WARNING

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

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

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    the complainant or a witness shall not be published in any document or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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. M.Q., 2012 ONCA
    224

DATE: 20120410

DOCKET: C53717

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.Q.

Appellant

John Collins, for the appellant

James K. Stewart, for the respondent

Heard: January 11, 2012

On appeal from the conviction entered on January 26, 2010
    and the sentence imposed on August 12, 2010, by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury.

Goudge J.A.:

INTRODUCTION

[1]

The appellant was convicted by Hill J., sitting alone, of sexual
    assault, two counts of assault with a weapon and simple assault.  The
    complainant was his former wife.  He received a global sentence of five years
    in penitentiary.

[2]

He appeals both his conviction and his sentence.

[3]

On his conviction appeal, he argues that he did not receive a
    fair trial because his counsel had a fatal conflict of interest.  Prior to
    being retained by the appellant, his counsel had been consulted by the
    complainant about these very incidents.  The appellant says that when this came
    to light mid-trial, the trial judge erred in deciding to continue the trial and
    compounded the error following conviction by dismissing the appellants motion
    for a mistrial.

[4]

For the reasons that follow, I conclude that Hill J. dealt with
    the conflict issue entirely appropriately.  I would therefore dismiss the
    conviction appeal.

[5]

I would also dismiss the sentence appeal.

THE FACTS

[6]

The appellants trial began on August 4, 2009.  This was the
    fourth date fixed for trial.  His counsel, who began representing him in
    January 2009, was the fifth lawyer to act for the appellant in this matter.

[7]

The complainant was the first Crown witness.  Her evidence in
    chief took up the first day of trial.  She was cross-examined for most of the
    next day.  By the close of the third day, the Crown had completed its case.

[8]

At the opening of court on the fourth day of trial, August 7, the
    Crown told the trial judge that he had been advised the previous evening by the
    complainants mother that she and the complainant recognized defence counsel as
    the lawyer they had at one time consulted about these incidents.  Defence
    counsel immediately said that he had no recollection at all of this, and the
    appellant expressed his hope that his lawyer would continue to act for him.

[9]

The trial judge adjourned the trial so that an investigation
    could be undertaken by the Crown and the police, statements could be taken from
    the complainant and his mother, and independent legal advice for the appellant
    explored.

[10]

On August 10, Crown counsel advised that the investigation was
    complete. He indicated he was quite satisfied that, despite not recollecting
    meeting with the complainant, defence counsel had done so, and had a conflict
    of interest.  Nonetheless, the Crown wanted the trial to continue provided that
    the appellant agreed after receiving independent legal advice.

[11]

In the presence of the appellant, defence counsel informed the
    court that his client wished to continue the trial with him as counsel.

[12]

The trial judge made clear to both counsel that beyond the
    consent of the parties, the court was required to consider the impact on the
    broader issue of the appearance of justice.  He then adjourned the trial to the
    next day to facilitate independent legal advice for the appellant.

[13]

On August 11, Crown counsel again advised that he saw the matter
    as an innocent non-recollection on the part of defence counsel.  However, the
    investigation demonstrated that the complainant and her mother had met once,
    some two-and-a-half years earlier, with defence counsel.  They had reviewed in
    detail the incidents from which the charges arose, with a view to receiving
    legal advice, although they did not subsequently retain defence counsel.  Only
    after the close of the Crowns case did the complainant recall the meeting, as
    a result of prodding from her mother.

[14]

The court then heard from independent counsel for the appellant.
    She had received full disclosure from the Crown and then had taken the time she
    required to meet with and advise the appellant.  She told the court that she
    had reviewed with the appellant the statements of the complainant and her
    mother, and provided him with legal advice.  She indicated that the appellant
    did not feel defence counsel was in a conflict position, wished him to
    continue, and waived any right he had arising from any conflict.  Independent
    counsel then tendered a written direction signed by the appellant indicating
    this and expressing his desire that his trial continue without requiring him to
    seek new counsel.

[15]

The trial judge asked if the complainant had also received
    independent legal advice.  When told that she had not, the trial judge required
    that this take place and adjourned the trial to permit it.

[16]

To avoid any risk to solicitor/client privilege, the Crown
    undertook to prepare a summary of the written statements taken from the
    complainant and her mother.  This, rather than the statements, was filed with
    the court prior to the trial resuming on September 25, 2009.

[17]

On that date, independent counsel for the complainant provided
    the court with a letter indicating that, after receiving his advice, she had no
    objection to the trial continuing with defence counsel acting for the
    appellant.

[18]

After hearing further submissions, the trial judge then ruled
    that the trial should continue.  The essence of his ruling is as follows:

I remain concerned about the appearance of justice issues that
    arise from what I believe to be a conflict, which has innocently arisen, but
    given the position of the parties, and the position of the complainant, and the
    fact that she has already spent time in the witness stand, I believe these
    factors weigh in favour of us continuing with the trial.

[19]

Following this ruling, the trial continued on November 6 and
    December 7, 2009, with evidence for the defence, including the appellants
    testimony and the submissions of counsel.  On January 26, 2010, the trial judge
    convicted the appellant of these charges.  On May 12, defence counsel was
    removed from the record because of a breakdown in the solicitor/client
    relationship.

[20]

The appellants new counsel then filed an application for a
    mistrial.  It was heard on August 12, 2010.  Both the appellant and the counsel
    who provided him with independent advice gave evidence.

[21]

The trial judge delivered his ruling the same day.  He noted the
    number of appearances required in this matter (15 in the Ontario Court of
    Justice and 48 in the Superior Court), and the length of time (over four and a
    half years) that the case had required.  He accepted the evidence of
    independent counsel that she had provided the advice necessary for the
    appellant to make a valid and informed decision.  The trial judge found that
    while the appellant may well have been motivated to agree to continue by the
    cost and stress of any retrial, he had not raised these matters at the time
    with independent counsel or the court.  The trial judge concluded succinctly:

He freely chose to make the decision that he did.

The applicant has failed to discharge the onus of why this case
    should be mistried.  I am unable to discover, on a complete reading of the
    record, any prejudice to the accused from the decision that he made.

...

Considering the entirety of the record in this case, including
    the application evidence, the court is led inexorably to the conclusion that
    the accuseds current complaint is the result of hindsight through the lens of
    the verdicts earlier rendered.

The application is dismissed.

[22]

Following the dismissal of the mistrial application, the court
    went on the same day to sentence the appellant to five years in penitentiary.

[23]

In this court, without objection from the Crown, the appellant
    tendered as fresh evidence on his conviction appeal the statements taken from
    the complainant and her mother.  These were not before the trial judge either
    mid-trial or on the mistrial application.

[24]

On his sentence appeal, the appellant tendered fresh evidence
    that although he is a citizen of Pakistan, he has now married a Canadian
    citizen, and they are expecting their first child in April 2010.

[25]

The appellant appeals his conviction on the basis that he did not
    receive a fair trial because his defence counsel was in an irreparable conflict
    of interest.  He appeals his sentence as harsh and excessive, and imposed
    without regard to his immigration status.

ANALYSIS

The Conviction Appeal

[26]

An accused who is represented by counsel at trial is entitled to
    the undivided loyalty of that counsel.  This principle is deeply embedded in
    Canadian law.  It has common law, statutory, and constitutional roots.  It is
    an important aspect of the right to effective counsel.  It is not only vital
    for the client.  It is essential to the integrity of the justice system and the
    confidence of the public in it: see
R. v. Widdifield
(1996), 25 O.R. (3d)
    161 (C.A.), at pp. 171-172.

[27]

The duty of undivided loyalty has as a central dimension the duty
    to avoid conflicting interests. Michel Proulx and David Layton in
Ethics
    and Canadian Criminal Law
(Toronto: Irwin Law, 2011) describe the duty
    this way, at pp. 290-291:

In criminal cases, the justification for prohibiting counsel
    from representing an accused while labouring under a conflict takes on
    constitutional dimensions.  By definition where counsel for the accused has an
    actual conflict of interest, the client suffers through representation by an
    advocate whose loyalty is suspect.  In such circumstances, and no matter how
    competent the conflicted lawyer, the accused has not been provided with
    effective counsel, which is itself a denial of fundamental justice and a
    violation of the
Canadian Charter of Rights and Freedoms
.

[28]

In
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at
    para. 31, Binnie J. described a conflicting interest as one creating a
    substantial risk that the lawyers representation of the client would be
    materially and adversely affected by the lawyers own interests or by the
    lawyers duties to another current client, a former client, or third person.

[29]

In this case, there is no dispute that defence counsel was
    burdened by an actual conflict of interest.  He had previously met with the
    complainant and her mother.  They had sought his legal advice about the very
    incidents that were the basis for the charges against his client.  He had
    received information from them about these incidents that he had a duty to keep
    in confidence.  That duty continued regardless of whether he was subsequently
    formally retained by them or not: see Proulx and Layton,
supra
at p.
    310.

