WARNING

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

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

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    identify the complainant or a witness shall not be published in any document or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

(a)       any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. J.W.C., 2011 ONCA 550

DATE: 20110810

DOCKET: C49105

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

C. (J.W.)

Appellant

Timothy E. Breen and Diana
Lumba
,
          for the appellant

Susan Magotiaux, for the respondent

Heard: May 19, 2011

On appeal from conviction entered by Justice C. Marchand of
          the Superior Court of Justice, dated January 8, 2008.

Rosenberg J.A.:

[1]

The appellant appeals his conviction for
    fourteen sexual offences involving eight different complainants.  The charges arise out of the appellants work
    as a residential counsellor at various group homes for persons with special
    needs.  The case is unusual.  There were never any complaints of wrongdoing
    against the appellant in the various group homes where he worked. The victims,
    who were developmentally handicapped, were largely unable to communicate and
    did not testify at the trial.  Rather,
    the Crowns case depended upon a statement that the appellant gave to the
    police, after he contacted them.  The
    appellant, who was 33 years of age at the time he gave this statement, was
    suffering from clinical depression.  The
    principal ground of appeal is an attack on the trial judges decision to admit
    the appellants statement to the police in light of the appellants mental
    condition.  The appellant submits that
    the trial judge erred in failing to find that the appellants right to counsel
    under s. 10(b) of the
Charter of Rights
    and Freedoms
was violated.

[2]

The Crowns case consisted of the
    statement and the evidence of the appellants employment history, which was
    consistent with the extensive detail of the sexual assaults laid out by the
    appellant in the statement.  In the
    statement, he described how he had perpetrated sexual assaults against specific
    individuals over the two-year period between 1997 and 1999. The appellant testified
    and denied that the content of his statement was true.  He claimed that his statement was a function
    of his mental illness, voices telling him that he should confess to crimes he
    did not commit because he was deserving of punishment for them and should be
    sent to jail to be killed.  The appellant
    raises other grounds of appeal concerning the charge to the jury and also
    submits that the verdicts should be set aside because trial Crown counsel
    engaged in impermissible jury vetting.  We did not call on the Crown to respond to this latter ground of
    appeal.  Cases from this court, in
    particular,
R. v.
Emms

(2010), 104 O.R. (3d) 201 (C.A.), leave to appeal to the S.C.C. granted,
    [2011] S.C.C.A. No. 52, are dispositive of the issue against the appellant on the
    facts of his case.

[3]

For the following reasons, I would dismiss
    the appeal.

THE FACTS

[4]

The appellant is hearing impaired and
    reads lips when not assisted with a hearing aid.  There is no suggestion that his hearing
    impairment posed any problem for the appellant during the police
    interview.  After graduating from
    college, the appellant was employed at several care facilities.  He also began a common law relationship with
    Tara Letcher.  Over the next decade the
    appellant began to experience mood swings.  In January 2000, the appellant met with his family physician, Dr.
    Murphy, who diagnosed his mental health problems as arising from bipolar
    disorder.  Initially, the appellants
    condition responded to medication, such as Lithium, but by the spring of 2003, his
    condition deteriorated and he had entered the manic phase.  He stopped taking his medication in June
    2003.  He developed ideas of
    grandeur.  He left Ms. Letcher and moved
    in with his sister.  Although the appellant
    had not played hardball for almost 20 years, he believed that he could
    successfully pursue a career as a professional baseball player.  By August 2003, the appellants illness had
    switched to the depression phase.

[5]

On September 3, 2003, the appellant saw
    Dr. Murphy and reported disjointed thoughts and suicidal thoughts.  He agreed to restart his medications.  By September 9, 2003, the appellants symptoms
    persisted and he had become more reclusive.  At Dr. Murphys recommendation, he voluntarily entered the
    psychiatric unit of Soldiers Memorial Hospital for treatment, which included
    medication, group therapy, recreational programming and community passes. The
    appellant was of the view that he was not responding to the medication and his
    mood was unchanged.  However, neither Dr. Murphy
    nor any member of the health care team saw any evidence of any psychosis or any
    report from the appellant that he was experiencing hallucinations or hearing
    voices.

[6]

On October 1, 2003, the appellant called
    the police from the hospital and said that he wanted to confess to sexual
    offences that he had committed in the past.  Two police officers came to the hospital at 10:45 a.m.  One of the officers, Detective Constable
    Baskey, telephoned Dr. Murphy and asked if removing the appellant from the
    hospital would risk his physical well-being.  Dr. Murphy assured the officer that the appellant was of sound mind
    and suffered from bipolar disorder.  She
    also testified that she saw no reason why the appellant, who was a voluntary
    patient, should not be allowed to go with the police whom he had called.  The appellant was brought to the nursing
    station and confirmed that he had called the police and he agreed to go to the
    station for an interview.  He was then
    taken to the police cruiser where he was informed of his right to counsel.  He agreed that he understood his rights and
    when asked if he wanted to call a lawyer now, said:  Not right now.  He was then taken to the police station and
    after smoking a cigarette outside the station was taken to an interview
    room.  The interview began at 11:07
    a.m.  The appellant explained that he had
    been a voluntary patient at the hospital.  The interview continued as follows:

BASKEY: Um now Im gonna read a couple of things to
    you. Ive already read them to you once but Im gonna go over them again.

APPELLANT: Okay

BASKEY:      Alright.
    Ah its my duty to inform you that you have the right to obtain and instruct
    [counsel] without delay. You have the right to telephone any lawyer you wish.
    You also have the right to free advice from a Legal Aid Lawyer. If you are
    charged with an offence you may apply to the Ontario Legal Aid Plan for legal
    assistance. 1-800-265-0451 is a toll free number that will put you in contact
    with Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?

APPELLANT:
Mm
    huh

BASKEY: Ah do you wish to call a lawyer now?

APPELLANT:
Ah
    I dont know.

BASKEY: Okay. Um but you do understand this [is] a,
    a phone number for free legal advice?

APPELLANT:
Mm
    huh

BASKEY: And that well provide you with an opportunity
    to call that number, you do understand that right?

APPELLANT:
Right

BASKEY: Um do you wish to say anything in an, now
    youre not charged with anything right now. Um do you wish to say anything ah
    youre not obliged to say anything unless you wish to do so but whatever you
    say may be given in evidence do you understand that?

