COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hurd, 2014 ONCA 554

DATE: 20140721

DOCKET: C54593

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Peter Hurd

Appellant

Paul Calarco, for the appellant

David Lepofsky, for the respondent

Heard: May 21, 2014

On appeal from the conviction entered by Justice John R.
    Sproat of the Superior Court of Justice, sitting with a jury, on April 19, 2011.

Pepall J.A.:

INTRODUCTION

[1]

The appellant, Christopher Peter Hurd, was convicted of the first degree
    murder of Loretta Lavalley in a trial before a judge and jury.  In an agreed
    statement of facts, the appellant admitted to sexually assaulting, forcibly
    confining, and causing the death of Ms. Lavalley.

[2]

According to the appellant, the Crown had an almost unanswerable
    case.  The only defence presented at trial was that the appellant lacked the
mens
    rea
for murder because he was intoxicated due to consumption of drugs and
    alcohol.  This defence would reduce a conviction for murder to one of manslaughter.

[3]

On appeal, the appellant submits that the trial was unfair because Crown
    counsel, Stephen Sherriff, engaged in an unfair, sarcastic, and demeaning
    cross-examination of the appellant and the suggestions made were reinforced in
    the Crowns jury address.  Furthermore, the trial judge failed to correct the
    resulting prejudice.  The appellant seeks a new trial.

[4]

The appellant also seeks leave to admit fresh evidence of alleged juror
    misconduct discovered after the trial.  The appellant submits that, at a
    minimum, this evidence deprived the appellant of the appearance of a fair
    trial.

BACKGROUND FACTS

[5]

On November 29, 2008, the appellant was drinking alcohol and smoking
    marijuana with three friends. Two of the friends described the appellant as
    being heavily intoxicated that night
[1]
.
    The appellant claims to have consumed magic mushrooms that evening, though this
    evidence was contested. Around 11:00 p.m., the appellant decided to drive a car
    stolen two days earlier. He started it with a screwdriver.  He rear-ended a
    friends car, drove the stolen car into a cemetery, and walked back to the
    scene of the car accident. A witness, Vanessa Boisse, lived across the street
    from the car accident.  She observed the appellant and testified that he seemed
    calm and she did not notice anything unusual about his movements or demeanour.

[6]

The police arrived and Officer Peter Danos interviewed the appellant,
    who claimed to be a bystander who was uninvolved in the accident. Officer Danos
    described the appellant as calm and articulate without any signs of
    impairment.  The appellant answered questions; Officer Danos believed him and
    let him go.

[7]

Officer Danos found the car in the cemetery. He opined that it would be
    difficult to park the car where he found it and would require a significant
    amount of maneuvering.

[8]

The victim, Loretta Lavalley, was 36 years of age.  She lived alone in a
    ground-floor apartment near the scene of the car accident. The appellant trekked
    through a fish pond to the rear of Ms. Lavalleys apartment building.  He then
    entered Ms. Lavalleys apartment through a sliding patio door that did not lock
    properly.

[9]

Over at least the next 18 minutes, he beat her, tied her hands behind her
    back, and sexually assaulted her.

[10]

At
    some point during the attack, Ms. Lavalley dialed 911 on her cellphone. She did
    not speak to the operator, but the recording, which lasted for 18 minutes,
    captured the sounds of the attack and voices. This included Ms. Lavalley
    pleading with the appellant to stop hurting her, as well as the appellant
    ordering Ms. Lavalley to perform sexual acts. The 911 operator called Ms.
    Lavalleys landline, but the call went unanswered. The police traced the call,
    pounded on the front door of the apartment, and forced themselves in. The
    appellant, whom they encountered nude, tried to fight them. He was Tasered approximately
    four times before he was finally subdued and arrested. Three officers testified
    that he maintained his coordination and balance. The police officers who
    arrested the appellant did not believe him to be intoxicated due to his conduct
    during the physical fight but admitted that they could not tell if he was under
    the influence of alcohol or drugs.  One, Officer Petroff, smelled alcohol on
    his breath. At the time of his arrest, his blood alcohol concentration was
    projected to have been between 156 and 199 milligrams per 100 millilitres.
    (The legal limit over which it is an offence to operate a car is 80 milligrams
    in 100 millilitres.)

[11]

In
    the next room, officers found Ms. Lavalley lying naked from the waist down with
    her hands tied behind her back and exhibiting no vital signs. She was taken to
    the hospital where she was later pronounced dead.

[12]

A
    cellular phone was found tucked inside the fold of a green blanket in the
    middle of a pile of clothing and blankets on top of a chest beside the bed in
    Ms. Lavalleys room. This was the cellphone used to call the 911 dispatcher
    which recorded the attack on Ms. Lavalley.

[13]

The
    appellants jeans were found on the floor in the bedroom closet which was
    open.  The legs of the jeans were wet and muddy.

[14]

Paramedics
    attended at the crime scene.  The paramedics who treated the appellant
    initially assessed him as fully conscious, though lethargic and slow to respond
    to questions.  His pupils were observed as being unusually small in size.  At
    one point, his level of consciousness decreased substantially.  The paramedics
    did not recall smelling alcohol on his breath.

[15]

He
    was taken to the hospital, where his blood and urine were tested for the
    presence of drugs and alcohol. He told the paramedics that he had consumed
    ecstasy and Oxycontin but neither was detected in his blood. He did not mention
    magic mushrooms. His bodily fluids revealed the presence of marijuana, alcohol
    and psilocin, the metabolite of psilocybin, which is the psychoactive drug in
    magic mushrooms.  It was not possible to determine the timing of consumption,
    but the level of psilocin was consistent with consumption within 48 hours of
    the killing. At the hospital, before being admitted into care, he became
    aggressive and was sedated.

[16]

Hours
    later, he was transported by police cruiser to the police station.

[17]

When
    arrested and in hospital, he wore a ring on his finger that was not his own but
    which bore the DNA of Ms. Lavalley.  A friend of the victim identified the ring
    as possibly belonging to Ms. Lavalley.  The appellant did not know why he took
    the ring and could not recall taking it off of Ms. Lavalleys hand.  He
    admitted that it was not worth stealing.  When he arrived at the police
    station, the appellant was no longer wearing the ring.  The police found the
    ring under the back seat of the police cruiser that had transported the
    appellant to the police station.

[18]

At
    the police station, the appellant gave a video statement. He told the police
    that he knew and had interacted with Ms. Lavalley and that she had invited him
    into her apartment. The police could not find any evidence that the appellant
    and Ms. Lavalley knew each other.

[19]

Dr.
    Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario,
    testified for the Crown.  In his opinion, the cause of death was deprivation of
    oxygen to the brain due to strangulation.  However, he could not rule out death
    from blood in Ms. Lavalleys air passage as a contributing cause.

[20]

Dr.
    Joel Mayer, an expert in pharmacology and toxicology was called by the defence.
    He testified that someone with the appellants blood alcohol content would be
    significantly or seriously intoxicated but he could not say whether the
    appellants projected blood alcohol level would have eliminated murder
mens
    rea
.  The appellant was a long-time alcohol and drug abuser and frequent
    users build up tolerance thereby reducing the effects of intoxicants.  He also
    testified that marijuana slows thinking and impairs thought, and psilocybin
    could produce hallucinations, but the combined effect of psilocybin, alcohol
    and marijuana is unknown. He testified that a person may not show outward signs
    of impairment but still have cognitive impairment. The expert agreed that it
    was not possible to say what level of intoxication would deprive a person of
    the knowledge that they were killing another person.

[21]

At
    trial, the Crown took the position that this was a clear and overwhelming case
    of first degree murder; the appellant had the intent for murder and this was
    not a case of manslaughter.  The Crown prosecutor argued that the appellant
    strangled Ms. Lavalley because he did not want the police to discover that he
    had brutally sexually assaulted her.  In support of this theory, the Crown noted:

·

The tape revealed that he was deliberately hurting Ms. Lavalley
    for 15 minutes until the strangulation began.

