CITATION:
R. v. Boswell, 2011
          ONCA 283

DATE: 20110411

DOCKET: C45422

COURT OF APPEAL FOR ONTARIO

Cronk, Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leon Boswell

Appellant

Emily Morton, for the appellant

Susan Magotiaux and Joanne Stuart, for the respondent

Heard: April 1, 2011

On appeal from the conviction entered by
          Justice J. D. McCombs of the Superior Court of Justice, dated January 17,
          2003, and the sentence imposed by Justice McCombs, dated February 17, 2003.

CRONK J.A.:

[1]

After a trial by judge and jury, the appellant was
    convicted of second degree murder and sentenced to life imprisonment without
    eligibility for parole for 20 years.  He
    appeals his conviction.

[2]

There is one issue on this appeal.  The appellant argues that the trial judge
    erred by admitting opinion evidence from a police expert regarding the
    existence of a code of silence in the community where the killing occurred.  If accepted by the jury, this evidence could
    potentially explain why the main eyewitness to the murder initially lied to the
    police about whether he witnessed the murder and could identify the
    perpetrator.

I.         Background

[3]

Identity was the central issue at trial.  The Crowns sole witness on this issue was
    Shaun Sharp, a young man who lived in the Rexdale community in Toronto where
    the killing took place.  Sharp testified
    at trial that the appellant shot the victim, Wayne Reid, after a verbal
    altercation between Reid, on the one hand, and the appellant and his associate,
    Jermaine Grant, on the other hand.  Sharp
    was a friend of the victim, and knew both the appellant and Grant.  He testified that he was the only witness to
    the shooting, other than the appellant, Reid and Grant.

[4]

Sharp identified the appellant as the shooter in both a
KGB
statement
[1]
to the police and in a police photo line-up approximately 48 hours after the
    shooting.  However, on three separate
    occasions shortly after the killing and before he identified the appellant as
    the shooter, Sharp falsely claimed to the authorities that he did not witness
    the shooting and that he did not know the identity of the victims
    assailant.

[5]

It was the Crowns position that the shooting took
    place in a community affected by an ongoing war between competing gangs, in
    which violent and armed confrontations frequently occurred, including between
    members of the same gang.  As a result,
    the Crown moved before trial for a ruling from the trial judge permitting it to
    lead expert evidence from several police officers on various subjects relating
    to gang wars and gang culture.

[6]

One of the subjects on which the Crown sought to lead
    opinion evidence concerned the cultural values in play in high crime, high
    density communities in Toronto, like the Rexdale neighbourhood where the
    murder occurred, that allegedly led to a pervasive code of silence among gang
    members and others in the affected communities.  Specifically, as described in the appellants factum, the Crown sought
    to tender evidence from Detective Sergeant Comeau, a police expert on gangs, to
    the effect that:

[T]here was a code of silence that prevailed in
    these communities, and in particular the Rexdale communities at issue in this
    trial, such that residents who witnessed homicides would not provide
    information to police at all, either as a result of distrust of police or, more
    significantly, because of fear of violent retaliation.

[7]

It is undisputed that the Crown sought to elicit this
    evidence in order to provide context for Sharps failure to identify the
    shooter until 48 hours after the killing and to corroborate his claim that he
    did not initially identify the appellant as the shooter, in part, because he
    feared for his life if members of his community learned that he had co-operated
    with the police.

[8]

The Crown maintained that, without the proffered expert
    evidence on this alleged code of silence, including the fear of gang
    retribution for co-operating with the police, the jury would be unable to
    fairly assess Sharps initial lies to the police, his delayed identification of
    the perpetrator, and his alleged fear of being killed if he co-operated with
    the police.  The Crown argued that the
    code of silence evidence would inform the narrative of events surrounding the
    shooting, ensuring that the narrative would not appear illogical, and aid the
    jury in assessing Sharps credibility.

[9]

The defence resisted the admission of the evidence on
    several grounds.  It argued, among other
    things, that: (1) the police expert would express an opinion on Sharps
    credibility, as opposed to the general existence of a code of silence; (2) the
    evidence was unnecessary, as the existence of a code of silence in gang-dominated
    communities was notorious and Sharp and other fact witnesses could testify as
    to its existence in this case; and (3) as police officers, the experts proffered
    by the Crown were not objective.

[10]

The Crowns motion to lead expert evidence was heard
    over the course of a lengthy
voir dire
,
    during which the trial judge questioned counsel in detail and received
    submissions on the issues of relevance, necessity, prejudice and
    expertise.  Eventually, the trial judge
    denied the Crowns motion with two exceptions, one of which related to the
    proposed code of silence evidence.  In
    that regard, the trial judge expressed the view that the proffered evidence was
    highly probative because, [T]he average person might well be ignorant of the
    fact that in certain high crime, high density, urban areas,
a
code of silence exists based on fear of retaliation that is much more powerful
    than the average person would appreciate.  I will return to some of the specific details of the trial judges
    ruling later in these reasons.

[11]

The appellant attacks the trial judges admission of
    the code of silence opinion evidence on several bases.  He argues that: (1) it lacked any relevance to
    the factual issues to be determined by the jury; (2) it was unnecessary; and
    (3) it seriously prejudiced the appellant.  The appellant further submits that, although the trial judge attempted
    to constrain any impermissible use of the code of silence evidence by the jury,
    this evidence nevertheless served only to oath help, or gratuitously bolster,
    Sharps credibility.  As the evidence was
    therefore largely irrelevant, unnecessary and highly prejudicial, it had the
    irreparable effect of undermining trial fairness.

II.        Issues

[12]

As I have said, the only issue on this appeal is
    whether the trial judge erred by admitting the challenged code of silence
    evidence.

III.      Discussion

(1)

Test for Admission of Expert Evidence

[13]

The test for the admission of expert evidence is
    well-established and undisputed on this appeal.  At the first stage of the admissibility inquiry, the party seeking to
    tender expert evidence must establish on a balance of probabilities that the
    proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any
    applicable exclusionary rule; and (4) to be advanced through the testimony of a
    properly qualified expert.  Where these
    four preconditions to admissibility are satisfied, the second stage of the admissibility
    inquiry obliges the trial judge to engage in a contextual weighing of the
    probative value and significance of the proffered evidence to the case against
    the potential prejudice that could flow from its admission.  See
R.
    v. Abbey
(2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409
    N.R. 397 (note);
R. v. Mohan
, [1994]
    2 S.C.R. 9.

[14]

For the following reasons, I am satisfied that the
    preconditions for the admission of the code of silence evidence were met in
    this case and that the trial judge did not err in his admissibility analysis.

(2)

Preconditions to Admissibility

[15]

The
    appellant does not suggest on appeal that the code of silence evidence was
    subject to any exclusionary rule that would preclude its admission.  Nor does he contend that Detective Sergeant Comeau,
    the Crowns proffered expert witness on this issue, lacked the necessary
    qualifications to provide the evidence in question.  For the purpose of this appeal, therefore,
    only the relevance and necessity preconditions to the admissibility of the code
    of silence evidence are in issue.

(a)

Relevance

[16]

The
    appellant challenges the relevance of the code of silence evidence on two main
    grounds.  He argues that Sharp gave
    multiple reasons in his trial testimony for his initial decision to lie to the
    authorities, only one of which implicated a general code of silence in the
    community where the killing occurred.  In
    fact, the appellant maintains, on his own version of events, Sharps mistrust
    of the police and his fear of retaliatory consequences if he identified the
    shooter were not the main reasons prompting his initial lies to the police.

[17]

The
    appellant next submits that Sharps decision to co-operate with the police
    within 48 hours of the killing demonstrates that any code of silence that did
    exist was ineffective with respect to Sharp. It follows that the proposed
    rationale for the admission of this evidence did not arise on the facts of this
    case.

[18]

I
    would not give effect to these arguments for several reasons.

[19]

First,
    Sharp did provide several reasons for his initial lies to the police and his
    failure to immediately identify the shooter, one of which involved his hope
    that Reid would survive and that, together, they could exact private revenge
    for the shooting.  However, he also
    testified about his distrust of the police, his communitys distrust of the
    police and the justice system, and his own fear of physical harm if it was
    discovered that he had identified the shooter.

[20]

During
    his examination-in-chief at trial, Sharp was questioned as to why he initially
    lied to the police about whether he saw the shooting and knew the identity of
    the shooter.  He stated that he lied to
    the police the first two times because he expected Reid to come out of it
    and then we would go after revenge and, further, that he lied [t]he third
    time just to stick with the story.  However, almost immediately thereafter, he elaborated: We dont talk to
    the police.  We dont tell police what
    happened.  We just take care of our own
    justice.  He went on to agree that it
    was a widely held view in his community, which he shared, that the police could
    not be trusted to do things right.

[21]

Sharp
    repeated his claim that members of his community just dont talk to the
    police several times throughout his evidence.  He also testified that he was concerned about talking to the police
    because of what would happen to him when people found out that I was the one
    who talked
,
including the possibility that someone
    would come to his house and kill him.  When pressed on this issue during cross-examination, Sharp testified that
    when the victims mother urged him to tell the truth to the police after the
    shooting, the only concern I had was for the fact that I might get killed for
    talking and that he was worried about the code of not talking and getting
    killed.  Finally,
Sharp
also testified that he no longer lived in his former Rexdale community and
    would not return there, even to visit friends, since he thought that he would
    be shot and killed if he did so as a result of co-operating with the police in
    this case.

