COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manship, 2015 ONCA 837

DATE: 20151202

DOCKET: C60729

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Manship

Appellant

Jeffrey Langevin, for the appellant

Brock Jones, for the respondent

Heard: November 30, 2015

On appeal from the conviction entered on September 8,
    2014 and the sentence imposed on November 18, 2014 by Justice Timothy D. Ray of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

On June 3, 2012, while on bail, Shawn Manship (the appellant) was in
    an altercation with his domestic partner and two of her friends.  All three
    were injured and one required hospitalization and surgery.

[2]

The appellant drove off after the altercation.  When the police located
    him on the highway, he refused to pull over and a high-speed chase ensued.
    Ultimately, he rammed the police vehicles while officers were in them, causing
    damage to those vehicles in excess of $20,000.  Fortunately, the officers
    suffered no injuries.

[3]

After the appellant was apprehended, he was charged with one count of
    assault causing bodily harm and two counts of assault.  He was also charged
    with seven additional offences, arising from events that evening.  Three of the
    additional offences related to violations of his bail conditions, which
    required him to not contact his domestic partner and not consume alcohol.   The
    other four related to his driving that evening: dangerous operation of a motor
    vehicle, driving while over 80, failure to stop while being pursued by a
    police officer, and assault on a police officer with a weapon.

[4]

The appellant pleaded guilty to the seven additional offences.  He was
    convicted of the three assault charges, following a judge-alone trial.

[5]

The appellants global sentence for all 10 offences was 30 months in
    custody less credit for 3 months of pre-trial custody.  This was the sentence
    which defence counsel had requested.

[6]

He appeals against the assault convictions alone and seeks leave to
    appeal sentence.  If granted leave, the appellant seeks to have the balance of
    his custodial sentence converted to a period of probation.

THE CONVICTION APPEAL

[7]

This was an overwhelming Crown case.

[8]

The trial judge rejected the appellants evidence of the altercation,
    noting that even his version of events showed him to be aggressive  angry,
    yelling, shouting and becoming angrier.  Given its inherent implausibility, it
    was fully open to the trial judge to have found the appellants evidence
    unworthy of belief.

[9]

The trial judge accepted the evidence of all three victims.  They all
    described the same events and any inconsistencies were on minor or collateral
    matters.  The trial judge was aware of these minor differences, noting that the
    witnesses were credible and reliable about the assaults, even if the order of
    events varied slightly in each witnesss narrative.  There was no contradiction
    on the fundamental issue of whether the appellant had violently assaulted each
    of them.

[10]

There
    is nothing to the submission that the trial judge applied a different scrutiny
    to the appellants testimony, as compared to that of the victims.  The trial
    judge recognized that all had been drinking on the night in question.  The police
    officers testified that when they arrived on the scene of the assaults the
    three victims were intoxicated.  The appellant testified that he had had only
    two beers.  The trial judge rejected this, in part based on a toxicology report
    entered into evidence which noted his blood alcohol level was .09,
    approximately three hours after leaving the bar.

[11]

The
    fact that the photographs of one of the victims did not show injuries in
    keeping with the type of violence that had been described does not mean that the
    trial judge failed to appreciate this evidence.  In fact, at para. 47 of his
    reasons, the trial judge states that although he accepted the evidence of one
    of the victims that she had been punched, there was no evidence of any
    injuries beyond minor bumps and bruising.  In any event, there was police
    testimony that they had personally observed injuries on the victims and medical
    records which established the nature and extent of the injuries.

THE SENTENCE APPEAL

[12]

We
    see no basis for interference with the sentence imposed.

[13]

The
    trial judge took into consideration the mitigating considerations.  He was
    aware that the appellant: had no prior criminal record; was 37 years old and
    had three children; apologized and accepted responsibility for his actions; and
    pleaded guilty to a number of the offences.  He also noted that the
    pre-sentence report was positive and that the appellant had taken counselling
    for anger management and substance abuse and showed a serious willingness to
    change his behaviour.

[14]

The
    trial judge acknowledged the appellants rehabilitative prospects but, given
    the aggravating considerations, determined that deterrence and denunciation
    were the principal factors to consider with respect to the assault
    convictions.  The aggravating features included that: the appellant was on bail
    at the time of the offences; the assault against one victim took place within
    the context of a domestic relationship; one victim had to have surgery and was
    left with permanent injuries; and the driving offences showed a wanton
    disregard for the safety of the community.  Rather than surrendering to the
    police when they caught him, he started a high-speed chase with speeds of up to
    120 km/hr in areas with speed limits of 50-60 km/hr and attacked the police by
    ramming their vehicles, causing extensive damage.

[15]

We
    would add that converting the remainder of the custodial sentence to one of
    probation, as the appellant asks, would fail to give effect to the need for
    deterrence and denunciation of this type of violence, and assaults on domestic
    partners and the police.

DISPOSITION

[16]

Accordingly,
    the conviction appeal is dismissed.  Leave to appeal sentence is granted but
    that appeal is also dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McKenzie, 2015 ONCA 917

DATE: 20151224

DOCKET: C57266

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George McKenzie

Appellant

James Carlisle, for the appellant

Matthew Asma, for the respondent

Heard: December 16, 2015

On appeal from the conviction entered on January 25, 2010
    and the sentence imposed on April 17, 2012 by Justice Elizabeth M. Stewart of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

On January 25, 2010, the appellant was found guilty of attempted murder,
    robbery and possession of a weapon dangerous to the public peace. In her
    sentencing decision dated April 17, 2012, Stewart J. found the appellant to be
    a dangerous offender and imposed an indeterminate sentence of imprisonment.

[2]

The appellant has abandoned his appeal of the convictions. He appeals
    only the dangerous offender designation. His counsel asks that the matter be remitted
    to the sentencing judge to reconsider, on a different weighing of the evidence,
    whether he should be designated a long term offender with a determinate
    sentence of 12 years less credit for the time already served and supervision
    for 10 years in the community.

[3]

The appellant concedes that the statutory requirements to declare him a
    dangerous offender have been met. The only issue he raises is whether the trial
    judges finding that there was no reasonable possibility of eventual control of
    the risk posed by the appellant was unreasonable.

[4]

The appellant is 66 years old. His lengthy serious criminal record
    started in 1966 when he was 18 years old. His 27 prior convictions include 13 for
    robbery and 5 for weapons offences. He has spent some 35 of the previous 40
    years in the penitentiary and has demonstrated a pattern of violation of
    conditional releases.

[5]

In committing the index offence on October 27, 2007, the appellant
    showed a total disregard for the life of his victim. While attempting to rob
    the victim, the appellant stabbed him several times while taunting him,
    punctured his heart, and left him bleeding on the floor of a washroom of a bar.
    But for quick medical intervention and good fortune, the appellant would have faced
    a murder charge. He had been released from prison in August 2007.

[6]

The appellant is addicted to alcohol, cocaine and heroin, and his
    criminality is strongly associated with his drug use. Both Crown and defence
    experts agreed that when not affected by drugs, he is a low risk to reoffend,
    but when using drugs he is a serious danger to the public.

[7]

The trial judge, proceeding under the version of s. 753 of the
Criminal
    Code
in force prior to the amendment in 2008, concluded that the prospects
    of the appellant being able to overcome his lifelong addiction to drugs and
    alcohol and the life of violent crime associated with his drug use were so slim
    that they could not be said to amount to a reasonable possibility of control in
    the community. The sentencing judge accepted the evidence of the Crowns expert
    that the appellant had had the benefit of every conceivable treatment program,
    and had completed many successfully, but that every time he was released into
    the community he committed further violent offences, usually very quickly.

