COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labonte, 2016 ONCA 426

DATE: 20160601

DOCKET: C58216

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Labonte

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Michael Perlin, for the respondent

Heard: November 25, 2015

On appeal from the convictions entered on September 13,
    2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario
    Court of Justice.

Benotto J.A.:

Overview

[1]

A drug transaction took place outside a bar in Sudbury, Ontario. One of
    the parties to the transaction was stabbed eight times and was left bleeding on
    the sidewalk.

[2]

At trial, there were two competing versions of events. The complainant
    claimed he was purchasing drugs from the appellant, who was in a parked car. He
    said that when he gave the appellant his money, she and the co-accused tried to
    drive away without giving him the drugs. He dove into the car through the
    passenger window to try to engage the parking brake and was stabbed eight times
    by the co-accused.

[3]

The appellant and the co-accused claimed that the complainant was not
    the purchaser of the drugs, but the seller. They said that when the appellant paid
    the complainant, he counted the money and unexpectedly attacked them through
    the car window. The co-accused stabbed the complainant to defend the appellant.
    Both the appellant and the co-accused denied the complainants allegation of robbery.

[4]

The trial judge reviewed the contradictory evidence and found that the
    appellant and her co-accused had created a plan to rip off the complainant to
    settle a prior debt.

[5]

The trial judge convicted the appellant and her co-accused of robbery
    and other related offences. In doing so, he did not turn his attention to the
    counts as particularized by the Crown. The appellant and her co-accused both appeal
    their convictions and sentences. The two appeals were heard together. The
    reasons are being released together and are intended to be read together: see
R.
    v. Breton
, 2016 ONCA 425.

[6]

For the reasons that follow, I would allow the appeal and order a new
    trial.

Facts

[7]

The appellant, Ashley Labonte, was 26 years old at the time of the
    events in question. She had been involved in the drug trafficking trade for at
    least two years. The co-accused, Jean Claude Breton, was her boyfriend.

[8]

On the evening of December 4, 2012, the appellant and Breton were parked
    in a car outside the Nickel City Hotel, a bar in Sudbury, Ontario. In the
    drivers seat was the appellants friend, Natalie Ross. They were waiting to
    conduct a drug transaction with the complainant, John Courtemanche.

[9]

There was conflicting evidence about almost every aspect of the drug
    transaction, including (1) how the meeting was arranged; (2) who was selling
    drugs and who was buying drugs; (3) what type of drug was being sold; (4) how
    much money was being paid; and (5) who initiated the violence.

[10]

In
    any event, it was clear that some sort of drug transaction or rip-off was
    underway. It was also clear that Courtemanche was stabbed eight times by
    Breton. Breton claimed that he did this to defend the appellant.

(1)

Evidence of Courtemanche

[11]

The
    Crowns case against the appellant and Breton was primarily based on Courtemanches
    testimony.

[12]

Courtemanche
    testified that he had no dealings with the appellant before the drug
    transaction. Yet, he said that she called him on December 4, 2012 in order to
    sell him $50 worth of crack cocaine outside the Nickel City Hotel.

[13]

Courtemanches
    friend, Alain Rheaume, drove him to the Nickel City Hotel to meet the appellant.
    There, Courtemanche saw Natalie Ross, whom he knew. She was parked in her
    yellow two-door car. Ross waved Courtemanche over.

[14]

He
    approached the passenger side of the car, where the appellant was sitting. He
    did not see anyone in the back seat of the car. He said that the appellant took
    his $50 and someone from inside the car said go. When he heard this, he
    thought he was getting ripped off, so he dove into the car through the open
    passenger window and jammed the car into park with the parking brake.

[15]

Courtemanche
    then felt what he thought was punching from behind. He heard go, go again. Ross
    put the car in drive and he reached inside again to put it into park. He said
    he then got three more shots to the head. As he was struggling to get his
    money back, he grabbed a few things.

[16]

The
    Crown alleged that Breton had leaned over from the back seat and stabbed
    Courtemanche eight times and that in doing so, Breton accidentally stabbed the
    appellant once in the hand. Ross was then successful in driving off, leaving
    Courtemanche bleeding on the sidewalk.

[17]

Courtemanche
    suffered three lacerations to his head, three stab wounds to his back and two
    stab wounds to his arm. One of the stab wounds perforated his left lung and another
    perforated his left kidney, necessitating its removal.

(2)

Evidence of the Appellant and Breton

[18]

The
    appellant and Breton testified that Courtemanche was the drug dealer and that the
    product being sold was fentanyl patches  not crack cocaine.

[19]

The
    appellant testified that in the afternoon of December 4, 2012, Courtemanche
    called her to say he had fentanyl patches for sale. She had bought fentanyl
    patches from him before. On one occasion he shorted her one patch, so he owed
    her one more. They agreed on the phone that he would give her three patches for
    the price of two (the average price is about $150 per patch; she would pay $300
    for three patches). They agreed to meet outside the Nickel City Hotel around 8:30
    p.m.

[20]

The
    appellant and Breton were given a ride in Ross car to the Nickel City Hotel. The
    car was a small two-door with tinted windows. Ross was driving. The appellant
    was in the back seat and Breton was in the front.

[21]

When
    they arrived at the Nickel City Hotel, the appellant and Breton switched seats
    because she felt she would not be able to conduct the deal from the confines of
    the back seat. She also wanted Courtemanche to see her, because she was the one
    who arranged the deal with him and he did not know who Breton was.

[22]

The
    appellant phoned Courtemanche when she arrived. He approached the car and handed
    the appellant the three fentanyl patches. She gave him $300 cash. She then gave
    the patches to Breton in the back seat.

[23]

Courtemanche
    counted the money and then freaked out and attacked her. He stabbed her in
    the hand with his knife and tried to engage the parking brake to prevent the
    car from leaving. Breton was able to wrestle the knife away from Courtemanche and
    stabbed him in an effort to defend the appellant.

[24]

The
    appellant denied that the transaction had anything to do with cocaine and
    denied ripping off Courtemanche.

[25]

Breton
    testified that when the appellant handed Courtemanche the money all hell broke
    loose. Courtemanche jumped through the window of the car, began attacking the
    appellant and going crazy. He was pulling her hair and hitting her. Breton
    said he told Ross to drive.

[26]

Breton
    said that Courtemanche had the knife and he tried to get it out of
    Courtemanches hand. He said that he grabbed Courtemanches wrist and managed
    to wrestle the knife away.

[27]

With
    the knife in his hand, Breton was trying to push Courtemanche out of the car. He
    was not trying to stab him, merely trying to protect the appellant  his
    girlfriend. He was not even aware that he had stabbed Courtemanche as
    Courtemanche was not reacting at all. Breton was afraid for the appellants
    life.

[28]

Breton
    also testified that the transaction had nothing to do with crack cocaine. After
    the events and before the police arrived, he smoked a strip of one of the
    fentanyl patches because he was shaken and had been hit in the face.

(3)

Other Evidence

[29]

Fentanyl
    patches and a shank were found in Courtemanches jacket. Courtemanche said
    this was impossible and that the transaction had nothing to do with
    fentanyl. No crack cocaine was found on anyones clothes or in the car.

[30]

Rheaume
    testified that he heard the car revving and the driver shout, just dont do
    that. He then saw Courtemanche on the ground.

[31]

Samantha
    Jean, a patron having a smoke outside of the bar, heard the car revving and saw
    it move forward, stop, then reverse. She heard the sound of a parking break and
    heard a man yell, why do you got to do me like that? Courtemanche was in the
    window of the car when it started to drive away. He was bleeding.  She also
    testified that when Courtemanche fell out of the vehicle, she saw money fall to
    the ground. Someone came from across the street and picked it up. She did not
    see how much money there was.

[32]

Ross
    testified that she picked up the appellant around 8:15 pm on December 4, 2012. The
    appellant asked Ross to take her and Breton to the Nickel City Hotel. As she
    pulled up, the appellant was on the phone and waved Courtemanche over. She did
    not recall if anyone switched seats in the vehicle, but confirmed that the
    appellant was in the front seat.

[33]

Ross
    knew Courtemanche by his street name Frenchy. Courtemanche came towards the
    car. Ross testified that Courtemanche had a short conversation with the
    appellant. Without warning, she heard the appellant say what the hell? and
    then Courtemanche unexpectedly jumped into the car through the passenger
    window. Breton, in the back seat yelled drive. Ross tried to get away but
    Courtemanche kept forcing the car into park. Breton was trying to get
    Courtemanche off of the appellant.

[34]

According
    to video surveillance, the entire transaction took place in approximately one
    minute. (The trial judge incorrectly said 37 seconds as trial counsel had not
    adverted to the fact that the video did not run continuously but rather every
    half second.)

