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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. J. N-Z., 2017 ONCA 335

DATE: 20170426

DOCKET: C61329

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. N-Z.

Appellant

Matthew R. Gourlay, for the appellant

Brett Cohen, for the respondent

Heard: April 18, 2017

On appeal from the conviction entered by Justice Katherine
    B. Corrick of the Superior Court of Justice on September 18, 2015, with reasons
    reported at 2015 ONSC 5795.

By the Court:

[1]

Following a judge alone trial, the appellant was
    convicted of a number of sexual offences involving a 10-year old male
    complainant.

[2]

The appellant was a hairdresser and came to the
    family's home to colour the complainant's mother's hair and also, on occasion, to
    cut other family members hair.

[3]

The complainant alleged increasing sexual
    misconduct, which he described as weird behaviour, over three discrete time
    frames: December 26, 2012 to August 5, 2013; August 6, 2013 (the day the family
    was preparing to leave on their annual trip to Bosnia); and October 21, 2013
    (the date of the complainant's disclosure). According to the complainant, on
    the last date, the appellant exposed himself to the complainant and tried to
    have the complainant touch his penis. The complainant then told his mother he
    did not want the appellant coming over anymore and disclosed the alleged
    misconduct. On being confronted, the appellant denied any impropriety and
    waited at the home until the police arrived.

[4]

At trial, contrary to his s. 715.1 video
    statement, in which he said the appellant had not exposed himself prior to the
    October 2013 incident, the complainant testified that the appellant had also
    exposed himself on August 6, 2013.

[5]

The trial judge convicted the appellant of
    sexual misconduct during the December 2012 to August 2013 time-frame, consisting
    of grabbing the complainant's buttocks; and of further misconduct on October 21,
    2013, including exposing himself to the complainant.

[6]

Concerning the August 6, 2013 incident, the
    trial judge found that the complainant's evidence was internally inconsistent
    and that, in addition, aspects of it were contradicted by the complainants
    younger brother's version of certain events. The trial judge therefore found
    the appellant not guilty of the offences relating to that date.

[7]

The appellant raises three issues on appeal.

[8]

First, the appellant argues that having found
    she could not accept the complainant's evidence regarding the August 6, 2013
    charges, the trial judge failed to explain how she could nonetheless accept the
    complainants evidence as establishing proof beyond a reasonable doubt with
    respect to the other counts. In particular, the appellant asserts that the
    trial judge failed to consider and give effect to the central discrepancy in
    the complainants evidence, therefore materially misapprehending the evidence.

[9]

Second, the appellant argues that the trial
    judge focused improperly on the complainant's credibility, mainly by relying on
    his demeanour, without adequately assessing his reliability.

[10]

Finally, the appellant argues that having taken
    account of the spontaneous nature of the complainant's disclosure and his demeanour
    in relation to the October 2013 incident, the trial judge erred by failing to
    consider the appellant's demeanour and response when confronted with the
    allegations.

[11]

We do not accept these submissions.

[12]

Immediately after finding the appellant not
    guilty of the August 6, 2013 charges, the trial judge adverted to the
    appellant's principal arguments concerning why that finding should affect her
    conclusion on the other charges.

[13]

She explained that she was impressed with the
    complainants evidence for a number of reasons, which included not only the
    spontaneous nature of his disclosure and his demeanour in relation to the October
    2013 incident, but also the fact that he did not appear to be vindictive or
    acting out of animosity to the appellant; that he, a child witness, seemed to
    be doing his best to recount details of the incidents that had occurred many
    months previously; that he provided significant detail regarding the October
    2013 incident; and that he acknowledged difficulty remembering certain things
    and guessing to fill in blanks. Moreover, despite the latter acknowledgments,
    the complainant did not recant the October 2013 allegations and the core of his
    allegations in relation to which the trial judge convicted the appellant
    remained intact. By way of contrast, the trial judge had earlier found that the
    complainant expressed some uncertainty in relation to the August 2013 events.
    Thus, contrary to the appellant's submissions, in our view, the trial judge
    explained the basis for her findings, and her reasons went well beyond reliance
    on the complainants demeanour.

[14]

As for the third issue, the trial judge was
    clearly aware of the appellant's responses to being confronted with the
    allegations. She adverted to his responses in her narrative of the events. It
    was entirely for the trial judge to determine whether to afford any weight to
    such responses.

[15]

The appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Janet Simmons
    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. K.S., 2017 ONCA 307

DATE: 20170413

DOCKET: C61976

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.S.

Respondent

Benita Wassenaar, for the appellant

Jennifer K. Penman, for the respondent

Heard: March 28, 2017

On appeal from the acquittal entered by Justice Susan J.
    Woodley of the Superior Court of Justice on March 11, 2016, sitting without a
    jury.

By the Court:

[1]

K.S. was found not guilty of four counts
    of sexual offences after a trial before a judge of the Superior Court of Justice
    sitting without a jury. Each count involved the same complainant, the five-year-old
    daughter of a woman with whom K.S. had a rocky relationship.

[2]

The complainant disclosed
    instances of sexual abuse by K.S. around the same time as her mother determined
    that she would end her relationship with K.S. The disclosure emerged in
    response to a direct leading question of K.S. by her mother. The following day,
    the complainant provided a videotaped statement to police that was tendered at
    trial under s. 715.1 of the
Criminal Code
.

[3]

For all practical purposes, the
    case for the Crown at trial consisted of the complainant's testimony; her
    videotaped statement tendered under s. 715.1; and the evidence of her mother.
    Some forensic evidence was also admitted but it did not provide confirmation of
    any allegations of sexual impropriety.

[4]

The defence advanced, unsupported
    by the testimony of K.S. or any other evidence, was that the events alleged by
    the complainant never took place.

The Grounds of Appeal

[5]

The Crown advances four grounds of
    appeal. She submits that the trial judge erred:

i.

in approaching the complainant's
    testimony in a manner that is inconsistent with the authorities governing the
    evidence of child witnesses;

ii.

in imposing a requirement that the
    complainant remember the events described in her videotaped statement in order
    for the videotape to be admissible under s. 715.1 of the
Criminal
    Code
;

iii.

in relying on information that was
    not part of the trial record in reaching her conclusion on the admissibility of
    the videotapes statement as evidence; and

iv.

in making a finding of fact from
    which there was no evidence.

Discussion

[6]

We do not give effect to any of the grounds of appeal advanced by the
    Crown. As a result, the appeal is dismissed.

[7]

In our approach to this appeal, we remind ourselves that, on appeals
    from an acquittal, the Crown is limited under s. 676(1)(a) of the
Criminal
    Code
to grounds of appeal that involve questions of law alone. We also
    have in mind instructions from the Supreme Court of Canada that we ought to be
    slow to interfere with a judge's handling of the evidence and findings on
    credibility as they generally do not raise questions of law alone:
R. v. J.M.H.
,
    2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

Ground #1: Erroneous Approach to Complainant's Evidence

[8]

In our view, a close review of the whole of the trial judge's reasons
    does not support the claim that she failed to apply the proper principles in
    assessing the evidence of the complainant.