[8]

Both Crown and defence experts were clear that the appellant, even after
    successful completion of a treatment program, required close supervision to
    manage the risk he posed to the public. The sentencing judge found that the
    level of supervision he would be subject to as a long term offender was
    inadequate to manage the risk.

[9]

On appeal, the appellants principal submission is that in reaching this
    conclusion, the sentencing judge did not attach sufficient weight to the
    availability of a treatment program aimed specifically at aboriginals. The
    appellant discovered he has some aboriginal ancestry after he was arrested for
    the predicate offences. Counsel submits that the appellant has not had the benefit
    of such a program, and his participation in such a program could reasonably
    reduce any danger he posed to acceptable levels within the community during the
    ten years he would be under supervision as a long term offender. Close
    supervision during the term of the long term offender order is an indispensable
    element of the scenario counsel puts forward.

[10]

The
    difficulty is that at the end of a long term supervision order, the appellant
    would no longer be subject to any supervision. Counsel suggests that by the end
    of the order the appellant would be burned out. However, the only evidence in
    the record was that the appellant has demonstrated no signs of burnout.

[11]

To
    succeed on the appeal, the appellant must persuade us that the trial judge was
    required to conclude that there was reasonable possibility of eventual control
    of the risk posed in the community.  However, on the record, the trial judge
    could reasonably conclude the appellant had failed to establish he would not
    pose a risk to the community when he would no longer be subject to any supervision
    at the end of the long term offender order.

[12]

We
    note that the appellant is able to participate in a treatment program
    specifically aimed at aboriginals while in prison, and that successful
    completion of such a program might be considered to support a future parole
    application.

[13]

The
    appeal of sentence is dismissed. The appeal of the underlying convictions is
    dismissed as abandoned.

R.G.
    Juriansz J.A.

David
    Watt J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meldrum, 2015 ONCA 925

DATE: 20151229

DOCKET: C56231

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kirk Meldrum

Appellant

James Foord, for the appellant

Craig Harper, for the respondent

Heard and released orally: December 18, 2015

On appeal from the conviction entered on July 5, 2012 by
    Justice Jean Legault of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction on a count of dangerous driving
    causing bodily harm. The appellant submits the verdict was unreasonable, the
    trial judge misapprehended important evidence and he failed to explain why he
    found the appellants conduct was a marked departure from that of a reasonable
    driver in the same circumstances.

[2]

We see no merit in the appeal. The trial judge correctly stated and
    applied the law. There were no material misapprehensions of the evidence. The
    appellant merely takes issue with the trial judges assessment and weighing of
    the evidence. The record provides ample support for the trial judges findings
    of fact, including those which he used to ground the conviction.

[3]

The appeal is dismissed.

R.G.
    Juriansz J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Milliken, 2015 ONCA 897

DATE: 20151216

DOCKET: C59736

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Sean Milliken

Appellant

James Harbic and Robert Harbic for the appellant

Gillian Roberts for the respondent

Heard and released orally: December 9, 2015

On appeal from the conviction entered on March 18, 2014
    by Justice J.M. Johnston of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

On January 24, 2012, two movies containing child pornography were made
    available on a peer-to-peer file sharing network and downloaded by police. The
    movies were made available by the IP address associated with the internet
    account used by the appellant and his parents at their home in Brockville.

[2]

On February 13, 2012, police executed a search warrant and seized the
    appellants laptop from his room. The desktop had 10 icons that linked to child
    pornography movies. A forensic examination of the computer showed that it
    contained 101 still images and 115 movies of child pornography.

[3]

The appellant was convicted of possessing child pornography relating to
    the February 13 incident. He was acquitted of three counts related to
    possession, accessing, and sharing child pornography on January 24, 2012. The
    appellant was sentenced to five months imprisonment. He now appeals his
    conviction.

[4]

On appeal, the appellant submits that the verdict is unreasonable
    because the trial judge failed to consider evidence that could have brought
    about an acquittal and misapprehended the evidence.

[5]

Under s. 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46, this court may set aside
    a verdict if it is unreasonable or cannot be supported by the evidence. A verdict is unreasonable or cannot be supported by
    the evidence when the verdict is one that a properly instructed jury acting
    judicially could not reasonably have rendered:
R. v. Biniaris
, 2000 SCC 15, [2001] 1 S.C.R. 381, at para. 36. This
    is equally applicable to the judgment of a judge sitting without a jury:
Biniaris
, at para. 37.

[6]

A misapprehension of the evidence will constitute a miscarriage of
    justice if the trial judge was mistaken as to the substance of material parts
    of the evidence, and those errors played an essential part in the reasoning
    process:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p.
    221. The misapprehension must go to the substance rather than to the detail and
    must be material rather than peripheral to the reasoning of the trial judge:
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. The errors must
    play an essential part in the reasoning process resulting in a conviction.

[7]

The appellants main argument is that the trial judge misapprehended and
    failed to consider relevant evidence with respect to the appellants knowledge
    of the existence of pornographic images on his laptop, particularly the
    evidence about the icons on his computers desktop.

[8]

The trial judge considered the defences arguments, including those
    about how the Windows Live Messenger screen would obscure the desktop and the accessibility
    to the internet using the Start menu/taskbar. A review of the exchange between
    the trial judge and expert witness confirms that he was alive to this evidence
    and what the appellant would have seen when he opened the computer.

[9]

The trial judge considered and rejected the arguments presented by the
    defence. He concluded that the desktop is an essential feature of any computer,
    regardless of whether most programs can be accessed from the Start menu and
    taskbar. There were numerous icons on the desktop with names obviously related
    to child pornography. Many of these included the abbreviation pthc (pre-teen
    hard-core). Ten of these icons linked directly to child pornography videos. Whether
    the icons were opened or not is irrelevant. What is relevant is that the icons
    were in plain sight. The desktop included other icons such as iTunes.  The theory
    that the appellant could have used his laptop without viewing the desktop defies
    common sense.

[10]

The
    trial judges conclusion is supported by the fact that child pornography was
    found elsewhere on the computer. There were child pornography films or images
    in the computers Recycle Bin, the cache folder of the appellants Windows Live
    Messenger account, and the default files associated with peer-to-peer file
    sharing programs. The trial judge, in our view, did not misapprehend the
    evidence.

[11]

The
    appellant also argues that the verdict is unreasonable. As
Biniaris
and other subsequent cases dictate, the scope of
    appellate review for unreasonableness is narrow. In our view, there was ample
    evidence upon which a trier of fact could conclude that the appellant was in
    possession of child pornography. Accordingly, we see no merit to this ground.

[12]

The appeal is dismissed.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Nyanin, 2015 ONCA 869

DATE: 20151209

DOCKET: C59013

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Papayaw Nyanin

Appellant

Christopher A. Avery, for the appellant

Mary Ellen Hurman, for the respondent

Heard: December 8, 2015

On appeal from the sentence imposed by Justice B. Durno
    of the Superior Court of Justice on March 8, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The parties agree that in light of
R. v. Summers
, decided after
    sentence was imposed, that the appellant is entitled to additional credit for
    time served.  Based on that additional credit, the sentence should be varied to
    time served.

[2]

We would add that we agree with the trial judge that the offences
    warranted a sentence of 4 years 10 months.

[3]

The appeal is allowed only because of the enhanced credit for
    presentence custody.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Porta, 2015 ONCA 924

DATE: 20151224

DOCKET: C56282

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leon Porta

Appellant

Robert Sheppard, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: December 18, 2015

On appeal from the decision of the Summary Convictions
    Appeal Court dated September 12, 2012 by Justice Johanne N. Morissette of the
    Superior Court of Justice, dismissing an appeal from the conviction entered on April
    4, 2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

ENDORSEMENT

[1]

In our view this is not a case in which leave to appeal should be
    granted.