The Charges Against the Appellant

[35]

As
    the result of these events, in addition to some unrelated charges, the
    appellant was charged with robbery. She was also charged with being an
    accessory to an attempted robbery by Breton. The Crown particularized the
    robbery charge against the appellant and Breton as involving a theft of money
    from Courtemanche.

Trial Judges Reasons

[36]

The
    trial judge released written and oral reasons simultaneously. It appears as
    though he read his written reasons aloud, but added oral comments not found in
    the written reasons. To the extent that the transcript differs from the written
    reasons, I rely on the transcript.

[37]

The
    trial judge began his reasons by describing the accused and the charges they
    were facing. He said the appellant and Breton were charged with the robbery of
    Courtemanche and that the appellant was also charged as an accessory to a
    robbery of Courtemanche. He did not refer to the particulars in the
    information.

[38]

Despite
    the submission from defence counsel that Bretons identity was in issue, the
    trial judge found that the appellant and Breton were clearly the two persons
    involved in the failed drug transaction.

[39]

The
    trial judge found that the appellant and Courtemanche knew each other from past
    drug deals and agreed to meet on the evening of December 4, 2012. He did not
    make a finding of fact as to who arranged the meeting as it was his view that
    it did not really matter.

[40]

The
    trial judge effectively rejected Courtemanches testimony that the subject of
    the drug transaction was the purchase of $50 worth of crack cocaine as he found
    it highly unlikely for the appellant and Breton to have come all the way from
    the outskirts of the city for a $50 drug deal.

[41]

Further,
    as no cocaine was found in the car or on any of the parties involved in the
    drug deal the trial judge found that the evidence supported the appellants contention
    that the drug deal was for fentanyl patches. He did not however make a specific
    finding to that effect.

[42]

Nor
    did he make a finding of fact as to who was selling and who was buying the
    drugs. Consequently, he also did not make a finding of fact as to what, if
    anything, was stolen from Courtemanche  money or drugs.

[43]

The
    trial judge went on to conclude that the appellant and Breton had planned all
    along to settle in a roundabout manner John Courtmanches debt to her and in
    the process rip him off. He also found that the appellant brought Breton
    along as muscle for security and that the violence that ensued was not
    unexpected.

[44]

With
    respect to the stabbing of Courtemanche, the trial judge did not accept
    Bretons evidence. He found that:

·

Had Courtemanche been the aggressor, he could have easily
    inflicted a number of deadly wounds on the appellant, rather than just cut her
    hand;

·

The appellants hands were in the air for much of the struggle.
    It made most sense that she was accidentally stabbed by Breton, rather than by Courtemanche,
    who was essentially leaned over in her lap;

·

If Breton wrestled the knife from Courtemanche, he would have had
    to grab the blade, yet he suffered no cuts to his hands; and

·

Courtemanche could not have been the aggressor while he was
    trying to prevent them from driving away.

[45]

The
    appellant was convicted of robbery and sentenced to 30 months imprisonment.
    She also received a consecutive term of six months imprisonment for other
    unrelated property offences and offences against the administration of justice,
    in relation to which there is no issue on appeal.
The trial judge simply stayed the charge he described as being an
accessory to robbery based on the principles in
R. v. Kienapple
, [1975]
    1 S.C.R. 729 without giving any reasons relating to that charge. (On appeal it
    is undisputed that, having entered a conviction for robbery, the trial judge
    should not have stayed a count in which the appellant was charged as an
    accessory to the very robbery of which she was convicted.)

[46]

Breton
    was also convicted of robbery and was sentenced to 60 months imprisonment,
    given his more violent role in the offence and his criminal record. Additionally,
    Breton was convicted of three counts of breach of probation and possession of a
    weapon for a purpose dangerous to the public peace, for which he was sentenced to
    12 months imprisonment, consecutively. Bretons charge of aggravated assault
    was stayed on the basis of the
Kienapple
principle.

Issues on Appeal

[47]

At
    the hearing of the appeal, the appellant framed her argument primarily as an
    unreasonable verdict, but wove errors by the trial judge into that argument
    that she argues led him to an unreasonable verdict. She submitted that his
    reasons are insufficient, internally inconsistent and unreasonable; the
    findings of fact were based on speculation; and he reversed the burden of
    proof.

[48]

The
    respondent submits that the verdict was reasonable  the reasons were
    sufficient and there were no palpable and overriding errors or reversals of the
    burden of proof.

Analysis

[49]

I
    will begin with the appellants submissions as to unreasonable verdict.  I do
    not agree that the test has been met. A conviction for the charge of robbery as
    particularized could reasonably be rendered by a properly instructed jury,
    acting judicially, on the evidence as a whole and having regard to the findings
    of the trial judge. However, I have concluded that a new trial is necessary
    because the trial judges reasons are insufficient and fall short of fulfilling
    their functional requirements. Accordingly, I would allow the appeal and order
    a new trial. It is therefore not necessary to address the appellants sentence
    appeal.

(1)

Unreasonable
    Verdict

[50]

The
    test to be applied by an appellate court in determining whether a verdict is
    unreasonable or cannot be supported by the evidence has been explained by the
    Supreme Court of Canada.  In
R. v. Yebes
, [1987] 2 S.C.R. 168, at p.
    186, McIntyre J. wrote for the court:

The Court must determine on the whole of the evidence whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. While the Court of Appeal must not merely substitute
    its view for that of the jury, in order to apply the test the Court must
    re-examine and to some extent reweigh and consider the effect of the evidence.

[51]

In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, the
    court further explained that this test imports both an objective and a
    subjective assessment. The reviewing court looks at the sufficiency of the
    evidence objectively to determine if it is capable of supporting the verdict
    and then, using the lens of judicial experience, weighs the evidence to
    determine whether the verdict is supportable on any reasonable view of the
    evidence. This test has been subsequently applied by the Supreme Court of
    Canada (
R. v. Sinclair,
2011 SCC 40, [2011] 3 S.C.R. 3;

R. v.
    W.H.
,
2013 SCC 22, [2013] 2 S.C.R.
    180;
R. v. R.P.
,

2012 SCC 22, [2012] 1 S.C.R. 746) and by this court (
R. v. Smith
,
2016 ONCA 25, [2016] O.J. No. 144)

[52]

There
    is a slightly expanded scope of review for unreasonableness in judge alone
    cases. As recently explained by Watt J.A. in
Smith
at para 75:

In cases tried without a jury, the unreasonableness analysis
    required under
R. v.

Beaudry
involves scrutiny of the logic
    of the judges findings of fact or inferences drawn from the evidence admitted
    at trial:
R. v. Sinclair
.  Under this test, an appellate court can
    interfere where a trial judge draws an inference or makes a finding of fact
    that is:

i.   plainly contradicted by the evidence relied upon by the
    judge for that purpose; or

ii. demonstrably incompatible with
    evidence that is not otherwise contradicted or rejected by the trial judge
    (citations omitted).

[53]

The
    test articulated in
R. v. Beaudry
,

2007 SCC 5, [2007] 1 S.C.R. 190 is a narrow inquiry as to whether a trial
    judges conclusion or verdict can be seen from the reasons to have been reached
    illogically or irrationally.

[54]

A
Beaudry
error will only be found in exceptional cases where the
    reasoning process of the trial judge is so irrational, or so at odds with the
    evidence, that it vitiates the verdict  even though that verdict is available
    on the evidence as a whole. In these rare cases, an appellate court will be
    justified in concluding that the verdict itself is unreasonable. However, a new
    trial should be ordered, rather than an acquittal, where the verdict discloses
    evidence capable of supporting a conviction.

[55]

When
    the reviewing court is considering the verdict in a judge alone trial, there is
    another element: deference must be shown to the trial judges credibility findings
    provided that they are supported by and compatible with the evidence:
R. v.
    R.P.
, at para. 12.

[56]

I
    now apply these principles to the case before the court.

[57]

Pursuant
    to the
Yebes/Biniaris
test a verdict of guilt was available. There was
    evidence from Courtemanche that he had been robbed of money. The trial judge
    rejected Courtemanches evidence that the subject matter of the transaction was
    a $50 crack cocaine deal but did not reject his evidence in its entirety. Rejection
    of Courtemanches evidence on the subject matter of the transaction did not
    preclude a trier of fact from finding that there was a theft of money with
    proximate violence.

