CITATION: R. v. Kelsy, 2011 ONCA 605

DATE:  20110922

DOCKET: C49873

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Feldman JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Marsha Kelsy

Appellant

Michael Dineen, for the appellant

Dena Bonnet, for the respondent

Heard: May 5, 2011

On appeal from conviction entered by Justice Gary Trotter of
          the Superior Court of Justice, dated May 27, 2008.

Rosenberg J.A.:

[1]

The appellant appeals from her conviction by a court composed of Trotter
    J. and a jury on several charges arising from her possession of a loaded
    prohibited firearm and a quantity of heroin.  The only issues raised concern
    the decision of the trial judge dismissing the appellants motion to exclude
    the prosecution evidence pursuant to s. 24(2) of the
Charter of Rights
    and Freedoms.
The firearm and the heroin were found during a search of the
    appellants knapsack in the course of an investigation sparked by a 911 call to
    the police.  The trial judge found that the warrantless search of the knapsack
    was reasonable because it was authorized by exigent circumstances or was a
    justifiable use of police powers.  There was therefore no violation of the
    protection against unreasonable search and seizure as guaranteed by s. 8 of the
Charter
.  In any event, even if there was a violation of the appellants
    rights, the evidence should not be excluded.

[2]

For the following reasons, I would dismiss the appeal.  In my view, the
    appellants s. 8 rights were violated, but I agree with the trial judge that
    the evidence should not be excluded under s. 24(2) of the
Charter
.

THE FACTS

[3]

On January 19, 2004, the appellant and her two-year-old daughter spent
    the night at the apartment of the childs father, DAngelo Christie.  Mr.
    Christie was a drug dealer.  While the appellant did not often stay with Mr.
    Christie, the appellant was to start a new job the following day and Mr.
    Christies apartment was near her daughters new daycare.

[4]

The following morning, Mr. Christie left his sixth-floor apartment at
    approximately 7:00 a.m. and was immediately set upon by two armed men who
    pistol-whipped him and wrapped him with duct tape.  The appellant heard the
    struggle. She went out on the apartment balcony and asked the next-door
    neighbour to telephone the police.  The neighbour called 911.

[5]

The appellant testified that the previous evening, while she was alone
    with her daughter, she discovered a handgun in a dresser drawer.  When she
    heard someone trying to get into the apartment she wrapped the handgun in a
    sweater and concealed it in a knapsack.  At that point a man with a gun entered
    the apartment and told the appellant to remain with her daughter on the bed
    while he searched the apartment.  He soon left.

[6]

In response to the 911 call, uniformed police officers, including
    members of the Emergency Task Force (ETF), arrived on the scene and made their
    way to the sixth floor.  Among the uniformed officers who came to the sixth
    floor was Constable Mansoor Ahmad.  It was Constable Ahmad who would later open
    the appellants knapsack and discover the contraband.

[7]

To appreciate the s. 8 issue it is important to understand what the
    police and especially Constable Ahmad knew prior to the opening of the knapsack.
    Constable Ahmad testified that the initial information he received over the
    police radio was that there was some shouting and screaming at 640 Sheppard
    Avenue.  It was unknown how many people were involved and there was a female on
    the balcony of apartment 607 screaming for help.  A second radio call advised
    that another police unit was on the scene and that it was a hostage situation
    and guns were involved.  A minute later another call came with information that
    one of the suspects went into the sixth floor laundry room.  Constable Ahmad
    then received information that the police had the hostage; that he had been
    pistol-whipped and one of the suspects had gone down the garbage chute and one
    had gone into apartment 607.

[8]

When the first police officers arrived, one of the assailants was still
    on the sixth floor holding Mr. Christie near the garbage room.  That man fled
    down the garbage chute.  Mr. Christie told the police that two men had attacked
    him, one had gone in the garbage room and the other into his apartment where
    his girlfriend and daughter were present.

[9]

When Constable Ahmad arrived on the sixth floor he found several other
    officers.  A short time later the ETF arrived and began their preparations to
    clear the apartment.  By this time Constable Ahmad had also learned that a
    female and a child were possibly in apartment 607.  An ETF officer knocked on
    the door to Mr. Christies apartment.  After the knock, the appellant came out
    with her daughter.  She was carrying the knapsack and two shopping bags.  The
    police told her to drop the bags, which she did.  Constable Ahmad described the
    appellant as seeming to be surprised and not knowing what was going on.  After
    dropping the bags, the appellant stood beside Constable Ahmad and asked what
    was going on and why there were so many police officers.  When asked if there
    was anyone else in the apartment, the appellant said there was not.  She asked Constable
    Ahmad if she could just get her knapsack.  She said that it had her daughters
    belongings and she had to take her daughter to daycare.  Constable Ahmad told
    her that she would get the knapsack as soon as ETF clears that apartment,
    because there were two males who had guns.  The appellant and her daughter were
    escorted downstairs by another police officer.  The appellant was not searched
    at that time.  The ETF went into the apartment and confirmed that no one was
    present.

[10]

Once the appellant and her daughter were gone, Constable Ahmad unzipped
    the knapsack and looked through it.  He found the loaded handgun and a magazine
    wrapped in a shirt.  As well, he found a scale, a pocket telephone book and a
    plastic bag containing heroin.  The knapsack also contained some papers
    belonging to the appellant, a purse and a passport in the name of a man, not
    Mr. Christie.  The shopping bags were clear and Constable Ahmad could see that
    they contained childs things.  Another officer looked through the shopping
    bags.

[11]

Constable Ahmad testified about why he looked in the appellants
    knapsack.  The trial judge accepted his evidence on this issue, which he
    described as follows:

In his testimony, he testified that he searched it
    because the information that he had at the time was very confusing. He did not
    have a description of any of the suspects. He testified that he "didn't know
    who [was] who." Out of concern for the safety of everyone concerned,
    including the many people who lived in the building, he wanted to ensure that
    there was nothing in the bag that could harm anyone.

[12]

Constable Ahmad also testified that he had told the appellant that he
    would return her bags.  He said:  I wanted to give her the knapsack back, I
    wanted to make sure that theres nothing in there that could hurt another
    officer or another person.  He had not asked the appellant what was in the
    bags and did not seek her permission to search the bags.

[13]

The appellant testified on the
voir dire
.  The trial judge
    referred to some of her testimony as follows:

In cross-examination, Ms. Kelsy testified that she
    put the gun in the backpack in order to protect herself and her daughter. She
    was "happy and relieved" to see the police when she got outside of
    the apartment. Indeed, while she was in the apartment, she wondered what was
    taking the police so long to get there. At one point during questioning, Ms.
    Kelsy said she was happy to get away from the backpack and she was happy the
    police were able to take the gun so that nobody else would be threatened by it.
Importantly, she said it would have been her plan to give the gun to the
    police
.  [Emphasis added.]

[14]

The police later obtained a search warrant for Mr. Christies
    apartment.  No further drugs were found in the apartment, but Mr. Christie was
    found in possession of a quantity of cocaine.  He later pleaded guilty to
    offences involving possession of the gun and the heroin found in the knapsack.
    It was the Crowns position at the appellants trial that Mr. Christie was the
    principal offender and the appellant was a party.  After the trial judge gave
    his ruling that the gun and heroin were admissible, the appellants trial
    continued before the jury.

THE REASONS OF THE TRIAL JUDGE

[15]

As I have said, the trial judge accepted Constable Ahmads evidence as
    to why he opened the backpack.  In deciding whether the search of the backpack
    was authorized by law, the trial judge turned first to the law of exigent
    circumstances.  He made these important findings about exigent circumstances:

In the case before me, there was no evidence that
    the police had reasonable grounds to believe that the backpack contained
    contraband, evidence or dangerous items.
P.C. Ahmad was acting on a hunch,
    his attention being drawn to the bag after Ms. Kelsy requested its return. This
    is not a case where the exigent circumstances made obtaining a warrant
    impractical.
Instead, the issue in this case is whether a search without
    reasonable grounds can be authorized by exigent circumstances.  [Emphasis
    added.]

[16]

Later in his reasons, the trial judge returned to the evidence of
    Constable Ahmad and characterized that evidence somewhat differently:

I find that while P.C. Ahmad had well founded
    concerns, they had not yet crystallized into reasonable grounds to believe the
    backpack contained evidence of criminal offences or something that might
    compromise officer or public safety.
Out of an abundance of caution, in a
    dynamic and fast-moving situation, Officer Ahmad decided to take a look. This
    was not for the purposes of investigating Ms. Kelsy. Instead, he wanted to ensure
    that the bag did not contain anything that could be harmful to any of the
    officers on the scene, or to the many people who would be in circulation in the
    building, emerging from their apartments to begin their day.  [Emphasis added.]

[17]

The trial judge found that Constable Ahmad did not violate the
    appellants s. 8 rights based on a combination of doctrine derived from the
    exigent circumstances cases and the justifiable use of police powers cases
    found in
R. v. Waterfield
, [1963] 3 All E.R. 659 (C.C.A.).

[18]

The trial judge went on to consider the application of s. 24(2) of the
Charter
,
    in case he was wrong in finding that there had not been any s. 8 violation. The
    case was heard before
R. v. Grant
, [2009] 2 S.C.R. 353, and so the trial
    judge applied the framework from
R. v. Collins
, [1987] 1 S.C.R. 265 and
R.
    v. Stillman
, [1997] 1 S.C.R. 607.  Since the evidence sought to be excluded
    was real evidence, the factors relating to trial fairness were not engaged.  As
    to the seriousness of the breach, this was a close call for the officer and
    if the officers actions were unlawful, they were barely so.

