COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esrabian, 2013 ONCA 761

DATE: 20131218

DOCKET: C49134

Doherty, Blair and Watt JJ.A.

Her Majesty the Queen

Respondent

and

Shant Esrabian

Appellant

Howard C. Krongold, for the appellant

Susan Ficek and Avene Derwa, for the respondent

Heard:  November 22, 2013

On appeal from the conviction on a charge of first degree
    murder returned by a jury presided over by Justice Albert J. Roy of the Superior
    Court of Justice on June 21, 2008.

By the Court:

I

[1]

The appellant appeals his conviction on a charge of first degree murder.
    Counsel asserts errors in the charge to the jury and in two evidentiary rulings
    made by the trial judge.

[2]

The appellant had a bilingual trial.  However, he requested an appeal
    before an English-speaking panel.

II

[3]

The deceased (Hussein El-Hajj Hassan) was lured to a remote dead end
    road west of Ottawa on the evening of August 20, 2004 where he was shot twice
    and killed.  He was buried in a shallow grave dug about 60 metres from where he
    was shot.  His right arm was severed at the forearm and his skull was fractured
    in at least two places.  Those injuries were inflicted around the time of death.
    His body was found about a year later.

[4]

The Crown alleged that Hassan, a cocaine dealer in Ottawa, was murdered
    because he planned to circumvent his cocaine supplier, Fadi Saleh, and deal
    directly with Salehs supplier.  When Saleh found out about Hassans plan, he
    became very angry and decided to kill him.  Saleh enlisted the help of his
    enforcer, Mark Yegin, and the appellant, his friend and fellow drug
    trafficker.

[5]

The Crown maintained that the three men agreed to kill Hassan and that
    pursuant to that agreement, Yegin, who was Hassans friend, took him to a
    remote area under the pretense of introducing him to a powerful local drug
    dealer.  Instead, the appellant and Saleh arrived at the scene.  Hassan was
    shot twice and killed.  There was conflicting evidence as to who fired the
    fatal shots.  On the Crowns theory, it did not matter.

[6]

The case for the Crown rested in part on various statements made by
    Yegin that were admitted for their truth after Yegin refused to testify at the
    appellants trial.  These statements included several recorded interviews with
    the police and Yegins testimony at the appellants preliminary inquiry and
    Salehs preliminary inquiry.

[7]

Yegin told various stories in his statements.  He began by denying any
    involvement in the murder, but later conceded he was present at the murder
    scene and took the police to Hassans body.  Yegin also gave different accounts
    of the actual shooting.  In one account, Saleh shot Hassan much to the surprise
    of both the appellant and Yegin.  In Yegins final version of the shooting, the
    appellant shot the deceased twice and Saleh fired a third shot into the
    deceased.

[8]

Yegin was a thoroughly disreputable person.  The trial judge gave a
    strong
Vetrovec
warning with respect to reliance on the statements
    made by Yegin.

[9]

The Crown also relied on circumstantial evidence to implicate the
    appellant in the murder.  That evidence was reasonably capable of supporting
    the following inferences:

·

There was a close, ongoing personal and business relationship between
    the appellant and Saleh.  The business relationship involved trafficking in
    narcotics.

·

Saleh and the appellant had a mutual financial interest in
    preventing Hassan from circumventing Saleh by dealing directly with Salehs supplier
    of the cocaine.

·

The appellant and Saleh both directly benefitted financially from
    Hassans death.

·

Saleh and the appellant were together at or near the scene of the
    murder on the afternoon of the murder.

·

The grave where Hassans body was buried was partially dug prior
    to the murder.

·

Saleh, the appellant, and Yegin were present when Hassan was
    murdered and all three were involved in burying Hassan.

·

Beginning with the burial and stretching over several months, the
    appellant was involved in a series of activities designed to conceal the
    commission of the murder.

[10]

Much
    of the circumstantial evidence, especially as it related to the appellants involvement
    in the extensive efforts to conceal the murder, was unchallenged, although the
    appellant offered an innocent explanation for his actions.

[11]

We
    need not review the circumstantial evidence in detail.  Suffice it to say, and,
    of course, subject to the jurys assessment of the appellants testimony, the
    circumstantial evidence made out a formidable case against the appellant.

[12]

The
    appellant testified.  He acknowledged that he was a drug dealer, trafficking in
    both cocaine and marijuana.  He and Saleh were friends.  The appellant often
    accompanied Saleh on his drug deliveries and cash collections.  He knew Saleh
    to be both a drug trafficker and a loan shark.

[13]

The
    appellant testified that on the evening of the murder he drove with Saleh to an
    anticipated meeting with Hassan.  The appellant knew Saleh was angry about Hassans
    attempts to deal directly with Salehs supplier.  The appellant anticipated
    that Hassan would be told in no uncertain terms that he could deal only with
    Saleh.  The appellant also anticipated that if Hassan balked at Salehs
    demands, Saleh and his enforcer, Yegin, could resort to violence.  The
    appellant thought that they might slap or kick Hassan.  He did not expect that
    anyone would be shot.   The appellant indicated that he was not surprised that
    the meeting with Hassan occurred in a remote isolated area, or that Yegin would
    drive Hassan to the meeting in a separate car.

