WARNING

The Judge
    hearing this application directs that the following should be attached to the
    file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

6.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

7.

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

8.

(b) on application of the victim
    or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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. C.L., 2018 ONCA 470

DATE: 20180518

DOCKET: M49115 (C65283)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Applicant/Appellant

David J. DIntino, for the applicant

Susan Magotiaux, for the respondent

Heard: May 9, 2018

ENDORSEMENT

A.

Introduction

[1]

After a seven-day trial in the Ontario Court of Justice, the appellant
    was convicted of sexual assault (
Criminal Code
, s. 271) and being
    unlawfully in a dwelling house (s. 349(1)). He received a sentence of two years
    less a day imprisonment and two years of probation, along with other ancillary
    orders. The appellant seeks bail pending appeal. For the following reasons, the
    application is dismissed.

B.

the trial and sentencing

[2]

The victim of the offences was an acquaintance of the appellant. The
    appellant and his wife attended a birthday party, followed by an afterparty.
    The victim was at both of these events. She consumed a great deal of alcohol.

[3]

The victim testified that she had some memory of the birthday party, and
    very little memory of the afterparty. She had no memory of getting home. The
    victim testified that she woke up at her home with the accuseds hands down her
    pants. He told her to get on a couch and he penetrated her anally. The victim
    attempted to fight the appellant off. He pulled her to the bedroom and tried to
    vaginally penetrate her. She tried to stop him, and he rubbed his penis against
    her until he ejaculated.

[4]

The appellant testified that he and his wife drove the victim home from
    the afterparty. In his evidence in-chief, the appellant testified that his wife
    and another person helped the victim from the afterparty to the car. In cross-examination,
    the appellant admitted that the victim had to be carried to the car.

[5]

The appellant testified that the victim invited him and his wife into
    her home for more drinks. They stayed for a while before going home. When he
    got home, the appellant realized that he had left his phone at the victims home.
    He returned to get it. The appellant went into the victims home through a
    partly open door. The victim was half asleep on the couch. She woke up and
    insisted that the appellant stay with her. According to the appellant, the
    victim initiated sexual activity, culminating in consensual vaginal intercourse
    on the couch and in her bedroom.

[6]

It was the Crowns position at trial that the victim lacked the capacity
    to consent. A toxicologist testified about the victims state of sobriety. The
    Crown also introduced evidence of witnesses who were with the victim throughout
    the night. Photographs and a video clip showed the victim to be in an extreme
    state of intoxication, either unconscious or barely conscious.

[7]

The appellant testified that, when he returned to the victims home, she
    was not as intoxicated as she had been previously. The trial judge specifically
    rejected this evidence, and the appellants general version of events. He
    accepted the victims evidence and was satisfied of guilt beyond a reasonable
    doubt based on the victims incapacity to consent.

[8]

Because the appellant is Aboriginal, a Gladue Report was prepared for
    sentencing. This was in addition to a Pre-Sentence Report (PSR). As noted
    above, the trial judge sentenced the appellant to imprisonment for two years
    less a day.

C.

the bail pending appeal application

(1)

The Application Record and Bail Compliance

[9]

Before applying the criteria for bail pending appeal in s. 679(3) of the
Criminal Code
, it is necessary to address a problem that arose with
    the materials filed in support of this application.

[10]

While
    the appellant was on bail pending his trial, and later while pending his
    sentencing, he was charged on two separate occasions with breaching his
    recognizance, contrary to s. 145(3) of the
Criminal Code
. These
    charges remain outstanding. Both breaches related to a condition that specified
    where the appellant could live. The appellant did not mention these outstanding
    charges in his bail pending appeal affidavit. Neither did his proposed surety
    (his wife). Crown counsel uncovered this information. As a result, the
    appellant and his proposed surety swore new affidavits. A further proposed
    surety (the appellants mother) was added. In his new affidavit, the appellant
    gave some details about the new charges. However, he offered no explanation for
    the omission of this information in his first affidavit.

[11]

In
    essence, the breach allegations are as follows. The appellant was initially
    released to live with his father. In October of 2016, as a result of being
    found at the home he owns with his wife, he was charged with fail to comply.
    The appellant was released again and ordered to reside with his aunt. A
    compliance check at this address on March 28, 2018, revealed that he was not
    there. The appellants aunt told police that she had not seen him in roughly
    four months.

[12]

In
    both of his bail pending appeal affidavits, the appellant lists his residence
    as the home that he owns with his wife. In both sworn documents he asserts, I
    have not lived at any other address in the preceding three years.

[13]

The
    new criminal charges

should have been disclosed. Judges of this court
    rely heavily on the trustworthiness of affidavits sworn in support of bail
    pending appeal applications. They are expected to be both accurate and
    complete.

[14]

Crown
    counsel routinely conduct criminal history inquiries to ensure the accuracy of
    the information that is placed before judges deciding bail pending appeal
    applications. However, this does not relieve bail applicants and their proposed
    sureties of the obligation to be candid and comprehensive. In this case, had it
    not been for the Crowns diligence, I would have been misled in an important
    way. I stop short of concluding that there was a deliberate attempt to mislead
    me. However, in the absence of an explanation, the person who swears or affirms
    an affidavit must bear responsibility for its contents.