[22]

Based
    on this evidence, I do not agree with the appellants contention that Sharps
    claimed distrust of the police and his fear of retaliation did not figure
    prominently in his explanation for his initial lies to the police.  On the contrary,
Sharp
clearly identified these factors as influencing his conduct in the first 48
    hours after the shooting.  It was for the
    jury, as the trier of fact, to determine what weight, if any, to assign to
    these considerations in assessing
Sharps
credibility.

[23]

Nor
    do I agree that the code of silence in Sharps community as described both by
    Comeau and Sharp in their testimony did not arise on the facts of this
    case.  On Sharps own evidence, outlined
    above, this code of silence was clearly implicated.  The fact that Sharp ultimately decided to
    identify the shooter for the police does not mean that a code of silence did
    not operate to prevent him from doing so immediately after the shooting.

[24]

Finally,
    the threshold for establishing relevance for the admission of expert evidence
    is not particularly onerous.  As this
    court indicated in
Abbey
at para. 83,
    To be relevant, the evidence must not only be logically relevant but must be
    sufficiently probative to justify admission.

[25]

Comeaus
    testimony bore on the general issue whether a code of silence existed in the
    Rexdale community where Reid was murdered.  Comeau did not comment on the truthfulness of any particular witness,
    including Sharp.  Nor did he comment on
    whether
Sharp
or any other witness was actually
    affected or lived by a code of silence in relation to the police.  Rather, based on his prior policing
    experience in the Rexdale community at issue, he testified about the general
    existence of a code of silence in the affected community, the nature of that
    code, and whether it rendered the failure to provide information to the police
    unusual.  In these circumstances, the
    jury was properly left to draw its own conclusions about why
Sharp
lied to the police.

[26]

In
    my opinion, this evidence, if accepted by the jury, provided context for the
    jury to understand the cultural mores at play in the affected Rexdale community
    that may have caused a community member like Sharp to lie to the police. This
    is not the same thing as evidence indicating that a code of silence, or other
    cultural community value, in fact operated to cause a witness to lie to the
    police.

[27]

The
    trial judges evaluation of the relevance of the code of silence evidence was
    considered and thorough.  It attracts
    significant deference from this court.  I
    see no basis on which to interfere with his ruling on this issue.

(b)

Necessity

[28]

I reach a similar conclusion concerning the necessity
    of the code of silence evidence.  In my
    opinion, on the facts of this case, it was open to the trial judge to conclude that
    the jury needed to hear this evidence in order to be made aware of the
    existence and nature of a code of silence in Rexdale at the time of the
    murder.

[29]

As the trial judge observed, knowledge of the existence
    of such a cultural phenomenon and of its implications are not matters within
    the everyday experience of the average person, even in Toronto. The
    determination of what matters fall within the normal experience of jurors is
    squarely within the trial judges domain: see
R. v. D.S.F.
(1999), 43 O.R. (3d) 609 (C.A.).

[30]

The appellant argues, in effect, that while the code of
    silence evidence may have been necessary in this case, it was not necessary
    that it be adduced through an expert police witness. He submits that evidence
    of the code of silence was available from Sharp and, to a lesser extent, from
    some of the alibi witnesses called by the appellant.

[31]

I have already outlined the nature of Sharps evidence
    regarding the code of silence. While Sharp testified about this code and its
    effect on his conduct, his credibility was very much in issue and was
    vigorously attacked by the defence. Indeed, as a result of significant concerns
    about Sharps credibility and reliability, the trial judge provided a strong
Vetrovec
warning to the jury in relation
    to his testimony: see
Vetrovec v. The
    Queen
, [1982] 1 S.C.R. 811.  In these
    circumstances, it cannot be said that expert evidence regarding the general
    existence of a code of silence and its nature was unnecessary because the
    evidence was otherwise available through Sharp.

[32]

Nor does the evidence of the defence alibi witnesses
    render Comeaus testimony unnecessary. Those witnesses provided some evidence
    about the reasons why a community code of non-co-operation with the police
    could account for the failure of additional community members to provide alibi
    evidence for the benefit of the appellant. However, their testimony did not
    concern the possible operation of a community code of silence as a causal
    factor in the provision of false information to the police.

[33]

The trial judge, an experienced criminal law jurist,
    was best-positioned to assess the necessity for the admission of the code of
    silence evidence. His assessment of that issue also attracts considerable
    appellate deference.

[34]

As a final point, the Crown underscores that the
    defence position at trial, emphatically outlined for the jury, was that Sharp
    was a liar who lived in a dream world detached from reality. The nature of
    this theory provided additional support for the trial judges conclusion that
    it was necessary, in order that the jury not be misled, that it
hear
from Comeau about the common experience and prevalence
    in the community of a code of silence.

(3)

Requisite Balancing Exercise

[35]

The transcript from the
voir dire
reveals that the trial judge was acutely aware of the
    need to ensure that the jury was not misled by the evidence led at trial and,
    as well, that any prejudice to the appellant be prevented.  As a result of frequent exchanges with
    counsel during the
voir dire
, the
    Crown eventually acknowledged that the required code of silence evidence could
    be introduced at trial without any reference to gangs.  Without resiling from his primary position
    that the code of silence evidence was inadmissible, defence counsel at trial
    (not counsel on appeal) suggested that, [I]t might be possible to address these
    issues in a compromise form if the word gang is not uttered, since this
    approach would minimize prejudice.

[36]

In his exchanges with counsel, the trial judge
    expressed this tentative view:

The truth is he [Sharp] is a liar, he told two
    different versions, but the question is why
did he lie
.  Hes going to have to say, Yes, I
    lied.  The question is why.  The question is
,
is
    the Crown entitled to call evidence that would lend credence to his explanation
    as to why he lied?  That, it seems to me,
    has important and powerful probative value that might well be capable of
    outweighing even the highly prejudicial evidence that your client is a member
    of a gang.  Thats where my problem
    is.
So
    if we can leave the G word out of this and not preclude the Crown from having
    the jury understand these things, then it strikes me as an exquisite balance
    between competing interests and ensuring fairness to both sides.
Thats my present view.  [Emphasis added.]

[37]

Thereafter, the trial judge continued to hear
    submissions before ruling that the code of silence evidence would be admitted,
    under certain strict safeguards.  The
    importance of these safeguards, both to an understanding of the trial judges
    ruling and to the prevention of any risk at trial that the jury might misuse
    the code of silence evidence, cannot be overstated.  These safeguards included the following.

[38]

First, the trial judge prohibited any reference, by
    anyone at trial, to gangs.

[39]

Second, counsel negotiated, and the trial judge
    approved, the language and content of the evidence to be given by Comeau.  The effect of this was to narrowly confine
    the scope of Comeaus testimony.  As
    vetted by the trial judge, the approved script eventually read as follows:

There is a code of silence in high crime, high
    density neighbourhoods that exists in part because of distrust of police and in
    part because of fear of violent retaliation if the witness gives information to
    the police.  In these specific Rexdale
    communities during the relevant time period, the code of silence that existed
    far exceeded that which the police normally encounter in investigating murders
    in high crime urban areas.  This code of
    silence was
a result
of the fact that people living in
    this community were terrified to identify anyone who they knew or believed to
    have committed a violent offence.

Project Alliance operated in the area for nine
    months and failed to turn up a single witness willing to testify.  The reason for this extreme fear was the
    expectation that anyone that did rat (i.e. provide information to the police)
    could expect to face very violent consequences potentially, including
    death.  It was not at all unusual for
    witnesses to murder in this area to lie to the police claiming to know nothing
    because of the extreme fear of retaliation.  It would be reasonable for a person living in this community and having
    witnessed a homicide to fear for his life if he were to provide information to
    the police.

[40]

The trial judge also made it clear that Comeau would
    not be permitted to opine on the truthfulness of Sharp or that of other
    witnesses and that, if Comeau strayed in his testimony from the approved
    parameters of his evidence, the trial judge would unhesitatingly excuse the
    jury.  Sharp was also directed to avoid
    any references to gangs in his testimony.  The transcript reveals that when Comeau was asked questions
by defence counsel
, where the answers might
    require him to tread into impermissible areas, he steadfastly declined to
    answer the questions posed, indicating that he could not comment on the application
    of the code of silence to any particular individual. In several of these
    instances, the trial judge promptly excused the jury to review and rule on the
    propriety of the questioning.

[41]

Third, the trial judge also addressed the manner in
    which Comeau could offer his opinion evidence.  Comeau was directed to give his testimony in a non-emotive fashion, to
    use language in the past tense to avoid any suggestion of recent violence, and
    to refrain from mentioning race.

[42]

Fourth, and importantly, at the conclusion of Comeaus
    evidence, the trial judge provided the jury with a clear mid-trial instruction
    on the use of expert evidence, including Comeaus evidence.  In so doing, he cautioned the jury, in blunt
    and unambiguous terms, that it was the supreme arbiter of the facts, that
    expert evidence could not replace the jurys own assessment of the evidence and
    that expert testimony was no more important than any other evidence.

