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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. L.T., 2019 ONCA 535

DATE: 20190624

DOCKET: C65749

Benotto, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.T. (A Young Person)

Appellant

Najma Jamaldin, for the appellant

Megan Petrie, for the respondent

Heard and released orally: June 19, 2019

On appeal from the conviction entered on June 15, 2018
    and the sentence imposed on July 25, 2018 by Justice J.E. Allen of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant submits that the trial judge erred in his credibility
    analysis of the complainant by failing to consider the inconsistencies arising
    from different accounts she gave about the alleged sexual assault.

[2]

We do not agree. The trial judge did not overlook the inconsistencies.
    He referred to the complainants lack of precision with respect to times and
    her confusion about what happened after the assault. A trial judge is not
    required to address every inconsistency in the evidence. It was open to him to
    accept the complainants evidence and conclude that she said no to the sexual
    activity and was unshaken in her core account of communicating this to the
    appellant.

[3]

The appellant further submits that the trial judge erred by not
    considering the defence of honest but mistaken belief prior to making
    credibility findings.

[4]

Again, we do not agree. There was, as the trial judge found, no air of
    reality to the defence which trial counsel did not raise. The appellant and the
    complainant gave diametrically opposed versions of what occurred. On the
    appellants evidence, she was an active participant. On her evidence, she said
    no. Honest but mistaken belief is
communicated
consent as opposed to
assumed
or
implied
consent  see
R. v. Barton
, 2019 SCC 33.

[5]

Courts have generally refused to put the defence of honest but mistaken
    belief in consent to a jury when the accused clearly bases his defence on
    voluntary consent and he also testifies that the complainant was an active,
    eager or willing partner whereas the complainant testifies that she had
    vigorously resisted. In such cases, the question is generally simply of
    credibility of consent or no consent. See
R. v. Park
, [1995] 2 S.C.R.
    836 at para. 26.

[6]

The appellants youth and level of maturity were considered and taken
    into account by the trial judge throughout.

[7]

With respect to sentence, we see no error in principle, nor is it
    demonstrably unfit. Most of the fresh evidence was before the sentencing judge.
    The appellants continued efforts at rehabilitation are commendable, but they
    do not affect the trial judges determination as to sentence.

[8]

The appeal is dismissed, leave to appeal the sentence is granted, but
    the sentence appeal is dismissed.

M.L. Benotto J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. La Force, 2019 ONCA 522

DATE: 20190620

DOCKET: C64724

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anna La Force

Appellant

Raymond Boggs, for the appellant

Manasvin Goswami, for the respondent

Heard: June 18, 2019

On appeal from the convictions entered by
    Justice Beth A. Allen of the Superior Court of Justice on July 14, 2017, with
    reasons reported at 2017 ONSC 4303.

REASONS FOR DECISION

[1]

The appellant, Anna La Force, was charged on a
    three-count indictment with aggravated assault, assault with a weapon, and
    unlawful entry into a dwelling house with intent to commit an indictable
    offence. She was acquitted on the latter count but convicted on the assault
    counts. She appeals her convictions.

[2]

The appellants convictions resulted from her assaults
    on the complainant, Allison Robinson, on July 23, 2014. On the facts as found
    by the trial judge, on that day the complainant and Luisa Botelho entered an
    apartment rented by Cavin Banfield. At the time, both the appellant and Ms.
    Botelho were in a relationship with Mr. Banfield. He was not in the apartment
    at the time.

[3]

The appellant subsequently arrived at the
    apartment. The appellant had lived with Mr. Banfield in the apartment for about
    two years.

[4]

The three women ended up in the apartments
    bedroom. An argument broke out between Ms. Botelho and the appellant. Ms.
    Robinson attempted to block the appellant from reaching Ms. Botelho. At that
    point, the appellant began to assault Ms. Robinson, stabbing her with a pair of
    scissors. Ms. Botelho retreated into a bathroom. Ms. Robinson tried to wrestle
    the scissors away from the appellant, who then bit Ms. Robinson on her shoulder,
    ribcage, and breasts. Ms. Botelho called the police. Ms. Robinson was able to
    subdue the appellant. The charges against the appellant ensued.

[5]

The appellant advances three grounds of appeal.

[6]

The appellants main ground of appeal is that
    the trial judge failed to consider her defence of lawful attempt to eject two
    trespassers from the apartment. As a result, her convictions should be set
    aside and a new trial ordered.

[7]

It is far from clear that the appellant squarely
    raised a defence under s. 35 of the
Criminal Code
for the trial
    judges consideration. Although in her written closing submissions at trial the
    appellant argued that she was entitled to use as much force as is necessary to
    defend herself from attack, or to eject a trespasser, the appellants primary
    position at trial was that she was not guilty of an offence because she was
    acting in self-defence:
Criminal Code
, s. 34.

[8]

That said, in considering self-defence the trial
    judge made clear findings of fact about the purpose of the appellants acts against
    Ms. Robinson and their reasonableness. Those findings establish beyond a
    reasonable doubt that the appellant was not acting in defence of property
    within the meaning of s. 35 of the
Criminal Code
.

[9]

A defence under s. 35 of the
Criminal Code
is available where the act that constitutes the offence is committed for the
    purpose of removing a person who is not entitled to enter the property or
    preventing that person from taking property. The trial judge made the following
    findings about the appellants purpose in assaulting Ms. Robinson, at paras. 84
    and 93 of her reasons:

I accept that Ms. Robinson kept herself
    between Ms. La Force and Ms. Botelho and when Ms. La Force could not get to Ms.
    Botelho, who she actually had the grievance against, she embarked on a series
    of vicious attacks on Ms. Robinson for blocking her from getting to the
    bathroom where Ms. Botelho was.

I find in conclusion that Ms. La Forces
    stabbings and biting were not directed to self-defence but rather to forcing
    Ms. Robinson to let her go so she could go and attack Ms. Botelho who she
    regarded as her true foe.

[10]

The evidence amply supported those findings. The
    trial judge found that the appellant situated herself with her back to the
    bedroom door so as to physically block the bedroom door, which would prevent
    Ms. Robinson and Ms. Botelho from leaving: at para. 86. As well, the trial
    judge accepted Ms. Robinsons version of events, which included her testimony
    that the appellant continued to assault her notwithstanding that Ms. Botelho
    had called 911 for police assistance.

[11]

In considering self-defence, the trial judge
    found that the appellants acts were not reasonable in the circumstances
    stating, at para. 95:

I think my findings on the other factors make
    it clear that the stabbing and biting was not reasonable in the circumstances.
    Ms. La Forces actions were offensive actions. They were not acted out for the
    purpose of Ms. La Force defending herself. Ms. La Forces state of mind was
    such that she was very angry with Ms. Botelho for sleeping with Mr. Banfield.
    She was focused on getting past Ms. Robinson to confront Ms. Botelho. Ms.
    Robinson bravely put herself in danger by blocking Ms. La Force in order to
    help her good friend.

[12]

Even when looked at through the lens of s.
    35(1)(d), the evidence established beyond a reasonable doubt that the
    appellants acts of stabbing and viciously biting Ms. Robinson were not
    reasonable in the circumstances.

[13]

Accordingly, even though the trial judge did not
    address a s. 35 defence in her reasons, her findings of fact reveal that such a
    defence was not available to the appellant in the circumstances.

[14]

As her second ground of appeal, the appellant
    submits that the trial judge erred in law by admitting evidence of her
    discreditable conduct consisting of her prior conduct and meetings with Ms.
    Robinson and Ms. Botelho, and by using it for the impermissible purpose of
    propensity reasoning. We are not persuaded by this submission.

[15]

Although this ground of appeal was not developed
    in the appellants factum, the transcript of the first day of trial records
    Crown counsel advising the trial judge that, based on her discussions with
    defence counsel, there was no issue with the Crowns discreditable conduct
    application. As a result, counsel would not be making legal argument on the
    application and Crown counsel would simply introduce the evidence. Defence
    counsel did not object to this representation to the court and the trial
    proceeded on that basis. Defence counsel did not object to the evidence of
    discreditable conduct as it was introduced.

[16]

As well, the trial judge did not rely on it for
    any impermissible purpose.  Rather, the evidence of the appellants past
    interactions with Ms. Robinson and Ms. Botelho was material to her defence of
    self-defence, specifically whether the appellant had reasonable grounds to
    believe that Ms. Robinson or Ms. Botelho were using force or making a threat of
    force against her.

[17]

Accordingly, we do not give effect to this
    ground of appeal.

