COURT OF APPEAL FOR ONTARIO

CITATION: McArthur v. Ontario (Attorney
    General), 2013 ONCA 668

DATE: 20131105

DOCKET: C56316

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Lindley Charles McArthur

Applicant

(Respondent/Appellant
    by way of cross-appeal)

and

Attorney General of Ontario

Respondent

(Appellant/ Respondent
    by way of cross-appeal)

and

Attorney General of Canada

Respondent

(Respondent/Respondent
    by way of cross-appeal)

and

Association in Defence of the Wrongly Convicted

Intervener

David Finley and Jennifer Woollcombe, for the appellant

Alan Young, for the respondent Lindley McArthur

Richard Kramer, for the respondent Attorney General of
    Canada

James Lockyer and Russell Silverstein for the intervener
    Association in Defence of the Wrongly Convicted

Heard: October 30, 2013

On appeal from the judgment of Justice Michael R. Dambrot
    of the Superior Court of Justice, dated October 24, 2012.

ENDORSEMENT

[1]

Can an offender apply to the Minister of Justice for a ministerial
    review of his conviction without first applying for leave to appeal to the
    Supreme Court of Canada?  Lindley Charles McArthur posed this question by way
    of application.

[2]

Mr. McArthur was convicted of first degree murder in 1984.  His appeal
    to this court was dismissed in 1989.  He did not seek leave to appeal to the
    Supreme Court of Canada.  He remains in custody.

[3]

Mr. McArthur maintains that he did not commit the murder and seeks a ministerial
    review of his conviction based on the centrality of the jailhouse informant
    evidence to the Crowns case.  There is also the possibility that additional
    forensic testing could exonerate him.  In 1984, there was no screening
    committee for the use of jail house informants and the technology to test the
    DNA evidence did not exist at that time but does now.  Mr. McArthur has the
    assistance of the Innocence Project, a clinical programme at Osgoode Hall Law
    School that investigates claims of potential wrongful conviction.

[4]

The application judge answered yes to the question that Mr. McArthur
    posed.  He made the following declaration by way of judgment dated October 24,
    2012 (the Declaration):

THIS COURT DECLARES that upon an application for ministerial
    review on the grounds of miscarriage of justice being made to the Minister of
    Justice by or on behalf of a person who has been convicted under an Act of
    Parliament or a regulation made under an Act of Parliament pursuant to s. 696.1
    of the
Criminal Code of Canada
, it is the duty of the Minister of
    Justice to determine whether or not the applicant has exhausted his or her
    rights of judicial review or appeal with respect to the conviction as a
    pre-condition to conducting a ministerial review beyond a preliminary
    assessment of the application, subject to review by the Courts.  While the
    Minister must take into consideration the fact that an application under Part
    XXI.1 is not intended to serve as a further appeal and any remedy available on
    such an application is an extraordinary remedy, the Minister is not precluded
    from determining that the applicant has exhausted his or her rights of judicial
    review or appeal despite the fact that the applicant has not applied for leave
    to appeal to the Supreme Court of Canada with respect to the conviction.

[5]

The Attorney General of Ontario appealed.  He argued that the
    application judge misinterpreted s. 696.1 of the
Criminal Code
, R.S.C.
    1985, c. C-46 and that an applicant must exhaust his or her rights of judicial
    review or appeal, including seeking leave to appeal to the Supreme Court of
    Canada, before he or she can seek a ministerial review.

[6]

Section 696.1(1) reads as follows:

An application for ministerial review on the grounds
    of miscarriage of justice may be made to the Minister of Justice by or on
    behalf of a person who has been convicted of an offence under an Act of
    Parliament or a regulation made under an Act of Parliament or has been found to
    be a dangerous offender or a long-term offender under Part XXIV and whose
    rights of judicial review or appeal with respect to the conviction or finding
    have been exhausted.

[7]

We would dismiss the Attorney General of Ontarios appeal.  We agree
    with the analysis and disposition of the application judge, Dambrot J.  We would
    not say it differently, and we could not say it better.

[8]

Mr. McArthur cross-appealed, seeking a variation of the terms of the
    Declaration.

[9]

We would dismiss the cross-appeal for the same reason.

[10]

However,
    we make one observation.  On a plain reading of the Declaration, it governs the
    situation where, as here, the applicant has appealed his or her conviction to
    the appeal court but has not applied for leave to appeal to the Supreme Court
    of Canada with respect to the conviction.  The Declaration does not determine
    the question of whether the Minister could consider an application in a case
    where the applicant made no appeal of his or her conviction.  That question may
    arise in a future case.

DISPOSITION

[11]

For these reasons, the appeal and cross-appeal are dismissed.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Okolotowicz (Re), 2013 ONCA 712

DATE: 20131121

DOCKET: C56900

Weiler, MacFarland and Watt JJ.A.

IN THE MATTER OF:  ZBIGNIEW OKOLOTOWICZ

AN APPEAL UNDER PART XX.1 OF THE
CODE

Zbigniew Okolotowicz, acting in person

Jill R. Presser,
Amicus Curiae

John Patton, for the respondent, Attorney General for
    Ontario

James Thomson, for the respondent CAMH

Heard:  November 8, 2013

On appeal against the disposition of the Ontario Review
    Board dated, January 16, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of the Ontario Review Board
    (hereafter "the board") which conditionally discharged him rather
    than granting him an absolute discharge.

[2]

On his behalf
amicus
submits two grounds of appeal:

1.       the
    board erred in law in that it failed to apply the proper test of
    significant risk of harm

2.       the
    decision of the board is unreasonable and cannot be supported by
    the evidence;

[3]

The board was split on its decision. Three members favoured granting a
    conditional discharge. Two dissenting members would have absolutely discharged
    the appellant.

[4]

The hearing in relation to the disposition which is the subject of this
    appeal was held on December 20, 2012. The board issued its disposition
    continuing the appellant's conditional discharge on January 16, 2013 and issued
    reasons on March 22, 2013.

[5]

The appellant has a criminal record for violence and a long history of
    mental illness. The index offences which resulted in the NCRMD finding occurred
    in 2008 and 2009 - assault with a weapon and simple assault.

[6]

Until shortly before the hearing in December 2012, the nature of the
    appellant's illness had been variously described as "paranoid
    disorder", "schizotypal personality disorder", and
    "psychosis not otherwise specified".

[7]

On and off historically, he was treated with anti-psychotic medications
    which seemed to alleviate his symptoms. After what is described in the hospital
    report as "a positive year clinically" in July 2011 and with his
    treating psychiatrist's approval, he discontinued his medication.  As the
    hospital report put it:

Due to the unclear nature of his diagnosis (which was assessed
    as being Psychosis Not Otherwise Specified), his concerns about weight gain
    with the medication and his personal insight that his bizarre and violent
    behaviours in the past, including the index offences, were all associated with
    the use of alcohol, a gradual decrease in Olanzapine 5mg was effected. As of
    July 19, 2011 Olanzapine was discontinued; no emergence of psychotic symptoms
    or disorganization was observed.

[8]

Things went reasonably well for the appellant until August of 2012.  He
    was, at that time, under some stress as the result of a number of factors in his
    life. His case manager became aware that his mental state was not at baseline
    and, despite a number of attempts, he was unable to reach the appellant. After
    reports were received about disruptive and disorganized behaviour from staff at
    his residence, a Form 2 was granted and the police returned the appellant to
    CAMH.

[9]

Dr. Wilkie, his treating psychiatrist, was of the opinion that the
    appellant had suffered a manic episode and, with the appellant's agreement, he
    was put on Olanzapine (an anti-psychotic medication) and Lithium, a mood
    stabilizer. For the first time, the appellant was diagnosed with bipolar
    affective disorder and Lithium was added to his medication regime. He was
    compliant with medication use, his symptoms abated, and he was discharged back
    to his residence on October 15, 2012.

[10]

On
    October 18, 2012 the appellant met with Dr. Wilkie. He was not in her words
    "entirely convinced" of her diagnosis and his insight into his
    illness was only "partial".

[11]

His
    treatment team at CAMH -unanimously- concluded at the time that the appellant
    continued to represent a significant threat to the safety of the public.

[12]

At
    the time of the treatment teams report, the appellant had only recently been
    discharged from hospital and his recovery remained unclear. He complained of
    side effects from the medication and his psychiatrist was contemplating
    changes.

[13]

The
    treatment team concluded that the few months following their report (prepared
    October 18, 2012) would be important in establishing his response to and
    attitude toward his treatment regime - and that a six month review would be
    warranted. Unfortunately perhaps for the appellant his review came well before
    the end of that recommended six month period.

[14]

Notwithstanding
    the years of treatment, the appellant's diagnosis remained unsettled and his
    response to treatment hard to predict.

[15]

The
    board understood its task was to determine whether the appellant continued to
    meet the threshold of a significant risk to the public and if so, to determine
    the least onerous and least restrictive disposition bearing in mind the factors
    set out in s.672.54 of the
Criminal Code
.

[16]

The
    majority of the board accepted Dr. Wilkie's evidence that she believed that, in
    the short term, the appellant would be compliant with medication but she was
    not confident he would be in the long term. He was in need of more psycho-education
    to improve his insight into his illness and his need for medication. If not
    medicated, his mental state would deteriorate putting the public at risk in the
    manner of the index offences. Historically he did not have insight when he
    became unwell and did not reach out to his workers for help in those times.

