees Celsius.

7.

Efforts
    to Contact Rajeswaran Saravanamuthu

[28]

Rajeswaran Saravanamuthu made
    extensive use of his cellphone to conduct his business. However, over the
    several hours that followed the white vans departure from Tiga Metals, no one
    spoke to or was called by Rajeswaran Saravanamuthu. All efforts to contact him
    on his cellphone failed. He did not call or pick up his sister-in-law at the
    hospital as he had agreed to do earlier.

8.

The
    Visitors at Tiga Metals

[29]

From shortly after noon until
    about 3:00 p.m. on March 12, 2009, surveillance cameras showed five people
    arrive in different vehicles at Tiga Metals. All entered the business premises
    through the south door. Cameras inside the premises did not capture every move
    of these visitors but none remained for more than about ninety seconds. None of
    these men were identified.

9.

Discovery
    of the Body

[30]

Shortly before 3:00 p.m. on March
    12, 2009, two men got out of a dark-coloured van by the ramp at the south
    entrance to Tiga Metals. They walked up the ramp. Both carried a catalytic
    converter. They entered the unit, found the deceaseds body, and called 911.

10.The Scene

[31]

Police arrived within minutes of
    the 911 call. The only doors open on their arrival were the south pedestrian door
    and the garage door at the top of the ramp to the south entrance. The other
    doors were locked. The east door required a key to lock it from the outside. A
    shovel rested against the inside of that door. The area around this door was
    not covered by any surveillance camera.

[32]

The sign outside Tiga Metals
    indicated that the business was closed on March 12, 2009 and directed enquiries
    to the deceaseds cellphone. The door at the top of the landing ramp was
    usually closed in the winter, opened only when customers arrived. Despite the
    usual practice and a wind chill of minus 15 degrees Celsius, the door remained
    open after the deceased entered around 10:00 a.m.

[33]

Police located the body of the
    deceased lying in a pool of blood near the east door to Tiga Metals. His keys
    to the business were found hanging on a door to the electrical room.

11.The Cause of Death

[34]

The deceased suffered several stab
    wounds as well as blunt force injuries to his head. He had defensive wounds on
    his hands and arms. The fatal assault involved at least two weapons. One was a
    knife, the other a long and narrow blunt instrument. Neither was recovered.

[35]

The examining pathologist could
    not determine with any degree of precision when the deceased died.

12.The Forensic Evidence

[36]

Investigators catalogued more than
    100 bloodstains throughout the Tiga Metals warehouse including some on top of a
    box on a forklift about 14.5 feet away from the body of the deceased and
    another 10 feet away from the body. The bloodstain pattern did not reveal the
    relative positions of the deceased and his assailant when the fatal altercation
    occurred.

[37]

A stab wound to the deceaseds
    neck would not have produced any arterial spray of blood, only an oozing of
    blood from the wound site. The stab wound to the neck had cut a vein, not an
    artery. No evidence was adduced about the amount of blood likely to have been
    on the assailant or on any weapon used in the attack. Likewise, there was no
    evidence about the likelihood or the extent of blood being transferred from any
    weapons used in the attack to another surface.

[38]

Six days after the death of the
    deceased, police seized Hassanzadas white Chevy van. Its interior was dirty,
    greasy, and filled with garbage. Police found no weapon in the van that could
    be linked by size or shape to any used to kill the deceased. Despite protracted
    examination of the interior, investigators could not find any indication of
    blood or evidence that the interior surfaces of the vehicle had been wiped
    clean.

13.The Money Pouch and Bank Cards

[39]

Police found the deceaseds money
    pouch containing $4,500 in cash in his unlocked vehicle outside the premises of
    Tiga Metals. They also found his CIBC bank card on the floor near his body.

[40]

At about 10:21 p.m. on March 12,
    2009, someone tried twice to use the deceaseds TD bank card to withdraw money
    from his account. Both attempts were at an automated teller machine at a TD Bank
    branch at 2061 Simcoe Street North in Oshawa. Both attempts failed because the
    person involved did not enter the correct PIN. This bank is about a two-minute
    walk from a residence where Hassanzada lived while attending university in
    Oshawa. In March 2009, Hassanzada had an account at that branch.

[41]

One week earlier, someone using
    Hassanzadas debit card had made an empty envelope deposit of $1,000 into
    Hassanzadas account at the same Oshawa bank.

[42]

Between March 7 and 9, 2009,
    another empty envelope deposit, this time of $1,500, was made to Hassanzadas
    account at another TD Bank branch. This deposit was made at 45 Overlea
    Boulevard, a branch located close to Hassanzadas residence in Toronto.

[43]

The TD Bank cleared the deposits
    made in the empty envelopes on March 10, 2009.

14.The Positions of the Parties at Trial

[44]

The crucial issue at trial was the
    identity of the person who killed the deceased. To some extent, resolution of
    this issue involved determining
when
the deceased was killed. There was no dispute that the killing of the
    deceased was unlawful and amounted to second degree murder, the offence with
    which Hassanzada was charged.

[45]

It was the position of the Crown
    that the deceased was killed shortly after 10:09 a.m. by the driver of the
    white Chevy van. The Crown pointed out that no one heard from or spoke to the
    deceased after the white van left Tiga Metals. The surveillance cameras did not
    show him inside the building. He did not go outside. He did not speak to or go
    to the hospital to pick up his sister-in-law as he had agreed to do. None of
    the other persons who entered Tiga Metals prior to the discovery of the body
    were there long enough to have killed the deceased.

[46]

The Crown contended that the white
    Chevy van belonged to Hassanzada. It was the same make and model and had the
    same exterior features including damage to its exterior and bird droppings on
    its roof. Hassanzada, according to police surveillance, was its only driver. The
    white van arrived at Tiga Metals shortly after a cell phone conversation
    between the deceased and Hassanzada wherein they arranged a meeting at Tiga
    Metals even though the business was closed that day.

[47]

The Crown asserted that the person
    who killed the deceased also stole his wallet, which contained his TD bank
    card. That bank card was then used at two TD Bank branches where, earlier that
    week, Hassanzada had made empty envelope deposits.

[48]

The position of the defence was
    that Hassanzada did not kill the deceased. Somebody else did. Perhaps one of
    the persons who entered Tiga Metals between 10:00 a.m. and discovery of the
    deceaseds body. Five men entered. None were identified. Perhaps someone
    entered the warehouse undetected. Through the east door. Or a window. What
    happened inside was not fully captured on the security system.

[49]

The defence said that Hassanzadas
    guilt was not the only reasonable inference available from the circumstantial
    evidence considered as a whole. No motive was established. The suggestion that
    the killing was motivated by robbery was unsustainable. The deceaseds money
    pouch containing $4,500 was left in plain view in his unlocked vehicle. A CIBC
    bank card was left on the floor near the body.

[50]

The defence emphasized the absence
    of any forensic link between Hassanzada and the killing. No blood in his van or
    on his clothes. No weapons. No clean up. No case.

THE GROUNDS OF APPEAL

[51]

The complaints Hassanzada advanced
    on appeal focused on the absence of forensic evidence linking him to the death
    of the deceased.  More specifically, he complained that the trial judge erred
    in law:

i.

in limiting what the defence could say about the absence of forensic
    evidence and its significance to the Crowns burden to prove its case beyond a
    reasonable doubt and, as a result, emboldening the Crown to overstep the
    permissible limits in her closing address; and

ii.

in giving the jury a CSI
[1]
instruction, as the trial judge termed it, that essentially neutered the
    absence of evidence direction required under
R. v. Lifchus
, [1997] 3
    S.C.R. 320.

Ground #1: The Closing Addresses of
    Counsel

[52]

The absence of forensic evidence
    linking Hassanzada (the appellant) to the killing of the deceased was an
    important feature of the closing addresses by both counsel at trial. How
    counsel would handle this issue in their closings was the subject of
    considerable discussion. The trial judge initiated and persisted in those
    discussions, attempting to ensure that the addresses remained within what she
    considered acceptable bounds.

