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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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. K.M., 2016 ONCA 347

DATE: 20160509

DOCKET: C60143

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

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

Vikram Singh, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on January 14, 2015
    by Justice Ann J. Watson of the Ontario Court of Justice.

ENDORSEMENT

[1]

Following a trial, the appellant was convicted of sexual assault, unlawful
    confinement, and sexual interference with a person under 14 years of age. The
    sexual assault charge was stayed pursuant to
R. v. Kienapple
, [1975] 1
    S.C.R. 729. The convictions stemmed from a single incident that took place when
    the complainant was 11 years old. She lived with her mother and the appellant
    at the time. The trial took place some 13 years later.

[2]

The complainant said that the incident occurred while she and the
    appellant were on the bed in the master bedroom. She said that in addition to
    tickling her, the appellant rubbed her stomach and torso, pulled up her shirt
    and her bra down, and then licked, touched and kissed her breasts.

[3]

The appellant admitted that he touched the complainant while the two of
    them were on the bed in the master bedroom, but testified that he only intended
    to tickle her to get her out of the room. He said he apologized immediately to
    the complainant, seeing that she was uncomfortable when he lifted her shirt,
    and was about to tickle her on her bare skin. He denied rubbing her torso, exposing
    her breasts, and touching them with his hands and mouth.

[4]

The appellant raises numerous grounds of appeal:

·

The
    trial judge misapprehended the evidence and ought to have weighed the evidence
    differently;

·

The
    reasons were inadequate;

·

The convictions were unreasonable based on the trial judges unreasonable
    credibility findings;

·

The
    trial judge convicted the appellant with respect to dates outside of those
    contained in the information;

·

She improperly intervened during the Crowns submissions; and

·

The
    unlawful confinement conviction was not established on the evidence, and the
    trial judge failed to make findings with respect to the elements of that
    offence.

Misapprehension and weighing of evidence

[5]

The appellant does not identify any particular misapprehension of the evidence,
    and none is apparent.

[6]

The appellant submits that the trial judge should have treated some of
    the evidence as undermining the complainants credibility:

·

The
    complainants inability to remember specific dates;

·

The
    difference between her description of locking herself in the bathroom, as
    compared to shutting the door to the bathroom after the event;

·

Her
    history of mental illness;

·

Possible
    inconsistencies about the manner in which she told her mother about what had
    occurred immediately after the event;

·

Her
    description of feeling ill before the event, as opposed to the appellants
    evidence that he did not notice anything out of the ordinary;

·

Her
    attendance at the front door of the appellants home some years after the
    event, to ask for a phone number; and

·

The
    failure of the Childrens Aid Society or Family and Child Services to investigate,
    since it would have done so unless the allegation was fabricated or not capable
    of belief.

[7]

The appellant also argues that the trial judge ought to have assessed
    his evidence differently. He submits that she should not have concluded that
    the appellants admitted actions in lying on the bed with the complainant,
    lifting her shirt, and intending to tickle her on her bare skin followed by an
    immediate apology corroborated the complainants version of events. He further submits
    the trial judge should not have concluded that the appellants behaviour after
    the event showed that he knew he had done something wrong.

[8]

The trial judge gave thorough and careful reasons for finding the
    complainant to be a credible and reliable witness, and for rejecting the
    appellants evidence. Her approach was reasoned. She explained why she did not conclude
    that peripheral issues undermined the complainants credibility. Dealing with
    the appellants evidence, the trial judge observed in her reasons, at paras. 57
    and 58:

[The appellant] was aware that the complainant was made to feel
    uncomfortable by the touching and had breached a boundary. I find that it is
    unreasonable since joking and tickling were a part of their normal relationship
    that the complainant would have been made to feel uncomfortable by the
    defendant tickling her in the fashion that he testified to. She herself could
    not recall if the defendant tickled her over her clothes or directly on her
    skin before she testified that the nature of the touching changed. However it
    is clear from her evidence that his tickling her directly on her skin would not
    have been viewed by her at the time as unusual.

I find the defendants evidence to be unreasonable as to why,
    when he testified he was flabbergasted that the complainant was in his bedroom
    lying on the bed and refusing to leave, he would choose to lie down on the bed
    beside her and tickle her under her top. I note that it was her evidence that
    she was developing breasts and was wearing a bra at the time. Even though the
    complainant did not think that it was unusual that the defendant would tickle
    her on her skin, why would the defendant feel the need or believe that it would
    be alright to lie beside her, lift her top and tickle her on her skin at her stage
    of development? Indeed why did he need to lie on the bed with her and
    thereafter lift her top at all in order to tickle her to get her out of the
    bed? Why did he not just tickle her over her clothes? Why lie on the bed with
    her at all? The defendants actions were unreasonable to this regard.

[9]

In effect, the appellant is asking this court to retry this case. There
    is no basis for this court to interfere with the credibility findings made by
    the trial judge.

Adequacy of reasons

[10]

The reasons given by the trial judge are detailed and comprehensive. It
    is plain how she came to the conclusions she did. There is no basis to conclude
    that the reasons are inadequate.

Unreasonable verdict

[11]

The appellant submits that the verdict was unreasonable because it was
    based on unreasonable findings of credibility. In
R. v. P. (R.)
, 2012
    SCC 22, [2012] 1 S.C.R. 746, the Supreme Court stated, at para. 10:

Whereas the question whether a verdict is reasonable is one of
    law, whether a witness is credible is a question of fact. A court of appeal
    that reviews a trial courts assessments of credibility in order to determine,
    for example, whether the verdict is reasonable cannot interfere with those
    assessments unless it is established that they cannot be supported on any
    reasonable view of the evidence. [Citation omitted.]

[12]

Relying on
P. (R.)
, this court observed in
R. v. Sharp
(21 April 2016), Toronto, M42660, at para. 13:

The test for demonstrating an unreasonable verdict is an
    exacting one. The [appellant] must demonstrate that the verdict is one a judge
    or a properly instructed jury could not reasonably have rendered, or that the
    trial judge drew an inference or made a finding of fact essential to the
    verdict that is either (i) plainly contradicted by the evidence relied upon by
    the judge for that inference or finding, or (ii) shown to be incompatible with
    evidence that has not been contradicted or rejected. [Citation omitted.]

[13]

The convictions on the sexual interference and sexual assault counts are
    plainly reasonable on the findings made by the trial judge.

The relevant dates

[14]

The information, as framed, states that the offences took place between
    September 1 and November 30, 2001. The trial judge concluded that the assault
    occurred either in the fall of 2001 or January 2002. Both sides acknowledged at
    trial that the precise date of the incident was not material. They agreed the
    physical contact took place on the same date that the appellants relationship
    with the complainants mother ended, when she learned of her daughters complaint.

[15]

For this reason, the trial judge found that it was clear the complainant
    and the appellant were testifying about the same incident. Section 601(4.1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, provides that a variance
    between an information and the evidence adduced at trial is not material when
    it relates to the time when the offence is alleged to have been committed. The
    appellant was in no way misled about what incident the charges were in relation
    to, nor was he prejudiced in his defence.

Alleged procedural improprieties

[16]

The appellant also submits that questions asked by the trial judge to
    clarify evidentiary issues during the Crowns submissions were somehow
    improper. There is no basis for this suggestion.

