COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deu, 2019 ONCA 182

DATE: 20190308

DOCKET: C58112

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Minh Deu

Appellant

Mark Halfyard, for the appellant

Andrew Cappell, for the respondent

Heard: February 28, 2019

On appeal from the convictions entered on April 29, 2013 by
    Justice Alexander Sosna of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Phuong Minh Deu, appeals from his convictions for robbery
    and break and enter after a judge alone trial.

[2]

The convictions arise out of a series of residential break-ins involving
    a group of males of which the appellant was said to be one. These break-ins
    began with a robbery at the home of a person that the appellant knew. The appellant
    had lived in the home for several months prior to suddenly leaving.

[3]

The central issue in the trial was the identity of the perpetrators of
    the robbery and the break-ins and whether the appellant, in particular, was a
    member of the group of persons committing them. The trial judge found that the
    appellant was involved in a number, but not all, of the break-ins with which he
    was charged.

[4]

With respect to the robbery, the trial judge found that the appellant
    was the main instigating force behind the robbery, even though he did not participate
    in the actual robbery. The trial judge found that it was the appellant who knew
    about the money and jewellery that was in the home, that he passed this
    information along to the two individuals who committed the robbery, and that he
    received some of the proceeds of the robbery after it occurred.

[5]

In terms of the other break-ins for which the appellant was convicted,
    the trial judge found that the appellant was part of the group that organized and
    carried out the break-ins. The appellants main role appears to have been
    identifying homes to be broken into and also standing watch outside many of
    those homes while the break-ins occurred. When the appellant was eventually
    arrested, items consistent with his participation in some of these break-ins
    were found, not only in the car which he occupied when arrested, but also in
    his residence.

Analysis

(1)

The robbery

[6]

The appellant raises three main issues on his appeal. We consider each,
    in turn. First, the appellant contends that the trial judges conclusion that he
    was a party to the home invasion robbery (count #1 of the indictment) is an
    unreasonable verdict given the trial judges parallel conclusion that the appellant
    was not guilty of the unlawful confinement of the owner of the home during the
    robbery (count #2 of the indictment).

[7]

It was open to the trial judge, on the evidence, to conclude that the
    appellant planned for a break and enter and theft to occur in circumstances
    where it was expected that no one would be home. While it turned out that the
    owner was home, and consequently was tied up by the actual participants, the
    trial judge said that he was not satisfied that the appellant knew or ought to
    have known that this would occur, and thus could not be found guilty of
    unlawful confinement as a party under s. 21(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46,. That factual conclusion was open to the trial judge on
    the evidence and there is no basis for us to interfere with it.

[8]

That said, we do agree with the appellant that the basis upon which the
    trial judge concluded that the appellant was part of the scheme to break into
    and steal from this home did not allow for a conviction for the offence of
    robbery. The trial judge found that the plan was to break-in when no one was
    expected to be home. Neither of the persons involved in the actual break-in
    possessed a weapon, nor was there any evidence that the appellant expected that
    any violence would be used. Consequently, the essential elements of a robbery
    under s. 343 of the
Criminal Code
, as they relate to the appellants
    involvement, were not made out.

[9]

Here the indictment particularized the robbery as stealing with
    violence. The trial judge made no finding that the appellants mental state
    made him a party to the robbery charged under either s. 21(1) or s. 21(2).  Given
    the way in which the robbery offence was particularized in the indictment and
    given the trial judges factual findings only the included offence of theft is
    available. As a result, we would substitute a conviction for theft on count #1.

(2)

The robbery  misapprehension of evidence

[10]

Second,
    the appellant says that the trial judge misapprehended the evidence of Christopher
    Tran. Mr. Tran was one of the two people who committed the initial robbery. He pled
    guilty to his participation in it. He then gave evidence for the Crown in its
    prosecution of the appellant.

[11]

Mr.
    Tran gave evidence at the trial regarding how the robbery occurred. At one
    point, he suggested the appellant was not part of the plan which led to the
    commission of that offence. However, in cross-examination by Crown counsel
    under s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985, c. C-5, he was
    confronted with his preliminary inquiry evidence where he said that it was the
    appellant that had informed him, and the other participant in the robbery, that
    there were large quantities of money and jewellery in the house. He also
    admitted that, immediately after the robbery, either he or the other
    participant had called the appellant. Mr. Tran also admitted that his evidence
    at the preliminary inquiry was true.

[12]

The
    appellant submits that Mr. Tran never resiled from his position that the
    appellant was not involved in the first robbery. He further submits that the
    trial judge misunderstood Mr. Trans evidence in this regard.

[13]

We
    do not agree. The trial judge simply rejected that contention. The trial judge accepted
    the evidence that Mr. Tran gave at the preliminary inquiry and rejected his
    trial evidence. The trial judge also found that it would make no sense that, if
    the appellant was not involved in planning the offence, the participants would
    have immediately called the appellant after the robbery was completed and as they
    were fleeing the scene. That conclusion was open to the trial judge on the
    evidence.

(3)

The break and enter offences  improper use of similar fact evidence

[14]

Third,
    the appellant submits that the trial judge improperly used similar fact
    evidence in reaching his conclusions of guilt in relation to the break and
    enter offences. The trial judge noted that the Crown was not seeking to rely on
    similar fact evidence. The trial judge also expressly said that he was not
    doing so. Indeed, the trial judge said in his reasons that he was considering
    each of the counts separately.

[15]

Unfortunately,
    it appears that similar fact evidence did in fact enter into the trial judges
    conclusions on two of the counts on which he found the appellant guilty  namely,
    counts #4 and #10 on the indictment.

[16]

The
    evidence in respect of count #4 by itself established that the Acura motor
    vehicle, to which all the participants in these break and enters were all
    linked, was seen in the vicinity of the house around the time when the break-in
    occurred. The Acura was also later seen in the same area. The police approached
    the vehicle some hours later and found the appellant and one of the other participants
    inside. Tools capable of being used for break and enter purposes were found in
    the trunk, along with bandanas and masks. The police also found a sheet of
    paper in the glove box of the Acura that had a list of residential addresses on
    it. That list included the address for the home where the break-in had
    occurred.

[17]

There
    was no other evidence unique to count #4. The trial judge found the appellant
    guilty of this break and enter. With respect, the only way that the trial judge
    could have been satisfied, beyond a reasonable doubt, of the appellants guilt
    on this count is if the trial judge considered the similarity between this
    count and those other counts where there was direct evidence of the appellants
    involvement in the break and enters. While that would have been a permissible
    route that the trial judge could have taken to a conviction
if
there was a successful similar fact application by
    the Crown, no such application was made. Without that similar fact evidence,
    the evidence relating solely to count #4 could not sustain a conviction. As a
    result, we would set aside the conviction on this count and enter an acquittal.

[18]

A
    similar situation presents with respect to count #10. On that count, on the day
    of the break-in the Acura was again seen in the vicinity of the home where the
    break and enter occurred. The appellant and the other three participants in
    these series of break-ins were observed in the car. While in the vicinity, all four
    occupants exited the Acura. Two of the occupants went to the home where the
    break-in occurred. The appellant was observed at a McDonalds that is more than
    a kilometre from the home. He was seen talking on his cell phone while, at the
    same time, three of the participants were seen at the front door of the home
    where the break-in occurred. Two of them entered the home while the third
    returned to the Acura. A short time later, the two who entered the home returned
    to the Acura. The Acura then left. The whereabouts of the appellant, at this
    point, were unknown. The Acura was next seen some kilometres away. The
    appellant was seen getting into the Acura. The Acura returned to Toronto. It was
    at this point that the appellant, along with the other three participants, were
    arrested. Upon being arrested, a piece of paper was found in the appellants
    possession that had a number of residential addresses on it. Included in those
    addresses was the address for the house that was broken into.

[19]

Once
    again, a conviction on count #10 could only be sustained if the trial judge
    drew the conclusion that, because the appellant was clearly involved in other
    break and enters with these three persons, he must have been involved in the
    break-in that forms the basis for count #10. That again would be a conclusion
    based, not solely on the evidence relating to count #10, but on a pattern of
    conduct. In other words, on similar fact evidence. Indeed, the trial judge
    seems to suggest that is the route that he is employing when he says in his reasons:

The Crown has not led similar fact evidence and I do not rely
    on similar fact evidence in making the findings. I have taken great pains to
    review each count individually
and I find there was a
    system, suggesting it was similar fact evidence
. [Emphasis added]

[20]

In
    our view, despite his stated intention to do the opposite, it is clear that the
    trial judge allowed similar fact evidence to inform his conclusion respecting
    count #10. The evidence relating solely to that count could not otherwise establish
    a conviction. Again, we would set aside the conviction on this count and enter
    an acquittal.

[21]

That
    said, with the exception of the two counts that we have just reviewed, each of
    the conclusions reached by the trial judge in respect of the other counts was
    available to him on the evidence. He did not make any palpable and overriding
    error in reaching his other conclusions.

