COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McIntyre, 2012
    ONCA 356

DATE: 20120530

DOCKET: C52478

Goudge, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aimee McIntyre

Appellant

Catriona Verner, for the appellant

Amy Alyea and Emile Carrington, for the respondent

Heard: March 27, 2012

On appeal from the conviction entered on May 6, 2010 by
    Justice David Salmers of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

INTRODUCTION

[1]

On May 6, 2010, in the third day of deliberations by the jury, the
    appellant was convicted of first degree murder in relation to the death of Karl
    OReggio.

[2]

The appellant appeals her conviction.

[3]

Prior to the appellants trial, Jonathan Ebanks and Nathan Kelly both
    pleaded guilty to the second degree murder of OReggio.  Subsequently, the
    appellant was convicted of first degree murder on the basis that she aided or
    abetted Ebanks in killing the deceased.

[4]

The appellant drove Ebanks and Kelly to the deceaseds apartment. Once
    the men entered the apartment, a scuffle ensued during which Ebanks pulled out
    his knife and fatally stabbed the deceased.  The appellant then drove the two
    men away from the scene.

[5]

The Crowns theory was that the appellant aided or abetted Ebanks to
    commit a planned and deliberate murder.

[6]

A number of issues were raised in argument in this court.  It is
    necessary to deal with only three of them.  In brief outline, they are as
    follows:

(1)

First, in defining the elements of
    the murder that the appellant was alleged to have aided Ebanks to commit, the
    charge omitted the requirement of Ebanks subjective foresight of death.

(2)

Second, in the context of
    determining the appellants knowledge of Ebanks intention to murder the
    deceased, the charge failed to focus the jury on whether that intention existed
    prior to Ebanks entering the apartment or arose only during the scuffle.

(3)

Third, in addressing the post-offence
    conduct evidence, the charge gave the jury no help to determine which evidence
    could assist in determining the appellants level of culpability and which
    could not.

Taken together, in my view, the result is that the
    appellant did not receive a fair trial.  The conviction must therefore be set
    aside and a new trial ordered.

THE FACTS

[7]

Because there must be a new trial, I will limit my review of the
    evidence.

[8]

The appellant had been in a romantic relationship with the deceased
    until shortly before his death.  The relationship had deteriorated however, and
    shortly before the murder, the appellant became friendly with Kelly.  Indeed,
    he had begun staying with her regularly.  The appellants deteriorated
    relationship with the deceased was reflected in the acrimonious text messages
    exchanged between them in the days before his death.  However, the appellant
    was not the only one upset with the deceased.  Kelly was also upset with him
    because of the text messages that he kept sending to the appellant.

[9]

On July 14, 2007, the appellant, accompanied by Natasha Visscher, her
    15-year-old cousin, set out to drive Kelly to the deceaseds apartment.  The
    Crowns theory was that the appellant planned to have the deceased killed.  The
    defence theory was that the purpose was for Kelly to settle the beef he had
    with the deceased so he would stop texting the appellant.

[10]

En
    route they picked up Kellys friend Ebanks, whom Kelly had phoned to say he had
    this beef and wanted Ebanks to come along.  Ebanks had a large knife with an
    eight inch blade known as a Wolverine claw that he put on the car seat beside
    him, saying that he was going to poke the deceased.

[11]

On
    reaching the house where the deceased lived, the appellant parked her car and
    pointed the house out to the men.  According to Ebanks, soon after they entered
    the apartment, Kelly scuffled with the deceased, who reached for a kitchen
    knife.  At that point, Ebanks said he pulled out his own knife and stabbed the
    deceased six times.  The two men returned to the car, which the appellant had
    positioned to quickly depart the scene.  She drove them to her house where she
    helped them wash their clothes and dispose of the knife.

[12]

Neither
    the appellant nor Kelly gave evidence.  However, Ebanks and Visscher were
    called by the Crown.  Ebanks evidence had many inconsistencies, particularly
    about what if anything the appellant said to him on the drive over about using
    the knife.  Visscher gave evidence both about the drive over and what was said
    on the return trip, which left her with the impression that something had gone
    badly wrong in the apartment.

[13]

The
    appellants level of culpability for the murder of the deceased was the central
    issue at trial.  The Crowns theory was that the appellant was guilty as
    charged of first degree murder for aiding or abetting a planned and deliberate
    murder.  The theory of the defence was that the appellant was at most guilty of
    manslaughter.  The charge also left second degree murder with the jury.  The
    case was therefore legally complex, with an understanding of the distinction
    between the levels of culpability required for each offence being of
    fundamental importance.

ANALYSIS

First Issue: Ebanks subjective
    intention

[14]

The
    trial judge correctly told the jury that the only route to the conviction of
    the appellant for first degree murder was to find that she aided or abetted
    Ebanks to commit the planned and deliberate murder of the deceased.

[15]

This
    required that the jury be satisfied beyond a reasonable doubt (1) that the
    appellant knew that Ebanks intended to murder the deceased, (2) that she
    intended to, and did in fact aid or abet him in doing so, and (3) that the
    murder was to her knowledge, planned and deliberate.

[16]

The
    first of these steps required the jury to address two questions.  Was Ebanks
    intention sufficient for murder, and secondly, what was the appellants
    knowledge of that intention?  This issue focuses on the first of these two
    questions.

[17]

For
    the jury to find that Ebanks had the requisite intention to murder the
    deceased, they had to conclude that, when Ebanks stabbed the deceased, he
    intended to kill him, or meant to cause the deceased bodily harm
that Ebanks knew
was likely to kill the deceased and was
    reckless whether the deceased died or not.  This subjective intention is a
    constitutional requirement for murder: see
R. v. Martineau
, [1990] 2
    S.C.R. 633.