·

Ms. Lavalleys cellphone was found inside a blanket in the middle
    of a pile of bedding and it was likely that she was hiding the phone from the
    appellant, making it more likely that his conduct was intentional.

·

The appellant accelerated the murder in response to the presence
    of police.  Ms. Lavalley stopped screaming before the third of nine knocks on
    her apartment door by the police.

·

The reason the appellant put up a struggle with police was
    because he knew Ms. Lavalley was dead. For this reason, he never asked about
    the victims condition while being interrogated at the police station.

·

The appellants actions were strategic and calculated:

-

After
    the car accident, the appellant and his friend planned to drive the cars in
    opposite directions to avoid police;

-

The
    appellant tricked Officer Danos into believing that he was merely an innocent
    bystander;

-

In
    the video statement the appellant gave to police after the crime, he maintained
    that he knew Ms. Lavalley and that she had invited him into her apartment.  In
    cross-examination, he said he had never met Ms. Lavalley before.  He agreed
    that it was a lie that he had been invited into her premises.

·

At the time of his arrest, he was wearing a silver ring on his
    pinkie finger.  The Crown argued that the appellant took the ring as a trophy
    and tried to hide it in the cruiser.

·

While the appellant was probably too intoxicated to drive, he was
    not too intoxicated to form the intent for murder.  The officers who arrested
    the appellant testified as to his balance, co-ordination, and tenaciousness in
    the fight.  Officer Danos found the appellants car parked in a location in the
    cemetery that, in his view, required difficult manoeuvering in very poor
    lighting.  The appellant had parked the car in the cemetery about 20 minutes
    before the 911 call from Ms. Lavalley commenced.

[22]

At
    trial, the appellant took the position that he was intoxicated and therefore
    lacked the necessary
mens rea
for murder. He relied on the evidence of
    the pharmacology and toxicology expert, the evidence of his two friends and his
    own testimony. Additionally, he relied on a reference to drug consumption in
    the 911 recording and the evidence of Laura Grava, the appellants sometime
    spouse and mother of his child, who testified that he had a history of drug and
    alcohol abuse and that she had observed him in the week preceding the crime
    with a white powder, mushrooms and alcohol.  She described him as paranoid and
    incoherent when under the influence of drugs and alcohol. She testified that on
    the day of the killing, there were two 60 ounce bottles, one of rum and one of
    vodka, that were being consumed by the appellant and two others, one of whom
    testified that the appellant engaged in three hours of non-stop drinking. Another
    witness, Esha Rani, testified that she saw the appellant use marijuana that
    night. No one saw him take magic mushrooms that night or heard him saying he
    was doing so.

FRESH EVIDENCE

[23]

The
    fresh evidence includes a Globe and Mail newspaper website report on the case.
    In the comments section, a person self-identifying as Shadsfan stated:

I was a juror on this trial and was pleased that we were all
    able to deliver the justice required within the frame of the law and get
    Lorettas family some decent closure on their sad loss.  At the trials end,
    one of her family called a quiet thank you to me as I left the jury box.  It
    was heart wrenching for me and although I could not respond, I would like her
    and her friends [and] family to know that Loretta was always in our thoughts as
    we deliberated on the proceedings and agreed on a first degree charge.  May
    Loretta rest in peace and may her family find solace in her memory.  I only
    wish their [
sic
] was a law that would have allowed us to go even
    further in this terrible case.  If we cant bring back the death penalty, we
    should at least increase the sentences.  RIP Loretta.

[24]

The
    Globe and Mail website provided for responses to comments.  Someone
    self-identifying as Kate and as a relative of Ms. Lavalley thanked the juror
    for the verdict.

[25]

Shadsfan
    replied, stating that [t]he Crown prosecutor Mr. Sherriff did a good job and
    made some interesting comments to the press which I must agree with.

[26]

The
    appellant also seeks to introduce news articles in which, after the verdict, Mr.
    Sherriff is reported as stating that the appellant was capable of killing again
    and the verdict had the potential to or did prevent more murders.

[27]

The
    appellant submits that this evidence, which was discovered after the verdict,
    reveals that a juror acted improperly.  The appellant argues that the juror
    failed to abide by his oath to try the case upon the merits and without favour
    by identifying with the deceased and her family; wishing the appellant could be
    executed; offering to meet with a relative of the deceased; and agreeing with
    inflammatory post-verdict comments made by the Crown that the convictions in
    the case had prevented further murders.  The appellant argues that this
    misconduct, at minimum, deprived the appellant of the appearance of a fair
    trial and demands the intervention of this court.

GROUND OF APPEAL

[28]

The appellant argues that the accused was deprived of a fair trial due
    to the inflammatory statements made by Crown counsel, Mr. Sherriff, in his
    opening address, cross-examination and closing address.  He asserts that Crown
    counsels conduct failed to meet the standards demanded of his office.  The
    appellant submits that although the prosecutions case appeared very strong, no
    conviction should rest upon a trial conducted in this manner.  Moreover, he
    submits that the jurors statements described in the fresh evidence also
    demonstrate the depth of improper conduct by the Crown.  He argues that the
    fresh evidence demonstrates an appearance of bias.  In these circumstances, he
    states that the verdict cannot stand and a new trial should be ordered.

DISCUSSION

[29]

I
    would dismiss the appeal.  In my view, while some of Mr. Sherriffs comments
    were ill-advised and somewhat provocative, the appellant was not deprived of a
    fair trial.

[30]

The
    appellant relies on numerous examples of statements made by the Crown in
    support of his position. Most of the alleged improprieties are thoroughly
    canvassed and answered in the Crowns factum.  Many are unfounded, overstated
    or immaterial. I have considered the instances both individually and cumulatively
    and have determined that it is unnecessary to address each example.  My
    approach here mirrors that adopted by Moldaver J.A., as he then was, in
R.
    v. Clark
(2004), 69 O.R. (3d) 321 (C.A.), at para. 122.  That said, I will
    expressly address the most critical allegations.

[31]

Moreover,
    I note that no fault may be found with the trial judges control and conduct of
    the trial or with his charge.  Indeed, the appellant was satisfied with the
    charge.

A.

Legal Principles

[32]

Crown
    prosecutors are advocates who are expected to act rigorously but fairly,
    persuasively but responsibly.  A criminal prosecution takes place within the
    parameters of an adversarial system.  As Moldaver J.A. emphasized in
Clark
,
    at para. 126, a murder prosecution is not a tea party: both sides [are]
    entitled to press their case and put their best foot forward.

[33]

On
    the other hand, as noted by this court in
R. v. Henderson
(1999), 44
    O.R. (3d) 628 (C.A.), at p. 638, Crown counsels role is unique given their
    role as ministers of justice.  Rand J. described the role, as far back as
    1954, in
R. v. Boucher
, [1955] S.C.R. 16, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal
    prosecution is not to obtain a conviction; it is to lay before a jury what the
    Crown considers to be credible evidence relevant to what is alleged to be a
    crime. Counsel have a duty to see that all available legal proof of the facts
    is presented: it should be done firmly and pressed to its legitimate strength,
    but it must also be done fairly. The role of prosecutor excludes any notion of
    winning or losing; his function is a matter of public duty than which in civil
    life there can be none charged with greater personal responsibility. It is to
    be efficiently performed with an ingrained sense of the dignity, the
    seriousness and the justness of judicial proceedings.

[34]

While
    these principles are easy to state, Crown counsels dual role presents a
    certain tension and the application of the principles sometimes proves
    challenging.  Nonetheless, Crown counsel must never part company with fairness
    and integrity.  The fundamental question to be answered in each case is: has
    the accused been deprived of a fair trial?

B.