[43]

Fifth, the trial judge gave an equally clear and more
    detailed instruction in his charge to the jury on the permissible use of expert
    evidence.  In that instruction, he repeatedly
    emphasized that it was for the jury to decide whether to accept any witness
    testimony, in whole or in part, that the jury was the sole judge of the facts,
    and that there were very important limitations on the use that [the jury] can make
    of Comeaus evidence.  On at least five
    occasions, the trial judge told the jury that Comeaus evidence on the code of
    silence was admitted for a limited purpose. He described that purpose as being
    to help [the jurors] to understand things that [they] may not have known from
    [their] experience, namely, cultural values in the affected communities
    that, if the code of silence evidence was accepted by the jury, might be taken into
    account in assessing Sharps testimony as to why he initially lied to the
    police regarding the murder.  In
    providing this caution, the trial judge twice told the jury that Comeaus
    evidence could not be used to bolster or prop up Sharps evidence, as this
    would constitute impermissible oath helping and, further, that Comeaus
    testimony could not be used as a basis on which to conclude that Sharp had
    eventually told the truth, both to the police and to the jury.

[44]

The trial judge went even further. In his charge, he
    reminded the jury that Comeau had acknowledged that people lie to the police
    for a variety of reasons, unrelated to the code of silence. He also invited
    the jury to consider whether
Sharp
had lied to the
    police for reasons other than fear of reprisal, for example, out of a desire to
    deflect blame away from himself. He concluded his instruction concerning
    Comeaus testimony by stating that Comeau was not an expert on determining the
    truth and again told the jury that it would be wrong for it to be influenced
    by any opinion that it thought Comeau may have had about Sharps courage or
    believability.

[45]

The trial judge went to extraordinary lengths to
    safeguard against the impermissible use of Comeaus testimony by the jury and
    to thereby prevent prejudice to the appellant arising from this evidence.  Having implemented these protective measures,
    the trial judge enforced them, ensuring that Comeau did not transgress the
    previously approved parameters of his testimony  even when invited to do so by
    the defence  and that the jury understood the narrow and limited permissible use
    of his evidence.  Short of refusing to
    admit the code of silence evidence entirely, evidence which I regard as having
    been both relevant and necessary at this trial, it is difficult to conceive
    that the trial judge could have done more.

[46]

Finally, for many of the reasons already given, it is my
    opinion that the trial judges balancing of the benefit or value of admitting
    Comeaus evidence against the prejudice or cost to be occasioned by its
    admission was unimpeachable.  The trial
    judge identified the limited purpose of the code of silence evidence,
    repeatedly cautioned the jury about that limited purpose and the impermissible
    use of the evidence, and guarded against its misuse throughout.  I have no hesitation in concluding that he
    removed any realistic risk that the jury would engage in impermissible
    reasoning in relation to the code of silence evidence.

[47]

I therefore agree with the Crowns submission, set out
    in its factum:

In sum, the minimal cost of admission was
    manageable.  Through the extraordinary
    measure of removing the word gang from the entire trial, the trial judge
    sufficiently sanitized the evidence to prevent any risk of the jury engaging in
    unfair propensity reasoning.  He also
    used every preventative measure available to him to limit or prevent any other
    potential prejudice resulting from the admission of the opinion evidence.  He limited the scope of the proffered
    opinion, he set out specific wording to prevent a witness from running afoul of
    his ruling,
he
cautioned witnesses on limits prior to
    testimony, and delivered mid-trial and final instructions delineating both the
    appropriate and impermissible uses of the evidence.  In the end, he attained the exquisite
    balance he sought.

IV.      Disposition

[48]

Accordingly, for the reasons given, I would dismiss the
    appeal.

RELEASED:

APR 11 2011                                            E.A.
    Cronk J.A.

EAC                                                            I
    agree S.E. Lang J.A.

I
    agree David Watt J.A.

[1]

R. v. B. (K.G.)
, [1993] 1
    S.C.R. 740.


CITATION:
R. v. Brunet, 2011 ONCA 262

DATE: 20110407

DOCKET: C49414

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Steven John Brunet

Appellant

Howard Krongold, for the appellant

Benita Wassenaar, for the respondent

Heard and endorsed: April 1, 2011

On appeal from conviction entered by Justice B. Manton of the
          Superior Court of Justice dated May 6, 2008 and sentence imposed on July 12,
          2008.

APPEAL BOOK ENDORSEMENT

[1]

Following a thorough review of the evidence, on Counts
    1 and 2, the trial judge gave two conclusory reasons for rejecting the
    appellants evidence and he made no comments at all about the complainants
    evidence. He then went on to consider Count 3 and gave a brief but meaningful
    explanation as to why he had a reasonable doubt on that count.

[2]

In these circumstances, we agree wtih the appellant
    that the reasons for conviction on Counts 1 and 2 do not adequately perform the
    function for which they are required, namely, to allow us to review the
    correctness of the trial decision.

[3]

Accordingly the appeal is allowed and a new trial is
    ordered on Counts 1 and 2 and Counts 4 and 5 that are tied to the convictions
    of Counts 1 and 2.


CITATION:
R. v. Cain, 2011
          ONCA 298

DATE: 20110414

DOCKET: C45822

COURT OF APPEAL FOR ONTARIO

Sharpe, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rodney Darren Cain

Appellant

Philip Campbell, Jonathan Dawe and Sean T. MacDonald, for the
          appellant

David Finley, for the respondent

Heard: March 16, 2011

On appeal from the conviction imposed
          by Justice Todd L. Archibald of the Superior Court of Justice, sitting with a
          jury, on June 23, 2006.

By the Court:

[1]

This appeal arises from the shooting and death of Joel
    Willis in 1985.  At his first trial, the
    appellant was convicted of second degree murder and sentenced to life
    imprisonment.  A key Crown witness later
    recanted his original account and the Minister of Justice directed a new trial.
     At the second trial, eighteen years
    after the first, the jury acquitted the appellant of second degree murder but
    convicted him of manslaughter.  The
    appellant was sentenced to one day imprisonment plus time served.  He appeals his conviction to this court,
    having abandoned his sentence appeal.

[2]

The sole defence raised at both trials was
    self-defence.  The appellant admitted to shooting
    the victim in the chest, in a back alley adjacent to an illegal after-hours
    booze can operated by the victim and his brothers in Toronto.  The shooting followed an incident earlier the
    same night involving the victim, the victims brother Lester and the
    appellants brother Martin.  That
    incident was in turn provoked by a dispute between Lester Willis and the
    appellant.  Lester and the appellant were
    fellow drug dealers.  When Lester was
    arrested on drug charges, the appellant promised to help pay his legal fees but
    never followed through.  When the
    appellants brother Martin came to the Willis establishment earlier on the
    night of the shooting, Lester robbed him of drugs and money, apparently to make
    a point to the appellant.  The appellant
    returned shortly thereafter with a loaded handgun.  He told the club doorman, Harold
Howe, that
he wanted to speak to Lester.  When Howe informed the Willis brothers that
    the appellant was outside, Joel Willis armed himself with a wooden bat and
    emerged from the club to confront the appellant.  That confrontation led directly to the
    shooting and death of Joel Willis.

[3]

Harold Howe was the crucial witness at both trials.  At the first trial, he testified that Joel
    Willis had approached the appellant in a non-threatening fashion and that the
    appellant had fired while Willis was standing several feet away and not posing
    any immediate threat.  At the second
    trial, Howe testified that Joel Willis had advanced in an aggressive fashion
    towards the appellant while waiving the bat, and that the appellant drew his
    gun and shot Willis only after Willis had closed the gap between them to a
    short distance and appeared to be about to strike the appellant with his
    upraised bat.  At the second trial, the
    appellant relied heavily on Howes evidence in support of the claim of
    self-defence.  The Crown sought and was
    granted a
KGB
ruling to admit Howes earlier
    evidence from the first trial.  The
    appellant did not testify in his own defence and called no evidence.

[4]

It was common ground at trial and on this appeal that
    the issue of self-defence rested solely on s. 34(2) of the
Criminal Code
:

34(2)
Every
one who
    is unlawfully assaulted and who causes death or grievous bodily harm in
    repelling the assault is justified if

(
a
)
he
causes it under reasonable apprehension of death or grievous bodily harm from
    the violence with which the assault was originally made or with which the
    assailant pursues his purposes; and

(
b
)
he
believes, on reasonable grounds,
    that he cannot otherwise preserve himself from death or grievous bodily harm.

[5]

The appellant concedes that the trial judge delivered a
    model s. 34(2) instruction.  However, he submits
    that the trial judge erred by failing to correct two allegedly improper
    submissions made by Crown counsel in his closing address: 1) the submission
    that the appellant failed to retreat, and 2) the submission that the appellant
    did not fear the victim Joel Willis.