[18]

In
    my view, the charge fails to task the jury with this requirement.  In the
    critical section of his charge, the trial judge instructed the jury in detail
    about aiding or abetting a murder.  As part of this, the trial judge described that
    the Crown must prove that the appellant knew that Ebanks intended to murder the
    deceased.  He put Ebanks intention this way:

To prove second degree murder on either or both of the aiding
    or abetting modes of participation, the Crown must prove beyond a reasonable
    doubt that Ms. McIntyre actually knew that Jonathan Ebanks intended to kill
    Karl OReggio
or cause Karl OReggio bodily harm that
    would likely kill Karl OReggio
and not care whether or not Karl
    OReggio died.  [Emphasis added.]

[19]

This
    language was then immediately repeated twice more.  These were the only
    references to Ebanks intention necessary for the appellants conviction as an
    aider or abetter of murder.  It conveyed to the jury that Ebanks could be found
    to have the intention necessary for murder if he intended to cause bodily harm
    to the deceased that would likely kill him, whether or not Ebanks knew that
    this was likely.  In other words, this instruction permitted the jury to find
    that Ebanks murdered the deceased without having the subjective intention
    required by law.

[20]

The
    charge thus laid out a roadmap to convict the appellant of aiding or abetting
    Ebanks to murder the deceased that did not require the jury to find that Ebanks
    had the subjective intention required for murder.

[21]

It
    is true that at an earlier point in the charge the trial judge, almost in
    passing, correctly described the subjective intention required for a finding
    that Ebanks murdered the deceased.  However, that was not done in the context
    of the discussion of what was necessary to find the appellant guilty of aiding
    or abetting the murder which was the basis for the appellants conviction.

[22]

When
    it came to consider aiding or abetting, the direction concerning Ebanks
    intention would have erroneously directed the jury away from the evidence of
    Ebanks subjective intention in using his knife and what using it to poke the
    deceased could have meant.  Rather, the question the jury was invited to
    address was whether, objectively, poking the deceased with this knife would
    likely kill him.  This could well have focused the jury on the knife itself
    with its eight-inch Wolverine claw blade, (which they took to their jury room),
    rather than on Ebanks subjective intention.

[23]

This
    error in the aiding or abetting section of the charge was an error of law.  The
    trial judge told the jury quite properly that it was to take the law from him.
    That included this error.  Moreover, the jury was given copies of the charge.
    In this context, this error could well have had a serious impact on the jurys
    verdict: see
R. v. Poitras
(2002), 57 O.R. (3d) 538 (C.A.) at para.
    48.  Given the nature of the error, the lack of objection by counsel is of no
    moment: see
R. v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.).

[24]

In
    summary, there was an error of law in the charge that could have had a
    significant impact on the verdict.

Second Issue  The appellants
    knowledge of Ebanks intention

[25]

The
    trial judge correctly charged the jury that a necessary step on the path to convicting
    the appellant for aiding or abetting a planned and deliberate murder was that
    the appellant knew that Ebanks intention was to murder the deceased.

[26]

However,
    the trial judge offered the jury no further guidance on this issue, a vital one
    to determine the appellants level of culpability.  On the facts of this case,
    that presented two problems.

[27]

First,
    the appellants knowledge of Ebanks intention was dependent on when that
    intention was formed.  If his intention to kill the deceased was formed only
    after he entered the deceaseds apartment, she could not have known of it.  If,
    on the other hand, Ebanks intention was formed earlier, the appellant could
    have known of it.  Nowhere does the trial judge articulate this for the jury.
    The charge does not tell the jury that a necessary (although not sufficient)
    precondition to deciding if the appellant knew of Ebanks intention, was to
    determine when it was formed, before or after he entered the deceaseds
    apartment.

[28]

The
    necessity to determine when Ebanks formed his intention might be said to be
    implicit in the instruction that conviction required a finding that the
    appellant knew of his intention.  However, the importance of failing to be
    explicit about when Ebanks formed his intention was greatly increased by the
    trial judges failure to give the jury any assistance concerning the evidence
    that could assist them in deciding that question.  In the context of this case,
    an adequate jury charge required more.

[29]

There
    can be no doubt that the assessment of the adequacy of jury instructions
    requires a functional approach.  In
R. v. Cooper,
[1993] 1 S.C.R. 146,
    at p. 163, Cory J. described the appellate task this way:

At the end of the day, the question must be whether an
    appellate court is satisfied that the jurors would adequately understand the
    issues involved, the law relating to the charge the accused is facing, and the evidence
    they should consider in resolving the issues.

[30]

The
    task of relating the evidence relevant to a particular issue, need not require
    lengthy repetition of large parts of the evidence.  Rather, the jury is
    assisted by identifying the issue, and indicating what parts of the evidence
    may support the respective positions of the parties on that issue.  In
R.
    v. MacKinnon
, [1999] 3 O.R. (3d) 378 (C.A.), at pp. 386-387, Doherty J.A.
    offered this description of the task:

I mean references to the evidence which are sufficient in the
    context of the case and the entirety of the charge to alert the jury to the
    particular parts of the evidence which are significant to particular issues and
    to the positions taken by the parties on those issues.

[31]

There
    was evidence to suggest that Ebanks intention to murder the deceased was
    formed before the appellant dropped Ebanks and Kelly off at the deceaseds
    apartment.  This included Ebanks display of his knife in the car on the drive
    over, the reference to poking the deceased with the knife, and the beef his
    friend Kelly had with the deceased.

[32]

There
    was also evidence to suggest that Ebanks intention only arose once he entered
    the apartment.  Ebanks testified to this effect.  It was only a short drive
    from where Ebanks joined them to the deceaseds apartment, with little
    opportunity for Ebanks to develop an intention to kill the deceased or share it
    with the appellant.  Visscher said she heard no discussion on the drive of any
    intention to kill the deceased or cause him serious bodily harm.

