COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paredes, 2014 ONCA 910

DATE: 20141219

DOCKET: C53209

Doherty, Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edward Paredes

Appellant

Richard Posner, for the appellant

Lorna Bolton, for the respondent

Heard: November 17, 2014

On appeal from the conviction returned by a jury on April 1,
    2010 and the sentence imposed on October 25, 2010 by Justice M. Benotto of the
    Superior Court of Justice.

Doherty
    J.A.:

I

[1]

The appellant was convicted of second degree
    murder and sentenced to life imprisonment without eligibility for parole for 15
    years.  He appeals his conviction and sentence.  His co-accused was convicted
    of manslaughter.  He has not appealed.

[2]

The appellant shot and killed John OKeefe as
    Mr. OKeefe was walking north on Yonge Street near the Brass Rail Tavern at
    about 1:15 a.m.  The appellant and the co-accused had been removed from the
    tavern by the bouncers shortly before the shooting.   It was the Crowns
    position that the appellant, who was armed with a loaded handgun, was angry
    with the bouncers for evicting him and humiliating him in the process.  The
    Crown contended that the appellant fired the gun at the bouncers but missed and
    killed Mr. OKeefe.  Mr. OKeefe had nothing to do with the appellant or the
    events in the Brass Rail Tavern.  He just happened to be walking up Yonge
    Street.  The Crown relied on the transferred intent doctrine in s. 229(b) of
    the
Criminal Code of Canada
, R.S.C. 1985, c. C-46.

[3]

The appellant pled guilty to the included
    offence of manslaughter but that plea was not accepted by the Crown.  In his
    testimony he acknowledged that he had unlawfully caused Mr. OKeefes death and
    was guilty of manslaughter.

[4]

The appellant testified that he had not intended
    to kill or harm anyone but only intended to frighten the bouncers.  He
    testified that he fired the gun in the air to the left of the area where the
    bouncers had been standing.  According to him, the bouncers had moved back
    inside of the vestibule of the tavern just before he fired his gun.

[5]

The appellant acknowledged that he was very angry
    with the bouncers for the way they had treated him.  At the same time he
    testified that he was sufficiently in control of himself to make the decision
    to fire away from where the bouncers were positioned.

[6]

In addition to instructing the jury on the
    question of intent, the trial judge left the defence of provocation with the
    jury.  The appellants evidence, and that of his co-accused, provided an
    evidentiary basis for the defence of provocation.  The trial judge properly
    left provocation with the jury.

II

[7]

The appellant advances three grounds of appeal.
    The first alleges that the Crown engaged in improper cross-examination of the
    appellant.  The second ground of appeal challenges the trial judges
    instructions on the evidence relevant to the issue of intent and the third
    alleges errors in the instructions on provocation.  Counsel alleged several
    specific errors in the instructions on intent and provocation.  He also
    submitted that the cumulative effect of those specific errors tilted the charge
    in favour of the Crown and rendered the trial fundamentally unfair.  The merits
    of this omnibus ground of appeal depend to a large extent, on the merits of the
    more specific grounds of appeal challenging the instructions on intent and
    provocation.  I will address the specific grounds first and then turn to the
    broader unfairness claim.

The Crowns cross-examination

[8]

In the course of a lengthy cross-examination
    Crown counsel put the evidence of various witnesses to the appellant and asked
    him whether he agreed or disagreed with that evidence and if he disagreed with
    the evidence, how his version of the events differed from the evidence of those
    other witnesses. I see nothing improper in this approach on cross-examination.
    The Crown was entitled to put the substance of the evidence of the other
    witnesses to the appellant and to determine the extent to which the appellants
    version differed from the evidence of the other witnesses.  The Crown did not
    ask the appellant to comment on the reliability or credibility of any other
    witness.  Nor did the Crown ask the appellant to explain any differences
    between his evidence and the evidence given by the other witnesses.

[9]

The format followed by the Crown now said to
    have been unfair was the very format that defence counsel at trial insisted
    should be followed.  On at least two occasions during the cross-examination,
    defence counsel admonished the Crown for failing to put the specifics of the
    evidence of other witnesses to the appellant when asking the appellant whether
    he agreed with or disagreed with that evidence.

[10]

Obviously the Crown used the approach that it
    did in an effort to demonstrate the strength of the Crowns case by placing the
    Crown evidence beside the appellants testimony.  This may or may not have been
    effective advocacy.  It was not however improper cross-examination and did not
    in any way undermine either the appearance or the actual fairness of the trial.

[11]

Crown counsel did make one unnecessary and
    inappropriate comment in response to a comment made by the appellant during the
    cross-examination of the appellant. I need not set out the specifics of the
    comment.  On any reading the comment cannot be characterized as inflammatory.  Nor,
    as an isolated comment in an otherwise proper cross-examination could it
    possibly have affected the fairness of the trial.

[12]

I also reject the submission that the Crown
    improperly cross-examined the appellant about his attitude and behavior while
    in the Brass Rail Tavern.  It was the Crowns position that the appellant was
    playing the role of a gangster who was above the rules of the bar and the
    authority of the proprietors. According to the Crowns theory this attitude led
    to the appellants removal from the bar, which in turn precipitated the
    confrontation with the bouncers on the street.

[13]

The appellants attitude in the bar was integral
    to the narrative and theory advanced by the prosecution.  Cross-examination directed
    at the appellants conduct and attitude in the bar was appropriate.

[14]

Counsel for the appellant also suggests that the
    tone of the cross-examination was prejudicial.  He describes the
    cross-examination as distinctly abusive and mocking.  We are limited to the
    printed word in assessing this argument.  The transcript reads as neither
    abusive nor mocking.

The instructions on intent

[15]

The
    trial judge properly identified the
mens rea
required for murder.  She
    reviewed the relevant evidence, but only after making it clear to the jury that
    she did not intend to review all of the evidence and that it was their
    recollection of the evidence that mattered.  The jury clearly understood this
    direction and took it to heart as evinced by their questions requesting the
    re-reading of extensive parts of the evidence relating to the appellants ejection
    from the bar and the subsequent events.  The jurys questions leave no doubt
    that it understood that it was obliged to review the entirety of the evidence
    and make its own determination of the relevant facts.

