COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buckley, 2015 ONCA 364

DATE: 20150521

DOCKET: C58906

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danielle Buckley

Appellant

Misha Feldmann, for the appellant

Cindy Afonso, for the respondent

Heard:  May 19, 2015

On appeal from the conviction entered by Justice Leitch
    of the Superior Court of Justice, dated March 3, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The reasons of the trial judge are adequate.  She reviewed the evidence
    at length.  She accepted the officers evidence as to the purpose of his
    search.  That evidence was not controverted.

[2]

As to the search of the vehicle, the appellant accepts that there will
    be cases where a search of the glove box and console for the relevant documents
    (insurance, ownership and registration) will be lawful, but argues that on
    these facts the search could not be justified.

[3]

We need not explore the meaning of the dicta in
Belnavis
, at
    para. 28, relied on by the Crown to support his position.  In our view, even if
    the search could be said to constitute a violation of the appellants s. 8
    rights, the evidence could not be excluded under s. 24(2).

[4]

On the trial judges findings, which we accept for this purpose, the
    officer acted in good faith and in an effort to help the appellant.  The
    assumed breach of s. 8 was an isolated act in an otherwise entirely proper
    interaction between the officer and the appellant.  The police conduct falls at
    the very low end of the blameworthiness scale.

[5]

The seriousness of the violation of the appellants rights is also
    minimal.  Her privacy interest in the inside of the console and glove box of a
    car she did not own and was not allowed to drive can only be described as
    minimal.  This factor does not favour intrusion.

[6]

The third
Grant
factor, as always, favours admission,
    especially given the centrality of the seized evidence to the charge.

[7]

The evidence could not be excluded under s. 24(2).  The appeal is
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buoc, 2015 ONCA 341

DATE: 20150513

DOCKET: C59009

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alam Buoc

Appellant

Diane Condo, for the appellant

David Lepofsky, for the respondent

Heard and released orally: May 7, 2015

On appeal from the conviction entered on February 14,
    2014 by Justice Heidi S. Levenson Polowin of the Superior Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for several offences including
    possession of cocaine for the purpose of trafficking and possession of a
    firearm with ammunition.

[2]

While driving he was stopped by a police officer who arrested him for
    failing to stop and for driving under suspension. After the arrest, the officer
    searched his vehicle and found the cocaine and the firearm. The trial judge
    found the police officers search of the vehicle infringed the appellants
    right under s. 8 of the
Charter
. But after finding the officer had
    acted in good faith, the trial judge concluded the admission of the evidence
    uncovered by the search would not bring the administration of justice into
    disrepute and admitted the seized cocaine and the firearm into evidence.

[3]

On appeal, appellants counsel takes issue with the trial judges
    finding that the officer acted in good faith. Counsels review of the evidence,
    however, has not persuaded us that the trial judges finding of good faith was
    incorrect.

[4]

Counsel, while recognizing the trial judge articulated the correct test
    for whether evidence should be admitted under s. 24(2), goes on to submit the
    trial judge arrived at the wrong result after applying the s. 24(2) balancing.

[5]

We do not accept the submission. Given that the trial judge considered
    the proper factors, we must accord considerable deference to her ultimate
    determination. We are not persuaded there is any basis to interfere.

[6]

We did not call on the Crown, but we note that in its factum, the Crown
    takes the position there was no breach of s. 8. In light of our decision, it is
    not necessary to deal with that argument.

[7]

The appeal is dismissed.

R.G. Juriansz J.A.

Paul Rouleau J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2015 ONCA 346

DATE: 20150515

DOCKET: C54947

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lorne Campbell

Appellant

Jonathan Bliss, for the appellant

Melissa Adams, for the respondent

Heard: April 30, 2015

On appeal from the conviction entered by Justice Ramez
    Khawly of the Ontario Court of Justice on May 13, 2011, and the sentence
    imposed on May 13, 2011.

ENDORSEMENT

[1]

The appellant was convicted of knowingly violating a condition of his Long
    Term Supervision Order that he not view or possess pornography.

[2]

Between 2:30 and 4:30 a.m., the appellant and another resident were
    observed watching
Latin Lovers 2
on cable television at the half-way
    house where both resided.  The security guard who was on duty that night
    testified that the two men were watching pornography. The other resident also
    described the programme as pornographic, as did the appellants parole officer.

[3]

At trial, the Crown called the security guard, the other resident, and
    the appellants parole officer as witnesses. The appellant did not testify.

[4]

A DVD of the programme was made an exhibit at trial. It was one hour and
    twenty minutes in duration, was divided into two episodes, and was segmented
    into scenes. The language of the DVD was Spanish.  There were no subtitles. The
    DVD was fast forwarded in open court and paused to view the segments that the
    Crown alleged were pornographic.

[5]

The trial judge concluded that the programme was pornographic and that
    the appellant had knowingly viewed pornography in violation of a condition in
    his Long Term Supervision Order.

