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.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

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    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to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    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2017 ONCA 653

DATE: 20170814

DOCKET: C62637

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Cate S. Martell, for the appellant

Christine L. Tier, for the respondent

Heard: June 2, 2017

On appeal from the conviction entered on September 11,
    2015 by Justice John D. Takach of the Ontario Court of Justice.

Juriansz J.A.:

A.

Overview

[1]

On October 11, 2014, a group of men gathered outside Sheilas
    Place/Ellis Kitchen Bar, (Sheilas Place), a bar and restaurant in Hamilton.
    Different factions of the group began fighting. A person then ran up to the
    group, fired several shots from a handgun at close range, and fled on foot. Three
    people were seriously injured. The incident was caught on Sheilas Places
    video surveillance. The whole incident lasted only a few seconds.

[2]

The appellant was charged and found guilty of
    three counts of each of the following offences: aggravated assault (
Criminal
    Code
,

R.S.C. 1985, c. C-46, s. 268); use of a
    firearm in the commission of an indictable offence (s. 85(1)(a)); discharge of a
    firearm with intent (s. 244(1)); and breach of probation (
Youth
    Criminal Justice Act
, S.C. 2002, c. 1, s. 137). He was
    also convicted of possession of a prohibited firearm (
Criminal Code
, s. 95(1)); and possession of a firearm while prohibited (s. 117.01(1)).

[3]

The only issue at trial was identity. Was the appellant the shooter
    captured on the video? The only evidence of identity was the testimony of three
    witnesses who did not see the incident but later watched the video surveillance
    footage and claimed to recognize the shooter as the appellant. The shooters facial
    features were not visible on any of the videos. Two of the identifying
    witnesses were police officers who had interacted with the appellant in the
    past. The third witness worked at Sheilas Place and had served the appellant
    as a customer. There was no other evidence connecting the appellant to the
    shooting or even showing he was in the vicinity at the time. The appellant did
    not testify.

[4]

The appellant challenges his conviction on the basis that the trial
    judge erred in admitting the recognition evidence of the civilian witness, erred
    in weighing the recognition evidence or, alternatively, that the verdict was unreasonable.
    For the reasons that follow, I would conclude that the trial judge erred in law
    by failing to properly scrutinize the reliability of the recognition evidence.
    I would also conclude that the verdict is unreasonable as the recognition
    evidence, properly scrutinized, cannot support a finding of guilt. I would set
    aside the conviction and enter an acquittal.

B.

Decision of the trial judge

(1)

The trial judge cautioned himself extensively and appropriately

[5]

The trial judge cautioned himself appropriately on a number of issues.
    He reminded himself that he had to render a decision dispassionately and be
    persuaded of the appellants guilt beyond a reasonable doubt. He noted that witness
    demeanour was important to a minimal extent, and that, in the case of police
    officers, the contextual completeness of their note-taking and consistency between
    their notes and testimony was important.

[6]

The trial judge noted that the only issue was the identity of the
    shooter and instructed himself appropriately and extensively on the dangers of
    identification evidence. He said: Shortly stated, theres probably no other
    area of the law that potentially may be [more] responsible for a miscarriage of
    justice than that of a well-intentioned but incorrect identification of an
    accused.

[7]

Citing judicial authority, the trial judge said, any trial judge must
    instruct himself on the need for caution when dealing with such evidence. He
    recognized [i]t is not just an issue of credibility but involves the
    inherent frailties of identification evidence simply because of the
    unreliability of human observation and recollection.

[8]

The trial judge emphasized these principles by remarking that: Mis-identification
    has plagued the justice system for years. Courts from Canada, the United States
    and Great Britain have dealt with these issues from time immemorial. He
    continued:

It is important to remember the various factors that can affect
    reliability of eyewitness identification evidence and remember that mistaken
    identification has been responsible forthe wrongful conviction of persons who
    have been mistakenly identified by one or more honest witnesses.

[9]

The trial judge quoted the Supreme Court of Canadas observation in
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50, that:

the danger associated with eyewitness in-court identification
    is that it is deceptively credible, largely because it is honest and sincere.
    The dramatic impact of the identification taking place in court, before the jury,
    can aggravate the distorted value that the jury may place on it.

He recognized that the same applies when the trier of
    fact is a judge.

[10]

The trial judge then noted that this case was somewhat different from a
    straightforward eyewitness identification case because here, all three
    witnesses claimed to have known the accused from previous dealings. This was,
    he said, an important distinction. He explained he had held a
voir dire
and had issued a separate ruling in which he had decided the three witnesses
    would be permitted to give opinion evidence as to the identity of the shooter
    based on the DVD video of the shooting.

(2)

Summary of the evidence

(a)

Constable Kay

[11]

Constable Amy Kay had arrested the appellant for drug offences
    approximately 16 days before the shooting incident. She had spoken with him for
    35 or 40 minutes at that time. As an undercover officer, she had seen the
    appellant on the street during the previous 2months and had observed him at
    least 15 times, all in relation to drug investigations. She described the
    appellant as skinny, about 58 in height, with freckles and cornrows in his
    hair; a young black male with light skin. She testified that she had seen him
    run, walk and ride a bike. She had observed him near Sheilas Place a number of
    times. She was not involved in the investigation of the shooting and had been
    on vacation when it occurred. When she returned to work five days after the
    shooting she was called in to view the video. She identified the appellant as
    the shooter in the video. In court, she reviewed channel 13 of the video and
    identified the appellant as the shooter in the video.

(b)

Constable Howard

[12]

Constable Howard had stopped the appellant at the end of August 2014. He
    had been on his way to an investigation when he came upon the appellant and
    another individual in an alley. Both were on foot. Constable Howard spoke to
    both individuals for what he described as minutes. He had also seen the
    appellant on other occasions in the area around Sheilas Place.

[13]

Constable Howard described the appellant as a lighter-skinned black male,
    57, very thin build, with longer black hair down his neck in cornrows. The
    appellant always had the same hairstyle when Constable Howard had seen him.

[14]

Constable Howard identified the appellant in a photo lineup as the
    person in the video. He relied on channel 13 of the video for his opinion, but
    watched channels 14 and 15 as well. He said he identified the appellant on the
    video because of his frame, body size, lighter complexion and it appeared to
    him that the shooter had the same hairstyle as the appellant. He too watched
    the video in court and identified the appellant as the shooter in the video.

(c)

T.C.

[15]

T.C. was the third witness to identify the appellant as the shooter in
    the video. She testified behind a screen that prevented her from seeing the
    appellant in court. She did not identify him in court. She had worked at Sheilas
    Place during the summer and early fall and had been working on the day of the
    shooting. She did not actually see the shooting. Afterwards, she heard other
    employees who were watching the video on the premises security cameras say
    oh, shit  I cant believe its him. At that time, she did not see the video
    and did not know to whom they were referring. After the police arrived, she
    watched the video with the investigating officer and said words to the effect
    of: I know that kid. She did not know his name but later picked him out from
    a photo lineup, without hesitation.

[16]

T.C. was acquainted with the appellant as a customer of Sheilas Place,
    who came in during the time she worked there. She had no specific conversation
    with him except when she was serving him. She said he was of medium height with
    light (black) skin and that he wore his hair in braids/cornrows or a ponytail. In
    court, when channel 13 was played for her, she said she believed she had seen a
    different video when she made her initial identification. She said this
    doesnt look like the way I watched it. She was then shown channel 14, and
    agreed this was one of the angles she had seen. The investigating officer
    testified there was no other video, and the trial judge concluded that T.C. had
    seen the surveillance video channels played in court and it was from those
    videos that she had made her identification at the police station.

(d)

Jonathan Mack

[17]

Jonathan Mack was one of the individuals who was shot during the
    incident. He did not recognize and could not identify the shooter. He said the
    shooter was a young black kid with lighter skin. He said the shooter may have
    had braids or dreadlocks, but he could not tell the shooters hairstyle because
    he thought the shooter was wearing a toque. He admitted, I didnt get a good
    look at him either. He explained that it all happened fast.

(3)

The trial judges assessment of the evidence and his reasoning

[18]

The trial judge reviewed the facts of the altercation and shooting that
    were apparent on the video surveillance. The video surveillance showed 16
    different views of both inside and outside Sheilas Place. Only three of the
    video views depicted any part of the shooting. The best view was on channel 13.

[19]

The trial judge made repeated comments in his reasons about the poor
    quality of the video. He observed several times that one could not make out the
    shooters facial features on the video. He said Clearly, the facial features
    of the accused are not visible on the video. He said, quite candidly he
    could not make out the hair features that both police officers testified they
    could see. He said, I have already noted that facial features were not visible
    in the video. In his reasons, referring to T.C.s identification of the
    appellant at the police station, he said, Again, there were no facial features
    available in any of the video channels that would have enabled her to recognize
    the face.

[20]

The trial judge was satisfied the appellant met the general description
    of the shooter in the video. While there was no evidence before the court about
    the appellants height, weight, skin colour, hairstyle, build or racial origin,
    the trial judge said he had observed the appellant during the trial and
    expressed the view the appellant was of slim to medium build, between 57 and
    59, black, lighter skin tone, with dark hair, and what I would describe as a
    higher hairline on his forehead. He added that that description is consistent
    with my view of the video, that his general appearance in the courtroom is at
    least very similar to the shooter, though he wore glasses in the courtroom.

[21]

Despite the absence of any facial features of the shooter on the video,
    the trial judge was satisfied the witnesses could identify the appellant as the
    shooter from the way the shooter moved. He reasoned:

There are many individuals who, when they perform various acts,
    either sporting acts or normal acts involving walking, movement, gestures, that
    are incapable of significant description unless theres some special
    characteristic. Nevertheless, even without facial features, one, from a
    distance, is able to tell who those individuals are, whether it is a walk, a gait
    that cant really be described or whether the individual is performing some
    specific act such as running, or as Ive indicated, performing a sporting
    manoeuvre.