[16]

The
    appellant makes four specific objections to the instructions relevant to
    intent.  Two relate to the failure to refer to evidence and two relate to
    comments by the trial judge that allegedly undercut the defence position on
    certain evidence.

[17]

The
    appellant submits that the trial judge failed to review with the jury the
    appellants evidence that the bouncers had gone back inside the tavern before
    he fired the gun.  Counsel also submits that the trial judge failed to review
    with the jury the evidence of the witness Smilis, an off-duty police officer to
    the effect that the appellant did not appear to aim the gun when he fired it.

[18]

A
    trial judge is not obliged to refer to every piece of evidence that is relevant
    to an issue when reviewing evidence with a jury.  Some evidence may however be
    so crucial to a proper appreciation of a specific issue, or the position of a
    party on that issue, that it must be included in the trial judges review of
    the evidence.

[19]

The
    two pieces of evidence referred to by counsel were potentially helpful to the
    appellants position that he did not fire at the bouncers.  I note, however, that
    the potential value to the defence of both answers was qualified to some extent,
    one by the nature of the question asked, and the other by parts of the
    cross-examination.  Even with those qualifications however, the evidence was
    potentially helpful to the appellant.

[20]

I
    need not decide whether the evidence not referred to by the trial judge was so
    central as to require a reference to it in her instructions on intent.  The
    trial judges failure to refer to the evidence loses its significance in the
    face of the jurys request to have testimony that included the appellants
    evidence and the evidence of Smilis re-read during its deliberations.  The
    re-reading of the evidence leaves no doubt that the jury was aware of the
    appellants evidence that the bouncers had gone back into the tavern and Mr.
    Smilis testimony that the appellant did not appear to aim the gun.  The
    relevance of that evidence to the appellants intent would be obvious to the
    jury.  I am satisfied that the jury, following the instructions given by the
    trial judge, considered all of that evidence in arriving at its verdict.

[21]

The
    appellant also argues that the trial judge unfairly undermined the appellants
    evidence that he was an accurate shot and could have hit the bouncers, had he
    desired to do so. The appellant had told the jury about his experience at the
    shooting range when being trained in the use of a firearm.  The trial judge summarized
    that evidence but then added:

There is no evidence however, of his accuracy in a situation
    where he is outside, angry, upset, running forward and then shooting.

[22]

The
    trial judges observation is self-evident and was in all likelihood unnecessary.
    Standing alone it causes no harm.  The jury would no doubt appreciate the very
    real difference between firing a gun accurately in the controlled setting of a
    shooting range, and firing a gun accurately in the circumstances described in
    the evidence.

[23]

The
    real mischief in this kind of comment lies in its potential to suggest to the
    jury that the trial judge, by immediately following a reference to evidence
    favourable to the appellant with a Crown counterpoint, has aligned herself with
    the Crown.  The impact of the comment can however only be determined in the
    context of the entire jury instruction.  I will consider that possibility when
    addressing the omnibus unfairness claim.

[24]

The
    fourth submission relating to intent arises out of the instruction concerning
    the jurys viewing of the relevant videos.  These videos were taken from
    various surveillance cameras and presented a frame-by-frame depiction of some
    of the relevant events.  The trial judge reminded the jury that the key events
    had happened very quickly.  She noted that the frame-by-frame depiction of
    those events in the videos could suggest that the events had occurred at a much
    slower pace.  She cautioned the jury to guard against being misled by the
    videos.

[25]

The
    instruction was a proper one.  The risk identified by the trial judge was a
    real one.  It was appropriate for the trial judge to alert the jury to that
    risk.  Her comment was not calculated to assist either the Crown or the
    defence.  Indeed the appellant in his testimony repeatedly referred to the
    speed at which the events had unfolded in explaining why he did what he did and
    why he could not offer a more precise explanation for some of the events.  The
    trial judges instruction cautioning the jury against being misled by the
    frame-by-frame videos tended to reinforce the appellants evidence about the
    speed at which the relevant events had occurred.

The provocation instructions

[26]

Although
    counsel made submissions in his factum challenging the trial judges
    description of the legal elements of the defence of provocation, he did not
    pursue those arguments in his oral submissions.  I see no error in the trial
    judges description of the constituent elements of the defence of provocation.

[27]

Counsel
    for the appellant alleges several specific errors in the provocation
    instruction.  First, he submits that the trial judges failure to specifically
    advert to the defence of provocation and the evidence capable of supporting
    that defence when putting the position of the appellant to the jury, unfairly
    minimized that defence in the eyes of the jury.

[28]

This
    submission requires a reading of the entirety of the charge.  The trial judge
    explained the defence of provocation to the jury and outlined to them the
    evidence relevant to the elements of that defence.  Later in her charge, the
    trial judge summarized for the jury the positions of the parties.  In doing so,
    she read from the prepared statements provided to her by counsel.  The
    statement prepared by counsel for the appellant made no reference to
    provocation as a separate defence.

[29]

The
    trial judge is obligated to instruct the jury on all defences that arise on the
    evidence.  The jury must understand that the defence is available, the elements
    of the defence, the evidence relevant to the defence, and the position of the
    parties.  The trial judge made all of those things clear to the jury in her
    instructions on provocation.

[30]

Trial
    counsel decided not to include any reference to provocation in the statement of
    the position of the defence he provided to the trial judge.  He knew that the
    trial judge intended to read the statement to the jury as the position of the
    defence.  I do not see how it could be said that the trial judge committed
    reversible error by failing to add a reference to the defence of provocation to
    the written position of the defence provided to her by counsel.  In this part
    of her instruction, the trial judge was outlining the position of the parties
    as the parties wanted those positions put to the jury.  She might well have
    been criticized had she chosen to add a reference to provocation to the
    position as expressed by defence counsel.

[31]

Counsels
    tactical decision not to refer to provocation in outlining the position of the
    defence, did not relieve the trial judge of the obligation to properly put the
    defence to the jury.  However, she did so in the part of her instructions
    specifically directed at the defence.  There is no error in not going back to
    that defence in the part of the charge dedicated to the position of the parties
    as put by the parties.

