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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Lai, 2021 ONCA 139

DATE: 20210304

DOCKET: C68031

Doherty, Watt and van Rensburg
    JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Shu-Seng Lai

Respondent

Alexander Alvaro, for the appellant

Matthew Gourlay, for the respondent

Heard: February 26, 2021 by video conference

On
    appeal from the acquittals entered by Justice Nancy M. Mossip of the Superior
    Court of Justice, dated January 15, 2020, reported at
R. v. Lai
, 2020
    ONSC 0231.

REASONS FOR DECISION

[1]

The respondent, a practitioner of Traditional
    Chinese Medicine (TCM), was charged with sexually assaulting three clients.
    The alleged assaults occurred in the course of the respondents purported
    treatment of the complainants. With respect to C.B. and L.B., the defence conceded
    the relevant touching occurred, but argued it was part of an appropriate TCM
    treatment referred to in the evidence as energy work. With respect to the
    allegations of S.C., which the defence conceded did not involve conduct which
    could be described as acceptable TCM treatment, the defence maintained the
    conduct never occurred.

[2]

The appellant did not testify. An expert in TCM
    did testify, describing the accepted treatments and techniques used in various TCM
    treatments, including energy work. The treatments could include touching and
    massaging of a clients chest and touching of the pelvic area, just above the
    vagina. Touching of the vagina or labia was not part of any accepted treatment.
    In any event, whatever the treatment, it was essential that the practitioner
    obtain the clients consent to any touching.

[3]

The trial judge acquitted the respondent on all
    counts. In doing so, she held that the evidence of each complainant was not
    admissible as similar fact evidence on the counts involving the other
    complainants.

[4]

The Crown appeals.

[5]

The appeal focuses primarily on the trial
    judges treatment of one part of C.B.s evidence. C.B. testified that during a
    session involving energy work, the respondent rubbed her breasts under her
    sweater and touched her labia. Shortly afterward, she spoke to the respondent
    on the telephone. According to C.B., the respondent said he wanted her to come back
    for another energy treatment and he intended to put his finger in her vagina.

[6]

The Crown claimed the statement made by the
    respondent was evidence rebutting the defence contention that any touching
    during the prior session involved appropriate treatment. The Crown also argued
    the statement was a tacit admission of the prior assault and an indication of the
    respondents intention to repeat the assaultive conduct, if afforded the
    opportunity.

[7]

The defence argued, among other things, that
    C.B.s evidence concerning the substance of the conversation with the
    respondent was unreliable and should not be accepted as an accurate account of
    the conversation.

[8]

The trial judge reviewed C.B.s evidence at
    length. With respect to her evidence about the phone call with the respondent
    shortly after the alleged assault, the trial judge concluded, at para. 463:

The evidence as to the phone call and its
    contents did not assist me one way or the other as to the nature of the
    touching that occurred on October 9, 2012. I cannot rely on C.B.s testimony as
    to what was said on that call and attribute a guilty mind to Mr. Lai as
    suggested by the Crown.

[9]

The Crown submits the trial judge erred in law
    by failing to properly analyze the relevance and probative value of C.B.s
    evidence concerning the statement made to her by the respondent during the
    phone call. The Crown argues the trial judge wrongly limited her consideration
    of the probative value of the evidence to its potential admissibility as post-offence
    conduct going to the respondents state of mind.

[10]

We cannot agree with Crown counsels
    interpretation of the trial judges reasons at para. 463. In our view, in that
    passage the trial judge indicated she was not prepared to accept C.B.s evidence
    as to the content of the conversation she had with the respondent. In short, the
    trial judge could not find the respondent said what C.B. testified he had said
    during the conversation. Absent a finding the statement was made, there was no
    basis upon which to go on and consider the inferences that could or could not
    be drawn from that statement had it been made.

[11]

The trial judge gave two reasons for finding
    that C.B.s evidence concerning the conversation was unreliable (see paras.
    461-62). Both reasons are supported in the evidence.

[12]

It was open to the trial judge to come to the
    conclusion she did in respect of the reliability of C.B.s evidence. More
    importantly, for the purposes of this appeal, her determination as to the
    reliability of that part of C.B.s evidence did not give rise to any question
    of law upon which the Crown could appeal to this court. Deciding what evidence
    to accept as reliable and what evidence to reject as unreliable is an essential
    first step in the fact-finding process. This evidence failed to clear that
    first hurdle. The Crown cannot point to any error in law tainting the trial
    judges finding.

[13]

The Crowns second ground of appeal arises out
    of the trial judges similar fact ruling. The Crown candidly acknowledges this
    ground cannot succeed if the first ground of appeal fails. As we have rejected
    the first ground, it follows that this ground of appeal fails as well.

[14]

The appeal is dismissed.

Doherty
    J.A.
David Watt J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lancaster, 2021 ONCA 184

DATE: 20210323

DOCKET: C68692

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Lancaster

Appellant

Tamar Bitton, for the appellant

Nicholas Hay, for the respondent

Heard and released orally: March 19, 2021 by
    video conference

On appeal from the sentence imposed on July 27, 2020 by
    Justice Angela L. McLeod of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal his sentence of 8 months less 106
    days of credit for pre-sentence custody for his conviction for dangerous
    operation, resisting arrest, breach of probation, and breach of a release
    order. He also asks that the 12-month driving prohibition be struck from the
    probation order imposed. Lastly, he seeks leave to admit fresh evidence.

[2]

The appellant submits, and the Crown concedes, that the sentencing judge
    erred in imposing a sentence exceeding that proposed by the parties in the
    absence of inviting additional submissions. Both submit that the appellants
    sentence should be reduced to time served.

[3]

The sentence of six months less credit for pre-sentence custody
    originally proposed by the Crown was fit. However, the fresh evidence discloses
    that the appellant has made significant progress towards rehabilitation.

[4]

The appellant received bail pending appeal on September 29, 2020. The
    31-year-old appellant has been gainfully employed since October 2020.
    Importantly, he is addressing his drug addiction through Narcotics Anonymous.
    He has strong family and employer support. He is currently nine days shy of the
    warrant expiry date based on a six-month sentence. It is not in the public
    interest to subject the appellant to reincarceration. His sentence should be
    reduced to time served.

[5]

As for the driving prohibition, the sentencing judge found his driving
    to be abominable. At his sentencing hearing, the appellant sought a driving
    prohibition of six months. As such, the imposition of such a condition cannot
    be considered inappropriate. In our view, a 12-month driving prohibition is a
    fit condition in the circumstances of the offences. We see no reason to
    interfere with the conditions imposed by the sentencing judge.

[6]

The issue of the
Duncan
credit is moot given that we have
    reduced the sentence to time served. We see no need to address this issue on
    the record before us.

[7]

Leave to admit the fresh evidence and to appeal sentence are granted and
    the sentence appeal is allowed. The appellant is sentenced to time served on
    the same conditions imposed by the sentencing judge.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2021 ONCA 59

DATE: 20210201

DOCKET: C67318

Rouleau, van Rensburg and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angella Lewis

Appellant

Angella Lewis, acting in person

Michael Dineen, appearing as duty
    counsel

Sandy Thomas, for the respondent

Heard: January 12, 2021 by
    video conference

On appeal from the conviction entered by
    Justice Ivan S. Bloom of the Superior Court of Justice, sitting with a jury, on
    February 28, 2019 and from the sentence imposed on July 31, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of importing
    cocaine, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. Through duty counsel, she appealed on the basis that the
    trial judge ought to have discharged two jurors (in addition to one juror who
    was discharged) and declared a mistrial. The appellant also argued two grounds
    of appeal on her own behalf: that her right to trial within a reasonable time guaranteed
    by s. 11(b) of the
Charter
was infringed; and that her right to make
    full answer and defence was compromised by the loss of airport surveillance
    video.

[2]

For the reasons that follow, the conviction appeal
    is dismissed. The sentence appeal was not argued and is dismissed as abandoned.