[9]

The trial judge's reasons accurately record the principles that govern
    the assessment of the evidence of child witnesses. They reveal the need for a
    common sense approach and disclose no hint that the trial judge considered the
    complainant's evidence inherently unreliable on account of her age. Nothing the
    trial judge said or failed to say after her statement of those principles
    revealed any departure from their teachings in her subsequent analysis.

[10]

The trial judge also reminded herself that this common sense approach to
    the evidence of children does not mean that their evidence is not subject to
    the same standard of proof as the testimony of adult witnesses in criminal
    cases. A verdict of guilt requires a solid foundation whether its evidentiary
    support resides in the testimony of a child, of an adult, or of some
    combination of the two. That a child is the principal or sole support for the Crown's
    case does not lessen the standard of proof required to establish guilt.

[11]

In this case, as the trier of fact, the trial judge was not satisfied
    that the case for the Crown, considered as a whole, carried such convincing
    force that it satisfied the demanding standard of proof required to establish
    guilt in a criminal case. The adequacy of the evidence adduced to discharge the
    burden of satisfying the standard of proof required was for the trial judge to
    determine. Her finding that it was inadequate, untainted by legal error, does
    not raise a question of law, thus is not reviewable on an appeal by the Crown:
J.M.H
.
,
    at para. 39;
R. v. B. (R.G.)
, 2012 MBCA 5, 287 C.C.C. (3d) 463, at
    paras. 34 and 36.

Ground #2: Adoption of the Video Statement under Section 715.1

[12]

The case for the Crown consisted in part, better said in large part, of
    a videotaped statement of the complainant tendered for admission under s. 715.1
    of the
Criminal Code
. For this statement to become evidence at trial,
    the party tendering it as evidence, here the Crown, must establish that the
    complainant adopted the contents of the videotape while giving evidence at
    trial:
R. v. F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 30.

[13]

The test for adoption is not overly stringent. It does not require that
    the witness have a present recollection of the events discussed and need not
    meet the standard for adoption of a prior inconsistent statement by an adult
    witness:
F. (C.C.)
, at paras. 33, 36, and 40. Under s. 715.1, the
    statement is adopted if the complainant or witness recalls making the statement
    and trying to be truthful at the time the statement was made:
F. (C.C.)
,
    at para. 41.

[14]

The trial judge concluded that the videotaped statement met the
    requirements of s. 715.1 subject to the complainant's adoption of it at trial.
    The Crown says that the judge erred in requiring that the complainant recall
    the events described in the videotape in order to satisfy the adoption
    requirement.

[15]

The trial judge expressed concern about whether the complainant adopted
    the statement, but her concern was directed more to whether the complainant
    remembered making the statement to the officer and whether she was being
    truthful at the time. A fair reading of the reasons does not reveal that the
    judge required that the complainant have a current recollection of the relevant
    events before a finding of adoption could be made.

[16]

In the end, the trial judge's reasons appear to have proceeded on the
    assumption that the complainant had adopted her videotaped statement, even
    though she (the trial judge) may not have reached an affirmative conclusion on
    the issue.

[17]

It is important not to confuse the threshold test for the admissibility of
    the videotape, on the one hand, with the ultimate reliability of the
    complainant's evidence (of which the videotape is part) on the other. We are
    satisfied that the rejection of the complainant's evidence was not contaminated
    by the erroneous exclusion of the videotaped statement. The statement was
    admitted into evidence and considered by the trial judge.

[18]

The trial judge's finding that the Crown had not proven its case beyond
    a reasonable doubt was rooted in her rejection of the complainant's evidence.
    Her reasons for doing so included, but were not limited to:

i.

the complainant's tendency to blend fact and fiction;

ii.

the inconsistencies between the evidence of the complainant and the
    testimony of her mother;

iii.

the responses the complainant made to questions asked in
    cross-examination; and

iv.

the timing and manner in which the disclosure came about.

In this case, these were appropriate considerations.

Ground #3: Reliance on Evidence Not Part of Trial Proceedings

[19]

The Crown contends that the trial judge erred in her decision on whether
    the complainant adopted her videotaped statement by considering evidence that
    was not part of the trial record. The "evidence" consisted of a
    reference in argument to observations made by Crown counsel at the preliminary
    inquiry about the conduct of the complainant when the video was played there
    and the fact that the statement was admitted as evidence at the preliminary
    inquiry.

[20]

It is fundamental that findings of fact made at trial must be grounded
    on evidence properly admissible in those proceedings:
R. v. Smith
,
    2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 61;
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541. This rule applies whether the
    findings of fact in issue are those essential to determine the admissibility of
    a piece of evidence, or to establish proof of an essential element of an
    offence charged.

[21]

This ground of appeal fails for two reasons. The first relates to the
    source of this information: it is Crown counsel who relied on this information
    in seeking admission of the videotaped statement at trial. It ill lies in the
    mouth of the Crown on appeal to complain about reference to it in the trial
    judge's admissibility determination. The second is that the reference was not
    material to the trial judge's determination of the reliability of the
    complainant's evidence, an issue separate and apart from the admissibility of
    the videotaped statement.

Ground #4: Findings of Fact without an Evidentiary Foundation

[22]

The final ground of appeal alleges that the trial judge made findings of
    fact in the absence of an evidentiary foundation. The complaint focuses on the
    trial judge's inference that the complainant could not separate fact from
    fiction. The trial judge drew this inference from some things the complainant said
    in her videotaped statement.

[23]

The trial judge's inference that the complainant was unable to separate
    fact from fiction was grounded in the evidence adduced at trial. It was an
    inference that the trial judge was entitled to draw. It was a relevant consideration
    for the trial judge to take into account in assessing the credibility of the
    complainant and the reliability of her evidence. That another or other
    inferences were available from the same evidence does not mean that the trial
    judge erred in law in the inference she drew or in the conclusion she reached.

CONCLUSION

[24]

For these reasons, the appeal is dismissed.

Released: April 13, 2017
    ("DW")

"David Watt J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lam, 2017 ONCA 329

DATE: 20170424

DOCKET: C61282, C62117, C62144, C62147, C62156

MacPherson, Simmons and Brown JJ.A.

