COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2015 ONCA 184

DATE: 20150318

DOCKET: C55579

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Foster

Appellant

Breana Vandebeek, for the appellant

Shawn Porter, for the Crown, respondent

Heard:  March 10, 2015

On appeal from the conviction entered by Justice Laurence
    A. Pattillo of the Superior Court of Justice, dated December 10, 2010, sitting with
    a jury.

ENDORSEMENT

[1]

Christian Foster appeals his convictions following a jury trial on
    charges of possession of a firearm without a licence, possession of a loaded
    prohibited firearm, and possession of crack cocaine for the purpose of
    trafficking. The facts underlying the convictions are as follows.

[2]

The appellant was in a second floor apartment when several police
    officers arrived in the hallway outside the apartment. When the apartment door
    was opened and the police were spotted, the appellant ran from the police and
    went over the balcony.

[3]

According to police witnesses, the appellant discarded a quantity of crack
    cocaine and a cellphone on the balcony before going over the railing. One of
    the police officers also testified that when the appellant landed, he saw the
    appellant pick up a gun from the ground before continuing to run.

[4]

The appellant ran through the lobby of the apartment building and a
    civilian witness testified that a gun fell from the appellant when he was
    tangled in a fence he was climbing. He said that the appellant picked the gun
    up and continued running. A gun was subsequently recovered near the fence.

[5]

The appellant testified that he attended at the apartment to buy
    marihuana for a friend. He admitted to running from police, but denied he was
    in possession of either the cocaine or the gun. The defence argued the police
    witnesses were reverse engineering the case against the appellant after they
    found the gun. The defence submitted the crack cocaine and cellphone were
    located elsewhere in the apartment and were not discarded on the balcony. The
    defence also submitted the handgun was never in the appellants possession and
    that guns were common in the neighbourhood.

[6]

At trial, the defence sought to cross-examine one of the police
    officers, Officer Gillan, with respect to an SIU investigation referenced in
    his notebook. The trial judge conducted a
voir dire
on the issue.

[7]

Officer Gillan testified on the
voir

dire
that the SIU
    investigation was in regard to an allegation of excessive force used in the
    context of removing someone from a motor vehicle involved in a collision. He
    further testified he was initially a subject officer, but was then
    re-designated a witness officer and was compelled to give a statement to the
    SIU. The underlying charges against the subject officer were ultimately withdrawn.

[8]

The trial judge denied the defence request to cross-examine Officer
    Gillan on the SIU investigation on the basis that the purposed
    cross-examination was not relevant.

[9]

The appellant raises two grounds of appeal. First, the trial judge
    failed to adequately advise the jury of the impact of the inconsistencies in
    the police evidence on their assessment of credibility. Second, the trial judge
    erred in refusing to allow the defence to cross-examine Officer Gillan on the
    SIU investigation.

[10]

We
    would not give effect to either ground of appeal.

[11]

With
    respect to the inconsistencies in the police evidence, the appellant submits
    that the officers credibility was central to this case. He concedes that the
    trial judge provided standard instructions regarding credibility and listed six
    examples of inconsistencies in the police evidence between the evidence given
    at trial versus that at the preliminary inquiry. However, the appellant submits
    the trial judge failed to explain to the jury that the evidence at the
    preliminary inquiry was given under oath, and that a lie in those circumstances
    is especially serious. The appellant also submits there were additional
    significant inconsistencies that the trial judge failed to mention.

[12]

In
    our view, the trial judge did not err in his instruction to the jury regarding
    inconsistencies in the police evidence. Jury charges are to be read as a whole and
    in the context of the trial. The ultimate question is whether any deficiencies
    in the jury charge have led to a miscarriage of justice.

[13]

The
    jury charge contained proper instructions on the issue of credibility. The
    trial judge instructed the jury generally that it was up to them to determine
    how much of a witness testimony to believe. He further instructed that they
    may find a witness had deliberately lied to them and that they had the option
    of rejecting the entirety of that witnesss evidence. As noted above, he went
    on to provide further instructions concerning previous inconsistent statements
    and listed specific examples of inconsistencies in the police evidence. He
    reminded the jury that these were just some examples and that there could be
    additional inconsistencies.

[14]

Failure
    to tell jurors everything that might be considered an inconsistency is not
    misdirection:
R. v. Luciano
(2011), 267 C.C.C. (3d) (Ont. C.A.).
    Moreover, the trial was relatively brief and the jury had the benefit of the arguments
    of counsel on the issue of credibility.

[15]

In
    these circumstances, we are not satisfied the trial judge was required to
    reference every alleged inconsistency and to specifically instruct the jury
    that the preliminary inquiry testimony was given under oath and explain the
    impact of a lie in that testimony.

[16]

With
    respect to the cross-examination of Officer Gillan on the SIU investigation,
    the appellant submits the cross-examination would have elicited evidence of
    prior misconduct and would have assisted in discrediting Officer Gillan and
    creating reasonable doubt.

[17]

We
    disagree. In defence counsels submissions on the
voir

dire
he stated that one of the purposes of the purposed cross-examination was: I
    would like the jury to hear that just because you are charged doesnt mean that
    youre guilty.

[18]

This
    is not a permissible purpose because it is not logically probative of any issue
    at trial. Moreover, the jury was instructed that being charged with a crime
    does not constitute proof of a crime.

[19]

We
    also agree with the trial judges assessment that the fact that the officer was
    initially designated as a subject officer and subsequently designated as a
    witness officer was otherwise not relevant to the matters in issue in the
    trial, including Officers Gillans credibility.

[20]

In
    any event, even if the purposed area of cross-examination should have been
    permitted, we are satisfied any error the trial judge may have committed in
    failing to allow the cross-examination was not prejudicial. Given that Officer
    Gillan was ultimately designated as a witness officer and the underlying
    charges were withdrawn, it is difficult to imagine that this area of
    cross-examination could have meaningfully impacted his credibility.

[21]

The
    appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Dawkins, 2015 ONCA 202

DATE: 20150325

DOCKET: C58075

Epstein, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Daquan Dawkins

Respondent

Robert Gattrell, for the appellant

Paul Calarco, for the respondent

Heard: March 9, 2015

On appeal from the sentence imposed on November 26, 2013
    by Justice Janet Wilson of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown appeals the sentence imposed of five years plus 49 days plus
    three years probation for the offences of aggravated assault, robbery with a
    firearm, unauthorized possession of a firearm, breach of a firearms prohibition
    order and breach of probation.  After credit for time served, the respondent
    was sentenced to spend two years less one day in jail. His anticipated release
    date is in approximately three weeks.

[2]

Both Crown and defence counsel agree that the trial judge erred in failing
    to apply the five year minimum sentence pursuant to s. 344(1)(a) of the
Criminal
    Code
.

[3]

However, even correcting for the error, we would not interfere with the
    sentence imposed.