[17]

In
    our view the board applied the proper test to the evidence before it and it
    cannot be said that the decision is unreasonable.

[18]

It
    is unfortunate that the appellant's review came so soon after his most recent
    diagnosis. The passage of time since the appellants last review and his
    exemplary behaviour during this time will no doubt be taken into consideration
    at the next review in November, 2013.

[19]

For
    these reasons the appeal is dismissed.

K. M. Weiler
    J.A.

J. MacFarland J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Piccolo v. Mariotti, 2013 ONCA 710

DATE: 20131122

DOCKET: C56578

Cronk, Pepall and Strathy JJ.A.

BETWEEN

Sam Piccolo and Susan Piccolo

Plaintiffs (Appellants)

and

Anthony Mariotti
and Anthony Piccolo

Defendants (
Respondent
)

Sam Piccolo and Susan Piccolo, acting in person

Alex Szalkai, Q.C., for the respondent

Heard: November 15, 2013

On appeal from the order of Justice Thomas J. Carey of
    the Superior Court of Justice, dated December 27, 2012.

ENDORSEMENT

[1]

The appellants appeal from an order made on a motion for summary
    judgment, dismissing their action against the respondent Anthony Mariotti, Sam
    Piccolos former lawyer.

[2]

In 1967, Sam Piccolo and his brother hired the respondent to incorporate
    their business. A dispute about their ownership interests resulted in an
    oppression application being brought in 1985 by Sam Piccolo, who claimed that
    he had a two-thirds interest in the business. In the context of that dispute,
    the respondent swore an affidavit, stating that he had no recollection of the brothers
    partnership being anything other than equal. He attached certain unexecuted
    documents relating to the parties ownership interests. On a reference to a master
    in 1986, it was determined that Sam Piccolo had only a fifty percent interest
    in the business.

[3]

In 1992, Sam Piccolo commenced an action against the respondent,
    claiming, among other things, that he had failed to execute documents that
    purportedly gave Sam Piccolo a two-thirds interest in the corporation. That
    action was dismissed in 1996 as time-barred. In October 1997, this court
    dismissed Sam Piccolos appeal.

[4]

In this action, commenced in 2011, Sam Piccolo again alleges negligence,
    as well as perjury and obstruction of justice, by the respondent in connection
    with his evidence in the oppression proceedings.

[5]

The motion judge held that there was no basis for Susan Piccolos claim
    because there was no evidence that she ever had a solicitor-client relationship
    with the respondent. There was no pleading that she had any standing to assert
    any such claim. We agree with the motion judges conclusion.

[6]

The motion judge found that Sam Piccolos claim for negligence was an
    attempt to re-litigate the claim in the earlier litigation and dismissed it as
    an abuse of process. Again, we agree.

[7]

In answer to the assertion that the claims for perjury and obstruction
    of justice were time-barred, the appellants wife swore that in the course of
    recent home renovations they had found shocking new evidence  a document,
    allegedly executed by the respondent, confirming Sam Piccolos majority
    interest in the company. She claimed that in 2009 they had come across a box
    containing this document in the course of clearing out some cupboards that had
    been used for storage for forty years.

[8]

The motion judge found that even if this document was valid, it did not
    support the claims for obstruction of justice and perjury. In any event, the
    document had been in the appellants possession for 40 years, it was clearly
    discoverable, and the claims were barred by the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B. He also found that the claims were frivolous,
    vexatious and lacking in merit.

[9]

The claim against the respondent for negligence was
res judicata
.
    Even assuming that conclusion could be set aside on the basis of fresh evidence
    or perjury, the alleged fresh evidence was clearly within the control of the
    appellant and was discoverable at the time the original claim was made.

[10]

The
    discoverability principle equally applies to the claims for perjury and
    obstruction of justice. As well, as the motion judge noted, the document allegedly
    discovered by the appellants did not support the claim that the respondent
    committed perjury.  We agree with the motion judges conclusions that the
    claims were both time-barred and frivolous and vexatious.

[11]

We
    would add that the motion judge proceeded on the assumption that the newly
    discovered document was genuine. However, in his costs order he observed that
    the document appeared to be an amateurish patch up from another document and a
    forgery.

[12]

Before
    this court, the appellant argues that the motion judge exhibited bias. There is
    no support whatsoever for this allegation on the record before us.

[13]

The
    motion judge granted the respondent costs on a full indemnity basis, fixed at
    $13,175. He found that the allegations of dishonest conduct were not substantiated
    and were, at best, brought without consideration for the damaging consequences
    to the respondents reputation and, at worst, out of spite and malice. The
    appellant appeals the costs award, asserting that it is based on erroneous
    findings and that the time spent was excessive.

[14]

We
    disagree. The motion judges finding of reprehensible conduct was supported by
    the record and justified the costs awarded:
Davies v. Clarington
    (Municipality)
, 2009 ONCA 722, 100 O.R. (3d) 66. Those costs were very
    modest and reasonable, in our view. The award of costs is discretionary and
    this court cannot intervene unless the motion judge erred in principle or the
    costs order is plainly wrong:
Hamilton v. Open Window Bakery
, 2004 SCC
    9, [2004] 1 S.C.R. 303, at para. 27. Neither circumstance applies here.

[15]

The
    respondent claims costs of $7,500 for this proceeding on a substantial
    indemnity basis. For the reasons given by the motion judge, substantial
    indemnity costs are appropriate. The amount claimed is reasonable.

[16]

We
    therefore dismiss the appeal, with costs to the respondent fixed at $7,500,
    all-inclusive.

E.A. Cronk J.A.

S.E. Pepall J.A.

G.R. Strathy J.A.


WARNING

Pursuant
    to the decision of Justice Lauwers contained herein, an order restricting
    publication in this proceeding is now in place. Any information that could
    identify the applicant in this appeal shall not be published in any document or
    broadcast or transmitted in any way.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.E., 2013 ONCA 713

DATE: 20131121

DOCKET: M41972 M41973

Lauwers, J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

A. E.

Applicant

A. E., acting in person

Christine Bartlett-Hughes, for the respondent

Heard: June 26, 2013.

APPLICATION for an extension of time in which to appeal
    and for leave to appeal under the
Provincial Offences Act
.

ENDORSEMENT

[1]

The applicant comes
    before this court with four convictions for driving motor vehicles without
    insurance, contrary to the
Compulsory Automobile Insurance Act,
R.S.O.
    1990, c. C-25. He applies for an extension of time in which to appeal, and for leave
    to appeal in this court under the
Provincial Offences Act
, R.S.O. 1990,
    c. P-33.

[2]

The materials before
    this court show that the applicant apparently has suffered from, but is now
    being treated for, a serious mental illness. This was not known by the lower
    courts. To protect his personal privacy, I order that he not be identified by
    name and that any publication of the details in this matter be restricted so as
    not to identify him.

[3]

The applicants
    convictions for operating motor vehicles without insurance resulted in very
    significant fines. These fines, cumulatively over $20,000, weigh heavily on the
    applicant, and it is questionable, at least on the limited evidence filed on
    these applications, whether the applicant has the realistic ability to ever pay
    them. Even bankruptcy will not give him respite.

[4]

There seems to be
    conflicting authority on whether this court has jurisdiction to hear the appeals
    of some of the matters on which the applicant is seeking leave, because he was
    denied an extension of time in which to appeal by the courts below. See:
R.
    v. Valente
(1982), 40 O.R. (2d) 535,
R. v. Belanger
, [2006] O.J. No.
    3453,
R. v. Melaku
(2011), 106 O.R. (3d) 481, and
R. v. Borges
,
    2011 ONCA 621, 107 O.R. (3d) 377; all judgments of single members of this court
    in applications for leave to appeal under the
Provincial Offences Act
. A
    panel of this court has referred to this issue but declined to resolve it. See:
R. v. Opoku
, 2012 ONCA 22, at para. 3.

[5]

For the reasons that
    follow, in the particular circumstances of this case, I grant an extension of
    time in which to appeal and grant leave to appeal. The panel hearing the appeal
    may wish to consider the jurisdictional issue.

Background

[6]

The applicant has four
    convictions for operating a motor vehicle without insurance, contrary to s.
    2(1)(a) of the
Compulsory Automobile Insurance Act
. As I will briefly
    describe, the court did not deal with these offences in chronological order. Only
    the first disposition preceded the last offence date.

[7]

The first offence date
    was April 18, 2005. The applicant attended a trial date on October 13, 2005. He
    was unrepresented. His request for an adjournment of the trial was denied, and
    he pled guilty to the charge. He provided an explanation of the circumstances,
    and he was sentenced to a fine of $2,500. It is worth noting that under s. 2(3)
    of the
Compulsory Automobile Insurance Act
the minimum fine for this
    offence is $5,000 on a first offence, but the court has discretion under s.
    59(2) of the
Provincial Offences Act
to impose a fine below the minimum.

[8]

The offence date for
    the third offence was September 15, 2005. The applicant appeared in court on
    November 16, 2006, represented by an agent who assisted him in pleading guilty
    to the offence, with a joint submission for a fine of $2,500. The prosecutor
    did not allege a record of a previous conviction. The sentencing justice of the
    peace acceded to the joint submission and ordered a fine of $2,500.