ANALYSIS

Application for a mistrial

[3]

In the trial judges charge to the jury, he
    instructed the jurors that they were to take their instruction on the law from him,
    and not to consult other sources. However, it was later discovered that one of
    the jurors (Juror #4) brought into the jury room two articles the juror had
    found on the internet. One article addressed how to select a jury foreperson, and
    the other addressed the meaning of reasonable doubt. When this was brought to
    the trial judges attention  prior to the jury having given its verdict  the
    trial judge conducted an inquiry beginning with Juror #4 and questioning each
    juror in turn. Juror #4 told the trial judge that he had brought the two
    articles into the jury room, that each of the jurors had read the article about
    foreperson selection, and that two of them had also looked at the article on
    reasonable doubt. The trial judge then asked the other jurors in succession
    whether they had been shown an article on reasonable doubt, whether they had looked
    at any other material regarding the law or evidence in this case, and whether
    they were able to follow the trial judges instructions regarding the law. Most
    of the jurors advised that they had not looked at any extraneous material
    regarding law, which arguably conflicted with Juror #4s statement that all of
    the jurors had read the foreperson selection article. The trial judge then
    reopened the inquiry to specifically ask those jurors why they had not
    mentioned the foreperson selection article. Most of the jurors advised that
    they had not seen the foreperson selection article. Those who acknowledged having
    read the article explained why they did not mention it in response to the trial
    judges question. One had forgotten having read it. Another did not consider it
    to be an article regarding law.

[4]

On the application for a mistrial, the trial
    judge concluded that Juror #4 had demonstrated an unwillingness to be guided by
    the trial judges instructions, and he therefore discharged that juror, with the
    agreement of the Crown. But the trial judge did not declare a mistrial, having
    been satisfied from the inquiry that the remaining jurors would faithfully
    discharge their duties.

[5]

The trial judge made no error in dismissing the
    application for a declaration of mistrial. The trial judge conducted an
    appropriate inquiry and reached a reasonable conclusion about the fitness of
    the remaining jurors and the fairness of the trial. As the trial judge noted,
    the application for the declaration of mistrial was not made on the basis of
    the content of the materials viewed, which did not relate to the factual issues
    before the jury. The application was based on the initial non-disclosure by two
    jurors that they had seen the article about foreperson selection, and whether
    that non-disclosure negated the presumption that the jurors would perform their
    duties and follow the instructions they had been given.

[6]

The trial judge made no error in concluding that
    the presumption was not rebutted, given his satisfaction with the explanations
    given by the jurors for non-disclosure. The assessment was the trial judges to
    make, and he made it reasonably. The trial judge made no error in concluding
    that a mistrial was not necessary, and that any potential for trial unfairness
    could be remedied with an appropriate direction to the jury. There was no challenge
    at trial to the sufficiency of the trial judges instruction in this regard
    (indeed the trial judge sought and obtained input from both Crown and defence
    counsel on the precise wording). We find that the instruction was sufficient
    and there was no resulting trial unfairness.

Section 11(b) application

[7]

The appellant brought a s. 11(b) application pre-trial,
    but she could not perfect it as she was unable to secure funding for
    transcripts. She was denied legal aid for this particular disbursement, and the
    trial judge was not prepared to order the preparation of transcripts in the
    absence of a formal application for funding. That application was never
    brought, and the s. 11(b) application relating to pre-conviction delay was
    never heard.

[8]

On appeal, although the appellant seeks to renew
    the s. 11(b) application in its entirety, the emphasis is now on the
    post-conviction, pre-sentencing delay.

[9]

With respect to delay pre-conviction, the
    argument cannot succeed. The fact remains that there is much in dispute, there
    are no transcripts, and there is therefore no evidential foundation on which the
    claim could be advanced. However, things stand on a different footing with
    respect to the period of delay between conviction and sentencing, for which
    there are sufficient transcripts and no real factual dispute about what
    transpired. Conviction was entered on February 28, 2019, and reasons for
    sentence were delivered on July 31, 2019. Shortly thereafter, this court
    decided
R. v. Charley
, 2019 ONCA 726, 147 O.R. (3d) 497, which
    established a five-month presumptive ceiling for delay between verdict and
    sentencing, after which the delay is presumed to be unreasonable and must be
    justified by the Crown.

[10]

It is agreed that the total delay is five months
    and three days, largely the result of scheduling of the
Gardiner
hearing, which had to be adjourned due to the unavailability of witnesses. The
Gardiner
hearing was scheduled to be heard March 27-29, 2019, was adjourned to April
    23-25, and the ruling was given on June 10. Sentencing submissions commenced
    immediately thereafter and the sentence was imposed on July 31.

[11]

The question that arises is whether the
Gardiner
hearing constitutes an exceptional circumstance under the
Jordan
framework, such that it should be deducted from the delay. The appellant argues
    that it should not, because the
Gardiner
hearing was necessitated by a
    tactical decision of the Crown at trial to invite the jury to return a verdict
    of guilty if it found the appellant had imported one cannister containing
    cocaine. The defence pointed to evidence suggesting that cannisters carried by
    another passenger had been mixed up with the appellants articles.  At trial, the
    Crown sought to ground the conviction in the importation of one particular cannister
    that stood on a different evidential footing. The jury convicted the appellant,
    but this necessitated a
Gardiner
hearing to determine the quantity of cocaine
    imported for the purposes of crafting a fit sentence. The appellant argues that
    the resulting delay should be attributed to the Crown in the
Jordan
analysis,
    and not be considered an exceptional circumstance.

[12]

We do not agree. A case in which a
Gardiner
hearing becomes necessary is not the routine sentencing framework contemplated
    by this court in
Charley
when the presumptive ceiling of five months
    was set. Without the benefit of full argument on the issue, we do not purport
    to resolve the question of whether a
Gardiner
hearing is best
    characterized as a discrete event, a matter of complexity, or some other
    category of exceptional circumstance. It is sufficient to note that the
Gardiner
hearing was an exceptional circumstance.

[13]

We find that the delay of five months, three
    days, after the necessity of the
Gardiner
hearing is taken into
    account, reduces the net delay to well under the five-month ceiling, and does
    not constitute unreasonable delay. That disposes of the s. 11(b) argument.

Lost surveillance video

[14]

With respect to the lost evidence argument, the
    appellant argues that she was unable to make full answer and defence because of
    the absence of security video from the secondary inspection area. The appellant
    argues that the video, had it been available, could have supported her argument
    that the four cannisters of cocaine said to have come from her luggage actually
    came from another passenger and were attributed to her through error.

[15]

Canada Border Services Agency officers testified
    at trial that the area for secondary inspection was video recorded, though
    neither of them had seen or requested the video from that day and did not know whether
    it existed at the time of trial. An agreed statement of facts filed in evidence
    at the trial attests that although the CBSA records video of passengers passing
    through the Toronto Pearson Airport, no video is available for the date of the
    appellants passage through the airport on May 29, 2015, because the video
    recording system suffered a large computer system failure, and that the lost
    video records would not have included any audio.

[16]

In the instructions to the jury, the trial judge
    noted the evidence addressing the absence of the video and the defence theory
    of prejudice. On the instruction given, the jury was able to understand the
    defence position that the Crown had not proved the charges beyond a reasonable
    doubt, given the absence of a video recording in circumstances where a video
    recording is routinely made but a system wide computer system failure had
    occurred, as well as the evidence relevant to that position. The impact of the
    lost video on the appellants right to make full answer and defence was not
    argued at trial; nor was there any objection to the jury instructions on this
    issue. No more was required. The jury instruction was sufficient and fair.

DISPOSITION

[17]

The appeal is dismissed.

Paul Rouleau J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2021 ONCA 372

DATE: 20210602

DOCKET: C66220

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nigel Lewis

Appellant

Mark C. Halfyard, for the appellant

Sarah Shaikh and Erryl Taggart, for the respondent

Heard: April 19, 2021 by video conference

On appeal from the conviction entered on May 15, 2018 and
    the sentence imposed on June 12, 2018 by Justice Marquis S.V. Felix of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for importation and possession
    of cocaine for the purpose of trafficking. He seeks leave to appeal his custodial
    sentence of three and a half years.