[32]

Counsel
    next submits that the trial judge overstated the degree of loss of control
    needed to support a provocation defence.  He submits that the trial judge made
    it appear as though the appellants ability to make any decisions negated the
    defence.

[33]

I
    do not read the charge that way.  The trial judge was obligated to relate the
    evidence to the elements of the defence of provocation.  That evidence included
    the appellants evidence that although he was very angry, he remained
    sufficiently in control of himself to decide where to aim the gun when firing
    it and to deliberately aim so as to miss the bouncers.  The appellants
    description of his state of mind when he fired the gun was to some extent,
    inconsistent with the loss of self-control that is the hallmark of the
    provocation defence.  The problem for the appellant lies not in how the trial
    judge described the elements of provocation, but in his own evidence describing
    his state of mind.

[34]

Counsel
    for the appellant also argued that the instruction that the jury could look to
    the appellants evidence in determining the applicability of the defence of
    provocation was inconsistent with the instruction that the jury should look to
    the question of provocation only after finding that the appellant had the
    intent required for murder.  Counsel submitted that the jury could only find
    that the appellant had the intent for murder if it rejected his evidence as to
    his state of mind.  Consequently, that evidence would have been rejected before
    the jury reached the question of provocation and it should not have been left
    with the jury as relevant to the provocation defence.

[35]

I
    cannot accept this submission.  The Crown argued that the appellants evidence
    that he deliberately intended to miss the bouncers when he fired, should not be
    believed.  The Crown also argued that the appellants description of his mental
    state should be accepted to the extent that it demonstrated that he was in
    control of his decision-making faculties.  There is nothing inherently
    inconsistent in these two propositions.  The former speaks to the veracity of
    the appellants description of the decision he made, that is, to shoot away
    from the bouncers, and the latter speaks to the veracity of his stated ability
    to decide the direction in which he would shoot.  The Crown argued that the
    jury should believe the appellants evidence that he made a decision as to the
    direction in which he would aim and fire the gun, but should reject his
    evidence that he decided to fire the gun in a direction other than at the
    bouncers.

[36]

Counsel
    next argues that the trial judge, in referring to evidence relevant to the
    defence of provocation, should not have referred to the evidence of the
    statement that the appellant gave to the police after his arrest.  In the
    statement, the appellant had explained that he was angry with the bouncers
    because he and his co-accused had been removed from the bar and assaulted by
    the bouncers for no reason.  The appellant said nothing in the statement
    about any taunting language or insults uttered by the bouncers.  The Crown
    argued that the appellants failure to refer to the insults or taunting in his
    statement could be used by the jury in assessing the credibility of the
    appellants testimony that the bouncers had in fact insulted him and called him
    names.

[37]

The
    trial judge told the jury that it could consider that the appellants failure
    to refer to the insults or taunting in his statement to the police when assessing
    the credibility of that part of his testimony.  I think the instruction was
    correct.  The failure to mention the taunting or insults could have some
    negative impact on the credibility of the appellants testimony that he was provoked
    in part by the bouncers language.  The extent to which the failure to mention
    the taunts and insults undermined the credibility of this testimony was
    entirely for the jury.  The trial judge did not give the evidence any
    prominence, but simply referred to it in the course of an extensive review of
    different parts of the testimony relevant to the elements of the provocation
    defence.

[38]

Counsel
    for the appellant also submits that the trial judge erred when she told the
    jury that it could consider the appellants evidence about his reaction when
    robbed at gunpoint several months earlier, to assess the appellants contention
    that he had lost his self-control when assaulted and insulted by the bouncers.
    On the appellants evidence, he had remained calm when robbed at gunpoint.
    This argument was not made by the Crown at trial and for good reason.  The
    evidence of the appellants reaction when robbed at gunpoint could not possibly
    help the jury in its assessment of the appellants reaction in response to the
    alleged provocative conduct of the bouncers.  The two situations are completely
    different.  The appellants reaction as the victim of an armed robbery could
    not reasonably provide any insight into his reaction when allegedly taunted and
    assaulted by the bouncers.  Furthermore, the appellants reaction on being
    robbed was not developed in the evidence at trial.  That evidence was offered
    solely to explain the appellants decision to carry a gun when he went to the
    bar. Neither the Crown nor the defence saw the evidence as having any relevance
    to provocation.  The appellants limited testimony about the earlier robbery
    reflects very narrow ground upon which the evidence was advanced.

[39]

Standing
    alone, the trial judges instructions that the evidence of the robbery was
    relevant to whether the appellant had lost his self-control when he fired the
    shot that killed Mr. OKeefe would not amount to reversible error.  I am
    satisfied that the jury would appreciate the pronounced differences between the
    two situations and gain little insight into the appellants state of
    self-control when he fired the shot that killed Mr. OKeefe by referring to his
    level of self-control when he was the victim of an armed robbery.  However, the
    appellant points to this instruction as one example, perhaps the best example,
    of the trial judge using the jury instructions to advance the case for the
    Crown.  This leads to a consideration of the omnibus unfairness argument.

Did the jury instructions render the trial unfair?

[40]

As
    set out above, my review of the specific arguments raised by the appellant
    reveals one error in the jury instructions.  I have also referred to one other
    instance when it could reasonably be said that the trial judge appeared to be
    arguing the Crowns case (see
supra
para 21).  Apart from those two
    passages however, the jury instruction was even-handed, thorough and legally
    correct.

[41]

Allegations
    of unfairness necessarily engage an assessment of the charge as a whole. Only
    through that assessment can an appellate court get a true sense of whether a
    trial judge has deliberately or inadvertently placed her thumb on the Crowns
    side of the scales of justice.  Having read the jury instructions several
    times, I do not get the sense that the trial judge was steering the jury in the
    Crowns direction.  Rather than improperly invading the jurys domain, the
    trial judge repeatedly brought home to the jury its obligation to thoroughly
    review all of the evidence before making the findings necessary to their
    verdict. The entirety of the record, particularly the questions put by the jury
    concerning the details of the evidence, satisfies me that the jurys verdict is
    a reflection of a full and independent analysis of the evidence.

III

The sentence appeal

[42]

The
    appellant received the mandatory sentence of life imprisonment.  Only one
    member of the jury recommended an increase in parole ineligibility beyond the
    10 year minimum.  That juror recommended a 12-year period of parole
    ineligibility.  The trial judge imposed 15-year period of parole ineligibility.

