CITATION:
R. v. Armstrong, 2011
          ONCA 709

DATE: 20111115

DOCKET: C52558

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacquelynn Armstrong

Appellant

Joseph Di Luca and Kevin Tilley, for the appellant

Emile A. Carrington, for the respondent

Heard:
September 7, 2011

On appeal from the conviction entered by Justice Anne Mullins
          of the Superior Court of Justice, sitting with a jury, on July 10, 2010.

Watt J.A.:

[1]

A jury convicted Jacquelynn Armstrong of dangerous driving and flight
    from a pursuing police officer. She appeals her convictions on grounds of
    misdirection about the essential elements of each offence and inadequate answers
    to questions from the jury both during the trial and during their deliberations.
    She also contends that the jurys verdict of guilty of the lesser and included
    offence of dangerous driving was unreasonable because it was inconsistent with
    the jurys verdict of not guilty of the offence charged, dangerous driving causing
    bodily harm.

[2]

The jury heard two widely divergent versions of events that occurred
    after a uniformed police officer pulled the appellant over for speeding. The
    verdict of the jury is indicative of their acceptance of the core (but not all)
    of the officers evidence and their rejection of the appellants account.

[3]

The trial was brief, the evidence uncomplicated. The appellants
    position at trial was that after the traffic stop, the complainant police
    officer bid her adieu. She claimed that she had no reason to evade the police
    and didnt know she was being pursued until immediately prior to her voluntary
    stop and apprehension.  According to the appellant, the events alleged by the
    officer, being struck or dragged along by the appellants vehicle as the appellant
    began to drive away without warning, never occurred.

[4]

The trial judge prepared draft final instructions and invited counsel to
    make submissions about their content. Counsel did so. The trial judges final
    instructions were the product of these discussions and elicited no objections
    from either counsel. At the suggestion of counsel, the trial judge also
    provided the jurors with decision trees for their use during deliberations.
    Once again, counsel agreed on their content.

The Jury Instruction Grounds

[5]

The appellant contends that the trial judges
    final instructions contained two errors:

i.

the instructions on the flight offence confused
    reasonable excuse with the essential elements of the offence, and thus
    reversed the onus of proof; and

ii.

the instructions failed to adequately
    distinguish between the conduct requirement and the fault element of the
    offence of dangerous driving causing bodily harm.

[6]

I do not agree.

The Flight Offence and the
    Instructions about reasonable excuse

[7]

To determine the validity of the appellants
    complaint about the instructions on reasonable excuse in connection with the
    flight offence, it is helpful to begin with a summary of the appellants
    version of the events that underpin the allegation and a reminder about the
    nature of an excuse in criminal law.

[8]

The appellant testified that she was unaware
    that she was being pursued by the police. She saw no emergency lights and heard
    no sirens, thus she neither evaded nor intended to evade a peace officer. Put
    in another way, the appellant denied both the conduct requirement and fault
    element of the offence in s. 249.1(1) of the
Criminal Code
.

[9]

A claim of reasonable excuse by a person
    charged with a flight offence is not a denial of the essential elements of that
    offence. A reasonable excuse refers to something outside the essential
    elements of an offence. An excuse speaks to whether an accused should be held
    accountable for what otherwise would be a crime:
R. v. Taraschuk
, [1977]
    1 S.C.R. 385, at p. 388; and
R. v. Moser
(1992), 7 O.R. (3d) 737 (C.A.),
per
Doherty J.A., concurring in the result, at pp. 748-749.

[10]

In her final instructions, the trial judge
    separated out the essential elements of the flight offence, converted each into
    a question and advised jurors of the consequences of an affirmative or negative
    response to each question. The questions were repeated in the same words and
    sequence in the decision tree that the jurors had with them in their jury room
    during their deliberations.

[11]

In combination, the instructions and decision
    tree made it clear that it was for the Crown to prove beyond a reasonable doubt
    that the appellant
knew
she was being pursued by the police and
intended
to evade the officer who was pursuing her. The jurors were instructed that if
    the appellant had a reasonable excuse for the manner in which she operated her
    motor vehicle, she was to be found not guilty because she had committed no
    offence. The trial judge described the excuse advanced as a lack of awareness
    of the police pursuit.

[12]

The combination of the final instructions and
    decision tree made it clear that a reasonable doubt about the appellants
    awareness of the police pursuit or her intention to evade police required a
    finding of not guilty. By their verdict, the jurors were satisfied beyond a
    reasonable doubt that the appellant was aware of the police pursuit and drove
    as she did with the intention of evading her pursuer.

[13]

The appellants position at trial amounted to a
    denial of two essential elements of the offence: awareness of the police
    pursuit and an intention to evade it. Neither could amount to a reasonable
    excuse in law. The jury rejected her denials when they found the essential
    elements of the flight offence had been proven beyond a reasonable doubt.

[14]

The trial judge reviewed her proposed instructions
    with counsel before she charged the jury. Not only did counsel for the
    appellant at trial not object to the instructions on the flight offence, she
    expressly asked for the instruction about which complaint is now made.

[15]

This ground of appeal fails.

Dangerous Driving and
    Instructions about the Fault Element

[16]

The essence of the appellants complaint about
    the instructions on the offence of dangerous driving is that those instructions
    conflated the
actus reus
of the offence with the requisite
mens rea
,
    and thus left it open to the jury to convict the appellant on the basis of her
    conduct alone without any determination of whether the required fault element
    had been established.

[17]

I would not give effect to this ground of
    appeal.

[18]

Once again, a return to the evidence adduced at
    trial is important.

[19]

The appellants testimony about her first
    dealings with the police officer who stopped her for speeding was that the
    events described by the officer never occurred.  According to the appellant,
    the officer simply warned her (the appellant) about speeding and returned to
    her police car.  The appellant never refused the officers request for her
    ownership and insurance information, or her drivers licence and did not drive
    away with the officer hanging on and reaching into the van.  As a result, the
    principal issues for the jury to determine were whether the
actus reus
of
    the offence of dangerous driving had been proven and whether the appellants
    operation of her motor vehicle caused the officer bodily harm.

[20]

The ground of appeal advanced here was never
    raised at trial and is fundamentally at odds with the appellants testimony
    about the circumstances of the offence. Trial counsel made no objection to the
    proposed jury instructions about the elements of the offence before the
    instructions were given, or after they were delivered.

[21]

The trial judges final instructions tracked
    Final 249-B of the
Ontario Specimen Jury Instructions (Criminal)
. Those
    instructions are based on the principles elucidated in
R. v. Hundal
,
    [1993] 1 S.C.R. 867. The appellant says that those principles, at least so far
    as the fault element is concerned, have been modified if not overtaken by
R.
    v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49.

[22]

In
Beatty
, Charron J. described the test
    for
mens rea
in these terms in paragraph 43:

(b)       The
Mens Rea

The trier of fact must also be
    satisfied beyond a reasonable doubt that the accuseds objectively dangerous
    conduct was accompanied by the required
mens rea
.  In making the
    objective assessment, the trier of fact should be satisfied on the basis of all
    the evidence, including evidence about the accuseds actual state of mind, if
    any, that the conduct amounted to a marked departure from the standard of care
    that a reasonable person would observe in the accuseds circumstances.
    Moreover, if an explanation is offered by the accused, then in order to
    convict, the trier of fact must be satisfied that a reasonable person in
    similar circumstances ought to have been aware of the risk and of the danger
    involved in the conduct manifested by the accused.

[23]

She added in para. 49:

If the conduct does not constitute
    a marked departure from the standard expected of a reasonably prudent driver,
    there is no need to pursue the analysis. The offence will not have been made
    out. If, on the other hand, the trier of fact is convinced beyond a reasonable
    doubt that the objectively dangerous conduct constitutes a marked departure
    from the norm, the trier of fact must consider evidence about the actual state
    of mind of the accused, if any, to determine whether it raises a reasonable
    doubt about whether a reasonable person in the accuseds position would have
    been aware of the risk created by this conduct. If there is no such evidence,
    the court may convict the accused.

[24]

In this case, the appellant does not complain
    about the adequacy of the charge on the
actus reus
or external circumstances

of the offence. On the basis of that instruction, the jury found that the
    appellants operation of her motor vehicle, when initially involved with the
    officer, constituted a marked departure from the standard expected of a
    reasonably prudent driver. The record is bereft of any evidence about the
    appellants then state of mind. Absent such evidence, and in accordance with
Beatty
,
    I see no reason why the failure to provide any further direction constitutes
    error.

[25]

This ground of appeal fails.

The Unreasonable or
    Inconsistent Verdict Ground

[26]

The appellant argues that the jurys verdict,
    which found the appellant guilty of dangerous driving
simpliciter
, is
    unreasonable because it is inconsistent with their finding that the appellant
    was not guilty of dangerous driving causing bodily harm.

[27]

Again, I do not agree.