Conclusion

[22]

The
    appeal is allowed in part. The conviction on count #1 is set aside and a
    conviction for theft contrary to s. 334(a) of the
Criminal Code
is
    substituted. The sentence on the robbery offence is set aside. The convictions
    on counts #4 and #10 are also set aside and acquittals are entered on those two
    counts.

[23]

We
    would impose a sentence of 18 months on the theft offence concurrent to the
    sentences on the remaining break and enter counts. This sentence is the same
    sentence that the trial judge imposed on each of the break and enter offences,
    which were made concurrent to the others. The reversal of the convictions on
    counts #4 and #10, consequently, does not affect the overall sentence. It
    becomes a total sentence of 18 months. We note that this sentence is consistent
    with the sentences imposed on two of the other participants in the break and
    enter offences.

G.
    Pardu J.A.
I.V.B. Nordheimer J.A.
A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Falconer, 2019 ONCA 195

DATE: 20190312

DOCKET: C51210

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Falconer

Appellant

Nicholas A. Xynnis, for the appellant

Joe Hanna, for the respondent

Heard and released orally: March 8, 2019

On appeal from the conviction entered on May 28, 2009 and
    the sentence imposed on October 7, 2009 by Justice Barbara A. Conway of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction of multiple frauds arising out of a
    credit card scam.

[2]

Counsel submits that the trial judge erred in assessing the appellants
    credibility, finding his testimony unbelievable and preferring the testimony of
    the witness Miller.
R. v. Kiss
, 2018 ONCA 184, the authority the
    appellant relies upon, stresses the great deference this court pays to
    assessments of credibility and explains why this argument is a difficult one to
    make successfully. In any event, we agree with the trial judge that the
    appellants testimony lacked an air of reality. The trial judge was aware she
    had to treat Millers evidence with care and she did so. She referred to much
    in the record that supported the evidence of Miller. We see no basis for the
    appellants submission the trial judge applied exacting scrutiny to the
    appellants testimony and too readily accepted the testimony of Miller.

[3]

The appellant also submits the verdict is unreasonable. The test is
    whether a properly instructed jury, acting judicially, could reasonably have
    convicted the appellant. The summary of facts in the appellants own factum
    makes evident that the Crowns case had considerable strength and that the
    appellant was involved in the key steps of setting up and implementing the
    fraudulent activity.

[4]

Counsel wisely did not advance the argument in his factum that the trial
    judge misapplied the burden of proof and the presumption of reasonable doubt.

[5]

The appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Girn, 2019 ONCA 202

DATE: 20190313

DOCKET: C63897

Hoy A.C.J.O., Watt J.A. and Then J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Yashpal Singh Girn

Appellant

Lakhwinder Sandhu, for the appellant

Andrew Hotke, for the respondent

Heard: September 12, 2018

On appeal from the convictions entered and from the
    sentence imposed by Justice Salvatore Merenda of the Ontario Court of Justice on
    March 24, 2016.

Watt J.A.:

[1]

On March 23, 2016, the appellant, Yashpal Singh Girn was in jail. That
    day he had a visitor. It was an officer from the Canadian Border Services
    Agency (CBSA). The officer brought some documents and explained them to the appellant.

[2]

The documents related to convictions entered against the appellant on
    two separate occasions in 2015 and advised him that, because of those
    convictions, there were reasonable grounds to believe that he was inadmissible
    to Canada. A decision whether to allow him to remain in Canada or to order his
    removal would be made in the near future after a complete review of his case.
    He was advised to complete some forms and submit them to the CBSA office.

[3]

The next day, the appellant pleaded guilty to eight further offences
    committed on two days in October 2015. His lawyer and the trial Crown made a
    joint submission on sentence to the presiding judge. They proposed a sentence
    of twelve months in custody, followed by probation for a term of three years.
    With credit of 247 days for 165 days of actual pre-disposition custody, the
    custodial component of the sentence imposed was four months. The judge acceded
    to the joint submission and imposed the proposed sentence.

[4]

About one year later, the Immigration Division of the Immigration and
    Refugee Board of Canada issued a deportation order directing the removal of the
    appellant from Canada on the grounds of serious criminality.

[5]

The appellant sought and obtained orders from judges of this court
    extending the time within which he could appeal his convictions and seek leave
    to appeal his sentence.

[6]

In the reasons that follow, I will explain why I have concluded that
    both appeals fail and should be dismissed.

The Background Facts

[7]

The grounds of appeal advanced do not require a detailed description of
    the circumstances of the offences to which the appellant pleaded guilty. But
    the procedural history of the prosecution and the removal proceedings are
    important to better understand the grounds of appeal advanced and their
    determination.

The Early History

[8]

As a result of three separate incidents with his spouse in the first
    half of 2015, the appellant pleaded guilty to and was convicted of two counts
    of assault, one count of assault with a weapon, two counts of failure to comply
    with a probation order and single counts of break and enter with intent and
    uttering threats. The dispositions included brief jail terms (taking into
    account time spent in pre-disposition custody) followed by periods of
    probation.

[9]

The terms of probation included requirements that the appellant keep the
    peace and be of good behaviour and that he not communicate in any way with the
    complainant.

The October Offences

[10]

As a
    result of three separate incidents occurring on two days in October 2015, about
    two months after he had been sentenced on prior similar offences, the appellant
    was charged with 26 counts involving offences against the person and property
    of his spouse and failures to comply with three separate probation orders. Some
    of the offences were punishable by terms of imprisonment of ten years or more.

[11]

The
    appellant was detained in custody.

The Immigration Notice

[12]

The
    appellant entered Canada when he was 14 years old in 1996. He is a permanent
    resident and has not applied for citizenship.

[13]

While
    in custody on March 23, 2016, an Immigration Enforcement Officer from the CBSA
    told the appellant that he may be deemed inadmissible to Canada as a result of
    his previous convictions for break and enter with intent and assault with a
    weapon. The officer explained that serious criminality referred to crimes
    committed in Canada that were punished by terms of imprisonment of at least six
    months. The officer also reminded the appellant of his obligation to make
    submissions about why he should remain in Canada. The letter provided to the
    appellant by the officer contained most of this information.

[14]

In
    cross-examination on his affidavit in support of his application to withdraw
    his guilty plea and advance his claim of ineffective assistance of counsel, the
    appellant confirmed that he understood from the officer that he could be
    subject to a removal or deportation order. He also appreciated that, because he
    had not received sentences of six months or more for his previous offences, he
    could appeal any removal order made against him. He was also made aware that
    any sentences of imprisonment exceeding six months which resulted in a removal
    order, left him without a right of appeal from that order.

The Pleas of Guilty

[15]

On
    March 24, 2016, the day following his meeting with the Immigration Enforcement
    Officer, the appellant appeared with counsel and pleaded guilty to 8 of the 26
    counts arising out of the incidents in October of 2015. Counsel had represented
    the appellant in prior proceedings in another jurisdiction and was the only
    lawyer the appellant had retained in connection with the charges from October
    2015.

[16]

In
    advance of his court appearance, the appellant met with his counsel who
    explained that he and the Crown would be making a joint submission for a
    sentence of 12 months in custody on all charges.

[17]

In
    the courtroom, the appellant pleaded guilty to all eight counts on which he was
    arraigned. Included were counts charging assault causing bodily harm and break
    and enter with intent, each of which carries a maximum punishment of
    imprisonment for at least ten years.

The Sentences Imposed

[18]

Where
    permitted to choose mode of procedure, the Crown proceeded by indictment.
    Counsel on both sides admitted that the sentence that should be imposed was 12
    months imprisonment, less credit of 247 days for 165 days of pre-disposition
    custody, to be followed by 3 years of probation with several proposed terms.
    Neither counsel suggested how to apportion the pre-disposition custody among
    the various convictions or how the individual sentences should be calculated or
    served to arrive at the proposed sentence of about four months.

[19]

The
    sentencing judges endorsements on the Information indicate that he attributed
    the custodial sentence and term of probation to the conviction of assault
    causing bodily harm. On the other counts, he suspended the passing of sentence,
    imposed periods of probation on the same terms as for the conviction of assault
    causing bodily harm, and directed that the sentences be served concurrently.

The Immigration Proceedings

[20]

On
    May 3, 2017, the Immigration Division of the Immigration and Refugee Board of
    Canada issued a removal order for the appellant as a result of his convictions
    and sentence for assault causing bodily harm.

[21]

On
    September 18, 2017, the Immigration Appeal Division dismissed the appellants
    appeal from the removal order for lack of jurisdiction. The appellant had no
    right of appeal because he was found to be inadmissible on grounds of serious
    criminality (the conviction of assault causing bodily harm), which had been
    punished by imprisonment of at least six months (four months plus credit of 247
    days for the pre-disposition custody).