[15]

Outstanding
    criminal charges are important for bail purposes, especially those that point
    to bail compliance issues. In the pre-trial context, s. 518(1)(c)(ii) of the
Criminal
    Code
permits the prosecutor to lead evidence of outstanding charges. Depending
    on the circumstances, an individual charged with fresh offences while on bail
    may face a reverse onus at his or her bail hearing: see s. 515(6)(a)(i) and
R.
    v. Morales
, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91. Charges under ss.
    145(2) to (5) always result in a reverse onus situation: s. 515(6)(c).

[16]

I
    appreciate that at this stage the appellant is presumed innocent of the two new
    charges. However, that does not detract from their relevance and importance to
    bail pending appeal. Dealing with a similar situation in
R. v. Lengelo
(4 October 2011), M40503/C54249
    (Ont. C.A.)
, Doherty J.A. said: It is difficult to think of anything
    that would be more relevant on a bail application than the existence of
    outstanding charges coupled with a failure to appear.

[17]

The
    new charges, combined with the appellants failure to mention them in his
    affidavits (not to mention his assertion that for several years he lived at an
    address contrary to his bail conditions at the time), undermine any faith I can
    place in the appellants promise in his affidavit that, I will obey any
    conditions placed upon me by this Court while I am in the community.

[18]

There
    is more. The appellant told the PSR author that he was regularly consuming alcohol
    with friends from work and that, in the weeks leading up to sentencing, he
    consumed cocaine. Again, this was contrary to his pre-trial bail conditions and
    the conditions of his most recent release just prior to sentencing. It does not
    inspire confidence about compliance with any bail pending appeal order that
    might be made.

(2)

The Public Interest

[19]

A
    more fundamental problem with this bail application resides in the application
    of the public interest criterion in s. 679(3)(c) of the
Criminal Code
.
    In my view, the balancing between the enforceability and reviewability
    interests inherent in this concept favours detention.

[20]

I
    am prepared to find that the appeal is not frivolous within the meaning of s.
    679(3)(a). I do so because that bar is widely recognized as being extremely low:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. It is
    another matter when it comes to sizing up the strength of the appeal for public
    interest purposes.

[21]

The
    materials filed fail to demonstrate that the grounds of appeal have sufficient strength
    to overcome the serious enforceability considerations present in this case.

[22]

The
    victim was attacked by a friend while she was in her own home. She was
    penetrated anally. At the time, she was so compromised by alcohol that she was
    incapable of consenting. The attack commenced while she was sleeping. When she
    woke up, she was unable to defend herself against the appellant.

[23]

The
    trial judge provided very thorough reasons. While the correctness and reasonableness
    of these reasons will ultimately be reviewed by a panel of this court, for bail
    purposes, they are very compelling. They reveal no obvious error.

[24]

The
    appellant argues that the trial judge gave insufficient weight to crucial
    pieces of evidence that should have impacted on the victims credibility. He
    points to the fact that the trial judge failed to make more of the victims
    lack of explanation for how cocaine was detected in her blood. The trial judge
    addressed this factor in his assessment of the victims credibility. Needless
    to say, deference is at its highest when it comes to a trial judges
    credibility findings.

[25]

Similarly,
    the appellant argues that the trial judge erred in the application of
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742. There appears to be little if any merit to
    this assertion. The application of
W.(D.)
is part of the daily diet of
    criminal trial judges. On the basis of the materials before me, the trial
    judges reasons reflect a proper appreciation of these principles.

[26]

The
    appellant alleges error in the trial judges failure to consider the defence of
    mistaken belief in consent. Applying
R. v. Davis
, [1999] 3 S.C.R. 759,
    at paras. 82-85, the trial judge concluded that the competing versions of
    events of the victim and the appellant rendered the defence unavailable.
    According to the appellant, the victim was a willing participant in a
    consensual sexual encounter that
she

initiated. The victim said
    she was attacked while she was passed out. On the material before me, I see no
    error in the trial judges conclusion that there was no air of reality to the
    defence.

[27]

Lastly,
    the appellant argues that the trial judge erred in finding that the victim was
    too intoxicated to consent. The trial judge provided careful reasons for his
    findings on this issue and his application of s. 273.1(2)(b) of the
Criminal
    Code
, which he found vitiated consent in the circumstances. There was
    solid grounding in the evidence to support this conclusion, including the video
    and photographic evidence of the victim in her compromised state earlier in the
    evening.

[28]

The
    appellants release is not in the public interest.

D.

conclusion

[29]

The
    application for bail pending appeal is dismissed.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawson, 2018 ONCA 458

DATE: 20180515

DOCKET: C63069

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Dawson

Appellant

Breana Vandebeek, for the appellant

Craig Harper, for the respondent

Heard: May 14, 2018

On appeal from the convictions entered on September 7,
    2016 and the sentence imposed on January 19, 2017 by Justice Graeme Mew of the Superior
    Court of Justice, sitting without a jury, with reasons for judgment reported at
    2016 ONSC 5601 and reasons for sentence reported at 2017 ONSC 473.

REASONS FOR DECISION

OVERVIEW AND ISSUES

[1]

Jesse Dawson was convicted of a number of possession offences as the
    result of events that occurred while he was visiting the ground-floor apartment
    of his friend, Alex James, which the police had under surveillance.
[1]

[2]

After being in the apartment for approximately two hours, Mr. Dawson exited
    into the hallway. When he saw police officers lurking outside the apartment, he
    fled back inside. Seconds later he followed a young person, D.F., out a bedroom
    window at the back of the apartment.