APPELLANT:
Mm
    huh

BASKEY: Were recording this and that we can use it
    as evidence?

APPELLANT:
Okay

BASKEY: Okay. So what Ill do is Ill, Ill get you
    to um, ah just tell me a little bit about yourself and tell me why you called
    today. Okay? [Emphasis added.]

[7]

Detective Constable Baskey continued with
    the interview, beginning with background information but ultimately turning to
    the question of the sexual assaults.  The
    appellant stated that he had sexually assaulted a number of patients who were
    in his care.  He gave details of the
    assaults and identified a number of the victims by their first name or their
    bedroom location and gave particulars of the facilities where the assaults took
    place.

[8]

The appellant testified on the
voir dire
to determine the admissibility
    of the statement.  He explained that,
    prior to October 1, 2003, he had begun to hear voices, like a tape-recorder,
    telling him that he was a bad guy that had committed sexual offences and that
    he should be punished for them and sent to jail where he would be killed.  While the appellant did not tell any of the
    medical staff about these voices before October 1, he did tell Ms. Letcher and
    her mother.  Ms. Letcher, in turn, told
    her friend Shayne Jose about what the appellant had said about the voices.

[9]

The appellant testified and attempted to
    explain what he meant in his answers to Detective Constable Baskey set out
    above.  He said that he did not fully
    understand what the officer was saying to him but was saying Mm huh to be
    agreeable.  He claimed that while he
    understood he could call a free lawyer, he did not know how to do so.  He said I dont know because he was confused
    and nervous.  He was trying to think
    about whether or not he should have a lawyer.  He testified that he did not ask the police to stop the interview.  He explained his position that he was being
    controlled by  by the voice in my head to continue  continue on with  with
    the interview.

[10]

Both the Crown and defence called psychiatrists to
    testify about the appellants mental state at the time he gave the
    statement.  While the experts agreed that
    the appellant suffered from bipolar mood disorder and that he was in a
    depressed state at the time, they differed on the severity of the
    depression.  The defence expert
    considered that the appellant was severely depressed.  In his view, while the appellant understood
    what the officer was telling him, he would have difficulty comprehending or
    processing the information in a rapid manner.

[11]

The Crown expert gave the opinion that the appellant
    had the capacity to understand his right to counsel.  While the appellant may have been in a severe
    depressive state when first admitted, in her opinion, by the time he gave the
    statement his depression was moderate.

[12]

At the conclusion of the
voir dire
, the trial judge admitted the statement.  I will summarize the trial judges reasons
    below.

The Trial Evidence

[13]

The Crowns case depended upon the appellants
    statement being truthful.  In the
    statement, the appellant described his employment history in detail and spoke
    about 10 to 15 acts of intercourse with residents of group homes who were
    profoundly disabled and unable to consent.    He described anal and attempted
    anal intercourse of some victims and genital touching of others, as well as his
    use of condoms to prevent detection. The appellant sketched a diagram of the
    three residences where he had worked and attempted to identify the occupants by
    sex or name.  With this information, the
    police were able to identify the alleged victims.  The victims were not called as witnesses.

[14]

The defence was a denial that the content of the statement
    was true.  The appellant claimed that it
    was a product of his illness: voices telling him that he had committed sexual
    offences that he must be punished and that he would be killed in jail.  At the time he gave the statement, he
    believed it was true.  As a result of
    further therapy, he now realized that the statement was not true.  Prior to his arrest, the appellant had not
    told any health professionals about hearing voices.  However, he testified that on September 25,
    2003 he told Ms.
Letcher
about hearing voices.  On September 29, 2003, the appellant told
    Ms.
Letchers
mother, Marilyn Dobson, that maybe
    he should go to jail so someone could kill him.  Ms. Letchers best friend, Shayne Jose, testified that Ms. Letcher told
    her that the appellant told her he was hearing voices like a tape-recording in
    his head playing over and over.  Although
    she had many conversations with Ms. Letcher about the appellants case both
    before and after he was arrested, Ms. Jose believed that she was told about the
    voices before the appellant was arrested.

[15]

Crown counsel cross-examined Ms. Letcher on the fact
    that she and the appellant had launched a lawsuit against Dr. Murphy and the
    hospital for half a million dollars.  Ms.
    Letcher believed that the success of the lawsuit depended on proving that the
    appellant should not have been released to the police and allowed to confess to
    things he did not do.  Mrs. Dobson was
    cross-examined along similar lines: that she had assumed responsibility for the
    appellants care and had also been in touch with a lawyer about a lawsuit.  In a letter of October 5, 2003 to the
    psychologist at the jail written four days after the appellants arrest and
    before the appellants recantation, Mrs. Dobson suggested that the appellant
    should be remanded for psychiatric examination, that the appellant was hearing
    voices and that the confession may have been a false story.

[16]

The experts who testified at the
voir dire
also testified at the trial, and gave similar
    evidence.  The defence expert, who
    arrived at his initial opinion without viewing the videotape of the appellants
    statement, testified that the auditory hallucinations reported by the appellant
    requiring him to confess were consistent with the severe guilt experienced by
    someone in a severe depression.  The
    Crown expert, who had viewed the videotape, disagreed.  She was of the view that the appellants depression
    was moderate and that there were no clinical records to support the proposition
    that he was experiencing auditory hallucinations or severe depression at the
    time he gave his statement.  She was of
    the opinion that the appellants position of a false confession was belied by
    his detailed description of the numerous sexual abuses he said he had committed.

THE ISSUES

[17]

The appellant raises the following issues:

·

Did the Crowns vetting of the jury list affect
    the validity of the trial?

·

Did the trial judge err in admitting the
    appellants statement because of violation of his right to counsel because:

o

The police did not give the appellant sufficient
    time to consider whether to exercise his right to counsel.

o

When the appellant gave the equivocal
    answer:  Ah I dont know, were the
    police required to obtain a clear waiver that he did not wish to consult
    counsel.

·

If there was a violation of s. 10(b) of the
Charter,
should the statement be
    excluded under s. 24(2)?

·

Did the trial judge err in his directions to the
    jury concerning the expert evidence?

·

Did the trial judge err in failing to correct
    Crown counsels assertion that Ms. Letcher and Mrs. Dobson had a motive to
    lie about the auditory hallucinations, and did the trial judge err in failing
    to refer to Ms. Joses evidence?

