COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Persaud,

2013 ONCA 684

DATE: 20131108

DOCKET:
    C56482

Weiler, MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Persaud

Appellant

Edward L. Burlew, for the appellant

Lisa Csele, for the respondent

Heard: November 7, 2013

On appeal from the
    conviction entered on September 10, 2010 by Justice David L. Corbett of the Superior
    Court of Justice, sitting without a jury.

APPEAL
    BOOK ENDORSEMENT

[1]

The appellant appeals
    his conviction under ss 153(3) and 160 of the
Customs Act
. The appellant raises three issues: 1) the
    reasons for judgment are insufficient in that they are speculative and vague in
    various places; 2) the trial judge applied the wrong burden of proof; 3) the
    verdict is unreasonable.

[2]

We disagree. Firstly,
    the trial judges reasons for judgment are sufficient. The judge carefully
    addressed the issue of whether or not the appellant knowingly participated in
    defrauding Canada Customs by retaining rather than remitting duties and taxes
    received. The judge set out pieces of evidence which show that the appellant
    was the directing mind of a small company and that he instructed his employees
    to commit fraud. The conviction is rooted in the evidence of witnesses who did
    not participate in the fraud. The reasons show that the fact that it was the
    appellant who made alternative arrangements when the actions of some of his
    clients would have led to the discontinuation of the fraud clearly demonstrates
    his knowledge of the fraudulent activity.

[3]

Secondly, the trial
    judge did not misapply the burden of proof in relation to the appellant. His
    comments with respect to other persons not before the court were irrelevant.

[4]

Thirdly, the verdict is
    reasonable. There was ample evidence upon which the trial judge could come to
    the conclusion he did.

[5]

Accordingly the appeal
    is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Purtill, 2013 ONCA 692

DATE: 20131113

DOCKET: C57032

Weiler, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bonita Purtill

Applicant/Appellant

Robert Sheppard, for the appellant

Riun Shandler, for the respondent

Heard and released orally: November 5,
    2013

On appeal from the sentence imposed on September 19,
    2012 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant seeks leave to appeal her sentence of six years for
    criminal negligence causing death and bodily harm and impaired driving causing
    death and bodily harm and one year consecutive for refusal to provide a breath
    sample.  She has abandoned her inmate appeal against conviction.

[2]

On the sentence appeal, the appellant submits that the overall sentence
    is excessive and beyond the upper limit of the appropriate range.  Moreover, the
    appellant contends, the trial judge erred in failing to articulate why the
    upper range of five years submitted by the defence was inadequate.  Finally,
    the appellant says that the sentencing judge failed to consider the principle
    of totality.

[3]

We do not agree with these submissions.

[4]

There is no fixed term upper limit for criminal negligence causing death
    or impaired driving causing death.  The facts of the case must govern.
    Furthermore, the latter offence has attracted a sentence in the eight year
    range.  See
R. v. Kummer
[2011] O.J. No. 234 (Ont. C.A.) which
    involved a first time offender who pled guilty.  In this appeal, a five-month-old
    baby was killed and his mothers back broken as a result of the appellants
    offences.  While the appellant showed remorse, she had a prior, albeit dated,
    criminal record for impaired driving.  Furthermore, there was no error in the
    sentencing judges imposition of a consecutive sentence for the offence of
    refusal to provide a breath sample.  Counsel acknowledges that a consecutive
    sentence for this offence was appropriate.  The seven year sentence was not
    unduly long or harsh in the circumstances and we are satisfied that the
    sentence does not offend the totality principle.

[5]

The sentencing judges decision is entitled to deference and the
    sentence is fit.

[6]

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

K.M. Weiler J.A.

David Watt J.A.

S.E. Pepall J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S.H., 2013 ONCA 676

DATE: 20131106

DOCKET: C55981

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.H.

Appellant

Michael W. Caroline, for the appellant

Davin Michael Garg, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered on May 9, 2012 and
    the sentence imposed on September 7, 2012 by Justice R. Zisman of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

We would not give effect to the grounds of appeal raised by the
    appellant.

[2]

In the circumstances of this case, the spontaneous way in which the complaint
    came out was admissible as part of the narrative and provided context for
    assessing the complainants credibility. See
R. v. DiNardo
at para.
    39. We are satisfied that the trial judge was entitled to use the evidence in
    this way and that she did not use the contents of the statement to corroborate
    the complainants evidence.

[3]

We have not been persuaded that the trial judge misapprehended the
    evidence in any material way. For example, contrary to the submission of the
    appellant it was open to the trial judge to find that the appellant did deny
    being humiliated by his wifes infidelity and that in the context of this case,
    that assertion defied common sense.

[4]

We do not agree that the trial judge unfairly applied stricter scrutiny to
    the defence evidence and the complainants evidence. The focus of the trial
    judges comments were on the inconsistences in the trial testimony, which there
    were several in the appellants evidence, unlike the complainants evidence. It
    may be that the trial judge placed more emphasis on the manner in which the
    fall down the stairs was reported by the appellant and his mother, than was justified
    by the evidence. However, this was only one of several reasons the trial judge
    gave for rejecting the appellants evidence. We are satisfied the result would
    have been the same even without the emphasis placed on the fall.

[5]

Accordingly, the appeal is dismissed. Counsel confirmed that the
    sentence appeal is abandoned. Accordingly, the sentence appeal is dismissed as
    abandoned.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Rocheleau, 2013 ONCA 679

DATE: 20131112

DOCKET: C52685

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Rocheleau

Appellant

Frank Addario and Joseph Heller, for the appellant

Deborah Krick, for the respondent

Nancy Dennison and Andrea Bourke, for the intervener the
    Attorney General of Canada

Heard: February 19-22, 2013

On appeal from the conviction entered by Justice Jack D.
    Nadelle of the Ontario Court of Justice on December 1, 2009, and from the
    sentence imposed on August 20, 2010, with reasons reported at [2010] O.J. No.
    5308.

Tulloch J.A.:

I

Overview

[1]

The appellant pled guilty to 24 charges arising out of four robberies
    and three break and enters that occurred between October 6, 2008, and March 2,
    2009. The appellant received sentences totalling seven years and nine months
    imprisonment, having been given three months credit for his pre-sentence
    custody. He appeals conviction and sentence.

[2]

The conviction appeal focuses on the multiple convictions arising out of
    three of the robberies to which the appellant pled guilty. In respect of each
    of those robberies, the appellant pled guilty to and was convicted of:

·

robbery with a firearm;

·

unlawful confinement of employees at the places robbed; and

·

the use of a firearm in the commission of the unlawful confinement
    of the employees.

[3]

The appellant submits that the
Kienapple
principle precludes
    convictions on all three charges arising out of the same delict:
R. v.
    Kienapple
, [1975] 1 S.C.R. 729. Counsel submits that the appellant should
    have been convicted of only the charge of robbery with a firearm and that the
    unlawful confinement and use of a firearm in the commission of an unlawful
    confinement charges should have been stayed. In his submissions, counsel
    directed most of his attention to the use of a firearm in the commission of an
    unlawful confinement charges. This emphasis is understandable in that those
    charges attracted a mandatory one-year minimum sentence that had to be made
    consecutive to the robbery sentences.  In practical terms, staying the unlawful
    confinement charges would have no effect on the total sentence, but staying the
    use of a firearm in the commission of an unlawful confinement charges could
    reduce the total sentence by three years.

[4]

The appellant also appeals his sentence. He argues that the combination
    of the requirement in s. 85(4) of the
Criminal Code
that any sentence
    imposed for the use of a firearm in the commission of an indictable offence be
    consecutive to any other punishment for offences arising out of the same event
    and consecutive to any other sentence being served at the time is
    unconstitutional when combined with the mandatory four-year minimum penalty for
    use of a firearm in the commission of a robbery. This submission assumes that
    the appellants conviction appeal has not succeeded and the court has affirmed
    his convictions on the charges of using a firearm in the commission of an
    unlawful confinement.