[14]

According
    to the appellant, when he and Saleh arrived at the meeting place, he saw Yegin
    order Hassan out of the car.  Yegin and Hassan spoke briefly.  While the
    appellant and Saleh were still in their car, Yegin hit Hassan with his gun and
    shot him twice.  The appellant heard a third shot seconds after he and Saleh
    had exited their car.

[15]

The
    appellant testified that he panicked when Yegin shot Hassan. Saleh told him to
    relax.  Yegin dragged the body into the nearby woods.  Saleh and the appellant
    retrieved the shovel and pick axe from the trunk of the car they had driven to
    the murder scene.  Yegin and the appellant dug a grave.  They placed the body
    in the grave, covered it with soil, and left the murder scene.  The three men
    returned to Salehs home, showered, changed, and disposed of their soiled
    clothes.  They also moved Hassans car, abandoning it in downtown Ottawa.  The trio
    then visited a casino and finished the evening by watching a movie together at
    Salehs home.

[16]

The
    appellant explained that, while he wanted nothing to do with Saleh after the murder,
    he was worried that Saleh would become suspicious if he immediately cut off all
    contact with Saleh.  He admitted that he received $30,000 from Saleh within a
    few days of the murder.  There was evidence that the $30,000 came from funds Hassan
    had given to Salehs drug supplier.

[17]

The
    appellant also admitted that he did other things to conceal the murder, such as
    sending a message on Hassans BlackBerry after the murder to make it appear as though
    Hassan was still alive.  The appellant insisted that he did these things
    because he feared for his life and for his familys well-being if he did not cooperate
    with Saleh and Yegin.

[18]

As
    with many of the witnesses in this case, there were significant problems with
    the appellants credibility.  He admitted he had lied under oath at his bail
    hearing, and he refused to identify an individual who, according to the
    appellants testimony, could confirm or refute an important part of the
    appellants testimony explaining the appellants presence at or near the murder
    scene on the afternoon of the murder.

III

the grounds of appeal

(A)

The Charge to the Jury

[19]

Counsel
    for the appellant argued that the trial judge:

1.

failed to
    instruct the jury that the Crown had to prove not only that the murder was
    planned and deliberate, but also that the appellant knew he was aiding and
    abetting a planned and deliberate murder when he provided assistance or encouragement
    to Saleh and/or Yegin;

2.

failed to relate
    the elements of first degree murder to liability as an aider and abetter, but instead
    limited his instructions to potential liability as the perpetrator of a first
    degree murder;

3.

failed to
    outline for the jury the factual findings it would have to make to find the
    appellant guilty as a participant in a first degree murder;

4.

misdirected the
    jury on the
mens rea
for murder required in s. 229(a)(ii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46; and

5.

misdirected the
    jury as to the appellants potential liability for manslaughter under s. 21(2) by
    instructing the jury that manslaughter was available only if the jury was not
    satisfied that Saleh and Yegin had committed a planned and deliberated murder.

[20]

Before
    examining each complaint, we note that most of the arguments raised on appeal
    were also raised by way of objections to the charge at trial.  The charge to
    the jury would have been better had the jury been recharged in accordance with
    several of counsels objections.  The question on appeal, however, is not
    whether a better charge could have been given, but whether the charge given
    reveals reversible error.

[21]

The
    first three arguments outlined above allege errors in the instruction on first
    degree murder.  They can be conveniently considered together.

[22]

Jury
    instructions must, of course, be considered as a whole and in the context of
    the trial.  That context includes the evidence adduced and the positions
    advanced by the Crown and defence.

[23]

The
    trial judge correctly instructed the jury on the concepts of aiding and
    abetting in reference to the charge of first degree murder.  For example, in
    reference to aiding, he said:

An aider may help another person commit an offence by doing
    something, or failing to do something.  It is not enough that the aider does or
    fails to do [something] that has the effect of helping the other person commit
    the offence.  The aider must intend to help the other person commit the offence.
     Actual assistance is necessary.  It is not enough that a person was simply
    there when the crime was committed by someone else.

On the other hand, if a person knows that someone intends to
    commit an offence, and goes to, or is present at the place where the offence is
    committed, to help the other person commit the offence, that person is an aider
    of the other of other offences and equally guilty of it.

Aiding relates to a specific offence, an aider must intend
    that the offence be committed, or know that the person intends to commit it,
    intends to help that person accomplish his goal.
It does not matter, as
    far as the aider is concerned, whether the person whom he aids are [
sic
]
    not on trial or cannot be convicted of the offence.  [Emphasis added.]

[24]

Prior
    to this instruction, the trial judge had read the indictment to the jury and
    reminded them that the offence in question was the offence of first degree
    murder.  The Crown relied only on the planning and deliberation definition of
    first degree murder.  The jury would have understood that the instruction on
    aiding and abetting as it related to knowledge of the offence and the intention
    to commit the offence referred to a planned and deliberate murder.