[33]

It
    is no answer to say that the trial judge included in the charge the summary of
    positions submitted by both parties where some of this evidence is touched on.
    In their summaries, neither counsel was purporting to discharge the task
    required of the trial judge that I have described.  Nor could they relieve the
    trial judge of his obligation to perform this task: see
R. v. MacKinnon
,
supra
, at p. 387.

[34]

In
    summary, it was important to bring squarely to the jurys attention the
    question of when Ebanks intention was formed, and to assist the jury with
    those parts of the evidence that might help them with that issue.  Only if Ebanks
    intention was formed at a time when the appellant could have known of it could
    the question of whether she in fact knew of his intention be considered.  The
    appellants level of culpability, the central issue in the trial, turned on the
    answer to that question.

[35]

In
    my view, the failure of the charge to focus the jury on when Ebanks intention
    was formed, as an essential part of the reasoning process, and the failure to
    assist the jury with the evidence relevant to that issue was a non-direction
    amounting to an error of law in the circumstances of this case.

Third Issue  Post-offence conduct

[36]

The
    third issue raised by the appellant was the trial judges treatment of the
    evidence of the appellants post-offence conduct.

[37]

The
    Crown placed significant emphasis on this evidence as being important in
    determining the appellants level of culpability.

[38]

The
    post-offence evidence included: the appellant positioned her car for a quick
    getaway once the two men entered the deceaseds apartment and they then fled in
    her car; the appellant did nothing to assist the deceased after Ebanks said he
    might have killed him; the appellant helped Ebanks and Kelly to clean their
    clothes; the appellant helped to dispose of the knife; the appellant sent
    certain text messages afterwards to the deceased.

[39]

For
    several reasons I agree that the trial judge erred in his treatment of this
    evidence.

[40]

First,
    the charge would have left the jury confused.  In a pre-charge ruling, the
    trial judge agreed that the bulk of the post-offence conduct evidence could do
    no more than point to the appellants culpability in the deceaseds killing,
    not to the level of her culpability.  He specifically referred to the text
    messaging afterwards and the disposal of the knife as examples of evidence that
    could not assist in determining her level of culpability.  In the same ruling,
    he held that at least two pieces of post-offence conduct evidence could help
    the jury to determine the appellants level of culpability, namely readying the
    car for and then effecting a quick flight, and doing nothing to assist the
    deceased after hearing he might have been killed. While I have real doubt that
    even these two pieces of evidence speak at all to the appellants level of
    culpability, that was not contested in this court.

[41]

Consistent
    with his pre-charge ruling, the trial judge, in his charge to the jury,
    identified both the quick flight and the failure to assist the deceased in any
    way as evidence the jury could use to determine the appellants level of
    culpability.  He then told the jury that most of the remaining post-offence
    conduct evidence did no more than point to the appellants involvement in the
    deceaseds death, not her level of culpability.  He then listed specific items
    of post-offence conduct evidence that did not help to determine the appellants
    level of culpability.

[42]

However,
    he concluded this part of his charge by clearly instructing the jury that they
    could consider, in determining the appellants level of culpability, any post-offence
    conduct evidence that they found to reflect her consciousness of having done
    what she was charged with:

On the other hand, if you find that anything Ms. McIntyre did
    or said afterwards was because she was conscious of having done what is alleged
    against her, you may consider this evidence, together with all the other
    evidence, in reaching your verdict.

[43]

As
    a result, the jury would not have known whether it could or could not consider
    the post-offence conduct evidence beyond the two specified pieces of evidence
    in determining the appellants level of culpability, the central issue in the
    trial.

[44]

If,
    in the face of this confusion, the jury did consider the post-offence conduct
    evidence other than the quick flight and the failure to assist in addressing
    this central issue, it ought not to have done so.  Indeed in his ruling, the
    trial judge had essentially said so.  There is no doubt that the trial judge
    had a legal obligation to clearly direct them to that effect.  The jury had to
    be told that the remaining post-offence conduct evidence had no probative value
    on the central issue, namely the appellants level of culpability.  The
    evidence was simply not probative of whether the appellant knew she was aiding
    a planned and deliberate murder rather than a manslaughter.  It was equally
    consistent with both: see:
R. v. Wiltse
(1994), 19 O.R. (3d) 379 (C.A.),
    at p. 384; and
R. v. White
2011 SCC 13, [2011] 1 S.C.R. 433.

[45]

The
    best example of such evidence is the appellants help in disposing of the knife,
    which the trial judge had previously and correctly ruled was not probative of
    the appellants level of culpability.

[46]

The
    charge compounded the difficulty by repeating the Crowns position that
    disposal of the knife was probative of the appellants level of culpability.
    The trial judge should not have repeated the Crowns position.  In fact he
    should have cautioned the jury that it could not use that evidence this way.

[47]

Finally,
    the part of the post-offence conduct evidence charge quoted above also exemplified
    the flaw described in
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5
    (Ont. C.A.), at paras. 141-146.  It invited the jury to jump directly to the
    issue of guilt as a precondition to deciding the use they would make of the
    post-offence conduct evidence.  This is to reason backwards.

[48]

Taken
    together, these flaws in the charge on post-offence conduct amount to legal
    error.

[49]

This
    could not be said to be an overwhelming case for the Crown.  Given the three
    errors of law I have described, I would not apply the curative proviso.  Nor
    does the Crown request that we do so.  Rather, the result must be to set aside
    the appellants conviction and order a new trial.

Released: May 30, 2012 (S.T.G.)

S.T. Goudge. J.A.

I agree K. Feldman J.A.

I agree Robert P. Armstrong
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Msiska, 2012 ONCA
    354

DATE: 20120528

DOCKET: C51125

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salama Mtende Msiska

Appellant

Peter Thorning and Maureen Salama, for the appellant

Philip Perlmutter, for the respondent

Heard: May 24, 2012

On appeal from the conviction entered on December 19,
    2008 and the sentence imposed on March 12, 2009 by Justice Bruce J. Young of
    the Ontario Court of Justice sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

This appeal must be allowed. The trial judge erred in a number of
    material ways. His analysis on past signification is flawed by a
    misapprehension of the evidence and an absence of clear or cogent reasons as to
    why the principle applied on these facts.

