COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. Scott, 2021 ONCA 625

DATE: 20210917

DOCKET: C68108

Tulloch, Roberts and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gary Scott

Respondent

Frank Au and Scott Patterson, for the appellant

Nader R. Hasan, Dragana Rakic and Karen
    Bernofsky, for the respondent

Heard: May 11, 2021 by video conference

On appeal from the acquittal entered on January
    30, 2020, by Justice Kelly P. Byrne of the Superior Court of Justice, sitting
    without a jury.

Trotter J.A.:

A.

Introduction

[1]

Henryk Dabrowski was murdered in his apartment
    on October 28, 2017. He was stabbed 23 times, and his face, hair, and hands
    were covered with a brown substance that appeared to be chocolate sauce. Months
    later, the respondent was charged with second degree murder. After a judge
    alone trial, the respondent was found not guilty. The Crown appeals his
    acquittal.

[2]

The trial judge provided thorough reasons for
    judgment in which she carefully evaluated all of the evidence. The Crown
    isolates three aspects of the trial judges reasons and contends they reflect errors
    of law that were instrumental in her decision to acquit the respondent.

[3]

I would dismiss the appeal. The trial judge made no legal errors in her analysis. The Crown disputes the weight the trial judge assigned to certain pieces of evidence and attacks the reasonableness of the acquittal, both of which are beyond the scope of proper appellate review on a Crown  appeal.

B.

factual background

(1)

Introduction

[4]

The bulk of the trial judges findings are uncontested.
    Consequently, the following general overview relies heavily on her reasons. I
    will review the contested portions of the evidence in greater detail when
    addressing the grounds of appeal.

[5]

The trial was brief, lasting only a week. The
    respondent made many admissions. The Crowns case was entirely circumstantial.
    The only issue was identity.

[6]

The precise time of Mr. Dabrowskis death was never
    established. After he was killed, however, witnesses observed the respondent moving
    around the building, going between floors, and changing his appearance. His
    comings and goings were captured by security video cameras, which turned out to
    be a significant feature of this case. At one point, the respondent was seen
    leaving the building with his hand wrapped in a white towel, returning just a
    few minutes later. A contentious issue at trial was whether anything was
    concealed under the towel. The Crown contended the respondent disposed of the
    murder weapon, a knife. The trial judge disagreed and found that there was
    nothing concealed in the towel.

[7]

The Crown relied on forensic evidence concerning
    an apparent trail of what appeared to be chocolate sauce, leading from the
    deceaseds apartment to the respondents. The trial judge rejected the
    proposition that the deposits or stains that the Crown pointed to were
    sufficient to establish a trail.
This conclusion is linked to the Crowns complaint, discussed below, that
    the trial judge improperly rejected an admission made by the respondent
    concerning the apparent presence of a sticky substance on a stairwell door
    handle close to Mr. Dabrowskis apartment.

[8]

It was admitted at trial that the respondent had
    been in Mr. Dabrowskis apartment on the day that he was killed. The police
    seized shoes from the respondents apartment. The shoes could not be excluded
    as having made the impressions in Mr. Dabrowskis apartment. The footwear
    impressions expert, Detective Johnston, however, could not say when the
    impressions were made. The police also seized a jacket, seen in some of the
    video clips, that contained a small stain of Mr. Dabrowskis blood. The trial
    judge found that the respondent was inside Mr. Dabrowskis apartment after he
    had been killed.

[9]

The respondent called no evidence in his
    defence.

[10]

Twice in its factum, the Crown makes mention
    that this trial was meant to be a bifurcated procedure. That is, it was expected
    that the respondent would be found to have killed Mr. Dabrowski and the
    proceedings would then shift to address a potential defence of not criminally
    responsible on account of mental disorder (NCRMD):
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 16.

[11]

The Crown leaves the impression that the trial
    of the question of the respondents guilt in killing Mr. Dabrowski was a mere
    formality along the road to a NCRMD hearing. The respondent rejects this
    proposition and contends that the Crowns case was seriously challenged through
    cross-examination, especially that of William Cameron, whose evidence the trial
    judge largely rejected.

[12]

Whatever may have transpired behind the scenes
    before trial, it is not in issue on this appeal, nor does it form a backdrop for
    our consideration. At trial, the respondent enjoyed the full protection of the
    presumption of innocence. The trial judge was tasked with determining whether
    the evidence proved beyond a reasonable doubt that the respondent killed Mr.
    Dabrowski. She did just that, making the following thoughtful observations, at
    para. 102:

In a case like this where an individual has
    been brutally murdered, I am mindful that the desire to want to identify the
    offender is strong. Human nature wants to blame and hold someone accountable.
    As I navigate my way through the evidence, I remind myself that suspicion and
    probable guilt are not a basis for conviction. Our law requires certainty and
    nothing less than proof beyond a reasonable doubt will suffice. When I consider
    the evidence against Mr. Scott, I am unable to say with a level of certainty
    that he stabbed Mr. Dabrowski. I find myself left in a state of reasonable
    doubt. Our law requires that Mr. Scott be given the benefit of that doubt.

[13]

As discussed below, the trial judge was entitled
    the make the findings that she did based on the evidence and lack of evidence
    before her.

(2)

Mr. Dabrowski and The Apartment Building

[14]

Mr. Dabrowski and the respondent lived in the
    same building at 5 Wakunda Place. Mr. Dabrowski lived in apartment 213; the
    respondent lived in apartment 502. 5 Wakunda Place is connected to an adjacent
    building, 7 Wakunda Place, via an enclosed walkway that extends from a lobby on
    the second floor. As discussed below, a good deal of evidence focused on the
    respondents movements that night within 5 Wakunda and back and forth between 5
    and 7 Wakunda.

[15]

The apartment buildings, and one other, are part
    of a Toronto Community Housing Complex. The trial judge observed that many
    residents deal with addictions and have other challenges. It was common for the
    police, the fire department, and ambulances to be at the complex on a daily
    basis.

[16]

Mr. Dabrowski sold beer out of his apartment for
    double the price he paid for it. He accepted cash or, if someone was low on cash
    near the end of the month, he took collateral, such as personal items. As
    discussed below, the respondent may have left electronics at Mr. Dabrowskis
    apartment.

[17]

Mr. Dabrowski was last seen alive at 5:32 p.m.
    on the night he was murdered. Mr. Dabrowskis neighbours found his body at approximately
    8:50 p.m. At least five people entered Mr. Dabrowskis apartment after he was
    found dead, one of whom helped himself to a beer.

[18]

When the police arrived, Mr. Dabrowski was lying
    in a pool of blood. He had been stabbed 23 times in his torso, and he suffered
    other defensive wounds. Mr. Dabrowskis hair, face, and hands were covered in a
    brown substance that appeared to be chocolate sauce. The apartment otherwise seemed
    to be in order: a significant amount of money, electronics, and other valuables
    were left undisturbed. The police did not find the murder weapon.

(3)

The Respondents Movements That Night

[19]

The respondent was on the move around the
    Wakunda buildings around the time Mr. Dabrowski was killed. Of importance to
    the appeal is the evidence of William Cameron, who claimed to see the
    respondent three times that night, and the evidence of Arthur Ramsay, who spoke
    with the respondent while in an elevator. Their evidence is better understood
    against the backdrop of the security video footage, which establishes the
    following timeline on the evening of the murder:
[1]

6:22:16 p.m.

The
          respondent stands outside the elevator on the fifth floor. He is wearing a
          blue shirt and green Adidas shoes but does not get on the elevator.

6:37:20 p.m.

As Mr.
          Cameron enters 5 Wakunda Place via the second-floor walkway, a man runs past
          him, moving north away from the direction of Mr. Dabrowskis apartment and
          toward the north stairwell.

6:40:03 p.m.

The
          respondent enters the elevator on the fifth floor. His appearance has
          changed. He is wearing a green jacket with the hood up, a blue shirt, black
          pants, a black mask, and green Adidas shoes. He is carrying a black gym bag,
          and there is a white cloth on his right hand.

6:40:30 p.m.

The
          respondent exits the elevator on the first floor and walks across the lobby
          and into the north stairwell.

6:40:35 p.m.

The
          respondent enters the north stairwell on the first floor and heads up the
          stairs.

6:40:45 p.m.

Mr.
          Cameron enters the second-floor walkway from outside, and a man runs past
          him, heading south from the north stairwell, toward Mr. Dabrowskis
          apartment. The trial judge accepted that the respondent is the man in the
          footage.

6:43:15 p.m.

The
          respondent walks from the second-floor lobby to the walkway and drops an
          envelope addressed to Mr. Dabrowski.

6:43:18
          p.m. to 6:45:48 p.m.

The
          respondent walks along the second-floor walkway, leaves 5 Wakunda Place, and
          walks southbound on the sidewalk. He then returns to 5 Wakunda Place from the
          same direction in which he left.

6:46:25 p.m.

The
          respondent stands outside the main entrance to 5 Wakunda Place. He is talking
          to two people and hands them a CD out of his bag.

7:53:18 p.m.

The
          respondent boards the elevator on the fifth floor. Mr. Ramsay is in the
          elevator. The respondent has changed his clothes again and is wearing white
          shoes and a multi-coloured shirt. He is carrying a beer in his left hand and his
          right hand is wrapped in an unknown item.

(a)

William Cameron

[20]

William Cameron lived at 7 Wakunda Place. He was
    an important but contentious witness. He testified to seeing the respondent
    three times that night. The trial judge concluded Mr. Cameron only saw the
    respondent twice.

[21]

First, at 6:37 p.m. (approximately one hour
    after Mr. Dabrowski was last seen alive), Mr. Cameron said he saw the
    respondent running from the direction of Mr. Dabrowskis apartment on the second
    floor toward the north stairwell and up the stairs. He was wearing a varsity
    style jacket with mixed colours.
[2]

[22]

The trial judge viewed the corresponding video
    clip (6:37:20 p.m.) numerous times, noting that it was blurry and fleeting.
    She was unable to conclude that the male who was running away was the
    respondent. The trial judge rejected Mr. Camerons evidence that it was the
    respondent.