[6]

In this court, the appellant advanced two grounds of appeal.

[7]

First, he submitted that the trial judge erred by not watching the
    entire DVD and therefore failed to consider the context of the programme. He
    does not take issue with the trial judges definition of pornography. Rather,
    he submits that the trial judge failed to consider whether the evidence, as a
    whole, satisfied that definition.

[8]

We disagree with the appellants submission. The DVD was played in open
    court. The dialogue of the DVD was Spanish. There was no evidence that the
    appellant spoke or understood Spanish.  There were no subtitles. While the DVD
    was fast forwarded in open court and paused to view the segments that the Crown
    alleged were pornographic, the trial judge saw the entire programme.

[9]

We do not accept that the trial judge erred in viewing the DVD in the
    manner in which he did. He considered the context and based on his review, it
    was open to him to determine that it constituted pornography within the meaning
    of the condition included in the Long Term Supervision Order.

[10]

Second,
    the appellant submits that even if one accepts that the programme constituted
    pornography, the trial judge erred in applying an objective standard of
mens
    rea
.

[11]

Again,
    we disagree. In his reasons for conviction, the trial judge found that the
    appellant knew he was watching pornography. There was ample evidence in the
    record to support this finding including, in particular, the evidence of the
    security guard, and the appellants flipping of the channels to try and
    disguise the fact that he was watching the programme. Moreover, the conditions
    of the Long Term Supervision Order had been reviewed with the appellant and he
    had acknowledged his understanding of the conditions. We would not give effect to
    this ground of appeal.

[12]

While
    the appellant included an appeal from sentence in his notice of appeal, he
    advanced no submissions on sentence in either his factum or oral argument.  In
    any event, we see no reason to interfere with the sentence.

[13]

The
    conviction appeal is therefore dismissed.  Leave to appeal sentence is refused.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cattral, 2015 ONCA 315

DATE: 20150507

DOCKET:
C57957

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

BETWEEN

Her Majesty the Queen

Respondent

and

Robert David Cattral

Appellant

Robert B. Carew, for the appellant

Melissa Adams, for the respondent

Heard: April 13, 2015

On appeal from convictions entered on December 18, 2012, by
    Justice Diane M. Lahaie of the Ontario Court of Justice, with reasons reported
    at [2012] O.J. No. 6650.

Doherty J.A.:

[1]

This is a conviction appeal. The appellant also submits that if he is
    successful in quashing any of the convictions, his sentence should be reduced
    to reflect that success.

[2]

The appellant faced 22 charges. The trial judge convicted on 11. Eight
    of the convictions involved allegations that the appellant had breached the
    terms of the bail on which he had been released pending his appeal from
    convictions registered in an earlier proceeding. I will refer to these as the
    breach charges. The other three convictions involved allegations that the
    appellant was in possession of materials or devices knowing that they had been
    used, were adapted to be used, or intended to be used in forging or falsifying
    credit cards: see
Criminal Code
,
    R.S.C. 1985, c. C-46,
s. 342.01(1)(b). I will refer to these as the
    forgery-related charges.

[3]

The appellant received a sentence of 18 months on each of the breach
    charges. The sentences were concurrent to each other and concurrent to the sentences
    imposed on the forgery-related charges. The trial judge imposed a sentence of
    3½ years concurrent on each of those charges. The total sentence of 3½ years was
    made consecutive to the sentences being served by the appellant as a result of
    his convictions in the earlier proceeding.
[1]

[4]

On this appeal, counsel submits that all but one of the convictions are unreasonable
    and unsupported by the evidence. Counsel also submits that the trial judge
    erred in holding that the appellants involvement in the criminal activity that
    had led to his earlier convictions was evidence of his knowledge or intent at
    the time he was found in possession of the devices and materials that are the
    subject of the three forgery-related charges. Counsel argues that the trial judge
    improperly used the evidence of the appellants prior discreditable conduct to
    conclude that he engaged in the conduct alleged in the forgery-related charges.

[5]

For the following reasons, I would dismiss the appeal, except as it
    relates to count 4. I would allow the appeal on that charge, quash the
    conviction, and enter an acquittal. I would not vary the totality of the
    sentences imposed on the appellant.

The Breach Charges

[6]

On six of the eight breach charges (counts 7, 10, 11, 13, 15 and 17),
    the appellants liability turned on whether he was in possession of the devices
    or materials referred to in each count. The appellants bail prohibited
    possession of those devices and materials. Counsel for the appellant submits
    that the convictions on these counts, with the exception of count 17, are
    unreasonable as on the evidence the trial judge could not properly conclude
    that the appellant was in possession of the devices and materials referred to
    in each count. The appellant does not challenge his conviction on count 17.