[18]

Finally, in her factum the appellant contends
    that her assault convictions conflict with her acquittal on the count of
    unlawful entry. We see no inconsistency. The trial judge acquitted the
    appellant on the unlawful entry count on the basis that she had a reasonable
    doubt that the appellant was in the apartment without lawful excuse. As the
    Crown notes in its factum, a person who is lawfully present in a dwelling house
    can be found guilty of assaulting someone else in the premises. The verdicts
    are not inconsistent.

[19]

For these reasons, the
    appeal is dismissed. The sentence appeal was abandoned.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : R. c. Lauzon, 2019 ONCA 546

DATE: 20190628

DOSSIER: C62061

Les juges Sharpe, Benotto et Roberts

ENTRE

Sa Majesté la Reine

Intimée

et

Martin Lauzon

Appelant

Christine Mainville, avocate de service
    pour lappelant

Philippe G. Cowle, pour lintimée

Date de laudience: le 21 juin 2019

En appel de la condamnation prononcée le 23 octobre 2015, et la peine
    imposée le 18 mars 2016, par le juge Robert Pelletier de la Cour supérieure de
    justice de lOntario.

MOTIFS DE LA COUR

[1]

L'appelant interjette appel de sa condamnation pour négligence criminelle causant la mort de Jason Eligh, qui est prévue à l'al. 219(1)(b) du Code criminel, L.R.C. (1985), ch. C-46
.

[2]

Le juge du procès a déterminé que lors de
    lincident tragique en question, lappelant conduisait une semi-remorque qui
    représentait un danger au public dû à ses défectuosités. Percevant des
    contradictions entre les témoignages de lappelant dans une autre procédure et
    lors du procès, il a rejeté le témoignage de lappelant à propos de ses
    inspections quotidiennes des roues de la remorque. Selon le juge du procès,
    lappelant a été négligent en omettant de faire un examen quotidien « soigné
    et complet » du véhicule, de sorte quune des doubles-roues arrières du
    dernier essieu de la remorque sen est détachée, a franchi le muret servant de
    bande médiane entre les deux voies doubles de lAutoroute 401, et a fini par
    heurter lautomobile conduite par M. Eligh, le blessant mortellement sur-le-champ.

[3]

Lappelant présente les moyens dappel
    suivants :

i. le juge
    du procès a erré, eu égard à la norme juridique en matière de négligence
    criminelle, en jugeant que lomission de procéder à un examen « soigné et
    complet » de la remorque suffisait pour établir un écart marqué et
    important de la norme de conduite dune personne raisonnable dans les mêmes
    circonstances.

ii. le juge
    du procès a erré en permettant lutilisation du témoignage incriminant
    antérieur de lappelant, tel que défini dans larrêt
R. c. Nedelcu
, 2012 CSC 59, [2012] R.C.S. 311, en contravention de lart. 13 de
    la
Charte canadienne des droits et libertés
.

[4]

Nous acceptons le deuxième moyen dappel,
    cest-à-dire que le juge du procès a commis une erreur en utilisant le
    témoignage incriminant de lappelant. Il nest donc pas nécessaire de trancher
    le premier moyen dappel.

[5]

Larticle 13 de la
Charte
accorde le droit suivant à une partie ou un témoin :

Chacun a droit à ce quaucun témoignage
    incriminant quil donne ne soit utilisé pour lincriminer dans dautres
    procédures, sauf lors de poursuites pour parjure ou pour témoignages
    contradictoires.

[6]

Pour invoquer lart. 13 de la
Charte
, on doit démontrer, premièrement, que le témoignage en
    question a été contraint; et, deuxièmement, que ce témoignage est incriminant :
    voir
Nedelcu
, au para. 8. Les parties conviennent
    que le témoignage initial de lappelant a été contraint et que si ce témoignage
    était incriminant, le juge du procès a erré en lutilisant de la manière dont
    il la fait.

[7]

Lexpression « témoignage incriminant » réfère
    à un témoignage qui peut être utilisé par lÉtat, directement ou indirectement,
    « pour démontrer la culpabilité du témoin, cest-à-dire pour prouver ou
    pour laider à prouver lun ou plusieurs des éléments constitutifs de linfraction
    reprochée au témoin lors de son procès ultérieur » :
Nedelcu
,
    au para. 9; voir aussi
R. v. Wenham
, 2013 ONSC
    7431, 59 M.V.R. (6th) 261, aux paras.
57-61.

[8]

Un « témoignage incriminant » comprend
    un témoignage antérieur qui pouvait sembler inoffensif en soi, mais qui deviendrait
    incriminant par la suite. Par exemple, lÉtat pourrait utiliser un témoignage dans
    une procédure ultérieure pour prouver la fabrication du témoignage initial faite
    « dans lintention délibérée de tromper le tribunal et dentraver le cours
    de la justice ». Ceci « démontrerait la conscience de
    culpabilité, à partir de laquelle le juge des faits pourrait, sil en décidait
    ainsi, inférer la culpabilité » de laccusé:
Nedelcu
, au para. 20.

[9]

Il est bien connu que si le témoignage initial
    dun témoin est incriminant, lÉtat ne peut lutiliser par la suite dans
    dautres procédures, ni pour le contre-interroger quant à sa crédibilité ni
    pour lincriminer. La seule exception demeure les poursuites pour parjure ou
    pour témoignages contradictoires : voir
Nedelcu
, au para. 15;
R. c. Henry
, 2005 CSC
    76, [2005] 3 R.C.S. 609, aux paras. 49-50;
ACI Brands Inc. v. Pow
, 2014 ONSC 2784, 313 C.C.C. (3d) 311, au para. 111.

[10]

En lespèce, le juge du procès sest servi du
    témoignage que lappelant a été contraint de fournir dans une autre procédure pour
    diminuer sa crédibilité et rejeter son témoignage et sa défense lors de son
    procès.

[11]

À notre avis, le témoignage antérieur de
    lappelant était incriminant. Le juge du procès nétait donc pas en mesure de
    lutiliser comme il la fait.

[12]

Premièrement, bien que le juge du procès ait
    constaté que son rejet du témoignage de lappelant nétait pas une preuve de
    culpabilité, à notre avis, il sest tout de même appuyé sur cette contradiction
    pour lobjectif inadmissible de déterminer la norme de conduite applicable et si
    lappelant avait été négligent:

La contradiction soulignée, à mon avis,
    atteint fondamentalement la qualité que lon peut accorder au témoignage du
    prévenu. Si, effectivement, M. Lauzon avait constaté une perte possible dhuile
    à lessieu, comme il a dit à lenquête préliminaire, au niveau de la roue qui
    sest éventuellement séparée, son devoir était den déterminer la cause et de
    le corriger en vertu des règlements sous le
Code de la route
.

[13]

Deuxi
è
mement, et contrairement aux principes énoncés dans
Nedelcu
, le juge du procès sest servi de la contradiction pour miner la
    crédibilité de lappelant et conclure que son témoignage était fabriqué. En
    tenant compte du témoignage antérieur de lappelant, le juge du procès a
    déterminé que lappelant a fourni « un témoignage tout à fait incompatible »
    avec son témoignage antérieur concernant ses inspections de la remorque. Il a
    donc fini par conclure que lappelant « a volontairement et sciemment
    rendu deux témoignages contradictoires sur une question fondamentale,
    cest-à-dire les observations ou non au niveau des roues ». Par
    conséquent, le juge du procès était davis qu« il serait imprudent dun
    Tribunal daccorder une valeur particulière à son témoignage à ce sujet ».

[14]

Nous remarquons également que le juge du procès
    a erré en tenant compte du témoignage antérieur de lappelant, puisque celui-ci
    ne faisait pas partie de la preuve présentée lors du procès.

[15]

Pour ces motifs, nous accueillons lappel et
    annulons la déclaration de culpabilité de lappelant.  Lappelant a purgé sa
    peine.  Nous ordonnons la tenue dun nouveau procès si la Couronne décide de
    lentamer.

« Robert
    J. Sharpe j.c.a. »

« M.L.
    Benotto j.c.a. »

« L.B.
    Roberts j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lo Verde, 2019 ONCA 467

DATE: 20190605

DOCKET: C64307

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Lo Verde

Appellant

Raymond Lo Verde, in person

Amy Ohler, duty counsel

Michael Fawcett, for the respondent

Heard: June 3, 2019

On appeal from the conviction entered on July 2017 and
    the sentence imposed on August 16, 2017 by Justice Joseph Bovard of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Duty Counsel raised two grounds of
    appeals. The first is with respect to the conviction for break and enter. Crown
    counsel agrees that the trial judge erred by failing to address the issue of
    the appellants apparent intoxication in the context of a specific intent
    offence, although defence counsel did not raise any objection at trial.