[43]

The
    trial judge properly emphasized the tragic circumstances of the murder and the
    harm caused by the appellant.  Mr. OKeefes senseless death is a profound loss
    not only to his family and friends but to the community as a whole.  We are all
    worse off without Mr. OKeefe.

[44]

This
    court and others have repeatedly identified gun violence, particularly in
    Toronto, as a pressing and very serious problem.  The need to denounce and
    deter the appellants conduct, justified some extension of the period of parole
    ineligibility.

[45]

There
    are however features of this case which distinguish it from the vast majority
    of crimes involving gun violence, particularly homicides.  The appellant had a
    licence for the gun and had purchased the gun lawfully, although his possession
    of the loaded gun in the bar was itself a serious crime.  Most significantly,
    the appellant who was 22 years old at the time of the offence had no criminal
    record and no prior involvement with the criminal law or illicit gun use.  This
    offence was very much out of character for the appellant.  Bearing in mind the
    appellants age, his antecedents and his strong family support, there is good
    reason to think that the appellant could one day be a responsible and
    productive member of the community.

[46]

This
    court must show deference the trial judges balancing of the competing factors
    relevant to sentencing.  Crown counsel relies on that deference and points to
R.
    v. Danvers
, [2005] O.J. No. 3532, as a case that is similar to this one in
    many ways.  In
Danvers
, this court reduced an 18-year period of parole
    ineligibility to 15 years.

[47]

Danvers
is a helpful precedent.  Like this case, it is an example of gun violence that
    led to murder.  The accused in
Danvers
however, had an extensive
    criminal record including gun-related offences.  His personal circumstances
    were, in most respects, the polar opposite of this appellants.  The accused in
Danvers
showed little potential for rehabilitation.

[48]

With
    respect, I think the trial judge lost sight of the appellants personal
    circumstances and his real potential for rehabilitation and concentrated
    exclusively on the need for deterrence and denunciation.  While those principles
    deserved paramount consideration, they were not the only principles to be
    considered.  In my view, giving proper emphasis to denunciation and deterrence while
    also factoring in the appellants real rehabilitative potential would yield a
    parole ineligibility period of 12 years.  I would vary the sentence
    accordingly.

Conclusion

[49]

I
    would dismiss the conviction appeal.  I would allow the sentence appeal and
    vary the sentence to life imprisonment without eligibility for parole for 12
    years.

Released: December 19, 2014 (D.D.)

Doherty J.A.

I agree John Laskin J.A.

I agree C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Poirier, 2014 ONCA 875

DATE: 20141205

DOCKET: C59149

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Joseph Poirier

Appellant

Alison Craig, for the appellant

Melissa Adams, for the respondent

Heard and released orally: December 1, 2014

On appeal from the sentence imposed on May 30, 2014 by
    Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant raises three grounds of appeal from the net sentence of
    two years seven months imposed on his plea of guilty to an offence under s.
    95(1) of the
Criminal Code
. Ms. Craig submits that the trial judge
    erred in:

i.

reaching conclusions not supported by the Agreed Statement of Facts or
    evidence;

ii.

imposing a sentence that was unduly harsh and excessive having regard to
    all the circumstances of the case; and

iii.

failing to apply the appropriate credit for the appellants harsh bail
    conditions in advance of trial.

[2]

We do not agree.

[3]

In our view, the sentence imposed fell within the appropriate range of
    sentence for this offence and offender. Denunciation and deterrence were the
    predominant sentencing principles. We are not persuaded that the trial judge
    ignored the appellants rehabilitative prospects. While relatively youthful,
    the appellant was not a first offender. He had previously served a conditional
    sentence. He was bound by a weapons prohibition at the time he committed this
    offence. The gun involved was a sawed-off shotgun, a firearm for which there
    can be no legitimate purpose. It was stored under a bed, in an apartment, in an
    apartment building, with ammunition readily available and close at hand.

[4]

We are not persuaded that the trial judge drew unwarranted inferences
    from the Agreed Statement of Facts. Her assignment of credit for what are
    described as onerous pre-sentence release terms was within the range of credit
    properly attributed to terms such as those by which the appellant was bound.

[5]

Accordingly, while leave to appeal is granted, the appeal is
    dismissed.

David Watt J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Remus, 2014 ONCA 914

DATE: 20141219

DOCKET:
C58287

Gillese and Lauwers JJ.A., and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

James Remus

Appellant

Paul Burstein, for the appellant

Chris Dwornikiewicz, for the respondent

Heard: December 17, 2014

On appeal from the Summary Conviction Appeal Court decision
    dated January 10, 2014, by Justice John F. McCartney of the Superior Court of
    Justice, dismissing the appeal against convictions entered on May 16, 2013, by Justice Theo Wolder of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was a police officer with the Nishnawabe-Aski Police
    Service.  He arrested the complainant, who was drunk, for breach of the peace.

[2]

The appellant was convicted of one count of assault and one count of
    assault with a weapon after the trial judge found that the appellant had acted
    unreasonably and used excessive force when dealing with the complainant.

[3]

The appellant appealed to the summary conviction appeal court.  The
    decision of the Ontario Court of Justice was upheld and his appeal was
    dismissed.  He now seeks leave to appeal to this court.

BACKGROUND IN BRIEF

[4]

The interactions between the appellant and the complainant which led to
    the convictions were captured on video.

[5]

The appellant gestured to the complainant to enter a cell.  The
    complainant complied but the appellant pulled him back out so that he could be
    searched before entering the cell.  The complainant did not remove his jacket
    when so instructed because he was cold.  When the appellant tried to remove the
    complainants jacket, the complainant pushed or slapped the appellants hand
    away from his jacket zipper.  On the findings of the trial judge, the
    complainants move was very quick, lasting less than a second. He found that
    the amount of force used by the complainant was low, momentary and trifling,
    a mere flick of the hand.

[6]

Within a further second and a half and without further comment,
    discussion or warning, the appellant grounded the complainant, by
    forcefully throwing him onto the cell blocks concrete floor.  The trial
    judge found the appellants conduct to be severe, disproportionate and
    excessive in the context of what had transpired to that point in time.