[28]

The onus of establishing that a jury verdict is
    unreasonable because it is inconsistent with another verdict of the same jury
    is difficult to discharge. After all, the jury, the sole judges of the facts,
    has a very wide latitude in its assessment of evidence:
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. The onus is the same whether the
    alleged inconsistency arises from verdicts rendered on separate counts in a
    multi-count indictment or from verdicts on individual counts that give rise to
    included offences.

[29]

In this case, the principal offence, dangerous driving
    causing bodily harm, required proof of the lesser offence of dangerous driving
simpliciter
and two further elements:

i.

causation; and

ii.

bodily harm.

By their verdict, the jury was
    satisfied that the prosecutor had proven the essential elements of dangerous driving
simpliciter
. The jury had a reasonable doubt, however, about one of the
    additional requirements of causation and bodily harm.

[30]

The chief source of the evidence about causation
    and bodily harm was the complainant police officer. She testified that she
    suffered muscle bruising and a tear in one of the tendons in her shoulder. She
    paid little attention to her injury as events unfolded, but later went to
    hospital and followed a course of rehabilitative therapy. She was off work for
    three months.  This was the second time she had injured or had suffered an
    injury to the same arm or shoulder.

[31]

It was common ground at trial that the jury
    should be instructed about the included offence of dangerous driving
simpliciter
in the event that they had a reasonable doubt that it was the appellants
    operation of her motor vehicle that
caused
any injury to the officer (as
    opposed to the officers own conduct), or that the injury amounted to bodily
    harm as defined in s. 2 of the
Criminal Code
.

[32]

The verdicts of the jury on the dangerous
    operation causing bodily harm count, finding the appellant not guilty as
    charged but guilty of dangerous driving
simpliciter
, are not
    irreconcilable. They are not verdicts such that no reasonable jury, properly
    instructed, could possibly have rendered on the evidence introduced at trial:
Pittiman
,
    at para. 10.

[33]

In this case, the jury could have concluded that
    the appellant drove dangerously because she drove away with the police officer
    in very close proximity to the van, but that it was the officers own conduct
    in hanging on to the van that caused her injuries. Alternatively, the jury may
    have concluded that the officer had a pre-existing condition and that her
    encounter with the appellant did not amount to bodily harm. Either finding
    was available to the jury on the evidence.

[34]

I would reject this ground of appeal.

The Jury Questions

[35]

The appellant also takes issue with the trial
    judges response to two questions asked by the jury. The first question was
    asked before the evidence had been completed and the second emerged during the
    jurys deliberations.

The Mid-Trial Question

[36]

At the end of the first day of trial, after all
    prosecution witnesses had testified, the trial judge received a written
    question from a juror:

Can the accused be guilty of evading and innocent of police assault?

[37]

Before the jury returned to the courtroom the
    following morning, the trial judge took up their question with counsel. The
    lawyers agreed that the trial judge should simply tell the jurors that they
    should focus their attention on the evidence rather than upon questions of law
    about which they would receive complete instructions later. The trial judge
    answered the question in accordance with the submissions of counsel.

[38]

The appellant says that the mid-trial question
    reflected a clear misunderstanding of the nature of the proceedings: the
    indictment contained no count of assaulting a police officer.

[39]

In my view, the appellant makes too much of this
    mid-trial question.

[40]

The question was asked at the end of the first
    day of trial. We cannot assume that it reflected any unanimity of thought among
    the jurors or anything beyond a query by an individual juror. It occurred at
    the end of a day in which at least one witness indicated that the appellant had
    been arrested on a charge of assault police. The answer provided was
    satisfactory to trial counsel and responsive to the jurors question. Nothing
    more was said about any allegation of assault for the remainder of the trial.

[41]

This ground of appeal lacks substance.

The In-deliberation Question

[42]

About two hours after the jurors had begun their
    deliberations, they asked this question:

Can we get a legal definition of
    dangerous operation of a motor vehicle? A sane and prudent behaviour can be
    dangerous, is there a definition of dangerous that gives us a sense of what
    behaviour this applies to.  A sane and prudent person might not do it, but does
    it require someone be injured? Does someone have to know what they are doing is
    dangerous?

[43]

The trial judge answered the question in the
    manner in which trial counsel agreed that it should be answered and provided
    the jurors with an amended decision tree on the dangerous driving count.

[44]

The complaint here is that the trial judge
    should have first clarified the question posed by the jury before attempting to
    respond to it.

[45]

It was open to the trial judge to invite the
    jury foreperson to clarify the question asked during deliberations. Curiously,
    counsel conducting the trial did not invite the trial judge to do so and
    expressed their satisfaction with the judges proposed response.  Nothing the
    trial judge said was unresponsive to the jurys question, legally wrong or
    foreclosed the jury from asking further questions if unsatisfied with the
    judges answer.

[46]

I would not give effect to this ground of
    appeal.

Conclusion

[47]

For these reasons, I would dismiss the appeal.

RELEASED:  November 15, 2011 KMW

David
    Watt J.A.

I
    agree K.M. Weiler J.A.

I
    agree E.A. Cronk J.A.


CITATION:
R. v. Bodenstein, 2011 ONCA 737

DATE: 20111124

DOCKET: C53989

COURT OF APPEAL FOR ONTARIO

Feldman, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Bodenstein

Appellant

Vincenzo Rondinelli, duty counsel, for the appellant

Croft Michaelson, for the respondent

Heard and released orally:
November 15, 2011

On appeal from the conviction
          entered by Justice I.V.B. Nordheimer of the Superior Court of Justice on July
          13, 2010.

ENDORSEMENT

[1]

The appellant appeals his conviction for trafficking in cocaine in
    association with a criminal organization.  He argues that the transaction in
    question was a one-time occurrence and that it had nothing to do with his and
    the other participants membership in the Hells Angels.

[2]

The trial judge addressed this issue thoroughly in his reasons.  The
    following facts were factors that led the trial judge to conclude that the
    transaction was in association with the Hells Angels:

1.
           The appellant and the police agent were both full patch members of the
    Hells Angels;

2.
           They met on a social cruise function held by the Hells Angels;

3.
           The police agent obtained the appellants pager number through the
    Toronto Clubhouse; and

4.
          The wiretaps indicated that there were to be further transactions.

[3]

The trial judges legal reasoning on this issue was
    subsequently referred to with approval by this court in
R. v. Drecic
,
    2011 ONCA 118, at para. 3.
This ground of appeal fails.

[4]

The appellant also submits that the trial judge erred in
    admitting the expert testimony of Sergeant Davis regarding the Hells Angels.
    Again, we do not agree.

[5]

It is clear from the trial judges reasons that he did not
    make improper use of the experts opinion.  In particular, he stated at p. 1637
    of the Reasons in the Appeal Book:

The defence takes issue with Detective Sergeant Davis as an
    expert and with his opinion.  On the first point, I note that there was no
    direct attack against Detective Sergeant Davis qualifications.  In any event,
    having reviewed his curriculum vitae, I am satisfied that he is properly
    qualified as an expert in the activities, organization and objectives of
    motorcycle gangs in general and the Hells Angels in particular.  On the second
    point, I am satisfied that Detective Sergeant Davis opinion meets all of the
    requirements set out in
R.
    v. Mohan
, [1994] 2 S.C.R. 9.  In particular, his opinion is relevant
    and it is necessary to assist me as the trier of fact in determining the issue
    to which his opinion is directed.

[6]

Even if Sergeant Davis opinion should not have included his conclusion
    on the ultimate issue of criminal organization, there is no harm in this case
    because the trial judge found that the totality of the evidence heard
    overwhelmingly demonstrated that the Hells Angels motorcycle club is a criminal
    organization.

[7]

The appellant also submits that he was acting only as an agent of the
    police agent.  This argument, however, is belied by the plea of guilty to
    trafficking in cocaine.

[8]

Although there was no sentence appeal, the appellant submits that he
    should have been given more credit for pre-trial custody.  This issue was fully
    canvassed and considered by the trial judge and there is no basis to interfere
    with his decision on the issue.

[9]

In the result, the appeal is dismissed.

Signed:           K. Feldman J.A.

Janet
    Simmons J.A.

David Watt
    J.A.


WARNING

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

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (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.

CITATION:
R. v. D.A.M., 2011 ONCA 717

DATE: 20111115

DOCKET: C51274

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. A. M.

Appellant

Christopher D. Hicks and Theodore Sarantis, for the appellant

Frank Au, for the respondent

Heard and released orally:
November 3, 2011

On appeal from the sentence imposed
          on July 15, 2009 by Justice David M. Stone of the Ontario Court of Justice,
          with reasons reported at 2009 ONCJ 362 (CanLII).

ENDORSEMENT

[1]

After approximately a 15-day hearing before the sentencing judge, the
    appellant was declared to be a dangerous offender and sentenced to an
    indeterminate sentence in the penitentiary.  He appeals from the sentence
    imposed.

