CITATION:
R. v. Charles, 2011
          ONCA 228

DATE: 20110324

DOCKET: C49275

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Todd Michael Charles

Appellant

Michael
Dineen
and Emily Morton, for the appellant

Paul Lindsay, for the respondent

Heard: February 9, 2011

On appeal from the
          conviction entered by Justice Frank Marrocco of the Superior Court of
          Justice, sitting with a jury, on May 15, 2008.

Sharpe J.A.:

[1]

Todd Michael Charles appeals his conviction for first
    degree murder in the shooting of Kemar Brown in a rooming house in Toronto.  The appellant alleges that the trial judge
    made several errors in his charge to the jury by: (1) failing to review the
    position of the defence; (2) erring in response to a jury question; (3) introducing
    a new theory of liability; and (4) giving an inadequate
Vetrovec
warning as to the key
    Crown witness.

Facts

[2]

On the evening of July 11, 2006, just before 9:30 p.m.,
    Kemar Brown was shot and killed in a rooming house at 219 Church Street,
    Toronto.  Four men were present at the
    time of the shooting:  Troy Hines, who
    lived in the room, the deceased, the appellant and Cardinal Senior.  Hines testified that it was the appellant who
    shot the victim.  Neither the appellant
    nor Senior testified.  The Crown led
    evidence indicating that when interviewed by the police, Senior claimed to have
    no memory of the shooting.

[3]

The Crowns case essentially rested on the evidence of
    Hines.  Hines had a serious criminal
    record, and was both a drug user and a dealer.  Before the trial, he had given conflicting
    accounts of the events leading up to the murder. At the time Hines identified
    the appellant as the shooter, he had received certain favours from the police,
    including release on bail in relation to other outstanding charges.  Hines also faced additional charges at the
    time he testified at trial.

[4]

Hines and Brown were friends and fellow crack cocaine
    dealers.  The two had met while selling
    drugs in the same crack house, six to eight months prior to Browns death.  Brown sometimes stayed in Hiness room, which
    he also used as a base for drug dealing.

[5]

Hines testified that on the night of the murder, Senior
    arrived at Hiness room with the appellant, whom he introduced to Hines as my
    boy.  Hines had never met the appellant
    before.  Not long thereafter there was a
    knock on the door.  The appellant rolled
    out of the chair in which he was sitting and knelt down on one knee.  Hines heard a click and saw the appellant
    loading a gun.  He told the appellant to
    chill out as he was expecting his girlfriend.  When Hines answered the door, Brown walked in and sat down.  The appellant stood up, turned the gun on
    Brown, and the following exchange took place:

Charles:         Remember
    me, pussy?

Brown:           Hey,
    man.  I dont have
no
problem with you.

Charles:         Do
    you remember me, pussy?

Brown:           Oh,
    man, yo, man, like I paid him.

Charles:         Youre
    lying, pussy.

Brown:           Hey,
    man, like I got $50 on me right now.  Take what money you have right now.

Charles:
            You remember me, pussy?

Brown:           Please, dont shoot me.

[6]

According to Hines, Charles then shot Brown three
    times. (The forensic evidence indicated that Brown was shot four times.) As he
    prepared to leave, the appellant pointed the gun at Hines but Senior
    intervened.  Senior and the appellant
    then fled the building.  Hines called for
    an ambulance, cleared his room of some drugs and drug paraphernalia, then went
    outside and flagged down a police car.  Brown died of the gunshot wounds shortly after they were inflicted.

[7]

Earlier that same day, Senior had attended Hiness
    room.  Senior and Hines were old friends
    and drug-dealing associates who had just re-united the day of the shooting.  Senior brought Hines drugs, and while they
    were in Hiness room, Brown arrived.  Senior and Brown did not know each other, but Hines introduced them and
    the three men socialized for approximately half an hour.  Brown was planning to come back to see Hines
    later that day, and Senior was also planning to return to bring more drugs.

[8]

Shortly after Senior and Brown left, Hines exited his
    room to go to the bathroom.  Through a
    window in the hallway, he saw Senior coming in from the roof of the
    building.  Hines asked Senior Whats up,
    man? and Senior replied, Just checking out my surroundings.  And I had some plans to do business in that
    building.

[9]

It was common ground at trial that the appellant,
    Senior and Hines were in the room when Brown was murdered.  The trial judge ruled that the defence was
    entitled to advance Senior as an alternative suspect.  The focus of the appellants defence and
    defence counsels cross-examinations was an all-out attack on Hiness credibility
    in order to suggest that Senior, not the appellant, was the shooter.

[10]

In addition to Hines, the Crown called,
inter alia
, a number of police witnesses
    and two civilian witnesses who had seen two men, allegedly the appellant and
    Senior, in the vicinity of the crime scene on the night of the murder and there
    was some evidence to suggest that the shooter had his hands in the pockets of
    the sweatshirt.  The Crown also filed a
    pathologists report to establish the cause of death.  Police witnesses testified as to various items
    belonging to the appellant that were found near the crime scene and at the
    appellants residence.  An expert witness
    testified that one particle of gunshot residue was found on a hooded sweatshirt
    taken from the appellants residence.  The sweatshirt corresponded to what the shooter allegedly wore on the
    night of the murder.  The Crown also called
    evidence of several phone calls the appellant made to Brown in the months
    leading up to the shooting in order to establish a connection between them.

[11]

Apart from cross-examining witnesses, the only evidence
    called by the defence was to recall the gunshot residue expert.  Defence counsel had asked the expert to examine
    the pockets of the hooded sweatshirt as there was some evidence to suggest that
    the shooter put his hands in the pockets of the sweatshirt.  The expert found no traces of gunshot residue
    in the pockets.  He testified that if
    someone had fired a gun and put his hands in the pockets, he would expect to
    find gunshot residue.

[12]

After a four week trial, the jury returned a verdict of
    guilty to first degree murder and the trial judge imposed the mandatory
    sentence of life imprisonment with no eligibility for parole for 25 years.

Issues

1.  Did the trial judge err by failing to put the
    position of the defence to the jury?

2.  Did the trial judge err in his response to a
    jury question relating to the involvement of Charles Senior?

3.  Did the trial judge err by leaving a
    speculative theory of planning and deliberation with the jury?

4.  Did the trial judge err by failing to give a
    proper
Vetrovec
warning about the witness Troy Hines?

Analysis

1.  Did the trial judge err by failing to put the
    position of the defence to the jury?

[13]

In his instructions to the jury, the trial judge
    provided the jury with standard legal instructions including the presumption of
    innocence, the burden on the Crown to prove the case beyond a reasonable doubt
    and how to deal with matters such as circumstantial evidence and prior
    inconsistent statements.  He also gave a
    detailed, witness-by-witness account of the evidence and a clear instruction on
    the legal elements of first degree murder.

[14]

The trial judge did not, however, follow the usual and
    accepted practice of specifically relating the evidence to the issues or
    setting out the respective positions of the Crown and the defence.  In his detailed summary of the evidence,
    virtually all of which was led by the Crown, the trial judge mentioned possible
    theories of liability, but at no point did he explicitly set out the Crowns
    position or explicitly instruct the jury on the position of the defence.  When the jury retired, defence counsel
    objected that the charge was unbalanced and that it failed to set out the
    defence position.  Without giving any
    explanation or reasons, the trial judge refused to bring the jury members back
    and give them any further instruction.

[15]

The appellant submits that the trial judges failure to
    set out the defence position amounts to an error of law warranting a new trial.
     Earlier in the proceedings, the trial
    judge had ruled that the defence could advance the theory that Senior was the
    killer.  As this became a central theory
    of the defence, the appellant submits that his right to a fair trial required
    the trial judge to explain to the jury the defence theory of the case: namely
    that
Senior
was the killer and not the appellant.

[16]

There is a long line of authority that requires trial
    judges to identify the issues raised by the case, to relate the evidence to
    those issues and to explain to the jury the positions of the parties.  In a passage that is often quoted on this
    point,
Taschereau
J. stated the following rule in
Azoulay
v. The Queen
, [1952] 2 S.C.R. 495,

at pp. 497-98:

The rule which has been laid
    down, and consistently followed is that in a jury trial the presiding judge
    must, except in rare cases where it would be needless to do so, review the
    substantial parts of the evidence, and give the jury the theory of the defence,
    so that they may appreciate the value and effect of that evidence, and how the
    law is to be applied to the facts as they find them.

See also
R. v. Colpitts
, [1965] S.C.R. 739;
R. v. Mahalingan
(2006), 80 O.R. (3d) 35 (C.A.).

[17]

In
R. v. MacKinnon
(1999), 43 O.R. (3d) 378
    (C.A.), Doherty J.A. reviewed this principle.  He noted that there was no particular approach or specific formula that
    had to be followed in every case, and that appellate courts should review the
    jury charge from a functional perspective.  He distilled the principle to these essentials, at p. 386:

By
    the end of the instructions, whatever approach is used, the jury must understand:

·

the
    factual issues which had to be resolved;

·

the law
    to be applied to those issues and the evidence;

·

the
    positions of the parties; and

·

the
evidence
    relevant to the positions taken by the parties on the various issues.