[2]

Both counsel ask the court to substitute
    a conviction for forcible entry contrary to s. 72 (1) of the Code. So ordered.

[3]

The appellant on his own appeals his
    conviction for sexual assault of the police officer. There is no basis to
    interfere. The trial judge considered all of the evidence and believed the
    officer, which he was entitled to do. This ground of appeal is dismissed.

[4]

Duty counsel also sought to appeal the
    sentence of time served on the sexual assault and to substitute a conditional
    discharge. The appellant brought forward some very positive letters regarding
    his program at Emmanuel College and other positive steps that he has taken
    since the sentencing.

[5]

While we commend the appellant highly
    for the positive steps he has taken in his life, we are not in a position to
    substitute a conditional discharge when that was not requested at sentencing,
    and when there were other factors at play including substance abuse.

[6]

While leave to appeal sentence is
    granted, the appeal against sentence is dismissed. The victim fine surcharge is
    set aside on consent.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lock, 2019 ONCA 470

DATE: 20190606

DOCKET: C65424

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory William Lock

Appellant

Gregory Lock, in person

Michael Fawcett, for the respondent

Heard: June 3, 2019

On appeal from the conviction entered on September 20,
2017 and the sentence imposed on September 20, 2017 by Justice Charbonneau of
the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks another adjournment to retain Mr. Murphy but Mr.
Murphy advised the Crown that he has not been retained and doesnt expect to
be. In those circumstances, there is no basis to consider a further
adjournment. Duty counsel is not in a position to assist the appellant. He
advised the court that he is abandoning the appeal.

[2]

The appeal is dismissed as abandoned.


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. M.C., 2019 ONCA 502

DATE: 20190618

DOCKET: C63699

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Louis P. Strezos, Promise Holmes Skinner and Kaleigh
    Davidson, for the appellant

Candice Suter, for the respondent

Jonathan Rudin and Melissa Atkinson, for the intervener Aboriginal
    Legal Services of Toronto

Heard: September 25, 2018

On appeal from the conviction entered by Justice Clayton
    Conlan of the Superior Court of Justice on February 1, 2017, with reasons
    reported at 2017 ONSC 776, and from the sentence imposed on May 1, 2017, with
    reasons reported at 2017 ONSC 2667.

Watt J.A.:

[1]

A.R. and N.A. are brothers. Each alleged that a relative, M.C.,
    committed sexual offences on him. It happened, each said, when each was very
    young.

[2]

A.R. recalled two incidents when he was between five and seven years
    old. N.A. alleged three incidents when he was between six and ten years old.

[3]

M.C. testified. He said that the incidents A.R. and N.A. alleged never
    occurred.

[4]

The judge who presided at M.C.s trial was not satisfied beyond a
    reasonable doubt about the offences that A.R. alleged, but was convinced about
    those N.A. said took place.

[5]

M.C. (the appellant) appeals. He says that the convictions are flawed
    because the judge made mistakes in his assessment of the evidence introduced at
    trial. He also contends that the sentence imposed is unfit.

[6]

As I will explain, I am satisfied that the appellants convictions
    cannot stand. Given the manner in which trial counsel adduced evidence of the
    appellants criminal antecedents, the trial judge could not make an informed
    assessment of its impact on the appellants credibility as a witness. He thus
    erred in relying on that evidence in rejecting the appellants testimony. In
    these circumstances, I do not reach the appeal from sentence.

The Background Facts

[7]

To appreciate the grounds of appeal advanced and conclusion reached, a
    brief reference to the circumstances of the alleged offences and the chronology
    of their disclosure will suffice.

The Principals

[8]

N.A. and A.R. are brothers. They lived with their parents on the Saugeen
    First Nation.

[9]

The appellant, who is significantly older than N.A and A.R., also lived
    with his parents on the Saugeen First Nation. The appellants mother is the
    paternal grandmother of N.A. and A.R.

[10]

N.A.
    said the offences happened when he visited the appellants home. Two took place
    inside the house, one in a detached garage on the property. They occurred between
    June 1, 2001 and December 31, 2005.

The Alleged Offences

[11]

N.A.
    testified that the first incident occurred when he was six or seven years old.
    It happened during the summer when N.A. was alone in the appellants bedroom. The
    appellant tickled N.A. on the bed and asked if N.A. wanted to remove his shirt
    because it was hot. N.A. did so. The appellant then took out his penis and forced
    N.A. to stroke it and suck his dick. The appellant turned N.A. around, put
    on a condom, and had anal intercourse with N.A. The appellant told N.A. to keep
    what had happened a secret.

[12]

The
    second incident happened in the fall when N.A. was between the ages of eight
    and ten years old. N.A. and his family were at the appellants home for
    Thanksgiving dinner. N.A. was asked to go to the detached garage to call the
    appellant for dinner.

[13]

N.A.
    went to the garage where the appellant was working on a stock car. The
    appellant asked N.A. to help him fix a tail light on the vehicle. N.A. explained
    that after he had helped with the tail light repair, the appellant turned me
    around and he stuck his finger in my ass. The appellant then leaned N.A.
    against the stock car, put his penis inside N.A. and eventually asked N.A. to
    stroke his penis until he (the appellant) ejaculated.

[14]

The
    third incident took place in the living room of the appellants home.  N.A. was
    nine or ten years old. N.A.s grandparents (the appellants parents) had gone
    to Tim Hortons for coffee. When N.A. came out of the bathroom, he noticed that
    the appellant had taken his penis out of his pants. He pulled N.A. onto his
    lap. A few minutes later, N.A.s grandparents returned and the anal intercourse
    ceased.

The Initial Disclosure

[15]

The
    initial disclosure narrative involved A.R. and was somewhat inconsistent. What
    does appear clear, however, is that after a verbal altercation between A.R. and
    the appellant, perhaps in November 2013, A.R. disclosed to his mother that the
    appellant had raped him. A.R.s prior disclosures were of particularized
    abuse without any mention of the identity of the abuser.

[16]

According
    to N.A.s mother, when she and A.R. arrived home from the appellants house,
    N.A. asked why A.R. was so upset. A.R. disclosed the abuse by the appellant to
    N.A. who responded [m]om, he raped me too.

[17]

N.A.s
    recollection is different. He recalled not having disclosed the abuse prior to
    police attendance at their home on March 2, 2014.

The Police Disclosure

[18]

On
    March 2, 2014, the complainants mother called police to report a dispute involving
    her sons about marijuana use and a trip to Tim Hortons. An officer attended,
    found the complainants mother in a very emotional state, and learned that the
    dispute was about her sons having been hurt as little boys. The officer asked
    whether the boys had been hurt physically or sexually. Their mother responded
    sexually, by a family member.

[19]

Both
    A.R. and N.A. agreed to provide a formal statement and to accompany the officer
    to the local police detachment to do so. While awaiting another officer who
    would conduct a formal interview, both A.R. and N.A. told the responding
    officer that the appellant, their uncle, used to make them do stuff, sexual
    stuff when they were little boys. This had happened at their grandmothers
    house. N.A. told the officer that full penetration had occurred when he (N.A.)
    was five, turning six.

The Evidence of M.C.

[20]

The
    appellant testified that he had lived his entire life on the Saugeen First
    Nation. He denied any suggestion that he ever touched A.R. or N.A.
    inappropriately or played with them in a sexual way. His evidence was neither
    more nor less than a simple and flat denial of the allegations.

The Grounds of Appeal

[21]

On
    the appeal from conviction, the appellant advances two grounds of appeal. Each
    has to do with the manner in which the trial judge scrutinized the evidence
    adduced at trial, especially the testimony of the appellant, in reaching his
    conclusion that the appellants guilt had been established beyond a reasonable
    doubt.

[22]

As
    I would paraphrase them, the appellant says that the trial judge erred in law:

i.

in his treatment of the appellants previous convictions of driving
    offences as a significant factor in assessing and rejecting the appellants
    evidence; and

ii.

in applying a stricter level of scrutiny in his assessment of the
    appellants testimony than he applied to his assessment of N.A.s evidence.

[23]

On
    the appeal from sentence, the appellant contends that the trial judge erred in:

i.

requiring a causal connection between abuse experienced by the appellant
    and the applicability of the principles in
R. v. Gladue
, [1999] 1 S.C.R. 688
in determining a
    fit sentence;

ii.

failing to find that the appellant had been subjected to abuse as a
    child; and

iii.

failing to instruct himself on the impact that background and systemic
    factors, as well as intergenerational trauma, had on the appellant.