[2]

In oral argument, Mr. Sheppard acknowledged that the agreement s.  786(2)
    requires to regularize summary conviction proceedings instituted beyond the
    limitation period for which the subsection provides, may be inferred, and,
    although preferable, need not be explicit. It is his submission that it was not
    open to the summary conviction appeal court judge to infer the necessary
    agreement in this case.

[3]

We disagree.

[4]

We are of the view that there was an adequate evidentiary foundation for
    the summary conviction appeal court judge to infer the necessary agreement.
    That she did so on this evidence does not raise a question of law in the strict
    sense required under s. 839(1)(a) of the
Criminal Code
.

[5]

The correctness of the summary conviction appeal court judges
    conclusion from that evidence raises at best, a question of mixed fact and law,
    which cannot be the subject of an appeal to this court under s. 839(1)(a) of
    the
Criminal Code
.

[6]

Leave to appeal is refused.

R.G.
    Juriansz J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prins, 2015 ONCA 892

DATE: 20151215

DOCKET: C59696

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Monique Prins

Appellant

Robert B. Carew, for the appellant

Michael Kelly, for the respondent

Heard: December 11, 2015

On appeal from the conviction entered on May 23, 2014 and
    the sentence imposed on November 25, 2014 by Justice
Catherine
    A.
Kehoe of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of fraud and use of a forged document. The
    allegation was that she used a forged power of attorney to cash Canada Savings
    Bonds in her sisters name. The appellant said she herself was the source of
    the funds for that investment, and that with her sisters agreement, she put
    the bonds in her sister N.B.s name to conceal them from her own husband on the
    breakdown of her marriage.

[2]

N.B. said it was her money, and that she had asked the appellant to make
    the investments for her. She testified that over the period between 1982 and
    1996 she sent a total of $57,000 to the appellant. She also testified that she
    also sent money to her mother for the appellant. She testified that she put money
    in investments in the appellants daughters name in France, and that she asked
    the appellant to match this amount with a corresponding investment in N.B.s
    name.

[3]

The relationship between the two sisters fractured when the appellant
    asked N.B. to pay her rent, after N.B. had been living with her for about two
    years.

[4]

There was some evidence that N.B. gave the appellant and her other
    siblings money as a gift from time to time. There was no documentation to
    support the alleged transfers from N.B. to the appellant for investment. The
    appellant had cashed other Canada Savings Bonds in N.B.s name, without
    complaint by N.B., a factor supporting the appellants position that the funds
    really belonged to her.

[5]

The confusion surrounding the transfers of money was evident. While N.B.
    testified that she also sent money to her brother Camille for him to invest on
    her behalf, Camille testified that the money was a gift to him. He also
    testified that the appellant gave him money to invest in other Canada Savings
    Bonds in N.B.s name.

[6]

The conviction must be set aside because of the following errors by the
    trial judge:

·

The trial judge concluded that even if the appellant was the
    source of the funds, she was guilty of fraud for having cashed the bonds and for
    depositing the proceeds in her own accounts just because the bonds were in
    N.B.s name. To commit fraud is to deprive another person dishonestly of
    something to which that other person is entitled. If the bonds in reality
    belonged to the appellant, though in her sisters name, she could not be guilty
    of fraud for cashing them and using the funds.

·

The appellant testified that she found a power of attorney that
    she used to cash the bonds amongst her files at home. The power of attorney was
    dated August 15, 1993. By the time of trial the appellant could not remember
    the circumstances in which the power of attorney had been signed. The trial
    judge put the onus on the appellant to establish that the power of attorney was
    valid. N.B. had signed several powers of attorney in favour of the appellant. The
    trial judge did not consider that N.B. may have also forgotten signing the
    document used by the appellant to cash the bonds. She said the appellant had
    her sign many documents. M.T., another sister shown as a witness to the
    signature on the power of attorney testified that she signed many documents for
    the appellant, and that she could not remember precisely what she did or did
    not sign.

·

The trial judge recited verbatim extensive portions of the
    evidence. She then rejected the appellants evidence and, without analysis,
    accepted the evidence of N.B. As conceded by the Crown, there was no meaningful
    analysis of N.B.s evidence and no explanation as to why the many weaknesses in
    that evidence did not raise a reasonable doubt. This was not a case where
    rejection of the accuseds evidence on a reasoned basis led to the conclusion
    that guilt had been established.

[7]

These errors, standing alone, justify allowing the appeal and quashing
    the convictions.

[8]

In light of these errors, the appeal was allowed and the convictions were
    quashed. It is therefore not necessary to consider the other arguments advanced
    on appeal, such as uneven scrutiny of evidence or the appeal as to sentence.

[9]

We leave it to the discretion of the Crown to decide, whether, having
    regard to the circumstances, a new trial is warranted.

K.M.
    Weiler J.A.

G.
    Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shipley, 2015 ONCA 914

DATE: 20151223

DOCKET: C59634

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Shipley

Appellant

Andrew Furgiuele, for the appellant

Marie Comiskey, for the respondent

Heard and released orally: December 16, 2015

On appeal from the conviction entered on August 19, 2014
    by Justice Harrison S. Arrell of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking and possession of property obtained by crime.

[2]

On appeal, the appellant argues that the trial judge erred in finding
    that the arresting officer had reasonable and probable grounds to detain him
    and search inside his vehicle, thereby breaching ss. 9 and 8 of his
Charter
rights. The appellant asks that the dime bags and rock of cocaine the officer
    discovered around the drivers seat be excluded from the evidence pursuant to
    s. 24(2) of the
Charter
.

[3]

The trial judge reasoned that while the police officer had a dual
    purpose in mind in deciding to stop the accused, the traffic stop was not a
    ruse, and the officer, in the circumstances, was well justified in stopping the
    appellant under the
Highway Traffic Act
(
HTA
) to ensure he
    was properly licenced. The inquiries made by the officer, including the request
    that the appellant step out of his car, did not extend beyond the scope of s.
    216(1) of the
HTA
.

[4]

We agree with the trial judge that the officer, in order to determine the
    appellants identity, was justified in requesting that the appellant step out
    of his car and come to the police cruiser. The appellant did not have a licence
    with him as required by the
HTA,
and he was unable to produce any
    photo identification. The officer had a picture of the person whose name was
    the alias the appellant had given him showing on his computer screen in the
    police car. As a result, it was entirely reasonable for him to ask the appellant
    to come over to the police car to compare the appellant with the image on the
    computer screen to properly identify him for
HTA
purposes.

[5]

When the appellant stepped out of his vehicle, the dime bags and rock of
    cocaine around the drivers seat were in plain view.

[6]

We are of the view that the result of this appeal is governed by the
    remarks of Doherty J.A. in
Brown v. Durham Regional Police Force
(1998),
    131 C.C.C. (3d) 1 (Ont. C.A.) that the trial judge relied upon:

The gathering of police intelligence is well within the ongoing
    police duty to investigate criminal activity. As long as the additional police
    purpose is not improper and does not entail an infringement of the liberty or
    security of the detained person beyond that contemplated by the purpose
    animating s. 216(1) of the
HTA
, we see no reason for declaring that a
    legitimate police interest beyond highway safety concerns should taint the
    lawfulness of the stops and detention.

[7]

The appellant argues that there was no legitimate other purpose in this
    case because the officer intended to embark on a general inquisition of what a
    citizen was doing in the bank parking lot at that late hour.  We do not accept
    this characterization. The officers purpose is within the ambit of the
    purposes enumerated in para. 44 of
Brown
. As Doherty J.A. said in the
    passage quoted above, the gathering of police intelligence is well within the
    ongoing police duty to investigate criminal activity.

[8]

The trial judge properly concluded that there was no breach of either s.
    9 or s. 8 of the
Charte
r. There is no need to address s. 24(2).