[9]

The offence date for
    the fourth offence was March 17, 2006. The applicant was in court on November
    22, 2006, once again represented by an agent, and he pled guilty to the offence
    and a fine of $2,000 was imposed. The specific circumstances in which this
    proceeding took place and the reasons for this sentence are not entirely clear
    as there was no transcript of this proceeding filed in this court. I found it
    necessary to proceed with the application nonetheless.

[10]

And
    finally, the second offence had an offence date of June 30, 2005. The
    applicant, represented by the same agent, apparently had a trial, in which he
    was found guilty, and the sentencing proceeded on February 16, 2007. From a
    transcript filed in this court of the sentencing proceeding, it appears the
    prosecutor filed a record of the first conviction entered on October 13, 2005,
    and argued for at least the minimum fine of $10,000 mandated under s. 2(3) of
    the
Compulsory Automobile Insurance Act
for a second or subsequent
    conviction. The presiding justice of the peace imposed a $10,000 fine. He found
    that the applicant had not learned from his previous fine, but did not notice
    that the previous conviction and fine was imposed for an offence that occurred
    after the offence for which the applicant was being sentenced. There is an
    arguable error of law with some merit with respect to this sentence. See:
R.
    v. Skolnick
, [1982] 2 S.C.R. 47.

[11]

On
    October 30, 2007, the applicant brought a motion before a provincial judge to
    extend the time in which to appeal his first three convictions, pursuant to
    section 85 of the
Provincial Offences Act
. It is not clear from the
    record why the applicant did not bring this motion with respect to all four
    convictions, but this dishevelled approach seems to be consistent with his
    mental state. The applicants motion was dismissed.

[12]

On
    February 10, 2011, the applicant brought another motion before a provincial
    judge to extend the time in which to appeal. He did so on this occasion with
    respect to all four convictions. The prosecutor brought the judges attention
    to the fact that a motion to extend time for the first three convictions had
    already been dismissed on October 30, 2007. The provincial judge treated the
    matter as an appeal on the merits on the fourth conviction, and granted the
    appeal from sentence. He confirmed the $2,000 fine, but gave more time to pay.

[13]

On
    November 19, 2012, the applicant tried again to bring a motion to extend time
    in which to appeal before a provincial judge, having apparently been redirected
    to do so by staff of this court. That motion was dismissed for lack of
    jurisdiction because it had already been dismissed.

[14]

Throughout
    all of the proceedings, except and until it was before this court, I can find
    no reference to the applicants mental illness, or any significant reference to
    his ability to pay the substantial fines imposed upon him. In addition to the
    fines mentioned, totalling $17,000, by operation of s. 60.1 of the
Provincial
    Offences Act
, and the
Victim Fine Surcharges
, O. Reg. 161/00, there
    is a 25% surcharge payable by the applicant on these fines, plus small nominal
    court costs added pursuant to R.R.O. 1990, Reg. 945. In total, the applicant
    owes in excess of $21,250, payable in fines, surcharges and court costs from
    these convictions.

Analysis

[15]

Since
    the offences in question proceeded under Part III of the
Provincial Offences
    Act
, an appeal lies to this court under section 131. While the test for
    leave is a high one, it should not, in my view, be inflexible. In the
    circumstances of this case, for the reasons that follow, I find there is an
    important public interest in this case, and there is an arguable issue that
    relates to the due administration of justice.

[16]

Although
    the offences are relatively serious, the applicant faces a very significant amount
    of fines, surcharges and costs that is draconian in its impact on him
    personally. The courts below were not made aware of his mental illness, and although
    he seems to be getting treatment, from the scanty material filed in this court,
    he may well have no real prospect of being able to pay these oppressive fines. Significant
    minimum fines for the offence of operating a motor vehicle without insurance may
    well have a good public policy justification, particularly in acting as a
    general deterrent. It is nonetheless, in my view, in the public interest to
    determine whether in the particular circumstances of any individual defendant
    or appellant, some accommodation should be made for individuals with
    significant personal disabilities. Although it may well have been within the
    power of the provincial offences appeal court to consider this issue, there was
    never an opportunity for that court to consider that issue, because of the
    manner in which the appeal proceedings unfolded, and because the applicant evidently
    was unable to advance the issue.

[17]

The
    appeal proceedings in the provincial offences appeal court on October 30, 2007
    are especially problematic. As noted, the applicant had brought a motion to
    extend time in which to appeal three of his four convictions. From my review of
    the transcript of that proceeding, it is at least arguable that the court did
    not consider the appropriate factors in determining the issues before it, and,
    perhaps more importantly, closed off any opportunity for the broader public
    interest issue to be raised.

[18]

After
    being given a brief chronology by the prosecutor, which in my view was at
    least argumentative and may be viewed as prejudicing the applicants motion,
    the following exchange took place between the applicant and the court:

THE COURT: All right, thank you. What do you have to say?

A.E.: Sir, I've tried to pay the money but I'm a student, I
    don't have money to pay and want to know if I can reduce. Right now I'm in
    (UNINTELLIGIBLE) and I can't even pay my insurance right now, so I don't know
    how to pay this fine.

THE COURT: Sir, your driving record is a complete and utter
    disgrace.

A.E.: Yes.

THE COURT: Excuse me. You have been convicted of this not once,
    but twice, but three times.

A.E.: Sir, the .

THE COURT: Excuse me, I am talking to you now. The Justice
    reduced this. You, yourself were in court in February. The fact that you have
    waited until August to even challenge this persuades me that you are treating
    the entire system as a joke.

A.E.: No, Sir.

THE COURT: You have absolutely -- I am still talking to you,
    please. You have absolutely no respect for your privilege of driving and have
    thumbed your nose at the system throughout. What do you want to say?

A.E.: Sir, I'm a student. I'm supposed to be in class right
    now. I'm taking  credits as a student. I'm in school from Monday to Friday.

THE COURT: You are expected to follow the same rules that apply
    to everyone else. You can appear before a justice and seek more time. Your
    matters are dismissed. Shameful. Thank you.

[19]

Numerous
    authorities set out the appropriate factors that a court should consider in
    determining whether to extend the time in which to appeal under s. 85 of the
Provincial
    Offences Act
. Among the appropriate factors, it is usually significant
    whether:

·

the applicant has demonstrated a
bona fide
intention to
    appeal within the prescribed appeal period;

·

the applicant has accounted for or explained the delay in
    initiating the appeal; and

·

the proposed appeal has merit.

And in some circumstances it will be significant whether:

·

the consequences of the conviction are out of all proportion to
    the penalty imposed;

·

the Crown will be prejudiced; and

·

the applicant has taken the benefit of the judgment.

[20]

I
    agree with Justice Nadel, in
R. v. Monrad
, [2012] O.J. No. 398 (C.J.), who
    applied, at para. 1, in the provincial offences appeal context, a principle
    enunciated by Justice Watt, that: In the final analysis, the principal
    consideration is whether the applicant has demonstrated that justice requires
    that the time be extended.

[21]

It
    is important to note that these are all factors, not preconditions. In the
    present case I think it is at least arguable that the provincial judge did not
    appear to take these factors into account. After this dismissal, the applicant
    was prevented from having the provincial offences appeal court consider the
    totality of the fines and surcharges. In my view, in the particular
    circumstances of this case, the due administration of justice is implicated,
    and as a consequence the broader public interest issues involved were not
    considered. As such I find that leave to appeal ought to be granted.

[22]

As
    a final note, I observe that while there was some evidence filed as to the
    applicants mental illness and his financial circumstances, it may well be insufficient
    for the purpose of the appeal. It would be beneficial if the applicant were
    assisted by counsel, who might consider whether additional fresh evidence is
    warranted.

P. Lauwers J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bauer, 2013
    ONCA 691

DATE: 20131114

DOCKET: C57295

Weiler, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Dennis Bauer

Respondent

Michelle Campbell, for the appellant

Robert C. Sheppard, for the respondent

Heard: November 5, 2013

On appeal from the sentence imposed on June 6, 2013 by Justice
    J. C. George of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown seeks leave to appeal the respondents eight month sentence
    for sexual interference.

[2]

The appellant submits that the sentencing judge erred:

(a)   by
    overemphasizing the
Gladue
principles; and

(b)  by failing
    to give proper effect to the principles of denunciation and deterrence
    resulting in a sentence that is manifestly unfit and outside the appropriate
    range.

[3]

At trial, the appellant requested a sentence in the range of two to
    three years. While the appellant now submits that the appropriate sentence is
    in the range of five to six years, in light of its position at trial, the
    appellant seeks a sentence of three years.

Facts

[4]

At the time of the offence, the victim was 14 years of age.  She was a close
    friend of the respondents daughter whom she had known since grade four.  The
    victim was being bullied at school.  She began to attend at the respondents
    home on a daily basis.  The respondent, who was 40 years old at the time, told
    her that he too had been bullied and could help her deal with it.  The two
    began to exchange text messages.  After a few months, the respondent began
    telling the victim that his sex life with his wife was unsatisfactory.  He invited
    the victim to engage in his sexual fantasies.  When the victim was
    unresponsive, he threatened to kill himself.

[5]

While the victim initially resisted the appellants advances, he
    persisted and the victim began to feel that she was in a relationship with him.
    She would regularly meet him in his truck before and after school.  He
    digitally penetrated the victim without her consent and, after this the
    respondent routinely digitally penetrated the victim.  On one occasion, he had
    sexual intercourse with her without using a condom.  He also penetrated her
    with a vibrator and placed a ball gag in her mouth.