The Appeal from Conviction

Ground #1: The Criminal Record as a Credibility Factor

[24]

The
    first ground of appeal, as it was argued by the parties and the intervener,
    Aboriginal Legal Services (ALS), involves the interplay between the relevance
    of prior convictions to the credibility of an accused who testifies and the
    influence, if any, of
Gladue
principles on that assessment.

[25]

First
    of all, some background.

The Testimony of the Appellant

[26]

In
    giving evidence on his own behalf, the appellant was questioned by his own
    counsel and cross-examined by the Crown about drinking, driving and the lack of
    a drivers licence.

[27]

The
    appellant acknowledged a drinking problem when he was younger. He said that he
    had gone to jail as a result of drinking and driving charges. His longest
    period of incarceration had been 90 days. He had also been placed on probation.
    He admitted that he did not have a drivers licence and did not need one to
    drive stock cars at nearby Sauble Speedway.

[28]

In
    cross-examination, the appellant acknowledged that he got into trouble three
    or four times for drunk driving. On four or five other occasions the
    appellant said he had been convicted for driving a car when you werent
    supposed to, although he could not recall when these troubles had occurred.

[29]

Neither
    counsel asked the appellant about the specifics of any prior convictions. No
    dates. No offences. No places. No penalties.

The Arguments at Trial

[30]

In
    closing argument at trial, neither counsel referred to the fact or nature of
    the appellants prior troubles as a factor the trial judge should consider in
    assessing the appellants credibility as a witness.

[31]

The
    trial judge did not ask any questions or invite any submissions about the
    relevance of the appellants prior convictions to an assessment of his
    credibility as a witness or the weight, if any, to be assigned to them for that
    purpose.

The Reasons of the Trial Judge

[32]

The
    trial judge concluded that he did not believe the appellants denial of the
    conduct alleged by N.A. Nor did the appellants testimony raise a reasonable
    doubt about his guilt.

[33]

The
    trial judge began his assessment of the appellants testimony by pointing out
    a few things that troubled him, aside from the fact that the appellants
    denials were irreconcilable with N.A.s evidence, which the trial judge
    accepted. Among the trial judges concerns were:

i.

carelessness in responding to questions inviting comparison between two
    sketches of the inside of the appellants home;

ii.

a lack of basic common sense;

iii.

an emphatic denial as ever having been alone with either complainant;
    and

iv.

the appellants history of crimes of dishonesty.

[34]

In
    connection with the history of crimes of dishonesty, the trial judge said:

Third and finally, I am concerned about M.C.s history of
    crimes of dishonesty. He admitted in cross-examination to have chalked-up four
    or five convictions for driving while prohibited. That is not surprising, since
    he has accumulated multiple convictions for drunk driving. A person who
    repeatedly does what he is prohibited from doing shows a callous disregard for
    the rules. It is a form of dishonesty.

The Arguments on Appeal

[35]

The
    appellant says that in
R. v. Corbett
, [1988] 1 S.C.R. 670, the Supreme
    Court of Canada recognized a discretion to exclude evidence of prior convictions
    if their probative value on the issue of credibility is overborne by their
    prejudicial effect. This discretion is informed by several factors. No single
    factor is dispositive, no list of factors complete.

[36]

Among
    the factors which may engage this exclusionary discretion under
Corbett
are the nature of the conviction as it bears on credibility, on the one hand,
    and its potential for prejudice through prohibited reasoning on the other; the proximity
    of the conviction to the time of testimony; the manner in which the defence has
    cross-examined Crown witnesses. What these factors signal is a focused inquiry
    on the nature of the conviction and its temporal connection to the time at
    which the accused testifies.

[37]

The
    appellant accepts that in a jury trial, the
Corbett
discretion is
    invoked by a motion at the close of the Crowns case and before the defence is
    required to make its election about calling evidence. The purpose of the
    inquiry is to determine which prior convictions have a sufficient bearing on
    the testimonial trustworthiness of the accused to outweigh any prejudice that
    may result by inviting propensity reasoning. These convictions may be put to
    the accused should she or he decide to testify. They will be the subject of a
    specific instruction by the trial judge about their use during jury
    deliberations.

[38]

The
    appellant does not suggest that the formal
voir dire
procedure
    followed in jury trials should be followed in judge alone trials. But he does
    contend that the necessary sorting out must be done in closing argument
    followed by proper self-direction or instruction. The failure to do so here
    resulted in improper reliance on dated convictions which lacked any persuasive
    force on testimonial trustworthiness, the only issue on which they had any
    relevance.

[39]

The
    appellant also invokes
Gladue
principles as relevant in an assessment
    of the probative value and prejudicial effect of an Indigenous persons
    criminal record. A record rooted in systemic factors, rather than as
    intentional disregard for the law, would result in a prejudicial inference of
    testimonial dishonesty. In recent years,
Gladue
principles have been
    extended beyond sentencing proceedings. No reason in logic or policy forecloses
    extension of
Gladue
principles to the discretion for which
Corbett
provides. The appellant asks this court to receive as fresh evidence the
Gladue

report prepared for his sentencing to provide an evidentiary foundation for
    this argument.

[40]

In
    the end, the appellant says, the trial judge erred in relying on the
    appellants criminal record in assessing his credibility. The convictions were
    dated and remote. The judge did not give counsel an opportunity to make
    submissions about the probative value of the record on the appellants
    credibility as a witness. And the judge did not take into account the impact of
    systemic factors on the accumulation of convictions when gauging their
    probative value.

[41]

The
    respondent rejects the imposition of any obligation on the trial judge to
    invite submissions or to self-instruct on the use of prior convictions in
    assessing the appellants trustworthiness as a witness. When an accused in a
    criminal trial assumes the role of a witness in the proceedings, his or her
    prior convictions are presumptively relevant and thus admissible. Provided the
    accused has not put his or her character in issue, the prior convictions are of
    limited admissibility irrespective of the mode of trial  namely, as a factor
    to be taken into account in assessing the credibility of the accused as a
    witness.

[42]

Where
    the accused alleges that his or her prior convictions have no probative value
    in an assessment of his or her credibility as a witness, it is incumbent on the
    accused to object to their admissibility. This is so because Parliament has
    decided by its enactment of s. 12 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 (
CEA
),
that prior convictions are relevant
    and
prima facie
admissible as a factor in assessing an accuseds
    credibility as a witness. In a judge alone trial, although no
voir dire
is required as in a case tried by a jury, an objection is nonetheless required when
    an accused disputes the relevance, and thus admissibility, of prior convictions
    on testimonial trustworthiness.

[43]

In
    this case, the respondent says, convictions for driving while disqualified are
    offences against the administration of justice. These are offences that are
    relevant to the trustworthiness of an accused as a witness at trial, as they
    have a direct bearing on whether an oath to tell the truth will bind the
    conscience of the witness. These offences are entitled to some weight in the
    credibility assessment. And the weight assigned to them by the trial judge is
    owed deference in this court.

[44]

The
    respondent takes issue with the relevance of
Gladue
principles to the
    analysis required by
Corbett
. The
Gladue
report was not
    prepared for this purpose, nor was any argument raised at trial of the nature
    advanced here. The respondent submits it is not in the interests of justice to
    permit the use of the
Gladue
report for this purpose or to permit the
    appellant, supported by ALS, to advance the argument for the first time in this
    court.

[45]

To
    advance the argument on the evidentiary foundation provided by the
Gladue
report, the appellant must satisfy the court that the report should be admitted
    as fresh evidence. But, the respondent says, the appellant cannot satisfy the
    admissibility and cogency requirements which must be met according to the
    authorities.

[46]

The
    report consists of at least double hearsay, neither level of which would
    qualify for reception under the principled approach. The relevant statements
    are unsworn, edited and incomplete. In addition, the respondent continues, the
    report is not relevant to a decisive issue, not reasonably capable of belief,
    and not sufficiently probative to have affected the result at trial. Further, although
    due diligence is not a condition precedent to the admissibility of fresh
    evidence on appeal, it is nonetheless important in assessing whether the
    interests of justice require the admission of this evidence. In the absence of
    any scent of a claim of ineffective assistance of counsel, this evidence could
    have been gathered for introduction at trial. It was not. Its absence remains
    unexplained. It should not be admitted in this court.

[47]

The
    respondent also disputes the appellants right to challenge, for the first time
    in this court, the admissibility of his criminal record. Trial counsel
    introduced the fact and nature of the prior convictions at trial. No
Corbett
application was brought. Nor did the appellant seek its functional equivalent
    a self-instruction about the lack of probative value of some or all of the
    prior convictions. Further, the influence of
Gladue
on the discretion
    recognized in
Corbett
was never mentioned at trial.