Factual overview

[2]

The following evidence was not contested at trial.

[3]

Durham Regional Police carried out a controlled delivery of an
    intercepted package containing 132 grams of cocaine hidden in packages of
    preserved fruit sent from Trinidad and Tobago via the United Kingdom. The police
    obtained a general warrant to follow the package and installed a tracking
    device that would alert police when the package was opened. The sender of the
    package was Andy Thomas and it was addressed to Maxene Alexander at Unit #9
    on a street in Oshawa.

[4]

When an undercover police officer, disguised as a Canada Post delivery
    person, arrived at the address, the appellant walked over from #10, which shared
    a driveway with #9, and asked Is that for Maxene?. The officer confirmed that
    it was. The appellant indicated that Maxene was at work and offered to take
    the package for her. The appellant told the officer that he lived at #10 and
    went inside #10 to retrieve his drivers licence. When the officer queried why
    his licence showed a different address, the appellant reiterated that he lived
    at #10. The officer asked if Maxene was the appellants girlfriend. He said
    she was. The appellant then asked the officer Its from Andrew Thomas, right?
    and signed for the package before taking it back to #10.

[5]

Less than half an hour after the package was delivered, the tracking
    device was triggered, indicating that the package had been opened. Police
    immediately battered down the front door and discovered the appellant with
    another male, Emryis Lewis, who is not related to the appellant, in front of
    the partially opened package. The individual packets of preserved fruit
    containing the cocaine had not yet been opened. Both men fled out the back door
    and were arrested a short distance away.

[6]

The owner of #10, Sarah Chapman, testified at trial that she was in a
    relationship with Emryis Lewis and that the appellant was a friend. She left
    them in charge of her apartment while she attended to a family emergency. She
    testified that the appellant did not live at #10. She provided the names of a
    mother and her daughter who lived at #9, neither of whom was Maxene Alexander.
    She described #9 as a party house, with people coming and going.

Judgment and sentence

[7]

The appellants control of the package containing the drugs having been
    conceded, the trial judge drew the inference that the appellant had specific
    knowledge that there were illegal drugs in the package from the circumstances
    surrounding the controlled delivery. Alternatively, he noted that he could
    impute knowledge of the contents to the appellant because he was in the midst
    of opening the delivered package when the police executed the search warrant.
    The trial judge concluded that the appellants guilt was the only reasonable
    inference arising out of the Crowns circumstantial case.

[8]

The trial judge sentenced the appellant to three and a half years imprisonment
    for importing the cocaine and six months concurrent for possession of the
    cocaine for the purpose of trafficking. He reduced the sentence by six months
    to account for restrictive conditions during the appellants 18 months on interim
    judicial release.

Convictions appeal

[9]

The appellant submits that the verdicts are unreasonable because the
    trial judge failed to consider other equally reasonable inferences that would
    have led to an acquittal. Those inferences, according to the appellant,
    included that he was in fact accepting a package on behalf of his girlfriend,
    whom the Crown failed to prove did not exist, and that the appellants presence
    at #10 and acceptance of the package was fortuitous given the unexpected
    departure of Ms. Chapman to deal with her family emergency.

[10]

We
    are not persuaded by these submissions.

[11]

The
    appellant takes no issue with the correctness of the legal principles that the
    trial judge applied in his consideration of all the evidence. The trial judge
    understood that the Crowns case was circumstantial and that the appellants
    guilt had to be the only reasonable inference available on the totality of the evidence.
    He also recognized that an absence of evidence could give rise to a reasonable
    doubt of the appellants guilt. In our view, the trial judges determination that
    the appellant had knowledge, control and, as a result, possession of the drugs
    was the only reasonable inference available on the evidence, and we share his
    conclusion.

[12]

The
    Crowns failure to prove that Maxene Alexander does not exist does not displace
    the reasonable inference that the appellant was accepting the package on his
    own behalf or jointly with Maxene Alexander, or, if on her behalf, with
    knowledge of its contents. Ms. Chapmans evidence was that nobody by the name
    of Maxene Alexander lived at #9, and she did not testify that the appellant,
    her friend, was in a relationship with someone named Maxene. In any event, it
    was the appellant who was waiting at the door of #10 and who immediately
    approached the undercover police officer, lying twice about his residence in
    order to secure possession of the package and asking questions that revealed
    his knowledge of both the sender and recipient of the package without the
    officer first advising him. Finally, shortly after the appellant took
    possession of the package, the police surprised the appellant and Mr. Lewis in
    the process of opening the package that the appellant suggests belonged to
    someone else. The appellant and Mr. Lewis then fled out the back door.

[13]

It
    is equally unlikely that the appellants presence at #10 was fortuitous. The
    appellant was friends with Ms. Chapman and her boyfriend, who was with the appellant
    as he opened the package. There was evidence that the package could be tracked.
    The two men had charge and control of #10 during Ms. Chapmans absence and, as
    noted above, clearly had knowledge of when and from whom the package would
    arrive. The only reasonable inference is that the appellant was present at #10
    in order to receive the package, which he did.

[14]

We
    see no error in the trial judges analysis or conclusions.

Sentence appeal

[15]

The
    appellant submits that the sentence imposed is demonstrably unfit.
    Specifically, the appellant argues that the trial judge erred by imposing a
    sentence well outside the range for smaller amounts of cocaine recommended by
    this court in
R. v. Hamilton
(2004), 241 D.L.R. (4th) 490 (Ont. C.A.).
    The appellant was convicted of importing 132 grams of cocaine. He argues,
    however, that the sentence imposed was more in keeping with sentences for
    importation in the kilogram range and inconsistent with sentences for smaller
    amounts of cocaine. The appellant submits that he has effectively served about
    eleven months and that the appropriate disposition would be time served.

[16]

We
    do not accept these submissions.

[17]

First,
    the three and a half-year sentence was within the range. Although this court in
Hamilton
indicated that the bottom end of the three to five-year range
    articulated in
R. v. Madden
(1996), 104 C.C.C. (3d) 548 (Ont. C.A.), should
    be adjusted downward when the amount of cocaine falls below one half kilogram, the
    court did not establish an upper limit for smaller amounts. The cases relied
    upon by the appellant to establish a lower sentencing range are distinguishable,
    most notably because the sentences were imposed following guilty pleas.
    Moreover, as the trial judge rightly noted, the fashioning of a fit sentence is
    not a mathematical calculation, and the weight of the drugs in issue is only
    one factor among many to be considered.

[18]

In
    any event, it is well established that a trial judge is not bound by sentencing
    ranges and is required to impose a sentence that is fit in all the
    circumstances for the individual offender:
R. v. Lacasse,
2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 51 and 60. That is what the trial judge did
    here. He properly balanced the applicable mitigating and aggravating factors of
    this case. He recognized that the appellant was a good person and a hard
    worker, and that he enjoyed considerable support from family and friends. He
    looked at the seriousness of the offences, the appellants dated record for
    drug trafficking, and his role at the managerial level in planning and
    executing the offences to avoid detection. While the trial judge fairly
    determined that the sentencing principles of denunciation and deterrence were
    paramount, he also took into account the appellants prospects for
    rehabilitation and paid particular regard to the principles of totality and
    restraint. Moreover, he granted six months credit for the appellants
    difficult release conditions and considered the collateral consequences of the
    sentence, including immigration consequences, even if these did not ultimately
    affect his final determination.

[19]

While
    it falls at the higher end of the range for the importation of this amount of
    cocaine in similar circumstances, the sentence imposed was fit. We see no basis
    to interfere with it.

Disposition

[20]

The
    appeal from conviction is dismissed. While leave to appeal sentence is granted,
    we dismiss the appeal.