[7]

Count 2 alleged that the appellant had breached his bail by continuing
    to operate, directly or indirectly, the business of Canadian Barcode. The
    appellant had used Canadian Barcode to operate the sophisticated, full-service
    credit card forgery business that had led to his convictions in the prior
    proceeding. His bail terms prohibited the appellant from operating that
    business directly or indirectly. The Crown alleged that the appellant had
    continued his operation of the Canadian Barcode business through a company called
    Buy-Clik Canada. The trial judge accepted this submission and convicted the
    appellant on count 2.

[8]

The appellant argues that the trial judges finding that the business of
    Buy-Clik Canada was a continuation of the Canadian Barcode business was
    unreasonable, as was the finding that the appellant was in charge of the
    Buy-Clik Canada operation. Counsel for the appellant submits that on the
    evidence the appellant was only an employee at Buy-Clik Canada.

[9]

Count 1, the other breach charge, alleged a failure to keep the peace. The
    appellant accepts that if he is convicted on any of the other charges, a
    conviction on count 1 must follow.

The Forgery-Related Charges

[10]

Counts
    3, 4 and 5 alleged possession of materials or devices that the appellant knew had
    been used, adapted for use, or were intended for use in forging or falsifying
    credit cards. The Crown had to prove, first, that the appellant was in
    possession of the devices or materials and, second, that the appellant had the
    state of mind required by the offence creating provision.

[11]

The
    possession issue on the forgery-related counts was the same as the possession issue
    on the breach counts. The Crown alleged that the appellant was in possession of
    the devices and materials referred to in counts 3, 4 and 5 because they were found
    in various rooms at the Buy-Clik Canada business premises which, on the Crowns
    theory, was controlled by the appellant.

[12]

On
    the state of mind issue, the Crown relied on the evidence of the nature of the
    materials and devices, statements made by the appellant to the police, parts of
    the appellants testimony, an expert report prepared for the Crown and admitted
    on consent, and the appellants extensive involvement in the operation of
    Canadian Barcode. The Crown contended that the appellant had continued the
    Canadian Barcode business using Buy-Clik Canada and that the devices and
    materials found on the Buy-Clik Canada premises were intended to be used in
    forging or falsifying of credit cards just as similar devices and materials
    found on the Canadian Barcode premises had been used for those purposes.

[13]

The
    trial judge found that evidence of the appellants conduct in the operation of the
    Canadian Barcode business was admissible to show that he knew that the materials
    and devices found on the Buy-Clik Canada business premises had been used,
    adapted for use, or were intended for use in forging or falsifying credit
    cards. The trial judge did indicate, however, that this evidence did not play a
    central role in her findings on counts 3, 4 and 5. The appellant submits that it
    should have played no role.

Was the Trial Judges Finding that the Appellant was in
    Possession of the Material Found on the Buy-Clik Canada Business Premises
    Unreasonable?

[14]

The
    task of considering the reasonableness of the trial judges findings is made
    easier by her detailed review of the evidence. She examined the entirety of the
    evidence at some length, paying particular attention to the appellants
    evidence. The trial judge rejected the exculpatory parts of his evidence and
    gave cogent reasons for doing so.

[15]

The
    trial judge found that the Buy-Clik Canada business, nominally operated by the
    appellants mother, was in reality a continuation of the business that the
    appellant had operated through Canadian Barcode. The evidence summarized by the
    trial judge offered firm support for that finding. The evidence included the
    following:

·

Canadian Barcodes inventory was taken over by Buy-Clik Canada;

·

the Canadian Barcode website automatically redirected clients to
    Buy-Clik Canada; and

·

Buy-Clik Canada sold some of the same material and equipment that
    Canadian Barcode had sold.

[16]

Counsel
    for the appellant pointed to certain differences in the operations of the two
    corporate entities. Buy-Clik Canada does not appear to have had the same level
    of activity as Canadian Barcode, or to have offered all of the services offered
    by Canadian Barcode. Those differences do not, however, detract from the
    essential similarities between the two operations or render unreasonable the
    trial judges finding that the business of Buy-Clik Canada was a continuation
    of the Canadian Barcode business.

[17]

The
    contention, based primarily on the appellants evidence, that his mother
    operated Buy-Clik Canada, is, to put it mildly, incredible and was rejected by
    the trial judge. The appellant was involved in the day-to-day operation of Buy-Clik
    Canada and had considerable expertise relevant to the operation of the business
    of Buy-Clik Canada. His mothers expertise lay in entirely different business
    ventures. The appellant had an office on the Buy-Clik Canada premises and full
    access to all parts of the premises and anything stored there. The trial judge
    reasonably concluded that the appellant, by virtue of his operation of Buy-Clik
    Canada, was in possession of the relevant materials and devices found on the
    Buy-Clik Canada business premises.

[18]

The
    trial judges findings that Buy-Clik Canada carried on the business of Canadian
    Barcode and that the appellant was in control of that business, were
    sufficient, taken together, to justify the further finding that the appellant
    was in possession of the devices and materials found on the Buy-Clik Canada
    business premises.