[30]

Professor Alice Woolley in
Understanding Lawyers Ethics in
    Canada
(Markham: LexisNexis, 2011), at pp. 232-233, frames this conflict
    succinctly:

Either the lawyer will use the information, and violate his
    duty of confidentiality to the former client, or the lawyer will not use the
    information and violate his duty of zealous advocacy to his new client.

[31]

The question facing the trial judge was not whether defence
    counsel had a conflict, but what if anything to do about it.  As Binnie J. said
    in
Neil
,
supra
, at para. 36, it is one thing to demonstrate a
    breach of loyalty, but quite another to arrive at an appropriate remedy.

[32]

In this case the trial judge was faced with the conflict issue on
    two different occasions.  He quite rightly dealt with them somewhat
    differently.

[33]

The first occasion was mid-trial.  As Doherty J.A. described in
Widdifield
,
supra
, when the issue of conflict is raised before or during a trial,
    the court must be concerned not only with what has transpired, but also with
    the difficult assessment of what may transpire as the trial unfolds.  That may
    involve speculation about the future impact of an existing conflict or the risk
    that a conflict will arise as the trial proceeds.  In either case the waiver of
    the right to the undivided loyalty of counsel is not determining.  Ultimately
    the court must be guided by the interests of justice and the need for public
    confidence in trial fairness: see
R. v. Robillard
(1986), 28 C.C.C. (3d)
    22 (Ont. C.A.).  This may be so even where no waiver exists.

[34]

The second occasion followed conviction.  The role of the
    complainant and the question of guilt or innocence had been concluded.  Post
    trial the test is more onerous because it is no longer a matter of taking
    protective steps but of asking for the reversal of the courts judgment.  This
    requires not only a demonstration of counsels conflict but also that the
    conflict adversely affected counsels trial performance: see
Neil
,
supra
,
    at paras. 38-39.

[35]

I therefore propose to review separately each of the decisions
    made by the trial judge.  The appellant does not suggest that the trial judge
    utilized an erroneous legal principle in either case.  Rather the complaint is
    that he erred in finding the facts relevant to the issue and in the weight he
    attached to them, particularly in light of the fresh evidence.  It is argued
    that had he not done so, he would have reached the opposite result on both
    occasions.  Framed in this way, the argument is heavily fact-driven and
    suggests a deferential approach by this court to the decisions under review.
    In the circumstances however, I find it unnecessary to dwell on the appropriate
    standard of appellate review because I agree entirely with both decisions made
    by the trial judge.

[36]

The mid-trial decision was necessitated when the conflict
    burdening defence counsel came to light at the close of the Crowns case.
    Immediate investigation left no doubt that it was an actual conflict, and that
    it was serious.

[37]

In order to obtain the positions of both the appellant and the
    complainant on how to proceed, the trial judge moved expeditiously to obtain
    independent legal advice for each of them.  After receiving that advice, both
    were content to have the trial continue.  Indeed, the appellant sought to have
    the trial proceed with defence counsel as his counsel of choice.  The trial
    judge found these waivers to be both informed and voluntary, and nothing in the
    record at that point suggests otherwise.  Through this informed consent the
    accused was in effect advancing his fundamental constitutional right to
    counsel.  As such his waiver while not determinative had to be given
    significant weight.

[38]

Crown counsel urged that despite this conflict, the trial should
    proceed.  He argued that the absence of demonstrable adverse impact on the
    appellants defence together with the stage the trial had reached should
    dictate this result.  The appellant argues that the Crowns position should
    have been disregarded because it was based only on practical considerations despite
    such a stark conflict.  I do not agree.  In my view, these were perfectly
    relevant considerations.

[39]

Thus, the trial judge was faced with two parties who both wished
    the trial to proceed, and a complainant who did not oppose that.  Nonetheless
    the trial judge was rightly conscious of his overriding responsibility to
    ensure that a decision to proceed was consistent with the interests of justice
    and the maintenance of public confidence in the fairness of the trial.

[40]

In assessing these considerations, the trial judge was acutely
    aware of the point the trial had reached and what had transpired so far.

[41]

Defence counsel had participated to that point with no
    recollection of his prior meeting with the complainant and her mother.  There
    was no suggestion of bad faith, or of anything other than an innocent failure
    of memory.  Nothing in the record to that point suggests any adverse impact on
    defence counsels performance, nor any use of any information obtained in his
    prior meeting with the complainant.

[42]

Defence counsel had concluded his thorough cross-examination of
    the complainant.  There would be no future interaction between them.  The rest
    of the Crowns case had been completed as well.  All that remained was the
    defence evidence.  Thus, defence counsels conflict presented a substantially
    smaller risk of harm to the appellants interests going forward than it might
    have at the beginning of his trial.

[43]

The trial judge also had before him the tortured route this case
    had taken to trial.  The lengthy passage of time from the laying of charges and
    the number of lawyers who at various stages had represented the appellant,
    provided a difficult backdrop for any further delay that a mistrial order would
    necessitate.

[44]

Finally, the trial judge was aware that to declare a mistrial at
    this stage to permit a re-trial with different defence counsel would not only
    deny the appellant his counsel of choice, but would subject the complainant to
    repeating the unpleasant experience of giving evidence about these events.

[45]

In my view, in these circumstances the decision of the trial
    judge at that point to continue the trial cannot be faulted.  It served the
    interest of justice and the maintenance of public confidence in its fairness.

[46]

However, the appellant raises challenges to the mid-term ruling
    based on the fresh evidence and the evidence tendered on August 12, 2010 on the
    mistrial application, neither of which were available to the court when the
    mid-term ruling was made.  In my view, none of these challenges impair that
    decision in any way.

[47]

First, the appellant argues that if the trial judge had been
    given the statements of the complainant and her mother rather than a summary,
    it would have affected his finding that both the appellant and the Crown wished
    the trial to continue.  The simple answer to this is that although the trial
    judge did not have the statements, both the appellant and the Crown did when
    they advised the court of their desire to continue.  Had the trial judge had
    the statements it would have had no impact on his finding about their wishes.

[48]

Second, the appellant says that had the complainants assertion
    in her statement that defence counsel indicated to her that he knew the right
    people to talk to and would guarantee the appellants conviction been put
    before the trial judge, he would not have decided that the interest of justice
    could accommodate defence counsel continuing.  I do not agree.  Defence
    counsels recollection of the meeting was never obtained.  If he said what the
    complainant reported, it was clearly unprofessional.  However, without hearing
    from defence counsel, the trial judge was without any basis to make a finding
    that would result in his disqualification.

[49]

Third, the appellant says that the trial judge would not have
    found the appellants waiver informed and voluntary had he known that the
    appellants independent counsel was chosen by defence counsel, that they had
    jointly prepared the direction signed by the appellant, and that the appellant
    felt influenced in agreeing to proceed by the potential financial burden of a
    new trial.  I do not agree.  Neither being chosen by defence counsel, nor
    preparing the direction with him puts independent counsel in a relationship
    with defence counsel sufficient to taint her with his conflict.  Nor is there
    any other reason to challenge the professionalism of the advice she gave.  The
    voluntariness of the appellants waiver is not undermined by the financial
    considerations facing him at that stage.  There were simply part of the unavoidable
    reality of his situation.

[50]

Finally, the appellant says that the trial judge ought not to
    have paid any attention to the appellants signed direction because his lawyer
    had inserted a provision that there be no appeal based on conflict.  That
    provision was before the court mid-trial and is therefore not fresh evidence.
    In addition, clearly this provision has had no effect.  Moreover, the appellant
    does not say that it affected his desire to have the trial proceed.  If
    anything it would have diminished that desire. In my view it was irrelevant to
    the factors the trial judge had to consider.

[51]

In summary, none of these arguments have merit in my view.  They
    provide no basis for altering the conclusion that the trial judges mid-trial
    decision was the right one.  This ground of appeal fails.

[52]

The appellants challenge to the dismissal of his application for
    a mistrial following his conviction can be readily disposed of.  Since the
    application was brought after conviction, the question for the trial judge was
    equivalent to that facing an appellate court when the conflict issue is raised
    for the first time on appeal, namely whether to set aside the conviction.  The
    same considerations apply.  To succeed the appellant had to not only
    demonstrate the conflict of interest but that it adversely affected defence
    counsels performance on his behalf at the trial.

[53]

In dismissing the application, the trial judge reviewed the
    relevant facts including the difficulties with delay and continuity of
    representation.  He set out the appellants choice to continue the trial and
    why it was voluntary and informed.  He then turned to the issue of prejudice to
    the appellants case.