[3]

Some of the items the trial judge found that Mr. Dawson possessed  a Browning
    semi-automatic handgun, cocaine, and a scale  were found in the snow outside of
    that window. Other items  marijuana and money found to be the proceeds of
    crime  were found in plain view in the bedroom itself, where Mr. Dawson had
    spent time earlier that day.

[4]

There is no direct evidence as to how the gun, cocaine, and scale came
    to be outside. Mr. Dawsons appeal counsel concedes that the trial judge was nonetheless
    entitled to infer on the evidence, including the warmth of the items on the
    snowy ground, that these items had been inside shortly before they were discovered.
    However, Mr. Dawson argues that the trial judge should not have made the
    inference that he was the one who placed the gun, cocaine, and scale there.

[5]

Mr. Dawson urges that these items reasonably could have been thrown from
    the window by someone else, or that D.F. could have dropped them while fleeing.
    Given that there is more than one reasonable inference on the evidence, Mr.
    Dawson contends that it was unreasonable for the trial judge to infer that he possessed
    the gun and cocaine.

[6]

He also argues that the trial judge took improper judicial notice that
    the positioning of the items in the snow showed that they were dropped, not
    thrown.

[7]

Mr. Dawson further argues that the trial judge misapprehended evidence
    that Mr. Dawson made a spontaneous exculpatory statement upon arrest, as well
    as evidence about whether he was wearing a black jacket when he fled.

[8]

Finally, Mr. Dawson urges that his conviction for the possession of the items
    found in Mr. James bedroom was unreasonable.

ANALYSIS

A.

The Reasonableness of the Gun and Cocaine Possession Convictions

[9]

It was reasonable for the trial judge to infer that Mr. Dawson dropped
    the cocaine, gun, and scale on the snow as he fled the apartment.

[10]

Mr.
    James testified that D.F. and Mr. Dawson were near the rear bedroom window
    after Mr. Dawson fled inside after he saw the police in the hallway. Mr. James placed
    all of the other occupants elsewhere in or near the bedroom. Mr. Dawson
    testified that he did not see D.F. throw anything out of the window. The trial
    judge was entitled to find that given the quick retreat that was occurring,
    no-one else had a realistic opportunity to throw items out the window.

[11]

A
    police officer also saw D.F. exit the window. He did not testify to observing D.F.
    throw anything out before doing so, or to seeing him carrying anything as he
    exited. He said that he did not see anything being thrown out of the window
    after D.F. exited.

[12]

D.F.
    was wearing a golf shirt, jeans, and no shoes, making it unlikely that the gun,
    cocaine, and scale that were recovered would have been secreted on his person. The
    police officer also testified that D.F. also began to run immediately after
    hitting the ground, taking no actions that would suggest he dropped anything.

[13]

All
    of this evidence supports the inference that the items which originated in the
    apartment were not thrown out of the window, and were not carried by D.F. when
    he exited.

[14]

By
    contrast, Mr. Dawson was wearing either a grey hoodie with a front pouch and/or
    a black jacket when he exited the window. He therefore had the capacity to hold
    the items in his clothing.

[15]

Immediately
    after Mr. Dawson exited the window, the police officer testified that he saw Mr.
    Dawson crouch and then stand in the very area where the gun, cocaine, and scale
    were located. Although his precise actions while crouching could not be seen, Mr.
    Dawson's pause before running gave him the opportunity to jettison the items
    before running  an opportunity D.F. did not realistically have.

[16]

Finally,
    the trial judge was entitled to find, notwithstanding Mr. Dawsons testimony to
    the contrary, that Mr. Dawson knew that the men in the hallway were police
    officers. The trial judge had evidence before him that the officers identified
    themselves as police officers, and that Mr. Dawson looked directly at the one
    officer who was in uniform.

[17]

In
    the context of all of this evidence, Mr. Dawsons reaction to seeing the
    officers supported the reasonable inference that Mr. Dawson fled because he was
    holding the gun, cocaine, and scale when he retreated into the apartment. Put
    otherwise, his urgent, direct flight out the window upon seeing the officers,
    coupled with the discovery of items that only he had a realistic opportunity to
    jettison, help sustain the mutually supporting inference that Mr. Dawson fled
    from the police because he had the contraband with him when in the hallway.

[18]

The
    inference that Mr. Dawson was the one who had possession of the gun and cocaine
    before they were left in the snow outside of the window was therefore the only reasonable
    conclusion open to the trial judge. The trial judge was entitled to find that
    the Crown proved the elements of the offence beyond a reasonable doubt.

B.

The Judicial Notice Objection

[19]

We
    do not agree that the trial judges conclusion, at para. 85 of his reasons,
    that the way the gun was resting in the snow suggested that it was placed or dropped
    rather than jettisoned from inside constitutes improper judicial notice. This
    was nothing more than a factual inference drawn by the trial judge from the
    testimony of Cst. Caccia that the items appeared to have just been dropped
    there in the snow.

[20]

However,
    we do agree that this factual inference is controversial. Cst. Caccia does not
    appear to have intended to communicate that he inferred that the items had been
    dropped as opposed to thrown, and there was arguably no objective evidence
    about the posture of the gun that could support an inference that it was
    dropped and not thrown. Nevertheless, even if this reasoning does reflect a
    misapprehension of the evidence by the trial judge, it has not resulted in a miscarriage
    of justice. The trial judge had ample bases on the other evidence available to
    come to the conclusion that Mr. Dawson possessed the items found outside.