[58]

Even
    in light of  and showing deference to  the trial judges credibility findings,
    I conclude that a trier of fact could reasonably render a conviction on the
    robbery charge. In particular:

·

Courtemanche
    testified that the appellant grabbed his money but did not give him any drugs
    although the trial judge rejected Courtemanches  evidence as to the subject
    matter of the transaction ($50 crack cocaine), he did not reject this aspect of
    Courtemanches evidence;

·

the
    trial judge accepted Courtemanches perception that he was being ripped off and
    his reaction as consistent with that belief;

·

the
    appellant gave evidence, which was not rejected by the trial judge, that she intended
    to pay Courtemanche less money than three Fentanyl patches were worth  from
    that and other evidence, the trial judge drew an inference that the appellant
    planned to settle an outstanding drug debt with Courtmanche and in the process rip
    him off;

·

witnesses
    supported the complainants evidence that he was grabbing at the hand brake to
    stop the car from leaving;

·

Courtemanche
    described grabbing a few things as he exited the vehicle the second time;

·

there
    was witness evidence that money fell out of the vehicle;

·

witnesses
    heard the utterances of go, go and why do you got to do me like that;

·

witnesses
    saw the car drive away leaving Courtemanche on the ground;

·

Courtemanche
    suffered eight serious stab wounds in contrast to a minor puncture wound suffered
    by the appellant;

·

two
    fentanyl patches were found behind a piece of foil in a cigarette package in Courtemanches
    jacket; and,

·

Breton
    admitted to using one fentanyl patch prior to arrest and was found in
    possession of two fentanyl patches later on in the evening in question.

[59]

In
    summary, a conviction for robbery of money is not an unreasonable verdict. The
    real issue is the trial judges reasons which do not make the necessary
    findings of fact in relation to the charge as particularized by the Crown. I
    now turn to that issue.

(2) Insufficient Reasons

[60]

The
    trial judge failed in his reasons to make findings relating to the charge as
    particularized such that the basis of the conviction is unclear and the reasons
    fall short of fulfilling their functional requirements:
R. v. Sheppard
,
    2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28 & 56.

[61]

The
    Information reads as follows:

Jean Claude BRETON and Ashley
    LABONTE
did steal MONEY
from John COURTEMANCHE and at the time thereof
    did use violence to John COURTEMANCHE, contrary to Section 344(b) of the
    Criminal Code. [Emphasis added.]

[62]

The
    Crown particularized the robbery charge to state that it involved stealing
    money through the use of violence. In these circumstances, the Crown could not
    rely on attempted theft and had to prove that money was stolen to make out the
    charge as particularized. It is a fundamental principle of criminal law that
    the offence, as particularized in the charge, must be proved: see
R. v.
    Saunders
, [1990] 1 S.C.R. 1020, at 1023. This principle is grounded in
    fairness, as it permits the accused to be reasonably informed of the
    transaction alleged against him or her and allows the preparation of a full
    defence and a fair trial: see
R. v. Sadeghi-Jebelli
, 2013 ONCA 747,
    313 O.A.C. 257, at para. 24.

[63]

As
    already noted, the trial judge rejected Courtemanches evidence that the
    transaction was for $50 in exchange for crack cocaine. He did not make a
    finding of fact as to what, if anything, was actually stolen from Courtemanche.
    His reasons do not make it clear whether  according to the scheme  the
    appellant and Breton stole Courtemanches money or his fentanyl patches. This
    finding is also not implicit in the trial judges reasons because he did not
    make a finding of fact as to who was the buyer and who was the seller in the
    drug transaction. In the absence of such fact finding, the decision of this
    trial judge is incapable of proper judicial scrutiny on appeal.

[64]

Faced
    with conflicting versions of the intended transaction and the ensuing events,
    the trial judge was obliged to make findings, supported by the evidence that
    demonstrated a pathway to conviction for the charge as particularized. In his
    reasons, the trial judge never adverted to the charge as particularized and
    never made findings that would support it. In fairness to the trial judge,
    counsel did not advert to the charge as particularized in their submissions.

[65]

The
    Crown argued that the trial judge was not required to identify what was stolen.
    I do not agree. The Crown made the nature of the stolen property germane both
    in the charge and throughout the trial.

[66]

I
    would therefore allow the appellants appeal of her conviction for robbery and
    order a new trial.

Disposition

[67]

I
    would set aside the appellants conviction for robbery and the stay of her
    conviction for accessory to an attempted robbery and order a new trial.

[68]

The
    appellants unrelated convictions for the property offences under s. 354(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, stand, along with the six
    month sentence for those offences.

Released: June 1, 2016

M.L. Benotto J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Landriault, 2016 ONCA 465

DATE: 20160613

DOCKET: C58316

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Landriault

Appellant

David Landriault, in person

Yoni Rahamim, duty counsel

Katie Doherty, for the respondent

Heard and released orally: June 6, 2016

On appeal from the conviction entered on January 10, 2014
    and the sentence imposed on January 31, 2014 by Justice A. Sosna of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Mr. Landriault appeals his convictions for one count of fraud and 2
    counts of forgery together with the 18 month sentence imposed.

Conviction Appeal

[2]

The appellant alleges ineffective assistance of trial
    counsel on two grounds: first, he did not call Heather Beaumont as a witness; and
    second he  the appellant  was not called to testify.

[3]

Ms. Beaumont was a teller at the Bank where forged cheques were drawn.
    It is suggested that she knew that the appellant had authority to sign his
    partners name on cheques. The evidence before this court does not establish
    that Ms. Beaumont had any relevant information. There is no affidavit from her.
    It appears that, at best, her evidence would have been double hearsay. We note
    that trial counsel did call the customer service representative from the bank. On
    this issue, the appellant has not met the threshold test of establishing
    prejudice resulting from the alleged actions of trial counsel.

[4]

The appellant submits that he wanted to testify in his own defence. Trial
    counsels explanation for not calling him as a witness discloses intelligent
    strategic reasons for his recommendation that the appellant not testify. The
    appellants testimony would have assisted the Crown by expanding the length of
    time the fraud was ongoing, it would have put in evidence his criminal record
    for crimes of dishonesty, his ATM withdrawals and his fraudulent Employment
    Insurance claims. The appellant has not met the prejudice threshold with
    respect to this ground of appeal.

[5]

We add however, that, were we to embark upon the next steps and
    consider a credibility analysis of trial counsel as opposed to the appellant,
    we would have accepted the evidence of trial counsel. The appellant
    contradicted himself on numerous occasions: he said the lawyer never told him
    he could testify then he said the lawyer did tell him but advised against it;
    he said he did not agree not to testify, but other times said he accepted his
    lawyers advice; he said they never directly discussed testifying, then said
    they did; he said he was told he had no choice then he said it was his choice. In
    addition, the appellant said they never discussed his criminal record, a statement
    difficult to believe. He said at one point that the lawyer never discussed the
    election for trial by judge alone, then said they discussed it a few times. In
    the context of the appellants convictions for crimes of dishonesty, an
    admitted fraud on Employment Insurance and his motive to fabricate, we have no
    hesitation in accepting trial counsels evidence.

Sentence Appeal

[6]

The appellant submits that the sentencing judge erred by using lack of
    remorse as an aggravating factor. The sentencing judge recognized that remorse
    is not an aggravating factor. He added, however that the appellant shows a
    lack of insight into the moral blameworthiness of his conduct resulting in
    financial losses.  His reasons make it clear that he was not referring to lack
    of remorse as aggravating, but rather the appellants response to the financial
    losses suffered by others as a result of the appellants actions. He considered
    this an important factor referable to specific deterrence.

[7]

It is not in dispute that the 18 month sentence is within the
    appropriate range. There is no basis for appellate interference.

[8]

The appeal is dismissed as to conviction and sentence.

K. Feldman J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lowes, 2016 ONCA 519

DATE: 20160630

DOCKET: C57703

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jacob Daniel Lowes

Respondent

Amber Pashuk, for the appellant

Yoni S. Rahamim, for the respondent

Heard and released orally: June 22, 2016

On appeal from the acquittal entered on September 6,
    2013, by Justice C.R. Westman of the Ontario Court of Justice.

ENDORSEMENT

[1]

This is a Crown appeal from acquittals on several drug-related charges.

[2]

A neighbour called 9-1-1 reporting that she heard her neighbours
    arguing.  She had heard the male threaten to kill the female.  She also heard
    the female crying and pleading, Please dont kill me.  The neighbour also
    heard loud banging and crashing.

[3]

In response to this 9-1-1 call, the police arrived at the residence
    within minutes.  Both before and after confirming with the neighbour the
    location of the apparent assault, the police knocked on the door attempting to
    gain entry.  There was no answer.  Eventually, a woman, Ms. Muller, came to the
    window on the third floor.  The police officer explained to her why the police
    were there.  She said she was in bed and told the officer to leave.  Ms. Muller
    refused to open the door.  She insisted there was no one else in the apartment.
    However, it was obvious to the police that Ms. Muller was speaking to someone
    who was standing behind her.

[4]

The police at the scene, concerned that Ms. Muller and/or others were in
    immediate danger, decided to seek permission from their superiors to break down
    the door and enter the residence.  Before the police could move to force their
    way into the apartment, Ms. Muller appeared at the door.  She had no visible
    injuries.  She stepped outside and spoke to the police.  She clearly did not
    want the police inside her residence.  There were no sounds coming from inside.