[19]

The trial judge accepted that the appellant had a privacy interest in
    the knapsack.  However, he found that, in the context, her expectation of
    privacy was significantly diminished.  The trial judge referred to a
    combination of unique circumstances:  it was the appellant who had initiated
    the 911 call requesting emergency assistance; she had testified that she was
    anxious to get away from the gun; and, it was her plan to give the gun to the
    police.  He found that the police acted in good faith and that there was no
    blatant or callous disregard of
Charter
rights by any of the officers
    who dealt with the appellant.  Specifically as to Constable Ahmad, the trial
    judge found that he acted with the best of intentions, in very difficult
    circumstances.  If his actions involved the unjustifiable use of police powers,
    it barely crossed the line of what the law permitted.

ANALYSIS

Unreasonable search and seizure

Introduction

[20]

For the reasons that I will develop, it is my view that the search of
    the appellants bag could not be justified either on the basis of exigent
    circumstances or the
Waterfield
doctrine or by combining the two
    concepts.  On the trial judges findings of fact there were no exigent
    circumstances that could justify a search of the bag.  While
Waterfield
has been used by Canadian courts to justify some police conduct not previously
    justified under statute or existing common law, it could not justify the state
    action in this case.

[21]

In my view, the police only had the power to seize the appellants bag
    until the situation was no longer in the chaotic state Constable Ahmad found
    it.  At that point, if there were no grounds to obtain a warrant to search the
    bag, it had to be returned to the appellant, unless she gave a valid consent to
    search it.

[22]

In
Collins
at p. 278, Lamer J. held that while the burden of
    proof of a
Charter
violation is ordinarily on the accused, once the
    accused has demonstrated that the search was a warrantless one, the Crown has
    the burden of showing that the search was, on a balance of probabilities,
    reasonable within the meaning of s. 8.  A search will be reasonable if it is
    authorized by law, if the law itself is reasonable and if the manner in which
    the search was carried out is reasonable.  In this case, the only issue was
    whether the search of the appellants knapsack was authorized by law.  As there
    was no statutory authorization for the search, any justification had to be found
    in the common law.

[23]

I will consider the two bases upon which the trial judge rested his
    conclusion:  exigent circumstances and the police powers or
Waterfield
doctrine.

Exigent Circumstances

[24]

Exigent circumstances have been recognized at common law as a basis for searching
    property without a warrant.  Cases that have addressed the issue of exigent
    circumstance appear to rest on two bases.  The first basis relates to the risk
    of imminent loss or destruction of the evidence or contraband before judicial
    authorization could be obtained.  The second basis emerges where there is a
    concern for public or police safety.

(1)       Imminent risk of loss or destruction of evidence

[25]

In my view, the premise underlying the exigent circumstances doctrine
    where there is an imminent risk of loss or destruction of evidence is that, if
    time permitted, the police could have obtained prior authorization, usually in
    the form of a search warrant.  Ordinarily, this means that the police would
    have had reasonable grounds.  Therefore, in this context, exigent circumstances
    do not justify a warrantless search for evidence or contraband on less than
    grounds for obtaining a warrant.  Warrantless searches on less than reasonable
    grounds may be recognized in other circumstances where there is a lower
    expectation of privacy, such as border searches, but those circumstances did
    not apply here.

[26]

The Supreme Court of Canada has dealt with exigent circumstances in a
    number of situations involving the imminent risk of loss or destruction of
    evidence.  In
R. v. Grant,
[1993] 3 S.C.R. 223, the court considered the
    constitutionality of s. 10 of the former
Narcotic Control Act
, which
    authorized a warrantless search of a place other than a dwelling house on the
    basis of reasonable grounds to believe that the place contained narcotics.  The
    court held that s. 10 was valid only insofar as it authorized a search in
    exigent circumstances, which Sopinka J. defined in these terms at pp. 241-42:

This exception to the general rule which proscribes
    warrantless searches must be narrowly construed. In general, the test will only
    be satisfied where there exists an imminent danger of the loss, removal,
    destruction or disappearance of the evidence sought in a narcotics
    investigation if the search or seizure is delayed in order to obtain a warrant.

[27]

The common law power to search for evidence in exigent circumstances has
    largely been codified since the enactment of the
Charter
.  As the trial
    judge noted, s. 487.11 of the
Criminal Code
authorizes a warrantless
    search by a peace officer if the conditions for obtaining a warrant under s.
    487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking
    warrant provision) exist  but by reason of exigent circumstances it would be impracticable
    to obtain a warrant.  Similar provisions exist in s. 117.02 for search and
    seizure of weapons and in s. 11(7) of the
Controlled Drugs and Substances
    Act
.

[28]

As the trial judge noted, while these provisions do not define exigent
    circumstances, s. 529.3(2) of the
Criminal Code
does contain a
    definition of exigent circumstances.  Section 529.3 is part of a package of
    amendments enacted in the wake of the Supreme Court of Canada decision in
R.
    v. Feeney,
[1997] 2 S.C.R. 13, where the court held that an arrest warrant
    did not authorize entry into a dwelling-house to effect the arrest.  Section
    529.1 provides for the issuing of a warrant to enter a dwelling-house to arrest
    or apprehend a person where the conditions set out in that section are met.  Section
    529.3 allows an officer to enter a dwelling-house without a warrant where the
    conditions for issuing the warrant exist but by reason of exigent circumstances
    it would be impracticable to obtain a warrant.  The definition of exigent
    circumstances in s. 529.3(2) refers to  (a) danger to people and (b) loss
    of evidence and provides as follows:

For the purposes of
    subsection (1), exigent circumstances include circumstances in which the peace
    officer

(a) has reasonable
    grounds to suspect that entry into the dwelling-house is necessary to prevent
    imminent bodily harm or death to any person; or

(b) has reasonable
    grounds to believe that evidence relating to the commission of an indictable
    offence is present in the dwelling-house and that entry into the dwelling-house
    is necessary to prevent the imminent loss or imminent destruction of the
    evidence.

[29]

Section 529.3(2)(b), like s. 487.11, is premised on the existence of
    grounds to obtain a warrant.  The urgency of the situation relieves against the
    necessity to obtain the warrant, not the necessity for the grounds to obtain
    the warrant.  Cases since the enactment of the
Charter
that have
    considered exigent circumstances as a basis for searching for evidence or
    contraband appear to have assumed that grounds to obtain a warrant were
    required.  See
R. v. Rao
(1984), 46 O.R. (2d) 80 (C.A.), leave to appeal
    to S.C.C. refused, [1984] S.C.C.A. No. 107;
R. v. Silveira,
[1995] 2
    S.C.R. 297;
R. v. Feeney
.

[30]

A distinct line of cases has developed using the
Waterfield
test,
    which I will discuss below.  However, it seems to me that at least when
    considering the loss or destruction of evidence, the exigent circumstances
    doctrine should be confined to cases where the officer had grounds to obtain
    the prior judicial authorization but could not do so because of the risk of
    imminent loss or destruction of the evidence.  In my view, this conclusion is
    also consistent with this courts decision in
R. v. Belnavis
(1996), 29
    O.R. (3d) 321, affd [1997] 3 S.C.R. 341, a case concerning search of a motor
    vehicle.  Speaking for the court at p. 339, Doherty J.A. held that in exigent
    circumstances, where it is not feasible to obtain a warrant, a police officer
    may search a lawfully detained motor vehicle if the officer has reasonable and probable
    grounds to believe that the search will disclose evidence.  He went on to
    state that: [t]his exception to the general warrant requirement must, however,
    be narrowly construed where the search is conducted as part of a criminal
    investigation.

[31]

I point out that the need for this common law power may have largely
    disappeared in light of the statutory amendments.

(2)       Public and police safety

[32]

The second set of exigent circumstances that appears to have been
    recognized is where there is a concern for the safety of the public or the
    police.  The parameters of the power to search without warrant in such
    circumstances appear somewhat vague except where they have been codified as in
    s. 529.3(2)(a) and this common law power has largely been overtaken by the
Waterfield
doctrine.  In any event, even in this context, something close to reasonable
    grounds appear to be a prerequisite to a valid search.

[33]

Thus, in a somewhat different context where exigent circumstances were
    invoked, in
R. v. Golden
, [2001] 3 S.C.R. 679, the court required
    reasonable grounds as a precondition to a field strip search said to be
    required for officer safety.  Iacobucci and Arbour JJ. wrote as follows, at
    para. 102:

Strip searches should generally only be conducted
    at the police station except where there are
exigent circumstances
requiring that the
    detainee be searched prior to being transported to the police station.
Such
exigent circumstances
will only be established where the police have reasonable and probable grounds
    to believe that it is necessary to conduct the search in the field rather than
    at the police station
. Strip searches conducted in the field could only be
    justified where there is a demonstrated necessity and urgency to search for
    weapons or objects that could be used to threaten the safety of the accused,
    the arresting officers or other individuals. The police would also have to show
    why it would have been unsafe to wait and conduct the strip search at the
    police station rather than in the field. Strip searches conducted in the field
    represent a much greater invasion of privacy and pose a greater threat to the
    detainee's bodily integrity and, for this reason, field strip searches can only
    be justified in
exigent circumstances.  [Emphasis
    added.]

[34]

I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers.  It may be that a lesser standard, such as articulable cause or reasonable suspicion, as codified in s. 529.3(2)(a), will be appropriate in some circumstances.  Thus, see
R. v. Golub
(1997), 34 O.R. (3d) 743 (C.A.) at p. 759.

(3)       General comments re: exigent circumstances

[35]

However, whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient.  By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary.  Sopinka J. made that point in
R. v. Feeney
at para. 52:

According to James A. Fontana (The Law of Search
    and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances
    arise usually where immediate action is required for the safety of the police
    or to secure and protect evidence of a crime. With respect to safety concerns,
    in my view, it was not apparent that the safety of the police or the community
    was in such jeopardy that there were exigent circumstances in the present case.
    The situation was the same as in any case after a serious crime has been committed
    and the perpetrator has not been apprehended.
In any event, even if they
    existed, safety concerns could not justify the warrantless entry into the
    trailer in the present case. A simple watch of the trailer in which the police
    were told the appellant was sleeping, not a warrantless entry, would have
    sufficiently addressed any safety concerns involving the appellant
.
    [Emphasis added.]