[2]

In his factum, the appellant attacked his designation as a dangerous
    offender on multiple fronts, arguing that he should have been found to be a
    long-term offender.  However, during oral argument, his challenge to the
    sentence imposed focussed primarily on two alleged errors by the sentencing
    judge:

1)

misapprehension
    of the evidence regarding the appellants willingness to take Lupron, an
    anti-androgen drug, as a treatment modality for helping to control the risk to
    the public to be posed by the appellant on release to the community; and

2)

the
    impermissible admission of expert reply psychiatric evidence tendered by the
    Crown and the improper use of this evidence by the sentencing judge.

[3]

In our view, these grounds of appeal cannot succeed.

[4]

The sentencing judge concluded that, given the appellants admitted
    lengthy pattern of deceitfulness and manipulation of his victims, caregivers
    and parole supervisors, there was serious reason to doubt whether he would take
    Lupron as a condition of his eventual release into the community.  This finding
    was open to the sentencing judge on the evidence.

[5]

In particular, the record amply supports the sentencing judges finding
    that, When his parole ran out, so did his use of Lupron, and no reasonable
    effort was made by him in the next several years to do anything with Lupron but
    enhance his image with his supervisors.  Similarly, there is an evidentiary
    foundation for the sentencing judges finding that the appellant falsely
    claimed to be pursuing Lupron treatment.

[6]

In its case-in-chief, the Crown led opinion evidence from a forensic
    psychiatrist and a psychologist, both of whom offered opinions as to the
    possible containment of the appellants risk of sexually re-offending in the
    community.  In their view, the appellant was at very high risk for sexually
    violent recidivism, on both clinical and actuarial testing measures.  Dr.
    Woodside, for example, described the appellant as posing roughly triple the
    degree of risk posed by the average sex offender.

[7]

The defence expert agreed with this high risk assessment but expressed a
    more optimistic view of the chances of managing the appellants risk in the
    community at tolerable levels by the employment of a multi-faceted treatment
    and supervision plan, including the on-going administration of Lupron
    injections.

[8]

The sentencing judge considered all the expert evidence and, as he was
    entitled to do, rejected the defence experts opinion on the prospects of
    managing the appellants risk in the community.  He concluded, for example,
    that this experts view of the appellants potential reconditioning and
    possible discontinued use of Lupron was unrealistic.  This conclusion is
    reasonably supported by this record.

[9]

Taken as a whole, the appellants complaints regarding his designation
    as a dangerous offender are focused on the sentencing judges assessment of the
    evidence and related factual findings, both of which are squarely within the
    sentencing judges domain and attract considerable deference from this court.
    In effect, the appellant seeks to have this court revisit the sentencing
    judges key factual findings, although they are grounded in the evidence.  That
    is not the function of this court.

[10]

The other main ground of appeal concerns the admission of expert
    psychiatric reply evidence regarding the significance (or lack thereof) of
    phallometric testing of the appellant.  The appellant argues that this evidence
    was inadmissible and that the sentencing judge improperly relied on it in
    concluding that there was no reasonable possibility of eventual control of the
    appellants risk in the community.

[11]

We disagree.  The impugned evidence and a will-say statement of the
    reply experts proposed testimony were admitted on consent.  In these
    circumstances, there can be no sustainable objection to the admission of the
    evidence.  Nor do we accept that the sentencing judge misused this evidence.

[12]

Accordingly, the appeal from sentence is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


CITATION: R. v. Deleon, 2011 ONCA 752

DATE: 20111130

DOCKET: C50346, C50350 and C50360

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Epstein JJ.A.

C50346

BETWEEN

Her Majesty the Queen

Respondent

and

Zacky Deleon

Appellant

C50350

AND BETWEEN

Her Majesty the Queen

Respondent

and

Michael Allen

Appellant

C50360

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jaime Humberto Restrepo

Appellant

Philip Campbell and Zachary Kerbel, for the appellant Zacky
          Deleon

Heather McArthur and Victoria Rivers, for the appellant
          Michael Allen

P. Andras Schreck and Candice Suter, for the appellant Jaime
          Restrepo

Deborah Calderwood, for the respondent

Heard:
November 22, 2011

On appeal from the conviction entered on July 10, 2008 by
          Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a
          jury.

ENDORSEMENT

[1]

The appellants were convicted of first degree murder for the
    execution-style shooting of Mauricio Castro.

[2]

Jaime Restrepo was the leader of a Toronto drug distribution network
    that owed approximately $1 million to Castro.  The Crown argued that Restrepo
    arranged the murder to extinguish the debt and to steal cocaine belonging to
    Castro, that Michael Allen was the actual killer, and that Zacky Deleon was
    deeply involved in the enterprise both before and after the killing took place.

[3]

The Crown relied on the testimony of three main witnesses.  Jorge
    Restrepo, Jaimes brother, was the number two person in the Restrepo drug
    network.  Jorge Acosta was involved in the Restrepo network and drove the
    getaway car after the murder.  Ronny Khananisho put the Restrepo network in
    touch with the shooter, Allen.

[4]

In his address to the jury, the trial judge issued a strong
Vetrovec
warning for Acosta, a milder warning for Jorge Restrepo, and declined to warn
    the jury about Khananishos evidence.  All three appellants contend that the
    trial judge erred in his treatment of the
Vetrovec
issue.

[5]

The appellants contend that the trial judge erred not only in failing to
    issue strong and sharp
Vetrovec
warnings for both Jorge Restrepo and
    Khananisho, but also in comparing the witnesses according to the extent to
    which they could be classified as unsavoury.  The appellants contend that this
    continuum approach interfered with the purpose of the
Vetrovec
warning
    by inviting the jury to find credibility by comparison.

[6]

We do not accept this submission.  In
R. v. Khela
(2009), 238
    C.C.C. (3d) 489 (S.C.C.) at para. 13, Fish J. stated:

The crafting of a caution appropriate to the
    circumstances of the case is best left to the judge who has conducted the
    trial.  No particular set of words is mandatory. In evaluating its
    adequacy, appellate courts will focus on the content of the instruction and not
    on its form.

[7]

In this case, we can see no error in the continuum adopted by the trial
    judge in his treatment of the three main Crown witnesses.  The warning about
    Acosta was very strong indeed.  The appellants do not challenge it.  The
    warning about Restrepo was milder but encompassed all four elements of the
    standard
Vetrovec
warning.  The absence of a warning about Khananisho
    was justified by his very peripheral role in the murder enterprise (he provided
    Allens phone number to the Restrepo network and attended a meeting with Allen
    during which Deleon spoke to Jaime Restrepo) and the absence of a history of
    lying or other dishonest behaviour.  In our view, it may be preferable to give
    discrete
Vetrovec
warnings that do not specifically involve a comparison
     particularly in the positive terms employed by the trial judge.  However,
    given the nature and extent of the trial judges references to the unsavoury
    characteristics of these witnesses, the jury would clearly understand that they
    had to examine their evidence with caution.

[8]

The appellant Jaime Restrepo submits that the trial judge erred in his
    treatment of the confirmatory evidence component of the
Vetrovec
warning.  He says that there was no confirmatory evidence independent of the
    three unsavoury witnesses relating to his involvement in the planning and
    execution of the murder.

[9]

We disagree.  The trial judge provided the standard jury charge on this
    issue.  Restrepos counsel made no objection to this component of the charge.

[10]

In
R. v. Kehler
, [2004]¸1 S.C.R. 328 at paras. 15-16, Fish J.
    stated:

The appellant wrongly equates relevant with
    disputed.  Mr. Greenwoods detailed account of the robbery, though
    undisputed, was no less relevant to the offences charged than his implication
    of the appellant in their commission.  And while confirmatory evidence
    should be capable of restoring the triers faith in relevant aspects of the
    witnesss account, it hardly follows that the confirmatory evidence must, as a
    matter of law, implicate the accused where the only disputed issue at trial is
    whether the accused was a participant in the crimes alleged.

As the appellant himself concedes, it is clear from
Vetrovec
,
supra
, that independent evidence, to be considered
    confirmatory, does
not
have to implicate the accused.  There is no
    separate rule in this regard for cases where the only evidence of the accuseds
    participation in the offence is that of a tainted witness.
[
Emphasis
    in original.]

[11]

In keeping with this principle, there was nothing wrong with directing
    the jury that they could consider evidence implicating Allen and Deleon in the
    murder  as confirmatory evidence in relation to Acostas and Jorge Restrepos
    identification of Jaime Restrepo as the mastermind behind Castros murder.  For
    example, it was appropriate for the jury to consider for this purpose evidence
    relating to a meeting by several participants in a park and cellphone records
    that placed people in specific locations near the time of the murder.  Indeed,
    the fact that Acosta and Jorge Restrepo could be proven, by independent
    evidence, to be telling the truth about Allens and Deleons involvement was
    relevant to an assessment of whether these witnesses were also telling the
    truth about Jaime Restrepos involvement.