[18]

Doherty
    J.A. cited
R. v. Jacquard
, [1997] 1
    S.C.R. 314, at
para
. 14, where Lamer C.J. reiterated
    the need to relate the evidence to the issues and the position of the defence,
    but also cautioned against imposing a standard of perfection:

As long as an appellate court, when
    looking at the trial judges charge to the jury as a whole, concludes that the
    jury was left with a sufficient understanding of the facts as they relate to
    the relevant issues, the charge is proper.

Doherty J.A. also referred to
R.
    v. Cooper
,  [
1993]
    1 S.C.R. 146, at p. 163, per Cory J:

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

See also
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at paras.
108-109.

[19]

The overall effect of the authorities is to hold that
    failure to follow the accepted formula is risky and almost always fatal.  More is required than a serial review of the
    evidence.  The trial judge is expected to
    relate the evidence to the issues and the positions of the parties.  However, we are to apply a functional test.  If we are satisfied that the charge as a whole
    conveyed to the jury a sufficient understanding of the issues and the facts as
    they relate to the charge faced by the appellant, the appeal must be dismissed.

[20]

The issue for us in this case is the following: despite
    the trial judges failure to clearly and explicitly set out the defence
    position, did his instructions provide the jury with the assistance it required
    to decide the case fairly and according to the law?  For the following reasons, I conclude that the
    instructions were adequate to meet the needs of this case, and that while the
    trial judges approach was ill-advised, it did not result in a reversible error
    in the singular circumstances of this case.

[21]

The defence position was not complicated.  The appellant conceded that he was one of four
    people in the room when Brown was murdered.  No one suggested that Hines was the shooter.  The appellants defence was simply this: Hines
    was a disreputable witness and an acknowledged liar who had incentives to
    assist the police.  Senior was Hiness
    friend and drug-dealing associate, and there was evidence that Hines feared
    reprisals from Senior as well as friends of the deceased.  Hiness evidence that it was the appellant, and
    not Hiness old friend and associate, Senior, who had shot Brown, could not be
    believed.  As the appellant did not
    testify, and as he offered no evidence to point the finger at Senior, his
    defence, including the alternative suspect theory, essentially rested upon an attack
    on Hiness credibility.

[22]

While this was a four week trial, the ultimate issue
    was quite simple and straightforward: was the appellant the man who shot Brown?
     It would have been obvious to the jury
    that there were only two possible shooters: the appellant and
Senior
.  If the jury
    believed Hines, the appellant was the shooter.  If the jury did not believe Hines, or was left
    with a reasonable doubt, the shooter was or could have been Senior.

[23]

It is my view that when the jury instructions are read
    against the backdrop of the way the evidence was presented and the closing
    addresses of counsel, the jury would have understood each of the four key elements identified in
MacKinnon
, namely: (1) the factual
    issues which had to be resolved; (2) the law to be applied to those issues and
    the evidence; (3) the positions of the parties; and (4) the evidence relevant
    to the positions taken by the parties on the various issues.

[24]

The key factual issue to be resolved was whether the
    appellant was the shooter.  The trial
    judge repeatedly instructed the jury that to convict the appellant, they had to
    be satisfied beyond a reasonable doubt that it was the appellant who shot
    Brown.

[25]

The trial judges explanation of the law to be applied
    to that issue is not challenged.

[26]

Although the trial judge did not explicitly state the
    defence position, the jury must have understood that it involved two
    propositions that were flip sides of the same coin.  Hiness evidence that the appellant was the
    shooter could not be believed, and that meant that Senior must have been the
    shooter.

[27]

The trial judge reviewed Hiness evidence at great
    length and in significant detail.  He
    gave a strong
Vetrovec
warning (to
    which I will return below), cautioning the jury that it would be dangerous to
    convict on the basis of Hiness evidence without confirmatory evidence.  The trial judge reviewed Hiness alleged prior
    inconsistent statements and inconsistencies in considerable detail.  The core of the defence theory was that Hines
    could not be believed and that theory was adequately presented to the jury.

[28]

This was not a case where the defence raised any issue
    apart from the frailties of the Crowns case.  The alternative suspect theory operated by way
    of default.  If Hiness testimony that
    the appellant shot Brown could not be believed, then the killer must have been
    Senior.  In his painstaking review of the
    evidence, the trial judge explained those frailties, as they had been drawn out
    by defence counsels vigorous cross-examination of Hines. The jury must have
    understood that the appellants strenuous attack on Hines could only support
    the alternative suspect theory of Senior as the shooter.

[29]

While it certainly would have been preferable for the
    trial judge to have explained the defence theory more explicitly, I am satisfied
    that, at the end of his charge, the jury must have understood what the defence
    position was and what evidence was relevant to that position.

2.  Did the
    trial judge err in his response to a jury question relating to the involvement
    of Charles Senior?

[30]

After one day of deliberation, the jury asked the
    following question:

If we/I are
    satisfied that Todd Charles and Cardinal Senior may have been involved in the
    planning and execution of the murder of Kemar Brown and considering the fact
    that Cardinal Senior has not been charged with murder in this case and not
    knowing with certainty who pulled the trigger, does the law require us/me to find
    Todd Charles guilty?

[31]

The trial judge sought submissions from counsel but did
    not vet his answer.  He answered the
    question by instructing the jury to focus on Todd Charles:

First of all, the issue in the trial is
    whether Todd Charles to use the wording of your question was involved in the
    planning and execution of the murder of
Kemar
Brown.

My concern is that the focus on Cardinal Senior can become a
    distraction.  There is lots of evidence
    about Cardinal Senior and his participation, and I am sure you will pay very
    close attention to all of that evidence, and I am not suggesting to you for a
    moment that you should not but the issue in this trial is whether Todd Charles
    is guilty of the offence, not Cardinal Senior so I would ask you to start by ...
    focusing in on Todd Charles.

[32]

Then, referring to the part of the question stating
    that Charles and Senior may have been involved in the planning and execution
    of the murder the trial judge stated:

... [L]
et
us take Cardinal Senior out of it for a second. The issue is whether you are
    satisfied beyond a reasonable doubt that Todd Charles was involved in the
    planning, deliberation and carrying out of the murder.

Whether you
    are satisfied on the evidence that Cardinal Senior was involved is not the
    question. The question is Todd Charles involvement.

[33]

The trial judge then instructed the jury not to
    speculate about why Senior had not been charged with murder, as there were many
    reasons why that might have occurred and there was no evidence to indicate why
    he was not charged:

Do not give any
    consideration to the fact that Cardinal Senior was not charged with murder. It
    is not about Cardinal Senior. It is about Todd Charles.  I recognize Cardinal Senior figures in this
    piece. Mr. Hines evidence, the evidence on the video and so on.  He identifies them.  Of course you have to consider all of that
    evidence but the fact that Cardinal Senior was not charged is not an issue
    before you.

[34]

With respect to the final part of the question  and
    not knowing with certainty who pulled the trigger, does the law require me to
    find Todd Charles guilty?  the trial judge stated:

[T]o find Todd
    Charles guilty of first degree murder, Crown counsel must prove each of these
    elements beyond a reasonable doubt[,] that Todd Charles caused the death of
Kemar
Brown; that he caused the death of
Kemar
Brown unlawfully; that he had the state of mind for
    murder; and that the murder was planned and deliberate.

If
    you are not satisfied beyond a reasonable doubt that Todd Charles caused the
    death of Kemar Brown by shooting him, then Todd Charles is entitled to the
    benefit of reasonable doubt and the law does not require you to convict. []

I would repeat what I
    said. I urge you not to become distracted by issues involving the liability or
    not of Cardinal Senior.  Focus on the
    defendant and whether the charge against the defendant is proven beyond a
    reasonable doubt.

I hope that answers your
    question.  It is as close as I could
    come, and I will let you retire to continue your deliberations.

[35]

Less than two hours later, the jury reported that it
    had reached an impasse and could not arrive at a verdict.  The trial judge gave a standard exhortation
    and, three hours later, the jury returned its guilty verdict.

[36]

The appellant argues that that the trial judges response
    to this question was deficient for the following reasons:

1)

it
    took the alternative suspect defence away from the jury by telling it not to
    consider Seniors liability;

2)

it
    left open the possibility that the jury might convict on a theory of party liability;
    and

3)

it
discouraged the jury from asking further questions.

[37]

I do not agree that the trial judges answer took away
    the alternative suspect theory of the defence.  The trial judge emphasized in his answer to
    the question, as he had in his charge, that to find Todd Charles guilty of
    murder, the jury had to be satisfied beyond a reasonable doubt that Charles had
    caused the death of Kemar Brown.  The
    trial judge did not tell the jury to ignore the evidence about Seniors
    involvement.  He reminded the jury that
    there was lots of evidence about Cardinal Senior and his participation and he
    encouraged the jury to pay very close attention to all of that evidence.  The trial judge did not err by instructing the
    jury to avoid becoming distracted by the fact that Senior had not been charged
    with murder.  He reminded the jury that
    there was no evidence on the point and, in any event, it had no bearing on the
    appellants guilt or innocence.  Finally,
    I note that neither during the pre-answer submissions nor after the question
    was answered did the appellants very diligent trial counsel suggest that
    either the question or the answer prejudiced the alternative suspect theory of
    the defence.