(4)       Application to this case

[36]

On the findings of fact by the trial judge, the doctrine of exigent
    circumstances could not justify the search of the appellants knapsack.  The
    police did not have any grounds, let alone reasonable grounds, to believe that
    the knapsack contained evidence or contraband and the trial judge did not base
    his decision on the first branch of exigent circumstances.  As the trial judge
    put it, Constable Ahmad was acting on a hunch.  Further, again as the trial
    judge said, this was not a case where it was impractical to obtain a warrant.
    The police could have seized the bag until they obtained a warrant.  The
    appellant had been removed from the scene; there was no imminent risk of loss
    or destruction of evidence.

[37]

Similar considerations apply to the safety branch of exigent
    circumstances.  There were no grounds to believe that the knapsack contained
    anything that threatened the safety of the public or the police officers.  And,
    in any event, the less intrusive procedure of simply seizing the bag until the
    situation had stabilized was available. Just as in
Feeney
, the police
    could simply have kept watch on the bags.

[38]

A very recent decision from this court,
R. v. Stevens
, 2011 ONCA
    504 makes a similar point.  In that case, sheriffs officers acting to enforce
    an eviction order found what appeared to be two gun cases in the accuseds
    empty apartment.  They called the police.  The police arrived and opened the
    gun cases finding firearms that were improperly stored.  The superintendent
    then changed the lock on the apartment.  In finding that there was no s. 8
    violation, the trial judge in
Stevens
found that there were exigent
    circumstances.  This court disagreed.  At the time the police entered the
    apartment and opened the gun cases there was no serious safety issue.  Once the
    locks had been changed the accused could not gain access to the firearms.  The
    safety concern was sufficient to explain why the police were called, but not
    why they opened the gun cases.

The Waterfield Doctrine

[39]

Despite the many statutory investigatory powers that Parliament has
    provided since the enactment of the
Charter
, it is well-established that
    the courts will continue to recognize the exercise of police powers that comply
    with the common law
Waterfield
test:  see
R. v. Kang-Brown,
[2008] 1 S.C.R. 456 per Binnie J. at paras. 49-51.  Where, as here, the police
    conduct constitutes a
prima facie
interference with a persons property,
    the court will consider two questions:

(1)

Does the conduct fall within the general scope of any duty imposed by
    statute or recognized at common law?

(2)

Does the conduct involve a justifiable use of powers associated with the
    duty?

[40]

The Supreme Court of Canada has considered the application of this test
    in several different contexts.  The trial judge referred extensively to
R.
    v. Godoy
, [1999] 1 S.C.R. 311, which concerned the exercise of police
    powers in the context of investigating a 911 call.  I agree that
Godoy
provides a very helpful analogy to this case, which also began with a 911
    call.  When the police, including Constable Ahmad, attended at Mr. Christies
    apartment in response to the 911 call initiated by the appellant, they were
    acting within the general scope of their duties to provide whatever assistance
    was required and to protect life:
Godoy
at paras. 15 and 16.  In my
    view the first part of the
Waterfield
test was satisfied in this case.

[41]

I do not agree that the search of the appellants knapsack was a
    justifiable use of powers associated with this duty.  In
Godoy
, at para.
    18, Lamer C.J. adopted the explanation of justifiable use of police powers
    provided by Doherty J.A. in
R. v. Simpson
(1993), 79 C.C.C. (3d) 482
    (Ont. C.A.) at p. 499:

the justifiability of an officer's conduct depends
    on a number of factors including the duty being performed, the extent to which
    some interference with individual liberty is necessitated in order to perform
    that duty, the importance of the performance of that duty to the public good,
    the liberty interfered with, and the nature and extent of the interference.

[42]

In that same paragraph, Lamer C.J. found that it was necessary for the
    police in that case to forcibly enter the accuseds apartment and that there
    was no other reasonable alternative to ensure that the 911 caller received
    the necessary assistance.  In this case, a search of knapsack was not necessary
    and there were other reasonable alternatives by which the police could carry
    out their duties in response to the 911 call.  Specifically, the police could
    have seized the bag until they had assisted Mr. Christie and ensured that the
    appellant and her daughter and anyone else in the building were no longer in
    danger from the assailants.  At that time, as I have said earlier, the police
    could have returned the bag to the appellant and let her go on her way, sought her
    consent to search the bag, or obtained a search warrant if they had the
    requisite grounds.  The appellant had been removed from the immediate area and
    the knapsack had been left where she had been told to drop it.  There was
    nothing in the circumstances known to Constable Ahmad that necessitated
    searching the knapsack.  The legitimacy of the police conduct cannot be
    measured by the fact that, as it turned out, the bag contained a loaded firearm
    and a quantity of a dangerous narcotic.

[43]

The courts decision in
Godoy
justifies significant intrusions
    into privacy to investigate a 911 call, in that case, a forced entry into a
    dwelling-house.  But there are limits to the police power, as made clear at
    para. 22 of the reasons:

The public interest in maintaining an effective
    emergency response system is obvious and significant enough to merit some
    intrusion on a resident's privacy interest. However, I emphasize that the
    intrusion must be limited to the protection of life and safety.
The police
    have authority to investigate the 911 call and, in particular, to locate the
    caller and determine his or her reasons for making the call and provide such
    assistance as may be required. The police authority for being on private
    property in response to a 911 call ends there. They do not have further
    permission to search premises
or otherwise intrude on a resident's privacy
    or property.  [Emphasis added.]

[44]

In this case, the police had power to forcibly enter Mr. Christies
    apartment to investigate the 911 call and to locate the assailants.  The police
    authority did not extend to opening the appellants bags and backpack.

[45]

The concept of necessity can be found throughout Supreme Court of Canada
    cases applying the
Waterfield
test.  In one of the foundation cases,
Dedman
    v. The Queen
, [1985] 2 S.C.R. 2 at p. 35, Le Dain J. described the test in
    these terms:

The interference with liberty must be necessary for
    the carrying out of the particular police duty and it must be reasonable,
    having regard to the nature of the liberty interfered with and the importance
    of the public purpose served by the interference.

[46]

In a more recent case,
R. v. Clayton
, [2007] 2 S.C.R. 725 at
    para. 26, Abella J. described this branch of the test as one of reasonable
    necessity:

In determining the boundaries of police powers,
    caution is required to ensure the proper balance between preventing excessive
    intrusions on an individuals liberty and privacy, and enabling the police to
    do what is reasonably necessary to perform their duties in protecting the
    public.

[47]

In
R. v. Mann
, [2004] 3 S.C.R. 59, where the court dealt with the
    legality of investigative detention, Iacobucci J. wrote in similar terms at
    para. 34:

The evolution of the
Waterfield
test, along
    with the
Simpson
articulable cause requirement, calls for investigative
    detentions to be premised upon reasonable grounds.
The detention must be
    viewed as reasonably necessary on an objective view of the totality of the
    circumstances, informing the officers suspicion that there is a clear nexus
    between the individual to be detained and a recent or on-going criminal
    offence.
Reasonable grounds figures at the front-end of such an assessment,
    underlying the officers reasonable suspicion that the particular individual is
    implicated in the criminal activity under investigation. The overall
    reasonableness of the decision to detain, however, must further be assessed
    against all of the circumstances, most notably the extent to which the
    interference with individual liberty is necessary to perform the officers
    duty, the liberty interfered with, and the nature and extent of that
    interference, in order to meet the second prong of the
Waterfield
test.
    [Emphasis added.]

[48]

Mann
is helpful in resolving this case because it demonstrates
    that the reasonable necessity test must be applied at all stages of the
    exercise of the police power.  In
Mann
, it was necessary to measure the
    police conduct not only at the initial detention stage but as the investigation
    progressed.  At paras. 39 - 40 of
Mann
Iacobucci J. returned to the
Waterfield
test again when considering whether a search of the detainee could be
    justified.  He specifically held that a search incident to an investigative
    detention could not be based merely on a hunch or a vague concern about officer
    safety:

To continue in the
Waterfield
analysis, the
    conduct giving rise to the interference must involve a justified use of a
    police power associated with a general duty to search in relation to the
    protection of life and property.
Put differently, the search must be
    reasonably necessary
.
The relevant considerations here include the duty
    being performed, the extent to which some interference with individual liberty
    is necessary in the performance of that duty, the importance of the performance
    of the duty to the public good, the nature of the liberty being interfered
    with, and the nature and extent of the interference
:
Dedman
,
supra
,

at pp. 35-36.

The general duty of officers to protect life may,
    in some circumstances, give rise to the power to conduct a pat-down search
    incident to an investigative detention.
Such a search power does not exist
    as a matter of course; the officer must believe on reasonable grounds that his
    or her own safety, or the safety of others, is at risk.
I disagree with the
    suggestion that the power to detain for investigative searches endorses an
    incidental search in all circumstances: see S. Coughlan, Search Based on
    Articulable Cause: Proceed with Caution or Full Stop?
(2002), 2 C.R. (6th) 49, at p. 63.
The
    officers decision to search must also be reasonably necessary in light of the
    totality of the circumstance
s.
It cannot be justified on the basis of a
    vague or non-existent concern for safety, nor can the search be premised upon
    hunches or mere intuition.
[Emphasis added.]