[19]

The
    convictions on the breach charges were reasonable.

Were the Convictions on the Forgery-Related Charges
    Unreasonable?

[20]

The
    trial judges finding that the appellant operated Buy-Clik Canada and was in
    possession of the devices and materials found at the Buy-Clik Canada business
    premises was sufficient to satisfy the possession element of the forgery
    charges in counts 3, 4 and 5. The appellant submits, however, that the evidence
    could not reasonably justify the finding that the appellant knew that the
    materials and devices referred to in counts 3, 4 and 5 had been used, were adapted
    for use, or intended for use in the forging or falsifying of credit cards.

[21]

Count
    3 alleged possession of plastic cards with magnetic stripes. Some 50,000
    cards were found on the Buy-Clik Canada business premise. The cards could
    clearly be used in the forging or falsifying of credit cards. Counsel for the
    appellant submits, however, that the Crown failed to prove that the appellant
    knew they were intended for that use.

[22]

The
    trial judge, in finding that the appellant had the necessary knowledge, relied
    not only on the nature of the material, but also on the central role played by
    the appellant in the Canadian Barcode criminal enterprise that had also
    involved the use of similar material to falsify and forge credit cards. The
    trial judge reasoned that the appellants activity in the Canadian Barcode
    operation was helpful in fixing him with knowledge as to the intended use of
    the plastic cards found on the Buy-Clik Canada business premises.

[23]

I
    think the trial judge correctly held that she could infer from the appellants
    operation of Canadian Barcode that he knew of the intended use of the plastic
    cards found on the Buy-Clik Canada business premises. This inference does not engage
    in any form of improper propensity reasoning based on prior misconduct, but
    rather fixes the appellant with knowledge of the intended use of the cards
    found on the Buy-Clik Canada business premises by reference to the use to which
    the appellant put the same material when he was running the Canadian Barcode
    operation. Having regard to the trial judges finding that Buy-Clik Canada was
    simply a continuation of Canadian Barcode, the inference becomes compelling. I would
    not interfere with the conviction on count 3.

[24]

The
    analysis on count 3 is equally applicable to count 5 which alleged possession
    of devices called card readers, knowing they had been used, adapted for use, or
    were intended for use in forging or falsifying credit cards. I would dismiss
    the appeal on this count.

[25]

The
    appellants argument on count 4 is somewhat different. Counsel submits that
    there was no evidence that the card printers, that were the subject of count 4,
    had been used or could be adapted for use in the forging or falsifying of
    credit cards. Counsel contends that, absent evidence that the devices were used
    in the forging or falsifying of credit cards or could be adapted for that
    purpose, it was unreasonable to infer that the appellant knew that the card
    printers were intended to be used in the forgery or falsification of credit
    cards.

[26]

As
    I understand the evidence, the card printers could be used in forging or falsifying
    credit cards if those card printers had some form of encoding capability. The report
    filed by the Crown expert indicated that when the expert examined the card
    printers seized from the Buy-Clik Canada premises, those printers did not have
    encoding capabilities. The report went on to state that there was a possibility
    that the printers could be adapted for encoding purposes, but the expert could
    not say whether the necessary adaptation would have to have been made at the
    time the printer was manufactured or could be made at some later time. Information
    provided by the manufacturer and seized with the card printers referred to
    encoding options, but provided no further explanation or details.

[27]

The
    appellant was examined and cross-examined at some length. He was not asked
    about the potential use of the card printers, or whether encoding options could
    be installed on the devices found on the Buy-Clik Canada business premises.

[28]

In
    her reasons, the trial judge did not distinguish among the devices or materials
    referred to in counts 3, 4 and 5. She did not give separate consideration to
    the ability to use or adapt the card printers for use in the forgery or
    falsifying of credit cards. From my reading of the trial record, it does not
    appear that the precise argument made on appeal was made before the trial
    judge.

[29]

In
    her reasons, the trial judge twice referred to the appellant acknowledging that
    the devices seized are suitable for use in credit card forgery (paras. 12,
    25). In oral argument, counsel for the appellant submitted that no such
    concession was made insofar as the card printers were concerned. I accept that representation.

[30]

The
    Crown correctly observes that the crime created by s. 342.01(1) does not
    require that the Crown prove that the card printers could actually be used or
    adapted for use in the forgery or falsification of credit cards. Liability
    under the section is established if the Crown proves either that the appellant
    intended to use the devices to forge or falsify credit cards, or knew that the
    persons to whom he sold the devices intended to use them for that purpose, even
    if the devices did not have that capability.

[31]

This
    argument is difficult to resolve in that the evidence at trial was not directed
    squarely at the issue now raised. The nature of the appellants prior business activities
    with Canadian Barcode, his extraordinary computer-related expertise, and the
    potential for installing card encoding capabilities into the card printers, lend
    credence to the claim that the appellant had those devices, knowing that they
    were intended for use in the forgery or falsification of credit cards.