Analysis

1. Did the trial judge err by failing to correct
    Crown counsel's submission to the jury on the issue of retreat?

[6]

The appellant submits that in the following passage
    from Crown counsels closing address to the jury, Crown counsel invited the
    jury to conclude that the appellants failure to retreat during the early
    stages of the confrontation with Joel Willis precluded him from claiming
    self-defence:

Mr. Howe testified that
    it seemed as if Joel took a lot of steps towards the accused.  For every step that Joel took towards the
    accused, the accused backed up a step.
Interestingly, ladies and gentlemen, the
    accused never turned around to leave even according to Mr. Howe.  He never left the parking area.  We know that he had the laneway behind
    him.  We know the configuration.  He has the laneway behind him leading to
    Kenwood Avenue.  It was a clear path of
    retreat.

The only person we
    have heard was behind him and to his side was Joe Patterson.  There is, certainly, no suggestion that on
    that date Joe Patterson was an ally of the Willises.  Given his reason for visiting the club, it
    was more like he was an ally to the accused or Martin Cain.
So we
    have Rodney Cain with a clear path of retreat behind him but [he] chooses to
    retreat slowly, and allow Joel Willis to close the gap.

Perhaps [counsel] for the defence will argue that it would have been
    dangerous for Rodney Cain to turn his back on Joel.
That
    argument might hold some water in the final stages where Joel was fairly close
    to the accused, but what about earlier, earlier on before Joel had closed the
    distance?  Why didnt the accused make a
    genuine retreat at that point?
[Emphasis added.]

[7]

The appellant submits that Crown counsel left the jury
    with the misleading impression that the appellants failure to retreat while
    Joel Willis was still a safe distance away precluded him from later claiming
    self-defence under s. 34(2), even if retreat was no longer a viable option when
    the appellant actually shot Willis.

[8]

The elements of the s. 34(2) defence were recently described
    as follows by Doherty J.A. in
R. v. Craig
,
    2011 ONCA 142, at paras. 33, 36:

In
R.
    v. Pétel
, [1994] 1 S.C.R. 3, at pp. 12-13, the court identified three
    elements to self-defence under s.
34(2)
of the
Criminal Code
:

an
unlawful assault, or at least a reasonable belief by the accused that he or she
    was being assaulted;

a
reasonable apprehension of risk of death or grievous bodily harm; and

a
reasonable belief that it is not possible to preserve ones self from harm
    except by killing the perpetrator of the assault.

...

The elements of self-defence in s. 34(2) as
    described in
Pétel
have both a subjective and objective component.  For example, an accused must actually
    apprehend the risk of death or grievous bodily harm.  This is a subjective inquiry into the mind of
    the accused at the relevant time.  That
    apprehension, however, must be reasonable in the circumstances as perceived by
    the accused.  This is an objective
    inquiry that serves to limit the defence to circumstances where the accuseds
    conduct would be seen as normatively justified: [citations omitted].

[9]

Unlike s. 35 of the
Criminal
    Code
, s. 34(2) does not require defendants to retreat in the face of an
    assault, but rather permits defendants to stand their ground during the early
    stages of a confrontation.  However, as
    the appellant properly concedes, the possibility of retreat is relevant to the
    second and third elements of the s. 34(2) defence, namely, the issues of
    whether the appellant did have a reasonable apprehension of death or grievous
    bodily harm, and whether the appellant had a reasonable belief that it was not
    otherwise possible to save himself from harm except by killing Willis: see
R. v. Proulx
(1998), 127 C.C.C. (3d) 511
    (B.C. C.A.), at paras. 39-51;
R. v.
    Druken
(2002), 164 C.C.C. (3d) 115 (Nfld. C.A.), at para. 24;
R. v. Nieto
(2007), 222 C.C.C. (3d) 510
    (Man. C.A.), at para. 29.

[10]

The issue of retreat was also relevant to the Crowns
    position that, from the start, the appellant had come to settle a score and
    that he had not acted in self-defence.

[11]

It follows that Crown counsel was not barred from
    making submissions as to the possibility of retreat.  However, had Crown counsel told the jury that
    the appellant was precluded from raising the defence of self-defence because he
    had failed to retreat at the start of the
confrontation,
the respondent concedes that the trial judge would have been required to give a
    correcting instruction.  The appellant in
    turn concedes that Crown counsel did not explicitly make that erroneous
    submission to the jury.  The issue for us
    to decide is whether there was a sufficient risk that the jury could have
    understood Crown counsel to be making that erroneous submission, requiring a
    correcting instruction from the trial judge.

[12]

We do not agree that the impugned passage in the
    Crowns closing bears the meaning attributed to it by the appellant on appeal.  We note that the appellants experienced and
    highly-skilled trial counsel made no objection to the trial Crowns closing and
    did not request a correcting instruction.  Moreover, when addressing the jury, trial
    counsel effectively joined issue with the Crown on the point by responding to
    the impugned portion of the Crowns closing address as follows:

Now, the Crown tries to suggest that [the
    appellant] did have a choice.  The Crown
    suggests that he could have retreated.  Well, I suggest that in the fast-paced dangerous situation he found
    himself in, that option was not reasonably available to him.  I suggest that a reasonable person in that
    dangerous situation would have believed there was no safe alternative.  This so-called retreat option, in my respectful
    submission, would be far too dangerous.  Mr. Cain couldnt back his way out of danger.  He tried that.  Retreat would require that he turn his body,
    and most importantly and most dangerously it would require that he turned his
    back to Joel and the entire gang in order to run away, and that would expose
    the back of his head to his attackers bat.

[13]

In our view, the lack of objection and the manner in
    which the appellants trial counsel responded provides significant support for
    the respondents position that there simply was no significant risk that the
    jury could have been led to believe that the appellant was precluded from
    relying on self-defence because he did not retreat at the initial stage of the
    confrontation.

[14]

The trial judge made only passing reference to the
    issue of retreat in his charge.  The only
    objection to the charge relevant to this point came from Crown counsel who
    submitted that the trial judge should have explained to the jury the Crowns
    submission on the possibility of retreat.  The trial judge refused to re-charge the jury
    on the point.  The appellant argues,
    however, that the way in which the Crown explained his retreat theory when objecting
    demonstrates that he intended the jury to reject self-defence as a possibility.
     Whatever the Crown may have intended, it
    is clear from the argument following the Crowns objection that neither the
    trial judge nor the appellants trial counsel perceived the Crowns position to
    have the impermissible effect complained of on appeal.

[15]

The entire incident from the moment Joel Willis emerged
    from the club with a bat until he was fatally shot lasted only a few seconds.  As the appellants trial counsel recognized,
    the jury was entitled to consider the issue of retreat in relation to the
    appellants reasonable apprehension of death or grievous bodily harm and
    whether he had a reasonable belief that it was not otherwise possible to save
    himself from harm except by killing Willis.  The jury was also entitled to consider the
    issue of retreat in relation to the Crowns theory that the appellant came to
    the scene armed with a loaded gun, bent on revenge.  We do not agree that when the jury deliberated
    on this case, it was left with a misleading or inadequate explanation of the
    relevance of retreat to the issue of the appellants s. 34(2) defence.

2. Did the
    trial judge err by failing to correct Crown counsel's submission to the jury on
    the appellants lack of fear?

[16]

The appellant takes issue with the fact that in his
    closing address to the jury, Crown counsel submitted that the appellant did not
    fear Joel Willis because Willis was armed only with a wooden bat, while the
    appellant had a loaded weapon.  The trial
    judge, following a standard s. 34(2) instruction, used the word fear rather
    than reasonable apprehension with respect to the issue of whether the
    appellant reasonably apprehended that he would be killed or seriously injured
    by Willis.  The appellant submits that
    the jury could have rejected self-defence on the erroneous basis that, because
    the appellant was armed, he did not fear that he was going to die, even if he
    reasonably believed that Willis would kill or seriously injure him unless he
    shot Willis.

[17]

In our view, the Crowns closing submission that the
    appellant had nothing to fear related to the Crowns overall position that the
    appellant had not acted in self-defence but had instead come to the Willis
    establishment as an aggressor, armed with a handgun, in order to avenge an
    insult to himself and his brother.  Again,
    there was no objection made on this point at trial.  The trial judge repeatedly instructed the jury
    that the appellant was entitled to the benefit of the s. 34(2) defence if he
    reasonably believed that Willis would kill or seriously injure him unless he
    shot Willis.  We do not agree that the
    jury could have been misled into thinking that because the appellant was armed
    and able to meet any threat posed by the victim, he was somehow disentitled to
    rely on self-defence.

Conclusion

[18]

The trial judge gave the jury a model charge on the elements
    of self-defence under s. 34(2) to which no objection is taken.  Both at the beginning and at the end of his
    closing, Crown counsel explained to the jury that it was to apply the law as
    given by the trial judge.  The trial
    judge also gave the standard explicit direction to that effect.  The appellants arguments turn on possible
    interpretations of submissions made by Crown counsel.  The people in the best situation to judge
    whether the jury could be misled by those submissions were the appellants experienced
    trial counsel and the trial judge. Neither attributed the meaning the appellant
    now seeks to attach to the Crowns closing.