[25]

The
    trial judges instructions on the essential elements of the crime of first
    degree murder are problematic in that they presume that the Crowns case is
    based on the claim that the appellant was the shooter when in fact the Crowns
    case was that the appellant, Yegin, and Saleh had agreed to kill the deceased
    and that his murder was committed in furtherance of that plan.  The Crowns
    case turned not on the contention that the appellant was the shooter, but on
    the contention that he participated in the planned execution of Hassan.

[26]

For
    example, the trial judge, in instructing the jury on the elements of first
    degree murder, referred to causation and the commission of an unlawful act as
    two of the elements of the offence.  That instruction is no doubt essential in
    most cases of first degree murder where the Crown alleges that the accused
    perpetrated the murder.  In this case, however, there was no doubt that whoever
    shot the deceased caused his death and no doubt that the shooting amounted to
    an unlawful act.  The real question was whether the shooting was in furtherance
    of an agreement to kill the deceased and, if so, whether the appellant had been
    privy to that agreement.

[27]

We
    are satisfied, however, despite the misplaced focus of the instruction on the
    essential elements of first degree murder, that the trial judge adequately
    conveyed to the jury the essential questions that it had to determine in
    rendering a verdict.

[28]

Early
    in his instructions on the elements of first degree murder, the trial judge
    told the jury:

The Crowns theory, based on all of the evidence, is that it
    doesnt matter who shot Mr. Hassan,
this was a planned initiative on the
    part of three people, friends and business associates who decided together to
    murder the victim Mr. Hassan.
[Emphasis added.]

[29]

The
    trial judge then reviewed some of the evidence relevant to whether the three
    men had planned and deliberated the murder.  While the trial judge
    mischaracterized this as a causation issue, the instruction did convey the
    essential factual question to be determined: was the murder the result of a
    planned initiative on the part of the three people?

[30]

The
    trial judge effectively made the same point in discussing the element of
    planning and deliberation:

Now, again, what [the] Crown is relying on are the provisions
    of section 21, the party section, that
this was a planned and deliberate
    murder that was orchestrated and organized by three friends and business
    associates.
Thats what the Crowns position is on this.  That they
    worked, they planned this together.  [Emphasis added.]

[31]

The
    trial judge referred to some of the evidence that could assist the jury in
    determining whether the three friends and business associates had planned the
    murder together.

[32]

The
    trial judge also made it clear to the jury in outlining the positions of the
    defence and the Crown that the Crowns case on first degree murder rested on
    the contention that the appellant and his two friends had executed this
    planned and deliberate murder together.

[33]

Finally,
    in outlining the position of the defence, the trial judge referred to the
    appellants evidence that, while he was aware of a plan to confront and perhaps
    assault the deceased, he was unaware of any plan to kill him.  The trial judge told
    the members of the jury that if they believed or had a reasonable doubt about
    the appellants evidence, they must acquit the appellant.

[34]

Considering
    the instructions as a whole in the context of the evidence placed before this
    jury, we are satisfied that the jury would not have convicted the appellant of
    first degree murder on these instructions unless the jury was satisfied beyond
    a reasonable doubt that the appellant, with Saleh and Yegin, planned and then
    executed the murder of the deceased.  Any deficiencies in the charge did not
    undermine that essential and determinative finding.

[35]

The
    fourth alleged misdirection arises out of the trial judges instructions on the
    elements of murder as defined in s. 229(a)(ii) of the
Criminal Code
.
    The trial judge told the jury:

Crown counsel must prove that Mr. Esrabian either meant to kill
    Mr. Hassan, or meant to cause Mr. Hassan bodily harm that Mr. Esrabian knew was
    likely to kill Mr. Hassan,
or
was reckless whether Mr. Hassan died or not.
    [Emphasis added.]

[36]

The
    trial judge misstated the requirements of s. 229(a)(ii).  The word and should
    have been used instead of the word or.  Murder under s. 229(a)(ii) requires
    that the accused intend to cause bodily harm that he or she knows is likely to
    cause death
and
the accused must be reckless whether death ensues or
    not.

[37]

This
    error, unnoticed at trial, could not have had any effect on the jurys
    verdict.  The Crown argued that this was an execution.  The defence did not
    take issue with that assertion, but instead argued that the appellant did not
    know of the planned execution.  The jurys determination that the appellant was
    guilty of first degree murder indicates that the jury was satisfied that the appellant,
    Saleh, and Yegin had agreed to kill the deceased and had followed through with
    that plan.  On that view, only the definition of murder in s. 229(a)(i), which
    requires that an accused mean to cause death, could have possibly been
    engaged.  The minimally wider definition of the
mens rea
of murder in
    s. 229(a)(ii), misstated by the trial judge, could not have played any role in
    the jurys verdict.

[38]

The
    final alleged error in the jury instruction arises out of the trial judges
    instruction on the appellants potential liability for manslaughter pursuant to
    s. 21(2) of the
Criminal Code
.  Often where an accused is convicted of
    the full offence charged in an indictment, an error that relates only to
    potential liability for a lesser and included offence will be rendered harmless
    by the conviction on the full offence.  Counsel for the appellant submits,
    however, that the trial judges instruction effectively took manslaughter away
    from the jury and left the jury to choose between a conviction on first degree
    murder and the unpalatable alternative of an outright acquittal.  Counsel
    submits that given the appellants admitted involvement in the events
    surrounding and following the murder, the jury would have been reluctant to
    acquit him.  On this argument, the absence of a proper instruction on potential
    liability for the lesser offence could have driven the jury to convict on the
    full charge, rendering the misdirection on manslaughter far from harmless
    despite the conviction on the main charge.