ANALYSIS

Jury Vetting

[18]

As I indicated, we did not call on the Crown to respond
    to this ground of appeal.  The proposed
    fresh evidence as to information that police officers may have passed on to
    Crown counsel for use in the jury selection was of a highly uncertain
    nature.  In addition, the circumstances
    of the case very much resembled the facts in
R. v. Emms
, in which this court found no basis for overturning a
    jurys verdict.  Accordingly, I would not
    give effect to this ground of appeal.

Right to Counsel

[19]

Apparently because of the manner in which the case was
    argued before him, the trial judges focus on the right to counsel issue was
    whether the appellant had a reasonable time to consider whether he should
    exercise his right to counsel.  The trial
    judge found that the appellant did have an adequate time to decide.  In coming to that conclusion, the trial judge
    took into account that the appellant had time to consider his position.  He was first read his right to counsel in the
    police car on the way to the detachment and given his right again at the
    detachment.  The appellant had
    approximately twelve minutes between the first and second cautions to consider
    his right to counsel and make a decision whether to exercise that right.  The twelve minutes included opportunities for
    the appellant to consider his position while he was having a cigarette outside
    the detachment and the five minutes he had in the interview room before his
    statement was taken.    As well, the trial judge considered that the
    interview began with open-ended questions that were not immediately focused on
    the crimes to which the appellant wished to confess.  In addition, after being given his right to
    counsel, the appellant was not immediately confronted in a manner that would
    have inhibited him from exercising the right to counsel.  The trial judge had the advantage of a video
    of the entire interview in the police detachment.  He concluded: I find that the twelve or so minutes between the first reading of his
    right to counsel and caution to the beginning of the interview gave a person of
    his education, admittedly depressed at the time, sufficient time to ask for
    counsel.

[20]

I am not satisfied that the appellant has shown that
    the trial judges conclusion was unreasonable.  I would therefore not interfere with the trial judges decision that the
    appellant had a reasonable opportunity to decide whether or not to exercise his
    right to counsel.

[21]

On appeal, counsel for the appellant, who was not trial
    counsel, advances a slightly different argument.  Mr. Breen submits that the appellants
    equivocal response, I dont know, required the police to obtain a clear
    waiver from the appellant.  The appellant
    submits that the circumstances known to the police compel this result.  The most important circumstance, of course,
    was that the appellant was suffering from depression and, albeit at his own
    request, had been removed from a psychiatric facility.

[22]

The Supreme Court of Canada has set out a framework for
    analysis of s. 10(b) claims in any number of cases, most recently in the
Sinclair
trilogy:
R. v.
    Sinclair,
[2010] 2 S.C.R. 310;
R. v. Willier
,
    [2010] 2 S.C.R. 429; and
R. v. McCrimmon
,
    [2010] 2 S.C.R. 402.  This line of cases
    identifies two components of the right to counsel protected by s. 10(b).  First, is the informational component; the
    cases establish what the police must tell the detainee about his right to
    consult counsel.  No complaint is made
    about the police compliance with this first component.  The investigating officer informed the
    appellant twice about his right to consult counsel immediately and of the
    availability of duty counsel for that purpose.

[23]

The second component of the s. 10(b) right to counsel
    is the implementation component.  This
    second component requires that the police give the detainee an opportunity to
    exercise his right to counsel.  The
    courts have held that this second component implies that there is a duty on the
    police to hold off questioning until the detainee has had a reasonable
    opportunity to consult with counsel.  It
    was this aspect of the right that apparently was the focus of the argument
    before the trial judge.  As I have said,
    the trial judge found against the appellant on that issue and that finding was
    open to him on the evidence.  I would not
    interfere with that decision.

[24]

The appellant submits that the second component also
    implies that in some circumstances the police must ensure that the detainee has
    actually waived his right to counsel.  This
    may require that the police provide the detainee with further information.  One circumstance where the police may be
    required to provide the detainee with further information is where the detainee
    initially invokes his right to counsel but, having been unsuccessful in
    obtaining legal advice, abandons the attempt.  In such circumstances, the police must not only inform the detainee of
    the right to consult counsel again, but of the police obligation to hold off in
    their questioning until the detainee has had a reasonable opportunity to
    consult counsel.  See
R. v. Willier
at paras. 31 and 32 and
R. v. Prosper
, [1994] 3 S.C.R. 236, at p.
    274.  More generally, in
Sinclair
, the court clarified the
    circumstances in which a detainee is entitled to a second opportunity to
    consult counsel.  While the categories
    are not closed, the three circumstances identified in
Sinclair
are: (1) where the police seek to resort to non-routine
    procedures involving the detainee, such as asking the detainee to participate
    in a line-up; (2) there has been a change in jeopardy because the investigation
    has taken a new and more serious turn as events unfold; and (3) as events
    proceed, there is reason to question the detainees understanding of the right
    to consult counsel.

[25]

In this case, the appellants response to the second caution
    was simply, Ah, I dont know. If that phrase constituted a positive
    indication of uncertainty as to the content of the right to counsel, the police
    would be obliged to provide the appellant with further and better
    information.  As the court said in
R. v. Willier
at para. 31, should a
    detainee positively indicate that he or she does not understand his or her
    right to counsel, the police cannot rely on a mechanical recitation of that
    right and must facilitate that understanding.  However, that is not this case.  In
    this case, Ah, I dont know was not an expression of uncertainty about the
    content of the right, which the appellant admitted he understood.  Nor was it an invocation of the right to
    counsel and, by itself, would not trigger an obligation on the police to obtain
    a clear waiver.  After the appellant said
    Ah, I dont know, Constable Baskey confirmed with the appellant that he
    understood his rights:

Baskey: Okay.  Um but you do understand that this a, a phone number for free legal
    advice?

Appellant: Mm hum

Baskey: And that well provide you with an
    opportunity to call that number, you do understand that right?

Appellant: Right

[26]

Even taking into account the appellants psychiatric
    condition as was appropriate, there is nothing to indicate that the appellant
    did not understand that he had the right to immediately consult counsel, if he
    wished to do so.  There is no aspect of
    the interview that indicates that the appellant did not understand his right to
    counsel or that he was in any way deprived of the opportunity to exercise that
    right had he chosen to do so.