The Pre-Closing Discussions

[53]

Experienced defence counsel (not
    counsel on appeal) made it clear to the trial judge that the absence of
    forensic evidence linking the appellant to the scene and killing was an
    important part of the defence case. Defence counsel pointed out the violent
    nature of the killing and the involvement of two or more weapons. Yet police
    never found the murder weapons, let alone any link between those weapons and
    the appellant. The deceaseds blood was not found on the appellants clothing
    or in his van despite protracted forensic examination of the interior of the
    vehicle. The van disclosed no evidence of wiping. This absence of evidence
    could raise a reasonable doubt about the appellants guilt.

[54]

Prior to closing addresses, the
    trial judge engaged counsel in lengthy discussions about the necessity for and
    content of a CSI instruction. The discussions occurred in the courtroom and
    by email during hours when the court was not sitting. The trial judge provided
    drafts of her proposed instructions. She invited and received comments on their
    correctness and adequacy. In court. And by email.

[55]

The trial judge made it clear that
    she felt it necessary to include a CSI instruction in her charge. She noted
    that the defence always made a huge fuss about the lack of forensic evidence.
    In her view, its absence doesnt prove much.

[56]

Defence counsel agreed that the
    trial judge was required to instruct the jury that the absence of evidence,
    including the absence of forensic evidence linking the appellant to the
    killing, could raise a reasonable doubt about Hassanzadas guilt. But counsel
    objected to the proposed CSI instruction because embedded in it was an
    assumption of which there was no evidence  that the absence of forensic
    evidence linking a person to a crime scene was common and did not mean that the
    person was not there. This took away from the absence of evidence component
    of the
Lifchus

instruction on reasonable doubt and
    mischaracterized its significance in a circumstantial case.

The Closing Addresses

[57]

In the absence of any defence
    evidence, the Crown addressed the jury first.

[58]

The trial Crown sought to diminish
    the importance of the absence of any forensic link between Hassanzada and the
    killing of the deceased. She pointed out that there was no evidence that blood
    gushed or sprayed all over the murder scene, only that it oozed out of the
    deceaseds body from severance of a vein. The blood at the scene was minimal.
    Thus, the likelihood of its presence on the killers weapons and clothing and,
    as a consequence, its transfer to the van was also minimal. The trial Crown
    acknowledged that the forensic identification officer found no evidence that
    the interior of the van had been wiped. She submitted, however, that it was
    only common sense that Hassanzada had done so.

[59]

Defence counsel emphasized the
    absence of forensic evidence linking Hassanzada to the killing of the deceased.
    Police found no weapons, let alone weapons in Hassanzadas possession. They
    found no blood in the van or on anything connected to Hassanzada. Admittedly,
    there was not a lot of blood at the scene, but blood was found a considerable
    distance away from the deceaseds body making it likely that the killer or the
    weapons used would have blood on them. The van had not been wiped. A fine-tooth
    comb examination of its interior yielded nothing.

[60]

Defence counsel argued that the
    absence of forensic evidence, on its own, was sufficient to raise a reasonable
    doubt about Hassanzadas guilt and explained why, in the circumstances of this
    case, jurors should reach such a conclusion.

The Arguments on Appeal

[61]

The appellant says that the
    absence of forensic evidence created a significant conundrum for the Crown in a
    prosecution in which its case consisted entirely of circumstantial evidence.
    The closing address of the trial Crown contributed to or caused an unfair trial
    in at least three respects.

[62]

First, the trial Crown asserted as
    facts matters of which there was no evidence. Implicit in the Crowns
    submissions that there was no evidence of a large gushing or spraying of blood
    or a scene bathed in blood was the contention that a large volume of blood was
    required before transference could occur and provide a forensic link to the
    killer.

[63]

Second, the trial Crown improperly
    characterized the defence position in her closing address. She engaged in rank
    hyperbole about the scene being coated in blood. The defence position was not
    dependant on there being a high volume of blood at the scene. The defence
    position was that a miniscule amount of blood was all that was required for DNA
    analysis and yet nothing was found that linked the appellant to the scene.

[64]

Third, the trial Crown denied the
    actual evidence adduced during the Crowns case. She over-reached by saying
    that, despite the forensic evidence that there was no indication that the
    interior of the van had been wiped, common sense would suggest a clean-up. This
    was contrary to the evidence. And the trial judges admonitions left defence
    counsel without the ability to respond.

[65]

The respondent offers a
    compendious rebuttal: the closing address by the trial Crown fairly addressed
    the anticipated defence submissions that the absence of forensic evidence
    linking Hassanzada to the killing was enough to raise a reasonable doubt about
    his guilt.

[66]

The respondent says that it was
    open to the Crown at trial to argue that there was not so much blood at the
    scene that it would necessarily adhere to the weapons or project onto
    Hassanzadas clothing and thus have been transferred to the van. The
    pathologist made it clear that the outpouring of blood from the deceased was by
    oozing, not by arterial spray, thereby reducing the likelihood of its landing
    on the assailants clothing. The respondent adds that there was no evidence of
    the relative positions of the deceased and his assailant. Finally, the van was
    not searched until six days after the killing. There was sufficient time to
    remove and dispose of the clothing and weapons.

[67]

The closing of the Crown,
    anticipating what defence counsel would say about the absence of evidence,
    simply invited the jury to reach common sense conclusions about the
    significance of the absence of evidence to the satisfaction of the standard of
    proof imposed upon the Crown.

The Governing Principles

[68]

Sometimes, for example in
    prosecutions in which the case for the Crown consists entirely or substantially
    of circumstantial evidence, the absence of evidence may raise a reasonable
    doubt about the guilt of an accused or contribute to a conclusion by the trier
    of fact that the case for the Crown falls short of the standard of proof the
    law demands:
R. v. Tebo
(2003), 175 C.C.C. (3d) 116 (Ont. C.A.), at
    para. 8.

[69]

The absence of evidence may be of
    especial importance to the defence where no defence evidence is called:
R.
    v. Bero
(2000), 151 C.C.C. (3d) 545
    (Ont. C.A.), at para. 57. It follows that it is open to defence counsel to
    demonstrate inadequacies or failures in an investigation through
    cross-examination of the witnesses for the Crown and, in counsels closing
    address, to link those failures to the Crowns obligation to prove its case
    beyond a reasonable doubt:
Bero,
at para. 58.

[70]

In accordance with
Lifchus
,
    trial judges instruct juries that a reasonable doubt may arise from the
    evidence or an absence of evidence:
Lifchus,
at para. 39.

[71]

The absence of evidence, for
    example the absence of evidence of a forensic connection between an accused and
    a crime scene, may vary in importance from one case to the next. In some, a
    place of prominence. In others, a matter of no great importance:
R. v. Stark
(2000), 145 C.C.C. (3d) 129, at paras. 29-31, leave to appeal refused, [2000]
    S.C.C.A. No. 326. In other words, the importance of an absence of evidence to
    the adequacy of the Crowns proof is a variable, not a constant or a fixed
    relation.

[72]

In closing addresses, counsel,
    both prosecuting and defending, are entitled to make submissions about the
    effect of absence of evidence of a forensic connection between an accused and
    the scene of a crime. What they can say is bounded by the evidence given at
    trial and subject to the prohibition against counsel, especially Crown counsel,
    putting before the jury, as facts for their consideration, matters of which
    there is no evidence:
Pisani v. R.
, [1970] S.C.R. 738, at p. 740.

[73]

A trial judge has the authority,
    in some cases the duty, to define the extent to which counsel may discuss a
    subject in their final addresses and to balance what is said there with an
    instruction to the jury on the same subject-matter: see
R. v. Jolivet,
2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 10 and 34-35.

The Principles Applied

[74]

As I will explain, I would not
    give effect to this ground of appeal.

[75]

The evidence at trial, taken as a
    whole, tended to establish the following:

i.

the deceased was killed contemporaneously with the arrival and departure
    of the white Chevy van at the south entrance to Tiga Metals shortly after 10:00
    a.m. on March 12, 2009;

ii.

the white van was the same make, model, and colour and had the same
    external markings as the appellants van;

iii.

the appellant was the person who arranged the meeting with the deceased
    at Tiga Metals; and

iv.

the appellant was the person who tried to use the deceaseds TD bank
    card within hours of the deceaseds death at a branch where he (the appellant)
    had an account.