The Appellate Proceedings

[22]

Judges
    of this court extended the time within which the appellant could appeal the
    convictions entered and sentence imposed on March 24, 2016.

The Grounds of Appeal

[23]

The
    appellant seeks to withdraw his guilty plea and have a new trial, or wants his
    sentence reduced so that he can appeal his removal order. He identifies two
    errors in the proceedings that he says resulted in his conviction and sentence:

i.

his plea
    of guilty was uninformed because he was not aware of the collateral immigration
    consequences of the joint submission on sentence; and

ii.

his trial counsel
    provided ineffective assistance in his representation.

[24]

The
    grounds are discrete, yet related. The sparse trial record has been
    supplemented by materials furnished in accordance with our protocol for claims
    of ineffective assistance of counsel. I would admit this material as fresh
    evidence because I consider it to be in the interests of justice to do so.

Ground #1: The Uninformed Plea of Guilty

[25]

An
    examination of the plea proceedings, as well as the information provided in
    connection with the claim of ineffective assistance of counsel, is essential to
    understanding this alleged error and its determination.

The Plea Proceedings

[26]

When
    the appellant entered his pleas of guilty, he was represented by counsel who
    had appeared on his behalf throughout these proceedings and had acted for him
    in a prior unrelated prosecution in another jurisdiction. Counsel had
    participated in resolution discussions with the Crown as well as pre-hearing
    conferences with the judge before whom the appellant pleaded guilty.

[27]

When
    the appellant was arraigned and entered his pleas of guilty, the presiding
    judge did not conduct a plea inquiry in accordance with s. 606(1.1) of the
Criminal Code of
    Canada
, R.S.C. 1985, c. C-46
.
    Defence counsel indicated that he had conducted a plea inquiry with the
    appellant and was satisfied that the appellant was familiar with the
    allegations made against him and wanted to plead guilty to the counts on which
    he would be arraigned. Defence counsel informed the judge that there would be a
    joint submission on sentence and that the appellant understood that the judge
    did not have to impose the sentence counsel recommended.

[28]

The
    appellant indicated that he was prepared to proceed in accordance with what
    defence counsel had said.

[29]

None
    of the participants inquired or said anything about the appellants immigration
    status in advance of entering the guilty pleas. During sentencing submissions,
    defence counsel told the trial judge that someone from Immigration had visited
    the appellant and told him that he was to report to Immigration on his release
    from custody after completing his sentence.

[30]

No
    one asked anything about the appellants immigration status after defence
    counsels mention of it during submissions. The appellant said nothing about
    immigration in his allocution.

The Further Evidence

[31]

In
    his affidavit filed in support of his ineffective assistance of counsel claim,
    the appellant acknowledged the visit of the Immigration Enforcement Officer and
    the officers instructions that he report to the Immigration Office on his
    release from custody. He told trial counsel about this visit. The lawyer never
    told him that he should contact an immigration lawyer, or that he would be
    deported after he had served his sentence and would not be able to appeal the
    deportation order. The appellant claimed that he never expected that his
    imminent removal from Canada would occur as a result of his guilty plea.

[32]

In
    cross-examination, the appellant agreed that the Immigration Enforcement
    Officer had spoken to him about his prior convictions in 2015 and had told him
    that, as a result, he may be inadmissible to Canada. The appellant understood
    that because the sentences imposed on those convictions were less than six
    months, he could appeal a deportation order. He also understood that receiving sentences
    of six months or more meant that he could not appeal any deportation order made
    as a result.

[33]

The
    appellant testified that he told his trial counsel that he was a permanent
    resident. He denied that trial counsel advised him about the seriousness of the
    charges he faced and the impact of his prior convictions. Before he pleaded
    guilty, trial counsel told him that he and the Crown would be (jointly)
    recommending a sentence of 12 months.

[34]

In
    further cross-examination, the appellant denied telling trial counsel that he
    had an inheritance in India and wished to return there. Trial counsel did not
    tell him that deportation could follow as a result of his convictions or that
    he would have no right to appeal a deportation order if the sentence imposed
    exceeded six months in jail. Had he known that deportation would follow from
    conviction, he would not have pleaded guilty.

[35]

The
    appellant did not change his mind about pleading guilty after he spoke to the
    Immigration Enforcement Officer. He made this decision because he knew from
    what other inmates at the jail had said, that pre-trial custody did not count
    in determining the length of sentence and a person who has a family cannot be
    deported.

[36]

In
    his affidavit, trial counsel explained that the appellant told him that he (the
    appellant) was a citizen of India where he wished to return to collect an
    inheritance to which he would not be entitled if he became a Canadian citizen.
    Counsel told the appellant to stay out of trouble because further trouble would
    increase the length of sentence the judge would impose and that any sentence
    over six months would result in a deportation order that the appellant could
    not appeal or seek to have stayed.

[37]

Trial
    counsel testified that he told the appellant that he could apply for legal aid
    certificates for immigration and family law counsel. The appellant declined to
    do so because he would not be staying in Canada. After counsel received and
    reviewed the Crown disclosure, he told the appellant that he would be looking
    at deportation because the sentence he would likely receive would exceed six
    months in custody. The initial position of the Crown was that a penitentiary
    sentence should be imposed. As a result of the plea inquiry conducted with the
    appellant, defence counsel was satisfied that the appellant understood that the
    judge would make the final decision about sentence even though counsel would be
    jointly suggesting a custodial sentence of 12 months, less pre-disposition
    custody, and a period of probation.

[38]

It
    was the evidence of trial counsel that the appellant understood the joint
    submission and instructed him to proceed. He was unconcerned about the
    immigration implications because he planned to return to India.

[39]

Trial
    counsel did not discuss with the appellant any apportionment of the time spent
    in pre-disposition custody among the various offences, so that with credit, the
    sentence imposed would not exceed six months in custody. A sentence under six
    months was simply impossible according to trial counsel because of the
    appellants record and the fact that he committed the offences while bound by
    the terms of several probation orders.

The Arguments on Appeal

[40]

The
    appellant says that his plea of guilty should be set aside because it was not
    fully informed. He did not know that he would have no right of appeal from the
    deportation order because his sentence, including credit for time spent in
    pre-disposition custody, exceeded six months.

[41]

In
    the appellants submission, the mere fact that he understood the general nature
    of the warning provided by the Immigration Enforcement Officer was not
    sufficient to render his plea of guilty informed. What is more, counsel had a
    duty to advise the appellant specifically that a jail sentence that exceeded
    six months deprived him of the right to appeal any deportation order made as a
    result of that conviction and sentence.

[42]

The
    respondent rejects any suggestion that the appellants guilty plea was
    uninformed because he lacked specific information about the availability of
    appellate review to challenge deportation orders.

[43]

According
    to the respondent, the record of trial proceedings as amplified by the fresh
    evidence demonstrates that the appellant knew that there were immigration
    consequences of his convictions. And he knew from what the Immigration
    Enforcement Officer had told him the day before he pleaded guilty, that if he
    received a custodial sentence of six months or more, he would lose his right to
    appeal the deportation order. The appellants essential complaint is that he
    relied on information provided by fellow inmates that time spent in
    pre-disposition custody was not included in the sentence calculations for
    immigration purposes. That the information was erroneous does
not
make
    his guilty plea uninformed.

[44]

The
    respondent emphasizes that the decision in
R. v. Wong
, 2018 SCC 25, 364
    C.C.C. (3d) 1 requires an appellant who seeks to set aside on appeal a guilty
    plea as uninformed to demonstrate not only that he or she was unaware of a
    legally relevant collateral consequence, but also that this lack of awareness caused
    him or her subjective prejudice. The respondent says that the appellant has
    failed to satisfy either requirement.

[45]

The
    respondent argues that the inability to appeal a deportation order is
not
a legally relevant collateral consequence. Admittedly, state compelled
    immigration consequences of a custodial sentencing disposition are legally
    relevant collateral consequences of a guilty plea. But it is sufficient to
    satisfy the informed component of a guilty plea where an accused is aware
    that deportation is a potential consequence. He or she need not know precisely
    how likely deportation will be or how limited the options may be to avoid it.

[46]

Even
    if the inability to challenge a deportation order on appeal were a legally
    relevant collateral consequence of a guilty plea, the appellants claim should
    be rejected. The appellant asserts that he was unaware that the joint
    submission for a 12-month sentence would leave him without a right of appeal because
    his lawyer failed to advise him of this, and his fellow inmates said that
    immigration authorities did not consider time spent in pre-disposition custody as
    part of a sentence. This explanation beggars belief. He did not ask his
    counsel, rather relied on advice from fellow inmates, well knowing the
    substance of the joint submission  12 months in custody plus probation. Trial
    counsel testified that he told the appellant that if he spent more than six
    months in jail he would be deported without a right of appeal.