[5]

I would allow the conviction appeal. In my view, the appellant was
    properly convicted of both the robbery with a firearm and the unlawful
    confinement charges relating to each robbery. I would hold, however, that the
    charges alleging the use of a firearm in the commission of the unlawful
    confinement should have been stayed given the convictions on the armed robbery
    charges.  In my view, entering convictions on both offends the
Kienapple
principle.

[6]

In light of my holding that the use of the firearm charges should be
    stayed, there is no need to address the appellants argument that the
    combination of the mandatory minimum penalties for armed robbery and using a
    firearm in the commission of an indictable offence for charges arising out of
    the same incident results in cruel and unusual punishment, contrary to s. 12 of
    the
Charter of Rights and Freedoms
.

[7]

Although I would stay the charges of using a firearm in the commission
    of an unlawful confinement and thereby eliminate the three one-year consecutive
    sentences imposed for those offences, I agree with the Crowns contention that,
    even if those charges are stayed, sentences totalling eight years imprisonment
    were appropriate. The appellant was convicted of a number of very serious
    charges.  Apart from the minimum sentences imposed on the three charges of
    using a firearm in the commission of an unlawful confinement, the applicable
    mandatory minimum penalties required a sentence of at least five years.
[1]
I would vary the sentences imposed on the armed robbery convictions to maintain
    the total sentence imposed by the trial judge.

II

The Facts

[8]

A chart outlining the charges, grouped by location and listed
    chronologically, is set out below.  A summary of the relevant facts follows:

SUMMARY OF
    GUILTY PLEAS AND SENTENCE

Count

Date

Place

Offence

Section

Sentence

1

Oct.6/08

534
          Mutual St.

B&E

348(1)(b)

suspended
          sentence

2

Oct.15/08

Orleans
          Sportsplex

B&E

348(1)(b)

suspended
          sentence

7

Theft
          Over

334(a)

suspended
          sentence

11

Conspiracy

465(1)(c)

suspended
          sentence

12

Dec.2/08

Macs
          Convenience Store

Robbery

344(1)(b)

4
          years concurrent

15

Use
          Imitation Firearm

85(2)

1
          year consecutive

16

Dec.8/08

Food
          Basics Grocery Store

B&E

348(1)(b)

suspended
          sentence

17

Forcible
          Confinement

279(2)

suspended
          sentence

21

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent

23

Use
          Firearm*

85(1)

1
          year consecutive

34

Conspiracy

465(1)(c)

suspended
          sentence

35

Dec.22/08

Food
          Basics Grocery Store

B&E

348(1)(b)

suspended
          sentence

36

Forcible
          Confinement

279(2)

suspended
          sentence

39

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent

41

Use
          Firearm*

85(1)

1
          year consecutive

50

Conspiracy

465(1)(c)

suspended
          sentence

51

Jan.8/09

Independent
          Grocer Store

B&E

348(1)(b)

suspended
          sentence

52

Forcible
          Confinement

279(2)

suspended
          sentence

58

Disguise
          with Intent

351(2)

suspended
          sentence

59

Use
          Firearm*

85(1)

9
          months consecutive**

68

Point
          Firearm

87(2)

suspended
          sentence

74

Conspiracy

465(1)(c)

suspended
          sentence

75

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent

77

Mar.2/09

355
          Gilmour St.

Conspiracy
          (B&E)

465(1)(c)

suspended
          sentence

*
          These charges were amended to using a firearm in the commission of the
          indictable offence
under section 279(2)
.

**
          The one year sentence was reduced by three months for credit for time served
          prior to the appellants release on bail.

A.

October 6, 2008 Break and enter

[9]

Brian Henry and Jonathan Lascelles broke into a garage that had been
    converted into a home office. Several items were stolen, including a 308 pump action
    rifle and welding tanks. The appellant did not enter the site of the break-in,
    but remained in the getaway van, acting as a lookout. The van was used to
    remove the stolen property from the site of the break-in. Some of the stolen
    property, including the rifle, was used in subsequent robberies.

B.

October 15, 2008 break and enter

[10]

At
    about 5:00 a.m. on October 15, 2008, Henry and Lascelles entered the Orleans Sportsplex
    by breaking a window. Both were armed, one with a pipe and the other with a
    baseball bat. They bound the custodian with duct tape and proceeded to look for
    cash. Cash boxes and two small safes were found containing about $6,000. An
    attempt to access an automated teller machine by cutting into it with the
    acetylene torches that Henry and Lascelles had brought with them proved
    unsuccessful. Henry and Lascelles took the custodians car keys before they
    fled the scene.

[11]

During
    the break-in at the Sportsplex, the appellant waited outside in the vehicle
    acting as a lookout. He picked Henry and Lascelles up when they exited the
    Sportsplex and drove them from the scene.

C.

December 2, 2008 robbery

[12]

On
    the evening of December 2, 2008, Henry and the appellant were driving around
    looking for a store to rob. Henry entered a convenience store wielding an
    imitation style pellet pistol.  He grabbed a female customer and made her
    remain inside the store. He also ordered a second customer to turn away from
    him. Henry pointed the imitation revolver at the clerk and demanded money.  The
    clerk turned over $120 from the cash drawer. He demanded the money in the safe,
    but the clerk explained he could not open the safe. Henry fled the store. The
    appellant was waiting for him in the getaway car. The appellant had been
    keeping watch while Henry was in the store. When Henry entered the car, the
    appellant drove away and Henry changed into clothing that had been placed in
    the trunk of the vehicle.

[13]

It
    is noteworthy that this robbery, unlike the three described below, did not involve
    the use of a firearm and therefore did not attract a four-year mandatory
    minimum penalty. The offence did, however, involve the use of an imitation
    firearm which led to a conviction under s. 85(2) of the
Criminal Code
and
    a mandatory minimum one-year consecutive penalty. I do not understand the
    appellant to challenge either the constitutionality or the fitness of the
    one-year consecutive sentence imposed on that charge.

D.

December 8, 2008 armed robbery

[14]

This
    is the first of the three incidents that gave rise to the appellants
    convictions on charges of robbery with a firearm, which carries a four-year
    minimum sentence of imprisonment; unlawful confinement; and using a firearm in
    the commission of that confinement, which carries a one-year consecutive
    minimum sentence of imprisonment.  Under the relevant sentencing provisions,
    the appellant had to be sentenced to at least five years imprisonment for the
    offences arising out of each of these three robberies.

[15]

The
    appellant argues that only the conviction on the charge of robbery with a
    firearm should stand and that the other two charges should have been stayed
    under the
Kienapple
principle. The facts underlying the offences are
    potentially significant to the application of the
Kienapple
principle.
    It is best to quote the relevant parts of the Agreed Statement of Facts filed
    on sentencing:

On the 8th of December 2008 at around 12:40 a.m., Brian HENRY
    and Matthew ROCHELEAU attended the Food Basics grocery store located at 1465
    Merivale Road, Ottawa, Ontario. The target was the safe. The route to and from
    the store was pre-planned using Google Earth.

HENRY entered into the store through the roof hatch and let
    ROCHELEAU in through the rear door to the store after by-passing the door alarm
    connection. HENRY knew he could gain access from a previous trip to plan the
    robbery.

HENRY and ROCHELEAU hid in the compressor room until the
    employees working the overnight shift attended the lunch room. Employees Mr.
    Alister Head, Mr. Wolf Wright and Mr. Michael Rich were confronted by HENRY and
    ROCHELEAU both of whom were armed. HENRY with the 308 pump action rifle and
    ROCHELEAU with the imitation revolver style pellet pistol [sic]. The employees
    were forced to empty their pockets onto the table. Mr. Head was forced to duct
    tape Mr. Wright and Mr. Rich around the hands and feet. They were then taken to
    separate washrooms and duct taped to the stalls.

At this point Mr. Head was scared and advised HENRY and
    ROCHELEAU that he would co-operate with them to ensure that no one got hurt.
    Mr. Head informed them that he had the codes to the alarms and that there was a
    fourth employee, Mr. Shawn St. John, outside having a cigarette.

Mr. Head was forced to lure Mr. St. John into an area of the
    store where he could be confronted and controlled by HENRY. Mr. St. John was
    taken to the lunch room where he was duct taped and placed in the compressor
    room.