[27]

The issue then is whether having regard to the broader
    context in which this interchange took place, the police were required to go
    further and obtain a clearer waiver from the appellant. One example of the
    circumstances where the police may be required to go further is where the
    detainee was informed of his rights at a time when he may have been uncertain
    of the jeopardy he faced.

[28]

This is not a case such as
R. v. Small
(1998), 123 C.C.C. (3d) 560 (
Alta.C.A
.),
    upon which the appellant relied. In that case, when the accused was first
    detained, he was simply told that he was being detained for sexual
    assault.  The officer testified that
    while the accused waived his right to counsel, he seemed bewildered.  It was only as the interview progressed and
    the accused realized that the investigation concerned his encounter with a
    woman the night before that the accused seemed to understand the basis for the
    interview.  At this point, the accused asked
    the officer if he should telephone a lawyer.  In those circumstances, the Court of Appeal found, at p. 570, that the
    officer should have obtained a clear waiver:

The question posed by the appellant to the police
    officer, i.e., "[d]o you think I should phone a lawyer?", was either
    a request for an opportunity to contact counsel or, at least ambiguous as to
    whether or not the Appellant wished to exercise his s. 10(b) right. The police
    officer responded that "maybe he should [contact a lawyer] due to the fact
    that it was a serious offence". In our view, in the face of the
    Appellant's question, the police officer was obliged to pursue the issue
    further and to either obtain a clear and unequivocal waiver or afford the
    Appellant a reasonable opportunity to exercise his right to counsel. He did
    neither. Instead he proceeded to obtain the statement.

[29]

Small
falls
    within one or two of the categories identified in
Sinclair
for when a detainee is entitled to a further opportunity
    to consult with counsel; namely, a change in jeopardy or where there is reason
    to doubt the detainees understanding of the right to consult counsel.  This case is different than
Small
.  Whereas, in
Small
, it was the
    detainee who was unsure of the nature of the allegations when he expressed uncertainty
    about whether to contact counsel, in this case, it was the detainee and not the
    police who had the exclusive knowledge and control over the information about
    the abuse he alleged that he committed.  It was the appellant who contacted the police.

[30]

In another case, a particular detainees mental illness
    could be a very important factor, that might well lead to a finding that the
    detainee did not understand the right to consult counsel.  However, in this case the appellant was a
    voluntary patient at the hospital and his treating physician was of the opinion
    that it was appropriate that he be allowed to participate in the police
    interview that he sought.    Moreover, the appellant understood his right
    to counsel and appreciated that he could have exercised that right.  He had adequate opportunity to consider
    whether he would do so.  In the face of
    the appellants statement that he did not know whether to consult counsel,
    Detective Constable
Baskey
reiterated in plain
    language that the appellant could have immediate access to free legal
    advice.  Given these circumstances, in my
    view, the police were not required to do more than Detective Constable Baskey
    did.  Since the appellant has not
    established that his s. 10(b) rights were violated, it is unnecessary to
    consider the application of s. 24(2) of the
Charter
.

Instructions on the Expert Evidence

[31]

The expert evidence adduced by the parties was an
    important aspect of this case.  The
    appellant relied upon the evidence of his expert to bolster his claim that his
    statement was false and a product of his mental illness.  The appellant complains about these
    directions that the trial judge gave the jury concerning expert evidence:

You
    must also consider the facts relied upon and the opinion itself.  You must ask whether the opinion of the
    expert is based on certain assumed facts.  You will decide the facts that are the basis of the expert opinion which
    have been established.  If you find that
    none of the supporting facts have been established then the opinion is worthless
    as not being based upon accepted facts.

If
    you find that only some of the supporting facts are proven then you will give
    to the opinion the weight that you feel it deserves.  If, in your opinion, the expert is qualified
    in the field and the facts upon which he bases his opinion or her opinion, are
    established, then you should not reject the opinion unless you feel that you
    have a good reason to do so.  The
    experts opinion may be rejected entirely if you find it to be unreasonable.

[32]

The appellant submits that the effect of this
    instruction was to require the appellant to establish the facts upon which the
    opinion was based before the opinion could be given any weight.  He submits that where the opinion is based upon
    the appellants testimony such an instruction is inconsistent with the
    presumption of innocence.  The appellant
    takes particular exception to the instruction:
If you find that none
    of the supporting facts have been established then the opinion is worthless as
    not being based upon accepted facts.  The appellant submits that an opinion favouring an accused can be
    dismissed as worthless only where the factual foundation of the opinion is
    rejected.

[33]

I would not give effect to this ground of appeal.  The trial judges instructions were in accordance
    with authorities from this court and the Supreme Court of Canada.  See for example:
R. v.
    Davey
(2010), 103 O.R. (3d) 161 (C.A.), leave to appeal granted, [2011]
    S.C.C.A. No. 148;
R. v. Abbey
, [1982]
    2 S.C.R. 24;
R. v. Lavallee
, [1990] 1
    S.C.R. 852; and
R. v. Kirkby
, (1985),
    21 C.C.C. (3d) 31 (Ont. C.A.), leave to appeal dismissed (1986), 18 O.A.C. 160
    (S.C.C.).  Further, there is no substance
    to the appellants submission that the jury could reject the expert opinion as
    worthless. The trial judge told the jury that the opinion could rejected as
    worthless only if none of the supporting facts had been established.  That was manifestly not a concern in this
    case.  Many of the underlying facts, such
    as the appellants underlying mental illness and that he was suffering from
    depression were not in dispute.

Instructions
    on the Defence Witnesses Motive to Lie

[34]

The appellant submits that the trial judge erred in
    instructing the jury that the appellants witnesses, especially Ms. Letcher and
    Ms. Dobson, had a motive to lie.  In
    reviewing the defence evidence, the trial judge referred to the fact that Ms.
    Letcher had launched a civil action against the hospital and Dr. Murphy and
    that it was the Crowns position that this civil action might be a motive for
    them to give an untrue version of the facts.  In my view, this position was one that was available on the facts.  Ms. Letcher testified that she believed that
    the success of the lawsuit turned on whether the appellant was convicted.  It was beside the point that this belief may
    have been inaccurate; the fact that she believed it, was a basis for Crown
    counsels submission.  It was also open
    to Crown counsel to make the submission that the appellants evidence was
    concocted.