[4]

We come to this conclusion based on a number of factors including the respondents
    youth and the sentence imposed on the other offender involved in the robbery.
    Of particular importance is the fact that the respondent has spent a total of
    almost five years in the reformatory system and the fresh evidence, that the
    Crown agreed should be considered, demonstrates that the respondent has
    responded well to the programs available to him in that setting.

[5]

Simply put, while the sentence is at the very low end of the range for
    these offences, it would not be in the interests of justice to remove the
    respondent from a place where he has made substantial gains and subject him to
    additional time in the penitentiary.

[6]

The appeal is therefore dismissed.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gul, 2015 ONCA 181

DATE: 20150316

DOCKET: C56960

Tulloch, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sanar Gul

Appellant

W. Gerald Punnett, for the appellant

Jennifer Mannen, for the respondent

Heard: February 26, 2015

On appeal from the conviction entered by Justice Robert W.
    Rogerson of the Ontario Court of Justice on June 21, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that the trial judge ought not to have made the
    factual findings that he did.  In our view, the findings were well supported by
    the evidence.  The trial judge was entitled to reject the defence of mistaken
    belief in consent.

[2]

The appellant has not demonstrated any errors.  The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Italiano, 2015 ONCA 179

DATE: 20150316

DOCKET: C56934

Tulloch, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Italiano and Mohamed Abdul-Hamid

Appellant

Daniel C. Santoro, for the appellant

Brian Puddington, for the respondent

Heard and released orally: February 26, 2015

On appeal from the convictions entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting without a jury, on January
    22, 2013.

ENDORSEMENT

[1]

The appellants, Christopher Italiano and Mohamed Abdul-Hamid,
    appeal their convictions on charges of trafficking and possession of cocaine
    for the purposes of trafficking, respectively, contrary to ss. 5(1) and 5(2) of
    the
Controlled Drugs and Substances Act.

[2]

Abdul-Hamids appeal is dismissed as abandoned, as he has not
    surrendered into custody.  Counsel confirms that Italianos appeal is based on
    the allegation that the police did not have reasonable and probable grounds to
    arrest Abdul-Hamid and thus the evidence against  Italiano should have been
    excluded.  Given our finding on the merits of the appeal, it is not necessary
    for us to decide the issue of whether Italiano has standing to challenge the constitutionality
    of the arrest of Abdul-Hamid.

[3]

Both appellants were arrested following police observations of what they
    perceived to be a drug transaction between the two.  On the day of the arrest
    several plain clothes officers were watching a house located at 36 Celt Avenue
    in Toronto.  One of the officers, Sergeant Mancuso, had previously received
    information through two confidential informants that a man named Michele
    Santonato was a large scale drug dealer, They believed he operated out of that
    location.

[4]

While watching the location, the police observed the appellant,
    Italiano, entering the house and emerging a few minutes later with a shoebox in
    his hands.  He then entered his car and drove away. The police followed.  About
    15 minutes later, Italiano stopped his car. The other appellant, Abdul-Hamid,
    entered Italianos car and then got out two minutes later, holding the same
    shoebox.  Abdul-Hamid got into his own car and drove away.  The police followed
    him, stopped him and arrested him at gunpoint.  Following the arrest, his
    vehicle was searched and the shoebox was located. It contained one kilogram of
    cocaine.

[5]

Both appellants were subsequently convicted on the charges as stated
    above.  At trial, they both challenged the arrest and subsequent search on the
    basis that the arresting officer, Detective Asselin, lacked reasonable and
    probable grounds to make the arrest. They argued that as a result the search incident
    to arrest was unlawful and the evidence should be excluded pursuant to s. 24(2)
    of the
Charter
.  The trial judge dismissed the
Charter
motion, finding that the officers had sufficient reasonable and probable
    grounds to make the arrest based on the information that they received, as well
    as their observations and surveillance. He concluded the search was validly
    conducted incident to arrest.

[6]

The trial judge found that during the investigations the officers
    involved in the arrest, including the arresting officer and the officer who had
    the tip from the confidential informants, were part of an investigative team
    conducting surveillance and they kept in contact by radio.  He concluded that
    based on the information regarding Santonato and the officers observations,
    the arresting officer was entitled to order the arrest of Abdul-Hamid.  We
    agree.

[7]

In our view, the arresting officer had the requisite reasonable and
    probable grounds to conduct the arrest.  In this case, Det. Asselin ordered the
    appellant Abdul-Hamids arrest.  At the time, this officer had received
    confidential information communicated through Sgt. Mancuso, that Santonato was
    a significant drug-dealer.  Det. Asselin could rely on a summary of the
    information given to him by Sgt. Mancuso in deciding whether he had grounds to
    make the arrest.  Santonato was observed at 36 Celt Avenue.  The appellant
    Italiano went into 36 Celt Avenue and emerged a few minutes later with a
    shoebox.  The shoebox was later seen in the appellant Abdul-Hamids possession.
    He took it in his car and then left.  Det. Asselin, who ordered Abdul-Hamids
    arrest, made most of these observations in person, and was informed of the rest
    by his fellow investigating officers.

[8]

The Court must consider the totality of the circumstances to determine whether
    the constellation of factors taken together supports the officers reasonable
    and probable grounds.  We are satisfied that the evidence established the
    requisite reasonable and probable grounds relied on by Det. Asselin to make the
    arrest.

[9]

Accordingly, we see no error in the trial judges decision.  The appeal
    is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

"M.L. Benotto
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Krzehlik, 2015 ONCA 168

DATE: 20150316

DOCKET: C55973

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Klaudius Krzehlik

Appellant

Joseph Di Luca, for the appellant

Michael Perlin, for the respondent

Heard: January 20, 2015

On appeal from the conviction entered on August 13, 2012,
    by Justice Simon C. Armstrong of the Ontario Court of Justice.

Epstein J.A.:

Introduction

[1]

The appellant pleaded guilty to assaulting his wife with a weapon and to
    assaulting his son.  The appellant was alleged to have held a knife to his
    wifes throat and to have hit his adult son in the shoulder.  The trial judge
    entered a conviction in relation to both offences and sentenced the appellant
    to 25 days in jail, in addition to five days of pre-sentence custody, to be
    served intermittently.

[2]

The pleas were entered and the sentence imposed on the appellants first
    appearance before a judge of the Ontario Court of Justice. He had been arrested
    four days earlier and held in custody. The appellant was not represented by
    counsel when he entered his pleas.

[3]

The appellant seeks to have his guilty pleas set aside primarily on the
    basis that his admission of the underlying facts was equivocal.

[4]

The appellant seeks to rely on additional evidence. The proposed
    evidence consists of an affidavit of the appellant, the transcript of his
    cross-examination on that affidavit and the affidavit of duty counsel who
    advised the appellant shortly before his guilty pleas. The evidence speaks to
    the circumstances following the appellants arrest that led up to his guilty
    plea.