He said that in this case clearly, in the video there
    are movements by the shooter that may be identified by others. He added [i]t
    was only the conduct of the shooter and the physical attributes that could have
    spawned a recognition of him by any of the three witnesses.

[22]

The trial judge recognized that none of the three witnesses identified
    any special characteristic of the appellants movement. However, he cited the
    comments of Blair J.A. in
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d)
    137 at para. 22 that it is not necessary for a recognition evidence witness to
    show that he or she can point to some unique identifiable feature or
    idiosyncrasy of the person to be identified. He acknowledged that Blair J.A.
    was in that case addressing threshold admissibility, but reasoned that Blair J.A.s
    remarks are not irrelevant on the ultimate issue, that is, the weight to be
    given to the witness testimony that the accused was the shooter.

[23]

The trial judge emphasized the confidence with which the recognition witnesses
    identified the appellant as the shooter. He observed that Constable Kay was certain
    and confident of her identification of the appellant as the shooter notwithstanding
    the notation in her book of not being 100% certain. Constable Howard was very
    confident of the identification and he had no doubt about it. Both relied on
    their previous knowledge of him in their descriptions of the appellant. According
    to the trial judge, T.C. expressed no doubt about the identity of the shooter.
    As soon as she saw the video channels available to her, she told the police
    that she knew who the shooter was.

[24]

The trial judge found it significant that three witnesses identified the
    appellant as the shooter. He said that the evidence of one of the police
    officers or perhaps even two of the identifying witnesses standing alone may
    not have been enough to establish culpability beyond a reasonable doubt.
    However, in considering the totality of the evidence including the evidence of
    the three identifying witnesses, as well as the lineup identificationof one of
    the witnesses he was persuaded beyond a reasonable doubt that the accused was
    the shooter and convicted him.

C.

Discussion

[25]

I have already noted that the trial judge properly instructed himself
    and cited the appropriate case law. At the same time, his reasons show he did
    not actively consider the matters about which he initially cautioned himself. In
    this, he erred in law.

[26]

This case is similar to
R. v. Olliffe
,
2015 ONCA 242,
    322 C.C.C. (3d) 501. In
Olliffe
, this court found the trial judge had
    erred in law by failing to critically analyse the problematic aspects of the
    recognition evidence led in that case. The court said at para. 43 that the trial
    judge was required to approach [the recognition witness] testimony with
    caution and grapple with the problems in her evidence to determine whether it
    was reliable.

[27]

The trial judge in this case erred in law in the same way. He failed to
    approach the recognition evidence with caution and to grapple with the evident problems
    in the evidence.

[28]

In
Olliffe
, the court went on to find that in addition to the
    legal error, the verdict was unreasonable. I would do so in this case as well.

(1)

Relevant principles

(a)

Frailty of eyewitness identification

[29]

Eyewitness identification is inherently unreliable.
    It is difficult to assess, is often deceptively reliable because it comes from
    credible and convincing witnesses, and is difficult to discredit on
    cross-examination for those same reasons. Studies have shown that triers of
    fact place undue reliance on such testimony when compared to other types of
    evidence. As a result, many wrongful convictions result from faulty,
    albeit convincing, eyewitness testimony, even in cases where multiple witnesses
    identify the same person. See
R. v. Miaponoose

(1996),
110 C.C.C. (3d) 445
(Ont. C.A.)
,
at pp. 450-451
, and
R. v. A. (F.)

(2004),
183 C.C.C. (3d) 518
(Ont. C.A.)
,
at para. 39
.

[30]

For these reasons, although identification is a
    matter of fact, appellate courts will subject such findings to closer scrutiny than
    other findings of fact. Justice Doherty summarized this approach in the context
    of an
unreasonable

verdict
argument in
R. v. Tat

(1997),
117 C.C.C. (3d) 481 (Ont.
    C.A.),
at paras. 99-100,
where he said:

While recognizing the limited review permitted
    under s. 686(1)(a)(i), convictions based on eyewitness identification evidence
    are particularly well suited to review under that section. This is so because
    of the well-recognized potential for injustice in such cases and the
    suitability of the appellate review process to cases which turn primarily on
    the reliability of eyewitness evidence and not the credibility of the
    eyewitness.

[31]

As stated by Charron J.A. (as she then was) in
Miaponoose
,

at
    p. 422: Eyewitness testimony is in effect opinion evidence, the basis of which
    is very difficult to assess. The witness' opinion when she says that is the
    man is partly based on a host of psychological and physiological factors, many
    of which are not well understood by jurists. Justice Charron goes on to quote
    from the Law Reform Commission of Canada Study Paper on
Pretrial Eyewitness
    Identification Procedures
(1983), at p. 10:

Simply by way of illustration, psychologists have shown that
    much of what one thinks one saw is really perpetual filling-in. Contrary to the
    belief of most laymen, and indeed some judges, the signals received by the
    sense organs and transmitted to the brain do not constitute photographic
    representations of reality. The work of psychologists has shown that the
    process whereby sensory stimuli are converted into conscious experience is
    prone to error, because it is impossible for the brain to receive a total
    picture of any event.
Since perception and memory are
    selective processes, viewers are inclined to fill in perceived events with
    other details, a process which enables them to create a logical sequence. The
    details people add to their actual perception of an event are largely governed
    by past experience and personal expectations.
Thus the final recreation
    of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive
    process whereby they fill in the necessary but missing data. They will relate
    their testimony in good faith, and as honestly as possible, without realizing
    the extent to which it has been distorted by their cognitive interpretive
    processes. Thus, although most eyewitnesses are not dishonest, they may
    nevertheless be grossly mistaken in their identification. [Emphasis added.]

Justice Charron continues: While the circumstances
    surrounding the witness' identification can be subject to scrutiny in
    cross-examination, many of the more subjective processes that have led to it
    are impossible to expose in this fashion.

[32]

Witness identification based on video recordings can under
    certain circumstances be more reliable as it allows repeated and unhurried
    consideration.
For example,
R. v. Nikolovski
, [1996] 3 S.C.R.
    1197, at para. 23, contemplates a videotape of sufficient clarity and quality
    that it would be reasonable for the trier of fact to use it as the sole basis
    for identifying the accused:

It is precisely because videotape evidence can present such
very
    clear and convincing evidence of identification
that triers of fact can use
    it as the sole basis for the identification of the accused before them as the
    perpetrator of the crime. It is clear that a trier of fact may, despite all the
    potential frailties, find an accused guilty beyond a reasonable doubt on the
    basis of the testimony of a single eyewitness. It follows that the same result
    may be reached with even greater certainty upon the
basis of good quality
    video evidence.
Surely, if a jury had only the videotape and the accused
    before them, they would be at liberty to find that the accused they see in the
    box was the person shown in the videotape at the scene of the crime committing
    the offence. If an appellate court, upon a review of the tape, is satisfied
    that it is of
sufficient clarity and quality
that it would be reasonable
    for the trier of fact to identify the accused as the person in the tape beyond
    any reasonable doubt then that decision should not be disturbed. Similarly, a
    judge sitting alone can identify the accused as the person depicted in the
    videotape. [Emphasis added.]

The kind of clear video recording described in
Nikolovski
,
    however, sharply contrasts with the video recording in this case. The trier of
    fact must use greater caution where the video or photo quality is poor:
R.
    v. Cuming

(2001), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.

(b)

Recognition evidence as a subset of eyewitness identification

[33]

Recognition evidence is a subset of eyewitness identification evidence,
    in which the eyewitness identification is based on prior acquaintance. The
    recognition witness may, or as in this case may not, have been present at the
    scene of the crime.

[34]

Hourigan J.A. stated in
Olliffe
at para. 39, recognition
    evidence is merely a form of identification evidence. As such, [t]he same
    concerns apply and the same caution must be taken in considering its
    reliability as in dealing with any other identification evidence.

[35]

The test for admitting recognition evidence is established in the
    Supreme Court of Canadas decision in
R. v. Leaney
,
[1989] 2 S.C.R. 393
and
re-affirmed
    by
Rosenberg J.A. in
R. v. Brown
,
215 C.C.C. (3d) 330 (Ont. C.A.)
. At para. 39
of
Brown
,
    Rosenberg J.A. stated that "this type of non-expert opinion evidence is
    admissible provided that the witness has a prior acquaintance with the accused
    and is thus in a better position than the trier of fact to identify the
    perpetrator".

[36]

In
Berhe
,
this court considered the proposition that a
    recognition witness must be able to point to idiosyncrasies of physical
    appearance or movement peculiar to the person identified in order for his or her
    opinion to satisfy threshold admissibility. The proposition was asserted by
    Harradence J.A. in his dissent in
Leaney
, 1987 ABCA 206, 38 C.C.C.
    (3d) 263, at para. 40:

Notwithstanding this general principle of exclusion, there may
    be occasions when non-expert opinion evidence will be relevant and admissible. Where
    a witness is so familiar with the accused that he can identify idiosyncrasies
    of physical appearance or movement, not apparent to the trier of fact in the
    courtroom, that witness should be able to give his opinion. Two criteria must
    be satisfied. First the witness must be sufficiently familiar with the accused
    so as to be aware of the unique features which form the basis of the opinion.
    Second, the witness must be able to state with particularity what the
    idiosyncrasies are and show where and how they are revealed on the videotape.
    In this way the witness is contributing knowledge not otherwise available to
    the trier of fact. Consideration of these issues should take place within the
    context of a
voir dire
so the accused can challenge the evidence before
    it is admitted.