[19]

The very able submission advanced on appeal by Mr.
    Campbell arises from the perception that if the jury accepted

Howes evidence given at the second trial, it was
    bound to acquit on self-defence, and that since the jury did not acquit, it
    must have misapprehended the law.  This
    view of the case ignores the fact that Howe was a difficult and unruly witness
    at the second trial and that the jury also had to take into account the very
    different version of the incident Howe gave at the first trial.  The jury also had to consider the fact that
    the appellant came to the scene with a loaded handgun to settle a score.  This was plainly not an unreasonable verdict
    or one that could only have been reached on the basis of a misunderstanding of
    the law.

[20]

Taking all the circumstances into account, we cannot agree
    with the submission that the jury could have been led astray by anything said
    in the Crowns closing address to the jury.

[21]

Accordingly, the appeal from conviction is dismissed
    and the appeal from sentence is dismissed as abandoned.

Robert J. Sharpe J.A.

J. MacFarland J.A.

H.S.
LaForme
J.A.

RELEASED:  April 14,
    2011


CITATION:
R. v. Cham, 2011
          ONCA 330

DATE: 20110428

DOCKET: C50406

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ajoda

Obwodo
Cham

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Susan G.
Ficek
, for the respondent

Heard and released orally:
April 21, 2011

On appeal from the conviction
          entered on April 21, 2008 and the sentence imposed on June 17, 2008 by
          Justice Robert J. Abbey of the Superior Court of Justice, sitting with a
          jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for attempt
    murder, aggravated assault and uttering a death threat.  If granted leave, he also appeals his sentence
    of six years for attempted murder on the basis that the trial judge failed to
    consider the fact that the appellant acted out of fear as a mitigating factor.

[2]

The Crown concedes the appellants appeal of his
    conviction for aggravated assault on the basis of the principle in
R. v.
Kienapple
,
(1974),
    15 C.C.C. (2d) 524 (S.C.C.), the principle that prevents multiple convictions
    for the same wrongful act, and also agrees that, as a result, the sentence of
    three months concurrent to the sentence for aggravated assault should be set
    aside.

[3]

The main issue on the conviction appeal is whether the
    trial judge erred in refusing to leave self defence with the jury.

[4]

In our opinion the trial judges ruling was
    correct.  On the evidence, this was a
    pre-emptive attack by the appellant.  While the victims blood was found on the handle and point of a steak
    knife in the kitchen, there is no evidence to suggest that the victim had the
    knife in his hand prior to being attacked by the appellant.  Quite apart from whether the appellant had a
    subjective belief that met all three elements of self defence, we agree that
    there was no objective air of reality to the defence of self defence,
    particularly in relation to the third element.  That element requires evidence that the appellant could not otherwise
    preserve himself from death or grievous bodily harm. There is no evidence to
    explain why the appellant did not call the police or seek the assistance of Mr.
    Al
Shaibie
, who had successfully intervened in the
    prior dispute between himself and the victim or simply display the machete to
    scare off the victim, particularly in light of the striking disparity between
    the two weapons  a 10 inch steak knife compared to a 23 inch machete with an
    18 inch blade.

[5]

The appeal as to conviction on attempt murder is
    dismissed.

[6]

With respect to the sentence for attempted murder, we
    are of the opinion the trial judge did not err in principle.  The trial judge noted the mitigating factors,
    the appellants youth and lack of prior criminal record, his co-operation with
    the police and the appropriate range of sentence.  The appellants subjective fear of his victim
    is not a mitigating factor.  His sentence
    of six years was not manifestly unfit and we cannot interfere.  Accordingly, leave to appeal sentence is
    granted, but the appeal as to sentence on the count of attempt murder is
    dismissed.

[7]

With respect to the count of aggravated assault, the
    conviction is set aside, a finding of guilt is substituted and a stay is
    imposed. The sentence of three months concurrent is therefore set aside.

[8]

The appeal is otherwise dismissed.

Karen M. Weiler
    J.A.

R.A. Blair J.A.

Gloria Epstein
    J.A.


CITATION:
R. v. Connelly, 2011
          ONCA 310

DATE: 20110420

DOCKET: M38868 (C48793)

COURT OF APPEAL FOR ONTARIO

LaForme, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Callum Connelly

Appellant

Matthew Gourlay, for the appellant

Deborah Krick, for the respondent

Heard and released orally: April 11, 2011

ENDORSEMENT

[1]

On February 28, 2008, Mr. Connelly was convicted
    of robbery and sentenced to five months imprisonment in addition to at least 50
    days pre-trial custody and two years probation.

[2]

On March 16, 2009, Mr. Connellys inmate appeal
    was heard by this court.  This appeal
    against conviction was on the basis of an alleged violation of his right to
    counsel.  The appeal was subsequently
    dismissed in written reasons by this court released on May 20, 2009.

[3]

On July 24, 2009, the Ministry of the Attorney
    General, Criminal Law Division, notified Mr. Connellys trial counsel that a
    vetted jury list had been made available to the Crown at trial but that list
    had not been disclosed to the defence.  Mr. Connelly moved to re-open his appeal and at the September 2010
    inmate sittings, Justice Moldaver appointed counsel under s. 684 of the
Criminal Code
.  Mr. Connelly is now represented by counsel
    and brings this motion to re-open his appeal.

[4]

At its core, this is an issue about
    non-disclosure.  The Crown was in
    possession of a partially vetted jury panel list, which provided the Crown with
    some information about some prospective jurors that the defence did not
    have.

[5]

We have doubts as to whether there is
    jurisdiction for this court to re-open Mr. Connellys appeal, given that his
    appeal has already been heard on the merits and dismissed.  In any event, we can find no reason to have a
    concern that in this case a miscarriage of justice arose from the police
    database checks performed on prospective jurors.  While the non-disclosure of this information
    is troubling, it had no impact on the jurys impartiality and independence.

[6]

In sum, Mr. Connelly has not demonstrated, on a
    balance of probabilities, that the failure to disclose the information
    prejudiced his right to make full answer and defence.  That is, he has failed to satisfy this court
    that there is a reasonable possibility that the non-disclosure affected the
    outcome at trial, or the overall fairness of the trial process.  Therefore, the motion is denied.

H.S. LaForme J.A.

Paul Rouleau J.A.

Karakatsanis
    J.A.


CITATION:
R. v.
Dinardo
, 2011 ONCA 256

DATE: 20110404

DOCKET: C51216

COURT OF APPEAL FOR ONTARIO

Gillese, Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John
Dinardo

Appellant

Jonathan
Dawe
, for the appellant

Frank Au, for the respondent

Heard: March 29, 2011

On appeal from the conviction
          entered on October 29, 2009 by Justice John M. Ritchie, of the Ontario Court
          of Justice.

By the Court:

[1]

A Bobcat tractor valued at $20,000 was stolen from a
    construction site.  Through the use of a
    radio tracking device, the location of the Bobcat was narrowed to a cube van
    that was parked in the appellants backyard.  The backyard was described by the trial judge as a fortress-like
    compound that had a high metal fence and was guarded by vicious dogs.  The evidence at trial disclosed that, once the
    Bobcats location was identified, surveillance was maintained until the police
    executed a warrant they obtained to search the backyard, the cube van and the
    garage.

[2]

Initially, the police entered the appellants unlocked apartment.
    While they established that he was not there, they observed a third party,
    Daniel
Soares
, in the backyard with the van and the
    dogs.  The police detained Mr.
Soares
, who made certain utterances.  Later that day, the appellant came to the
    property accompanied by his lawyer.  He
    was arrested and charged.  He made
    certain statements including, on the evidence accepted by the trial judge, an
    offer to open the back of the van.  The
    padlock on the back door of the cube van was removed without the appellants
    help and the stolen tractor was located inside.

[3]

The appellant was convicted of possession of the stolen
    tractor.  Neither Mr.
Soares
nor the appellant testified. In convicting the appellant, the trial judge ruled
    the utterances made by Mr.
Soares
to the police were
    inadmissible hearsay, but admitted into evidence the appellants statements to
    the police.

[4]

While the trial judge recognized that the case against
    the appellant was circumstantial, he concluded that the evidence gave rise to
    only one reasonable inference, that the [appellant] had the requisite knowledge
    and control respecting the stolen Bobcat.

[5]

The appellant appeals his conviction on two
    grounds.  First, he argues that the
    verdict was unreasonable. Second, the appellant argues that the trial judge
    erred by failing to exclude his statements on the basis of
section 8
Charter
breaches committed by the multiple entries by the police into his apartment.

[6]

The appellants first argument has two branches.  First, the appellant argues that the evidence
    that was adduced at trial did not support the verdict. In particular, the appellant
    points to the evidence concerning Mr.
Soares

    familiarity with the establishment, given his presence in the backyard with the
    guard dogs and the cube van. He also points to the fact that no other person,
    other than the upstairs tenant, was present the morning the warrant was
    executed. The appellant argues that this evidence raised a reasonable inference
    that it was Mr.
Soares
who was the person in
    possession of the stolen tractor.  However,
    after excluding Mr.
Soares
 utterances, the trial
    judge concluded that he was a found in, a person who was present at the scene
    and that any suggestion that he was involved with the stolen tractor was
    speculative.  The Crown presented a
    strong circumstantial case against the appellant, including evidence that the
    tractor was in the appellants van in his backyard guarded by his dogs.