[2]

Furthermore, while the trial judge expressed an understanding of the
    need to make a s. 10(b) ruling, he failed to make such a ruling. Contrary to
    the Crowns submission, on a full and detailed reading of the reasons it is not
    possible to discern that such a ruling was made. Put another way, it could not
    be made without first making findings and those findings  including those on
    credibility  were not made.

[3]

Self evidently, the s. 24(2) analysis of the trial judge cannot stand.

[4]

Accordingly, the appeal is allowed and a new trial is ordered.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. N.M., 2012 ONCA 296

DATE:  20120508

DOCKET: C53628

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.M.

Appellant

F. Mirza, for the appellant

E. Carrington, for the respondent

Heard:  April 10, 2012

On appeal from the conviction entered by Justice Baltman
    of the Superior Court of Justice, sitting with a jury, on October 26, 2010.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant was charged with two counts of sexual assault and one
    count of touching a person under the age of 14 for a sexual purpose.  Count 1 (sexual
    assault) and count 2 (touching for a sexual purpose) arose out of the same incident,
    which allegedly occurred on or about December 27, 2003.  Count 1 was not
    particularized.  Count 2 alleged that the appellant touched M.R. with his
    penis.  The third count in the indictment alleged that the appellant sexually
    assaulted M.R. in July 2006.  The jury convicted the appellant on count 1 and
    acquitted the appellant on counts 2 and 3.  The appellant appeals from his
    conviction.

[2]

I would allow the appeal.  The conviction rested entirely on the
    evidence of M.R.  In my view, having regard to the significant problems with
    M.R.s credibility, a conviction based exclusively on her evidence is not a
    verdict that a properly instructed jury, acting judicially, could render.  I
    need not address the other grounds of appeal.

II

THE EVIDENCE

(a)

Overview

[3]

M.R. and the appellant are related.  The appellant is the nephew of
    M.R.s grandparents.  She would refer to him as uncle.  At the time of the
    first alleged incident (December 27, 2003), M.R. was 12 years of age and the
    appellant was about 20 years of age.  M.R. was living with her grandparents.  The
    appellant had recently arrived in Canada from India.  He and M.R. would see
    each other at family gatherings.  They were not friendly and generally just
    said hi and bye to each other.

[4]

The second incident allegedly occurred some two and one half years after
    the first, in July 2006.  M.R. went to the police one month later.  She gave a
    videotaped statement to the police in which she described both incidents.  The videotape
    was admitted into evidence at trial.  M.R. testified that the allegations about
    the sexual abuse she made in that videotape were true.  She also gave further
    evidence.  M.R. was 19 years of age when she testified.

[5]

The appellant did not testify, but the defence did call two witnesses,
    the appellants mother and Ms. H., M.R.s grade six teacher during the 2003-2004
    school year.

(b)

The First Incident (Counts 1 and 2)

[6]

M.R. testified that on December 27, 2003, she was living with her grandparents
    and her five-year-old brother.  They went to visit the appellants parents who
    lived in a one-bedroom basement apartment.  At some time during the visit, M.R.
    and her brother went into the bedroom to watch television.  The adults remained
    in the living room talking and drinking tea.

[7]

M.R. and her brother were sitting at the foot of the bed watching
    television.  The appellant was in the bed asleep.  He woke up and invited M.R.
    to come up on to the bed.  She did so.  Her brother stayed on the floor at the
    foot of the bed watching television.

[8]

M.R.s description of the assault that followed was well summarized by
    the trial judge in her instructions to the jury:

He [the appellant] woke up, invited her [M.R.] onto the bed,
    and removed her sweater.  He told her that if she said anything to anyone, he
    would kill her.  He took her hand and put it down the front of his track pants
    and had her massage his penis.  He kissed her, pulled her tank top down and
    touched her breasts.  He unzipped her jeans and pulled them down to her knees.
    He then turned her over on her side and tried to stick his penis in her anus.

Because her brother was turning around, she pulled up her jeans
    and put on her sweater and went out into the living room.  [The appellant]
    pulled up his pants and went to the bathroom.  She did not tell any of her
    relatives what had happened because she did not know how they would react.

[9]

M.R. was cross-examined on her description of the relevant events.  Some
    inconsistencies emerged.  For example, in M.R.s initial description, she did
    not mention being under the covers when the appellant pulled her pants down and
    lifted her shirt.  She later indicated she was under the sheets, perhaps in
    an effort to explain why her brother apparently did not see anything untoward.
    I do not propose to refer to the other inconsistencies.  None were dramatic,
    and although relevant to M.R.s credibility, they were the kind of inconsistencies
    one often finds in witnesses accounts of events like this one.

[10]

M.R.s
    brother testified.  Not surprisingly, given his age at the relevant time, he had
    no recollection of the events described by M.R.

[11]

The
    appellants mother testified for the defence.  She recalled that on December
    26, 2003 (Boxing Day), the day before the alleged incident, her family purchased
    their first television set.  She recalled that the family put the television in
    the living room where the only cable hook-up in the apartment was located.
    There was no television in the bedroom.  The appellants mother recalled everyone
    watching a movie on the television in the living room.   She testified that
    M.R. was not in the apartment on December 27, 2003.

(c)

The Alleged
    Disclosure of the First Incident

[12]

M.R.
    indicated that a few weeks after the alleged incident, she became concerned
    that she might be pregnant as her period was late.  She told her friend, A.O.,
    what had happened.  A.O. told her mother, Ms. O., who then arranged a meeting
    with M.R.s teacher, Ms. H.  According to M.R., she told Ms. O. and Ms. H. of everything
    the appellant had done to her.  In cross-examination, she repeatedly insisted
    that she told Ms. O. and Ms. H. everything in the video statement.  The video
    statement included all of the details of the alleged assault summarized above,
    in para. 9.