[7]

After the complainant was thrown to the ground, he lay on the floor on
    his left side.  The appellant tried to force the complainant to lie on his
    stomach so he could physically place the complainants hands behind his back
    and handcuff him.  The complainant did not co-operate.  The appellant then
    threw five punches in rapid succession, with the closed fist of his right hand,
    at the complainants head and face.  A majority of the blows struck the
    complainant, causing injury to his nose.  The appellant fractured some bones in
    his right hand when some of his punches missed the complainants head and
    landed on the concrete floor.

[8]

When the complainant continued, for 17 seconds, to lie on his left side
    and resist rolling onto his stomach, the appellant pepper sprayed the
    complainant in the face. He was acquitted of the charge of assault with a
    weapon laid in relation to the pepper spraying.

[9]

The appellant succeeded in forcing the complainant to roll onto his
    stomach. However, when the appellant then sat up and did not lie back down
    after being ordered to, the appellant hit the complainant three times with his baton
    before handcuffing him.

[10]

At
    trial, the appellant conceded that he struck the complainant but argued that the
    force used was required and authorized by law and, therefore, was justified
    under s. 25(1) of the
Criminal Code
, R.S.C. 1985, c. C-46.  Section
    25(1) reads as follows:

25. (1) Every one who is required or authorized by
    law to do anything in the administration or enforcement of the law

(a)

as a private person,

(b)

as a peace officer or public
    officer,

(c)

in aid of a peace officer or
    public officer, or

(d)

by virtue of his office,

is, if he acts on reasonable grounds, justified in
    doing what he is required or authorized to do and in using as much force as is
    necessary for that purpose.

[11]

The
    appellant testified, as did an expert called on his behalf.  The focus of the
    experts testimony was on the level of force that had been used and the
    rationale behind its use.

[12]

If
    the appellant is granted leave to appeal from the decision of the summary conviction
    appeal court, he will again argue that his actions were justified under s. 25(1).
    Specifically, the appellant would argue that the summary conviction appeal judge
    erred in finding that:

1.

the trial judge
    considered not only whether the appellants actions were required by law but
    also that they were authorized by law; and

2.

s. 25(1) did not
    afford the appellant a defence based on his honest and reasonable mistaken
    belief that his use of force was necessary.

ANALYSIS

[13]

Leave
    to appeal in summary conviction proceedings is to be granted only sparingly
    where: (1) the appeal raises a question of law that is arguable and the
    proposed question of law has significance to the administration of justice
    beyond the particular case; or, (2) where the appellant can show a strong
    likelihood that the conviction was sustained at the first level of appeal
    because of an error in law:
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d)
    641, at paras. 32-34.

[14]

The
    first proposed ground of appeal does not justify granting leave because,
    contrary to the appellants submission and as the summary conviction appeal
    judge found, the trial judge did address the question of whether the
    appellants actions were authorized in law in addition to whether they were
    required by law.  The appellants defence failed because he was found to have
    acted unreasonably and used excessive force.

[15]

As
    for the second proposed ground of appeal, we do not accept that the reasons of
    the summary conviction appeal judge demonstrate legal error.  It is clear that
    the summary conviction appeal judge accepted that the subjective/objective test
    set out in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para.
    34, applied in assessing whether the appellant acted on an honest but mistaken
    belief.  However, he found that such a defence did not have an air of reality
    in the circumstances of this case.

[16]

For
    these reasons, we do not see the proposed appeal as raising an unsettled
    question of law or one with significance to the administration of justice
    beyond the particular case.  Furthermore, the merits of the proposed appeal are
    not strong and we see no error of law.

DISPOSITION

[17]

Accordingly,
    the application for leave to appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

Chris Speyer J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sheeller, 2014 ONCA 867

DATE: 20141203

DOCKET: C57373

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mandy Sheeller

Appellant

Robert C. Sheppard, for the appellant

Lucy A. Cecchetto, for the respondent

Heard and released orally: November 25, 2014

On appeal from the conviction entered on October 4, 2012 and
    the sentence imposed on April 8, 2013 by Justice Lynne Leitch of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

The Conviction Appeal

[1]

A trial judges failure in her reasons to refer to specific evidence
    capable of offering some support for the position of the defence is not in and
    of itself indicative of a failure to consider that evidence or a failure to
    give adequate reasons.  The impact on the trial judges reasons of the failure
    to mention a specific piece of evidence will depend on a number of factors,
    including the nature of the evidence itself, the entirety of the evidence, the
    issues raised and the arguments made at trial.  The reasons must also, of
    course, be considered as a whole.

[2]

The evidence not mentioned by the trial judge (the sticky kitchen floor)
    was capable of offering some support for the position taken by the defence that
    the assault had occurred in the kitchen.  That evidence was not however particularly
    cogent.  Nor, in our view, did it figure prominently in the closing argument of
    counsel at trial.  It was not the kind of evidence that had to be mentioned in
    the reasons to demonstrate a proper appreciation of the position of the defence
    or the evidence relied on by the defence.  We cannot say that the trial judges
    failure to mention the sticky kitchen floor evidence demonstrates a failure
    to consider it or a failure to give reasons that adequately explain the verdicts.

[3]

The defence applied to reopen the trial in the course of sentencing.
    The defence contended that certain fresh evidence demonstrated that the
    complainant had lied in the course of providing his victim impact statement.
    The lies related to the extent of the harm caused to the victim by the
    appellants assault.

[4]

The trial judge applied the correct test in determining whether to
    permit the defence to reopen the trial after a verdict.  She acknowledged that
    she had a discretion to reopen the trial and also correctly indicated that the
    discretion should be exercised in limited circumstances.  The trial judge noted
    that the effect of the injuries on the complainant was not an issue in the
    trial itself and it played no part in her assessment of the evidence or her
    ultimate determination.  She concluded her reasons on the application to reopen
    with the following:

Considering the evidentiary record which was assessed at the
    conclusion of the trial, I am not satisfied that this additional evidence could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result.  As I outlined, my findings and conclusions were not
    solely dependent on the evidence of David Gdanski.  As I indicated, I made no
    findings in relation to the extent of his injuries.