[49]

On the trial judges findings of fact that Constable Ahmad acted on a
    hunch, this search could not be justified on the
Waterfield
test.  Vague
    concerns because of the confusing situation could not be used to justify an
    intrusion into the appellants privacy interest in her bags.  Later in his
    reasons, in the passage quoted above at para. 16, the trial judge referred to
    well-founded concerns and the officers desire to ensure that the bag did not
    contain anything harmful. However, he made no finding that these concerns
    reached the level of reasonable necessity.

[50]

Thus, the search in this case fails to meet the
Waterfield
tests
    on two grounds.  It was not reasonable, since there were was no basis for
    believing that the safety of the public or the police was at risk.  Second, the
    search was not reasonably necessary since there were other less intrusive
    measures that could have been used.

Combining the Two Doctrines

[51]

It will be recalled that the trial judge found that the search was
    reasonable by drawing on both doctrines of exigent circumstances and the
Waterfield
test.  While the two doctrines can, in some circumstances, be related and may
    even overlap, in my view, it is preferable to keep them distinct in determining
    whether police conduct is justified.  I say that primarily because of my
    concern that by combining the two there is a risk that the reasonableness
    requirement that lies at the heart of the s. 8 analysis may be weakened.

[52]

The two doctrines are meant to address different concerns and are
    context-specific.  Reasonableness in the exigent circumstances doctrine rests primarily
    on the fact that the officer did have grounds to obtain prior judicial
    authorization.  The fact that it is not feasible to obtain a warrant merely
    sets the scene for possibly engaging the exigent circumstances doctrine, it
    does not justify the search.  While there is a vague and ill-defined basis for
    search in exigent circumstances involving officer or public safety, even then
    there must be some reasonable basis for the search. Reasonableness in the
Waterfield
context rests on the reasonable necessity of the police action.  Again, the
    fact that officers were acting generally in the course of their duties merely
    sets the scene; but is only one half of the test that must be met. By combining
    the two doctrines and taking only certain elements from each, the core
    safeguard of reasonableness may be lost.

[53]

In concluding that the search in this case did not violate s. 8, the
    trial judge said the following:

In this case, I accept that P.C. Ahmad faced
    exigent circumstances when he searched Ms. Kelsy's backpack. I also find that
    the police were obviously acting in the course of their duties when they
    responded to the 911 call and that the search of the backpack did not involve
    an unjustifiable use of powers in the circumstances. On the contrary, the
    non-invasive search was prudently undertaken to ensure the safety of all
    concerned, civilians and police officers alike. Consequently, I find that the
    search was authorized by law. Section 8 of the
Charter
was not
    infringed.

[54]

The trial judge found that Constable Ahmad faced exigent circumstances,
    but since there were no grounds to obtain judicial authorization, the core
    reasonableness requirement on the first strand of the exigent
    circumstances doctrine was missing.  It may be, as the trial judge
    suggested, that something less than reasonable grounds to obtain a warrant may
    justify a search on the second aspect of the exigent circumstances
    doctrine, where there is concern for the safety of the police or the public.
    But, even on this aspect, the reasonableness safeguard at least requires
    something in the nature of reasonable suspicion or articuable cause to search,
    which was also missing in this case.

[55]

The trial judge also found that the officer was acting in the course of
    his duties and that the search was prudently undertaken, an analysis having
    elements of the
Waterfield
doctrine.  However, where, as the trial judge found, the officer was
    acting on a hunch and the search, however non-invasive, was not reasonably
    necessary, the second branch of the
Waterfield
test was not met.

[56]

I entirely agree with the trial judge that the volatile circumstances in
    which Constable Ahmad and the other officers found themselves had to be taken
    into account.  They were responding to a 911 call and such cases rightly give
    the police considerable latitude.  Justice Doherty articulated that point very
    well in
R. v. Golub
in speaking of the circumstances of an arrest.  As
    he said at p. 757 the scene of an arrest is a volatile one where the police
    must expect the unexpected and where the price paid if inadequate measures are
    taken to secure the scene of an arrest can be very high indeed.  The
    circumstances in which these officers found themselves was very similar and
    similar considerations apply.  Again, the point made by Doherty J.A. in
Golub
on the same page is apposite:

In my opinion, one cannot ask the police to place
    themselves in potentially dangerous situations in order to effect an arrest
    without, at the same time, acknowledging their authority to take reasonable
    steps to protect themselves from the dangers to which they are exposed. If the
    police cannot act to protect themselves and others when making an arrest, they
    will not make arrests where any danger exists and law enforcement will be
    significantly compromised.

[57]

Thus, if the police cannot act to protect themselves and others when
    responding to a 911 call and if they feel that they will be unreasonably
    second-guessed at every stage of a fast-moving, quickly-evolving and chaotic
    situation, the safety of the public will be compromised.  However, this reality
    does not place police action beyond review.  The
Waterfield
test as
    applied by the courts of this country is not a particularly exacting one, but
    it does rest on reasonable necessity and that core element was lacking here.

[58]

To summarize my view of the application of s. 8 of the
Charter
to
    this case:

·

Exigent circumstances should be primarily reserved for cases
    involving imminent destruction of evidence or contrabrand and has largely been
    codified.

·

As the trial judge recognized, the first branch of exigent
    circumstances, based on imminent destruction of evidence had no application,
    since the officer had no grounds to obtain a warrant.

·

The second branch of exigent circumstances, based on police and
    officer safety could not apply since there was no finding of, at the very
    least, articulable cause; this branch has largely been overtaken by the
Waterfield
doctrine.

·

The search in this case should have been analyzed through the
Waterfield
doctrine.

·

While the 911 call and the chaotic circumstances gave the police
    grounds to temporarily seize the appellants bag, a search of the bags was not
    reasonably necessary within the meaning of the
Waterfield
doctrine.

[59]

Since, in my view, the appellants s. 8 right to protection against
    unreasonable search and seizure was violated it becomes necessary to consider
    whether the evidence should be excluded under s. 24(2) of the
Charter.
I will now turn to that issue.

Section 24(2) of the
Charter

[60]

Although he found that there was no
Charter
violation,
    fortunately, the trial judge went on to consider the application of s. 24(2).
    As the trial judge recognized, his decision to admit the evidence assuming
    there was a violation would not be entitled to deference on appeal.  However,
    his findings of fact are entitled to deference and based on those findings, I
    would admit the evidence.

[61]

The trial judge found that any breach of the appellants rights was not
    serious and that the police acted in good faith.  As he said:

On the other side of the equation, I find that the
    conduct of the police was undertaken in good faith. There was no evidence of a
    blatant or callous disregard of
Charter
rights by any of the officers
    who dealt with Ms. Kelsy. I find that the searching officer, P.C. Ahmad, acted
    with the best of intentions, in very difficult circumstances. If P.C. Ahmad's
    actions did involve an unjustifiable use of police powers, it barely crossed
    the line of what the law permitted.

[62]

It may be that Constable Ahmad had a hunch that something was wrong with
    the appellants backpack, but he was also motivated by the need to return the
    appellants property to her so that she could be on her way with her daughter.
    He acted in haste in the confusion of the 911 call.

[63]

The majority of the court in
Grant
(2009), discussed the concept
    of good faith at para. 75:

Extenuating circumstances
, such as the need
    to prevent the disappearance of evidence, may attenuate the seriousness of
    police conduct that results in a
Charter
breach:
R. v. Silveira,
[1995]
    2 S.C.R. 297,
per
Cory J.
Good faith on the part of the police will
    also reduce the need for the court to disassociate itself
from the police
    conduct. However, ignorance of
Charter
standards must not be rewarded or
    encouraged and negligence or wilful blindness cannot be equated with good faith
Wilful or flagrant disregard of the Charter
by those very persons who
    are charged with upholding the right in question
may require that the court
    dissociate itself from such conduct
.  [Emphasis added.]

[64]

In a sense, the facts of this case resemble
Grant
.  An important
    consideration favouring admissibility of the evidence in that case was that the
    law respecting investigative detention was uncertain.  The court explained this
    aspect of the case at para. 133:

The officers went too far in detaining the accused
    and asking him questions. However, the point at which an encounter becomes a
    detention is not always clear, and is something with which courts have
    struggled. Though we have concluded that the police were in error in detaining
    the appellant when they did, the mistake is an understandable one.

[65]

Similarly, in this case, on the findings of fact made by the trial
    judge, the mistake made by Constable Ahmad was an understandable one.  He went
    too far in opening the bag, but he was entitled to seize the bag until the
    scene had stabilized.  This case is one of first impression and the limits of
    permissible investigative procedures in the course of responding to a 911 call
    were not entirely clear.

[66]

There were also extenuating circumstances; Constable Ahmad was dealing
    with a chaotic situation in which the primary concern was for the welfare of
    the public and the police.  This was not a case of flagrant disregard for
Charter
rights.

[67]

The second inquiry requires the court to consider the impact of the
Charter
breach on the appellants
Charter
-protected interests.  This was a
    serious intrusion into the appellants privacy; the backpack contained the
    appellants personal papers and her purse.  On the trial judges findings of
    fact, however, the impact on the appellants privacy rights was mitigated.  The
    circumstances were unique given the appellants own testimony that she had
    intended to give the gun to the police in any event.  I accept that the impact
    of the
Charter
breach on the appellants privacy interest was somewhat
    diminished.

[68]

The third
Grant
inquiry looks to societys interest in an
    adjudication on the merits.  The most significant factor in this inquiry tends
    to be the reliability of the evidence.  In this case, the firearm, ammunition
    and drugs were reliable evidence, a factor favouring admission of the
    evidence.  In an interesting submission, Mr. Dineen, counsel for the appellant,
    submitted that the societal interest in an adjudication on the merits was
    attenuated because the principal offender, Mr. Christie, had been convicted and
    received a significant prison sentence.  At para. 80, the
Grant
court
    noted that s. 24(2) mandates a broad inquiry into all the circumstances not
    just the reliability of the evidence.  Thus, I think the disposition of the
    case against Mr. Christie was a matter to consider.  That said, I would not
    give it undue weight.  Society still had a significant interest in correctly
    disposing of the charges against the appellant.  As the court said in
Grant
at
    para. 81:  exclusion of relevant and reliable evidence may undermine the
    truth-seeking function of the justice system and render the trial unfair from
    the public perspective, thus bringing the administration of justice into
    disrepute.