[7]

In light of our conclusion on the second branch of the
    argument, it is unnecessary to decide the first branch of this argument.

[8]

In the second branch, the appellant argues that the
    trial judge erred in ruling that the defence could not adduce evidence of Mr.
Soares
 utterances and that, had those utterances been
    admitted into evidence, they would have strongly suggested that Mr.
Soares
was the person who brought the tractor in the cube
    van into the backyard.

[9]

We agree with the appellant, as does the respondent,
    that the trial judge erred in his reasons for excluding the utterances made by
    Mr.
Soares
after his detention.  In light of our determination that, as a
    result of this error, there must be a new trial, we will only review the issue
    of the utterances to the extent necessary to explain our conclusion.

[10]

At trial, the utterances the defence attempted to
    adduce included Mr.
Soares
 statements to the effect that
    the keys to the van were in the van, the garage door was open, and he could
    round up the guard dogs.  In addition, the
    defence sought to introduce a question Mr.
Soares
posed to one of the officers about whether they were here for the Bobcat?
.
[1]

[11]

After argument about the admissibility of the
    utterances, the trial judge accepted the trial Crowns submissions that they
    were inadmissible on the basis that they were pure hearsay to which no
    exception applied.

[12]

This was an error.  The statements were not hearsay.  The
    appellant was not trying to adduce the utterances for the truth of their
    contents, but simply to prove that Mr.
Soares
made
    the statements.  See
Wildman v. The Queen
(1984), 14 C.C.C. (3d) 321 (S.C.C.).

[13]

If the
Soares
 utterances had
    been found to have some probative value and had been admitted into evidence,
    the trial judge would then have had to consider whether the totality of the
    evidence led or did not lead to an alternative reasonable possibility that Mr.
Soares
was the person in possession of the stolen tractor.

[14]

In closing on this issue, we observe that there was
    apparently no suggestion at trial that any possession of the stolen tractor
    by Mr.
Soares
was as the agent of or with the
    knowledge of the appellant.

[15]

In view of this determination, it is unnecessary to
    consider the ground of appeal based on the alleged
Charter
violation.  That is a
    matter that will be determined on the basis of the evidence at the new trial.

[16]

In conclusion, the appeal is allowed, the conviction
    quashed and a new trial ordered.

RELEASED:  APR 4, 2011
                                                     E.E.
    Gillese J.A.

EEG                                                                                S.E.
    Lang J.A.

David
    Watt J.A.

[1]
We note,
    however, that the evidence before the trial judge suggested that Mr.
Soares
may have asked the question only after another
    officer had told him that they were looking for stolen Bobcat.


CITATION: R. v. Gamble, 2011 ONCA 308

DATE: 20110419

DOCKET: C52650

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Gamble

Appellant

Kristin Bailey, for the appellant

Dena Bonnet, for the respondent

Heard: April 18, 2011

On appeal from the sentence imposed
          on June 28, 2010 by Justice J. Elliott Allen of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to attempt to break and enter, possession
    of property obtained by crime and possession of break-in instruments.  He was
    sentenced to two years less a day imprisonment and 3 years probation,
    concurrent on all three charges.

[2]

The primary issue on this appeal is whether the trial judge erred in
    principle in not giving the appellant any credit for five months of pre-trial
    custody.  The appellant acknowledges that a trial judge has discretion to
    decide what credit, if any, to give to time spent in pre-trial custody, but
    submits that existing jurisprudence is to the effect that trial judges should
    ordinarily give credit for pre-trial custody and should not deny credit without
    good reason.  The appellant submits that the trial judge stated only there
    will be no credit for dead time and gave no reasons for denying credit for
    pre-trial custody.

[3]

We agree that the trial judges reasons are deficient in this regard and
    that he therefore erred in principle.  Nevertheless, having regard to the
    appellants lengthy criminal record for offences of a similar nature and the
    fact that this offence was committed a scant two months after his statutory
    release for a similar offence, we are of the opinion that the sentence was not
    demonstrably unfit.

[4]

Accordingly while leave to appeal sentence is granted the appeal as to
    sentence is dismissed.


CITATION:
R. v.
Goldblatt
, 2011 ONCA 301

DATE: 20110418

DOCKET: C52812

COURT OF APPEAL FOR ONTARIO

Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jay
Goldblatt

Appellant

Alan D. Gold, for the appellant

Emile A. Carrington, for the respondent

Heard:
April 7, 2011

On appeal from the judgment of Justice Jane A. Milanetti of
          the Superior Court of Justice dated September 29, 2010.

ENDORSEMENT

[1]

The appellant appeals the decision of the Summary
    Conviction Appeal Court judge that set aside the decision of the trial judge
    acquitting him on a charge of impaired driving and remitting the matter for a
    new trial.

[2]

The appellant requires leave to appeal to this court.
    He does not assert that the case raises an issue of significance to the public
    administration of justice. He submits that the Summary Conviction Appeal Court
    judge made a clear error on a question of law alone. We do not agree.

[3]

As we read the decision of the Summary Conviction
    Appeal Court judge she found that the trial judge misapprehended the evidence
    and failed to apply the proper legal principles. Citing this courts decision
    in
R. v.
Stellato
(1993), 78 C.C.C. (3d) 380, she pointed out that the trial judge did not
    recognize any degree of impairment ranging from slight to great would be
    sufficient to constitute the offence, and that the appellants fatigue did not
    foreclose the effect of alcohol on the appellants ability to drive. These
    observations were not clearly erroneous but were correct. Her finding that the
    trial judge erred by failing to address the care and control elements of the
    charge may not have been correct, however that finding did not affect the
    result that is under appeal.

[4]

Leave to appeal is refused.

M. Rosenberg J.A.

R.G. Juriansz J.A.

H.S. LaForme J.A.


CITATION:
R. v. Guidolin, 2011
          ONCA 264

DATE: 20110411

DOCKET: C51566

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Guidolin

Appellant

Daniel Guidolin, appearing in person

Daniel Medd, as
amicus
          curiae

Benita Wassenaar, for the respondent

Heard:  March 21, 2011

On appeal from the finding of Justice
          Lauren Marshall of the Ontario Court of Justice on December 12, 2007
          declaring the appellant not criminally responsible on account of mental
          disorder.

Doherty J.A.:

I

Introduction

[1]

In June of 2007, the appellant confronted two
    women as they walked away from a bank machine.  He grabbed for the money in the hand of one of the women.  A struggle ensued.  The appellant managed to overcome the victim,
    take the money ($240.00) and flee the scene on a bicycle.  The incident was videotaped on the banks
    surveillance equipment.  Two days later,
    the police arrested the appellant after a brief struggle.  He was charged with one count of robbery and
    two counts of resisting arrest.

[2]

The appellant, who has an extensive criminal
    record stretching back over decades, was ordered detained pending trial.  While in custody, his fitness to stand trial
    was questioned and a psychiatric assessment was ordered.  The appellant was found unfit and a treatment
    order was made.  He was subsequently
    determined to be fit to stand trial.  He
    was held in a psychiatric facility from August 2007 to December 2007.

[3]

On December 12, 2007, the appellant, who was represented
    by counsel, advanced a not criminally responsible on account of mental disorder
    plea (NCRMD).  The Crown did not oppose
    that plea.  The parties agreed that the
    report of the psychiatrist, Dr. McDonald, would suffice and he was not required
    to give evidence.  The trial judge also
    heard a brief agreed upon description of the underlying offences.  She concluded that the appellant had
    established the NCRMD claim and remanded him to the jurisdiction of the Ontario
    Review Board (the Board) for disposition.  The appellant has been detained under orders of the Board since then.

[4]

The appellant was granted an extension of time
    to appeal the NCRMD finding in January 2010.  The perfection and hearing of the appeal were delayed for various
    reasons, including some concern with respect to the appellants fitness to
    instruct counsel.

[5]

At the hearing of the appeal, Mr. Medd, who had
    formerly represented the appellant, appeared as
amicus
.  The appellant
    appeared on his own behalf.

[6]

Mr. Medd submits that on the material placed
    before the trial judge, and in particular the psychiatric report of Dr.
    McDonald, the NCRMD verdicts were unreasonable.  He contends that this court should set aside those verdicts and enter
    convictions on the charges pursuant to s. 686(4) of the
Criminal Code
.  Mr. Medd
    further submits that this court should impose sentence, and that if possible
    the sentence should require the appellant to remain in the psychiatric facility
    at Whitby for some brief time to facilitate the appellants transition back
    into the community.

[7]

In his submissions, the appellant told the court
    that he agreed with Mr. Medd that the NCRMD verdicts should be set aside.  He was content that a conviction be entered
    on the robbery charge, but insisted that he had not assaulted the police and
    was not prepared to agree to convictions on those two charges.  The appellant told the court that he thought
    he was prepared to be released immediately and that he had plans to connect
    with various family members, including his elderly mother.

[8]

Ms. Wassenaar, for the Crown, submits that the
    psychiatric evidence was sufficient having
regard
to
    the agreement of the parties that NCRMD verdicts were appropriate.  Alternatively, she submits that if the
    verdicts are set aside, this court should enter convictions on all charges and
    impose a sentence in the mid-single digit penitentiary range.  The appellant has spent about three years and
    eight months in custody, most of it in maximum security psychiatric facilities.