David Watt J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luangchaleun, 2021 ONCA 108

DATE: 20210218

DOCKET: M52039

MacPherson
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Kevin Luangchaleun

Applicant

Kevin Luangchaleun, acting in person

Lindsay Daviau, appearing as duty
    counsel

Nicole Rivers, for the responding party

Heard: February 9, 2021 by video conference

REASONS
    FOR DECISION

[1]

More than 11 ½ years ago, on June 12, 2009, the
    applicant Kevin Luangchaleun was found not criminally responsible (NCR) by
    reason of mental disorder of assault with a weapon and criminal harassment. He
    has remained under the jurisdiction of the Ontario Review Board (ORB) since
    that date.

[2]

The facts that gave rise to the underlying
    charges against the applicant can be briefly stated. On February 16, 2009, the
    applicant, while under the influence of substances, attended a restaurant in
    Newmarket and tried to locate the complainant who was an employee working
    there. He had done this on several previous occasions. This time, he became
    enraged and started waving a large butcher knife in the air in a threatening
    manner when other employees would not let him speak to the complainant or enter
    farther into the premises.

[3]

The test on an application to extend the time to
    file a Notice of Appeal is whether the applicant has demonstrated that justice
    requires that the extension of time be granted:
R. v. Menear
, (2002),
    162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21. As the court said in
Menear
,
    at para. 20:

There is no absolute rule to be applied in the
    exercise of the discretion whether or not to grant an extension of time. The
    court will, however, usually consider the following three factors:

(i) whether the applicant has shown a
bona
    fide
intention to appeal within the appeal period;

(ii) whether the applicant has accounted for
    or explained the delay; and

(iii) whether there is merit to the proposed
    appeal.

[4]

On the first factor, the applicant filed a
    Notice of Appeal on December 10, 2020. This is 11 ½ years after the NCR finding
    and almost as long outside the appeal period.

[5]

In his affidavit, the applicant states that he
    has always had an intention to appeal the NCR finding. This is a bald assertion
    and says nothing about his intention to appeal within the appeal period.

[6]

On the second factor, in the Notice of Motion
    one of the grounds is that the applicant needed additional time to seek legal
    advice for his NCR appeal. In his affidavit, the applicant states: I have
    been unsuccessfully to have numerous counsel help over the last 11 years, and
    because legal aid had denied me this right to bring this appeal numerous times
    before this date. Although one can have sympathy for an NCR accused trying to
    navigate the criminal justice appeal system, especially while continuing to be
    under the jurisdiction of the ORB, the applicants explanation does not justify
    an 11 ½ year delay in filing a Notice of Appeal challenging the NCR finding.

[7]

On the third factor, I see no merit in the
    applicants proposed appeal against the NCR finding. Applications for an
    extension of time to file a Notice of Appeal and applications for the
    appointment of counsel pursuant to s. 684 of the
Criminal Code
overlap
    in one important respect: the tests for resolving the applications both contain
    as a crucial factor the merits of the appeal.

[8]

On December 23, 2020, the applicant brought an
    application for the appointment of counsel to represent him on his application
    for an extension of time to file a Notice of Appeal from the NCR finding in
    2009. In reasons dated January 12, 2021, Coroza J.A. dismissed the application.
    With respect to the merits of the proposed appeal, Coroza J.A. said, at paras.
    13-16:

First, I agree with the Crown that as the
    application and appeal have no merit, they will not be helped by the
    appointment of counsel.

Second, the only grounds of appeal articulated
    in relation to the NCR appeal are broadly worded:

a)

The court erred in fact and law;

b)

The court erred in fact and law in finding the appellant NCR;

c)

The courts disposition is unreasonable in the evidence;

d)

The court conducted a hearing that ignored the basic rights of
    procedural fairness, which created substantial prejudice to the appellant.

Nothing in the materials before me would allow
    this court to determine the merits of these proposed grounds of appeal.

This is not a close case. The application is
    dismissed.

[9]

My analysis on the merits of the proposed
    appeal issue on the motion for an extension of time to file a Notice of Appeal
    is identical to that of Coroza J.A. on the s. 684 application.

[10]

For these reasons, the application for an
    extension of time to file a Notice of Appeal challenging the 2009 NCR ruling is
    dismissed.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Luu, 2021 ONCA 311

DATE: 20210512

DOCKET:
    C66161

Fairburn
    A.C.J.O., Trotter and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Van
    Phuc Luu

Appellant

Mindy Caterina, for the appellant

Moray Welch and Surinder Aujla, for the
    respondent

Heard: October 29, 2020 by
    video conference

On appeal from the conviction entered on
    August 13, 2018, and the sentence imposed on October 23, 2018, by Justice
    Stephen J. Hunter of the Ontario Court of Justice.

Coroza J.A.:

OVERVIEW

[1]

After a trial in the Ontario Court of Justice,
    the appellant was convicted of conspiracy to traffic in a controlled substance,
    trafficking in methamphetamine, and possession of the proceeds of crime
    exceeding $5,000.

[2]

The appellant was one of the targets of a
    lengthy Ontario Provincial Police (OPP) drug trafficking investigation. On
    May 11, 2015, the OPP saw the appellant and Kristopher Jerome complete a drug
    deal in a carpool lot in Port Hope, Ontario. The two men were arrested
    following an exchange of bags. The police seized 523 grams of
    methamphetamine from one bag in Jeromes car and $12,240 from another bag in
    the appellants car. Two phones belonging to Jerome were also seized. These
    phones were searched, and the police seized text conversations between the
    appellant and Jerome suggesting that the appellant was Jeromes drug supplier.
    Some of the conversations referenced Jeromes offer to sell the appellant a
    firearm. Other conversations referenced a variety of drugs, including fentanyl.

[3]

The appellant brought a pre-trial application
    seeking the exclusion of evidence based on alleged violations of his rights
    under ss. 8, 9, and 10 of the
Canadian Charter of Rights and Freedoms
.
    The trial judge dismissed the application. As a result of the trial judges
    ruling, the appellant conceded that he was in possession of the proceeds of
    crime but argued that the Crown could not prove the conspiracy and trafficking
    charges beyond a reasonable doubt.

[4]

The Crown relied on a report tendered by a
    police officer who analyzed the text messages exchanged between the appellant
    and Jerome. The Crown argued that the text messages revealed that the appellant
    was supplying Jerome with methamphetamine so that Jerome could sell the drug in
    the Napanee area.

[5]

The appellant testified that he was not a drug
    dealer and that on May 11, 2015 he met Jerome to purchase a pistol
    from him. He testified that the true owner of the car he was driving asked him
    to exchange bags with Jerome. He had no knowledge of the drugs found in
    Jeromes car. The trial judge rejected the appellants evidence, stating that
    it was fraught with inconsistencies and that it bordered on fantasy. He
    convicted the appellant of conspiracy to traffic in a controlled substance,
    trafficking in methamphetamine, and possession of proceeds of crime over $5,000.
    The appellant was sentenced to a global sentence of six years and six months
    incarceration. The appellant appeals his convictions and sentence.

THE GROUNDS OF APPEAL

[6]

On the conviction appeal, the appellant argues
    that the trial judge erred in dismissing his s. 10(b) claim. The appellant
    submits that the police did not fulfill their duty to ensure he understood his
    right to counsel. He also claims the trial judges reasons for dismissing his
    s. 10(b) claim were confusing and insufficient. Additionally, and for the first
    time on appeal, the appellant raises an argument that the police failed to
    implement his right to counsel without delay, since he did not speak to duty
    counsel for more than seven hours after his arrest.

[7]

The appellant claims that if this court finds
    that his s. 10(b) rights were breached, we should perform the required analysis
    under s. 24(2) of the
Charter
. He argues that we should exclude the
    money seized from the appellants car and the observational evidence of the
    officers who watched the exchange between the appellant and Jerome on May 11,
    2015. He seeks an acquittal on the proceeds count and a new trial on the drug
    charges.

[8]

As to sentence, the appellant contends that in
    his reasons for sentence, the trial judge improperly considered factors that
    were irrelevant and not aggravating. The appellant argues that the sentence
    imposed should be set aside and replaced by a global sentence of four and
    one-half years to five years incarceration. In support of that submission,
    the appellant asks this court to admit and consider fresh evidence.