[5]

The police decided to enter the residence without Ms. Mullers
    permission.  They did so out of concern for the safety of Ms. Muller and any
    other unknown person who might be in the residence with the person who had been
    heard uttering the death threats.

[6]

The police concern was based on:

·

the
    contents of the 9-1-1 call as reported to the police;

·

the
    obvious lies told by Ms. Muller about the presence of anyone else in the house;
    and

·

the
    demeanour of Ms. Muller, both when she spoke to them from the window and at the
    door.

[7]

The police entered the residence and the officers observed marijuana and
    other drugs.  They found the respondent hiding under a cover under the bed.
    They continued to search the apartment looking for anyone else who might be in
    the residence.  In the course of doing so, they found additional contraband.
    The police eventually removed the respondent, sealed the residence and
    applied for a warrant.  The warrant was granted, the police executed the
    warrant and seized the drugs.

[8]

The trial judge held that the police entry was unlawful rendering the
    search and seizure of the contraband unconstitutional.  He excluded the seized
    material under s. 24(2).  Without that evidence the Crown had no case and the
    respondent was acquitted.

[9]

The trial judge delivered two sets of reasons which should be read
    together in order to understand his ruling.  The trial judge acknowledged that
    the police can enter a residence without a warrant if the police have
    reasonable grounds to believe that entry is necessary to protect the lives and
    safety of others:  see
R. v. Godoy
,
[1999] 1 S.C.R. 311.  Unfortunately, the trial judge failed to apply that legal
    principle to the undisputed facts before him.

[10]

The trial judge held that the police could not enter the residence
    without taking what he described as additional investigative steps.  He
    referred to three.  The trial judge indicated that the police could have
    further questioned Ms. Muller about the circumstances and presumably about what
    had gone on in the apartment, or they could have further questioned the
    neighbour who made the 9-1-1 call, or they could have applied for a
    telewarrant.  It is unclear whether he was referring to a telewarrant for the
    arrest of the person in the apartment, or to search the apartment.

[11]

In our view, none of those steps were necessary or, indeed, even
    relevant to whether the police were under a duty to enter the premises when
    they did to ensure that there was no one in the premises whose life or safety
    was in immediate danger and to ensure that Ms. Mullers life or safety was not
    in immediate danger should she choose to re-enter the residence.

[12]

The circumstances in which the police found themselves strongly
    suggested that Ms. Muller was the victim of ongoing domestic abuse when they
    arrived at the residence.  She clearly lied to the police when they first spoke
    to her.  In these circumstances, the police would have been derelict in their
    duty had they accepted what Ms. Muller said without going into the residence.

[13]

Any further discussion with the neighbour would not in any way have
    detracted from the emergency situation faced by the police.  Nothing the
    neighbour could possibly have said would have eliminated the immediate risk to
    the lives and safety of others, including Ms. Muller.  Finally, the delay
    inherent in obtaining a telewarrant, assuming the police could get one, created
    obvious and significant risks that in these circumstances the police could not,
    in good conscience, take.

[14]

In our view, the police acted entirely within the law in entering the
    premises as they did.  The trial judge erred in law in holding otherwise.

[15]

The Crown is entitled to a new trial on the charges.  The acquittals are
    quashed and a new trial ordered.  Nothing in our reasons is intended to be a
    comment on whether the scope of any search conducted by the police after they
    entered the premises went beyond the boundaries of s. 8.  That is an issue that
    may have to be litigated on the new trial.

Doherty J.A.

K. Feldman J.A.

D.M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 461

DATE: 20160609

DOCKET: M46491 (C62086)

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Applicant/Appellant

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 20, 2016

Application pursuant to s. 680 of the
Criminal Code
for an order directing a panel of the Court of Appeal to review the order of
    Justice David M. Brown, dated May 10, 2016, dismissing the application for
    release pending appeal.

ENDORSEMENT

[1]

The appellant seeks a review by a panel of this court, pursuant to s.
    679(1)(a) of the
Code
, of the order of Brown J.A. dismissing her
    application for bail pending appeal.

[2]

The appellant, a day care provider, was convicted of manslaughter in the
    death of a 14-month-old child under her care. She was sentenced to six years in
    jail, less 24 days credit for pre-sentence custody.

[3]

The material facts are set out in the reasons for conviction:
R. v.
    Luckese
, 2016 ONSC 1206. In overview, the infant suffered a fracture to
    the back of her skull while in the appellants care. She died two days later,
    in spite of medical intervention.

[4]

The Crown relied on expert medical evidence as well as statements the
    appellant made to police and others.

[5]

In a videotaped police interview, the appellant said she had tripped on
    a mat causing the childs head to hit a bannister. Shortly after making that
    statement, she denied this had happened and said that she had shaken the child
    and the child went limp. She did not call 911 because she thought the child was
    sleeping. Later, while she was in the back of a police cruiser, she told an
    officer, I know it is wrong. I just snapped. I guess I hit a breaking point.

[6]

The trial judge rejected the theory of accident and found that the
    appellant had momentarily lost her patience and assaulted the child, causing the
    skull fracture. There was no other rational explanation for the injury and for
    the symptoms displayed by the child. He found the appellant guilty of
    manslaughter on that basis.

[7]

Alternatively, he found that the appellant had failed to provide the
    necessaries of life, for she had failed to call 911 after observing the childs
    symptoms.

[8]

The Crown did not dispute the primary and secondary grounds for bail.
    Nor did it dispute the good character of the appellant and the absence of a
    criminal record. The issue was the tertiary ground. Specifically, whether the
    appellant had demonstrated that her grounds of appeal were sufficiently strong
    that the public interest in enforceability of the conviction should yield to
    the interest in its reviewability.

[9]

Brown J.A. found that the appellant had not demonstrated that detention
    pending appeal was not necessary in the public interest. The appellant has been
    convicted of a very serious offence  manslaughter of a vulnerable infant in
    her care. She was sentenced to a lengthy period of incarceration  six years.
    Balancing the interest of enforceability against the interest of reviewability,
    he found that the determinative factor was that the grounds of appeal, although
    arguable, were weak.

[10]

The parties agree that the
    standard of review on this application is whether the proposed review
has a reasonable prospect of success:
R. v. Gale
, 2011 ONCA 144, at para 18. In
R. v. McRae
, (M45877 January 26, 2016), I described the reasonable prospect of
    success standard as a low one, which contemplates that a panel of this court
    may come to reasonable conclusions that differ from my own.

[11]

The standard has also been expressed as whether
    there is a realistic likelihood that a panel of this court would find that the
    bail review judge erred in denying, or granting, interim release:
R.
    v. Gulyas
, 2013 ONCA 68, at para. 2.

[12]

In
R. v. McRae
,
    I referred to the standard and added the following, at paras. 31-35:

The nature of the panels review involves a
    consideration of the circumstances in which it is appropriate for a court to
    reverse a bail judges decision and the standard of review that the panel
    itself would apply.

In
St-Cloud
,
    Wagner J. explained when a reviewing court may interfere with a bail judges
    decision. He pointed out that the decision to grant interim release involved a
    delicate balancing of the relevant circumstances, so a reviewing judge does
    not have open-ended jurisdiction. He said, at para. 6, that the exercise of
    this power is only appropriate in three circumstances:

(
1) where there is admissible new
    evidence;

(2) where the impugned decision contains an error of law; or

(3) where the decision is clearly inappropriate.

He elaborated on the last of these
    circumstances by saying that the reviewing judge could not simply substitute
    his or her decision for the decision of the bail judge: It is only if the
    [bail] justice gave excessive weight to one relevant factor or insufficient
    weight to another that the reviewing judge can intervene.

Although Wagner J. provided that guidance in
    the context of a review under ss. 520 or 521, in my view, it is equally
    applicable to bail reviews under s. 680.

The circumstances identified by Wagner J. in
    turn point to the standard of review that the panel would apply. Under the
    first two circumstances, a panel of this court would review the bail judges
    decision on a correctness standard. The third circumstance, however, is highly
    deferential and synonymous with reasonableness review.

[13]

There
    are three grounds of appeal. The first two relate to the conviction for
    manslaughter. The third relates to the alternate basis of culpability  failure
    to provide the necessaries of life. In order to succeed on her application for
    bail pending appeal, the appellant needed to demonstrate her grounds of appeal
    on both alternative bases of culpability were sufficiently strong.

The admissibility of the appellants
    statement I just snapped

[14]

The
    appellant will argue that this statement, made in the back of a police cruiser
    after the appellant had been taken to the day care centre to re-enact the
    events, should have been excluded because it was not videotaped. The bail judge
    considered this ground to be arguable, but not strong, in light of this courts
    decision in
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont.
    C.A.). The appellant does not challenge that conclusion.