[6]

The police were contacted when the victims father discovered some of
    the text messages on the victims cell phone.  By this time, the respondent and
    the victim would communicate upwards of 600 times per day.

[7]

The respondent pled guilty to the offence of sexual interference.

[8]

The respondent obtained a secondary school diploma.  He has worked as a
    fabricator for the past 12 years. He has no prior criminal record.  He has been
    married for many years and has three children.

[9]

The respondent and his mother are members of the Kettle and Stony Point
    First Nation.  She attended a public off-reserve school where she was subject
    to racism.  The respondents father is of German descent.  The respondents
    parents have been married for over 45 years and continue to live in London
    where they raised the respondent and his sister.  They owned and successfully operated
    a variety store and a Dairy Queen there.  They worked hard and with substantial
    savings, were able to retire when the respondent was 14 years old.  The
    respondent was disciplined by his father through corporal punishment.  The
    respondent felt that his parents doted on his sister and that he was unloved.

[10]

The
    respondent did not grow up in an Aboriginal community.  His father was a
    disciplinarian who disapproved of any Aboriginal cultural involvement or
    practices within their home.  Accordingly, the respondents knowledge of, and
    participation in, Aboriginal culture is limited.  The respondent asserted that
    his only connection to Aboriginal culture was through regular visits with his
    maternal grandparents who resided on the reserve.  His grandfather died when he
    was 13 and his grandmother died when he was 30.

[11]

The
    impact of the offence on the victim and her family has been enormous.  She had
    previously been an A student.  Her marks fell.  She switched schools and lost
    most of her friends. She commenced self-cutting and was on suicide watch.  She
    suffers frequent panic attacks and has been put on anti-depressants. She has
    been accused of lying about the offence.  Her father admonishes himself for
    having failed to protect her.

Grounds of Appeal

(1)

Did the sentencing judge err in the
Gladue
analysis by
    overemphasizing factors that had limited application to this particular
    accused?

[12]

The respondent
    accepts that the sentencing judge imposed a lesser sentence than he would have
    if not for the
Gladue
principles. He submits that there is no way of quantifying the
    differential and submits that the overall sentence was nonetheless fit.

[13]

While
    the sentencing judge did correctly state the
Gladue
principles, he
    failed to tie them in some way to the offender and the offence and in so
    doing, underemphasized the respondents moral culpability for this offence.  While
    an Aboriginal offender need not establish a direct causal link between his
    circumstances and the offence, the
Gladue
factors need to be tied in
    some way to the offender and the offence (
R. v. Ipeelee
, 2012 SCC 13,
    [2012] 1 S.C.R. 433 at para. 83.  See also
R. v. Gladue
, [1999] 1
    S.C.R. 688).  The rationale for
Gladue
is that many Aboriginal
    offenders come from situations of social and economic deprivation with few
    opportunities for positive development and these circumstances may diminish
    their moral culpability (
R. v. Ipeelee
, at para. 73).

[14]

In
    this case the respondents circumstances did not diminish his moral
    culpability.  As the
Gladue
report indicated, the respondents
    knowledge of, and participation in, his Aboriginal culture was limited. He grew
    up off-reserve and was raised by parents who have been married for over 45
    years and who ran a successful business. There was no suggestion of any
    residential school history within his mothers family of origin.  The
    respondent never attended a residential school and there is no evidence he
    experienced any sexual abuse, discrimination, or forced displacement.

[15]

In
    the circumstances, the judges emphasis on addressing the impact of residential
    schools, displacement from communities, and higher incidents of suicide,
    substance abuse and incarceration among Aboriginal people was misplaced in this
    case. There was nothing in the
Gladue
report that would warrant a
    sentence outside the normal range.

(2)

Does the sentence imposed fail to give proper effect to denunciation and
    deterrence and result in a sentence outside the range and that is manifestly
    unfit?

[16]

Quite
    apart from the foregoing, the sentencing judge failed to appreciate the gravity
    of the offence and the culpability of the offender. This was an exploitative,
    repeated and demeaning series of sexual assaults against a vulnerable 14
    year-old by a person in a position of trust. An eight month sentence cannot
    adequately reflect the principles of denunciation and deterrence. The judge
    appears to have treated the childs acquiescence as a mitigating factor; he
    said that she had not been raped. However, a childs willing participation is
    not a mitigating factor in circumstances where the respondent made the victim
    feel that she was in a relationship with him (
R. v. P.M.
(2002), 155
    O.A.C. 242 (C.A.)).

[17]

Mid-to-upper
    single digit penitentiary sentences are appropriate where an adult in a
    position of trust sexually abuses a young child on a regular basis over a
    substantial period of time (
R. v. D.D.

(2002), 58 O.R. (3d) 788
    (C.A.), at para. 44).  This range may apply even to a single instance of sexual
    abuse (
R. v. Woodward
, 2011 ONCA 610, 284 O.A.C. 151 (C.A.)).

[18]

The
    respondent groomed the victim and used emotional blackmail.  Not realizing that
    she was being manipulated by the offender, the complainant was seduced into
    thinking that she was in a relationship with him. This was not an isolated
    incident of sexual interference.  The first instances were forced. The
    respondent used a vibrator and a ball gag without the victims consent. The abuse
    escalated over time to include one incident of full unprotected intercourse
    thereby exposing the victim to the possibility of an unwanted pregnancy and the
    risk of sexually transmitted disease.

[19]

It
    is of paramount importance that children be protected from seducers and  predators
    through sentences that emphasize the principles of denunciation and deterrence.
    The sentence is manifestly unfit and an unjustifiable departure from the range.

[20]

Under
    the circumstances, a three year sentence of incarceration less time spent in
    post-conviction custody is fit and appropriate.  We calculate time spent as
    amounting to 162 days (June 6, 2013  November 14, 2013).  In giving this
    sentence, we are not departing from the
R. v. D.D.
range but are
    giving effect to the range of sentence sought by the appellant.  The ancillary
    orders remain in place.

[21]

Leave
    to appeal sentence is granted, the appeal allowed, and the sentence imposed at
    trial varied in accordance with these reasons.

K.M. Weiler J.A.

David Watt J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Bentley, 2013 ONCA 667

DATE: 20131101

DOCKET: C56368

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Bentley

Appellant

Daniel C. Santoro and Angela Ruffo, for the appellant

Jeanette Gevikoglu, for the respondent

Heard:  October 30, 2013

On appeal from the judgment of Justice Thomas Bielby of
    the Superior Court of Justice, dated November 22, 2012, dismissing
certiorari
setting aside the order of Justice Norman Douglas of the Ontario Court of
    Justice, dated August 20, 2012, committing the appellant.

APPEAL BOOK ENDORSEMENT

[1]

The preliminary inquiry judge did not commit a jurisdictional error in committing
    the appellant for trial.  On the issue of identification the testimony of DC
    Devine was some evidence connecting the appellant to the property.  Coupled
    with the appellants admitted ownership of the property, there was enough
    evidence on which a trier of fact could find that the appellant had the
    necessary knowledge and control.

[2]

On the issue of the type of plant, the preliminary inquiry justice acted
    within his jurisdiction in relying on the experience and testimony of Devine to
    find that the 9,000 plants in the barn were marijuana.  His testimony is
    summarized at para. 43 of the Crowns factum.

[3]

Accordingly, we conclude that the evidence tendered before the
    preliminary inquiry judge was capable of supporting a committal.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2013 ONCA 680

DATE: 20131112

DOCKET: C55977

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Chambers

Appellant

James Lockyer and Diana Lumba, for the appellant

Riun Shandler and Andreea Baiasu, for the respondent

Moiz Rahman, Nancy Dennison and Andrea Bourke, for the
    intervener the Attorney General of Canada

Heard: February 2122, 2013

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on February 2, 2012, with reasons
    reported at 2012 ONSC 817.

Cronk J.A.:

I.        Introduction

[1]

On December 9, 2011, at the conclusion of a trial before Kelly J. of the
    Superior Court of Justice, the appellant was convicted of eight firearm-related
    offences: possession of a restricted firearm with ammunition (Count 1); possession
    of a firearm knowing its possession was unauthorized (Count 2); unauthorized
    possession of a firearm (Count 3); possession of a weapon obtained by the
    commission of an offence (Count 4); possession of property obtained by crime
    (Count 5); two counts of breach of a firearms prohibition order (Counts 6 and 7);
    and failure to comply with a recognizance (Count 8).

[2]

On February 2, 2012, the appellant was sentenced to a total of eight
    years imprisonment, apportioned as follows:

Count 1

six years imprisonment;

Counts 2, 3, and 4

one year imprisonment on each count, concurrent to Count 1;

Count 5

six months imprisonment, concurrent to Count 1;

Count 6

one year imprisonment, consecutive to Count 1;

Count 7

one year imprisonment, consecutive to Count 6; and

Count 8

six months imprisonment, concurrent to Counts 6 and 7.

[3]

The sentencing judge also gave the appellant credit, at the rate of one
    to one and one-half days, for 684 days spent in pre-sentence custody (1,026
    days).  In the result, the appellants effective sentence at trial was a term
    of five years and two months imprisonment.