[23]

Second, at 6:40 p.m., Mr. Cameron passed the
    respondent on the first floor, as the respondent was getting off the elevator
    and Mr. Cameron was getting on. The respondent had changed his clothes and was
    now wearing a green jacket over a blue shirt. He had the hood of the jacket up
    over his head and wore a black mask. Mr. Cameron testified that the respondent
    was holding an object in his right hand, wrapped in a white cloth. I will
    address this evidence in more detail below.

[24]

A few seconds later, as Mr. Cameron got off the
    elevator on the second floor, he saw the respondent for the third time. The
    respondent was walking southbound down the second-floor hallway, away from the
    north stairwell and in the direction of Mr. Dabrowskis apartment. Upon
    reviewing the video surveillance, the trial judge concluded that it was the
    respondent in this sequence.

(b)

Arthur Ramsay

[25]

Mr. Ramsay lived on the 10
th
floor at
    5 Wakunda Place. He knew Mr. Dabrowski and the respondent. On October 28, 2017,
    he and his friend were on an elevator with the respondent at 7:53:18 p.m. The
    respondent told Mr. Ramsay that he was depressed, out of sorts, and needed
    someone to talk to. He asked Mr. Ramsay to go to Mr. Dabrowskis apartment to retrieve
    a piece of electronic equipment for him, telling Mr. Ramsay to go down and if
    the door is open get it for him. Mr. Ramsay declined to do so, but suggested
    he would tell Mr. Dabrowski to go see the respondent, to which the respondent
    replied, I can do it myself.

[26]

When the three men got off the elevator, they
    ran into a fourth resident who asked the respondent why his hand was wrapped. There
    was no response.

(4)

Items Seized from the Respondent

[27]

The police searched the respondents apartment
    on November 1, 2017, four days after the murder. The police seized a green
    jacket and a pair of green Adidas shoes. The shoes were found in the
    respondents bathtub. There was a small bloodstain inside the right sleeve of
    the jacket, and the respondent conceded it was Mr. Dabrowskis blood. There was
    no evidence, however, as to how much blood was inside the sleeve where the
    bloodstain was located. No blood was found on the exterior of the jacket.

[28]

The shoes tested positive for the presence of
    blood, but the sample was too small to be tested for DNA. The respondent did
    not dispute that his shoes left footwear impressions in the blood inside Mr.
    Dabrowskis apartment; however, there was no evidence as to when the
    impressions were made.

(5)

Substance Trail and Formal Admission

[29]

The Centre of Forensic Science (CFS) tested
    the brown substance that covered Mr. Dabrowskis hair, face, and hands. It was
    never formally identified as chocolate sauce, though the parties agreed the
    substance looked like chocolate sauce, and the CFS determined that it contained
    carbohydrates and starches.

[30]

The Crown introduced a series of photographs of dark
    stains, alleging they formed a trail running from Mr. Dabrowskis second floor apartment
    up to the respondents apartment on the fifth floor:

(1)

The first stain was in the hallway outside Mr. Dabrowskis
    apartment;

(2)

The second stain was in the north stairwell, on the third-floor
    landing;

(3)

The third stain was in the north stairwell, on the fourth-floor landing,
    near the door;

(4)

The fourth stain was on the inside door handle in fifth-floor
    stairwell; and

(5)

The fifth stain was on the hallway floor just outside the
    respondents apartment.

[31]

Both the fourth and fifth stains shared some
    similar features and properties with the brown substance found in Mr. Dabrowskis
    apartment. The CFS confirmed that the fourth and fifth stains contained
    carbohydrates and possibly proteins, but no starches. There was no evidence that
    the carbohydrates in either sample matched the other, nor that they matched the
    substance covering Mr. Dabrowski.

[32]

As already mentioned, the respondent admitted that
    Mr. Cameron noted a sticky, brown, molasses-type substance on the second-floor
    door handle leading to the north stairwell immediately after a male ran past
    him and into the stairwell.

C.

the trial judges essential findings

Time
    of Death

[33]

The trial judge found that Mr. Dabrowski was
    killed between 5:32 p.m. and 6:43 p.m. She narrowed this time frame futher, based
    on video footage showing the respondent wearing the jacket on which the blood
    stain was found. At 6:40:45, he was seen walking in the direction of Mr.
    Dabrowskis apartment. At 6:43:40, he is seen leaving the complex on the
    second-floor walkway when he drops a letter addressed to Mr. Dabrowski. Both
    times he is wearing the green jacket. This led the trial judge to conclude, at
    para. 86:

I am satisfied, based on this evidence, that
    Mr. Scott had been inside and was coming directly from Mr. Dabrowskis
    apartment when he dropped the envelope at 6:43:45. I am further satisfied that
    it was during his attendance inside Mr. Dabrowskis apartment that Mr. Scott
    left the foot impression and got the stain on his jacket.
Based on these
    findings, the only logical conclusion is that Mr. Dabrowski had been stabbed
    certainly by the time Mr. Scott left his apartment just prior to 6:43:45 p.m.
[Emphasis added.]

Opportunity

[34]

The trial judge found that the respondent did
    not have the exclusive opportunity to commit the murder. She found that,
    although he may have had a two to three-minute opportunity to kill Mr.
    Dabrowski when he was inside the apartment, I am unable to exclude the
    possibility that others may also have had opportunity prior to Mr. Scotts
    attendance. The trial judge pointed to the 48 minutes prior to Mr. Scotts attendance
    that she said were completely unaccounted for.

The Respondents Movements

[35]

The trial judge found the respondents movements
    and interactions in the aftermath of the killing to be somewhat curious and
    unusual; however, they were not necessarily indicative of guilt. Although his
    face was covered at times, the respondent traveled in public areas and had seemingly
    uneventful interactions with others. At other times, his face was not covered.

The White Cloth

[36]

The trial judge declined to find that the
    respondent was concealing a weapon under the white cloth that was captured on
    video. She further rejected the Crowns submission that the respondent had a
    cloth in his hand because he had injured himself while stabbing Mr. Dabrowski.
    As the trial judge observed, at para. 96, Mr. Scott is seen repeatedly on the
    video with the white cloth wrapped around his right hand, both before and after
    entering Mr. Dabrowskis apartment. There is no evidence on the video footage
    that the cloth is stained.

Blood on the Respondents Jacket

[37]

The trial judge found that the minimal amount of
    blood found on the respondents jacket was not indicative of the respondent
    killing Mr. Dabrowski as opposed to merely being inside his apartment. As this
    forms the basis for one of the grounds of appeal, I address this evidence in
    more detail below.

The Trail of Brown Substance and
    Stains

[38]

At trial and on appeal, the Crown contends that
    there was an identifiable trail of the brown substance, thought to be
    chocolate sauce, from Mr. Dabrowskis apartment to the respondents apartment.
    The trial judge dealt with this evidence in great detail. She found the
    photographs of the location of the stains to be problematic and not adequately
    explained. Ultimately, she was unable to find the trail the Crown attempted
    to demonstrate. The trial judge, however, did find that the respondent did
    transfer two of the stains, which is consistent with Mr. Scotts position that
    he was present inside the apartment at some time contemporaneous to the stabbing.
    The finding, however, does not assist me in finding that Mr. Scott was the
    stabber. The trial judges finding in relation to what Mr. Cameron noted
    about the substance on the second floor door handle is discussed below.

Motive

[39]

Based on the respondents conversation with Mr.
    Ramsay in the elevator, the Crown suggested that the retention of electronics by
    Mr. Dabrowski may have been a motive for the killing. The trial judge rejected
    this theory as speculative, noting that there is absolutely no evidence of
    motive.

Conclusion

[40]

Based on the above, the trial judge concluded
    that she was not satisfied beyond a reasonable doubt that the respondent was
    responsible for the stabbing of Mr. Dabrowski. Accordingly, she acquitted the
    respondent.

D.

analysis

[41]

The Crown advances three grounds of appeal:

1.
The trial judge misapprehended the
    evidence of Mr. Cameron, causing her to fail to consider the totality of
    evidence on the ultimate issue;

2.
The trial judge erred in how she
    approached a formal admission that Mr. Cameron observed a sticky substance on a
    second floor door handle after a man ran past him and went through the door;
    and

3.
The trial judge erred in speculating about
    the amount of blood that would have been on the killer as a result of the
    stabbing.

[42]

The Crown submits that the trial judge committed
    legal errors in her analysis of the evidence that undermined a legally
    appropriate approach to the evidence and resulted in an unlawful acquittal. The
    respondent claims that the Crowns attempts to undermine the trial judges
    factual findings, including her credibility assessment of the Crowns main
    witness, Mr. Cameron, are nothing more than thinly veiled attempts to contrive
    questions of law. In effect, the Crown attacks the reasonableness of the
    acquittal.

[43]

Section 676(1)(a) of
Criminal Code
limits
    an appellate courts ability to set aside an acquittal. The Crown must
    establish an error based on a question of law alone; errors of fact or mixed
    errors of fact and law are not sufficient:
R. v. Rudge
, 2011 ONCA 791,
    108 O.R. (3d) 161, at para. 35;
R. v. Palmer
, 2021 ONCA 348, at para.
    60;
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

[44]

Short of a legally flawed approach to the
    evidence, the Crown is precluded from arguing that an acquittal is
    unreasonable. Section 686(1)(a)(i) furnishes appellate courts with the power to
    set aside a conviction when it is determined that it is unreasonable or cannot
    be supported by the evidence; there is no corresponding power to set aside an acquittal
    on this basis. This is not simply a matter of textual asymmetry. There is a
    more fundamental principle at stake. In
R. v. Biniaris
, 2000 SCC 15,
    [2000] 1 S.C.R. 381, at para. 33, Arbour J. said, as a matter of law, the
    concept of unreasonable acquittal is incompatible with the presumption of
    innocence and the burden which rests on the prosecution to prove its case
    beyond a reasonable doubt. See also
J.M.H.
, at para. 27.