[32]

In
    the end, however, I do not think the conviction on count 4 can stand. There is
    no evidence that the card printers, as seized, could be changed to create
    encoding capability. The Crown expert could not say whether the devices could
    be altered in some way to give them encoding capability. His report did,
    however, clearly indicate that the printers, as found, did not have that
    capability. Nor did the experts report shed any light on the encoding
    options referred to in the manufacturers material.

[33]

The
    Crown did not allege that the operation of Buy-Clik Canada was devoted
    exclusively to criminal activity or to the falsification and forgery of credit
    cards. Like Canadian Barcode, Buy-Clik Canada had some legitimate business. Presumably,
    some of the materials and devices found on the Buy-Clik Canada premises were
    relevant to the legitimate aspects of its business. Absent evidence that the
    card printers as found could be altered to give them encoding capabilities, I
    think it was unreasonable to infer that the appellant knew that the card
    printers were intended for use in the forgery or falsification of credit cards.
    I would quash the conviction on count 4 and enter an acquittal.

Should the Sentence be Varied?

[34]

The
    trial judge imposed concurrent 3½ year sentences on each of the three forgery-related
    charges. The quashing of the conviction on count 4 has no impact on the total
    sentence imposed by the trial judge. Counsel for the appellant submits that the
    total sentence should be adjusted downward to reflect the conviction on count 4.
    He argues that if a total sentence of 3½ years was appropriate for three
    forgery-related convictions, a sentence of something less than 3½ years must be
    appropriate for two forgery-related convictions.

[35]

The
    logic of the appellants submission is undeniable and, in many cases, would
    carry the day. However, I would not give effect to the argument here.

[36]

The
    trial judge, in her sentencing reasons, described the appellants business
    operation as a sophisticated, elaborate operation, involving extensive
    planning and deliberation. That assessment is unaffected by the quashing of one
    of the convictions.

[37]

The
    trial judge referred to the appellants extensive criminal record ranging over
    20 years and including many crimes of dishonesty and disobedience of court
    orders. The trial judge also emphasized that the appellant committed these
    offences while on bail pending appeal from convictions for very similar crimes.
    The trial judges observations, which show the obvious need for specific
    deterrence, are in no way mitigated by the quashing of the conviction on count
    4.

[38]

The
    heart of the trial judges reasons for sentence is found in this passage:

On the issue of specific deterrence, Mr. Cattral, the court
    found that you are moved by an overwhelming drive to find a way to outsmart the
    credit card industry, as you testified, and the challenges to be overcome. You
    become animated and excited by your accomplishments, as you describe them at
    your trial. Clearly,
the pleasure you derive from your involvement in this
    activity outweighs the pain you feel as everything around you is taken away,
    including your liberty. In my view, you will not be deterred by the sentence
    imposed by this court or any other court. Any changes in your behaviour will
    have to come from within.
You will have to come to a realization on your
    own, perhaps with the assistance of counselling that you invite, borne of a
    willingness to change, that your life could be fulfilling when you contribute
    to your personal balance sheet, to the happiness of your family, and when you
    contribute to society at large in a pro-social fashion. That change can come
    only from you. [Emphasis added.]

[39]

The
    appellant has apparently decided to dedicate himself to a life of dishonesty
    and crime. At present, the appellants removal from the community seems the
    only way to protect the community from the appellant. The need for that
    protection drove the sentencing process at trial and should continue to do so
    even though one of the convictions will be quashed. The global sentence of 3 ½
    years remains fit.

[40]

I
    would not interfere with the sentence on the counts on which the convictions
    have been upheld. The totality of the sentences remains the same.

Conclusion

[41]

I
    would quash the conviction on count 4 and enter an acquittal. I would dismiss
    the appeals from the convictions on the other charges. I would not vary the
    sentences imposed on those charges.

Released:  GRS  MAY 07 2015

Doherty J.A.

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

I agree Eileen E.
    Gillese J.A.

[1]

The appeals from those convictions and sentences
    were dismissed on April 17, 2015: see
R. v. Beauchamp
, 2015 ONCA 260.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Charlton, 2015 ONCA 299

DATE: 20150430

DOCKET: C54069

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Charlton

Appellant

Ernest J. Guiste and Michelle L. Velvet, for the
    appellant

Matthew Asma, for the respondent

Heard: April 27, 2015

On appeal from the conviction entered on April 26, 2011
    and the sentence imposed on June 28, 2011 by Justice Terrence P. OConnor of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

There was a knock on the door of a family home late one night.  The
    familys 15 year old boy answered. Three masked men forced their way into the
    home by jabbing the muzzle of a sawed-off shotgun into his stomach. They bound
    his wrists with packing tape, ransacked the house and stole electronics, two
    televisions, video games and the keys to the family Mercedes. Two left with the
    car. The third went out the back door. The victim described the intruders as
    roughly six feet tall, athletic build, and black. He heard them use nicknames:
    Slim, A.K. and B-Boy.