[4]

The appellant seeks leave to appeal and, if leave be granted, appeals from
    his sentence.  He argues that: (1) the sentencing judge erred by ordering that
    the sentences imposed for Counts 6 and 7 (the breaches of two firearms
    prohibition orders) be served consecutively to each other; (2) the global sentence
    imposed offends the parity principle set out in s. 718.2(b) of the
Criminal
    Code
(the
Code
); and (3) the five-year mandatory minimum
    sentence for repeat firearms offenders established by s. 95(2)(a)(ii) of
    the
Code
is unconstitutional because it violates ss. 12 and 7 of the
Canadian
    Charter of Rights and Freedoms
(the
Charter
).

[5]

For the reasons that follow, I would grant leave to appeal sentence and
    dismiss the sentence appeal.

II.       Facts

[6]

The pertinent background facts are not in dispute.

[7]

On March 23, 2010, members of the Toronto Police Service conducted
    surveillance in a Toronto residential neighbourhood known to them as a high
    crime area involving drug activity, gun use, and the presence of competing
    gangs.  A public junior school is located in the area.  The police had received
    information that the shooting of an unknown male would take place in the area
    later that day, as some form of gang retaliation.

[8]

A surveillance officer, Constable Loucks, saw the appellant leaning against
    an alcove at the entrance to a local bar.  He observed the appellant holding
    what the officer thought might be a gun in the appellants jacket pocket.  The
    appellant appeared to acknowledge other persons in the area and, in turn,
    various gang members in the vicinity appeared to acknowledge the appellants presence.
    One of the gang members also appeared to be holding a concealed firearm.

[9]

A short time later, the appellant left the entrance to the bar and
    started to walk away.  At about the same time, a marked police cruiser
    approached in the appellants direction.  When a uniformed police officer got
    out of the cruiser, the appellant began to run towards a nearby residence.  Uniformed
    police officers from the cruiser  Constables Malhi and Morris  followed him
    on foot.

[10]

As
    the appellant ran into the driveway of the residence, he tripped over a small
    fence on the property.  When he tripped, Constable Malhi saw that the appellant
    was carrying a handgun.  The officer began to chase the appellant.  He took out
    his own firearm, yelled a warning that the appellant had a gun, and shouted to
    the appellant to get down and to stop.  The appellant dropped the handgun but
    continued to run towards the backyard of the residence.  Constable Malhi
    reholstered his firearm and continued his pursuit of the appellant.

[11]

As
    the appellant reached the back of the yard, he encountered a four or five-foot
    mesh fence.  When the appellant attempted to jump over the fence, Constable Malhi
    caught up with him, grabbed him from behind, and forced him to the ground.  A
    struggle ensued between the two men, during which Constable Malhi elbowed,
    kneed, and possibly kicked the appellant.  Constable Morris arrived at the
    fence within minutes.  The appellant continued to struggle but the two officers
    subdued him, and handcuffed and arrested him.

[12]

A
    third officer retrieved the handgun discarded by the appellant.  The gun, a .38
    caliber Smith and Wesson revolver, contained three rounds of live ammunition.
    The chamber contained a bullet and the gun was ready for firing.

[13]

The
    appellant was taken to the hospital for treatment of injuries occasioned during
    his scuffle with the officers.  He sustained multiple injuries to his face,
    including to his left eye, cheek, and jaw.  His lips, nose, and forehead were
    also injured.  He received stitches for his wounds and Percocet was
    prescribed.  He was then taken to the police station for processing.  Once
    incarcerated, the appellant was treated for two days in the health care unit of
    the Metro West Detention Centre.

[14]

At
    trial, the appellant sought a stay of all charges against him on the ground that
    the police used excessive force during his arrest, in breach of his ss. 7 and
    12
Charter
rights.  The appellant agreed that if his stay application
    failed, convictions should follow on all charges.  The trial judge dismissed
    the stay application and convictions were entered on the eight charges arising
    from the appellants possession of the handgun:
R. v. Chambers
, 2011
    ONSC 7197.  The appellant does not challenge this
Charter
ruling on
    this appeal.

III.      Sentencing Judges Decision

[15]

The
    appellant was 25 years old at the time of sentencing.  This was his third
    conviction for firearms offences.  In 2004, the appellant was convicted of
    possession of a loaded prohibited or restricted firearm.  He received a
    suspended sentence (after credit for seven months and 15 days pre-sentence
    custody), two years probation and a mandatory firearms prohibition order under
    s. 109 of the
Code
.  Four years later, in 2008, the appellant was
    convicted of possession of an unauthorized firearm and possession of a firearm
    contrary to the firearms prohibition order imposed in 2004.  He was sentenced
    to one day in custody (after credit for seven months pre-sentence custody) and
    three years probation.  A firearms prohibition order was again imposed under
    s. 109 of the
Code
.

[16]

Thus,
    at the time of the present offences, the appellant was subject to two firearms
    prohibition orders.  He was also on probation and judicial interim release.  His
    bail terms precluded the possession of any firearms or other weapons.

[17]

On
    sentencing, the Crown sought a period of incarceration of 13.5 years.  Defence
    counsel at trial (not counsel on appeal) urged a total sentence of seven years
    imprisonment.  The sentencing judge and both counsel proceeded on the basis
    that the mandatory minimum sentence of five years imprisonment for repeat
    firearms offenders provided for under s. 95(2)(a)(ii) of the
Code
applied in the circumstances.  Before the sentencing judge, the defence did not
    challenge the constitutionality of this five-year mandatory minimum sentence provision.

[18]

The
    sentencing judge imposed a total sentence of eight years imprisonment, less
    credit of two years and ten months for time served by the appellant in
    pre-sentence custody.   This resulted in a sentence of five years and two
    months imprisonment, apportioned in the manner described above.

IV.     Issues

[19]

There
    are three issues:

(1)

Did the
    sentencing judge err by directing that the sentences on Counts 6 and

7

(the
    breaches

of two firearms

prohibition orders) be served
    consecutively to each other?

(2)

Does the
    appellants global sentence of eight years imprisonment offend the principle
    of parity of sentences set out in s. 718.2(b) of the
Code
?

(3)

Does the
    five-year mandatory minimum sentence for repeat firearms offenders established
    by s. 95(2)(a)(ii) of the
Code
violate ss. 7 or 12 of the
Charter
?

V.      Analysis

(1)

The Consecutive Sentences Issue

[20]

The sentencing judge imposed a one-year jail term for each of the
    appellants breaches of his 2004 and 2008 firearms prohibition orders.  She directed
    that these sentences should be served consecutively to the six-year term of
    imprisonment imposed on Count 1 (possession of a restricted firearm with
    ammunition) and to each other.  In so doing, the sentencing judge declined to
    treat each breach merely as an aggravating factor that would operate to
    lengthen the appropriate sentence imposed on the main offence.  She held, at
    para. 37:

The sentences for breach of the prohibition order[s] must be
    consecutive in order to reflect Mr. Chambers commission of a separate and
    distinct offence  breaching a court order that specifically prohibited him
    from possessing firearms.
I do not accept that the sentences for
    possessing the firearm in breach of two prohibition orders should be
    concurrent.  They were two separate orders given on two separate occasions and
    give rise to two separate offences
.  Accordingly, I am sentencing Mr.
    Chambers to one year for each of those offences to be served consecutively.
    [Emphasis added.]

[21]

The
    appellant contends that Counts 6 and 7 involve the same offence and the same legally
    protected interests.  As a result, he submits, the sentences imposed on these
    counts should be served concurrently to each other.  He does not dispute the
    sentencing judges ruling that the sentences on Counts 6 and 7 should be served
    consecutively to the underlying firearms possession offence (Count 1).

[22]

I
    see no basis for interference with the sentencing judges ruling on this
    issue.  As the appellant acknowledges, Counts 6 and 7 arose from breaches of
    two separate firearms prohibition orders.  The orders were imposed at different
    times, separated by a period of approximately four years, and in respect of
    different firearms offences.  As the sentencing judge observed, each
    prohibition order breach was a separate and distinct offence.  That the social
    purpose of the prohibition orders was the same  to prevent the appellants
    possession of firearms  does not detract from the fact that the breaches
    constituted separate offences, referable to prohibition orders imposed at
    different points in time, in different circumstances.

[23]

This
    court has recently upheld sentences of six months imprisonment for firearms
    prohibition offences, to be served consecutively to a firearm possession
    offence and to each other:
R. v. Johnson
, 2013 ONCA 177, 303 O.A.C.
    111.

[24]

The
    sentencing judge made no error in principle in sentencing the appellant on
    Counts 6 and 7.  The decision whether the sentences imposed on those charges
    should be served consecutively or concurrently was hers to make.

[25]

The
    sentencing judges discretionary decision to direct that the sentences imposed
    on Counts 6 and 7 be served consecutively, rather than concurrently, attracts
    deference from this court.  As a majority of the Supreme Court stated in
R.
    v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46:

In both setting duration and the type of sentence, the
    sentencing judge exercises his or her discretion based on his or her first-hand
    knowledge of the case; it is not for an appellate court to intervene absent an
    error in principle, unless the sentencing judge ignored factors or imposed a
    sentence which, considered in its entirety, is demonstrably unfit.

[26]

The
    appellant does not suggest that the sentencing judge ignored any relevant
    factors when determining that the sentences in question should be served
    consecutively.  Nor does he argue that the sentences on Counts 6 and 7, by
    themselves, produced an overall sentence that is demonstrably unfit.