Unlawful confinement conviction

[17]

The trial judge did not make any express findings on the unlawful
    confinement charge. Undoubtedly this is because the case was argued on an all
    or nothing basis, depending on the trial judges assessments of credibility. The
    Crown submits that the unlawful confinement conviction is nonetheless
    sustainable, based on the appellant having placed his arm over the complainant,
    preventing her from getting up while the assault was committed. The Crown
    submits that the appellants actions constrained the complainant and prevented
    her from leaving the bedroom, albeit briefly.

[18]

A conviction for unlawful confinement requires a finding that for any
    significant period of time, the complainant was physically restrained contrary
    to her wishes so that she could not move about from place to place, and a
    finding that the accused intended to confine the complainant. See
R. v.
    Gratton
(1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473-75, leave to
    appeal to S.C.C. refused, [1985] S.C.C.A. No. 118.

[19]

Absent findings as to the elements of unlawful confinement, the conviction
    on that count cannot be sustained. At the hearing of this appeal, the Crown agreed
    that, in that event, it would be content if the conviction for unlawful
    confinement were simply quashed, rather than a new trial ordered, leaving
    intact the concurrent sentence for sexual interference.

Disposition

[20]

In the result, the appeal is allowed to the extent of quashing the
    conviction for unlawful confinement, but is otherwise dismissed.

George R. Strathy
    C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kreko, 2016 ONCA 367

DATE: 20160516

DOCKET: C59203

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

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Kreko

Appellant

David E. Harris, for the appellant

Eric Siebenmorgen, for the respondent

Emily Hill and Caitlyn Kasper, for the intervener
Aboriginal Legal Services of Toronto

Heard: April 18, 2016

On appeal from the sentence imposed on January 7, 2014 by
Justice David M. Stone of the Ontario Court of Justice.

Pardu J.A.:

[1]

The sentencing judge erred in concluding that the appellants Aboriginal
heritage was irrelevant to his sentencing. This error affected the 13-year
global sentence imposed on the appellant and it falls to this court to
determine an appropriate sentence.

A.

facts

[2]

The offences to which the appellant pleaded guilty were very serious:
possession without lawful excuse of a loaded prohibited firearm, robbery with a
handgun, and intentional discharge of a firearm while being reckless as to the
life or safety of another person, contrary to ss. 95(2), 343(d) and 244.2(3) of
the
Criminal Code
, R.S.C. 1985, c. C-46.

[3]

The facts can be summarized briefly. The appellant followed the victim, Jason
Gomes, from an LCBO to an apartment parking lot. After Mr. Gomes got out of his
vehicle, the appellant, his face masked with a bandana, approached Mr. Gomes
with a gun in his hand. There was a struggle. The gun went off and the bullet
hit the ground. The appellant took a necklace and a cell phone belonging to Mr.
Gomes before fleeing on foot. Mr. Gomes got back in his car and pursued the
appellant. He drove at the appellant and struck him with his car with enough
force to crack the windshield when the appellants body hit it. The appellant then
fired three bullets at the car. One of the bullets went through the drivers
headrest and entered Mr. Gomess scalp, but fortunately did not penetrate or
fracture his skull and did not seriously injure him. The appellant also accidentally
shot a bullet into his own leg, causing serious injury. He required surgery and
hospitalization, and has been left with enduring physical problems with his
leg.

B.

The appellants aboriginal heritage

[4]

The appellants mother, who was Aboriginal, was only 15 years old when
he was born on August 18, 1989. She could not adequately care for him, and the
appellant was placed in foster care because of concerns about her lifestyle. Around
the time of his first birthday, the appellant was placed for adoption with a
non-Aboriginal couple.

[5]

The appellants birth mother suffered from a chaotic childhood herself. Both
of her parents struggled with alcoholism. When she was four-and-a-half years
old, she was admitted to hospital and placed in the care of the Childrens Aid
Society after consuming some of her mothers alcohol. She was placed in her
grandmothers care, as well as various foster homes, before finally becoming a
Crown ward at age 11. She was still a Crown ward when she gave birth to the
appellant.

[6]

The appellants maternal grandmother died at age 28. She was a depressed
alcoholic, unable to parent her children. The appellants maternal grandfather
was raised in a large family on a reserve in Ontario, but he and his siblings spent
years in the care of the Childrens Aid Society because of parental neglect and
alcoholism.

[7]

The adoption order was made when the appellant was nearly two years old.
The next year, the appellants adoptive mother left the family to pursue
another relationship. She did not remain involved in the appellants life.

[8]

The appellant grew up not knowing he was adopted. He assumed that his
heritage was Finnish and French, like his adoptive parents, but he was often
challenged by other kids on this point, who suggested he had other ancestry.

[9]

When the appellant was between 16 and 18 years old, his adoptive father
told him of the adoption. This came as a shock to him, and the realization of
the loss of both his adoptive mother and his birth mother led to feelings of
abandonment, resentment, and a sense that he was unwanted.

[10]

The appellant began trying to locate his birth parents in or around 2007
or 2008. Around the same time, his adoptive mother came back to live with his
adoptive father, but her relationship with the appellant was difficult.

[11]

As a teenager, the appellant became interested in what he called black
culture. He listened to hip hop music and wore baggy clothes. He also
developed a fascination with guns, gangs and aggression.

[12]

The appellant has struggled with his identity and his adoption. However,
he has now found his birth mother, and has successfully completed a number of
rehabilitative Aboriginal programs. He has embraced his Aboriginal heritage.

C.

Submissions before the sentencing judge

[13]

At the sentencing hearing, the Crown submitted that the appellants Aboriginal
heritage was irrelevant to the appropriate sentence. In the Crowns view, the
appellant had been raised by his adoptive parents, had only recently learned of
his Aboriginal heritage, and had not faced any of the systemic disadvantages or
impediments experienced by other Aboriginals. The Crown therefore submitted
that there was no connection at all between the appellants Aboriginal background
and his offences.

[14]

The defence submitted that the appellants background was relevant to
his moral blameworthiness, and that there were unique systemic and background
factors which had played a role in the offences before the court. The defence
submitted that the appellant had an identity crisis when he learned of his adoption
and his Aboriginal heritage, which coincided with his involvement in the
criminal justice system. The defence further submitted that the appellants own
dislocation was characteristic of the systemic disadvantage experienced by
persons of Aboriginal heritage.

D.

Reasons of the sentencing judge

[15]

The sentencing judge gave no weight to the appellants Aboriginal
background when he considered the length of the sentence to be imposed:

Although a direct, causal link is not
required, there is no such tie in this case
.

Mr. Kreko may very
well suffer and feel abandoned by his adoptive mother and his biological
mother. I can sympathize with him in this, even as his father was doing his
best to raise his son to be well-educated, involved in sports, supported in
music and recording, and pro-social.
There was nothing
tied to his Aboriginal genetic heritage, let alone considerations in
Gladue
and
Ipeelee
, that led the
accused, Mr. Kreko, to the negative side of hip-hop, including its fascination
with guns.

Perhaps, as the
Gladue
report suggests
implicitly, his desire to drive a Jaguar like a big shot, not turn in his drug
associates, and possess a gun on behalf of a criminal associate, relates to a
need to belong.
These things relate to gang culture and
do not relate to his Aboriginal background.
[Emphasis added.]