[54]

Here the appellant offered nothing more than an assertion in his
    affidavit that during the presentation of his defence, he felt defence counsel
    was not giving his best effort.  However, the trial judge was in the best
    position to evaluate defence counsels performance at trial, and had the
    opportunity to review the entire record afterwards.  His conclusion was
    unequivocal: I am unable to discover on a complete reading of the record, any
    prejudice to the accused from the decision that he made.  There is no basis to
    question that finding in this court.  Given this finding the appeal from the
    dismissal of the mistrial application was doomed to failure.

[55]

For these reasons, the conviction appeal is dismissed.

The Sentence Appeal

[56]

The appellant was convicted of sexually assaulting the
    complainant over a period of months.  The trial judge found that the appellant
    routinely sexually assaulted his wife using both threats and force.  The sexual
    abuse included vaginal and anal rape, as well as forced fellatio.  The
    complainant was sexually objectified by the appellant who felt entitled to
    treat her this way just because she was his wife.  This pattern of abuse has
    resulted in continuing emotional and psychological consequences for the
    complainant.  The trial judge imposed a sentence of three and a half years for
    this offence.

[57]

The appellant was also convicted of two counts of assault with a
    weapon.  In each case he choked the complainant into unconsciousness.  The
    trial judge imposed consecutive sentences of nine months for each of these two
    convictions.

[58]

The appellant was also convicted of simple assault for slapping
    the complainant after an argument.  He received a concurrent sentence of one
    day for this offence.

[59]

The global sentence was therefore five years in penitentiary.

[60]

The appellant is a permanent resident in Canada.  This was known
    to the sentencing judge.  Since his sentencing, he has married a Canadian
    citizen and they are expecting a child in April 2012.  This was of course not
    known to the sentencing judge but was tendered as fresh evidence.

[61]

The appellant raises two arguments.  First he says that the global
    sentence is unfit.  I do not agree.  The appellant engaged in a pattern of
    serious sexual crimes against a vulnerable victim during an abusive marital
    relationship.  The trial judge took into account the mitigating factors
    including the appellants education, his employment history, and the absence of
    any criminal record.  However, the trial judge also properly took into account
    the extended time over which the abuse occurred, the serious consequences for
    the victim and the appellants abuse of trust, physical dominance and sense of
    cultural entitlement to treat his wife as he did.

[62]

In these circumstances, denunciation and deterrence were of
    paramount importance.  While the global sentence is at the upper end of the
    range, it is not unfit.

[63]

The appellants second argument is that the trial judge did not
    sufficiently consider his immigration status.  In support of this argument, the
    appellant points to the fresh evidence of his marriage and his expected child.

[64]

The trial judge was clearly aware that the appellant was not a
    Canadian citizen.  While the sentence imposed renders the appellant
    inadmissible to Canada and unable to appeal any removal order, the
    circumstances described in the fresh evidence may justify the humanitarian
    relief permitted by the immigration legislation.  That is for the Minister to
    decide.  In my view however, it is not a case where these circumstances should
    affect the appellants sentence.  The sentence imposed by the trial judge is
    fit.  Altering it to something less than two years so that the appellants
    right to appeal his removal order would be restored, would represent a very
    significant reduction unwarranted by the facts and proper sentencing
    principles.

[65]

I would therefore dismiss the sentence appeal.

Released: April 10, 2012 (D.D.)

S.T. Goudge J.A.

I agree Winkler C.J.O.

I agree Doherty J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacDonald, 2012
    ONCA 244

DATE: 20120418

DOCKET: C50733

Laskin, Goudge and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessiah MacDonald

Appellant

Michael Dineen, for the appellant

Randy Schwartz, for the respondent

Heard: September 14, 2011

On appeal from the conviction entered on April 16, 2009
    by Justice Paul French of the Ontario Court of Justice, sitting without a jury.

Laskin J.A.:

A.

introduction

[1]

Acting on an anonymous Crime Stoppers tip, the police obtained a warrant
    to search the residence where the appellant, Jessiah MacDonald, lived.  Police
    officers conducted the search in the middle of the night.  They found two
    loaded handguns.

[2]

The appellant was charged with illegal possession of the handguns,
    breach of recognizance and several related offences.  The sole issue at trial
    was whether the grounds to issue the warrant were sufficient.  The trial judge
    ruled that the grounds were sufficient, and that, therefore, the appellants
    right under s. 8 of the Canadian
Charter of Rights and Freedoms
to be
    secure against unreasonable search or seizure had not been breached.

[3]

Following the trial judges ruling, the handguns were admitted into
    evidence, the appellant conceded the Crowns case, and the trial judge
    convicted him of the offences as charged.  The appellant was sentenced to two
    years less a day in prison plus three years probation.  He appeals his
    convictions.

[4]

The appellant makes two submissions: (1) the trial judge erred in
    finding that there were sufficient grounds to issue the warrant.  In
    particular, the appellant argues that the police did not corroborate the
    anonymous tip in any meaning way, and that they exacerbated the
    unreasonableness of their search by conducting it in the middle of the night;
    (2) the handguns should not have been admitted into evidence under s. 24(2) of
    the
Charter
.

B.

the legal framework

[5]

Before discussing the anonymous tip and the polices efforts to
    corroborate it, I shall briefly address the legal framework that governs this
    appeal.  There are two aspects: the requirements for authorizing the issuance
    of a search warrant, and the standard of review.

(1)

The Requirements for
    Authorizing the Issuance of a Warrant

[6]

The justice issuing the warrant must have reasonable grounds to believe
    that an offence has been committed.  The standard is one of reasonable
    probability.  The material in support of the warrant must raise a reasonable
    probability of discovering evidence of a crime.  See
R. v. Debot
, [1989]
    2 S.C.R. 1140.

[7]

Where the application for the warrant is based largely on information
    coming from a confidential informant, the court must make three inquires:

·

Was the information predicting the crime compelling?

·

Was the source of the information credible?

·

Was the information corroborated by the police before conducting
    the search?

These are not watertight inquiries.  It is the
    totality of the circumstances that must meet the reasonable probability
    standard.  See
Debot
,
supra
.

[8]

So, for example, where, as in this case, the police rely on information
    coming from an anonymous source, the second inquiry is problematic.  The court
    has no way to assess the credibility or reliability of the source.  Thus, the
    quality of the information (the first inquiry) and the amount of corroboration
    (the third inquiry) must compensate for the inability to assess the credibility
    of the source.  A higher level of verification is required.  See
R. v.
    Hosie
, [1996] O.J. No. 2175 (C.A.) at para. 15.

(2)

Standard of Review

[9]

A judge reviewing the authorization of the issuance of a warrant has a limited
    mandate.  That mandate was set out by Sopinka J. in
R. v. Garofoli
, [1990]
    2 S.C.R. 1421 at 1452:

The reviewing judge does not substitute his or her view for
    that of the authorizing judge.  If based on the record which was before the
    authorizing judge as amplified on review, the reviewing judge concludes that
    the authorizing judge could have granted the authorization, then he or she
    should not interfere.

[10]

Here,
    the record before the authorizing judge was neither amplified nor excised on review.
    Thus, the question for the reviewing judge was whether the authorizing judge
    could have issued the warrant.

[11]

On
    appeal of the reviewing judges decision, the usual principles of appellate
    deference apply.  This court should not interfere unless the reviewing judge
    erred in law or made an unreasonable finding of facts.  See
R. v. Ebanks
,
    [2009] O.J. No. 5168 (C.A.).

C.

did the trial judge err in finding that there were sufficient grounds to
    issue the warrant?

(1)

The Crime Stoppers
    Tip

[12]

In
    April 2008, the Toronto Police Service received a Crime Stoppers tip about the
    appellant from an anonymous source.  According to the tipster, the appellant
    was born on January 24 (no year provided), used the alias Morrison, and lived
    with his surety in Etobicoke.

[13]

The
    tipster described the appellant as a non-white male, 6-feet 2-inches tall, 160
    pounds, with long black hair and brown eyes.  He said that the appellant had a
    tattoo of a spider web on his hand.

[14]

The
    tipster also said that the appellant had drugs and guns at his home, and is a
    known gun carrier and drug dealer.  He claimed that he had seen the appellant
    flashing his gun.  Finally, the tipster said that the appellant could be
    found at his mothers or his uncles house and that he was driving a rented
    car.

(2)

The Polices
    Corroboration of the Information Provided by the Tipster

[15]

Because
    a central question on this appeal is whether the police sufficiently
    corroborated the tipsters information before conducting the search, I
    summarize in chart form the information given by the tipster and the
    corroboration of that information.  In doing so, I rely largely on the helpful
    chart provided by Crown counsel, Mr. Schawrtz, in his factum.

Information Given by the
            Tipster

Corroboration

The appellants date of birth is
          January 24.

Police databases confirm that the
          appellants date of birth is January 24, 1988.

The appellant is male, non white, 6
          2 tall and 160 pounds, with black long hair and brown eyes.

CPIC describes the appellant as male,
          non white, 6 4 tall and 146 pounds.