[48]

According
    to the respondent, the appellant has failed to establish the conditions
    precedent necessary to oust the general prohibition against raising issues for
    the first time in this court. Contrary to the argument advanced by ALS, the
    respondent says there is no categorical exception to the prohibition when
Gladue

principles are being argued. The evidentiary record is insufficient to
    permit this court to fully, effectively and fairly determine the issue first
    raised here. At trial, counsel made a strategic decision to introduce those
    portions of the appellants record of which complaint is now made. Those
    convictions gained no prominence in the appellants cross-examination by the
    Crown or in closing submissions by either counsel. It ill lies in the mouth of
    the appellant to complain now about their admissibility. No miscarriage of
    justice will occur if the proposed argument is not advanced.

[49]

The
    respondent also challenges the appellant and intervener on the merits of the
    claim that the
Corbett
discretion ought to be infused with
Gladue
principles. Those principles and factors, the respondent says, are tied
    intimately to the highly individualized process of sentencing through their
    relationship with the moral culpability of the offender and the sanctions
    appropriate to the offence of which she or he has been convicted.

[50]

The
    respondent acknowledges that the application of
Gladue
principles has
    extended beyond the traditional sentencing scheme. However, the Supreme Court
    of Canada has confined the principles to other sentencing issues, such as the
    dangerous and long-term offender regimes and the parole ineligibility provisions
    for life sentences. Further, that Court has declined to extend these principles
    to other procedural contexts, such as the representativeness of jury rolls and
    decisions made by Crown prosecutors. Admittedly, this court has gone somewhat
    further in its application of
Gladue
principles outside the sentencing
    context, but the subjects all have an immediate impact on the liberty of an
    Indigenous person.

[51]

In
    the end, the respondent contends,
Gladue
principles do not apply to
    credibility assessments based in part upon an accuseds previous convictions.
    The probative value of prior convictions is a variable, a function of factors
    such as the number of previous convictions; the nature of the offences; and the
    proximity of those convictions to the time of giving testimony. There is neither
    elucidation of the circumstances that underpin the prior convictions, nor
    consideration of those circumstances in assessing the impact of the convictions
    on the trustworthiness of the accused as a witness. The inference of
    testimonial untrustworthiness is derived from the fact, nature and recency of
    the convictions, not the moral blameworthiness of the offender who committed
    them, the issue to which
Gladue
principles are directed.

The Governing Principles

[52]

The
    determination of this ground of appeal involves the interplay of principles
    that govern:

i.

the admissibility and use of prior convictions as factors relevant to an
    assessment of the testimonial trustworthiness of an accused who testifies;

ii.

the circumstances in which an appellate court will permit an appellant
    to advance an argument not made at trial;

iii.

the circumstances in which an appellate court will receive fresh
    evidence in support of a ground of appeal; and

iv.

the extent to which
Gladue
principles apply to a discretionary
    decision about the admissibility of evidence.

The Admissibility of Previous Convictions

[53]

Section
    12(1) of the
CEA
authorizes questioning of a witness about whether the
    witness has been convicted of any offence. The provision reflects a legislative
    judgment by Parliament that evidence of prior convictions is relevant to a
    witness credibility; in other words, to the testimonial trustworthiness of the
    witness:
Corbett
, at p. 685, per Dickson C.J., and p. 720, per La
    Forest J. (dissenting);
R. v. Brown
(1978), 38 C.C.C. (2d) 339 (Ont.
    C.A.), at p. 342.

[54]

The
    rationale upon which s. 12(1) admits prior convictions in relation to
    credibility is that the character of the witness, evidenced by the prior conviction(s),
    is a relevant fact in assessing the testimonial reliability of the witness:
Corbett
,
    at pp. 685-86, citing
R. v. Stratton
(1978), 42 C.C.C. (2d) 449 (Ont.
    C.A.), at p. 461.

[55]

Courts
    have been vigilant to circumscribe the extent to which the Crown may use prior
    convictions of an accused who testifies. Questioning is limited to the facts of
    the conviction, including the offence of which the accused was convicted; the
    date and place of the conviction; and the punishment imposed:
Corbett
,
    at pp. 696-97;
Stratton
, at pp. 466-67;
R. v. Laurier

(1983),
    1 O.A.C. 128 (C.A.), at p. 130. The cross-examination cannot extend to the
    conduct on which the conviction was based, at least in cases where the accused
    has not put his or her character in issue, or to whether the accused testified
    at trial:
Corbett
, at pp. 696-97;
Stratton
, at pp. 466-67.

[56]

The
    weight to be assigned to prior convictions in assessing the trustworthiness of
    the accused as a witness is a variable, not a constant. For example,
    convictions of offences involving dishonesty or false statements have a greater
    bearing on whether an accused witness is likely to be truthful:
Brown
,
    at p. 342;
Corbett
, at pp. 720-21, per La Forest J. (dissenting).
    Similarly, offences demonstrative of a disregard for court orders or the
    administration of justice:
R. v. Gayle
(2001), 154 C.C.C. (3d) 221
    (Ont. C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359;
R.
    v. Thompson
(2000), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31.

[57]

In
    general terms, the probative value of prior convictions with respect to the
    testimonial trustworthiness of an accused witness varies with the nature and
    number of prior convictions and their proximity to the time when the accused
    witness is giving evidence:
Corbett
, at pp. 720-21, per La Forest J.
    (dissenting);
Brown
, at p. 342.

[58]

A
    trial judge has a discretion to exclude evidence of previous convictions when
    the probative value of those convictions on the issue of testimonial
    trustworthiness is exceeded by their prejudicial effect. This discretion
    represents an exception to the general inclusionary rule, which follows from
    Parliaments legislative determination in enacting s. 12(1) of the
CEA,
that prior convictions are relevant to a witness testimonial trustworthiness:
Corbett
,
    at p. 697, per Dickson C.J., and pp. 720-22, 739-40, per La Forest J.
    (dissenting).

[59]

No
    closed list of factors informs the exercise of the exclusionary discretion for
    which
Corbett
provides. But some are acknowledged as relevant. The
    nature of the convictions. The proximity or remoteness of the convictions to
    the time of the testimony. Any similarity between the previous convictions and
    the offences charged. And potentially, the need to maintain a balance between
    the position of the accused and that of a Crown witness whose credibility has
    been impeached on the basis of prior convictions or otherwise:
Corbett
,
    at pp. 740-44, per La Forest J. (dissenting);
Brown
, at p. 342;
R.
    v.

McManus
, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.

[60]

To
    invoke the exclusionary discretion in a jury trial, an accused applies at the
    conclusion of the case for the Crown for an order restricting the number of
    convictions on which the accused may be questioned should she or he testify:
R.
    v. Underwood
, [1998] 1 S.C.R. 77, at paras. 7-9. In a trial without a
    jury, the need for such a formal application may be questionable: see
R. v.
    A.B.
,

2016 ABQB 733, at para. 33.

First Time Arguments

[61]

As
    a general rule, appellate courts will
not
permit an issue to be raised
    for the first time on appeal. The rule is grounded on several concerns:

i.

prejudice to the opponent who lacks the opportunity to respond and
    adduce evidence at trial;

ii.

absence of a sufficient record from which to make findings of fact
    essential to a proper determination of the issue;

iii.

societal interest in finality and the expectation that criminal cases
    will be disposed of fairly and fully at first instance; and

iv.

the important responsibility of defence counsel to make decisions that
    represent a clients best interests and to advance all appropriate arguments
    throughout the trial.

See
R. v. Reid
, 2016 ONCA 524, 338 C.C.C. (3d)
    47, at paras. 39-40, leave to appeal refused, [2016] S.C.C.A. No. 432, citing
R.
    v. Warsing
, [1998] 3 S.C.R. 579, at paras. 16-17, per LHeureux-Dubé J. (dissenting
    in part).

[62]

A
    party who seeks to raise a new issue on appeal must satisfy the appellate court
    that:

i.

the evidentiary record is sufficient to permit the appellate court to
    fully, effectively and fairly determine the issues raised on appeal;

ii.

the failure to raise the issue at trial was not due to tactical reasons;
    and

iii.

no miscarriage of justice will result from the refusal to raise the new
    issue on appeal.

See
Reid
, at paras. 42-43, citing
R. v.
    Brown
, [1993] 2 S.C.R. 918, at p. 927, per LHeureux- Dubé J. (dissenting).

[63]

A
    decision whether to grant or refuse leave to a party to advance an argument for
    the first time on appeal involves the exercise of discretion informed by a
    balancing of the interests of justice as those interests affect all parties:
Reid
,
    at para. 44.