[9]

The appeal is dismissed.

R.G.
    Juriansz J.A.

David
    Watt J.A.

Lois
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Siconolfi, 2015 ONCA 896

DATE:  20151216

DOCKET: C59538

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sabrina Siconolfi

Appellant

Catriona Verner, for the appellant

M. Campbell, for the respondent

Heard and released orally: December 11, 2015

On appeal from the sentence imposed on September 6, 2013 by
    Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant pleaded guilty to criminal negligence causing death.  On
    July 9, 2010, her two-year old daughter died of heat stroke from exposure to a
    hot environment.  She had received multiple injuries which did not cause her
    death but compromised her health.

[2]

The appellant acknowledged that she had care and control of her daughter
    in the days prior to her death and exclusive care of her between July 6 and 9.
    She also acknowledged that some of the injuries were caused by her.

[3]

The appellant was sentenced to 6 years less 6 months credit for time
    served.  She seeks leave to appeal her sentence.

[4]

The appellant advances three grounds of appeal.

[5]

First, she submits that the sentencing judge erred in his conclusions on
    the appellants beating of her child.  We disagree.  The sentencing judge found
    that the appellant beat her chid with her hands and with an object and that the
    beating occurred over the two to three days before the childs death.  Nothing
    in the appellants affidavit before the sentencing judge detracts from this
    finding.  We would not give effect to this first ground of appeal.

[6]

Secondly, the appellant submits that the sentencing judge erred in
    refusing to give any credit for pre-trial house arrest.  For two and one half
    years, the appellant was under house arrest and could only leave her house with
    a surety.  She states that her request for six months credit was reasonable.

[7]

The sentencing judge was clearly alive to
R. v. Downes
(2006),
    205 C.C.C. (3d) 488 (Ont. C.A.).  He considered the issue of credit and in the
    absence of any evidence on the impact of the bail terms on the appellant, he
    exercised his discretion to give the appellant no credit.  We defer to that
    exercise of discretion.

[8]

Thirdly, the appellant submits that the sentencing judge erred in his
    description of the sentencing range for criminal negligence causing death of a
    child as being in the mid-single digits to the low double digits.  She argues
    that this was her first jail term and three years reflected the bottom of the
    range as reflected in
R. v.

Da Silva
(2005), 203 C.C.C. (3d)
    1 (Ont. C.A.), a case that lacked the mitigating factors present here.

[9]

The sentencing judge noted that there was no clear range of sentence for
    the offence of criminal negligence causing death in the context of the death of
    a child and he did not establish one.  Moreover, ranges are guidelines.  The
    appellant had a high level of moral blameworthiness and her offence involved a
    vulnerable infant victim.  The appellant was in an obvious position of trust, intentionally
    caused injuries to her child, and delayed getting medical attention for this
    two-year old.  We see no reason to interfere with the sentence imposed.

[10]

While
    the appellant has made some progress while in custody, there is nothing in the
    fresh evidence that would impact the fitness of the sentence rendered.

[11]

The
    fresh evidence is admitted, leave to appeal sentence is granted and the sentence
    appeal is dismissed.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2015 ONCA 855

DATE: 20151207

DOCKET: C59672

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasvir Singh

Appellant

Walter Fox and Sayeh Hassan, for the appellant

Deborah Calderwood, for the respondent

Heard: December 1, 2015

On appeal from the conviction entered on August 6, 2014 and
    the sentence imposed on November 28, 2014 by Justice Bonnie L. Croll of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant landlord operated a rental property in an unsafe manner
    that violated a number of provisions in Ontarios
Fire Code
, O. Reg.
    213/07. The premises had been inspected a number of times before the fire and
    the appellant had been told  repeatedly  that specific upgrades, including a
    system of linked smoke alarms and pulls, with smoke alarms in every bedroom, were
    necessary in order to bring the property into compliance with the
Fire Code
.
    Also no cooking was allowed in the bedrooms.

[2]

A fire started on the premises when one tenant  Karnail Dhaliwal  who
    had been drinking excessively, left on the hot plate in his room and his blanket
    and mattress caught fire. None of the tenants were alerted to the fire by the
    sound of a fire alarm.

[3]

Mr. Dhaliwal stayed in his room to try and fight the fire. He died from
    smoke inhalation. Another tenant  who tried to help Mr. Dhaliwal  suffered serious
    burns and was in hospital for four days. Two others fled the premises for their
    lives and were treated for smoke inhalation.

[4]

The appellant was convicted, following a judge-alone trial, of criminal
    negligence causing death, criminal negligence causing bodily harm, and four
    counts of mischief endangering life. A global sentence of three years
    imprisonment was imposed.

[5]

At the oral hearing of this appeal, the appellant abandoned his appeal
    in relation to the mischief convictions and sentence and focussed his
    submissions on the conviction for criminal negligence causing death. He
    contends that there was no direct relationship between his conduct and Mr.
    Dhaliwals death. Given that Mr. Dhaliwal stayed in his room to fight the fire,
    he says that there was no evidence that the smoke alarms called for by the
Fire
    Code
would have saved him. Consequently, the appellant submits, the trial
    judge erred in finding that his negligence was the legal cause of Mr.
    Dhaliwals death.

[6]

We do not accept this submission.

[7]

As the trial judge correctly noted, the test for determining legal
    causation is whether the appellants conduct was a significant contributing cause
    of Mr. Dhaliwals death:
R v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488,
    at paras. 69-72;
R. v. Shilon
, 240 C.C.C. (3d) 401, [2006] O.J. No.
    4896 (C.A.), at paras. 27, 30.

[8]

On the findings of the trial judge, it is clear that:

1.

there were no smoke alarms in each upstairs bedroom;

2.

the appellant knew that Mr. Dhaliwal cooked in his room but failed to
    take effective measures to prevent this;

3.

the appellant knew that Mr. Dhaliwal was a serious alcoholic who was
    very often drunk, while in his room in the property;

4.

the appellant knew that the smoke alarms that were in the house were not
    working;

5.

when the appellant was advised that he was in breach of the
Fire

Code
,
    he failed to complete the required upgrades, thereby risking the lives and
    safety of his individual tenants;

6.

the appellant deliberately deceived the fire inspector into believing
    that a group of tenants, living as a family, occupied the second floor of the
    property and he did so to avoid the costs of bringing the premises into
    compliance;

7.

had the required interconnected smoke alarms and pull system been
    installed, they would have been activated within seconds of the fire starting,
    even before there were flames; and,

8.

the required smoke alarm system would have provided the occupants with
    the crucial time needed to avoid injury.

[9]

In short, the trial judge found that the appellant created an unsafe
    environment and that had he made the upgrades required by the
Fire Code
,
    the tenants would have been alerted to the fire before it became too large to
    extinguish.

[10]

We
    see no error in the trial judges findings or in her conclusion that the
    appellants actions were a significant contributing cause of Mr. Dhaliwals
    death.

[11]

Accordingly,
    the appeal is dismissed. As the sentence appeal was not pursued, it too is
    dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

David Watt J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

539(1)          Prior to the commencement of the
    taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the
    prosecutor, and

(b) shall, if application therefor is made by any
    of the accused, make an order directing that the evidence taken at the inquiry
    shall not be published in any document or broadcast or transmitted in any way
    before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the
    trial is ended.

(2)     Where an accused is not represented by
    counsel at a preliminary inquiry, the justice holding the inquiry shall, prior
    to the commencement of the taking of evidence at the inquiry, inform the
    accused of his right to make application under subsection (1).