[12]

Finally, the appellant Deleon contends that the trial judges charge on
    abandonment was flawed in two ways.  First, the abandonment charge failed to
    direct the jury to consider the depth of Deleons involvement in the conspiracy
    when assessing sufficient notice of intent to withdraw.  Second, the charge
    improperly restricted the operation of the defence to a factual finding that
    Deleon had participated in a common venture, foreclosing a jury finding that he
    had committed discrete acts of aiding and abetting but had abandoned his
    involvement.

[13]

We do not accept this submission.  Deleons trial counsel did not
    propose the defence of abandonment because it had the potential disadvantage of
    undermining his principal submission that he was not involved in the Castro
    murder enterprise at all.  After the trial judge chose to charge on
    abandonment, and did so in accordance with the standard jury charge, Deleons
    trial counsel made no objection.  Moreover, the trial judges focus on a common
    venture merely reflected the reality of Deleons participation, both before and
    after the murder, even though he was not present at the murder scene.  Deleon
    was deeply involved in the planning of the murder, he paid Allen after the
    murder, and he received a substantial amount of money for his role.  There was
    virtually no air of reality to this possible defence and, in any event, the
    trial judges charge on this issue was error-free.

[14]

The appeals are dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

G.J. Epstein
    J.A.


CITATION:
R. v. Economopoulos, 2011 ONCA 694

DATE: 20111108

DOCKET: C51414

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephanos Economopoulos

Appellant

Robert C. Sheppard, for the appellant

Jennifer Mannen, for the respondent

Heard:
November 4, 2011

On appeal from the sentence imposed
          on November 30, 2009 by Justice Eleanor M. Schnall of the Ontario Court of
          Justice.

APPEAL BOOK ENDORSEMENT

[1]

Although neither counsel asked for a fine, the appellant acknowledges
    that the imposition of a fine was within the trial judges discretion.  His
    sole submission is that the amount of the fine - $8,000  is excessive.  He
    contends that the trial judge erred by not making sufficient inquiry into his ability
    to pay.

[2]

We agree with that submission, although we also agree that the trial
    judge was correct to impose a fine that reflected the seriousness of what the
    appellant did.

[3]

In the light of the financial information on the record, we think that a
    fit sentence is a $6,000 fine.  The appellant shall have one year to pay, and
    consistent with the trial judges reasons, may if necessary, apply for further
    time to pay.

[4]

Leave to appeal sentence is granted, and the fine is reduced to $6,000.


CITATION:
R. v. Fallis, 2011 ONCA 680

DATE: 20111102

DOCKET: C50532

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wesley Wayne Fallis

Appellant

Mark Halfyard and Tyler MacDonald, for the appellant

Scott Latimer, for the respondent

Heard:
October 31, 2011

On appeal from the conviction
          entered on February 19, 2009 and the sentence imposed on April 28, 2009 by
          Justice Barry MacDougall of the Superior Court of Justice, sitting without a
          jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge erred in finding that the
actus

reus
of dangerous driving had been made out.  We do not agree with this
    submission.

[2]

The trial judges analysis from the last paragraph at page 479 through
    to page 481 of the transcript fully supports the finding of dangerous driving.

[3]

The appeal is dismissed.


CITATION:
R. v. Harun, 2011 ONCA 699

DATE:20111109

DOCKET: C53958

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Dedecho Harun

Appellant

Howard L. Krongold, for the appellant

Matthew Asma, for the respondent

Heard and endorsed: November 8, 2011

On appeal from sentence by Justice C. Dorval of the Ontario
          Court of Justice dated June 9, 2011

APPEAL BOOK ENDORSEMENT

[1]

The trial judge erred in applying the amendments to s. 719 of the
Criminal
    Code
. Those amendments did not apply to this appellant since the offence
    was committed before the amendments came into force.

[2]

That said, this case is governed by this Courts holding in
R. v.
    Rezaie
(1997), 112 C.C.C. (3d) 97 at 106. In our view, the effective
    sentence of just over 5 years imprisonment is fit. This was a very serious
    offence committed by an offender with a record of violence. The appellant administered
    a brutal beating to the victim over a three-hour period because she had spoken
    to the police about a crime he committed against her. He intended to send a
    message to other members of the community by this beating. While the appellant
    may have been under the influence of drugs at the time, he had carefully
    planned the offence.

[3]

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


CITATION:
R. v. Hewitt, 2011 ONCA 702

DATE: 20111114

DOCKET: C52964

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Karakatsanis JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Jerry Hewitt

Appellant

Jerry J. Hewitt, in person

Paul Burstein, for the appellant

Vanita Goela, for the respondent

Heard: April 12, 2011

On appeal from the conviction entered by Justice Beverly A.
          Brown of the Ontario Court of Justice, dated August 16, 2010, with reasons
          given orally.

By The Court:

[1]

The appellant, Jerry Hewitt, with the assistance of duty counsel,
    appeals his conviction by Brown J. for possession of marijuana for the purpose
    of trafficking.  The appellant submits that the trial judge made an error in
    her assessment of the credibility of an important Crown witness who supported
    the defence, erred in her assessment of the credibility of the appellant, and
    misapprehended the import of certain expert evidence.  We agree with the
    appellant. The appeal is allowed, the conviction set aside, and a new trial
    ordered.

THE PROCEEDINGS

[2]

The appellant was charged with two offences: possession of marijuana for
    the purpose of trafficking and simple possession of MDMA.  The appellant
    pleaded not guilty to the marijuana charge and stood mute when arraigned on the
    MDMA charge. Consequently, the trial judge entered a plea of not guilty to the
    MDMA charge.

THE FACTS

[3]

On January 6, 2010, the appellant, an inmate of the Toronto Jail, was in
    the visitors area.  A correctional officer, Jodhi Alleyne, brought another
    inmate, Mr. Mumby, to the area.  Officer Alleyne did a cursory search of
    Mumby.  She testified that Mumby had a soft-ball-sized bulge in the groin area.
    She did not do anything about the bulge since she is not authorized to search
    male inmates in that area of the body. She also thought it might be a hernia,
    because she had seen a guy with a hernia before.

[4]

Officer Alleyne briefly left the area but asked other officers to keep
    an eye on Mumby and the appellant.  When she returned, she observed that Mumby
    was noticeably nervous.  He was standing near the appellant, and the officer
    detected a faint smell of marijuana in the area.  Mumby asked to be returned to
    his unit.  Officer Alleyne noticed that the bulge in Mumbys pants was gone.  She
    asked that the appellant, and two other prisoners who had been in the visitors
    area, be strip searched before being returned to their units.

[5]

Officer Alleyne testified that she brought the appellant and the other
    two inmates into the B Landing where they were separated into two of three
    interview rooms.  One inmate was placed alone in the first interview room and
    was searched by another officer, Kulwinder Jauha.  Meanwhile, according to
    officer Alleyne, the appellant and the other inmate were placed in the second
    interview room.  Officer Alleyne watched the appellant and the other inmate through
    a window in the door of the second interview room while officer Jauha conducted
    the first search in the first interview room.  She testified that she had a
    clear recollection of the location of the inmates on B Landing and who did
    what. However, she was not sure if the appellant and the other inmate were
    separated when they were strip searched.

[6]

The evidence of officer Jauha was different. He testified that he placed
    the three inmates in separate rooms and strip-searched each inmate individually
    in the room where they had been placed.  The appellant was the last to be
    searched.  Officer Jauha testified that after searching the appellant and
    finding nothing, he noticed that the appellant was constantly looking to the
    back of the room.  Officer Jauha went to the back of the room where he found a
    sock with black packages in it.  The appellant immediately said, Thats not
    mine. Officer Jauha placed him in handcuffs and took him to segregation.  The
    sock contained 171.71 grams of marijuana. Officer Jauha also testified that the
    interview rooms are regularly searched during the day after they are used.

[7]

The MDMA charge related to a search of the appellants segregation cell
    on January 11, 2010.  During the search, a correctional officer found a package
    with some drugs in it.  The package contained 10.88 grams of MDMA.

[8]

The appellant testified. He has a relatively lengthy criminal record. In
    examination-in-chief and in cross-examination he stated that when he is guilty
    of an offence he admits to the wrong-doing.  He put it this way initially:

More often than not I would plead to anything that
    Ive done wrong, whereas if Im not, if I havent beenif I dont feel Ive
    done anything wrong, which I havent, then Im more than willing to say its
    not me.

[9]

He testified that the MDMA, and a small amount of marijuana, found in
    the segregation cell was his.  He immediately admitted to senior officers in
    the institution that the drugs were his. He testified that he had been given
    the drugs by another inmate and he had secreted them in a body cavity. He explained
    why an inmate would give away drugs to him.  An inmate, who has some drugs,
    could be getting out of jail.  Since the inmate would have no further use for
    the drugs, he would give the drugs to the appellant because he had been in
    custody for some time.