[45]

Further, identifying an error of law is only the
    first step in the analysis. In order to succeed in overturning an acquittal,
    the Crown must also establish, with a reasonable degree of certainty, that the
    error of law might reasonably be thought, in the concrete reality of the case
    at hand, to have had a material bearing on the acquittal:
R. v. Graveline
,
    2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16;
R. v. Goldfinch
, 2019
    SCC 38, 89 Alta. L.R. (6th) 1, at para. 135;
R. v. Barton
, 2019 SCC 33,
    [2019] 2 S.C.R. 579, at para. 160;
R. v. Button
, 2019 ONCA 1024, at
    para. 15;
Palmer
, at para. 62.

[46]

The Crown has not identified any legal errors in
    the trial judges reasons. The Crown essentially challenges the reasonableness
    of the acquittal and asks us to engage in our own weighing of the evidence and
    to reach our own conclusion on the ultimate issue of guilt. The contested
    findings were open to the trial judge to make on the record before her.

(1)

Misapprehension of Evidence

(a)

Introduction

[47]

The core of the Crowns submission is that the
    trial judge failed to consider all of the evidence in relation to the issue of
    guilt and innocence, a recognized error of law:
J.M.H.
, at para. 31.
    This error is most typically seen when a trial judge subjects individual pieces
    of evidence to the standard of proof beyond a reasonable doubt, failing to the
    evaluate the cumulative effect of all of the evidence:
R. v. B.(G.)
,
    [1990] 2 S.C.R. 57.

[48]

This case rests on a different footing. The
    Crown submits that the trial judge misapprehended the evidence of the main
    Crown witness, Mr. Cameron, concerning what the respondent was carrying in his
    hand. This mistake, in turn, was instrumental in the trial judges negative
    assessment of Mr. Camerons credibility. It prevented the trial judge from
    considering the whole of the evidence. I disagree.

(b)

The Disputed Evidence

[49]

This ground of appeal focuses on a narrow issue
    concerning the interpretation of Mr. Camerons evidence. Specifically, at issue
    is his description of what the respondent may have been carrying when Mr.
    Cameron saw him for the second time that evening, at 6:40 p.m.

[50]

The respondent was carrying something in his
    hand that was longer than his hand and was wrapped in a white cloth. He said
    that the respondent had something in [his] hand wrapped up in either a towel,
    or like a bag, that was sticking out, like, straight, like as if youre holding
    like a pipe or, like, a bat or somethingor a knife. The import of his
    evidence was that whatever protruded from his hand was covered by the towel
    whatever part of it he was holding in his hand, and the part that wasnt in his
    hand was wrapped in something white.

[51]

The dispute that arose at trial, and on appeal,
    was whether Mr. Cameron was describing something protruding from the
    respondents hand that was covered by the towel, or something protruding from
    the towel.

(c)

The Trial Judges reasons

[52]

During Mr. Camerons cross-examination, it is
    clear that the trial judge believed Mr. Cameron said that the object in the
    respondents hand was not completely covered by the towel. The trial judge was
    corrected on this point by the Crown. It is clear from the various exchanges
    with counsel throughout the rest of the trial that the trial judge understood
    the main import of Mr. Camerons evidence (i.e., that there was an object that
    was completely covered by the towel). Moreover, the trial judge advised counsel
    that she had ordered a transcript of Mr. Camerons evidence and that she would
    re-read it.

[53]

The trial judge addressed this evidence in her
    reasons for judgment on more than one occasion. On the first occasion, at para.
    66, she said the following:

Mr. Cameron said he saw this individual again
    two or three minutes later when he got on the elevator on the first floor. He
    said this individual was getting off the elevator. He said the only difference
    was his face was covered and
he had something in his hand that was wrapped
    up in a white towel or a bag. He said something was sticking straight out like
    a pipe or bat or something. Later, Mr. Cameron said the object was sticking
    straight out and it could have been a bat, a pipe, a knife or a chair leg.
[Emphasis added.]

[54]

The Crown submits that this passage demonstrates
    that the trial judge persisted in her belief that Mr. Cameron said the object
    was not completely covered by the towel. I disagree. This passage reveals an
    accurate understanding of Mr. Camerons evidence on this point. This becomes
    clear when other passages from the trial judges reasons are considered.

[55]

To frame the first passage relied upon by the
    Crown, it is necessary to take a step back to consider Mr. Camerons evidence
    more generally. Mr. Cameron purported to identify the respondent on three
    occasions that night. He volunteered information about how good he is at eyewitness
    identification. In cross-examination, when he was confronted with the fact that
    the respondent was wearing a mask, he changed his testimony and acknowledged
    the respondents face was covered on one occasion. However, the evidence
    demonstrated that the respondent was masked on two occasions. This led the
    trial judge to make the following findings and credibility assessment, at paras.
    72-74:

In cross-examination, Mr. Cameron was
    questioned about his evidence that the male had something wrapped in his hand
. Mr. Cameron would not even entertain the possibility that he was
    wrong on this point. He said he was certain that the male was not holding a gun
    because he had fired firearms before.
He later added that the object
    protruded about five inches out from his wrapped hand and guessed that the
    object was close to 10 inches long including the handle
.

Later, he testified it could have been four
    different things and without any prompt said, if you really want to know what
    I think, it was probably a knife. He said he knows this because he was going
    to go into the knife business at point in his life and gave some details about
    that. He was adamant on this point.

I do not accept Mr. Camerons evidence that he
    saw
something protruding from the white cloth that was wrapped around Mr.
    Scotts hand.
I have viewed the compilation video contained in Exhibit 4
    multiple times. It provides a clear view of Mr. Scotts wrapped hand from a
    variety of angles and
I am unable to see anything protruding from that hand
.
    [Emphasis added.]

[56]

In my view the trial judge did not misapprehend
    the evidence. Taken together, the trial judge understood that Mr. Cameron said
    that whatever the respondent had in his hand was covered by a white cloth.
    During the course of his testimony, the object grew in size, as did Mr.
    Camerons apparent clarity.

[57]

Ultimately, having reviewed the videotape
    evidence, the trial judge was unable to see anything protruding from the
    respondents wrapped hand, whether wrapped or not. It was open to her to make
    this finding.

[58]

For the sake of completeness, I will address the
    Crowns further arguments on this issue. The Crown submits that the trial
    judges misapprehension of the hand/towel evidence caused her to unfairly
    assess Mr. Camerons evidence, resulting in a skewed assessment of the case as
    a whole, and a failure to consider the totality of the evidence bearing on the
    ultimate issue. In making this submission, the Crown relies on
R. v. Curry
,
    2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No.
    185, in which Tulloch J.A. held that the trial judge was blinded by what he
    mistakenly believed to be the evidence of a Crown witness, causing him to
    ignore other important evidence: at para. 51.

[59]

This case is different from
Curry
. In
    that case, the trial judge misunderstood the evidence of a key witness on the
    identification of the driver in a fatal driving case, resulting in an
    acquittal. It distorted his assessment of other evidence led by the Crown that
    was indicative of guilt. Here, the evidence of Mr. Cameron on the hand/towel
    issue was far from central to the Crowns case. The trial judges rejection of
    the hand/towel evidence did not lead her to ignore or devalue other evidence
    supporting the Crowns theory.

[60]

Moreover, the trial judges finding on this
    aspect of the evidence did not overwhelm her assessment of Mr. Camerons
    credibility. There were many reasons to reject Mr. Camerons evidence, separate
    and apart from the hand/towel evidence. In her submissions, the trial Crown
    acknowledged that Mr. Cameron became frustrated and combative during his
    cross-examination. On appeal, the Crown asserts in its factum, Mr. Cameron is
    not the kind of witness who is likely to endear himself to a trial judge. The
    trial judge made the following observations of Mr. Cameron, at paras. 75-77:

Mr. Cameron was
prone to exaggeration and
    eager to share details that had no relevance to this case
. His testimony
had
    a stream of consciousness quality to it
. Layered on top of all of this was
a
    tendency towards theatrics on his behalf.
More than once he stood up or
    came out of the witness box to demonstrate things without being asked to do so.
    If Mr. Cameron interpreted a question as being confrontational,
he had a
    tendency to dig in and overstate
.

Overall, Mr. Cameron was
argumentative and
    combative
.
His answers were often non-responsive. He did not seem to
    appreciate the difference between an actual observation and speculation, and he
    was quick to exaggerate whenever the opportunity presented itself.
For
    these reasons, I am cautious about relying on the testimony of Mr. Cameron
    unless corroborated by other evidence.

To that end, I am prepared to accept the
    portions of his evidence that are consistent with the video surveillance
    evidence. [Emphasis added.]

[61]

I do not accept the Crowns submission that the
    trial judge was led to these conclusions because she failed to appreciate Mr.
    Camerons evidence on the hand/towel issue. The trial judges assessment of his
    credibility is broad and wide-ranging, transcending the hand/towel evidence. Even
    if she did err in her interpretation of this evidence, which she did not, it
    was only part of her analysis. It did not drive a skewed approach to Mr.
    Camerons evidence, the assessment of which is a question of fact:
R. v.
    R.P.
, 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.

[62]

Moreover, the trial judge had the videotape
    evidence to assist her. While it did confirm that one of the respondents hands
    was covered with a towel, it did not reveal anything protruding  neither from
    his hand nor from under the towel.

[63]

In essence, the Crown asks us to dissect and
    microscopically examine single passages from the trial judges reasons in
    isolation and out of context and to improperly substitute [our] own
    credibility assessments for those made by the trial judge:
R. v. Harris
,
    2014 ONCA 746, at para. 16. See also
R. v. Stirling
, 2008 SCC 10, [2008]
    1 S.C.R. 272, at para. 13. I would decline to do so and dismiss this ground of
    appeal.

(2)

Improper Use of Admissions

[64]

As discussed at the outset, the trial was an
    efficient one. A number of admissions were made under s. 655 of the
Criminal
    Code
, which provides:

s. 655
Where an
    accused is on trial for an indictable offence, he or his counsel may admit any
    fact alleged against him for the purpose of dispensing with proof thereof.