[35]

Finally, the appellant submits that the trial judge
    erred in failing to specifically refer to the evidence of Ms. Jose.  She testified that some time after September
    25, 2003, presumably before the appellant confessed, Ms. Letcher told her that
    the appellant told her that he was hearing voices.

[36]

It will be unusual for a conviction to be set aside,
    where the charge to the jury is otherwise unobjectionable, because the trial
    judge has failed to refer to a single piece of evidence.  The trial judges duty is well established
    and, for example, was described by Spence J. in
R. v. Colpitts
, [1965] S.C.R. 739, at p. 752, as requiring the
    trial judge to not only outline the theory of the defence but to give to the
    jury matters of evidence essential in arriving at a just conclusion in
    reference to that defence.

[37]

In my view, Ms. Joses evidence did not fall within
    this principle.  Her evidence was
    third-hand hearsay, a report of what Ms. Letcher told her about what the
    appellant told her at some unspecified time, albeit probably prior to the confession.  Defence counsel at trial, not Mr. Breen, did
    not raise any objection to the trial judges review of the evidence and did not
    ask that the trial judge to refer to Ms. Joses evidence.  It is apparent that Ms. Jose was closely allied
    with Ms. Letcher.  Her evidence was not
    so pivotal to the defence case that the trial judges failure to refer to it
    resulted in a miscarriage of justice.  I
    would not give effect to this ground of appeal.

DISPOSITION

[38]

Accordingly, I would dismiss the appeal from conviction.

Signed:           M.
    Rosenberg J.A.

I
    agree S. E. Lang J.A.

I
    agree David Watt J.A.

RELEASED:  MR August
    10, 2011


CITATION: R. v. Kelly, 2011 ONCA 549

DATE: 20110811

DOCKET: C48288

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Kelly

Appellant

Philip Campbell and Michael Dineen, for the appellant

Roger A. Pinnock, for the respondent

Heard: March 23, 2011

On appeal from the conviction on a
          charge of second degree murder entered on October 13, 2006 at Brampton,
          Ontario by the Honourable Mr. Justice Kenneth A. Langdon of the Superior
          Court of Justice, sitting with a jury.

Doherty J.A.:

I

Introduction

[1]

The appellant was charged with first degree murder and
    convicted of second degree murder.  He
    appeals his conviction.

[2]

The appellant killed Nathaniel Wilson.  The Crown alleged that the homicide was
    planned and deliberate.  The appellant,
    who testified in his own defence, claimed that he acted in self defence.  The jury did not accept the position advanced
    by either the Crown or the defence.  The
    verdict indicates that the jury was not satisfied that the murder was planned
    and deliberate but was satisfied beyond a reasonable doubt that the appellant
    did not act in self defence.

[3]

The appellant pursues two arguments on appeal.  First, he submits that the trial judge erred
    in ruling that certain evidence, if proffered by the defence, would put the
    appellants propensity for violence in issue.  Second, the appellant submits that the trial judge misdirected the jury
    on the use it could make of out of court statements made by two Crown
    witnesses.  The appellant submits that
    the trial judge erred in explaining to the jury the pre-conditions necessary before
    a witness could be said to have adopted her prior statement.

[4]

I would dismiss the appeal.  The trial judge correctly addressed the
    evidentiary issue raised by counsel at trial.  The appellant puts a different issue before this court.  The trial judge did misdirect the jury as to
    the pre-conditions that had to be met before a witness could be said to have
    adopted a prior statement.  However, in
    the circumstances of this case, that misdirection caused no substantial wrong
    or miscarriage of justice.

II

The Facts

[5]

For
    the purposes of the appeal, the facts are straightforward.  The appellant and Nathaniel Wilson lived in
    the same housing complex in Mississauga.  While both were young men, they had relatively extensive criminal
    records and lived a criminal lifestyle.

[6]

Several
    weeks before the homicide the appellant became involved in a dispute with a man
    named Jackson.  The appellant believed
    that Jackson had stolen some electronic equipment from him.  As payback the appellant took $80 from
    Jackson under the pretense of purchasing drugs for him. The appellant kept the
    money and when Jackson made enquiries the appellant told him that he should
    consider it even.

[7]

About
    three weeks before the homicide, the appellant encountered Jackson who was with
    his friend Wilson, the deceased.  The
    appellant noticed that Wilson was carrying a baseball bat in one hand and had
    the other hand concealed in his pants.  Mr. Wilson approached the appellant and demanded that he return the
    money to Jackson.  The appellant refused and
    an argument ensued.  Both men used
    obscenities and made threats.  Wilson
    threatened to get his gun and shoot up this place and shoot you, and shoot
    your family.

[8]

Over
    the next three weeks the appellant saw Wilson on a few occasions at the housing
    complex where they lived.  The appellant
    was not afraid of Wilson but he was cautious.  Although violence was common-place in the housing complex, threats to
    shoot people were not and the appellant was concerned.

[9]

On
    July 6, 2004, shortly before midnight, the appellant and a friend decided to
    contact their drug dealer and arrange to buy some marijuana.  After getting the necessary cash, the
    appellant and his friend were walking toward the local Tim Hortons to meet the
    dealer.  They saw their dealer standing in
    the housing complex parking lot with a group of other men.  The appellant did not get along with some of
    those men.

[10]

The
    appellant testified that he and his friend stood behind a bush near the parking
    lot and tried to get their drug dealers attention.  The appellant was armed with a small knife
    that he had carried with him since he had been stabbed eight months earlier.

[11]

The
    appellant further testified that as he was trying to get his drug dealers
    attention two young women, Tacita Ashman and Georgeia Pinto, walked away from
    the group of men in the parking lot and past the appellant and his friend.  After they had passed the appellant, they
    paused and appeared to be speaking on a cell phone.

[12]

The
    appellant testified that his friend then said something that caught the appellants
    attention.  The appellant turned around
    and saw the deceased Wilson approaching on the other side of the bush.  Wilson was hunched over with his hands behind
    his back and appeared to be sneaking up on them.  Wilson was about 15 feet away.

[13]

The
    appellant testified that he was afraid that Wilson was about to carry out his earlier
    threat to shoot him.  As Wilson continued
    to approach, the appellant jumped forward from behind the bush and tried to
    stab Wilson in the shoulder hoping to disarm him.  Wilson was struck in the neck with sufficient
    force to sever his carotid artery and puncture his lung.  Wilson staggered backward and his blood spurted
    into the appellants face.  Wilson turned
    and ran.