[37]

This court rejected the proposition as a requirement
for threshold admissibility
.
    The court in
Berhe
instead held at para. 22 that the identification of
    idiosyncrasies of physical appearance or movement were relevant when
    considering the ultimate reliability of the evidence. I will expand further on
    this below.

(2)

Application of principles to the trial judges assessment of the
    evidence

(a)

The only inculpatory evidence was the video

[38]

It must be kept in mind that the only evidence tying the appellant to
    the shooting was the recognition evidence of the three witnesses. There was no
    evidence that the accused had any reason to run up and shoot the victims that
    night or even that he knew the victims or anyone else at the scene. There was
    no other evidence that he was in the area around the time of the incident.

(b)

The poor quality of the video

[39]

The trial judge made findings of fact that the video was unclear, that
    facial features were not visible in the video, and that one could not recognize
    the shooters face. He repeated these findings several times, as summarized
    above. The trial judge also made a finding of fact that the shooters hair
    features could not be made out on the video. I draw this from his candid statement
    that he could not make out the shooters hair features.

[40]

The trial judge also stated at p. 11 that in observing the accused in
    court himself, he could say no more than that the accuseds appearance was at
    least very similar to the shooter. That is, the trial judge himself, looking
    at the accused in court, over several days, could not identify him as the shooter
    in the video.

[41]

At the outset of her argument in this court, appellant counsel insisted
    on playing the surveillance video to demonstrate its poor quality. Playing the
    video made counsels point clearly. There should be no misunderstanding of the
    trial judges findings that the facial features of the shooter are not visible
    in the video. This is not the result of the shooters face being obscured or
    turned away from the camera. In fact, on channel 13 the shooter is facing the
    surveillance camera at times. The facial features of the shooter are not
    visible on the video because it is of such poor quality that it is blurred and
    detail is not displayed.

[42]

The videos poor quality was apparent to the witnesses. For example,
    Officer Kay in cross-examination at trial agreed that she could not see on the
    video whether the shooter has any facial hair, whether he was wearing glasses
    (though she noted the absence of any reflection) or even whether he is wearing
    a sweater or a jacket.

[43]

Given the poor quality of the video and the lack of any other evidence
    connecting the appellant to the shooting, it was imperative that the trial
    judge exercise the utmost caution in assessing the identification evidence.

(c)

Identification from the way the shooter moved

[44]

As outlined above, the trial judge found as a fact the appellants
    facial features could not be seen or recognized on the video: It was only the
    conduct of the shooter and the physical attributes that could have spawned a recognition
    of him by any of the three witnesses. Nevertheless, he was satisfied that the
    witnesses could identify the appellant as the shooter from the way the shooter moved
    in the video. The trial judge reasoned even without facial features, one, from
    a distance, is able to tell who those individuals are, whether it is a walk, a
    gait that cant really be described or whether the individual is performing
    some specific act such as running, or as Ive indicated, performing a sporting
    manoeuvre. The trial judge said clearly, in the video, there are movements by
    the shooter that may be identified by others.

[45]

The trial judge recognized that none of the three witnesses identified
    any special characteristic of the appellants movement. However, as noted
    above, he relied on
Berhe
for the proposition that it was not
    necessary for a witness to point to some unique identifiable feature or
    idiosyncrasy of the person to be identified. In my view, he misread
Berhe
.

[46]

The issue in
Berhe
was the threshold admissibility of the
    recognition evidence.
Berhe
also confirmed the continued importance of
    unique identifiable features in determining the ultimate reliability of the
    evidence. The importance of unique identifiable features varies with how well
    the witness knows the person he or she identifies. The court made this clear by
    endorsing the following comment by Holmes J. in
R. v. Panghali
, [2010]
    B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different
    abilities to identify and articulate the particular features of the people in
    their lives that they know, recognize, and distinguish on a regular basis.
    Where a witness has but little acquaintanceship with the accused, his or her
    recognition evidence may be of little value unless the witness can explain its
    basis in some considerable detail. But at the other end of the spectrum, the
    bare conclusory recognition evidence of a person long and closely familiar with
    the accused may have substantial value, even where the witness does not
    articulate the particular features or idiosyncrasies that underlie the
    recognition.

[47]

In my view, the trial judge was wrong to interpret
Berhe
as
    minimizing the importance of unique identifiable features in determining the
    weight of recognition evidence. Here, none of the witnesses had a long and
    closely familiar relationship with the appellant. Constable Howard had seen
    the appellant in the neighbourhood and had spoken to him once for minutes at
    the end of August. T.C. had served the appellant an unspecified number of times
    in the restaurant and had seen him there, had spoken to him only when taking
    his order and did not know his name. Constable Kay had the greatest
    acquaintance with the appellant  having observed him 10 to 15 times as an
    undercover officer and having spoken with him on one occasion for 35-40
    minutes. This was a case in which the inability to articulate the particular
    features or idiosyncrasies that underlie the recognition was important and
    should have been weighted appropriately.

(d)

Problems with the shooters movement as the basis for identification

[48]

There are additional problems with the trial judges acceptance of the
    way the shooter moved in the video as the basis of the witnesses
    identification of the appellant as the shooter.

[49]

First, the trial judge did not differentiate among the three
    witnesses in his discussion. In fact, only Constable Kay relied on the way the
    appellant moved in her identification. She said she had seen him walk and run
    before and that played a part in her identification of him. She could not,
    however, point to anything distinctive about the way the appellant ran. She
    also said she knew the way the appellant held his hand on his pants
. She agreed that looking at the video one could not
    tell if the shooter had hair in cornrows, or had regular afro hair, or hair that
    was braided.

[50]

Neither Constable Howard nor T.C. relied on any feature of the
    appellants movement in their identifications. The reasons of the trial judge suggest
    he was speculating that they must have relied on some aspect of the shooters
    movement to identify him. He seems to have reasoned that it must have been the
    way the shooter moved because nothing else about him could possibly be
    discerned on the video.

[51]

The Crown submits that although Officer Howard and T.C. may not have
    seen the appellant run, their previous observations would have made them
    familiar with the way he moved generally and the trial judge could rely on this
    familiarity in finding their identifications reliable.

[52]

Putting aside that the shooter in the video is not seen sitting at a table,
    walking, or standing on the street engaged in conversation as Constable Howard
    and T.C. observed the appellant, and that the trial judge also saw the
    appellant standing and sitting for several days and could not recognize him on
    the video, there is a more fundamental error here. Rather than exercising
    caution in assessing the recognition evidence, the trial judge seems to have actively
    sought a basis to bolster it. It is one thing to attach weight to a recognition
    witness evidence that relies on the way the accused moves without pointing to
    anything distinctive. It is quite another to surmise a basis for identification
    that the witness himself or herself does not claim.

[53]

Constable Howard never claimed he recognized the shooter by the way he
    moved. Constable Howard never even mentioned the way the shooter or the appellant
    moved. He said he recognized the appellant from his body size, lighter
    complexion and hair.

[54]

T.C. also made no mention of the way the shooter or the appellant moved.
    T.C. described the appellant as medium height, light-skinned with
    braids/cornrows (and that he also occasionally wore his hair in a ponytail). Most
    troubling is that on two occasions she indicated she relied on facial
    recognition to know the appellant and his friends.

[55]

The first time was when T.C. identified the appellant in the photo
    lineup. Before showing her the photo line-up, Officer Murphy asked her how she would
    be able to recognize the shooter. T.C. responded I know exactly who he is by
    his face.

[56]

The second occasion was in cross-examination:

Q. Did you ever have a conversation with him or talk to him?

A. No.

Q. All right. Were you ever in his presence when you would talk
    to other people?

A. Well, if I had to help out like serving food or serving drinks
    like I was around maybe like in the same room, but like I said, I dont
    associate with the same people.

Q. All right, and did you know some of the people that he
    associated with?

A. Like knew their face, didnt know them as a person to talk
    to them.

[TRNS, September 8, 2015, pp. 13-14].

[57]

Given his finding that there was no facial features available in any of
    the video channels that would have enabled her to recognize the face, the
    trial judge should have considered whether T.C. picked the appellant out of a
    photo lineup (that clearly showed his face) because he was the youth she
    thought she had recognized in the video.

[58]

There is yet another reason that the trial judge should have exercised
    more caution before accepting T.C.s identification of the appellant. At trial,
    after viewing the video, she could not identify the appellant as the shooter.
    In examination-in-chief, the Crown never asked her to identify the shooter, but
    relied on reviewing the earlier identification she had made at the police
    station. Upon viewing channel 13, which displayed the clearest view of the
    shooter, T.C. said the video footage shown to her at trial was different from what
    she remembered seeing when she originally made her identification. The trial
    judge did not mention the fact that on cross-examination at the trial, T.C.
    said that, from the video she was shown in court, she could not identify the
    shooter as the man she had served in the restaurant:

Q. Okay. From the video that you saw today, is it fair to say
    you cant- you cant identify who that is though from the videos that you were
    shown in, in court today?

A. Its the angles, its not as  no, cause its not  its
    not what I originally saw (at p. 22, l.3-7).

[59]

Rather, upon being satisfied T.C. had seen the same video views at the
    police station as were shown to her at trial, he did not hesitate in relying on
    her earlier identification as reliable. He failed to exercise the requisite
    caution by making nothing of the fact that T.C. could not identify the shooter
    as the appellant after viewing the video at trial.

[60]

Another illustration of the trial judges failure to exercise the
    requisite caution is that he left hanging his observation that both police
    officers see hair features that quite candidly I cannot make out. Both claimed
    to see hair turned up at the sides of the shooters face. Absent an explanation
    of why he should not trust his own eyes, this observation required some
    explanation. The trial judge obviously assumed the officers must have had
    superior visual acuity. This required explanation because the poor-quality
    video did not display minute detail to be perceived by superior visual acuity. The
    trial judge failed to consider the other possibility that the officers, when
    looking at a fuzzy image of someone in fact unknown, unintentionally
    filled-in details of a man familiar to them.