[39]

The
    initial instruction on the appellants potential liability for manslaughter
    under s. 21(2) was confusing and, in at least one respect, overly favourable to
    the appellant.  The recharge cleared up some, but not all, of the confusion
    arising out of the initial charge.  We are satisfied, however, that the
    confusion could not have prejudiced the appellant.

[40]

As
    we read the s. 21(2) instruction on manslaughter, that instruction was premised
    on the appellants participation in an agreement to do some form of harm to Hassan
    short of killing him.  The appellants potential liability for manslaughter
    under s. 21(2) depended on the jury accepting the appellants contention that
    he was party to a plan involving some form of assault, but not murder.  The
    jurys verdict demonstrates that it was satisfied beyond a reasonable doubt
    that the appellant participated in the planned execution of Hassan.  The jury, therefore,
    was never called upon to consider the appellants liability for manslaughter as
    a participant in some agreement short of the agreement to execute Hassan.

(B)

The Evidentiary Rulings

(i)

Salehs
    statements

[41]

In
    one or more of the out-of-court statements made by Yegin and admitted at the
    appellants trial under the principled exception to the hearsay rule, Yegin
    stated that some two or three months after the murder, Saleh told him that he
    wanted to move the deceaseds body because he did not trust the appellant.
    Saleh also asked Yegin to kill the appellant.  It was unclear exactly when
    these statements were made and whether they were made in two different
    conversations or in the same conversation.

[42]

The
    jury was aware of these alleged statements in that they were in the transcripts
    of Yegins statements read to and given to the jury.  The defence, however,
    asked that the trial judge instruct the jury that the statements were evidence
    of Salehs state of mind toward the appellant and that Salehs mistrust of and animosity
    toward the appellant were evidence that the appellant had not been a party to
    the plan to murder Hassan.

[43]

The
    statements, attributed to Saleh by Yegin some months after the murder, could
    not have assisted the jury in determining the nature of the appellants
    participation in the murder of the deceased.  To the extent that Salehs
    statements were offered as evidence from which his state of mind could be
    inferred, Salehs state of mind months after the homicide had no logical
    connection to the nature of the appellants participation in that homicide.
    Evidence that, some months after the murder, Saleh had come to intensely dislike
    and distrust the appellant could not logically give rise to any inference about
    the nature of the appellants involvement or non-involvement in the planning
    and murder of Hassan.

[44]

To
    the extent that the appellant offers the statements as implied assertions by
    Saleh that the appellant was not a participant in the plan to murder Hassan,
    those statements are now classified as hearsay and were admissible only if the
    necessity and reliability criteria were met:  see
R. v. Baldree
, 2013 SCC
    35, 298 C.C.C. (3d) 425, at paras. 44-54.  Neither criterion is met.

[45]

The
    defence did not attempt to call Saleh or offer any explanation for an inability
    to call Saleh.  Necessity is not demonstrated.

[46]

Nor
    is the evidence sufficiently reliable as an implied assertion that the
    appellant was not involved in the plan to execute the deceased to justify its
    admission into evidence.  Reading an implied assertion into Salehs comments to
    the effect that the appellant was not involved in the killing is no more
    tenable a reading of those statements than one implying that the appellant was
    involved, but could no longer be trusted.  The nature of the statements simply
    does not allow any reliable conclusion as to the implied assertion, if any,
    contained in the statements.  Any determination as to what, if anything, Saleh
    implied about the appellants involvement in the murder in his statements to
    Yegin would be entirely unreliable absent any opportunity to question Saleh
    under oath.

[47]

The
    trial judge correctly declined to admit Salehs statements, as reported by
    Yegin, as evidence going to the question of whether the appellant participated
    in the plan to murder Hassan.  On appeal, counsel suggested other possible uses
    of those statements  for example, to challenge Yegins credibility on certain
    points.  We do not understand the trial judge to have precluded that kind of
    use of Salehs statements at trial.

(ii)

The
    wiretaps

[48]

Over
    defence counsels objection, Crown counsel was allowed to introduce some
    intercepted conversations involving the appellant.  In those conversations, the
    appellant threatened individuals who owed him money, or spoke of threatening
    others who had in some way disrespected him or failed to pay money owed to
    him.  Some of the language used in the conversations is jarringly crude.  The
    conversations occurred a few months after the murder.

[49]

The
    trial judge did not err in admitting the intercepted conversations.  At trial,
    the Crown argued that Yegin, Saleh, and the appellant were all involved in the drug
    trafficking business and that they executed Hassan because he was attempting to
    avoid his direct financial responsibilities to Saleh, his drug supplier.  On
    the Crowns theory, Hassan was not only interfering with Salehs operation, but
    was also indirectly compromising the appellants financial interest in the drugs
    purchased from Saleh by Hassan.  Evidence of the way the appellant responded to
    those he perceived as cheating him or failing to meet obligations owed to him
    in the course of his criminal activities was relevant to the case as advanced
    by the Crown.