[2]

A nearby police officer responding to the radio call about the home
    invasion saw a man going to a townhouse complex carrying a big-screen TV.  The
    man dropped the TV. When the officer tried to intercept him, the man ran.  He
    got away. The police then received confidential information that led them to
    obtain a search warrant for the appellants home. In his bedroom, police found
    stolen video games and electronics, including the victims iPod with the young
    victims own markings on the back. They also found a backpack and balaclava
    similar to ones used by the robbers, the same sawed-off shotgun used in the
    robbery, and a loaded revolver.

[3]

The trial judge convicted the appellant of multiple counts relating to
    the robbery, the confinement and the firearm.  The appellant argues that the
    trial judge made several legal errors and that the verdicts are unreasonable.
    The multiple grounds of appeal can be somewhat grouped into three broad
    grounds:

1. There was
    insufficient evidence of identitythe primary issue at trial;

2. The trial judge
    misapprehended or failed to consider important evidence;

3. The trial judge erred
    in law.

Identity:

[4]

The trial judges determination of identity was based on the following
    evidence:

·

The appellant lived in a townhouse less than three blocks from
    the victims house.

·

Minutes after the robbery, a police officer saw a man in black
    clothing and a hooded sweatshirt, running with a television toward the
    appellants townhouse complex.

·

The appellant fit the general physical description given by the
    victim.

·

The victim heard one of the robbers referred to as B-Boy. There
    was evidence that D-Boy was seen written over the appellants bed-room door
    when it was searched by police a week later. Defence witnesses admitted the
    appellant was sometimes referred to by his peers as D-Girl or D-Bitch.

·

All the robbers had their faces covered: one wore a black
    balaclava with red trim; one wore a Halloween mask; and one wore a dark
    face-covering that the victim could not clearly describe because it was shaded
    by a hood. When the appellants room was searched by police, there was a
    balaclava in his closet. It was gray with red trim. The appellant admitted this
    belonged to him. His DNA was on it. The appellant claimed he had not worn it in
    years, however it was found on the top of a jumble of clothing on his closet
    shelf.

·

The victim identified the shotgun found in the appellants
    bedroom as the one used in the robbery.

·

Items stolen in the robbery (small electronics, video games) were
    found in the appellants room distributed among his own things.

[5]

The appellant submits that once the trial judge accepted the evidence of
    the victim, he was obliged to find that the intruder was called B-Boy and not
    D-Boy. There was thus, according to the appellant, no evidence connecting the
    appellant to the robbery because he was not B-Boy.  On this issue, the trial
    judge said:

The street name of B-Boy is similar to the name D-Boy found
    by the police written on the doorframe of [the appellants] bedroom.  This
    difference could be attributable to [the victim] mishearing what men said
    because they were keeping their voices low and were talking through masks.

[6]

There was evidence that the robbers spoke with low voices. It was
    reasonable for the trial judge to infer that the victim mistook B-Boy for D-Boy.
    Having accepted the victims evidence generally, the trial judge was not
    obliged to find that it was B-Boy not D-Boy who entered the home:  a finder
    of fact is entitled to accept some, none or all of a witnesss evidence. In our
    view, it was open to the trial judge to infer from this circumstantial evidence
    that one of the perpetrators was the appellant.

[7]

The appellant submits that there was no finding by the trial judge of
    control or possession of the items in the bedroom.  We disagree. The trial
    judge found as a fact that the appellant knew the items were in his room.  He
    was entitled to rely on the doctrine of recent possession.

Misapprehension and failure to consider evidence

[8]

The appellant submits that the trial judge misapprehended parts of the
    evidence including: the balaclava found in the appellants closet which was
    worn by the robber; which robber left through the backdoor; and the whereabouts
    of the appellants son in the days before the search of the appellants home.

[9]

He further submits that the trial judge failed to consider the evidence
    of the appellants height (with or without shoes), the effect of the
    appellants childcare responsibilities on his attendance at school and his
    extracurricular activities; and evidence that showed police animus towards the
    appellant.

[10]

In
    our view, there was no misapprehension.

[11]

The
    appellants balaclava, found in the vicinity of the shotgun and the stolen
    property, supported the inference that the appellant was one of the robbers.
    The balaclava was similar to the black one described by the victim. The trial
    judge was entitled to consider it, along with the other physical evidence, the
    victims description of the robbers and the nickname.

[12]

The
    evidence as to which robber left through the back door was not a material fact
    in the judges reasoning. The trial judge did not misapprehend or fail to consider
    material evidence.

[13]

It
    is conceded by the Crown that the trial judge misapprehended part of the
    evidence: the appellants child was staying with the appellant and his mother
    in Mississauga and was not being brought from Brampton. This was not a material
    issue. In his credibility assessment, the trial judge considered that the
    appellant and his mother contradicted each about several additional issues.
    The trial judge was entitled to consider these contradictions in his
    credibility analysis, and to cite the appellants forgetfulness respecting
    almost all details of his activities at the time of the robbery and the search
     including his child care responsibilities.