[27]

I
    note that the sentencing judge also ruled that the six-month term of
    imprisonment imposed for the appellants breach of his bail conditions (Count
    8) was to be served concurrently, rather than consecutively, to the sentences
    imposed on Counts 6 and 7.  The appellants bail order constituted a third
    court order prohibiting his possession of guns.  The sentence imposed on Count
    8 is consistent with the totality principle, which seeks to ensure that the
    total sentence imposed does not exceed the overall culpability of the offender:
R. v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 126.

[28]

This
    ground of appeal therefore fails.

(2)

The Parity of Sentences Issue

[29]

Section
    718.2(b) of the
Code
provides:

718.2  A court that imposes a sentence shall also take into
    consideration the following principles:

(b)
a sentence should be similar to sentences imposed
    on similar offenders for similar offences committed in similar circumstances.

[30]

This
    court has held that the principle of parity of sentences enunciated in s.
    718.2(b) is intended to preserve fairness by avoiding disparate sentences
    where similar facts relating to the offence and offender would suggest like
    sentences (citation omitted):
R. v. Rawn
, 2012 ONCA 487, 294 O.A.C.
    261, at para. 18; and
R. v. Mann
, 2010 ONCA 342, 261 O.A.C. 379, at
    para. 16.

[31]

However,
    while parity is a guiding principle of sentencing, it is not to be applied in
    an absolute fashion; rather, it is only one of several principles that must be
    taken into account by a sentencing judge in crafting a fit sentence.
    Consequently, the parity principle is not dispositive of the sentencing result
    in all cases involving similar offenders convicted of similar crimes:
Mann
,
at para. 17.

[32]

In
    this case, the appellant argues that the parity principle justifies a reduction
    in the length of his overall sentence.  I disagree.

[33]

As
    the courts have frequently observed, sentencing is a highly individualized and
    fact-specific exercise.  As a result, sentences imposed for offences of the
    same type will not always be identical.  In
R. v. L.M.
, 2008 SCC 31,
    [2008] 2 S.C.R. 163, the Supreme Court explained, at para. 36: The principle
    of parity does not preclude disparity
where warranted by the circumstances
,
    because of the principle of proportionality (emphasis in original).  Further,
    in
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 90, the Supreme
    Court cautioned that an appellate court should intervene to minimize the
    disparity of sentences only where the sentence imposed by the trial judge is in
    substantial and marked departure from the sentences customarily imposed for
    similar offenders committing similar crimes.

[34]

In
    my view, the appellant has not met this high threshold for appellate
    interference with the sentence imposed by the sentencing judge.  The appellant has
    been unable to point to any body of case law supporting the proposition that
    the total length of his sentence materially deviates from the sentences imposed
    on similar offenders for similar offences.  This court has upheld a sentence of
    eight years imprisonment for a relatively young offender (21 years old) with only
    one prior weapons conviction committed in similar circumstances:
R. v. Dene
,
    2010 ONCA 796, [2010] O.J. No. 5012.

[35]

The
    appellant relies on the decision of this court in
R. v. Brown
, 2010
    ONCA 745, 277 O.A.C. 233, to support his invocation of the parity principle.
    In my view,
Brown
does not assist the appellant.  To the contrary,
Brown
supports the fitness of the appellants overall sentence.

[36]

Brown
    pleaded guilty to possession of a loaded restricted firearm and breach of a
    lifetime firearms prohibition order.  He had a lengthy criminal record,
    consisting of 34 prior convictions, and was subject to a deportation order.  He
    was also a repeat firearms offender.  Like the appellant, Brown was bound at
    the time of his arrest by two firearms prohibition orders arising from two
    prior sets of convictions for firearms offences.

[37]

In
Brown
, the sentencing judge determined that a global sentence of about
    eight years imprisonment would have been appropriate if Browns case had gone
    to trial.  However, given Browns guilty plea, his co-operation with the police
    on arrest and the absence of any indication that he was involved in other
    criminal activity when he was arrested, the sentencing judge concluded that a
    six-year global sentence was appropriate.  He gave Brown six months credit on
    a two-for-one basis for pre-sentence custody.  This resulted in an effective
    sentence of five years and six months imprisonment.

[38]

On
    appeal, this court held, at paras. 4 and 5, that the overall sentence imposed
    on Brown was demonstrably unfit, outside the appropriate range, and inadequate
    to reflect the seriousness of [Browns] offences and [his] incorrigibility as
    an offender.  The court set aside the global sentence imposed at trial and
    substituted a sentence of seven years and six months imprisonment for the offence
    of possession of a loaded restricted firearm, less six months credit for
    Browns pre-sentence custody, for a total of seven years imprisonment.  It
    also imposed a jail term of one year, to be served consecutively, for Browns
    breach of his firearms prohibition order.  In the result, Brown was sentenced
    to eight years imprisonment,
after
credit for pre-sentence custody.

[39]

The
    appellants six-year sentence of imprisonment for possession of a restricted
    firearm with ammunition (Count 1) was less than the comparable sentence imposed
    on Brown for possession of a loaded restricted firearm.  Further, as in
Brown
,
    the appellant was sentenced to one year imprisonment, consecutive to Count 1,
    for each of his firearms prohibition order offences.

[40]

It
    is true that, in contrast to
Brown
, the sentencing judge in this case
    recognized some potential for the appellants rehabilitation.  However, unlike
    Brown, the appellant, when confronted by police, fled in a residential area
    while carrying a loaded firearm and subsequently resisted arrest, thereby
    exposing the involved police officers and nearby residents to the risk of
    serious harm.  This conduct aggravated the seriousness of the appellants
    offences.

[41]

I
    also note that, in
Brown
, this court once again emphasized, at para.
    14: Handguns are an all too prevalent menace in the Greater Toronto Area.
    First and foremost, the sentences imposed for firearms offences must further
    the sentencing goals of denunciation, deterrence and protection of the
    public.  These comments apply with equal force in this case.

[42]

In
    the end, the overall sentence imposed on the appellant cannot be said to be
    demonstrably unfit.  Indeed, I view it as lenient in all the circumstances.

(3)

The Constitutional Issues

[43]

Section
    95(2)(a)(ii) of the
Code
provides that, upon conviction for possession
    of a loaded restricted or prohibited firearm and where the Crown proceeds by
    indictment, the offender faces a five-year minimum sentence of imprisonment
    where the conviction is a second or subsequent offence.  Under s. 84(5) of
    the
Code
, an offence under s. 117.01(1)  possession of a weapon
    contrary to a weapons prohibition order  constitutes a second or subsequent
    offence for the purpose of s. 95(2)(a)(ii).

[44]

The
    appellant attacks the constitutionality of this five-year mandatory minimum
    sentence provision for repeat firearms offenders.  He submits that it offends
    both ss. 7 and 12 of the
Charter
.

[45]

The
    appellant did not raise these issues at trial, instead advancing them for the
    first time on this appeal hearing.  It is well-established that appeal courts
    generally will not entertain arguments not made at trial.  This general rule
    applies to constitutional arguments raised for the first time on appeal,
    regardless of the constitutional remedy sought: see for example
R. v. Roach
,
    2009 ONCA 156, [2009] O.J. No. 662, at para. 6. The appellants failure to mount
    his
Charter
ss. 7 and 12 arguments at trial deprives this court of the
    reasoned analysis of the trial court on these issues.

[46]

In
    any event, in my view, we need not reach these constitutional issues in this
    case. Regardless of the mandatory minimum sentence of five years imprisonment
    established by s. 95(2)(a)(ii) of the
Code
, the circumstances of these
    offences and this offender, as outlined by the sentencing judge, amply justify the
    sentences imposed at trial.  The fresh evidence filed on appeal does not alter
    this conclusion.  The sentencing judge made no error in principle and the
    overall sentence imposed is not demonstrably unfit.  In these circumstances, it
    is unnecessary to consider the appellants constitutional challenges to s.
    95(2)(a)(ii) of the
Code
.

VI.     Disposition

[47]

For the reasons given, I would grant leave to appeal from sentence and
    dismiss the sentence appeal.

Released:

NOV 12 2013                                   E.A.
    Cronk J.A.

DD                                                  I
    agree Doherty J.A.

I
    agree S.T. Goudge J.A.

I
    agree R.A. Blair J.A.

I
    agree M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dennis, 2013 ONCA 708

DATE: 20131119

DOCKET: C53761

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Dennis

Appellant

Aman S. Patel, for the appellant

Shawn Porter, for the respondent

Heard: November 15, 2013

On appeal from the conviction entered on October 18, 2010
    and the sentence imposed on November 17, 2010 by Justice G. Pardu of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of attempt murder and various firearms
    offences. He appeals his conviction for attempt murder on the basis that the
    statement the appellant gave the police should not have been ruled voluntary.

[2]

The appellant submits that the trial judge made findings that were
    against the weight of the evidence on the
voir dire
. For example, at
    para. 23, the trial judge rejected the appellants claim that the officer fed
    him the information that the 17 year old had been arrested. She did so based on
    the video that showed the 17 year old going by the interview room and the audio
    of that passage, as well as on the fact that the youth had been present at the
    accuseds house when he was arrested.

[3]

The appellant effectively argues that the trial judges conclusion that
    the statement was voluntary was not reasonable, based on the evidence. We do
    not agree. The trial judge considered and weighed the evidence carefully. We do
    not reweigh. See most recently
R. v. M.D
., 2012 ONCA 841 at 42. We see
    no error in the trial judges approach or in her analysis or conclusion that
    the statement was voluntary.