[5]

The appellant bears the onus of showing that the plea was invalid. An appellate
    court is entitled to examine the trial record and any additional material,
    which, in the interests of justice, should be considered: see
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.). When an appellant seeks to argue that a guilty
    plea was involuntary, equivocal or not informed, the appellant need not satisfy
    the admissibility criteria set forth in
R. v. Palmer
(1979), 50 C.C.C.
    (2d) 193 (S.C.C.): see
R. v. Rajaeefard
(1996), 104 C.C.C. (3d) 225,
    at p. 228. The additional evidence amplifies the trial record and assists the
    court in examining and resolving the appeal. While the appellants additional evidence
    should be considered, as I will discuss, I would reject much of the appellants
    evidence as it is simply not credible.

[6]

At the conclusion of hearing this appeal, the panel indicated that the
    appeal was dismissed with reasons to follow.  I would dismiss the appeal for
    the following reasons.

Underlying Facts of Arrest and Guilty Pleas

[7]

The appellant was arrested on Thursday, August 9, 2012. He was charged
    with nine domestic violence offences that were alleged to have taken place between
    April 2011 and March 2012.  At that time, the appellant was 65 years old with
    no criminal record.  He had a number of medical issues. He was living with his
    wife of 24 years and their adult son.

[8]

According to his affidavit, the appellant spent Thursday night in a cell
    on a cold bench with no blanket.

[9]

The next morning, on Friday, August 10, 2012, the appellant was brought to
    the Newmarket courthouse for a bail hearing.  He was placed in a holding cell. The
    appellant says that while in the holding cell he was advised by another inmate
    that to get bail he needed either a surety to live with or a place in a bail
    program, which would require him to reside in a shelter.

[10]

The
    matter was called for a bail hearing.  The Crown indicated he was not able to
    consent to bail as the appellant did not have a release plan.  Duty counsel
    advised the justice of the peace that the appellant had asked to be referred to
    the bail program and that it was duty counsels intention to assist the
    appellant in a contested bail hearing later that day.  The presiding justice of
    the peace indicated she would be looking for a surety rather than release to
    the bail program.

[11]

The
    justice of the peace then said that the appellants bail hearing would be
    adjourned until Monday.  She added that if the appellant secured a surety or a
    place in the bail program, and if there were time, the bail hearing could occur
    that afternoon. The appellant says that he was accepted into the bail program
    shortly after 1:00 p.m., was told his bail hearing would be that afternoon, but
    that the hearing did not take place.

[12]

The
    appellant was held over the weekend at a remand centre. In his affidavit, the
    appellant states that during this time he ate, drank and slept very little.  He
    was strip-searched upon entry.  He experienced various difficulties with other
    inmates some of whom told him that he may have to wait months for trial and
    that he could get more than one year in jail if found guilty of the charges he
    faced.

[13]

In
    his affidavit, the appellant describes the early events of Monday, August 13,
    2012, as follows.  When he arrived at the courthouse for his bail hearing, he
    was disoriented, depressed and filled with anxiety: I couldnt concentrate on
    anything except surviving the day.  He spoke with duty counsel, a different
    counsel than the one who had assisted him the previous Friday.  He told her he
    was innocent of all charges.  Duty counsel, after speaking to the Crown,
    advised the appellant that bail would be opposed.

[14]

The
    appellant came to believe that if he was denied bail he would have to wait at
    least 60 days before re-applying. He also came to believe that he could plead
    guilty and hire a lawyer to appeal his case within 30 days.  When
    cross-examined on this point, the appellant explained that he believed that, by
    appealing, any admissions of guilt he made in court would effectively be
    withdrawn.  He thought this was routinely done.  The appellant does not
    allege that anything duty counsel said gave rise to this belief.

[15]

It
    was against this background that the appellant told duty counsel he would plead
    guilty. Therefore, before the bail hearing could commence, duty counsel asked
    that the matter be traversed for a guilty plea. After being traversed, the
    appellants case was held down to allow duty counsel to conduct a plea
    comprehension inquiry with the appellant.

[16]

After
    discussing the matter with the appellant, duty counsel advised the trial judge that
    the appellant would be continuing with this plea and sentencing on his own and
    duty counsel will not be assisting.  According to duty counsels affidavit,
    although she has no recollection of the conversation, her belief is that the
    most likely reason for her statement to the court was that the appellant was
    denying the facts asserted by the Crown but nonetheless planned to admit them.

Guilty Plea Proceedings

[17]

The
    trial judge conducted a standard plea comprehension inquiry. The appellant
    confirmed that he wanted to plead guilty to two of the nine counts. The
    appellant also confirmed that he understood he would be giving up his right to
    a trial, that no one had put any pressure on him to plead guilty and that he
    understood that the trial judge would determine his sentence.

[18]

Crown
    counsel read in the facts, including facts pertaining to charges the
    prosecution would not be proceeding with. The judge accepted the guilty pleas
    and convicted the appellant. The transcript of the exchange between the trial
    judge and the appellant leading up to his convictions reads as follows:

THE COURT:  All right sir. Is what I've been told substantially
    correct? Is that basically correct sir?

MR. KRZEHILK:   No Your Honour.

THE COURT: Well lets  the incidents in question...

MR. KRZEHLIK: Can I ask...

THE COURT: Just hang on a second. Can I see the Information
    please? All right. The two counts that you pleaded guilty to refer to February
    of this year.

MR. KRZEHLIK: Yes sir.

THE  COURT:  And  the  allegation  there  was  that  you  held
    a  knife  to  [your wifes] throat and threatened to slit her throat. Is that
    correct sir?

MR. KRZEHLIK: Can I give you the...

THE COURT: No sir, I need to know an answer to that. That's the
    gist of what...

MR. KRZEHLIK: Yes sir.

THE COURT: Is that correct?

MR. KRZEHLIK: Yes sir.

THE COURT:  All right and on count  nine, what I've  been told
    is that you hit [your son] when he was showering after you told him that he
    couldn't  shower. Is that correct sir? Well did you hit him that day sir?
    Sometime in February 2012.

MR. KRZEHLIK: I would say yes Your Honour.

THE COURT: Well sir I don't...

MR. KRZEHLIK: No, no...

THE  COURT:  If  you say  yes, its  because  you  did it, not
    because you're  just saying it.

MR. KRZEHLIK: No I understand that, okay.

THE COURT: Did you do that sir?

MR. KRZEHILK: Yes.

THE COURT: All right, then I'm going to find you guilty of both
    charges.

MR. KRZEHLIK: Your Honour?

THE COURT: Yes.

MR. KRZEHLIK: Can I not even mention anything about the
    situation?

THE COURT: Yes you can. I'll give you a turn in a minute.

MR. KRZEHLIK: Oh thank you.

THE COURT: But I need to know...

Mr. KRZEHLIK: Thanks you.

THE COURT: ...whether or not you're admitting the basic...

MR. KRZEHLIK: Yes Your Honour.

THE COURT: ...gist of these offences. Otherwise there's no
    point in proceeding.

MR. KRZEHLIK: Yes Your Honour.