Mr. Head was taken to the cash office by HENRY and forced to
    deactivate the alarm. Mr. Head was then duct taped by HENRY and placed in the
    main office.

HENRY and ROCHELEAU then returned to their vehicle which was
    parked near the rear of the store. They collected tools in preparation to open
    the store safe. The tools included oxygen acetylene tanks and torches to cut
    into the safe.

After returning to the store HENRY and ROCEHEALU believed they
    saw unmarked police cars in the area and fled the area in the ROCHELEAU family
    van. When they left HENRY and ROCHELEAU left a rifle leaning on the fence
    behind the store.

After a period of time passed, Mr. Head fled through the front
    of the store and called the police. Officers arrived at the Food Basics and
    cleared the building. The store was processed by officers and a number of
    pieces of evidence were found.

HENRY was the driving force behind this robbery and the leader.
    HENRY directed ROCHELEAU as to what to do. ROCHELEAU did not speak very much
    during the robbery and followed HENRYs orders. ROCHELEAU did not point the
    imitation pistol at any of the employees or touch them. The employees stated
    that neither HENRY nor ROCHELEAU [were] aggressive towards them.

HENRY and ROCHELEAU were wearing black balaclavas during the
    robbery and gloves to conceal their identities. They also communicated when not
    near one another using walkie-talkies with ear pieces in place.

Nothing was stolen from the Food Basics during this incident
    and the employees were not injured.

E.

December 22, 2008 armed robbery

[16]

This
    incident also resulted in convictions for armed robbery, unlawful confinement,
    and using a firearm in the commission of the offence of unlawful confinement.
    Once again, it is best to set out the relevant parts of the Agreed Statement of
    Facts:

On the 22nd of December 2008 in the early morning hours, Brian
    HENRY and Jonathan LASCELLE entered the Food Basics grocery store at 1465
    Merivale Road, Ottawa, Ontario. The same store that was involved in fourth
    incident on the 8
th
of December 2008 [sic].

HENRY and LASCELLE entered the store through the roof hatch.
    Once inside they hid in the compressor room which is located adjacent to the
    lunch room.

At around 1:30 a.m. the overnight staff attended the lunch room
    for their first break. HENRY and LASCELLE who were both armed with firearms, a
    shotgun and the imitation style pellet pistol, confronted employees Mr. Michael
    Rich, Mr. Wolfe Wright, and Mr. Terry Thompson with their weapons drawn. They
    were all duct taped and secured in the washrooms. The employees were forced to
    empty their pockets.

Mr. Rich and Mr. Wright were also present during the fourth
    incident on the 8th of December 2008. They suspected the males were the same
    ones from the previous incident. Mr. Wright stated that HENRY asked who had
    gotten loose the last time.

Mr. Thompson observed that HENRY had a bag with bolt cutters in
    it and they took his car keys. HENRY used the bolt cutters to gain entry to one
    room in the store.

HENRY and LASCELLE attempted to by-pass the rear door alarm
    connection when they inadvertently triggered the alarm. Both HENRY and LASCELLE
    fled the Food Basics. HENRY and LASCELLE fled in the ROCHELEAU family van which
    they had driven to 1465 Merivale Road. Matthew ROCHELEAU fled from his look out
    position on Merivale Road in his own vehicle, a Hyundai Elantra.

ROCHELEAU was the lookout for this robbery and remained in his
    vehicle during the incident.

F.

january 8, 2009 armed robbery

[17]

This
    is the third incident giving rise to convictions for armed robbery, unlawful
    confinement, and using a firearm in the commission of unlawful confinement. The
    relevant portions of the Agreed Statement of Facts are set out below:

On the 7th of January 2008 or days earlier, Brian HENRY
    attended the Independent Grocer store at 1619 Orleans Boulevard, Ottawa,
    Ontario. During this time in the store during business hours HENRY was
    gathering information for an upcoming robbery. HENRY also stole several
    Independent Grocer uniforms before leaving.

On the 8th of January 2008 in the early morning hours, HENRY
    and Jonathan LASCELLE entered the Independent Grocer through the roof of the
    building and hid within the store. They were outfitted in the Independent
    Grocer uniforms stolen by HENRY the previous day.

At around 1:42 a.m. HENRY and LASCELLE left their hiding spot
    and rounded up the overnight employees. They were both armed with a shotgun and
    an imitation style revolver pistol. They were wearing balaclavas and gloves to
    disguise their identities.

Six employees were bound with zip ties and secured within the
    employee washrooms.

HENRY and LASCELLE went to search the various kiosks within the
    store including the postal outlet and photo shop. The cash office motion alarm
    and door contact system was defeated to allow access to the room without
    setting off any alarms.

A door contact near the rear loading door was compromised so
    the alarm would not go off when the door was opened. Matthew ROCHELEAU entered
    through this door. ROCHELEAU brought the oxygen acetylene torches into the
    store to allow HENRY and LASCELLE to cut into the safe. They decided that there
    was not enough time to cut into the safe.

The store keeps the cash flow tills at each cash register in
    preparation for the following day. HENRY and LASCELLE removed each cash tray
    from the register. HENRY and LASCELLE also took a number of computer components
    from the cash office and managers office. They believed they were taking
    surveillance footage from the security cameras. This was not the case. A grey
    safe was also taken but did not contain any money.

HENRY stole the keys from Mr. ODonnell for his vehicle. His
    vehicle was driven to the rear of the store where it was loaded up with goods
    and driven away by one of the parties.

ROCHELEAU again was the driver for this robbery and acted as
    the look out. HENRY, LASCELLE and ROCHELEAU all communicated via walkie-talkies
    through headsets.

HENRY and LASCELLE carried the safe out to the van. ROCHELEAU
    used bolt cutters to cut through a fence to allow the safe to be put through
    the fence to be loaded into the ROCHELEAU van that was at the end of the
    street.

ROCHELEAU re-entered the store to assist HENRY and LASCELLE
    load the property into the vehicles. ROCHELEAU was wearing a black balaclava
    and gloves. LASCELLE passes him the Remington 12 guage shotgun from the 534
    Mutual Street break and enter at one point and ROCHELEAU slings it over his
    shoulder before leaving the loading area.

G.

March 2, 2009 Break and enter

[18]

On
    March 2, 2009, the police apprehended the appellant loading a box into a van
    owned by his mother. He was in possession of various burglar tools.  Further
    investigation determined that one of the adjacent houses had just been
    burglarized. The police arrested the appellant, but his accomplice, Henry,
    escaped. On questioning, the appellant admitted that he had committed the
    break-in. He made no mention of his accomplice or any other offences.  He was
    released on bail.

H.

the appellants co-operation with police

[19]

About
    a week after his arrest on the break-in, the appellant returned to the police
    station with his mother. He gave the police a full statement describing in
    detail the various offences he had committed. He identified Henry and Lascelles
    as his accomplices. Investigation by the police confirmed the information
    provided to them by the appellant and led to the arrest of Henry and
    Lascelles.  The appellant testified against both men who subsequently pled
    guilty and received lengthy jail sentences. It is unlikely that the crimes to
    which the appellant confessed would have been solved without his confession.

I.

the appellants role in the offences

[20]

When
    the appellant met Henry he was 22 years old and had no criminal record or any
    connection to the criminal underworld. He was naïve and came from a protective
    and loving family.

[21]

The
    appellant quickly came under the influence and domination of Henry who espoused
    a rather bizarre world view. The appellant was very much the follower
    throughout the crime spree in which he was involved. He never directly
    assaulted or threatened any of the victims and never pointed a firearm or any
    other weapon at anybody.

III

The Trial Judges Reasons for Sentence

[22]

The
    trial judge rejected the argument that the forcible confinement charges and/or
    the companion use of a firearm charges should be stayed. In his view, there was
    no legal nexus between the offences that would justify the application of the
Kienapple
principle. The trial judge also rejected the argument that the combination of
    the mandatory minimum for armed robbery (four years) with the mandatory minimum
    for use of a firearm in the commission of an indictable offence (one year
    consecutive) breached s. 12 of the
Charter
.