[14]

The
    appellant was temporarily blinded by Wilsons blood, but when his vision
    cleared he saw Wilson running away from him down the path.  The appellant, who still had his knife,
    chased Wilson.  According to the
    appellant he did this because he was afraid that Wilson would stop, turn around
    and shoot him.  The appellant gave up the
    chase after a short distance and fled to his home.  He insisted that he did not at any time intend
    to kill Wilson.  The appellant agreed
    that it sounds stupid to chase someone who has a gun, but maintained he was
    looking for a safe avenue of escape.

[15]

Wilson
    was rushed to the hospital and died after a few days on life support.

[16]

The
    appellant ran to his home and immediately took steps to dispose of any incriminating
    evidence.  He gave his blood-covered
    sweater to a friend and put the remainder of his clothes in the wash.  He disposed of his knife.

[17]

The
    trial judge instructed the jury on the defence of self defence and in
    particular on the operation of self defence as described in s. 34(2) of the
Criminal Code
. It is no small compliment
    to the trial judge that no objection is taken to his instruction on what is a
    notoriously complex and cumbersome part of the criminal law.

III

The Evidentiary Ruling

[18]

During
    the case for the Crown, defence counsel requested a ruling on the consequences
    of adducing certain evidence.  The
    defence was aware from the preliminary inquiry testimony that a Crown witness
    named Chrisjohn would testify that his younger brother had told him that Wilson
    had recruited the younger brother and his friends as soldiers to commit
    robberies for him.  Wilson offered to
    provide the youngsters with weapons for use in the robberies.  Chrisjohn confronted Wilson who confirmed the
    offer.  Chrisjohn emphatically told
    Wilson to leave his younger brother alone.

[19]

Defence
    counsel told the court that he could not say whether Chrisjohn would testify
    that he had told the appellant about Wilsons attempt to recruit his younger
    brother to commit armed robberies.  Defence counsel took the position that the evidence was admissible
    regardless of whether the appellant was aware of what Wilson had done.  Counsel further indicated, however, that if
    necessary to get that evidence before the jury he would undertake that the
    appellant would testify that Chrisjohn did tell him about Wilsons attempt to
    recruit his younger brother.

[20]

In
    his submissions, defence counsel at trial indicated that Chrisjohns evidence,
    in conjunction with other evidence, was offered to show:

[T]hat
    he [Wilson] was a person who had easy access
and
a willingness to use firearms.
    [Emphasis added.]

[21]

Counsel
    submitted that Wilsons access to and willingness to use guns had a dual
    relevance.  He said that the evidence was:

relevant
    to the question of self defence
and
what was in my clients mind at the
    time of the incident.  [Emphasis added.]

[22]

As
    counsels submissions made clear, the evidence was tendered both as
    circumstantial evidence of who, as between Wilson and the appellant, was the
    aggressor (the question of self defence) and as evidence of the appellants
    belief that Wilson was armed and dangerous.

[23]

Defence
    counsel requested an advance ruling not because he doubted the admissibility of
    the evidence, but because he was concerned about the consequences of eliciting the
    evidence.  Counsel asked the trial judge
    to hold that by leading evidence of Wilsons access to and willingness to use
    guns, the defence was not putting Wilsons disposition for violence in issue and
    opening the evidentiary door to evidence of the appellants disposition for
    violence:  see
R. v. Sparkes
, [2005] O.J. No. 1883 (C.A.);
R. v. Williams
(2008), 233 C.C.C. (3d) 40 (Ont. C.A.).  The Crown had evidence that was capable of
    showing that the appellant had a violent disposition.

[24]

The
    Crown did not challenge the admissibility of the proffered evidence, but argued
    that it was evidence of Wilsons disposition for violence and if tendered would
    allow the Crown to lead evidence of the appellants disposition for violence.

[25]

The
    trial judge accepted the Crowns submission holding, at paras. 18-19:

Mr.
    Derstein has argued that by introducing the evidence of recruitment of
    soldiers and supply of firearms, defence is not seeking to bring up
    deceaseds
general reputation for
    violence
.  It is true that if he was
    known to be a person with access to firearms and/or the willingness to use them
    unlawfully, it is discreditable to the deceased; but defence does not seek to
    put deceaseds
general reputation for
    violence
in issue.  Defence simply
    wants to lead evidence to show deceased was a person with access to firearms
    and a willingness to use them.  Mr. Chrisjohns
    testimony only shows access.  This, Mr.
    Derstein argues, is relevant to the issue of self defence and the accuseds
    state of mind at the time of [the] occurrence.

With
    great respect to Mr. Derstein, I opine that he seeks to make a distinction
    without a difference.  [Emphasis in
    original.]

[26]

The
    trial judge acknowledged that if the appellant testified that he was aware of
    Wilsons attempt to recruit Chrisjohns brother to commit armed robberies, the
    evidence would be admissible as relevant to the appellants state of mind when
    he stabbed Wilson.  Admissibility as
    evidence of the appellants state of mind would not, however, affect the fact
    that the evidence also constituted evidence of Wilsons propensity for violence.
    The trial judge held that if the defence chose to call that evidence, the Crown
    could respond with evidence of the appellants propensity for violence. Counsel
    chose not to adduce the evidence.

[27]

On
    appeal, counsel submits that:

The
    defence wished to adduce the evidence
solely
on the issue of the
    appellants state of mind. [Emphasis added.]

[28]

This
    submission mischaracterizes the basis upon which the evidence was put forward
    at trial and the ruling sought at trial.  Trial counsel emphatically argued that the evidence was admissible
    whether or not the appellant was aware of it.  This position belies any suggestion the evidence was offered solely on
    the issue of the appellants state of mind.

[29]

Trial
    counsel argued that the evidence supported the inference that Wilson had ready
    access to and a willingness to use firearms. That inference could, according to
    the defence, support the further inference that Wilson was armed at the time of
    the homicide. If Wilson was armed, the jury could infer that Wilson was the
    aggressor. Counsel further submitted that the inference that Wilson was armed
    was available without any reference to Wilsons general character or propensity
    for violence. Like the trial judge I think the distinction defence counsel
    struggled to make was an untenable one.