Allegations of impropriety

(1)

The Ring

[35]

In
    his opening address, Crown counsel took the position that the appellant took
    the victims ring as a trophy and that he later tried to hide it in the police
    cruiser.  Under cross-examination, the appellant testified that the ring was
    not his and he did not know why he took it.  He agreed that it did not look
    like it was worth stealing.  Crown counsel said that he was going to make an
    ugly suggestion to the appellant namely, that the ring was a trophy, and he questioned
    whether the appellant had any nicer version of this to offer up.

[36]

The
    defence objected on the grounds that the question could not be answered since
    the appellant had no recollection and that the question invited speculation and
    argument.  Defence counsel suggested that the Crown simply make the argument in
    his closing address to the jury: if Mr. Sherriff wants to make that argument
    hes more than welcome to make that argument.  Let him make that argument to
    the jury in his closing address. Mr. Sherriff responded that he was giving the
    appellant a fair chance to explain something before putting an ugly theory to
    the jury.

[37]

The
    trial judge ruled that the Crown was entitled to ask whether the appellant
    could think of any reason why he would have taken the ring.  However, questions
    suggesting that there was an onus on the appellant to come up with an
    explanation were to be avoided.  The Crown then asked the appellant if he could
    think of any reason why he would have taken the ring and the appellant replied
    that he could not.

[38]

In
    his closing address, the defence expressly raised the trophy argument, and stated
    that if the appellant had taken the ring as a trophy, he would have removed it
    when the police arrived.  Defence counsel offered that it was most likely that the
    appellant simply lost the ring in the police cruiser without realizing it.  In his
    closing address, Crown counsel submitted that the ring was a thoughtful trophy
    which showed that the appellant was thinking and therefore had the state of
    mind necessary for murder.

[39]

In
    his charge to the jury, the trial judge stated that the fact that the appellant
    left the ring in the police vehicle was not in itself relevant to ascertain
    whether he had murder
mens rea
.  This was because, as a matter of common
    sense, this conduct was equally consistent with his having committed
    manslaughter.  In addition, the fact that the appellant might have stolen the
    victims ring could not be considered to the extent that it indicated bad
    character.  He then referred to the ring again when summarizing the appellants
    testimony. The trial judge did not refer to the Crowns trophy argument.

[40]

The
    defence did not object to the Crowns closing argument, nor did he seek any
    instruction from the trial judge.

[41]

The
    appellant argues that the Crowns line of questioning portrayed the appellant
    as a twisted psychotic.  This attacked the appellants disposition and
    prejudiced the defence.  Moreover, there was no correction by the trial judge.
    Additionally, the appellant submits that by his questioning, the Crown also
    suggested that the appellant bore the onus to refute this theory.

[42]

In
    my view, on the basis of the record, it was open to the Crown to invite an
    inference that the appellant took the ring as a trophy to assist in showing
    that he had murder
mens rea
.  Although not determinative, neither of
    the two defence lawyers at trial ever argued that this was an impermissible
    Crown argument or inference.  Nor did they argue that a mistrial was required
    in response to this issue. Indeed, the Crown was invited to address this
    argument in its closing submissions.

[43]

The
    defence was able to answer the theory and in fact did address the trophy
    argument in its own address to the jury.  The trial judge did not make any
    reference to the Crowns trophy argument and correctly instructed the jury on
    the burden of proof.  In any event, the questioning did not impermissibly shift
    the burden of proof.  Lastly, the judges instructions made it clear that
    lawyers comments, including questions asked of witnesses, do not constitute
    evidence unless agreed to by a witness.

(2)

Causing Pain to Ms. Lavalley

[44]

Under
    cross-examination, the appellant admitted to hitting the victim and hearing
    sounds of pain, yet claimed that he did not know she was hurt and did not hear
    her repeatedly asking him to stop or telling him that she was hurt. Crown
    counsel suggested to the appellant that he must have enjoyed hurting Ms.
    Lavalley.  The appellant responded that he did not and that he did not know
    what he was doing.

[45]

In
    his closing address, Crown counsel argued that the appellant deliberately
    inflicted pain on the victim in spite of her protests and that this constituted
    proof that he knew what he was doing.  She suffered a beating that far exceeded
    what was needed to compel her to submit to the sexual assault.  He stated:

This crime is foreign to you and it appears senseless to you
    for good reason, but dont conclude that it was senseless for him. He inflicted
    so much pain and suffering for so long he must have been getting something out
    of it in a twisted way or he would have left. You will not be able to
    understand that. It doesnt mean that he didnt want what he was doing.  You
    cant hope to understand what satisfaction he wanted.  Did he want control,
    power, dominance?  Did he get pleasure out of her pain? Who knows? And it
    doesnt matter.  It does not matter.  All that matters is, did he intend to
    kill her not why did he intend to kill her.

[46]

The
    trial judge provided the standard instruction that what lawyers say is not
    evidence and that the jury should not engage in bad character or propensity
    reasoning.  In addition, the trial judge summarized the Crowns position which
    included the allegation that he was intentionally hurting the victim which, in
    that sense, revealed intentional conduct.

[47]

The
    appellant submits that the cross-examination questions and closing address suggested
    that the appellant enjoyed hurting the deceased, portrayed him as a sadist, was
    not based on evidence and was designed to prejudice the appellant.

[48]

Again,
    in my view, it was open to the Crown to suggest that the appellant enjoyed
    hurting Ms. Lavalley.  There was an evidentiary basis for the question.  The
    beating suffered by Ms. Lavalley far exceeded the force necessary to submit to
    a sexual assault. The attack lasted at least 18 minutes.  As so clearly evidenced
    by the 911 recording, Ms. Lavalley experienced extreme pain and made repeated
    pleas that the appellant stop.  The appellant admitted that he heard her sounds
    of pain.  Since the jury heard the 911 recording, it was an inference the jury could
    have drawn even if the Crown had said nothing.

[49]

While
    Crown counsels wording might not have been ideal, this was a fair line of
    questioning.  The line of questions was relevant to the appellants intention
    and the Crown gave the appellant an opportunity to respond to the allegation.

[50]

The
    Crowns statement that the jury could not hope to understand the appellants
    satisfaction was not designed to portray the appellant as a sadist. Rather, it
    was designed to refute a possible inference that due to the aberrant and alien
    nature of the crime, the appellant must not have intended his actions. It was
    open to the Crown to deflect this possible inference by cautioning the jury
    that an inability to relate to the appellants actions did not mean that there
    was no murder
mens rea
.

(3)

The Appellants Struggle with the Police

[51]

In
    his examination-in-chief, the appellant admitted that he fought with the police
    as they tried to get into the apartment.  The Crown in cross-examination asked
    whether the appellant knew he was delaying the police from rescuing the victim
    by struggling with them.  The Crown then proceeded to suggest an alternative,
    namely that the appellant already knew the victim was dead when struggling with
    the police and the reason he struggled was to avoid being captured.  The
    precise exchange was as follows:

Q.  Now, I am not going to suggest to you that you are
    struggling with the police so that [the victim]s going to die.  Im not going
    to suggest that.  That would be very cruel.  Im not going to suggest that.

A.  Then why would you say it?

Q.  Well, no  because  Im going to suggest to you another
    alternative.  You know shes dead.  You already know shes dead and therefore
    its all about you.  Its all about you getting out of there.  You dont say to
    the police, Help her.  Go there.  Theres a lady in the room.  You have left
    her for dead.  Thats my suggestion.

A. I dont believe that.  I was not aware of any of that.

[52]

The
    appellant submits that despite the Crowns flimsy cover, the Crown was in
    fact improperly suggesting that the appellant, whom he portrayed as a
    psychotic, sadistic killer, was doing everything he could to ensure the victim
    expired by preventing any attempt to rescue her.