[23]

Although
    the trial judge held that the
Kienapple
principle did not preclude
    convictions on all the charges to which the appellant had pled guilty and
    rejected the appellants constitutional argument, he was alive to the many
    mitigating factors arising out of the appellants role in the offences and his
    personal circumstances. The trial judge eventually mitigated the total sentence
    imposed in three ways. First, he imposed the minimum sentences available for
    all offences that carried a mandatory minimum. Second, he made the sentences
    imposed on all the robbery charges concurrent to each other. Third, he did not
    impose custodial sentences on any of the break and enter related charges. In
    short, assuming the
Kienapple
principle had no application and the
    mandatory minimums were constitutional, the trial judge imposed the lowest
    sentence he could impose.

IV

The Conviction Appeal

[24]

This
    appeal engages the
Kienapple
principle, which provides that where the
    same transaction gives rise to two or more convictions on offences with
    substantially the same elements, the accused should be convicted only of the
    most serious offence:
Kienapple
; and
R. v. R.K.
(2005), 198
    C.C.C. (3d) 232 (Ont. C.A.), at para. 28. The
Kienapple
principle is
    designed to protect against undue exercise by the Crown of its power to
    prosecute and punish:
R.K.
, at para. 29. It applies where there is
    both a factual and legal nexus between the offences:
R. v. Prince
,
    [1986] 2 S.C.R. 480. The requisite factual nexus between the offences is
    established if the charges arise out of the same transaction, whereas the legal
    nexus is established if the offences constitute a single criminal wrong:
R.K.
,
    at para. 32.

[25]

More
    specifically, this appeal involves two potential applications of the
Kienapple
principle. The first potential application of the principle arises out of the
    robbery and unlawful confinement offences. The second possible application of
    the principle arises out of the offences of robbery with a firearm and use of a
    firearm in the commission of unlawful confinement.

[26]

Notably,
    if the unlawful confinement convictions are stayed pursuant to
Kienapple
,
    then the conviction for using a firearm in the commission of unlawful
    confinement must be quashed. Without a conviction on the unlawful confinement
    charges, there can be no conviction on the charge of using a firearm in the
    commission of the confinement:
R. v. Pringle
, [1989] 1 S.C.R. 1645
.

[27]

Turning
    first to the convictions for forcible confinement, I do not believe that these
    convictions should be stayed pursuant to
Kienapple
. It is true that
    there is a factual nexus between the robbery and forcible confinement convictions.
    The robberies and forcible confinements occurred at the same time and place.
    They were motivated by a single, common objective. No significant intervening
    events severed the factual nexus between these convictions. In short, the
    offences arose out of the same transaction.

[28]

I
    am not satisfied, however, that there is a sufficient legal nexus between the
    robberies and unlawful confinement convictions. The offences of robbery and unlawful
    confinement protect different societal interests.  The offence of confinement
    is intended to protect individual autonomy and bodily integrity.  As described
    by the Supreme Court of Canada in
R. v. Pritchard
, 2008 SCC 59, [2008]
    3 S.C.R. 195, at para. 24, unlawful confinement involves the following:

The authorities establish that if for any significant period of
    time [the victim] was coercively restrained or directed contrary to her wishes,
    so that she could not move about according to her own inclination and desire,
    there was an unlawful confinement within s. 279(2)

In discussing robbery as it relates to confinement,
    the court said, at para. 27:

Although every robbery involves an element of violence or
    threatened violence, the level of violence does not always occasion confinement
    of the significant duration required to satisfy s. 279(2) Not all robberies
    involve the domination of the victim.

[29]

On
    the facts as admitted in this case, there was domination and a coercive
    restraint of the victims of sufficient length to attract liability for
    confinement discrete from the liability for robbery. Nor, in my view, could the
    additional impact on the individuals freedom of movement and bodily integrity
    be seen as simply incidental to the robbery. The different societal interests
    protected by the two crimes are sufficient to negate any legal nexus between
    the robberies and unlawful confinements. Accordingly, I would not set aside the
    appellants unlawful confinement convictions pursuant to
Kienapple
.

[30]

However,
    even if the convictions for unlawful confinement stand, there remains the
    question of whether it offends the
Kienapple
principle to convict of
    both using the firearm in the robberies and using the firearm in the commission
    of the unlawful confinements. Was there more than one use of the firearm such
    that multiple convictions are appropriate?

[31]

Applying
    the
Kienapple
principle once more, this time to the offences of robbery
    with a firearm and use of a firearm in the commission of unlawful confinement,
    the factual nexus is again satisfied. The offences arise out of the same
    transaction. They were committed at the same time and place, in furtherance of a
    single, common objective. No significant intervening events severed the factual
    connection between the offences.

[32]

The
    legal nexus is also satisfied. In the circumstances of this case, the two
    offences  use of a firearm in committing robbery under s. 344 and use of a
    firearm in committing forcible confinement under s. 85  do not promote
    different societal interests, protect different victims or prohibit different
    consequences. No distinction can be drawn in this case between the use of a
    firearm in committing robbery and the use of a firearm in committing forcible
    confinement. There are no distinguishing elements between the two offences.
    Because the offences as charged are legally indistinguishable, the appellant
    was effectively punished twice for the same criminal wrong.

[33]

My
    conclusion with respect to the application of the
Kienapple
principle
    is consistent with the legislative history of ss. 85 and 344. Prior to 1977,
    there was no separate offence for using a firearm in the course of another
    criminal offence. The
Criminal Law Amendment Act, 1977
, S.C. 1976-77,
    c. 53, established such an offence, which could be charged in conjunction with
    any indictable offence. In 1995, the
Firearms Act
, S.C. 1995, c. 39,
    incorporated the aggravating feature of firearm use, and the associated
    mandatory minimum sentence, directly into the offence of robbery. At the same
    time, it excluded the application of the offence in s. 85 to robbery since
    firearm use was incorporated into the offence of robbery. This legislative
    history evinces an intention on the part of Parliament to have the offence of
    robbery subsume the aggravating feature of firearm use. It would be
    inconsistent with this intention to maintain the appellants conviction for
    firearm use based on the offence of unlawful confinement when the aggravating
    feature of firearm use has already been captured by the robbery conviction.

V

The Sentence Appeal

[34]

Given
    my conclusion on the conviction appeal, it is unnecessary to consider the
    appellants constitutional challenge to the combined, consecutive sentences
    prescribed by ss. 85 and 344 of the
Criminal Code
.

[35]

However,
    notwithstanding the disposition of the conviction appeal, I would vary the
    appellants sentences on the armed robbery convictions and impose concurrent
    seven-year sentences on each of these counts. These are serious offences which,
    as discussed, include the aggravating feature of firearm use. They carry a
    maximum sentence of life imprisonment. Having regard to the circumstances of
    these offences and the mitigating factors identified by the trial judge, the
    total sentence imposed  eight years less three months credit for time served
    remains appropriate and fitting.

VI

Conclusion

[36]

For
    these reasons, I would set aside the appellants convictions for using a
    firearm in the commission of an unlawful confinement, but maintain the total
    sentence of seven years, nine months imprisonment imposed by the trial judge.

Released: DD November 12, 2013

M.H. Tulloch J.A.

I agree. D.H.
    Doherty J.A.

I agree. S.T. Goudge
    J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.A. Blair
    J.A.

[1]
The armed robbery counts (Counts 21, 39, and 75) carried mandatory minimum
    penalties of four years. The charge of using an imitation firearm in the
    commission of an indictable offence carried a mandatory minimum of one year
    consecutive, for a total of five years.


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
,
R.S.C. 1985, c. C-46
shall
    continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211,
    212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred to
    in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under section
    163.1, a judge or justice shall make an order directing that any information
    that could identify a witness who is under the age of eighteen years, or any
    person who is the subject of a representation, written material or a recording
    that constitutes child pornography within the meaning of that section, shall
    not be published in any document or broadcast or transmitted in any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Saliba, 2013 ONCA 660

DATE: 20131101

DOCKET: C56071

Doherty, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Saliba

Appellant

Brian Saliba, appearing in person

Greg Skerkowski, for the respondent

Heard:  October 16, 2013

On appeal from the acquittals entered by Justice D.K.
    Gray of the Superior Court of Justice on June 29, 2012.