The good character evidence

[15]

The
    appellant did not testify at trial. However, she adduced evidence that she was a
    caring, loving, calm, patient and responsible day care worker.

[16]

The
    trial judge accepted this evidence. He described the appellants argument as
    follows:

Finally, the defence submits that given the character evidence
    that was called, it is unlikely that she would have committed the offence
    charged. She was an experienced day care provider and would be used to an upset
    child in the early days of day care.

[17]

The
    appellant will submit on appeal that although the trial judge stated the proper
    use of such evidence, he misapplied the test when he concluded the following in
    his reasons on this issue:

Ms. Luckese was an experienced day care provider. Her character
    evidence shows that she was an exemplary day care provider and had experience
    dealing with children in their early days in her care. However, how she had
    dealt with other children, in other circumstances, is not of great significance
    to me in this case relating to this child on this day. I cannot draw the
    inference that because she worked well with other children on other days, she
could not have
assaulted this child. [Emphasis added.]

[18]

The
    appellant will argue that the trial judge misplaced the burden of proof,
    requiring her to prove that, because of her good character, she could not
    have assaulted the child.

[19]

Brown
    J.A. regarded this ground of appeal as arguable, but not at the strong end of
    the spectrum. The trial judge understood the defence position and correctly
    stated the legal purpose of the character evidence: to support the inference
    that the accused was unlikely to have committed the offence. He noted that the
    language used by the trial judge in the impugned paragraph was the same
    language used by Bastarache J. in
R. v. Charlebois
, 2000 SCC 53, at
    para. 30.

[20]

The
    trial judges determination of the low probative value of the good character
    evidence took place in the context of his assessment of all the other evidence.
    He considered the circumstances prevailing at the day care on the day in
    question. The appellant was responsible for seven children under the age of
    three. The deceased infant was new to the day care, understood little English
    and had been crying throughout the day. He considered the nature of the injury
    and the expert evidence about how it could have been inflicted. He considered
    the appellants contradictory statements about slipping, then saying that she
    had shaken the child, then stating that she just snapped. The trial judge drew
    an inference that was clearly available to him: that the appellant momentarily
    lost her patience and struck the child. The good character evidence, which the
    trial judge clearly accepted and considered, was of little probative value in
    the circumstances.

[21]

The
    trial judge identified the correct test for the use of the character evidence. I
    agree with Brown J.A.: the appellants argument that the trial judge misapplied
    the test, having stated it correctly, is arguable but not strong.

[22]

I
    would not, therefore, order a review of the order of Brown J.A. by a panel of
    this court in relation to this ground of appeal. This conclusion makes it
    unnecessary to consider the strength of the appellants appeal from conviction
    based on the alternative basis of liability.

Disposition

[23]

For
    these reasons, the application is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Min, 2016 ONCA 495

DATE: 20160621

DOCKET: C61493

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dai Hong Min

Appellant

Dai Hong Min, in person

Ericka Chozick, duty counsel

Alex Hrybinsky, for the respondent

Heard: June 6, 2016

On appeal from the conviction entered on December 18,
    2014 and the sentence imposed on December 2, 2015 by Justice K.L. McLeod of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pled guilty to aggravated assault on his father. The court
    was advised that the appellant abandoned his conviction appeal. He appeals his
    sentence of 16 months custody (after credit of 20 months pre-sentence custody),
    followed by 3 years probation.

[2]

The appellant is a young man who, at the time of the offence and of
    sentencing, suffered from serious mental illness. He was, however, found fit to
    stand trial. The trial judge expressed significant concerns regarding the
    appropriate sentence, as the appellant was in need of psychiatric treatment
    without which he posed a risk to others. She recommended that he serve his
    sentence in the Ontario Correctional Institute where he could receive
    psychiatric treatment. She also ordered that he not return to live with his
    parents until a psychiatrist gave permission for him to do so.

[3]

The appellant advised the court that he has not been sent to OCI and
    that he is not receiving any psychiatric treatment. There is also a concern
    that upon release, he has nowhere to go other than his parents home, and
    because he is not being assessed by a psychiatrist in the institution, his
    living arrangements on release may be an unresolved issue. His parents are very
    supportive and anxious to have him come home and live with them, despite the
    offence.

[4]

The court was advised that he is in segregation at his own request.

[5]

The court discussed with duty counsel the possibility of requesting that
    one of the psychiatrists who saw him for the NCR assessment see him again in
    the institution with a view to having him admitted under the civil mental
    health jurisdiction to a psychiatric hospital such as CAMH, and that the
    sentence be reduced to accommodate and facilitate such a transfer. The
    appellant did not agree to this proposal.

[6]

We see no error in the sentencing decision of the trial judge. The court
    is very sympathetic to the appellant and his family because he needs
    psychiatric help and he is not getting it. However, his probation conditions
    are intended to ensure that he does receive the help he needs upon release. In
    light of the appellants rejection of any proposed variation by this court, the
    appeal must be dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prosser, 2016 ONCA 467

DATE: 20160614

DOCKET: C59645

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Prosser

Appellant

David Butt, for the appellant

Shawn Porter, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 5, 2014 and
    the sentence imposed on November 5, 2014 by Justice Janet Wilson of the Superior
    Court of Justice, sitting without a jury.

By
    the Court
:

[1]

The appellant was convicted after a trial before a judge of the Superior
    Court of Justice sitting without a jury of two firearms offences, possession of
    the proceeds of crime and possession of cocaine for the purpose of trafficking.
    The guns, money and drugs were found during a warranted search of the apartment
    the appellant occupied with his mother and grandmother.

[2]

At trial, the appellant sought to exclude the evidence of the firearms
    and drugs on the basis that the search of the apartment and seizure of the
    items was unreasonable. The submission was that the ITO disclosed insufficient
    grounds to justify the issuance of the warrant. The trial judge held that the
    ITO was sufficient to satisfy the preconditions necessary for the issuance of
    the warrant. Absent a constitutional infringement, s. 24(2) of the
Charter
was not engaged, thus could not be invoked to exclude the seized items as
    evidence at trial. The trial judge went on to hold that even if she had found a
    breach of s. 8, she would nonetheless have admitted the evidence.

[3]

In this Court, the appellant contends that the trial judge erred in two
    respects in concluding that the ITO provided a proper evidentiary basis upon
    which the trial judge could conclude that the warrant could have been issued.
    He submits that the trial judge erred in finding:

i.

that the police had reasonable and probable grounds to believe that the
    firearms and drugs would be found in the premises to be searched  the
    appellants apartment; and

ii.

the carelessness of the author of the ITO could not afford a basis or
    ground for undermining the search warrant.

The Background Facts

[4]

To situate the claims of error in their appropriate setting, a brief
    description of the contents of the ITO and the procedure followed at trial is
    necessary.

The ITO

[5]

The substance of the information in the ITO came from two confidential
    informants involved in the drug culture. Each provided recent personal
    information about a drug dealer known on the street as Ghost. Sometimes,
    Ghost, who was identified as the appellant, trafficked from a motor vehicle
    which one of the informants described by colour, make and model. Both said
    Ghost also carried a firearm.

[6]

One informant had contact with Ghost at 45 Wynford Heights Crescent.
    The other informant, who had seen Ghost with a firearm, said that Ghost
    lived in the Wynford Drive area. Neither informant provided an apartment number
    for Ghost or said that they had seen drugs or firearms at the appellants apartment.
    Police confirmed with the building superintendent that the appellant lived in
    apartment 1409 at 45 Wynford Heights with his mother and grandmother. A car of
    the same colour, make and model as described by the informant was located in
    the parking space assigned to the appellants apartment. An officer, standing
    outside the entrance door to the apartment, heard both male and female voices
    inside.

The
Voir Dire

[7]

Prior to trial the Crown provided trial counsel for the appellant with a
    heavily redacted copy of the ITO. The Crown conceded that, on the basis of the
    material contained in the redacted ITO, the warrant could not have been issued.

[8]

On the motion to exclude evidence for a breach of s. 8 of the
Charter
,
    Crown counsel invoked step six of
R. v. Garofoli
, [1990] 2 S.C.R. 1421
    and provided defence counsel with a judicial summary of the redacted parts of
    the ITO. That summary included the following:

CI1 and/or CI2 provided timed, personal information that Calvin
    Prosser is in possession of a firearm that is linked to the address of 45
    Wynford Heights.

CI1 and/or CI2 provided timed, personal information that Calvin
    Prosser is in possession of illicit substances that are linked to the address
    of 45 Wynford Heights.

[9]

The trial judge was satisfied that the summary was sufficient to permit
    the appellant to challenge the excised materials (thereby the basis for the
    warrant) by argument or evidence.