[65]

The admission at issue was one of six admissions
    in Exhibit #7
Admissions Re Scene
. Admissions #2 to #6 purport to
    state objective facts about what the police did and what the CFS found, mostly
    in relation to the presence, location, and properties of the brown substance.
    The contentious admission, #1, is different. It reads as follows:

While taking out his garbage William
    Cameron noted a sticky brown molasses type substance on the door handle leading
    to the North Exit stairwell
. This happened when Mr.
    Cameron followed the person that had ran past him into the north exit
    stairwell. The person went up the stairs and Mr. Cameron went down the stairs
    to take out his garbage. [Emphasis added.]

[66]

This admission does not purport to state an
    objective fact: rather, it records the observations Mr. Cameron said that he
    made. It was an admission that, if asked about the matter during his testimony,
    Mr. Cameron would have provided that information. Exhibit #8 contained further
    admissions along these same lines.

[67]

This type of admission has been called an informal
    admission: see
R. v. Stennett
, 2021 ONCA 258, at para. 57;
R. v.
    Korski
, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137;
R.
    v. Falconer
, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the
    difference between admissions as to objective facts (formal admissions) and
    admissions as to the anticipated evidence of a witness (informal admissions),
    Watt J.A. said in
Stennett
, at para. 58, An agreement about what a
    witness could say or would have said is not an agreement that what they say is
    true:
Korski
, at para. 125.

[68]

When Exhibit #7 was entered, Mr. Cameron had
    already testified. It is not apparent from the record why he was not asked
    about this issue when he gave evidence. Moreover, a police officer also
    testified about the brown substance and stains but said nothing about the door
    handle on the second floor.

[69]

The trial judge inquired of counsel whether the
    admission in question was a formal admission. The parties agreed that it was.
    It would appear that they were mistaken. As Watt J.A. said in
Stennett
,
    at para. 58, Those that recite what a witness would say retain their true
    character, however they may be styled.

[70]

The trial judge discussed this evidence at para.
    36 of her reasons:

The final stain for consideration comes in the
    form of an admitted fact pursuant to s. 655 of the
Criminal Code
.
It
    is an admitted fact that Mr. Cameron noted a sticky brown molasses type
    substance on the second-floor door handle leading to the north stairwell.
The evidence is that Mr. Cameron felt the sticky substance on the door handle
    immediately after a male had run into the stairwell. There is no evidence that
    the substance was tested or photographed by the police.
There is no evidence
    that this door handle formed part of the police investigation regarding the
    substance trail from Mr. Dabrowskis apartment to Mr. Scotts apartment. Surely
    if the handle had been covered in a brown sticky substance, the police would
    have noted it. They did not. Accordingly, I am cautious about the weight I am
    prepared to attach to this evidence
. [Emphasis added.]

[71]

The Crown submits that, notwithstanding how the admission
    is characterized, the trial judge committed an error of law by failing to act
    on the admission because her rejection was based on speculation about the
    police investigation. The Crown contends that this admission was critical
    because, according to the combined force of Mr. Camerons evidence and the
    admission, the brown substance was deposited onto the door handle at 6:37:20 p.m.
    by the respondent. The Crown submits that this moves the time of the murder
    forward by three minutes, contrary to the trial judges findings on this issue.
    I have a number of problems with the Crowns submissions on this issue.

[72]

First, the trial judge did not fail to give
    effect to the admission. This assertion is simply incorrect. She merely
    expressed caution about how much weight she was prepared to attach to it. The
    trial judge was entitlted to take this approach. The Crown offers no authority
    to support its position that a trial judge is required to assign any particular
    weight to admitted facts simply because they are admitted, or to find they
    assist the Crown in discharging its burden. Essentially, the Crown submits that
    the trial judge should have regarded this admission as more significant than
    she did. For the same reasons given in relation to the first ground of appeal,
    this court is not empowered to engage in this fact-finding exercise.

[73]

Second, while it might be said that there is a
    degree of speculation involved in the trial judges treatment of this evidence,
    it may also be viewed as a valid observation about a lack of evidence on this
    point. Moreover, it must be considered in conjuction with the trial judges
    more general findings about the evidence concerning the brown substance.

[74]

Third, it is difficult to accept the submission
    that this evidence was crucial, let alone important, to the Crowns case. After
    all, police witnesses were not asked about this evidence, nor was Mr. Cameron
    when he testified.

[75]

Fourth, the Crowns submission on appeal ignores
    the trial judges rejection of Mr. Camerons evidence that it was the
    respondent who ran past him to enter the north stairwell at 6:37 p.m. She did
    so because Mr. Cameron was unreliable, and the video footage was fleeting and
    blurry. This critical finding rendered the informal admission about the door
    handle insignificant.

[76]

Lastly, it is unclear how the Crowns case would
    have been strengthened by moving the time of death forward to 6:37 p.m. Mr. Dabrowski
    was last seen alive at 5:32 p.m., leaving a lengthy period of time unaccounted.

[77]

I would dismiss this ground of appeal.

(3)

Improper Speculation

[78]

This ground of appeal relates to the testing of
    items seized from the respondents apartment four days after Mr. Dabrowski was
    killed. The green jacket worn by the respondent had a blood stain inside the
    right sleeve that was admitted to be Mr. Dabrowskis blood.

[79]

The Crown submits that the trial judge erred in
    finding that these items were seized the day after the murder. This error is
    insignificant. The trial judge was aware of the possibility that the items
    could have been washed by the respondent following the murder.

[80]

The Crown submits that the trial judge
    improperly speculated about the blood staining evidence on the inner sleeve of
    the jacket. She addressed this aspect of the evidence at paras. 98 and 100 of
    her reasons:

I turn now to the blood on Mr. Scotts jacket.
    The evidence before me is that blood, identified as coming from Mr. Dabrowski,
    was found on the inside sleeve of Mr. Scotts jacket. There is no evidence as
    to the exact location of the stain or the quantity of blood on the jacket. I do
    know that Mr. Dabrowski was stabbed 23 times and the amount of blood in and
    around his body in the photographs is significant.
Common sense would
    suggest the killer would have been covered in blood. There is no evidence,
    aside from the stain on the jacket and the footwear impression, that Mr. Scott
    was covered in blood. The amount of blood depicted in the photographic evidence
    suggests that it would have been unavoidlable for anyone who attended inside
    that apartment to not have gotten some blood on their person.

Given the substantial amount of blood and
    brown substance at the crime scene, one would expect anyone who went inside to
    have some blood transferred onto their person.
To that end, one would expect
    the stabber, after 23 stabs, to be covered in blood. There is no evidence that
    Mr. Scott was covered in blood. Quite the opposite, my impression was that the amount
    of blood and brown substance attached to Mr. Scott was minimal.
[Emphasis
    added.]

[81]

The Crown took a different view of the blood on
    the respondents items found in the bathtub. It was her theory that the
    respondent washed these items. She further took the view that the presence of
    blood on his clothing explained why he changed his appearance later in the
    evening. As she submitted during her closing argument:

Hes completely, one hour and ten minutes
    after hes seen leaving the building with his hand covered, hes completely
    changed his appearance, and in my respectful submission
thats because his
    clothing was covered in the victims blood.
And we know from the forensic
    evidence that the victims DNA and his blood was found on the jacket Mr. Scott
    had been wearing. [Emphasis added.]

[82]

The trial Crown asked the trial judge to find
    that the respondents clothing would have been covered in the victims blood.
    The Crown can hardly complain now, on appeal, that the trial judge erred in
    following the trial Crowns sensible lead. Moreover, the trial judges reasons
    demonstrate that she was aware that the respondent had changed his clothes on
    the night of the murder, and the possibility that the respondent had washed the
    items found in his bathtub.

[83]

I would dismiss this ground of appeal.

E.

Disposition

[84]

I would dismiss the Crowns appeal from
    acquittal.

Released: MT September 17, 2021

Gary Trotter J.A.

I agree. M. Tulloch J.A.

I agree. L.B. Roberts J.A.

[1]

This summary is taken largely from para. 39 of the reasons
    for judgment.

[2]

After
    Mr. Cameron testified, the respondent made a number of admissions, one of which
    was that Mr. Cameron noted a sticky brown substance on the door handle. I will
    return to this issue below when considering how the trial judge dealt with this
    admission in her reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: South Beach Street Development
    Ltd. v. US Income Partners LLC, 2021 ONCA 624

DATE: 20210917

DOCKET: C69126

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

South Beach Street Development
    Ltd.,
Amaryco Inc. and Fabrizio Lucchese

Defendants (
Appellants
)

and

US Income Partners LLC

Plaintiff (Respondent)

Matthew R. Harris, for the appellants
    Amaryco Inc. and Fabrizio Lucchese

Yeganeh Pejman, for the respondent

Heard: September 13, 2021 by
    video conference

On appeal from the judgment of Justice Sean
    F. Dunphy of the Superior Court of Justice, dated February 5, 2021.

REASONS FOR DECISION

[1]

The appellants Amaryco Inc. and Fabrizio
    Lucchese were indebted to the respondent as a result of an investment in
    Florida.

[2]

Following default in payment, the parties
    entered into a Settlement Agreement. The appellants had U.S. counsel for the
    purposes of negotiating the Settlement Agreement.

[3]

The Settlement Agreement provided:

-

for a monthly repayment schedule;

-

for a consent to an Ontario judgment that would be released from escrow
    in the event that there was a default in the repayment schedule. It constituted
    an absolute estoppel and bar to any defence or counterclaim with respect to the
    consent judgment; and

-

an attached form of judgment for US$2,750,000 plus stipulated interest
    and legal costs.

[4]

Failure to make any of the required payments
    entitled the respondent to register a warranty deed on some of the appellants vacant
    land in Florida, and to reduce the balance due on the appellants outstanding
    settlement debt by US$1,500,000.

[5]

Each of the parties represented that they had
    made such investigation as deemed necessary or desirable.

[6]

The appellants defaulted on a payment required
    by the Settlement Agreement. The respondent successfully moved for judgment
    relying on the consent to judgment. It provided a credit to the appellants on
    account of the warranty deed on the vacant land in Florida.

[7]

The appellants appeal from that judgment.