[30]

The
    proffered evidence invited the jury to conclude that Wilson had ready access to
    and a willingness to use firearms. In short, he was a violent person. His
    willingness to obtain and use firearms reflected his propensity for violence.
    On the defence argument, Wilson was the kind of person who would carry a gun
    and would be prepared to use it. This propensity supported the inference that
    he was carrying a gun at the time of the homicide.

[31]

I
    agree with the trial judge that the line of reasoning relied on by the defence
    was in reality an argument based on Wilsons disposition to use firearms in a
    criminal and violent manner, as reflected in his attempt to recruit Chrisjohns
    brother.  That evidence amounted to
    evidence of Wilsons disposition for violence and would have, if elicited by
    the defence, opened the evidentiary door to evidence of the appellants
    disposition for violence.

[32]

It
    is important to appreciate that at no time did the trial judge foreclose the
    defence from leading evidence from the appellant or others as to what the
    appellant was told about Wilsons attempt to recruit and arm young boys as
    robbers.  As the trial judge
    acknowledged, and both defence and Crown counsel clearly appreciated, evidence
    of what the appellant was told could be relevant to his belief that Wilson
    posed a serious threat.  Evidence offered
    for that limited basis would not, however, involve testimony about the
    conversation between Chrisjohn and his younger brother or the conversation
    between Chrisjohn and Wilson.  The
    evidence would have been limited to what the appellant was told about the
    incident.  If the evidence had been
    offered solely as evidence of the appellants state of mind, there would have
    been no need to lead evidence of what Chrisjohn was told by his brother or
    Wilson. Clearly the defence wanted to lead evidence from which the jury could
    find that Wilson had in fact attempted to recruit Chrisjohns younger brother
    and other young boys to commit armed robberies.

[33]

The
    defence chose not to elicit any evidence of what the appellant was told about
    Wilsons efforts to recruit Chrisjohns younger brother.  The trial judge cannot be criticized for
    failing to make a ruling he was never asked to make by the defence.  Nor can his ruling as to the affect of
    leading certain evidence be converted into a ruling excluding evidence that the
    defence never sought to tender.  The
    trial judge was asked to rule on whether evidence of Wilsons efforts to
    recruit Chrisjohns younger brother to commit armed robberies would be viewed
    as evidence of Wilsons propensity for violence, thereby putting the
    appellants disposition for violence into issue. The trial judge ruled on that
    question only and in my view he ruled correctly.

[34]

I
    would add that there is and can be no suggestion of ineffective representation
    at trial. The self defence claim rested largely on the unchallenged evidence of
    Wilsons threat made directly against the appellant a few weeks earlier.  There was also evidence of the appellant that
    he was told by others that Wilson was going to shoot him and that Wilson had
    access to guns.  These people told the
    appellant to watch my back.

[35]

Evidence
    that the appellant had been told about Wilsons attempt to recruit Chrisjohns
    brother to commit armed robberies had significantly less probative value on the
    question of the appellants state of mind than did the evidence of Wilsons
    direct threat to kill and the evidence of the information the appellant
    received from others about the threat posed to him by Wilson. The connection
    between Wilsons attempt to recruit Chrisjohns brother and the threat he posed
    to the appellant was a tenuous one. Even that limited probative value was
    placed in doubt by the uncertainty surrounding Chrisjohns evidence. It was far
    from clear that he would testify that he told the appellant about Wilsons
    efforts to recruit his younger brother.  I
    am satisfied that the defence made a reasonable assessment that, unless the
    jury could use the evidence to find as a fact that Wilson had recruited young
    boys to commit armed robberies, it had little or no value to the defence.

IV

The Misdirection on the Adoption of Prior Statements

[36]

The
    Crown called Wanda Sconci and Amanda Parris.  Both witnesses had seen the appellant and his
    friend walking along the path toward the parking lot area in the housing
    complex where the group of men, including the appellants drug dealer, was
    congregated. The Crown called these two witnesses in an effort to establish
    that the appellant had looked sufficiently suspicious to them that they had
    immediately called one of their friends who was at the parking lot to warn him
    that the appellant was on his way.

[37]

Sconci
    had given a lengthy videotaped interview to the police. At trial, she professed
    to have little if any recollection of either the actual events or making the
    videotaped statement.

[38]

The
    trial judge made it clear that Ms. Sconci had lied over and over again in her
    evidence. He instructed the jury that anything she said that implicated the
    appellant should be viewed with the greatest of caution. He told the jury that
    it would be dangerous to convict based on her evidence.

[39]

The
    Crown had been permitted to cross-examine Ms. Sconci and had put her videotaped
    statement to her during that cross-examination. The trial judge instructed the
    jury as to the use it could make of the videotaped statement in these words:

The
    more difficult issue for you will be to decide whether or to what extent Ms.
    Sconci adopted at trial, portions of her previous police interview. She could
    not deny having said what was recorded on the tape.
Sometimes she said that
    she was speaking the truth when she made a certain statement, but that she had
    no current memory of the event. If she said that, then you might accept her
    previous statement as evidence of the truth of what she said
[Emphasis
    added.]

[40]

After reviewing parts of the videotaped statement, the
    trial judge told the jury:

You cannot use the earlier statement as evidence of
    what actually happened, unless you are satisfied the witness accepted it as
    true while in the witness box.
That is what I mean by adopted. For instance,
    Wanda Sconci said that certain parts of her police statement in respect of matters
    she now did not remember at all, were true. If you accept that, then you might
    find she had adopted a prior inconsistent statement.
[Emphasis added.]

[41]

Counsel for the appellant submits, and the Crown agrees,
    that the trial judge misdirected the jury as to the prerequisites to the
    adoption of a prior statement. Under the prevailing authority a witness cannot
    adopt a prior inconsistent statement unless that witness has a present
    recollection of the events referred to in the statement and can attest to the
    accuracy of the statement based on a present recollection of those events. A
    witness who has no present recollection of the events but insists that the
    statement was true because, for example, she would not lie to the police, has
    not adopted the prior statement and subject to some other rule of evidence, the
    prior statement is not admissible for its truth: see
R. v. Toten
(1993), 83 C.C.C. (3d) 5, at p. 23 (Ont. C.A.);
R. v. McCarroll
(2008), 238 C.C.C. (3d)
    404, at paras. 38-39 (Ont. C.A.).
[1]
Sconci purported to have virtually no recollection of the events she spoke of
    in her statement. Without that present recollection, her testimony that parts
    of the statement were true could not constitute an adoption of it. On a proper
    application of the law, Sconci adopted little if anything from her videotaped
    statement.