ENDORSEMENT

[1]

Duty counsel submits that the trial judge erred in concluding that the
    Crown had proved beyond a reasonable doubt that Mr. Saliba did not take all
    reasonable steps to ascertain H.s age before engaging in sexual activity. According
    to counsel, the trial judge failed to consider, in light of H.s stated age on
    her profile, her appearance, and her actions when she first met Mr. Saliba, that
    no further steps were necessary to meet the requirement of s. 150.1(4) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[2]

There are circumstances in which a reasonable person would engage in
    sexual activity based exclusively on the appearance of the complainant without
    taking further steps to ascertain the complainants age.  The circumstances of
    this case are, however, far from that hypothetical.  As the trial judge noted,
    Mr. Saliba was 38 years of age.  On his evidence, he believed H. was eighteen.
    This belief was based exclusively on her profile on the website and on her appearance.
    Mr. Saliba engaged in sexual intercourse with H. on the very first time he met her
    without taking any further steps to determine her age.

[3]

The over 20-year age difference between Mr. Saliba and H., the fact that
    even on her stated age she was very young and close to the age of 16, combined
    with the circumstances in which the sexual activity occurred, would all compel
    a reasonable person to take significant steps to ascertain H.s age before
    proceeding with sexual activity.  Mr. Saliba took none.

[4]

The conviction appeal is dismissed.

[5]

The trial judge imposed sentences totalling two years in relation to the
    sexual activity with H. and two and one-half years for the possession of child
    pornography charge.  The sentences were made consecutive.  The trial judge
    viewed the pornography and described it as particularly vile and involving the
    victimization of several young children.  We were not asked to examine that
    material.  We accept the trial judges characterization.

[6]

The offences committed against H. warranted a significant jail term.  The
    possession of child pornography conviction equally merited a significant jail
    term.  Consecutive sentences were entirely appropriate. The totality of the two
    sentences was within the range.  There is no reason for this court to vary the
    sentences.

[7]

The appeal from the convictions relating to H. is dismissed.  Leave to
    appeal sentence is granted and the appeal is dismissed.

Doherty J.A.

R.A. Blair J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Smickle, 2013 ONCA 678

DATED:  20131112

DOCKET: C55082

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Leroy Smickle

Respondent

Riun Shandler and Andreea Baiasu, for the appellant

Mark Halfyard, Jeff Hershberg and Breana Vandebeek, for
    the respondent

Moiz Rahman and Nancy Dennison, for the intervener, the
    Attorney General of Canada

Paul F. Monahan and Kimberly Potter, for the intervener,
    the Canadian Civil Liberties Association

Bruce F. Simpson, for the intervener, the John Howard
    Society of Canada

Virginia Nelder and Faisal Mirza, for the intervener,
    the African Canadian Legal Clinic

Scott Hutchison and Danielle Robitaille, for the
    intervener, the Advocates Society

Heard:  February 19-22, 2013

On appeal from the sentence imposed by Justice Anne M. Molloy
    of the Superior Court of Justice in Toronto on February 13, 2012, with reasons reported
    at 2012 ONSC 602, 280 C.C.C. (3d) 365.

Doherty J.A.:

I

overview

[1]

The respondent was charged with possession of a loaded prohibited
    firearm contrary to s. 95 of the
Criminal Code
, R.S.C. 1985, c. C-46
and other related
    firearm offences.  The Crown elected to proceed by indictment on the s. 95
    charge and the respondent re-elected trial by judge alone.

[2]

The respondent testified that he was not in possession of the gun, but
    the trial judge accepted the evidence of the Crown witnesses and convicted on
    the s. 95 charge.  On sentencing, the trial judge held that the three-year
    mandatory minimum penalty, applicable because the Crown had proceeded by
    indictment, infringed the respondents rights under ss. 12 and 7 of the
Canadian
Charter of Rights and Freedoms
and could not be justified under s. 1
.  She declared the mandatory
    minimum of no force or effect.  The trial judge proceeded to impose a one-year
    conditional sentence which she then reduced to a five-month sentence to take
    into account pre-sentence incarceration and the respondents strict bail
    terms.

[3]

The Crown appeals arguing that the three-year mandatory minimum does not
    infringe ss. 12 or 7 of the
Charter
.  The Crown further contends that
    the trial judge made findings of fact on sentencing that were not available on
    the trial record.  Crown counsel asks this court to hold that the mandatory
    minimum of three years is constitutional and to impose a sentence that reflects
    both the mandatory minimum and the facts of this case.

[4]

For the reasons set out in the companion case of
R. v. Nur
,
    2013 ONCA 677, I would hold that the mandatory minimum does breach s. 12 of the
Charter
.
Again, for
    the reasons set out in
Nur
, I would hold that s. 95 does not infringe
    s. 7 of the
Charter
.

[5]

I agree with the Crowns submission that the trial judge made several
    findings of fact on sentencing that have no support in the record.  In my view,
    the sentence imposed by the trial judge, even without a three-year mandatory
    minimum penalty, was totally inadequate.  In keeping with the submissions of
    counsel during oral argument, I would give counsel an opportunity to make
    further submissions as to the appropriate sentence.

II

the evidence at trial

[6]

On March 9, 2009 just before 2:00 a.m., the police executed a search
    warrant at an apartment unit on the 15
th
floor in a high-rise
    apartment building in Toronto.  The police were searching for firearms.  The
    apartment unit was leased to a man named Rojohn Brown.

[7]

The officers made a dynamic entry into the apartment unit.  The door
    was smashed using a battering ram and several members of the Emergency Task
    Force rapidly entered the apartment in a single file.  The second officer to
    enter the apartment threw a distraction device (also known as a flash-bang) into
    the living room area.  That device distracts and disorients anyone who may be present
    by making a very loud noise and causing a very bright flash of light.

[8]

The first officer to enter the apartment testified that as he was entering
    the apartment, and before the distraction device went off, he saw a man, later
    identified as the respondent, who appeared to be getting up from the couch as
    the first officer entered the apartment.  This mans back was to the door and
    he appeared to be turning toward the door.  He had a handgun in his left hand
    and his laptop computer was falling off his lap or tumbling out of his hand.

[9]

At the same time as the first officer saw the respondent rising from the
    couch, the second officer threw the distraction device into the living room,
    resulting in a loud bang and a very bright light.  The respondent dropped the
    gun and fell to the ground as ordered by the police.  He was subdued without
    any resistance.

[10]

A
    Colt 25-calibre semi-automatic handgun, fully loaded with the hammer cocked to
    fire, was found beside the couch.  The weapon is a prohibited firearm within
    the meaning of s. 95.  Fortunately, the weapon did not discharge when the
    respondent dropped it.

[11]

The
    respondent was placed under arrest and removed from the apartment unit.  The
    police found other firearms in the bedroom.  There was no evidence that the
    respondent lived in the apartment or that he was aware of the other firearms
    that were discovered in the search.

[12]

The
    respondent testified in his own defence.
[1]
The respondent testified
    that he went to visit his cousin, Rojohn Brown, on the evening of March 8
th
.
    He was with his girlfriend.  His girlfriend and Mr. Brown decided to go out,
    but the respondent declined to join them as he had to work the next day.

[13]

The
    respondent indicated that he was chilling on the couch, using his laptop to
    take pictures of himself, when he heard a bang on the door.  He heard two more
    bangs, the door flew open, and the police entered.  According to the
    respondent, he was already in the process of getting down to the floor when the
    distraction device discharged.

[14]

The respondent denied that he was in possession of a handgun when the
    police entered the apartment.  He said, [n]ever had a gun.  Never seen no
    gun.

[15]

By the end of the evidence and submissions, there was one issue: had the
    Crown proved the respondent was in possession of the handgun?  The trial judge,
    after reviewing the respondents testimony, concluded that it was incredible
    and did not leave her with any doubt on the question of possession.  The trial
    judge accepted as accurate the evidence of the police officers, particularly
    the first officer who entered the room and saw the respondent holding the
    handgun.  The trial judge noted that this officers evidence was credible and corroborated
    by the second officer who entered the apartment.  The second officer also saw a
    gun in the respondents hand.