(3)     Everyone who fails to comply with an order
    made pursuant to subsection (1) is guilty of an offence punishable on summary
    conviction

(4)      [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539;
    R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2015 ONCA 879

DATE: 20151210

DOCKET: C60779

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tegh Singh

Appellant

Mark M. Persaud and Julia A. Toso, for the appellant

Christopher Chorney, for the respondent

Heard: December 8, 2015

On appeal from the decision of Justice Kent of the
    Superior Court of Justice, dated July 6, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The arguments advanced in the Superior Court, and again in this court,
    confuse the function of a judge at the end of the trial with the function of a
    judge at the end of the preliminary inquiry.  As the preliminary inquiry judge
    repeatedly noted, she was concerned with the range of reasonable inferences
    available on the totality of the evidence, and not with the inference that
    should be drawn.

[2]

The Superior Court judge properly limited his review to a consideration
    of whether the totality of the evidence provided a basis for the committal
    order:  see paras. 13-17.  We see no reason to interfere with his conclusion.

[3]

Appeal dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2015 ONCA 831

DATE: 20151202

DOCKET: C57351

Hoy A.C.J.O., Laskin and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Smith

Appellant

Catriona Verner, for the appellant

Howard Leibovich, for the respondent

Heard: October 27, 2015

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice, sitting with a jury, on February 26,
    2013.

Pardu J.A.:

[1]

The appellant admits that he chocked the victim, dragged her into the
    basement of a store, and then strangled, punched, and kicked her. The victim
    died two days later, as a result of the injuries inflicted by the appellant.

[2]

At trial, the Crown alleged that the appellant was guilty of first
    degree murder. The appellant pled guilty to the offence of manslaughter, but
    denied that he had the necessary
mens rea
for murder. The only
    substantial issues at trial were whether he had the mental state for murder and
    whether it was first degree murder.

[3]

The appellant advances three grounds on appeal:

(1)

The
    trial judge erred by leaving unlawful confinement to the jury as a basis for
    first degree murder.

(2)

The trial judge erroneously gave the jury the impression that the
    appellant conceded that he had the intent required for murder.

(3)

The
    trial judge did not appropriately relate relevant evidence to the
mens rea
issue in his charge.

A.

Factual background

[4]

The following facts were not in dispute at the trial.

[5]

On May 25, 2010, the appellant was suffering from his heavy consumption
    of alcohol and cocaine the night before. His landlord was threatening to evict
    him if he did not pay the rent and he was experiencing symptoms of cocaine
    withdrawal. Consequently, the appellant was feeling paranoid and desperate for
    money.

[6]

The appellant decided to rob a store. He started looking for a store
    without any security cameras. Over a period of about an hour, he visited 20-30
    stores. He decided to rob the store where the victim was working as a shop
    attendant.

[7]

According to the appellant, his plan was to ask the victim to get an
    item from the back of the store and, while she was at the back, to open the
    cash register and run out with the money. The victim became suspicious of the
    appellant and started screaming when he approached her. The appellant put the
    victim in what he described as a sleeper hold, grabbing her neck and choking
    her, to try to render her unconscious.

[8]

The appellants plan did not work, and the complainant continued
    screaming. The appellant then began dragging the victim down the stairs into the
    shops basement. Halfway down, she stumbled and fell, landing on the basement
    floor. The accused went after her to the basement. The victim tried to get up,
    but the appellant prevented her from doing so. The appellant started strangling
    the victim with the headscarf she had been wearing. The victim continued making
    some noise, and so the appellant punched her and kicked her in the head four or
    five times. The appellant shattered her upper and lower jaw bones, broke her
    nasal bone, and partially tore off an ear.

[9]

The appellant stopped attacking the victim and left once she stopped
    making any noise. The victim died two days later, of strangulation and blunt
    facial trauma.

B.

analysis

(1)

Unlawful confinement

[10]

Section
    231(5)(e) of the
Criminal Code,
R.S.C. 1985, c. C-46, provides that
    murder is first degree murder when death is caused while committing or
    attempting forcible confinement.

[11]

Forcible
    confinement occurs where, for any significant length of time, the victim is
    coercively restrained contrary to her wishes so that she could not move about
    according to her own inclination and desire:
R. v. Pritchard
, 2008
    SCC 59, [2008] 3 S.C.R. 195, at para. 25. In order to establish a charge of
    first degree murder on the basis that the accused committed murder while
    committing or attempting forcible confinement, the act of killing and the act
    of confinement must be part of a single transaction, but must amount to
    distinct acts, such that the act of killing and the confinement are not the
    same:
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 50-53.
    The acts of confinement must go beyond the acts causing death.

[12]

The
    appellant submits that, in this case, unlawful confinement and first degree
    murder should never have been left to the jury, and that the conviction for
    first degree murder is therefore unreasonable. The appellant submits that
    applying pressure to the victims neck with the sleeper hold in the store and
    strangling, punching and kicking her in the basement were all one event
    amounting to the killing. Therefore, the appellant submits, there was no
    unlawful confinement over and above the acts that resulted in the victims
    death.

[13]

I
    disagree. It was open to the jury to conclude that putting the victim in the
    sleeper hold in the store and dragging her down the stairs amounted to unlawful
    confinement, which was both part of the same course of conduct leading to the
    victims death, and also distinct from the strangulation, punching and kicking
    which occurred in the basement. The restraint in the store was, according to
    the appellants own evidence, undertaken to stop the victim from screaming, and
    presumably to enable him to commit the robbery. After the victim landed on the
    basement floor, the appellant continued after her. His ensuing conduct in
    strangling her with her scarf and punching and kicking her could reasonably be
    viewed by a jury as acts distinct from putting her in, and maintaining her in,
    a sleeper hold and dragging her part way down the basement stairs.

[14]

Moreover,
    the present case is very similar to
Parris
. There, the victim was
    forcibly removed to a basement before being killed. At para. 57, Watt J.A.
    upheld a conviction for first degree murder on the basis that:

The charge made it clear that the unlawful confinement and
    killing must be separate acts, as well as essential components of a single
    ongoing transaction. The "distinct act" requirement demands only that
    the confinement be distinct and independent from the act of killing. That was
    so here. The unlawful confinement was not inherent in the very act of killing,
    but rather preceded it as Malcolm was removed from the main floor to the
    basement where he was eventually killed. [Citation omitted.]

(2)

Trial judges instructions in respect of intent

[15]

The
    appellant also submits that the trial judge erred in relating the evidence to
    the
mens rea
requirement for murder. Specifically, the appellant
    argues that the trial judges instructions implied that the appellant had
    admitted having the requisite
mens rea
.

[16]

Section
    229(a) of the
Criminal Code
provides that culpable homicide is murder:

(a) where the person who causes the death of a human
    being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows
    is likely to cause his death and is reckless whether death ensues or not.

[17]

The
    trial judge essentially took the first definition of intent, means to cause
    death, away from the jury, likely because of the appellants testimony that he
    did not intend to cause the victims death. He instructed the jury to focus on
    the second branch identified above. This was favourable to the accused, as it
    would have been open to the jury to infer from his acts that the appellant had
    the requisite intent to kill despite his denials.

[18]

However,
    the appellant takes issue with the following passage from the trial judges
    charge to the jury:

Set against the intoxication evidence as to the mental element
    required for murder was the information elicited by the Crown on
    cross-examination of [the appellant] to the effect that he had various
    opportunities to leave the scene prior to the murder, for example: when the
    sleeper hold did not work; and the victim stumbled and fell to the bottom of
    the stairs
Crown counsel suggested to [the appellant]
    that he knew that tying the headscarf around her neck could kill [the victim],
    as could the punching and kicking to the head and yet [the appellant] chose to
    continue
. As well, [the appellant] acknowledged that he stopped the
    assault immediately upon the victim becoming quiet, which the Crown suggested
    showed that [the appellant] was fully in control of his actions. [Emphasis added.]