The appellant has a tattoo of a
          spider web on his hand.

CPIC describes the appellant as
          having a tattoo of a spider web with flames on his left hand.

The appellant is a drug dealer and
          has drugs in his house.

In January 2006, the appellant was
          found in possession of 6.58 grams of crack cocaine and was charged with
          possession for the purpose of trafficking.  He was ultimately convicted of
          possession of cocaine.

The tipster saw the appellant
          flashing his gun, and the appellant has guns at his house.

The appellant has a lengthy criminal
          record.  His record lists several serious offences of violence, including
          assault, robbery, assault with intent to resist arrest, aggravated assault,
          carrying a concealed weapon, and escaping lawful custody.

In January 2006, the appellant was
          found in possession of a loaded AK 47 assault rifle that had been converted
          to fire ammunition in fully automatic mode.  He was convicted of possession
          of a prohibited firearm.

The police affiant, a member of the
          Guns and Gangs Task Force, knows that it is very common for drug traffickers
          to arm themselves.

The appellant was bound by two
          separate firearms prohibition and probation orders that prohibited possession
          of a weapon.

The appellant uses the alias
          Morrison.

CPIC lists Morrison as the
          appellants alias.

The appellant resides at his suretys
          house.

The appellant is currently before the
          court  accused of aggravated assault and several related offences.  The
          allegations pertain to a stabbing in which the appellant allegedly chased
          down the victim and stabbed him in the back and slashed his face.  As a
          result of these charges, the appellant is bound by a recognizance that
          requires him to reside with his uncle under house arrest.

On April 7 and April 8, 2008, police
          observed the appellant coming and going from his uncles house.

The appellants suretys house is in
          Etobicoke.

The appellants uncles house is
          located at 54 Alhart Drive, in the north-west area of Toronto near Islington
          Ave and Albion Rd.

The appellant usually hangs out at
          his mothers house or at his uncles house.

Police occurrence reports confirm
          that the appellant has resided with his mother in the east end of Toronto and
          has been investigated by the police in that area on numerous occasions.

The appellant is affiliated with a
          gang.

No corroboration.

The appellant drives a rental
          vehicle.

On April 7 and April 8, 2008, police
          observed the appellant driving a vehicle registered to a car rental company.
          On April 8, 2008, police observed the appellant attending at the car rental
          outlet and exchanging one rental car for another.

(3)

The Trial Judges
    Ruling

[16]

The
    police conducted the search in 2008; the application to exclude the handguns
    from evidence was heard in December 2008 and January 2009; and the trial judge
    gave his ruling dismissing the application on February 3, 2009.  After
    reviewing the facts (which were put before him by an agreed statement) and the
    applicable principles, the trial judge concluded:

Having considered the evidence and the submissions of counsel,
    I adopt the position of the Crown.  In my view, the police might have done
    more; however, considering that they had information of guns on the street, so
    to speak, they did that which was reasonable.  In my view, the surveillance
    conducted by the police was reasonable.  I find that their investigation
    provided some reasonable corroboration of the information received from the
    anonymous tipster.  Considering the totality of the circumstances, in my view,
    the authorization could have been given for the search warrant to have been
    issued.  The application is therefore dismissed.

(4)

Were the Grounds to
    Issue the Warrant Sufficient?

[17]

The
    main question on this appeal is whether the trial judge erred in concluding
    that the authorizing justice could have been satisfied that the reasonable
    grounds standard was met.  In my view, he did not err.  He stated the correct
    test on review, and his finding that the justice could have authorized the
    issuance of the warrant was a reasonable finding.

[18]

Because
    the credibility of the source cannot be determined, the totality of
    circumstances assessment must focus on whether the tipsters information was
    sufficiently compelling and whether it was sufficiently corroborated.

[19]

The
    appellant says that the information given by the tipster was not particularly
    compelling; the Crown says that it was very compelling.  I come down in the
    middle.  I would make two points.  First, although a good deal of the
    information was biographical, and thus likely widely known, it was nonetheless
    very detailed.  The tipster provided specific information about the appellants
    appearance, date of birth, place of residence, alias, bail status, family
    connections and driving practices.  Second, the tipster had first-hand
    knowledge that the appellant was involved with guns.  He saw the appellant
    flash a gun.

[20]

In
    the light of these two points, the information given by the tipster was
    reasonably compelling.  However, I agree with both parties that this ground of
    appeal turns on whether the police sufficiently corroborated the information,
    bearing in mind that the anonymity of the source called for more confirmation
    than otherwise.  At the same time, the police were not obliged, before
    conducting the search, to confirm the very criminality alleged by the tipster.
    See
R. v. Lewis
, [1998] O.J. No. 376 (C.A.) at para. 22; and
R. v.
    Caissey
, [2007] A.J. No. 1342 (C.A.); affd [2008] 3 S.C.R. 451.

[21]

It
    seems to me that the police largely confirmed the tipsters information.  The
    police record and data banks confirmed the accuracy of the detailed biographical
    information given by the tipster.  I accept that on its own, this degree of
    confirmation likely would not be sufficient to justify the authorization.

[22]

However,
    the police investigation also confirmed that the appellant had in the past
    possessed both drugs and guns, and was a known violent offender, who was bound
    by two separate firearms prohibitions and probation orders prohibiting the
    possession of guns.  Admittedly, this history was drawn from the appellants
    criminal record.  The appellant argues that a criminal record may provide some
    independent confirmation of a tipsters information but should not be given a
    great deal of weight.  He correctly points to Martin J.A.s observation in
Debot
that although a criminal record deserves some weight, by itself it does not
    make out reasonable probability.

[23]

Accepting
    that to be so, the cogency of the criminal record depends on its similarity to
    the criminal activity alleged by the tipster and the age of the record.  Here,
    the appellant was convicted of possession of a prohibited firearm, the very
    criminal activity the tipster alleged, and that conviction was registered
    within two years of the anonymous tip.  These considerations give the criminal
    record a fair measure of cogency.

[24]

Overall,
    the appellants record together with the confirmation of the detailed biographical
    information given by the tipster reasonably support the trial judge conclusion
    that the authorizing justice could have granted the authorization.  I would not
    give effect to this ground of appeal.

(5)

Was the Search
    Unreasonable Because if was Conducted at Night?

[25]

The
    affidavit in support of the warrant sought authorization under s. 488 of the
Criminal
    Code
the execute the warrant at night, on the following grounds:

I am respectfully requesting that a night time entry (after
    9:00 PM) be granted with respect to the execution of the search warrant for 54
    Alhart Drive.  I am requesting night tome entry to ensure police officers are
    given enough time to gather the resources necessary to execute this warrant.
    Any delay in the execution of this warrant could result in the loss of
    evidence.  Any delay in seizing the firearm places members of the public in
    danger.

[26]

The
    authorizing justice granted authorization for night time entry.  The police
    conducted the search at the residence of the appellants uncle just before 3:00
    a.m. on April 9, 2008.  By that time, the appellant was already in custody.
    Earlier that night he had been arrested for failing to comply with his
    recognizance.  In this factual context, the appellant submits that the search
    was unreasonable because it was conducted at night.  I do not accept this
    submission.

[27]

The
    appellants submission raises two separate issues.  The first issue is whether
    the authorizing justice had a reasonable basis to authorize a night time
    search.  When the authorization was granted, the appellant was not in custody.
    In my opinion, the grounds in the affidavit provided a sound basis to allow the
    warrant to be executed at night.

[28]

The
    second issue  the issue the appellant focuses on  is whether the police ought
    to have delayed the search until day time because the appellant was in
    custody.  In my view, the police were justified in not delaying the search and
    instead conducting it in the middle of the night.  The appellant did not live
    alone; he shared the residence with others.  The police had reasonable and
    probable grounds to believe there were firearms in that residence.  And even
    though the appellant was in custody, he had the opportunity to contact the
    other occupants and tell them to hide or remove the guns.  Thus, the police had
    a legitimate concern that if they waited to execute the warrant, they would
    compromise public safety and put the community at risk.

[29]

Night
    time searches of a private residence should be carried out only in exceptional
    cases.  See
R. v. Sutherland
(2000), 52 O.R. (3d) 27 (C.A.).  This is
    one of those cases.  The situation might well have been different if the
    appellant lived alone.  But he did not.

[30]

Moreover,
    the following considerations mitigated the intrusiveness of the search: the
    police told the appellant about their proposed search before they carried it
    out; there is no evidence that they conducted a no knock entry, or that they
    had their guns drawn, or even that they frightened anyone.  In the light of all
    these circumstances, the night time search was not unreasonable.

[31]

Because
    I have concluded that the search did not breach s. 8 of the
Charter
,
    it is unnecessary to address the second issue raised by the appellant, the
    application of s. 24(2) of the
Charter
.