C61282

BETWEEN

Her Majesty the Queen

Respondent

and

Bryan Quoc Ton Lam

Appellant

C62117

AND BETWEEN

Her Majesty the Queen

Respondent

and

Thanh Hien Tran

Appellant

C62144

AND BETWEEN

Her Majesty the Queen

Respondent

and

Wali Seddiqi

Appellant

C62147

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ba Tuan Tran

Appellant

C62156

AND BETWEEN

Her Majesty the Queen

Respondent

and

David Hoc Truong

Appellant

Jill R. Presser and Jeff A. Marshman, for the appellant,
    Bryan Quoc Ton Lam

Daisy E. McCabe-Lokos, for the appellant, Thanh Hien
    Tran

Maija C. Martin, for the appellant, Wali Seddiqi

Melina Macchia, for the appellant, Ba Tuan Tran

Brian C. Eberdt, for the appellant, David Hoc Truong

Kevin Robert Wilson, for the respondent

Heard: April 19, 2017

On appeal from the conviction entered on September 18,
    2015 by Justice John B. McMahon of the Superior Court of Justice, and on appeal
    from the convictions entered on September 3, 2015 and the sentence imposed on
    May 17, 2016 by Justice Gary T. Trotter of the Superior Court of Justice.

A.

Overview

[1]

Bryan Quoc Ton Lam ran a Toronto-based marijuana distribution business
    that moved over 100 pounds per week at $2,500 to $3,000 per pound. Wali Seddiqi
    supplied Lam with marijuana from British Columbia. David Truong stored,
    packaged and distributed that marijuana. Ba Tuan Tran (Ba Tran) distributed
    marijuana from Lam in the London area. Thanh Hien Tran (Thanh Tran), an associate
    of Lam, distributed marijuana in Toronto, including from a separate supplier in
    Montreal.

[2]

All five appellants were convicted of drug related offences. All five
    appellants now appeal their convictions, challenging the application judges admission
    of evidence against them pursuant to s. 24(2) of the
Canadian Charter of
    Rights and Freedoms
. Ba Tran alone appeals his sentence.

[3]

For the reasons that follow, we would dismiss the conviction appeals and
    Ba Trans sentence appeal.

B.

Background

[4]

During the Asian Organized Crime Task Force (AOCTF) investigation of
    Lam and his associates in 2012, the police obtained several warrants, including
    wiretap authorizations. The affidavits sworn in support of these warrants
    included evidence of drug charges laid against Lam in 2010 by Peel police. In
    2014, Hill J. excluded the evidence relating to the 2010 charges because of
    police misconduct and Lam was acquitted:
R. v. Lam
, 2014 ONSC 3538.

[5]

At the second trial, Lam challenged the admissibility of the evidence
    obtained as a result of the warrants from the second investigation. Justice
    MacDonnell acted as the Case Management Judge pursuant to s. 551.1 of the
Criminal
    Code
. Lam brought an application to exclude the evidence obtained pursuant
    to the 2012 authorizations. The other four appellants agreed to be bound by its
    result.

[6]

On Lams application, MacDonnell J. excised the 2010 evidence from the
    affidavits behind all of the 2012 orders:
R. v. Lam
, 2015 ONSC 2131, 343
    C.R.R. (2d) 281. He found that, as a result, none of the 2012 orders could
    stand and that, therefore, the evidence gathered under them had been obtained
    in violation of s. 8 of the
Charter
. He concluded, at para. 64:

I reject the Crowns submission that the warrants that were
    issued after April 30th could have issued notwithstanding the excision of the
    facts concerning the 2010 Peel Region investigation. Accordingly, all of the
    evidence gathered pursuant to the warrants was obtained in violation of s. 8.

[7]

Turning to s. 24(2) of the
Charter
, the application judge
    applied the tripartite test in
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353. He concluded, at para. 101:

On balance, I am satisfied that the repute of the
    administration of justice would suffer more from exclusion of the evidence than
    by its admission.

Accordingly, the application judge dismissed the
Charter
application to exclude the evidence.

[8]

After this ruling, the appellants resolved their trials in a way that
    preserved their rights of appeal on the
Charter
s. 8 ruling.

[9]

Lam entered pleas of not guilty before McMahon J. to conspiracy to traffic
    in marijuana and possession of the proceeds of crime over $5,000. The Crown
    read in facts supporting findings of guilt and later filed a more comprehensive
    written summary of facts. Lam called no evidence in response and made no
    submissions on guilt or innocence. Justice McMahon found Lam guilty on both
    counts.

[10]

Seddiqi, Truong, Thanh Tran and Ba Tran entered pleas of not guilty
    before Trotter J. to various drug related charges. The Crown filed and
    summarized facts supporting findings of guilt. All four called no evidence and
    agreed that the Crown could establish the facts it relied on. Justice Trotter
    found the four accused guilty.

[11]

Of relevance to this appeal, Trotter J. imposed a sentence on Ba Tran of
    15 months custody after credit for eight days of pre-trial custody and
    restrictive bail conditions.

[12]

All five appellants appeal their convictions. Ba Tran appeals his
    sentence.

C.

Analysis

(1)

Conviction appeal (all appellants)

[13]

All of the appellants, led by Lam, contend that the application judge
    erred in two respects in his s. 24(2) analysis: first, he did not adequately
    recognize the impact of the misconduct of Peel Police in 2010 in conducting the
    s. 24(2) admissibility inquiry relating to the warrants obtained by the AOCTF
    police in 2012; and second, he did not give appropriate effect to his own
    finding that, in one respect, the content of Corporal Plumes affidavits in the
    2012 investigation amounted to serious carelessness.

[14]

We do not accept these submissions. The application judge dealt
    explicitly with both of these issues. Where a trial judge has applied the
    relevant
Grant
factors, his or her decision is entitled to
    considerable deference:
Grant
, at para. 86. The application judge
    engaged in a comprehensive review of the
Grant
factors. In our view,
    his analysis was fair and balanced. His conclusion is, easily, reasonable.
    Indeed, we would go farther  the application judges decision is, in our view,
    correct.

(2)

Conviction appeal (all appellants except Lam)

[15]

All of the appellants, except Lam, submit that the application judge
    failed to provide adequate reasons for his decision as it related to them.

[16]

We do not accept this submission. The four appellants raising this
    ground of appeal agreed to be bound by the application judges decision on
    Lams
Charter
s. 8 application. The application judge gave
    comprehensive reasons that applied to all the appellants. It is telling that
    the four appellants who now advance this argument on appeal were all represented
    at trial by senior criminal counsel who did not raise this issue before either
    McMahon J. or Trotter J.

(3)

Sentence appeal (Ba Tran)

[17]

The appellant Ba Tran appeals his custodial sentence of 15 months
    imprisonment on the basis that it is too harsh for a first-time, youthful
    offender with tremendous potential for rehabilitation.

[18]

In our view, the sentence imposed by Trotter J. was a fit sentence. The
    sentencing judge was entitled to reject a conditional sentence for this
    appellant on the basis of the scope of the drug trafficking enterprise and the
    appellants role in it, namely his role in distributing drugs from Lam in the
    London area.

D.