[53]

The
    statements made by the Crown by way of preamble to his questions ought not to
    have been made.  While the cross-examination removed the inference that the
    appellant was struggling with the police so that Ms. Lavalley would die, the
    statements were largely unnecessary.  That said, from the context of the trial
    as a whole, it is clear that the Crowns position throughout was not that the
    appellant was trying to ensure that the victim died, but rather that the
    appellant knew the victim was dead before fighting police. This position was
    consistent with both the Crowns closing address and the trial judges summary
    of the theory of the Crown case.  The cross-examination  did not seek to
    advance the inference that the appellant was struggling with the police so that
    Ms. Lavalley would die.  The statements made by the Crown by way of preamble to
    his question ought not to have been made but in context it did not prejudice
    the appellant.

[54]

Moreover,
    in the part of the jury charge that instructed the jury on the state of mind
    required for a finding of murder, the trial judge noted that the jury may
    consider the motive suggested by the Crown, namely to commit sexual assault
    and then to kill to avoid detection. The trial judge also noted the defences
    argument that the appellant lacked any motive to kill, and that he was heavily
    under the influence of drugs and alcohol. Again, while not determinative, it is
    notable that the defence did not object.

(4)

Ms. Lavalleys Photograph

[55]

The
    parties agreed to admit a photo of Ms. Lavalley into evidence. In
    examination-in-chief, the appellant testified that although he initially told the
    police that he knew the victim, after seeing pictures of her, he discovered he
    did not know her.

[56]

During
    the appellants cross-examination, the Crown placed a picture of Ms. Lavalley
    on the screen.  It was in view for a period of about eight minutes during the
    Crowns questioning on the appellants knowledge of Ms. Lavalley prior to the
    offence.  The defence objected to the Crowns line of questioning and asked that
    the photograph be taken down.  The trial judge stated that he did not think
    that the victims photograph should be left on display any longer.

[57]

There
    was no basis for appellate attack on the Crowns conduct in these
    circumstances. The photograph was clearly relevant to the questions going to
    the appellants prior knowledge of the victim given the appellants own
    evidence in chief and was taken down after approximately eight minutes.

(5)

Knowledge of Ms. Lavalley

[58]

In
    a statement given to the police on the night of the killing, the appellant told
    the police that he knew the victim and had hung out with her in the past. As
    mentioned earlier, at trial he testified in-chief that he did not know her. In
    cross-examination, the Crown said: So you kept on telling them until this
    trial, until this trial, you keep on telling the police that you knew this
    lady. The defence objected on the basis that Mr. Sherriff was alleging that
    the appellant was tailoring his evidence to fit the disclosure, and that this
    allegation was impermissible.

[59]

The
    trial judge agreed.  The Crown was permitted to continue with the
    cross-examination on the prior inconsistent statement without suggesting in any
    way that if the appellants testimony was true, he should have come forward
    earlier.

[60]

The
    appellant now submits that the Crowns comments were misleading because they
    suggested that there were multiple false statements by the accused that he knew
    the deceased whereas in fact, there was simply one statement to the police.

[61]

I
    reject this submission.  Although the original question may have suggested
    multiple false statements, after the objection the Crown only referred to one
    police statement and in any event, there was no objection on this basis by
    defence counsel. Moreover, the trial judge gave both a mid-trial instruction
    and a further instruction in his final charge on the actual basis for the
    objection. There was no prejudice caused to the appellant.

(6)

Hiding of the cellphone in the blanket

[62]

At
    some point during the attack, Ms. Lavalley dialed 911 on her cellphone.  One of
    the investigating officers testified that the cellphone was found in the fold
    of a green blanket on top of a chest in the apartment.

[63]

The
    appellant argues that Crown counsel misstated the evidence when he suggested,
    in cross-examination, that Ms. Lavalley had the presence of mind to hide the cellphone
    under a blanket when there was no such evidence. The appellant submits that
    there was no evidence that Ms. Lavalley hid the phone at all, and that this
    misstatement left the jury with the impression that the appellants actions
    were calculated and that the deceased had to take steps to hide the phone or
    the appellant would have terminated the call to prevent interference with his
    murderous plan.  If the phone had not been noticed by the appellant, this would
    be consistent with unplanned or spontaneous conduct which would suggest the absence
    of a plan to kill.

[64]

At
    trial, when defence counsel objected to the Crowns statement, he conceded that
    while the Crown could argue in closing that the victim put the cellphone in the
    blanket, this theory should not be put to the appellant in cross-examination.
    The trial judge ruled that the Crown could ask how the cellphone got into the
    blanket but stated that there was no need to open this question by saying that
    the victim had the presence of mind to put it there.  After the jury
    returned, the Crown asked the appellant if he had any memory of seeing the
    phone or of the victim or himself putting it there or anything about the
    phone.  The appellant responded that he could not remember a phone.

[65]

In
    his opening address to the jury, the Crown did not urge upon the jury that the
    victim had the presence of mind to put the phone in the blanket. However, the
    Crown did argue that Ms. Lavalley had tucked the cellphone into a blanket in
    the bedroom.  The defence did not object to this.

[66]

The
    trial judges charge to the jury referred to the 911 recording but did not
    refer to the cellphones location or how it arrived there.

[67]

In
    my view, it was open to the Crown to ask the jury to infer that the victim hid
    the cellphone given that she had used it to call 911 and given that one of the
    investigating officers testified that the cellphone was found in the fold of a
    green blanket on top of a chest in the apartment. There was no objection by
    defence counsel to the Crowns opening address and it was conceded that the
    Crown could invite this inference in its closing address.

(7)

Travel through water

[68]

The
    agreed statement of facts stated that the appellants lower clothing was wet
    when found. It also indicated that the morning after the killing, a community
    resident noticed that the ice on the pond in his backyard was broken. In his closing,
    defence counsel conceded that the appellant likely went through a pond the
    night of the killing.

[69]

In
    cross-examination, the appellant admitted to being aware that police have
    tracking dogs.  The Crown then suggested that going cross country, stepping
    into a pond which has got water in it, icy water, would help throw tracking
    dogs off their scent. In his closing address, the Crown argued that the
    appellants conduct in avoiding the police demonstrated that he was making
    deliberate, thoughtful decisions the night of the killing.

[70]

The
    appellant submits that it was not open to the Crown to suggest that he deliberately
    travelled through water to impede police dogs from trailing him:  there was no
    evidence of police dogs being used and this suggestion was improper because it portrayed
    the appellant as conscious and calculating.

[71]

I
    do not accept this submission. The absence of evidence that the police actually
    used dogs that night is irrelevant.  The Crowns question simply went to whether
    the appellants conduct was purposeful.  Furthermore, the defence closing
    address used the fact that the appellant likely went through the pond as
    additional evidence of intoxication.  It was open to the Crown to advance a
    different inference.

(8)

Ms. Boisse

[72]

The
    appellant complains that in cross-examination the Crown invited the appellant
    to comment on the credit of Ms. Boisse, a witness who had identified him as
    being involved in the car accident that occurred prior to the killing.  He
    submits that the appellants opinion on the evidence of another witness is
    irrelevant.

[73]

The
    trial judge instructed the Crown to refrain from asking the appellant to
    comment on the credibility or correctness of other witnesses evidence.  In his
    jury charge, the trial judge instructed the jury that the appellants view of
    other witnesses evidence was irrelevant.

[74]

This
    direction corrected any impropriety.

C.

Fresh Evidence

[75]

The
    fresh evidence, even if assumed to be accurate, does not prove Crown misconduct
    nor that the juror gave the defence short shrift as alleged by the appellant.
    First, it must be recalled that the appellant admitted to sexually assaulting,
    forcibly confining, and causing the death of Ms. Lavalley.  Secondly, there is
    no direct evidence of Mr. Sherriffs post-sentence public statement and in any
    event by that time, the jury had been discharged so it could not have affected
    its deliberations.  Lastly, none of the statements made by the juror vitiated
    the verdict.  There was no compromise of the integrity of the trial.