[47]

Further,
    the respondent continues, any lack of knowledge is the appellants own doing.
    He knew the substance of the joint submission and the fact that a sentence of
    six months or more meant no appeal. He also knew that the sentencing judge was
    not bound by the joint submission. His approach of deliberate ignorance should
    be unavailing.

[48]

The
    respondent also takes issue with the appellants claim of subjective prejudice
    arising from his uninformed guilty plea. Any assertion that the appellant would
    have pleaded not guilty and proceeded to trial or insisted on different
    conditions, had he known there was no right of appeal, lacks evidentiary
    support. In addition to the circumstances already mentioned, it is plain that,
    from the outset, the case was headed for resolution, not for trial. Indeed,
    this was the appellants history with all prior incidents. Nor was the
    appellant in a position to insist on different conditions on entry of his pleas
    of guilty. As counsel said in cross-examination, a sentence that aggregated
    less than six months inclusive of pre-disposition custody was impossible
    given the circumstances of the case.

The Governing Principles

[49]

For
    the most part, the parties are not at odds about the principles that govern our
    decision in this case, only the result that should follow from their
    application.

The Requirements of a Valid Guilty Plea

[50]

To
    be valid, a plea of guilty must be voluntary, unequivocal and informed:
Wong
,
    at para. 3;
R. v. Quick
, 2016 ONCA 95, 129 O.R. (3d) 334, at para. 4.

The Informed Guilty Plea

[51]

For
    a plea of guilty to be
informed
, the accused who enters it must be
    aware of the nature of the allegations made by the Crown and the effect and
    consequences of the plea:
Wong
, at para. 3;
Quick
, at para.
    4;
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519.

[52]

An informed
    guilty plea means that an accused must be aware of the criminal consequences of
    the plea and the legally relevant collateral consequences. A legally relevant
    collateral consequence is a consequence that bears upon sufficiently serious
    legal interests of the accused. Immigration consequences bear on sufficiently
    serious legal interests, falling within the legally relevant collateral
    consequences of a guilty plea:
Wong
, at para. 4.

The Immigration Consequences

[53]

For
    permanent residents of Canada, s. 36(1)(a) of the
Immigration and
    Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
)
    declares them inadmissible on grounds of serious criminality for having been
    convicted in Canada of an offence under an Act of Parliament punishable by a
    maximum term of imprisonment of at least ten years, or of an offence under an
    Act of Parliament for which a term of imprisonment of more than six months has
    been imposed.

[54]

Under
    s. 64(1) of the
IRPA
, permanent residents found to be inadmissible to
    Canada on grounds of serious criminality have no right of appeal to the
    Immigration Appeal Division from a removal order. For these purposes, serious
    criminality refers to a crime punished in Canada by a term of imprisonment of
    at least six months: s. 64(2),
IRPA
.

[55]

Taken
    together, ss. 36(1)(a) and 64(1)-(2) of the
IRPA
render a permanent
    resident convicted of a
Criminal Code
offence punishable by a maximum
    term of imprisonment of at least ten years inadmissible to, and thus, removable
    from Canada and without a right of appeal when sentenced to a term of
    imprisonment of at least six months.

Knowledge of Immigration Consequences

[56]

Some
    pre-
Wong
authorities have considered the nature and extent of a
    permanent residents knowledge of immigration consequences that will defeat a
    claim that a guilty plea was uninformed.

[57]

In
R.
    v. Shiwprashad
, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant, a
    permanent resident, was subject to a removal order arising out of convictions
    for sexual offences. The Immigration Appeal Division stayed the order for four
    years on certain conditions. The stay order contained the following wording:

IMPORTANT
    WARNING

This stay of
    removal is cancelled and your appeal is terminated by operation of law and you
    may be removed from Canada, if you are convicted of another offence referred to
    in subsection 36(1) of the
Immigration and Refugee Protection
    Act
(sentence of more than six months imposed or punishable by a term
    of imprisonment of at least ten years) before your case has been finally
    reconsidered.

[58]

During
    the currency of the stay order, the appellant pleaded guilty to and was
    convicted of robbery. He was sentenced to a term of imprisonment that was the
    functional equivalent of a sentence of nine months in custody. He was
    subsequently deported:
Shiwprashad
, at paras. 10, 16, 25-28.

[59]

On
    appeal, the appellant sought to set aside his guilty plea on the ground that
    his counsel provided ineffective assistance by failing to inform him of the
    immigration consequences of his plea.

[60]

This
    court dismissed the appeal, satisfied that the appellant knew that:

i.

he was
    subject to deportation;

ii.

the stay of his
    deportation would be cancelled if he committed any further offences punishable
    by imprisonment for ten years or more or if he were sentenced to imprisonment
    for a term of six months or more; and

iii.

he could be deported.

See
Shiwprashad
, at
    paras. 72, 75.

[61]

In
R.
    v. Coffey
, 2017 BCCA 359,  the appellant sought to set aside his guilty
    plea as uninformed on the basis that he was unaware of the collateral
    immigration consequences of the guilty plea and two-year sentence. In
    particular, the appellant said that he did not know at the time of his guilty
    plea that as a permanent resident he could face deportation or that the length
    of his sentence, based on a joint submission, would prevent him from appealing
    his removal order.

[62]

The British
    Columbia Court of Appeal was satisfied that the appellant was aware that his
    permanent resident status in Canada could be jeopardized by his conviction and
    sentence. He was concerned that his guilty plea might lead authorities to
    initiate a removal process and instructed his lawyer not to raise immigration
    status during plea negotiations. Despite his concern, he did not choose to
    consult an immigration lawyer. A sentence of six months or less was unfeasible
    in the circumstances:
Coffey
, at paras. 46-49.

[63]

The
    appeal was dismissed. In delivering the reasons of the court, Garson J.A.
    concluded, at paras. 50-51:

In summary, an informed guilty plea requires the accused to
    have some awareness of the potential immigration consequences of their plea.
    Further, immigration consequences may be a necessary consideration in sentencing.
    However, an accused need not necessarily know the precise immigration
    consequences of their conviction and sentence. Case-by-case analysis is
    required to determine the degree to which an accused person must be aware of
    the specific details of the immigration consequences of their guilty plea.

In this case, because of what I have termed Mr. Coffeys
    willful blindness, I conclude that Mr. Coffeys plea was sufficiently informed.
    It follows that his counsel did not contribute to an uninformed plea. On this
    basis alone I would dismiss the appeal.

[64]

In
R. v. Tyler
, 2007 BCCA 142, 218 C.C.C. (3d) 400, the
    appellant sought to have his guilty plea struck on the basis that it was
    uninformed because he did not know the likely immigration consequences flowing
    from his plea. In dismissing his appeal, Donald J.A. wrote, at paras. 23-25:

While the automatic effect of a further conviction of
    possession of a break-in instrument may not have been fully understood by the
    appellant, I am satisfied that he knew that his status in Canada was in serious
    jeopardy. He pleaded guilty to achieve the short term gain of early release and
    he put aside consideration of the longer term consequences, no doubt hoping
    that things would work out as time went on. This was a free choice; his first
    lawyer urged him to try the charges but that would have meant staying in jail
    for several more months.

Does the ignorance of the automatic effect of the conviction
    vitiate the plea? If that were so, then pleas could be struck on the basis that
    the outcome was not precisely as anticipated. That kind of certainty is not to
    be expected of the criminal process, especially when judges are free to depart
    from bargains struck by counsel, within certain reasonable limits. See
R.
    v. Hoang
, 182 C.C.C. (3d) 69, 2003 ABCA 251 ¶ 36:

The requirement that the accused understand the nature and
    consequences of a guilty plea is not a requirement to canvas every conceivable
    consequence which may result or may be foregone. Such a requirement would be a
    practical impossibility. American jurisprudence has held the accused should be
    aware of the probable direct consequences of the plea:
Parker v. Ross
,
    470 F.2d 1092 (4th Cir. 1972).

Here the appellant knew he had been deported for possession of
    a break-in instrument, received a stay on good behaviour, and then pleaded
    guilty to the same offence within a few months of receiving the stay. I agree
    with respondent's counsel that the difference between awareness of an automatic
    effect, and knowledge of a highly probable result, is too fine a distinction.

See also
R. v. Kitawine
,
    2016 BCCA 161, 386 B.C.A.C. 24, at paras. 20, 25-28.

Setting Aside Pleas of Guilty

[65]

An
    accused who seeks to set aside a presumptively valid guilty plea, on the basis
    that the plea was uninformed because he or she was unaware of a legally
    relevant collateral consequence at the time of entering the plea, must
    establish:

i.

that
    she or he was in fact unaware of a legally relevant consequence of entering the
    plea at the time of pleading guilty; and

ii.

subjective
    prejudice.

See
Wong
, at paras. 6,
    9, 19.