[10]

Defence counsel was granted leave to cross-examine the author of the ITO
    and did so. Counsel took the position that the summary failed to meet the
    requirements of step six. On the hearing, it became clear that neither
    informant had provided any firsthand information about drug dealing or firearms
    in apartment 1409 at 45 Wynford Heights Crescent. It also appeared that the ITO
    had failed to include the criminal record of one of the informants.

[11]

At the conclusion of the
voir dire
, the trial judge found no
    infringement of s. 8 and admitted the evidence of the guns, drugs and money
    found on execution of the search warrant at the appellants apartment.

The Appeal from Conviction

Ground #1: The Adequacy of the ITO

[12]

On appeal, Mr. Butt for the appellant submits that the ITO filed in
    support of the warrant, as amplified on review, fails to disclose a basis upon
    which the issuing justice could conclude that there was a reasonable
    probability that firearms would be found in the appellants residence. He
    invites us to follow the lead of the British Columbia Court of Appeal in
R.
    v. Le
, 2014 BCCA 166. He contends that, contrary to
Le
, the trial
    judge held that the ITO need not disclose reasonable grounds to believe that
    the evidence sought in this case, contraband consisting of firearms and drugs,
    would be found at the place of the proposed search.

[13]

For several reasons, we decline to give effect to this ground of appeal.

[14]

First, and fundamentally, reading the trial judges reasons as a whole,
    as we are required to do, we are not persuaded that the trial judge held that
    the ITO need not disclose reasonable grounds to believe that the evidence
    sought would be found at the place of the proposed search. The more apt
    characterization of the trial judges reasons is that she rejected the
    appellants submission that the information provided by the confidential informants
    had to shoulder the entire burden of establishing a reasonably grounded belief
    that the evidence sought would be found in the apartment.

[15]

Second, the requirement that the ITO contain information that permits
    the issuing justice to conclude that there are reasonable grounds to believe
    that there is anything in a building, receptacle or place that will afford
    evidence of the commission of an offence is a precondition to the issuance of a
    warrant to search that place and seize those things is found in s. 487(1)(b) of
    the
Criminal Code
and s. 11(1)(d) of
CDSA
.

[16]

To determine whether this precondition has been established, the issuing
    justice is to consider the ITO as a whole, not one piece at a time, because
    each piece of evidence colours other pieces of evidence revealing a fuller and
    truer picture only through a consideration of the evidence as a whole:
Re
    Church of Scientology & The Queen (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), at p. 502;
Le
, at para. 36. The examination of the
    information as a whole is to be carried out in a practical, non-technical and
    common sense basis. The issuing justice is also permitted to draw inferences.

[17]

Third, neither the statutory enactments nor the common law requires that
    information from a CI be the exclusive source or bear the entire burden of
    establishing the necessary evidentiary foundation for a finding of a reasonably
    grounded belief of the presence of the evidence sought in the place proposed to
    be searched. To be sure, information from an informant services this
    requirement in many instances. But it is not a legal requirement any more than we
    demand that a single item of evidence prove an essential element of an offence.
    The confidential informants provided information that the appellant was in
    possession of a firearm and illicit substances at 45 Wynford Drive. The ITO
    indicated that the police had determined that the appellant resided in
    apartment 1409 and located his car in the parking area. That was sufficient to
    establish a reasonably grounded belief that the evidence sought would be found
    in place of the proposed search. This information distinguishes this case from
Le
where the ITO contained no information that linked the drug dealing to the
    address of the accused, the premises police sought to search under the warrant.

[18]

Fourth, the issuing justice and reviewing judge were both entitled to
    rely upon the opinion of the author of the ITO about the practices of drug
    dealers in connection with the storage of drugs, firearms and assorted
    paraphernalia. That these opinions, if proffered at trial, would fall foul of
    the prohibition against anecdotal evidence adumbrated in
R. v. Sekhon
,
    2014 SCC 15, at para. 50, is beside the point. The contents of an ITO need not
    be compliant with the rules of evidence applicable at trial. After all, neither
    issuance of a search warrant nor a
Garofoli
review hearing is intended
    to test the merits of any of the Crowns allegations in respect of the offence.
    That is done at the trial:
R. v. Pires
;
R. v. Lising
, 2005
    SCC 66, at para. 30.

[19]

Finally, we are not at all persuaded that the reviewing judge considered
    the ITO authors opinion as dispositive of the likelihood of the items sought
    being in apartment 1409. When the ITO was submitted to the issuing justice, its
    author did not know where the appellant would be when he was to be arrested. As
    a result of this uncertainty, police also obtained a warrant to search the
    appellants car. The opinion was an item of evidence relevant to the affiants
    subjective belief and was also relevant to the reasonableness of that belief.
    It was open to the reviewing judge to take it into account in deciding whether
    the search warrant could have issued on the material before the issuing
    justice.

Ground #2: The significance of
    carelessness in the ITO

[20]

The appellant further contends that the trial judge erred in holding
    that the carelessness of the author of an ITO cannot vitiate the warrant.

[21]

Once again, we do not agree.

[22]

The trial judge, sitting on review, recited the governing authorities
    that make it clear that the existence of fraud, non-disclosure and misleading
    evidence are neither conditions precedent to review nor dispositive of whether
    the enabling authority could have been granted:
Garofoli
, at p. 1452.
    Each is a factor to consider. Nothing more and nothing less.

[23]

The trial judge carefully analyzed the credibility of the author of the
    ITO who was cross-examined on the motion. The trial judge considered the error,
    as well as the authors explanation for it. She reached a conclusion she was
    entitled to reach. Her reasons for doing so do not reflect error and are
    entitled to deference.

[24]

It is also important not to lose sight of the trial judges task as the
    reviewing judge. She was not there to conduct a
de novo
hearing or to
    decide what she would have done had the warrant been sought from her. She was
    there, as she appreciated, to determine whether, based on the record before the
    issuing justice, as amplified on review, the warrant could have been issued:
Pires
;
Lising
, at para. 8. This ground of appeal fails.

The Appeal from Sentence

[25]

The appellant also challenges the fitness of the sentence imposed upon
    him, a term of imprisonment in a provincial reformatory of 22 months followed
    by a period of probation of two years. He seeks a reduction in the length of
    the carceral portion of the sentence and invites us to consider ordering its
    service in the community.

[26]

The appellant does not suggest that the sentence was unfit when imposed.
    Quite the contrary. He acknowledges that it was fit, reflecting a proper
    consideration and weighing of the relevant circumstances of the offence and of the
    offender, as well as the applicable sentencing objectives, principles and factors,
    both aggravating and mitigating.

[27]

The appellant asks us to consider his conduct since conviction and his
    release pending appeal. For 18 months the appellant was bound by restrictive
    terms including house arrest. These terms duplicated those on which he had been
    released prior to trial. He has matured as he has grown older. He worked
    steadily and did well.

[28]

Until last weekend, the appellant had completed several years of release
    on strict terms without incident. He is now charged with a
Criminal Code
and a provincial offence as a result of being found in possession of a stolen
    licence plate for a motorcycle and operating a motorcycle without insurance. He
    was released by the investigating officer on these charges. Thus far at least,
    he has not been charged with breach of his recognizance.

[29]

The appellant received substantial credit for his onerous release terms
    when the trial judge imposed sentence at the conclusion of the trial. The
    sentence imposed, in our view, was lenient in light of the serious offences of
    which he was convicted. We do not consider the further restrictive conditions
    of release warrant a further reduction of an already lenient sentence or its
    conversion to a sentence to be served in the community.

Conclusion

[30]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is also dismissed.

Released: June 14, 2016 (R.J.S.)

Robert
    J. Sharpe J.A.

David
    Watt J.A.

David
    Brown J.A.


WARNING

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

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

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

(a)     any
    of the following offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on
    application of the victim or the prosecutor, make the order.

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

(4)     An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.L., 2016 ONCA 455

DATE: 20160610

DOCKET: C60552

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. L.

Appellant

Tushar Pain and Lucas Rebick, for the appellant

Dena Bonnet, for the respondent

Heard: April 19, 2016

On appeal from the conviction entered by Justice Lawrence
    T. Feldman of the Ontario Court of Justice on January 15, 2015, with reasons
    reported at 2015 ONCJ 15.

Strathy C.J.O.
:

I.

Introduction

[1]

The appellant was convicted of four counts of
    sexual assault and four counts of sexual interference for acts involving his
    nieces that occurred between 2002 and 2005. The sexual assault convictions were
    stayed in accordance with
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The offences were alleged to have taken place
    when the complainants stayed for weekend sleepovers at an apartment shared by
    the appellant, his wife and the complainants grandparents. The complainants
    did not disclose the abuse until 2012.