D.

conclusion

[32]

The
    trial judge did not err in concluding that the authorizing justice could have
    authorized the issuance of the search warrant.  I would dismiss the appeal.

Released: Apr. 18, 2012                                         John
    Laskin J.A.

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

I
    agree H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Madden, 2012 ONCA 247

DATE: 20120418

DOCKET: C55162

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Michael Madden

Appellant

Richard Litkowski, for the appellant

J. Sandy Tse, for the respondent

Heard and endorsed: April 17, 2012

On appeal from sentence imposed by Justice Joe De Filippis
    of the Ontario Court of Justice, dated November 24, 2011.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the trial judge did not err in principle in rejecting the
    joint submission. It was open to the trial judge to find that the proposed
    sentence was contrary to the administration of justice. The appellant was
    serving an intermittent sentence with respect to an offence involving this same
    victim when he committed this offence. As the trial judge observed, specific
    deterrence was an overwhelming consideration and would not have been achieved
    by the joint submission. Saving the victim from having to testify was an
    important consideration but it could not justify the sentence that was proposed
    in this case.

[2]

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


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Maillis, 2012
    ONCA 217

DATE: 20120405

DOCKET: C52811

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Maillis

Applicant/Appellant

S. Pennypacker, for the appellant

J.K. Stewart, for the respondent

Heard:  April 3, 2012

On appeal from the conviction entered on June 9, 2010 and
    the sentence imposed on October 5, 2010 by Justice Lesley M. Baldwin of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

There is no error in principle.  In light of the trial judges finding
    that this is part of a pattern of ongoing misconduct, the sentence is within
    the range of a fit sentence.  The appeal is dismissed.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. P.E.M., 2012
    ONCA 275

DATE: 20120430

DOCKET: C49670

Feldman, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

P.E.M.

Applicant

R. Graham Zoppi, for the applicant

Deborah Krick, for the respondent

Heard and released orally: April 20, 2012

On appeal from the conviction entered on May 11, 2005 by
    Justice Russel J. Otter of the Ontario Court of Justice and upheld by Justice
    David Stinson of the Superior Court of Justice, sitting as a summary conviction
    appeal judge, dated September 14, 2007.

ENDORSEMENT

[1]

The appellant seeks leave to appeal from the decision of the summary
    conviction appeal judge which dismissed the appellants appeal from conviction
    for sexual interference of his daughter at age 11. The interference for which
    he was convicted was kissing and licking her right breast.

[2]

At trial the appellant and the complainant both testified. The appellant
    denied the interference. The trial judge acknowledged that the complainant had
    significant credibility problems, but he was satisfied beyond a reasonable
    doubt because of physical corroborating evidence of DNA, as well as cuts on the
    inside of her mouth, and observations of her demeanour at the time.

[3]

When the complainant was 16 years old and had gone to live with Victor
    who was her half-brother through her father, the complainant swore an affidavit
    recanting her allegations against her father, blaming her mother for pressuring
    her into making the accusation. She was taken to a lawyer to swear the
    affidavit.

[4]

At age 20, for the purpose of this appeal, she was cross-examined on the
    affidavit and, at that time, to the surprise of the Crown and defence counsel,
    she resiled from the recantation blaming her father and step brother and making
    further allegations against her father regarding illegal drug activity. For the
    purpose of this appeal, the appellant and respondent filed further affidavit
    evidence responding to the complainants new allegations. The Crown concedes
    that leave to appeal should be granted but submits that the fresh evidence
    should not be admitted under criteria 3 and 4 of the
Palmer
test.

[5]

In our view, this is a case referred to by Rosenberg J.A. in
R. v.
    Babinsky,
[1999] O.J. No. 1407 at para. 49, where, if the evidence were to
    be admitted, being contradictory, it would be because it may have substantial
    impeachment value if made available to a reasonable trier of fact.

[6]

In our view, however, this is not a case where the evidence should be
    admitted under criterion No. 4 of the
Palmer
test because it would not
    have affected the result of the trial. We say that for the following reason.

[7]

This was a case where the complainants credibility was a central issue
    and the trial judge was fully aware of the complainants history of dishonesty.
    He began his assessment of her credibility by describing the complainant as an
    emotionally troubled young lady that is receiving therapy, psychiatric
    assistance and medication who herself had lied to the authorities including
    the Childrens Aid Society. The trial judge convicted on the count for which
    there was corroboration of the complainants account, including the
    contemporaneous observation of the complainants demeanour following the event
    by her mother and another third party witness. The appellants DNA found on the
    complainants right breast and the physical evidence that the cuts to the
    inside of her lower lip independently observed and noted by the sexual assault
    nurse who testified at trial were consistent with the complainants account of
    forceful French kissing and licking her breast by the appellant. In these
    circumstances, the fresh evidence could not reasonably affect the verdict.

[8]

Accordingly, leave to appeal is granted, but the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

Alexandra
    Hoy J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.M., 2012
    ONCA 255

DATE: 20120420

DOCKET: C50403

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Philip Campbell and Jonathan Dawe, for the appellant

Robert Gattrell, for the respondent

Heard: February 1, 2012

On appeal from the conviction entered by Justice Robert
    L. Maranger of the Superior Court of Justice, sitting with a jury, on November
    28, 2008.

Sharpe
    J.A.:

[1]

Following a trial before a judge and
    jury, the appellant was convicted of the first degree murder of Michael Oatway.
    The appellant was 17 years old at the time of the alleged offence. He was tried
    as a youth, and sentenced as an adult to life imprisonment with ten years of parole
    ineligibility. He appeals his conviction and raises two grounds of appeal. The
    first ground of appeal is that the trial judge erred by refusing to put
    self-defence to the jury on the ground that there was no air of reality on the
    evidence to the defence. The second is that the trial judge erred by failing to
    correct or remedy certain statements made by Crown counsel in his closing
    address.

FACTS

[2]

On September 21, 2006, the appellant
    spent the evening with a group of five friends at a park where they were
    drinking. After they left the park, the appellant and three of his friends
    boarded a bus around 11 p.m. The bus was an articulated model with separate
    front and back sections. The appellant and his friends went to the back of the
    bus, where Michael Oatway, a 23-year old man, who was unknown to the appellant,
    sat listening to an iPod in the rearmost corner seat on the drivers side.

[3]

The appellant, 17 years old, was 56 and
    weighed 141 pounds. He had a muscular and athletic build. Oatway, 23 years old,
    was also 56 but weighed only 123 pounds and suffered from a muscular
    condition that restricted the mobility of his arms.

[4]

O.L., one of the members of the appellants
    group, asked for a cigarette.
One witness testified that Oatway said
    that he did not have any cigarettes; another said that Oatway had a cigarette
    tucked behind his ear, but refused to give it over.
The appellant then obtained a butterfly knife from another member of the
    group. According to the evidence of two witnesses, the appellant moved to the
    seat directly beside Oatway. T.J., the only member of the group that got on the
    bus with S.M. to testify, told the jury that the appellant asked to listen to
    Oatways iPod. T.J. testified that after Oatway refused, the appellant pointed
    the knife at Oatways midriff and told him to give him his iPod or he would get
    sliced. Oatway did not submit. Both stood up and there was a struggle for the
    knife. T.J. testified that the fight got ugly when Oatway grabbed for the
    knife. T.J. characterized the struggle as indicating a kill or be killed
    mentality on both sides. T.J. testified that he heard the appellant say give
    me the knife and let go of the knife and other witnesses also heard a voice asking
    for the knife to be returned.

[5]

According to a witness, Steve
    Panagiotopoulos, the appellant had Oatway in a headlock during the altercation.
    Another witness, Bradley Huffman, described seeing Oatway in a sleeper hold.
    It was unclear whether these witnesses were describing the same or two separate
    situations. There was also conflicting evidence as to whether the fight
    continued after Oatway was being held in this manner.

[6]

As the bus pulled into a bus stop, the
    fight ended and Oatway stumbled to the front of the bus. He had been stabbed.
    There was no direct evidence of exactly when Oatway was stabbed. He collapsed
    and fell through the open door onto the sidewalk. The appellant and his friends
    exited from the rear of the bus. The entire course of events, from when the
    appellant demanded that Oatway give him the iPod to the point at which Oatway
    collapsed having been stabbed, took approximately two or three minutes to
    transpire.

[7]

Oatway lost consciousness and had no
    vital signs when paramedics arrived at the scene. He was declared dead by an
    emergency room doctor who characterized the cause of death as xsanguinations
    caused by the laceration in the heart. He also had scratches on his left hand
    consistent with defensive actions against a blade  but no deep cuts to suggest
    that he grabbed it.

[8]

The Crown led a statement made by the
    appellant to T.J. immediately after they got off the bus. T.J. testified that
    when he asked the appellant what had happened the appellant replied:

I didnt want  I didnt want to do it, but he grabbed me  but
    he grabbed it from me and he was trying to kill me, so I had to defend myself.