[5]

We see no error in the manner in which the trial judge exercised her
    discretion.

[6]

With respect to sentence, counsel submits that a sentence totalling 12
    months rather than 18 months should have been imposed.  We see no error in
    principle in the sentence imposed by the trial judge, nor can we say that it is
    manifestly excessive.  The aggravated assault was a serious offence.

[7]

It seems clear from the material that we have that the appellant has
    taken very positive steps to turn her life around and has hopefully left
    forever the life that led to the criminal activity before this court.  We trust
    that the Correctional authorities will give careful consideration to these very
    positive steps taken by the appellant toward her rehabilitation and will also
    give careful consideration to the family circumstances of the appellant when
    considering whether she qualifies for some form of early release.

[8]

Leave to appeal sentence is granted but the appeal from sentence is
    dismissed.  The conviction appeal is dismissed.

Doherty
    J.A.

K.
    Feldman J.A.

Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sona, 2014 ONCA 859

DATE: 20141201

DOCKET: M44468

(C59644)

LaForme J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Sona

Applicant/Appellant

Howard K. Krongold, for the applicant/appellant

Nick Devlin, for the respondent

Heard: November 28, 2014

ENDORSEMENT

INTRODUCTION

[1]

Mr. Sona was found guilty of the
    offence of preventing or endeavouring to prevent an elector from voting at the
    federal election held on May 2, 2011, contrary to the provisions of the
Canada
    Elections Act
, S.C. 2000, c. 9.  He was
    sentenced to nine months imprisonment. Mr. Sona is appealing his conviction,
    although he is presently not in a position to demonstrate a viable ground of
    appeal for his conviction. He will also seek leave to appeal from sentence
.

[2]

On this application the Crown is
    not opposing Mr. Sonas request for leave to appeal his sentence and says that
    this court can proceed with this application assuming leave will be granted. It
    is in this context that Mr. Sona requests that he be granted bail.
    Consequently, the basis of this bail application is focused solely on his
    sentence appeal
.

[3]

For the reasons that follow, I
    would grant the application. Mr. Sonas appeal is not frivolous, he will
    surrender into custody in accordance with the terms of the release order, and
    his detention is not necessary in the public interest.

BACKGROUND

[4]

As counsel for Mr. Sona puts it,
    this is a notorious and extraordinary case.  During the 2011 federal election,
    approximately 7,000 electors in Guelph, who were believed to be unsupportive of
    the Conservative Party candidate, received an automated robo-call purporting
    to be from Elections Canada. The message said that the location of a polling
    station had been changed, and directed electors to attend a different polling
    location. Between 150 and 200 electors attended the wrong polling location as a
    result of these calls. The robo-call message was false.

[5]

At the time of the offence Mr.
    Sona was 22 years old and the communications director for the Conservative
    candidate in the riding of Guelph during the election campaign. The trial judge
    found that more than one person was likely involved in the scheme; however, Mr.
    Sona is the only person to have been charged in relation to the robo-calls
    scandal.

[6]

In his sentencing decision, the
    trial judge described the scheme as a plan to ... effectively ... attempt to
    manipulate the outcome of the election in the Guelph riding by endeavouring to
    prevent voters from voting. This was a federal election undertaken to elect
    representatives who form the governing body in our nation:
R. v.
    Sona
, 2014 ONCJ 606, at para. 46(4).
    Indeed, it was a plan to deny Canadians a right guaranteed under s. 3 of our
Charter
    of Rights and Freedoms
, namely:

Every citizen of Canada has the right to vote in an election of
    the members of the House of Commons or of a legislative assembly and to be
    qualified for membership therein.

[7]

There can be no question that Mr.
    Sona has been found guilty of a very serious offence. And, as the trial judge
    expressed it, given the seriousness of the offence and the mitigating factors
    favouring Mr. Sona: This is a difficult and troublesome sentencing:
Sona
, at para. 48.

THE TEST

[8]

Under s. 679(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
Mr. Sona
must satisfy
this
    court
that:
(i)
his appeal is not frivolous;
(ii)
he will
    surrender into custody in accordance with the terms of the release order; and
(iii)
his
    detention is not necessary in the public interest
.

[9]

At the time of the hearing and for
    the purposes of this application Mr. Sona is not in a position to demonstrate
    the viability of an appeal of his conviction. Consequently, for the purposes of
    this application, it is the viability of the appeal of his sentence that must
    be considered. Further, at this stage he is no longer presumed innocent, but
    rather, he is guilty of the charge he faced at trial for the reasons given by
    the trial judge.

[10]

The question that will be
    scrutinized on the sentence appeal is whether the trial judge committed an
    error in principle, failed to consider a relevant factor, or overemphasized
    appropriate factors. If the trial judge did not so err, a high level of
    deference is afforded to the trial judges decision unless the sentence is
    demonstrably unfit:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at p. 565.

[11]

The Crown opposes this application
    on the basis of the first and third branches of the test. The Crown
submits that
the
    grounds of appeal
advanced by Mr. Sona
    are not
arguable
and fail to
satisfy
    the very low threshold of not being frivolous.
In light of Mr. Sonas history and background, the Crown does not take
    issue with the surrender into custody component of the test.

[12]

As for the third branch of the test, the Crown asserts
    that it is not in the public interest to release Mr. Sona.
Mr. Sona submits
that
    the real crux of this application is whether the

sentence appeal has sufficient
    merit to outweigh the public interest in immediate

enforcement of
    a sentence imposed.

ANALYSIS

(1)

The appeal is not frivolous

[13]

An appeal is not frivolous if the
    proposed grounds raise arguable issues.
Mr.
    Sona

is not required to go so far as to show that a
ground
of
    appeal
has a likelihood of success on
    appeal
. R
ather, he only
has
to satisfy
the
    court
that
it
is a viable ground of appeal
    that would warrant appellate intervention if established:
R. v. Manasseri
,
    2013 ONCA 647, 313 O.A.C. 55, at para. 38.
Here Mr. Sona argues that he meets this standard
.