[19]

Following
    this exchange, the trial judge proceeded to hear from the Crown and the
    appellant on sentencing.  The appellant offered context for the alleged assaults
    against his wife and son.  With respect to his son, the appellant said he was
    frustrated by his disobedience but that I shouldnt have slapped him on the
    arm.  With respect to his wife, the appellant said there was dialogue going back
    and forth and things [were] being said from both sides and it just got out of
    hand. He then appeared to express remorse saying, Ive been sort of ashamed
    about it, okay, about the whole thing, about the whole incident.  He later
    added, I can assure you that I love my family very much and never would [let]
    any physical harm come to them.  My job is to protect them, not to  to harm
    them, okay.  And I guess sometimes you just get frustrated, okay.

[20]

After
    pronouncing sentence, the trial judge accepted the appellants request that he
    be allowed to serve his sentence intermittently.  The seven remaining charges
    were withdrawn.

Submissions of the Parties

[21]

In
    his affidavit, the appellant states he misled the court during the plea
    comprehension inquiry.  He says he never assaulted his wife with a knife and
    that the contact with his son was so minor that it does not amount to assault.
    He did not want to assert his innocence before the trial judge for fear that he
    would be sent back to jail. He attributes this decision to plead guilty to stress,
    fear, lack of food and sleep, and his failure to appreciate the options
    available to him and the extent of his legal predicament.

[22]

The
    appellant submits that the trial judge should have conducted a more thorough
    plea comprehension inquiry.  The withdrawal of duty counsel was a red flag. It should
    have been clear to the trial judge that the appellant was prevaricating.  He
    wanted to add information and was equivocal about whether the Crowns facts
    were correct. The appellant contends that the trial judge approached the
    proceedings with the goal of taking the guilty pleas in mind rather than
    substantively assessing whether the pleas were truly unequivocal.

[23]

The
    appellant further argues that he was deprived of conscious choice.  His age,
    poor health, lack of food and sleep, stress and the trauma of a weekend in jail
    led him to conclude that he was trapped.  He had no realistic alternative other
    than to plead guilty.

[24]

Although
    the appellant asserts that no one pressured him to plead guilty, he also suggests
    that he was deprived of procedural fairness.  He submits that the plea process
    is inherently stressful and that his own experience before the courts was no
    exception.

[25]

Crown
    counsel submits that the guilty pleas were valid. They were accepted by the trial
    judge following a thorough plea comprehension inquiry during which the judge
    confirmed that the appellant intended to plead guilty, had not been pressured
    to do so and was aware of the implications of his pleas.

Analysis

[26]

Notwithstanding
    his guilty pleas, the appellant is entitled to appeal his convictions.
    Where valid grounds exist for doing so, an appellate court will permit the
    withdrawal of the plea and quash the consequent conviction: see
R. v. Adgey
,
    [1975] 2 S.C.R. 426, at pp. 430-31.  A guilty plea may be found
    invalid if it was not voluntary, unequivocal, and informed, or if the
    circumstances that led to the guilty plea demonstrate that a miscarriage of
    justice occurred: see
R. v. T. (R.)
(1993), 10 O.R. (3d) 514 (C.A.),
    at p. 519; see also
R. v. Kumar
, 2011 ONCA 120, 268 C.C.C. (3d) 369,
    at para. 34.  The accused has the onus to show that the plea was
    invalid on a balance of probabilities: see
R. v. Easterbrook
(2005),
    65 W.C.B. (2d) 2 (Ont. C.A.), at para. 5.

[27]

In
    his written submissions, counsel for the appellant advanced three grounds in
    support of his argument that the appellant should be entitled to withdraw his
    guilty pleas  the pleas were equivocal, were entered while the appellant was
    under stress and the appellant was not appropriately informed of the
    consequences of a guilty plea.  In oral argument, counsel for the appellant
    pressed only one ground  that the pleas were equivocal.

Were the pleas equivocal?

[28]

The
    appellant argues that the record, as expanded by the additional evidence, indicates
    that the guilty pleas were equivocal. During the plea comprehension inquiry the
    appellant first denied that the facts read in were basically correct.  Shortly
    thereafter, the appellant agreed that he was admitting the basic gist of the
    two offences.

[29]

The
    appellant submits that in the light of this equivocation, particularly given
    the circumstances in which the pleas were taken  he came right from bail court
    and duty counsel had withdrawn  the trial judge should have conducted a more thorough
    plea comprehension inquiry.  Securing the appellants admission that the facts
    read in captured the basic gist of what happened was not good enough.  The
    record should demonstrate that the appellant agreed that he took a knife and
    put it to his wifes throat and that he intentionally hit his son.

[30]

While
    the appellants exchange with the trial judge indicates some initial waffling,
    what is pivotal in my view is that, in the end, the appellant made unequivocal
    admissions to facts that supported the offences to which he pleaded guilty. Nothing
    in the record suggests that the guilty pleas were qualified, modified or
    uncertain.

[31]

Moreover,
    the statements the appellant made to the trial judge during the sentencing
    submissions  that he was ashamed of the incident with his wife, that he had to
    learn to control his temper, that he was willing to participate in a partner
    abuse program  inform the conclusion that his pleas were unequivocal.  While
    the appellant qualified his conduct in relation to assaulting his son by
    explaining that he was frustrated with his sons behaviour, and that the
    physical contact was not forceful, this qualification did not affect the
    unequivocal nature of the appellants plea to having assaulted his son.

[32]

Finally,
    the evidence contained in the appellants affidavit attempting to explain why he
    pleaded guilty, notwithstanding his innocence, is not credible.  In key areas
    the appellants evidence is contradicted by that of duty counsel who advised
    him as to his plea.  For instance, duty counsels affidavit states that she was
    certain that she would not have advised the appellant that the effect of
    commencing an appeal would be to nullify the plea proceedings and admissions
    made in court, or to somehow place the appellant in the same legal position as
    he was before pleading guilty.  Duty counsels evidence is to be preferred for
    a number of reasons.  She has no interest in the outcome of this appeal and, in
    fact, supported the appellants position that in their conversation he denied
    the facts alleged against him.  In addition, it is unlikely that duty counsel
    would give the appellant such profoundly incorrect legal advice. Furthermore, the
    appellants additional evidence contains a number of internal inconsistencies. In
    his cross-examination, the appellant was evasive and argumentative.  For
    instance, when it was pointed out that the appellants recollection of what he
    said in court was not in the transcript, the appellants response was that the
    court reporter must have missed it.

[33]

In
    my view, there is nothing in the record of the proceedings before the provincial
    court judge, as augmented by the additional evidence placed before us, that
    detracts from the import of the appellants unequivocal admissions of guilt.

Were the pleas voluntary?

[34]

First,
    I note that the transcripts indicate that on both the Friday and the Monday
    court appearances the appellant was listening carefully, asking questions and
    understood what was taking place.