[10]

The appellant denied that the sock found by officer Jauha was his.  He
    testified that after visiting with his family, he entered the elevator with
    three other inmates.  As they left the elevator, they were told that they were
    all going to be searched.

One inmate was searched somewhere on B landing while the
    appellant, and the other two inmates, were placed in one of the interview
    rooms. The appellant smelled marijuana as soon as he entered the interview
    room. The other two inmates were removed from the interview room one at a time
    and, presumably, searched. Officer Jauha then came into the interview room and
    strip-searched the appellant in the same room. He did not find anything on the
    appellant. He then left the interview room while the appellant dressed. When
    the officer returned to the room, he put on a pair of gloves and picked
    something up.  A few minutes later, officer Jauha returned to the interview
    room with a senior officer and questioned the appellant about what he had
    found.  It was at this time that the appellant said, Thats not mine.

[11]

The defence conceded that if the appellant was found to have been in
    possession of the marijuana found by officer Jauha, the full charge of
    possession for the purpose of trafficking was made out. In spite of this, Crown
    counsel called Officer Canepa of the Toronto Drug Squad to give opinion
    evidence. Officer Canepa had extensive experience with drug investigations and
    the value of drugs on the street.  He had limited experience with drug
    investigations in jails and had only testified twice in relation to
    prosecutions arising out of drugs found in the jail.  That said, the defence
    conceded that he was an expert in the use, distribution, and value relating to
    marijuana in jails, in terms of trafficking and possession. He testified that
    while the street value of 171.71 grams of marijuana was about $3,400, in the
    jail context the resale value was between $25,000 and $34,000. The disparity exists
    because of the more limited access to drugs in the jail; it is much harder, and
    much more dangerous, to get drugs into the jail. Given the value of the
    marijuana, and that such a large quantity could not be stored and kept fresh in
    the jail setting for any period of time, it was Officer Canepas opinion that
    the marijuana was possessed for the purpose of trafficking.  Officer Canepa was
    not asked the value of the MDMA found in the appellants segregation cell.

THE TRIAL JUDGES REASONS

[12]

The trial judge held that where the evidence of officers Jauha and
    Alleyne differed, she accepted the evidence of the former. She stated that she
    was not impressed with officer Alleyne.  The first reason she gave for
    rejecting officer Alleynes evidence was that although her notes had been
    qualified in the course of her examination she did not refer to them to refresh
    her memory. The trial judge said:

She indicated she had provided notes and her notes
    were qualified in the course of her examination to permit her to refresh her
    memory and strangely enough, even though many months had passed since the
    incident, the Court specifically made note of the fact that she did not refer
    to her notes even once during examination in chief after having been provided
    the opportunity to do so.

[13]

The trial judge was also concerned that even though officer Alleyne had
    noticed the bulge in Mumbys pants, she did not ask that he be searched. She
    considered her statement that Mumby might have had a hernia to be unbelievable.
    The trial judge noted that officer Alleyne was relatively inexperienced, and that
    she conceded she did not pay attention to the manner in which the strip
    searches were conducted.  Officer Alleyne did not even know whether two inmates
    had been strip-searched together, which would have been shocking.  The trial
    judge found officer Alleynes evidence that the inmates were kept in the same
    room unreliable; it did not make sense. Her manner of giving evidence was
    somewhat flighty.

[14]

In contrast, officer Jauha was an experienced correctional officer who
    gave evidence in a professional manner.  The trial judge accepted his evidence
    that the inmates were kept in separate rooms before being searched, and she accepted
    his version of events rather than the version given by officer Alleyne and the
    appellant.

[15]

The trial judge did not find the appellant to be a credible witness.  She
    relied upon several factors. The first factor she mentioned was his criminal
    record that included offences of dishonesty. The trial judge then noted that
    the appellant testified that if he makes mistakes he never wastes the Courts
    time to fight something, that he does not drag out things.  In this case,
    however, the appellant had not pleaded guilty to the charge of possession of
    MDMA.  She said the following:

In this case, the court notes that when arraigned
    in relation to the January 11
th
charge he did not enter a plea and
    his lawyer invited the court to enter a not guilty plea.  Upon testifying he
    admitted from the outset of his testimony that he did possess the MDMA, ecstasy
    that was the subject of the January 11
th
charge.
The Court does
    not consider his failure to enter a guilty pea against him, but rather
    considers it in the context of his testimony with respect to what he does when
    he is guilty of something and he has made a mistake.
[Emphasis added.]

[16]

The trial judge then went on to consider the appellants explanation as
    to how he received the MDMA. She did not believe this explanation:

The Court accepts the testimony of Detective Canepa
    which was not challenged, that drugs in the jail context are valuable and are
    expensive to acquire.  The Court finds Mr. Hewitts testimony, that he was
    given drugs on multiple occasions for free, is incredulous in creating a strong
    question as to his credibility as a witness.

[17]

The trial judge was also concerned about the appellants reply when
    defence counsel put to him the Crown theory that inmate Mumby had passed him the
    marijuana. Rather than simply denying the allegation, the appellant suggested
    that the officers should have searched him first: arguably an answer that had
    very little to do with the question.

[18]

In all, the trial judge accepted the Crown theory that Mumby had passed
    the marijuana to the appellant. The appellant brought the package with him when
    he was placed alone, in the interview room. Officer Jauhas suspicions were
    aroused because the appellant kept looking at a corner of the room. As the
    officer approached the package, the appellant said it was not his, which was
    evidence of consciousness of guilt.

ANALYSIS

Rejection of Officer Alleynes Evidence

[19]

Officer Alleynes testimony, that two of the inmates were kept together
    in the same interview room before being strip searched, was important evidence
    for the defence. That testimony provided an explanation, inconsistent with the
    appellants guilt, for why officer Jauha later found the package in the room.
    As we have noted, the trial judges first reason for rejecting this evidence
    was that officer Alleyne did not refer to her notes, although she was given an
    opportunity to do so. In our view, the trial judge misapprehended the record. Admittedly
    the issue of officer Alleynes notes was somewhat confusing. When the officer
    was asked, at the beginning of her testimony, whether she would like to refer
    to her notes, she said yes. However, the trial judge immediately interjected
    and suggested that Crown counsel was leading the witness and should reserve
    questioning about the notes until an issue arose. There was some discussion
    between the trial judge and counsel about the notes, but in the result, Crown
    counsel never finished qualifying officer Alleynes notes.

[20]

On this record, the trial judges own interjection meant that it was
    never clear that officer Alleyne was entitled to use her notes. Thus, her
    failure to do so could not be used to undermine her credibility. We also note,
    as pointed out by duty counsel, that the issue of whether the officer reviewed
    her notes before testifying was never examined. Crown counsel did not, either
    in examination-in-chief or in re-examination, challenge officer Allenye as to
    whether her memory was faulty because she did not refer to her notes.

Use of the Appellants Failure to Plead Guilty

[21]

The trial judge found that the appellants decision not to plead guilty
    to the MDMA charge affected his credibility. The appellant opened up this issue
    by testifying that when he is guilty of something he admits it. It was
    certainly open to Crown counsel to challenge the appellant on this assertion,
    and, in particular, to draw his attention to the fact that he stood mute when
    asked to plead to the MDMA charge. However, Crown counsel never questioned the
    appellant about his decision to stand mute rather than plead guilty to the MDMA
    charge. Thus, the appellants assertion that he had immediately admitted his
    liability to senior officers in the jail stood unchallenged and there was no
    explanation for why the appellant stood mute.

Improper Use of the Expert Testimony

[22]

The trial judge rejected the
    appellants explanation that he received the MDMA as a gift. In doing so, she
    relied upon officer Canepas evidence as to the value of drugs in the jail.
    However, officer Canepa gave no evidence as to the value of the drugs found in
    the appellants segregation cell. His evidence only covered the value of the large
    quantity of marijuana found in the interview room. He also provided no opinion
    as to the reliability of the appellants explanation about receiving drugs for
    free in the jail setting. Crown counsel did not seek to call Officer Canepa in
    reply to dispute the appellants explanation.

Conclusion

[23]

Standing on their own, none of the
    errors committed by the trial judge would be sufficient to overturn this
    verdict. There were no doubt good reasons to reject the evidence of both officer
    Alleyne and the appellant. Further, as Crown counsel fairly points out, the
    trial judge could have arrived at some of her conclusions simply by application
    of common sense. However, this was a case that turned on credibility and several
    of the important reasons the trial judge gave for rejecting the exculpatory
    evidence of officer Alleyne and the appellant do not withstand scrutiny. On
    this record, we cannot be satisfied that the verdict was a safe one.

DISPOSITION

[24]

Accordingly, the appeal is allowed, the conviction for possession of
    marijuana for the purpose of trafficking is set aside and a new trial ordered.