[76]

The trial Crowns characterization
    of the amount and distribution of the bloodstaining at the scene did not depart
    significantly from the evidence adduced. The largest pool of blood was under
    and around the deceaseds body. The pooling was caused by the oozing of blood,
    not by an arterial spray. There was no evidence about the relative positions of
    the assailant and the deceased.

[77]

The jury had available to it
    photographs and a video of the murder scene. The Crown invited them to review
    this evidence in the jury room. And to draw their own conclusions from it. The
    trial judge did likewise. These fixed records go much of the way to minimize
    the effect of any misstatement or exaggeration by counsel in their closing
    addresses. Counsel and the trial judge also made it clear that jurors were not
    bound by any references to the evidence made by counsel or by the trial judge;
    rather jurors were obliged to rely on their own recollections and assessment of
    the evidence and what it established or failed to prove.

[78]

Further, in her reference to the
    absence of forensic evidence in the appellants van, the trial Crown
    acknowledged that the forensic identification officer found no evidence that
    the interior had been wiped down. Her further suggestion inviting jurors to use
    their common sense that the killer would remove any forensic links from the van
    did not misstate evidence, invite impermissible speculation, or furnish
    information that was not before the jury.

[79]

Finally, although not fatal, trial
    counsel for the appellant offered no objection to the closing address of the
    Crown. It is a reasonable inference, in the circumstances of this case, that
    neither counsel who appeared for the appellant at trial, both experienced
    criminal lawyers, did not consider that the trial Crowns address exceeded
    permissible limits or created any unfair prejudice to the appellant.

GROUND #2: The CSI Instruction

[80]

The second ground of appeal was
    the principal focus of oral argument. The complaint extends beyond the fact and
    substance of the instruction to its impact on the addresses of counsel and the
    overall fairness of the trial.

[81]

The genesis and evolution of the
    CSI instruction are important in an assessment of its correctness and its impact
    on the overall fairness of the appellants trial.

The Issue is Raised

[82]

Prior to the close of the case of
    the Crown, the trial judge, on her own initiative, raised the issue of
    including a CSI instruction in her charge to the jury. She told counsel that
    it was not unusual now to include a
CSI
instruction.

[83]

The initial response of defence
    counsel was that CSI was beside the point. In counsels view, it was simply a
    matter of the absence of any forensic evidence linking Hassanzada to the
    killing of the deceased, a point that counsel proposed to advance in her closing
    address to the jury.

[84]

The trial judge warned counsel not
    to suggest to the jury that it was
impossible
that blood would not have been transferred from the
    scene to the van if Hassanzada had been the killer. Counsel responded that the
    defence had not yet settled on a precise word formula that would be advanced in
    the closing address.

The Formulation of the Instruction

[85]

The trial judge drafted a proposed
    CSI instruction. She sent a copy by email to counsel and invited their
    response. What followed were several revised drafts, each sent by email, and
    the responses of counsel, also communicated by the same medium. For the most
    part, the relevant emails were filed in open court in the presence of the
    appellant and became the subject of further in-court discussions in the absence
    of the jury.
Some emails filed at trial could not be retrieved and thus
    are not before us on appeal.

[86]

During the discussions about the
    instruction, by email and in the court room, the trial judge acknowledged that
    the jury could consider the absence of forensic evidence linking the appellant
    to the killing  the absence of blood in the van  in assessing whether the
    Crown had proven the appellants guilt beyond a reasonable doubt. What
    concerned the trial judge, however, and what she intended to tell the jury in
    her CSI instruction was that the absence of evidence of a forensic connection
    between the appellant and the killing was not proof that Hassanzada was not
    there.

The Closing Address of Defence Counsel

[87]

In her closing address, defence
    counsel included several references to the absence of forensic evidence linking
    the appellant to the killing. She pointed out the following:

i.

there was no evidence that any of the weapons used to kill the deceased
    were found in the appellants van;

ii.

there was no forensic evidence found in the van despite a lengthy and
    thorough examination of it by a forensic identification officer;

iii.

there was no evidence that the interior of the van had been wiped;

iv.

there was no evidence of the time of the deceaseds death and there was
    evidence that at least five others had entered the premises before anyone
    reported finding the deceased in a pool of blood on the floor; and

v.

the lack of evidence of blood, murder weapons, and any attempt to clean
    up the van, each on their own and together, raised a reasonable doubt about the
    appellants guilt.

The Charge to the Jury

[88]

In her charge to the jury, the
    trial judge instructed the jurors that they were entitled to draw reasonable
    inferences from the evidence but were not permitted to speculate. By
    commonplace example, she explained the inference-drawing process. In her
    instructions about the meaning of proof beyond a reasonable doubt, the trial
    judge told the jury that a reasonable doubt could arise from the evidence or an
    absence of evidence. She explained that proof beyond a reasonable doubt fell
    much closer to absolute certainty than to probable or likely guilt.

[89]

On at least two occasions, the
    trial judge focused the jurys attention on the application of the standard of proof
    to proof by circumstantial evidence. In her final reference to proof by
    circumstantial evidence, the trial judge said as follows:

You must consider the whole of the
    evidence in reaching your verdict. The burden is on the Crown to satisfy you
    beyond a reasonable doubt as to Mr. Hassanzadas guilt. I have instructed you
    on the particular application of that standard in a case based entirely on
    circumstantial evidence. You may draw reasonable inferences from the evidence,
    but you can only reach a verdict of guilty if you are satisfied beyond a
    reasonable doubt that guilt is the only reasonable inference based on the whole
    of the evidence. That does not mean that you must be satisfied beyond a
    reasonable doubt with respect to each and every piece of individual evidence
    you consider or the inferences to be drawn from various pieces of evidence. It
    is the evidence as a whole to which the reasonable doubt standard applies. If
    you find,
based on the whole of the evidence or the absence of evidence,
that there is another possible reasonable inference as to who killed Mr.
    Saravanamuthu, apart from Mr. Hassanzada being the killer, then you must find
    Mr. Hassanzada not guilty. [Emphasis added.]

[90]

The trial judge summarized the
    defence position repeating language of defence counsels choosing. In
    connection with the significance of the absence of forensic evidence linking
    the appellant to the killing, the trial judge said the following:

Notwithstanding the brutality of
    the murder and the fact that at least two weapons were involved, no physical or
    forensic evidence was ever found at Mr. Hassanzadas residences or in his van
    linking him to the scene of the crime. The Crown has established nothing more
    than a business connection between Mr. Hassanzada and Mr. Saravanamuthu. Mr.
    Hassanzada is entitled to an acquittal.

[91]

The trial judge included her CSI
    instruction in a portion of her charge entitled Forensic Evidence. She said
    as follows:

I am sure you will have realized
    from your experience over the past few weeks that real-life trials are not what
    you have seen in dramatized television shows. The same is true of forensic
    evidence, which is not anything close to as definitive or exotic as what you
    often see on TV shows such as
CSI
. Often forensic examination of an
    item will not reveal anything of relevance. A classic example is that a handgun
    may have no usable fingerprints on it, even though it was handled by a person
    not wearing gloves. It is certainly not the case that every time somebody
    enters a room or touches an item, he or she will leave behind a fingerprint, or
    DNA, or some other kind of trace evidence. In such cases, the absence of
    evidence is not proof of the opposite proposition:
i.e.
it is not
    proof that the person did not enter the room or did not handle the gun; it is
    merely an absence of proof that he did.

As I have already instructed you,
a
    reasonable doubt may arise from the evidence,
or
the absence of
    evidence,
but must not be based on speculation or conjecture. The forensic
    examination of Mr. Hassanzadas van did not disclose any evidence of blood or
    other DNA from Mr. Saravanamuthu. There is therefore an absence of any forensic
    evidence connecting Mr. Saravanamuthu to the van.
You are entitled to take
    into account the absence of such evidence in deciding whether, on the whole of
    the evidence, you have a reasonable doubt as to Mr. Hassanzadas guilt.
The killer may or may not have entered the van or placed items in the van
    without leaving trace evidence behind. That is for you to determine. The
    absence of such forensic evidence is merely one factor to be taken into
    account, along with all of the other evidence, in determining your verdict. [Emphasis
    added.]