C.

The Exculpatory Statement

[21]

We
    do not accept that the trial judge misapprehended the evidence about the
    statement Mr. Dawson made after arrest. That statement was made after Mr.
    Dawson was brought back into the apartment where all of the other arrested
    suspects were being held. He testified that he said, after learning that a gun
    had been discovered, Someone fess up to your shit. Police witnesses testified
    that Mr. Dawson said something to the effect of, We know theres a gun in
    there (or here). Someone own (or fess) up to it.

[22]

This
    evidence was admitted pursuant to the authority of
R. v. Edgar
, 2010
    ONCA 529, 101 O.R. (3d) 161. Mr. Dawsons complaint is that the trial judge
    dismissed the significance of this evidence in a single sentence, at para. 91
    of his reasons: Mr. Dawsons subsequent utterance about fessing up could have
    been either self-serving or exculpatory. He urges that the trial judge
    obviously did not appreciate the significance of the evidence.

[23]

Clearly,
    the trial judge was not moved by Mr. Dawsons implicit declaration of
    innocence. Even assuming the more exculpatory version of the statement, the
    trial judge was entitled to give the statement no weight and concise treatment.
    The persuasive value of
Edgar
evidence is linked to its spontaneity,
    which gives support to the prospect that the denial of guilt was made with
    little opportunity to reflect. In the circumstances of this case, Mr. Dawson
    had ample opportunity to consider his situation before his words were uttered.
    The trial judge reasonably concluded that this was not compelling evidence of
    innocence, in all of the circumstances.

D.

The Black Jacket

[24]

Nor
    did the trial judge misapprehend the evidence about whether Mr. Dawson was
    wearing a black jacket when arrested. The trial judge was entitled to accept
    the testimony provided by several police officers that Mr. Dawson was not
    wearing a jacket at that time, and that he was given the jacket after his
    arrest, inside the apartment.

[25]

Mr.
    Dawson also contends that the trial judge erred when making the black jacket
    finding based on the belief that the police officers who offered this testimony
    would not engage in serious police misconduct by conspiring to lie about what
    Mr. Dawson was wearing. In coming to his conclusion, the trial judge was
    entitled to consider the fact that several police witnesses were saying the
    same thing. In our view, this is all his reasons say. He was not inferring that
    because police officers are unlikely to lie, Mr. Dawson was wearing a black
    jacket. Indeed, in an earlier
Charter voir dire
the trial judge
    demonstrated that he does not consider police officers to carry unique
    credibility:
R. v. Dawson
, 2016 ONSC 3461.

E.

the reasonablness of the Proceeds and Marijuana possession convictions

[26]

Finally,
    the trial judge did not err in finding that Mr. Dawson was in possession of the
    marijuana and the proceeds of crime that were lying in plain view on the bed in
    the bedroom he was in. There was clear evidence that drug trafficking was being
    carried on in connection with the premises, and Mr. Dawson had just spent a
    protracted period of time with its other occupants in the immediate presence of
    the marijuana and drug proceeds. While doing so, he was carrying tools of the
    drug trafficking trade  the gun, cocaine supply, and scales. It was reasonable
    for the trial judge to infer in these circumstances that the items in the room
    were jointly possessed by Mr. Dawson and the others present.

CONCLUSION

[27]

We
    therefore dismiss Mr. Dawsons conviction and sentence appeals in their entirety.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.

[1]

Mr. Dawson was convicted of offences under ss. 91,
    92, and 354 of the
Criminal Code
, R.S.C. 1985, c. C-46 and ss. 4(1) and 5(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gilchrist, 2018 ONCA 430

DATE: 20180507

DOCKET: C65290

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chad Michael Gilchrist

Appellant

Chad Gilchrist, in person

Luke Schwalm, for the respondent

Heard: In writing

Appeal in writing under s. 139(1) of the
Provincial
    Offences Act
, R.S.O. 1990, c. P. 33 from the decision of Justice Timothy Culver
    of the Ontario Court of Justice, dated January 12, 2017.

REASONS FOR DECISION

[1]

A police officer stopped a motor vehicle one afternoon in late December,
    2012. The officer had noticed that the validation tag on the vehicles licence
    plate had expired. Chad Michael Gilchrist was the driver of the vehicle.

[2]

The officer asked Mr. Gilchrist to produce his drivers licence,
    ownership for the vehicle and proof of insurance. Mr. Gilchrist provided his
    drivers licence and proof of ownership of the vehicle. But he did not produce
    proof of insurance. Not then, and not within the next 72 hours.

[3]

The officer charged Mr. Gilchrist with operating a motor vehicle without
    insurance contrary to s. 2(1)(a) of the
Compulsory Automobile Insurance Act
,
    R.S.O. 1990, c. P. 25 (the
CAIA
).

The Trial Proceedings

[4]

Mr. Gilchrist first appeared in Provincial Offences Court on May 23,
    2013. He brought with him documentation that indicated that he was insured when
    he had been stopped in late December of the previous year. The Provincial
    Prosecutor sought and obtained an adjournment to verify the authenticity and
    accuracy of the documents Mr. Gilchrist produced.