[69]

Finally, the court is required to balance the three inquiries to
    determine whether admission of the evidence would bring the administration of
    justice into disrepute.  The factors relating to the seriousness of the breach
    and the reliability of the evidence favour admissibility.  While the impact on
    the appellants
Charter
-protected interests was mitigated because of the
    unique circumstances that the appellant wanted to hand over the gun to the
    police anyway, the intrusion was still a serious one.  The appellants
    professed desire to distance herself from the firearm and hand it over to
    police did not in any significant way diminish her privacy interests in the
    other contents of the backpack and the bags containing her daughters
    belongings.  The second line of inquiry favours exclusion of the evidence.

[70]

On balance, I would resolve this case in the same way as did the court
    in
Grant.
There, as here, the most important consideration was the
    context of legal uncertainty in which the police were operating: see para. 140
    of
Grant
.  In my view, the repute of the justice system would not suffer
    from allowing the firearm and the drugs to be admitted in evidence against the
    appellant.

DISPOSITION

[71]

Accordingly, I would dismiss the appellants appeal from conviction.

Signed:           M. Rosenberg J.A.

I agree John Laskin
    J.A.

I agree K. Feldman
    J.A.

RELEASED:  JL September 22, 2011


CITATION:
R. v. Levere, 2011 ONCA 576

DATE: 20110907

DOCKET: C53105

COURT OF APPEAL FOR ONTARIO

Gillese, Armstrong and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Garry Levere

Respondent

Holly Loubert, for the appellant

Brennagh Smith, for the respondent

Heard and released orally:
August 25, 2011

On appeal from the sentence imposed by Justice Renaud of the
          Ontario Court of Justice, on November 22, 2010.

ENDORSEMENT

[1]

Mr. Levere pleaded guilty to one charge of arson in respect of his own
    property.  He was given a 12 month conditional sentence, with strict
    conditions, followed by 24 months of probation.

[2]

The Crown appeals the sentence on two grounds.  First, it contends that
    the sentencing judge erred in failing to designate the offence as a serious
    personal injury offence (SPIO) pursuant to ss. 742.1 and 752 of the
Criminal
    Code
.  Once it is so designated, the conditional sentence is illegal.
    Second, and in any event, the Crown argues that the sentence is demonstrably
    unfit because it is disproportionate to the gravity of the offence and the
    degree of responsibility of the offender.  The Crown asks that a period of
    actual imprisonment be imposed for the time remaining to be served on the
    sentence (88 days).

The SPIO

[3]

The Crown did not advance the argument below that the offence amounted
    to a circumstantial SPIO and, therefore, that a conditional sentence was not
    available.  We decline to entertain this argument for the first time on
    appeal.

[4]

The determination of whether an offence is a circumstantial SPIO is one
    for the trial judge to make, with the benefit of the relevant evidence and
    legal submissions.  It would be unfair and prejudicial to permit the Crown to
    raise it at this stage of the proceedings.

Fitness of sentence

[5]

As for the fitness of sentence, we see no basis on which to interfere
    with the sentence that has been imposed.  The sentencing judge considered the
    appropriate sentencing principles and satisfied himself that the sentence struck
    the appropriate balance between the goals of the denunciation, deterrence and
    rehabilitation.  He noted that the offence was out of character for the
    respondent, and that it was committed at a time when the appellant was
    suffering from mental health challenges involving depression, being suicidal
    and not thinking clearly.  The sentencing judge also noted that the respondent
    was a mature first time offender (he was 49 years of age at the time of the
    offence), and that he had no prior record of wrong doing.  In addition, the
    respondent had a long and good employment record.  He noted as well that the fire
    was minor and the only damage suffered as a result of the offence was to the
    respondents own property.

[6]

The sentencing judge recognized the seriousness of the offence but
    concluded that when the gravity of the offence was balanced against the
    respondents attenuated moral blameworthiness, a fit sentence was one of
    incarceration to be served within the community.

[7]

The post-sentence evidence demonstrates that the respondent has used the
    period of the conditional sentence to put his life in order and address the
    personal issues that led him to commit the offence.

[8]

Accordingly, while leave to appeal sentence is granted, we dismiss the
    appeal.

E.E. Gillese
    J.A.

Robert P.
    Armstrong J.A.

Karakatsanis
    J.A.


CITATION: R. v. Pugliese, 2011 ONCA 583

DATE: 20110909

DOCKET: C53547

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Nicholas Pugliese

Appellant

Jeffrey Langevin, for the appellant

Amber Pashuk, for the respondent

Heard and endorsed: September 7, 2011

On appeal from conviction entered by Justice D. Kent Kirkland
          of the Ontario Court of Justice dated January 11, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the parties that the reasons are insufficient and that the
    convictions cannot stand. However, that inadequacy of reasons does not affect a
    finding of simple possession on Count # 1.

[2]

Accordingly, the appeal on Counts 3, 4 and 5 is allowed. The convictions
    quashed and a new trial ordered.

[3]

On Count # 1, the appeal is dismissed and a conviction for simple
    possession substituted and the appellant sentenced to four months imprisonment
    (which we note has already been served).

[4]

As to the new trial, Crown counsel has stated that the Crown does not
    intend to proceed with the new trial.

[5]

The orders under ss. 109 and 487.05.1 are vacated.


CITATION: R. v. Selvanayagam, 2011 ONCA 602

DATE: 20110921

DOCKET: C48547

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Mathiyalagan Selvanayagam

Appellant

Michael Dineen, for the appellant

Benita Wassenaar, for the respondent

Heard: February 16, 2011

On appeal from the conviction entered by Regional Senior Judge
          Edward F. Then of the Superior Court of Justice, sitting with a jury, dated
          April 1, 2006.

Feldman J.A.:

INTRODUCTION

[1]

The appellant appeals his conviction for second degree murder. DNA
          analysis of blood left at the scene not belonging to the victim was strongly
          linked to the appellant with the chance of co-incidence being one in 19
          trillion. Besides the blood evidence, the Crown also relied on four statements
          the appellant made to the police before and after he was arrested to show
          that he was lying when he said he did not go to the house where the murder
          occurred and he did not kill the victim. The appeal is based on the treatment
          of those statements by Crown counsel in his closing and by the trial judge in
          his charge to the jury.

FACTS

[2]

The appellant had been a tenant living in the basement of the home of
          the deceased and her husband and two children at 89 Deanscroft Square in
          Toronto. The family slept on the second floor. The appellant moved out in
          August, 2000, but called to collect his mail from time to time.

[3]

On December 29, 2000 at 10:35 p.m., the deceaseds husband left for
          his night shift job as an accountant at a hotel. That evening, the husband
          received a number of hang-up phone calls at work. He returned home at 7:30 a.m.
          and found his wife lying on the floor of the spare bedroom with blood all
          around. The children were asleep in another bedroom.

[4]

When he left, his wife had been wearing a green shirt and pink fleece
          pants. When he found her, she was naked but covered with a blanket from the
          waist down. The fleece pants together with her underwear turned inside out
          were found in the same room.

[5]

There was a large amount of blood on the bed and on the carpet. Small
          amounts of blood were also found on the walls of the hall between the bedroom
          and the bathroom.  More blood was in the bathroom on the toilet, the toilet
          paper, the toilet handle, on towels and on the floor. It was later determined
          that the blood belonged not only to the victim, but some of it was from the appellant.
          The deceaseds husband testified that the blood was not there when he went to
          work that evening and that they cleaned the house every other day.

[6]

The police found letters addressed to the appellant and to another
          tenant downstairs in the home. They examined the basement room where the
          appellant had stayed when he lived there. There was a broken window covered
          by a piece of drywall and a thumbtack. There was dust and cobwebs on the
          windowsill. Two fingerprints belonging to the appellant were found on the
          outside of that window. There were also two sets of footprints in the snow,
          one that led to the side of the house and one to the shed.

[7]

The deceased was killed by 48 stab wounds from a knife or blade. The
          wounds were all over her body including many defensive wounds on her arms and
          hands. There was no evidence of any sexual encounter.

[8]

DNA testing on the various blood stains found DNA consistent with the
          appellants DNA. The consistency was found at 9 loci, which meant the match
          was very strong. The expert evidence was that the chance that the blood found
          was also consistent with a randomly selected person was one in 19 trillion.

[9]

The police interviewed the appellant on four occasions after the
          murder, the last one following his arrest. The first interview was on January
          6, 2001, one week after the murder, once the police learned that the
          appellant had previously been a tenant in the deceaseds home. The appellant
          came to the door lightly dressed, giving the police the opportunity to look
          for any cuts or other injuries to his body; they saw none.

[10]

He told the police on that occasion that he knew of no one who would
          have wanted to hurt the deceased, that he had placed the drywall in the
          basement window to block out the light, and that he would have left his
          fingerprints on the window when he cleaned it on occasion. He reported that
          his relationship with the family was fine and that the husband would sometimes
          help him fill out forms. He said that he used the basement and kitchen of the
          home.

[11]

He said that on the night of the murder at 9:30 p.m. he went to Denisons
          pub where he had formerly been employed, met friends and stayed until 1:30 a.m.
          He went home by subway, bus, then taxi, and arrived at around 3:00 a.m. He
          told the police that he had not been to the 89 Deanscroft Square address for
          about two months, but that since he moved out, he had gone back to pick up
          his mail two or three times, always calling first. He was asked if he had any
          more information, and did not mention that he had called the deceased the
          afternoon before the murder.