[19]

The
    highlighted portion of this passage in the charge was based on answers given by
    the appellant in cross-examination, when asked about his knowledge of the
    effects of a sleeper hold and the act of choking someone with a scarf:

Q. You knew it could put someone unconscious, right?

A. Correct.

Q. You know if you keep someone unconscious long enough theyre
    going to die, right?

A. I know that.

Q. Sorry?

A. I know that, yes.

Q. You know that, right? And you knew that then, right?

A. Correct.

Q. And you know tying a scarf around someone neck, someones
    neck and pulling it tight will also cut off their airways right?

A. Correct.

Q. And if you do that long enough they will die as well, right?

A. Correct.

Q. And youre well aware of that, right?

A. Yes I am.

[20]

In
    my opinion, the trial judges instructions correctly summarized the exchange
    between Crown counsel and the appellant. Furthermore, it would have been
    abundantly clear to the jury from the instructions given to them that the
    appellant did not concede that he had the intent required for the murder.

[21]

The
    trial judge instructed the jury:

Of course if you believe the testimony of [the appellant] that
    he did not have the state of mind necessary to commit the offence of murder as
    charged, and subject to my further instructions to you about the law, you must
    find him not guilty of that charge. However, even if you do not believe the
    testimony of [the appellant], if it leaves you with a reasonable doubt about an
    essential element of the offence charged, you must find him not guilty of that
    offence. Even if the testimony of [the appellant] does not raise a reasonable
    doubt about an essential element of the offence charged, if after considering
    all the evidence you are not satisfied beyond a reasonable doubt of his guilt,
    you must acquit.

Based on the testimony of [the appellant] in court and the
    video of his interview by Detective Rodzoniak, [the appellant] denied having an
    intention to kill. The question of intent to kill is your decision to make on
    all the evidence. However, I suspect that you will concentrate your
    deliberations on the second option, namely whether the Crown has proved beyond
    a reasonable doubt that [the appellant] meant to cause [the victim] bodily harm
    that he knew was likely to cause her death and was reckless whether death
    ensued or not.

You may take into account, as a matter of common sense, that a
    person usually knows what the predictable consequences of his or her actions
    are and means to bring them about. However, you are not required to draw that
    inference about [the appellant]. Indeed, you must not do so if, on the whole of
    the evidence, including the evidence of the presence of alcohol, cocaine,
    and/or steroids in [the appellants] body, you have a reasonable doubt about
    whether [the appellant] had the intent required for murder.

Crown Counsel must prove beyond a reasonable doubt that [the
    appellant] had that intent. To decide whether he did, you should take into
    account the evidence about his consumption of alcohol and drugs, along with the
    rest of the evidence, including the evidence of steroid use, that throws light
    on his state of mind at the time the offence was allegedly committed.

To determine [the appellants] state of mind, what he meant to
    do, you should consider all the evidence.

The evidence of [the appellant] is that he drank a substantial
    amount of alcohol over the preceding night There is no evidence that the
    accused eliminates alcohol at an exceptional rate. It is a fair assumption,
    therefore, that [the appellant] was substantially intoxicated at the time of
    the offence. He also gave evidence that he had consumed about three-and-a-half
    grams of cocaine during the night, that he was an experienced consumer of
    cocaine and that it appeared to be of satisfactory potency. Although he
    admitted in his initial statement that he was coming down, that itself is a
    condition that has emotional and psychological impact.

This evidence is assisted by the expert opinion of Dr. Gojer,
    a forensic psychiatrist, who testified that withdrawal from cocaine often
    involves symptoms of paranoia, panic, feeling sketched and impulsivity; all
    emotions that [the appellant] said he experienced at this time.

It is the position of the defence that when [the appellant]
    assaulted the victim, he did so while under the influence of alcohol and other
    chemical substances, so that he responded with an irrational degree of violence
    to her screaming, that he never intended the death of the victim and that he
    did not foresee that what he did to her might cause her death.

(3)

Relation of evidence to the issue

[22]

The
    appellant also argues that the trial judge did not sufficiently relate the evidence
    presented at trial to the issue of whether the appellant had the requisite
mens
    rea.
I would reject this submission as well.

[23]

The
    defences position at trial was that the effects of the drugs and alcohol
    consumed by the appellant and his state of panic raised a doubt as to whether
    the appellant had the intent required for murder. In my opinion, the trial
    judge presented a sufficient overview of the relevant evidence.

[24]

As
    noted by Bastarache J. in
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523, at para. 57, [so] long as the evidence is put to the jury in a manner
    that will allow it to fully appreciate the issues and the defence presented,
    the charge will be adequate. In this case, trial judge reviewed the relevant
    expert evidence led on behalf of the appellant and accurately summarized the
    defences position at trial.

[25]

In
    assessing the sufficiency of the trial judges overview of the evidence, it
    should be noted that, this trial lasted only eight days. The evidence would
    have been relatively fresh in the jurys mind. Moreover, defence counsel had
    multiple opportunities to review drafts of the charge and made no objection to
    this part of the charge. While not conclusive, this lends force to the Crowns
    submission that the jury was not misled in respect of the issues at stake:
R.
    v. Bouchard
, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 38-39.

C.

disposition

[26]

For
    these reasons, I would dismiss the appeal.

Released: (J.L.) December 2, 2015

G. Pardu J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree John Laskin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tenny, 2015 ONCA 841

DATE: 20151202

DOCKET: C60327

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Alfred M. Tenny

Applicant (Appellant)

and

Her Majesty the Queen in Right of Ontario

Respondent (Respondent in appeal)

Gatlin Smeijers and Glen Jennings, for the appellant

Sylvia Davis, for the respondent

Heard: November 6, 2015

On appeal from the Order of Justice M. Gregory Ellies, of
    the Superior Court of Justice, dated March 26, 2015, with reasons reported at
    2015 ONSC 1471.

ENDORSEMENT

[1]

Does s. 26(3) of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (
POA
)
authorize service of a summons by registered
    mail on an individual who resides in the United States of America? For the
    reasons set out below, we hold that it does, and dismiss the appeal.

FACTUAL BACKGROUND

[2]

The appellant, Alfred M. Tenny, is the sole officer and president of
    1449817 Ontario Inc.  The company owns property in Timiskaming, upon which Mr.
    Tennys related companies carried out waste processing and ran a waste
    generator business until operations ceased in 2007.  The property has suffered
    serious environmental issues that have been of great concern to municipal and
    environmental authorities since at least 2004.

[3]

In September 2012, Mr. Tenny and the company pleaded guilty to charges
    and were convicted of failing to comply with a provincial officers order to remove
    and dispose of chemical waste materials remaining on the property. As part of
    the sentence, the court issued a consent remediation order requiring Mr. Tenny
    and the company to remove and dispose of all waste materials by June 2013. They
    failed to do so.

[4]

In April 2014, both Mr. Tenny and the company were charged under s. 186(2)
    of the
Environmental Protection Act
,
    R.S.O. 1990. C. E.19 (
EPA
) for failure to comply with the 2012 remediation order
.

[5]

To compel Mr. Tennys attendance before the court, a summons was issued
    under s. 24 of the
POA
and delivered by registered mail to his last
    known address in the United States, under s.26(3). Section 26 provides:

(1)   A summons issued under section 22 or 24 shall,

(a)  be directed to the defendant;

(b) set out briefly the offence in
    respect of which the defendant is charged; and

(c)  require the defendant to attend
    court at a time and place stated therein and to attend thereafter as required
    by the court in order to be dealt with according to law.

Service

(2)  A summons shall be served by a provincial offences officer
    by delivering it personally to the person

Service
    outside Ontario

(3)  Despite subsection (2),
where the person to whom a
    summons is directed does not reside in Ontario
, the summons shall be deemed
    to have been duly served seven days after it has been
sent by registered
    mail to the persons last known or usual place of abode
. [Emphasis added.]