Fresh Evidence on Appeal

[64]

Appellate
    courts may receive evidence on an appeal from conviction where the court
    considers it in the interests of justice to do so. This broad discretion, for which
    s. 683(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
provides, takes into account an appellants
    interest in avoiding a miscarriage of justice by having the appellate court
    consider all evidence relevant to the reliability of the conviction. But it also
    considers the broader societal interest in maintaining the integrity of the
    criminal justice system by respecting the finality of trial verdicts and
    acknowledging the respective functions and expertise of trial and appellate
    courts:
R. v. Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 64.

[65]

A
    party who proffers evidence on appeal germane to a fact in issue at trial must
    be able to provide a satisfactory response to three questions:

i.

Is the evidence admissible under the operative rules of evidence?

ii.

Is the evidence sufficiently cogent that it could reasonably be expected
    to have affected the verdict?

iii.

What explanation, if any, is offered for the failure to adduce the
    evidence at trial and should that explanation affect the admissibility of the
    evidence on appeal?

See
R. v. Truscott
, 2007 ONCA 575, 225 C.C.C.
    (3d) 321, at para. 92;
Reeve
, at para. 66.

[66]

The
    first requirement
admissibility
 is straightforward. The evidence
    proposed for admission on appeal must satisfy the governing admissibility rules
    of the law of evidence. This includes the hearsay rule:
R. v. Manasseri
,
    2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 204, leave to appeal refused,
    [2016] S.C.C.A. No. 513.

[67]

The
    second requirement
cogency
 asks three questions:

i.

Is the
    evidence
relevant
in that it bears upon a decisive or potentially
    decisive issue at trial?

ii.

Is the evidence
credible
in that it is reasonably capable of belief?

iii.

Is the evidence
    sufficiently
probative
that it could reasonably, when taken with the
    other evidence adduced at trial, be expected to have affected the result?

See
Manasseri
, at para. 205.

[68]

Fresh
    evidence tendered to challenge a factual finding made at trial or to undermine
    the credibility of a crucial witness or the reliability of a witness testimony
    must be sufficiently strong to compel the ordering of a new trial, or else it
    will not be received on appeal:
Manasseri
,
at para. 217, citing
R. v. Maciel
, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 49, leave
    to appeal refused, [2007] S.C.C.A. No. 258. The cogency inquiry requires a
    qualitative assessment of the proposed evidence, measuring its probative
    potential considered in the entirety of the evidence admitted at trial and on
    appeal:
Manasseri
, at para. 213.

[69]

The
    final component
due

diligence
 is not a precondition to the
    reception of fresh evidence on appeal. Due diligence enters play when the
    requirements of admissibility and cogency have been satisfied. Then, but only
    then, due diligence becomes a factor to consider in deciding whether the
    interests of justice, especially the need for finality, warrant reception of
    the evidence:
Manasseri
, at paras. 206, 218-220;
Maciel
, at
    para. 50;
Reeve
, at para. 68.

The
Gladue
Principles

[70]

In
R. v. Gladue
, the issue was the proper
    interpretation and application of the
sentencing
principle contained
    in s. 718.2(e) of the
Criminal Code
,
    which states:

718.2
A court that imposes a sentence shall also take
    into consideration the following principles:

(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.

[71]

The
Gladue
court concluded that s. 718.2(e) was more than simply a
    re-affirmation of existing sentencing principles. The
remedial
component of the provision has two aspects  codification of a sentencing
    principle and a direction to sentencing courts to undertake the sentencing of
    Aboriginal offenders differently, in order to endeavour to achieve a truly fit
    and proper sentence in the particular case:
Gladue
, at para. 33.

[72]

The
    inclusion of the words with particular attention to the circumstances of
    Aboriginal offenders means that sentencing judges must pay particular
    attention to those circumstances because they are unique and different from
    those of non-Aboriginal offenders, such that imprisonment may be a less
    appropriate or less useful sanction for Aboriginal offenders:
Gladue
,
at para. 37.

[73]

The
    purpose of s. 718.2(e) is to respond to the problem of overincarceration in
    Canada and, in particular, to the more acute problem of the disproportionate
    incarceration of Aboriginal peoples. Section 718.2(e) and other provisions of
    Part XXIII encourage sentencing judges to apply principles of restorative
    justice alongside or in lieu of other, more traditional sentencing principles
    when making sentencing decisions:
Gladue
, at para. 50.

[74]

In
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court
    made it clear that
Gladue
principles apply to the sentencing of
    Aboriginal offenders for breaching a long-term supervision order (LTSO).
    Systemic and background factors may bear on the culpability of an offender, to
    the extent that they shed light on the offenders moral blameworthiness. Many
    Aboriginal offenders find themselves in situations of social and economic
    deprivation with a lack of opportunities and limited options for positive
    development. These constrained circumstances will rarely, if ever, nullify the
    voluntary nature of their conduct, thus their criminal liability. But these
    circumstances may diminish their moral culpability, an important consideration
    in the fundamental principle of sentencing  proportionality:
Ipeelee
,
    at para. 73.

[75]

The
    decisions in
Gladue
and
Ipeelee
are about the
sentencing
obligations of judges, the requirement that they craft a proportionate sentence
    for Aboriginal offenders:
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R.
    167, at para. 25.

[76]

These
    principles do not extend to prosecutorial decisions that have the effect of
    limiting judicial sentencing options:
Anderson
, at para. 25. Nor do
    they have any relevance to the states obligation to make reasonable efforts to
    compile jury rolls by random selection from lists that draw from a broad
    cross-section of society and deliver jury notices to those who have been
    randomly selected:
R. v. Kokopenace
, 2015 SCC 28, [2015] 2 S.C.R. 398,
    at para. 98. Beyond the sentencing context, the reach of these principles has
    been limited:
Anderson
, at paras. 26-28.

The Principles Applied

[77]

As
    I will explain, I would give effect to the ground of appeal arising from the
    trial judges use of the criminal record, quash the convictions entered at
    trial and order a new trial on the counts alleging offences against N.A.

[78]

In
    an early portion of his reasons, the trial judge recorded his task in
    connection with the evidence of the appellant. He wrote:

M.C. testified at trial. He denied any sexual contact of any
    kind between him and either boy. He denied all of the specific allegations put
    forward by the boys in terms of each incident that they described.

If I believe the accused, I must acquit him of the charges.  If
    I do not necessarily accept his evidence but find that it leaves me with a
    reasonable doubt of his guilt, I must acquit him. Even if I am not left with a
    reasonable doubt as a result of the accuseds evidence, I must find him guilty
    only if the rest of the evidence at trial that I do accept persuades me of his
    guilt beyond a reasonable doubt.

[79]

After
    a lengthy summary of the allegations of both complainants, the trial judge
    began his analysis with what he termed The Bottom Line:

The Bottom Line

I do not believe the accuseds denials. Further, I am not left
    with a reasonable doubt as a result of the accuseds evidence.

Regarding the evidence of A.R., as much as I feel great empathy
    for the young man, I cannot safely rely upon his evidence.

As for N.A., I found him to be a credible and reliable witness.
    I accept his evidence as to what M.C. did to him.

[80]

The
    trial judge then turned to the testimony of the appellant. He began:

Aside from the fact
    that M.C.s denials are irreconcilable with the evidence of N.A., whose
    evidence I accept, I am troubled by a few things about the evidence of the
    accused.

[81]

The
    trial judge then proceeded to explain why he did not believe the appellants
    evidence and why that evidence did not raise a reasonable doubt about the
    appellants guilt. As noted above, among his reasons was the appellants
    history of crimes of dishonesty:

Third and finally, I
    am concerned about M.C.s history of crimes of dishonesty. He admitted in
    cross-examination to have chalked-up four or five convictions for driving while
    prohibited. That is not surprising, since he has accumulated multiple convictions
    for drunk driving. A person who repeatedly does what he is prohibited from
    doing shows a callous disregard for the rules. It is a form of dishonesty.

[82]

It
    was of course open to the trial judge to reject the testimony of the appellant
    that the conduct alleged by N.A. never occurred. But his reasons for doing so
    must be free of legal error.

[83]

In
    this case, the trial judges rejection of the appellants evidence because of
    his history of crimes of dishonesty is fatally flawed for several reasons.

[84]

As
    we have seen, s. 12(1) of the
CEA
permits a witness to be questioned
    about prior convictions of offences. This enactment reflects a legislative
    determination that prior convictions are relevant to the testimonial
    trustworthiness of a witness. And we have also seen that the proper manner in
    which the witness is to be questioned involves being asked about the offence,
    the place and date of the conviction and the punishment imposed. These details
    assist the trial judge in assigning the weight, if any, to the convictions when
    assessing the witness testimonial trustworthiness.