[9]

For the following reasons, I would dismiss the
    conviction appeal. While I would grant the appellant leave to appeal sentence and
    admit the fresh evidence, I would also dismiss the sentence appeal.

SUMMARY OF THE FACTS

[10]

Beginning in January of 2015, the OPP began an
    investigation into Kristopher Jerome and Travis Dennisboth known drug dealers
    in the Napanee area. The investigation revealed that the appellant was
    supplying Jerome drugs, and specifically methamphetamine from Toronto.
    Surveillance revealed that the appellant met Jerome on February 26 and May 7,
    2015. He was driving a car registered to a Randolph Lynch.

[11]

On May 11, 2015, the police saw the appellant
    and Jerome meeting in a carpool lot in Port Hope, Ontario. It was raining
    heavily. The police saw Jerome get out of his car and enter the appellants
    car. After spending some time in the appellants car, Jerome returned to his
    car carrying an orange bag. The police believed that a transaction was taking
    place and arrested both men. The orange bag in Jeromes car contained
    methamphetamine. A bag in the appellants car contained $12,240.

[12]

During his arrest, Cst. Price of the OPP read
    the appellant his rights to counsel and caution. The rights were read outside
    in the heavy rain. Cst. Price initially informed the appellant that he was
    under arrest for drug trafficking and asked him to spell his name. According to
    Cst. Price, the appellant spelled his name out in English and provided him with
    a date of birth. Cst. Price then read the appellant his right to counsel from a
    card and asked him if he understood. The appellant replied yes in English.
    When he was asked if he wanted to speak to a lawyer, the appellant replied, I
    dont know.

[13]

Cst. Price decided that, because of this
    response and the fact that the appellant spoke with an accent, he should
    explain the rights to the appellant in simple English. He explained each of the
    points on the card. According to Cst. Price, the appellant confirmed that
    he understood because he made eye contact and nodded. He also confirmed that he
    understood English when he was asked by Cst. Price. According to Cst. Price,
    the appellant confirmed a second time that he understood his right to counsel.
    When asked a second time if he wanted to speak to a lawyer, the appellant again
    replied, I dont know.

[14]

After reading the appellant his rights and
    caution, Cst. Price then turned him over to the Port Hope Police Service. Cst.
    Price believed that he told the officers that the appellant had not specified a
    lawyer that he wanted to talk to, and that they may wish to follow up with the
    appellant about providing him with duty counsel or a lawyer of his choice.

[15]

The appellant testified during the
voir dire
that he believed that Cst. Price was speaking English, but that he could
    only hear parts of what Cst. Price was saying. He testified that he nodded at
    Cst. Price because it was cold, raining, and he wanted to get to a warmer place,
    not because he understood what Cst. Price was saying. He also testified
    that he spoke to duty counsel during the early morning hours without the
    assistance of an interpreter and did not understand duty counsels advice.

DISCUSSION

(1)

Issue 1: Did the Trial Judge Err in Dismissing
    the s. 10(b) Application?

[16]

In his ruling dismissing the appellants
Charter
application, the trial judge found that Cst. Price was direct and careful about
    the rights that he communicated to the appellant. He noted that Cst. Price
    recognized that there may have been some difficulty in communicating with the
    appellant and that, as a result, the officer decided to repeat the rights to
    counsel in simple language. He noted that the appellant acknowledged that his
    rights had been read twice and that he told Cst. Price that he understood
    his rights twice. The trial judge then went on to find that:

There was nothing that was articulated by Mr.
    Luu to the Officer Constable Price at the time the rights to counsel and
    caution and arrest were described to him that would lead Detective Constable
    Price to believe that there was any difficulty in the understanding capacity of
    Mr. Luu.

[17]

The trial judge concluded:

He did, of course, indicate problems with
    understanding the English language but its quite clear throughout that he did
    not communicate that to anyone. If, in fact, the Crown went further, after he
    spoke to duty counsel to suggest that it was appropriate to take a statement
    from him in the absence of the interpreter I would agree with [counsel for the
    appellant] that certainly that may be questionable. But they did not. They made
    sure that Mr. Luu had communication with duty counsel and went no further
    in terms of attempting to obtain, nor did they obtain, any further evidence
    from him by way of statement or otherwise after the takedown itself had
    occurred.

[18]

On appeal, the appellant renews his claim that
    his s. 10(b) rights were infringed. First, with respect to the informational
    component of s. 10(b), the appellant argues that the trial judge erred by
    finding that there was nothing that would have led Cst. Price to believe that
    the appellant had difficulty understanding English. The appellant points to Cst.
    Prices testimony that after he finished reading the appellant his rights, he
    turned him over to the Port Hope police and advised them that the appellant had
    not indicated he wanted to speak to a lawyer, so they may want to follow up in
    terms of providing him with access to duty counsel or a lawyer of his choice.

[19]

I see no error in the trial judges analysis and
    I would not give effect to this argument. In my view, the trial judges
    findings that Cst. Price carefully recited the appellants rights to counsel,
    and that the appellant understood his rights when they were read to him, are
    fully supported by the evidence led on the
voir dire
. The appellant
    testified on the
voir dire
and claimed he did not understand his rights.
    The trial judge was entitled to reject that claim and find that the
    informational component of s. 10(b) had not been infringed. On the trial
    judges findings, Cst. Price properly conveyed the required information
    and the appellant understood what Cst. Price told him. Those findings were
    firmly anchored in the evidence. That evidence included the following:

·

The appellant verbally confirmed he understood
    English;

·

The appellant nodded and made eye contact with
    Cst. Price when he was asked if he understood his rights;

·

The rights to counsel were read twice by Cst. Price;

·

Cst. Pricewho noticed the appellants accent
    and his response: I dont know to whether he wanted counseldecided to repeat
    the rights to counsel in simple language. The appellant confirmed he
    understood.

[20]

Nor am I persuaded that Cst. Prices comments to
    the Port Hope police suggested that he had difficulty understanding the
    appellant. I view Cst. Prices comments as a direction to the Port Hope police
    that the appellant had not invoked the right to counsel.

[21]

Second, the appellant claims that the trial
    judges reasons were confusing and insufficient. The appellant argues that the
    trial judge appears to have held that it would have been questionable if the
    Crown argued that it was appropriate, after the appellant spoke to duty
    counsel, for the police to take a statement from him in the absence of an
    interpreter. The appellant states that the reasons can be interpreted to mean
    that the trial judge found that the police would have infringed the appellants
    s. 10(b) right by taking a statement, and that such a finding necessarily means
    the trial judge concluded that the appellant
did
assert his s. 10(b)
    right. The appellant points to this alleged inconsistency, among others, to
    argue that the reasons give rise to conflicting theories as to why the trial
    judge decided the application in the way that he did, representing an error of
    law.

[22]

I do not agree with these submissions. My view
    of the issue is that the trial judge was addressing a very cursory submission
    on this point made by defence counsel. These comments did not factor into the
    courts reasoning process in relation to whether s. 10(b) had been violated. On
    the trial judges findings, the appellant understood English and was not under
    any misapprehension of what was being said to him about his rights.

[23]

Third, the appellant argues the police failed to
    discharge their implementational duties under s. 10(b), because the appellant did
    not receive access to duty counsel until more than seven hours after his
    arrest. With respect, it is not appropriate for this court to address this
    argument. It was not advanced in the court below and there is a lack of
    evidence as to what occurred after the appellant was turned over to the Port
    Hope police. Even if it were proper for this court to entertain this argument
    for the first time on appeal, the appellant faces an uphill climb, as there is
    no evidence on this record that the appellant expressed a wish to exercise his
    rights to counsel that would trigger the polices implementational obligations:
    see
R. v. Fuller
, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.

[24]

In light of my conclusion that the trial judge
    did not err in dismissing the s. 10(b) application, it is not necessary to
    address the appellants s. 24(2) arguments. The appeal against conviction is
    dismissed.

(2)

Issue 2: Did the Trial Judge Err by Considering
    Irrelevant or Unproven Aggravating Factors?