Service on corporation

(4)
Service of a summons on a corporation may
    be effected,

(b)     in the case of any corporation, other than a
    municipal corporation, incorporated or continued by or  under an Act by,

(i)      delivering the summons personally to the
    manager, secretary or other executive officer of the corporation or person apparently
    in charge of a branch office of the corporation, or

(ii)      mailing the summons by registered mail to
    the corporation at an address held out by it to be its address;

(c)     in the case of corporation not incorporated
    or continued by or under an Act by,

(i)      a method provided under clause (b),

(ii)      delivering the summons personally to the
    corporations resident agent or agent for service or to any other
    representative of the corporation in Ontario, or

(iii)     mailing the summons by registered mail to a
    person referred to in subclause (ii) or to an address outside Ontario,
    including outside Canada, held out by the corporation to be its address.

Date of mailed service

(4.1)
A
    summons served by registered mail under subsection (4) is deemed to have been
    duly served seven days after the day of mailing.

[6]

Mr. Tenny, who now resides in Lahaina, Hawaii, applied under s. 140 of
    the
POA
for an order of prohibition quashing the summons and prohibiting
    the proceedings against him, on the ground that the
POA

does
    not provide the necessary statutory authority for service of a summons on an
    individual who resides outside of Canada.

ANALYSIS

[7]

The parties agree that these are penal proceedings and service of a
    summons outside Canada must be authorized by statute:
R. v. Shulman
(1975),

23 C.C.C. (2d) 242
    (B.C.C.A.), [1975] B.C.J. No. 1055
. In
Shulman
, the
    British Columbia Court of Appeal held,
at para. 15,

[I]n penal proceedings such as those here a summons cannot
    properly be served on a person outside Canada without such service being
    authorized by a statute, and that in the absence of proper service the court
    has no jurisdiction over the person, even though it may have jurisdiction over
    the subject matter of the complaint.

[8]

This court considered whether summonses in relation to charges for fraud
    and conspiracy to commit fraud on a corporation were permitted to be served in
    the United States, in
R. v. R.J. Reynolds Tobacco Co. (Delaware)
, 2007
    ONCA 749, 230 C.C.C. (3d) 72. The application judge had quashed an order
    validating such service. This court found, at para. 6, that
Shulman
was still good law, and went on:

[T]he remaining issue is whether s. 701.1 of the
Criminal
    Code
, when read together with s. 26 of the
POA
, creates the
necessary
    express statutory authorization for service outside of Canada
. In our
    opinion, it does not. In our view, on a proper reading of ss. 701.1 and 703.1
    of the
Criminal Code
it is clear that the only authority provided in
    the
Criminal Code
for service of a summons is authority to serve the
    summons within Canada. Section 26(4) of the
POA
provides an additional
    means of service but it does not in any way expand on the express provisions of
    the
Criminal Code
relating to where a summons may be served. (Emphasis
    added.)

[9]

Mr. Tenny argues that, s. 26(3) of the
POA

does not
    create the necessary express statutory authorization for service outside of
    Canada, as required by
R.J. Reynolds Tobacco
. He asserts that
    language such as that now found in s. 26(4)(c)(iii) of the
POA
would suffice; it permits service on a corporation of a summons by registered
    mail to an address outside Ontario, including outside Canada, held out by the
    corporation to be its address.

[10]

We
    disagree, for two reasons. First, the plain language of s. 26(3), in the
    phrase, where the person to whom a summons is directed does not reside in
    Ontario, expressly refers to service on an individual who, like Mr. Tenny,
    resides outside of Ontario. On any reasonable interpretation, this expression
    would include persons living in the United States, which is outside Ontario.
    Mr. Tenny has not identified any authority that contradicts this
    interpretation.

[11]

Second,
    the legislative history of the
POA
contradicts Mr. Tennys
    interpretation. In its 2007 decision in
R.J. Reynolds Tobacco
,
this
    court
considered
the language
    in s. 26(4) of the
POA
,
which then provided:

(4) Service of a summons on a corporation may be effected by
    delivering the summons personally  or by mailing the summons by registered
    mail to the corporation at an address held out by the corporation to be its
    address, in which case the summons shall be deemed to have been duly served
    seven days after the day of mailing.

[12]

In
R.J. Reynolds Tobacco
, this language was found to be insufficient to authorize
    service outside Canada, since it was entirely silent on the issue. Nor did ss. 701.1
    and 703.4 of the
Criminal Code
,
    R.S.C. 1985, c. C-46
assist the Crown in that case, because they
    referenced only service of a summons within Canada.

[13]

In
    response to the

R.J. Reynolds Tobacco
decision, s. 26(4) of the
POA
was amended to include s. 26(4)(c)(iii), and the words outside Ontario,
    including outside Canada.  We infer that the legislature did not amend s.
    26(3) because it already provided for service on an individual resident outside
    Ontario. We do not see the minor differences in wording between the older s.
    26(3) and newer s. 26(4) as material to the interpretation of s 26(3).

[14]

We
    see no merit to Mr. Tennys argument that s. 26(3) of the
POA
is
    merely a deeming provision as to
when

service is effective.
    Section 26(3) speaks both to the place of service (i.e. not in Ontario), and to
    the time service is deemed effective (i.e. seven days after sending by
    registered mail). We observe that for corporations the place of service is
    addressed by s 26(4), and the time service is effective is addressed by s.
    26(4.1). The differences in expression appear to be no more than changes in
    legislative drafting style between 1979 when s. 26(3) of the
POA
was
    enacted (then as s. 27(3)), and 2009 when s. 26(4) was amended, not
    changes in legislative intention.

[15]

We
    note that giving effect to Mr. Tennys interpretation would create the absurd
    result that corporations could be served outside Canada but individuals could
    not. This would be inconsistent with the purpose of s. 26 of the
POA
which, as the application judge described it, at para. 53,
is intended to provide for service of a
    summons on individuals and corporations charged with a provincial offence in
    Ontario in the most efficient, inexpensive manner that will, at the same time,
    ensure as much as possible that the summons comes to the attention of the
    accused.

[16]

We
    agree with the application judges observation, at para. 17, that this court
    used the word expressly in

R.J. Reynolds Tobacco
to mean
    clearly and unambiguously.

[17]

Our
    interpretation is supported by the nature of the
POA
as a remedial
    statute, the purpose and objective of which is to provide a summary process for
    regulatory offences to which it applies. Such regulatory offences have long
    been viewed as public welfare offences, meant to protect society as a whole:
R.
    v. Sault Ste. Marie
, [1978] 2 S.C.R. No. 1299.  A liberal interpretation that
    facilitates the attainment of those objects is called for:
Ontario
    (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d) 37, at para.
    16;
Legislation Act, 2006
, S.O. 2006, c. 21, Sch. F, s. 64(1). The
    legislative intention reflected in the
POA

is to ensure that
    technical objections do not impede the arrival of a verdict on the merits:
Ontario
    (Ministry of Labour) v. Hamilton (City)
, at para. 21 citing
Ontario
    (Ministry of Labour) v. Discovery Place Ltd.
, [1996] O.J. No. 690 (Gen.
    Div.) at para. 18.

[18]

In our view, s. 26(3) clearly and unambiguously authorizes
    service of a summons on an individual outside Ontario, and outside Canada. The
    summons was properly served on Mr. Tenny. The appeal is dismissed.

Alexandra Hoy A.C.J.O.

J. MacFarland J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ward, 2015 ONCA 893

DATE: 20151215

DOCKET: C58022

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Ward

Applicant/Appellant

Brian Eberdt, for the applicant/appellant

Dayna Arron, for the respondent

Heard: December 11, 2015

On appeal from the decision of Justice J.E. Ferguson of
    the Superior Court of Justice, dated November 8, 2013.