[35]

In
    my view the stress the appellant experienced did not rise to such a level that
    it impaired his ability to make a conscious choice.  While unquestionably
    difficult, the circumstances in which the appellant found himself were not
    unique.  Individuals must normally decide whether to plead guilty in difficult
    circumstances.  They are under pressure.  They are faced with options none of
    which are favourable. However, as this court has said, without more,
    circumstances such as these cannot invalidate a guilty plea, on appeal: see
R.
    v. Carty
, 2010 ONCA 237, 253 C.C.C. (3d) 469, at para. 37.

[36]

Considering
    the evidence as a whole, the appellants ability to make a conscious choice
    whether or not to plead guilty was not impaired and the pleas were voluntary.

Were the pleas informed?

[37]

As
    previously noted, in his affidavit the appellant asserts that he understood
    that if he pleaded guilty, so long as he appealed within 30 days of the date of
    convictions, the pleas would be automatically overturned.  Duty counsel denies
    that she would have said this to the appellant.  There is no evidence to
    support a finding that the appellants alleged misunderstanding was induced by
    duty counsel or by any action on the part of the state. During the plea
    comprehension inquiry by the trial judge, the appellant stated that he
    understood that he was surrendering his right to a trial and that he would be
    sentenced for a serious crime. And there can be no doubt that the appellant
    knew the charges he was pleading guilty to.

[38]

In
    my view, the appellant has not met the onus of establishing that his pleas did
    not meet the legal threshold for being informed.

Additional Issue  Nature of the
    Appellants Additional Evidence

[39]

Finally,
    in his additional evidence, the appellant admits that this request to withdraw
    his pleas is part of a scheme devised shortly after his arrest to deceive the
    court to enable him to get out of jail.  In my view, the appellant should not
    be allowed to manipulate the system to serve his own immediate purposes and
    then come to this court for an order for a do-over. As the court concluded in
R. v. Moser
(2002), 163 C.C.C. (3d) 286 (Ont. S.C.), at para. 42,
    citing
R. v. Gurney
, [2001] O.J. No. 2227 (C.A.), at para. 1: a valid
    guilty plea must not be disturbed by a calculated scheme designed to manipulate
    the system.

Conclusion

[40]

I
    am satisfied, on the basis of the amplified record, that the appellants pleas
    were voluntary and unequivocal and that he understood their true effect.  Allowing
    him to withdraw his pleas in these circumstances would undermine the
    overarching goals of certainty and finality that a guilty plea is intended to
    foster.

Disposition

[41]

Accordingly,
    while I have considered the appellants additional evidence, I would dismiss
    the appeal.

Released: March 16, 2015 (DW)

Gloria
    Epstein J.A.

I
    agree K.M. Weiler J.A.

I
    agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Midwinter, 2015 ONCA 150

DATE: 20150309

DOCKET: C57805

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Midwinter

Appellant

Antal Bakaity, for the appellant

Melissa Adams, for the respondent

Heard: February 20, 2015

On appeal from the conviction entered on August 14, 2013
    by Justice Kofi N. Barnes of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant, Andrew Midwinter, was charged with one count of
    possessing child pornography and one count of accessing child pornography
    contrary to sections 163.1(4) and (4.1) of the
Criminal Code
.
    Following a four-day trial, the appellant was convicted of possession of child
    pornography, but acquitted of accessing child pornography.

[2]

The appellant appeals his conviction primarily on the basis that the
    trial judge failed to analyze whether he had knowledge of the nature of the
    images contained in a folder entitled Movies, which had been deleted from his
    basement computer.

Summary of the facts

[3]

In the spring of 2009, the appellant became embroiled in a bitter
    custody dispute with his former wife, Wendy Midwinter, and her then husband,
    Stephen Shapcott.  The custody dispute concerned Adriana Midwinter, the
    daughter of the appellant and Wendy who, at that time, was living with Wendy
    and Stephen.

[4]

In June 2009, Stephen and Wendy provided an anonymous tip to the police
    alleging that the appellant possessed child pornography.  That month the police
    went to the appellants residence to investigate the tip, but they found no one
    at home.

[5]

On September 15, 2009, the police returned to the residence.  Rose
    Midwinter, the appellants wife, was home.  The police told her that they
    wanted to speak to the appellant about an old break and enter event in the
    neighborhood which they were investigating.  Rose phoned the appellant who, in
    turn, contacted the police.  The appellant agreed to meet the police at his home
    the next day, September 16, 2009.

[6]

When the police arrived at the Midwinter home on the morning of the
    16th, they told the appellant that they were investigating allegations of
    possession of child pornography.  The appellant consented to the removal of all
    computers and hardware drives from his home so that the police could search
    them for images of child pornography.  As a result of that search, the police
    discovered images of child pornography on a computer kept in the basement of the
    appellants home and for which he was the primary, but not exclusive, user.

[7]

The trial proceeded, in part, based on an Agreed Statement of Facts
    which set out the consensus findings of the parties respective computer
    forensic experts.  The appellant did not testify.

[8]

The trial judge rejected the defence theory that the appellant had been
    the victim of a conspiracy amongst Stephen Shapcott, Wendy Midwinter and Trisha
    Dorman, an older daughter of Wendy by another marriage, to plant child
    pornography on the appellants basement computer in order to distract him from
    the custody battle over Adriana.

[9]

The Agreed Statement of Facts stipulated that a folder on the
    appellants basement computer hard drive entitled Movies had contained 781
    total images of child pornography and 167 movies of child pornography. Some
    of the movies and images were found within various sub-folders within the
    Movies folder.  Approximately 2,400 total images of child pornography were
    found in other locations on the hard drive.

[10]

It
    was also agreed that on the evening of September 15, 2009, the Movies folder,
    and all of the folders and files within it, had been deleted from the hard
    drive using a program called WipeDisk.  The Agreed Statement of Facts contained
    a detailed chronology of the efforts undertaken by a user of the computer
    between 7:14 p.m. and 11:26 p.m. on the evening of September 15, 2009, to
    search for and download from the Internet several wipe drive software
    programs and to run the wipe drive program against the first partition on Hard Drive
    No. 1 on the basement computer.  That partition contained the Movies folder.

[11]

The
    trial judge concluded that the appellant had deleted the Movies folder on the
    evening of September 15, 2009 and he had knowledge and control of the Movies
    folder.  The trial judge was satisfied that the Crown had proved possession of
    child pornography beyond a reasonable doubt.

Analysis

[12]

To
    establish personal possession for the purposes of s. 4(3) of the
Criminal
    Code
, the Crown must establish that the accused had both control over and
    knowledge of the thing:
R. v. Morelli
, 2010 SCC 8, at para. 15.
    Control refers to power or authority over the thing, whether exercised or not:
R.
    v. Chalk
, 2007 ONCA 815, 88 O.R. (3d) 448 (C.A.), at para. 19.

[13]

In
    the context of data contained in an electronic file, in order to commit the
    offence of possession of child pornography, one must knowingly acquire the
    underlying data files and store them in a place under ones control:
Morelli
,
    at para. 66.