(e)

The fallacy of mistaking certainty for accuracy

[61]

The trial judge also failed to keep in mind his initial caution about the
    fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how
    certain each recognition witness was in his or her identification.

[62]

At the outset, the trial judge identified the consistency of police
    officers notes with their testimony as an important issue. However, he was
    untroubled by the conflict between Officer Kays notes and her testimony at
    trial. He said, In court, Constable Kay was certain and confident of her
    identification of him notwithstanding the notation in her book of not being
    100% certain.

[63]

Officer Howard was very confident of the identification and he had no
    doubt about it.

[64]

T.C. expressed no doubt about the identity of the shooter. The trial
    judge emphasized how immediate her identification was: As soon as she saw the
    video channels available to her, she told the police she knew who the shooter
    was. This observation was based on the investigating officers testimony who showed
    T.C. the surveillance video footage.

[65]

In relying on the witnesses certainty, there is no echo in the trial judges
    reasons of his initial recitation of the caution of the Supreme Court in
Hibbert
that the danger of identification evidence is that it is deceptively credible
    largely because it is honest and sincere
. The
    mechanism by which honest and sincere identification testimony is unreliable is
    explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10)
    endorsed in
Miaponoose
:

The details people add to their actual perception of an event
    are largely governed by past experience and personal expectations. Thus the
    final recreation of the event in the observers mind may be quite different
    from reality

(f)

The significance of three identification witnesses

[66]

While he did not say so expressly, the trial judge seems to have appreciated
    the weakness of each recognition witness identification standing alone. At the
    end of his analysis, he said the evidence of one of the police officers or
    perhaps even two of the identifying witnesses standing alone may not have been
    enough to establish culpability beyond a reasonable doubt. He added however,
    that when he considered the totality of the evidence including the evidence of
    the three identifying witnesses, as well as the lineup identificationof one of
    the witnesses he was persuaded beyond a reasonable doubt that the accused was
    the shooter.

[67]

It seems to me this reasoning is not logically sound. The important
    point is that each of three witnesses identification was flawed. The trial
    judge did not consider the possibility that the same mechanism accounted for
    the weakness of each identification. Each of the witnesses confident
    identifications might have been mistaken because each of them unintentionally
    filled-in details of a person familiar to them when looking at a fuzzy image
    of someone in fact unknown. Independent flawed identification evidence from
    three witnesses is no more persuasive than if from one.

(g)

Conclusion

[68]

In summary, I am satisfied that the trial judge erred in law in his
    treatment of the recognition evidence. In my view, this error justifies appellate
    intervention.
[1]

(3)

Unreasonable Verdict

[69]

I am also satisfied the verdict in this case is unreasonable.

[70]

The test for unreasonable verdict is
whether the verdict is
    one that a properly instructed jury acting judicially, could reasonably have
    rendered: see
Corbett v. The Queen
,
[1975] 2 S.C.R. 275,
at p. 282
;
R. v. Yebes
,
[1987] 2
    S.C.R. 168,
at pp. 179-80
; and
R.
    v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381,
at para. 42
.

[71]

As Arbour J. says in
Biniaris
,
at para. 37:

The review for unreasonableness on appeal is different,
    however, and somewhat easier when the judgment under attack is that of a single
    judge, at least when reasons for judgment of some substance are provided. In
    those cases, the reviewing appellate court may be able to identify a flaw in
    the evaluation of the evidence, or in the analysis, that will serve to explain
    the unreasonable conclusion reached, and justify the reversal. The court of
    appeal will therefore be justified to intervene and set aside a verdict as
    unreasonable when the reasons of the trial judge reveal that he or she was not
    alive to an applicable legal principle, or entered a verdict inconsistent with
    the factual conclusions reached. These discernable defects are themselves
    sometimes akin to a separate error of law, and therefore easily sustain the
    conclusion that the unreasonable verdict which rests upon them also raises a
    question of law.

[72]

In my view, the flaws in the trial judges evaluation of the evidence
    and his analysis, both discussed above, render the guilty verdict unreasonable.

[73]

The guilty verdict in this case rests entirely on the bald assertions of
    recognition by three witnesses who had a brief and passing acquaintance with
    the appellant. All failed to point to some distinctive feature of the
    appellants appearance or manner of moving to explain their recognition. Constable
    Kay noted she was not 100% certain in her identification the first time she
    viewed the video. T.C. could not recognize the shooter as the appellant when
    she viewed the video in court. Constable Howard had the briefest interaction
    with the appellant. Their identification evidence is replete with the problems
    I have discussed above. There is a real possibility that all three recognition
    witnesses added details to their perception of the blurry video. They might
    have introduced into the blurry video the details of the appearance of the one
    person in the neighbourhood who fit the general description of the shooter. The
    general description of the shooter is one many individuals could satisfy. Crucially,
    there was no other evidence connecting the appellant to the crime.

[74]

The conviction in this case rests on a foundation that is impermissibly
    delicate. The verdict is unreasonable.

D.

Conclusion

[75]

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

Released: RGJ August 14, 2017

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. G.T. Trotter J.A.

[1]
Given this conclusion, it is unnecessary to address the challenge to the
    initial admissibility of T.C.s evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2017 ONCA 638

DATE: 20170804

DOCKET: C60093

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John MacKenzie

Appellant

Frank Miller, for the appellant

Kathleen Farrell, for the respondent

Heard: June 16, 2017

On appeal from order of Justice Scott K. Campbell of the
    Superior Court of Justice, dated February 6, 2015, dismissing an appeal from the
    convictions entered on March 26, 2014 by Justice Gregory A. Campbell of the Ontario
    Court of Justice.

Simmons J.A.:

A.

introduction

[1]

Following a trial in the Ontario Court of Justice,
the appellant
    was convicted of two offences: i) wilfully killing a dog, the property of a
    friend, without lawful excuse; and ii) wilfully causing unnecessary pain and
    suffering to a dog by strangulation and suffocation with tape and a chain.

[2]

The dog was found dead in the appellants yard on April
    25, 2012. The first person who saw the dog noted that he was tethered to a tree
    with a lead  and that he had a choke chain around his neck and electrical tape
    wrapped around his muzzle.

[3]

At trial, the veterinarian who examined the dog
    testified that the likely cause of death was strangulation by the choke chain. Although
    she testified that taping a dogs muzzle would cause stress, she also
    acknowledged that
different dogs would react differently to having tape
    wrapped around their muzzle. Further, the extent of a dogs reaction could
    depend on how tightly its muzzle was wrapped.

[4]

The appellant did not testify at trial. However, in
    various out-of-court statements that were introduced at trial, the appellant
    acknowledged that he had wrapped the electrical tape around the dogs muzzle
    and left him tied to the tree on a choke chain.

[5]

The main issues at trial were causation and
mens
    rea
.

[6]

The trial judge accepted the veterinarians opinion that the dog
    strangled on the choke chain and also concluded that the tape was a
    contributing cause of the dogs death.

[7]

In convicting the appellant of both charges, the trial judge relied in
    part on s. 429(1) of the

Criminal Code
, which deems
    recklessness to be wilful conduct for the purposes of the offences. Relying on common
    sense, the trial judge concluded that the appellant knew that putting tape
    around the dogs muzzle would cause the dog to struggle. Further, because the
    dog was on a choke chain, the trial judge was satisfied that the appellant also
    knew that, through struggling because of the tape on his muzzle, the dog would probably
    harm himself and ultimately die  and that the appellant was reckless whether
    these events would occur.

[8]

On appeal to the Summary Conviction Appeal Court (the
    SCAC), the convictions were upheld.

The SCAC
    judge found that the trial judges conclusions on causation and knowledge were
    available inferences on the record. The SCAC judge also concluded that the
    trial judge could have relied on s. 445.1(3) of the
Criminal Code
,
    which deems failure to exercise reasonable care for an animal to be proof of
    wilfully causing pain and suffering in certain circumstances.

[9]

The appellant applies for leave to appeal his
    convictions to this court and argues that the SCAC judge erred in failing to
    find that the trial judge improperly took judicial notice of adjudicative
    facts, namely causation and knowledge.

[10]

Framed differently, the appellants position is that the trial
    judges findings that the tape on the dogs muzzle was a contributing cause of
    the dogs death and that the appellant knew that taping the dogs muzzle would
    cause harm and eventually death were speculative and contrary to the expert
    evidence. The appellant also argues that the SCAC judge erred in relying on
s.
    445.1(3) of the
Criminal Code
as a basis for upholding the convictions
    because neither the trial Crown nor the trial judge invoked that section.

[11]

In the particular circumstances of this case, we did not call on the
    Crown to address the question of leave or the substantive issue as framed by
    the appellant. Rather, we asked the Crown to address the question of the
    reasonableness of the verdicts, which, in our view, is the main issue on
    appeal.

[12]

For the reasons that follow, I would grant leave to appeal, allow
    the appeal in part, set aside the appellants conviction for willfully killing
    the dog and acquit the appellant of that charge. I would dismiss the balance of
    the appeal.

B.

Background

[13]

The
    charges were laid after a personal support worker for the appellants mother
    discovered a dog lying on the ground in the appellants yard around noon on
    April 25, 2012. The dog was tied to a tree with a lead and had a choke chain
    around his neck. The worker described the choke chain as being so tight it was
    disgusting. She noticed later that the dogs muzzle was taped.

[14]

According
    to the personal support worker, during previous visits to the home, she had had
    to wedge herself between the dog and the door, so as not to let the dog in the
    house. She described the dog as being not overly friendly on those occasions,
    but not vicious. She said he did not try to bite her or growl at her.