[14]

Mr. Sona
submits that for
the
    offence he was found guilty of
, it is
    arguable that a nine-month sentence of
imprisonment
is outside the range
of sentences available. At the very least, Mr. Sona argues
that
the
sentence
he
    received
is at the wrong end of the range
    that ought to be imposed in
his
circumstances.
He
    also advances two other grounds that he says are arguable, namely, that the
    trial judge erred in: (i)
finding that
    there was no evidence of rehabilitation
;
    and (ii) failing
to consider general
    deterrence on similarly

situated

individuals
.

[15]

I accept that the grounds of
    appeal are arguable and are not frivolous.

I agree with
Mr. Sona
that he
is the first
person
to have
    been convicted of this

offence, and
as
    the trial judge observed,
there are no
    precedents to help establish an appropriate range of sentence
:
Sona
,
    at para. 42. The novelty of this case makes it more difficult for the Crown to
    show that the appeal is frivolous. Importantly, the Crown, while not accepting
    that there are arguable grounds of appeal, quite fairly acknowledged that the
    administration of justice, in these circumstances of first impression, will be
    served by this courts guidance that will result from this appeal. I concur
    with th
is fair and helpful observation.

(2)

Mr. Sona will surrender into custody

[16]

Mr. Sonas history and background
    demonstrate that he
would surrender into
    custody
in accordance with the terms of
    any release order
.
The
position
    taken by the Crown on this second branch is fair, helpful and one that I
    accept.

(3)

Detention is not necessary in the public interest

[17]

In the less than perfect system of criminal justice, courts endeavour
    to administer justice with fairness and compassion while ensuring just enforcement
    of our laws that serve to protect and guide our society. And, throughout this
    process, courts seek to dispense justice in a manner that enhances the systems
    reputation and promotes public confidence in it
.

[18]

On this application the court is
    required to consider
the public
    perception of the administration of justice
when deciding whether Mr. Sonas application for release pending appeal
    is appropriate
. Importantly, t
he public perception that is considered at this stage
    derives from a public that is reasonably informed about the criminal process
    and the particular circumstances of the case
.

[19]

The public interest component
    requires that I balance the need to review the sentence of nine months
    imprisonment imposed by the trial judge with the need to respect
the general rule of immediate enforceability of the
    decision:
Manasseri
, at paras. 40-43.
That is to say,
reviewability
    versus enforcement, to borrow the language commonly used in the jurisprudence.

[20]

Reviewability arises where
judgments or decisions
ought to
be reviewed and any errors
    corrected, especially where an appellants liberty is at stake
.
Public
    confidence in the administration of justice mandates that,
i
n these
    circumstances, justice usually requires release from custody pending the
    review.

[21]

On the other hand
,
public
    confidence in the administration of justice usually
requires that judgments or decisions of
the courts
be
    enforced
. A
person convicted of a very serious offence, who advances grounds of
    appeal that are arguable but weak,
should
    not be
release
d

from custody
pending
    appeal:
R. v. Farinacci

(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at
    pp. 47-48.

(a)

Application of the public interest component to this case

[22]

I conclude that Mr. Sonas
    detention pending his appeal is not necessary in the public interest.

[23]

The ultimate objective in
    sentencing is to arrive at one that is fit and proper given the specific
    offender and the specific offence. In a very thorough and thoughtfully reasoned
    decision, the trial judge decided that nine months imprisonment is a fit and
    proper sentence for Mr. Sona.

[24]

As I noted earlier, Mr. Sona
    wishes to challenge the trial judges decision on the basis that it is neither
    fit nor proper in all the circumstances. And, he asks that while this decision
    is being reviewed, he be released from prison. I have concluded that he should
    be granted his request.

[25]

The offence that Mr. Sona has been
    convicted of is, again, very serious.  At the same time, when sentenced
, Mr. Sona was 26 years old and, having lost his
    employability in politics, was working successfully as a machinist. He was
    sentenced as a youthful, first-time offender.
His pre-sentence report outlines the emotional toll this has taken on
    Mr. Sona and his parents. Imprisonment aside, Mr. Sona has suffered, and
    continues to suffer, consequences for his criminal conduct.

[26]

I concur with counsel
    for Mr. Sona that Mr. Sona has been subjected to more than the usual ignominy
    of a public trial and conviction.  Most youthful first-time offenders enjoy
    some measure of obscurity; Mr. Sonas trial has been fervently covered by the
    national media. Given the serious offence he committed, I am not being critical
    when I make this observation.

[27]

Significantly, i
t is virtually certain that Mr. Sonas sentence appeal
    will be moot  or very nearly so  by the time this appeal is decided.
That is, he will have served most, if not all, of his
    sentence when this court has the opportunity to consider whether it was the
    correct sentence.

[28]

The principle of reviewability
    is strengthened where a youthful offender is compelled to serve his or her
    brief sentence before having the opportunity to have his or her challenge heard
    on appeal. The entitlement to bail is strongest when to deny it would render
    the appeal of any value whatsoever for all practical purposes:
R. v.
    Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.), at pp. 47-48. That is so in this case.

[29]

Finally, in the interest of
    maintaining the publics confidence in the administration of justice, I note
    that if released from custody, there is very little likelihood that Mr. Sona
    will commit any further criminal acts, nor does he pose a danger to the
    public.

CONCLUSION

[30]

In this case

a case of a
    sentencing without precedent
and where
    there are
arguable grounds of appeal

Mr. Sona
ought
    to ha
ve an opportunity to have this c
ourt
consider
the fitness of his sentence before he is required to
    serve it.
I am convinced that the
    publics
confidence in the administration
    of justice
will not be diminished

if Mr. Sona is
release
d
from custody pending the review
of his sentence
.
    A public reasonably informed of the criminal process and the particular
    circumstances of this case would understand this result.

[31]

For these reasons, the application
    for release pending appeal
is granted
.
An order will
    go pursuant to the agreed upon draft order counsel filed on this application.

[32]

I will end by giving my thanks to
    both counsel for their professional and just approach in this case. Their
    submissions were extremely helpful and very much appreciated. The
    administration of justice has been well served.

H.S.
    LaForme 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. T.H.,
    2014 ONCA 906

DATE: 20141217

DOCKET: C56068

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.H.