[38]

Nor do I accept the submission that the trial judges
    answer opened the possibility that the jury might convict the appellant on a
    party liability theory.  The risk that
    the jury might be considering some form of party liability was squarely
    addressed by counsel in their submissions to the trial judge before he answered
    the jurys question.  In his answer, the trial
    judge clearly instructed the jury members that to find the appellant guilty,
    they had to be satisfied beyond a reasonable doubt that the appellant had
    caused Browns death.  He warned them not
    to be distracted by what role Senior might have played in the murder.  In my view, this effectively took any
    suggestion of party liability off the table and left the jury members with a
    clear instruction that they could only convict the appellant if they found that
    he was the shooter.

[39]

Finally, I do not agree that the concluding portion of
    the answer unduly discouraged the jury from asking any further questions.  It took a considerable period of time for the
    trial judge to get the submissions of counsel and to formulate his answer.  His rather apologetic statement  It is as
    close as I could come  should be read in that light.

3.  Did the
    trial judge err by leaving a speculative theory of planning and deliberation
    with the jury?

[40]

The trial judge advised the jury to consider the
    observations of witness Mark Alton, which arguably placed two black men on a
    rooftop adjacent to 219 Church Street
prior
to the murder.  The appellant argues that
    this statement by the trial judge left a speculative theory of planning and
    deliberation with the jury.  The
    appellant points out that neither party had referred to this evidence in their
    arguments, and that the Crown had actually invited the jury to find that Alton
    had seen the appellant and Senior
after
the murder, in order to corroborate Hiness account of their escape route.  The appellant contends that, fairly read,
    Altons evidence was incapable of supporting the inference drawn by the trial
    judge.

[41]

I agree that Alton was uncertain in his evidence as to
    when he saw the two black men on the roof adjacent to 219 Church Street.  At one point in his evidence, he did fix the
    time between 8:15 to 8:30 p.m.  In the
    end, however, he was uncertain of the time.  The trial judge may have overstated the effect
    of Altons evidence when he told the jury that Alton saw two men on the
    roofand he places the time between 8:15 p.m. and 8:30 p.m.  Altons statement would put the appellant and
Senior
on the roof before the murder, providing evidence
    capable of supporting an inference that the men were there planning their
    escape after the murder they planned to commit in Hiness room.

[42]

However, I disagree that this overstatement of Altons
    evidence could have had any practical bearing on the verdict.  The trial judge instructed the jury members that
    it was their recollection of the evidence, not his, that mattered.  Moreover, I agree with the respondent that if
    the jury was satisfied by Hiness evidence that the appellant shot the victim, then
    a finding that the murder was planned and deliberate was virtually inevitable.  There was evidence that the appellant knew
    Brown prior to the shooting and that he had a pre-existing motive to kill Brown
    over a drug debt or other financial dispute.  The appellant had come to Hiness room, armed with a gun and ammunition,
    with seemingly no other purpose than to lie in wait of Browns arrival to
    settle the account.  The evidence before
    the jury provided a firm basis to find that the murder was planned and
    deliberate.

4.  Did the
    trial judge err by failing to give a proper
Vetrovec
warning about the witness Troy Hines?

[43]

As already indicated, the trial judge gave a
Vetrovec
caution with respect to Troy
    Hines. He told the jury that it would be dangerous to convict on the basis of
    Hiness evidence without supporting evidence.  Hines had a lengthy criminal record and, as he
    faced unrelated criminal charges, he stood to gain from cooperation with the
    police.

[44]

The appellant alleges two errors in the trial judges
Vetrovec
warning.

[45]

First, the appellant contends that the trial judge may
    have minimized Hiness motive to testify favourably for the Crown.  Hines was in custody on unrelated charges
    when he was interviewed by the police.  Shortly
    after Hines changed his initial story and identified the appellant as Browns
    killer, the investigating homicide officers intervened with the Crown to have
    Hiness bail conditions altered so that he could be released using his
    girlfriend as a single surety.  After
    explaining to the jury that the incentive to secure favours of this kind should
    be taken into account when assessing Hiness credibility, the trial judge added
    that time spent in pre-trial custody is typically taken into account during sentencing.

[46]

The appellant contends that, by mentioning the enhanced
    credit normally given for pre-trial custody, the trial judge suggested that
    Hiness release on bail in exchange for co-operation with the authorities was
    of reduced importance.  Hines was never
    asked at trial whether he was content to stay in custody in order to earn
    enhanced credit, and the reference to credit for pre-trial custody improperly
    invited the jury to minimize one of Hiness motives to lie.

[47]

The trial judges explanation of credit for pre-trial
    custody was unnecessary and beside the point.  On the other hand, it was an accurate statement
    of the law and I do not agree that the jury would have taken it as undercutting
    the force of the trail judges warning that Hines had something to gain from
    the police when he changed his initial story and implicated the appellant.  I note that the appellants trial counsel took
    no objection to this aspect of the charge at trial.

[48]

The second alleged error with respect to the
Vetrovec
warning is
    that the trial judge refused to allow defence counsel to refer in his closing
    address to Hiness outstanding firearms charges.  Hines was arrested the day before his
    testimony on various charges, including uttering death threats, assault and
    several firearms offences, all arising from an altercation with his common law
    wife.  Defence counsel cross-examined
    Hines extensively on the fact that he was facing these charges.  After Hines testified, but before counsel made
    their closing addresses to the jury, the firearms charges were dropped because
    of an expert report indicating that the items in question did not fall within
    the definition a firearm.

[49]

The Crown raised the concern that defence counsel would
    paint Hines as a gun-toting individual in his closing address, a label that
    no longer attached in view of the withdrawal of the firearms charges.  The trial judge ruled that defence counsel
    could refer the fact that Hines was facing criminal charges at the time he
    testified, but could not refer to the charges as firearms charges.  The appellant argues that he should have been
    allowed to paint the full picture of the Sword of Damocles hanging over Hines
    at the moment he testified.

[50]

I do not agree that the trial judge erred by limiting
    defence counsel in this manner.  Defence
    counsel was still able to point to the fact that Hines, who was facing criminal
    charges when he testified, might have hoped to gain from giving evidence
    favourable to the Crown.  The trial judge
    instructed the jury to the same effect:

You have heard that Mr. Hines is charged
    with a series of criminal offences arising out of an altercation with his
    common law wife on April 27th, 2008.  The
    trial has not yet been held.  A person
    who is awaiting trial himself on charges may have an interest in testifying
    favourably for the Crown in this trial.  He
    may believe that favourable testimony here will help him out with this case
    later.  You should approach the evidence
    of Mr. Hines with caution in this regard.

[51]

I agree with the respondent that it fell within the
    trial judges discretion to place a modest limit on defence counsel, with a
    view to ensuring that the jury was not misled into believing that Hines might
    have been guilty of offences involving firearms.  Defence counsel was still able to make the
    crucial point that a Crown witness facing outstanding criminal charges may hope
    to gain by testifying in favour of the Crown, and that important point was
    reinforced by the trial judge in his
Vetrovec
instruction.

Conclusion

[52]

Accordingly, despite the capable arguments advanced by Mr.
    Dineen and Ms. Morton on behalf of the appellant, I would dismiss the appeal from
    conviction.

Robert J. Sharpe J.A.

I agree David Watt
    J.A.

I agree Karakatsanis
    J.A.

RELEASED:  March 24,
    2011


CITATION: R. v. Collins, 2011 ONCA 182

DATE: 20110307

DOCKET: C51258

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Rosenberg and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Susan Collins

Applicant  (Appellant)

Michael Dineen, for the applicant/appellant

Dena Bonnet, for the respondent

Heard: January 21, 2011

On appeal from the sentence imposed by Justice G. Patrick
          Smith of the Superior Court of Justice dated October 20, 2009.

Rosenberg J.A.:

[1]

The principal issue in this sentence appeal is the application of the
    principles set out in s. 718.2(e) of the
Criminal Code
, R.S.C. 1985 c.
    C-46

and
R. v. Gladue
, [1999] 1 S.C.R. 688 to an aboriginal
    offender involved in a serious fraud on the public.  The appellant pleaded
    guilty to one count of fraud over $5,000, for her part in a much larger fraud directed
    at the Ontario Works program delivered on the Fort William First Nation (FWFN).
     G.P. Smith J. imposed a sentence of 16 months incarceration followed by two
    years of probation, and made a restitution order for $96,000. The appellant submits
    that the sentencing judge misapplied the
Gladue
principles and erred in
    failing to impose a conditional sentence of imprisonment.  In the alternative,
    the appellant submits that the length of the prison sentence should be
    reduced.  For the following reasons, I would allow the appeal and reduce the
    sentence of imprisonment to ten months.