[4]

The appellant also appeals his sentence of 15 years, 3 months in total,
    reduced by 3 years for pretrial custody credited on the 2:1 basis. The sentence
    also included 3 years for the firearms offence which was the mandatory minimum
    at the time. The appellant submits that the sentence is crushing for a 24 year
    old and should have been several years less in total.

[5]

The sentencing judge was well aware of the appellants youth. However
    she was also aware of the extremely serious circumstances - what turned out to
    be an effective ambush of the victim with a prohibited firearm at point blank
    range. It was just luck that the victim survived. Also just one month before, the
    appellant had signed a recognizance not to possess such a firearm.

[6]

The sentencing judge recognized that the sentence is a long one, but she
    found it to be appropriate for the gravity of the offence and all the
    circumstances. We see no basis to interfere.

[7]

We also considered the issue of the 3 year mandatory minimum. Based on
    the recent decision in
R. v. Nur
, 2013 ONCA 677, para. 206, the 3 year
    consecutive sentence for the firearms offence remains the appropriate sentence.

[8]

In the result, the appeals against conviction and sentence are
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groulx, 2013 ONCA 690

DATE: 20131113

DOCKET: C54297

Weiler, Watt and Pepall, JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Groulx

Applicant/Appellant

Melanie Webb, for the appellant

Lisa Joyal, for the respondent

Heard: November 4, 2013

On appeal from the conviction entered on April 7, 2011
    and the sentence imposed on June 10, 2011 by Justice
Robert
    Pelletier
of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, 43 year old Pierre Groulx, appeals his second degree
    murder conviction and sentence in the death of his mother, Yolande Groulx.

The Conviction Appeal

[2]

All of the grounds of appeal with respect to conviction relate to the
    trial judges charge to the jury. They are:

·

The trial judge erred in failing to put the defence of
    intoxication to the jury where a clear evidentiary foundation existed.

·

The trial judge did not sufficiently charge the jury to eliminate
    the injurious prejudice created by the admission of the prior discreditable
    conduct.

·

The trial judge erred in failing to adequately instruct the jury
    on the intent required for second degree murder.

·

The trial judge erred in failing to instruct the jury that an
    unlawful act must also be one that is objectively dangerous.

·

The trial judge erred in failing to instruct the jury that if
    they had a reasonable doubt between murder and manslaughter, they should return
    a verdict of manslaughter.

The Sentence Appeal

[3]

In relation to the sentence appeal, the appellant submits that the 14
    year period of parole ineligibility imposed is harsh and excessive.

Discussion

[4]

We did not call upon the Crown to respond to the appellants argument as
    we were of the opinion that there was no merit to any of the grounds of appeal.
    At the conclusion of the appeal, we dismissed the appeal with reasons to
    follow. These are those reasons.

The Conviction Appeal

Lack of instruction on intoxication

[5]

It is the duty of the trial judge to put to the jury all defences
    arising from the evidence, even if not advanced by the defence at trial. See
R.
    v. Squire
, [1977] 2 S.C.R. 13.

[6]

In this case, not only was intoxication not advanced as a defence, trial
    counsel specifically advised the trial judge early in the trial and again during
    the pre-charge conference that intoxication was not a live issue. The decision
    of defence counsel not to put forward a defence of intoxication was a tactical
    one. The appellants position was that his mother died as a result of a fall
    she sustained when he reflexively pushed her away from him due to her body
    odour and she fell into the faceplate of the kitchen stoves oven door thereby
    suffering cuts to her head from the glass which broke. She went to the bathroom
    to examine herself and asked the appellant to cut some of her hair away so that
    she could see the injury. The appellant then left the bathroom and went to bed.
    He heard his mother fall down and called out to her, but she said she was
    alright. In the morning, he found her dead.

[7]

On appeal, counsel for the appellant, who was not his counsel at trial,
    submits that the trial judge ought to have put the defence of intoxication to
    the jury because there was a sufficient evidentiary foundation for it.

[8]

The basis for the appellants submission in part arises out of the
    evidence of a former girlfriend, Ms. Cope. She testified that the appellant
    became very violent and aggressive when drinking and that he was always under
    the influence of alcohol when he and the deceased would argue. On a prior
    occasion the appellant had choked the deceased and did not remember doing so due
    to his advanced state of intoxication. In addition, the appellant submits that an
    incoherent voicemail he left for Ms. Cope on the evening of the deceaseds
    death, which includes an admission of drinking, supports the defence.

[9]

On the night the deceased died, it was common ground that the appellant
    arrived home after drinking eight or nine beers with his friend, Derrick
    Collins. Still, Mr. Collins testified that he believed that it was safe for the
    appellant to drive home. The appellant himself gave almost no evidence in his
    examination in chief about his alcohol consumption. He confirmed on
    cross-examination that he did not drink excessively that night because he
    wanted to be clear headed if called in to work the next day. He did not assert
    to anyone that intoxication was
    the reason for, or even contributed to his actions. He described in detail his
    condition at the time of the incident and the events before, during and after
    the crime.

[10]

In
    the circumstances we disagree that the trial judge was obliged to put the
    defence of intoxication to the jury. The medical evidence established that the
    deceased, who weighted only 81 pounds, died from either manual strangulation or
    from acute traumatic injuries to the brain. There was no evidentiary foundation
    upon which a jury could properly find that the appellant could not, or did not,
    comprehend the natural consequences of his conduct.

Instruction on discreditable conduct

[11]

The
    appellant submits that the trial judge erred in not cautioning the jury about the
    use they could make of evidence of prior misconduct by the appellant. The
    appellant says it was incumbent on the trial judge to instruct the jury that
    the evidence of bad character could not to be used to show that the accused
    would be more likely to have committed the offence in issue.

[12]

On
    the whole, the discreditable conduct did not consist of acts of general bad
    behaviour, but rather went to the appellants animus towards his mother and
    motive. As such, it was admissible evidence and there was no need for the trial
    judge to give any such caution. See
R. v. Pasqualino
(2008), 233 CCC
    (3d) 319 (Ont. C.A.) at paras. 17, and 65-70.

[13]

The
    appellant further submits that the trial judges instruction on discreditable
    conduct was inadequate given the extreme prejudicial effect of the
    discreditable conduct. The trial judge ought to have repeated his mid-trial
    instruction to the jury as opposed to simply referencing this earlier
    instruction and supplementing it in his charge to the jury.

[14]

The
    trial judges mid-trial and final instructions to the jury were adequate. The
    trial judge delivered a lengthy mid-trial instruction about bad character
    evidence and propensity reasoning when the jury first started to hear evidence
    of prior discreditable conduct. The instruction clearly identified the type of
    evidence in question and properly explained the permissible and prohibited uses
    of the evidence. He warned the jury that the appellant was not on trial for his
    character or past misconduct. The appellant raised no objection to these
    limiting instructions at trial, despite having the opportunity to comment on
    them prior to as well as after delivery.

Instruction on the requisite intent for murder

[15]

Although
    the trial judge frequently referred to the requisite intent and recklessness in
    his charge, the appellant identifies several places in the jury charge where
    the trial judge did not mention the recklessness component in the definition of
    s. 229 (a)(ii) of the
Criminal Code
. The jury would not have been left
    in any doubt as to the requisite intent for murder: subjective intent to cause
    bodily harm and subjective foresight of the likelihood of death. The trial
    judges first and final instructions, his decision tree, as well as his
    instruction respecting the decision tree all tracked the language of s. 229(a)(ii)
    of the
Criminal Code
. In nine of the twelve allegedly incorrect
    instances identified by the appellant, the trial judge said: means to cause
    him bodily harm that he knows is likely to cause his death and went ahead
    anyway. We note there was no objection from defence counsel to the
    instruction. Having regard to the medical evidence, this was not a case where a
    more fulsome explanation of recklessness would have enured to the appellants
    benefit.

[16]

In
    any event, the component of recklessness within s. 229(a)(ii) has effectively
    been rendered an afterthought and has assumed a subservient role. See
R.
    v. Nygaard
[1989] 2 SCR 1074;
R. v. Cooper
[1993] 1 SCR 14; and
R.
    v. Portillo
, supra.

Lack of instruction that an unlawful act must also be
    objectively dangerous

[17]

The
    trial judges charge on the offence of manslaughter did not instruct the jury
    that an unlawful act is one that must be objectively dangerous, and that they
    must be satisfied that a reasonable person would have realized he or she was
    exposing the deceased to the risk of bodily harm that was neither trivial nor
    transitory in nature at the time of the unlawful act.

[18]

In
    our opinion, the appellant was not prejudiced by this omission. The trial judges
    charge made clear that the appellant was entitled to an acquittal if he acted
    out of reflex. The jury rejected the appellants evidence that he acted out of
    reflex and found that he had committed an unlawful act. The medical evidence
    leads to no other conclusion than that the acts were objectively dangerous and
    a reasonable person would have realized that these activities would subject the
    deceased to a risk of bodily harm that was more than trivial or transitory.

Failure to instruct the jury that if they had a reasonable
    doubt between murder and manslaughter they should return a verdict of
    manslaughter

[19]

Read
    as a whole, the charge conveyed to the jury that they could only convict the
    appellant of murder if they were satisfied beyond a reasonable doubt that he
    had either state of mind required to make the unlawful killing murder. They
    were also instructed that if they had a reasonable doubt about whether the
    appellant had a state of mind required to make the unlawful killing murder,
    they should find the appellant not guilty of murder but guilty of manslaughter.
    No further instruction was required.