[5]

Mr. Gilchrist did not attend his next court appearance at which a trial
    date was set. Nor did he attend on the trial date. An
in

absentia
trial and conviction followed.

The Appeal to the Ontario Court of Justice

[6]

Mr. Gilchrist appealed his conviction to the Ontario Court of Justice.
    He indicated in his Notice of Appeal that he had insurance at the time he was
    stopped by police and that he had provided that documentation to the Provincial
    Prosecutor.

[7]

A paralegal represented Mr. Gilchrist on his appeal to the Ontario Court
    of Justice. Although the paralegal did refer to the insurance documents Mr.
    Gilchrist had provided, he called no evidence, despite the authority in s.
    117(1)(d) of the
Provincial Offences Act
which permitted him to do so,
    to demonstrate the existence of a valid policy of insurance at the time of the
    traffic stop.

[8]

The appeal judge was not satisfied that the documents to which the
    paralegal referred constituted admissible evidence of a policy of insurance. The
    appeal judge dismissed the appeal and affirmed Mr. Gilchrists conviction.

The Appeal to this Court

[9]

Mr. Gilchrist filed a Notice of Motion for Leave to Appeal to this
    court. In his materials, he reiterated his claim that he was insured at the
    relevant time and had provided information confirming his insured status to the
    courts below.

[10]

Counsel
    for the respondent undertook to conduct an inquiry to determine the legitimacy of
    Mr. Gilchrists claim that he was insured at the time of the alleged offence.

[11]

On
    March 27, 2018 an employee of belairdirect insurance company provided a
    statutory declaration under s. 13.2(2) of the
CAIA
. That declaration
    indicates that the vehicle Mr. Gilchrist was driving on the date of the alleged
    offence was covered by a policy of insurance then in full force and effect.

[12]

On
    March 28, 2018 a judge of this court granted Mr. Gilchrist leave to appeal.

Discussion

[13]

For
    the respondent, Mr. Schwalm acknowledges that the statutory declaration
    provides clear evidence that the vehicle Mr. Gilchrist was driving was covered
    by a valid policy of insurance. He concedes further that statutory declaration
    would have been admissible in evidence if tendered at trial, or before the
    appeal judge, and is admissible in evidence on the appeal to this court. It
    necessarily follows that Mr. Gilchrist did not commit the offence with which he
    was charged and of which he was convicted. He did not operate a motor vehicle
    without insurance.

Conclusion

[14]

For
    these reasons, the appeal is allowed, the conviction set aside and an acquittal
    entered. Any fine paid by Mr. Gilchrist should be remitted to him.

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Godwin, 2018 ONCA 419

DATE: 20180503

DOCKET: C62375

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ewah Godwin

Appellant

Paul Calarco, for the appellant

Milica Potrebic, for the respondent

Heard: April 17, 2018

On appeal from the conviction entered by Justice Leonard
    Ricchetti of the Superior Court of Justice, sitting with a jury, dated June 19,
    2015, and from the sentence imposed on December 1, 2015 with reasons reported
    at 2015 ONSC 7492.

Roberts J.A.:

[1]

The appellant appeals
    from his conviction following a jury trial with his co-accused, David Igbinoba,
    for conspiracy to import heroin and possession of heroin for the purpose of
    trafficking, and from the 11 year, 3 and a half month sentence (after credit
    for pre-sentence custody) that was imposed.

[2]

With respect to the
    conviction, the appellant submits that the trial judge made the following two
    reversible errors:

i. He failed to properly instruct the jury on the limited use that
    they could make of his co-accuseds out-of-court statement to the police. In
    particular, the trial judge should have directed the jury that it could not
    visit the co-accuseds lack of credibility on the appellant.

ii. He should have held a jury inquiry because of juror bias.

[3]

I do not accept these
    submissions.

(i)

Adequacy of the jury instruction

[4]

I
see no error in the trial judges instruction
    concerning the proper use that the jury could make of the co-accuseds out-of-court
    statement to the police, namely, that it must not consider anything
[
it finds
]
an accused said to a witness outside of
    the court in reaching
[
its
]
verdict on the other accused, even if that describes what that other accused
    said or did. The trial judge vetted the charge with counsel. There was no
    objection to the instruction that the appellant now impugns. In my view, when
    the charge is read as a whole, there is no basis to suggest that the jury would
    have been confused by the instruction.

[5]

Moreover, I do not agree that there was any obligation
    on the trial judge to give an express instruction that the jury was not to use
    any adverse credibility findings concerning Mr. Igbinoba against the appellant.
    The appellant extrapolates this submission from the language of the instruction
    that this court in
R. v. Dooley
, 2009 ONCA
    910,
249 C.C.C. (3d) 449, leave
    to appeal refused, [2010] S.C.C.A. No. 83 and [2010] S.C.C.A. No. 179,
at para. 133, indicated was correct that out-of-court statements
    made by one accused were admissible only against that accused and were not
    admissible
in any way
for
    or against the other accused who did not make the out-of-court utterance
(
emphasis added).
I
    do not read this statement as supporting the proposition asserted by the
    appellant.

[6]

The common sense conclusion
    that the jury should not impugn the appellants credibility on the basis of
    adverse credibility findings against his co-accused logically flows from the
    trial judges instructions. He gave instructions against the jury engaging in
    forbidden propensity reasoning, the limited use that could be made of a
    co-accuseds out-of-court statement, and the requirement that the jury come to a
    separate verdict for each accused.