The Arguments on Appeal

[92]

The appellant acknowledges that
    the weight to be assigned to the absence of evidence, which he characterizes as
    an item of circumstantial evidence, varies with and depends upon the facts or
    context of each case. But the absence of evidence is always a factor for the
    trier of fact to consider and a warning not to give it its due weight, as was provided
    here, is entirely inappropriate.

[93]

The appellant finds fault with the
    substance of the instruction in several respects.

[94]

The instruction failed to remind
    the jury that the absence of a forensic connection between the appellant and
    deceased is itself an item of circumstantial evidence, one that supported a
    reasonable doubt about the appellants guilt. It was a violent murder,
    involving more than one weapon. Yet nothing was recovered. No weapon. No blood
    on the appellant. None on anything associated with him. And evidence that no
    wiping of the interior of the van had occurred.

[95]

In this case, the appellant
    argues, the absence of evidence of a forensic connection goes even further:
    rather than amounting to simply an absence of proof, it is an item of evidence
    that establishes the contrary  that the person charged did not kill the
    deceased.

[96]

In addition, the appellant says,
    the instruction is unsupportable on the evidence adduced at trial. There was no
    evidence one way or the other about the likelihood of blood transfer to the
    assailant or to any vehicle used by the assailant to flee the scene. A forensic
    identification officer testified that her examination of the van revealed that
    it had not been recently cleaned. There was no evidence to explain how or
    whether it could have been cleaned without detection.

[97]

The appellant contends that the
    trial judges underlying concern, even if appropriate in some cases, was
    misplaced here. The instruction was premised on a distrust of the jurys
    intelligence, a distrust that has been repeatedly gainsaid.

[98]

According to the appellant, the
    errors in giving the CSI instruction and in the substance of what was said
    were aggravated by the restrictions placed on defence counsel in her closing
    address and the failure of the trial judge to correct the improprieties in
    Crown counsels closing address. The result was an unfair trial.

[99]

The respondent also begins her
    submissions with an acknowledgment that the absence of evidence, including the
    absence of evidence of a forensic connection between a crime and an accused,
    may raise a reasonable doubt about an accuseds guilt. In cases like this, in
    which jurors have heard no evidence as to the probative value of to be
    attributed to the absence of a forensic connection, the significance of it
    should properly be left to their determination.

[100]

The respondent says that what animated
    the trial judges concerns about the closing address of defence counsel and the
    need for a CSI instruction was justifiable disquiet about the absence of
    evidence being converted to positive evidence or proof of the contrary. This
    was a valid concern because past judicial experience indicates that the jury
    might expect forensic evidence to be left behind and, thus, could conclude that
    the absence of evidence here definitively ruled out the appellants guilt. The
    trial judges instruction successfully guarded against this flawed reasoning.

[101]

The respondent says that the CSI
    instruction did not cause or contribute to an unfair trial or a miscarriage of
    justice. A trial judge has a wide discretion about what to say and how to say
    it in her charge to the jury. In her jury instructions, the trial judge
    repeatedly told the jury that the absence of evidence could raise a reasonable
    doubt about the adequacy of the Crowns proof. But it was equally important
    that the jurors understood the limits of the absence of evidence. The charge
    made it clear that the absence of evidence was a factor to consider but did not
    amount to positive evidence that the appellant was not the killer.

[102]

In the end, the respondent
    maintains, nothing said or left unsaid in the charge about the significance of
    the absence of evidence to the jurys decision caused the appellant any
    substantial wrong or resulted in a miscarriage of justice. The evidence that
    the deceased was killed by the man in the white van, who was the appellant, was
    overwhelming. Any imperfections in the final instructions worked no great
    mischief in the ultimate result.

The Governing Principles

[103]

The principles that control our
    decision on this ground of appeal are many and varied. Some are of general
    importance, as for example those that define the scope of appellate review of
    jury charges. Others are more limited in their focus, exerting their influence
    on specific features of final instructions such as evidence of opportunity.

[104]

First, appellate courts are to
    take a functional approach in their assessment of the adequacy of jury
    instructions. We consider the charge as a whole, attentive to the context in
    which it is given, including the positions of counsel at trial:
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523,
    at para. 28; and
R. v. Luciano
,
    2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 69 and 71.

[105]

We ask whether the jury charge
    properly equipped the jurors to decide the case assigned to them, not whether
    it conformed to or departed from some prefabricated idyllic formula or
    structure:
Daley
,

at para. 30;
Luciano,

at para. 69;
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para.
    32; and
R. v. MacKinnon

(1999), 43 O.R. (3d) 378 (C.A.), at para. 27. Among
    other things, the charge must leave a jury with an understanding of how the
    evidence admitted at trial relates to the issues that are left to the jury for
    their decision.

[106]

Second, in
Lifchus
, the Supreme Court of Canada made it clear, at para.
    39, that an instruction on reasonable doubt should point out that a reasonable
    doubt is a doubt that is
[l]ogically derived from the evidence or
absence
    of evidence

(emphasis added).
The
    instruction also makes it clear that a reasonable doubt cannot be founded on
    speculation:
Lifchus
, at para.
    39. The instruction is not a magic incantation that requires verbatim
    repetition; rather, it is a suggested formula that would not be faulted if
    used:
Lifchus
, at para. 40.

[107]

Third, the absence of evidence of
    a forensic link or connection between an accused and an offence (or crime scene)
    will vary in its significance from one case to the next. Its impact is a
    variable, not a constant. Sometimes, of critical importance. Other times, not
    so much:
Stark
, at paras. 29-31.

[108]

No exhaustive list of factors will
    or can pre-determine the degree of significance an absence of evidence of a
    forensic connection will have in a given case. Relevant considerations might
    include the nature of the absent evidence, the time elapsed between the offence
    and the scientific analysis, and the balance of the evidence adduced at trial.

[109]

Fourth, the authorities have drawn
    a distinction between absence of evidence of proof of motive, on the one hand,
    and evidence of a proven absence of motive, on the other:
Lewis v.
    The Queen
, [1979] 2 S.C.R. 821, at p. 835. Absence
    of proven motive does not constitute evidence of proven absence of motive, an
    important fact in favor of an accused:
Lewis
, at p. 835.

[110]

A final point concerns what the
    trial judge characterized as a CSI instruction. Neither the industry of
    counsel nor my own canvass of compilations of pattern instructions, domestic
    and foreign, has uncovered any equivalent, near equivalent, or similar
    instruction.

The Principles Applied

[111]

I would not give effect to this
    ground of appeal. I have reached this conclusion notwithstanding that I
    consider the instruction given unwarranted by the evidence adduced at trial,
    unsupported by authority, and a superfluous reminder for a 21
st
century Canadian jury.

[112]

A logical point of departure for
    the discussion is the instruction itself. Reduced to its essentials, it is
    this:

I am sure you will have realized
    from your experience over the past few weeks that real-life trials are not what
    you have seen in dramatized television shows. The same is true of forensic
    evidence, which is not anything close to as definitive or exotic as what you
    often see on TV shows such as
CSI
. Often forensic examination of an
    item will not reveal anything of relevance. A classic example is that a handgun
    may have no usable fingerprints on it, even though it was handled by a person
    not wearing gloves. It is certainly not the case that every time somebody
    enters a room or touches an item, he or she will leave behind a fingerprint, or
    DNA, or some other kind of trace evidence. In such cases, the absence of
    evidence is not proof of the opposite proposition:
i.e.
it is not
    proof that the person did not enter the room or did not handle the gun; it is
    merely an absence of proof that he did.

[113]

The contents of the instruction
    may be reduced to the following:

i.

real-life trials are not like television shows;

ii.

forensic evidence in real-life trials is not like forensic evidence in
    television shows;

iii.

often, forensic examination of a crime scene will not reveal anything of
    relevance, for example, fingerprints on a handgun;

iv.

there is no inviolable rule that every time somebody enters a room or
    touches an item, a fingerprint, DNA, or other trace evidence will be left
    behind; and

v.

absence of evidence is not proof of the opposite, that is, that the
    person did not enter the room or touch the item.

[114]

The first two propositions are
    self-evident and work no mischief. The third, as a general statement, is
    equally unassailable although unsupported by any evidence adduced at trial
    (assuming such evidence could be obtained and would be admissible).