Disposition

[19]

The conviction appeals are dismissed. We grant leave to Ba Tran to
    appeal sentence, but his sentence appeal is dismissed.

J.C.
    MacPherson J.A.

Janet
    Simmons 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. Martin, 2017 ONCA 322

DATE: 20170421

DOCKET: C61370

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Martin

Appellant

Kristin Bailey, for the appellant

Kevin Rawluk, for the respondent

Heard: February 21, 2017

On appeal from the conviction entered on May 19, 2015 and
    the sentence imposed on June 24, 2015 by Justice Gisele Miller of the Superior
    Court of Justice.

Miller J.A.:

[1]

The appellant and the complainant had been long-standing friends. They had
    occasionally engaged in sexual activity, but had never understood themselves to
    be in a sexual relationship. On the evening of July 25, 2012, the complainant
    was out with friends to see a movie. She exchanged texts with the appellant,
    and arranged to meet up and go to his home. They ended up watching a video in
    the appellants basement. The complainant decided to sleep over on his couch,
    as she had done many times before. The trial judge found that the complainant fell
    asleep while watching the video, and awoke to find the appellant on top of her,
    engaged in intercourse. She told him to stop and tried to push him off, but he
    persisted until she threatened to scream.

[2]

The appellants account, which the trial judge rejected, was different. At
    times, on his account, he had pursued a romantic relationship with the
    complainant and at other times she had pursued one with him, but neither
    accepted the others suggestion. There was, he said, a pattern to their
    interactions, to which the night in question conformed: sometimes she would
    text him as a prelude to spending the night at his house, sometimes sleeping in
    his bed, sometimes sleeping on his couch, and sometimes engaging in sexual
    activity. On the night in question, he said, the two had engaged in consensual
    sexual activity short of intercourse, before the complainant suddenly froze and
    asked him to stop, which he immediately did. He attributed her change of heart
    to a moral crisis brought on by the realization that her actions were
    inconsistent with her desire to reconcile with a former boyfriend.

[3]

The appellant was convicted of sexual assault and sentenced to two years
    imprisonment. The appellant appeals his conviction and seeks leave to appeal
    sentence.

[4]

The trial judge identified three bases for the finding of guilt beyond a
    reasonable doubt. First, she was satisfied beyond a reasonable doubt that the
    testimony of the complainant was truthful and accurate. Second, she had doubts
    about the appellants credibility, arising from perceived infringements of the
    rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.). Third, she found
    multiple inconsistencies in the appellants evidence.

Conviction Appeal

[5]

With respect to the conviction appeal, the appellant advances three grounds
    of appeal. He argues that the trial judge erred: (i) in her assessment of evidence
    of prior sexual activity between the appellant and the complainant; (ii) in her
    application of the rule in
Browne v. Dunn
; and (iii) by reversing the
    burden of proof.

[6]

It is unnecessary for the disposition of this appeal to address all the
    grounds raised by the appellant. For reasons set out below, I agree that the
    trial judge erred in finding that the appellant breached the rule in
Browne
    v. Dunn
. Because the trial judge found the breaches to be relevant to her
    assessment of the appellants credibility, and as they formed an integral part
    of the basis for her rejection of the appellants testimony, I would allow the
    conviction appeal on this ground alone.

The rule in
Browne v. Dunn

[7]

The appellant argues that the trial judge erred in finding that in two instances
    the appellant infringed the rule in
Browne v. Dunn
. In the first
    instance, the trial judge faulted the appellant for not having cross-examined
    the complainant on whether she had, as the appellant testified in cross-examination,
    asked him in December 2011 whether he was interested in pursuing a relationship
    with her, and whether he had, as he claimed, declined because he was pursuing a
    relationship with someone else. Similarly, in the second instance, the trial
    judge faulted the appellant for not having cross-examined the complainant on
    the proposition that the sexual encounter that he alleged had occurred in June
    2012, and which the complainant had denied in cross-examination, had been initiated
    by a text from the complainant indicating that she wanted to have sex with him.

[8]

The trial judge correctly noted that the rule in
Browne v. Dunn
does not require every detail of anticipated conflicting evidence be put to a
    witness, but that where the conflicting evidence is material, failure to do so
    may have a negative impact on the accuseds credibility.  In her reasons, the
    trial judge twice stated that she used the
Browne v. Dunn
omissions to
    assess the weight of the appellants testimony.

[9]

With respect to evidence of the December 2011 conversation, the trial
    judge erred in finding a breach of the rule. The appellant testified at trial. The
    Crown cross-examined him, in part, to confirm an implicit premise: that the
    appellant had long pursued a sexual relationship with the complainant, and that
    she had not reciprocated. It was at this juncture in the cross-examination,
    when the appellant was pressed to give an example of an occasion when the
    complainant suggested they pursue a sexual relationship, that the appellant answered
    that the complainant had expressly done so in December 2011, and that he had declined.

[10]

At this point, the complainant had already testified in-chief that there
    had been discussions between the two in June 2012 and earlier, about taking the
    relationship to the next level. The complainant testified that the appellant
    had always been the one to raise the issue, and that her response was always
    the same: that she wished to remain friends.

[11]

In these circumstances, there was no unfairness in not cross-examining
    the complainant on the alleged December 2011 conversation. Her evidence was
    clear: there had been multiple proposals to pursue a relationship, they had always
    been initiated by the appellant, and she had invariably told him that she
    wished to remain friends. Furthermore, the alleged December 2011 conversation
    was elicited by the Crown in cross-examination. This was not a case of the
    appellant unfairly choosing to lead evidence without having first put it to the
    complainant in cross-examination.

[12]

With respect to the second breach found by the trial judge, the question
    of whether the complainant had sent the appellant a text in June 2012 to invite
    him to have sex with her was an immaterial detail in the context of the
    complainants evidence. She had been cross-examined in great detail on the
    circumstances of a sexual encounter that the appellant claimed took place in
    June 2012. She not only denied having sex with the appellant in June 2012, she
    denied having seen him that month at all. In these circumstances, the fact that
    defence counsel did not put to the complainant that a text message preceded an encounter
    that she flatly denied had occurred is immaterial.

[13]

It is significant that neither of these suggested infringements of the
    rule in
Browne v. Dunn
were raised by the trial Crown. The trial judge
    only raised the matter of the December 2011 evidence obliquely, in an exchange
    with the trial Crown, and without inviting submissions on the issue from
    defence counsel.

[14]

I conclude, with respect, that the trial judge erred in finding
    violations of the rule in
Browne v. Dunn
, and in drawing a negative
    inference about the appellants credibility as a result of those violations.