THE FACTS

The General Scheme

[2]

Social assistance benefits are delivered in Ontario under the authority
    of the
Ontario Works Act, 1997
, S.O. 1997, c. 25, Sched. A. The Ontario
    Works program provides temporary financial assistance to Ontario residents most
    in need while they satisfy obligations to become and stay employed.  First
    Nations territories in the province are exempt from the search-for-work
    requirements of the Act.  The FWFN is a federal reserve adjacent to the City of
    Thunder Bay. The Ontario Works program is administered on the FWFN through a
    local delivery agent office using specialized software systems that maintain a
    client database.   The FWFN Ontario Works program computer system is separate
    from the networked computer systems utilized by the FWFN Band administration
    for other programs, and is independent from the networked system of the
    Province of Ontario. For this reason, the Province cannot electronically
    monitor the FWFN social assistance database.

[3]

Between 2000 and 2002, the FWFN Ontario Works program administrator was
    Shirley Allan.  Her role was to validate client records and applications, and authorize
    benefit payments to clients who met eligibility criteria.  Upon Ms. Allans
    authorization, the computer software would print out benefits cheques in the
    name of clients, in amounts determined by the software based on family size and
    declared needs.  During the same time, Rochelle Johnson was the Ontario Works
    case worker.  She is also the appellants sister.  Like Ms. Allan, Ms. Johnson received,
    validated and authorized client records and applications, and would approve or
    disapprove benefit payments.  Both were commissioners of oaths, and both swore
    oaths of confidentiality as part of their employment.

[4]

The fraudulent scheme was committed through the creation and
    authorization of false client applications.  False client files were created by
    the submission of fraudulent materials misrepresenting the residency and/or
    financial status of individuals. Some of the files had forged signatures or were
    not signed at all. Some formerly legitimate and de-activated files were
    fraudulently reactivated.  In all these cases, Ms. Allan and Ms. Johnson
    approved these applications and issued cheques. People complicit in the scheme
    would either cash the cheques for themselves or deliver them to the complicit
    payee and divide the proceeds upon redemption.  During the relevant time, only Ms. Allan
    and Ms. Johnson had access to the computer to generate and approve applications
    and cheques until Annabelle Bell was hired as a caseworker in the summer of
    2002.  Ms. Bell was not a suspect in the fraud.

[5]

The investigation into the fraudulent activity commenced on January 13,
    2003, when Walter Bannon, a participant in the fraud, initiated a complaint and
    turned over documentary evidence to the police.  Mr. Bannon named Shirley Allan
    as a participant, and encouraged Ms. Allan to contact the police herself, which
    she did on January 14, 2003.  Ms. Allan described in detail her own involvement
    in the scheme, as well as the participation of the other accused, including the
    appellant.

[6]

Several participants in the fraud were sentenced prior to the appellant.
    Shirley Allan, a central figure in the fraud, whose participation amounted to a
    breach of trust, but who co-operated in the police investigation, received a 26-month
    sentence.  Rochelle Johnson received a total sentence of two years.  Walter
    Bannon, whose involvement was similar to, but shorter than, the appellants,
    received a conditional sentence of two years less one day, in recognition of
    his cooperation. He had a significant criminal record. In addition, restitution
    orders were made against Mr. Bannon and Ms. Allan.  Giselle Thibert, who cashed
    $65,000.00 in cheques, was sentenced to nine months imprisonment; she had a
    related criminal record but it was shorter than Mr. Bannons.  Maurice Solomon,
    whose participation was limited to receipt of $3,000, received a six month
    conditional sentence order and a restitution order; he also had a criminal
    record.

[7]

The total estimated financial loss due to the fraudulent activity while
    the scheme was operating is $1.285 million.  The scheme led to the FWFN bank
    account often being in an overdraft position, which led to interest charges
    totalling approximately $17,000.  Some innocent people, whose identities were
    used in the scheme, suffered financially because, when they required social
    assistance, it was refused as they were already shown to be receiving assistance.

Appellants Participation in the Scheme

[8]

The appellant was one of the earliest participants in the scheme.  She
    was approached by family members employed by the Band and was asked to
    participate in this scheme. Her role was to provide identities for which false
    claims were created, and to cash the cheques issued on those files.  The
    appellant collected and cashed benefit cheques in several formats: cheques written
    in the appellants name; in her middle name; in the name of other individuals; and
    in her name as a trustee for beneficiaries.  All of these cheques were
    fraudulent. Some of the named individuals on the cheques were complicit in the
    fraud, while others were unaware that cheques had been issued in their name, or
    that their name was used as a beneficiary in the appellants trusteeship.  It
    was also alleged that the appellant stole at least three blank cheques which
    she made out in amounts totalling $15,500 payable to herself.

[9]

Handwriting analysis indicated that with two exceptions, one person had
    signed all the payee signatures and all the endorsements signing those cheques
    over to S. Collins or J. Collins.  The appellant used five separate banking
    accounts to process 67 cheques.  The total value of these 67 cheques was
    $96,298.51.

[10]

There was some dispute as to how much money the appellant actually kept
    and how much she kicked back to other participants in the scheme.  The synopsis
    of facts that was filed at the sentence hearing contains this statement:

The amount attributable to Susan Collins participation
    in this scheme is approximately $68,500.  This calculation is based on her
    collection of benefits as a fraudulent trustee, and as the third party to whom
    cheques were fraudulently signed over.

[11]

In his submissions on sentence, defence counsel was vague as to how much
    the appellant admitted receiving:

My client believes that the sum that she profited
    from that is substantially less [than $96,000] because part of the scheme was,
    We give you cheques in your name, you go cash it, we get the lions share of
    it, you get to get some of your gambling money out of it.  But obviously she
    didnt keep records in that regard.

[12]

Crown counsel in her sentencing submissions appeared to accept this
    submission, although she put it in an aggravating context:

And she was participating, assisting, actively
    engaged and the suggestion we hear today is that she was even paying
    kick-backs, that they were taking a chunk of the fraudulent monies that she was
    obtaining.  So shes very clearly actively participating in the breach of
    trust.

[13]

The money the appellant did receive went to feed her gambling addiction,
    either lost at the local casino or used to replace money from the family bank
    account that she lost gambling, in order to conceal her gambling from her
    husband.

[14]

The appellants husband believes that his wife was intentionally
    targeted and enticed into illegal activities because of her gambling addiction.
    A letter from the appellants pastor also touches on the same theme. The pastor,
    who has known the appellant and her family since 1972, indicated that
    participation in a welfare fraud was out of character for her, and surmised
    that she was influenced by family members:

It is unfortunate she got caught in the welfare
    fraud scheme with a lot of family and friends  family loyalty is a strong
    virtue on most reserves, which at times can open one to become participant with
    ones circles.

The Appellants Background

[15]

The appellant was 51 years of age at the time of sentencing, and had no
    criminal record. She was born in Thunder Bay, the fourth of ten children. Her
    father was born on a First Nation reserve in the Georgian Bay area, and had
    attended a residential school. He never spoke with his children about his
    experiences there. As a young man, he relinquished his treaty rights to become
    a Canadian citizen. The appellants mother was born and raised on the FWFN reserve,
    in a home riddled with substance abuse and violence. She married the appellants
    father at age seventeen and lost her aboriginal status as a result of her
    husbands earlier enfranchisement. After they married, the appellants parents
    lived as outcasts on the periphery of the FWFN community since they no longer
    had the right to live in the reserve community. None of their children held
    Indian status, and the family was discriminated against because they were not
    considered to be part of the aboriginal community. The children routinely
    witnessed violence between their parents.

[16]

The appellant was seven when her father left the home, leaving her
    mother to care for ten children, without eligibility for any social assistance
    from her own community. Eventually, they were able to move into a home on the
    reserve, but the children were shunned and ostracized by community members
    because of their lack of status.  The appellants mother believes that many of
    the problems her children faced in their adult lives can be traced to the
    racism they experienced from their own community during their childhood years.

[17]

Historically, the FWFN was a prosperous community due to the economic
    gains of commercial fishing.  Many of the children in the community attended a
    school in Squaw Bay, which was administered by the Roman Catholic Church. The
    majority of the community members abandoned their cultural practices when they
    adopted the Catholic faith, which continues to have a strong following on the
    reserve. The prosperity and wellness of the FWFN began to decline for several
    reasons, not least of which was the dislocation of community members due to
    attendance at the residential schools.  When the children returned as young
    adults they lacked connection to their community and heritage.  Substance
    abuse, family violence and cases of sexual abuse increased.  Changes in the
    economy resulted in unemployment that encompasses the majority of its members.  Most
    community members live below the poverty line.

[18]

The appellant married her husband in 1980, and gained aboriginal status
    rights at that time.  The appellants mother, along with her ten children,
    regained native status rights in 1985, when the Canadian Government passed Bill
    C-31.

[19]

The appellant had a child from a previous relationship, and had three
    more children with her husband.  Their youngest daughter suffered a stroke two
    weeks after her birth, leaving her with permanent brain damage and paralysis.
    The appellant has been her fulltime caregiver for the last eighteen years. The
    appellants husband was the Chief of the FWFN at the time of the offence. He is
    the sole provider in the household. Their marriage has suffered through
    hardships over the years.  While neither have a history of substance abuse, their
    children have not been as fortunate. Their oldest son is currently serving a
    federal term of incarceration. The appellant suffers from a gambling addiction,
    which her husband has financed throughout the years. Her gambling has led to
    stress in their marriage.