[8]

Although the appellants raised three arguments
    in their factum, before us they only pressed one. They argued that the consent
    was ineffective because the statement of claim had not been issued beforehand,
    and in granting judgment the motion judge improperly relied on Rule 1.04 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.

[9]

The appellants did not contest the defaults
    under the Settlement Agreement. The Settlement Agreement clearly identified the
    substance of the claim contained in the statement of claim that was ultimately
    issued. By providing the consent to judgment, the appellants plainly intended
    to create a legal obligation based on the contents of that claim. They had the
    benefit of advice from their U.S. attorney and could not point to any matters
    that required the expertise of an Ontario lawyer. Indeed, they represented that
    they had made all necessary investigations.

[10]

The full record was before the motion judge and
    reliance on r. 1.04 did not result in any prejudice to the appellants. The
    motion judge was legitimately satisfied that he had all he needed to do justice
    between the parties, and that reconstituting the proceedings under a different
    rule would reflect the triumph of form over substance.

[11]

For these reasons, the appeal is dismissed. As
    agreed by the parties, the appellants are to pay the respondent its costs fixed
    in the amount of $7,500 inclusive of disbursements and tax.

G.R. Strathy
    C.J.O.

S.E. Pepall
    J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Wawatie, 2021 ONCA 609

DATE: 20210913

DOCKET: C68256

Feldman, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerry Wawatie

Appellant

Jessica Smith Joy, counsel for the respondent

Amy J. Ohler, counsel for the appellant

Heard: September 2, 2021 by video conference

On appeal from the sentence
    imposed on August 8, 2019 by Justice Peter K. Doody of the Ontario
    Court of Justice.

REASONS
    FOR DECISION

[1]

Mr. Wawatie pleaded guilty to aggravated assault and breach of probation
    arising out of a June 4, 2019 attack on his former intimate partner, an Indigenous
    woman. The attack occurred after Mr. Wawatie attended at her place of residence
    in violation of two separate court orders. He punched the complainant in the
    face, knocking her to the ground. He then held his knee on her neck,
    endangering her life by restricting her ability to breathe. She began to see
    spots and involuntarily urinated before the attack ended. She was left with
    multiple injuries.

[2]

This was not Mr. Wawaties first offence relating to the complainant. He
    had repeatedly been convicted of breaching court orders prohibiting him from
    contacting her and attending her residence. He had also previously been
    convicted of being unlawfully in her dwelling house, causing mischief to her
    property, assaulting her, and assaulting her causing her bodily harm by
    breaking her wrist. Mr. Wawatie was convicted of the assault causing bodily
    harm only nine months prior to the June 4, 2019 offences.

[3]

Mr. Wawatie has a long history of alcohol and substance abuse and he has
    serious mental health issues. Soon after his arrest his counsel concluded that
    his mental health was deteriorating. He sought a swift resolution of the
    charges, with a view to achieving a rehabilitative sentence for Mr. Wawatie at
    the St. Lawrence Valley Correctional and Treatment Centre. On June 19, 2019, he
    successfully arranged for Mr. Wawatie to enter a guilty plea in Ottawas
    Indigenous Peoples Court with a view to securing a report pursuant to s. 21 of
    the
Mental Health Act
, R.S.O. 1990, c. M-7,

that would assist
    in securing the rehabilitative sentence he sought. After the s. 21 report was
    completed, that plea was struck and a new plea was entered before the trial
    judge, also in the Indigenous Peoples Court. After a plea inquiry, Mr. Wawatie
    was found guilty of both the aggravated assault and the breach of probation
    charges. On August 8, 2019, the trial judge rejected the defence submission for
    a reformatory sentence and sentenced Mr. Wawatie to 30 months
    imprisonment.

[4]

Mr. Wawatie seeks leave to appeal that sentence. He argues that the
    trial judge erred by failing to apply the
Gladue
principles as required
    when sentencing Indigenous offenders. Those principles require a trial judge to
    consider not only the impact of an Indigenous offenders unique systemic or
    background factors on their degree of responsibility, but also restorative and
    rehabilitative sanctions that may be appropriate because of the offenders Indigenous
    heritage:
R. v. Gladue
, [1999] 1 S.C.R. 688, at para. 66. Mr. Wawatie submits
    that the trial judge failed to give due consideration to either of these
    required inquiries.

[5]

We do not agree. Although the trial judge did not have a
Gladue
report
    before him, the s. 21 report included extensive, highly specific biographical information
    about Mr. Wawaties experience as an Indigenous man, including his connection
    to his culture, his traumatic and abusive upbringing, its link to intergenerational
    trauma, and the profound mental health and addiction challenges that have
    plagued Mr. Wawaties life. The report described how the significant trauma Mr.
    Wawatie had experienced, the behaviour he was exposed to, and his addictions, contributed
    to his low frustration tolerance and his inability to maintain control over his
    emotions. Commendably, the s. 21 report also expressed Mr. Wawaties
    desire for a culturally appropriate rehabilitative sentence and outlined the available
    options.

[6]

Armed with this information, both Mr. Wawaties counsel and the Crown
    made submissions on the impact that the
Gladue
principles should have
    on sentencing. The trial judge inquired how he was to resolve the interplay
    between those principles and s. 718.04 of the
Criminal Code
. Section
    718.04 requires sentencing judges to give primary consideration to denunciation
    and deterrence if the offence involved the abuse of a person who is vulnerable
    because of personal circumstances, including because the person is Aboriginal and
    female. The trial judge said, I would have thought I had to take both into
    account in the particular circumstances of this offence and this offender.

[7]

It is clear from his sentencing reasons that the trial judge did so. He
    said explicitly that he had considered the
Gladue
principles. He also identified
    the role those principles play in identifying the moral culpability of the
    offender, and in encouraging alternative sanctions which may more effectively
    achieve the objectives of sentencing in the offenders Indigenous community. Although
    he did not overtly address each of the relevant features of Mr. Wawaties
    background, or speak directly to the alternative sentencing options, he did not
    have to. This was an experienced trial judge sitting in a specialized
    Indigenous Peoples Court in a heavily burdened court system. Although he could
    have been more explicit, the reasons he provided were sufficient. There is no
    basis for concluding that he failed to give due consideration to the
Gladue
principles.

[8]

Moreover, the trial judge was entitled to conclude that the
Gladue
principles
    that he had considered did not require a lesser sentence than would otherwise
    be the case, or a sentence more focused on rehabilitation. Mr. Wawatie had
    consistently terrorized the complainant. Prior efforts at his rehabilitation
    had failed, as had prior efforts to protect the complainant from Mr. Wawatie. The
    aggravated assault, in particular, was a grave offence and Mr. Wawaties level
    of violence was escalating in each assault. The sentence was fit and not unduly
    harsh.

[9]

We grant Mr. Wawatie leave to appeal his sentence, but we dismiss his
    appeal.

K. Feldman J.A.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McFarlane (Re), 2021 ONCA 632

DATE: 20210920

DOCKET: C69015

Tulloch, van Rensburg
    and Nordheimer JJ.A.

IN THE MATTER OF: Odean
    McFarlane

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Elena Middelkamp, for the respondent, Attorney General
    of Ontario

James P. Thomson, for the respondent, Person in Charge of
    St. Josephs Healthcare Hamilton

Heard: September 10, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated December 2, 2020, with reasons dated January 5, 2021.

REASONS FOR DECISION

[1]

The appellant appeals the disposition of the Ontario Review Board
    (ORB), dated January 5, 2021, ordering his detention at the Forensic
    Psychiatry Program of the St. Josephs Healthcare Hamilton (the Hospital), with
    provision for certain privileges, including that he be permitted to live in the
    community in accommodation approved by the Person in Charge of the Hospital.

[2]

The appellant argues that the Board erred by refusing his request to
    continue his previous disposition of a conditional discharge. The appellant
    also argues, in oral submissions, that a detention order and being subjected to
    the continued jurisdiction of the ORB exacerbates his mental condition by
    making him more anxious, which leads to further deterioration to his mental
    health.

[3]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow. We now provide our reasons.

Background

[4]

The appellant has a lengthy history under the ORB. We include here only
    the aspects of this history that are pertinent to this appeal.

[5]

The appellant has been diagnosed with schizophrenia, which is now in
    remission; substance use disorder, which is currently in early remission in a
    controlled environment; and anti-social personality traits.

[6]

The appellant has been the subject of a range of dispositions under the
    ORB since 2008, after he was found not criminally responsible on account of a
    mental disorder for a charge of assault.

[7]

In recent years, the appellants mental condition significantly
    improved, and he commenced living with his long-time partner, who is now his
    fiancée. After showing considerable progress in his treatment and relative
    stability in his condition, on February 5, 2020, the Board granted the
    appellant a conditional discharge.

[8]

While in the community, the appellant worked with a treatment team.
    After some challenges with his initial case manager, his case was re-assigned.
    He met with his treatment team twice per week, provided negative urine samples,
    and showed no thought disorders.

[9]

Since being discharged, the appellant has resided in an apartment with
    his fiancée in Hamilton. Unfortunately, the couple began experiencing
    challenges in their relationship, which has resulted in them taking time apart
    from one another. The appellants fiancée commenced living in Brampton during
    the week and returned to the apartment on weekends, both to accommodate her
    commute to work in the Peel area, and due to the discord in their relationship.
    The appellant has questioned his fiancées fidelity, which has resulted in
    increased stress in their relationship. On one occasion, the appellant
    voluntarily admitted himself to hospital, as he was having difficulty coping
    with these relationship challenges.

[10]

In
    September 2020, the appellant reported that his relationship with his fiancée
    was undergoing an increased level of stress. During the same month, the
    appellant approached two 15-year-old boys and demanded their cell phones and
    backpacks, which were given to him. The appellant returned to his apartment and
    discarded the stolen items. The appellants treatment team determined that
    there was no change in the appellants mental status, and his toxicology
    screens returned negative. Consequently, he could not be admitted to hospital under
    the
Mental Health Act
.