The impact of the
Browne v.
    Dunn
error

[15]

The Crown argues that if the trial judge erred in finding infringements
    of the rule in
Browne v. Dunn
, these errors are harmless as the trial
    judge had already rejected the appellants evidence and found it did not raise
    a reasonable doubt. Before conducting the
Browne v. Dunn
analysis, the
    trial judge noted that a trier of fact may reject the testimony of an accused
    if satisfied beyond a reasonable doubt of the credibility of evidence that
    conflicts with that of the accused:
R. v. J.J.R.D.
(2006), 215 C.C.C.
    (3d) 252 (Ont. C.A.).

[16]

The difficulty with this submission is that although the trial judge
    referred to
J.J.R.D.
and found the complainants evidence truthful
    beyond a reasonable doubt, she did not clearly apply
J.J.R.D.
The
    trial judge states:

[63] A trier of fact nonetheless must be satisfied on the
    totality of the evidence that there is no reasonable doubt as to the guilt of
    the accused.
(W.(D.)
, at paragraphs 26-28.)

[64] In this case I am satisfied beyond a reasonable doubt that
    the testimony of L.C. with respect to the events of July 25, 2012 is truthful
    and accurate. I do not reject Andrew Martins testimony in respect of those
    events solely on that basis, as there are material internal and external
    inconsistencies in Andrew Martins testimony that cause me to have significant
    concerns about its veracity.

[17]

The issue, therefore, is whether the trial judge relied exclusively on
    the credibility of the complainants evidence to reject the appellants
    evidence and find that it did not raise a reasonable doubt. I cannot conclude,
    from these paragraphs, that she did so.

[18]

As this court held in
J.J.R.D.
, at para. 53: (a)n outright
    rejection of an accuseds evidence based on a considered and reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting credible
    evidence is as much an explanation for the rejection of an accuseds evidence
    as is a rejection based on a problem identified with the way the accused
    testified or the substance of the accuseds evidence. The ultimate question is
    not, on this analysis, whether the complainants evidence is accepted as
    credible, but whether the allegations are proved beyond a reasonable doubt.

[19]

In
J.J.R.D.
, although the trial judge found the complainant to
    be credible, the analysis had to go further. It was only after considering all
    the evidence that the trial judge accepted, including the complainants
    evidence and the credibility enhancing effect of the complainants diary, that
    the trial judge was satisfied of the accuseds guilt beyond a reasonable doubt,
    despite the accuseds denials. It was sufficient, in that case, for the trial
    judge to set out that the basis of his rejection of the accuseds evidence was
    his reasoned acceptance beyond a reasonable doubt of the truth of the
    complainants evidence. This reasoned acceptance of the complainants evidence was
    not merely a matter of finding the complainant to be credible. Despite finding
    the complainant to be credible, the trial judge was only able to conclude that
    the accused was guilty beyond a reasonable doubt for some of the offences for
    which he was tried and not others.

[20]

As in
J.J.R.D.
, the question before the trial judge in this
    case was not simply whether the complainant was credible, but whether the trial
    judge was left with a reasonable doubt of the guilt of the accused. It was open
    to her, as it was to the trial judge in
J.J.R.D.
, to explain her
    rejection of the appellants evidence in terms of her reasoned acceptance of
    the evidence to the contrary.

[21]

Here, the trial judge stated that she accepted beyond a reasonable doubt
    the veracity of the complainants evidence (particularly, that she was asleep
    at the time the appellant commenced intercourse with her and was therefore not
    consenting). She did not, however, end there, and in the paragraph following
    the reference to
J.J.R.D.
, instructed herself on the need to consider
    whether on the totality of the evidence a reasonable doubt was raised, before
    stating that she did not reject the appellants testimony solely on the basis
    of the complainants evidence.

[22]

It was at this point that the trial judge canvassed the
Browne v.
    Dunn
issue in 10 paragraphs, twice stating she was using the appellants
    breach of the rule to assess the weight of the appellants testimony. There can
    be no doubt that this error adversely impacted the appellants credibility as a
    witness. Thereafter, the trial judge catalogued, in a further 10 paragraphs, inconsistencies
    and other statements of the appellant that she found troubling or implausible.
    She then addressed inconsistencies in the complainants testimony identified by
    counsel for the appellant, and found these to be peripheral and insignificant.

[23]

Read in the context of her reasons as a whole, I cannot conclude that the
    trial judge rejected the appellants testimony solely on the basis of the
    complainants testimony. The reasons are ambiguous and indicate either: (1) the
    testimony of the complainant was sufficient in itself for rejecting the
    evidence of the appellant, but there were additional grounds for rejecting the
    appellants contrary testimony, or (2) the testimony of the complainant was
not
sufficient reason to find that the appellants testimony did not raise a
    reasonable doubt, and that the finding of guilt was therefore dependent on the
    evidence as a whole, including her assessment of the appellants evidence.

[24]

If the complainants testimony was not taken to be sufficient in itself,
    there is a real risk that the erroneous finding on the
Browne v. Dunn
issue, and the adverse credibility finding that flowed from it, influenced the
    trial judges assessment of the appellants evidence and tipped the scale in
    favour of a finding of guilt beyond a reasonable doubt.

[25]

The concern that the adverse credibility finding flowing from the
Browne
    v. Dunn
error may have influenced the ultimate finding of guilt is further
    compounded by the trial judge faulting the appellant for not providing specific
    corroborative evidence that she thought ought to have been available to
    substantiate his claim that he spent time with the complainant in June 2012:
    records from his workplace and receipts from an Esso station where he claimed
    to have refueled and from a Tim Hortons restaurant where he claimed the complainant
    made a purchase for him. The appellant was under no obligation to provide this
    evidence.

[26]

In light of these considerations, the conviction cannot stand and the
    conviction appeal must be allowed.

Sentence appeal

[27]

Given the disposition of the conviction appeal, I do not reach the
    appellants proposed sentence appeal.

Disposition

[28]

I would allow the appeal from conviction, quash the conviction and order
    a new trial.

Released: EAC APR 21 2017

B.W. Miller J.A.

I agree. E.A. Cronk
    J.A.

I agree. Paul Rouleau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McConaghie, 2017 ONCA 306

DATE: 20170413

DOCKET: C60666

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian McConaghie

Appellant

Nicholas A. Xynnis, for the appellant

Robin Flumerfelt, for the respondent

Heard: March 29, 2017

On appeal from the conviction
    entered on April 8, 2015 and the sentence imposed on July 7, 2015 by Justice Thomas
    P. Cleary of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was found guilty of several offences arising out of
    an incident in which his motor vehicle struck and severely injured a pedestrian
    who was walking across a parking lot outside a pub. After taking into account
    the principles set out in
R. v. Kienapple
, [1975] 1 S.C.R. 729, the
    trial judge entered a conviction on a single count of aggravated assault. For
    this offence, the trial judge sentenced the appellant to imprisonment for a
    term of 18 months and ordered that he comply with the terms of a probation
    order for a period of two years after completion of the term of imprisonment.