[12]

The police came to interview the appellant a second time on January
          19, 2001 after they had examined the deceaseds call display and found a call
          from the appellant at 5:47 p.m. the afternoon before the evening of the
          murder. The officer described the appellant as co-operative. When asked, the appellant
          acknowledged the call. He told the police that the deceaseds daughter had
          answered and passed the phone to the deceased. He said that he asked her if
          there was any mail for him and if he could come on Saturday to retrieve it.
          She told him that there was mail and that he could pick it up only Saturday
          morning because she was having a party. He told her he would call the next
          day to arrange another time.

[13]

The third time the police came was several months later on December
          14, 2001 to obtain a DNA sample, which the appellant agreed to give. He was
          again polite and co-operative.

[14]

The appellant was arrested for first degree murder over one year later
          on February 6, 2003 after the DNA testing of the blood identified him. He was
          interviewed at that time and gave a cautioned statement. In that statement,
          he denied killing the deceased. He said when he lived at 89 Deanscroft, he
          never went to the second floor. He could not explain the presence of his
          blood at several locations at the murder scene. He denied calling the
          deceased the day before the murder to ask about his mail and said he did not
          remember what he had told the police about that in his January 19, 2001
          interview. He also said he was not close with the deceaseds family and that
          when he lived there, he spent most of his time in his room.

[15]

The trial began in February, 2006. The Crown led the appellants
          statements as part of its case.

[16]

The appellant testified in his defence. His testimony was essentially
          exculpatory but there were some possible inconsistencies with previous
          statements. For example, he described a much closer relationship with the
          family of the deceased than he had previously acknowledged. He explained that
          he had earlier said he spent most of his time in his room because their
          schedules often did not overlap.

[17]

Another discrepancy that the Crown focused on was the phone call. The
          appellant acknowledged the phone call regarding his mail. He said he had
          forgotten it when he was arrested in February, 2003, but he had told the
          police about it on January 19, 2001 when they asked him about it. In cross-examination
          his explanation for not remembering or acknowledging the call after his
          arrest was that once he was implicated, he denied the call.

[18]

The third issue that the Crown pursued was the appellants story as to
          whether he had ever been on the second floor of the house. The appellant said
          he had gone there sometimes to wake the husband if there was a visitor and on
          two or three occasions when the husband, who was an accountant, had helped
          him with his taxes. He had never gone into the second-floor bathroom.
          Regarding his denial in his post-arrest statement that hed ever been to the
          second floor, the appellant explained that he was afraid, that he did not
          think it related to the murder and did not understand the issue at the time.
          He said he denied being up there because he had nothing to do with the
          incident.

[19]

The appellant was charged with first degree murder while committing a
          sexual assault. Although there was no forensic evidence of a sexual assault,
          the Crowns theory was that the appellants motive was sexual assault, and
          that his DNA identified him as the murderer. He had first attempted to enter
          by the basement window, then came to the front door on the pretext of picking
          up his mail. Besides the DNA evidence, the Crown also relied on the contradictions
          in the appellants statements and testimony, which both undermined the
          credibility of his denial and amounted to lies that were evidence of his
          guilt.

[20]

The defence position was that another person had entered to steal
          jewellery and when he was confronted by the deceased, he killed her. The
          appellant questioned the conclusiveness of the DNA evidence and pointed to his
          co-operation with the police as evidence of consciousness of innocence.

ISSUES ON THE APPEAL

[21]

The appellant was convicted of second degree murder, the jury having
          found that the Crown did not prove a sexual assault beyond a reasonable
          doubt.

[22]

The appellant raises two issues, both alleging errors by the trial
          judge in relation to the proper use the jury was entitled to make of his pre-trial
          statements: (1) the trial judge failed to give the jury an
OConnor
instruction explaining that mere disbelief of an accuseds exculpatory
          statements could not be used by the jury as evidence of guilt unless there was
          independent evidence that the accused had fabricated his statements; and (2)
          the trial judge incorrectly told the jury that the appellants prior
          inconsistent exculpatory statements were not evidence unless he had adopted them
          in his trial testimony. He used as examples the exculpatory statements that the
          appellant never went to the second floor of the deceaseds house and that he
          did not make the phone call to the deceased.

[23]

The appellant submits that the jury would have been looking for
          evidence beyond the DNA identification in order to convict. Because of these
          errors, if the jury disbelieved his exculpatory statements and denial of
          guilt, they may have used that disbelief as evidence against him. Also, he
          submits, the trial judge improperly removed from their consideration, as
          evidence in his favour if they believed it, the exculpatory statements he
          made pre-trial.

[24]

Therefore, he submits, the cumulative effect of the errors requires
          the court to order a new trial.

Issue 1  Failure to Give an
OConnor
Instruction

[25]

Part of the position of the Crown was that the appellants lies
          amounted to after-the-fact conduct indicating consciousness of guilt. In
          pre-charge discussions, the issue of instructing the jury on the law
          regarding after-the-fact conduct indicating consciousness of guilt and
          consciousness of innocence was discussed. Defence counsel asked the trial
          judge to instruct the jury that the appellants co-operation with the police
          in his statements and in voluntarily giving his DNA indicated consciousness
          of innocence.

[26]

Ultimately, the trial judge decided that the fairest approach would be
          not to give an after-the-fact conduct charge either way, but he outlined for
          the jury the positions of the Crown and defence on the issue. Defence counsel
          did make an objection to the charge based on the failure to give an
OConnor
instruction that the jury could not use the appellants lies, if they found
          them to be so, as positive evidence of guilt unless they were satisfied that
          he had fabricated his statements. See
R v. OConnor
(2002), 62 O.R.
          (3d) 263 (C.A.), at paras. 36-38.

[27]

The law, briefly stated, is that the trier of fact may not treat a
          disbelieved exculpatory statement as positive evidence of guilt unless there
          is evidence, independent of the fact of falsity itself, that the statement
          was concocted or deliberately fabricated. The rationale for the rule was
          explained by Doherty J.A. in
R. v. Coutts
(1998), 40 O.R. (3d) 198
          (C.A.), at p. 203 as follows:

If triers of fact were routinely told that they
          could infer concoction from disbelief and use that finding of concoction as
          evidence of guilt, it would be far too easy to equate disbelief of an
          accused's version of events with guilt and to proceed automatically from
          disbelief of an accused to a guilty verdict. That line of reasoning ignores
          the Crown's obligation to prove an accuseds guilt beyond reasonable doubt.
          By limiting resort to concoction as a separate piece of circumstantial
          evidence to situations where there is evidence of concoction apart from
          evidence which contradicts or discredits the version of events advanced by
          the accused, the law seeks to avoid convictions founded ultimately on the
          disbelief of the accuseds version of events. [References omitted.]

[28]

Procedurally, where the Crown wishes to have the jury draw the
          inference of guilt from an accuseds statements, then at the admissibility
          stage it must show the court sufficient evidence of concoction that is
          independent of the falsity of the statement, to demonstrate fabrication. See
R.
          v. Hall
, 2010 ONCA 724, at para. 164. Otherwise, the Crown is limited to
          putting the statements to the accused in cross-examination, if the accused
          testifies at the trial. That procedure was not followed in this case before
          the Crown was allowed to lead the statements in evidence as part of its case.
          However, the accused testified in his own defence, so that the statements
          were also put to him in cross-examination.

[29]

In his charge, the trial judge instructed the jury to consider the appellants
          contradictions in the context of assessing his credibility only, rather than
          as evidence of consciousness of guilt. He gave a
W.(D.)
charge
          instructing the jury that even if they disbelieved the appellant, they had to
          look to the other evidence to determine whether the Crown had met its burden
          of proof of guilt beyond a reasonable doubt. See
R. v. W.(D.)
, [1991]
          1 S.C.R. 742, at p. 758.

[30]

The trial judge did not give an
OConnor
charge that would have
          told the jury that they could not use disbelief of the accused as evidence of
          guilt unless they found independent evidence that he had fabricated his
          statements. In
R. v. Polimac
(2010), 254 C.C.C. (3d) 359 (Ont. C.A.)
          where this same issue arose, Doherty J.A. observed at para 106:

The trial judge could have given an instruction
          following the
OConnor
model.
The question on appeal, however, is
          not whether an OConnor instruction would have been appropriate, but whether
          the instruction given prejudiced the appellants right to a fair trial.
I
          do not think it did. [Emphasis added.]

[31]

As was the case in
Polimac
, I think the trial judges decision
          not to give the
OConnor
instruction in this case was a fair one. As
          in
Polimac
, there was evidence that was independent of the falsity of
          the impugned statements that the jury could have considered on the issue of
          concoction, had they been so instructed.

[32]

The appellant admitted that he lied to the police in his post-arrest
          statement when he told them he had never been on the second floor of the
          deceaseds house. His explanation for that lie was basically that once the
          police told him the murder had occurred on the second floor, he did not
          equate his going to the second floor at another time as related to the
          incident or the question they were asking. If the jury rejected that
          explanation, they could conclude that he had fabricated that answer to
          distance himself from the murder. The same analysis could apply regarding the
          appellants failure to acknowledge his phone call to the deceased on the
          afternoon before the murder. Although he admitted he made the call when the
          police confronted him with the phone records on January 19, 2001, he denied
          it in his post-arrest statement in February, 2003. His explanation was that
          at that time he denied it because the police were then implicating him in the
          murder. Again, if the jury rejected that explanation and concluded that the
          appellant had fabricated his denial, they would have been entitled to treat
          his false statements as consciousness of guilt evidence.