APPEAL BOOK ENDORSEMENT

[1]

Leave to appeal is refused.  The bias argument is specific to this case
    and, in our view, does not raise an issue of significance to the general
    administration of justice.

[2]

We also do not accept the submission that the bias argument is a strong
    one.  The summary conviction appeal court judge considered the argument and
    rejected it.  We see no reason to repeat that review in this court.

[3]

Leave to appeal is refused.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Young, 2015 ONCA 926

DATE: 20151229

DOCKET: C60132

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Robert Young

Respondent

Brian G. Puddington, for the appellant

Robert Sheppard, for the respondent

Heard:  December 18, 2015

On appeal from the judicial stay of proceedings entered
    on February 11, 2015 by Justice A.T. McKay of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown appeals from the trial judges stay of all charges against the
    respondent. The trial judge stayed the proceedings on February 11, 2015 when Crown
    counsel failed to appear on time for the continuation of the trial against the
    respondent on charges of possession for the purpose of trafficking of marijuana
    and possession of a stolen laptop.

[2]

At 10:00 a.m. when the trial was fixed to resume, the trial Crown went
    to speak to a sentencing matter in the Superior Court. She sent another Crown
    counsel to request on her behalf that the trial be held down for thirty
    minutes.  The trial judge held the trial down for fifteen minutes and stated
    that he wanted to hear the trial Crowns explanation for her absence. The trial
    judge told assisting Crown counsel that he should be prepared to continue the
    trial if the trial Crown did not appear at 10:15 a.m. When the court resumed at
    10:15 a.m., no Crown counsel was present. The trial judge immediately stayed
    the charges on his own initiative. Assisting Crown counsel returned to court at
    10:16 a.m. and the trial Crown arrived at 10:22 a.m.

[3]

The fresh evidence shows that the sentencing matter arose quickly as a
    result of a guilty plea and had to proceed on February 11 so that the accused in
    this case could be admitted to a treatment program. The trial Crown, who had
    carriage of the file, had good reason to consider it urgent. However, as the
    trial judge observed, that doesnt mean that she can simply ignore her
    obligation here.

[4]

Efficient trial scheduling is incompatible with counsel deciding for
    themselves the priority of conflicting matters. The current version of the Practice
    Direction concerning dates in the Superior Court and Ontario Court of Justice
    is intended to ensure that trials, hearings and appeals are scheduled on the
    basis of chronological order in which lawyers make their commitments to appear
    in Court. To achieve that objective it provides:

By agreeing to a trial or hearing date, a lawyer is presumed to
    have made a commitment to appear on that date and to be bound not to make any
    other commitments that would make the lawyers appearance on that date
    impossible.

[5]

The trial judge quite properly considered the trial Crowns first
    obligation was to ensure the trial continued as scheduled. Faced with the
    conflict, she should have arranged to have another Crown counsel deal with one
    matter or the other.

[6]

Nevertheless, the appeal must be allowed. The trial judge could express
    his displeasure, but he erred by staying the proceedings. In this case, there was
    no prejudice to the respondents right to a fair trial and the continuation of
    the trial after the Crowns unexcused absence would not have diminished the
    integrity of the justice system. As such, this was not one of those clearest of
    cases in which a stay is warranted:
R. v Babos
, 2014 SCC 16.

[7]

The appeal is allowed, the order staying the proceedings is quashed and
    the matter remitted for a new trial.

R.G.
    Juriansz J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zarama, 2015 ONCA 860

DATE: 20151208

DOCKET: C59115

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Catalina Zarama

Appellant

Bruce Simpson, for the appellant

Phillippe Cowle, for the respondent

Heard: December 3, 2015

On appeal from the convictions entered on April 30, 2014
    by Justice Diane M. Lahaie of the Ontario Court of Justice.

ENDORSEMENT

[1]

Two police officers responded to a 911 call in the middle of the night. The
    appellant made the call but it had been disconnected before she said anything.

[2]

The officers went to the home from which the call had been placed. It
    was the appellants parents home. The parents invited the officers in and
    explained that the call had probably been placed by the appellant, who lived
    with them and suffered from mental health challenges. They indicated that she
    had not been taking her medication. The officers indicated that they needed to
    speak with the appellant to determine why she had called and if she needed
    help. The appellant was in her bedroom, yelling, and would not open her locked
    bedroom door.

[3]

The appellants mother picked the lock on the bedroom door. When the
    officers stepped into the bedroom they saw the appellant lying on her bed,
    holding a serrated kitchen knife. She got up and walked toward the officers,
    yelling You want this? You want this?

[4]

The officers drew their guns and yelled at the appellant to drop the knife.
    When the appellant moved towards her mother and one of the officers, that officer
    dove at the appellant (and her mother who was standing between the appellant
    and the officer) to take the knife away. While he attempted to wrestle the
    knife from the appellant, she resisted and cut his lip and scratched the back
    of his ear and neck.

[5]

The appellant was convicted of a number of assault offences, but was
    later found to be not criminally responsible. She appeals against the findings
    of guilt only.

[6]

The foundation for the appeal is the appellants submission that the
    officers were trespassing when they entered her bedroom and, consequently, she
    was justified in repelling them.

[7]

We reject this submission.

[8]

In our view, the police officers were acting reasonably, and within the
    scope of their duties, in responding to a disconnected 911 call.  Therefore,
    they were never trespassing.

[9]

The officers were entitled to assume that the appellant, as the maker of
    the 911 call, was in distress.  They were also entitled to physically locate
    the appellant within the home so that they could determine her reasons for
    making the call and provide such assistance as might be required.  This is so
    despite the assurances of the appellants parents that she was not in need of
    aid.  Consequently, as the appellant refused to leave her bedroom, the officers
    had the right to enter it because there was no other reasonable alternative for
    ensuring that she would receive any needed assistance in a timely manner.  See
R.
    v. Godoy
,
[1999] 1 S.C.R. 311, 1999 CanLII 709, at paras. 16-18, 19.

[10]

The
    trial judges findings with respect to what transpired in the bedroom,
    including the struggle, are well-founded in the evidence. In any event, the
    appellants use of force cannot be said to have been reasonable, in the
    circumstances of this case.

[11]

These
    determinations are dispositive of the substance of the appeal, apart from two
    remaining matters.

[12]

First,
    the Crown asks that this court amend count #1 of the indictment, pursuant to s.
    683(1)(g) of the
Criminal Code
, R.S.C. 1985, c. C-46, to particularize
    the use of a weapon as part of the aggravated assault charge, in order to
    regularize the conviction on the included offence of assault with a weapon. Counsel
    for the appellant conceded that no prejudice will ensue from the amendment.

[13]

We
    would make the requested order and amend the charge in the manner sought by the
    Crown.  Consequently, the amended charge would read as follows:

On or about the 5
th
day of May in the year 2010 at
    the City of Ottawa in the East/De LEst Region did, in committing an assault on
    Cst. Earl COOK, wound, maim, disfigure, or endanger the life of the said Cst.
    Earl COOK by using a weapon, namely a knife, and thereby commit an aggravated
    assault, contrary to section 268, subsection (2) of the Criminal Code of Canada
.

[14]

Second,
    we are satisfied that pursuant to s. 270(2) of the
Criminal Code
, in
    light of the conviction on count #1, the conviction on count #2  assault of Cst.
    Cook with intent to resist or prevent lawful arrest or detention  should be stayed
    in accordance with the
Kienapple

principle.

[15]

Accordingly,
    the amendment to count #1 is ordered, in accordance with the foregoing, and the
    appeal is allowed in one respect only, namely, count #2 is stayed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

David
    Watt J.A.