[50]

Evidence
    of the way the appellant reacted when he did not receive money due to him in
    the course of his criminal activities became more significant when the
    appellant testified.  He admitted that he was a drug trafficker and that the
    meeting which culminated in Hassans murder was precipitated by Salehs anger
    over Hassans attempt to cut Saleh out of the chain of supply.  The appellant
    insisted, however, that he did not anticipate the kind of violence used by his associates
    and fellow drug traffickers, Saleh and Yegin.  Evidence from the intercepted
    conversations could assist the jury in assessing the credibility of the
    appellants assertion that he thought that Hassan would suffer nothing more
    than a slap or a kick.

[51]

We
    also agree with Crown counsels submission that, having regard to the kind of the
    evidence necessitated by both the nature of the Crowns case and the nature of
    the appellants defence, there was little danger that the conduct revealed by
    the intercepted communications would prejudice the appellant in the sense that
    it would cause the jury to convict the appellant because of his bad character.
    It was crystal clear from all of the evidence, including the defence, that the
    appellant operated in and was part of the violent world of drug trafficking.
    Indeed, the violence associated with the drug trafficking world was central to the
    appellants explanation of his apparent cooperation with Yegin and Saleh in the
    months after the murder.  On his evidence, he feared for his life and the lives
    of his family members if he did not cooperate with Saleh and Yegin.

[52]

The
    trial judge made it clear to the jury that it could not use the contents of the
    wiretaps to infer that, because the appellant was a person of bad character, he
    was guilty of the offences charged.  Nor did the intercepted communications
    reveal conduct by the appellant that was significantly different or worse than
    the conduct acknowledged by the appellant in his evidence.  Setting aside the crude
    language used in the conversations, the tenor of those communications was
    consistent with the appellants own evidence about the nature of the drug
    business.

[53]

Ultimately,
    the intercepted communications were but a small part of the evidence heard by
    the jury.  Even if those conversations could not significantly advance the
    Crowns case, their admission could not have prejudiced the appellant in any
    meaningful way.

(C)

Conclusion

[54]

The
    appeal is dismissed.

RELEASED:  DD  DEC 18 2013

Doherty J.A.

R.A. Blair J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gibbons, 2013 ONCA 777

DATE: 20131220

DOCKET: M43201 (C56895)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Gibbons

Appellant/Applicant

Nicolas Rouleau, for the applicant

Jennifer Mannen, for the respondent

Heard: December 17, 2013

On application to appoint counsel pursuant to s. 684 of
    the
Criminal Code
on an application for leave to appeal from the
    judgment of Justice Gary T. Trotter of the Superior Court of Justice, sitting
    as a summary conviction appeal judge, dated March 15, 2013, with reasons
    reported at 2013 ONSC 1403, dismissing the appeal from the conviction entered on
    April 12, 2011, by Justice Mara B. Greene of the Ontario Court of Justice.

Juriansz J.A.:

[1]

This is an application for funding under s. 684 of the
Criminal Code
,
    R.S.C. 1985, c. C.46 (the
Code
).

[2]

The applicant was found guilty by a judge of the Ontario Court of
    Justice on a charge of disobeying a court order, contrary to s. 127 of the
Code
.
    The court order she breached was an interlocutory injunction made in a civil
    case in 1994. In 1994, the applicant was a named defendant in
Ontario (Attorney
    General) v. Dieleman
(1994), 20 O.R. (3d) 229 (Gen. Div.). The applicant
    and the other defendants were engaging in protests outside of abortion clinics,
    including the Scott Clinic in Toronto. The Attorney General obtained an interim
    injunction prohibiting the applicant and others from being within 60 feet of
    the clinics while they were open, and from engaging in a number of specified
    activities in the vicinity of the clinics. The case never proceeded to trial
    and the interim injunction has remained in force.

[3]

The applicant was found guilty of disobeying the order in January 2009
    by standing directly in front of the Scott Clinic and holding a sign. The
    police cautioned the applicant and asked her to move. When she refused, she was
    arrested, charged and convicted of a breach of s. 127. Her appeal to the
    Superior Court of Justice was dismissed, and she wishes to seek leave to appeal
    to this court. She has been refused a legal aid certificate by the Group
    Applications and Test Cases Committee of Legal Aid Ontario.

[4]

The applicant seeks to raise two arguments on appeal. She challenges the
    constitutionality of s. 127 and argues that the proceedings against her should
    be stayed as an abuse of process. Counsel for both the applicant and the Crown
    agree that the application turns on the merit of the proposed appeal. I am
    satisfied the applicant cannot advance the complex legal arguments herself, and
    the parties agree that the applicant meets the other criteria for funding. Counsel
    did not provide a case defining the standard to be met to obtain s. 684 funding
    for an application for leave to file a second appeal. The usual merits test for
    funding a first appeal is laid out by Doherty J.A. in
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.). In my view, when the issue is an
    application for leave to file a second appeal, the applicant must establish
    that it is reasonably arguable that leave to appeal should be granted.

[5]

I will consider the applicants arguments in light of this standard.