[33]

Because this evidence of possible concoction existed, it would not
          have helped the appellant to have it outlined to the jury by the trial judge.
          As Doherty J.A. found in
Polimac
, such an instruction would have
          called to the jurys attention the evidence of concoction, and the conclusion
          that it constituted evidence of consciousness of guilt. Instead, the jury was
          encouraged to consider the appellants evidence in the context of a
          credibility analysis, and in accordance with
W.(D.)
, if they rejected
          the appellants denial of guilt on that basis, they were told that they still
          had to evaluate the evidence of guilt presented by the Crown, and determine,
          based on that evidence, whether the Crown had proved its case beyond a
          reasonable doubt. As a result, I do not view the decision not to give an
OConnor
instruction as an error in all the circumstances of this case. Had this been
          a case where there was no evidence of concoction or fabrication of an alibi
          or exculpatory statement by an accused, the
OConnor
charge would have
          been necessary to warn the jury that they could not use mere disbelief of an
          accused as positive evidence of guilt or of consciousness of guilt.

[34]

As part of this first

objection, the appellant also submits
          that the trial judge should have specifically pointed out to the jury that
          for some of the statements, no Tamil interpreter was provided and this may
          have affected the appellants understanding and his responses. Although such
          a reminder could have been given, no objection was made to the charge on that
          basis, although many objections were raised by trial counsel. The failure to
          object can be taken as an indication that defence counsel did not consider
          this to be an important omission at the time.

Issue 2: Prior Inconsistent Statements by the Appellant

[35]

I agree with the appellant that the trial judge made an error of law
          when he told the jury that the rule regarding the evidentiary value of prior
          inconsistent statements applies to an accused who testifies.

In
          error, the trial judge

told the jury that they could not use as
          evidence a prior exculpatory statement made by the appellant if he did not
          adopt
it in his court testimony.

[36]

He then gave two examples. The first was in the February 6, 2003 post-arrest
          statement where the appellant said he had never been on the second floor of
          the 89 Deanscroft house, then acknowledged in his trial testimony that he had
          been there a number of times in the past but not in the bathroom. The trial
          judge told the jury that because the appellant had repudiated his February,
          2003 statement and not adopted it at trial, they could not use that statement
          as proof that he had never gone to the second floor of the home. However,
          they could use the inconsistency to assess the appellants credibility in his
          evidence given at the trial.

[37]

The second example was from the same statement where the appellant
          said he did not remember making the telephone call to the deceased regarding
          the mail on December 29, 2000, but at trial he said he did make the phone
          call. The trial judge told the jury that because the appellant did not adopt
          his previous statement, they could not use that statement as proof that that
          he did not make the call, but again, they could use the inconsistency to
          assess the appellants credibility at trial.

[38]

An accuseds out-of-court-statements constitute evidence both for and
          against that accused: S. Casey Hill
et al.
,
McWilliams Canadian
          Criminal Evidence
, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book,
          2003) at para. 7:160.10: see
Polimac
at para. 85. The issue of the
          use that can be made of an accuseds statements that contain both inculpatory
          and exculpatory elements was recently discussed by the Supreme Court of
          Canada in
R. v. Rojas
, [2008] 3 S.C.R. 111. The court there confirmed
          that the Crown cannot tender only the inculpatory portion of an accuseds
          out-of-court statement that also contains exculpatory portions, and that the
          exculpatory portion is also substantively admissible in favour of the
          accused. (para 37)

[39]

Therefore, in theory, the jury could have ignored the appellants
          evidence at trial, although it was corroborated by the phone record in the
          case of the phone call and by the deceaseds husband in the case of the
          appellant having been on the second floor a number of times, and accepted the
          appellants earlier exculpatory statements to the contrary.

[40]

However, in my view, that was merely a theoretical possibility given
          the appellants trial testimony and the corroboration referred to.
          Furthermore, the DNA evidence, if accepted, clearly showed that the appellant
          had been to the second floor of the home and left his blood, and the phone
          record showed that the phone call was made from his phone. Therefore,
          although an error was made, it could have had no practical effect.

[41]

On the other hand, the two examples of prior inconsistent statements
          used by the trial judge as illustrations of exculpatory evidence the jury
          could not use, but of contradictions that they could use, could have had some
          prejudicial effect. Trial counsel made a specific objection to this portion
          of the charge. These two examples underscored to the jury the appellants
          credibility problems and may thereby have caused some prejudice to the
          appellant.

Application of the Proviso

[42]

In the circumstances, Crown counsel on the appeal submits that to the extent
          an error of law was made, this is a proper case for the application of the
          proviso provided by s. 686(1)(
b
)(iii) of the
Code
, on the basis
          that no substantial wrong or miscarriage of justice has occurred.

[43]

This was an overwhelming case based on the DNA evidence from the blood
          that the appellant left both in the room where the deceased was killed and in
          the bathroom, where the killer apparently attempted to clean up. The
          appellant also had a connection to the house and the family and had
          telephoned the home hours before the murder.

[44]

The acquittal by the jury on the first degree murder charge, rejecting
          the allegation of sexual assault, showed that the jury was not overwhelmed by
          any credibility problems the appellant may have had, but looked for positive
          evidence of the elements of each charge to substantiate a conviction.

[45]

I would therefore apply the proviso and dismiss the appeal.

Signed:           K. Feldman J.A.

I agree John
    Laskin J.A.

I agree Robert
    P. Armstrong J.A.

RELEASED: JL SEPTEMBER 21, 2011


CITATION: R. v. Serre, 2011 ONCA 586

DATE: 20110909

DOCKET: C51031

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Serre

Appellant

J. Scott Cowan, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: September 6, 2011

On appeal from the conviction
          entered by Justice Patricia C. Hennessy of the Superior Court of Justice,
          sitting with a jury, on June 16, 2008.

ENDORSEMENT

[1]

There is one issue on this appeal.  The appellant argues that the trial
    judge erred in her
Vetrovec
warning to the jury concerning the witness
    Hash Richard Danis by including in that instruction a direction that the jury
    should look for confirmatory evidence of that part of Mr. Danis evidence that
    assisted the defence.  As the appellant acknowledges, Mr. Danis was a mixed
    witness, in the sense that he gave evidence favourable both to the Crown and
    the defence.  As at trial, the appellant does not challenge the need for a
Vetrovec
warning concerning the witness testimony.

[2]

For the reasons that follow, we reject the appellants argument.

[3]

The content of a trial judges
Vetrovec
warning is a matter
    clearly within the trial judges discretion and therefore should generally be
    respected.  In this case, when the charge is read as a whole, it is apparent
    that the trial judge made it clear to the jury  at least four times  that the
    jury was free to accept Mr. Danis testimony without confirmatory evidence.

[4]

Further, the defence was aware of the nature of the
Vetrovec
instruction from the time of the pre-charge conference and sought no
    modification of it.  Nor did the defence register any objection to it after the
    charge to the jury.

[5]

More importantly, in our view, the
Vetrovec
instruction was fair
    to the appellant for two reasons.  First, the trial judge did not repeat the
    strong inculpatory evidence that confirmed Mr. Danis
KGB
statement (
i.e.
the trail, gun and knapsack evidence).  This was to the appellants benefit.
    Second, the instruction gave the jury a path to accept Mr. Danis exculpatory
    trial evidence without confirmation.  This was also favourable to the
    appellant.  There was, therefore, no injustice or prejudice to the appellant
    from the
Vetrovec
warning.

[6]

The appeal is dismissed.

E.A. Cronk J.A.

K.M. Weiler J.A.

David Watt J.A.


CITATION: R. v. Speziale, 2011 ONCA 580

DATE: 20110908

DOCKET: C51640

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Speziale

Appellant

Paul Calarco, for the appellant

Niall Gilks, for the respondent

Heard: December 1, 2010

An application for leave to appeal
          and, if leave be granted, an appeal against the sentence imposed by Justice C.
          Horkins of the Superior Court of Justice, on July 22, 2009.

ARMSTRONG J.A.:

INTRODUCTION

[1]

This appeal was argued before us on December 1, 2010.  At the conclusion
    of the argument, we granted leave, allowed the appeal and reduced the
    appellants sentence to time served with written reasons to follow.
    Unfortunately, the delivery of those reasons has been unintentionally delayed
    until now.

[2]

The appellant was tried by a judge and jury.  He was convicted of
    possession of cocaine for the purpose of trafficking and one count each of
    possession of cocaine and possession of MDMA (ecstasy).  On the possession of
    cocaine for the purpose of trafficking count, he was sentenced to a term of
    imprisonment for five years.  On the simple possession of cocaine and
    possession of MDMA, he was sentenced to one year on each count.  All three
    sentences were to be served concurrently.

BACKGROUND

(i)        The Offences

[3]

The appellant rented an apartment on Wilson Avenue in Toronto in October
    2005.  He testified that shortly thereafter he moved out of the apartment and
    turned it over to a person called Tito, who had previously sold drugs to the
    appellant in the apartment.  The appellant conceded at trial that Tito was
    likely selling drugs to other persons who attended at the apartment.

[4]

The trial judge, in her reasons for sentence, rejected the appellants
    evidence that he had moved out of the apartment.

[5]

On the night of November 4, 2005, unknown men entered the apartment and
    a gunfight broke out.  The appellant testified that he had nothing to do with
    the gunfight and that he had gone to the apartment to purchase some drugs from
    Tito.  When he approached the apartment, he was forced inside with a gun held
    to his head by one of the assailants who used him as a shield.  According to
    the appellant, his hands were tied together with duct tape.

[6]

The appellant testified that after a number of gun shots had been fired,
    everyone in the apartment left.  The appellant was able to free his hands from
    the duct tape and he exited the apartment by a balcony.  The appellant later
    turned himself in at the police station.

[7]

When the police arrived at the apartment, they conducted a search.  The
    police seized powdered cocaine and ecstasy tablets.  The appellant admitted
    owning six and a half tablets of ecstasy and 2.77 grams of cocaine, which were
    found on the top shelf of the bedroom closet beside the appellants birth
    certificate and employment record.