III

findings on sentencing

(i)

The Offender

[16]

The
    pre-sentence report painted a positive picture of the respondent.  He was 27 years
    old at the time of sentencing and did not have a criminal record.  The
    respondent was gainfully employed and was working towards his high school
    diploma.  He was in a relationship and had two children.

(ii)

The Offence

[17]

The
    trial judge made several findings of fact that mitigated the seriousness of the
    offence committed by the respondent.  The Crown submits that many of those
    findings were unsupported by the evidence and were assumptions made by the
    trial judge in the absence of evidence.  Before I examine this submission, I
    will briefly summarize the principles governing fact-finding on sentencing.
    They are not in dispute.

[18]

If
    the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted,
    the Crown must prove that fact beyond a reasonable doubt.  However, the failure
    to prove an alleged aggravating fact beyond a reasonable doubt does not permit
    the trial judge to assume a version of facts most favourable to an accused.  If
    the defence relies on mitigating facts and those facts are not conceded by the
    Crown, the accused must establish those facts on the balance of probabilities:
Criminal
    Code
,
s. 724(3);
R. v.
    Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; and
R. v. Holt
(1983), 4 C.C.C. (3d) 32, at pp. 51-52 (Ont. C.A.), leave to appeal to S.C.C.
    refused: S.C.C.A. No. 474.

[19]

The
    Crown alleged two specific aggravating factors on sentencing.  First, the Crown
    argued that the gun belonged to the respondent, who had brought it to the apartment.
    Second, the Crown submitted that the respondent had cocked the gun in response
    to the arrival of the police at the apartment door.  The trial judge, at paras.
    16-19, found that neither fact was proved beyond a reasonable doubt.  She was
    entitled to come to those conclusions.

[20]

The
    trial judge also made two findings of fact that, in my view, are unassailable.
    She concluded that the respondent never intended to use the gun against the
    police, and she concluded that, when the police arrived, the respondent was
    taking photographs of himself with his laptop and using the gun, as well as
    sunglasses, as props to make himself appear cool.

[21]

The
    trial judge went on to make a number of other findings.  She found that the
    respondent:

·

found the gun somewhere in the apartment (para. 17);

·

had brief possession of the gun (para. 60);

·

did not possess the gun in the presence of anybody else (para.
    60);

·

had no criminal intent in respect of the gun (para. 60);

·

had no reason to believe his conduct put anybody in harms way
    (para. 60); and

·

possessed the gun solely for the purpose of taking his photograph
    with his laptop and appearing cool (paras. 20 and 60).

[22]

The
    Crowns evidence started with the arrival of the police at the apartment around
    2:00 a.m.  The appellant was alone when the police arrived.  He testified that he
    had been in the apartment for about six hours and that his cousin and his
    girlfriend were with him for part of that time.  His evidence that he was never
    in possession of a gun and never saw a gun was rejected by the trial judge and
    could not assist the trial judge in her fact-finding on sentencing.

[23]

There
    was no evidence to support the findings outlined in para. 21.  Specifically,
    there was no evidence about how the respondent came into possession of the handgun
    in the apartment.  To conclude that he found the gun is pure speculation.
    Nor was there any evidence as to how long the respondent was in possession of
    the handgun.  He may have been in possession of it for hours.  There is also no
    evidence that he was alone throughout the time he was in possession of the gun.
    On his evidence, he was in the apartment with two other people for some period
    of time.  Finally, there is no evidence as to the respondents intent in
    respect of the gun and no evidence that his possession was solely for the
    purpose of taking his photograph with his laptop and appearing cool.

[24]

To
    find as the trial judge did, that the respondent just happened to come across the
    handgun while he was alone in the apartment, very shortly before the police
    arrived, and that he did nothing with the gun and had no intention of doing
    anything with the gun other than what he was doing at the very moment the
    police arrived, is to assume the most favourable version of facts for the
    respondent imaginable.  The trial judges approach misses the distinction
    stressed in
Holt
between the Crowns failure to prove an aggravating
    factor and positive findings of fact that may mitigate the penalty.  Thus,
    while it could not be said that anyone else was present while the respondent
    was in the possession of the gun, it equally could not be said that he was
    alone at all times when he was in possession of the gun.  Similarly, while the Crown
    did not prove the intention to commit any other crime while in possession of
    the gun, it could not be inferred from that failure of proof that there was no
    intent to commit further criminal activity.  One is simply left not knowing one
    way or the other.

[25]

The
    respondent, the person who could logically have supplied evidence that may have
    permitted the findings made by the trial judge, chose instead to perjure
    himself and deny possession of the weapon.  It was not for the trial judge to
    fill, through speculation, the factual void created by the respondents perjury.

[26]

I
    must also reject the trial judges characterization of the respondents conduct
    as adolescent preening.  First of all, a 27 year old adult is hardly an
    adolescent.  More importantly, the trial judges characterization minimizes both
    the respondents moral culpability and the danger his conduct posed to others.

[27]

The
    respondent was in possession of a loaded cocked handgun.  On the trial judges
    findings, he was posing with the gun as he photographed himself appearing
    cool.  In other words, he was playing with a fully loaded cocked handgun.

[28]

The
    respondent was not off by himself in some isolated forest playing with a fully
    loaded cocked handgun.  He was in someone elses apartment located in a
    high-rise apartment building.  It is fair to assume there were other people in the
    adjoining apartments who could well have been at risk had the gun accidentally discharged.
    Furthermore, as subsequent events clearly demonstrated, the respondent had no
    idea of, and no control over, what might happen as he was playing with the
    fully loaded cocked handgun.  The police who were engaged in an important and
    dangerous public duty were clearly put at risk by the respondents conduct.  Surely,
    it is a matter of good fortune that someone was not hurt either by the
    accidental discharge of the respondents firearm or by the police response to
    the apparent threat posed by the respondent.

[29]

On
    any realistic view of the respondents conduct, he demonstrated a wanton or
    reckless disregard for the lives and safety of others.  Fortunately, his
    conduct did not cause any actual harm.  His criminally negligent behaviour is,
    however, morally blameworthy in the same way as was the conduct of the accused
    in
R. v. Morrisey
, 2000 SCR 39, [2000] 2 S.C.R. 90, who accidentally
    shot and killed his friend while fooling around with a loaded rifle in his hand.
    No one would ever characterize what the accused in
Morrisey
did as
    drunken tomfoolery.  Nor, in my view, should anyone characterize the
    respondents conduct as adolescent preening.

[30]

The
    respondents conduct falls squarely at the true crime end of the s. 95 spectrum
    I described in
Nur
.  He had a loaded cocked gun in his hand.  He was
    engaged in conduct that posed a serious and immediate risk to others.  He had
    no authority to possess the gun at any place or in any circumstances.  Even
    having regard to the personal circumstances of the offender,
[2]
a sentence approaching or at the maximum reformatory sentence (two years less a
    day) would have been appropriate absent a mandatory minimum sentence.

IV

the section 12 claim

[31]

I
    will not repeat the analysis from
Nur
, but will instead set out my
    conclusions based on the application of that analysis to this record.

[32]

The
    three-year minimum sentence is not cruel and unusual as applied to the
    respondent.  Absent the mandatory minimum, I think the respondent could have
    received a sentence at or near two years less a day.  A sentence of three years
    is excessive and perhaps sufficiently excessive to warrant appellate
    intervention.  It does not, however, reach the level of gross
    disproportionality.

[33]

For
    the reasons set out in
Nur
, the mandatory three-year minimum sentence
    is cruel and unusual punishment when applied to a reasonable hypothetical.
    Consequently, the mandatory minimum infringes s. 12 of the
Charter
.
    The s. 12 violation cannot be saved by s. 1, and pursuant to s. 52 of the
Constitution
    Act, 1982
, it is of no force or effect.