[14]

The
    requirement of knowledge encompasses two elements: the accused must be aware
    that he had physical custody of the thing in question and must be aware of what
    the thing is:
Morelli
, at para. 16.  Possession requires knowledge of
    the criminal character of the item in issue:
Chalk
, at para. 18.  Where
    the material in question reposes in an electronic file, the  court may draw
    inferences about an accuseds knowledge from circumstantial indicators such as
    ownership, access to, and usage of the computers on which the files are stored:
R. v. Braudy
, [2009] O.J. No. 347 (S.C.J.), at para. 52.

[15]

The
    appellant submits that the trial judge misapprehended the evidence by fixing
    him with knowledge that images contained in the deleted Movies folder on his
    basement computer were child pornography.  He further submits that there was
    absolutely no evidence that he had viewed, downloaded or organized the graphic
    content on the basement computer.

[16]

We
    do not accept these submissions.

[17]

The
    trial judge correctly instructed himself on the relevant legal principles
    relating to possession for the purposes of
Criminal Code
s. 4(3).

[18]

The
    Agreed Statement of Facts stated that pornographic images were organized into
    folders and sub-files and that the sub-folders within the Movies folder in
    which the 781 total images were found bore titles which included the words
    sexy child.  The findings of fact made by the trial judge in his reasons,
    based upon the Agreed Statement of Facts and the evidence led at trial, included
    the following:

(i)

The prohibited images found on the basement computer were child
    pornography;

(ii)

The appellant was the owner and the primary user of the basement
    computer, but multiple other users also had access;

(iii)

There was no evidence of any remote access to the basement computer;

(iv)

The theory that Wendy Midwinter and Trisha Dorman conspired to plant the
    child pornography images on the appellants basement computer was speculative
    at best;

(v)

It was illogical to expect those alleged conspirators would wipe out
    that which they had allegedly planted for the police to discover in the first
    place; and,

(vi)

The appellant deleted the Movies folder on the evening of September 15,
    2009, after learning that the police would visit his home the following day to
    talk with him.

After finding that the appellant had deleted the Movies
    file, the trial judge reached the following conclusion:

To do so, Mr. Midwinter had knowledge and control of the
    Movie file.  He had to know it was there to seek it.  He had to be able to
    control it to make the decision to delete it.

This court is satisfied that the Crown has proved the element
    of possession of child pornography beyond a reasonable doubt.

[19]

That
    the appellant knew the criminal nature of the images in the Movies folder was
    necessarily implicit in the trial judges conclusion that he had to know it
    was there to seek it, so that he could delete the images in the Movies folder
    before the police paid him a visit the following morning.  That was a logical
    inference for the trial judge to draw from the Agreed Statement of Facts and
    the other facts which he found.  We see no error in the trial judges reasoning
    or the conclusion which he reached on that point.

[20]

Finally,
    the appellant submits that his conviction on the count of possession of child
    pornography was inconsistent with his acquittal on the count of accessing child
    pornography.  We see no merit in this submission.  As the trial judges reasons
    disclose, the appellants acquittal on the accessing count was based on his
    assessment of the evidence regarding cached files resulting from Internet
    searches.  It was in that context that the possibility of other users of the
    computer to conduct Internet searches raised a reasonable doubt.  By contrast,
    the appellants conviction on the possession count was based on the evidence
    about the Movies folder stored on the computers hard drive and the trial judges
    conclusion that the appellant was the only person who enjoyed the opportunity
    to delete it in advance of the police visit.  There was no inconsistency
    between the two results.

[21]

For
    these reasons, the appeal is dismissed.

E.E. Gillese J.A.

David
    Watt J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nishida, 2015 ONCA 154

DATE: 20150310

DOCKET: C57428

Sharpe, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Nishida

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Gavin MacDonald, for the respondent

Heard: March 6, 2015

On appeal from the convictions entered on May 28, 2013
    and the sentence imposed on July 30, 2013 by Justice Frank J.C. Newbould of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

A police officer pulled over an SUV at the corner of Eglinton and Duplex
    in Toronto at approximately 3:17 p.m. one April afternoon, after it made an
    illegal left-hand turn.  The driver handed the police officer a drivers
    licence, which the officer noticed was expired.  The name on the drivers
    licence was Sherwin Maloney and the photo on the expired drivers licence was
    not that of the driver.  When the officer stepped onto the sidewalk to call the
    police station, the driver of the SUV sped off.  In the notes that the officer
    made contemporaneous with the event, he described the driver as an Asian male
    with pale skin and noticeably bad teeth, wearing a plaid shirt.

[2]

Shortly after the incident, the police officer contacted Sherwin Maloney
    who stated that he had lent the appellant his expired licence some time ago and
    he showed the police officer a photo of the appellant taken from the
    appellants Facebook page.

[3]

The central issue at trial was identification: was the appellant the
    individual driving the SUV?  The police officer testified, as did the
    appellant, who swore that he was at home watching television at the relevant
    time.

[4]

The trial judge gave extensive reasons for rejecting the defence
    evidence, including his alibi evidence, and accepting that called by the
    Crown.  He convicted the appellant of personation and obstructing a peace
    officer.  The appellant was sentenced to twelve months in prison and received an
    18-month driving prohibition.

[5]

The appellant appeals both conviction and sentence.

THE CONVICTION APPEAL

[6]

The appellant submits that the trial judge:

·

failed to subject the police officers identification evidence to
    a sufficient degree of scrutiny; and

·

applied a stricter standard of scrutiny to the defence evidence,
    with the result that he improperly shifted the onus onto the appellant to
    disprove his guilt.

[7]

We do not accept these submissions.  Ultimately, this case rests upon
    the trial judges factual findings of credibility and reliability and we see no
    basis for interference with them.

[8]

The appellant acknowledges that the trial judge correctly instructed
    himself on the dangers of eyewitness identification but says that the trial
    judge did not apply a suitably high standard of caution when analyzing the
    police officers testimony.  In our view, the trial judges reasons show that
    he was suitably cautious and that he gave sufficient reasons for accepting that
    evidence, including that:

·

the police officer was acting in the execution of his duties at
    the time he observed the driver   it was not a casual observation by a
    disinterested person;

·

the interaction took place in daylight when the officer was only
    a few feet away from the driver  it was neither fleeting nor a split-second
    observation;

·

the officer had a good look at the driver, as evidenced by the
    contemporaneous description which he made in his notebook;

·

the officers notes remarked on the appellants bad teeth, a
    distinctive feature on which all of the Crown witnesses commented, and

·

the appellants admitted possession of an expired drivers
    licence given to him by Sherwin Maloney supported the officers eye witness
    identification.