[13]

M.R.
    testified that there was some discussion with Ms. O. and Ms. H. about going to
    the doctor, but that she eventually got her period and nothing happened.  She
    did not go to the doctor.  She described Ms. O. as understanding, but indicated
    that Ms. H. acted as though M.R. was trying to get attention by making the
    allegations.

[14]

Ms.
    O. was called by the Crown.  She recalled her daughter telling her that M.R.
    had indicated that she believed she had been fondled by a family member,
    probably her uncle [the appellant].  Ms. O. spoke to M.R. on the telephone
    and she confirmed what M.R. had told Ms. O.s daughter.  Ms. O. arranged to
    meet with M.R. and Ms. H. the next day.

[15]

Ms.
    O. had only a vague recollection of any details provided to her by M.R.  She recalled
    M.R. saying that she had been sleeping in a room and when she woke up her
    buttons and bra clasp were undone, and her uncle [the appellant] was sleeping
    beside her.

[16]

In
    cross-examination, Ms. O. was referred to her statement to the police and her
    preliminary inquiry testimony to refresh her memory.  She adopted her prior
    testimony in which she indicated that M.R. did not give her any of the details
    about the sexual assault M.R. later gave in her statement to the police.  M.R.
    made no reference to kissing, fondling, masturbation, attempted anal
    intercourse or to any threats made to her by the appellant.

[17]

Ms.
    O. recalled that M.R. expressed some concern about being pregnant and going to
    the doctor.  Ms. O. told M.R. that she should speak to her grandmother, the
    school, a doctor, and the police.  Ms. O. left the matter in the hands of Ms.
    H.

[18]

Ms.
    H. was called by the defence.  She testified that Ms. O. and the complainant
    spoke to her at school.  Ms. O. told Ms. H. that M.R. had indicated to her that
    she awoke from a nap to find that her tank top strap had moved and her top was
    riding up on her belly.  M.R. was present when Ms. O. provided this summary of
    what she had been told by M.R.  Ms. H. told M.R. that she should feel free to
    speak to her about it and that if anything had happened, it was not M.R.s
    fault.  M.R. indicated to Ms. H. that she did not know how her strap had been
    moved, but she did not think she had been sexually or physically abused.  M.R. did
    not say her uncle was in the bed when she woke up.

[19]

Ms.
    H. was adamant that M.R. did not say anything about being sexually abused and
    specifically did not make any of the complaints contained in her later statement
    to the police.  Ms. H. testified that if M.R. had told her about any of those things,
    she would have immediately taken M.R. to the principal.  She regarded the
    reporting of sexual abuse as a top priority.

[20]

Ms.
    H. acknowledged that there was some reference to taking M.R. to the doctor for
    a pregnancy test.  She denied making any follow-up inquiries of M.R.

[21]

As
    far as Ms. H. was concerned, she and M.R. had a good relationship.  Ms. H.
    often tutored M.R. before and after school, and they would discuss M.R.s
    family circumstances from time to time.

[22]

In
    cross-examination, Ms. H. acknowledged that she was aware of her statutory duty
    to report abuse.  She made no report in this case because as far as she was
    concerned, there was no allegation by M.R. of any abuse.

[23]

The
    investigating officer was called in reply by the Crown.  He testified that when
    he first contacted Ms. H. about this matter, she immediately asked: this
    doesnt have to do with her uncle, does it?

(d)

M.R.s Fabrication of
    a Visit to the Doctor

[24]

At
    the commencement of her videotaped statement to the police, the investigating
    officer stressed to M.R. the need to tell the truth during the interview.  He
    made sure that M.R. understood the difference between the truth and a lie.
    M.R. was 15 years of age.

[25]

In
    the course of the interview, the officer asked M.R. if she had told anyone about
    the first sexual assault.  M.R. launched into a detailed narrative in which she
    told the officer that she went to see Ms. H. because she thought she was
    pregnant.  Ms. H. went through her medical records and noticed that M.R.s
    doctor was also the doctor of one of her other students.  According to M.R.,
    Ms. H. spoke to the other students mother and arranged for that person (Ms.
    O.) to take M.R. to their doctor.  M.R. described the trip to the doctor with
    Ms. O. in some detail.  She named the doctor and identified the location of his
    clinic.  She also told the officer that the doctor had died.

[26]

The
    officer questioned M.R. about other matters, but then returned to her
    description of her trip to the doctor with Ms. O.  The officer told M.R. that
    he found it strange that the doctor had not reported the incident to the
    authorities.  M.R. promptly added more details about the visit with the doctor.
    She described Ms. O.s discussion with the doctor when they arrived at his
    office.  She further indicated that she took the pregnancy test after Ms. O.
    and the doctor had spoken.  M.R. also told the police that Ms. O. arranged to
    have the pregnancy test results sent to her.  M.R. assured the investigating officer
    that Ms. O. would confirm everything M.R. had said about going to the doctor.

[27]

Everything
    M.R. said about the trip to the doctor was a lie.  About two years after giving
    her statement, and immediately before M.R. was scheduled to testify at the
    preliminary hearing, she admitted to the police that she had fabricated the
    story about the trip to the doctor with Ms. O.  There had been no such trip and
    M.R. had never been given a pregnancy test.

[28]

M.R.
    attempted to explain her lies to the police by saying she was scared and
    nervous and having problems at home when she gave the videotaped statement.
    According to her  although there was conflicting evidence on this point  her
    grandfather had died a few weeks earlier.  M.R. offered no explanation for taking
    over two years to tell the truth.

(e)

The Second Alleged Incident

[29]

M.R. testified that in July 2006, she was sitting with the appellant and
    her brother in the appellants car parked at the home of relatives they were
    visiting. M.R. sat in the backseat and her brother and the appellant sat in the
    front seat.  The appellant reached back and put his hand on M.R.s stomach.  The
    appellant told M.R.s brother to go into the house to get the appellants cell
    phone.  After her brother had left the car, the appellant pulled M.R. forward
    and kissed her.  When the brother returned to the car, M.R. left the vehicle.