[66]

To
    establish subjective prejudice, an accused must file an affidavit establishing
    a reasonable possibility that he or she would have either:

i.

elected to
    plead not guilty and go to trial; or

ii.

plead guilty,
    but with different conditions.

See
Wong
, at paras. 6,
    19.

Of necessity, a reviewing court
    must assess the veracity of an accuseds claim. This inquiry is subjective to
    the particular accused who seeks to set aside their plea, but allows for an
    objective assessment of contemporaneous evidence to determine the credibility of
    the accuseds subjective claim:
Wong
, at para. 6.

[67]

In
    connection with the first form of prejudice  where an accused would have
    pleaded not guilty and opted for trial  there will always be cases in which
    the accused may have little to no chance of success. However, that is not to
    say that a remote chance of success at trial means the accused is not sincere
    in his or her claim that the plea would have been different. Sometimes, certain
    but previously unknown consequences of a conviction make even a remote chance
    of success at trial a chance worth taking. Provided a court accepts the
    veracity of the accuseds statement, when tested against the objective
    contemporaneous evidence, then the accused has demonstrated prejudice and
    should be entitled to withdraw their guilty plea:
Wong
, at para. 20.

[68]

The
    second form of prejudice  where an accused would have pleaded guilty, but only
    on different conditions  will be established where a reviewing court finds
    that the accused would have insisted on those conditions to enter the guilty
    plea and those conditions would have alleviated, in whole or in part, the
    adverse effects of the legally relevant collateral consequence:
Wong
,
    at para. 21.

[69]

On
    the other hand, the mere possibility of different conditions, without more, is
    not automatically sufficient. It is only where an accused credibly asserts that
    she or he, during the plea negotiation phase, would have insisted on additional
    conditions, but for which she or he would not have pleaded guilty. Said in
    another way, an accused must articulate a meaningfully different course of
    action to justify vacating a plea, and satisfy the reviewing court that there
    is a reasonable possibility that she or he would have taken that course:
Wong
,
    at paras. 22-23.

[70]

A
    final point concerns the consequences of focusing the prejudice analysis on the
    subjective choice of the accused. It does not follow from this focus that a
    court must automatically accept an accuseds claim. The credibility of the
    claim is at large, not a given. The court must measure the accuseds claim
    about what his subjective and fully informed choice would have been against the
    objective circumstances as revealed by the evidence. Relevant factors in this
    assessment include, but are not limited to:

i.

the
    strength of the Crowns case;

ii.

any concessions
    or statements from the Crown about its case (for example, a willingness or
    refusal to participate in a joint submission or reduce the charge to a lesser included
    offence);

iii.

any available defence;
    and

iv.

the strength of connection
    between the plea of guilty and the collateral consequence (where the collateral
    consequence depends on the length of the sentence, a court may have reason to
    doubt the veracity of the claim).

See
Wong
, at paras. 26,
    28.

The Principles Applied

[71]

As I
    will explain, I would not give effect to this ground of appeal. In my view, the
    appellant has failed in his attempt to set aside his guilty plea on the basis
    that it was uninformed because he was unaware of the immigration consequences
    of his plea and the sentence jointly proposed by counsel.

[72]

At
    the outset, I do not contest the proposition that the immigration consequences
    of an accuseds plea, conviction and sentence fall within the legally relevant
    collateral consequences of which an accused must be aware to make an informed
    guilty plea.

[73]

Two
    inquiries determine whether a guilty plea should be set aside on the ground
    that it was uninformed because the accused was unaware of legally relevant
    collateral consequences:

i.

Was the accused
    misinformed or not informed about a legally relevant collateral consequence of
    entry of the plea?

ii.

Did this misinformation or
    lack of information result in prejudice to the accused?

[74]

At
    the first step or stage of the analysis to determine whether the accused was
    misinformed or not informed about a legally relevant collateral consequence of
    his plea, the assessment is objective. In this case, the critical issue is
    whether the accused was aware of the immigration consequences of his plea to
    the extent necessary to meet the informed requirement for a valid guilty
    plea.

[75]

The
    authorities teach that where immigration consequences may ensue from a guilty
    plea, conviction and sentence, an accused must be aware of those consequences
    for his or her plea to be informed. Those immigration consequences include
    removal from Canada  in a word, deportation. But the authorities have resisted
    imposition of a fixed quantum or standard of information necessary to
    characterize the plea as informed. Instead, the jurisprudence counsels a
    case-by-case analysis consistent with both the subjective nature of guilty
    pleas and the level of understanding of the consequences of entry of guilty
    pleas generally. No trial. Conviction. Sentence. No case suggests that
    knowledge of consequences includes knowledge of appellate rights and their
    limitations.

[76]

In
    this case, the appellant was aware from what he had been told and documents he
    had received from an Immigration Enforcement Officer that convictions and
    sentences had immigration consequences. Those consequences included removal
    from Canada. He was also aware that both criminal convictions and the sentences
    imposed were the reasons for those consequences.

[77]

He learned
    further that he may or may not have the right to appeal to the Immigration Division
    should a removal order be issued against him. He was also aware that a term
    of imprisonment of at least six months meant that he had no right of appeal
    from the removal order. And he was invited to make written submissions
    explaining why his removal should not be sought. In addition, the appellant was
    aware that he would be pleading guilty, as he had in all other cases involving
    his spouse, and that his lawyer and the Crown would be asking the judge to
    impose a sentence of 12 months in custody followed by probation for three
    years.

[78]

In
    my respectful view, in the circumstances of this case, the appellant had an
    adequate understanding of the immigration consequences of his plea of guilty
    and the proposed sentence, which he understood the judge was not required to
    impose on the lawyers say-so. In particular, he was aware that those
    consequences included removal from Canada  perhaps without a right to appeal
    the removal decision.

[79]

As
    in
Coffey
to which I have earlier referred, there is also an element
    of wilful blindness in the appellants approach: see
Coffey
, at paras.
    47-51. He relied on fellow inmates for legal advice, rather than picking up
    counsels suggestion of obtaining a legal aid certificate for immigration
    purposes. And on his belief, despite the plain language in the documents he
    received from the Immigration Enforcement Officer, that he would only be given
    a warning, not removed from the country. He rolled the dice. And lost.

[80]

In
    light of my response to the first inquiry, it is unnecessary to consider the
    second. That said, I am also satisfied that the appellant has not established
    the prejudice component of the test.

[81]

To
    begin, the appellants affidavit is barren of any viable suggestion that, but
    for the alleged informational deficit, he would have pleaded not guilty and
    taken the case to trial. His assertion that his estranged spouse would not have
    testified against him is completely at odds with her conduct. A trial would
    have put him at risk of conviction of three times the number of offences to
    which he had pleaded guilty, deprived him of the mitigating effect of his pleas
    of guilty on sentence and likely provided sustenance for the Crowns request that
    he receive a penitentiary sentence.

[82]

Nor
    is this a case in which with further information the appellant might have
    pleaded guilty with different conditions. He pleaded guilty to only 8 of 26
    counts. The sentence imposed, no matter how the pre-disposition custody credit
    was apportioned, would not have resulted in leaving a right of appeal open to
    him. The likely certainty of removal cannot justify a sentence that is
    inconsistent with the fundamental purpose and applicable sentencing principles
    of the
Criminal
    Code
.

[83]

It
    is for these reasons that I would not permit the appellant to withdraw his
    guilty plea on the basis that it was uninformed.

Ground #2: The Ineffective Assistance of Counsel

[84]

This
    ground of appeal is discrete from, yet related to the claim that the
    appellants plea of guilty was uninformed. Having already determined that the
    plea of guilty was not uninformed, there is no need to retill the same ground
    in connection with this issue.

The Added Background

[85]

In
    his affidavit filed in support of his claim that his plea of guilty was
    uninformed and that his counsel provided ineffective assistance, the appellant
    alleged that counsel never showed him the Crown disclosure or advised him of
    the available modes of trial. He did not anticipate deportation would follow
    conviction and sentence without any right to challenge the order on appeal as
    he said in his affidavit:

I plead guilty as I never expected that as a result of my
    guilty plea and sentence, deportation order is imminent. I thought that I will
    get warning from the immigration and that everything will be over. I plead
    guilty as I knew that I spent a lot of time in custody and there is no surety.
    I also knew that if I went to trial, my wife will not come to court to testify
    against me.

[86]

The
    appellant also asserted that trial counsel never said anything to him about
    speaking to an immigration lawyer after the appellant told counsel of his
    immigration status. Nor did counsel ever suggest apportioning the
    pre-disposition custody credit to ensure that no sentence exceeded six months
    in custody.