[115]

The fourth proposition suffers
    again from a lack of evidentiary support at trial but can scarcely be gainsaid.
    And the final proposition finds some support as a matter of logic.

[116]

Any assessment of an allegation of
    error in instructions to a jury must consider not only what is impugned as
    error but the charge as a whole.

[117]

First, in an early part of the
    charge, the trial judge reminded jurors that they were to decide the case based
    on the evidence adduced at trial. They were to ignore outside information. Evidence
    was defined. Testimony. Exhibits. Admissions. Nothing else. And some things
    were not evidence. Like what counsel and the judge said in the court room.
    There could be no misunderstanding about the evidentiary value of television
    shows.

[118]

Second, the charge on reasonable
    doubt was compliant with
Lifchus
and included an express instruction that a reasonable doubt may arise from the
    evidence adduced at trial or an absence of evidence. The trial judge also
    included an express instruction about the link between the absence of forensic
    evidence and reasonable doubt in the paragraph immediately following the
    impugned passage. She instructed the jury:

As I have already instructed you,
a
    reasonable doubt may arise from the evidence, or the absence of evidence,
but must not be based on speculation or conjecture. The forensic examination of
    Mr. Hassanzadas van did not disclose any evidence of blood or other DNA from
    Mr. Saravanamuthu. There is therefore an absence of any forensic evidence
    connecting Mr. Saravanamuthu to the van.
You are entitled to take into
    account the absence of such evidence in deciding whether, on the whole of the
    evidence, you have a reasonable doubt as to Mr. Hassanzadas guilt.
The
    killer may or may not have entered the van or placed items in the van without
    leaving trace evidence behind. That is for you to determine. The absence of
    such forensic evidence is merely one factor to be taken into account, along
    with all of the other evidence, in determining your verdict. [Emphasis added.]

[119]

In addition to the
Lifchus
-compliant instructions on reasonable doubt, the trial
    judge repeatedly used
Hodges
-equivalent
    language at various points in her charge. What follows is typical:

You must consider the whole of the
    evidence in reaching your verdict. The burden is on the Crown to satisfy you
    beyond a reasonable doubt as to Mr. Hassanzadas guilt. I have instructed you
    on the particular application of that standard in a case based entirely on
    circumstantial evidence. You may draw reasonable inferences from the evidence,
    but you can
only reach a verdict of guilty if you are satisfied beyond a
    reasonable doubt that guilt is the only reasonable inference based on the whole
    of the evidence.
That does not mean that you must be satisfied beyond a
    reasonable doubt with respect to each and every piece of individual evidence
    you consider or the inferences to be drawn from various pieces of evidence. It
    is the evidence as a whole to which the reasonable doubt standard applies.
If
    you find, based on the whole of the evidence or the absence of evidence, that
    there is another possible reasonable inference
as to who killed Mr.
    Saravanamuthu, apart from Mr. Hassanzada being the killer, then you must find
    Mr. Hassanzada not guilty. [Emphasis added.]

[120]

The absence of evidence is a
    variable in its significance to the burden of proof settled on the Crown and
    the satisfaction of that standard of proof. In this case, forensic examination
    of the van occurred six days after the deceased was killed. In these
    circumstances, the fact that the van did not furnish any evidence connecting
    the appellant to the killing or where it occurred is of reduced significance
    than would be the case where the search was more contemporaneous with the
    killing.

[121]

The complaint that the trial judge
    failed to expressly instruct the jury that an absence of evidence is itself an
    item of circumstantial evidence caused no prejudice. It may well be true, as a
    matter of logic, that one can characterize an absence of evidence as an item of
    circumstantial evidence. But it seems unlikely that such a characterization
    would improve a jurys understanding that an absence of evidence may raise a
    reasonable doubt about an accuseds guilt. Nothing said in
Lifchus
or in any authorities relied upon by the appellant
    supports the necessity for or advisability of such an instruction. Indeed, as
    it seems to me, such an unnecessary, if accurate, refinement would risk
    confusion more than education.

[122]

Further, I am not persuaded that
    the trial judge erred in directing defence counsel that she was not to submit
    that the absence of a forensic connection between the appellant and the killing
    made it impossible that he was the killer.
Just as having no proof of an
    accuseds motive is not the same as proving that the accused has no motive, having
    no evidence of a forensic connection between an accused and a deceased is not
    proof that such a connection is impossible.

[123]

To permit defence counsel to argue
    to the jury that the absence of evidence of a forensic connection made it
impossible
for the appellant to have been the deceaseds killer
    would have been unwarranted in this case without evidence of the following:

i.

the relative positions of the deceased and his assailant;

ii.

the amount and distribution of blood at the scene; and

iii.

the likelihood of blood adhering to and being transferred from the
    murder weapons.

[124]

The sole issue at trial was the
    identity of the deceaseds killer. The evidence adduced linked the appellant to
    the meeting at Tiga Metals and to the white van that arrived shortly after the
    deceased opened the premises. The deceased was never seen or heard from again
    after the van left. He never appeared on the surveillance video and failed to pick
    up his sister-in-law at the hospital as planned. The deceaseds bank card was
    used at a bank branch where the appellant had an account later that same day.

[125]

In the result, I am satisfied that
    even if it could be said that a portion of the impugned instruction, considered
    in isolation, was in error, the result would necessarily have been the same
    when the charge is considered as a whole and the evidence assessed objectively.

[126]

Before concluding, something should
    be said about one feature of the procedure followed in settling on the
    inclusion and content of the CSI instruction. That aspect involves the
    several email exchanges between the trial judge and counsel in which the trial
    judge provided draft instructions and counsel responded with comments about the
    contents of those drafts.
[2]

[127]

Section 650(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46,

requires that, apart from some
    exceptions that have no place here, an accused must be present in court during
    the whole of his or her trial.

[128]

To determine
    whether something that happened during the course of a trial is part of the
    trial for the purposes of s. 650(1), we ask whether what occurred involved or
    affected the vital interests of the accused or whether any decision made bore
    on the substantive conduct of the trial:
R. v. Hertrich, Stewart and
    Skinner
(1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 529;
Vézina and
    Côté v. The Queen
, [1986] 1 S.C.R. 2, at pp.10-11;
R. v. Barrow
,
    [1987] 2 S.C.R. 694, at pp. 707-8.

[129]

Pre-charge conferences authorized by s. 650.1 of the
Criminal
    Code
are held to discuss the matters
    that should be explained to the jury and with respect to the choice of
    instructions to the jury. That the content of final instructions affects the
    vital interests of an accused is self-evident. As a result, s. 650(1) of the
Criminal
    Code
requires that the accused be
    present in court during these discussions.

[130]

Electronic communication
    of proposed draft jury instructions to counsel is one thing. Without more, this
    method of communication would not seem to offend s. 650(1) any more than
    leaving a hard copy of the proposed instructions for counsel to pick up from a
    court office would do so. But inviting and receiving submissions from counsel
    by email or other electronic means about the necessity for or content of jury
    instructions are as incompatible with the command of s. 650(1) as are
    in-chambers discussions on the same subject.

[131]

Discussions about the matters that should be
    explained to the jury and with respect to the choice of instructions to the
    jury affect the vital interests of an accused. Section 650(1) of the
Criminal
    Code
tells us
where

they are to take place: in court.
    Section 650(1) also tells us

who

is to be there: an accusedshall be
    present. In court. On the record. In the presence of the accused.

CONCLUSION

[132]

I would dismiss the appeal.

Released: April 21, 2016 (GH)

David
    Watt J.A.

I
    agree C.W. Hourigan J.A.

I
    agree Grant Huscroft J.A.

[1]
CSI, an acronym for Crime Scene Investigation, is a media franchise of
    American television programs. The CSI effect refers to any of several ways in
    which the exaggerated portrayal of forensic evidence on these shows is thought
    by some to influence public, perhaps jurors perception.

[2]
The appellant did not advance this as a ground of appeal. Neither counsel made
    submissions on the issue in oral argument.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hicks, 2016 ONCA 291

DATE: 20160421

DOCKET: M45895 (C59588)

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

BETWEEN

Her Majesty the Queen ex rel. The Corporation of
    the City of London

Respondent

and

Ryan Hicks

Appellant

Jennifer L. Hunter, for the appellant

Kelly Nenniger, for the respondent

Heard: April 19, 2016

Motion for directions.