[30]

M.R.
    admitted in cross-examination that in July 2006 she was having problems at home
    and that her grandmother wanted her to move out of the house.  M.R. denied that
    she made up the allegation against the appellant to gain sympathy at home.

[31]

At
    trial, M.R.s brother adopted his videotaped statement to police in which he recalled
    being in the car with the appellant and M.R.  He recalled his sister lying in
    the backseat and he saw the appellant touch his sisters stomach.

III

analysis

[32]

This
    court has the obligation to review the reasonableness of convictions:
Criminal
    Code
,

s. 686(1)(a)(i).  In exercising that authority, the court
    must, to some extent, review both credibility assessments and factual findings
    made at trial.  It does so, however, bearing in mind both the advantaged
    position of the trier of fact and the limited scope of review.  The question
    for the appellate court is not what it would have decided, but whether a
    properly instructed trier of fact could reasonably have rendered a guilty
    verdict:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[33]

The
    reasonableness review provides an important safeguard against miscarriages of
    justice.  In
Biniaris
, at para. 42, the court described the nature of
    that review in these terms:

To the extent that it [appellate review] has a subjective
    component, it is the subjective assessment of an assessor with judicial
    training and experience that must be brought to bear on the exercise of
    reviewing the evidence upon which an allegedly unreasonable conviction rests.  That
    in turn requires the reviewing judge to import his or her knowledge of the law
    and the expertise of the courts, gained through the judicial process over the
    years, not simply his or her personal experience and insight.

[34]

I
    understand
Biniaris
to instruct that the knowledge gained through the
    reviewing courts broad exposure to the criminal process provides insights into
    credibility assessments and fact-finding not available to jurors whose
    experience is generally limited to a single case.  Those insights must inform
    the reasonableness assessment.

[35]

My reasonableness assessment begins with the observation
    that this jury obviously had difficulty with M.R.s credibility.  The jury
    acquitted on
two of the three charges.  The
    three verdicts, considered together, indicate to me that the jury was not
    prepared to accept M.R.s evidence with respect to the second alleged
    incident.  As far as the first incident was concerned, the jury did accept
    M.R.s evidence to the extent of finding that something improper of a sexual
    nature had occurred between her and the appellant.  However, the jury was not
    prepared to accept M.R.s description of that encounter.

[36]

M.R.s allegation that
    she was sexually assaulted by the appellant in his bedroom on December 27, 2003,
    the only count on which the appellant was convicted, was unsupported in any
    material respect by any evidence independent of that provided by M.R.  That, of
    course, is no reason to declare the verdict unreasonable.  The jury was entitled
    to accept and act on M.R.s evidence even if it stood alone.  The absence of
    any evidence capable of offering any confirmation of M.R.s allegation on that
    charge does, however, make the assessment of her credibility central to the
    reasonableness of the verdict.

[37]

There are two serious
    problems with M.R.s credibility.  First, she lied to the police when she described
    the visit to the doctor with Ms. O. for a pregnancy test.  This was no simple
    isolated lie about some small part of her story.  This was a detailed fabrication.
    The fabrication was also clearly premeditated.  M.R. had her narrative ready
    for the police when questioned by them.  Her failure to admit she lied for some
    two years, and her acknowledgement of the lies only at the point when she must
    have known she would be revealed as a liar in court, further undermines her
    credibility.

[38]

These lies do not
    suggest to me a spur of the moment misjudgement by a young person under
    questioning by the police.  Rather, they speak to a premeditated, albeit easily
    exposed, plan devised to make an allegation more credible.

[39]

The second problem
    with M.R.s credibility relates to the differences between her evidence as to
    what she told Ms. O. and Ms. H. and the evidence they gave about those
    disclosures.  Clearly, it was open to the jury to conclude that M.R. said
    something to Ms. O. and Ms. H. about a possible sexual assault by the appellant.
    However, M.R.s evidence about her disclosure to Ms. O. and Ms. H. went much
    further than that.  She repeatedly insisted in her evidence that she told Ms.
    O. and Ms. H. all the details about the sexual assault that she gave to the
    police in her videotaped statement.  Those details included allegations of acts
    of masturbation and attempted anal intercourse as well as a death threat.

[40]

In my view, it defies
    common sense to suggest that Ms. O. or Ms. H. would not have immediately reported
    allegations of the kind that M.R. said she made to them to the authorities.   Consider
    Ms. H.s position.  She was M.R.s teacher and they had a good relationship.
    Ms. H. was aware of her responsibilities to report allegations of abuse.  Why
    would Ms. H., if a student told her of an attempted rape by a family member,
    not report that allegation to the appropriate authorities?  Clearly, she would
    have.

[41]

Bringing judicial
    experience to bear, I think the only reasonable conclusion is that M.R. did not
    tell Ms. H. or Ms. O. about the sexual assaults that she described in her statement
    to the police some two and one half years later.  Her testimony that she did
    make those allegations to Ms. H. and Ms. O. is incredible and could not be
    accepted by a reasonable trier of fact acting judicially.  At best, a
    reasonable trier of fact could conclude that M.R. had expressed concern about a
    possible sexual assault of an unspecified nature by her uncle while she was
    asleep.

[42]

I am mindful of the admonition in
Biniaris
, at para. 38,
that appellate courts cannot
    find unreasonableness based solely on some vague unease about the adequacy of
    the evidence.  The appellate court must attempt to articulate the basis for its
    finding.  In non-jury cases, the trial judges reasons often will reveal the origins
    of an unreasonable verdict.  The task of articulating a basis for a finding of
    unreasonableness is more difficult in jury cases.  By law, jurors are not
    allowed to give any reasons for their verdict.  Juries leave no tracks for the
    appellate court to examine in assessing the reasonableness of their verdicts.