CONCLUSION

[76]

In
    my view, the conduct of Crown counsel examined in the context of the entire
    trial cannot be said to have resulted in the deprivation of a fair trial.
    While the behaviour of the Crown could not be characterized as model in nature,
    I am not persuaded that the appellant had an unfair trial.

[77]

Accordingly,
    I would dismiss the appeal and the motion to admit fresh evidence.

Released:

JUL 21 2014                                    S.E.
    Pepall J.A.

EEG                                                I
    agree E.E. Gillese J.A.

I
    agree Paul Rouleau J.A.

[1]
This trial testimony was somewhat inconsistent with previous statements they
    had made to the police.


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. J.S., 2014 ONCA 541

DATE: 20140710

DOCKET: C55226

Rosenberg, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Mark Halfyard, for the appellant

Gillian Roberts, for the respondent

Heard: May 27, 2014

On appeal from the conviction entered on October 31, 2011
    and the sentence imposed on February 23, 2012 by Justice Healey of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Healey J. for various sexual
    offences. The complainant, the appellants stepdaughter, was approximately six
    years of age at the time of the offences and was eight years of age at the
    trial. The appellant and the complainants mother A.C. each had two children at
    the time they became involved in a relationship. The appellant has two
    children, the oldest D.S. being approximately 8 years of age at the time of the
    offences. These two children ordinarily lived with their mother but would visit
    the appellant and A.C. every two weeks. The disclosure leading to the charges
    began when the complainant told others that her stepbrother D.S. was sexually
    assaulting her. The complainant then gave a number of statements, implicating
    the appellant, that were the focus of the prosecution and form the main basis
    for the appeal.

[2]

The appellants main submission was that the trial judge erred in
    admitting the statements when, at trial, the complainant refused to testify
    about any acts by the appellant. While the trial judge admitted four statements,
    the core of the prosecution case was in a videotaped statement that the
    complainant gave to the police on May 20, 2009 and the complainants testimony
    at the preliminary inquiry in which she adopted that statement, which was
    admitted under s. 715.1 of the
Criminal Code
. The complainant was
    cross-examined at the preliminary inquiry. The trial judge also admitted a
    statement made by the complainant the day before the preliminary inquiry to the
    investigating officer. While the officer was concerned that the complainant
    would retract her complaints, as she had on an earlier day, the complainant
    ended up confirming much of the May 20 statement. The officer did not audio or
    video tape that statement and the substance of the statement was as later
    recorded by the officer in her notes. In her reasons, the trial judge dealt
    with the issues again raised before this court.

[3]

We are satisfied that the trial judge properly applied the law as laid
    down, in particular in
R. v. Hawkins,
[1996] 3 S.C.R. 1043 and
R.
    v. Khelawon
, [2006] 2 S.C.R. 787. The most compelling feature in this case
    was that the complainant testified at the preliminary inquiry and that her
    testimony was properly admitted by the trial judge in accordance with
Hawkins
.
    The videotaped statement of May 20 became part of the complainants testimony
    at the preliminary inquiry and was properly admitted.

[4]

We also see no error in the trial judges decision to admit the
    statement made to the police officer. The police officer explained why she did
    not audio or video tape the statement. The trial judge unequivocally accepted
    the officers explanation and her notes of the conversation. The officers
    evidence explained the failure to tape record the statement and provided a
    reliable version of the statement. Moreover, it was important that the
    statement be admitted to properly understand the basis for the testimony at the
    preliminary inquiry.

[5]

The appellant submits that the trial judge erred in relying upon a
    portion of the complainants statement as corroborative of the reliability of
    the statement. The portion referred to is where the complainant described, in
    her own words, ejaculation by the appellant. The appellant concedes that this
    statement shows that the complainant was subjected to a sexual attack. He
    argues, however, that this part of the statement did not confirm the
    reliability of the statement to the extent that it identified the appellant.
    The appellant submits that it was possible that the alleged assault by the eight-year
    old step-brother could have been the source of this information. This is a
    highly unlikely proposition. But, in any event, as we have said, the
    admissibility of this statement turned on the preliminary inquiry transcript
    and there was therefore no need for other corroborative evidence to render the
    statement admissible.

[6]

The appellant submits that the trial judge failed to adequately consider
    that because the complainant essentially refused to testify at the trial,
    defence counsel was unable to cross-examine the complainant in accordance with
    an earlier ruling permitting cross-examination related to the alleged sexual
    assault by the complainants 8 year old step-brother. The theory of the defence
    was that the step-brother and not the appellant had sexually assaulted the
    complainant.  The appellant did not attempt to cross-examine the complainant on
    this issue at the preliminary inquiry and did not lead other evidence at trial from
    the complainants mother and grandmother that could have supported this theory.
    The appellant submits that the trial judge should have exercised her discretion
    to exclude the hearsay evidence on the basis that the prejudicial effect
    outweighed the probative value.

[7]

The leading Canadian case on the evidentiary status of evidence from an
    unresponsive witness is
R. v. Hart
(1999), 135 C.C.C. (3d) 377 (N.S.
    C.A.), which has been applied by this court in
R. v. Cameron
(2006),
    208 C.C.C. (3d) 481 (Ont. C.A.) and
R. v. Duong,
2007 ONCA 68. In
R.
    v. Hart
, Cromwell J.A. identified several factors for the trial judge to
    take into account:

(1)     the reason for the unresponsiveness;

(2)     the impact of the unresponsiveness; and

(3)     the possibilities of ameliorative action.

[8]

Those factors do not favour excluding the hearsay statements. The trial
    judge identified the reason for the complainants lack of response. The
    proceedings had lasted several years and the evidence shows that the
    complainant had been influenced by several people, especially her mother who
    was anxious to again live with the appellant. Her decision to no longer
    actively participate was a function of the proceedings. The impact of the
    unresponsiveness was limited. The complainant testified at the preliminary
    inquiry that she was sexually assaulted by the appellant and her step-brother. The
    nature of the assaults, as described by the complainant, were described in
    different ways. Finally, there were actions that could have been taken. Most
    importantly, the appellant could have led evidence from the mother and
    grandmother in an attempt to show that the step-brother had improper access to
    the complainant. That evidence was never led, even though the mother testified
    at the trial for the defence in respect of other matters. There is no basis for
    setting aside the convictions on this basis.

[9]

The appellant submits that the trial judge erred in relying upon
    Detective Lamannas opinion about the complainants demeanour. Much of the
    objected to evidence was properly admitted to explain the complainants
    demeanour to assist in understanding the reliability of the complainants
    evidence. We have not been persuaded that the trial judge gave improper weight
    to this evidence or in any way delegated her decision about reliability to the
    Detective.

[10]

The
    appellant submits that the trial judge erred in discounting the similarities
    between the allegations respecting the step-brother and the allegations made
    against the appellant. There is no merit to this submission. The trial judge
    was aware of the allegations and she gave complete reasons for explaining why
    she accepted the evidence that identified the appellant as the perpetrator.

[11]

Finally,
    the appellant submits that the trial judge implicitly reversed the burden of
    proof by the way that she dealt with the appellants opportunity to commit the
    offences. The reasons do not support this submission. In her review of the
    evidence, the trial judge pointed out that the evidence from the complainants
    mother did not show that the appellant did not have an opportunity to commit
    the offence. This was an entirely fair summary of the evidence and did not
    reverse the burden of proof.

[12]

Accordingly,
    the appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Kachkar, 2014 ONCA 560

DATE: 20140721

DOCKET: M43083

Watt J.A. (In Chambers)

IN THE MATTER OF an application pursuant to s. 20(1) of
    the
Mutual Legal Assistance in Criminal Matters Act
, S.C. 1988, c.37,
    as amended, for an Order to Send Evidence gathered in Canada for use by
    authorities in the United States of America in their investigation of Jack
    Kachkar, Steven Handley, Colin Hunter, Rima Goldschmidt, et al, as operators of
    Inyx Inc.