I wasnt actually gonna try to kill him.I just wanted to
    scare him

I had to defend myself.

I wasnt actually gonna try to kill him. I just wanted to
    scare him and he grabbed the knife from me and he tried to kill me so I just
    defended myself and I had to get him.

TRIAL RULINGS

[9]

It was clear from the way the case
    proceeded at trial that the appellant was advancing two defences: (1)
    self-defence, which would lead to an acquittal, and (2) accidental stabbing, which
    would lead to a verdict of manslaughter.

[10]

Both at trial and before this court, the defence
    theory of self-defence placed primary reliance on s. 34(2), which provides:

Everyone
    who is unlawfully assaulted and who causes death or grievous bodily harm in
    repelling the assault is justified if

(a)
he causes it under
    reasonable apprehension of death or grievous bodily harm from the violence with
    which the assault was originally made or with which the assailant pursues his
    purposes; and

(b)
he believes, on
    reasonable grounds, that he cannot otherwise preserve himself from death or
    grievous bodily harm.

[11]

The appellant also made submissions as to s. 35, which
    provides:

Everyone who has without
    justification assaulted another but did not commence the assault with intent to
    cause death or grievous bodily harm, or has without justification provoked an
    assault on himself by another, may justify the use of force subsequent to the
    assault if

(a) he uses the force

(i) under reasonable apprehension of
    death or grievous bodily harm from the violence of the person whom he has
    assaulted or provoked, and

(ii) in the belief, on reasonable
    grounds, that it is necessary in order to preserve himself from death or
    grievous bodily harm;

(b) he did not, at any time before the
    necessity of preserving himself from death or grievous bodily harm arose,
    endeavour to cause death or grievous bodily harm; and

I he declined further conflict and
    quitted or retreated from it as far as it was feasible to do so before the
    necessity of preserving himself from death or grievous bodily harm arose.

[12]

When the issue was raised after the completion of
    evidence, Crown counsel stated: I concede that there is an air of reality to
    self-defence and probably 34(2) would be the appropriate section. It was only
    when the trial judge expressed some doubt as to the applicability of
    self-defence that the Crown changed its position and resisted self-defence
    being put to the jury.

[13]

The
    trial judge recognized that although the appellant had initiated the incident
    by threatening Oatway with his knife, self-defence is still available to an
    initial aggressor. This is clear from
R. v. McIntosh
, [1995] 1 S.C.R.
    686 with respect to s. 34(2) and from the opening words of s. 35: Every one
    who has without justification assaulted another. The trial judge ruled,
    however, that there was no air of reality to the triggering condition of s.
    34(2) of the
Criminal Code
, namely, the requirement that the accuseds
    perception that he was responding to an assault was objectively reasonable.

[14]

During the pre-charge conference, defence counsel
    recognized that s. 35I posed a significant hurdle for the defence. It was
    for that reason that he placed primary reliance on s. 34(2). While defence
    counsel did address the possible application of s. 35, in the end he told the
    trial judge: Im not asking for 35. If you feel it necessary to consider it,
    thats my submission on that score, but Im not asking for it.

[15]

In an oral ruling made during the trial, the trial
    judge held that the issue of whether s. 34(2) should be put to the jury turned
    on whether there is any evidence for a jury to consider that the accuseds
    subjective view, as expressed in his statement to [T.J.] that he was being
    assaulted, is objectively reasonable. The trial judge stated that [w]hat this
    really comes down to is [S.M.s] bold [sic] assertion to a colleague who has
    just finished chastising him for what just occurred that he was acting in
    self-defence. The assertion he made to a friend is only evidence of his
    subjective perception, nothing more, nothing less.

[16]

In a written ruling released several weeks after the
    trial, the trial judge provided more elaborate reasons that reiterated the same
    conclusion.

None of the evidence allows for an inference that S.M.s stated
    subjective perception was objectively reasonable. There would have had to have
    been some direct evidence or indirect evidence allowing for an inference that S.M.
    could reasonably perceive that Michael Oatway was assaulting him or attempting
    to assault him. In this case, in my view, this evidence simply did not exist.

[17]

The trial judge ruled that there was no air of reality
    to self-defence under s.  35. He found that there was no objective
    evidence that the accused had a reasonable apprehension of death or bodily
    harm. In his written ruling, he stated: there is no evidence at all to
    support the final element contained in s. 35 that S.M. declined further
    conflict and quitted or retreated from it as far as it was reasonable to do so
    before the necessity of preserving himself from death or grievous bodily harm
    arose.

[18]

The trial judge concluded his discussion of
    self-defence as follows:

I am mindful of the important principle that every available
    defence should be put to a jury in a criminal case. It can never be clearer
    than in a first degree murder trial. However, there are cases where the overall
    perception or logic of putting a defence to a jury should come into
    consideration. In this case, apart from the evidence already referred to, the
    jury was aware of the following facts:

·

Michael Oatway was an innocent passenger on a city bus.

·

Four individuals proceeded to the back of the bus and one of the
    individuals accosted him with a knife.

·

Michael Oatway was 56 and weighed 123 to 128 pounds. The accused
    was 56 and weighed 141 pounds with a muscular and athletic build.

·

The entire matter lasted about three minutes.

·

Michael Oatway was alone minding his own business and listening
    to an iPod.

·

Despite several persons being present no one, including the three
    friends who went on the bus with S.M., could testify about Michael Oatway
    assaulting or attempting to assault the accused.

·

Michael Oatway died of a single stab wound to the heart.

·

There was no evidence that S.M. sustained injuries.

In view of these facts, it is inconceivable that a jury acting
    reasonably could acquit on the basis of a self-defence argument in this case.
    It seems to me that to do so would offend anyones basic concept of justice.

analysis

Issue 1. Did the trial judge err in ruling that there was
    no air of reality to self-defence under s. 34(2)?

[19]

The elements of the defence under s. 34(2) in cases
    where the victim is killed were described in
R. v. Pétel
, [1994] 1 S.C.R. 3 at p. 12:
(1) the existence of an
    unlawful assault; (2) a reasonable apprehension of a risk of death or
    grievous bodily harm; and (3) a reasonable belief that it is not possible
    to preserve oneself from harm except by killing the adversary.

[20]

As I have noted, the trial judge
    refused to put the defence to the jury on the ground that that there was no air
    of reality to the first element.

[21]

Pétel
also holds, at p. 13, that self-defence rests on
    whether the accused reasonably believed that the three elements were present. With
    respect to the first element:

The existence of an assault
    must not be made a kind of prerequisite for the exercise of self-defence to be
    assessed without regard to the perception of the accused.  This would
    amount in a sense to trying the victim before the accused.  In a case
    involving self-defence, it is the accuseds state of mind that must be
    examined, and it is the accused (and not the victim) who must be given the
    benefit of a reasonable doubt.  The question that the jury must ask itself
    is therefore not was the accused unlawfully assaulted? but rather did the
    accused reasonably believe, in the circumstances, that she was being unlawfully
    assaulted?

[22]

While the ultimate burden of proof on self-defence
    remains with the Crown throughout, there was an evidential burden on the
    appellant to ensure that there was some evidence to give an air of reality to
    each of the requisite elements:
R. v. Cinous
,

[2002] 2 S.C.R. 3, at pp. 30-31. The air of reality
    test requires that there be evidence on the record upon which a properly
    instructed jury acting reasonably could acquit:
Cinous
, at p. 29.

[23]

In my view, the trial judge did not err in concluding
    that there was no air of reality to the first element required by s. 34(2),
    which in this case was:
did the appellant
    reasonably believe, in the circumstances, that he was being unlawfully
    assaulted by Oatway? While the trial judge stated
that there was no
    evidence capable of supporting an inference that the appellant might have
    reasonably perceived that Oatway was assaulting him rather than unlawfully
    assaulting him, this error or misstatement was harmless as the evidence did
    not give rise an air of reality to the possibility that the appellant could
    have reasonably perceived that Oatways response to the appellants attack was
    an unlawful assault as required by s. 34(2).

[24]

The appellant attacked Oatway by threatening to rob
    and stab him. As I have noted, the trial judge recognized that the fact that
    the appellant was the initial aggressor does not,
per se
, deprive him of the benefit of s. 34(2).
R.
    v. McIntosh
rejected the argument that the
    words without having provoked the assault should be read in to s. 34(2) and
    held, at p. 707, that s. 34(2) must be interpreted according to its plain
    terms and that it is therefore available where an accused is an initial
    aggressor, having provoked the assault against which he claims to have defended
    himself.

[25]

However, the fact that the appellant was the initial
    aggressor cannot be ignored as a factor to be considered when assessing the
    reasonableness of his perception of what followed. The appellant did not
    testify as to what he perceived at the crucial time. We have only his
    out-of-court utterances indicating that Oatway
grabbed the knife and he was trying to kill me, so I had to defend
    myself.