[15]

Police
    attended the scene one to two hours after the personal support workers arrival
    at the home. They found a male German shepherd in the appellants front yard
    that was obviously dead. The dog was lying on the ground and had black
    electrical tape wrapped around his muzzle. One officer described the dogs
    muzzle as being taped shut with electrical tape. Another officer noticed what
    he thought were blood spots leading to the appellants door. When the appellant
    appeared at the door his right hand was bandaged and the bandage was
    bloodstained. The appellant told the officer the dog bit him and later
    strangled himself in the night.

[16]

A
    Humane Society worker went to the appellants home the day after the dog was
    found. The appellant told the Humane Society worker that he (the appellant) was
    looking after the dog for a friend. The dog had been tied to a tree in the
    front yard with a leash and a choke chain. The day before the dog died, the dog
    bit the appellant when he tried to take the dog off his chain so the appellant could
    take him inside.

[17]

On
    April 25, 2012, the dog was barking continuously. The appellant went to bring
    the dog inside but wrapped electrical tape around the dogs muzzle and nose so the
    dog could not bite him. The appellant tried to take the dog off his chain but
    was unable to do so. He went away. When he returned two hours later the dog was
    dead.

[18]

The
    veterinarian who performed a post-mortem examination on the dog testified at
    trial. When she examined the dog, the tape was no longer on his muzzle.
    Although she could not definitively exclude other possible causes of death, in
    her opinion, the dog died by strangulation as a result of major blood vessels
    being closed off by a ligature in the area of a linear bruise that encircled his
    neck. When asked to describe the texture of the linear bruise, the veterinarian
    said you could see little vertical lines indented into the dogs skin,
    especially over the top of the neck. Although she did not see the choke chain
    the dog had been wearing, she said the little vertical lines would fit with the
    links in most choke chains.

[19]

The
    dog also had petechia or pinpoint bleeds on his face and ears and on his skin
    ahead of the linear bruise, moving up the neck toward the head. In the
    veterinarians opinion, the ligature around the dogs neck would have closed
    off major blood vessels running to and from the head, causing pressure to build
    up and rupture capillaries ahead of the ligature, causing the petechia. The
    only other injuries the veterinarian noted was an abrasion on the right side of
    the dogs muzzle and a smaller abrasion under the dogs right eye. The dog was
    internally healthy and apart from the injuries she noted, the dog did not appear
    to have any kind of health concerns.

[20]

When
    asked during examination-in-chief about the physical and psychological effects
    of taping a dogs muzzle, the veterinarian testified that it would cause a lot
    of stress. She explained that dogs can only release heat and pant with an open
    mouth. They would automatically want to get the tape off. She acknowledged that
    if it was not hot, a dog would not be panting. However, she said if a dog
    started getting stressed out and anxious, the dog could start to pant.

[21]

The
    veterinarian said she would expect a dog to be clawing at the tape, trying to
    get it off and that the dog could start running backwards, just trying to get
    the tape off its face. Although she testified that she did not think this dog
    would have died just from having the tape around his mouth, she thought it
    would have added an extra level of distress to his mental state before he
    actually strangled. She said if the dog ran to the end of the chain and
    continued pulling, the choke chain would continue to tighten. If the dog
    panicked enough and did not stop, he could have pulled until he strangled
    himself.

[22]

In
    cross-examination, the veterinarian agreed that a dogs mouth would have to be
    taped shut to prevent him from panting. However, while she acknowledged that
    different dogs would react differently to having tape wrapped around their
    muzzle, she maintained that a dog would want the tape off. How aggressively a
    dog would try to get the tape off would vary. The veterinarian acknowledged that
    other things could have caused a panicked response in the dog and caused him to
    strangle himself apart from the tape. She also confirmed that apart from the
    two abrasions, she did not see any claw marks or other signs of the dog
    scratching at the tape.

[23]

In
    the veterinarians view, it was unlikely that the dog took a run at something
    out to the end of his chain, thereby choking himself or that the dog had a
    heart attack. She testified that if the dog had taken a one-time run at a car
    or squirrel and made it to the end of his choke chain suddenly, she would not expect
    to see any lasting impact. Choke chains are intended to get a dogs attention.
    Further, she did not observe anything about the dogs heart suggesting a heart
    attack  although she agreed you may not. However, if the dog had had a heart
    attack and died, she did not believe you would see the petechia and bruising
    she observed in this case.

C.

Relevant provisions of the
Criminal code

[24]

The
    offences with which the appellant was charged are set out in ss. 445 and 445.1
    of
Criminal Code
. The relevant portions of those sections read as
    follows:

445(1) Every one commits an offence who, wilfully and
    without lawful excuse,

(a) kills  dogs that are kept for a lawful
    purpose.

445.1(1) Every one commits an offence who

(a) wilfully causes  unnecessary pain, suffering
    or injury to an animal

[25]

As
    noted by the trial judge, s. 429(1) deems recklessness to constitute wilful
    conduct for the purpose of Part XI of the
Criminal Code
, which
    includes ss. 445 and 445.1. Section 429(1) reads as follows:

429(1) Every one who causes the occurrence of an
    event by doing an act  knowing that the act  will probably cause the
    occurrence of the event and being reckless whether the event occurs or not,
    shall be deemed, for the purposes of this Part, wilfully to have caused the
    occurrence of the event.

[26]

In
    addition to s. 429(1), s. 445.1(3) provides that, in the absence of evidence to
    the contrary, evidence that a person failed to exercise reasonable care of an
    animal, thereby causing it pain and suffering, is proof of wilfully causing
    pain and suffering:

445.1(3) For the purposes
    of proceedings under paragraph (1)(a), evidence that a person failed to
    exercise reasonable care or supervision of an animal  thereby causing it pain,
    suffering or injury is, in the absence of any evidence to the contrary, proof that
    the pain, suffering or injury was caused  wilfully, as the case may be.

D.

The trial judges reasons

[27]

The
    trial judge began his reasons by listing the salient background events leading up
    to the dogs death: prior to his death, the dog had been in the appellants
    care for some days; the day before he died, the dog bit the appellant on the
    hand; on the day of his death, the dog was tied to a tree in the appellants
    yard on a choker chain, which is a ligature that tightens as it is pulled; on
    the day of his death, the dog was barking continuously; according to a
    statement made by the appellant, on the day the dog died, he taped the dogs
    muzzle with electrical tape; and, the dog was found dead later the same day,
    chained to the tree with the electrical tape still wrapped around his muzzle.

[28]

The
    trial judge accepted the veterinarians opinion that the dog strangled on the
    choke chain. He acknowledged that the veterinarian could not rule out all other
    possible causes of death. However, he relied on her findings about the
    petechia, the absence of other indications of causation and the surrounding
    circumstances to accept her opinion about the cause of death. In the trial
    judges view, the veterinarian had indicated that the tape was a contributing
    factor in the dogs death. He concluded that the ultimate issue was whether
    the appellant wilfully killed the German Shepherd or wilfully and
    unnecessarily caused pain, suffering and injury to the dog.

[29]

Relying
    on common sense, the trial judge found that the appellant knew that putting
    tape around the dogs muzzle would cause the dog to struggle. Further, relying
    on s. 429 of the
Criminal Code
as well as common sense, the trial
    judge found that the appellant knew that, as a result of struggling because of
    the tape while on a choke chain, the dog would probably harm himself and
    ultimately die, and that the appellant was reckless whether those events would
    occur.

[30]

The
    key portions of the trial judges reasons are set out in Appendix A.

E.

The SCAC judges reasons

[31]

The
    appellant advanced several arguments to the SCAC, including the arguments now
    advanced in this court. The SCAC judge rejected the appellants argument on the
    issue of judicial notice and found that the trial judges conclusions on
    causation and the appellants level of knowledge were inferences that were
    properly available based on the trial record. The SCAC judge also concluded
    that the trial judge could have relied on s. 445.1(3) of the
Criminal Code
in relation to the charge of wilfully causing unnecessary pain and suffering to
    the dog. As noted above, that section deems failure to exercise reasonable care
    for an animal to be proof of wilfully causing the animal pain and suffering in
    certain circumstances.

F.

Discussion

[32]

As
    I have said, the main issue on appeal is whether the verdicts were
    unreasonable. In particular, the appellant contends that
the
    trial judges findings concerning causation and knowledge were speculative and
    contrary to the expert evidence.

[33]

The appellant relies on the veterinarians evidence that she could
    not exclude other causes of death, such as heart attack; that things other than
    the tape on the dogs muzzle could have caused him to panic and asphyxiate; and
    that the responses of different dogs to tape on their muzzles would be
    variable. Moreover, given that the veterinarian could not predict the dogs
    response to having tape on his muzzle, the appellant asserts it was
    unreasonable to conclude that he (the appellant) knew that taping the dogs
    muzzle would probably cause the dog to struggle on the choke chain to the point
    that he would suffer and eventually die and that the appellant was reckless as
    to whether those events ensued.

[34]

I
    would not accept the appellants submissions concerning causation or concerning
    knowledge that the dog would likely struggle and suffer on the choke chain.

[35]

For
    reasons I will explain, in my view, considered as a whole, the evidence creates
    a compelling inference that the dog died by strangling himself on the choke
    chain after the appellant wrapped electrical tape on his (the dogs) muzzle. Further,
    the evidence creates the additional compelling inference that the appellant
    knew, when he wrapped electrical tape around the dogs muzzle, that the dog was
    in an agitated state and would likely struggle and suffer on the choke chain
    and that the appellant was reckless whether those events ensued. I also agree
    with the SCAC judge that the trial judge could have relied on s. 445.1(3) of
    the
Criminal Code
in relation to the charge of wilfully causing
    unnecessary pain and suffering to the dog. For all these reasons, I would
    dismiss the appellants appeal as it relates to that charge.