[3]

The trial lasted ten days spread over eleven
    months. The Crowns case consisted of the evidence of the four complainants.
    The appellant and his wife testified. He called five additional witnesses,
    including two police officers and two other witnesses, described by the trial
    judge as character witnesses.

[4]

The defence theory was that the complainants had
    colluded to fabricate stories of sexual abuse in order to punish the appellant
    and to get him removed from the home for his perceived abuse of their
    grandparents.

[5]

The appellant asserts that the trial judge
    misapprehended material evidence and subjected the defence evidence to uneven
    scrutiny. For the reasons that follow, I would dismiss the appeal.

II.

Background

[6]

The complainants were triplet sisters, C1, C2
    and C3, and their sister, C4. The triplets were between 7 and 11 years old at
    the time of the events. C4 was four years older.

[7]

The girls were close to their grandparents, with
    whom they had lived in Guyana before they immigrated to Canada with their
    parents in 2001. The grandparents came to Canada in 2003. They lived in an
    apartment occupied by their daughter and her husband (the appellant), another
    daughter and occasional tenants.

[8]

The offences were alleged to have occurred
    during the girls sleepover visits. Generally, two girls stayed over at the
    same time, sleeping in their grandparents bedroom. These visits began in 2003
    and ended in 2005, due to family frictions, not directly related to the matters
    at issue.

[9]

At the time of trial, the triplets were 18 years
    old and their older sister was 21. They described, in varying detail, incidents
    of the appellant groping their thighs with his hands and touching their breasts
    and vaginas with his hands and mouth. The touching included some incidents of
    digital penetration.

[10]

The incidents were alleged to have occurred in various
    locations of the apartment, when other residents were not in the immediate
    vicinity or were out of the apartment or sleeping. Many of the events were
    alleged to have taken place in the bedroom shared by the appellant and his wife.

[11]

With one exception, there were no witnesses to
    any of the incidents. The exception was an assault described by C1 as having
    occurred when she was about 10 years old. She said that the appellant came into
    the bathroom after she had taken a shower, lifted her onto the toilet seat,
    removed her towel and sucked her nipples. At some point he stopped and left the
    bathroom.

[12]

C2 testified that she had witnessed the incident
    while it was in progress. She described opening the door of the bathroom and
    seeing her sister standing on the toilet seat while the appellant sucked her
    nipples. She said nothing, left the room, and did not mention the incident to
    C1 until several years later when the sisters discussed their experiences after
    C1 disclosed the abuse to her guidance counsellor.

[13]

C1 testified that at some point she and C3 confided
    to one another that the appellant had been abusing them. They agreed that if
    either of them were in a room alone with the appellant the other would go back
    into the room to make sure that her sister was not left alone with him. C4
    testified that she too would stay close to whichever sister accompanied her on
    weekend visits.

[14]

C1 also testified that at some point she
    discussed the abuse with both C2 and C3 and told them they should tell their
    parents. The others objected because they were concerned that their parents
    would become more overprotective than they already were or that they would
    think differently of them.

[15]

C1 disclosed the abuse to her guidance
    counsellor in 2012, when she was 16 years old. The counsellor told her to
    discuss the matter with her sisters over the March break. C1 testified that she
    and her siblings discussed the matter, but did not want to report it to their
    parents. After the break, the counsellor met with all three triplets, at which
    time C2 and C3 disclosed that they too had been abused. The counsellor encouraged
    them to disclose the abuse to their parents. She then called the police. After
    speaking to their parents, all four sisters gave videotaped statements to the
    police. C4 told the police that she too had been abused. The appellant was
    charged with sexual assault and sexual interference.

III.

The trial judges reasons

[16]

The trial judge began by noting Wilson J.s
    observation in
G.B., A.B. and C.S. v. The Queen
(1990), 56 C.C.C. (3d)
    200 (S.C.C.) concerning the need for trial courts to apply common sense in
    dealing with the testimony of young children by not imposing the same exacting
    standard on them as it does on adults, without lowering the standard of proof.
    He also noted that, when assessing the evidence of children, it is important
    to take account of that individuals mental stage and intellectual level,
    comprehension and ability to articulate her recollection, while at the same
    time maintaining the traditional standard of proof. Here, he referred to
R.
    v. W.(R.)
(1992), 74 C.C.C. (3d) 134 (S.C.C.).

[17]

He then reviewed the evidence of the
    complainants and the manner in which their evidence came to light.

[18]

After reviewing the Crown evidence, the trial
    judge examined the evidence of the defence. The appellant testified. He denied
    the events of abuse and said that he had never been alone with any of the
    girls. He was hardly ever around when the girls were in the apartment, even on
    weekends, because he was usually working. He produced a letter from his
    employer concerning his hours of work, indicating that he worked on Saturdays
    when required. He said that the girls were not allowed in the bedroom he shared
    with his wife.

[19]

The appellants wife also testified. She said that
    she was always present when the appellant was at home and said the girls spent
    most of their time in their grandparents room. She confirmed her husbands
    evidence that the girls were never alone in the matrimonial bedroom.

[20]

Other witnesses, including a relative and two
    friends of the appellant, testified. A police officer testified regarding an
    investigation of complaints of abuse of the grandparents, which were
    uncorroborated.

[21]

The trial judge then identified the positions of
    the parties, noting the appellants position that the triplets colluded in
    fabricating false allegations of sexual assault motivated some 9 years after
    they stopped visiting the [appellants] apartment by a collective animus to
    punish the [appellant] for abusing their grandparents in seeking to have the
    police remove him from his residence. This was done, according to the theory,
    without the involvement of the girls parents, led by one of the triplets, who
    concocted an unreliable chronology and buttressed by the evidence of the older
    sister who joined in the conspiracy.

[22]

The trial judge then set out his findings of
    credibility. He considered the complainants evidence credible, straightforward
    and sincere and gave reasons for these conclusions. He noted that they appeared
    to be reluctant witnesses and found that their reluctance to disclose the abuse
    to their parents was due to embarrassment and their fear of the consequences. There
    were inconsistencies in detail and in recollection between their evidence, but he
    regarded their evidence as consistent in relation to the material facts. Their
    reliability was enhanced by their testimonial demeanour. He rejected the
    assertion that their testimony was the result of a conspiracy to concoct false
    allegations, many years later, in order to separate their estranged
    grandparents from the appellant.

[23]

The trial judge said there was no lack of
    opportunity for the appellant to have committed the offences and regarded his
    evidence to the contrary as contrived. Accordingly, he placed little weight on
    this evidence. He found the employers letter unhelpful in determining how
    often the appellant worked on Saturdays and whether he worked on Sundays. He
    also noted that some of the alleged offences occurred in the evening or at
    night. Presumably, the appellants work schedule would not have kept him away
    from the girls at these times.

[24]

Nor was the trial judge prepared to rely on the
    evidence of the appellants wife. He found her evidence lacking in objectivity.
    She exaggerated how often the appellant worked on weekends and said that she
    was always home when the appellant was, even though she was sometimes out
    shopping on weekends. In the trial judges view, her evidence that the bedroom
    door was locked out of habit was contrived and self-serving.

[25]

The trial judge then set out the burden of proof
    and the reasonable doubt standard. He referred to the principles established in
    several authorities, including
R. v. Starr
, 2000 SCC 40, and
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.

[26]

Finally, he set out his reasons for accepting
    the evidence of the complainants and rejecting the evidence called by the
    appellant, and explained why he was not left in reasonable doubt that the
    appellant had committed the offences alleged. He rejected the assertion that
    the complainants had colluded. In contrast, he found the testimony of the
    appellant and his wife to be transparently coordinated.

IV.

Grounds of Appeal

[27]

The appellant asserts two grounds of appeal:
    misapprehension of the evidence and uneven scrutiny of the evidence.

A.

First ground: Misapprehension of the evidence

[28]

The appellant says the verdict cannot stand because the trial judge
    misapprehended essential parts of the evidence of the defence and the Crown. I
    will first identify the alleged misapprehensions. I will then discuss and apply
    the applicable principles.

(1)

Defence evidence

[29]

The misapprehension of the defence evidence related to the
    appellants evidence concerning his lack of opportunity.

(a)

Hours of work

[30]

The first complaint is that the trial judge made credibility
    findings adverse to the appellant as a result of his misapprehension of his
    evidence about his hours of work.

[31]

The appellant testified that he worked for two companies after
    coming to Canada. Between 2002 and 2005 he worked at Fincore Industries, where
    he worked Mondays through Saturdays and occasional Sundays, when there was a
    demand. He then worked at Deacro Industries from October 2005 until 2007. There
    he worked weekdays and some Saturdays, but not Sundays. He produced a letter
    from Deacro which indicated that he had worked Saturdays when asked to do so, apparently
    when production requirements made it necessary.