[25]

On the sentence appeal, the appellant takes
    issue with some of the trial judges findings.

[26]

First, he contends that the trial judge erred in
    finding that he had a higher involvement in the drug distribution hierarchy
    than Jerome or Dennis. I do not accept this argument. There was overwhelming
    evidence that the appellant was higher in the drug chain than Jerome and Dennis.
    The appellant was responsible for transporting drugs and supplying Jerome with
    drugs in the Napanee area. It stands to reason that he was one of Jeromes main
    suppliers and, without the appellant, Jerome could not traffic drugs in
    Napanee. Furthermore, the evidence indicated that Jerome and Dennis were
    similarly situated in the drug distribution hierarchy. Accordingly, I see no
    basis to interfere with the trial judges common sense finding.

[27]

Second, the appellant argues that the trial
    judge erred in his treatment of text messages between the appellant and Jerome
    in which they converse about the potential transfer of fentanyl and firearms.
    The trial judge held that this was an aggravating factor. The appellant submits
    that this was an error because there was no evidence that the transfers ever materialized.

[28]

I recognize that the trial judge provided
    cursory reasons as to why the open discussions of fentanyl and firearms were an
    aggravating factor in the circumstances of this case. However, after carefully
    considering the evidence that was before him, I conclude that it was open to the
    trial judge to reason that these discussions were relevant as an aggravating
    factor.

[29]

There was no dispute that the text messages referencing
    fentanyl and firearms were admissible at trial and sentencing. Generally, the text
    messages revealed that the appellant was involved in a conspiracy to traffic
    different drugs, including large amounts of methamphetamine. In text messages
    dated February 7, 2015, Jerome and the appellant discussed purchasing
    fentanyl patches for $5,000 to $10,000. In text messages dated approximately
    January 25-27, March 12, April 28, and April 30, 2015, Jerome and the appellant
    also discussed the sale of a gun to the appellant. In these messages, the
    appellant requested pictures of a firearm and the pair discussed prices between
    $2,500 and $3,000. In a message dated April 30, 2015, the appellant specifically
    requested a .40 calibre firearm.

[30]

I do not agree that these discussions were irrelevant
    in determining a fit sentence for the appellant. Facts tending to establish the
    commission of other offences of which an accused has not been charged or convicted
    can be admitted to enable a court to determine a just and appropriate sentence:
    s. 725(1)(c) of the
Criminal Code
, R.S.C., 1985, c. C-46;
R. v.
    Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 22-27; and
R.
    v. Edwards
(2001), 155 C.C.C. (3d) 473, (Ont. C.A.), at paras. 63-65. The
    text messages revealed that the appellant was a drug trafficker operating at a
    high level. He was also interested in purchasing a firearm from his
    co-conspirator. This evidence was relevant to show the appellants background
    and the seriousness of the criminal conspiracy in which he entered. It is true
    that the appellant was specifically charged with a conspiracy to traffic in
    methamphetamine. However, I read the trial judges reasons as stating that,
    since the appellant was also prepared to participate in fentanyl trafficking and
    to purchase a gun from his co-conspirator, this conspiracy was one that involved
    serious criminality. It was open to the trial judge to find that this was an aggravating
    factor.

[31]

There was no objection by defence counsel to the
    admission of these text messages. Indeed, the appellant gave evidence of his
    drug dealing activities and his interest in purchasing firearms when he
    testified on his own behalf at trial. He sought to use this evidence in an
    exculpatory way. As this court observed in
R. v. Chanmany
,
    2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 54, leave to appeal refused,
    [2017] S.C.C.A. No. 88, it ill lies in [the appellants] mouth now to deny the
    relevance of the evidence he himself adduced to his character for the purpose
    of sentencing.

[32]

Nor do I accept the appellants argument that, since
    there was no evidence that the discussions of firearms and fentanyl ever materialized,
    they should not have been considered by the trial judge. There is one simple answer
    to the appellants submission: the appellant and Jerome were arrested, putting
    an end to their conspiracy. A review of the text messages reveals that the discussions
    about fentanyl and the firearm were not just idle talk. The appellant and
    Jerome contemplated the transfer of fentanyl and firearms as part of their
    conspiracy. They discussed specifics, including the price of fentanyl, the price
    of a firearm, obtaining a photo of a firearm, and acquiring a particular type
    of firearm. The text messages do not suggest that the appellant withdrew or
    abandoned his interest in fentanyl or the pursuit of the firearm prior to the
    date of arrest. Accordingly, it was open to the trial judge to give weight to
    the magnitude of the crime contemplated by the conspirators agreement:
R.
    v. Russo

et al.
(1998), 130 C.C.C. (3d) 339 (Ont. C.A.), at paras.
    12-16.

[33]

Finally, the appellant seeks leave to introduce
    fresh evidence, consisting of three letters from the appellants family. The
    documents provide this court with an update on the appellants behaviour while
    on bail pending appeal. The appellant has been assisting his family members
    with their financial and living expenses and has clearly taken positive strides
    to improve his life. The Crown does not oppose the introduction of this
    evidence.

[34]

The appellants rehabilitative strides are
    encouraging. However, the seriousness of the appellants crimes cannot be understated.
    He was involved in a serious conspiracy that escalated the trafficking of
    methamphetamine in the Napanee area, over a period of months. The fresh
    evidence does not provide a basis for this court to interfere with the sentence,
    which was fit when it was imposed.
[1]

DISPOSITION

[35]

I would dismiss the appeal from conviction. I
    would also admit the fresh evidence and grant leave to appeal sentence, but would
    dismiss the appeal from sentence.

Released: May 12, 2021 J.M.F.

S.
    Coroza J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. Gary Trotter J.A.

[1]
The
    sentence imposed here falls within the loose range of five to eight years
    incarceration identified
by Durno J. in
R. v. Hien and Ly,
(10
    February 2016), Brampton, 450/14 (Ont. S.C.). In
Hien and Ly
, the
    offenders received custodial sentences of four and one-half years, and four
    years and three months, respectively, for the offence of possessing one
    kilogram of methamphetamine for the purpose of trafficking. The trial judge
    relied on this decision in concluding that six and one-half years imprisonment
    was the appropriate sentence.


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. Maillet, 2021 ONCA 73

DATE: 20210201

DOCKET: C67900

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Joseph Maillet

Appellant

Kenneth W. Golish, for the appellant

Andrew Cappell, for the respondent

Heard: January 28, 2021 by
    video conference

On appeal from the conviction entered on
    June 13, 2019 by Justice Renee M. Pomerance of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for possession
    of child pornography.

[2]

During the course of executing a search warrant
    at the home of Michael Hardstone, the appellants housemate, the police found a
    laptop computer in the appellants bedroom. The laptop was connected to a
    monitor, and when the Windows Explorer application was opened a folder was
    found containing over 3800 images of child pornography. The appellant admitted
    that the images were child pornography. The only issue at trial was whether the
    appellant knew the images were on the laptop.

[3]

A computer found in Hardstones bedroom also
    contained child pornography. Hardstone pleaded guilty to possession of child
    pornography and testified for the Crown. He said that he purchased the
    appellants computer and gave it to him. He testified that he never used that
    computer and denied downloading child pornography onto it.

[4]

The appellant argues that the jurys verdict was
    unreasonable. He argues, in particular, that expert evidence was required in
    order to establish that the appellant had knowledge of and control over the
    child pornography on the computer found in his bedroom.

[5]

We disagree.

[6]

The case against the appellant was
    circumstantial. The trial judge properly and repeatedly instructed the jury
    that it must be satisfied that the appellants guilt was the only rational
    conclusion that could be drawn from the evidence in order to find the appellant
    guilty.

[7]

The jury was entitled to accept Hardstones
    evidence that he was not responsible for the child pornography found on the
    computer in the appellants bedroom, despite the appellants submissions that
    he lacked credibility. The only other possible explanation  that the images
    were on the computer when Hardstone purchased it from the pawn shop and that
    the appellant never learned of it  was speculative. It was for the jury to
    determine whether there were other rational explanations for why the appellant
    may not have known that there was a huge stash of child pornography on his
    computer. In light of the factual record, including the appellants proven expertise
    in computers, it was open for the jury to conclude that there was no other
    rational conclusion to be drawn, other than that the appellant knew of the
    presence of the child pornography.