[11]

On
    October 29, 2020, the appellant was charged with two counts of mischief, after
    which he was taken to the Hospital by police and admitted into seclusion.
    Earlier that day, around 2:45 a.m., the appellant had driven to a home and
    asked the occupant if he could park his car in their driveway to sleep. He was
    refused. The appellant attended at another home and threw a rock through a
    window of the home. He explained he had been trying to get the attention of the
    houses occupants. At the Hospital, the appellant tested positive for THC and,
    when asked, he admitted to having consumed a cannabis edible.

[12]

On
    November 27, 2020, an early review hearing was held. In a disposition dated
    December 2, 2020, the appellants previous conditional discharge was vacated,
    and a detention order was imposed. The appellant now appeals this disposition.

Discussion

[13]

We
    see no error with the Boards disposition. At the hearing before the Board, the
    appellants treating psychiatrist, Dr. Nagari, gave evidence that a detention
    order was necessary and appropriate as the appellants mental state had
    deteriorated. Dr. Nagari based his conclusions on the appellants unexplained
    actions in which he exhibited concerning behaviours on two separate occasions
    during September and October 2020, which resulted in police intervention.

[14]

The
    Board also heard evidence from Dr. Mamak who conducted a Psychological Risk
    Assessment on the appellant and found him to be at a moderate to moderate-high
    risk to reoffend.

[15]

Finally,
    the Board considered whether the appellants request for the inclusion of a
    Young clause within a conditional discharge order would mitigate the risk, as
    it would require the appellant to attend at the Hospital for the purposes of
    assessment and re-admission, if requested by the Hospital. The Board concluded
    that based on the evidence, it would not sufficiently mitigate the risk.

[16]

In
    the end, the Board concluded that based on all the evidence before it, a
    conditional discharge was no longer appropriate to manage the appellants
    apparent state of decompensation, and that the appellant continued to pose a
    risk to the safety of the public.

[17]

In
    our view, the evidence provided a reasonable basis for the imposition of a disposition
    that would permit the Hospital to approve the appellants accommodation. As has
    been held in previous decisions of this court, giving the Board the power to
    require the hospitals approval of accommodation is only possible under a
    detention order: see
Runnalls (Re),
2012 ONCA 295; 2013 ONCA 386.

[18]

We
    see no error in the Boards decision, as there was ample evidence to support
    its finding that the appellant continues to pose a significant risk to the
    community (which is not contested), and the disposition that was imposed. As
    the appellants counsel acknowledged, although the disposition may be
    disappointing to him, and may contribute to his anxiety, this is not a basis to
    interfere.

[19]

We
    encourage the appellant to continue his treatment to improve his condition. We also
    encourage the treatment team to continue in its efforts to work towards the
    appellants full reintegration into the community when that is possible.

[20]

As
    we were satisfied that the Boards disposition was both reasonable and
    consistent with a need to achieve a disposition that is the least onerous and
    least restrictive, the appeal was dismissed.

M. Tulloch J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.


Corrected decision: The text of
    the original judgment was corrected on October 29, 2021 and the description of
    the correction is appended.

COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Alekozai, 2021 ONCA 633

DATE: 20210920

DOCKET: C68292

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sakhi  Alekozai

Appellant

Andrew Burgess, for the appellant

Rebecca De Filippis, for the respondent

Heard: March 5, 2021 by videoconference

On
    appeal from the conviction entered on February 5, 2019 by Justice Victor
    Giourgas of the Ontario Court of Justice.

Watt J.A.:

[1]

An advertisement appeared in the Escorts section of Backpages.com. Its
    title: BACK only for the Afternoon  Tight Brand New girl in richmond hill
    today only  waiting  18.

[2]

A picture accompanied the advertisement. A woman in a bedroom. Her face
    not visible. And a text from Kathy. A telephone number and an email address.

[3]

The appellant sent a text to Kathy. He asked about rates and services.
    An exchange of messages followed. They made arrangements about all the
    essentials. Price. Services. Location.

[4]

The appellant knocked on the hotel room door. Kathy said she would be
    there, waiting. But Kathy was not there. A police officer answered the door.
    He arrested the appellant on charges of internet child luring and communicating
    with a person to obtain sexual services for consideration from a person under
    18.

[5]

The appellant was convicted of both charges after a trial before a judge
    of the Ontario Court of Justice. He appeals his convictions.

[6]

In these reasons, I explain why I conclude that the appeal fails.

The Background

[7]

Like many others, this case arises of Project Raphael, a York Region
    Police Services (YRPS) sting operation aimed at combatting internet child
    luring. The project involved placing an advertisement in the Escorts section of
    Backpages.com. A police officer, posing as an underage female, would exchange
    messages with those who responded to the advertisement. Arrangements for sexual
    services would be concluded. When the respondent arrived at the designated
    location, he would be arrested.

The Advertisement

[8]

The advertisement posted in the Escorts section of Backpages.com
    included a title, a picture, and some text. A disclaimer in this section of the
    website advises about its sexual content and that it is to be accessed only by
    those who are 18 or older and not considered minors in their state of
    residence. Anyone who agrees to the condition gets access to the website.

[9]

The title and accompanying text are composed in language designed to
    appeal to those interested in purchasing sex from underage girls. The specific
    age of the underage girl is not stated in the advertisement.

[10]

In
    this case, the posted title read:

BACK only for the Afternoon, Tight Brand-New girl in richmond
    hill today  waiting  18

followed by some symbols and 18. The accompanying
    photograph was of a female police officer in her 30s. Her face was not visible
    in the photograph.

[11]

In
    addition to the title and photograph, the advertisement contained some further
    text,

Sexy, new and hot. Hi guys, Im Kathy and Im a girl who is
    sexy and young with a tight body, looking for fun. Im only here today just
    visiting from out of town, in-calls only. Dont miss this, youll be sorry.
    Text or e-mails only.

Contact information was a telephone number and an email
    address of KathyBlunt16@gmail.com.

The Response

[12]

Within
    half an hour of its posting, the appellant responded to the advertisement. He
    proposed a specific type of sexual activity for one-half hour for which he
    would pay $80. He and Kathy exchanged messages for almost four hours.

The Discussion about Age

[13]

Early
    in their exchange of messages, Kathy asked the appellant his age. He
    responded and asked for her address to book an appointment. She asked him to
    text her when he arrived at Leslie and Highway 7. She then added:

but Im a little younger than 18 ok?

The appellant responded:

Thats ur business hun I wouldnt have id u. But Ill text when
    Im at Leslie and highway 7 thanks.

[14]

The
    appellant advised Kathy that he had arrived at the intersection. Kathy
    responded:

Im avail now but I just want to be honest so ur not mad when u
    see mei turn 17 soon but I look 18

The appellant answered twice in 20 seconds ok and
    thats fine babe but Kathy did not receive the second message.

[15]

The
    exchange of messages continued. The appellant asked why Kathy kept insisting
    ur age and added Im not into young girls. I would only look at u as an
    escort nothing personal. Later, the appellant sent a message:

Dont text back.

The Exchange Resumes

[16]

About
    four minutes later, Kathy sent two texts well u worry me and u want to see
    me or no. The appellant agreed sure just be serious plz. Kathy provided
    the name of the hotel, its address, and her room number.

The Arrest

[17]

The
    appellant knocked on the door of the room where he agreed to meet Kathy. A
    police officer answered and arrested the appellant.

The Positions of the Parties at Trial

[18]

The
    case for the Crown consisted of the text messages exchanged between the
    appellant and Kathy, print-outs of Backpages.com, including the advertisement
    posted by the undercover police officer and the testimony of the undercover
    police officer, and a civilian member of YRPS. The Crown contended that the
    evidence established that the appellant believed Kathy was underage. His
    interest was to purchase sex and he was indifferent about the age of his sexual
    partner. In addition, the Crown argued that the appellants evidence that he
    believed Kathy was over 18 was unworthy of belief, and at all events, the
    appellant took no reasonable steps to determine her true age.

[19]

The
    appellant testified as the only defence witness. He admitted exchanging text
    messages with Kathy to arrange sexual services for money. He always believed Kathy
    was over 18 and assumed her texts to the contrary were simply a ploy to get
    more money from him.

The Reasons of the Trial Judge

[20]

The
    trial judge identified two issues that required decision:

i.

whether
    Crown counsel had proven beyond a reasonable doubt that the appellant believed
    his collocutor was under 18; and

ii.

whether
    the Crown had proven beyond a reasonable doubt that the appellant had not taken
    the reasonable steps required to ascertain the collocutors true age.

[21]

The
    essence of the trial judges reasons concluding that the appellants guilt had
    been established beyond a reasonable doubt appears in three paragraphs of his
    written reasons:

The texts are powerful evidence that Mr. Alekozai was
    indifferent to the age of the undercover. The phrases Thats ur business hun I
    wouldnt have id u, Thats fine babe and Ok but why do you keep insisting
    ur age if u fucked older men before what different would I make and its a turn
    off Im not into young girls I would only look at u as an escort nothing
    personal clearly indicate along with all of the other evidence that Mr.
    Alekozai wished to purchase sex from this escort and did not mind that she was
    underaged. The fact that he became annoyed with her for repeatedly raising the
    issue of being underaged serves to reinforce his indifference. He was trying to
    tell her that he didnt care what her age was and that she shouldnt keep
    raising the issue.

Mr. Alekozais explanation that he said these things because he
    was trying to deflect her asking for more money does not make sense. The issue
    of increasing the price was never raised. Nothing in the texts suggests that it
    was even contemplated. I reject Mr. Alekozais explanation in this regard. His
    intent and belief was clear. I find that the Crown has established that Mr.
    Alekozai believed that he was dealing with an underaged escort and that he
    showed up at the hotel room in order to exchange money for sexual services from
    that escort.

Even if I had a reasonable doubt about Mr. Alekozais belief as
    to the age of the escort, the Crown has established beyond a reasonable doubt
    that Mr. Alekozai did not take reasonable steps to determine that she was an
    adult. Despite the factors at play in paragraph 20, more was required of Mr.
    Alekozai in circumstances where the undercover repeatedly stated that she was
    underaged and that she was trying to be honest and that she never wavered from
    that position. Faced with these assertions, Mr. Alekozai was required to take
    reasonable steps to satisfy himself that
this escorts
age was at 18
    years. [Emphasis in original.]