[16]

In a report given to the Court of Appeal under s. 682 of the
Criminal
Code
, the sentencing judge reiterated:

Mr. Kreko is biologically descended in part from Aboriginal [heritage].
However, he was adopted as an infant by a couple whose ethnic backgrounds were [Finnish]
and French-Canadian, and was raised as a white child in Ajax
. The
Gladue
Report traced his subsequent inconsistent efforts to learn about Aboriginal
values, customs, and societal supports. Meanwhile, he was gravitating toward a
different group in Ajax, and became quite involved with the negative side of hip-hop,
with its drugs and guns. His associates led or helped him into offences
involving both.

It appeared to me that his Aboriginal
connection had been irrelevant to his offences, or how he got there
. While
his partly Aboriginal teenage mother had given him up for adoption  [t]he most
important aspect of this was not some colonial treatment of the birth mother. It
was his discovery that not only had he been abandoned by the woman he thought
was his mother in Ajax, but that he had another mother, his birth mother, and
she had abandoned him too.

I ultimately held that his Aboriginal
heritage could not be linked in any meaningful way to these current offences,
although his hip-hop affiliations could
. Aboriginal values would mirror
non-Aboriginal societal values in condemning the offences before the court. [Emphasis
added.]

E.

ISSUES

[17]

The appellant submits that the sentencing judge erred in principle by requiring
a causal connection between the appellants Aboriginal background and his
offences, and that the ultimate sentence imposed was therefore unfit. He
further submits that the sentencing judge improperly intervened in the
appellate process through the report that he provided to this court under s.
682 of the
Criminal Code
.

F.

Analysis

(1)

Failure to consider the appellants Aboriginal heritage

[18]

Section 718.2 of the
Criminal Code
requires consideration of
the principles of sentencing, including the following principle:

(e) all available sanctions, other than
imprisonment, that are reasonable in the circumstances and consistent with the
harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal
offenders.

[19]

As observed in
R. v. Gladue
, [1999] 1 S.C.R. 688, at para.
93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the
serious problem of overrepresentation of Aboriginal people in prisons.

[20]

The sentencing judge erred by effectively requiring a causal link
between the appellants Aboriginal heritage and the offences, as is illustrated
by the following extracts from his reasons for sentence and report to the Court
of Appeal:

·

There
was nothing tied to his Aboriginal genetic heritage, let alone considerations
in
Gladue
and
Ipeelee
, that led the accused, Mr. Kreko, to
the negative side of hip-hop, including its fascination with guns.

·

These
things [possession of a gun, driving a Jaguar] relate to gang culture and do
not relate to his Aboriginal background.

·

It
appeared to me that his Aboriginal connection had been irrelevant to his offences,
or how he got there.

·

I
ultimately held that his Aboriginal heritage could not be linked in any
meaningful way to these current offences, although his hip-hop affiliations
could.

[21]

The jurisprudence makes it clear that no causal link is required. In
R.
v.
Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court held
that it was an error to require an Aboriginal offender to establish a causal
link between his or her background factors and the commission of the offence(s)
in question before he or she is entitled to have those factors considered by
the sentencing judge. The court suggested, at para. 82, that requiring a causal
connection demonstrated an inadequate understanding of the devastating
intergenerational effects of the collective experiences of Aboriginal peoples,
and also imposed an evidentiary burden on the offender that was not intended by
Gladue
.

[22]

The court continued, at para. 83:

[I]t would be extremely difficult for an Aboriginal offender to
ever establish a direct causal link between his circumstances and his
offending. The interconnections are simply too complex. The Aboriginal Justice
Inquiry of Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of
self-government and systemic discrimination, which are the legacy of the
Canadian governments treatment of Aboriginal people, are intertwined and
interdependent factors, and in very few cases is it possible to draw a simple
and direct correlation between any one of them and the events which lead an
individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of s. 718.2(
e
) does not
logically require such a connection. Systemic and background factors do not
operate as an excuse or justification for the criminal conduct. Rather, they
provide the necessary context to enable a judge to determine an appropriate
sentence.

[23]

The court explained that what is required is that the factors must be
tied to the particular offender and offence(s) in that they must bear on his or
her culpability or indicate which types of sanctions may be appropriate in
order to effectively achieve the objectives of sentencing. Finally, the court in
Ipeelee
also made it clear that s. 718.2(e) applies to serious offences:
see paras. 84-86.

[24]

In the present case, the appellants dislocation and loss of identity
can be traced to systemic disadvantage and impoverishment extending back to his
great-grandparents. This was relevant to his moral blameworthiness for the
offences. The intervener has referred to some studies suggesting that adoptions
of Aboriginal children by non-Aboriginal parents have a significantly higher
failure rate than other adoptions. The appellants Aboriginal heritage was
unquestionably part of the context underlying the offences. The sentencing
judge erred by failing to consider the intergenerational, systemic factors that
were part of the appellants background, and which bore on his moral
blameworthiness, and by seeking instead to establish a causal link between his
Aboriginal heritage and the offences.

[25]

The sentencing judge also misapprehended the evidence about the
appellants efforts to reconnect with his heritage:

I applaud any efforts by Mr. Kreko to put down any pro-social
roots he can, and that includes the Aboriginal healing path in which he has dabbled
to date.
I note he did not participate in that path while at the Central
East Correctional Centre
. [Emphasis added.]

[26]

The evidence was that the appellant did participate in Aboriginal
programming and counseling at the Central East Correctional Centre when he was held
in pre-trial custody there in 2008 and 2009.

(2)

The appropriate sentence

[27]

According to the Supreme Court in
Ipeelee
, at para. 87,

failure
to consider the unique circumstances of Aboriginal offenders, when required, is
an error justifying appellate intervention:

The sentencing judge has a statutory duty, imposed by s. 718.2(
e
)
of the
Criminal Code
, to consider the unique circumstances of
Aboriginal offenders. Failure to apply
Gladue
in any case involving an
Aboriginal offender runs afoul of this statutory obligation. As these reasons
have explained, such a failure would also result in a sentence that was not fit
and was not consistent with the fundamental principle of proportionality.
Therefore, application of the
Gladue
principles is required in every
case involving an Aboriginal offender  and a failure to do so constitutes an
error justifying appellate intervention.

[28]

I turn then to the question of the appropriate sentence. The appellant
was only 22 years old at the time of these offences. Although he had a criminal
record, he had not received sentences imposing further custodial time in
addition to pre-trial custody.

[29]

The Crown opposes admission of fresh evidence of the respondents
successful reconnection with his biological mother following sentencing, and
the profound impact upon him of his reconnection with his Aboriginal heritage.
This evidence could not have been introduced at sentencing, is relevant and
credible, and could reasonably when taken with the other evidence adduced at
the hearing be expected to have affected the result. I would accordingly admit
the fresh evidence.

[30]

The Crown accepted at the sentencing hearing that the appellant was
genuinely remorseful, based on his statements to the author of the
Gladue
report. At the hearing, the appellant apologized to the individuals affected by
his acts, their families and the community of Ajax. There was a consensus that
there was a real possibility of rehabilitation.

[31]

On the other hand, the fact that these offences were committed in
violation of two weapons prohibition orders and in violation of a conditional
sentence, which included house arrest and a prohibition of possession of a
weapon, is a seriously aggravating factor. There is no doubt that the
seriousness of the offences requires a severe sentence. I have concluded that a
global nine-year sentence would adequately serve the principles and objectives
of sentencing set out in the
Criminal Code
, including giving weight to
the background and systemic factors related to the appellants Aboriginal
heritage, as well as the possibility of rehabilitation.