[8]

Because it was open to the jury to find that the
    inference that the appellant knew the child pornography was on his laptop was
    the only reasonable inference available, it cannot be said that the jurys
    verdict was unreasonable.

[9]

We note that the appellant raised additional
    arguments that were not set out in his factum, including that the absence of a
    directed verdict application does not inform the issue involving the
    reasonableness of the verdict in this case because bringing such an application
    is up to the accused, not the accuseds lawyer. There is no merit to these
    arguments.

[10]

The appeal is dismissed.

Fairburn A.C.J.O.

David Watt J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mann, 2021 ONCA 103

DATE: 20210219

DOCKET: C65574

Feldman, Tulloch and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Mann

Appellant

Adam N. Weisberg, for the appellant

Holly Loubert, for the respondent

Heard: February 3, 2021 by video conference

On appeal from the conviction entered by
    Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on
    April 20, 2015, and from the sentence imposed on April 21, 2016, with reasons
    reported at 2016 ONSC 2675.

Nordheimer J.A.:

[1]

Mr. Mann appeals from his conviction for
    attempted murder.
[1]
He also seeks leave to appeal his sentence of life imprisonment. For the
    reasons that follow, I would allow the conviction appeal and order a new trial.
    As a consequence, I do not reach the sentence appeal.

I: Background

[2]

The appellant originally met the victim when she
    was a sex worker. They met three of four times in late 2010 or early 2011, each
    time for an hour of paid sex. The appellant testified that the two agreed that
    the appellant should move into her apartment where she lived with her son. The
    two lived together for about three to four days before the victim, who had a
    history of alcohol abuse, was arrested on June 25, 2011 (for breach of
    probation and assaulting a police officer) and sentenced to a period of
    incarceration.

[3]

The appellant became the breadwinner of the
    house. He took responsibility to care for the victims children. During the
    victims incarceration, the appellant lived at the apartment with the victims
    son, paid the bills and gave financial assistance to both the son and the
    victims daughter.

[4]

The victim was released on March 28, 2012 and
    entered an alcohol rehabilitation program, which was completed in early May
    2012. The evidence at trial was that the program was successful. The victim first
    moved into a rooming house and then, in July 2012, moved into a rental home
    with her daughter and her daughters boyfriend in Barrie.

[5]

The appellant discovered that the victim was
    intending to move into the rental home on July 25, 2012. On that same date, the
    appellant, who was a long-haul truck driver, arrived back in Toronto from a
    long-distance haul and drove to Barrie. The appellant believed that he and the
    victim were developing a relationship and, consequently, he was expecting to
    move into the Barrie home on that day.

[6]

However, the romantic relationship that the
    appellant envisioned was not progressing as he had hoped. It appears that the
    victim did not share the appellants plans for their relationship. On this day,
    there was an exchange of text messages between the two with the appellant
    asking what he meant to the victim and what type of relationship she wanted.

[7]

The appellant spent the evening with the victim
    at the Barrie home. He wanted to discuss their relationship, but the victim did
    not. Eventually, the appellant went out to his car and wrote on an envelope:
Just want to say thanks
[the victims first
    name], O
nce again you got what you
    wanted and to hell with me. and my feelings
. The appellant said that the
    message was a precursor to suicidal thoughts that led him to test a knife he
    had by running it across the palm of his hand. However, the knife was dull, he
    abandoned the idea, and he re-entered the house.

[8]

The appellant testified that he attempted to
    initiate a conversation with the victim about telling her children that he was
    moving in. She rebuffed him again. He testified that, at this point, the victim
    became angry and began to hit him. He recalled reaching out and grabbing her
    arms to stop her from hitting him. According to the appellants version of the events,
    the two lost their balance and fell down together. He testified that he had no
    memory of what happened next.

[9]

In fact, the appellant began choking the victim.
    He repeatedly banged her head against the floor. The appellant called 911 (although
    he did not remember doing so) and told the dispatcher that he would like to
    report a murder. He went on to say that he had killed his so-called girlfriend"
    by choking her and beating her to death with his hands. The 911 operator
    continued to hear loud banging during the call, which was consistent with the
    head injuries the victim suffered. When asked by the 911 operator if he was
    sure that the victim was dead, the appellant said, Uh pretty sure, shes going
    to be [unintelligible] anyway. The victim suffered life-threatening and
    permanent injuries, including brain damage, from the attack.

[10]

The appellant maintained that he did not intend
    to kill the victim. His position at trial was that the Crown had failed to
    prove the specific intent to kill. Among other things, defence counsel noted
    that the appellant did not make use of the knife in his vehicle nor did he make
    use of a hammer that was in the bedroom, where the attack took place, to carry
    out the attack.

II: Issues

[11]

The appellant raises two central issues on his
    conviction appeal:

1.

The trial judge erred in her instruction
    to the jury on the principle of reasonable doubt;

2.

The trial judge erred in admitting
    statements that the appellant made to a police officer at the time of his
    arrest.

III: Analysis

(1)

The reasonable
    doubt instruction

[12]

This issue can
    be dealt with in briefer form than might usually be the case because of the
    somewhat unique circumstances in which it arises. Put simply, the same issue
    has been addressed by this court  twice.

[13]

In her charge
    to the jury about reasonable doubt, the trial judge said:

A reasonable doubt
    is a real doubt that logically arises from the evidence, or the lack of
    evidence. It is a doubt based on reason and common sense after considering all
    of the evidence as a whole. It may be a doubt created by an inference or
    conclusion that you have drawn from the facts as you find them,
provided
    that that inference of or conclusion is not a speculation or a guess, but a
    much stronger belief arising from the proven facts, and based on the evidence
    alone.

If your doubt is
    about something that you have imagined or made up, or if it is a far-fetched
    doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or
    prejudice, then it is not a reasonable doubt.
It must be a doubt about an
    essential element of the offences charged, and it must arise from the evidence.

It is not enough for
    you to believe that Warren Mann is probably or likely guilty in respect of a
    particular charge. Proof of probable or likely guilt is not proof of guilt
    beyond a reasonable doubt. If you think that he is probably or likely guilty,
    you must find him not guilty, because Crown counsel would have failed to
    satisfy you of his guilt beyond a reasonable doubt.

You should also
    remember, however, that it is nearly impossible to prove anything with absolute
    certainty. Crown counsel is not required to do so. Absolute certainty is a
    standard that is impossibly high for the Crown to prove.

If, at the end of
    the case, after considering all of the evidence, you are sure that Warren Mann
    committed an offence, you should find him guilty of it, since you would have
    been satisfied of his guilt of that offence beyond a reasonable doubt.

If, at the end of
    the case, based on all of the evidence or lack of evidence, you are not sure
    that Warren Mann committed an offence, you should find him not guilty of it,
    since you would not have been satisfied of his guilt beyond a reasonable doubt.
    [Emphasis added.]

[14]

The problem
    arises with respect to the portions of the instruction that I have underlined
    above. With the exception of the substitution of the word belief for
    conclusion in the third sentence of the first paragraph above, the wording is
    identical to instructions that this court has twice before found to be erroneous,
    requiring a new trial:
R. v. Darnley
, 2020 ONCA 179, 387 C.C.C. (3d) 200, at
    paras. 32-36, and
R. v. Brown
, 2018 ONCA 1064, at para. 15.

[15]

The error is
    set out by Paciocco J.A. in
Darnley
at paras. 33-36, where he said:

First, a reasonable
    doubt need not arise from the evidence:
R.
    v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of
    evidence, from what the Crown has failed to prove:
R. v. Lifchus
,
    [1997] 3 S.C.R. 320, at para. 36.