[85]

In
    this case, the manner in which counsel at trial adduced evidence about the
    appellants troubles deprived the trial judge of the information necessary to
    make an informed assessment of the impact, if any, of the prior convictions on
    the appellants credibility as a witness. No description of the offence. No
    dates of conviction. No punishment imposed. The descriptive drunk driving
    does not assist in the absence of a
Criminal Code
provision creating
    such an offence.

[86]

Further,
    the reference to the appellants history of dishonesty seems at once
    speculative and sits uncomfortably close to the use of propensity reasoning.
    Reasonable people may differ about whether the
Criminal Code
offence
    of driving while disqualified is an offence of dishonesty or more properly
    characterized as an offence against the administration of justice. However
    characterized, without any details about the number and proximity of the
    convictions, nothing informed could be said about their impact on testimonial
    trustworthiness.

[87]

In
    these circumstances, it becomes unnecessary to consider the impact, if any, of
Gladue
principles on the exercise of the
Corbett
discretion under s. 12(1) of
    the
CEA
, as well as the motion to introduce fresh evidence in support
    of that argument raised for the first time in this court.

Conclusion

[88]

For
    these reasons, I would allow the appeal, set aside the convictions and order a
    new trial on those counts of which the appellant was convicted.

Released: DW JUNE 18 2019

David Watt J.A.

I agree. M.L. Benotto J.A.

I agree. L.B. Roberts 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. Majdalani, 2019 ONCA 513

DATE: 20190619

DOCKET: C64869 / C65845

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dimitri
    Majdalani and Haven Schmidt-Fabian

Appellants

Mark C. Halfyard and Chris Rudnicki, for the appellant,
    Dimitri Majdalani

Robert Sheppard, for the appellant, Haven Schmidt-Fabian

Kathleen Doherty, for the respondent

Heard and released orally: June 17, 2019

On appeal from the convictions entered by Justice K.
    McKerlie of the Ontario Court of Justice, on March 1, 2017.

REASONS FOR DECISION

[1]

The appellants appeal from their convictions for human trafficking and
    procurement of M. C.-W. into prostitution.  The appellant, Haven Schmidt-Fabian,
    abandoned her sentence appeal on November 30, 2018.

[2]

The appellants submit that the trial judge erred by misapprehending
    material evidence, failing to reconcile critical differences in the evidence
    and failing to provide sufficient reasons for her decision.  The verdicts, the
    appellants argue, are unreasonable, and, the convictions should be either be quashed
    and acquittals entered or a new trial ordered.

[3]

We do not accept these submissions.  The thrust of the appellants
    submissions is to ask this court to re-do the trial judges credibility analysis,
    on which her decision turned, without identifying a clear error that would
    permit us to do so.

[4]

There was ample evidence to support the verdicts.  The trial judge was
    entitled to accept that while the complainant voluntarily decided to commence
    and continue as a sex-trade worker, the appellants started to control her
    actions, withhold her earnings, and force her on numerous occasions to work as
    a prostitute against her wishes.

[5]

The trial judge was alive to the deficiencies with the complainants evidence.
    In particular, she dealt with the issues of the complainants alleged motive to
    lie and when the appellants took her cellphone.  She also approached with considerable
    caution the question of whether the complainant had retracted her allegations
    against the appellants and admitted lying to the police when she spoke to the
    police on April 5, 2016.  In our view, it was open to the trial judge to accept
    the complainants evidence as to when her cellphone was taken and to prefer the
    complainants denial of any motive to lie, retraction or lying to the police.  The
    trial judges finding that, the officers did not understand the situation
    correctly and did not accurately record their interactions with the
    complainant, adequately answers the appellants submission that the trial
    judge failed to grapple with the question of whether the complainant lied at
    trial.

[6]

Finally, the trial judges reasons show a clear path to her
    determination of the appellants guilt on the charges for which they were
    convicted.

[7]

Accordingly, we dismiss the appeals

Robert
    J. Sharpe J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meloche, 2019 ONCA 521

DATE: 20190621

DOCKET: C65096

Benotto, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Meloche

Appellant

Eva Taché-Green, for the appellant

Manasvin Goswami, for the respondent

Heard: June 17, 2019

On appeal from the conviction entered on September 22,
    2017 and the sentence imposed on November 20, 2017 by Justice Nancy Mossip of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant represented himself at trial where
    he was convicted of aggravated assault and sentenced to 40 months
    incarceration. He appeals his conviction on the basis that the verdict was unreasonable
    and the trial judge did not provide adequate assistance thereby rendering the
    trial unfair.  He also appeals sentence.

[2]

The appellant was at a house party hosted by his
    brother. As the evening progressed the appellant became intoxicated and was
    angry and aggressive. The appellant and his brother began fighting and were
    having an altercation in the kitchen when the complainant, his brothers
    roommate, came out of his bedroom. The complainant testified that he saw the
    appellant and his brother fighting, stood nearby and he held up his hands and
    said whoa as the appellant appeared to lunge at his brother. The complainant
    recalled that he felt like he got punched in the stomach. In fact he was
    stabbed. He did not testify as to who stabbed him but stated that the appellant
    was standing in front of him, next to a wooden knife block, and the appellants
    brother was to his left and a little behind him.

[3]

A number of witnesses testified saying the
    appellant was intoxicated and aggressive, including four witnesses who had
    locked themselves in the bathroom out of fear earlier in the night. Two
    witnesses testified that after they had left the bathroom, they saw the
    appellant upstairs with a knife and when they left the house, found the complainant
    in the driveway bleeding. The complainant had been stabbed with a serrated
    knife. The surgeon who treated the victim described it as a life threatening
    injury involving a 10-15 cm stab wound.

[4]

The appellant was initially represented by
    counsel. When his counsel sought to be removed from the record, the presiding
    judge repeatedly advised him to obtain a lawyer. He had a legal aid certificate
    that presumably could have been transferred.

[5]

He said he wanted to represent himself because
    he knew what happened. So, he was unrepresented at trial.

[6]

The trial judge twice provided the appellant
    with a Trial Information for Self-Represented Accused handbook and answered
    questions during the proceedings.

Unreasonable verdict

[7]

The issue at trial was who stabbed the
    complainant. The appellant submits that there are other inferences available as
    to the stabber. There were several people at the party and any one of them
    could have stabbed the complainant  for example, the appellants brother.

[8]

We do not accept this submission. The only
    reasonable inference that could be drawn from the entirety of the evidence was
    that the appellant was the stabber.

[9]

The trial judge noted that no witness testified
    that they saw the appellant stab the victim. However, she relied on the
    evidence of witnesses that the appellant was angry and aggressive. He was
    arguing with his brother standing next to a wooden knife block. There were two
    knives later missing from the knife block. The appellants blood was found on
    the counter near the block. The appellant was seen upstairs after the stabbing
    holding a knife at chest height with the blade pointing outward. A knife was
    retrieved from upstairs with the appellants blood on the handle and victims
    blood on the blade.

[10]

The appellant fled the scene and was found
    covered in blood.

[11]

The trial judge found the punch the victim
    felt in the abdomen was actually the injury of the knife. The trial judge found
    that the depth of the wound indicated that the stabbing was intentional.

[12]

Appellants counsel fairly acknowledges that
    this was not a weak circumstantial case. The real ground of appeal is the
    allegation that the trial was unfair because the trial judge did not provide
    adequate assistance to the appellant.

Unfair Trial

[13]

The appellant submits that the trial judge did
    not discharge her duty to assist him and this rendered the trial unfair.

[14]

In particular, he submits that she did not
    adequately explain circumstantial evidence, did not assist him with his
    confusion over forensic evidence, did not explain the elements of the offence,
    did not arrange for him to consider calling his brother as a witness, and did
    not give him guidance with respect to testifying.

[15]

The trial judge provided extensive assistance to
    the appellant. She explained each step of the process and twice gave him Trial
    Information for Self-Represented Accused handbook. At one point she read
    portions of it to him.

[16]

The trial judge explained circumstantial
    evidence in plain language, assisted him with respect to his questions
    regarding forensic evidence, explained his right to call evidence, including
    his brother who was under subpoena by the Crown, and gave him a thorough review
    about his decision to testify or not. Although the trial judge did not
    specifically review the elements of aggravated assault, this did not render the
    trial unfair. The issue at trial was identity. The severe wound suffered by the
    complainant indicated that intent was not an issue.

[17]

The trial judge took every reasonable step and
    as a result the trial was fair. A fair trial must not be confused with the
    most advantageous trial; in the real world, perfection is seldom attained:
R.
    v. Richards
, 2017 ONCA 424 at para 110.