The Grounds of Appeal

[22]

The
    appellant advances two grounds of appeal. He says that the trial judge erred:

i.

in conflating
    the standards of recklessness and belief in determining the
mens rea
of the luring offence; and

ii.

in failing
    to consider whether the evidence as a whole raised a reasonable doubt about the
    appellants guilt.

Ground #1: Proof of the Fault Element in Child Luring

[23]

Although
    the appellant was convicted of offences under both sections 172.1(1)(a) and
    286.1(2) of the
Criminal Code
, the principal focus of this ground of
    appeal is the child luring conviction under s. 172.1(1)(a).

[24]

The
    circumstances of the offences, as well as the essence of the trial judges
    reasons for finding guilt established, appear in earlier paragraphs and require
    no repetition. A brief recapture of the arguments advanced will provide a
    suitable framework for the discussion that follows.

The Arguments on Appeal

[25]

The
    appellant contends that developments in the jurisprudence since the trial judge
    rendered his decision require a new trial.

[26]

At
    the time of trial, the appellant reminds us, the appellants indifference to
    his collocutors age was sufficient to establish his guilt in light of the
    presumptive belief for which s. 172.1(3) provided and the absence of reasonable
    steps. Two pathways to conviction existed. Proof of actual belief in the
    collocutors underage status. Or proof of unreasonable indifference to the
    possibility that the collocutor was underage as evidenced by the failure to
    take the necessary reasonable steps to determine that age.

[27]

But
    then the law changed in
R. v. Morrisson
, 2019 SCC 15. Indifference to
    the collocutors age was not enough. The Crown now must prove beyond a
    reasonable doubt that the accused believed the collocutor was underage. Proof
    that an accused did not take reasonable steps simply precludes the trier of fact
    from considering the defence that the accused honestly believed the collocutor
    was of legal age. It does
not

provide an alternative pathway to
    prove guilt.

[28]

In
    this case, the appellant acknowledges, the trial judge did find that the
    appellant believed that the collocutor was underage. But this conclusion was
    grounded on recklessness or indifference to the collocutors age neither of
    which is the equivalent of what is required  an actual belief. In addition,
    the trial judge concluded that the appellant had failed to take reasonable
    steps, thus under the then applicable law, the appellant was guilty
    irrespective of whether he was merely indifferent to Kathys age or actually believed
    her to be 18. As in
Morrison
, a new trial is required.

[29]

The
    respondent says that the appellant was not convicted because he was reckless as
    to Kathys age, or because he failed to take reasonable steps to determine
    her age. He was convicted because the trial judge was satisfied that the
    appellant subjectively believed Kathy was underage.

[30]

Read
    as a whole, the trial judges reasons demonstrate that he was satisfied beyond
    a reasonable doubt that the Crown had proven that the appellant believed
    Kathy was underage. The trial judge emphasized that the burden was on the
    Crown to prove that the appellant believed Kathy was underage and that he did
    not take such reasonable steps as required into consideration in forming his
    mistaken belief in her age. The trial judge found that the appellant believed
    that he was dealing with an underaged escort and that he showed up at the hotel
    room in order to exchange money for sexual services from that underaged escort.

[31]

In
    his oral ruling, the trial judge described the case for the Crown as
    overwhelming. The appellants evidence did not raise a reasonable doubt. But
    even if that evidence were to have raised a reasonable doubt, the appellant had
    failed to meet the evidentiary burden that he took reasonable steps in order to
    put the mistaken belief in age defence in play.

[32]

The
    respondent says that the trial judges statement that the appellant was
    indifferent to Kathys age does not amount to a finding that the appellant
    was reckless about whether she was underage. An accused who is reckless never
    turns their mind to the collocutors age. In other words, recklessness is about
    the absence of knowledge. Indifference, on the other hand, refers to a person
    who is marked by a lack of interest, enthusiasm, or concern for something, or
    by no special liking for or dislike of something. Indifference is about the
    absence of interest. Lack of interest in Kathys young age is not the
    equivalent of lack of awareness of that age.

[33]

The
    trial judges finding that the appellant was indifferent to Kathys underage
    status was responsive to the arguments advanced at trial. Trial counsel
    submitted that the appellants text that he was not into young girls
    demonstrated his belief that Kathy was over 18. The Crown did not contest
    that the appellant was not specifically interested in underaged partners, but
    argued that the appellant believed Kathy was not 18, a fact that did not
    matter to him since this was simply a business transaction  cash for sexual
    services. The finding of indifference was a rejection of the accuseds argument
    that his stated disinterest should raise a reasonable doubt about his belief in
    Kathys age.

[34]

In
    this case, the respondent concludes, the trial judge was well aware of the
    difference between subjective belief and recklessness. He specifically
    described belief and reasonable steps as distinct inquiries. He was satisfied
    that the appellant believed Kathy was underage and did not rely on the lack
    of reasonable steps to reach that conclusion.

The Governing Principles

[35]

As I
    have said, the principal focus of the appellants submissions has been on the
    conviction of child luring under s. 172.1(1)(a), not that under s. 286.1(2).
    Although the elements of each offence differ, each has a common requirement
    that an accused believe in the underage status of the escort and a reasonable
    steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) requirement to
    engage a mistaken belief in age defence. The principles that follow are those
    that apply to the child luring offence under s. 172.1.

[36]

The
    essential elements of child luring under s. 172.1 may be briefly described as:

·

communication

·

age

·

purpose

The age element refers to the actual age of the person
    with whom the communication takes place or the accuseds belief in that
    persons age. See,
R. v. Levigne
, 2010 SCC 25, at para. 23;
Morrisson
,
    at para. 43;
R. v. Carbone
, 2020 ONCA 394, at para. 80.

[37]

When
    the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally
    determined, two pathways were available to the Crown to establish guilt where,
    as here, there was no underage collocutor. The Crown could prove that the
    accused believed that the collocutor was underage, or that the accused had
    failed to take reasonable steps to ascertain the collocutors actual age:
R.
    v. Morrison
, 2019 SCC 15, at para. 49;
Carbone
, at para. 75.

[38]

In
Morrison
,
    also a case of child luring arising out of a police sting operation, the
    Supreme Court confirmed this courts decision that s. 172.1(3) was
    unconstitutional, but not s. 172.1(4):
Morrison
, at paras. 73, 92.
    However, the Supreme Court differed with the courts below about the reasonable
    steps requirement in s. 172.1(4). That provision does
not
, in the
    absence of the presumption under s. 172.1(3), provide a second pathway to
    conviction, rather it simply limits the availability of the mistaken belief in
    age defence:
Morrison
, at para. 80.

[39]

After
    the decision of the Supreme Court in
Morrison
, to prove the fault
    element in cases involving a police sting with no underage participant, the
    Crown must prove beyond a reasonable doubt that the accused:

i.

believed
the other person or collocutor was underage; or

ii.

was
wilfully
    blind
whether the other person was underage.

Recklessness as to the other persons age is not
    sufficient to prove the fault element:
Morrison
, at para. 102;
Carbone
,
    at para. 89.

[40]

After
Morrison
, an accused charged with communicating with a person believed
    to be under 18 must be acquitted, regardless of whether he took any reasonable
    steps to determine the age of his collocutor even if he suspected that person
    was under 18 but decided to proceed in any event, or if he never turned his
    mind to the collocutors age. Prior to
Morrison
, the reckless or
    negligent accused would be convicted so long as the Crown proved that the
    accused did not take the reasonable steps required to determine the
    collocutors true age:
Carbone
, at para. 91.

[41]

After
Morrison
, where the Crown proves beyond a reasonable doubt that an
    accused failed to take reasonable steps to ascertain the collocutors age, s.
    172.1(4) forecloses an accuseds reliance on the defence that they believed the
    collocutor was of legal age. But this falls short of what is necessary to
    establish guilt. This is so because the reasonable steps requirement under s.
    172.1(4) does not provide an independent pathway to conviction. Once the trier
    of fact is satisfied that the Crown has proven that the accused did not take
    reasonable steps, the trier of fact must consider the whole of the evidence,
    including evidence about the accuseds failure to take reasonable steps, to
    decide whether the Crown has discharged its legal burden of proving that the
    accused believed the other person was underage:
Morrison
, at para.
    129.

[42]

Recklessness
    is a state of mind. It is the state of mind of a person who is aware that their
    conduct might bring about the result prohibited by the criminal law, but who
    persists in the conduct despite the risk. Recklessness is subjective. It
    entails an appreciation of some level of risk and the decision to take that
    risk. In most cases, an accused who never turns their mind to the age of the
    other person is properly characterized as reckless. Reckless indifference also
    describes a subjective state of mind, a choice to treat age as irrelevant and
    to assume the risk associated with that choice:
Morrison
, at para. 100
    citing
R. v. Sansregret
,
[1985] 1 S.C.R. 570, at p. 582;
Carbone
, at paras. 125-127.

[43]

On
    the other hand, wilful blindness, sometimes referred to as deliberate
    ignorance, is established where a person who becomes aware of the need for some
    inquiry declines to make the inquiry because they do not wish to know the
    truth, rather prefer to remain ignorant:
Morrison
, at para. 100;
Sansregret
,
    at p. 584.

[44]

The
    mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an
    evidentiary burden on the accused to put the defence in play, and a persuasive
    burden on the Crown, once in play, to negate it:
R. v. W.G
.,
2021
    ONCA 578, at paras. 54-56. The Crown may negate these defences in either of two
    ways. The Crown may prove that the accused did not honestly believe that the
    other person was at least 18 years old at the time of the offence. Or the Crown
    may prove that, despite the accuseds claim that they honestly believed that
    the other person was at least 18, the accused did not take reasonable (s.
    172.1(4)) or all reasonable (s. 150.1(4)) steps to ascertain the other persons
    age:
Morrison
, at para. 88;
Carbone
, at para. 116;
W.G
.
,
    at para. 57.