[32]

The trial judge noted the appellants evidence
    that he worked some Sundays. His wife testified that he worked on weekends
    most of the time. The trial judge found the wifes evidence a likely
    exaggeration, given the content of the employers letter, which made no
    reference to Sunday work and noted that Saturday work was limited to production
    need.

[33]

The trial judge also found that the employers
    letter was unhelpful, given it did not address the appellants work prior to
    2006 or whether he worked at all on Sundays. He noted that a number of the
    alleged offences occurred in the evening or at night, so, contrary to the
    appellants implied assertion that there was no opportunity, there was in
    fact no lack of opportunity. The trial judge found the appellants evidence and
    his attempt to minimize his contacts with the complainants to be contrived and
    said he would put little weight on it.

[34]

The appellant says these criticisms were unfair and were based on a
    misapprehension of the evidence. The indictment covered a wide period, from
    2002 to 2010, and it was reasonable for him to produce evidence of his hours of
    work during that time. Moreover, his employment at Deacro postdated the
    offences for which he was ultimately convicted, and he had never suggested that
    he worked Sundays at Deacro.

(b)

Locking the bedroom door

[35]

The other complaint of misapprehension of the defence evidence
    related to the evidence of both the appellant and his wife that their bedroom
    was off limits to the complainants. The trial judge noted that both the
    appellant and his wife described their bedroom as being locked all the time.
    They had, in fact, used the word locked in relation to their bedroom door, but
    they clarified that the door was not actually locked when they were present in
    the apartment. The appellant said the bedroom remained off limits to the
    complainants, and his wife explained that the door remained shut even when it
    was unlocked.

[36]

The appellant says the trial judge was unfairly critical of his
    evidence because he misapprehended his evidence and his wifes evidence on this
    point.

(2)

Crown evidence: The March break meeting

[37]

The appellant also claims that the trial judge misapprehended the
    Crown evidence in one particular respect. He found that C2 had told C1 that she
    had observed the incident in the bathroom and that she made this revelation for
    the first time at the March break meeting, and he found that this supported
    C1s evidence. The appellant says there was no evidence of any March break
    meeting, although there was a meeting with the guidance counsellor after the
    March break.

(3)

Discussion

[38]

In
R. v. Morrissey
(1995), 97 C.C.C.
    (3d) 193 (O.C.A.), this court observed that the assessment of an argument based
    on misapprehension of evidence depends on the nature and extent of the
    misapprehension and

its significance to the trial judges verdict.
    Where a judge is mistaken as to the substance of material parts of the evidence
    and those errors play an essential part in the reasoning process resulting in a
    conviction, the verdict is not a true verdict and cannot stand. The Supreme
    Court adopted this approach in
R. v. Lohrer
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at paras. 1-2.

[39]

In my view, the appellants complaint that the
    trial judge misapprehended the defence evidence must be considered in the
    broader context of the appellants denial of opportunity to commit the offence
    and his evidence that he was never alone with any of the complainants. The
    context includes the evidence of the appellants wife to the same effect.

[40]

This evidence painted a picture of a man who was
    always working, a wife who was never out of the home, a bedroom that was
    forbidden territory to their young nieces, with a door that was always closed.
    The trial judge, who heard and saw the witnesses as they were challenged on this
    evidence, was entitled to find that the evidence was exaggerated and contrived.
    His misstatements of the evidence were not in relation to matters of substance
    and were not essential to his reasoning process.

[41]

Nor do I see any significance in the trial
    judges misstatement of the Crown evidence concerning the March break
    meeting.

[42]

The trial judge found that C1s evidence about
    the bathroom incident was supported by C2s evidence, which she kept to herself
    until she informed C1 when all the sisters discussed these matters in the
    basement of their home over the March break following a meeting with [the
    guidance counsellor] who had encouraged her to disclose the abuse. He found
    that C2s evidence materially supported C1s story. In fact, C2s evidence was
    that this disclosure was not made to her sisters until the second meeting with
    the guidance counsellor
after
the March break.

[43]

While the trial judge was mistaken about the
    timing of the disclosure, this does not affect the substance of his conclusion
    or the reality that C2s evidence was confirmatory of C1s evidence. C2
    testified that she did not think her sister saw her come into the bathroom and
    C1 testified she had not seen her sister enter the bathroom. There was evidence
    that the girls did not discuss the specifics of the abuse. The error in the
    trial judges recollection of the timing of the disclosure was inconsequential.

B.

Second ground: Uneven analysis of the evidence

[44]

The appellant says the trial judge erred in law
    by subjecting his evidence to a stricter standard than the Crowns evidence. In
    particular, he says that the trial judge erred in treating inconsistencies in
    the complainants evidence as related to peripheral matters.

[45]

The Crown submits in reply that this complaint must
    be considered in the context of the defence theory of fabrication and the manner
    in which the trial unfolded. After hearing and observing the evidence of the
    four sisters, the trial judge found [t]here was nothing in the uneven
    recollection by the complainants of the sexual violations that permitted a hint
    of collaboration.

[46]

It is, of course, an error for a trial judge to
    subject the accuseds evidence to a stricter standard of scrutiny than the
    evidence of the Crown:
R. v. T. (T.)
, 2009 ONCA 613, at paras. 28 and
    31. In
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (O.C.A.), Doherty J.A.
    observed that to succeed in arguing that the trial judge subjected the evidence
    of the accused to a stricter standard than the evidence of the Crown, the
    appellant must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the complainant.

[47]

As Laskin J.A. observed in
R. v. Aird
,
    2013 ONCA 447, at para. 39, this is a difficult argument to make for two
    reasons. First, a trial judges findings of credibility attract a high degree
    of deference. Second, the court sometimes views the argument as a veiled
    invitation to reassess the trial judges credibility determinations.

[48]

I do not accept the argument that the trial
    judge ignored material inconsistencies in the complainants testimony, while
    subjecting relatively inconsequential issues in the appellants and his wifes
    testimony to granular and unforgiving scrutiny.

[49]

The appellant does not challenge the trial
    judges finding that the complainants did not collude. The trial judge observed
    that the complainants uneven recollection of the sexual assaults did not
    permit a hint of collaboration.

[50]

These findings were based on the trial judges
    assessment of the evidence of all the complainants. He had the distinct
    advantage of hearing and seeing the evidence of the four complainants as they
    testified about abuse that had occurred more than seven years earlier. He
    considered their evidence to be credible, but was not blinded to the
    inconsistencies. It is worth noting that even defence counsel described the
    complainants as a little less mature, a little less articulate, a little less,
    perhaps, educated than other girls their age. He added: Theyre more
    simple-minded, at least thats certainly the way their evidence came off to me,
    and particularly the older, the oldest of the siblings. Some inconsistency in
    the complainants recollection of events that transpired years earlier, when
    they were young children, is unsurprising.

[51]

The trial judge found that the inconsistencies
    in the complainants evidence related to peripheral matters and could be
    explained by the passage of time and the frailties of youthful recollection. In
    contrast, the issues in the appellants and his wifes testimony were not
    related to peripheral matters. The appellants work schedule and whether he and
    his wife habitually barred the complainants from their bedroom spoke directly
    to the appellants opportunity to commit the offences. The appellant has not
    demonstrated that the trial judge applied different standards in assessing the
    evidence of the appellant and the complainants. I see no merit to this ground
    of appeal.

V.

Order

[52]

For these reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree E.E. Gillese
    J.A.

I agree G. Pardu J.A.

Released: June 10, 2016


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ranger, 2016 ONCA 462

DATE: 20160610

DOCKET: C61445

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Ranger

Appellant

Leo Adler, for the appellant

Vanita Goela, for the respondent

Heard and released orally: June 7, 2016

On appeal from the conviction entered on October 9, 2014
    and the sentence imposed on January 29, 2015 by Justice M. Gregory Ellies of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of a controlled drug for the
    purpose of trafficking. He was sentenced to four months imprisonment and
    eighteen months probation. He raises a number of grounds in his conviction
    appeal and seeks leave to appeal sentence although he has served all but ten
    days of the custodial term.

[2]

In her oral submissions, counsel for the Crown conceded that the
    conviction for possession for the purpose of trafficking could not be sustained
    on this record. She asked us to substitute a conviction for simple possession.

[3]

As the drugs in question were prescription medications for which the
    appellant had prescriptions, we do not agree that a conviction for simple
    possession can be substituted. Absent a purpose to traffic, the appellants
    possession of the drugs was lawful.

[4]

In these circumstances, it is unnecessary for us to deal with the
    arguments advanced by Mr. Adler.

[5]

Accordingly, we allow the appeal, set aside the conviction and enter an
    acquittal.

Robert J. Sharpe J.A.

David Watt J.A.

David Brown J.A.