[32]

In the result, I would leave intact the three-year consecutive sentence
imposed by the trial judge for the s. 95(2) offence, but I would vary the
sentence on the other two counts to six years before credit for pre-sentence
custody. The appellant spent 20 months in pre-sentence custody, which should be
credited as 30 months, leaving the global sentence to be served, as of January
7, 2014, at 78 months or 6.5 years. The other ancillary orders made by the
sentencing judge should remain.

(3)

The report under s. 682

[33]

Section 682(1) of the
Criminal Code
requires a trial judge, at
the request of the Court of Appeal, to report on the case or on any matter
relating to the case that is specified in the request. The form letter sent to
the sentencing judge in this case asked whether there were any rulings that
appeared relevant to the appeal, and if so, to attach any relevant and
available transcripts.

[34]

A trial judge should not use the report to supplement his or her reasons,
as occurred in this case. As the Supreme Court observed in
R. v.
E.
(A.W.)
, [1993] 3 S.C.R. 155, at p. 173:

It is well established that a trial judge, in furnishing the
Court of Appeal with a report, must be vigilant to avoid simply expanding upon
reasons or rulings previously given or providing reasons where none were given
at trial. In such circumstances, a trial judge's report will be held invalid.

G.

DISPOSITION

[35]

I would grant leave to appeal sentence and allow the appeal to the
extent of reducing the appellants sentence to nine years, less 30 months credit
for pre-sentence custody, leaving a global remaining sentence of 78 months.

Released: (GRS) May 16, 2016

G. Pardu J.A.

I agree G.R. Strathy
C.J.O.

I agree E.E. Gillese
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), (2.1), (2.2), (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 victim 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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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. Langevin, 2016 ONCA 412

DATE: 20160530

DOCKET: C60085

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Langevin

Appellant

Daniel Langevin, acting in person

Matthew Gourlay, duty counsel

Craig Harper, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on November 28,
    2014 and the sentence imposed on January 21, 2015 by Justice
Nancy
    M. Mossip
of the Superior Court of Justice.

ENDORSEMENT

[1]

After a trial before a judge of the Superior Court of
    Justice sitting without a jury, the appellant was convicted of counts of sexual
    interference and sexual assault arising out of the same incident. The trial
    judge applied the principles of
Kienapple v. R.,
[1975] 1 S.C.R. 729 and entered an interim stay of
    the conviction of sexual assault.

[2]

The trial judge
    sentenced the appellant to imprisonment for a term of 12 months to be followed
    by a period of probation for 2 years. The sentence imposed also included
    several ancillary orders.

THE BACKGROUND FACTS

[3]

The events upon which
    the Crown relied to establish the appellants guilt are said to have occurred
    in the cab of his truck during the evening of Canada Day, 2013 when only the
    appellant and complainant were inside the truck. The vehicle was parked in an
    area adjacent to a housing complex.

[4]

The conduct alleged to
    constitute the offences charged consisted of hugging and kissing. Both the
    appellant and complainant were fully clothed. The appellant was 44 years old.
    The complainant was 11.

The Case for the Crown

[5]

The case for the Crown
    at trial consisted of the testimony of three adult witnesses who recounted
    their observations of the conduct of the appellant and complainant in the cab
    of the appellants truck around 9 p.m. on Canada Day, 2013.

[6]

Each witness had an
    unobstructed view of the relevant events. Each moved closer to the truck to
    confirm their initial observations. Each described repeated kissing on the
    lips, accompanied by hugging. Each, in his or her own way, characterized the
    manner in which the appellant and the complainant kissed. One described it as
    like he would kiss his wife. A second characterized it as not the way in which
    an adult would kiss a child. And the third likened it to the way in which a
    boyfriend and girlfriend would kiss.

[7]

The complainant was not
    called as a witness for the Crown.

The Defence Case

[8]

The defence case
    comprised the testimony of the appellant, the complainants mother and the
    complainant.

[9]

The complainant and her
    mother gave evidence that the complainant returned to their home at around 5:00
    or 5:30 p.m. on Canada Day, 2013. She had been with the appellant during the
    afternoon but he brought her home around meal time.  The complainant remained
    at home for the balance of the evening.

[10]

The appellant
    acknowledged that he gave the complainant a peck on the nose and a hug when
    she left his truck on the afternoon of Canada Day, 2013 to join others,
    including a Crown witness, at a picnic table. She remained at the picnic table
    for about an hour, then returned to his truck. The appellant drove her home,
    arriving there at about 5 p.m. He was not with her later in the evening.

[11]

The appellant denied
    kissing the complainant on the lips. He also said that one of the witnesses who
    testified for the Crown was not in the vicinity on Canada Day. He rejected the
    claim of another Crown witness that she had approached the cab of his truck and
    had asked what he was doing.

[12]

The complainant
    acknowledged that the appellant hugged her and kissed her forehead while they
    were seated in the cab of his truck. She denied talking to one of the Crown
    witnesses at the picnic table.

The Positions of the
    Parties at Trial

[13]

Trial counsel for the
    Crown (not Mr. Harper) urged the trial judge to believe the testimony of the
    three adult witnesses about what they saw taking place in the cab of the
    appellants truck. Their view was unobstructed. They were independent witnesses
    who bore neither the appellant nor the complainant any animus. Any
    inconsistencies in their evidence were beside the point of the core features of
    their testimony. None were cross-examined about the substance of their
    allegations.

[14]

The trial Crown
    entreated the trial judge to reject, as unworthy of belief, the appellants
    claim that he was not with the complainant after 5 p.m. on Canada Day and, at
    all events, did not engage in the behaviour they described at any time.
    Further, the trial Crown submitted, the complainant was not a reliable witness,
    her evidence contaminated by her unwavering dedication to the appellant. For
    similar reasons, the trial Crown invited the trial judge to reject the evidence
    of the complainants mother whose testimony was coloured by her own desire to
    rekindle her relationship with the appellant.

[15]

Trial counsel for the
    appellant (not Mr. Gourlay) advanced three discrete arguments to the trial
    judge.

[16]

First, counsel submitted
    that inconsistencies on material issues in the testimony of the three
    eyewitnesses left the case for the Crown well short of the standard of proof
    required in a criminal case.

[17]

Second, counsel argued
    that the appellants testimony, indeed the defence evidence as a whole, was
    credible and warranted an acquittal on either or both of the first or second
    step of
R. v. W.(D.),
[1991]
    1 S.C.R. 742.

[18]

Third, counsel contended
    that even if the trial judge were to accept the eyewitness testimony adduced by
    the Crown, the evidence failed to establish an essential element of each
    offence charged  that the conduct occurred in circumstances of a sexual nature
    or was for a sexual purpose.

THE APPEAL FROM CONVICTION

The Argument

[19]

In this court, as duty
    counsel, Mr. Gourlay raised a single ground of appeal. He submitted that the
    trial judge failed to adequately analyze the evidence to determine whether it
    established the essential elements of each offence charged. He fastens upon the
    requirement in sexual assault that the assault occur in circumstances of a
    sexual nature such that the sexual integrity of the complainant is violated. In
    respect of the count charging sexual interference, Mr. Gourlay contends that
    the trial judge erred in failing to adequately consider whether the evidence
    established that the kissing was for a sexual purpose as required by s. 151, or
    occurred in circumstances of a sexual nature as required by s. 271 of the
Criminal
    Code
.