[87]

Trial
    counsel responded that he reviewed Crown disclosure with the appellant on five
    occasions when they met in the courthouse cells. Counsel recommended trial in
    the Ontario Court of Justice based on the uncomplicated facts, the lack of any
    viable defences and the fact that the appellant would likely remain in custody
    pending trial because of his record, breach of probation orders and lack of a
    surety. Counsel told the appellant to stay out of trouble because further
    offences would likely increase the length of any sentence he would later have
    imposed upon him, and that any sentence exceeding six months would mean that he
    could not appeal the removal order. The appellant did not have any interest in
    retaining an immigration lawyer because he told counsel that he intended to
    return to India where he could collect an inheritance.

The Arguments on Appeal

[88]

In
    support of his claim that trial counsel provided ineffective assistance, the
    appellant relies upon what he says were three critical failures that resulted
    in a miscarriage of justice:

i.

the
    failure to advise the appellant the sentence of imprisonment of six months or
    more meant that he had no right of appeal from a removal order;

ii.

the
    failure to discuss with the Crown or seek from the sentencing judge an order
    apportioning credit for pre-disposition custody so that the custodial term did
    not exceed six months; and

iii.

the
    failure to expressly raise immigration consequences as a mitigating factor on
    sentence.

[89]

The
    respondent contends that the appellant has failed to establish the facts
    essential to underpin his claim of ineffective assistance. The trial counsels
    affidavit and cross-examination contradict the appellants claims. Additionally,
    it is clear that the appellant was aware, after the visit from the Immigration
    Enforcement Officer the day before he pleaded guilty, of the significant impact
    a custodial sentence of six months or more would have on his right to appeal
    any removal order. Despite this information, the appellant agreed to plead
    guilty knowing that the sentence to be jointly proposed was 12 months in
    custody.

[90]

The
    respondent says that the expanded record fails to support the appellants claim
    that he would have pleaded not guilty and proceeded to trial if he had
    information about the lost right of appeal on imposition of a jail sentence of
    six months or more. And the assertion that the sentence imposed would not
    exceed six months thus leaving a right of appeal, had his counsel made
    submissions about apportioning credit for pre-disposition custody, was not at
    all viable. To do so would have been to impose a sentence that would offend the
    lessons of
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras.
    13-16, 24.

The Governing Principles

[91]

The
    principles that govern determination of claims of ineffective assistance of
    counsel at trial are well settled. An appellant must establish:

i.

the
    facts on which the claim is grounded;

ii.

the
    incompetence of the representation provided by trial counsel (the
performance
component); and

iii.

a miscarriage of
    justice as a result of the incompetent representation by trial counsel (the
prejudice
component).

See
R. v. Cherrington
,
    2018 ONCA 653, at para. 25.

The burden settled upon the
    appellant is not easily satisfied:
R. v. G. (D.M.)
, 2011 ONCA 343, 275
    C.C.C. (3d) 295, at paras. 100-101.

[92]

Once
    the facts that underpin the claim have been established, the ineffective
    assistance analysis begins with the prejudice component. This component engages
    a determination of whether a miscarriage of justice has occurred. Either
    because of some procedural unfairness in the proceedings, a compromise of the
    reliability of the verdict or some combination of both consequences:
R. v.
    B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 28, 34;
Cherrington
,
    at para. 27. Where the reviewing court does not make a finding of prejudice, it
    is undesirable for the court to conduct an inquiry into and render a conclusion
    upon the performance component:
B. (G.D.)
, at para. 29;
R. v.
    Lavergne
, 2017 ONCA 642, at para. 17.

The Principles Applied

[93]

For
    the brief reasons that follow, I would not give effect to this ground of
    appeal.

[94]

The
    decision on this ground of appeal is largely pre-determined by rejection of the
    claim that the appellants guilty plea was uninformed because he was unaware of
    the legally relevant collateral consequences of it  deportation. The principal
    contaminant upon which the appellant relied to found his assertion of ignorance
    was the failures of counsel. Since I have found the information gap claim
    unavailing, the alleged inadequacies of counsel are somewhat beside the point.
    The trial judge was also aware that immigration consequences were in play
    because, in his submissions on sentence, defence counsel told the judge that
    the appellant was to report to immigration on release from custody. An experienced
    trial judge would have no difficulty in fathoming the reason for the attendance
    or the likely consequence.

[95]

The
    full burden of establishing prejudice then rests on the impact of the failure
    of trial counsel to discuss with the Crown or submit to the judge an
    apportionment of the credit for pre-disposition custody in such a way that the
    custodial portion of the proposed 12-month sentence would not exceed six
    months.

[96]

This
    failure had no effect on the reliability of the result of the proceedings. The
    appellant pleaded guilty. His plea of guilty was voluntary, unequivocal and
    informed. The legal effect of that plea and the congruity of the admitted facts
    with the essential elements of the relevant offences resulted in inevitable
    convictions.

[97]

It
    is also far from clear that this apportionment device is so readily available
    to sentencing judges. To the extent its application would run afoul of the
    principle accepted in
Pham
,
that the risk of deportation cannot justify imposing a sentence inconsistent
    with the fundamental principles of proportionality, it cannot assist.

[98]

Nothing
    that occurred here compromised the fairness of the proceedings either in
    connection with the entry of the conviction or the determination of a fit
    sentence.

[99]

The
    appellant also invited us to rework the sentencing calculus to achieve a result
    his counsel should have obtained had he done so at trial. I see no reason to do
    so. For a spousal abuse recidivist and serial probation order violator, the
    sentence imposed could be seen as rather lenient.

CONCLUSION

[100]

I would dismiss the
    conviction and sentence appeals in their entirety, other than to remit any
    victim fine surcharge that has been paid in light of the Supreme Courts
    decision in
R. v. Boudreault
, 2018 SCC 58, 50 C.R. (7th) 207.

Released: AH MAR 13 2019

David Watt J.A.

I agree. Alexandra
    Hoy A.C.J.O.

I agree. Edward Then
    J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry, 2019 ONCA 229

DATE: 20190321

DOCKET: C65327

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohan Henry

Appellant

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard and released orally: March 18, 2019

On appeal from the conviction entered by Justice John
    Ritchie of the Ontario Court of Justice on October 16, 2017, and from the sentence
    imposed on December 13, 2017.

REASONS FOR DECISION

[1]

The appellant submits that the transcript of the complainants evidence
    suggests that a police officer may have condoned the complainant lying in his
    statement to police. This suggestion was not addressed by the trial judge in
    his assessment of the complainants credibility. In the appellants view, this
    failure infected the entire proceeding and undermined the trial judges
    acceptance of the complainants testimony as well as the appellants
    conviction.

[2]

We disagree.

[3]

From our review of the transcript, the complainants evidence was
    somewhat confusing and we are not satisfied that the suggestion advanced by the
    appellant is the only interpretation of that evidence. In any event, as this
    concern was not raised or pursued at trial, the trial judge cannot be faulted
    for his failure to deal with the concern now being raised by the appellant for
    the first time. The trial judge, in his reasons, dealt with the inconsistencies
    between the complainants statement to police and his in-court testimony. He
    accepted the in-court testimony as being true and we see no basis to interfere
    with this assessment of the evidence.

[4]

Significantly, in this case, there was also other substantial incriminating
    evidence. In our view, therefore, the conviction was fully supported by the record.

[5]

As for the sentence appeal, an eight-year total sentence, less two years
    credit for pre-sentence custody, was well within the appropriate range, given the
    serious nature of the offences, including an armed robbery with a fully loaded
    semi-automatic handgun pointed directly at the complainant and in light of the
    appellants lengthy criminal record, including another conviction for armed
    robbery.

[6]

The appellant argues that the trial judge erred by failing to take a gap
    in his criminal record into account. We disagree. The trial judge specifically adverted
    to that gap on two occasions. Even in light of the gap, the sentence was
    entirely fit.

[7]

Finally, with respect to the victim fine surcharge, the Crown concedes
    that in light of the recent decision in
R. v. Boudreault
, 2018 SCC 58,
    50 C.R. (7th) 207, the victim fine surcharge ought to be removed.

[8]

As a result, the conviction appeal is dismissed. Leave to appeal sentence
    is granted, but the sentence is varied only to the extent of striking the
    victim fine surcharge.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Higgins, 2019 ONCA 191

DATE: 20190308

DOCKET: C66014

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Higgins

Appellant

Jeffery Couse, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally: March 7, 2019

On appeal from the sentence imposed on June 21, 2018 by
    Justice Anne M. Molloy of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal the sentence imposed after he was
    convicted of robbery of a gas station convenience. He was sentenced to 30
    months custody, less credit for 8.5 months of pre-sentence custody, which
    resulted in an effective sentence of 21.5 months.

[2]

To succeed on appeal the appellant must establish that the sentencing
    judge made an error in principle that impacted the sentence, or that the
    sentence is demonstrably unfit.

[3]

The appellant submits the sentencing judge erred in characterizing his
    prior sentences as lenient and that the sentence is demonstrably unfit.