V

the section 7 claim

[34]

For
    the reasons set out in
Nur
, I do not accept that the two-year gap
    between the maximum penalty available if the Crown proceeds summarily (one
    year) and the minimum penalty available if the Crown proceeds by indictment
    (three years) renders s. 95 arbitrary and contrary to the principles of fundamental
    justice.

VI

conclusion

[35]

I
    would hold that the mandatory minimum is of no force or effect.  I would also
    hold that on a proper reading of the trial record, the sentence imposed by the
    trial judge was manifestly inadequate even absent the mandatory minimum.  Having
    determined that the sentence imposed at trial was manifestly inadequate, I
    would normally proceed to impose an appropriate sentence:
Criminal Code
,
s. 687.  However, through no fault of
    the respondent, over 20 months have passed since he was sentenced.  The
    respondent has placed fresh evidence before this court.  As suggested in oral
    argument, I think it is appropriate to give counsel the opportunity to make
    submissions as to the appropriate sentence at this point in time.  Counsel
    should arrange a conference call with me to address the form and timing of
    those submissions.

Released: DD NOV 12 2013

Doherty J.A.

I agree S.T. Goudge J.A.

I agree E.A. Cronk J.A.

I agree R.A. Blair J.A.

I agree M. Tulloch J.A.

[1]
Immediately before the
    respondent testified, the trial judge allowed his counsel to be removed from
    the record.  The respondents evidence was very brief.

[2]
The mitigating features
    of the respondents personal circumstances are noted above, at para. 16.  I
    would observe, however, the absence of one key mitigating factor.  There is no
    evidence of any remorse or any sign of any realization by the respondent of the
    dangerousness of his conduct.  In the absence of that realization, the need for
    specific deterrence is arguably considerably higher.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sothinathan, 2013
    ONCA 727

DATE: 20131129

DOCKET: C56309

Goudge, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Balamuralee Sothinathan

Appellant

Ashley Audet, for the appellant

Greg Skerkowski, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on October 4, 2012
    by Justice Mavin Wong of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that his conviction constitutes an unreasonable
    verdict because the complainants evidence identifying him as the perpetrator
    was inadequate to support that conviction.

[2]

We cannot agree.  The trial judge found that this was not a case of
    identifying a stranger.  The complainant had seen the appellant daily at school
    for a couple of weeks and was in a car beside the appellant with an
    unobstructed view of him for 40 to 45 minutes during the commission of the
    offence.  The trial judge was justified in finding that the complainant was
    sufficiently well-acquainted with the appellant, that the identification could
    be safely relied upon.

[3]

This was enough to allow the trial judge to be properly satisfied with
    the in-dock identification alone.  However, that evidence was supplemented by
    the complainant picking out the appellant with 75 per cent certainty on viewing
    a blurry photograph in the photograph line-up on second viewing, after failing
    to pick out the appellant on the first attempt.  In our opinion, it was open to
    the trial judge to use this as he did, that is, to treat this as additional,
    though limited support for the identification.

[4]

Finally, we do not consider that in these circumstances the conducting
    of the photo line-up in any way undermined the in-dock identification.  Moreover,
    there was ample evidence to supplement the identification evidence and in
    conclusion, this was not an unreasonable verdict.

[5]

The appeal must be dismissed.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

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

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

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

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

WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.B., 2013 ONCA 675

DATE: 20131107

DOCKET: C57039

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. B. (a young person)

Appellant

Craig Parry, for the appellant

Andrew Menchynski, for the respondent

Heard: October 28, 2013

On appeal from the sentence imposed on March 12, 2013 by
    Justice J.E. Allen of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from the disposition imposed by Allen J. on March
    12, 2013 of 12 months closed custody and supervision and 12 months probation on
    a charge of sexual interference. For the following reasons the appeal is
    dismissed.

[2]

Counsel have been very helpful in their submissions on this difficult
    case. The 17-year-old appellant, who had no prior criminal record, committed a
    very serious offence. He gained access to an apartment building lobby, pursued
    the 13-year-old complainant, a complete stranger, grabbed her, groped her
    between her legs and grabbed her breasts. He continued the assault
    notwithstanding the complainants screams and attempts to get away.

[3]

Extensive material was placed before the trial judge to assist him with
    sentencing the appellant. Because of his very unfortunate antecedents detailed
    in the pre-sentence report, the Gladue report and the reports of Dr. Chretien
    and Dr. Dickey, the appellant presents as a high risk to re-offend generally
    and to re-offend sexually. He suffers from a relatively severe conduct disorder
    that could lead to Antisocial Personality Disorder as an adult. He may well
    suffer from a deviant sexual preference which would cause additional serious
    concern. Due to his intellectual limitations, effective treatment is
    problematic. The evidence strongly supported the view that the appellant
    required residence in a structured living situation.

[4]

The two principal issues raised by appellants counsel are the lack of
    credit for pre-sentence custody and the imposition of a sentence that does not
    accord with s. 38 of the
Youth Criminal Justice Act
, S.C. 2002., c. 1
.

[5]

As to the pre-sentence custody, we agree that it would have been helpful
    if the trial judge had explicitly dealt with the issue. That said, we are
    satisfied that this is one of those exceptional cases, as discussed in
R.
    v. E.L.
(2006)
, 210 O.A.C.
    124 (C.A.), and
R. v. N.W.P.
, 2008 MBCA 101, 231 Man. R. (2d) 61, in
    which it was open to the trial judge to not give any credit for pre-sentence
    custody. The lengthy comments by the trial judge in his dialogue with counsel
    and his reasons on March 6, 2013 explain why the maximum disposition was
    required, in this unusual case, to protect the public through rehabilitative
    measures in a highly structured setting.

[6]

We are also satisfied that the disposition is consistent with s. 38 of
    the Act. Counsel submits that the trial judges candid observation about the
    difficulty in holding this appellant accountable shows that the custodial
    portion of the sentence was imposed solely for the purpose of incapacitation.
    We do not agree for the following reasons. The trial judge explicitly stated
    that he was not imposing sentence for the purpose of incapacitation or general
    deterrence. It is clear that the trial judge was rightly concerned that if the
    appellant did not get proper treatment a time would come when a sentence would
    have to be imposed to segregate the appellant from society. However, that was a
    matter that would occur only if the appellant was sentenced in the future as an
    adult for new serious offences.

[7]

The trial judge made it abundantly clear that the disposition he was
    considering was for purposes of rehabilitation. His comments about protection
    of the public must be seen in that context.

[8]

Section 38(1) of the Act provides that the purpose of youth sentencing
    is to hold a young person accountable for an offence through the imposition of
    just sanctions that have meaningful consequences for the young person and that
    promote his or her rehabilitation and reintegration into society, thereby
    contributing to the long-term protection of the public. In the course of his
    reasons on March 6, the trial judge made some very strong comments about accountability,
    at one point stating that holding him accountable in the context of this
    particular case is nonsense. Counsel submits that accordingly the trial judge
    must have imposed the custodial sentence for reasons other than accountability.
    When the reasons are read as a whole it is apparent that the trial judges
    comments were rooted in the appellants intellectual limitations and the
    impulsiveness of the act. The sentence imposed did attempt to hold the
    appellant accountable for his actions in the sense discussed in
R. v.
    B.W.P.; R. v. B.V.N.
,

2006
    SCC 27, [2006] 1 S.C.R. 941, at para. 33, to the extent possible, given the
    appellants limitations. It is doubtful that any lesser disposition would have been
    effective in holding the appellant accountable while at the same time promoting
    his rehabilitation and reintegration into society as required by s. 38(1) of
    the Act.

[9]

The appellant also submits that the trial judge erred in principle in
    failing to consider alternatives such as a group home or custody at the Syl
    Apps facility. However, the trial judge did consider these alternatives and
    rejected them for cogent reasons. The group home option would not be sufficient
    after the appellant turned 18, which was to occur shortly. As to Syl Apps, the
    sentencing had already been adjourned once to get more information. Through his
    counsel, the appellant opposed a further adjournment and provided reasons why
    the Hope Manor facility was preferable.

[10]

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

M.
    Rosenberg J.A.

P.S.
    Rouleau J.A.