[8]

The appellant denied possessing any other drugs found in the apartment.
    The trial judge found that the appellant was in possession of 14.87 grams of
    cocaine and the ecstasy pills.

[9]

The police also found inside the apartment a debt list, a money counting
    machine, a scale and four or five empty kilo bags with cocaine residue.  There
    was a dusting of cocaine on the kitchen counter consistent with the manufacture
    of crack.  Two thousand dollars was found on the top of a refrigerator.

[10]

The police also found a safe in the apartment, which contained a gun and
    ammunition.  The appellant was charged with possession of a loaded prohibited
    firearm and careless storage of ammunition.  The jury acquitted him on both of
    these charges.

(ii)       The Appellant

[11]

At the time of the offences, the appellant was 25 years old.  He was a
    trained and licensed welder.  He had a grade 9 education.  He was on bail for
    nearly four years prior to trial.  While on bail, he lived with his parents and
    his sister.  According to his bail conditions, he was confined to his residence
    except for court attendances, employment and consultations with counsel.  He
    could also leave his residence when accompanied by one of his sureties.

[12]

The appellant committed two breaches of his recognizance while on bail
    for which he received short jail terms.  Also, while on bail, he was convicted
    of possession of a Schedule III substance (amphetamine) for which he was fined
    $500.

[13]

The appellant has a criminal record dating from September 1998 in youth
    court.  His offences included assault with a weapon, assault, possession of
    property obtained by crime, possession of a prohibited weapon, possession of a
    Schedule II substance, possession of a Schedule III substance, failure to
    comply with a recognizance (x 3) and dangerous driving.  Up to the time of the
    offences in this case, his longest custodial sentence was 45 days served
    intermittently for failure to comply with a recognizance and assault.

[14]

Prior to sentencing, the appellant provided assistance to the Toronto
    Police Service Organized Crime Task Force.  The following agreed statement of
    facts was admitted at the sentencing hearing:

Mr. Speziale has been assisting the Toronto Police
    Service Organized Crime Task Force.  His involvement with this unit began upon
    his arrest in November 2005.

As a result of information received from Mr.
    Speziale in February of 2006, police seized two loaded handguns, a quantity of
    ammunition and a significant amount of marijuana, cocaine and methamphetamine.
    Two persons were arrested, convicted and served time in jail relating to these
    charges.

Mr. Speziale has contact with the officer on a
    regular basis and there are ongoing investigations at this time based on
    information provided.

(iii)     The Trial Judges Reasons

[15]

The trial judge was not impressed with the appellant as a witness.  She
    rejected his evidence concerning his moving out of the apartment.  She also
    rejected his evidence as to his lack of involvement in the illicit drug activity
    in his apartment.  She did not accept his evidence concerning his attendance at
    the apartment at the time of the gunfight.  The trial judge concluded that the
    appellant was part of a high level drug business.  That said, she stated that
    she was sentencing the appellant for possession of 14.87 grams of cocaine for
    the purpose of trafficking.

[16]

The trial judge concluded that denunciation and deterrence were of
    paramount importance in sentencing the appellant.  She concluded that the
    appropriate range of sentence was five to eight years.  She relied in
    particular on this courts judgment in
R. v. Bajada
(2003), 173 C.C.C.
    (3d) 255 (Ont. C.A.).

[17]

The trial judge considered both aggravating and mitigating factors in
    respect of the appellant.  The aggravating factors include his criminal record
    and the facts of the particular offences occurring as they did in the context
    of a gunfight in an apartment apparently used for high level drug trafficking.
    The list of mitigating factors included the appellants assistance to the
    police and his regular attendance at Narcotics Anonymous.

[18]

Counsel for the appellant at trial submitted that there were other
    mitigating factors, which included the possibility that he suffered from attention
    deficit disorder, his expression of remorse and his desire to change his life.
    The trial judge declined to give these factors any significant weight.
    Finally, the trial judge considered the prospect for rehabilitation.  In this
    respect, she said:

I recognize that one danger of imposing a lengthy
    jail term is that it can impair the rehabilitation and reintegration as a
    person as a responsible member of this community.  This was referred to in
R.
    v. Woolcock
[2002] O.J. 4927 Ont. C.A. at para. 13.  While I appreciate
    that I cannot overlook the rehabilitation factor, denunciation and deterrence
    are paramount.  Furthermore, there is nothing particular about Mr. Speziales
    circumstances that require me to be concerned about rehabilitation.  He has
    already trained to work as a welder and can, if he wished, return to his
    employment after his release from jail.

[19]

The trial judge agreed that she should take into consideration the
    appellants co-operation with the police and did so by imposing a sentence at
    the low end of the range of five to eight years.

[20]

The trial judge declined to give effect to the submission of trial
    counsel that she should take into account the appellants restrictive bail
    terms and give some credit for his time on bail.

THE APPEAL

[21]

The appellant raises several grounds of appeal.  It is not necessary to
    deal with all of the grounds in order to dispose of the appeal.  In my view,
    there are three errors that justify this courts intervention:

(i)

The trial judge erred in determining the appropriate range of sentence.

(ii)

The trial judge erred in failing to consider the element of
    rehabilitation in the circumstances of the appellant.

(iii)

The
    trial judge erred in failing to apply the principle of proportionality.

(i)        The Range of Sentence

[22]

The appellant was convicted in respect of 14.87 grams of cocaine and six
    and a half tablets of ecstasy.  The focus of the trial judges reasons was on
    the cocaine.  Counsel for the appellant submits that a five year sentence for
    possession for the purpose of trafficking of 14.87 grams of cocaine is far
    beyond the range that could be justified on the facts of this case.  The trial
    judge relied in particular on this courts decision in
R. v. Bajada
.
    The facts in
Bajada
are significantly different from the case at bar.
    In that case, the appellant was convicted of possession for the purpose of
    trafficking of more than one half kilogram of cocaine, which had an estimated
    value of $62,500.  Mr. Bajada was 51 years old with a significant criminal
    record including conspiracy to traffic in a narcotic and two convictions for
    trafficking in a narcotic.  He also received a three year sentence in respect
    of a conviction for extortion, which was also related to drug trafficking.  In
    the result, Mr. Bajadas sentence of eight years was reduced to six years.

[23]

In this case, the appellant was convicted of a very serious offence.
    The circumstances in the apartment on the night of the offences are troubling.
    However, the evidence does not establish what part the appellant played in the
    trafficking operation that was carried on from the apartment.  The evidence
    does not establish that he had anything at all to do with the gunfight.  To say
    otherwise is to speculate.  Indeed he was acquitted in respect of two firearm
    related offences.  He was not charged in connection with the gunfight.

[24]

This is not a case for a penitentiary term.  A sentence of five years is
    outside the range for the amount of cocaine in issue.  In my view, the
    appropriate sentence falls within the range of a reformatory term.

(ii)       Rehabilitation

[25]

In my view, the trial judge erred in concluding that she need not
    concern herself with the appellants rehabilitation.  The appellant was 29
    years old at the time of sentencing.  He recognized that he had a drug problem
    and was regularly attending Narcotics Anonymous.  He expressed remorse.  He was
    a trained and licensed welder with prospects for future employment.  It seems
    to me that he needed encouragement to turn his life around in order to continue
    on a path that he had, at least, started down.  A penitentiary term of five
    years is unlikely to provide such encouragement.

(iii)     Proportionality

[26]

This sentence does not satisfy the fundamental principle of sentencing
    articulated in s. 718.1 of the
Criminal Code
.  A sentence of five years
    in the penitentiary for the small amount of cocaine involved in this case is
    not proportionate to the gravity of the offence and the degree of
    responsibility of the appellant.

DISPOSITION

[27]

Leave to appeal sentence on the conviction for possession of cocaine for
    the purpose of trafficking is granted.  The appeal is allowed.  The sentence of
    five years is reduced to the time served, which was 14 months and 9 days.

RELEASED:

JL                                                    Robert
    P. Armstrong J.A.

SEP -8 2011                                  I agree John
    Laskin J.A.

I
    agree H.S. LaForme J.A.


CITATION: R. v. Walke-Buchanan, 2011 ONCA 587

DATE: 20110912

DOCKET: C53567

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Walke-Buchanan

Appellant

Sam Goldstein, for the appellant

Peter Scrutton, for the Crown

Heard: September 9, 2011

On appeal from the judgment by Justice William A. Gorewich of
          the Ontario Court of Justice dated March 10, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Based on the fresh evidence, the respondent Crown agrees that the
    conviction cannot stand under s. 95(2).  However, the fresh evidence only
    speaks to the element of that offence.  The appellant agrees that he is still
    guilty of the lesser included offence of unauthorized possession of a firearm.
    The appeal as to conviction is dismissed pursuant to s. 686(1)(b)(i) and a
    conviction for the lesser included offence of unauthorized possession of a
    firearm is substituted.  With respect to sentence, we regard the sentence
    imposed as nonetheless fit having regard to the appellants antecedents and the
    appropriate principles of sentencing.  Accordingly, while leave to appeal
  sentence is granted, the appeal as to sentence is dismissed.


CITATION: R. v. Williams, 2011 ONCA 595

DATE: 20110915

DOCKET: C51080

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peggy Sue Williams

Appellant

J. Scott Cowan, for the appellant

Alison Wheeler, for the respondent

Heard: September 14, 2011

On appeal from the conviction
          entered on January 16, 2008 by Justice John A. Desotti of the Superior Court
          of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The objective medical evidence gave the trial judge a basis to reject
    the appellants testimony.  No other evidence in the record supported the
    appellants claim of self-defence or accident.

[2]

Accordingly, the appeal is dismissed.