The Background Facts

[2]

At the conclusion of oral argument by counsel for the appellant, we
    dismissed both the conviction and sentence appeals. We indicated that our reasons
    would be provided later. These are our reasons.

[3]

The relevant events began with a game of pool between the
    appellant and Alex Chonevski. The game ended prematurely when Chonevski accused
    the appellant of cheating. A while later, the appellant initiated a
    conversation with Chonevski who reacted aggressively when the appellant came
    into physical contact with him as the conversation became more animated and
    developed into an argument. Chonevski, a much larger and physically imposing
    man, seems to have gotten the better of the appellant. Other patrons separated
    the pair.

[4]

Shortly after the contretemps in the pub, the appellant left the
    premises and got into his car in the parking lot. He remained there, despite
    suggestions from others that he should simply leave and forget about the
    incident.

[5]

The appellant was still in his car when Chonevski and his father
    walked out of the pub at closing time almost three-quarters of an hour after
    the altercation over the game of pool. Soon after remarks to the effect of "he
    can't get away with this" or "nobody treats me that way", the
    appellant accelerated his vehicle towards Chonevski and his father as they made
    their way across the parking lot. Chonevski was pushed out of the car's path by
    his father who was struck by the vehicle. The appellant drove away.

[6]

The principal issue at trial was whether, as the Crown alleged,
    the appellant intentionally drove his vehicle at Chonevski, striking his father
    in the process, or, as the appellant claimed, he inadvertently struck the victim
    as he (the appellant) tried to leave the parking lot.

The Appeal from Conviction

[7]

The appellant advances several grounds of appeal on his appeal
    from conviction.

[8]

He submits that the trial judge erred in not permitting defence
    counsel to put a surveillance video depicting the interior of the bar to a
    Crown witness in cross-examination.

[9]

We disagree.

[10]

This decision of the trial judge was a reasonable exercise of his
    discretion to supervise the conduct of cross-examination, a necessary incident
    of his trial management power. The material events were those that took place
    in the parking area, not what happened in the pub. The trial judge had already
    seen the video and was unlikely to be further assisted in resolving crucial
    issues of fact by its replay during cross-examination of the witness.

[11]

The final three grounds of appeal may be considered together
    since they are complaints about factual determinations made by the trial judge.

[12]

The appellant says that the trial judge erred:

i.

in accepting the testimony of one Poirier, whom the appellant
    described as a testimonially-unreliable witness;

ii.

in conducting a flawed "reconstruction" of the
    accident, unsupported by the evidence adduced at trial; and

iii.

in rejecting certain aspects of the appellant's evidence about
    his state of mind after the initial altercation with Chonevski and while
    sitting in his car outside the pub.

[13]

It is a commonplace of appellate review that findings of fact, including
    determinations of the credibility of witnesses and the reliability of their
    evidence, as well as the inferences to be drawn from individual items of
    evidence and from the evidence as a whole, are subject to deference on appeal.
    To be certain, this rule is subject to exception. But nothing that the trial judge
    said, or for that matter, failed to say here, persuades us that the substantial
    deference that is his due should give way. The findings of credibility he made,
    as well the inferences he drew, were reasonable and firmly grounded in the
    evidence adduced at trial.

[14]

The appeal from conviction is dismissed.

The Appeal from Sentence

[15]

The appellant also contests the fitness of the sentence imposed upon him
    and tenders for reception evidence about his current circumstances. He invites
    us to reduce the carceral portion of the sentence to a term that may be served
    intermittently.

[16]

The appellant contends that the trial judge imposed a sentence that was
    harsh and excessive, one that failed to respect the principle of restraint, and
    paid insufficient heed to the fundamental principle of proportionality and the
    related principle of parity. He also invites us to consider fresh evidence
    about his health and the impact that an extended term of incarceration, such as
    that imposed here, will have on his family.

[17]

Mindful of the scope of appellate review of a sentence imposed at trial,
    we see no basis upon which we are entitled to interfere.

[18]

The trial judge canvassed the governing principles of sentencing, took
    into account relevant aggravating and mitigating factors; and considered the
    precedents with which counsel provided him. He received and considered the
    extensive submissions of counsel and had the benefit of a pre-sentence report
    and victim impact statement. The sentence he imposed sits comfortably within
    the range of sentence appropriate in such cases. It reflects no error in law or
    in principle and is not demonstrably unfit.

[19]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed.

"David Watt
    J.A."

"K. van Rensburg
    J.A."

"G. Pardu
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCullough, 2017 ONCA 315

DATE: 20170413

DOCKET: M47639 (C62159)

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

James McCullough

Applicant/Appellant

Catriona Verner, for the applicant

Elise Nakelsky, for the respondent

Heard: April 4, 2017

Application for the appointment of counsel pursuant to s.
    684(1) of the
Criminal Code
.

ENDORSEMENT

[1]

James McCullough was convicted of first degree murder and of committing
    an indignity to a human body. He applies
for the
    appointment of publicly-funded counsel under s. 684(1) of the
Criminal
    Code
to argue his appeal.

[2]

For the reasons that follow, I allow the application on a limited basis.

A.

Overview

[3]

The applicant was tried by Pomerance J. of the Superior Court of Justice
    sitting with a jury. Following his conviction he was sentenced to life
    imprisonment without parole for 25 years.

[4]

The basic facts are not in dispute. The applicant and the deceased took
    a taxi from Orangeville to a hotel in London. Sometime after checking in, the
    applicant killed the deceased, dismembered him and placed the body parts into
    two hockey bags. Some tissue was found to be missing from the deceaseds arm.

[5]

The Crowns theory was that the applicant planned the deceaseds murder
    in order to act out his fantasies of murder, dismemberment and cannibalism. The
    defence position was that the applicant was provoked to kill the deceased by an
    unwanted sexual advance and attempted sexual assault. The applicant acknowledges
    the use of disproportionate force, but asserts that he is guilty only of
    manslaughter or, at worst, second degree murder.

B.

The Governing Principles

[6]

Section
684(1) of the
Criminal
    Code
provides for the appointment of appellate counsel in certain
    circumstances:

684(1) A court of appeal or a judge of that court may, at any
    time, assign counsel to act on behalf of an accused who is a party to an appeal
    or to proceedings preliminary or incidental to an appeal where, in the opinion
    of the court or judge, it appears desirable in the interests of justice that
    the accused should have legal assistance and where it appears that the accused
    has not sufficient means to obtain that assistance.

[7]

The elements of the test
under s. 684(1)
    of the
Criminal Code
were summarized by Gillese J.A. in
R.
    v. Staples
, 2016 ONCA 392, 352 O.A.C. 392, at para. 34:

1. Does the applicant have the means to
    hire counsel privately?

2. Has the applicant advanced arguable
    grounds of appeal?

3. Does the applicant have the ability
    to effectively advance his or her appeal without the assistance of counsel?

[8]

The court must be satisfied, in the words of s. 684(1), that:
it appears desirable in the interests of justice that
    the accused should have legal assistance.
The onus is on the applicant:
R. v. Abbey
, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. In
Abbey
,
Watt J.A. observed, at para. 29, that t
he
    phrase, "the interests of justice", is a legal chameleon that takes
    its meaning from its surroundings and explained that it contemplates a
    judicial discretion exercisable on a case-by-case basis, citing
R. v.
    Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.