BETWEEN

Her Majesty the Queen

Respondent

and

Jack Kachkar

Applicant

Jack Kachkar, appearing in person

Susan Ficek, for the respondent

Heard: February 19, 2014

Motion for leave to appeal from the order of Justice M.A.
    Code of the Superior Court of Justice, dated October 23, 2013.

Watt J.A.:

[1]

Jack Kachkar (the applicant) seeks leave to appeal from a sending order
    made by a judge of the Superior Court of Justice under s. 20(1) of the
Mutual
    Legal Assistance in Criminal Matters Act
, R.S.C. 1985, c. 30, as amended (the
MLAT
or the Act).

[2]

The applicants principal complaint is with the scope of the sending
    order. He says that the judge who made the order misinterpreted his earlier
    amended gathering order and applied, incorrectly, the decision in this court in
Russian Federation v. Pokidyshev
(1999), 138 C.C.C. (3d) 321 (Ont.
    C.A.) (
Pokidyshev
). The result, according to the applicant, is that
    the sending order included records of corporate entities that had not been
    included within the four corners of the amended gathering order and should be
    set aside.

[3]

These reasons explain why I would dismiss this application and refuse
    leave to appeal.

THE BACKGROUND FACTS

[4]

The grounds upon which the applicant seeks leave to appeal render a
    forced march through the circumstances that underpin the relevant
MLAT
orders unnecessary. An overview is sufficient.

The Principals

[5]

Inyx Inc. is an American corporation with several subsidiaries including
    Inyx Canada, Inyx USA and Inyx Pharma. Jack Kachkar, a medical doctor, is the
    Chairman of the Board and Chief Executive Officer of Inyx Inc. and a director
    of Inyx Canada and Inyx USA. Rima Goldschmidt is the secretary of Inyx Inc. and
    a director of Inyx USA.

[6]

Westernbank Puerto Rico was a financial institution and commercial
    lender.

The Loan Agreement

[7]

In early 2005, Inyx Inc. and Inyx USA entered into a loan and security
    agreement with Westernbank. The agreement was signed by both the applicant and
    Goldschmidt in their corporate capacities.

[8]

Westernbank agreed to loan Inyx Inc., Inyx Pharma and Inyx USA up to 46,000,000
    USD in a revolving loan of 10,000,000 USD and four separate term loans of 9,000,000
    USD each.

[9]

About two months later, Inyx Pharma became a co-borrower under the
    agreement. The borrower and Inyx Canada executed an amendment to the agreement
    that guaranteed payment of the loan obligations and provided security
    agreements.

[10]

To
    obtain funds from revolving lines of credit under the agreement, Inyx Inc. was
    required to submit:

·

information about its eligible accounts receivable from its sales
    of pharmaceutical products; and

·

copies and invoices for accounts receivable for each of its
    subsidiaries.

When Inyx Inc. had satisfied these obligations under
    the agreement, it was permitted to withdraw funds up to a percentage of
    eligible accounts receivable.

The Alleged Schemes

[11]

United
    States authorities allege that over a period of about two years, those involved
    in the operation of Inyx engaged in a series of fraudulent schemes to obtain
    funds for Inyx under the agreement. The schemes included:

i.

submitting inaccurate, altered and false invoices and accounts
    receivable assignment sheets that had the effect of inflating the amount of
    Inyxs receivables;

ii.

directing customers to pay Inyx directly rather than depositing them in
    locked box accounts that were the property of the Bank, as required by the
    agreement; and

iii.

offsetting Inyxs debts against receivables due from those to whom Inyx
    owed money.

The Default

[12]

Inyx
    defaulted on its obligations under the agreement. The amount owing is alleged
    to be 142,000,000 USD.

[13]

Westernbank
    went into receivership. United States authorities began an investigation into
    its activities for alleged violations of U.S. banking law and regulations. The
    Federal Deposit Insurance Corporation became the receiver of Westernbank.

The United States Litigation

[14]

A
    class action lawsuit was launched involving the Federal Deposit Insurance
    Corporation, as receiver for Westernbank, Inyx Inc., the applicant and his
    wife, Viktoria Benkovitch.

[15]

In
    late September 2013, a partial settlement was reached in the lawsuit. Under the
    settlement agreement, judgment was entered in favour of the Federal Deposit
    Insurance Corporation as receiver for Westernbank:

i.

in the amount of 120,000,000 USD against Inyx Inc.; and

ii.

in the amount of 100,000,000 USD against the applicant and his wife
    personally.

The Canadian Litigation

[16]

Westernbank
    sued Inyx Canada in the Superior Court of Justice. In July, 2007, a judge
    appointed a receiver for Inyx Canada and authorized the receiver to remove
    documents and records from the offices occupied by Inyx Canada. The receiver
    removed about 400 boxes of material along with imaged copies of computer hard
    drives and other loose electronic media. Later, copies were made of the paper
    documents and of the loose electronic media and the copies returned to Inyx
    Canada.

The
MLAT
Request

[17]

Early
    in 2010, the United States Central Authority sought Canadian assistance in
    gathering records for use in an investigation of Inyx Inc. for a suspected
    fraud against Westernbank. The records were believed to be among the 400 boxes
    of documents seized by the receiver. The United States sought:

All business records and internal and external correspondence,
    including e-mail messages and attachments, telephone and facsimile records,
    relating to the manufacture, sale and marketing, shipping, invoicing and
    payment collection, of pharmaceutical products manufactured, marketed and sold
    by Inyx Canada, Inyx USA, Inyx Inc., Inyx Pharma, Inyx UK, Ashton
    Pharmaceuticals and their subsidiaries (hereafter Inyx Companies). These records
    include purchase / sales agreements, purchase orders, shipping orders, and
    customer accounts, including customer repayment agreements, invoices,
    remittances / credits for payment, and outstanding balances as reflected in the
    General Ledger and sub-ledgers, including the Accounts Receivables Reports, of
    the above companies. Records regarding the transmission of sales, delivery,
    invoicing and collection information between Inyx Canada and the other named
    companies and subsidiaries are also sought. Additionally, we seek records
    relating to debts owed by Inyx Companies to customers / clients and all credit
    agreements, invoicing / remittance records, repayments, loan modification
    agreements, and any agreements to off-set these debts with corresponding receivables
    between the parties. These records include account statements, transactions and
    supporting documentation, and correspondence for all accounts at banks and
    financial institutions, foreign and domestic, involving the business operations
    of Inyx Companies.

2. Additional records sought are those relating to loans,
    security agreements, funds received from and remitted to Westernbank Puerto
    Rico, to include financial statements, collateral pledged, loan modification
    agreements, extensions of additional credit, repayment histories, transactions
    and account balances of these obligations as reflected in the General Ledger
    and sub-ledgers of the above companies. These records include any
    investigations, reports and supporting documentation commissioned by Westernbank
    Puerto Rico that may be contained within the records of Inyx Companies.

[18]

In
    their request, the United States also sought permission for their investigators
    to be present during the gathering process to assist Canadian authorities to
    identify which materials were relevant for the purposes of the United States
    investigation.

The Gathering Orders

[19]

About
    two years after the receiver removed and copied the records from the office of
    Inyx Canada, the provincial Crown obtained a Gathering Order that required the
    receiver to deliver copies of the seized records to an officer of the Toronto
    Police Service. As a result of a motion by the receiver, the documents were
    transferred, first to the possession of the RCMP, and finally to the Sherriff
    at Brampton.