[36]

On
    the other hand, I agree with the appellants argument that the veterinarians
    evidence undermines the conclusion that the appellant knew the dog was likely
    to strangle himself to death if left unattended on the choke chain with
    electrical tape wrapped around his muzzle. I would therefore allow the
    appellants appeal on the charge of wilfully killing the dog.

(1)

Causation

[37]

Although
    the veterinarian could not definitively exclude all possible causes of death
    other than strangulation on the choke chain, I am satisfied that it was open to
    the trial judge to conclude, based on the totality of the evidence, that was
    the only rational inference as to the cause of death, and further that the tape
    wrapped around the dogs muzzle was a contributing cause of the dogs death.

[38]

That
    evidence includes:

·

the veterinarians opinion that strangulation by ligature was the
    likely cause of death;

·

the veterinarians observations and opinion concerning the bruise
    encircling the dogs neck, the resemblance of the indentations in the bruise to
    the appearance of most choke chains, and the petechia the veterinarian observed
    ahead of the choke chain;

·

the veterinarians opinion that the dog was internally healthy
    and that there were no signs of heart attack;

·

the veterinarians opinion that one would not expect to see the
    petechia she observed had the dog suffered a heart attack;

·

the veterinarians evidence that a choke chain acts as a ligature
    that tightens when a dog pulls on it;

·

the evidence of the appellants statements that the dog bit him
    the day before the dog died;

·

the police officers evidence that he observed blood on the
    appellants bandaged hand;

·

the evidence of the appellants statements that he was unable to
    get the dog off the choke chain either the day before the dog died or after he
    put electrical tape on the dogs muzzle on the day the dog died;

·

the fact that the dog had been tied to a tree while on a choke
    chain throughout the day prior to his death without incident;

·

the fact that the dog was found dead within two hours of being left
    alone tied to a tree while on a choke chain and with tape wrapped around his muzzle;

·

the police officers evidence that the deceased dogs mouth was taped
    shut with electrical tape;

·

the veterinarians evidence that, while the aggressiveness with
    which they would do so would vary, dogs would try to remove tape wrapped around
    their muzzles;

·

the veterinarians opinion that a dog trying to remove tape from
    around its muzzle could start to run backwards in an effort to get the tape
    off;

·

the veterinarians observations concerning the prominence on the
    back of the dogs neck of the indentations in the bruise encircling the dogs
    neck; and

·

the veterinarians opinion that a panicked dog could pull on a
    choke chain until it strangled itself.

[39]

Viewed
    as a whole, this evidence creates a compelling inference that the dog had been
    highly agitated and aggressive in the appellants presence; that he was in that
    state after the appellant applied tape to his mouth; and that he ultimately ran
    backwards and pulled on the choke chain until he strangled himself. Considered
    in context, the appellants assertions that the dog may have died through some
    alternate, undetected cause or that it may have panicked as a result of some
    other, unknown cause, apart from the tape on his muzzle, are themselves speculative.

(2)

Knowledge that the
    dog would likely suffer on the choke chain

[40]

The
    same evidence that I have referred to above, together with the evidence that
    the dog had been in the appellants care on a choke chain during at least two
    days prior to his demise, creates the following additional compelling
    inferences: the appellant knew the dog could be agitated and aggressive; knew that
    the choke chain would tighten if the dog pulled on it; knew that the dog was
    agitated when he (the appellant) placed tape on his (the dogs) muzzle; and
    knew that the dog was likely to experience unnecessary pain and suffering if
    left alone on the choke chain in an agitated state with tape on his muzzle  and
    further, that the appellant was reckless whether these events ensued.

(3)

The trial judge could have relied
    on s. 445.1(3) of the
Criminal Code
in relation to the charge of
    wilfully causing unnecessary pain and suffering to the dog

[41]

In
    any event, in the alternative, I agree with the SCAC judge, that leaving an
    agitated dog unattended for two hours while the dog was in a choke chain with
    its muzzle taped shut demonstrates a failure to exercise reasonable care or
    supervision of an animal under s. 445.1(3) of the
Criminal Code
; that
    the appellants conduct in that regard caused the dog pain, suffering and
    injury and that, given the absence of evidence to the contrary, the appellant
    is therefore deemed to have wilfully caused unnecessary pain, suffering and
    injury to the dog.

[42]

Although
    the trial judge did not refer to s. 445.1(3), it is apparent that he reached
    the same conclusion, when he asked, rhetorically:

Is it a stretch on my part to conclude if you wrap tape on a
    dogs mouth that it is going to struggle and resist and is it unreasonable on
    my part to conclude that if somebody is charged with the care of a dog that
    they should at least, having taken that step, watch and give it some thought
    and consideration to what the consequences would be in that act? It certainly
    is not a normal act to wrap tape around a dogs mouth.

[43]

Whether
    the trial Crown relied on s. 445.1(3), absent prejudice to the appellant, it
    was open to the trial judge, and the SCAC judge, to rely on any route to
    liability available on the evidence. As the appellant did not testify, I fail
    to see how he could have been prejudiced by the failure of the Crown to refer
    to s. 445.1(3). He did not take the opportunity to assert either that he
    exercised reasonable care and supervision of the dog or that he was unaware of
    the potential consequences of leaving the dog tethered to a tree while in a
    choke chain with his muzzle taped shut.

(4)

Knowledge that the
    dog would probably die

[44]

As
    for the trial judges finding that the appellant knew that leaving the dog
    tethered to a tree while in a choke chain with tape around his muzzle would
    probably lead to his death, I agree with the appellant that the veterinarians
    evidence undermines that finding. As expressed by the veterinarian that is
    something that
could
happen if a dog panicked
    enough. She did not express that event as a likelihood. In these circumstances,
    it would be unreasonable to infer that the appellant knew that the dog would
    likely strangle himself to death if left unattended with tape around his muzzle
    while tethered to a tree wearing a choke chain.

G.

disposition

[45]

Based
    on the foregoing reasons, I would grant leave to appeal, allow the appeal in
    part, set aside the appellants conviction for wilfully killing the dog and
    enter an acquittal on that charge. I would dismiss the balance of the appeal.

Released:

GP                                                   Janet
    Simmons J.A.

AUG -4 2017                                    I agree
    John Laskin J.A.

I
    agree G. Pardu J.A.

APPENDIX A

Key Extracts from the Trial Judges Reasons

[Causation]

In the doctors opinion the chain acted
    as a ligature that tightened around the dogs neck which compromised the flow
    of blood and hence, the loss of oxygen to the brain and eventual death.

The doctor could not rule out other circumstances of actual
    death being even a heart attack, as suggested to her, but pointed to the
    extensive evidence of petechia. So to put it another way blood flow to the
    brain was cut off because the chain was too tight.

The doctor further explained that the tape around the dogs
    snout was a contributing factor indicating that the dog likely struggled to get
    the tape off, panicked with time and with anxiety, not being able to remove it
    and pulled and contorted in its efforts to remove that tape all of which would
    cause the choker chain to tighten around the dogs neck.

[Requirement to prove recklessness]

[T]here can be no doubt there was a choker chain on the dog,
    that it pulls and contracts when the dog pulls and that the tape was around the
    muzzle, applied by [the appellant].
Ultimately, I have to be satisfied
    whether [the appellant] knew that by taking those steps and doing those acts
    would probably bring about the result and that he was reckless in regard to the
    outcome
.

[Knowledge that the dog would likely struggle and injure
    itself]

It is hard for me to imagine anybody living in this society and
    not appreciating what a dog is like and how a dog behaves and one could draw
    even from their own personal experience, I would imagine, that a dog would be
    that dissimilar from anybody who is restrained or bound up, or tied up with
    something, to resist.

Is it a stretch on my part to conclude if you wrap tape on a
    dogs mouth that it is going to struggle and resist and
is it unreasonable
    on my part to conclude that if somebody is charged with the care of a dog that
    they should at least, having taken that step, watch and give it some thought
    and consideration to what the consequences would be in that act? It certainly
    is not a normal act to wrap tape around a dogs mouth
.

So it is not something to my mind that I need expert evidence
    or other evidence from someone who could speak about what [the appellant] could
    reasonably expect to be known about how the dog would react if tape was put
    around its nose.
It would resist and it would struggle, it would try to get
    the tape off
.

Did [the appellant] not appreciate when he wrapped tape around
    the dogs muzzle that it would pant which is an effort to breathe, or try to
    pant and would be restricted from its effort to breathe by trying to pant and
    would thereby struggle and try to get the tape off its nose?

There
has to be a degree of common sense that I can apply to
    appreciate that as an ordinary, reasonably prudent person, [the appellant]
    could appreciate all of this, would know all of this and that by his act could
    foresee that the probable occurrence or event would be suffering, pain and
    injury to the dog
.

[S]o for the reasons I have given
I am satisfied that the
    Crown has met its burden under count 2, that [the appellant], by putting the
    tape on the dogs muzzle and chaining it with a choker caused the dog to suffer
    and sustain injury knowing that that would be the probable outcome and that he
    was reckless as to its outcome
.

[Knowledge that the dog would likely strangle himself to
    death]

[I]n the absence of the choker I would not be satisfied that
    [the appellant] could know that his act of putting tape on the muzzle would
    probably cause the dogs death
but that tape on the muzzle, coupled with the
    choker chain tied to the tree would probably result in the dog struggling and
    the eventual strangulation, because again, I think there is a degree of common
    sense with his years in knowing that a dog does not have the capability to
    reason as a human would, to resist and stop struggling because it could lead to
    its death but would struggle eventually until its death
. [Emphasis added.]