[20]

The appellant was willing to make restitution and defence counsel indicated
    that he had $10,000 in his trust account that was immediately available for
    that purpose.

[21]

Prior to sentencing, the appellant suffered from three brain aneurysms,
    one of which required surgery in 2005. Her memory began to deteriorate, and as
    a result, she was referred for a neuropsychological assessment in December
    2007. The report from the assessment noted that the appellants IQ falls in the
    extremely low range compared to other people her age. Her working memory and
    verbal comprehension were low average in comparison to people in her
    education group (grade 8). The report also noted the appellants processing
    speed was poor. While her condition has stabilized, she suffers from a decline
    in memory, language and processing speed that is most likely connected to her
    aneurysms.

Other Community Information

[22]

The pre-sentence report indicates that the large fraudulent scheme has
    divided and severely damaged the relationships of many families on the First
    Nation.  This is evident from letters filed at the sentence hearing.  Letters
    addressed to the Crown Attorney from several Elders of the community urge that
    the perpetrators of the fraud be prosecuted to the full extent of the law and
    not given community service.  The letters particularly target the appellants
    husband, who was Chief during the time of the fraud and who they claim must
    have known of the fraud perpetrated by the appellant and several of her
    relatives.  (The Crown made no allegation that the appellants husband was
    involved in the fraud.)  Letters to the appellants trial counsel that were
    filed at the sentence hearing are quite different.  They describe the appellant
    as a loving mother and devoted wife and urge that the family be kept together
    and that the appellant be required to reimburse the community through
    restitution and community service rather than imprisonment.

THE TRIAL JUDGES REASONS FOR SENTENCE

[23]

The trial judge held that in major fraud cases denunciation and
    deterrence are the paramount considerations and that mitigating factors and
    rehabilitation of the accused become secondary.  The trial judge discussed at
    length the impact of s. 718.2(e),
Gladue
and this courts decision in
R.
    v. Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.).  The trial judge referred
    to his own reasons for sentence in another case in these terms:

A sentencing judge must perform a three-way
    balancing act  that is, the judge must balance the competing sentencing
    principles, the interests of the offender, and the interests of the community
    before reaching a conclusion. How this differs from the balancing that is
    performed in the sentencing of non-Aboriginal offenders is that the interests
    of the offender will be different. There will be a focus on the past
    circumstances of the offender that may have brought him or her before the
    court, such as addiction, abuse, poverty, just to name a few. There should also
    be a consideration of the communal values of the Aboriginal heritage, and an
    analysis of whether the offender would have a better opportunity of
    rehabilitation if he is sentenced within his community where he can receive
    spiritual guidance from band elders, or other rehabilitative techniques that
    are culturally specific.

[24]

The trial judge considered the principles to be applied where a
    conditional sentence of imprisonment was sought and referred, in particular, to
R. v. Wells
, [2000] 1 S.C.R. 207.  As applied to fraud cases, the trial
    judge held that factors to be considered are the amount of money involved, the
    time period over which the fraud took place, the likelihood of restitution,
    display of remorse and the role played by the offender in the fraud.  The trial
    judge noted the size of the entire fraud and accepted that the appellants
    personal participation was in the sum of $96,289.51, of which she retained approximately
    $65,000 for her own benefit.  He considered the appellant to have been an
    active participant in the fraud and that her acts in finding and supplying
    false identities were crucial to the opening of false files.  He found that the
    length of time of the fraud and the significant degree of planning and
    participation were aggravating factors.  The trial judge found that the
    appellants motivation was simply greed, fuelled in part by her admitted
    gambling addiction.  The appellant did not offer any co-operation in
    uncovering the fraud and her involvement ended only when she was apprehended.
    He thought it unlikely that the appellant would be able to make full
    restitution.

[25]

The mitigating factors identified were the appellants guilty plea, age,
    lack of prior record, her health issues and her responsibility for caring for
    her disabled daughter.  The trial judge, however, minimized these latter two
    factors.  He noted that the medical evidence did not show any current concerns
    for the appellants own health.  As far as the appellants daughter, the trial
    judge found that there was no evidence that she could not function without the
    appellants assistance or that incarcerating the appellant would place her
    daughter in jeopardy.  He said this:

If [the daughter] requires so much of her mothers
    care that jail would jeopardize her care, one cannot but wonder why the accused
    spent so many hours gambling away the proceeds of her share of the fraud in the
    local casinos.

[26]

The trial judge then turned to application of what he termed the
    so-called Gladue factors that have contributed to bringing Susan Collins
    before the Court.  The trial judge reviewed the information concerning
    systemic factors on the FWFN generally and then said as follows:

Notwithstanding the evidence that the poverty and
    suffering on the Fort William First Nation Reserve is considerable and that the
    residential school experience is in part responsible,
I find that the
    evidence does not support the argument that systemic factors are responsible
    for bringing the accused before the court
. In any event, this is the type
    of case referred to in
Wells
where the seriousness of the crime and need
    for denunciation take precedence over any other considerations.

On this point, I adopt the comments of Richards
    J.A. in
R. v. Gopher
, [2006] S.J. No. 12 (C.A.), who said, at para. 39,
    that:

No community,
    aboriginal or non-aboriginal, can succeed and move forward unless its members
    have faith that public affairs are conducted honestly and in accordance with
    the law. The significance and nature of the offences at issue in this case and
    the overwhelming need to clearly denounce them and to deter similar offences,
    tend to leave little room to give effect to the unique circumstances of
    aboriginal offenders (emphasis added).

It is clear that Ms. Collins did not have an
    easy upbringing however the responsibility for what she has done must be hers.
    She made a choice to become involved in the fraudulent scheme and she actively
    became a key player
. She had numerous opportunities to resile from the
    scheme but chose to stay involved. Her actions have hurt and divided her
    community. They have also caused damage to those whose identities were stolen
    as well as some who were not able to receive benefits because their names have
    been used in the fraud. [Emphasis added.]

[27]

The trial judge concluded that a conditional sentence would not reflect
    the seriousness of the offence, the moral blameworthiness of the appellant, the
    need for general deterrence, sentences imposed in similar cases and the degree
    of the appellants participation.  The trial judge also noted that confidence
    of Band members and the public confidence in the Band administration and
    Aboriginal leaders to manage their affairs and govern themselves had been
    severely damaged by the fraudulent scheme.  He concluded with this comment:

Each individual must be accountable for their own
    actions.  Blaming others, your upbringing or minimizing ones participation
    cannot, generally speaking for serious crimes such as large scale fraud,
    absolve a person from the consequences of their actions.

THE FRESH EVIDENCE

[28]

With the consent of the Crown, the appellant filed fresh evidence
    consisting of the following:

A certificate of completion of a brief (4 day)
    gambling information and treatment group;

A Band Council Resolution supporting consideration
    of restorative justice alternate conditional sentence rather than
    incarceration;

A letter from an Elder indicating that the
    appellant realized that she had a gambling addiction and is willing to continue
    to seek help for that addiction;

Letters confirming the appellants volunteer work,
    including work at an Addictions Awareness Conference in 2010 and at the FWFN
    Annual Pow-wow.

ANALYSIS

[29]

Counsel for the appellant submits that the trial judge erred in two
    respects.  He erred in his application of s. 718.2(e) as interpreted in
Gladue
and
Wells
from the Supreme Court of Canada and
Kakekagamick
from
    this court.  Second, he erred in imposing a sentence that was excessive in the
    circumstances.

[30]

I agree with the appellant that the trial judge erred in his application
    of
Gladue
,
Wells
and
Kakekagamick.
The error is presented
    most starkly in this passage from the trial judges reasons:

Notwithstanding the evidence that the poverty and
    suffering on the Fort William First Nation Reserve is considerable and that the
    residential school experience is in part responsible,
I find that the
    evidence does not support the argument that systemic factors are responsible
    for bringing the accused before this court.
In any event, this is the type
    of case referred to in
Wells
where the seriousness of the crime and the
    need for denunciation take precedence over any other considerations.

[31]

This theme was picked up again at the conclusion of the trial judges
    reasons:

Each individual must be accountable for their own
    actions.  Blaming others, your upbringing or minimizing ones participation
    cannot, generally speaking for serious crimes such as large scale fraud,
    absolve a person from the consequences of their actions.

[32]

There is nothing in the governing authorities that places the burden of
    persuasion on an Aboriginal accused to establish a causal link between the
    systemic and background factors and commission of the offence.  Further, s.
    718.2(e) and the
Gladue
approach to sentencing Aboriginal offenders is
    not about shifting blame or failing to take responsibility; it is recognition
    of the devastating impact that Canadas treatment of its Aboriginal population
    has wreaked on the members of that society.