[20]

About
    four months after the original Gathering Order had been made, the Crown
    obtained an Amended Gathering Order. In its material parts, the amended order
    authorized Detective Constable Lum of the Toronto Police Service to gather:

copies of the business records relating to Inyx Canada between
    1 January 2005 and 31 December 2007, including:

 Purchase / sales agreements; purchase orders; shipping
    orders;

 Customer accounts, including customer repayment agreements,
    invoices, remittances / credits for payment;

 Outstanding balances as reflected in the general ledger and
    sub-ledgers, including the accounts receivables reports of Inyx and its
    subsidiaries;

 Records relating (to) the transmission of sales, delivery,
    invoicing and collection information between Inyx Canada and the other Inyx
    companies;

 Records relating to debts owed by Inyx companies to customers
    / clients and all credit agreements, invoicing / remittance records,
    repayments, loan modification agreements, and any agreements to off-set these
    debts with corresponding receivables between the parties;

These records also include account statements, transactions
    and supporting documentation, and correspondence for accounts at banks and
    financial institutions, foreign and domestic, involving the business operations
    of Inyx companies.

The amended order did not include any records in
    respect of which a claim of privilege was asserted.

Execution of the Gathering Orders

[21]

In
    early May 2013, with the assistance of seven U.S. agents, D.C. Lum reviewed the
    contents of the boxes of materials originally obtained by the receiver. The
    applicant was present so that he could identify any items in respect of which
    he wished to advance a claim of privilege.

[22]

When
    the gathering process had been completed, D.C. Lum had collected 109 boxes of
    documents, including 25 boxes in respect of which the applicant asserted claims
    of privilege. D.C. Lum took possession of all 109 boxes, ensuring that those in
    respect of which the applicant claimed privilege were kept separate and apart
    from the others.

[23]

After
    the Amended Gathering Order had been executed, the applicant retained counsel.
    At counsels request, a second review of the privileged materials was
    conducted. The materials were then divided into three categories:

i.

materials in respect of which privilege was asserted (the privileged
    materials);

ii.

materials admittedly within the scope of the Amended Gathering Order
    (the responsive materials); and

iii.

materials challenged by the applicant on grounds other than privilege
    (the non-responsive materials).

The Sending Hearing and Order

[24]

About
    two months after the second review had been completed, the judge who made the
    gathering orders conducted a sending hearing under s. 20(1) of the
MLAT
.
    The applicant was represented by counsel who agreed that the responsive
    materials should be included in the sending order. Counsel confined his
    opposition to the sending of non-responsive materials that he submitted should
    be excluded because they fell outside the scope of the gathering order. The documents
    to which counsel objected were:

i.

the applicants personal financial records; and

ii.

the records of La Boutique Floriane du Québec, Karver International, DBA
    Global Consulting, Karian Holdings and Devlin Air.

[25]

The
    Sending Order included both the responsive and non-responsive documents.

THE MOTION FOR LEAVE TO APPEAL

[26]

The
    applicant seeks leave to appeal on three discrete but related grounds. I would
    paraphrase the proposed grounds of appeal as submissions that the judge at the
    sending hearing erred in:

i.

including in the Sending Order records that fell outside the terms of
    the gathering order;

ii.

interpreting the Gathering Order; and

iii.

applying the decision of this court in
Pokidyshev
to the
    circumstances of this case.

The Governing Principles

[27]

The
    principles that control the fate of this application lack a common origin. Some
    distinguish between questions of fact, questions of law, and questions of mixed
    law and fact. Others describe the test for leave to appeal under s. 35 of the
MLAT
.
    And yet others explain the operation of relevant provisions of the
MLAT
and the judges role in connection with it.

A Question of Law

[28]

Section
    35 of the
MLAT
permits an appeal to the court of appeal from any order
    or decision a judge or court in Canada makes under the
MLAT
. But no appeal
    lies as of right. Leave to appeal is required. And the appeal is limited to
    questions of law alone. Further, the application for leave to appeal must be
    made to a judge of the court of appeal within 15 days after the order or
    decision that is challenged.

[29]

The
    distinction between questions of law, on the one hand, and questions of mixed
    fact and law, on the other, is often difficult. Sometimes, what appears at
    first blush to be a question of mixed fact and law turns out to be a question
    of law. The opposite is also true:
Canada (Director of Investigation and
    Research) v. Southam Inc.
, [1997] 1 S.C.R. 748, at pp. 766-767.

[30]

Questions
    of law are about what the correct legal test is, while questions of fact are
    questions about what actually took place between the parties. Questions of
    mixed fact and law are questions about whether the facts satisfy the legal
    tests:
Southam Inc.
, at pp. 766-767. A question that is about the
    application of legal standard is also a question of law:
R. v. Araujo
,
    [2000] 2 S.C.R. 992, at para. 18.

The Test for Leave to Appeal

[31]

Section
    35 of the
MLAT
does not define the standard to be applied to determine
    whether leave to appeal should be granted. Nor does the section provide a list
    of factors, either illustrative or exhaustive, to be considered in resolving
    the issue of whether leave to appeal should be granted.

[32]

The
    jurisprudence has filled the statutory void by listing several factors a judge
    or court should consider in deciding whether leave should be given if satisfied
    that a question of law alone has been raised. The factors, in question form,
    are these:

i.

Is the question raised not settled by authority?

ii.

Is the question raised of importance generally and, if not of importance
    generally, is it nonetheless of great importance to a person with serious
    interests, such as his liberty, at stake?

iii.

Does the proposition of law put forward have any merit or, to put it
    another way, does it appear to the judge not to be frivolous?

iv.

Are there other discretionary considerations, such as prejudice to
    either the applicant or the requesting state, which require to be taken into
    account?

See,
United States of America v. Ross
(1994),
    44 B.C.A.C. 228 (Chrs), at para. 33; and
Ontario (Attorney General) v.
    Vonk Dairy Products B.V. et al
(1998), W.C.B. (2d) 221 (Ont. CA-Chrs), at
    para. 9.

The Ministerial and Judicial Roles
    under the
MLAT

[33]

Both
    the Minister of Justice and judges of provincial and territorial superior
    courts have duties assigned to them under the
MLAT
.

[34]

The
    Minister of Justice is the guardian of Canadian sovereignty interests. He
    controls the front and back end of the process. No request proceeds without the
    Ministers approval. No sending order is implemented without the Ministers
    approval. As in extradition cases, the central role of the Minister of Justice
    reflects the essential political nature of decisions involving international
    relations:
Pokidyshev
, at para. 18.

[35]

The
    judicial role under Part I of the
MLAT
differs from that of the
    Minister. The judge is tasked with the responsibility of ensuring compliance
    with the statutory conditions precedent to the making of the order requested by
    the competent authority. And the judge must also fashion an order that balances
    the legitimate state and individual interests at stake:
Pokidyshev
, at
    para. 20. In large measure, the terms of the order will depend on the nature of
    the order that is to be made and the individual interests affected by the
    order:
Pokidyshev
, at para. 20.

Sending Orders

[36]

Under
    s. 20(1) of the
MLAT
, the judge who made the gathering order under s.
    18(1), and who has received  the report required by s. 19(1) of the Act, has
    the authority to order, among other things, that:

i.

a report under s. 19(1); and

ii.

any record or thing produced under the gathering order

be sent to the state or entity that has sought legal
    assistance under the Act.

[37]

The
    sending authority for which s. 20(1) provides is discretionary, not mandatory.
    But the section is mute about the standard the judge is to apply, or the
    factors the judge must or may consider, in deciding whether to make a sending
    order. In a similar way, s. 20(2) permits, but does not require the judge who
    makes the sending order to impose any terms or conditions that the judge
    considers desirable. Neither s. 20(1) nor s. 20(2) require that the judge
    presiding at the sending hearing be satisfied that:

i.

the material was gathered in accordance with the gathering order; or

ii.

the material gathered will afford evidence of the commission of an
    offence in the foreign jurisdiction.

The sending hearing is not an appeal from or a review
    of the antecedent gathering order:
Pokidyshev
, at para. 38.

[38]

The
    breadth of the discretion conferred by ss. 20(1) and 20(2) accommodates
    consideration of specific issues raised in the peculiar circumstances of
    individual applications for sending orders. Relevant factors that might inform
    the judges discretion under either subsection might include the nature of the
    material the applicant seeks to have sent, the nexus or connection between the
    material and the investigation in the foreign state, and the accuracy and
    completeness of information provided on the application for the gathering
    order:
Pokidyshev
, at para. 39.