Sentence

[18]

The appellant submits that the sentence is unfit
    and he should have been given credit for onerous bail conditions. We do not
    agree. The sentence fits within the range of sentences for aggravated assault,
    especially given the appellants criminal record. We see no error in principle
    in the 40 month sentence imposed.

[19]

The appeal as to conviction is dismissed. Leave
    to appeal the sentence is allowed, but the appeal is dismissed.

M.L
    Benotto J.A.

B.W.
    Miller J.A.

G. T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohammad, 2019 ONCA 473

DATE: 20190610

DOCKET: C63836

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hussein Mohammad

Appellant

Richard Addelman, for the appellant

Roger A. Pinnock, for the respondent

Heard and released orally: June 6, 2019:

On appeal from the conviction entered on September 27,
    2016 and the sentence imposed on May 5, 2017 by Justice J. Bourgeois of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant submits that the trial judge erred in finding him a party
    to the use of a firearm in the course of a drive-by shooting.

[2]

We disagree.

[3]

The evidence at trial was largely undisputed. The appellant was driving a
    car when the passenger in the front seat fired a single shot into the door of
    the vehicle next to him. Following the shooting, the appellant drove evasively
    in fleeing the scene.

[4]

The appellant says that the trial judge wrongly concluded that he had the
    requisite
mens

rea
for party liability concerning the use of
    the firearm. There was no evidence that he knew of the guns or the shooters
    intention until moments before the shooting, so his actions cannot be said to
    have aided or abetted the shooter. He says, further, that the trial judge
    misapprehended the evidence concerning the appellants driving.

[5]

The trial judge found that the appellant knew what was going to happen
    at least moments before the shooting, and assisted by driving his car
    alongside the victims vehicle, before driving away evasively. These findings
    were amply supported by the evidence and are sufficient to establish party
    liability under s. 21(1) of the
Criminal

Code
.

[6]

We see no misapprehension of the evidence. The appellant is in essence
    making an unreasonable verdict argument. However, it is clear from the trial
    judges reasons that she accepted that the only reasonable inference on the
    evidence was that the appellant had the requisite knowledge to be a party to
    the offence before it occurred.

[7]

The appeal is dismissed.

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft 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. Morgan, 2019 ONCA 468

DATE: 20190605

DOCKET: C65522

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Morgan

Appellant

Andrew Morgan, in person

Michael Dineen, duty counsel

Leslie Paine, for the respondent

Heard: June 3, 2019

On appeal from the conviction entered on January 25, 2018
    by Justice Deena Baltman of the Superior Court of Justice, sitting with/without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction for receiving a financial benefit
    from sexual services contrary to s. 286.2(1) of the
Code
. Duty counsel
    submitted that the trial judge erred by relying on the presumption under
    subsection (3) when some of the other findings suggested that she was not
    satisfied that the complainant gave all her earnings to the appellant.

[2]

We do not agree. The trial judge was not satisfied regarding elements of
    control for the second charge, but did not find, nor was there evidence that
    the complainant did not turn her earnings over to the appellant. There was no
    error in her application of the presumption.

[3]

The issue of subsection 4(1)(a) was specifically discussed by the trial
    judge and defence counsel and rejected. Therefore there was no need for the
    trial judge to address that issue.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morris, 2019 ONCA 509

DATE: 20190618

DOCKET: M50454, M50455, M50456, M50459, M50461, M50462, M50463,
    M50464 & M50469 (C65766)

Strathy C.J.O. (Motions Judge)

BETWEEN

Her Majesty the Queen

Appellant

and

Kevin Morris

Respondent

and

The David Asper Centre for Constitutional Rights,
    Criminal Lawyers Association, Aboriginal Legal Services, South Asian Legal
    Clinic of Ontario, Chinese and Southeast Asian Legal Clinic and Colour of Poverty/Colour
    of Change Network, The Black Legal Action Centre, Canadian Civil Liberties
    Association, Canadian Muslim Lawyers Association, Urban Alliance on Race
    Relations and Canadian Association of Black Lawyers

Proposed Interveners

Shawn Porter and Roger Shallow, for the appellant

Faisal Mirza and Gail D. Smith, for the respondent

Nader R. Hasan and Geetha Philipupillai, for the proposed
    intervener The David Asper Centre for Constitutional Rights

Emily Lam and Marianne Salih, for the proposed
    intervener the Criminal Lawyers Association

Caitlyn E. Kasper and Douglas Varrette, for the proposed
    intervener Aboriginal Legal Services

Saman Wickramasinghe and Zachary Kerbel, for the proposed
    interveners the South Asian Legal Clinic of Ontario, Chinese and Southeast
    Asian Legal Clinic, and Colour of Poverty/Colour of Change Network

Jonathan Shime and Nana Yanful, for the proposed interveners
    the Black Legal Action Centre and the Canadian Association of Black Lawyers

Dana Achtemichuk, for the proposed intervener the Canadian
    Civil Liberties Association

Taufiq Hashmani, for the proposed intervener Canadian
    Muslim Lawyers Association

Annamaria Enenajor, for the proposed intervener the Urban
    Alliance on Race Relations

Heard: June 13, 2019

REASONS FOR DECISION

[1]

Eight organizations and groups of organizations seek leave to intervene
    in this appeal, which raises issues concerning the role of systemic racism and
    background factors in the sentencing of racialized, non-Indigenous offenders and
    the use of judicial notice and social context evidence in the sentencing
    proceedings.

[2]

The appellant Crown states in its factum on the appeal that this appeal
    provides an opportunity for this Court to develop a clear analytical framework
    that provides guidance to trial judges on
how
systemic and background
    factors may be properly applied to the sentencing of racialized offenders
    (italics in original). It suggests that recent cases in this province and
    elsewhere in Canada have been inconsistent in their treatment of the issue.

[3]

As a general rule, interventions in criminal proceedings should be
    granted sparingly:
R. v. Seaboyer
(1986), 50 C.R. (3d) 395 (Ont.
    C.A.), at p. 398. But the issues that arise in this appeal transcend the
    interests of the parties and are of significance to the administration of
    criminal justice. The proposed interveners are well-recognized organizations with
    experience and expertise in the issues raised in this appeal. They can offer
    perspectives that are different from those provided by the Crown and the
    respondent. I am satisfied that they can make useful contributions to the
    issues raised in this appeal.

[4]

I am also satisfied that granting leave to intervene will not cause
    injustice to the Crown. Any potential for injustice can be mitigated by the
    terms set out below.

[5]

In its balanced and helpful factum on these motions, the Crown
    acknowledges that the submissions of most of the proposed interveners may be of
    assistance to the court. Ultimately, in oral argument, the Crown did not oppose
    granting leave to intervene to all the proposed interveners, on the terms set
    out below.

[6]

Given that this appeal has been scheduled and that the submissions of
    the Crown and respondent will take up most of a court day, I will limit the
    oral submissions of each of the eight interveners and groups of interveners to five
    (5) minutes in length. This limit is subject to increase in the discretion of
    the panel. Further, each of the eight interveners and groups of interveners may
    cede its time to another intervener or group of interveners. This reduced time
    limit reflects the number of interveners and the limited time available in this
    case. It should not be regarded as a new standard. In cases where multiple
    interveners are anticipated, it would be prudent to bring motions for leave to
    intervene before the appeal is scheduled, so that sufficient time can be
    reserved.

[7]

In the result, it is ordered as follows:

(a)

each
    of the proposed interveners and groups of interveners is granted leave to
    intervene;

(b)

each of the eight interveners and groups of interveners may file a
    factum of not more than 15 pages in length and shall be entitled to make oral
    submissions 5 minutes in length, in the discretion of the panel. Each intervener
    or group of interveners may, if so advised, rely solely on its factum and cede its
    time allocation to another counsel;

(c)

the interveners facta shall be filed by July 19, 2019;

(d)

the interveners shall accept the evidentiary record as it exists and shall
    not augment the record;

(e)

the interveners shall not expand or add to the points at issue, nor
    shall they make any statement or argument concerning the outcome of the appeal;

(f)

the interveners shall make reasonable efforts to avoid duplicating the
    submissions of the parties or each other and shall attempt to identify any issues
    on which there is agreement;

(g)

the interveners shall not seek costs and shall not be liable for costs;

(h)

the respondent shall be entitled to file a factum of not more than 40
    pages in length, by August 23, 2019; and

(i)

the Crown shall be entitled to file a factum of not more than 20 pages in
    length in response to the facta of the interveners and in reply to the respondent
    by September 6, 2019.

G.R. Strathy C.J.O.