[33]

As expressed in
Gladue
,
Wells
and
Kakekagamick
, s.
    718.2(e) requires the sentencing judge to give attention to the unique
    background and systemic factors which may have played a part in bringing the
    particular offender before the courts:
Gladue
at para. 69.  This is a
    much more modest requirement than the causal link suggested by the trial
    judge.  As counsel for the appellant submitted in this case, it would be almost
    impossible for most Aboriginal offenders to establish a direct causal link
    between systemic factors and any particular offence.  Commission of offences
    are affected by a host of circumstances, the systemic factors of the particular
    Aboriginal community may, as the name suggests, be nothing more than the
    background or the setting for commission of the offence.  However, the
Gladue
principles require those factors to be taken into account.  In cases where
    those factors are shown to have played a significant role, it may be that
    imprisonment will utterly fail to vindicate the objectives of deterrence or
    denunciation:
Gladue
at para. 69.  In other cases, where the impact is
    not as dramatic, those systemic and background factors must nevertheless be
    taken into account in shaping the appropriate penal response.

[34]

It seems to me that the systemic and background factors affecting the
    FWFN generally, and the appellant in particular, must have played a part in
    bringing her before the courts.  Her earliest years were shaped by abject
    poverty.  She grew up in an atmosphere of dislocation, discrimination, and
    alienation as a result of government policies that subjected her father to the
    ravages of residential schooling and deprived her mother, father and siblings
    of their rights as Aboriginals .  Her mothers upbringing was riddled with
    substance abuse and violence.  The appellant herself suffers from a severe
    gambling addiction.

[35]

Even if the systemic and background factors did not play a part in
    bringing the appellant before the courts, the
Gladue
principles still
    require recognition of the impact of Canadas treatment of its Aboriginal
    population in shaping the appropriate sentence.  The court is required to
    consider how this particular offender has been affected by those systemic
    factors.  As the court said in
Gladue
at para. 80:

As with all sentencing decisions, the sentencing of
    aboriginal offenders must proceed on an individual (or a case-by-case) basis:
    For this offence, committed by this offender, harming this victim, in this
    community, what is the appropriate sanction under the Criminal Code? What
    understanding of criminal sanctions is held by the community? What is the
    nature of the relationship between the offender and his or her community? What
    combination of systemic or background factors contributed to this particular offender
    coming before the courts for this particular offence?
How has the offender
    who is being sentenced been affected by, for example, substance abuse in the
    community, or poverty, or overt racism, or family or community breakdown?
Would imprisonment effectively serve to deter or denounce crime in a sense that
    would be significant to the offender and community, or are crime prevention and
    other goals better achieved through healing? What sentencing options present
    themselves in these circumstances?  [Emphasis added.]

[36]

And, as the court said at para. 81: Sentencing must proceed with
    sensitivity to and understanding of the difficulties aboriginal people have
    faced with both the criminal justice system and society at large.  And again,
    at para. 68:

It is true that systemic and background factors
    explain in part the incidence of crime and recidivism for non-aboriginal
    offenders as well. However, it must be recognized that the circumstances of
    aboriginal offenders differ from those of the majority because many aboriginal
    people are victims of systemic and direct discrimination, many suffer the
    legacy of dislocation, and many are substantially affected by poor social and
    economic conditions. Moreover,
as has been emphasized repeatedly in studies
    and commission reports, aboriginal offenders are, as a result of these unique
    systemic and background factors, more adversely affected by incarceration and
    less likely to be "rehabilitated" thereby, because the internment
    milieu is often culturally inappropriate and regrettably discrimination towards
    them is so often rampant in penal institutions
.  [Emphasis added.]

[37]

I conclude this discussion with the point made by LaForme J.A. at paras.
    34 and 35 of
Kakekagamick
:

Nor is being an Aboriginal offender, as I have
    heard it referred to, a get out of jail free card.

Rather, s. 718.2(e) was enacted as a remedial
    provision, in recognition of the fact that Aboriginal people are seriously
    over-represented in Canadas prison population and in recognition of the
    reasons for why this over-representation occurs.

[38]

Given the trial judges error in principle, it falls to this court to
    impose a fit sentence.  I acknowledge that this is a particularly difficult
    sentencing decision.  I accept the trial judges finding that the scheme, of
    which the appellant was a participant, had a serious impact on the First Nation
    and undermined public confidence in the First Nations ability to administer
    the social assistance system and governance generally.  The divisions in the
    community created by this fraudulent scheme are testified to by the letters
    filed at trial and on this appeal.

[39]

But there also must be a measure of proportionality.  The appellant was
    one of many involved; she did not bear entire, even primary responsibility, for
    administering either the social assistance system or the fraudulent scheme.
    The trial judge explicitly recognized this fact in both his reasons and in
    imposing a sentence of 16 months, which was less than that imposed on Ms. Johnson
    (two years) and Ms. Allan (26 months).  But that, in my view, is the central
    problem with the sentence imposed.  It was shaped by the trial judges
    assessment of the appellants level of participation in the broader scheme and
    without factoring in the
Gladue
principles.  When those factors are
    taken into account, a different sentence was required.  A sentence which
    admittedly must, as well, take into account the range of sentences imposed on
    the other perpetrators such as Giselle Thibert.

[40]

I have reluctantly concluded that this is not an appropriate case for a
    conditional sentence of imprisonment.  The offence was too serious and the need
    for general deterrence and denunciation overwhelming.  However, the
Gladue
principles mandated consideration of the least intrusive punishment consistent
    with the appropriate objectives.  As the court said in
Gladue
at para.
    93:  If there is no alternative to incarceration the length of the term must
    be carefully considered.

[41]

There are other factors at play as well, including: the long period of
    release on bail, the lack of criminal record, and the appellants service to
    the community.  I would also give more weight than the trial judge to the
    impact on the appellant of being separated from her disabled daughter.  It is
    one thing to be away from that child for a few hours a week spent gambling than
    to be completely removed from her for a period of months.  It is not just the
    impact on the child; the wrenching experience imprisonment would represent for

a mother who has devoted the past 18 years of her own life caring for her
    disabled child must be considered
.

[42]

In my view, the appropriate disposition would be a sentence composed of
    a relatively lenient period of incarceration to be followed by a lengthy period
    of probation.

DISPOSITION

[43]

Accordingly, I would allow the appeal from sentence and reduce the
    sentence of imprisonment to ten months to be followed by two years probation on
    the terms imposed by the trial judge.  I would not interfere with the
    restitution order.

Signed:           M. Rosenberg J.A.

I agree D. OConnor
    A.C.J.O.

I agree Robert P.
    Armstrong J.A.

RELEASED:  DOC MARCH 7, 2011


CITATION: R. v. Evans, 2011
      ONCA 241

DATE:  20110328

DOCKET: C50318

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Evans

Appellant

Catriona Verner, for appellant

Kim Crosbie, for the respondent

Heard:  March 25, 2011

On appeal from the sentence imposed by Justice Michelle Fuerst
          of the Superior Court of Justice dated March 14, 2008.

APPEAL BOOK ENDORSEMENT

[1]

We see no error.  The crux of the trial judges analysis as it relates
    to the reasonable possibility of eventual control in the community of the risk
    of reoffending appears in paras. 112 to 128 of her reasons.  We see nothing in
    the trial judges analysis that contradicts the approach taken in cases like
R.
    v. Payne
, at para. 138.

[2]

The trial judge, in the circumstances of this case, was not prepared to
    accept that the appellants risk of reoffending could be satisfactorily
    addressed through the controls available under an order made by the Parole
    Board.  We see no basis upon which to interfere with that assessment.

[3]

The appeal must be dismissed.


W
    A R N I N G

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

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

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

(a)

may,
    if application therefor is made by the prosecutor, and

(b)

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

(c)

he
    or she is discharged; or

(d)

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

(2)

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

(3)

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

(4)

[
Repealed
,
    2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.),
    s. 97; 2005, c. 32, s. 18.

CITATION: R. v. Floria, 2011
      ONCA 167

DATE: 20110301

DOCKET: C52757

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Doherty and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ioan-Florin Floria

Appellant

Ioan-Florin Floria, appearing in person

James V. Palangio and Chris Dwornikiewicz, for the respondent

Heard:  March 1, 2011

On appeal from the decision of Justice Nordheimer of the Superior
          Court of Justice dated September 22, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed for the reasons given by Nordheimer J.  For
    clarity, we add that the preliminary hearing judge was required to limit the
    evidence at the preliminary hearing so as to protect the information covered by
    the order of Croll J.  The manner in which the preliminary hearing judge
    performed that duty was within her jurisdiction and within her discretion.


CITATION:
R. v. Fraser, 2011
          ONCA 238

DATE:  20110328

DOCKET: C48724

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Fraser

Appellant

Phil Downes, for the appellant

M. David Lepofsky, for the respondent

Heard and released orally:
March 22, 2011

On appeal from the conviction entered by Justice Turnbull of
          the Superior Court of Justice, dated July 19, 2007.

ENDORSEMENT

[1]

The appellant was convicted of second degree murder
    after a trial by a judge sitting without a jury.  He was sentenced to life imprisonment without
    eligibility for parole for 12 years.  He
    appeals his conviction only.