Discussion

[20]

The focal point of the
    submissions on behalf of the parties is a single paragraph in the lengthy
    reasons of the trial judge. It is helpful to begin by setting out that
    paragraph before turning to a consideration of its adequacy.

The Reasons of the
    Trial Judge

[21]

The trial judge began
    her reasons with a lengthy witness-by-witness summary of the evidence adduced
    at trial, followed by a recital of the positions advanced by the parties in
    their closing arguments. Reminding herself of the principles stated in
W.(D.)
and other authorities that have followed its lead,
    the trial judge explained how she applied those principles to the evidence
    adduced at trial. In general terms, she accepted the evidence of the
    eyewitnesses about the fact, nature and circumstances of the kissing in the
    appellants truck and rejected the defence evidence that the conduct of which
    the eyewitnesses testified never took place.

[22]

The trial judge
    concluded her reasons by stating her conclusion about the adequacy of the
    evidence to establish the essential elements of sexual interference and sexual
    assault. She said:

On the whole of the
    evidence I am satisfied beyond a reasonable doubt of the guilt of D.L. of the
    two counts in the indictment. There can be no doubt that my acceptance of the
    Crown witnesses testimony, in particular that of Ms. Clavette who saw at close
    proximity, D.L. and E.B. hugging and kissing on the lips, like a boyfriend and
    girlfriend, that a sexual assault took place, and that the touching of E.B. by
    D.L. by hugging and kissing E.B. on the lips, as described, was touching for a
    sexual purpose. Viewed objectively, in the light of all the circumstances, it
    is clear that the conduct of D.L. in hugging and kissing E.B. as described
    constituted an assault of a sexual nature and this touching as described was
    for a sexual purpose.

Analysis

[23]

As we will explain, we
    would not give effect to the submissions of duty counsel.

[24]

We begin with the
    observation that whether the kissing that the trial judge found occurred here
    was for a sexual purpose, or took place in circumstances of a sexual nature,
    was largely a question of fact for the trial judge to determine by an
    examination of all the circumstances. As with any essential element of an
    offence, proof of these essential elements may be made by direct evidence, by
    circumstantial evidence or by both types of evidence in combination.

[25]

Second, appellate courts
    are disentitled to interfere with the findings of fact made and the factual inferences
    drawn by a trial judge unless those findings are clearly wrong, unsupported by
    the evidence or otherwise unreasonable:
R. v. Clark
, [2005] 1 S.C.R. 6, at para. 9. We are unable to
    conclude that the trial judge made any error of law or a palpable or overriding
    error fact with respect to the sexual purpose of the kissing or the sexual
    nature of the circumstances in which it occurred.

[26]

Third, this is not a
    case of a single peck on the cheek, or even a solitary kiss on the lips. What
    the trial judge found occurred here were repeated acts of kissing between a 44
    year old man and an 11 year old girl characterized by witnesses as similar to
    those between spouses or lovers. This finding of fact, available on the
    evidence adduced at trial, was sufficient to sustain a finding of sexual
    purpose on the count of sexual interference and meet the objective standard
    required for sexual assault.

[27]

Fourth, while the
    reasons of the trial judge on this issue may fairly be characterized as
    economical, they do not foreclose meaningful appellate review when read as a
    whole. Recall as well that the claim of inadequate proof of the sexual nature
    of the kissing was not the principal defence advanced at trial. The defence, supported
    by the sworn testimony of the appellant, the complainant and her mother was
    that neither the appellant nor the complainant were at the place described by
    the witnesses when the kissing was alleged to have occurred. While this defence
    does not reduce the Crowns burden of proof or lessen the standard of proof
    required, it does put the reasons of the trial judge on the issue in their
    proper perspective on appellate review.

[28]

The appeal from
    conviction is dismissed.

THE APPEAL FROM SENTENCE

[29]

The appeal from sentence was not vigorously pressed. We find no error in
    the sentence imposed.

[30]

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

David Watt J.A.

M. Tulloch J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 359

DATE: 20160510

DOCKET: M46451 (C62086)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Appellant (Applicant)

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 9, 2016

ENDORSEMENT

[1]

The appellant, April Luckese, was convicted on March 16, 2016 by Justice
    G. Lemon of manslaughter in the death of 14-month old Duy-An Nguyen, an infant
    placed at the day care she operated: 2016 ONSC 1206. On May 9, 2016, Ms.
    Luckese was sentenced to six years in jail, less credit of 24 days for
    pre-sentence custody: 2016 ONSC 2812. Ms. Luckese applies for bail pending the
    hearing of her appeal pursuant to s. 679(1)(a) of the
Criminal Code
.

[2]

The Crown opposes her application. The Crown concedes that Ms. Luckeses
    appeal is not frivolous and that she will surrender herself into custody in
    accordance with the terms of any release order. It is the Crowns submission
    that Ms. Luckese has failed to establish that her detention is not necessary in
    the public interest, as required by s. 679(3)(c).

[3]

For the reasons set out below, I accept the Crowns submission and dismiss
    the application.

THE GOVERNING PRINCIPLES

[4]

The parties agree that the applicable law is set out in
R. v.
    Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 48, where this
    court described the factors involved in balancing the conflicting principles of
    the enforceability and reviewability of judgments:

The "public interest" criterion in s. 679(3)(c) of
    the
Code
requires a judicial assessment of the need to review the conviction
    leading to imprisonment, in which case execution of the sentence may have to be
    temporarily suspended, and the need to respect the general rule of immediate
    enforceability of judgments.

Public confidence in the administration of justice requires that
    judgments be enforced. The public interest may require that a person convicted
    of a very serious offence, particularly a repeat offender who is advancing
    grounds of appeal that are arguable but weak, be denied bail. In such a case,
    the grounds favouring enforceability need not yield to the grounds favouring
    reviewability.

On the other hand, public confidence in the administration of
    justice requires that judgments be reviewed and that errors, if any, be
    corrected. This is particularly so in the criminal field where liberty is at
    stake. Public confidence would be shaken, in my view, if a youthful first
    offender, sentenced to a few months' imprisonment for a property offence, was
    compelled to serve his or her entire sentence before having an opportunity to
    challenge the conviction on appeal. Assuming that the requirements of s.
    679(3)(a) and (b) of the
Criminal Code
are met, entitlement to bail is
    strongest when denial of bail would render the appeal nugatory, for all
    practical purposes.

[5]

The public interest ground takes on particular importance in cases
    where an applicant has been convicted of a very serious offence and faces the
    prospect of a lengthy period of incarceration:
R. v. Baltovich
(2000), 47 O.R. (3d) 761 (C.A.), at para. 19. At the same time, appellate
    courts have recognized that, where the grounds of appeal are strong and where
    there is serious concern about the accuracy of the verdict, the public interest
    may well shift in favour of release even for serious crimes:
Baltovich
,
    at para. 20.

THE CENTRAL ISSUE ON THE APPLICATION

[6]

Ms. Luckese submits that her detention is not necessary in the public
    interest for several reasons: (i) she has strong grounds of appeal; (ii) she
    complied with all terms of her pre-sentence release orders; and (iii) in his
    reasons for sentence, the trial judge described her as a respected day care
    provider and the events at issue were entirely out of character for her: at
    paras. 2 and 15.