(1)

The constitutional argument

[6]

Section 127(1) of the
Code
provides as follows:

127. (1) Every one who, without lawful excuse,
    disobeys a lawful order made by a court of justice or by a person or body of
    persons authorized by any Act to make or give the order, other than an order
    for the payment of money, is,
unless a punishment or other mode of
    proceeding is expressly provided by law
, guilty of

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

(b) an offence punishable on summary conviction. [Emphasis
    added.]

[7]

The applicants argument focuses on the excepting phrase unless a
    punishment all other mode of proceeding is expressly provided by law. She
    submits that the excepting phrase of s. 127 impermissibly delegates to the
    provinces a role in defining what behavior is criminalized. A province by
    enacting an other mode of proceeding is able to determine the scope of
    behavior to which s. 127 applies. Neither of the courts below dealt with this
    aspect of the applicants argument. I consider that it is reasonably arguable
    that leave to appeal should be granted on this issue.

(2)

The abuse of process argument

[8]

The abuse of process argument is not as clear. The trial judge found as
    a fact that all parties were content with the pace of the litigation. The
    confusion about whether the applicant was represented was due to a minor
    misstep and did not result in any prejudice to her. She was well aware of the
    interim injunction was still in force when she engaged in protest in front of
    the Scott Clinic in January 2009. A finding of abuse of process is reserved for
    the clearest of cases and the applicant cannot launch a collateral attack on
    the validity of the order: see
R. v. Nixon
, 2011 SCC 34, [2011] 2
    S.C.R. 566, at paras. 33-42.

[9]

Counsel for the applicant submits there is no collateral attack. He
    recognizes the validity of the order but argues it is unenforceable against
    her. He submits that the Attorney General, upon obtaining an interim injunction
    that interferes with the freedom of expression of an individual, has a duty to
    move the case forward to trial to avoid an order intended to be temporary
    remaining in place permanently.

[10]

In
    my view the applicants position is weak but reasonably arguable on a leave
    application. The standard of reasonably arguable does not require that I be
    satisfied at this stage that leave to appeal should be granted.

(3)

Conclusion

[11]

In
    my opinion, it is desirable in the interests of justice that the applicant be
    represented and that counsel be appointed to represent her on an application
    for leave to appeal to this court, and if leave is granted, on the appeal.
    Should Legal Aid decline to issue a certificate on a reconsideration
    contemplated under s. 28(6) of the
Legal Aid Services Act, 1998
, S.O.
    1998, c. 26, an order under s. 684 shall issue.

Released: December 20, 2013

R.G. Juriansz 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, 172, 172.1, 173, 210, 211,
    212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horton, 2013 ONCA 735

DATE: 20131205

DOCKET: C56207

Doherty, LaForme and Pepall JJ.A.

Her Majesty the Queen

Appellant

and

Christopher Horton

Respondent

Philippe G. Cowle, for the appellant

Howard L. Krongold, for the respondent

Heard and released orally:  November 27, 2013

On appeal from the acquittals entered by Justice Sheppard
    of the Ontario Court of Justice, dated October 2, 2012.

ENDORSEMENT

[1]

The charges arose out of events that occurred some 20 to 25 years ago
    when the complainant was a young girl and the respondent was living with the
    complainant and her mother.  This was a straightforward three-witness case.
    The outcome turned entirely on the trial judges assessment of the credibility
    and reliability of the witnesses, particularly the complainant and the
    respondent.  That assessment, of course, had to occur in the context of the
    well-known three-part test described in
R. v. W.D.

[2]

Despite Crown counsels vigorous argument, we are satisfied that the
    trial judge did consider all of the evidence and did assess both the
    complainant and the respondents evidence in the context of the entirety of the
    evidence.  The trial judge indicated he had done so on several occasions in the
    course of his reasons.

[3]

The trial judge did not reject the complainants evidence as unreliable
    because of the historical nature of the allegations or because her evidence was
    not confirmed in any way as it related to the actual alleged sexual
    misconduct.  Instead, the trial judge referred to these two things, among
    others, as factors that were relevant to his assessment of the entirety of the
    evidence.  He was correct in doing so.

[4]

We do not think that the trial judge ultimately rejected the
    complainants evidence.  Instead, he determined that he was unable to reject
    the respondents evidence to the degree necessary to be satisfied beyond a
    reasonable doubt.  This left him in the position described in the second arm of
    the
W.D.
test.  He correctly applied that test and the acquittals
    followed.  This case turned more on a failure of proof of guilt to the level
    required to establish guilt beyond a reasonable doubt than it did on a finding
    that the complainants evidence was unreliable or incredible.  The essence of
    the trial judges analysis is captured in his closing words:

This is not to say and I am not saying that things may well
    have happened to N.E. and that she was quite proper to disclose those to
    medical authorities.  This judgement stands for the proposition that it is
    always the states responsibility to prove those matters beyond a reasonable
    doubt if a criminal sanction is sought and they are unable to do so because of
    the historical nature of these allegations, I believe.