[9]

We see nothing in the submission that the trial judge shifted the burden
    of proof.  The defence evidence raised a number of issues that the trial judge
    was obliged to deal with.  He also spent considerable time in his reasons
    explaining why he disbelieved the appellant and rejected the other defence
    evidence to the point that it did not raise a reasonable doubt.  The trial
    judges detailed assessment of the defence evidence does not equate to a higher
    standard of scrutiny or a shifting of the burden of proof.

[10]

Nor
    do we agree that the cross-examination of the police officer raised a
    credibility issue that the trial judge failed to resolve. Mr. Di Luca contends
    that certain questions and answers from the officers cross-examination can be
    read as indicating that it was not until the officer met with Sherwin Maloney
    that he realised that the photo on the licence was not that of the driver of
    the SUV and that the trial judge failed to resolve the contradiction.

[11]

We
    disagree. The police officer was clear in his evidence that he realized as the
    driver fled that the photo on the licence was not that of the driver whereas his
    evidence on cross-examination was, at best, equivocal.

THE SENTENCE APPEAL

[12]

The
    appellant submits that the trial judge erred in principle by imposing a
    one-year jail sentence.  He says that the trial judge overemphasized the need
    for denunciation and deterrence and failed to properly consider the principle
    of restraint and the objective of rehabilitation.

[13]

We
    do not agree.

[14]

The
    appellant concedes that he has an unenviable criminal record.  While many of
    his prior convictions relate to drugs, his record also includes two prior
    convictions for obstructing a peace officer.  The second of those convictions
    predates the current offences by only three months.  The appellants record
    also includes convictions showing a long disregard for court orders: failing to
    comply with a recognizance, failing to comply with an undertaking, and
    convictions under the
Highway Traffic Act
, R.S.O. 1990, c. H.8,
for driving without a permit,
    driving with a suspended license, and using a license plate not authorized for the
    vehicle.  Moreover, the appellant was serving a conditional sentence (for a
    drug-related offence) at the time he committed the offences in question.

[15]

The
    trial judge considered the range established by the authorities and concluded that,
    given the deliberate nature of the offences and the appellants prior related
    convictions, deterrence and denunciation played a significant role.  While the
    sentence is at the high end of the range, we cannot say that it is outside the
    range or otherwise unfit, for these offences and this offender.

DISPOSITION

[16]

Accordingly,
    the conviction appeal is dismissed, leave to appeal sentence is granted and the
    sentence appeal is dismissed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

M.L. Benotto J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poulos, 2015 ONCA 182

DATE: 20150317

DOCKET: C53022

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Poulos

Appellant

David Humphrey, for the appellant

Amy Alyea, for the respondent

Heard: February 11, 2015

On appeal from the convictions entered on November 10,
    2010 by Justice C.D.A. McKinnon of the Superior Court of Justice, sitting
    without a jury.

LaForme J.A.:

INTRODUCTION

[1]

After a two-day trial, the trial judge convicted the appellant on two
    counts of sexual assault. The two complainants had waitressed at the
    appellants restaurant during different times. Both testified that they quit
    their jobs because they could not tolerate the appellants sexual touching and
    sexual comments.

[2]

After the Crown led evidence from the two complainants and closed its
    case, the trial judge asked to see counsel in his chambers and suggested a plea
    bargain. The appellant was not present during this discussion. The matters
    discussed in chambers in the appellants absence were not repeated on the
    record.

[3]

The appeal turns on the propriety of this judge-initiated mid-trial
    discussion. The appellant seeks to introduce fresh evidence to establish that the
    trial judges conduct deprived him of his right to be present throughout his
    trial as guaranteed by s. 650(1) of the
Criminal Code
, which requires
    the presence of an accused during the whole of his or her trial. He also
    argues that the mid-trial discussion, in conjunction with the trial judges
    questioning of a defence witness, gives rise to a reasonable apprehension of
    bias.

[4]

The fresh evidence consists of affidavits sworn by the appellant,
the appellants son (a civil lawyer), the

trial
    Crown and the trial defence counsel, and a transcript of the cross-examination
    on each affidavit.

[5]

Each of the affidavits describes the trial judges in-chambers comments
    in a slightly different way, but the essence remains the same. The trial judge
    said that the two complainants had testified well or had been "good
    witnesses". He then observed that the complainants had testified to
    relatively minor assaults and suggested that the parties resolve the case by
    guilty pleas

to common assault.

[6]

The appellant recalls that his trial counsel reported to him after the
    meeting and told him that the trial judge said he was impressed with the two
    complainants and that the defence faced an "uphill battle". The trial
    judge suggested that the Crown and the defence work out a plea to common
    assault.

[7]

When court convened for the afternoon session, the trial resumed without
    anyone referencing the in-chambers discussion. The defence called a number of
    witnesses, including several who testified to the appellants reputation for
    honesty. The appellant also testified and denied the allegations. The trial
    judge convicted him of sexually assaulting both complainants.

ISSUES

[8]

The appellant raises three related grounds of appeal: (i) the trial
    judge exhibited a reasonable apprehension of bias; (ii) the trial judge
    excluded the appellant
from a portion o
f his trial contrary to s. 650(
1) of the
Criminal Code
;
and
(iii)
the trial judge created the appearance of prejudgment
    and unfairness by asking challenging questions of
a
defence witness.

1.  The Crowns position

[9]

The Crown concedes that the mid-trial in-chambers discussion fell
    outside the exceptions to s. 650(1). However, she argues that the evidence as a
    whole, including the fresh evidence, demonstrates that the appellant did not suffer
    prejudice and that the mid-trial conference did not create a reasonable
    apprehension of bias. Therefore, the
curative proviso
at s.
    686(1)(b)(iv) of the
Criminal Code
should apply. She offers a number
    of points in support.

[10]

First,
    the in-chambers discussion was brief and neither experienced defence counsel
    nor anyone else adverted to the appellants absence. Second, defence counsel
    immediately apprised the appellant of the discussion. Third, defence counsel
    did not apply for a mistrial nor did he discuss that possibility with the
    appellant. In his view, there were no grounds for a mistrial. Fourth, by his
    comments in the meeting, the trial judge does not appear to have made up his
    mind about the outcome of the trial. Fifth,
the appellant did
    not modify his behaviour as a result of the in-chambers meeting  he always
    intended to and in fact did plead not guilty, testify and call evidence.

[11]

In sum, the Crown argues, the mid-trial discussion had no apparent
    or actual effect on trial fairness.

[12]

I
    disagree with the Crown and would allow the appeal. The appellant was excluded
    from a portion of his trial in violation of s. 650(1). At the close of the
    Crowns case, the trial judge initiated a mid-trial conversation about the
    resolution of the trial in the absence of the appellant. In a judge-alone criminal
    trial, such a conversation will always prejudice the fair trial interests of
    the accused. Therefore, the
curative proviso
does not apply.