Moreover, an
    inference need not arise from "proven facts", which is "a
    standard that is never applicable to an accused":
R. v. Robert
(2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a
    reference to "proven facts" suggests an obligation to establish those
    facts to a standard of proof, yet a reasonable doubt can arise from evidence
    that, while not proven to be true to any standard of proof, has not been
    rejected.

It is also incorrect
    to link a reasonable doubt to a "conclusion" drawn from the facts. An
    acquittal need not be based on a conclusion about innocence but can rest on an
    inability to conclude guilt.

It is also an error
    to suggest that an exculpatory inference must be "a much stronger
    conclusion" than a speculation or guess. That language imports the need
    for a strong inference, when an exculpatory inference relating to a required
    element of the offence need merely raise a reasonable doubt:
Villaroman
,
    at para. 20

[16]

As I have said,
    the only difference between the instructions here, and the instructions in these
    two earlier cases, is the substitution of the word belief in the third
    sentence. That change does not cure the error identified. The effect of the
    instructions is still to essentially reverse the onus. It places a burden on
    the accused to prove something from which a reasonable doubt could arise  a
    burden that is not placed upon any accused and one that is inconsistent with
    the presumption of innocence.

[17]

In response, the
    respondent asserts that the problem in this instruction is alleviated when the instructions
    are reviewed as a whole. The respondent adds that the problem is further
    alleviated because the proper instruction on reasonable doubt was given to the
    jury at the outset of the trial.

[18]

That submission
    fails on two fronts. First, the same argument was expressly rejected in
Darnley
,
    where Paciocco J.A. said, at para. 38:

There is no force in
    the Crown's contention that these errors lose their significance when the jury
    charge is read as a whole. Errors relating to the burden and standard of proof
    may not be reversible "if the charge, when read as a whole, makes it clear
    that the jury
could not have been under any misapprehension
as to the
    correct burden and standard of proof to apply" (emphasis added):
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, at p. 758. This
    is not a case for inferring that these errors did not confuse or mislead the
    jury. [Emphasis in original.]

[19]

The other is
    the fact that the final instructions were given to the jury in hard copy. Consequently,
    if the jury had any reason to revisit the instruction on reasonable doubt, we
    can safely assume that they would have had reference to the hard copy instructions
    that they had, not their recollections from the opening of the trial some 25
    days earlier.

[20]

Unfortunately, the
    error in the instructions undermined both the presumption of innocence and the
    burden of proof. It is a fundamental error that gives us no alternative but to
    set aside the convictions and order a new trial.

(2)

The s.10(b)
    issue

[21]

While the
    resolution of the first issue is sufficient to dispose of the appeal, I will
    address the second issue since it will likely arise at a new trial. Since the
    matter has been fully argued, it does not make any sense to leave the issue
    hanging without resolution. To do otherwise, does a disservice to counsel and
    the trial judge at the new trial.

[22]

The appellant was arrested at the scene without
    incident. The officer who arrested the appellant immediately turned him over to
    two other officers. It is while the appellant was in the custody of these two
    officers that he made the impugned statements.

[23]

The statements began after one of the officers
    asked the appellant whether he had been stabbed. There was blood on the
    appellant and, as the trial judge found, it was reasonable for the officer to
    make this inquiry. After answering "no" to the question of whether he
    had been stabbed, the evidence of the officer was that the appellant
    spontaneously stated that he was planning to kill himself with a knife that
    night, but it was too dull. He said that the knife was in the centre console of
    his vehicle that was parked outside of the residence, and that there was also a
    suicide note.

[24]

In contrast, the other officer said that the
    appellants utterances began while the officers were walking with the appellant
    out of the residence and continued on their way to the police car. His evidence
    was that the appellant made the following statements: "she just pissed me
    off'; "I just lost it on her"; "I just snapped"; and
    "I tried to commit suicide tonight with my knife but it wasn't sharp
    enough. I tried it on my hands."

[25]

Upon being placed in the police cruiser, the
    appellant was told by the first officer that he was under arrest for aggravated
    assault and was provided with the rights to counsel and cautioned, in standard
    format. The appellant indicated that he understood each of these items of information,
    and responded that he had no lawyer in Barrie, but that he would speak with
    duty counsel.

[26]

The trial judge found that the appellants
    utterances were made in violation of his s. 10(b)
Charter
rights. She
    found that the appellant was not given his s. 10(b) rights at the first
    opportunity. In particular, the trial judge found that the first opportunity
    was not when the appellant was placed in the police cruiser, as between five to
    ten minutes had elapsed between his detention and the time that the appellant
    was removed from the home. No appeal is taken from that conclusion by the trial
    judge.

[27]

Having found a s. 10(b) breach, the trial judge
    then considered whether the evidence ought to be excluded under s. 24(2). She
    concluded that it should not. The appellant says that the trial judge erred in
    her s. 24(2) analysis. I agree.

[28]

The trial judge addressed the three factors from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. On the first factor, she
    concluded that the breach was not deliberate, or of such seriousness that the
    court should seek to disassociate itself. On the second factor, the trial
    judge found that the impact on the appellants rights was tempered
    significantly because the appellant had made more serious,
    self-incriminating remarks in the 911 call. On the third factor, the trial
    judge found that, while the exclusion of the evidence would not significantly
    undermine the prosecutions case, the evidence was highly relevant to the
    issue of intent and thus inclusion of the evidence was favoured.

[29]

In my view, the trial judge erred in her
    analysis of all three of the
Grant
factors. First, as found by the
    trial judge, the officers delayed in providing the appellant with his rights to
    counsel. The fact that the officers did not do so deliberately does not lessen
    the nature of the breach. It simply does not aggravate it. The officers did not
    offer any explanation for the delay. The crime scene was being adequately
    handled by the many other officers who were on scene (including two sergeants)
    and the victim was being treated by paramedics.

[30]

The right to counsel is an extremely important
    right. Persons who are detained by the police may need immediate advice and
    counsel. As explained by McLachlin C.J. and Charron J. writing for the majority
    in
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 41: [a]
    situation of vulnerability relative to the state is created at the outset of a
    detention. Thus, the concerns about self-incrimination and the interference
    with liberty that s. 10(b) seeks to address are present as soon as a detention
    is effected. And, as Doherty J.A. observed in
R. v. Rover
, 2018 ONCA
    745, 143 O.R. (3d) 135, at para. 34: [t]he effective implementation of the
    right to counsel guaranteed by s. 10(b) depends entirely on the police.

[31]

It is not up to the police to decide when they
    will get around to providing rights to a person whom they have arrested. The
    failure of the police to understand this basic proposition is a serious matter
    and must be treated as such when it is breached.

[32]

Second, the breach of a persons rights, and the
    extraction of utterances from that person, is not tempered by the fact that
    the police have other evidence of a similar type, properly obtained. The fact
    remains that the police have extracted potentially incriminating evidence in
    violation of a guaranteed right. The maxim no harm, no foul has little place
    in the assessment of a violation of constitutionally protected interests. I
    would note that, both in the final instructions to the jury, and in the Crowns
    closing submissions, the admitted utterances were given prominence.

[33]

Third, the trial judges analysis of inclusion versus
    exclusion is inconsistent with her earlier analysis of the importance of the
    evidence. Having lessened the impact of the evidence obtained under the second
Grant
factor, the trial judge then reversed course in finding that the evidence was
    highly relevant under the third
Grant
factor. The fact is that the
    evidence was not necessary to the prosecutions case and this fact argued in
    favour of its exclusion.

[34]

I would set aside the trial judges decision
    regarding s. 24(2) and exclude the evidence from any new trial.

Conclusion

[35]

Unfortunately, both
    errors that I have discussed infected the fairness of the trial. A new trial is
    required. I would allow the appeal, set aside the conviction on attempted
    murder and the finding of guilt on aggravated assault, and order a new trial on
    both offences.

Released:
February 19, 2021 KF

I.V.B. Nordheimer J.A.

I agree. K. Feldman J.A.

I agree. M. Tulloch J.A.

[1]

There was also a finding of guilt for aggravated assault but
    that finding was stayed on the principles set out in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729