[7]

In response, the Crown submits that Ms. Luckese has been convicted of a
    very serious offence and sentenced to a long prison term. Although her grounds
    of appeal are not frivolous, the Crown argues they are weak.

[8]

Several factors relevant to the
Farinacci
analysis are not in
    dispute. Although not a repeat offender, Ms. Luckese was convicted of a very
    serious offence: the manslaughter of a vulnerable infant in her care. As well,
    Ms. Luckese has received a lengthy sentence of six years imprisonment, so this
    is not a case where the denial of bail would render her appeal nugatory. Given
    the seriousness of the offence, in my view the assessment of the public
    interest factor really turns on the strength or weakness of the grounds Ms.
    Luckese intends to advance on her appeal. Before considering them, it is
    necessary to review briefly the reasons of the trial judge.

THE REASONS OF THE TRIAL JUDGE

[9]

The evidence was described at length in the trial judges reasons.
    Briefly, January 5, 2011 was the second day 14-month old Duy-An had been left
    in the care of Ms. Luckese. On that day, Duy-An suffered a severe head injury
    while at the day care, specifically a 2.5 cm fracture of the skull at the back
    of her head. Despite medical care over the next two days, including surgery,
    Duy-An died on January 7.

[10]

The issue at trial was whether Duy-Ans injuries were the result of an
    accident or a trauma inflicted to her head. The Crown called expert medical
    testimony and relied heavily on statements Ms. Luckese made to several police
    officers and others. Ms. Luckese did not testify at the trial.

[11]

At trial, a police officer, Detective Thomson, testified that during a
    trip in the police cruiser to the police station, he recorded Ms. Luckese as
    saying: I know it is wrong. I just snapped. I guess I hit a breaking point.

[12]

The trial judge relied, in part, on that statement in finding Ms.
    Luckese guilty of manslaughter. At paras. 137-38 of his reasons, the trial
    judge wrote:

Similarly, the Crown submits that I can draw the inference that
    Ms. Luckese lost her patience and struck the child since she was taking care of
    seven children under three years of age; Duy-An was new to the day care and
    apparently had very little English; she had been crying throughout her stay and
    had apparently awoken when all of the children should have been asleep.
    Combined with Ms. Luckeses statement to Detective Thomson in his cruiser, this
    is the inference that I can draw.

I find that Ms. Luckese, as she said to Detective Thomson and
    Mr. Doyle, momentarily lost her patience with Duy-An and assaulted her, causing
    the skull fracture. There is no other rational explanation for the skull
    fracture and undisputed symptoms. That illegal act led to the death of Duy-An.
    Ms. Luckese is guilty of manslaughter.

[13]

The trial judge also found Ms. Luckese guilty of manslaughter on another
    basis. He concluded that Ms. Luckese had failed to provide Duy-An with the
    necessaries of life because she did not call for emergency medical care when
    she first observed that the child was unresponsive. This led the trial judge to
    make the following findings at paras. 160-61 of his reasons:

Based on the medical evidence set out above, I find that
    Duy-Ans death occurred because of a lack of oxygen to her brain.  That lack of
    oxygen came from the skull fracture and the passage of time.  Ms. Luckese knew
    the cause of that skull fracture. Her failure to act added to that passage of
    time.  On this evidence, I am satisfied that the delay in treatment was a
    significant contributing cause to Duy-Ans death.

I am satisfied beyond a reasonable doubt that Ms. Luckese
    failed to perform her duty to provide the necessaries of life to Duy-An which
    was a significant cause of her death.  Ms. Luckese is guilty of manslaughter on
    that basis as well.

ANALYSIS OF THE GROUNDS OF APPEAL

[14]

Ms. Luckese intends to advance three grounds of appeal - two in respect
    of the trial judges finding that she assaulted Duy-An,  and one in respect of
    his finding that she failed to provide the necessaries of life. As to the
    finding of assault, Ms. Luckese submits that trial judge made two errors: (i)
    he erred in his use of the good character evidence Ms. Luckese adduced at
    trial; and (ii) he erred in admitting the statement Ms. Luckese made to Detective
    Thomson in the cruiser on the return to the police station. As to the finding
    that she failed to provide the necessaries of life, Ms. Luckese submits that
    the trial judge misapprehended the evidence regarding causation. I shall
    examine each proposed ground of appeal in turn.

The use of good character evidence

[15]

At trial, Ms. Luckese called seven witnesses to testify about her
    reputation as a day care provider. The trial judge noted, at para. 123: They
    described her and her reputation as kind, loving, caring, calm, patient,
    responsible, dependable and open. The Crown does not deny that she was all of
    that over her career as a care provider.

[16]

Evidence of an accuseds good character is relevant not only to support
    the accuseds credibility as a witness, but also to support an inference that
    the accused is unlikely to have committed the offence charged: Sidney N.
    Lederman, Alan W. Bryant, Michelle K. Fuerst,
Sopinka, Lederman &
    Bryant,
The Law of Evidence in Canada,
4th ed. (Markham: LexisNexis Canada Inc., 2014)
, at para. 10.43;
R. v. Logiacco
(1984), 2 O.A.C. 177, at para. 11. Ms. Luckese did not
    testify at trial, so the defence sought to use the evidence of her good
    character for the second purpose. The trial judge understood the defences
    position for he wrote, at para. 125: [the] defence submits that given the
    character evidence that was called, it is unlikely that she would have
    committed the offence charged.

[17]

Ms. Luckese submits that the trial judge erred in how he used the
    evidence of her good character. She points to para. 136 of the trial judges
    reasons where he wrote:

[Ms. Luckeses] character evidence shows that she was an
    exemplary day care provider and had experience dealing with children in their
    early days in her care. However, how she had dealt with other children, in
    other circumstances, is not of great significance to me in this case relating
    to this child on this day. I cannot draw the inference that because she worked
    well with other children on other days,
she
    could not have assaulted this child
. [Emphasis added.]

[18]

Ms. Luckese contends that the trial judge misstated the law. Instead of
    considering whether the evidence of her good character could support an
    inference that she was unlikely to have committed the offence, the trial
    judge erroneously considered whether the evidence would support an inference that
    she could not have assaulted Duy-An.

[19]

The Crown argues that the language used by the trial judge to describe
    the law echoes that used by the Supreme Court of Canada in
R. v. Charlebois
,
    2000 SCC 53. [2000] 2 S.C.R. 674. There, in his discussion of the trial judges
    charge on the issue of good character evidence, Bastarache J. stated for the
    majority, at para. 30:

The evidence of good character sheds little light on this
    question.  This is not a case where the actions of the accused are in doubt;
    rather it is only his mental state which is under consideration.  Given the
    evidence, the argument that the accused
could
    not have committed murder

because he was of good character has
    little significance. [Emphasis added.]

[20]

I accept the Crowns characterization of this ground of appeal as
    arguable, but weak. The trial judge understood the use the defence advocated
    for the evidence of Ms. Luckeses good character, but he was not prepared to
    give it great significance. In so doing, the trial judge employed language
    about the use of good character evidence similar to that found in the
Charlebois
decision. Whether the trial judges treatment of the evidence of good conduct,
    when viewed in the entirety of his reasons, was correct or not may reach the
    threshold of an arguable point of law, but it does not fall at the strong end
    of the spectrum.