2.  The fresh evidence

[13]

Before
    addressing the merits of the appeal, I propose to speak to the appellants
    fresh evidence application. In support of his application, the appellant relies
    on the well-known test
for admission of fresh
    evidence set out in

R
.

v.
Palmer
(1979), [1980] 1 S.C.R. 759, at 775
.
Palmer
requires that the evidence:  (i)
    could not, through the exercise of due diligence, have been adduced at trial;
    (ii) must be relevant in that it bears on a decisive or potentially decisive
    issue; (iii) must be reasonably capable of belief; and (iv) must be such that,
    if believed, it could reasonably be expected to have affected the result at
    trial.

[14]

The
Palmer
criteria speak to new evidence tendered in relation to a
    factual or legal issue at trial. The
Palmer
criteria do not apply
    where, as here, a party submits fresh evidence to attack the validity of the
    trial process. In such a case, the court will admit the fresh evidence as long
    as it complies with the normal rules of evidence: see
R. v. W.(W.)
(1995), 25 O.R. (3d) 161 (C.A.), at 169-70; see also
R. v. Taillefer
,
    2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 76-77.

[15]

As
    my colleague, Doherty J.A., noted in
W.(W.)
, at paras. 169-70, this
    court's authority to receive evidence on appeal resides in s. 683(1) of the
Criminal

Code
, which provides that the court may receive evidence on appeal
    where it is "in the interests of justice" to do so. The
    "interests of justice" in this case require that the court admit the
    affidavits and the cross-examinations on those affidavits to determine whether the
    mid-trial in-chambers discussion in the absence of the appellant violated s.
    650 and prejudiced the appellants right to a fair trial.

[16]

I
    will now turn to the merits of the appeal.

ANALYSIS

[17]

On
    the facts of this case, the appellant was denied his right to be present in
    court during the whole of his... trial. T
he Crown quite
    appropriately concedes the s. 650(1) breach, but argues that the
curative
    proviso
should save the verdict.

[18]

Not
    every in-chambers discussion will constitute part of the accuseds trial. The
    classification of an in-chambers discussion as part of the trial will depend on
    whether the context and contents of the discussion involved or affected the
    vital interests of the accused or whether any decision made bore on the
    substantive conduct of the trial:
R. v. Simon
, 2010 ONCA 754, 104
    O.R. (3d) 340, at para. 116, leave to appeal refused, [2010] S.C.C.A. No. 459.

[19]

In
    this case, the discussion of the evidence and of a possible plea bargain
    involved or affected the vital interests of the appellant. This inevitably
    arose once the trial judge expressed a view about the complainants testimony
    and proposed that the accused enter a guilty plea, although to a lesser and included
    offence.

[20]

This
    court has warned that the default position in all criminal trials is that any
    conversation involving trial counsel and the judge ought to take place in the
    [accuseds] presence, in open court, and on the record:
R. v. Dayes
,
2013 ONCA 614, 117 O.R. (3d) 324,
at para. 68.
    Such a practice would avoid the time-consuming and occasionally discomforting
    inquiry into whether this court can salvage a verdict tainted by a s. 650(1)
    violation through resort to the
curative proviso
.

[21]

In
    spite of the cautions, however, in-chambers discussions without the accused
    continue to take place. Some of those discussions, as here, canvas ways and
    means of resolving the trial. For the following reasons, such discussions
    constitute an error of law for which the appropriate remedy is a new trial.
    That is to say, where a trial judge in a criminal judge-alone trial initiates
    discussions with counsel after the commencement of the trial about the
    possibility of a resolution  in other words, a plea bargain  in the absence
    of the accused, trial fairness will be compromised such that the
curative
    proviso
will not salvage the verdict.

The s. 650(1) breach and the
curative proviso

[22]

This
    case is very similar to
R. v. Schofield
, 2012 ONCA 120, 109 O.R. (3d)
    161, where this court made it abundantly clear that a breach of s. 650(1), in
    circumstances such as those on this appeal, is fatal to trial fairness.

[23]

MacPherson
    J.A. writing for the court, observed that an in chambers discussion with
    counsel about a possible plea clearly affected the appellants vital interests
    and triggered his right to be present under s. 650 of the
Criminal Code
.
    He further held that the absence of the accused during those discussions, that
    were vital to his interests, undermined the fairness and openness of the trial.

[24]

I agree with my colleagues analysis. An accused is entitled to
    have first-hand knowledge of matters vital to his interests as they unfold at
    trial so that he can properly seek and receive legal advice and otherwise
    properly exercise his right to make full answer and defence. Furthermore the
    accuseds presence, when matters vital to his interests are being discussed,
    brings a transparency and appearance of fairness to those proceedings that
    would otherwise be lacking
.

[25]

In my view,
Schofield
has direct application here. Just
    as in
Schofield
, the in chambers discussions in the absence of the
    accused violated s. 650. And, just as in
Schofield
, the Crown cannot
    demonstrate that the violation of s. 650 did not prejudice the appellant.

CONCLUSION

[26]

In
    this case, the trial judge,
after hearing the testimony of two
    Crown witnesses,
initiated a mid-trial discussion in the absence of the
    accused about a possible plea bargain. The discussion was a manifest breach of
    s. 650(1). Though he acted with the best of intentions, the trial judge
    undercut the presumption of innocence and compromised trial fairness. In such
    circumstances, I would not apply the
curative proviso
under s.
    686(1)(b)(iv).

DISPOSITION

[27]

For
    the above reasons, I would admit the fresh evidence and allow the appeal. I
    would set aside the convictions and order a new trial.

Released: DD MAR 17 2015

H.S. LaForme J.A.

I agree. Doherty
    J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rose, 2015 ONCA 183

DATE: 20150317

DOCKET: C55559

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Conroy Rose

Appellant

Richard Litkowski, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: March 12, 2015

On appeal from the conviction entered on September 13,
    2011 by Justice Wolfram Tausendfreund of the Superior Court of Justice and the
    forfeiture order of Justice Lynn Leitch of the Superior Court of Justice dated
    August 24, 2012.

ENDORSEMENT

[1]

We are not persuaded that the trial judge made a palpable and overriding
    error in holding that the police officer who drafted the information to obtain
    (ITO) made an innocent mistake  without any intent to mislead in relation
    to the drafting errors in the ITO.

[2]

However, even assuming the police officer was negligent in making the
    drafting errors, we are not persuaded that trial judge erred in finding the
    search warrants could have issued. In reaching this conclusion, we have
    considered that certain erroneous information should be excised from the ITO
    (namely, that the confidential informant had no criminal record for misleading
    police or for offences of dishonesty); and that certain information omitted
    from the ITO (concerning the confidential informants criminal record and
    outstanding charges and the amount of money found on the appellants person
    when he was arrested) should have been included in the ITO. Nonetheless, taking
    account of the totality of the circumstances (including the post-tip
    surveillance of the appellant by the police and their prior knowledge of him),
    we conclude that the search warrants could have issued.

[3]

In the result, we need not consider s. 24(2) of the
Charter
.

[4]

The appeal is therefore dismissed.

Janet Simmons
    J.A.

R.G. Juriansz
    J.A.

K. van Rensburg J.A.