[2]

The deceased, the estranged wife of the appellant, was
    a paraplegic.  The following findings of
    fact are not and cannot be successfully challenged on appeal and must be taken
    as the backdrop for the assessment of the grounds of appeal advanced:

The deceased died as a result of smoke inhalation
    caused by a fire in her home.

The appellant intentionally set the fire that
      caused his wifes death.  When he set the
      fire he knew that his wife, as indicated, a paraplegic, would be alone in her
    bed upstairs.

The appellant knew that the manner in which he
      set the fire would in all likelihood result in the homes becoming engulfed in
    flames sometime in the middle of the night.

The appellant knew that the deceased was not
      only severely physically handicapped and would have great difficulty getting
      out of the house, but also that the deceased was very afraid of a fire in the
      home and would in all likelihood panic when she became aware that the house was
      on fire.

[3]

In addition to the factual findings set out above, the
    trial judge ruled that a confession made by the appellant to the police was
    voluntary and admissible.  At the end of
    the trial, the trial judge held that the confession was reliable and
    constituted evidence that the appellant had started the fire intending to kill
    his wife, or at least intending to cause her bodily harm knowing that her death
    was probable.  The trial judge also
    relied on certain parts of the appellants statements in holding that he had a
    reasonable doubt as to whether the murder was planned and deliberate.  That doubt led to the acquittal on the first
    degree murder charge.

[4]

Counsel for the appellant argues that the trial judge
    failed to consider the effect of the failure of the police to video record
    their interaction with the appellant in the three-hour period prior to the
    confession.  Counsel submits that the
    trial judge should have considered that failure in the context of assessing the
    ultimate reliability of the appellants confession.

[5]

We cannot accept this submission.  The failure to record the three-hour interval
    before the confession does not
per se
adversely affect the reliability of the subsequent confession.  That confession was videotaped.  The failure to videotape the interaction
    between the appellant and the police in the time period preceding the
    confession does, however, alert the trier of fact to the need to carefully
    scrutinize both the interaction between the police and the accused during that
    time period and the explanation offered for not videotaping that interaction.  The trial judge did so in his ruling on the
voir dire
and in the context of his
    assessment of the voluntariness of the confession.  That ruling was not challenged on appeal.

[6]

On the evidence heard at trial (only the police
    officers evidence because the appellant did not testify on the trial proper),
    there was nothing that occurred during the non-recorded three-hour interval
    that could adversely affect the reliability of the subsequent videotaped voluntary
    confession.  It is not surprising that
    the trial judge did not retread the ground thoroughly covered on the
    voluntariness ruling.  The goings on
    during the non-videotaped interval were clearly relevant to the question of
    voluntariness, but once that issue was settled and absent any additional
    evidence on the trial, there was no need, in our view, for the trial judge to
    repeat his analysis of that part of the evidence.

[7]

What was important to the trial judges inquiry into
    the truthfulness of the appellants confession was his finding, based on other
    evidence, that the appellant had the exclusive opportunity to set the
    fire.  That finding went a long way toward
    establishing the reliability of the appellants confession that he had in fact
    set the fire.

[8]

The trial judge also found that comments made in the
    confession with respect to certain facts, for example, where the fire was
    started and the manner in which it was started were consistent with the
    objective evidence.  This also buttressed
    the ultimate reliability of the confession.

[9]

In sum, we think that the trial judge did not refer to
    what happened during the interval when the interaction between the police and
    the appellant was not videotaped, because based on the evidence adduced on the
    trial, nothing had occurred during that time period that had any significance
    to his assessment of whether the appellants voluntary confession was truthful.

[10]

Finally, we note that the trial judge wrongly applied
    the reasonable doubt standard to his determination of the reliability of the appellants
    confession.  That error inured to the
    appellants benefit.

[11]

Counsel, quite properly in our view, conceded that if
    he could not succeed on the first ground of appeal, his other arguments did not
    warrant a new trial.  We do not propose
    to deal with those grounds in any detail.  With respect to the second ground of appeal, the alleged inconsistent
    findings made by the trial judge in respect to certain after-the-fact conduct,
    we say only that we do not accept that the trial judge indeed made inconsistent
    findings.  We think the finding on the
voir dire
relates only to the effect of
    the appellants admitted lie to the police on his testimonial credibility.  The appellant had testified on the
voir dire
.  The trial judges finding in his reasons for
    judgment concerning the appellants post-offence conduct addresses a much
    broader course of conduct by the appellant.  That conduct could support a finding of consciousness of guilt.  In any event, the trial judge made it clear
    that this part of the evidence played a relatively minor role in his overall
    assessment of the case.

[12]

The third ground of appeal was not argued in oral
    submissions by counsel.  We cannot accept
    that the trial judge made any error in his application of the
W.D.
principle.  He specifically referred to and applied that
    principle in his reasons for judgment (see pp. 2281-82).

[13]

The appeal is dismissed.

Doherty J.A.

Gloria Epstein J.A.

H.S. LaForme J.A.


CITATION:
R. v. Fraser, 2011
          ONCA 197

DATE: 20110311

DOCKET: C52262

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Mansa Adisa Fraser

Appellant

Kate Oja, for the appellant

Maria Stevens, for the respondent

Heard and endorsed: March 8, 2011

On appeal from sentence imposed by Justice Zivolak for the
          Ontario Court of Justice dated March 17, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The sentencing judge did not advert to pre-sentence custody in her
    reasons. As the reasons do not disclose whether she took pre-sentence custody
    into account, in our view, the reasons reflect an error in principle.

[2]

Leave to appeal is granted. The appeal is allowed and the sentence on
    the robbery charge is reduced by 80 days.


CITATION:
R. v.
Gacek
, 2011 ONCA 205

DATE:  20110315

DOCKET: C51163 and C52963

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

David
Gacek

Appellant

David Gacek, in person

Suzan E. Fraser,
amicus
          curiae
for the appellant

Amanda
Rubaszek
, for the Attorney
          General

Jean
Buie
, for the Centre for
          Addiction and Mental Health

Heard and released orally: March 10, 2011

On appeal from the Dispositions of the Ontario Review Board
          dated August 31, 2009 and September 22, 2010.

ENDORSEMENT

[1]

Mr. Gacek appeals from Dispositions of the Ontario
    Review Board dated August 31, 2009 and September 22, 2010. Both
    Dispositions make detention orders. The 2009 Disposition detained Mr. Gacek at
    the minimum security unit at CAMH. The 2010 Disposition detains the appellant
    in the General Forensic Unit at CAMH, which is also a minimum security unit.
    Both dispositions permit Mr. Gacek to live in the community in the Greater
    Toronto Area in accommodation approved by the person in charge at CAMH. In its
    2010 Disposition, the Board also concluded that a hospital decision made during
    2010, which significantly increased the restrictions on Mr. Gacek, was
    reasonable.

[2]

Mr. Gacek contends that the Board erred in failing to
    grant him an absolute discharge as he no longer constitutes a significant
    threat to the safety of the public and that the Boards finding was
    unreasonable. Amicus argues on his behalf that in its 2010 Disposition the
    Board erred by imposing a burden on Mr. Gacek to establish he does not pose a
    significant threat. In the alternative, with the assistance of amicus, Mr.
Gacek
argues that the Board erred in failing to consider the
    availability of a conditional discharge and further, that the failure to grant
    a conditional discharge was unreasonable. Amicus also contends that the Board
    erred in not conducting a review of whether the failure to reinstate certain
    privileges to Mr. Gacek constituted a significant restriction of liberty under
    s. 672.56 of the
Criminal Code
and by failing to determine whether such restriction was warranted.

[3]

We would not accept these submissions.  The Board made a finding that the appellant constitutes
    a significant threat to the safety of the public in the first paragraph of the
    conclusion section of its reasons. In so finding, the Board did not place any
    burden of proof on Mr. Gacek. The impugned paragraph relied on by amicus comes
    later in the Boards reasons. Read fairly, this paragraph simply explains why
    the Board did not give effect to the submissions made by counsel for Mr. Gacek.
    Reading its reasons as a whole, we are not persuaded that the Board erred in
    the manner alleged.

[4]

Further, we are satisfied that the Boards finding that
    Mr. Gacek constitutes a significant threat to the safety of the public was
    reasonable on the record before it, including the expert evidence of the
    treating psychiatrist.

[5]

As for the failure to grant a conditional discharge, in
    our view, it is implicit in the Boards reasons that it did not consider this a
    realistic case for a conditional discharge because of Mr. Gaceks failure to
    comply with hospital conditions and because of the need to control his place of
    residence.

[6]

Finally, in our view, the Board cannot be faulted for
    failing to address the argument raised on appeal concerning an ongoing failure
    to reinstate privileges and whether that constitutes a significant restriction
    of liberty.  On the record before the
    Board, that was not raised as a live issue.

[7]

We have reviewed the sworn affidavit filed by Mr.
    Gacek. It does not affect the outcome of these appeals.

[8]

Given our conclusions concerning the 2010 Disposition,
    the appeal of the 2009 Disposition is moot. The appeals are therefore
    dismissed.