[9]

Justice Watt noted at para. 30 of
Abbey
:

The "interests of justice" in s. 684(1) must take
    cognizance not only of the broad access to appellate review contemplated by s.
    675 of the
Criminal Code
, but also of the expansive remedial powers of
    a court of appeal for which s. 686 provides. Justice demands that an accused
    who appeals against conviction for an indictable offence under s. 675 be
    afforded a meaningful opportunity to establish the merits of the grounds of
    appeal he or she advances. Justice demands, equally, that the court to which
    the appeal is taken be able to fully and properly exercise its broad review
    jurisdiction at the conclusion of the appeal:
Bernardo
, at para. 20.

[10]

After
    it is established that the accused does not have the means to hire counsel
    privately, which is conceded by the Crown here, s. 684 requires the court to undertake
    two inquiries. The first is into the merits of the appeal on the basis of the
    record. Given that, as in this case, the available record will often be
    incomplete, Watt J.A. stated in
Abbey
,

at para. 32, the
    merits inquiry simply requires the judge  to determine whether the grounds of
    appeal to be advanced are arguable, citing
Bernardo
, at para. 22. He
    added: This standard or threshold of an arguable case is a modest one.

[11]

The
    second inquiry is that after arguable grounds are found to exist, the judge
    must determine whether the applicant is able to argue the appeal without
    counsels assistance. I now undertake the inquiries.

C.

The Merits of the Appeal

[12]

The
    focus of the proposed appeal is set out in Mr. Lockyers appeal letter to Legal
    Aid Ontario. The applicant would attack the trial judges pre-trial ruling on
    the Crowns theory of the case, and her rulings on the admissibility of several
    pieces of evidence:
R. v. McCullough
, 2016 ONSC 1014.

(1)

The Ruling on the Crowns Theory of the Case

[13]

The
    trial judge determined that the Crown would not be permitted to advance the
    theory that the applicant had cannibalized the deceaseds remains. She found
    the evidence to be too speculative to be placed before the jury, at para 21,
    and stated, at para 23: There is not sufficient evidence to indicate that an
    act of cannibalism occurred, and this allegation shall not be placed before the
    jury. She ruled accordingly that the charge of indignity to a human body
    shall be restricted to an allegation that the accused dismembered the body of
    the deceased.

[14]

While
    the applicant agrees with this ruling, he disputes her conclusion that the
    Crown could pursue its theory that the applicant planned the deceaseds murder
    in order to act out his fantasies of murder, dismemberment and cannibalism.

(2)

The Rulings on the Evidence

[15]

The
    Crown sought to adduce three pieces of evidence supporting its theory,
    described by the trial judge in para. 28, that the accused's desire to cut up
    and eat a person was the motive behind the murder.

(a)

The Applicants Conversation with Brendan Carmichael

[16]

The
    applicant had a conversation with a psychiatric nurse, Brendan Carmichael, a
    year before the deceased was killed, in which he expressed an interest in
    killing and in cannibalism. The trial judge summarized the evidence, at para.
    27:

Mr. McCullough told the nurse that he had killed cats and cut
    up their insides. He said that he would do the same with a person and would
    consider eating it. He stated that, when you eat someone you take on their
    traits, you get their good qualities and their muscles.

[17]

The
    trial judge concluded that the probative value of the nurses evidence exceeded
    its prejudicial effect (at para. 32). She found there to be a logical nexus
    between the statements to Mr. Carmichael and the circumstances of the offence given
    the highly specific and unusual manifestation of violence  the dismemberment
    of a human body and consumption of the flesh (at para. 29). She was confident
    that a limiting jury instruction would allay the prejudicial effect.

[18]

The
    applicants counsel argues the evidence of Mr. Carmichael should have been
    admitted only with the references to cannibalism removed because it was
    overwhelmingly prejudicial and of limited probative value.

(b)

The Rap Lyrics

[19]

The
    second item of evidence the Crown wanted to introduce was a sheet containing
    rap lyrics written by the applicant. The police found it in searching the
    applicants home after the murder. The Crown argued the lyrics demonstrated the
    applicants fascination with murder, dismemberment and cannibalism:

Its me when I
    come thru the scene, homie, another day another dollar.  Only things in my
    dreams is your girl and your money, homie thinks im joking but aint a damn
    thang funny,

Ill dig ur
    pockets breack and jaw and ram a knife thru your tummy

You aint been
    thru half the shit I been through, ill go through, your whole crew, a routine
    used to

Chop em up and
    mail their parts to you

Im so fucking
    sick my favorite drink is the blood of a jew,

Always in the
    kitchen cooking but its never stew

Homie pass the pipe time for this rack to brew

[20]

The
    trial judge instructed herself, at para 36:

There is a risk that rap lyrics may be misinterpreted thus
    inflating the probative value of the evidence. The courts must be cautious in
    admitting this type of evidence: see
R. v. Simard
, 2000 SCC 61, as
    discussed in David Tanovich,
R. v. Campbell
: Rethinking the
    Admissibility of Rap Lyrics in Criminal Cases (2016), 24 C.R. (7th) 27, at p.
    33.

[21]

The
    trial judge considered, at para. 38, whether there was a concrete nexus
    between the specific details of the lyrics and the specific details of the
    crime and found, at para. 39, there to be an interconnection between the
    lyrics, the crime, and other evidence. In her view, the applicants statements
    to Mr. Carmichael provided a context that strengthens the nexus between the
    lyrics and the crime (at para. 39). She considered the evidence to be
    sufficiently probative to put to the jury, along with a limiting instruction
    to circumvent the potential for prejudicial reasoning (at paras. 42-43).

[22]

Applicants
    counsel submits the trial judge accurately described the rap lyrics in the jury
    charge as graphic and morbid and could be seen by some to be repulsive. Counsel
    points out that the trial judges discussion of dismemberment did not rely on
    the applicants ideation of cannibalism, and argues the rap lyrics ought to
    have been edited to remove any possible allusions to cannibalism.

(c)

The Dexter Photograph

[23]

The
    police found a photograph of the lead actor in the TV series "Dexter"
    in the applicants backpack. This is a character who murders people, dismembers
    them and disposes of the body parts. The trial judge excluded it on the basis
    that it did not have sufficient probity. I include this detail to complete
    the context for the trial judges rulings.

(3)

The principles respecting the merits inquiry applied

[24]

The
    Crown opposes the application on the basis that the appeal does not have
    sufficient merit to warrant the appointment of counsel for the applicant at
    public expense.