II

Is the NCRMD Verdict Unreasonable?

(i)

The courts approach

[9]

A person found NCRMD may appeal on the basis
    that the finding is unreasonable or cannot be supported by the evidence:  s. 686(1
)(
a).  The reasonableness standard, like that
    applied to conviction appeals, requires that the appellant demonstrate that a
    trier of fact, acting reasonably and properly applying the law, could not have
    arrived at an NCRMD verdict:
R. v. Fraser
(1997), 33 O.R. (3d) 161 at
    p. 167 (C.A.).

[10]

The argument that the NCRMD verdicts were
    unreasonable raises an unusual problem in this case.  It was the appellant, through counsel, who
    raised the NCRMD claim at trial.  He
    carried the burden of proof on the balance of probabilities:  s. 16(3).  Having succeeded at trial, the appellant now finds himself claiming that
    the trial judge acted unreasonably in finding that the appellant had met his
    burden and established the NCRMD claim on the balance of probabilities.

[11]

There is no absolute bar preventing the
    appellant from challenging the NCRMD finding even where it was the appellant
    who raised the claim at trial.  However,
    finality concerns, as well as the need to preserve the effective operation of
    the mental disorder provisions in the
Code
,
    require that the court look very closely at any attempt to resile by way of
    appeal from an NCRMD verdict sought at trial.  The appellant has been under the jurisdiction of the Board for several
    years now.  They have made dispositions
    based on their expertise as applied to current psychiatric information.  Entertaining an appeal against an NCRMD
    verdict where the claim was advanced by the defence effectively allows that
    individual to circumvent the Boards ongoing jurisdiction and requires this
    court to make a disposition that does not have regard to the psychiatric and
    treatment developments that have occurred in the years between the NCRMD verdict
    and the hearing of the appeal.

[12]

When approaching an argument that an NCRMD
    verdict is unreasonable, where it was the appellant who sought that verdict at
    trial and the Crown agreed that the verdict was appropriate, this court should have
    regard to the position of the appellant and the consensual nature of the
    proceedings when assessing the adequacy of the material before the trial
    judge.  One can hardly expect that the
    medical opinion evidence will contain the detail that would be found in a
    contested proceeding, or that the medical evidence will answer all of the questions
    that could possibly have been raised had the matter been contested.

[13]

While acknowledging that the position of the
    defence at trial and the consensual nature of the proceedings are relevant to
    the reasonableness assessment, if on a generous reading of the evidence, the
    NCRMD finding cannot pass the reasonableness standard, that finding cannot
    stand regardless of the negative impact an order setting it aside may have on
    the appellants treatment and the protection of the public.

(ii)  The reasonableness of the verdicts

[14]

Section 16(1) provides:

No person is criminally responsible for an act
    committed or an omission made
while suffering from a mental disorder that
    rendered the person incapable of appreciating the nature and quality of the act
    or omission or of knowing that it was wrong.
[Emphasis added.]

[15]

There was ample evidence that the appellant
    suffers from a longstanding and serious mental disorder.  In his report, Dr. McDonald diagnosed him as
    having:

·

a schizoaffective psychosis;

·

polysubstance abuse; and

·

an
antisocial
    personality disorder.

[16]

There was also ample evidence that the
    appellants mental disorder was in all likelihood causative of his criminal
    conduct.  Further, his long criminal
    record, as well as Dr. McDonalds opinion, was evidence of his potential
    dangerousness.

[17]

However, as Mr. Medd correctly observes, s. 16
    is not triggered merely because an accused suffers from a mental disorder that
    is causative of criminal conduct, even if that disorder renders the accused a
    danger to the public.  The mental
    disorder can constitute a defence under s. 16 only if it has one of two
    effects.  It must either render the person
    incapable of appreciating the nature and quality of the act or render the
    person incapable of knowing that the act was wrong.  In this case, the NCRMD claim was based on
    the assertion that the appellants disorder rendered him incapable of knowing that
    his criminal conduct was wrong.

[18]

The meaning of wrong in the context of s. 16
    was explained in
R. v. Oommen
, [1994]
    2 S.C.R. 507, at p. 520:

The issue is whether the accused possessed the
    capacity present in the ordinary person to know that the act in question was
    wrong having regard to the everyday standards of the ordinary person.

[19]

Nothing in the brief recitation of the facts
    surrounding the offences provided to the trial judge offered any support for
    the claim that the appellant did not know his conduct was wrong.  The viability of the NCRMD verdict turned
    entirely on Dr. McDonalds report.  As
    indicated earlier, the parties did not require him to give
viva voce
evidence.  The
    question becomes: do the contents of the report reasonably support a finding
    that the appellant, when he committed one or more of the offences, was
    incapable of knowing that what he was doing was wrong in the sense described
    in
Oommen
?

[20]

There are three potentially relevant passages
    from Dr. McDonalds report:

[1
]  At
this point I would regard Mr.
    Guidolin as Fit to Stand Trial.  I will
    comment on this point on the issue of criminal responsibility or lack
    thereof.
I am rather lukewarmly
    persuaded that this man qualifies, at least marginally, for a non-criminal
    responsibility finding.  This is not
    because he has no capacity to recognize the wrongfulness of his actions or
    specifically the most recent act of robbery, indeed he can, but he is
    substantially morally indifferent,
dismissively remarking at one point,
    All I did was grab the money.  When
    advised that the event in question had been recorded on video tape, he
    commented with some indignation, They had a camera?  But it was off hours!
.
He even acknowledged that he needed the money
    to buy drugs, as has his been his long term habit.  Despite making such obvious inculpatory
    remarks, he was substantially evasive on many topics, as if acutely sensitive
    to the possibility of making his situation worse by talking about it.

This is the logical lead-in to the only possible
    way of seeing this mans actions as falling within the NCR rubric, i.e. he is
    often acutely psychotic, delusional, disorganized, and unable to exercise the
    judgment of a normal person
(Oommen).  While he does have significant antisocial tendencies of longstanding and
    has a long criminal record going back many years, he also has a major psychotic
    disorder which is predictably aggravated by his substance abuse.

...

[2
]  Perhaps
the most relevant remarks he
    ever made about what might have been going on in his head at the time of the
    most recent robbery are the following: They seem to know ... that I need money ... thats what drove me to do
    it ... I tried to ignore them, but mom not there, I was in dire need ... I was
    arrested a couple of days later ... my picture was on TV.
It appeared that he was making references
    to auditory hallucinations, and he seemed to be suggesting that these had
    something to do with his committing the offence of robbery, but his account was
    disorganized and difficult to interpret.

...

[3
]  Although
the psychiatric picture with
    this man is a mixed one with a significant antisocial component,
I would
    support his candidacy for non-criminal responsibility status and would further
    remark that his manageability in the community without such disposition is
    totally unrealistic given his behavioural history.
[Emphasis added.]

[21]

In my view, nothing in the report provides a
    reasonable basis upon which an NCRMD verdict could be returned.  The first passage contraindicates an NCRMD
    verdict.  Dr. McDonald appears to accept
    that the appellant has the capacity to recognize the wrongfulness of his act,
    but simply does not care.  That state of
    mind does not constitute a defence under s. 16:
Oommen
at p. 521;
R. v. J.M.W.
(1998), 123 C.C.C. (3d) 245
    at para. 32 (B.C.C.A.).

[22]

In the first passage quoted above, Dr. McDonald also
    opines that the appellant is unable to exercise the judgment of a normal
    person (
Oommen
).  If this is intended as a description of the
    meaning of the word wrong from
Oommen
,
    the doctor has misunderstood that case.  The inability to exercise the judgment of a normal person is a long
    way removed from the incapacity to know that ones actions are wrong according
    to the normal standards applicable in the community.

[23]

There are references to auditory hallucinations
    in the second passage from Dr. McDonalds report.  Hallucinations can sometimes precipitate a valid
    s. 16 defence.  However, Dr. McDonald was
    not prepared to go any further than to indicate that the appellant seemed to
    be suggesting that his auditory hallucinations had something to do with his
    commission of the offences.  This is not
    an assertion that the appellant acted under the influence of any hallucination.

[24]

The final passage in Dr. McDonalds report is
    perhaps the best indication of the basis upon which he supported the NCRMD
    claim.  Dr. McDonald was obviously
    concerned about the appellants manageability in the community and saw the
    NCRMD verdict as the best way to protect the community and hopefully offer the
    appellant some treatment. While that approach is understandable from the
    perspective of the psychiatric clinician, it is not a proper basis in law for
    an NCRMD verdict.

[25]

In my view, there was no basis upon which a
    reasonable trier of fact could conclude that the NCRMD claims had been made out
    on the balance of probabilities.  Those
    verdicts must be set aside.

III

The Appropriate Remedy

[26]

The appellant,
amicus
, and Crown counsel all agreed that if the NCRMD verdict on
    the robbery charge was set aside, this court should substitute a conviction on
    the robbery charge pursuant to s. 684(4).  I think that is the proper order.  There is no doubt that the appellant committed the robbery.  Clearly, he would not raise an NCRMD defence
    if the matter was remitted for a new trial.  More importantly, the Crown has not suggested that it has any basis upon
    which to seek an NCRMD finding.  In those
    circumstances, an order entering a conviction on the robbery charge is the only
    appropriate order.