Ms. Luckeses statement to Detective Thomson in
    the police cruiser

[21]

The police conducted a videotaped interview with Ms. Luckese on the day
    of the incident. Following the interview, they took her back to the day care to
    walk through the events of the day. On the return trip to the police station,
    Detective Thomson asked her some questions. He recorded Ms. Luckese as saying:
    I know it is wrong. I just snapped. I guess I hit a breaking point. The
    exchange in the police cruiser was not videotaped.

[22]

On a
voir dire
, the defence argued that the statement should be
    excluded because it had not been videotaped. The trial judge agreed that the
    police ought to have videotaped the statement. But, relying on the decision of
    this court in
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont.
    C.A.), the trial judge held that there was no absolute rule requiring the
    recording of statements. After reviewing all of the evidence surrounding the
    making of the statement, the trial judge concluded that Ms. Luckese had made
    the statement voluntarily and he admitted it.

[23]

Ms. Luckese acknowledges that trial judge followed and applied the law
    as it currently stands. However, on appeal she will be asking this court to
    change the law as stated in
Moore-McFarlane
and, instead, to adopt a
    rule of automatic exclusion of statements made, but not recorded, following an
    earlier videotaped statement given by a person.

[24]

In response, the Crown points out that as recently as the case of
R.
    v. Williams
, 2014 ONCA 431, 313 C.C.C. (3d) 51, at paras. 43-44, this
    court applied the principle stated in
Moore-McFarlane
that there is no
    absolute rule requiring the police to record an accuseds statements.

[25]

It is certainly open to Ms. Luckese to ask this court to reconsider and
    change the principle stated in
Moore-McFarlane
. But, in the absence of
    any prior suggestion by this court that it is open to reconsidering the
    principle in an appropriate case, I cannot treat this ground of appeal as a
    strong one for the purposes of this application.

[26]

In sum, both grounds of appeal advanced by Ms. Luckese to challenge the
    trial judges finding that she assaulted Duy-An are not frivolous, in the sense
    that they are arguable, but they are not strong grounds of appeal.

Causation

[27]

In respect of the trial judges conclusion that Ms. Luckeses delay in
    seeking emergency medical care for Duy-An was a significant contributing cause
    of her death, the appellant submits that the trial judge misapprehended the
    evidence given by Dr. Abhaya Kulkarni, both in his expert report and in his
viva
    voce
testimony at trial. Ms. Luckese submits that the Crown did not prove
    beyond a reasonable doubt that the delay in seeking medical care for Duy-An was
    a significant contributing cause of her death.

[28]

The Crown did not make any responding submissions on this point.

[29]

The bail application record does not contain Dr. Kulkarnis report or
    the transcripts of his evidence at trial. I therefore cannot review the
    doctors evidence in its entirety. Given those limitations of the record before
    me, it is not possible to assess the strength or weakness of this ground of
    appeal.

Conclusion

[30]

The grounds of appeal advanced by Ms. Luckese in respect of the finding
    of assault by her on Duy-An are arguable, but not strong. I am unable to assess
    the ground of appeal concerning the causation issue. Given the seriousness of
    the offence for which the trial judge convicted Ms. Luckese, this is not a case
    where strong grounds of appeal exist that would favour the reviewability factor
    in the
Farinacci
analysis.

DISPOSITION

[31]

The offence for which Ms. Luckese was convicted is a most serious one. A
    lengthy term of imprisonment has been imposed. Her grounds of appeal are not
    strong, based on the record before me. Consequently, I conclude that Ms.
    Luckese has not demonstrated that her detention is not necessary in the public
    interest.

[32]

Accordingly, I dismiss the application of Ms. Luckese for bail pending
    appeal.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marini, 2016 ONCA 383

DATE: 20160519

DOCKET: C57763

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Marini

Appellant

Melanie Webb, for the appellant

Katie Doherty, for the respondent

Heard: May 16, 2016

On appeal from the conviction entered on April 4, 2013
    and the sentence imposed on June 21, 2013 by Justice W. Larry Whalen of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of a single count of break and enter and
    commission of an indictable offence (theft) by Whalen J. of the Superior Court
    of Justice. He received a sentence of 45 months imprisonment less nine months
    credit for pre-trial custody. The appellant appeals his conviction and
    sentence.

[2]

The break, entry and theft occurred at a store in Sault Ste. Marie. A
    security video recorded a man break a storefront window, enter the store, and
    leave with a generator valued at $172.37. The male thief was well-covered by
    dark clothing. His head and face were covered and he wore gloves. It was
    impossible to identify the thief from the video.

[3]

When the police attended the store the morning after the break-in, they
    noticed blood on the frame of the door with the broken window. The police
    thought that the blood looked fresh so they sent it for testing. The results
    showed that there was a one in 8.2 quadrillion chance that the blood was not
    the appellants.

[4]

The appellant did not testify at trial.

[5]

Justice Whalen convicted the appellant. He concluded:

In all of the circumstances, I conclude that the blood found on
    Trios front door and identified as the accuseds was rationally and logically
    linked to the circumstances of the unlawful entry and theft. I find this
    evidence sufficiently compelling to conclude beyond a reasonable doubt that the
    accused was the perpetrator. For all these reasons, a conviction will be
    registered.

Conviction appeal

[6]

The appellant appeals the conviction on four grounds, all under the
    umbrella of unreasonable verdict.

[7]

First, the appellant contends that the trial judge misapplied the test
    for guilt where the evidence is wholly circumstantial.

[8]

We disagree. The trial judge accepted the defence position that the
    blood evidence was circumstantial evidence and that there was no other evidence
    connecting the appellant to the crime. He then proceeded carefully in his
    assessment of that evidence:

I accept that where the Crowns case depends wholly or even
    largely on circumstantial evidence, I should be careful in weighing it. A
    decision made or inference drawn from such circumstantial evidence should be
    logically and rationally based on the evidence as a whole. The circumstantial
    evidence should have a rational, logical connection to the accused and the act
    complained of for there to be a valid finding of guilt. The inference should be
    free of speculation, presumption or bias. In short, it must be compelling.

[9]

In our view, this is an appropriate analytic framework for considering
    circumstantial evidence.

[10]

Second, the appellant submits that when the trial judge said that it was
    very likely that the blood was deposited in the course of the theft and that
    it very probably happened while the perpetrator was exiting the store, he was
    reasoning at a level below the criminal standard of proof of guilt beyond a
    reasonable doubt.

[11]

We are not persuaded by this submission. The trial judge referenced the
    appropriate standard numerous times. He did not need to use the wording
    necessary to reach an ultimate verdict of guilt in his discussion of each item
    of evidence or each factual conclusion he made.

[12]

Third, the appellant asserts that the trial judge relied on
    impermissible speculation about the visibility and freshness of the blood on
    the door frame.

[13]

We do not accept this submission. These conclusions flowed logically
    from police and other evidence at the trial.

[14]

Fourth, the appellant contends that the trial judge erred by convicting
    the appellant in the absence of any evidence tying him to the crime.

[15]

We disagree. The appellants blood was on the door frame where the
    window had been broken by the thief. The police testimony was that the blood
    appeared to be fresh. This is hardly no evidence. The appellant did not testify
    and offer any explanation for his blood being at the crime scene.

[16]

In summary, the conviction was an entirely reasonable verdict.

Sentence appeal

[17]

The appellant submits that a global sentence of 45 months imprisonment
    was too harsh for a theft causing total damage (stolen generator and repaired
    window) of less than $500.