[20]

The
    appeal as to conviction is dismissed.

The Sentence Appeal

[21]

The
    appellant submits that the parole ineligibility order imposed was unduly harsh
    and excessive for a number of reasons.

[22]

First,
    the appellant had only a minor criminal record. The trial judge erred in
    imposing a period of parole ineligibility of fourteen years considering that
    the appellants criminal record only included a conviction for impaired driving
    and flight while pursued by a peace officer. These do not indicate that the
    appellant has a propensity for violence.

[23]

Second,
    the trial judge failed to ask the appellant if he wished to address the court
    prior to delivering his sentence. The appellants inability to address the
    court contributed to the trial judges determination that he expressed no
    remorse for his actions.

[24]

Third,
    the trial judge failed to take into consideration the impulsive and spontaneous
    nature of the attack. The appellant is a good candidate for rehabilitation.

[25]

We
    agree that it was an error for the trial judge to fail to ask the appellant
    whether he wished to say anything before imposing the sentence. However, no
    objection was made by trial counsel during the sentencing hearing and before
    us, the appellant does not seek to introduce as fresh evidence any expression
    of remorse.

[26]

We
    note that in
R. v. McKnight
(1999), 135 C.C.C. (3d) 31, this court
    held that in cases involving brutal second degree murder in a domestic or
    family context, a 12-15 year parole ineligibility period is generally applied.
    The period of parole ineligibility is within that range.

[27]

Section
    745.4 of the
Code
directs that the court must consider a variety of
    factors in determining parole ineligibility, one of which is the jurys
    recommendation. The majority of the jury recommended 15 years of parole
    eligibility. The trial judge was entitled to take this into consideration. Even
    though the trial judge erred in not asking the appellant if he wished to say
    anything before sentence, the period of parole ineligibility imposed was fit.

[28]

While
    leave to appeal sentence is granted, the appeal as to sentence is dismissed.

[29]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W., 2013 ONCA 723

DATE: 20131128

DOCKET: M42651 (C57070)

Tulloch J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Applicant

Paul Calarco, for the appellant

Frank Au, for the respondent

Christopher Charles, Court Reporter

Judie Im, for the Court Services Division

Heard: July 18, 2013

ENDORSEMENT

[1]

The applicant, J.W., seeks an order that Christopher Charles, a court
    reporter, produce transcripts at the rate of $0.55 per page for the purposes of
    perfecting this appeal. The applicant bases this request on the fact that complete
    transcripts have already been produced at trial, and at the time of production
    the rates of $3.20 per page for original transcripts and $0.55 per page for
    copies were paid to the reporter.

[2]

This application involves the interpretation of O. Reg. 587/91, made
    under the
Administration of Justice Act
, R.S.O. 1990, c. A.6, which
    deals with the fees payable to court reporters and court monitors for a simple
    copy of a transcript of evidence for the purpose of reproduction in an appeal
    to the Court of Appeal.

[3]

At the hearing of the motion, the court reporter appeared in person. The
    applicant was represented by Mr. Calarco. Counsel for the Ministry of the
    Attorney General, Court Services Division (CSD) also appeared but takes no
    position on the order requested by the applicant. However, counsel for the
    Ministry of the Attorney General did provide valuable submissions to assist the
    court as to the application of the Regulation as well as CSD policies on
    transcript production fees. Counsel for the Crown Law Office - Criminal
    supports the position of the Crown Law office - Civil.

The Facts

[4]

The facts in this case are not in dispute.

[5]

The applicant was convicted on November 29, 2012, of sexual assault,
    sexual interference and invitation to sexual touching. On May 21, 2013, he was
    sentenced on these charges to a period of incarceration and on May 23, 2013, he
    was granted bail pending appeal. He now wishes to appeal his conviction.

[6]

The trial proceeded over a four day period. During the course of the
    trial, transcripts of the evidence were ordered and have been completed. All
    four days of transcripts were produced by the court reporter and paid for by
    trial counsel. Counsel for the applicant ordered a new set of transcripts for
    all four days to be filed on the appeal. Counsel received and paid for the
    first day of evidence only. With respect to the transcripts for the remaining
    three days of evidence, the court reporter took the position that counsel for
    the applicant was required to pay the fee of $3.75 per page, which reflects the
    price charged for an original copy of transcripts, pursuant to the Ministry of
    the Attorney General guidelines.

[7]

Counsel for the applicant took the position that a rate of $0.55 cents
    per page applied to the ordered transcripts because originals had already been
    produced for the trial, and all that was required were copies of those
    originals. The CSD policy guideline sets out a price of $0.55 per page for subsequent
    copies of transcripts that have already been produced.

[8]

The parties are now at an impasse as the court reporter insists that he
    is entitled to charge the full rate set out in O. Reg. 587/91, even though the
    transcripts have already been produced. As mentioned, counsel for the applicant
    seeks an order that the court reporter produce the transcripts at the copy rate
    of $0.55 cents per page.

[9]

The court reporter takes the position that transcripts produced for
    appeal are different than transcripts produced during a trial. Therefore, notwithstanding
    that a complete transcript of the evidence may have already been completed and
    produced at trial, once a request is made for a set of the same transcripts for
    an appeal, the process of producing the transcripts starts afresh. The court
    reporter also submits that the required formats and cover pages are different on
    appeal.

Analysis

[10]

Ontario
    Regulation 587/91 sets out the fees payable to court reporters and court
    monitors for the production of transcripts.

[11]

Section
    3 of O. Reg. 587/91 provides as follows:

3. Court reporters and court monitors shall be paid
    the following fees in respect of duties performed on and after the day this Regulation
    comes into force:

1

For a single copy of a transcript of
          evidence for the purpose of reproduction in an appeal to the Court of Appeal,
          per page

$3.75

2

For copies of transcripts, including transcripts
          of charge to jury and transcript of oral judgment, but not including a
          transcript under paragraph 1 or a transcript for use in an appeal book,

i.   for the first copy, per page

3.20

ii. for each additional copy per page

.55

[12]

The
    CSD policy with respect to fees for transcript production is informed by s. 3
    of O. Reg. 587/91 and is set out in s. 6 of the CSDs Transcripts Manual (the
    Manual). Section 6.2 of the Manual provides as follows:

6.2 Transcript Fees

Court reporters are entitled to fees for transcripts as
          set in O. Reg. 587/91 as amended, Administration of Justice Act. Any variance
          from these set fees is unlawful.

For Appeal to the Court

of Appeal or Divisional

Court

All Other In-Court

Transcripts

First Copy Ordered

$3.75 per page

$3.20 per page

Additional Copies

ordered at the time of the initial order

No Charge for copies

$0.55 per page

Additional Copies

ordered at a later date

No Charge for copies

$0.55 per page

[
O.Reg. 587/91 as amended,

Administration of
          Justice Act
].

[13]

However,
    the above policy applies where no transcripts have been produced in the lower
    court, and transcripts are being requested for the first time for use in the
    Court of Appeal or Divisional Court. Where a transcript has already been
    produced in a lower court, CSD offers the following guideline for transcripts prepared
    for the Court of Appeal or Divisional Court:

A.

If the transcript has
    not been produced, the reporter is entitled to charge a one-time fee of $3.75
    per page (copies provided at no additional cost).

B.

If the transcript has
    already been transcribed for any reason, the reporter is entitled to charge
    $.55 per page copy (for appeal) for portions previously transcribed and $3.75
    per page for any portions not previously transcribed (copes provided in this
    instance at no additional cost).

C.

If the transcript has
    already been typed but requires substantial changes, the reporter may charge
    the one-time fee of $3.75 per page for pages where substantial changes are made
    (copies provided in this instance at no additional costs). Where no changes are
    required, the reporter charges $.55 per page per copy.

[14]

One
    of the objectives of the justice system is to be accessible to litigants who
    are before the courts. The most effective way of achieving this goal is for the
    justice system to allow parties to litigate issues at a reasonable cost. This
    point was made by Simmons J.A. in
R. v. Papadopoulos
(2004), 73 O.R.
    (3d) 258 (C.A.), at para 21:

In my view, the obvious purpose of rule 8(7) [of the Criminal
    Appeal Rules] is to dispense with unnecessary duplication of expense in
    circumstances where the court reporters have already been paid for their work
    in preparing a certified transcript and where the court reporters will not be
    required to perform the additional work necessary to prepare the transcript in
    the format required by the Court of Appeal.

[15]

Simmons
    J.A.s comments are relevant to the issue at hand. The court must balance the
    interests of access to justice and the court reporters right to fair compensation.
    The CSD policy with respect to fees for transcript production strikes a fair
    balance between these competing interests.

[16]

In
    the circumstances, I am satisfied that the application should be granted and an
    order should be made in accordance with the CSD policy. Therefore, I find that
    for transcripts prepared for the Court of Appeal, the court reporter is
    entitled to and shall be paid a fee of $3.75 per original page. However, if the
    transcript has previously been transcribed and produced at the lower court
    level for any reason, the reporter is entitled to charge, for an appeal, $0.55
    per page per copy for portions previously transcribed, and $3.75 per page for
    any portions not previously transcribed. If the transcript has already been
    typed but requires substantial changes, the reporter may charge the one-time
    fee of $3.75 per page for pages requiring substantial changes.

M.H. Tulloch J.A.