[42]

I am satisfied, however, that the error did not cause
    any substantial wrong or miscarriage of justice. Bearing in mind the patently
    unbelievable nature of most of Sconcis evidence and the strong language used
    by the trial judge in describing the evidence, I see virtually no chance that
    the jury used anything Sconci said to implicate the appellant.

[43]

In argument, counsel for the appellant pointed to the
    comment in Sconcis statement to the effect that the appellant looked like he
    was up to something as a part of the statement that could possibly harm the
    appellant if used by the jury for its truth. The appellant himself admitted he
    was up to something. He testified that he was trying to get his drug dealers
    attention without getting the attention of the other people who were with the
    drug dealer in the parking lot and with whom the appellant had bad relations.
    Sconcis reference to the appellant looking like he was up to something added
    nothing to the evidentiary landscape.

[44]

The witness Parris was somewhat more forthcoming than
    Sconci in her testimony. She testified that she made a phone call to a friend
    in the parking lot to tell him that the appellant was approaching the group in
    the parking lot.

[45]

After being referred to her statement to the police,
    Parris testified that the appellant wore a tuque pulled over his head in a
    manner that would conceal his distinct haircut. Although it is not entirely
    clear, it would appear that Parris had no actual recollection of what the
    appellant was wearing, but was simply accepting that what she had said to the
    police must have been true. As explained above, this could not constitute an
    adoption of that part of her statement.

[46]

The trial judge did not deal separately with the
    evidence of Parris when instructing the jury on the concept of the adoption of
    prior statements. Assuming the jury applied the earlier described misdirection
    to Parriss evidence, I am satisfied that it could not have occasioned any
    substantial wrong or miscarriage of justice. In her statement Parris referred
    to the appellant as wearing a tuque over his hair. Other witnesses described
    him as wearing a hood. The appellant admitted he had a hat with him. Whether
    the appellant was wearing a tuque, or a hood, or had some other hat with him is
    of minimal if any significance to the question of whether the Crown had proved
    that the appellant did not act in self defence when he killed Wilson. Any
    misdirection in respect of Ms. Parriss evidence was of no consequence.

V

CONCLUSION

[47]

I would dismiss the appeal.

RELEASED:  DD  AUG 11 2011

Doherty J.A.

I agree H.S. LaForme
    J.A.

I agree G. Epstein
    J.A.

[1]
The
    trial judges description of the preconditions to adoption are consistent with
    those applicable where the statement falls within s. 715.1 of the Criminal
    Code: see
R. v. C.(C.F.)
,
[1997] 3 S.C.R. 1183,
at para. 36-41.


CITATION: R. v. Lyaruu, 2011
          ONCA 547

DATE: 20110803

DOCKET: C50883

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Hillary Lyaruu

Applicant (Appellant)

Nicholas A. Xynnis, for the appellant

Amy Alyea, for the respondent

Heard and released orally: July 28, 2011

On appeal from conviction entered by Justice Emile Kruzick of
          the Superior Court of Justice, dated October 1, 2008.

ENDORSEMENT

[1]

The appellant appeals his convictions for refusal to take the
    breathalyser test and impaired driving. He raises four grounds of appeal:

(1)       The trial judge erred in failing to hold that the appellants
    s. 10(b)
Charter
right was breached when he was not given a second phone
    call to his lawyer.

(2)      The
    verdict on s. 10(b) was unreasonable.

(3)       The trial judge erred in drawing the inference permitted by s.
    258(3) of the
Criminal Code
.

(4)       The trial judge erred in concluding on the evidence that the
    appellant was impaired.

[2]

We called on the Crown on the first ground only. We do not accept any of
    the grounds raised.

[3]

On grounds (1) and (2), the trial judge gave full reasons for concluding
    on all the evidence that he was not satisfied that the appellant was asking to
    speak to counsel for clarification or for some further or other advice or for
    other reasons. The trial judge was aware of the evidence of Auxiliary
    Constable Orazem and weighed it in the context of all of the other evidence. We
    see no error in his approach or his conclusion. The same reasoning applies on
    ground (3) to the application of permissive inference under s. 258(3) of
    the
Code
.

[4]

On ground (4), there was ample evidence of impairment, including the
    smell of alcohol on the appellants breath, his bloodshot eyes, the unexplained
    accident, and the
Criminal Code
inference. The trial judge was entitled
    to conclude, on this record, that the appellant was impaired.

[5]

The appeals are therefore dismissed.

Signed:           K. Feldman J.A.

R. A. Blair J.A.

David Watt J.A.


CITATION:
R. v.
Regier
, 2011 ONCA 557

DRAFT

DATE: 20110819

DOCKET: C53173

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Wayne Regier

Appellant

Matthew T. McGarvey, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: July 29, 2011

On appeal from the sentence imposed on April 1, 2010, by
          Justice T. Ray of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his sentence of six years
    imprisonment imposed by Justice Ray on two counts of dangerous driving causing
    death and one count of dangerous driving causing bodily harm.

[2]

We see no error in principle on the part of the
    sentencing judge and do not accept that the range in such cases is restricted
    to two to five years.  As this court
    noted in
R. v.
Boukchev
(2003), 177 O.A.C., at
para
. 6, sentences have
    tended to increase in severity for these types of offences because of the
    heightened recognition of the need for general deterrence and protection of the
    public.  See also
R. v.
Junkert
(2010), 103 O.R. (3d) 284 (C.A.),
    at
para
. 40.

[3]

Here, two young people were killed, and the driver of
    another vehicle seriously injured.  The
    trial judge was justified on the record in characterising the appellants
    driving as aggressive and his manoeuvring as grossly unsafe.  The appellant has a lengthy driving record
    involving 25
Highway Traffic Act
convictions over a period of 28 years and indeed was charged with careless
    driving in another incident near the place of this accident on the same highway
    within two years following this accident.  Further, the trial judge did not err in our
    view in assessing the application of the principles of remorse in the
    sentencing context.

[4]

In all the circumstances, then, we are satisfied that
    the sentence imposed of 6 years was not unfit.  Leave to appeal sentence is granted, but the sentence
    appeal is dismissed.

K. Feldman J.A.

R.A. Blair J.A.

David Watt J.A.