[45]

The
    analysis of reasonable steps or all reasonable steps is highly contextual
    and fact-specific. Reasonable steps are steps that a reasonable person would
    take, in the same circumstances known to the accused at the time, to find out
    the other persons age. The reasonable steps requirement includes objective as
    well as subjective elements. Viewed objectively, the steps must be reasonable.
    The reasonableness of the steps must be assessed in the circumstances known to
    the accused:
W.G
.
, at para. 60, citing
Morrison
, at
    para. 105.

[46]

To
    be reasonable steps, the steps must be meaningful. They must be steps that
    provide information reasonably capable of supporting an accuseds belief that
    the other person is of legal age. Relevant factors include not only the nature
    of the steps themselves, but also the information those steps solicit:
W.G
.
,
    at para. 61.

The Principles Applied

[47]

I
    would not give effect to this ground of appeal. I reach this conclusion even
    though the trial judge did not have the benefit of the Supreme Courts decision
    in
Morrison
to guide him in his analysis.

[48]

The
    appellant was charged with offences under ss. 172.1(1)(a) and 286.1(2). No
    dispute arose about proof of many of the essential elements of each offence.
    Under s. 172.1(1)(a), there was no controversy about the fact or manner of the
    appellants communication or about his purpose in doing so. Likewise, under s.
    286.1(2), communication and purpose were unchallenged.

[49]

The
    contested ground had to do with the fault element and the availability of the
    mistaken belief in age defence in ss. 172.1(4) and 150.1(4). The trial judge
    identified these as the issues to be determined at the outset of his written
    reasons.

[50]

The
    trial judge considered first whether the Crown had proven beyond a reasonable
    doubt that the appellant believed Kathy was under 18. He reviewed the
    evidence on the issue, principally the text exchanges, and the appellants
    testimony about his state of belief. He rejected the appellants explanation
    that he did not believe Kathy was underaged. From previous experience, the
    appellant had generally found that escorts were always older than advertised.
    He considered that Kathy was trying to get more money for her services by
    portraying herself as a child. No such discussion ever occurred during their
    exchange.

[51]

The
    trial judge specifically found that the Crown had proven that the appellant
    believed that he was dealing with an underaged escort. He showed up at the
    designated hotel room with the agreed upon funds to exchange money for the sexual
    services from that underaged escort. This finding is firmly grounded in the
    evidence adduced at trial. It was not cumbered by any misapprehension of the
    evidence, impermissible use of the unconstitutional presumption in s. 172.1(3),
    or error about the state of mind required to establish the fault element of the
    offences charged.

[52]

Nor
    am I persuaded that the trial judges periodic reference to the appellants
    indifference to Kathys age tainted his finding that the appellant actually
    believed Kathy was underage, or amounted to finding guilt established on an
    impermissible standard of recklessness, rather than actual belief or wilful
    blindness as to underage status. Belief in underage status and indifference
    about its significance in pursuit of sexual services are not incompatible.

[53]

Once
    having found the fault element established, the trial judge then examined
    whether the mistaken belief in age defence was available to the appellant. He
    correctly identified the incidence of the evidentiary and persuasive burdens of
    proof on the defence and Crown respectively.

[54]

The
    trial judge concluded that the appellant had failed to meet the evidentiary
    burden necessary to put the defence of mistaken belief in age in play. This
    finding was available on the evidence adduced at trial. Whether the standard be
    reasonable steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) is of
    no real moment here. The appellants invocation of the disclaimer on the
    Backpages.com website (restricted to those 18 and over), the stated age of 18
    in the advertisement (with the email address including a reference to 16), and
    the apparent age of the person depicted in the photo included in the
    advertisement, in combination, are insufficient to invoke the defence. The
    trial judge did not err in rejecting the mistaken belief in age defence, nor
    did he use its rejection as an independent pathway to find the appellants
    guilt established.

Ground #2: Failure to Consider the Totality of the Evidence

[55]

The
    second ground of appeal is related to the first. Once again, a brief review of
    the arguments advanced will provide an appropriate setting for the discussion
    that follows.

The Arguments on Appeal

[56]

The
    appellant submits that, as a general rule, a judge who has rejected the
    evidence of an accused must then consider whether the totality of the evidence
    satisfies them, as the trier of fact, of the guilt of the accused. This is the
    third step in the analysis under
R. v. W(D)
, [1991] 1 S.C.R. 742. This
    principle applies to the offences with which the appellant was charged.
    However, when the appellant was tried, this step was not necessary because an
    accuseds failure to take reasonable or all reasonable steps to ascertain the
    collocutors age afforded a second pathway to conviction.

[57]

In
    this case, in accordance with what was when the law, the trial judge did not
    engage in any real analysis of the totality of the evidence or assess whether
    the cumulative force of the evidence satisfied the standard of proof required.
    The trial judge failed to carefully analyze the messages exchanged between the
    appellant and Kathy, especially those showing skepticism about the
    collocutors report of her age.

[58]

In
    addition, the appellant says, the trial judge failed to engage with the
    undercover officers testimony about the type of person who might claim to be
    under 18 on the Internet. Rejection of the appellants testimony did not end
    the trial judges inquiry to determine whether the appellants guilt had been
    proven beyond a reasonable doubt. A further examination of the evidence was
    necessary, but not done. A new trial is required.

[59]

The
    focus of this ground of appeal, the respondent begins, is on the failure of the
    trial judge to properly apply the third step of the
W(D
)
analysis. No such failure occurred. The trial judge expressly found that the
    appellant subjectively believed Kathy was underage. This finding was recorded
    on the evidence as a whole and is untainted by any reference to the appellants
    failure to take reasonable steps.

[60]

As
    the respondent sees it, the appellants complaint is twofold. The first aspect
     that an analysis of the messages does not support the conclusion that the
    appellant actually believed that Kathy was underage  is neither more nor
    less than an invitation to redo the factual findings made by the trial judge.
    The appellant does not say that the finding of guilt is unreasonable, only that
    different findings of fact should have been made. The trial judge carefully
    scrutinized the evidence. His findings of fact are entitled to deference here.

[61]

The
    second prong of the appellants argument is that the trial judge failed to
    consider whether the undercover officers evidence could raise a reasonable
    doubt about the appellants guilt. The failure to mention this evidence does
    not amount to reversible error. This evidence had nothing to do with proof of
    the fault element or disproof of the honest but mistaken belief in age defence.
    This evidence formed no part of the defence submissions at trial. A trial judge
    is not required to consider every piece of evidence adduced at trial or to
    respond to arguments not put forward there.

The Governing Principles

[62]

The
    principles that assist in resolution of this claim of error are commonplace and
    in no need of painstaking recital.

[63]

The
    jury instructions suggested in
W(D)
, the familiar three steps, are
    well known. Equally well established is its purpose: to make it clear that the
    principle of reasonable doubt applies to credibility and to ensure that the
    verdict rendered at trial is not the product of a simple choice between the
    case for the Crown, on the one hand, and that of the defence, on the other:
R.
    v. Y. (C.L.)
, [2008] 1 S.C.R. 5, at para. 8.

[64]

Equally
    fundamental and stated first in
W(D
)
itself is the principle
    that the steps of
W(D)
need not be religiously followed or articulated
    as if a catechism. Substance matters, not form:
W(D)
, at p. 758;
Y.
    (C.L.)
, at para. 7. What matters is whether the correct burden and
    standard of proof were applied, not the language used in their application:
Y.
    (C.L.)
, at para. 7.

[65]

The
    final point concerns the obligation of a trial judge in their capacity as trier
    of fact to discuss the evidence and the arguments advanced by counsel. A trial
    judge is not required to discuss all the evidence related to a particular point
    or to answer each and every argument advanced by counsel:
R. v. Vuradin
,
    2013 SCC 38, at para. 17, citing
R. v. M. (R.E.),
[2008] 3 S.C.R. 3, at
    paras. 32, 64 and
R. v. Dinardo
, [2008] 1 S.C.R. 788, at para. 30.

The Principles Applied

[66]

In
    my respectful view, this ground lacks persuasive force.

[67]

The
    reasons of the trial judge demonstrate his awareness of the principles
    articulated in
W(D
)
which he included in their pristine form in
    his reasons. The only live issue at trial had to do with proof of the fault
    element. The other elements, communication and purpose, were not only not in
    dispute, but also plainly established on the evidence.

[68]

The
    appellant testified. He said he believed Kathy was over 18. The trial judge
    did not believe the appellants evidence. Nor did the appellants evidence
    raise a reasonable doubt about the only contested issue at trial, whether the
    appellant believed, as he said, that Kathy was over 18. A trial judge made it
    clear that the burden was on the Crown to prove beyond a reasonable doubt:

i.

that the
    appellant believed Kathy was underage; and

ii.

that the
    appellant did not take reasonable steps in reaching his belief that Kathy was
    over 18.

Further, the trial judge was satisfied that the Crown
    had proven the appellant actually believed that Kathy was under 18
and

that he had taken no reasonable steps to ascertain her true age. The
    complaint that the trial judge did not consider all the evidence in reaching
    his conclusion fails.

[69]

Nor
    can the submission that the trial judge erred in concluding, from his analysis
    of the message traffic, that the appellant believed that Kathy was under 18
    succeed. Absent a specific claim of misapprehension of evidence or unreasonable
    verdict, the argument is but a thinly-veneered invitation for a re-weighing of
    the evidence and re-calibration of where the balance settles. This exceeds the
    scope of our authority.

[70]

That
    the trial judge failed to rehearse the evidence of the undercover officer in
    deciding whether the appellants guilt had been established affords no basis
    for our intervention. Defence counsel did not advance this argument at trial.
    The evidence in issue consisted largely of generalities unmoored from the
    evidence at trial and, in some respects at least, of doubtful relevance and
    admissibility.

Disposition

[71]

For these reasons, I would dismiss the appeal.

Released:
       D.W.    September 20, 2021

David
    Watt J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. M. Jamal J.A.

Erratum

Correction
    made October 29, 2021: The word is in the first sentence of paragraph 63 was
    replaced with the word are.