Appellant

Timothy E. Breen, for the appellant

Mabel Lai, for the respondent

Heard and released orally: December 10, 2014

On appeal from the conviction entered on July 20, 2012 by
    Justice Barry Matheson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault, sexual interference and
    invitation to sexual touching in relation to two of his nieces, D. and H. He
    was also found guilty of making and possessing child pornography. He was
    acquitted of all charges relating to his son and his nieces C. and B. He was
    sentenced to four years in prison.

[2]

The appellant raises the following grounds of appeal:

(1)

The reasons for judgment are insufficient;

(2)

The separate counts should not have been considered similar fact       evidence;

(3)

The trial judge effectively reversed the burden of proof; and

(4)

The trial judge misapprehended the evidence.

[3]

On appeal, the appellant concedes that there is no issue that H. was
    sexually assaulted. Her evidence is supported by the circumstantial evidence of
    a picture of H. with an adult male penis between her legs on the appellants
    computer. There was also an inappropriate picture of H. that had been downloaded
    from a camera belonging to the appellant. The images had been deleted and would
    not have been accessible to the average user.

[4]

The appellant submits that in relation to H. the issue is the identity
    of the adult perpetrator. In this regard, the overarching position of the
    appellant is that the identification of the appellant by D. and H. was tainted
    by discussion within the family suggesting he was a child molester. These discussions
    took place between Christmas Eve 2008, when an inappropriate image of the
    complainant D., age 13, was found on the appellants camera and January 8, 2009
    when H., age 6, identified the appellant as the perpetrator. The appellant
    submits that the evidence of H. and D. (who disclosed about a week later) is
    suspect because of the tainting influence of discussions within the family
    after Christmas Eve. He further submits that because the children also used his
    camera, and other adults had access to his computer, the identification of the
    appellant as the perpetrator was not proven beyond a reasonable doubt.

[5]

We reject these submissions. Although this was the position of the
    defence at trial, in submissions we note that H. was never confronted in cross-examination
    with the suggestion that she had misidentified the appellant. Nor was the
    suggestion put to her that she may have felt pressured into identifying the
    appellant because of the discussions that took place within the family. Nor
    were any such questions put to D. We now propose to deal with the specific
    grounds of appeal seriatim.

(1)

Were the reasons for judgment sufficient?

[6]

[R]easons are reviewed for their functionality, not their eloquence,
    and must be examined in the context of the entire proceeding, especially the
    nature of the evidence heard and the arguments advanced:
R. v. J.J.B.
,
    2013 ONCA 268, at paras. 20 and 32.

[7]

Though the trial judges reasons are not a model of clarity, his reasons
    adequately explained, in the context of the record as a whole, why he acquitted
    the appellant in respect of L., B. and C. and why he convicted the appellant in
    respect of H. and D. Regarding the first three complainants, the trial judge
    pointed out numerous inconsistencies. Conversely, he found H.s evidence consistent.
    There was photographic corroboration of her abuse and she was steadfast in her
    assertion that the appellant was the perpetrator. H. was not shaken on
    cross-examination. Regarding D., though her evidence was inconsistent in
    several respects that did not impact the main issues, the trial judge did not
    find that to be unexpected, based on his self-instruction on the approach to
    childrens evidence mandated by the Supreme Court:
R. v. B.(G.)
,
    [1990] 2 S.C.R. 30. Though

D. denied that the appellant took
    inappropriate pictures of her, she did testify that he took pictures of her
    almost every time he saw her on a silver digital camera. Rachels evidence as
    to the photograph and the camera supported D.s testimony.

[8]

The reasons are adequate. They are capable of appellate review.

(2)

Did the trial judge err by considering the evidence of the complainants
    as similar fact evidence?

[9]

Although the appellant suggests that the similar fact application was
    abandoned, the Crown simply acknowledged that caution was advisable given the
    potential for tainting. The appellant submits that similar fact reasoning was
    not available on the cross-counts respecting H. and D. We disagree. H. and D.
    described sexual offences with similar characteristics that strongly supported
    the improbability of coincidence. These similarities included their
    relationship to the appellant, using family events to provide opportunity,
    using his bedroom as a venue, having the girls touch his penis, and taking
    photographs of them on his camera. H. and D. also said that the appellant
    touched their vaginas and on more than one occasion touched his penis to their
    vaginas. Although the trial judge erred when he included as a circumstance that
    the appellant sometimes licked his finger in relation to touching their
    vaginas, this error does not detract from his finding that the appellant
    touched their vaginas. This was a judge-alone trial on a multi-count
    indictment. Moral and reasoning prejudice was minimal. The Crown established on
    a balance of probabilities, that the evidence was probative of live issues at
    trial and that its probative value outweighed its prejudicial effect.

[10]

This
    ground of appeal is dismissed.

(3)

Did the trial judge effectively reverse the burden of proof and
    misapprehend the evidence?

[11]

The
    appellant submits that, after instructing himself on the
R. v. W.(D.)
,
[1991] 1 S.C.R. 742,
analysis, the trial
    judge skipped the second step of that analysis. We are satisfied that, read as
    a whole, the trial judges reasons indicate that although he rejected the
    appellants evidence, it also did not raise a reasonable doubt.

(4)

Did the trial judge misapprehend the evidence?

[12]

The appellant submits that the trial judge misapprehended the evidence when
    he stated in his reasons, It is not a criminal offence to possess adult
    pornography yet apparently it was erased and was only retrievable by the police
    using their special equipment. The erasure of these pictures by Travis is an
    indication of his state of mind. The appellant submits that the trial judge is
    saying that Travis admitted erasing the pictures.

[13]

We
    disagree that this is the import of the trial judges comment. The trial judge was
    making a finding in the context of all of the evidence, including the evidence
    of the expert, that the appellant was the person who had erased the images.

[14]

The appellant also asserts that the trial judge misapprehended an
    inconsistency in his attitude towards the children. The appellant says he was
    consistent on the point that he avoided the children at family gatherings because
    they were undisciplined. We do not agree. The appellant acknowledged that he
    would be in his room with the female children playing and dancing and that he
    would go into L.s room when the other children were there. The trial judge did
    not misapprehend the evidence in any significant way.

[15]

Accordingly,
    for the reasons given, the appeal is dismissed.

K.M. Weiler J.A.

K. Feldman J.A.

M.L. Benotto J.A.