[43]

A
    review of the instructions given to a jury may, however, provide clues as to
    how the jury arrived at what the appellate court views as an unreasonable verdict.
    Some of the trial judges instructions on matters relevant to M.R.s
    credibility provide insight into the jurys verdict in this case.

[44]

The
    trial judge gave the usual instructions concerning the credibility of
    witnesses, including M.R., and the relevance to credibility of inconsistent
    statements.  In reference to M.R.s admitted lies about the trip to the doctor
    and the pregnancy test, the trial judge said:

At this trial you heard [M.R.] testify that she did not go to
    see the doctor in January 2004, after she reported an assault to her teacher,
    [Ms. H.].  However, in the video statement she previously gave to Constable
    Steele she said that she and [Ms. O.] went to see Dr. [A.] and she underwent a
    pregnancy test.  She explained that when she gave the statement to Constable
    Steele she was scared and nervous, and she was not thinking properly because it
    was soon after her grandfather had died.

Not every difference or omission will be important.  You should
    consider the fact, nature and extent of any differences in deciding their
    importance to you and in deciding whether you believe or will rely upon the
    witnesss testimony. You should also consider any explanation that the witness
    gives for the differences.

[45]

The
    trial judges instructions are legally correct as far as they go.  They do not,
    however, highlight for the jury the potential significance of M.R.s lies about
    her trip to the doctor.  The trial judge does not go into the details of those
    lies or the way in which they were presented as part of a broader narrative to
    the police.  The potential significance to M.R.s credibility of these admitted
    lies may not have been brought home to this jury.  The trial judge also did not
    make any reference to M.R.s two-year silence about the lies, broken only on
    the eve of her testimony at the preliminary inquiry.  That long silence could
    hardly be explained by M.R.s nervousness or emotional state at the time she
    gave her videotaped statement.

[46]

The
    trial judges failure to tailor the credibility instruction to the specific
    nature of the lies told by M.R. leaves me with the strong impression that the
    jury would not regard M.R.s lies about going to the doctor as of more or less
    significance than other inconsistencies that may have emerged from the
    evidence.  Judicial experience tells me that those lies deserved much more emphasis
    in the assessment of M.R.s credibility.  A less generic instruction about
    credibility and one more tailored to the specific problems with M.R.s
    credibility would, I think, have provided more assistance to the jury.

[47]

The
    trial judge also gave no specific instruction concerning the inconsistencies
    between M.R.s evidence about what she disclosed to Ms. O. and Ms. H., and
    their own evidence about what they were told by M.R.  The trial judge referred
    to these differences only briefly when outlining the theory of the defence.  M.R.s
    evidence about her conversations with Ms. O. and Ms. H. was potentially
    significant given that these conversations occurred shortly after the first alleged
    assault.  On any reasonable view of the evidence, M.R.s version of those
    conversations was not credible.

[48]

It
    would have been helpful to the jury had the trial judge, in the instructions to
    the jury, focused on the different versions of M.R.s conversations with Ms. O.
    and Ms. H.  It would have also been helpful had the trial judge reviewed with
    the jury the evidence relevant to the likelihood of either or both Ms. O. and
    Ms. H. ignoring the kinds of allegations that M.R. testified she made to them.
    By focusing on these matters, the instruction could have assisted the jury in
    its assessment of M.R.s credibility.

[49]

My
    references to the trial judges instructions are not made to assign legal
    error.  Nor do I suggest that some specific caution or warning about accepting M.R.s
    evidence was required as a matter of law.  My references to the instructions are
    intended to demonstrate that the trial judges credibility instructions were somewhat
    generic and did not come to grips as well as they might have with the specifics
    of this case and, in particular, two very important features of M.R.s
    evidence.  This jury did not have the benefit of a credibility instruction carefully
    tailored to the evidence that it had before it.  The absence of that kind of
    instruction helps to explain, in my view, why this jury returned what my judicial
    experience tells me was an unreasonable verdict.

[50]

The
    jury was satisfied that something happened on December 27, 2003 in the
    appellants bedroom.  Their verdict seems to be an application of the old adage
    where theres smoke theres fire.  Whatever the merits of that approach to
    fact finding in other contexts, it has no application in a criminal trial.

IV

CONCLUSION

[51]

I
    would allow the appeal, quash the conviction and enter an acquittal.

RELEASED: MAY 08 2012  DD

Doherty J.A.

I agree J.C.
    MacPherson J.A.

I agree Robert J.
    Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Noseworthy, 2012
    ONCA 345

DATE: 20120523

DOCKET: C53217

Goudge, Gillese and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chad Noseworthy

Appellant

Ariel Herscovitch and Stephanie DiGiuseppe, for the
    appellant

Catherine Mullaly, for the respondent

Heard: May 22, 2012

On appeal from the conviction entered on August 5, 2010
    by Justice Simon C. Armstrong of the Ontario Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant says that the trial judge erred in his assessment of the
    complainants credibility and this warrants a new trial.

[2]

We do not agree.  The trial judge was fully aware that the complainant
    was not an ideal witness and the reasons for that.  It was open to him to take
    her candidness into account as supportive of the view that she was not trying
    to mislead the Court with her evidence.  The trial judge made clear that he was
    aware of and took account of the various failings pointed to by the appellant.
    In the end it was open to him to accept the fundamental point of her evidence
    namely that the appellant punched her in the head.