[4]

We accept the appellants argument it was inappropriate for the sentencing
    judge to describe his previous sentences as lenient. However, we are not
    persuaded that observation had any impact on the sentence imposed. The
    sentencing judge properly considered the appellants extensive criminal record.
    She noted eight separate probation orders had been ineffective. The appellant
    also had received 14 separate convictions for breaching court orders.

[5]

The sentencing judge also considered his alcohol and drug use. We note
    he was extremely inebriated at the time of the offence. The record supports the
    sentencing judges conclusion that the appellants inability to control his
    addictions in the past was related to his criminal conduct. She considered his
    need for meaningful programs for his drug and alcohol addictions.

[6]

While the sentence imposed was some nine months longer than the
    appellants previous sentence, it was proportionate to the gravity of the
    offence and reflected the increase in the appellants violent and dangerous
    conduct. Clerks working alone late at night in gas station convenience stores
    the robbery took place at 1:30 a.m.  are particularly vulnerable. We are
    satisfied the sentence was fit.

[7]

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

R.G. Juriansz J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jassem, 2019 ONCA 162

DATE: 20190301

DOCKET: C61009

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rusol Jassem

Appellant

Richard Litkowski, for the appellant

Andrew Cappell, for the respondent

Heard: February 26, 2019

On appeal from the conviction and the sentence imposed on
    August 18, 2015 by Justice Edward Kelly of the Ontario Court of Justice.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted of attempted fraud over $5,000 (contrary to
    s. 380(1) of the
Criminal Code
) and public mischief (contrary to
    s. 140(1) of the
Criminal Code
). The convictions arise out of the
    appellants purportedly false report to police and her insurer that her car had
    been stolen.

[2]

On appeal, the appellant argues that the trial judge erred by
    misapprehending evidence and by drawing an adverse inference from the appellants
    failure to call her father or brother to testify at trial.

Facts/Background

[3]

The appellant, a student, claimed to have purchased a used 2008 BMW 535i
    (the BMW) on December 20, 2010 for $34,000. She claimed to have purchased the
    car from a man named Wissam Abudayyeh, who was a friend of her brother. She
    testified that her father paid $16,000 towards the purchase of the car, and
    that she paid the remainder of the purchase price with cash she had previously
    withdrawn in smaller increments from her OSAP monies.

[4]

On August 6, 2011, she reported to the police that the BMW had been
    stolen from a plaza parking lot. She had traveled from Brantford to Toronto
    with her brother and her child and reported that the car was stolen from a
    parking lot while they were eating out and shopping. The car was never located.
    She subsequently filed an insurance claim with Desjardins General Insurance
    Group (Desjardins) for $38,420. Desjardins investigated the claim. When a BMW
    technician scanned the computer chip in the appellants car key (which she
    testified was the only key she had for the BMW) it revealed that the key had
    last been used to enter the vehicle on April 20, 2010  eight months before the
    appellant purportedly purchased the car and the day after the vehicle was
    involved in an accident in the United States (prior to being imported into
    Canada). Desjardins eventually denied the insurance claim and the appellant was
    charged criminally.

[5]

In the course of trial, the parties entered into an agreed statement of
    facts. Among other matters, the parties agreed that Jasbir Seeder, the owner
    and operator of Seeder Auto Centre, conducted a vehicle emissions test on the
    BMW on February 17, 2011. A person who identified himself as Mustafa brought
    the vehicle to Seeder Auto Centre and paid for the emissions test. At the time,
    the vehicle did not have licence plates. The mileage was 80,901 kilometers. The
    vehicle key had to be in the ignition to do the emission test. That factor
    conflicts with the analysis of the key surrendered by the appellant that indicated
    her key had not been used since April 20, 2010.

Trial Judges Reasons

[6]

After engaging in a lengthy review of the evidence and setting out the
    principles from
W.(D).
, the trial judge concluded that the appellant
    was not a credible witness. He found that she was an unresponsive witness and
    that her testimony at trial was inconsistent with her explanations prior to
    trial and the other evidence. Much of her testimony was simply implausible.
    The trial judge noted the following, specific areas of concern with respect to
    her evidence:

(i)

The purchase financing

The appellant had testified that she received a
    $27,000 lump sum payment from OSAP, but this was not reflected in her banking
    records. It made no sense that the appellant would pay for the vehicle by
    making several cash withdrawals that she then kept in a bag in her home.

Further, it did not make sense that the appellant
    would pay with cash, rather than certified cheque or money order, given that
    she did not know Abudayyeh, the purported seller of the car, well.

(ii)

The vehicle purchase

The trial judge acknowledged that the Abduayyehs
    testimony was internally consistent However, the seller had testified that he
    received $34,000 in cash from the appellants father, which did not corroborate
    the accuseds account of the purchase and her financial contribution to the
    purchase. Further, it was also necessary to carefully scrutinize Abduayyehs
    evidence in light of the February 17, 2011 emissions report from Seeder Auto,
    the key scan report and the appellants failure to produce any bill of sale.

(iii)

The vehicle registration

It was not plausible that the odometer reading would
    increase by 35,000 kilometers from December 20, 2010 when she testified she
    first registered the vehicle to the next registration by her on February 23,
    2011.

(iv)

The February 17, 2011 emissions test

The appellant had no explanation for the February 17,
    2011 emissions test and how a person unknown to her had taken the car for that
    test. Moreover, the fact that the vehicle did not have plates at the time of
    the test suggested it was not being operated at that time.

(v)

Inconsistencies in timeline

There were inconsistencies in the timeline leading to
    the theft of the car, as reported to police. While the appellant told police
    she arrived at the plaza at approximately 6:30 p.m. and went to Popeyes, the
    receipt from Popeyes that the appellant provided to the Desjardins
    investigators showed that her meal was not purchased until 8:02 p.m.

(vi)

Failure to produce bill of sale

The trial judge found that it was not believable that
    that the insurance investigators would not have requested a bill of sale for
    the vehicle, or that the appellant would not realize she would have to submit
    such documentation in support of her claim.

[7]

For these reasons, the trial judge concluded that the appellants
    testimony did not raise reasonable doubt as to her guilt.

[8]

The trial judge then considered the evidence tending to establish the
    appellants guilt. He concluded that the key scan evidence (showing that the
    key had not been used to access the car since April 20, 2010) was reliable and
    highly probative and that there was no reason to believe the system was
    malfunctioning. He found that the key provided by the appellant had not been
    used to enter or operate the vehicle after April 20, 2010. As a result, the
    trial judge had no doubt that the appellant was lying about the theft.

[9]

The trial judge further concluded that  even in the absence of the key
    scan report  there was sufficient evidence to establish the appellants guilt
    beyond a reasonable doubt. In this vein, the trial judge relied primarily on
    the February 17, 2011 emissions test, which the appellant had failed to explain.
    In this context, the trial judge noted that the appellant had not called her
    father or brother to testify, and made the following observation:

The accused did not call her
    father or brother to testify. There is no onus on the defence to produce evidence
    to corroborate the accuseds testimony. It is impermissible to draw an
    inference of guilt from the failure of the defence to call material witnesses.
    However, an inference may be drawn that the witnesses evidence would not have
    been favourable to the defence. The accused simply did not offer any meaningful
    response to the emissions test evidence which contradicted her assertions that
    she had active control over the car.

[10]

As
    a result, the trial judge found the appellant guilty beyond a reasonable doubt
    of attempted fraud, attempted false pretences and public mischief. He stayed
    the attempted false pretence count pursuant to
Kienapple
, and entered
    convictions on the other counts.

Grounds of appeal

[11]

The
    appellant submits that the trial judge materially misapprehended evidence and
    made impermissible inferences from that evidence. She submits in particular,

(a)

The trial
    judge overlooked gaps and frailties in the testimony of insurance
    investigators, including their failure to make inquiries of the company that first
    registered ownership of the vehicle in Ontario and to explore other issues
    related to the importation of the car from New York.

(b)

The trial
    judge overemphasized the strength of the circumstantial evidence suggesting
    that more than one key for the car existed.

(c)

The trial
    judge overemphasized the reliability and probative value of the key scan
    results, in the face of gaps in the evidence as to the history of the car and
    the potential impact on the key scan results from other events (most notably
    the prior accident);

(d)

The trial
    judge overlooked the appellants evidence that she had been driving the car
    during relevant time periods and other evidence tending to support her
    evidence.

[12]

The
    appellant also submits that the trial judge erred in drawing the inference that
    the evidence of her brother and father would not be of assistance to her, and
    tacitly reversed the onus of proof by drawing this inference.

Analysis

[13]

We
    would not give effect to these grounds of appeal. There was no misapprehension
    of the evidence. The conclusions reached by the trial judge were reasonably
    available to him on the evidence. The appellant essentially asks this court to
    re-try this case and re-weigh the evidence.