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mallozzi, 2017 ONCA 644

DATE: 20170809

DOCKET: C61364

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Italo Mallozzi

Appellant

Jill R. Presser and Jeff Marshman, for the appellant

Brian Puddington, for the respondent

Heard: May 31, 2017

On appeal from the order of Justice Fletcher Dawson of
    the Superior Court of Justice, dated April 9, 2015, dismissing the s. 11(b)
    application, and from the conviction entered on April 10, 2015 by Justice Bruce
    Durno of the Superior Court of Justice.

Benotto J.A.:

[1]

After a preliminary inquiry and two mistrials, and over five years from
    the date he was charged, the appellant was convicted of two counts of production
    of marijuana, contrary to s. 7(1) of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19. He was sentenced eight months later.

[2]

The appellant appeals on the basis that the
    trial judge erred in dismissing his application for a stay of proceedings for
    unreasonable delay, pursuant to s. 11(b) of the
Charter
.

[3]

For the reasons that follow, I would dismiss the
    appeal.

A.

Facts

[4]

The appellant and several co-accused were
    charged on April 7, 2010 with production of marijuana and possession for the
    purpose of trafficking. The operation involved a potential yield of $1,200,000
    per year.

[5]

There were five accused and most counsel were
    from outside the jurisdiction. The matter took 14 months in the Ontario Court
    of Justice. On May 31, 2011, after the preliminary inquiry, the appellant was
    ordered to stand trial.

[6]

The appellant and three co-accused made their first
    appearance in Superior Court on June 7, 2011. No counsel for any of the accused
    appeared on that date. Thompson J. set a judicial pre-trial for June 24, 2011. All
    accused said they were prepared to go to trial. The Crown indicated that it was
    ready to begin the trial in the fall. The date of October 3, 2011 was offered.
    The appellant told the court that his lawyer was not available in the fall of
    2011
[1]
. Thompson J. expressed
    frustration that no counsel had attended with available trial dates, but
    nonetheless secured the October 3, 2011 trial date.

[7]

At some point the October 3, 2011 trial date
    was adjourned, and the matter was spoken to on October 4, 2011. Counsel for the
    appellant did not attend at court on October 4 but sent a letter stating that
    the earliest date she was available was May 7, 2012. Thompson J. advised that
    he had earlier dates available in January 2012. The appellant  who was in
    court  was told to contact his counsel. He did so and reported back that she
    was not available in January but renewed the request for dates in May 2012.

[8]

The matter was adjourned to November 30, 2011 to
    see if the court could accommodate the appellants counsel. On November 30, the
    matter was adjourned for two weeks to December 13, 2011. On December 13, the
    appellants counsel again sent a letter, this time with an agent, stating that
    she was available for a three-week trial May 15-24, 2012 and other dates later
    in the year. Even though this was not a three-week period, Thompson J. scheduled
    jury selection to begin on May 15, 2012.

[9]

On March 20, 2012, counsel for the appellant, through
    an agent, requested an adjournment of the May 15, 2012 trial date. The agent confirmed
    to the court that the appellants counsel is prepared to waive 11(b) on the
    record. The Crown consented to the adjournment and the matter was put over.

[10]

On June 5, 2012, the matter was back in court. The
    appellants counsel had sent a letter requesting that a trial date be set a
    year later in the summer of 2013. Crown counsel told the court:

[D]espite [appellants counsels] willingness
    to waive delay, I am, the Crown is concerned with the societal interest in
    having this case proceed and accordingly I am not in a position to consent to
    an adjournment until the summer of 2013.

[11]

The court was similarly concerned and  despite
    the waiver  adjourned the matter to June 25, 2012. The matter was adjourned
    again to September 4, 2012 as the appellant was deciding on how to proceed. Before
    that date arrived, the appellants counsel sent an email to the Crown stating:

I dont have any availability until next fall
    or late summer.  Obviously 11(b) is not an issue for me.

[12]

Ultimately the trial was set to commence on
    October 7, 2013.

[13]

On the first day of trial, October 21, 2013,
    only 11 jurors had been chosen when the jury panel was exhausted. The trial
    judge asked the sheriff to summon persons from the general public to act as the
    twelfth juror, pursuant to s. 642 of the
Criminal Code
. The appellants counsel objected and stated that she would bring a
    constitutional challenge to this procedure. This would have required notice to the

Attorney General of Canada and the
    Attorney General of Ontario.
[2]
The trial judge declared a mistrial.

[14]

The Superior Court was able to schedule a second
    trial within two months on December 2, 2013. Neither defence counsel was
    available. At the hearing of an adjournment application on November 30, 2013, the
    court offered March 3, 2014 but the appellants counsel was not available. The
    court finally set July 14, 2014 as the trial date.

[15]

A request by the appellants counsel for a
    further adjournment was rejected. The trial began with the selection of a jury
    on July 14, 2014. There were problems with the jurors: one knew the co-accused,
    one was dating a police officer and five of the jurors had been part of the
    panel originally called in October 2013. Another mistrial was declared.

[16]

Despite several available trial dates, including
    one three months later, counsel for the appellant was not available until April
    13, 2015.

[17]

On March 18, 2015, the appellant and his then
    co-accused brought a s. 11(b)
Charter
application. The application was argued and decided under the
Morin
framework by the application judge: See
R. v.
    Morin
, [1992] 1 S.C.R. 771. The application by the
    co-accused was allowed. The appellants application was dismissed and the
    matter proceeded to trial.

[18]

On April 10, 2015, the appellants matter was
    heard before the trial judge, who found him guilty of two counts of production
    of marijuana. On December 4, 2015, he was sentenced to 31½ months imprisonment,
    concurrent on both counts, in addition to the 4½ months of credit for pre-trial
    custody.

[19]

The appellant now argues that the delay was
    unreasonable. He appeals the decision of the application judge and the
    conviction entered by the trial judge.

B.

Positions of the parties

[20]

The appellant alleges that the delay violated his
    right under s. 11(b) of the
Charter
to be tried within a reasonable time and should result in a stay of
    proceedings. A total of 60 months and three days elapsed between charge and
    conviction. A further seven months and 24 days elapsed before the appellant was
    finally sentenced. The total delay well exceeds the 30-month ceiling set out in
R. v.
Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631. There are no exceptional circumstances to justify the otherwise
    unreasonable and excessive period of delay.

[21]

The Crown acknowledges that the gross amount of
    delay exceeds the
Jordan
ceiling. The Crown submits, however, that once delay caused by
    discrete events is subtracted, the remaining delay is under the presumptive
    ceiling and the delay is not unreasonable.

C.

Analysis

[22]

I have concluded that the net delay is below the presumptive ceiling and
    is not unreasonable. However, as I will explain, even if I were to accept the
    appellants submission that the delay is above the presumptive ceiling,
    exceptional circumstances would justify the delay.

[23]

I begin with a brief description of the
Jordan
framework and
    then apply the principles to the facts of this case.

(1)

The
Jordan
principles

[24]

On July 8, 2016, the Supreme Court rewrote the law on unreasonable delay
    under s. 11(b) of the
Charter
with the release of its decision in
Jordan
.
    The
Jordan
framework replaced the multi-factored
Morin
framework. In its place, the Supreme Court set a presumptive ceiling of 18
    months in provincial court and 30 months in superior court. Delay is calculated
    from the date of the charge to the end or anticipated end of the trial, minus
    any delay attributed to the defence:
Jordan
, at paras. 46-47.

[25]

A delay that exceeds the ceiling is presumptively unreasonable. It falls
    to the Crown to rebut the presumption by establishing that the delay was caused
    by exceptional circumstances beyond its control. A delay that is below the
    ceiling is presumptively reasonable and it is up to the defence to establish
    that the delay is nonetheless unreasonable. Stays beneath the ceiling should
    only be granted in clear cases:
Jordan
, at para. 48.

[26]

Jordan
applies to cases that were already in the
    system at the time of its release, but it is to be applied contextually and
    flexibly in such circumstances. For cases where the delay exceeds the
    presumptive ceiling but cannot be justified by exceptional circumstances, a
    transitional exceptional circumstance may arise if the Crown establishes that
    the time the case has taken is justified based on the parties reasonable
    reliance on the law as it previously existed:
Jordan
, at paras. 95-96.

[27]

There are three steps to follow where a matter that was started under
    the pre-
Jordan
regime is determined post-
Jordan
:

R. v. Coulter
, 2016 ONCA 704, 340
    C.C.C. (3d) 429, at paras. 34-41; See also
R. v. Gordon
, 2017 ONCA 436,
    348 C.C.C. (3d) 426.

[28]

First, any time attributable to defence delay must be subtracted from
    the total delay to determine the net delay. The calculation of net delay
    involves an analysis of delay attributable to the defence, which was recently
    discussed in
R. v. Cody
,
2017 SCC 31, 138 W.C.B. (2d) 118. Defence delay has two components: delay
    expressly waived and delay caused by defence conduct. The subtraction of delay
    caused by defence conduct is intended to prevent the defence from benefitting
    from its own delay-causing action or inaction:
Cody
, at

para.
    28.

[29]

Second, if the net delay is above the presumptive ceiling, the court
    must subtract delay arising from discrete events. If the remaining delay still exceeds
    the ceiling, the court must consider whether the delay is justified by case
    complexity:
Cody
, at para. 64.

[30]

Third, if the delay is not justified by discrete events or case
    complexity, the court must consider the whether the transitional exceptional
    circumstance applies, based on reasonable reliance on the
Morin
criteria.
    As Doherty J.A. stated in
Gordon
,
at

para. 23:

In most cases, especially when all of the delay occurred prior
    to the release of
Jordan
, if the court concludes that the delay was
    not unreasonable under
Morin
, the transitional exceptional
    circumstance described in
Jordan
will justify delays beyond the
    30-month cap.