[25]

We wish to express our appreciation to both counsel. Following oral
    argument of this inmate appeal, Crown counsel obtained the entire transcript of
    evidence and both Ms. Goela and Mr. Burstein provided very helpful written
    argument.

Signed:           Marc Rosenberg J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.

RELEASED:  MR November 14, 2011


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.

CITATION:
R. v. Hussey, 2011 ONCA 719

DATE: 20111116

DOCKET: C51369

COURT OF APPEAL FOR ONTARIO

Weiler, Watt JJ.A. and Cunningham A.C.J (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Kirt Hussey

Appellant

Kirt Hussey, acting in person

Susan Chapman, acting as duty counsel

Frank Au, for the respondent

Heard: November 14, 2011

On appeal from the conviction entered on November 10, 2009 by
          Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a
          jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction on two interrelated grounds.  The
    appellant submits that the trial judge failed to consider the violation of the
    his s. 10(b)
Charter
right to counsel when considering whether his s. 8
    right to be free from unreasonable search and seizure was violated when he gave
    a DNA sample.  The appellant further submits that the breach of his s. 10(b)
    right to counsel in connection with the giving of his statement tainted his
    consent to give a DNA sample.  The appellant submits that the DNA sample should
    also have been excluded.

[2]

We disagree.  Although the trial judge did not specifically consider the
    s. 10(b) violation in the context of s. 8, she did consider it when considering
    whether the DNA sample should be excluded pursuant to s. 24(2).  Implicit in
    this consideration was what the result should be on the assumption that the appellants
    s. 8 right had been violated.  We would dismiss the first ground of appeal.

[3]

In relation to the second ground of appeal, there was a close temporal
    and contextual connection to the taking of the appellants statement in
    violation of s. 10(b), but the appellants signed waiver and consent to give
    the DNA sample was obtained only after the reiteration of his right to counsel
    and the consequences of giving the sample had been made clear to him.  It broke
    the connection between the s. 10(b) non-compliance with respect to the taking
    of his statement and the giving of the DNA sample.  This case is
    indistinguishable from this courts decision in
R v. Simon
.

[4]

Accordingly, the appeal is dismissed.


CITATION:
R. v. Jones, 2011 ONCA 695

DATE: 20111108

DOCKET: C54327

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Edward Jones

Appellant

Tina Yuen, for the appellant

Jennifer Mannen, for the respondent

Heard:
November 4, 2011

On appeal from the sentence imposed on March 23, 2011 by
          Justice John D. D. Evans of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Jones appeals on the sole ground that the trial judge erred by failing
    to give enhanced credit for pre-sentence custody.  This submission rest on the
    proposition that the amount of pre-sentence custody was not part of the joint
    submission.  We do not accept this proposition.

[2]

This was a serious home invasion for which Mr. Jones received a sentence
    at the very low end of the range.  That sentence reflected his aboriginal
    heritage, the delay in the proceedings leading to his guilty plea, and his
    medical condition.  Equally, in our view, it reflected one for one credit for
    dead time.

[3]

Our view finds support in the submissions of counsel on sentencing,
    especially the submission of defence counsel, who did not ask the trial judge
    to give enhanced credit.

[4]

The sentence appeal is dismissed.


CITATION:
R. v. Krivicic, 2011 ONCA 703

DATE: 20111114

DOCKET: C50605

COURT OF APPEAL FOR ONTARIO

Blair, Juriansz JJ. A. and Pepall J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Elvis Richard Krivicic

Appellant

Elvis Richard Krivicic, acting in person

Paul Burstein, as
amicus curiae

Alexander Alvaro, for the respondent

Heard: October 26, 2011

On appeal from the verdict of not criminally responsible by
          reason of mental disorder entered by Justice Gary F. Hearn of the Ontario
          Court of Justice dated February 27, 2007.

Pepall J. (
ad hoc
):

A.

Introduction

[1]

The central issue on this appeal is whether the trial judge made an
    error in law by failing to adequately consider the appellants fitness to stand
    trial.

[2]

On February 27, 2007, the appellant entered guilty pleas to a single
    count of criminal harassment and two counts of failure to comply with his
    recognizance of bail.  He was found not criminally responsible on account of a
    mental disorder (NCR).  Since that time, he has been in custody at a mental
    health care facility.

[3]

The appellant filed an appeal against his conviction and sentence and
    challenged the NCR finding.  The appellant asserts his innocence and submits
    that he has been denied due process and a right to a trial.

[4]

After the appellant had discharged a number of appellate counsel, this
    court appointed Mr. Paul Burstein to act as
amicus curiae
on the appeal.
     He advised the court that the appellant, who was present in court for the
    appeal, does not accept that he suffers from a mental disorder and opposes the
    submissions of
amicus
.

[5]

Relying on s. 686 (1)(a)(ii) of the
Criminal Code
, R.S.C., 1985,
    c. C-46, a
micus
submits that the trial judge erred in law by failing to
    make necessary inquiries on whether to hold a fitness hearing and, relying on
    s. 686 (1)(a)(iii) of the
Code
, that there was a miscarriage of
    justice.  He asks that the court set aside the trial judges finding that the
    appellant was NCR at the time of the alleged offences and declare that the
    appellant was unfit to stand trial when he entered guilty pleas in February
    2007.  Alternatively,
amicus
asks that the matter be remitted to the
    trial court for a hearing to properly determine the appellants fitness to
    stand trial.

[6]

Amicus
argues that the trial record and the proposed fresh
    evidence show that there were reasonable grounds to believe that the appellant
    was unfit to stand trial on February 27, 2007.  In particular, the appellants
    rare mental disorder, erotomania, rendered him incapable of understanding the
    possible consequences of the proceedings.  This mental disorder gave rise to
    the NCR finding and equally should have raised concerns about the appellants
    fitness to stand trial.
Amicus
submits that the issue of the
    appellants fitness was never litigated and does not appear to have been the
    subject of a formal psychiatric assessment.

[7]

Amicus
advances the argument so that the appellant may avail
    himself of a possible stay of proceedings in the event he no longer poses a
    significant threat to the safety of the public and a stay is in the interests
    of the proper administration of justice.

[8]

For the reasons that follow, I would dismiss these arguments and order
    that the appeal be dismissed.

B.

Background

(i)     The
    Charges

[9]

The harassment charge alleged that between September 23, 2006 and
    November 7, 2006, the appellant harassed Katherine Eileen Dietrich by
    repeatedly communicating with her and with Paul and Connie Dietrich, causing
    Katherine Eileen Dietrich to reasonably fear for her safety and that of Paul
    and Connie Dietrich.  The failure to comply charges alleged that on December
    18, 2006, and January 11, 2008, the appellant failed to abstain from
    communicating or associating or having any contact with Katherine Eileen
    Dietrich, Paul and Connie Dietrich, and Sandra Dietrich.

[10]

In early September, 2006, the police received a complaint from Sandra
    Dietrich reporting that the appellant had been calling her residence on
    numerous occasions and asking to speak with Katie Dietrich.  The appellant
    also attended Sandra Dietrichs residence in his attempt to deliver flowers to
    Ms. Dietrich.  The police spoke with the appellant and received his assurance
    that he would stop trying to contact Ms. Dietrich through the family of Sandra
    Dietrich.

[11]

On September 23, 2006, Connie and Paul Dietrich, the parents of Ms.
    Dietrich, received a telephone message from the appellant.  The appellant also
    attended at their residence with flowers.  The appellant was told that Ms.
    Dietrich did not live there and to stop coming by their residence.  Ms.
    Dietrichs parents subsequently received numerous letters and several telephone
    messages from the appellant.

[12]

Ms. Dietrich provided the police with a statement indicating that she
    did not know the appellant, even though they had attended the same high school
    some years ago.  She stated that she did not want to have any contact with the
    appellant.  While Ms. Dietrich did not live in the same area as the appellant,
    she indicated that she and her parents were afraid for their personal safety.

[13]

The appellant was arrested on November 16, 2006, and charged with
    criminal harassment contrary to s. 264 of the
Code
.  On November 17,
    2006, he was released on a recognizance of bail with his mother as surety.
    Despite having a bail condition prohibiting further contact with Ms. Dietrich
    and her parents, the appellant attempted to contact Ms. Dietrich again, by
    letter, on December 18, 2006.  In this letter, he reiterates his love for her
    and implores her not to send him back to jail.

[14]

The appellant was again arrested on December 20, 2006.  He was further
    charged with breaching the no contact provision of his bail and with criminal
    harassment.  The appellant was held in custody.  On January 2, 2007, the
    appellant was released on a recognizance of bail with his mother as surety.  He
    was also ordered to meet Dr. William J. Komer, a psychiatrist, for an
    examination on January 5, 2007.

[15]

On January 11, 2007, the appellant sent another letter to Ms. Dietrich.
    He also telephoned her parents.

[16]

On January 12, 2007, the appellant turned himself into the police and
    was arrested on another charge of failing to comply with his recognizance of
    bail.  He has been in custody ever since.