[14]

The
    appellant argued that the police had planted the firearm and stolen items in
    his room.  The trial judge flatly rejected this theory.  He also found that
    there was no evidence of police animus against the appellant. There was
    evidence that the police had well-founded grounds for investigating the
    appellant. The evidence of police animus came from the appellant and his
    mother. Both were disbelieved by the trial judge. In our view the trial judge
    did not misapprehend the evidence.

Errors in law

[15]

The
    appellant submits that the trial judge erred in law by interrupting defence
    counsels closing submissions on the D-Boy writing on the doorway to the
    appellants bedroom; and by reversing the onus of proof contravening
D (W).

[16]

When
    defence counsel was presenting reply submissions in the final arguments, the
    trial judge told him that he did not accept the evidence about the sign of D-Boy
    on or over the appellants bedroom door.  But, in his reasons, he accepted it.
    In our view this did not render the trial unfair or constitute an error of
    law.  First, the trial judge received full written submissions on the issue of
    the

D-Boy sign. Second, there is no evidence that
    anything more could have been said on the issue that had been fully argued so
    that there was no prejudice to the appellant.

[17]

Nothing
    in the record indicates that the trial judge did not correctly apply

D. (W)
or reverse the onus of proof.

[18]

The
    appeal is dismissed. It is therefore not necessary to address the appellants
    request for a stay of prosecution which was contingent on an order for a new
    trial.

David Watt J.A.

S.E. Pepall J.A.

M.L. Benotto 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), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

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

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

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

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

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

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

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

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

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. D.J.L.,
    2015 ONCA 333

DATE: 20150512

DOCKET: C58447

Gillese, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.J.L.

Appellant

Jill D. Makepeace, for the appellant

Avene Derwa, for the respondent

Heard:  May 8, 2015

On appeal from the conviction appeal from the decision by
    Justice Helen M. Pierce of the Superior Court of Justice, dated December 4,
    2013.

Lauwers J.A.:

[1]

Following a judge-alone trial, the appellant was convicted of sexual
    interference based on a single act of sexual intercourse forced on the
    13-year-old daughter of his common law spouse.  He was acquitted of sexual
    assault based on the allegation that he fondled the complainants buttocks on
    numerous occasions. The appellant was sentenced to three years incarceration,
    and appeals his conviction.

[2]

The appeal focused on three issues:  First, whether the trial judge
    failed to consider conflicts in the complainants evidence in assessing her
    credibility; second, whether the trial judge applied different standards of
    scrutiny to the evidence of the appellant and the complainant; and, third,
    whether the trial judges approach to the evidence on the count of sexual
    assault can be reconciled with her approach to the evidence on the rape count.

Problems with the Complainants Evidence

[3]

The appellant argues that the trial judge took a forgiving and
    lenient approach to the complainants evidence, and challenges four central
    findings made by the trial judge, or the pillars that supported her
    acceptance of the complainants evidence.

[4]

The first was her mothers evidence that upon her return from a lengthy
    hospital stay, after the date of the alleged rape, the complainants behaviour changed.
      In our view, the trial judge took a measured approach to the mothers
    evidence. She recognized that, although the mothers assessment of the
    complainants behaviour before the alleged rape might have been too rosy, the
    evidence showed a dramatic escalation of the complainants misbehaviour after
    her mothers return from the hospital. I see no contradiction in this approach,
    only realism.

[5]

The second finding was that the appellant was controlling and coercive,
    which supports the concept that the appellant would force intercourse on the
    complainant. The evidence shows that even though the appellant was not to have
    any disciplinary responsibility for his stepdaughter, he nonetheless monitored
    her for smoking by following her surreptitiously to the local swimming pool and
    by participating in the searches of her room. The appellant argues that the
    finding does not flow from the evidence. To the contrary, this evidence amply
    supports and explains the trial judges finding.

[6]

The third finding was that the complainants relationship with the
    appellant was poor. The trial judge relied on the evidence about the
    complainants complaint to the Childrens Aid Society as support for this
    finding. Although the complaint itself related to the mothers slapping the
    complainant, it was open to the trial judge, based on the information disclosed
    as part of the narrative, to find that the relationship between the complainant
    and the appellant was poor.

[7]

Finally, the appellant argues that the trial judge failed to properly
    take into account the complainants admitted dishonesty and her practised lying
    from an early age, in assessing her evidence. The trial judge accepted the
    complainants admission of her previous dishonesty and her assertion that she
    is now a truthful person. The trial judge noted:

Generally she answered hard questions at trial such as her
    supplier of marijuana in a forthright and unvarnished way. In my view, her
    evidence about the assault was internally consistent. While it was not a
    detailed account, any consistencies can be attributed to the passage of time.