[3]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Riad, 2012
    ONCA 300

DATE: 20120508

DOCKET: M41217 (C53563)                                                                                &
    M41282 (C52611)

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Nagy Riad

Applicant

Nagy Riad, acting in person

Bernadette Saad, for the applicant in file number M41282
    (C52611)

Roger A. Pinnock, for the responding party

Heard and released orally: April 30, 2012

On motions to re-open appeals dismissed as abandoned on
    January 17, 2012

ENDORSEMENT

[1]

The applicant, Mr. Nagy Riad, applies to re-open two appeals. The first,
    file number C53563, relates to a summary conviction appeal respecting two
    matters. Mr. Riad is self-represented on this appeal. In determining whether to
    exercise our discretion to re-open this appeal, one of the considerations is
    that leave to appeal is required. In our opinion it does not meet the test for
    leave under
R. v. R.(R.
) (2008), 234 C.C.C. (3d) 463 (Ont. C.A.), at
    para. 37.

[2]

The application relating to file number C53563 is dismissed.

[3]

The second, file number C52611, relates to the applicants conviction
    appeal with respect to one count of failing to comply with a court order of
    which he was convicted on June 18, 2010.  On January 17, 2012, the matter was
    ordered, dismissed as abandoned due to the applicants history of
    non-attendance and non-compliance.

[4]

In addition to Mr. Riad being present in person, Ms. Saad attended today
    as counsel. They offer an explanation as to both the alleged non-attendance and
    non-compliance. There is information before the court that casts serious doubt
    on the veracity of the explanation offered. Accordingly, we are not satisfied
    that it would be in the interests of justice to re-open this appeal.

[5]

The application is dismissed.

K.M. Weiler J.A.

David Watt J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Stevens, 2012
    ONCA 307

DATE: 20120514

DOCKET: C48927

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bob Stevens

Appellant

Louis P. Strezos and Shannon S.W. O'Connor, as Duty
    Counsel

James K. Stewart, for the respondent

Heard: April 16 and 17, 2012

On appeal from the conviction entered on April 18, 2008
    by Justice Feroza Bhabha of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for unauthorized possession of a
    firearm, careless handling of a firearm and failure to comply with a condition
    of his recognizance.

[2]

The background facts giving rise to this appeal are that a confidential informant
    told police that the appellant was a drug dealer and that he kept a handgun and
    ammunition at his residence.  The informant claimed to have been in the
    residence and seen the gun during a certain time period.  The Information To
    Obtain (ITO) that was drafted by the officers observing the appellants home
    was used to obtain a search telewarrant.

[3]

A stealth search was executed in the middle of the night.  As police
    were at the door and moments before they entered the residence three officers
    outside saw someone throw an item inside of a white sock out the window.  The
    item landed in an adjacent yard.  It was found to be a semi-automatic firearm.

[4]

The appellant was the sole occupant of the residence.  No other drugs or
    weapons were found inside.

[5]

As the ITO contained some significant errors, the main issue at trial
    was the validity of the search warrant and therefore the search.  The trial
    judge declined to determine the validity of the warrant.  She held that the gun
    was discarded into an area where the appellant had no reasonable expectation of
    privacy and that he had abandoned it.

[6]

The trial judge further held that the gun was discovered independently
    of the warrant.  Notwithstanding her conclusion that the gun was lawfully
    seized by police and that there was no violation of the appellants s. 8
Charter
rights, the trial judge proceeded to engage in a s. 24(2)
Charter
analysis
    and, using the Collins test (in place at the time), would have admitted the
    evidence.

[7]

On appeal, the main argument put forward by
amicus
is that,
    because the trial judge declined to determine the validity of the search
    warrant, this court is not in a position to determine whether the appellants
Charter
rights were breached and a new trial is required.  A determination of the
    validity of the search warrant in light of the errors in the ITO was essential.
     The question of abandonment of the gun could not be properly decided without
    first determining whether the appellants
Charter
rights had been
    infringed.

[8]

We disagree.  In the factual circumstances here, the trial judge was not
    required to determine the legality of the search.  In order to engage a
    persons rights under s. 8 of the
Charter
, that person must first
    establish a reasonable expectation of privacy:  see
R. v. Edwards
,

[1996] 1 S.C.R. 128, at paras. 33 and 39.  Having thrown the handgun out
    the window into a neighbours yard, the appellant no longer had any reasonable
    expectation of privacy respecting the gun.  He no longer had possession or
    control over the gun; instead, he attempted to divest himself of possession or
    control of it.  Indeed, he gave up the ability to regulate access to it when he
    threw it away.  Furthermore, he offered no evidence of any subjective
    expectation of privacy in it.  The absence of these factors was sufficient for
    this court to hold that the accuseds s. 8 rights were not engaged in
R. v.
    Nesbeth
,

[2008] O.J. No. 3086 (C.A.) at para. 22, leave to appeal
    to the S.C.C. refused, [2009] S.C.C.A. No. 10. See also
R. v. L.B.
, [2007]
    O.J. No. 3290; and
R. v. Plummer
, [2011] O.J. No. 2034 (C.A.).

[9]

Usually, it is only after the appellant has established a reasonable
    expectation of privacy and the court is considering whether the search was an
    unreasonable intrusion on that right to privacy that there is a need to
    consider the reasonableness of the search and whether there has been police
    misconduct:
Edwards, supra
.  Here, as the trial judge had correctly
    held that the gun had been abandoned, s. 8 was not engaged, and the trial judge
    was not obliged to consider the validity of the telewarrant or the legality of
    the police search.

[10]

Having
    regard to this conclusion, it is unnecessary for us to address the balance of
    the arguments put forward by
amicus
as they all relate to the legality
    of the search (e.g. whether the trial judge erred in holding there was no
    cognizable legal nexus between the execution of the warrant and the seizure of
    the firearm and whether the validity of the ITO and therefore the search
    warrant would have had a bearing on the issues whether the police acted in good
    faith for the purpose of a s. 24(2) analysis).

[11]

The
    grounds of appeal in the appellants notice of appeal were not pursued before
    us and, in any event, having regard to our conclusion it is unnecessary for us
    to deal with them.

[12]

The
    appeal is dismissed.

Karen M. Weiler
    J.A.

Janet Simmons
    J.A.

E.A. Cronk J.A.