[27]

The appellant opposes convictions on the
    resisting arrest charges.  He advised
    this court that he did not commit those offences.  At trial, when asked to plead, it appears
    that the appellant was trying to make a distinction between the robbery charge
    and the resist arrest charges when he was interrupted by the trial judge and
    the proceedings were continued without the entry of any formal pleas.  The appellant is entitled to his day in court
    on the resist arrest charges if the Crown chooses to pursue those matters.  I would set aside the NCRMD verdicts on those
    counts and order a new trial on those charges.

IV

The Appropriate Sentence

[28]

In oral argument, Crown counsel and
amicus
agreed that this court should
    impose the appropriate sentence on the robbery charge.  At the end of oral submissions, the court
    reserved judgment and invited further written submissions from counsel on the
    assumption that the court might set aside the NCRMD verdicts.  Crown counsel and
amicus
have spoken with the personnel at the psychiatric facility
    where the appellant is being held and have provided helpful and detailed analyses
    of the available sentencing options as they see them.

[29]

Crown counsel, having had the opportunity to
    consider the question of sentence in more detail, has changed her position
    since oral argument.  She now submits the
    court should remit the matter to the trial judge for sentencing on the robbery
    conviction.  In her submission:

The trial court is better positioned to determine
    what resources are available and how they can be accessed.

[30]

Crown counsel anticipates that if sentencing is
    remitted to the trial judge, the appellant will be sentenced in late April or sometime
    shortly thereafter.  Counsel submits that
    the appellant could be released on bail pending his appearance in the trial
    court on the condition that he continue to reside in the psychiatric facility
    where he is presently being held.  Presumably, this would give the personnel at the facility the
    opportunity to assist the appellant in formulating a release plan.

[31]

Crown counsels suggestion is sensitive to the
    mental health problems faced by the appellant and the risk that he might pose
    were he immediately and unconditionally released into the community.

[32]

Like Crown counsel,
amicus
is very much aware of the challenges that the appellant
    presents to the sentencing process.  He
    submits, however, that no purpose would be served by remitting sentencing to
    the trial judge.  He also argues, based
    on his understanding of the relevant authorities, that no term of
a probation
order or conditional sentence could be imposed
    requiring the appellant to submit to the treatment regime of the psychiatric
    facility.  The appellant has indicated to
amicus
that he is opposed to any
    order that would require him to submit to treatment.
Amicus
takes the position that the appellant has effectively served a longer sentence
    than is merited by the offence.  He
    submits that while time served is not an available sentence for technical
    reasons, the appellant should not be punished any further.
Amicus
submits that it would be appropriate to place the appellant on probation for a
    short time period and only on the statutory probationary terms.

[33]

Having set aside the NCRMD verdict and entered a
    conviction on the robbery charge, the penalty to be imposed on the appellant
    must comply with the requirements of Part XXIII of the
Criminal Code
.  First and
    foremost in this case, the sentence must be proportionate to the gravity of the
    offence and the offenders responsibility:  s. 718.1.  A sentence which is not
    proportionate cannot be imposed even if, because of the appellants mental
    health problems, that sentence would benefit both the community and the
    appellant.

[34]

The appellant has spent about 44 months in
    custody since his arrest on these charges.  He has been detained in a psychiatric facility for all but the first few
    months of that time period.

[35]

The robbery conviction is a serious one.  I am sure the victims were terrified.  The appellant has a lengthy record, although
    most of the record involves property related crimes.  He has not been previously sentenced to a
    period of incarceration in the penitentiary.  Nothing in the psychiatric material that was before the trial judge would
    provide any grounds for mitigating the sentence.  Had the appellant pled guilty to robbery, a
    penitentiary sentence would have been an appropriate disposition under the
    sentencing principles and objectives outlined in Part XXIII of the
Code
.

[36]

Without attempting to fix a precise number as
    the appropriate credit for the appellants incarceration since his arrest, I
    am satisfied that the time he has spent in custody exceeds the time he would
    have been incarcerated had he pled guilty to the robbery charge in December
    2007 and received an appropriate sentence.  No further incarceration can be justified on any applicable sentencing
    principle.  Nor would any purpose be
    served by a probation order.

[37]

It may well be that the appellant should remain
    in a psychiatric facility.  However, to
    achieve that end, the authorities will have to look to the civil commitment
    process.

[38]

Any sentence that this court imposes on the
    robbery charge commences when that sentence is pronounced.  Consequently, a sentence of time served cannot
    be imposed.  Having regard to the time
    spent in custody and the nature of the offence and to ensure compliance with
    the technical requirements of the
Criminal
    Code
, I would impose a sentence of one day on the robbery charge: see
R. v. Mathieu
, [2008] 1 S.C.R. 723 at
    paras. 17-18.

V

Conclusion

[39]

I would allow the appeal, set aside the NCRMD
    verdicts on all counts, enter a conviction on the robbery charge, and direct a
    new trial on the resist arrest charges.  On
    the robbery charge (bearing in mind the three years and eight months spent in
    custody), I would impose a sentence of one day.

RELEASED:
DD  APR 11
    2011

Doherty J.A.

I agree H.S. LaForme
    J.A.

I agree G.J. Epstein
    J.A.


R. v.

DOCKET: C52726

COURT OF APPEAL FOR ONTARIO

BETWEEN

Her Majesty The Queen

Respondent

and

Richard
Hason

Appellant

In Writing

By The Court:
[1]

The appellant appeals in writing from the sentence
    imposed by Bourque J. on August 17, 2010 of six months imprisonment, less three
    months credit for pre-trial custody, plus two years probation for the offence
    of failure to comply with the terms of a probation order. The appellant submits
    that the sentence was harsh and excessive, and failed to take into account the
    fact that the appellant pleaded guilty. For the following reasons, the appeal
    from sentence is dismissed.
[2]

On January 17, 2010, the police received information
    from the York Childrens Aid Services with respect to a young woman in their
    custody as a ward. Her foster mother had reported that she had received
    telephone calls from a person that the foster mother believed was the
    appellant. The police interviewed the young woman and she acknowledged that she
    had been having ongoing contact with the appellant by telephone. At the time
    that this telephone contact occurred, the appellant was under a probation order
    the terms of which included that he was to have no contact with the young woman
    in question. He had previously been found guilty of assaulting the young woman.
[3]

The appellant entered a plea of guilty of failure to
    comply with the terms of a probation order. The trial judge conducted the plea
    inquiry as required by s. 606(1.1) of the
Criminal
    Code
, R.S.C. 1985 c. C-46. This included asking the appellant whether or
    not he understood that whatever Crown and defence counsels submissions on
    sentencing, the final disposition was up to the judge. The appellant indicated
    that he understood this and still wanted to enter a guilty plea.
[4]

There was no agreement with respect to
    joint submissions on sentence. Crown counsel submitted that an appropriate
    sentence would be 90 days incarceration in addition to the 57 days the
    appellant had spent in pre-trial custody. Crown counsel also submitted that a
    further two year probation order would be appropriate. Defence counsel accepted
    the Crowns position with respect to the probation order, but argued that 45
    days incarceration in addition to pre-trial custody would be appropriate.
[5]

At the time of sentencing, the appellant was 23 years
    old. The appellant had the support of his siblings, especially his sister with
    whom he was very close. His older brother owned a landscaping business where
    the appellant had worked in the past and could get work again in the future.
    The appellant had a somewhat difficult upbringing due to behavioural issues as
    a result of Attention Deficit and Hyperactive Disorder. Prior to his death when
    the appellant was in his early teens, the appellants father acted as the
    disciplinarian in the family. The appellant reported that that discipline often
    included physical discipline. It was around the time of his fathers death that
    the appellant first came into contact with the police. Despite his young age, the
    appellant had a lengthy criminal record, including convictions for assault and
    various property offences. His criminal record also included eight convictions
    for failing to comply with previous probation orders and undertakings.
[6]

In determining the sentence, the sentencing judge
    considered the sentencing principles in ss. 718 to 718.2 of the
Criminal Code
. The sentencing judge
    considered the mitigating factors, including the fact that the appellant had
    entered a guilty plea and the appellants young age. He also considered the
    aggravating factors: the age of the complainant, the brazen nature of the
    breach, and the appellants lengthy criminal record.
[7]

The sentencing judge considered the appropriate factors
    at length. He properly emphasised the importance of the principle of specific
    deterrence in this case, noting that a significant period of incarceration was
    necessary to bring to the appellants attention the gravity of his conduct.
    However, the sentencing judge also recognized the importance of the principle
    of totality, finding that it was appropriate to give the appellant credit for
    his pre-trial custody on an enhanced basis of 1.5 to 1. The sentence was fit
    and there was no error in principle. Accordingly, the appeal is dismissed.

Signed:           M.
    Rosenberg J.A.

R. G. Juriansz J.A.
J.
    MacFarland J.A.
RELEASED: MR April 27, 2011