[8]

The appellant attacked this observation by focusing on only a single
    hard question, which was the name of the complainants drug supplier. He
    argues that the reasoning is circular, since the truth of the observation
    depends on an implicit determination that the complainant provided the actual
    name of her supplier, and cites
R. v. V.Y.
2010 ONCA 544 at paras.
    22-23. I note, however, that the trial judge did not depend on one observation
    only, since she used the words hard questions. The evidence shows that the
    complainant answered more hard questions, for example, about her heavy drug
    use, her deceit, and her attempts to mutilate and kill herself. The trial
    judges reasoning was not circular but was rooted in the evidence.

[9]

I see no error in the trial judges approach to the complainants
    evidence or in her acceptance of the complainants testimony about the rape.

Different Standards of Scrutiny

[10]

To
    succeed on the second ground, that the trial judge applied different standards
    of scrutiny to the evidence of the appellant and the complainant, as this court
    noted in
R. v. J.H.
,
[2005] O.J. No. 39 at para. 59:

The appellant must point to something
    in the reasons of the trial judge or perhaps elsewhere in the record that make
    it clear that the trial judge had applied different standards in assessing the
    evidence of the appellant and the complainant.

[11]

The
    appellant argues that the trial judges assessment of his evidence was unduly
    strict, particularly since his denials of the complainants allegations were
    not challenged in cross-examination. I disagree.

[12]

The
    evidence does not show that his testimony was subjected to unduly strict
    assessment. Three elements of the evidence were telling to the trial judge. The
    first was that the appellant followed the complainant to the local outdoor swimming
    pool on a number of occasions. The trial judge considered this conduct to be
    sexually oriented. She noted that the complainant and her friends were wearing
    bathing suits at the pool. She then added: Making note of the underwear
    controversy, his excuse that he was attempting to prevent her smoking rings
    hollow. Instead she saw this conduct as a form of sexual grooming.  She then
    added:

She was available to him after school. He could test her
    resistance by fondling her buttocks in the guise of checking her underwear.
    This is plausible.  His conduct in following her was inappropriate.

Given the evidence before her, the inferences that the
    trial judge drew were available.

[13]

The
    second concerned the opportunity that the appellant might have had to assault
    the complainant after school. The trial judge did not accept  the appellants
    testimony about  the frequency with which the complainant arrived home before
    her siblings. The trial judge notes in her decision that the appellant:

[T]estified that in the seven years he lived with the family
    there was maybe twice that [the complainant] was home from school before her
    brother and then only for a few minutes. I could not accept his evidence on
    this point. The evidence establishes that there were times when [the appellant]
    was home alone with [the complainant].

The trial judge amply explains this finding.

[14]

Third,
    the complainant testified in examination-in-chief that he spent 75% of his time
    at the hospital during the weeks that the mother was admitted, again reducing
    the opportunity he might have had to commit the rape. He then qualified his
    original estimate in chief during cross-examination. The trial judge said: I
    find this to be an exaggeration. This was not an unreasonable finding.

The trial judges doubt on the
    sexual assault count should have applied to the rape count as well

[15]

The
    appellant challenges the trial judges credibility findings based on what the
    appellant argues is an unresolved contradiction: the complainants evidence was
    not capable of supporting a conviction on the sexual assault charges, because
    it was contradicted by the mothers evidence, but the complainants evidence
    was capable of supporting a conviction on the rape count, even though it was an
    uncorroborated allegation.

[16]

The
    count of sexual assault related to complaints that the appellant would fondle
    the complainants buttocks while ostensibly checking that she was wearing
    proper underwear, as required by her mother, and not thongs. The appellant
    testified that he supported the mothers ban on thongs: He did not believe
    thong underwear was appropriate because when a child bent down half their rear
    end shows.

[17]

The
    trial judges decision to acquit the appellant on count one was not on the
    basis of the appellants evidence, which she pointedly stated that she did not
    believe, but on the basis of conflicts in the evidence between the mother and
    the complainant. The mother could only recall one incident in which the
    complainants thongs were confiscated, as against the complainants account
    that she got into trouble over wearing thongs more often because of the
    appellants reports to her mother after he fondled her buttocks and discovered
    she was wearing thongs. The conflicts in the evidence between the mother and
    the complainant raised a reasonable doubt in the trial judges mind on the
    count of sexual assault alone.

[18]

By
    contrast, the trial judge used the appellants evidence about the thongs in
    assessing his evidence relating to the rape, as showing a problematic sexual
    interest in the complainant. There is, in my view, no contradiction between the
    trial judges reasonable doubt on the fondling count, and her satisfaction that
    the rape count had been proved beyond a reasonable doubt.

[19]

I
    would, therefore, dismiss the appeal.

Released:  May 12, 2015 EEG

P.
    Lauwers J.A.

I
    agree E.E. Gillese J.A.

I
    agree K. van Rensburg J.A.