[14]

The
    trial judge specifically referred to the limits to the insurers investigation.
    The only logical conclusion on the evidence was that more than one key for the
    car existed, and that the key the appellant said she used had not been used for
    some 16 months. However, another key must have been used to conduct the
    emission testing at a time when the vehicle had no licence plates, and was
    brought in for testing by some unknown person.

[15]

The
    appellant claimed that either her brother or father must have brought the car
    in for emission testing, yet neither had the name given by the person who
    brought the car in for that purpose. She also said her brother was with her
    when the car was stolen.

[16]

In
    these circumstances, the trial judge did not err in drawing the limited
    inference that their evidence would not have been favourable to the defence. He
    specifically noted that there was no onus on the defence. In any event the
    trial judge drew that inference only in relation to his alternate path to
    conviction, and the inference did not affect the primary basis which is
    unaffected by any other error.

[17]

The
    appeal from conviction is accordingly dismissed. The appellant did not pursue her application for leave to appeal sentence, and that application is accordingly dismissed as abandoned.

G. Pardu J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION
:
R. v. Jonah,
2019
    ONCA 207

DATE: 20190314

DOCKET: C65756

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristoffer Jonah

Appellant

Robin Parker, for the appellant

Erica Whitford, for the respondent

Heard: March 11, 2019

On appeal from the conviction entered on April
    25, 2013 by Justice D.A. Harris of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of the oral hearing, we dismissed this appeal for
    reasons to follow. These are our reasons.

[2]

On April 25, 2013, the trial judge convicted the appellant of arson in
    relation to a fire that occurred at his home on April 5, 2011.

[3]

The appellant appeals from his conviction and asserts that a miscarriage
    of justice occurred due to the ineffective assistance of his trial counsel.

[4]

In oral argument, the appellant advanced two main arguments in support
    of this ground of appeal and abandoned the third argument set out in his
    factum.

[5]

The appellant's first argument is that his trial counsel failed to
    properly cross-examine his former fiancé, L.R., the only alternative suspect
    who could have set the fire.

[6]

Concerning this issue, the appellant has not established a reasonable
    probability that a different cross-examination strategy would have resulted in
    a not guilty verdict. Although the trial judge noted in his reasons that L.R.
    was not challenged in cross-examination on several aspects of her evidence, he
    also concluded that the defence theory that L.R. might have started the fire
    was implausible. In his view, it was simply not realistic that L.R. could have
    accomplished all that was necessary for her to have started the fire within the
    window of time available - and to have done so without sustaining any visible
    injuries, without waking the appellant (who claimed he was sleeping in the
    master bedroom where the fire occurred) - and to have driven off without being
    seen by anyone. The appellant has not demonstrated any palpable and overriding
    error in the trial judge's conclusion. Nor has he presented as part of his
    fresh evidence application any evidence to undermine the trial judge's
    conclusion. In the circumstances, we conclude it is not reasonably probable
    that any failure to cross-examine L.R. concerning, in particular, any potential
    motives she might have had for starting the fire, and any failure to challenge
    L.R. about whether she had started the fire or sent a particular text message
    (matters which she had denied in examination in-chief), would have affected the
    verdict.

[7]

The appellant's second argument is that trial counsel overrode his
    desire to testify and improperly failed to call other defence evidence.

[8]

We reject this argument. Prior to the date on which the defence case was
    to be presented, the appellant acknowledged in writing that he had discussed
    the advantages and disadvantages of testifying with trial counsel, knew that
    his trial was his one opportunity to give his version of the events, and was
    content not to give evidence because he was satisfied that his statement to the
    police, which the Crown had presented at trial, set out his version of the
    events.

[9]

In the face of this acknowledgement, and in the absence of any evidence
    demonstrating the extent or impact of any mental health issues the appellant
    claims he may have been suffering as of the time of signing the
    acknowledgement, we are not satisfied that the appellant has established that
    he was not able to make an informed decision about whether to testify. As was
    the case in
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), the
    direction was signed during the trial and sets out in clear language the appellants
    decision not to give evidence and the basis for the decision.

[10]

We
    note as well that even though the appellant discharged trial counsel following
    his conviction because he could no longer afford trial counsels services, he
    later requested, and trial counsel agreed to represent him on sentencing. This
    factor, as well, belies the appellants post-conviction claims that counsel
    overrode his desire to testify.

[11]

Similarly,
    the appellant has not led any evidence that demonstrates a reasonable probability
    that the evidence of others would have affected the verdict. His mother's
    evidence of a telephone call with her son the evening before the fire did not
    rebut L.R.'s evidence of conflict that evening; nor did it assist with the
    issue whether the appellant had texted L.R. on the morning of the fire.

[12]

We
    conclude that the appellant has failed to establish the prejudice component of
    the test for ineffective assistance of counsel. In these circumstances, it is
    neither necessary nor desirable that we address the performance component:
R.
    v. G.D.B.
, 2000 SCC 22.

[13]

The
    appeal is therefore dismissed.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


WARNING

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

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

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

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kazi, 2019 ONCA 167

DATE: 20190305

DOCKET: C63412

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shudeep Kazi

Appellant

Michael Bryant, for the appellant

Andrew Hotke, for the respondent

Heard: February 26, 2019

On appeal from the conviction entered on November 30,
    2016 and the sentence imposed on March 1, 2017 by Justice D. McLeod of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of luring a child for sexual purposes and
    sentenced to nine months in custody. He appeals the conviction, the trial
    judges dismissal of his 11(b) application and the sentence.

[2]

The appellant submits that all three of the trial judges decisions are
    defective. He argues that  in addition to errors of law - they are tainted by
    a series of missteps by the trial judge followed by unsatisfactory explanations
    which in turn led to inordinate delays between the hearings and the decision.

Conviction

[3]

When he rendered his oral reasons for conviction, the trial judge explained
    that his reasons were somewhat fragmented because he had encountered computer
    issues and was essentially going from rough notes. The appellant says that the
    resulting reasons were fragmented and not capable of appellate review.

[4]

We do not agree.

[5]

There was one issue at trial: did the appellant send the impugned
    messages to the complainant. The complainants credibility was not in issue. It
    was acknowledged that the messages were received. The content fully supported
    the charges. The trial judge explained why he was satisfied beyond a reasonable
    doubt that the appellant had sent the messages. That explanation included a
    detailed and reasoned rejection of the appellants denial. In these
    circumstances, the reasons are satisfactory.

11(b) Application

[6]

The 11(b) application was argued on October 20, 2017. The trial judge
    dismissed the application without reasons on January 5, 2018. In May 2018
    counsel were asked to provide replacement factums to the court as the originals
    had been inadvertently destroyed. The written reasons were sent to the parties
    on July 6, 2018. The appellant submits that the request for the factums coupled
    with eight month delay between argument and release of reasons compromise the
    integrity of the reasoning process. He argues that the reasons reflect a
    justification for his earlier decision, not a reasoned analysis.

[7]

We do not agree. The trial judge meticulously charted the time from
    charge to conviction and we see no basis to infer that the reasons were
    compromised because of the delay.

[8]

The appellant further submits that the trial judge erred by dismissing
    the application.

[9]

Again, we do not agree.

[10]

The
    information was sworn on January 9, 2015. The verdict was rendered on November
    30, 2016. Six months before the verdict,
Jordan
was released. The
    trial judge determined that the 23 months from charge to verdict should be
    reduced by 10 months to 13 months as a result of defence delay caused by
    adjournments and unavailability. We see no error in his analysis, which
    resulted in a net delay to verdict of 13 months. This is 5 months under the
Jordan

ceiling.

[11]

The
    post-verdict delay from November 30, 2016 to the sentencing decision on January
    15, 2018 is a period of 13 months. There were four months attributable to
    defence delay arising from the 11(b) application leaving a net delay of nine
    months. Even if the
Jordan
ceiling is applied to the entire time from
    charge to sentence, the case is only four months over the presumptive ceiling.
    However, the first 17 months of the pre-verdict time was when the parties were
    operating under the previous framework. Applying the transitional provisions in
    context, the time to sentence does not markedly exceed what was reasonably
    required.

Sentence

[12]

We
    agree with the appellant that the sentencing reasons are problematic. The trial
    judge orally imposed a nine months sentence; the reasons  six months later -
    imposed 10 months. The trial judge gave no consideration to the mitigating
    factor of strict house arrest which were bail conditions for a considerable
    time. Although he relied on
Morrisson
which
sentenced the offender to 75 days, he did not
    distinguish it. That said, we agree with the trial judges comments that the
    appellant, in a position of trust with the complainant, was in a position to
    fast track his requests of a sexual nature. This was an aggravating factor.

[13]

The
    Crown fairly concedes that this court could approach the sentence
de novo
.
    In all the circumstances and as a matter of fairness we reduce the sentence to six
    months.

Summary

[14]

The
    conviction appeal is dismissed. The sentence appeal is allowed and the sentence
    is reduced to six months.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.