(ii)

Jury inquiry

[7]

This issue arose because of unsolicited
    communications that Juror no. 6 sent to trial Crown counsel following the
    delivery of the verdict on June 19, 2015. Between July 4 and July 7, 2015 Juror
    no. 6 sent written communications by letter and email to Crown counsel. Most of
    Juror no. 6s communications are taken up with praise for the efforts of Crown,
    defence and court staff, and the thanks of all of the jurors for the
    opportunity to participate in the administration of justice. In response, Crown
    counsel thanked Juror no. 6 for her remarks and in response to her question,
    invited her and the other jurors to attend the sentencing hearing if of
    interest to them. The exchange of emails ended with Juror no. 6s July 7, 2015
    email that Crown counsel crossed her mind and she thought that she would say
    hi, wishing him a nice afternoon. On July 10, 2015 senior counsel at the Public
    Prosecution Service of Canada advised the trial judge and defence trial counsel
    of the entirety of the communications between Juror no. 6 and Crown counsel.

[8]

The appellant submits that Juror
    no. 6s communications progressed beyond a mere expression of gratitude from a
    member of the public to Crown and defence counsel for a job well done, to a
    demonstration of romantic interest in Crown counsel. As such, they give rise to
    a reasonable apprehension of bias on the part of Juror no. 6 in
favour
of the Crown.

[9]

There is no question that the correspondence from Juror
    no. 6 warranted the consideration undertaken by the trial judge. There is also
    no suggestion that there were any communications between Juror no. 6 and Crown
    trial counsel before the verdict was rendered. The impugned communications
    having arisen subsequent to the delivery of the verdict, the trial judges
    options were limited in the circumstances of this case to creating a record for
    appellate review:
R. v. Burke
, 2002 SCC 55,
[2002] 2 S.C.R. 857,
at paras. 55 and 56;
R. v. Bains
,
    2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 72.

[10]

I
agree with the trial judges conclusion that in the circumstances
    of this case, there would have been no utility in holding a jury inquiry. Such
    an inquiry necessarily would have devolved into an impermissible examination concerning
    matters protected by the jury secrecy rule at common law and prohibited under s. 649
    of the
Criminal Code
, which are intrinsic to
    the deliberation process, including jurors minds, emotions or ultimate
    decision:
R. v. Pan
, 2001 SCC 42,
[2001] 2 S.C.R. 344,
at paras. 59 to 61 and 77.

[11]

In my view, t
he record created by the trial judge was sufficient to allow for
    meaningful appellate review of the issue of jury bias. Indeed, the appellant submits
    that the record is sufficient to demonstrate that Juror no. 6s communications
    with Crown counsel create a reasonable apprehension that she did not decide the
    case in accordance with her oath, thereby rendering the verdict against the
    appellant a miscarriage of justice.

[12]

On
    appellate review, the test to be applied to determine whether Juror no. 6s
    communications give rise to a reasonable apprehension of bias is well-established:
    What would an informed person, viewing the matter realistically and practically
     and having thought the matter through  conclude? Would he or she think that
    it is more likely than not that the juror, whether consciously or
    unconsciously, would not decide fairly? (see:
R. v. Dowholis
, 2016
    ONCA 801, 133 O.R. (3d) 1, at paras. 19 and 20).

[13]

The
    test is a stringent one. There is a strong presumption of jury impartiality
    that is not easily rebutted. As this court recently stated in
Dowholis
,
    at para. 18:

A juror is a judge. There is a
    strong presumption of judicial impartiality and a heavy burden on a party who
    seeks to rebut this presumption. Judicial impartiality has been called
    "the key to our judicial process":
Wewaykum Indian Band v. Canada
, 2003
    SCC 45, [2003] 2 S.C.R. 259, at para. 59. The presumption of impartiality
    anchors public confidence in the integrity of the administration of justice.

[14]

While
    Juror no. 6s communications are concerning, I conclude that a reasonable
    person, knowing all the facts, would not think that it is more likely than not
    that this juror, whether consciously or unconsciously, would not have decided fairly.
    The appellant has not met the high threshold of demonstrating a reasonable
    apprehension of bias.

(iii)

Sentence

[15]

With respect to the sentence appeal, the
    appellant submits that the trial judge erred in imposing a harsh sentence
    because he failed to give effect to the principle of rehabilitation and to
    consider the lower purity of the heroin in issue as a mitigating factor.

[16]

I disagree.

[17]

The trial judge explicitly considered the
    possibility of rehabilitation but properly gave greater weight to the
    principles of denunciation and deterrence in the circumstances of this case. He
    also examined the appellants purity argument and, again, correctly in my view,
    determined that there was no evidence that the heroin in this case was of such low
    purity that it was a material factor on sentencing.

[18]

Finally, there is no issue that the
    sentence imposed was within the appropriate range for similar offenders and
    similar offences. It reflected the appellants moral culpability in devising
    and carrying out a sophisticated importation scheme of a seriously harmful
    controlled substance. The sentence was not manifestly unfit. I see no error
    that would justify appellate intervention.

[19]

Accordingly,
    the appeal and leave to appeal sentence are dismissed.

Released: May 3, 2018

L.B. Roberts J.A.

I agree K. Feldman J.A.