[25]

It
    is not my task in an application
for the
    appointment of publicly-funded counsel under s. 684(1) of the
Criminal
    Code
to decide the merits of the appeal, but only to determine whether
    they are arguable.

(a)

The Crowns position

[26]

On
    the relevance of the applicants cannibalistic ideation, the Crown points to
    the distinction the trial judge made, at paras. 22-24 of her ruling, between an
    act of cannibalism and the ideation of cannibalism. She did not allow the Crown
    to proceed with cannibalism as an allegation within the offence of committing
    an indignity to a human body because there was no evidence the applicant
    consumed the deceaseds flesh. The Crown argues that the ideation of
    cannibalism is quite distinct, and was part of the applicants motivation for
    the killing. The trial judge understood the difference and allowed the Crown to
    proceed because the evidence of cannibalistic ideation was strong and relevant
    to the applicants state of mind and his motivation.

[27]

The
    Crown accordingly takes the position that trial judge properly admitted the
    applicants utterances to Nurse Carmichael and his rap lyrics as evidence of
    his ideations of cannibalism on the basis that it was relevant to his motive
    for the murder. The Crown adds that the trial judge committed no error of law
    in her probative versus prejudicial analysis and deference ought to be given to
    her judgment in this regard. The Crown argues that the limiting instruction in
    relation to cannibalism was sufficient, as was the limiting instruction
    regarding the use of the rap lyrics and the precise and correct use to be made of
    the bad character evidence.

[28]

Finally,
    even if it was an error for the trial judge to permit the reference to
    cannibalism, the Crown submits the error is of minor importance because the
    evidence of the applicants planning and deliberation was significant, so that
    this was an overwhelming case of first degree murder.

(b)

The Applicants Position

[29]

The
    nub of the proposed appeal is this: the applicant will argue that the trial
    judge rightly ruled that the Crown could not pursue the theory that the
    applicant had cannibalized the deceased. That ruling rendered irrelevant any
    evidence related to the applicants cannibalistic ideation. But then,
    inconsistently with this ruling, the trial judge permitted the Crown to advance
    the theory the applicant planned the deceaseds murder in order to act out his
    fantasies of murder, dismemberment and cannibalism. The evidence was laced with
    prejudicial references to cannibalism, made considerably more salient because
    some of the deceaseds tissue was missing.

[30]

The
    applicant would argue that the trial judge got the probative value versus prejudicial
    effect balance right on the initial cannibalism ruling. However, the
    evidentiary rulings got the assessment of the probative/prejudicial balance wrong.
    The result, was a difficult jury charge that did not correct but instead
    compounded the prejudice, and inevitably led the jury to find the applicant
    guilty of first degree murder in the face of the otherwise available
    convictions of second degree murder and manslaughter.

(4)

Conclusion on the merits inquiry

[31]

As
    I noted earlier, it is not my task to decide the appeal, but only to decide if
    the merits are arguable. Moreover, it is incumbent on me to do little more than
    describe the parties arguments in view of the disposition of this application.
    I should avoid expressing a view on matters that will be the subject of a
    panels deliberations. As Watt J.A observed in
Abbey
, at para 32: This
    standard or threshold of an arguable case is a modest one.  Put simply, I find
    that the applicant has met that modest standard. I am persuaded that the trial
    judges admission of the statements to Mr. Carmichael and the rap lyrics gives
    rise to arguable grounds of appeal. This is particularly so given the
    relatively unsettled state of the law in relation to the admission of evidence
    of rap lyrics.

[32]

I
    turn to the second s. 684 inquiry.

D.

Can the
Applicant
Argue the Appeal Alone?

[33]

I
    must now determine whether the applicant should be left to argue this appeal on
    his own. In
Abbey
, at para. 33, Watt J.A. explained: This inquiry
    examines the complexities of the arguments to be advanced and the appellant's
    ability to make legal argument in support of the grounds of appeal to be
    advanced.

[34]

The
    Crown submits this applicant could effectively present his appeal without the
    help of a lawyer, particularly since Mr. Lockyers opinion letter appealing
    Legal Aid Ontarios refusal to fund the appeal argues the legal issues very
    well.

[35]

I
    disagree. The stakes for the applicant in the appeal, with a conviction for
    first degree murder, could not be higher. In my view, this appeal contemplates
    a complex and nuanced legal argument that requires careful excavation of the
    facts, the evidence, the jury charge and the law. The exercise would daunt many
    lawyers, let alone a lay person like the applicant, who is unsuited to the task
    by experience, education, capacity and personal disposition.

[36]

To paraphrase Watt J.A. in
Abbey
, in this case justice
    demands that the applicant be given a meaningful opportunity to establish the
    merits of the grounds of appeal, something he cannot do on his own. Justice
    also demands that the panel hearing the appeal be properly assisted by
    competent counsel.

E.

disposition

[37]

For
    these reasons, I have concluded that it would be appropriate to make an order
    under s. 684 of the
Criminal Code
. The next question to be determined
    is whether there should be limits on the scope of the appointment.

[38]

There
    are two issues about the scope. First, the applicant filed a rudimentary notice
    of appeal addressed to both conviction and sentence, citing the grounds of
    counsel incompetence and inadequate representation. This issue was not
    raised by Mr. Lockyer in his appeal letter to Legal Aid Ontario.

[39]

Second,
    in the course of her oral submissions, applicants counsel raised another area
    of possible appeal relating to the use of evidence of the applicants
    post-offence conduct by the Crown. This was not raised by trial counsel in her
    letter to Legal Aid Ontario, nor was it raised by Mr. Lockyer.

[40]

I
    would not include either of these issues in the mandate of appellate counsel.
    If the applicant wants to pursue the issues of post-offence conduct or
    ineffective assistance of counsel, he should bring another application to Legal
    Aid Ontario for funding in respect of that particular ground.

[41]

The
    position advanced by Mr. Lockyer in his letter, and discussed in these reasons,
    focused entirely on errors in the trial judges pre-trial rulings, which he
    asserts gave rise to a miscarriage of justice. I would limit the mandate of
    appellate counsel to addressing the effects of the pre-trial rulings on the
    fairness of the trial.

[42]

In
    my view, it would be appropriate to limit the appointment to a certain number
    of hours. I request the parties to advise the court if they are able to agree
    on this issue, and on the identity of appellate counsel to be appointed. If
    they are not, then I will accept written submissions from the applicant within
    10 days of the date of this decision, followed by the Crowns submissions
    within an additional 5 days.

[43]

The
    applicant will be represented by counsel appointed under s. 684(1)
Criminal
    Code
and counsels fees and disbursements, including preparation for and
    attendance on this motion, shall be paid by the Attorney General under s.
    684(2).

P. Lauwers J.A.