[5]

Counsel also argued that the reasons were so inadequate as to give rise
    to an error in law.  We cannot agree with this submission.  In our view, the
    trial judge made it clear that he was acquitting on the basis that the
    respondents evidence, considered in the context of the entirety of the
    evidence, left him with a reasonable doubt.  In our view, the trial judges
    reasons did permit appellate review.  Any complaints with those reasons beyond
    that do not give rise to an error in law.

[6]

The appeal must be dismissed.

Doherty J.A.

H.S.
    LaForme J.A.

S. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jesuthasan, 2013 ONCA 779

DATE: 20131223

DOCKET: C54270

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesuthasan Santhanarasa

Appellant

Michael Dineen and Victoria Rivers, for the appellant

Frank Au, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on October 6, 2010
    by Justice
Anne Mullins
of the Superior Court of
    Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred in ruling that part of
    the proceedings at trial could be translated simultaneously rather than
    consecutively, and requests a new trial.

[2]

The appellant was charged and convicted of aggravated assault.  The
    victim was stabbed in the abdomen.  The appellants position at trial was that
    he was not responsible for the stabbing.  The incident occurred at a birthday
    party.  Eyewitnesses to the event testified in Tamil, the language of the
    accused, with consecutive interpretation into English.  However, the trial
    judge permitted an English-speaking crime scene officer whose photographs were
    entered into evidence to testify with simultaneous interpretation.  His
    evidence was uncontroversial. The submissions and charge were also interpreted
    simultaneously.

[3]

The appellant submits that this was wrong for two reasons:

a)

Simultaneous
    interpretation is more difficult than consecutive interpretation, and the
voir
    dire
into the competence of the interpreter did not establish a facility
    in both modes.

b)

The process of
    simultaneous interpretation does not permit a record to be made that would
    allow an assessment after the trial of the accuracy of the simultaneous
    interpretation.

[4]

In
R. v. Tran
, [1994] 2 S.C.R. 951, at p. 989, the court
    indicated that both simultaneous and consecutive interpretation could satisfy
    the requirement of contemporaneity:

To meet the constitutionally guaranteed standard of protection
    under s. 14 of the
Charter
, interpretation must take place
    contemporaneously with the proceeding in question.  Here, it may be useful to
    keep in mind the distinction between consecutive (after the words are spoken)
    and simultaneous (at the same time as words are spoken).  While it is
generally

preferable
that interpretation be consecutive rather than
    simultaneous,
the overriding consideration is that the interpretation be
    contemporaneous
. [Emphasis added.]

[5]

Here the trial judge embarked on a hearing for the purpose of assessing
    the competence of the interpreter.  Her conclusion that the interpreter was
    competent and qualified by way of her education, training and experience to
    interpret the proceedings and met the standard set by
R. v. Tran
 was
    reasonable on the evidence before her.  An independent review of the
    consecutive interpretation, admitted as fresh evidence, confirmed that there
    were only a few minor errors and that the interpreter met the standard for
    competence.

[6]

During the competency
voir dire
, neither Crown nor defence
    counsel questioned the interpreter about the differences in abilities required
    for simultaneous as opposed to consecutive interpretation or about the
    interpreters experience and ability in providing simultaneous interpretation.
    The trial judge was not obliged to go further.  The evidence before her was
    sufficient for her to conclude that the interpreter could competently do both.
    There is no evidence from the appellant suggesting that he had any difficulty
    with the interpretation at trial.

[7]

Having regard to the qualifications of the interpreter, and the
    uncontroversial nature of the evidence interpreted simultaneously, the trial
    judge did not err in allowing this to take place.

[8]

The additional time required for consecutive interpretation,
    particularly in the context of a jury trial, the difficulty of finding
    qualified interpreters to meet the needs of the courts, and the difficulty of
    creating a record of simultaneous interpretation are all factors which could
    properly bear on this decision.  It may be that technological changes would now
    permit at least provision of an audio digital record of simultaneous
    interpretation, however the whispered and simultaneous nature of the activity
    may make even that difficult.  If possible, it would be better to have a record
    of the simultaneous interpretation; however, the absence of that record,
    without more, does not make the simultaneous interpretation explicitly
    permitted in
R. v. Tran
insufficient.

[9]

For these reasons, the appeal is dismissed.

M. Rosenberg J.A.

Paul Rouleau J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louro, 2013 ONCA 770

DATE: 20131219

DOCKET: C56829

Doherty, MacPherson and Tulloch JJ.A.

Her Majesty the Queen

Respondent

and

Valdemar Louro

Appellant

Lambert K. Kwok and Faisal Mirza, for the appellant

Rick Visca, for the respondent

Heard and released orally:  December 12, 2013

On appeal from the conviction entered by Justice McLeod
    of the Ontario Court of Justice, dated December 19, 2012.

ENDORSEMENT

[1]

This is an appeal from conviction on charges of trafficking in cocaine
    and possession of the proceeds of that trafficking.  The Crown alleged that the
    appellant was the back end supplier of cocaine to a man named Williamson.  Williamson
    dealt directly with the undercover officer.  Williamson testified at the
    appellants trial, but professed to have no recollection of the relevant
    events.  The undercover officer also gave detailed evidence of the
    transaction.  The appellant chose not to testify.

[2]

There are three grounds of appeal.