[31]

A theme that grounds
Jordan
and
Cody
is that an
    accused is entitled to have a trial within a reasonable time but has the
    responsibility to avoid delay. Accused persons must bear in mind that a
    corollary of the s. 11(
b
)
    right to be tried within a reasonable time is the responsibility to avoid
    causing unreasonable delay:
Cody
, at para. 33. Defence counsel are
    therefore expected to actively advance their clients right to a trial within a
    reasonable time, collaborate with Crown counsel when appropriate and use court
    time efficiently:
Jordan
, at para. 138;
Cody
, at para. 33.

(2)

The principles applied

[32]

The appellants case took 60 months to come to trial. The record
    discloses, however, that the delay was primarily the responsibility of the
    appellant. Express waiver by the appellant, coupled with delay caused by defence
    conduct, accounts for 37 months of delay. The net delay of 23 months is below
    the presumptive ceiling.

[33]

This conclusion is supported by four key factors.

[34]

First, from October 4, 2011 to the first trial date on October 7, 2013,
    the court repeatedly offered dates and attempted to accommodate the appellants
    counsel. As confirmed in
Jordan
, and subsequently in
Cody
, at para. 30
: where the court and Crown
    are ready to proceed, but the defence is not, the resulting delay should also
    be deducted. Here, the court and Crown were ready to proceed on October 3,
    2011. The appellants counsel was unavailable until May 2012 and then sought a
    further adjournment to the summer of 2013 which then stretched into the fall. The
    24-month delay from October 2011 to October 2013 is attributable to the
    defence.

[35]

Second, within that 24-month period of delay, on March 20, 2012, the
    defence expressly waived s. 11(b) until the next trial date, October 7, 2013. This
    is an additional reason for deducting the waived period from the total delay.

[36]

Third, after the first mistrial on October 21, 2013, the court offered
    dates within two months, starting on December 2, 2013. The Crown was willing to
    proceed on that date, but the appellants counsel was not available until July
    14, 2014. Those seven months of delay are attributed to the defence.

[37]

And finally, after the second mistrial on July 14, 2014, the court again
    offered dates within three months, starting on October 6, 2014. Crown counsel
    was available. Again, defence counsel was not available until April 13, 2015.
    Those six months are attributable to the defence.

[38]

In total, 37 months should be subtracted as delay either waived or
    caused solely by defence conduct. This leaves a net delay of 23 months, which
    is under the presumptive ceiling. The appellant has not established that the
    net delay was unreasonable.

[39]

In light of this conclusion, it would not be necessary to consider
    exceptional circumstances or the transitional provisions. I do so, however, to
    demonstrate that  even if the net delay had been somewhat above the
    presumptive ceiling  the delay would have been justified.

[40]

First, the exceptional circumstances.

[41]

In my view, the two mistrials qualify as discrete, exceptional events
    that were reasonably unforeseeable. The first mistrial was October 21, 2013. The
    court and the Crown were prepared to empanel a twelfth juror through the use of
    s. 642 of the
Criminal Code
. The appellants counsel objected and
    indicated a desire to launch a constitutional challenge to the process. The
    appellant submits that this delay was caused by the system that failed to
    empanel enough jurors. I do not agree. The record discloses that over a hundred
    jurors were called. This was a routine criminal trial in a relatively small
    Ontario town. There is no evidence of an error. In any event, a frivolous
    position taken by defence counsel is defence delay which is deducted from the
    presumptive ceiling:
R. v. D.C.
,

2017 ONCA 483, at para 5.

[42]

As noted earlier, the Crown and the court were willing to proceed
    promptly with a new trial on December 2, 2013. I would therefore deduct the period
    from October 21, 2013 to December 2, 2013 as the result of the first mistrial.
    The delay of approximately 7 months  from December 2, 2013 until July 14, 2014
     flowed not from the mistrial but from defence counsels unavailability, and
    should therefore be characterized as defence delay.

[43]

The second mistrial was July 14, 2014. Although all parties
    agreed that a mistrial had to be declared when it was discovered that five
    members of the jury had been on the panel summoned in October 2013, I do not
    agree that a mistrial was necessary. Again, the appellant submits that this was
    a failure of the system. Again, I disagree. These events were unforeseeable and
    were not contributed to by the Crown. They were exceptional.

[44]

After the second
    mistrial, the court and the Crown were willing to proceed in early October
    2014, but the appellants counsel was unavailable until April 2015. I would
    therefore deduct roughly three months as delay flowing from the second
    mistrial.

[45]

It has not been
    suggested that the delay in this case is justified on the basis of case
    complexity.

[46]

Finally, I consider the transitional exceptional circumstance.

[47]

All of the delay in this case took place under the
Morin
framework,
    and the parties reliance on that framework must therefore be taken into
    account. The reasonableness of the delay under the
Morin
framework was
    determined by the application judge in a thorough and careful analysis. He noted
    that that the appellant had waived any delay from March 20, 2012 to the first
    trial and, in addition:

·

The court offered dates as early as October 2011;

·

The court attempted to accommodate defence counsel;

·

The court had dates available within three to four months of
    every set date appearance;

·

The Crown acted expeditiously from the outset, and there was no
    Crown delay;

·

There were only 15.3 months of institutional delay, a period
    within the
Morin
guidelines;

·

Though the appellant suffered some prejudice due to the lengthy
    delay, it was considerably less than that suffered by his co-accused;

·

The societal interest in a trial on the merits carried more
    weight in relation to the appellant, who was alleged to be central to the marijuana
    grow operation, than in relation to the co-accused; and

·

The actions of the appellant demonstrated that he was not
    pressing at any time for an early date: indeed, he was content with the pace of
    the proceedings.

[48]

For these reasons, the application judge found that the delay in the
    appellants case was reasonable. As stated in
Gordon,
when all of the
    alleged delay occurred before
Jordan
,

and the court has concluded that the delay was not unreasonable under
Morin
,

the transitional exceptional
    circumstances will justify delays beyond the presumptive ceiling.

(3)

Delay to sentence

[49]

During submissions, the appellant submitted that the 30-month
    presumptive ceiling applies from charge to sentence, not just from charge to
    verdict. The court requested further submissions with respect to this issue.

[50]

The time between conviction and sentence was approximately eight months.
    Even if the entire time is added to the net delay of 23 months, the delay barely
    exceeds the 30-month
Jordan
ceiling. If time is deducted in relation
    to the discrete events that were the two mistrials, the delay is again below
    the ceiling. Moreover, as I have explained, even if the delay were to exceed
    the presumptive ceiling, on the facts of this case, it would be justified on
    the basis of reasonable reliance on the pre-
Jordan
state of the law.
    It is therefore not necessary to determine this issue.

D.

Disposition

[51]

I would dismiss the appeal.

Released: August 9, 2017

M.L. Benotto J.A.

I agree K. Feldman
    J.A.

I agree G. Pardu J.A.

[1]
Trial counsel was not counsel on the appeal.

[2]

Courts of Justice Act
, R.S.O. 1990 c. 43, s. 109.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. McLean, 2017 ONCA 657

DATE: 20170817

DOCKET: C60929

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ginell McLean

Appellant

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Heard and released orally:  August 15, 2017

On appeal from the conviction entered by Justice M.F.
    Brown of the Superior Court of Justice on January 27, 2015.

REASONS FOR DECISION

[1]

This was a simple single-issue case  did the
    Crown prove beyond a reasonable doubt that the appellant was in possession of
    the firearm and ammunition found in the computer bag she removed from her
    apartment, took and left in the apartment of her cousin?

[2]

There was overwhelming evidence that the appellant had
    possession of the computer bag in which the gun and ammunition were found
    during the police search.  She took the bag from her apartment to her cousins
    apartment in the same building and left the bag in the bedroom where the police
    discovered it a short time later.

[3]

The crucial question was whether the appellant knew the
    gun and ammunition were in the bag.  Her boyfriend, who was at her apartment
    earlier that morning, was a gang member and presumably the suggestion is that,
    unbeknownst to the appellant, he put the gun and ammunition into the bag.

[4]

In our view, if the Crown proved that the appellant
    knew the gun and ammunition was in the bag, her physical possession of the bag
    and her control over it provided ample evidence of sufficient control over the
    contents of the bag to establish the control required for possession.
    Knowledge was the crucial issue.  The Crown relied on circumstantial evidence
    to prove knowledge or its legal equivalent, wilful blindness.  The appellant
    did not testify.

The trial judge thoroughly and
    accurately reviewed the evidence and we will not repeat that exercise.

[5]

The appellant submits that the verdict is unreasonable.
    She argues that the trial judge did not consider the availability of an
    alternative inference, that is, that the bag contained some other kind of
    contraband, e.g. drugs.

[6]

We disagree with this submission.  The trial judge
    specifically considered and rejected the submission, describing it as based on
    speculation.  We agree with this characterization.  There was simply no
    evidence of what, if anything, was said by the boyfriend to the appellant about
    the contents of bag.  The trial judge had to draw inferences from the evidence,
    not from what the evidence might have been.

[7]

To succeed on the argument that the verdict was
    unreasonable, the appellant must convince us that no trial judge, acting
    reasonably and on a proper understanding of the law relating to circumstantial
    evidence, could have been satisfied beyond a reasonable doubt that the
    appellant knew the gun and ammunition were in the bag.  It is not this courts
    function to make its own assessment of the reasonable inferences that could be
    drawn.  Rather, the courts limited power to reweigh evidence goes only so far
    as to determine whether the trial judges inference of knowledge from the
    totality of the evidence falls within the range of reasonableness, having
    regard of course to the burden of proof.

[8]

There was ample evidence from which the trial judge
    could reasonably come to the conclusion that he did, that is, that the Crown
    had proved knowledge or its equivalent, wilful blindness, beyond a reasonable
    doubt.

[9]

The appeal is dismissed.

Doherty J.A.

H.S. LaForme J.A.

Paul Rouleau J.A.