[39]

The
    discretion of the judge conducting a sending hearing under s. 20 is not without
    limit. Recall the nature of the judicial role in the process for which the Act
    provides. Beyond the sweep of the discretion reposed in the judge at the
    sending hearing are factors like:

i.

the advisability of assisting the foreign jurisdiction;

ii.

the likelihood of compliance by the foreign jurisdiction with the order
    or any terms or conditions imposed in the order;

iii.

the ultimate evidentiary value of the requested material to the foreign
    jurisdiction; or

iv.

the conduct of the proceedings in the foreign jurisdiction.

See,
Pokidyshev
, at para. 40.

[40]

Judges
    who preside on applications for a sending order are entitled to approach the
    question of relevance on an expansive basis. In this context, the term
    relevance means helpful to the authorities in discovering, understanding and
    proving the complex series of events that underpin the allegations that are the
    subject-matter of the foreign investigation:
Pokidyshev
, at para. 60.

The Principles Applied

[41]

The
    applicant seeks leave to appeal on three grounds that he says involve questions
    of law alone of sufficient importance to warrant leave to appeal. I disagree.
    The reasons for my disagreement follow.

[42]

First,
    leaving aside the third proposed ground of appeal, the interpretation of the
    decision of this court in
Pokidyshev
, it is arguable that at least the
    first, and perhaps the second, proposed ground of appeal involve a question of
    mixed fact and law, rather than a question of law alone. Whether certain
    records collected under the Gathering Order fall within business records
relating
    to
Inyx Canada seems more a question about whether the records satisfy
    the standard set in the order than about the standard itself.

[43]

Second,
    the first two proposed grounds of appeal are unique to the circumstances of
    this case. Although their unique nature means that neither is settled by
    authority, it also follows that neither raises any issue of overarching
    importance beyond the idiosyncratic circumstances of this case. Doubtless, the
    questions raised are of importance to the applicant. But that is not enough. No
    proceedings are extant in the requesting jurisdiction thus the applicants
    liberty interest is not implicated.

[44]

Third,
    the merits of the proposed grounds of appeal are not strong.

[45]

In
    support of the application for a Sending Order, the Attorney General for Ontario
    filed three volumes of materials that revealed a significant degree of
    interconnectedness between the affairs of Inyx Canada, for all practical
    purposes a shell company, its parent, Inyx Inc, Karver International, La
    Boutique Floriane du Québec, Karian Holdings, DBA Global Consulting, Devlin Air
    and the applicants personal finances. The applicant filed no responding
    evidentiary materials. It approaches the self-evident to say that these
    documents were business records relating to Inyx Canada.

[46]

It
    is worth reminder that the evidence here was obtained under a gathering order,
    not seized in accordance with a search warrant. In
Pokidyshev
, at
    para. 38, this court decided that on a sending hearing, the judge need not
    satisfy him or herself:

i.

that the material was gathered in accordance with a gathering order; or

ii.

that the material will afford evidence of the commission of an offence
    in the requesting state.

The argument that the applicant proposes to advance
    here is simply a repackaging of an argument that is irrelevant for the judge at
    the sending hearing.

[47]

Finally,
    the time is ripe to move this case forward, to give effect to our international
    obligations, and to put paid to some of the delaying tactics of the applicant.

CONCLUSION

[48]

For
    these reasons, the motion for leave to appeal is dismissed and leave to appeal
    is refused.

Released: July 21, 2014 (DW)

David
    Watt 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. L.V.B., 2014 ONCA 522

DATE: 20140704

DOCKET: C55589

Feldman, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L. V. B.

Appellant

Heather Pringle, for the appellant

Sean Doyle, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on November 22,
    2011 by Justice Richard C. Gates of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

After a trial before a judge sitting without a jury, the appellant was
    found guilty on counts of invitation to sexual touching and sexual assault.
    Both counts related to a single incident. The sexual assault finding was stayed
    on the basis of
Kienapple v. R.
,
    [1975] 1 S.C.R. 729.

[2]

The appellant raises several grounds of appeal alleging a variety of
    errors in the reasoning process the trial judge followed in reaching his
    conclusion that the Crown had proven its case beyond a reasonable doubt.  In
    the view we take of this case, it is necessary to consider only one ground of
    appeal advanced by Ms. Pringle in her submissions.

[3]

Ms. Pringle contends that the trial judge misapprehended parts of the
    appellants evidence about the day on which the complainant said the alleged conduct
    occurred. This error about the substance of the material parts of the evidence,
    Ms. Pringle says, played an essential part in the trial judges reasoning
    process that resulted in the findings of guilt. It follows, she submits, that
    the conviction is not based exclusively on the evidence adduced at trial and
    should be set aside.

[4]

For all practical purposes this was a two witness case.

[5]

The complainant testified that while she and the appellant were alone in
    their home, the appellant called her upstairs to the bedroom, put her hand on
    his penis and rubbed it in a circular motion for several minutes.

[6]

The appellant testified in his own defence. He denied the allegations
    entirely.

[7]

In his reasons for judgment, the trial judge made several references to
    admissions or acknowledgements in the appellants evidence, which, the
    judge said, reinforced the complainants testimony about the offence charged. For
    example, the trial judge found:

On the day of the offence the accused acknowledged that he and [the
    complainant] were alone in the house watching television while [her brother]
    was outside and her mother and [her sister] were shopping. After he went upstairs
    to his bedroom he called her to tickle his back. This acknowledgement by him
    reinforced her credibility.

On the day in question he testified that he and [the
    complainant] had been alone in the house watching television. After he had gone
    upstairs for a nap he called downstairs for [the complainant] to come and give
    him a massage. He lay on his side of the bed while she was on the other side
    where his wife slept.

...he did in effect admit that he was lying on the bed under a
    blanket, naked, and that on many occasions he has received backrubs hes been
    similarly naked. There was no explanation given by him as to why, if he was
    anticipating a request to receive a backrub he could not have put on his pants
    or at least his underwear. He later stated that he had no recollection of the
    incident.

(he) admitted there were times when he was naked, including on
    the day in question, while lying on the bed, although covered with a blanket.

[8]

For the respondent, Mr. Doyle concedes that the trial judge misapprehended
    parts of the appellants evidence in relation to the events on the date of the
    alleged offence. The result, Mr. Doyle acknowledges, was that the trial judge
    misunderstood that the appellant had not acknowledged:

i.

that he was alone with the complainant on the date of the alleged
    offence;

ii.

that he asked the complainant to give him a massage; and

iii.

that he was naked under a blanket at that time.

[9]

Mr. Doyle also concedes that these misapprehensions of the evidence
    factored into the trial judges credibility assessment. The trial judge
    considered that these admissions and acknowledgments reinforced the
    credibility of the complainant and the reliability of her evidence.

[10]

The
    trial judge offered several reasons for rejecting the appellants evidence and
    finding that it did not raise a reasonable doubt about the appellants guilt. That
    said, it was then incumbent on the trial judge to determine, on the evidence he
    did accept, whether he was satisfied beyond a reasonable doubt of the
    appellants guilt.

[11]

In
    reaching his conclusion, the trial judge used what he erroneously characterised
    as the appellants admissions and acknowledgments as a make-weight to
    buttress the testimony of the complainant and to satisfy the burden and meet
    the standard of proof. He was wrong to have done so. And that error vitiates
    his findings of guilt.

[12]

In
    light of our conclusion on this ground of appeal, we do not consider it
    necessary or advisable to consider the other grounds of appeal advanced by Ms.
    Pringle.

[13]

For
    these reasons, the appeal is allowed, the conviction and stay set aside, and a
    new trial ordered.

K.
    Feldman J.A.

David
    Watt J.A.

C.W.
    Hourigan J.A.