I agree G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groskopf, 2018 ONCA 455

DATE: 20180514

DOCKET: M49012 (C65181)

Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Brenden Groskopf

Appellant (Applicant)

Dano Sahulka and Efstathios Balopoulos, for the applicant

Susan Magotiaux, for
    the respondent

Heard: April 30, 2018

REASONS FOR DECISION

OVERVIEW

[1]

The applicant, Brenden Groskopf, was convicted of the possession, making,
    and distribution of child pornography, together with sexual interference, sexual
    assault, and sexual exploitation. The trial judge found the applicant had taken
    and distributed photographs showing his young daughter naked. The applicant was
    sentenced to four years imprisonment. The applicant has appealed his
    conviction.

[2]

The applicant applies for release from custody pending the determination
    of his appeal from conviction pursuant to s. 679 of the
Criminal Code
.

[3]

The Crown opposes the application. The Crown takes the position the
    detention of the applicant is necessary in the public interest because he was
    convicted of serious offences and his grounds of appeal are weak.

ANALYSIS

[4]

The public interest criterion in s. 679(3)(c) of the
Criminal
    Code
consists of two components: public safety and public confidence
    in the administration of justice:
R v. Oland
, 2017 SCC 17,
[2017] 1 S.C.R. 250,
at paras. 23 & 26. The
    public confidence criterion requires balancing several factors: the seriousness
    of the offence; the strength of the grounds of appeal; public safety; and
    flight risks:
Oland
, at paras. 37-40.

[5]

In the present case, I am satisfied that the applicants release would
    not jeopardize public safety and that he is not a flight risk. He complied
    without incident with the terms of his bail pending his trial and sentencing.
    The applicant filed detailed evidence from his proposed sureties about how they
    plan to supervise him should he be released pending his appeal.

[6]

As to the seriousness of the offence, the applicant was convicted of the
    possession, making, and distribution of child pornography, and related sexual
    offences. The
Oland
framework for considering applications for bail
    pending appeal assumes the appeal judge will generally have the benefit of the
    trial judges reasons for sentence in which the factors going to the
    seriousness of the crime will have been addressed: at para. 38. However, the
    applicant did not file a transcript or synopsis of the sentencing reasons.
    Accordingly, I will proceed on the basis the appellant was convicted of very
    serious offences, as reflected by the lengthy sentence he received.

[7]

Turning to the strength of the applicants grounds of appeal,
Oland
calls on the appeal judge to examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the record: at para. 44.

[8]

In his reasons, the trial judge instructed himself on the principles
    concerning the use of circumstantial evidence
(R. v. Villaroman,
2016
    SCC 33, [2016] 1 S.C.R. 1000). The applicants grounds of appeal concern, in
    part, how the judge applied those principles to the evidence. The applicant
    contends the trial judges assessment of the evidence unduly focused on his
    statements to the police and testimony, while failing to consider properly
    evidence that could point to some other person committing the offence.

[9]

That the trial judge spent some time assessing the applicants evidence
    is not surprising given that the evidence at trial, according to counsel, was
    limited to the testimony of three police officers about their investigation
    into the photographs, as well as the statements and testimony of the applicant.

[10]

Nevertheless,
    in his detailed reasons the trial judge dealt with other plausible theories
    concerning who made and distributed the photographs. His consideration involved
    an assessment of all the evidence, not just that of the applicant.

[11]

The
    applicant also appeals on the ground that the trial judge improperly shifted
    the onus of proof onto him. The trial judge did not clearly self-instruct in
    accordance with
R. v. W.(D.),
[1991] 1 S.C.R. 742, although that does
    not constitute an error. However, an aspect of his reasons points towards
    reviewability. The trial judge structured his reasons to focus mainly on the
    Crowns cross-examination of the applicant. He concluded his analysis by
    stating that there are no other reasonable, alternative inferences that either
    support the
innocence of the accused
,

or more importantly, raise a reasonable doubt (emphasis added). That
    comment, coupled with the lack of a clear
W.(D.)
-based framework in
    his reasons, persuades me that, on the limited record on this application, the
    applicants grounds of appeal pass the more pointed assessment required by
Oland
:
    see para. 44.

[12]

The
    offences of which the applicant was convicted are very serious, involving as
    they do a vulnerable young child. However, when that factor is weighed with the
    remaining factors under the
Oland
public interest test  the strength
    of the grounds of appeal, no flight risk, and no threat to public safety  on
    balance, reviewability is favoured over enforceability.

[13]

In
    my view, this case falls within the circumstances contemplated in
Oland
,
    at para. 51:

[W]here public safety or flight concerns are negligible, and
    where the grounds of appeal clearly surpass the not frivolous criterion, the
    public interest in reviewability may well overshadow the enforceability
    interest, even in the case of murder or other very serious offences.