[26]

I do not agree with the appellant that the trial judge
    misapprehended the evidential value of the appellants out-of-court statements.
    Both his oral and his written rulings refer to those statements and demonstrate
    that the trial judge did consider and weigh them when assessing whether there
    was an air of reality to self-defence. I agree with the trial judge that the
    appellants out-of-court statements must be considered together with the
    balance of the evidence. As the trial judge noted, no one who witnessed the
    incident, including the appellants three friends, testified that Oatway had threatened
    the appellant with the knife.

[27]

As
    a matter of law Oatway was entitled to respond to the appellants attack and to
    defend himself. He was entitled to resist the appellants attempt to rob him
    and he was entitled to grab for and gain control of the knife to prevent the
    appellant from carrying out the threat to stab him. It follows that to the extent
    Oatway did assault the appellant by grabbing the knife and struggling to gain
    control of it, Oatway was not unlawfully assaulting the appellant.

[28]

While the appellants out-of-court statements may be
    sufficient to give rise to an air of reality to the appellants
subjective
belief that Oatway was unlawfully assaulting him, there was no air of reality
    to the proposition that that subjective belief was reasonable. It would be
    unreasonable for a person in the appellants shoes not to anticipate that
    pointing a knife at someone and threatening to rob and stab that person was
    likely to provoke a defensive response. It would be unreasonable to think that Oatway
    was not entitled to try to wrestle the knife away from the appellant. There is
    nothing to show that the appellant could have reasonably believed that Oatway
    was doing anything more than legitimately defending himself against the
    appellants attack. When considered against the background of the appellants
    own conduct towards Oatway and the evidence of the on-lookers as to a struggle
    to gain control over the knife, the appellants out-of-court utterance that
    Oatway was trying to kill him does not give an air of reality to the existence
    of a reasonable belief on the part of the appellant that Oatway was unlawfully
    assaulting him.

[29]

I
    do not agree with the appellants submission that this case is on all fours
    with
McIntosh
. There, while the accused was in possession of a knife, it
    is not clear that he threatened to stab the deceased at any point before the
    deceased, who he had provoked the accused with a verbal insult, came at the
    accused with a dolly raised at head level. On those facts, it would be open to
    a jury to find that the accused reasonably believed that by approaching the
    accused with the raised dolly, the victim was unlawfully assaulting the
    accused.

[30]

For
    these reasons, I conclude that the trial judge did not err in finding that
    there was no air of reality to the s. 34(2) defence.

Issue 2. Did the trial judge err in ruling that there was
    no air of reality to self-defence under s. 35?

[31]

The
    Crown urges us to interpret s. 35 as applying only where the accused acts in
    response to an
unlawful
assault by the victim. In other words,
    according to the Crown, s. 35 should be interpreted to include the same
    qualification as s. 34(2) and render self-defence unavailable where the
    victims response was lawful. I note that there is conflicting authority on
    this proposition. Compare
R. v. Mohamed
, [2009] O.J. No. 398 (S.C),
    holding that s. 35 applies only where the victims response was unlawful with
R.
    v. Merson
(1983), 4 C.C.C. (3d) 251 (B.C.C.A.), Taggart J.A., holding the
    contrary. I note as well that the refusal to read words into s. 34(2) in
McIntosh
makes this a difficult argument for the Crown. As it is my view that this
    appeal can be resolved without deciding that issue, I will assume, without
    deciding, that s. 35 requires only an assault and not an unlawful assault.

[32]

In
    my view, the trial judge did not err in finding that there was no air of
    reality to the element required by s. 35I, namely that the accused must have
    declined further conflict and quitted or retreated from it as far as it was
    feasible to so do before the necessity of preserving himself from death or
    grievous bodily harm arose.

[33]

From
    the start, the appellant was the aggressor. The appellant attempted to rob
    Oatway by threatening him with a knife. When Oatway refused to hand over his
    iPod, the appellant persisted by pointing his knife at Oatway and verbally
    threatening to slice him. Section 35I required the appellant to have declined
    further conflict from the very situation he had provoked
before the
    necessity of preserving himself from death or grievous bodily harm arose

    (emphasis added). That means that there must be some evidence that the
    appellant attempted to extricate himself when Oatway resisted his attempted
    robbery
before
the point at which the appellant found himself in a
    position where he had to use lethal force to save himself. There is no such
    evidence. Nor, for that matter, is there any evidence that the appellant made
    any attempt to back away at any time.

[34]

The Supreme Court stated in
Cinous
,
    at para. 124:

Self-defence under s. 34(2) provides a justification for
    killing. A person who intentionally takes another human life is entitled to an
    acquittal if he can make out the elements of the defence. This defence is
    intended to cover situations of last resort.

[35]

That
    statement certainly applies to the s. 35 defence which, if anything, is more a
    matter of last resort as it covers situations where the accused provoked the
    altercation that led to the killing.

[36]

All
    the evidence indicated that the appellant persisted in his attack despite
    meeting with Oatways resistance. In the absence of any evidence that Oatway
    made it impossible for the appellant to withdraw or retreat, there was no basis
    for the trial judge to leave s. 35 with the jury. The trial judge applied the
    correct legal test, carefully assessed the evidence, and found no air of
    reality to the proposition that the appellant had met the requirements of s. 35I.

[37]

Accordingly,
    I reject the submission that the trial judge erred by refusing to put
    self-defence under s. 35 to the jury.

Issue 3: Did the trial judge err by failing to correct or
    remedy the Crowns closing address?

[38]

Two
    witnesses testified that at some point, the appellant had Oatway in a
    headlock (Panagiotopoulos) or a sleeper hold (Huffman). It was unclear
    whether these witnesses were describing the same situation. It was also unclear
    when, during the altercation, the appellant was holding Oatway in this manner
    and when Oatway was stabbed.

[39]

As
    the defence had called evidence, defence counsel addressed the jury first.
    Defence counsel advanced the defence of accident and made no reference to the
    headlock/sleeper hold evidence.

[40]

Crown
    counsel, on the other hand, placed considerable emphasis on the headlock/sleeper
    hold evidence. He submitted that it completely disproved the defence theory of
    accident as it demonstrated that the appellant was the clear winner in the
    struggle. Crown counsel submitted that the appellant had stabbed Oatway while
    holding him in the headlock or sleeper hold that had ended their confrontation.
    Crown counsel further submitted that the location of Oatways stab wound, as
    identified by the pathologist, exactly aligned with where Oatway would have
    been wounded if he had been stabbed by the appellant while in the sleeper hold
    position described by Huffman. Crown counsel also placed significant emphasis
    on the fact that defence counsel had not mentioned the headlock/sleeper hold
    evidence during his closing.

[41]

Defence
    counsel complained that he had been taken by surprise. He pointed out that the
    Crown had not previously advanced the theory that the stabbing occurred during
    the headlock either in opening address or by putting it as a hypothetical to
    the pathologist. He asked the trial judge to include in his charge a reply,
    written by defence counsel, referring to the Crowns submission that defence
    counsel made no reference to the headlock/sleeper hold evidence and stating:

It is the defence position that Michael Oatway was wounded in
    the course of the struggle for the knife and it is hardly surprising that,
    having been so wounded, he offered no further resistance to [S.M.] and was
    easily placed in a headlock. One [S.M.] recognized that Mr. Oatway was no
    longer fighting, he released him allowing Mr. Oatway to run to the front of the
    bus. This is perfectly consistent with the evidence of many witnesses on the
    bus, including Brad Huffman.

[42]

The
    trial judge refused defence counsels request. He ruled that defence counsel
    must have been aware of the evidence of the headlock/sleeper-hold, and that the
    Crown was entitled to put positions and theories based on the evidence to the
    jury.  He ruled this did not fall into the exceptional category of cases where
    the defence was entitled to a right of reply. The trial judge did, however,
    indicate that he would instruct the jury that there was no direct evidence of
    exactly when the stabbing took place.

[43]

I
    see no error on the part of the trial judge in failing to accede to defence
    counsels request. I agree with his observation that defence counsel could and
    should have anticipated that the Crown would likely rely on the evidence of the
    headlock/sleeper-hold. If that evidence could be tied to the actual stabbing,
    it had obvious relevance to the defence of accident as well as to the Crowns
    case for first degree murder based on forcible confinement. I can only assume
    that defence counsel refrained from dealing with that evidence in his closing
    for tactical reasons.

[44]

The
    trial judges instructions to the jury made it clear that there was no direct
    evidence as to the timing of the stabbing. This pointed out the weakness in the
    Crowns position. I am satisfied that the trial judges instructions left the
    jury with a fair and balanced presentation of the positions of the parties and
    that it was well within the trial judges discretion to refuse to include in
    his charge the reply submission requested by defence counsel.