[18]

The appellant has a 30 plus year criminal record with 70 plus
    convictions, many for break and entry and theft.

[19]

The sentence was fit.

Disposition

[20]

The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (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 victim 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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

6.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Najafov, 2016 ONCA 351

DATE: 20160509

DOCKET: C60251

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Telman Najafov

Appellant

Telman Najafov, in person

Erika Chozik, duty counsel

Leslie Paine, for the respondent

Heard and released orally: April 6, 2016

On appeal from the conviction entered on October 22, 2014
    and the sentence imposed on March 6, 2015 by Justice Wailan Low of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and unlawful confinement
    and received a 32-month sentence less 15 days credit for pre-trial custody. He
    appeals from both his conviction and sentence.

[2]

We see no merit in any of his arguments.

[3]

The trial judge considered the evidence, applied the appropriate tests
    and found the appellant guilty. His complaints based on the state of the record
    are unfounded. We agree with the Crowns submission that the Crown had a strong
    case that included the 911 call recording confirming the complainants
    evidence. Moreover, it was open to the trial judge to accept the complainants
    evidence on the key pad (found at pp. 53-54 of the transcript of the
    complainants evidence). We see no error in the trial judges findings of
    guilt.

[4]

As for the appellants sentence, in our view, 32 months was lenient
    given the serious nature of the sexual assault.  Among other things, the
    complainants abduction and confinement were premeditated.

[5]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

K. Feldman J.A.

Janet Simmons
    J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapierre, 2016 ONCA 346

DATE: 20160506

DOCKET: C59779

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Lapierre

Appellant

DOCKET: C59821

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Abouchakra

Appellant

Ian McLean, for the appellant Nicholas Lapierre

Michael Smith and Jessica Abou-Eid, for the appellant
    Joseph Abouchakra

Holly Loubert, for the respondent

Heard and released orally: April 29, 2016

On appeal from the convictions entered on April 30, 2014
    and the sentence of Mr. Abouchakra imposed on December 8, 2014 by Justice Catherine
    A. Kehoe of the Ontario Court of Justice.

ENDORSEMENT

[1]

Joseph Abouchakra, Nicholas Lapierre and John Mangione were convicted of
    robbery, attempt robbery, assault causing bodily harm and assault (x3)
    following three separate incidents over the span of half an hour. They admitted
    their presence at the first and second incidents.

[2]

Mr. Lapierre and Mr. Abouchakra both appeal their convictions, arguing
    in essence that the verdicts were unreasonable.

[3]

Mr. Abouchakra also seeks leave to appeal and, if leave is granted,
    appeals his sentence of 12 months jail on each of the offences to be served
    concurrently.

A.

First Incident: Confederation Park

[4]

In the evening of July 5, 2012, after celebrating Rodrigo Brands 50
th
birthday, he and members of his family visiting from Alberta, the Tootles, walked
    through Confederation Park, in Ottawa. The appellants approached the family. A
    fight ensued. The family subdued the three men and called police.

[5]

The appellants submit that the trial judge erred in holding that there
    was no air of reality to their defence of self-defence in relation to the fight
    between the Brand-Tootle family and the appellants.

[6]

While the appellants rely on the concept of air of reality at law, this
    was a judge alone trial and, in light of the trial judges findings that the Brand-Tootles
    were acting in self-defence, we read the trial judge as simply saying that the
    Crown had proved beyond a reasonable doubt that the appellants were not acting
    in self-defence. This holding was open to her on the evidence. There was no
    evidence that the Brand-Tootles provoked the fight, or that they threw the
    first punch.

[7]

The trial judge found that all three appellants were actively engaged in
    the assault.

[8]

Mr. Abouchakra contends that there was insufficient evidence to find
    more than his mere presence at the scene.

[9]

The trial judges findings as to what happened during the first incident
    are amply supported by the evidence. See e.g., the evidence of Jonathan Tootle,
    Gary Tootle, and Rodrigo Brand. The evidence was that at the outset of the
    altercation when the person in the red shirt took an aggressive stance towards
    Robert Tootle, the other two men, wearing black shirts, stepped in behind and
    supported him.

[10]

Mr. Lapierre also contends that there was insufficient evidence as to
    his identity, namely, that he was the person wearing the red shirt. The trial
    judges findings are owed considerable deference on appeal and we would uphold
    her finding in this regard.

[11]

The appellants also submit that there is no evidence of a common
    intention in relation to this incident. There did not have to be. On the
    findings of the trial judge the three were all common participants and
    principal actors. See
R. v. Ball
, 2011 BCCA 11, 267 C.C.C. (3d) 532,
    at para. 25.

[12]

The appeal with respect to the first incident is dismissed.

B.

second Incident: The Laurier Transit Station

[13]

In relation to the second incident involving Ryan Miszkiel, counsel for
    Mr. Abouchakra submits that there is no evidence he was involved in the
    robbery. Counsel submits that, at its highest, the evidence establishes that Mr. Abouchakra
    was in possession of stolen property.

[14]

The record indicates that Mr. Lapierre took the cell phone from
    Mr. Miszkiel, a second aggressor punched the victim in the eye and
    Mr. Abouchakra, who was standing a short distance away, did not
    participate but merely accepted the phone.

[15]

On this evidence Mr. Abouchakra did more than stand by during the
    robbery. He came with the other two involved in the robbery and observed the
    phone being taken from Mr. Miszkiel and the victim being assaulted. It is
    against that background that Mr. Abouchakra received the phone and left with
    the other two assailants.

[16]

The appeal in relation to the second incident is dismissed.

C.

third Incident

[17]

In terms of the third incident, Mr. Adams, a City of Ottawa employee
    observed the incident that took place approximately 100 feet away from where he
    was parked. Mr. Adams saw Mr. Lapierre approach an unknown man and attempt to
    rob him of his satchel. Two other men stood within 15 feet of the attack. Mr.
    Adams testified that he had also observed the earlier incident involving Mr.
    Miszkiel and that the same individuals were involved in both incidents.

[18]

The trial judge found that these two other men knew, or were wilfully
    blind to, Mr. Lapierres intention as he approached the victim. The two other
    men had just participated in the robbery of Mr. Miszkiel and in the assaults
    that took place in Confederation Park, and were ready to assist Mr. Lapierre,
    if required. The trial judge convicted all three of attempted robbery.

[19]

Counsel for Mr. Abouchakra submits that it was speculation on the trial
    judges part to find that he was there to assist Mr. Lapierre, if and when
    required.

[20]

Given that all three transactions took place during a 30 minute period,
    and that Mr. Abouchakra was close at hand during this attempted robbery, the
    trial judge was entitled to make the common sense inference she did. We also
    note that Mr. Adams also saw the three appellants afterwards sitting together,
    pointing back to the area and laughing.

[21]

The appeal in relation to this incident is dismissed.

D.

Sentence

[22]

With respect to sentence, in light of the very fair submissions by
    counsel for Mr. Abouchakra, we would not grant leave to appeal sentence.

E.

Disposition

[23]

In relation to Mr. Lapierre, the appeal as to conviction is dismissed. In
    relation to Mr. Abouchakra the appeal as to conviction and sentence is
    dismissed.

K.M.
    Weiler J.A.

Janet
    Simmons J.A.

Gloria Epstein J.A.