(ii)    Dr.
    Komers Reports

[17]

Dr. Komer met with the appellant on January 5 and January 12, 2007.  Dr.
    Komer provided a report to the court on January 24, 2007.  He was not formally
    asked to address fitness to stand trial but he did so nonetheless.  He reported
    that the appellant had a major mental illness, namely a delusional disorder.
    Dr. Komer stated that the appellant was aware of the nature and object of the
    proceedings and their potential consequences and that he would be able to
    meaningfully communicate with counsel and follow court proceedings.  He
    reported that in his opinion, the appellant was fit to stand trial.  Dr. Komer
    also opined that at the time of his alleged offences, the appellant was
    suffering from a mental disorder that rendered him incapable of knowing the
    wrongfulness of his actions.  He stated that the appellant was in need of
    psychiatric treatment, support, and monitoring that would best be initiated
    from within a psychiatric hospital setting.  The appellant was, in Dr. Komers
    opinion, at high risk for having further conflicts with the law and a potential
    significant threat to the safety of the public.

[18]

On January 30, 2007, the trial judge conducted a pretrial.  With
    the consent of the Crown and defence counsel, the trial judge made a s. 48
    order for the assessment of the appellants criminal responsibility with
    regards to mental disorder.

[19]

Dr. Komer reported to the court again on February 21, 2007.  He stated
    that the appellant was aware of the nature and object of the proceedings and
    their potential consequences and would be able to meaningfully communicate with
    counsel and follow court proceedings.  He stated twice in his report that in
    his opinion, the appellant was fit to stand trial.  As in his January 27, 2007
    report, he opined that the appellant had a delusional disorder and at the time
    of his alleged offences, he was suffering from a mental disorder that rendered
    him incapable of knowing the wrongfulness of his actions.

[20]

In his report, Dr. Komer addressed the appellants description of the
    circumstances surrounding his alleged offences.  The appellant expressed the
    belief that he did not do anything morally wrong and that the alleged victim
    was interested in him and used the whole neighbourhood to send him messages.
    He wanted the alleged victim to come clean.  He said that he thought the
    alleged victim liked him, maybe loved him, and wanted to have contact with
    him.  The appellant described his last letter to the complainant stating that
    the letter was to get her to speak up in his defence about the charges.  He
    said he wanted the alleged victim to speak the truth.

(iii)  Outcome of
    the Trial

[21]

On February 27, 2007, the appellant appeared for trial.  He was
    represented by counsel and his parents were present in court.  There was no
    fitness to stand trial hearing.  Both of Dr. Komers reports were before the
    court.  Both the Crown and the defence agreed that the appellant was NCR.  The
    appellant pled guilty to the single count of criminal harassment between
    September 23, 2006 and November 7, 2006 and to both counts of failure to
    comply.  In his reasons, the trial judge noted that the matter had been
    judicially pre-tried and the issues were discussed in further detail than might
    have been advanced that day.  He observed that the appellant had been the
    subject of a number of assessments and referred to both of Dr. Komers reports.

[22]

There is no evidence that any concern about the appellants fitness to
    stand trial was in issue on February 27, 2007.  None of the appellants
    counsel, the Crown or the trial judge raised any concern.  There is also no
    suggestion of ineffective assistance of counsel, although
amicus
investigated
    this issue.

[23]

The trial judge found the appellant to be NCR on all counts and referred
    the matter to the Ontario Review Board (the ORB) for a disposition hearing
    pursuant to section 672.47(1) of the
Code
.

[24]

The ORB held its initial disposition hearing on March 30, 2007.  Dr.
    Komer testified before the ORB and stated that delusional disorders like the
    one experienced by the appellant are typically harder to treat because they
    tend to be more ingrained.  The ORB concluded that the appellant remained a
    significant threat and he should continue to be detained.

(iv)   Application
    for Admission of Fresh Evidence

[25]

Amicus
brought an application for the admission of fresh evidence
    to assist the court in determining whether there were reasonable grounds to
    believe that the appellant was unfit to stand trial on February 27, 2007.
    The fresh evidence consisted of an affidavit of Dr. Derek Pallandi, a staff
    forensic psychiatrist at the Law and Mental Health Programme at the Centre for
    Addiction and Mental Health.

[26]

Dr. Pallandi did not assess the appellant.  Nonetheless, he concluded
    that he had reasonable grounds to believe that the appellants mental disorder
    prevented him from understanding the possible consequences of the legal
    proceeding, even though he may well have understood the general nature of that
    proceeding and may have been able to communicate with his counsel.  Dr.
    Pallandi opined that the appellant was diagnosed as suffering from a mental
    disorder commonly referred to as delusional disorder  erotomanic type.  This
    type of delusional disorder is almost always an all encompassing one and would
    define the mentally ill individuals decision-making in every aspect of his or
    her life.  It typically produces, in the mentally disordered individual, a
    fixed set of delusional beliefs that another person has a deep amorous interest
    in the delusional individual, even though that other person may not know the
    mentally disordered individual or may have repeatedly expressed a lack of such
    interest.

[27]

Dr. Pallandi stated that as the appellants delusional beliefs included
    the false belief that the complainant would never do anything to harm him,
    those delusional beliefs would have prevented the appellant from understanding
    the possible consequences of the proceedings.  The appellants mental disorder
    would have caused him to believe that he would be exonerated at trial if the
    complainant were brought to court because she would inevitably testify that she
    was in favour of the appellants efforts to contact her.  Due to the delusional
    disorder, the only possible consequence of a fair trial would be a finding of
    not guilty.  He pleaded guilty because he believed that this would resolve the
    matter more quickly and expedite his release.

[28]

Even though he had not assessed the appellant at any time, Dr. Pallandi
    stated that his review had provided him with adequate information upon which to
    provide an expert opinion on the probability that the appellant was unfit to
    stand trial on these charges in February of 2007.  His review consisted of the
    record of proceedings concerning the February trial, reports to the court dated
    August 22, September 29, 2008 and January 27, 2009 from Dr. Angus McDonald, a
    psychiatrist, and evidence of Dr. Arun Prakash, a psychiatrist, given on
    July 17, 2009 before Flynn J. in Kitchener, Ontario.

[29]

On September 29, 2008, Dr. McDonald conducted an NCR assessment for
    other charges that had been laid against the appellant in May, 2008.  Dr.
    McDonald wrote that he did not regard the appellant as unfit although his
    fitness at best is not robust.  In his January 27, 2009 report, Dr.
    McDonald wrote that we are doing little or nothing to maintain his Fitness to
    Stand Trial which has not been in question for a considerable period.

C.

Analysis

[30]

Section 2 of the
Code
defines unfit to stand trial as meaning:

unable on account of mental
    disorder to conduct a defence at any stage of the proceedings before a verdict
    is rendered or to instruct counsel to do so, and, in particular, unable on
    account of mental disorder to

a)

understand
    the nature or object of the proceedings,

b)

understand
    the possible consequences of the proceedings, or

c)

communicate
    with counsel.

[31]

Pursuant to section 672.22 of the
Code
, an accused is
    presumed fit to stand trial unless the court is satisfied on the balance of
    probabilities that the accused is unfit to stand trial.  The court may order an
    assessment of the mental condition of the accused if it has reasonable grounds
    to believe that such evidence is necessary to determine whether the accused is
    unfit to stand trial: section 672.11.  In addition, under s. 672.23, where the
    court has reasonable grounds, at any stage of proceedings before a verdict is
    rendered, to believe that the accused is unfit to stand trial, the court may
    direct, of its own motion or on application of the accused or the prosecutor,
    that the issue of fitness of the accused be tried.  An accused or a prosecutor
    who makes an application has the burden of proof that the accused is unfit to
    stand trial.

[32]

Unlike s. 16 of the
Code
, which is concerned with an
    accuseds mental state at the time of the offence, s. 2 is concerned with an
    accuseds mental state at any stage of the proceedings before a verdict is
    rendered.  As stated by Sopinka J. in
R. v. Whittle,
[
1994]
    2 S.C.R. 914, at p. 933,

[t]he fact that an accused is not
    criminally responsible within the meaning of s. 16 does not mean that he or she
    is unfit to stand trial.  If the contrary were true there would be little
    purpose in providing for the plea authorized by s. 16.  Most persons who
    suffered from the mental disorder defined in the section would be exempted from
    trial and would not get to plead until they had recovered subsequent to the
    date of the offence.

[33]

The statutory definition of unfit to stand trial found in s. 2 was added
    to the
Code
effective February 4, 1992, and it essentially codified the
    existing case law on the subject.