Disposition

[45]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree K.M. Weiler
    J.A.

I agree R.A. Blair
    J.A.

Released: April 20, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Sarwar, 2012 ONCA
    250

DATE: 20120419

DOCKET: C52606

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Aamir Sarwar

Appellant

Richard Litkowski, for the appellant

Marcella Henschel, for the respondent

Heard and endorsed: April 18, 2012

On appeal from sentence imposed on May 25, 2010 by
    Justice J. E. Allen of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellants submissions centre on the length of the jail sentence.
    However, the appellant has now served that sentence. We do not think that it
    would be appropriate to reduce the driving prohibition. Given the appellants
    record and the very serious nature of the offences, we are of the view that the
    5‑year probation was entirely appropriate and not affected by any alleged
    error in the custodial sentence.

[2]

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


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Semlitch, 2012 ONCA 264

DATE: 20120430

DOCKET: C54338

Laskin, Rosenberg and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

James Semlitch

Appellant

Sam Goldstein, for the appellant

Scott Latimer, for the respondent

Heard and endorsed: April 23, 2012

On appeal from the conviction entered on June 14, 2011 by
    Justice Lisa Cameron of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge misapprehended the evidence
    in material respects that impacted on her credibility findings. For the
    following reasons the appeal is dismissed:

1.     The
    trial judge found that Mr. Whitmore did not have a motive to lie. This finding was
    reasonably open to the trial judge. On this record, there was no evidence of an
    inducement held out to Mr. Whitmore. The fact that the appellant testified that
    he did not need the information on the tower, even if believed, did not affect Mr. Whitmores
    motive.

2.     There
    was independent evidence capable of confirming Mr. Whitmores testimony in
    the fact that only the appellant had a motive to steal the computer tower. In
    other words, the manner in which the break-in occurred and the items stolen was
    independent confirmatory evidence. At its highest, the unresolved issue of the
    $5,000 only affected the credibility of Mr. Matthews, whose evidence was not
    essential to the conviction.

3.     It
    was for the trial judge to decide whether Mr. Whitmores recitation of events
    was consistent. The strength of the inferences were for the trial judge. In
    particular, there was a basis for finding that the appellant knew Mr. Whitmore.

4.     The
    trial judge did not commit a reversible error in finding the appellant lied
    about not knowing Mr. Whitmore. The unequivocal way in which the appellant
    testified about not knowing Mr. Whitmore did not leave room for any honest
    mistake.

[2]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Singh, 2012
    ONCA 277

DATE: 20120430

DOCKET: C54022

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jaggi Singh

Respondent

Roger Shallow, for the appellant

Peter Rosenthal and Reni Chang, for the respondent

Heard: April 26

On appeal from the sentence imposed on June 21, 2011 by
    Justice Robert G. Bigelow of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

In the circumstances, we are not persuades that the sentence is
    demonstrably unfit.

[2]

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


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wang, 2012 ONCA 257

DATE: 20120420

DOCKET: C53364

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Daniel Wang

Appellant

Daniel Wang, in
          person

Vincenzo
          Rondinelli, as Duty Counsel

Howard
          Liebovich, for the Crown

Heard: April
          16, 2012

On appeal from
          the conviction entered by Justice Richard E. Jennis of the Ontario Court of
          Justice, dated December 3, 2010.

ENDORSEMENT

[1]

In our view, it was open to the trial judge to
    draw the inference that the CPIC check, which led to the discovery of a warrant
    for the appellant's arrest, was not prompted by the outcome of the unlawful pat
    down search and would have been conducted in any event. There was no evidence
    that the CPIC check was done because of the pat down search. Further, it was a
    matter of common sense that the police would do a CPIC check in the
    circumstances. That, in turn, led to a lawful search incident to arrest which
    led to the discovery of the burglary tools.

[2]

We see no other error in the trial judge's
    findings of fact that formed the basis for his s. 24(2)
Charter
analysis.

[3]

Finally, we reject the appellants submission
    that the finding of guilt was unreasonable. The eyewitness explained that, to
    her, the description white meant not black. Moreover, the appellant's
    clothing, shoes and general physical description were similar to that of the
    prowler; the appellant was found in the vicinity of the attempted break and
    enter shortly after it occurred; and the appellant was in possession of tools
    that could have allowed him to commit the attempted break and enter.

[4]

The appeal is therefore dismissed.

Signed:        K.M. Weiler J.A.

Janet Simmons
    J.A.

E. A. Cronk
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Windibank, 2012
    ONCA 237

DATE: 20120413

DOCKET: C53546

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Windibank

Appellant

Robert Sheppard, for the appellant

Lisa Joyal, for the respondent

Heard and released orally: April 4, 2012

On appeal from the conviction entered on September 16,
    2010 by Justice G. Pockele of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of three offences arising out of threats to
    cause the death of a fellow inmate and his parents, if the inmate testified as
    a witness for the Crown in an unrelated prosecution of the appellant.

[2]

The errors alleged by the appellant are three:

i.

that the trial judge erred in finding the appellants guilt established
    by simply choosing the prosecutions case over that of the defence, thus
    shifting the onus of proof to the accused;

ii.

that the trial judge erred in finding that an absence of motive on the
    part of a central witness for the Crown enhanced the credibility of that
    witness evidence; and

iii.

that the trial judge erred in interrupting defence counsel frequently
    and unnecessarily during counsels cross-examination of the prosecutions
    witnesses.

[3]

We would not give effect to any of these grounds of appeal.

The First Ground: The Application of W. (D.)

[4]

The appellant acknowledges that the trial judge properly instructed
    himself on the principles elucidated by the Supreme Court of Canada in
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742, but contends that the trial judge erred
    in their application.

[5]

We do not agree.

[6]

Considered in their entirety, the reasons of the trial judge do not
    reveal any shift in the onus of proof, or betrayal of the principles in
W. (D.)
.
    The trial judge considered the evidence as a whole.  He rejected the
    appellants barren denial on the basis of his considered and reasoned
    acceptance beyond a reasonable doubt of the truth of the conflicting evidence
    of the prosecutions witnesses.  This he was entitled to do:
R. v. D. (J.J.R.)
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; and
R. v. M.(R.E.)
,
    [2008] 3 S.C.R. 3, at para. 66.

[7]

This ground of appeal fails.

The Second Ground: Motive

[8]

Second, the appellant contends that the trial judge erred in his
    consideration of motive as a factor in assessing the weight to assign to the
    evidence of the principal witness of the Crown, Gomez, and the appellant.

[9]

Once again, we do not agree.

[10]

One
    aspect of the defence position at trial was that the recipient of the alleged
    threat, Gomez, had made up the story. The reasons advanced in support of the
    claim of fabrication included Gomezs mental illness and inconsistencies
    between his police statement and the evidence he gave at trial.

[11]

In
    his reasons for judgment, the trial judge rejected, as devoid of evidentiary
    support, any suggestion that Gomez had any adverse or hostile interest that
    would constitute a motive to falsely accuse the appellant.  The trial judge
    also made it clear that the defence had no onus to establish that Gomez had a
    motive to lie.

[12]

The
    appellant concedes that the absence of a motive for a witness to lie is a
    relevant factor for a trial judge to consider in assessing the credibility of
    the witness and the reliability of his testimony.  The complaint here is that
    the trial judge failed to take into account the appellants denial of the incident
    in his consideration of the absence of a motive to lie and further erred in
    taking into account the appellants motive as a piece of evidence that was
    relevant, material and admissible to establish that he made the threat alleged
    by Gomez.

[13]

We
    do not read the reasons of the trial judge as reflecting error in the manner
    alleged by the appellant.  The trial judge did not err in considering the
    absence of a motive to lie in assessing the credibility of Gomez or the
    reliability of his evidence.  He took into account the appellants denial, and,
    as he was entitled to do, rejected it.  That the appellant had a motive to
    utter the threat to attempt to dissuade another inmate from giving evidence against
    him in an unrelated trial was a piece of evidence fit for consideration on the
    issue of whether the threat was made, not only as the appellant seems to
    suggest, on the identity of the author.

The Third Ground: Judicial Interventions

[14]

The
    final ground of appeal, not pressed in oral argument, alleges that the trial
    judge intervened so frequently during the cross-examination of prosecution
    witnesses by defence counsel at trial that the appearance of trial fairness was
    compromised.

[15]

We
    disagree.

[16]

The
    appellant acknowledges the undoubted authority of a trial judge to control the
    proceedings, including the authority to require that witnesses are fairly
    questioned, and not subject to unfocused, repetitive, ambiguous or irrelevant
    questions.  In our view, the interventions in this case did not extend beyond
    the permissible, impede the appellants right to make full answer and defence,
    or give rise to a reasonable apprehension of bias.

[17]

The
    appeal is dismissed.

Winkler C.J.O.

John Laskin J.A.

David Watt J.A.