(1)

Issue
    #1  The trial judge misapprehended the evidence in finding as a fact that
    Williamson did not have the cocaine in his possession before meeting with the
    appellant.

[3]

The trial judge thoroughly reviewed the evidence.  On the evidence he accepted,
    particularly the evidence of the undercover officer as confirmed in many
    respects by the surveillance, the trial judge concluded that there was no air
    of reality to the suggestion that Williamson had the cocaine in his possession
    before meeting with the appellant and that his interactions with the appellant
    prior to delivering the cocaine to the undercover officer were all part of some
    ruse.

[4]

It was open to the trial judge to come to that conclusion on this
    evidence.  There is no misstatement of the evidence in the trial judges
    reasons.  Nor, in our view, is there anything to support the submission that he
    failed to consider material evidence.  The trial judges thorough review of the
    evidence suggests the contrary.

(2)

Issue
    #2  Was there evidence to support the conviction of the appellant on the
    charge of possession of the proceeds of crime?

[5]

The trial judge found that the appellant and Williamson were engaged in
    a conspiracy to traffic in cocaine.  The trial judge found that Williamson sold
    cocaine to the undercover officer in furtherance of that agreement and received
    cash from the undercover officer.  It follows from those findings that the
    appellant was, as a matter of law, in possession of the proceeds of the sale
    just as much as Williamson was in possession.  The conviction on this count
    flowed directly from the conviction on the count of trafficking.

[6]

We note that at trial no separate submissions were made on this count
    and the trial judge did not give separate consideration to this count.  The
    manner in which counsel and the trial judge proceeded is consistent with the
    view that the parties accepted that liability on this count depended on the
    finding on the trafficking count.

(3)

Issue
    #3  Did the trial judge fail to consider exculpatory evidence at stage one of
    the
Carter
 analysis?

[7]

This argument is essentially the same as the first argument advanced by
    the appellant.  In our view, there is no basis in this record to conclude that
    the trial judge did not consider all of the evidence relevant to the question
    of whether the alleged conspiracy existed.

[8]

The appeal is dismissed.

Doherty J.A.

J.C. MacPherson J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Neekan, 2013 ONCA 756

DATE: 20131212

DOCKET: C56270

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Reuben Lee Neekan

Appellant

Graeme A. Hamilton, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: December 10, 2013

On appeal from the convictions entered on June 7, 2012 by
    Justice A.Thomas McKay of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant Isaiah Neekan appeals his convictions by Justice A. Thomas
    McKay of the Ontario Court of Justice at Sioux Lookout on June 7, 2012, for
    possession of a weapon for a dangerous purpose and aggravated assault.

[2]

The events that gave rise to the charges took place at Robin
    Basketwangs home.  The only people present were the accused, his brother,
    Wayne Neekan, and his cousin, Mr. Basketwang.  The Crown alleged that, after a
    long evening party involving a great deal of drinking, there was an altercation
    in which the appellant slashed Mr. Basketwang near an eyelid with a knife.

[3]

The main Crown witness was the appellants brother, Wayne.  The
    appellant testified and another defence witness was Albert Neekan, Isaiahs and
    Waynes uncle, who was not present in the Basketwang home that evening.

[4]

The appellant appeals his convictions on four grounds, three relating to
    the trial judges reasons and one relating to fresh evidence.

[5]

First, based on the fresh evidence, the appellant asserts that there
    were deficiencies in the interpretation of Alberts evidence by a qualified
    Ojibway interpreter that resulted in a miscarriage of justice.

[6]

We disagree.  Albert was a very peripheral witness, his testimony was
    not even mentioned in the trial judges reasons, and, in our view, although
    there may have been one or two material differences between the in-the-moment
    interpretation at the trial and the more comprehensive translation tendered as
    fresh evidence, they did not affect the result, given the trial judges
    reasons.  The fresh evidence could not have made a difference and is,
    therefore, not admitted.

[7]

Second, the appellant asserts that the trial judge misapprehended the
    evidence in finding that the appellants account of his altercation with the
    victim was inconsistent with the victims injuries.

[8]

We disagree.  The trial judge reasonably compared the victims injury
    with the appellants explanation and reached an entirely reasonable conclusion.

[9]

Third, the appellant submits that the trial judge erred by permitting
    the Crown to adduce evidence of the appellants bad character to establish a
    general disposition for violence and by subsequently relying on this evidence
    in his reasons for judgment.

[10]

We
    disagree.  The evidence that was labelled bad character evidence was led by
    the appellant and was a necessary part of his theory of the case, namely, that
    he gave his knife to the victim because he did violent things when
    intoxicated.  The trial judge treated this evidence within this context, merely
    mentioning it in his summary of the appellants own testimony.

[11]

Fourth,
    the appellant submits that the trial judge erred by inferring from Waynes
    post-event conduct  taking the victim to a medical clinic for treatment  that
    he was a credible witness.

[12]

The
    trial judge did not draw a negative inference against the appellant from
    Waynes conduct supporting the injured victim.  He simply used this evidence as
    supportive of Waynes description of the events of the evening, including
    whether the appellant attacked the victim.

[13]

The
    appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.