[34]

This court first addressed the definition in s. 2 in
R. v. Taylor
(1993),
    11 O.R. (3d) 323 (C.A.)
.
In that case it was conceded that the accused
    met the first two criteria found in s. 2, but the parties disagreed over
    whether the third, namely the ability to communicate with counsel, had been
    met.  Unlike this case, the
amicus
in
Taylor
took the position
    that the accused was fit to stand trial.
Amicus
advocated a limited
    cognitive capacity test in which the presence of delusions would not vitiate
    the accuseds fitness to stand trial unless the delusion distorted the
    accuseds rudimentary understanding of the judicial process.  The court examined
    the rationale for the fitness rules, stating at p. 338:

the accused must have
    sufficient mental fitness to participate in the proceedings in a meaningful
    way.  At the same time, one must consider that principles of fundamental
    justice require that a trial come to a final determination without undue
    delay.  The adoption of too high a threshold for fitness will result in an
    increased number of cases in which the accused will be found unfit to stand
    trial even though the accused is capable of understanding the process and
    anxious for it to come to completion.

In
    addition, adopting a high threshold of fitness, including a best interests
    component, derogates from the fundamental principle that an accused is entitled
    to choose his own defence and to present it as he chooses.

()

The limited cognitive capacity test strikes an
    effective balance between the objectives of the fitness rules and the
    constitutional right of the accused to choose his own defence and to have a
    trial within a reasonable time.

[35]

The limited cognitive capacity test was adopted by the Supreme
    Court of Canada in
R. v. Whittle.
Sopinka J. stated at p. 933 of that
    case that s. 2 required limited cognitive capacity to understand the process
    and to communicate with counsel.

[36]

This court elaborated on the appropriate inquiry in
R. v.
    Morrisey,
2007 ONCA 770, (2007) 87 O.R. (3d) 481, leave to appeal to S.C.C.
    refused, [2008] S.C.C.A. No. 102.  Blair J.A. stated at para. 36 that an
    accused must be mentally fit to stand trial in order to ensure that the trial
    meets minimum standards of fairness and accords with principles of fundamental
    justice: [m]eaningful presence and meaningful participation at the trial,
    therefore, are the touchstones of the inquiry into fitness.

[37]

Amicus
submits that following
Taylor
, the focus of the
    fitness inquiry has been on the accuseds ability to communicate with counsel
    and there has been little consideration of the other two branches of s. 2 of
    the
Code
, namely understanding the nature or object of the proceedings
    and understanding the possible consequences of the proceedings.

[38]

In this case, the trial judge had reviewed both of Dr. Komers reports.
    Both of Dr. Komers reports expressly addressed all three of the branches found
    in s. 2 of the
Code
.  The record does not suggest that fitness was only
    examined with respect to the third branch or that Dr. Komer misunderstood the
    section 2 criteria.  The trial judge was alert to and addressed his mind to the
    issue of fitness.  He was entitled to rely on Dr. Komers reports.

[39]

In addition, the appellant was represented by counsel, and neither the
    Crown nor the defence raised any challenge nor expressed any concern regarding
    the appellants fitness to stand trial.

[40]

Furthermore, the record, including the appellants correspondence to the
    complainant requesting that she help him and stop talking with the prosecutors
    and the police, was not inconsistent with a conclusion of fitness.  There is
    also nothing in the record to suggest that the appellant believed the
    complainant would come to his rescue were he to enter a plea of guilty.  The
    evidence before the trial judge did not show that the appellant was probably
    unfit to stand trial.

[41]

In my view, there was no error in law on the part of the trial judge nor
    a miscarriage of justice.

[42]

As for the fresh evidence,
Palmer v. The Queen,
[1980] 1 S.C.R.
    759, at p. 775

provides that an appellate courts overriding
    consideration in exercising its discretion to admit fresh evidence must be the
    interests of justice.  The evidence must be relevant, credible, and reasonably
    expected to have affected the result.  The evidence should generally not be
    admitted if, by due diligence, it could have been adduced at trial, although
    this general principle will not be applied as strictly in criminal cases as in
    civil cases.  A failure to meet the due diligence requirement should not
    override accomplishing a just result: see
R. v. Warsing,
[1998] 3
    S.C.R. 579, at para. 56
.

[43]

Certainly with the exercise of due diligence, the fresh evidence could
    have been proffered at trial.  Even if one ignores that fact, Dr. Komer
    concluded, in two separate reports close to the time of trial, that the
    appellant was fit for trial.  Dr. McDonald assessed the appellant in 2008 and
    2009 and considered him fit to stand trial on different charges.  Both
    physicians opinions are more reliable indicators of the appellants state of
    mind at or near the time of his trial than is Dr. Pallandis four years later.  In
    his cross-examination, Dr. Pallandi agreed that in principle, Dr. Komer was in
    a more advantageous position to assess fitness.  Dr. Pallandi also testified
    that it was possible that counsel could convey to the appellant the possible
    consequences of the proceedings and that the appellant must have been aware
    that certain consequences would flow from a plea of guilty as opposed to a plea
    of not guilty.

[44]

In the circumstances, I would not admit the fresh evidence.  However,
    even if it were admitted, it would not alter the result, for the reasons
    expressed above.

[45]

The appeal is therefore dismissed.

S.E. Pepall J.

I agree R.A. Blair
    J.A.

I agree R.G. Juriansz
    J.A.

RELEASED:  November 14, 2011


CITATION:
R. v. Lilly, 2011
      ONCA 740

DATE:  20111124

DOCKET: C48837

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean V. Lilly

Appellant

Michael M. Doyle, for the appellant

Marcy Henschel, for the respondent

Heard:  November 23, 2011

On appeal from the conviction entered by Justice A. Zuraw of
          the Ontario Court of Justice on February 28, 2008 and the sentence imposed dated
          April 29, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The trial judges description of the facts as he found them surrounding
    the appellants acquisition and storage of the material effectively provided a
    clear explanation for his rejection of the appellants evidence.  In short,
    that explanation was incredible in light of the surrounding circumstances as
    found by the trial judge.  The reasons were adequate.

[2]

The evidence provided a sufficient basis upon which the trial judge
    could find that the appellant was wilfully blind.

[3]

The appeal must be dismissed.


CITATION:
R. v. Martin Grove Properties Ltd., 2011 ONCA
          711

DATE: 20111114

DOCKET: C53835

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen Ex. Rel. The Regional
          Municipality of York

Appellant

and

Martin Grove Properties Ltd.

Respondent

Hans J. Saamen, for the appellant

Paul Pape and Emilio Bisceglia, for the respondent

Heard and endorsed: November 10, 2011

On appeal from the decision of Justice William Gorewich of the
          Ontario Court of Justice, dated December 13, 2010, upholding the decision of
          Her Worship L. DeBartolo , dated January 18, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The subject matter of the proceedings for the purpose of former s. 36(8)
    of the
Building Code Act
was the failure to comply with the order of
    March 31, 2008. That omission took place at the earliest after May 15, 2008
    when the respondent allegedly failed to comply with the terms of the order.

[2]

The charge, which was laid on January 27, 2009, was laid within the one
    year limitation period. The fact that there were other orders issued related to
    the same underlying acts by the respondent may be relevant to an argument that
    the prosecution was an abuse of process. That, however, was not the issue
    before the trial court or the Provincial Offences Appeal Court. Those courts
    erroneously relied upon
R. v. Pickles
, [2004] O.J. No. 662, a decision
    of this court which concerned s. 36(1)(c) of the Act. This charge was laid
    under s. 36(1)(b). See
Bogdanow v. Scott Martin Properties Ltd
., [1983]
    O.J. No. 72 (Ont. C.A.).

[3]

Finally, the fact that the municipality had other remedies under s. 38
    for failure to comply with orders to comply does not preclude resort to
    prosecution. This is clear from the words of s. 38 itself, which includes the
    phrase despite the imposition of any penalty in respect of the non-compliance
    and in addition to any other rights he or she may have. The s. 38 remedy is
    independent of prosecution under s. 36.

[4]

Accordingly, the appeal is allowed, dismissal of the charge is set aside
    and a new trial ordered.


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.

CITATION:
R. v. Mombourquette, 2011
          ONCA 735

DATE: 20111122

DOCKET: C44090

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Mombourquette

Appellant

James C. Fleming, for the appellant

Christine Tier, for the respondent

Heard: November 21, 2011

On appeal from the conviction
          entered on August 24, 2001 and the sentence imposed on April 1, 2004 by
          Justice Margaret P. Eberhard of the Ontario Court of Justice, sitting without
          a jury.

APPEAL BOOK ENDORSEMENT

[1]

On the record it is clear that trial counsel agreed to the appointment
    of Dr. Choi.  The trial record fully justifies the position taken by counsel.
    Dr. Chois opinions do not offer any support for any claim of bias.

[2]

The affidavit of the appellant is not credible.  In coming to that
    conclusion we have considered the affidavit itself and the cross-examination.
    Counsel acknowledged that if we found the appellants affidavit incredible,
    there was no reason to interfere with the dangerous offender finding at trial.

[3]

The appeal is dismissed.  The conviction appeal is dismissed as
    abandoned.