"G.J.
    Epstein J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Weckwerth, 2013 ONCA 666

DATE: 20131101

DOCKET: C56534

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Weckwerth

Appellant

Michael A. Crystal, for the appellant

Chris De Sa, for the respondent

Heard and released orally: October 30, 2013

On appeal from the conviction entered on December 5, 2012
    by Justice Gregory P. Rodgers of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of trafficking in a controlled substance
    arising out of an alleged hand-to-hand transaction observed by a police
    officer.  The transaction was with Cole McCarthy, who was arrested shortly
    afterward in possession of a controlled substance.

[2]

The trial judge expressly rejected the appellants explanation of his
    encounter.  However he failed to address McCarthys exculpatory evidence that
    he acquired the substance in his possession on arrest, from another source
    prior to his encounter with the appellant.

[3]

In our view, this failure requires a new trial.

[4]

This was not a case of a complainant telling one story, and an accused
    telling the opposite story where express acceptance of the complainants
    evidence coupled with the verdict may be enough that the trial judge does not
    need to directly address the accuseds evidence.

[5]

This case was one where McCarthys exculpatory evidence, which was not
    addressed by the Crowns evidence or the appellant, could have exonerated the
    appellant or raised a reasonable doubt about his guilt.  We cannot tell from
    the trial judges reasons whether he rejected that evidence, or if not, how it
    could stand with the Crowns evidence, or if he simply did not consider it.
    The trial judges acceptance of the officers evidence, his rejection of the
    appellants own evidence, and the verdict, do not permit us to fill that void.
    See
R. v. Stewart
, 2003 Carswell ON, p. 283.

[6]

The conviction must be set aside and a new trial ordered.

S.T.
    Goudge J.A.

E.A.
    Cronk J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wihnon, 2013 ONCA 689

DATE: 20131113

DOCKET: C56432

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Wihnon

Appellant

Kristin Bailey, for the appellant

Niall Gilks, for the respondent

Heard: November 1, 2013

On appeal from the sentence imposed on September 11, 2012
    by Justice Gary F. Hearn of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge gave a thorough and well-reasoned decision. It cannot be
    said that this total sentence was manifestly excessive. The appellant pleaded
    guilty to 12 offences, some of them extremely serious, including possession for
    the purpose of trafficking in methamphetamine and cocaine and the dangerous
    driving. The latter offence was particularly serious  involving ramming of
    police cars and putting the public at risk in a successful attempt to escape
    the police.

[2]

The appellant was no longer a youthful offender and had over 45 prior
    convictions, including convictions for similar offences.

[3]

While leave to appeal is granted, the appeal from sentence is
    dismissed.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211,
    212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred
    to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)
An order made under this section does not apply in respect
    of the disclosure of information in the course of the administration of justice
    when it is not the purpose of the disclosure to make the information known in
    the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woollam, 2013 ONCA 711

DATE: 20131121

DOCKET: C56004

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robin Woollam

Applicant/Appellant

Mark Sandler and Wayne Cunningham, for the appellant

Jennifer Crawford, for the respondent

Heard: November 1, 2013

On appeal from the judgment of the Summary Convictions
    Appeal Court dated August 17, 2012, by Justice Bruce Durno of the Superior
    Court of Justice, with reasons reported at 2012 ONSC 2188, dismissing the
    appeal from the conviction entered on November 24, 2010, by Justice Bruce W.
    Duncan of the Ontario Court of Justice.

By the Court:

[1]

The appellant, who is a family doctor, was convicted of the sexual
    assault of J.P. after a trial in the Ontario Court of Justice.  His appeal to
    the Summary Conviction Appeal Court (the SCAC) was dismissed.  He now seeks
    leave to appeal and, if leave is granted, appeals to this court.

[2]

Section 839(1) of the
Criminal Code
, R.S.C., 1985, c. C-46,
provides that a decision of the
    SCAC may, with leave of this court, be appealed on any ground that involves a
    question of law alone.  In
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641,
    this court said, at para. 32, that leave may be granted in two different
    categories of case. First, where the merits of the proposed question of law are
    arguable, even if not strong, and the question of law has significance to the
    administration of justice beyond the particular case. Second, where there
    appears to be a clear error, even if that error does not have significance
    beyond the specific case.

[3]

Credibility was the central issue at trial.  J.P., who was a patient of
    the appellant, testified that the appellant sexually assaulted her when he
    conducted a follow-up examination of an ovarian cyst.  The appellant gave
    evidence and categorically denied any sexual assault.  The trial judge
    convicted the appellant on the strength of J.P.s evidence, the absence of any
    motive to fabricate her evidence, and her condition and conduct after the
    incident.

[4]

It is the trial judges, and the SCACs, treatment of J.P.s suspicions
    evidence that the appellant advances as the basis for leave to appeal to this
    court. J.P. had suspicions of circumstances that, after the alleged assault,
    she came to view as suggesting that the appellant was setting her up for the
    assault. The appellant argues that the trial judge erred in law by considering J.P.s
    suspicions evidence only in assessing her reliability, but failing to consider
    its impact on her credibility.  The appellant says that the SCAC also erred in
    law in finding that the trial judge did indeed consider J.P.s suspicions
    evidence in assessing her credibility.  The appellant argues that this failure
    to correct the trial judges misapprehension of the suspicions evidence is a
    clear error of law with grave professional consequences for him as a doctor.
    Leave should therefore be granted even if the error has no significance beyond
    this case.

[5]

In our view, the question of law that is said to arise from the
    treatment of J.P.s suspicions evidence by the trial judge cannot be said to
    have significance to the administration of justice beyond this case.  It is a
    question about the particular treatment of particular evidence in a particular
    case.  It is thus the second paradigm in
R. v. R.R.
that is engaged.  To
    obtain leave to appeal to this court, the appellant must show that the
    treatment of J.P.s suspicions evidence constitutes a clear error of law which
    was, in effect, repeated by the SCAC.

[6]

In our view, the appellant cannot do so.  As the SCAC said, there is no
    dispute that the trial judge considered whether J.P.s evidence was credible.  Nor
    can there be any doubt that if the trial judge disregarded material evidence in
    assessing J.P.s credibility, he erred in law.  The question is whether he
    factored her suspicions evidence into his credibility analysis.

[7]

We agree with the SCAC that the trial judge did so.  He assessed J.P.s
    credibility as well as her reliability.  He clearly considered all the
    evidence, including her suspicions evidence, in coming to his ultimate conclusion.
    There is nothing in the reasons of this experienced trial judge to explicitly
    indicate that he made the basic error of bifurcating the impact of the
    suspicions evidence and considering it only in relation to J.P.s reliability
    but not her credibility.

[8]

Indeed, the clear implication derived from the trial judges reasons as
    a whole is to the opposite effect.  The trial judge addressed the suspicions
    evidence.  He made clear that the important thing is whether he was prepared to
    draw any inferences about J.P.s testimony from that evidence.  He did not
    limit this task to inferences about J.P.s reliability alone.  He considered
    whether J.P.s suspicions evidence could indicate an over-active imagination or
    other weakness (which could well affect her credibility).  He concluded that
    J.P. had no motive to fabricate her allegation.  And in reaching his ultimate
    conclusion, one that encompassed his finding of J.P.s credibility, the trial
    judge expressly considered the whole of the evidence.

[9]

In summary, a fair reading of the entirety of the trial judges reasons
    leaves us in agreement with the SCAC.  We agree that the trial judge cannot be
    said to have excluded J.P.s suspicions evidence from his assessment of her
    credibility.  Despite Mr. Sandlers able argument, we see no clear error of law
    by the SCAC in coming to that conclusion.  It is the correct conclusion.  Nor
    do we accept that the trial judges assessment of J.P.s credibility was
    otherwise flawed in the ways urged by the appellant.

[10]

There
    is therefore no basis for granting leave to appeal to this court.  As a
    consequence, we need not deal with the several additional arguments advanced by
    the appellant on the assumption that leave is granted.

[11]

The
    motion for leave to appeal is dismissed.

Released: November 21, 2013 (S.T.G.)

S.T. Goudge J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.