ENDORSEMENT

[1]

The appellant unfortunately died after leave to appeal
    was granted. Counsel moves for an order substituting a personal representative
    or other person as appellant. The municipal prosecutor seeks to abate the
    appeal, submitting that the court has no jurisdiction to continue a proceeding
    that has been rendered moot.

[2]

The jurisdiction to continue an appeal in a criminal
    matter, after the death of the appellant, should be exercised sparingly and
    only where it is in the interests of justice do so:
R. v. Smith
2004 SCC 14 at para. 20. That observation has even greater force in
    a prosecution under the
Provincial Offences Act
, R.S.O. 1990, c. P.33.

[3]

Assuming, without deciding, that we have jurisdiction,
    we decline to exercise it, for three reasons. First, the appeal concerns a
    traffic ticket carrying a fine of $95. The appeal has no practical consequences
    for the estate of the deceased. Second, the issue is not evasive of judicial
    review, given the vast number of traffic tickets issued annually in the
    province. Third, and most important, this appeal involves the interpretation of
    a form prescribed by regulation. A decision in this matter would have
    province-wide implications for the validity of convictions under Part I of the
POA
. Without a better factual record it would not be in the interests
    of justice to hear the appeal.

[4]

The appeal is therefore abated and the judgment below is
    stayed.

[5]

We express the courts appreciation for the assistance
    of
counsel for the appellant,
who was initially retained as
amicus

on the leave motion.

G.R. Strathy C.J.O.

E.E.
    Gillese J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horgan, 2016 ONCA 255

DATE: 20160407

DOCKET: C61747

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Horgan

Appellant

Patrick Horgan, in person

Apple Newton-Smith, duty counsel

Brock Jones, for the respondent

Heard and released orally: April 4, 2016

On appeal from the sentence imposed on December 21, 2015
    by Justice J. Maresca of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his effective sentence of 16 months, following a
    plea of guilty to a number of driving offences and possession of stolen
    property.  The Crown asked for 5 months, in addition to 7 months pretrial
    custody.  The trial judge imposed a further 9 months so that the appellant
    could attend the Ontario Correctional Institute (OCI), where a minimum of 9
    months is required for admission. The appellant then was rejected from OCI.

[2]

In our view, despite the appellants lengthy and serious record, he
    showed genuine remorse before the trial judge and in this court, and is sincere
    in his desire to straighten out.  In our view, in light of the fact that the
    trial judge imposed a sentence 4 months higher than the Crown requested in order
    to help the appellant get treatment at OCI, which never materialized, we allow
    the appeal, set aside the sentence and impose a sentence of 5 months, in
    addition to the 7 months of pretrial custody.

K. Feldman J.A.

J.M. Simmons J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapple, 2016 ONCA 289

DATE: 20160420

DOCKET: C58641

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Lapple

Appellant

Dirk Derstine and Janani Shanmuganathan, for the
    appellant

Melissa Insanic and Nick Devlin, for the respondent

Heard and orally released:  April 11, 2016

On appeal from the conviction entered by Justice Bruce Durno
    of the Superior Court of Justice, dated February 20, 2013.

ENDORSEMENT

[1]

The appellant was convicted of conspiracy to import cocaine, importing
    cocaine and possession of cocaine for the purpose of trafficking.  His factual
    guilt was not in dispute.  He was party to the importation into Canada of 43
    kilograms of 90 per cent pure cocaine from Peru.  At trial, the appellant
    brought three pre-trial motions.  He argued that:

·

the search of the container by the customs officials contravened his
    rights under s. 8 of the
Charter
;

·

the judicial authorization to intercept his telephone calls
    should not have been granted, rendering interceptions made pursuant to that
    authorization a violation of s. 8; and

·

the search warrants should not have been granted, rendering the
    searches of the appellants premises and his car conducted under the authority
    of those warrants a violation of his s. 8 rights.

[2]

The appellant argued that cumulatively those violations justified the
    exclusion of the incriminating evidence at trial.

[3]

All three arguments were rejected by the application judge and all three
    arguments are renewed on appeal.  We, too, reject those arguments.

I

the search of the container by the customs officials

[4]

The application judges reasons are reported at 2011 ONSC 6549.  We need
    not repeat the facts set out in those reasons.

[5]

Sections 99(1)(a) and (e) of the
Customs Act
, R.S.C. 1985, c. 1
    (2nd Supp.) read:

99. (1) An officer may

(a) at any time up to the time of release, examine any goods
    that have been imported and open or cause to be opened any package or container
    of imported goods and take samples of imported goods in reasonable amounts; or

(e) where the officer suspects on reasonable grounds that this
    Act or the regulations or any other Act of Parliament administered or enforced
    by him or any regulations thereunder have been or might be contravened in
    respect of any goods, examine the goods and open or cause to be opened any package
    or container thereof.

[6]

Section 99(1)(a) of the
Act
authorizes the examination of goods,
    and the opening of packages and containers containing goods by customs
    officials prior to the release of those goods.

[7]

In oral argument, counsel submitted that the reach of s. 99(1)(a) ended
    when the actions of the customs officers interfered with the integrity of the
    container or its contents.  He submitted that interference with the integrity
    of the package occurred when the customs officers drilled a small hole into the
    wooden bottom of one of the crates inside the container and struck cocaine.

[8]

We reject this submission.  Nothing in the language of s. 99(1)(a) of
    the
Act
supports the distinction counsel urges.  Furthermore, that
    distinction is untenable in light of the clear language of s. 99(1)(a) which
    permits the opening of crates and containers containing goods and the examination
    of those goods, including the taking of samples of the goods.  Clearly, the
    authorized conduct involves interference with the integrity of not only the
    container, but the contents of the container.

[9]

The actions of the customs officers taken before the goods were released
    by customs were justified under s. 99(1)(a) of the
Act
.  The
    constitutionality of the section is not challenged.

[10]

These
    reasons are, of course, restricted to the facts of this case, particularly the
    nature of the container examined and the commercial context in which it came
    under the control of Canada Customs.

[11]

We
    need not address s. 99(1)(e).  However, for the sake of completeness, we add
    that on the totality of the circumstances known to the customs officials, there
    were ample grounds to support the reasonable grounds to suspect criterion set
    out in s. 99(1)(e).  This ground of appeal fails.

II

the wiretap authorization

[12]

The
    application judges reasons are reported at 2011 ONSC 7302.

[13]

The
    appellant submits that the investigative necessity requirement in s. 186(1)(b)
    was not met in the affidavit filed in support of the application for the
    authorization.

[14]

The
    authorizing judge was satisfied that the requirement was met.  The application
    judge was engaged in a limited review of the authorizing judges decision.  He
    had to be satisfied that the authorization could have been granted on the
    material contained in the affidavit.

[15]

The
    application judge was aware that para. 22 of the affidavit contained a factual
    error.  He was also satisfied that the affidavit nonetheless supported a
    finding of investigative necessity.  The key passage from his reasons is at
    para. 19 of those reasons:

I am satisfied that on the facts of this case and the history
    described by Officer Johnson, it would be reasonable to expect that others
    would be involved.  It is unlikely that Mr. Lapple (even along with his wife)
    was acting on his own to import 43 kgs of cocaine from Peru, secrete it in
    wooden packaging, and then distribute it to end users in Brampton.  Officer
    Johnson had the experience to say that the warrants would assist to help
    police identify, arrest and prosecute the individuals involved in organizing,
    shipping and distributing this drug shipment.  It was open to the authorizing
    judge to rely on that information and to find investigative necessity.

[16]

We
    see no error in the application judges analysis.  On that analysis, the authorization
    stands and the interceptions were lawful.

III

the search warrants

[17]

The application judges reasons rejecting the s. 8 claim as it related
    to the search warrants are found at 2011 ONSC 6550.

[18]

The appellant submits that the Justice of the Peace went beyond
    identifying errors in the officers affidavit in support of his application for
    the search warrants and effectively instructed the officer as to the changes he
    should make in the affidavit so that it would justify the issuing of the search
    warrants.  Counsel submits that the conduct of the Justice of the Peace created
    an appearance of bias in favour of the Crown.