[9]

We do however note that it would appear that Mr. Gacek
    has now agreed to go forward with the plan to place him with a brain injury
    clinic. We hope this will allow him to receive the treatment he requires and move
    forward towards release.

Signed:           Janet Simmons J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.


CITATION:
R. v. Hawthorne, 2011
          ONCA 216

DATE: 20110321

DOCKET: C49317

COURT OF APPEAL FOR ONTARIO

Sharpe, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Sherriene
Hawthorne

Appellant

Sherriene
Hawthorne, acting in person

Jill Copeland, duty counsel

Howard
Leibovich
, for the respondent

Heard: March 14, 2011

On appeal from the judgment of Justice Theresa
Maddalena
of the Superior Court of Justice dated August
          1, 2008, dismissing a summary conviction appeal from a conviction entered by
          Justice Peter Tetley of the Ontario Court of Justice dated June 6, 2007.

By the Court:

[1]

The appellant was convicted of assault arising out of a
    confrontation with her landlord.  The
    landlord, supported by her family members, and the appellant gave conflicting
    accounts of the incident. Each alleged that it was the other who had committed
    an assault.  The central issue for the
    trial judge was credibility.

[2]

In his reasons for conviction, the trial judge placed
    considerable emphasis on the fact that the appellant had two prior convictions
    for assault and that the complainant and her family had no prior convictions.  The trial judge stated, I am mindful of the
    fact that none of the [complainants] family has criminal records and Miss
    Hawthorne has been convicted of assault related offences on two previous
    occasions.   When listing the factors that supported the
    Crowns case, the trial judge again emphasized that none of the complainants
    family had a criminal record.

[3]

The summary conviction appeal judge rejected the
    submission that the trial judge had made improper use of the appellants prior
    record, holding that the trial judge did not give the prior record undue
    weight.

[4]

In our view, the summary conviction appeal judge erred
    in law in her assessment of the trial judges use of the appellants prior
    record.  Accordingly, leave to appeal
    should be granted under the second branch of
R. v. R
.(
R.)
(2008), 90 O.R. (3d) 641.

[5]

The appellants assault convictions were not offences
    involving dishonesty.  They had limited
    value when it came to assessing her credibility.  Yet, given the offences similarity to the
    offence with which the appellant was charged
,
there
    was a significant risk that her prior convictions would be improperly used to
    indicate her propensity to commit assault.  The trial judges emphasis on those convictions, and on the absence of
    prior convictions of the complainant and her family as a factor significantly
    bolstering their credibility, leaves us with the distinct impression that,
    faced with conflicting accounts of the incident, the trial judge found against
    the appellant because of her propensity to commit assault.

[6]

While the experienced trial judge was undoubtedly aware
    of the law relating to the limited use he could make of the appellants
    criminal record, regrettably, the chain of reasoning employed in his reasons
    for conviction raise a serious concern that the appellants criminal record was
    improperly used.  In our view, the
    summary conviction appeal judge simply failed to come to grips with this aspect
    of the trial judges reasons.

[7]

Accordingly, leave to appeal is granted, the appeal is
    allowed, the conviction is set aside and a new trial is ordered.  It will be for the Crown to decide whether to
proceed
with a new trial, given the circumstances of
    this case, the circumstances of the appellant and the time that has passed
    since this incident.

Robert J. Sharpe J.A.

J. MacFarland J.A.

H.S. LaForme J.A.

RELEASED:  March 21,
    2011


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.

CITATION:
R. v. I.F., 2011 ONCA 203

DATE: 20110315

DOCKET: C52521

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

I.F.

Respondent

Dena Bonnet, for the appellant

R. J. Reynolds, for the respondent

Heard
and released orally:  March 11, 2011

On appeal from the sentence imposed by Justice Geoffrey
          Griffin of the Ontario Court of Justice, dated July 12, 2010.

ENDORSEMENT

[1]

This is a Crown appeal against sentence.

[2]

The respondent sexually abused his three
    step-granddaughters over an eight-year period, from 2001 to 2009, when the
    sisters were under the care of the respondent while visiting their grandparents
    on occasional weekends. With each victim, the sexual abuse began with touching
    over clothes and progressed to more intrusive sexual assaults. At the time of
    the abuse, the girls were between the ages of 10 to 12, 7 to 14 and 9 to 14
    years, respectively. The respondents acts included touching and fondling their
    breast and vaginal areas; performing oral sex on one victim; having two of the
    victims watch pornographic movies or magazines while he masturbated; and having
    one of the victims masturbate him.

[3]

The sentencing judge sentenced the respondent to eight
    months imprisonment consecutive on each count for a total sentence of two years
    imprisonment, to be followed by three years probation. The Crown submits that
    he erred in principle and that the sentence was manifestly unfit.

[4]

The sentencing judge acknowledged that the principles
    of deterrence and denunciation were paramount when a step-grandfather abuses
    his position of trust. He stated that a sentence of two years less a day would
    not adequately reflect the principle of denunciation. He considered that the
    appropriate sentence was three years, plus three years probation. However, he
    imposed the sentence of two years imprisonment so that he could also impose a
    period of probation with terms.

[5]

In
R. v. D.D
.
    (2002), 58 O.R. (3d) 788 (C.A.), at para. 44, Moldaver J.A. stated that as a
    general rule, when adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms.

[6]

While the sentencing judge cited these principles, the
    sentence he imposed failed to adequately reflect the principles of deterrence
    and denunciation, represents a marked departure from the case law, and was
    manifestly unfit in this context of multiple victims.

[7]

Taking all the circumstances of this case, including
    the trial judges acceptance of the significance of the respondents early plea
    and acceptance of responsibility, we allow the appeal and substitute a global
    sentence of four years imprisonment. Apart from the probation order, the other
    orders of the judge remain in force.

Janet
    Simmons J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be
published
), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(
a
)       is
    guilty of an indictable offence and liable to imprisonment for a term not
    exceeding two years; or

(
b
)       is
    guilty of an offence punishable on summary conviction.

CITATION:
R. v. J.H., 2011
          ONCA 207

DATE: 20110316

DOCKET: C51621

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H. (A Young Person)

Appellant

Theodore
Sarantis
, for the appellant

Matthew Asma, for the respondent

Heard & released orally:
March 11, 2011

On appeal from the conviction entered and the sentence imposed
          by Justice Minoo F. Khoorshed of the Ontario Court of Justice on November 19,
          2009 and December 1, 2009.

ENDORSEMENT

[1]

The appellant was charged with two counts of robbery
    and four counts of breach of recognizance as well as failing to comply with a probation
    order.  He was 16 years old at the time
    of the alleged offences.

[2]

The complainant was a 22 year old with an intellectual
    disability and, according to the
complainant,
the
    appellant had bullied and robbed him in the past.  After a
voir
    dire
at which the complainants mother and a police officer testified, the
    complainant was allowed to testify from behind a screen because he was fearful
    of the appellant.

[3]

The appellant was convicted of one count of robbery and
    of the breach and fail to comply charges.  He was sentenced under the
Youth
    Criminal Justice Act
to five months, two-thirds in secure custody and one
    third under community supervision, plus two years probation.  This was in addition to receiving credit for
    99 days of pre-trial custody.

[4]

The appellant appeals both conviction and
    sentence.  He argues that the trial judge
    erred by misapplying the reasonable doubt standard, by failing to give
    sufficient reasons for rejecting the appellants evidence and by using evidence
    adduced during the
voir dire
in
    reaching his decision on the trial proper.

[5]

With respect to sentence, the appellant submits that
    the sentence imposed was manifestly unfit as the trial judge did not adequately
    consider whether a less severe alternative to the five months sentence was
    appropriate.

[6]

In our view, the third ground raised on the conviction
    appeal is dispositive.  We agree with the
    appellant that the trial judge ought not to have referred to the
voir dire
evidence in his reasons for
    judgment.  Although the trial judge said
    that his use of the evidence would be narrowly circumscribed and would be for
    the limited
purpose of helping him understand
the
    victims demeanour in light of his intellectual disability, this use was
    improper.

[7]

The Crown argues that the trial judges limited use of
    the
voir dire
evidence caused no
    prejudice because, reading the record as a whole, it is apparent that the trial
    judge was able to make substantially the same observation concerning the
    complainant based on the complainants trial evidence.

[8]

We disagree.  As
    an example of the improper use that causes us concern, we note that, after
    reciting much of the mothers evidence led at the
voir dire
, including the mothers testimony as to an alleged
    statement made by the appellant, the trial judge stated as follows:

We have to look at this
    particular statement only for one purpose; to see how the statements made by
    the victim to the mother correspond with the statements made in court, and that
    is not for their accuracy, but to see the thinking pattern of the victim
    himself who has certain learning disabilities.

[9]

On our reading of the trial judges reasons, it appears
    that he used the
voir dire
evidence
    to bolster his assessment of the complainants credibility.  That assessment is at the root of his
    decision and therefore, the appeal must be allowed.

[10]

As a result, the convictions are set aside and a new
    trial is ordered.

Janet Simmons J.A.

Paul Rouleau J.A.

Karakatsanis J.A.