DISPOSITION

[14]

The
    application is granted, on the terms contained in the draft order, as agreed
    upon by counsel, subject to the following two changes. Condition 21 shall
    require the applicant to perfect his appeal no later than September 4, 2018;
    the surrender date in Condition 1 shall be December 21, 2018. I have placed my
    fiat on the amended draft order.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hejazi, 2018 ONCA 435

DATE: 20180508

DOCKET: C62094

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alaa Ali Hejazi

Appellant

Michael Dineen, for the appellant

Candice Suter, for the respondent

Heard: May 4, 2018

On appeal from the sentence imposed on October 9, 2015 by
    Justice Todd Ducharme of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a planned home invasion robbery and
    unplanned sexual assault against two women. Specifically, he was convicted of
    the offences of breaking and entering with intent, sexual assault with a
    weapon, robbery, unlawful confinement, and possession of the proceeds of crime.
    The Crown sought a sentence of 12 to 15 years imprisonment. Defence counsel
    sought a sentence of 5 to 7 years. The trial judge imposed a sentence of 9
    years. The appellant appeals his sentence. At the conclusion of the hearing, we
    dismissed the appeal with reasons to follow.  We now provide those reasons.

[2]

The appellant fairly concedes that the sentence imposed is within the
    range for this home invasion robbery, and does not argue that it is demonstrably
    unfit. What he does contend is that, if we accept that the trial judge erred,
    in either of two respects regarding his treatment of aggravating factors, a
    fresh look at these offences and this offender will reveal that a 9 year
    sentence is not the shortest one proportionate to the offence. Rather, he
    submits that a more proportionate sentence is 7 years, as it was in
R. v.
    Brown
, 2015 ONCA 361.

[3]

We do not accept the appellants
    submission that the trial judge erred in a manner that
had an impact on
    the sentence. Nor do we accept there is a reason to interfere with the
    discretion of the trial judge.

[4]

The trial judge reviewed the principles of sentencing in s. 718 of the
Criminal

Code
, and the guidance from this court in
R. v. Priest,
(1996),
110 CCC (3d) 289
in light of the appellant being a young, first offender. He carefully examined all
    of the circumstances of this frightful home invasion, the nature and severity
    of the sexual assaults committed with a weapon in the course of it, and the
    particulars of the appellant.

[5]

In his analysis, the trial judge specifically disagreed with the Crowns
    submission that the appropriate sentencing range for this offence and this
    offender was in the 12 to 15 year range. Instead, he correctly observed this
    courts conclusion that the sentencing range for home invasions is between 4-13
    years incarceration, with the high end of the range being appropriate for
    offences involving violence or sexual assaults: see
R. v. Wright
,
    (2006), 83 O.R. (3d) 427, at para. 23.

[6]

The trial judge went on to find that the appellant is not a psychopath
    and his risk of re-offending is low to moderate. He determined that 9 years
    imprisonment was a fit sentence. In doing so, his reference to following the
Brown
decision does not mean he erred by not concluding that the same sentence should
    apply. We would also note that the decision in this case predated the Supreme
    Court of Canadas decision in
R. v. Lacasse
, [2015] 3 SCR 1089, which now
    governs this courts analysis in sentencing cases.

[7]

The sentence ultimately arrived at and imposed by the trial judge, in
    all the circumstances, was fully reasoned, within the appropriate range, and
    within the proper exercise of his discretion. This court is required to take a
    highly deferential approach and only intervene if the sentence imposed by the
    trial judge is demonstrably unfit:
Lacasse
, at para. 51.

[8]

The sentence in this case is not demonstrably unfit. Leave to appeal
    sentence is granted, but the appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Higgins, 2018 ONCA 451

DATE: 20180514

DOCKET: C63618

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Orrell Higgins

Respondent

Melissa Adams, for the appellant

Mark Halfyard, for the respondent

Heard and released orally: April 20, 2018

On appeal from the acquittal entered on March 22, 2017 by
    Justice A.J. OMarra of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The Crown submits that the trial judge erred by his analysis of the
mens
    rea
component of the offence of dangerous driving causing bodily harm
    under s. 249(1) of the
Criminal Code
, by relying on the respondents
    lack of deliberate intention to create a danger for other drivers. Further, the
    trial judge also failed to consider all of the relevant circumstances.

[2]

We disagree.

[3]

The trial judge correctly applied the well-established test set out in
    Supreme Court of Canada jurisprudence in relation to the offence of dangerous
    driving causing bodily harm. As one step of the analysis that he was required
    to undertake, the trial judge properly considered whether the respondent had a
    deliberate intention to cause danger to other drivers:  see
R. v. Beatty
,
    [2008] 1 S.C.R. 49, at para. 51. Having found that he did not, the trial judge
    went on to consider the modified objective test set out in the authorities and
    concluded that he was not satisfied that there was a marked departure from the
    standard of care of a prudent person (para. 58) in all of the circumstances.
    This analysis was reinforced when the trial judge turned to consider criminal
    negligence causing bodily harm when he said in para. 60, without having found
    a marked departure of the standard of a reasonably prudent person in all of the
    circumstances, there is no evidence of a wanton and reckless disregard
    constituting a marked and substantial departure from that of a reasonable
    driver.

[4]

The trial judges reasons when read as a whole demonstrate that he
    reviewed and engaged with all of the relevant circumstances concerning the
    manner of the respondents driving, including the respondents excessive rate
    of speed and inattention, his consumption of alcohol, and the lighting conditions
    at the time of the incident.

[5]

As the Supreme Court of Canada reiterated in
R. v. J.M.H.
,
    [2011] 3 S.C.R. 197, at para. 31, that the trial judge may not have repeated
    all of this evidence in his conclusory paragraph is not a proper basis to
    conclude that there was an error of law in this respect.

[6]

Accordingly, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts
    J.A.

G.T. Trotter
    J.A.