[19]

Counsel places heavy reliance on
R. v. Gray
(1993), 81 C.C.C.
    (3d) 114 (Man. C.A.).  In her submissions, counsel urged the court to draw a
    line between comments by a Justice of the Peace that identify problems with an
    affidavit filed in support of search warrant application and comments by a
    Justice of the Peace that suggest or provide solutions to the problems
    identified by the Justice of the Peace.  She argues that the former are proper
    while the latter are improper and demonstrates bias.

[20]

In our view, the distinction urged by counsel, while possibly helpful in
    assessing a bias claim in some situations, cannot be the ultimate test.  As
    with other bias claims, the outcome should turn on whether a reasonable
    observer, fully informed of all of the relevant facts, would view the conduct
    of the Justice of the Peace as giving rise to a reasonable apprehension of bias:
    see
R. v. Clark
,
2015
    BCCA 488, 330 C.C.C. (3d) 448, leave to appeal granted, [2016] S.C.C.A. No. 32.
    That test was no doubt met on the facts in
R. v. Gray
, a very
    different case than this one.  That test is not met on the facts of this case.
    The search warrants stand and the searches were lawful.

[21]

The
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

Bradley W. Miller
    J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

(2) Subsection (1) does
    not apply

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.O.,
    2016 ONCA 236

DATE: 20160401

DOCKET: C60559

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.O.

Appellant

Catriona Verner, for the appellant

Joanne Stuart, for the respondent

Heard:  March 15, 2016

On appeal from the convictions entered by Justice
    Parayeski of the Superior Court of Justice on August 21, 2012, sitting with a
    jury, and the sentence imposed on December 4, 2014.

Doherty J.A.:

[1]

The appellant was charged with four break-ins and various other offences.
    He elected trial by judge and jury.  The jury convicted the appellant of three of
    the break-ins and several of the related charges.

[2]

The trial judge sentenced the appellant to 5 years in the penitentiary,
    having given the appellant credit on a 1:1 basis for 970 days of presentence
    incarceration.  The trial judge also made a long-term supervision order for a
    period of 10 years.

[3]

The Crowns case against the appellant was based on the following:

·

Mr.  Patrick Tessaro, the first victim, arrived home during the
    break-in.  There were two intruders, one younger than the other.  The older
    intruder attacked Mr. Tessaro with a knife and a physical altercation ensued.  Both
    burglars eventually fled the scene.  Mr. Tessaro identified the appellant as
    the person who attacked him with the knife.  He picked the appellant out of a
    photo lineup. The jury convicted the appellant of this break-in and of assault
    with a weapon.

·

The appellants 16-year old son, D., testified for the Crown.  He
    testified that he committed three of the break-ins with his father.  The jury
    convicted the appellant on those three break-ins.

·

The appellants wallet containing his birth certificate and other
    papers was found in a red vehicle used by the burglars.  The vehicle belonged
    to the appellants mother.

·

The appellant was in possession of some of the property stolen in
    one of the break-ins shortly after the break-in.  The appellant was acquitted
    of this break-in, but convicted of possession of property stolen in the
    break-in.

·

Chanelle Baird, the victim in the last break-in, overheard the
    younger burglar refer to the older burglar as dad.

[4]

The appellant did not testify.

[5]

The appellant appeals conviction and sentence.

Conviction Appeal

[6]

Counsel for the appellant alleges several errors in the trial judges
    instruction to the jury.  She also contends that one comment made by Crown
    counsel in her closing was prejudicial and resulted in an unfair trial.

[7]

The court required submissions from the respondent on two of the issues
    raised by the appellant.  These reasons will address only those two grounds of
    appeal.

The Instruction on Eyewitness Identification

[8]

The trial judge told the jury that it should be very cautious in
    relying on eyewitness testimony.  He explained that honest and convincing
    witnesses could be mistaken in their identification.  The trial judge referred
    to several factors the jury should consider when examining the eyewitness
    evidence.  He then summarized the eyewitness evidence of Mr. Tessaro, the
    victim of the first break and enter, who had struggled with the burglar and
    later identified the appellant as the burglar in a photo lineup.  The summary
    included references to details in Mr. Tessaros description of the burglar that
    did not match the appellant, and aspects of the manner in which the photo line-up
    was conducted that arguably diminished the probative value of Mr. Tessaros
    identification of the appellant.

[9]

The appellant submits that although the trial judge initially properly
    cautioned the jury that witnesses who were convinced in their identification
    could well be mistaken, he effectively nullified that instruction when he told
    the jury that Mr. Tessaro was clear and had not waivered in his
    identification of the appellant.  Counsel submits that the net effect of the
    instruction was to make Mr. Tessaros level of certainty a positive feature of
    his identification evidence, thereby nullifying the earlier caution.

[10]

I
    do not agree with counsels submissions.  The references to the witnesss
    certainty were made in the course of the trial judges summary of his
    evidence.  Those references would not be understood by the jury as a
    qualification of the trial judges earlier instructions that eyewitness
    evidence should be approached cautiously and could be wrong even when the
    witness was certain.  In fact, as Crown counsel argued, the references to Mr.
    Tessaros certainty may well have reminded the jury that the trial judges
    instructions as to the cautious approach to eyewitness evidence applied to the
    testimony of Mr. Tessaro.

[11]

Counsel
    also submits that the trial judge wrongly told the jury that witnesses other
    than Mr. Tessaro had identified the appellant in connection with the other
    break and enters.  She submits that while these witnesses did offer some
    description of the older burglar, none identified the appellant as the burglar
    either before trial or in their testimony.  Counsel further contends that the
    manner in which two of these witnesses, both of whom were police officers,
    framed their testimony, combined with the trial judges description of these
    witnesses as having given eyewitness testimony, may well have led the jury to think
    that the witnesses had identified the appellant as the burglar.

[12]

It
    is common ground that none of these witnesses identified the appellant as the
    burglar either prior to or at trial.  There is merit to counsels submission
    that the instructions of the trial judge implied that these witnesses had
    identified the appellant.  However, in the end, the trial judge accurately
    summarized the evidence of these witnesses.  I am confident that the jury looked
    to the content of the witnesses evidence and not to the label placed on the
    witnesses by the trial judge.  Their evidence was straightforward and easily
    understood by the jury.  Its very limited value insofar as the identification
    of the appellant was concerned could not have been lost on the jury.

The
Vetrovec
Instruction

[13]

The
    trial judge gave a
Vetrovec
instruction in respect of the evidence of
    D.  In explaining to the jury that it was dangerous to rely on the unconfirmed
    evidence of D., the trial judge said:

You have heard that he has given differing versions of the events,
    has at least discussed changing his evidence from the truth, and, of course, has
    pled guilty to two of the break and enter offences

[14]

Counsel
    argues that the trial judge failed to identify two additional significant
    reasons for approaching D.s evidence with extreme caution:

·

D. lied in his preliminary inquiry evidence; and

·

D. gave a statement to the police implicating the appellant to
    secure his own release on bail.

[15]

In
    my view, the trial judges reference to the appellant having given differing
    versions of the events was a reference to his different testimony at the
    preliminary inquiry.  The trial judge specifically instructed the jury on the
    significance to D.s credibility of his having given different evidence at the
    preliminary inquiry immediately before the
Vetrovec
instruction.  No
    doubt the jury understood the trial judges reference to differing versions of
    events to be a reference to the preliminary inquiry testimony.

[16]

With
    respect to the argument that the jury should have been specifically told that D.s
    desire to be released on bail provided a discrete basis to approach his
    evidence with caution, I do not read the evidence as establishing that D. gave a
    statement to the police to secure his release.  He was cross-examined on this issue
    and did not admit any connection between the statement and his release on
    bail.  At most, there was an argument that he gave the statement to secure his
    release.  An adequate
Vetrovec
instruction did not require that the
    trial judge identify this as a distinct reason for treating D.s evidence with
    caution.  The
Vetrovec
instruction as given made the need to approach
    D.s evidence with caution crystal clear and offered three valid reasons for
    doing so.  The instruction was adequate.

[17]

The
    conviction appeal is dismissed.

The Sentence Appeal

[18]

After
    the jury convicted on several counts, the Crown brought a dangerous offender
    application under Part XXIV of the
Criminal Code
.  Although the trial
    judge was satisfied that the appellant was a career criminal, he was not
    satisfied that he should declare the appellant a dangerous offender.  Instead,
    acting under s. 753.1, the trial judge declared the appellant a long-term
    offender.  Section 753.1 requires that the sentencing judge impose a jail term
    of at least two years to be followed by a long-term supervision order that does
    not exceed 10 years.  Section 753.2 provides that a long-term supervision order
    becomes effective when the offender has finished serving the sentence imposed
    for the offence.  The trial judge imposed the maximum 10-year supervision
    order.  That part of the sentence is not challenged.

[19]

The
    trial judge also imposed a five-year penitentiary term, which combined with the
    970 days of presentence custody credited on a 1:1 basis, yielded an effective
    sentence of seven years and eight months.   The trial judge declined to give enhanced
    credit for any part of the appellants presentence custody because the
    appellant had never applied for bail.  The trial judge further indicated that
    even if he had given the appellant enhanced credit for presentence custody, a
    sentence of five years in addition to any time credited for presentence custody
    was still reasonable.

[20]

The
    appellant raises a single issue on his sentence appeal.  He submits that the trial
    judge should have given him credit for presentence incarceration on a 1.5:1
    basis.  The appellant argues that had he been given proper credit for the
    presentence custody, he would have been entitled to an additional 16 months
    credit, resulting in a sentence of three years and eight months, rather than
    five years.

[21]

The
    Crown concedes that on the law as it presently stands, the trial judge erred in
    declining to give the appellant enhanced credit for presentence custody because
    he had not applied for bail:  see
R. v. Safarzadeh-Markhali
, 2014 ONCA 627
, 122 O.R. (3d) 97; leave
    to appeal granted, [2014] S.C.C.A. No. 489, appeal heard and reserved November
    4, 2015.  Crown counsel goes on, however, to submit that at the time the
    appellant was sentenced, there was a strong likelihood that he would not be
    released on any form of statutory release, but would serve his full sentence in
    custody until warrant expiry.  Counsel submits that the likelihood that the
    appellant would serve his full sentence justifies crediting the appellant for
    presentence incarceration on a 1:1 basis.

[22]

In
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, the court, in
    interpreting ss. 719(3) and (3.1) of the
Criminal Code
, observed that
    persons held in presentence custody who are subsequently convicted are
    generally entitled to credit on sentence for presentence custody at the rate of
    1.5:1.  The enhanced credit is justified primarily because there is no
    opportunity to gain credits towards early release or parole while in presentence
    custody.  Enhanced credit can also sometimes be justified by virtue of the
    harshness of the conditions under which the presentence incarceration is
    served:
Summers
, at paras. 70-71.

[23]

As
Summers
, at para. 79,
makes clear, however, enhanced credit on the basis that presentence custody
    does not count for the purposes of parole eligibility and early release is not
    automatic:

The onus is on the offender to demonstrate that he should be
    awarded enhanced credit as a result of his pre-sentence detention.
Generally speaking, the fact that pre-sentence detention has
    occurred will usually be sufficient to give rise to an inference that the
    offender has lost eligibility for parole or early release, justifying enhanced
    credit.  Of course, the Crown may respond by challenging such an inference.
There will be particularly dangerous offenders who have committed certain
    serious offences for which early release and parole are simply not available.  Similarly,
    if the accuseds conduct in jail suggests that he is unlikely to be granted
    early release or parole, the judge may be justified in withholding enhanced
    credit.  Extensive evidence will rarely be necessary.  A practical approach is
    required that does not complicate or prolong the sentencing process.  [Emphasis
    added.]

[24]

The
    appellant, because of some of the offences for which he was convicted, is
    subject to ss. 129(3) and 130 of the
Corrections and Conditional Release
    Act
, S.C. 1992, c. 20.  Under s. 130(3)(a), the Parole Board may require a
    prisoner to serve his or her entire sentence in custody if the Board is
    satisfied:

that the offender is likely, if released, to commit an offence
    causing the death of or serious harm to another person  before the expiration
    of the offenders sentence

[25]

The
    appellant is 42 years old.  His criminal record extends back almost 30 years.
    The record, which includes about sixty convictions, begins when the appellant
    was 13 and continues uninterrupted until the present.  The vast majority of his
    offences are property-related, including many break and enters.  Prior to 2003,
    there were a few offences involving violence, including two prior convictions
    for assault with a weapon and a conviction for attempted robbery.

[26]

The
    appellant was arrested in June 2003 on several charges and held in custody.  In
    2006, he was convicted on two robbery counts, one involving the use of a
    firearm, two break and enter charges, and a charge of possession of a firearm.
    He received a total sentence of six years.

[27]

The
    appellant served two-thirds of the six-year sentence.  He was released on his
    statutory release date in late March 2010.  The appellant enlisted the aid of
    his then 14-year old son and quickly began committing the break-ins which were
    the subject of this trial.  The first break-in occurred about five weeks after
    the appellants release.  The appellants offences stopped only when he was
    caught.

[28]

The
    appellant has been in custody for virtually the entire period between June 2003
    and the present, save for a period of less than two months in April and May
    2010.  During that brief taste of freedom, the appellant went on a crime spree,
    committing many offences, including the assault on Mr. Tessaro with a knife and
    the attempt to escape from the police.

[29]

Dr.
    Julian Gojer, who examined the appellant for the defence in response to the
    Crowns dangerous offender application, opined:

Clinically, his long history of offending, short stay in the
    community on parole and reoffending, support a conclusion that he is a high
    risk to reoffend in a similar manner.  His targets are likely to be random
    individuals who may be present at the time of a break-in.  The harm to the
    individuals is likely to be secondary to a property crime and only if he is
    thwarted.  His violence in the past had the potential to be serious as he has
    used weapons.

[30]

In
R. v. Slack
, 2015 ONCA 94, 125 O.R. (3d) 60, this court considered the
    Crowns submission that presentence credit should be given on a 1:1 basis
    because the accuseds conduct made it unlikely that he would receive parole or
    any other form of early release.  The court stressed that the focus must be on
    the language of ss. 129 and 130 of the
Corrections and Conditional Release
    Act
which sets out the relatively narrow circumstances in which an
    offender can be required to serve his or her entire sentence in custody.  As Cronk
    J.A. observed, it is not enough to show that the appellant has been far from a
    model prisoner while incarcerated.  Section 130(3)(a) requires a determination
    of whether it is likely that the offender, if released before the expiry of the
    warrant, will commit an offence involving serious harm to another before the
    expiry of the warrant.

[31]

The
    appellants lifelong, continuous and, more recently, increasingly violent
    criminal conduct, his virtually immediate return to a life of serious,
    dangerous criminal activity when released in March 2010, and the psychiatric
    opinion of both the Crown and defence psychiatrists, compel the conclusion that
    the appellant is likely to commit further serious offences shortly after his
    release.  Consequently, he is unlikely to be granted any form of release before
    his warrant expiry date.  I am satisfied that there is no realistic chance that
    the appellant would be released before his warrant expiry date.  Enhanced
    credit for presentence custody could not be justified on the basis of a lost
    opportunity to gain credits toward some form of early release.

[32]

I
    would note that the 10-year supervision order imposed by the trial judge has no
    impact on the determination of whether the appellant should be given enhanced
    credit for presentence custody.  A long-term supervision order does not start
    until the offenders sentence is completed.  Even if the offender is released
    from custody, his sentence continues until warrant expiry.  On that date, the
    long-term supervision order takes effect:
Corrections and Conditional
    Release Act
,

s. 128(1);
R. v. Burton
, 2013 ONSC 2626, at
    para. 14.

[33]

Although
    the trial judge erred in declining to give enhanced credit because the
    appellant had not applied for bail, enhanced credit was not warranted for the
    reasons set out above.  The trial judge did not err in giving the appellant
    credit for presentence custody on a 1:1 basis.

[34]

The
    sentence appeal is dismissed.

Released:  DD  APR 01 2016

Doherty J.A.

I agree Janet Simmons
    J.A.

I agree K.M.  van
    Rensburg J.A.