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    that could identify the victim or a witness shall not be published in any document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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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.

6.

(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

7.

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

8.

(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. McKenzie, 2017 ONCA 128

DATE: 20170215

DOCKET: C62617

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carlington McKenzie

Appellant

Eva Tach
é
-Green, for
    the appellant

Kathleen E. Farrell, for the respondent

Heard: January 11, 2017

On appeal from the sentence imposed on September 1, 2015
    by Justice Fletcher Dawson of the Superior Court of Justice, with reasons
    reported at 2015 ONSC 5671.

Trotter J.A.
:

A.

overview

[1]

The appellant was convicted of sexual assault, contrary to s. 271(1)(b)
    of the
Criminal Code
, for which he received a sentence of nine months
    imprisonment, followed by two years of probation. He appeals on the basis that
    the sentence is unfit, especially in light of the immigration consequences he
    faces under the
Immigration and Refugee Protection Act
, S.C. 2001, c.
    27 (
IRPA
).

[2]

For the following reasons, I would grant leave to appeal but would
    dismiss the appeal.

B.

the Facts of the offence

[3]

The appellant was found guilty after a judge-alone
    trial. At the time of the offence, the appellant, 33, and the complainant, 19,
    were co-workers at a restaurant. The incident giving rise to the charge
    occurred at a work Christmas party. They both consumed alcohol and danced with each
    other; as the complainant described it, she was, winding and grinding on him.
    The appellant touched the complainants buttocks and thighs. It made her feel
    uncomfortable, but she did not tell him that. The appellant and the complainant
    kissed on the lips, even though she did not wish to do so. She did not tell the
    appellant that she did not want him to kiss her. The appellant pulled the
    complainant into a washroom and then shut and locked the door. The appellant
    kissed the complainants neck, without objection. He pulled his pants down and
    then the complainants, turned her around, and pressed his penis into her anus,
    achieving partial penetration. At the time, the victim said, No, no, no. She
    said she felt pain. The penetration lasted for 20 to 35 seconds.
[1]
When someone knocked on the
    bathroom door, the incident came to an end.

[4]

The appellant testified, claiming that the
    complainant consented. The trial judge found that the complainant did not
    consent, and rejected the defence of honest but mistaken belief in consent, holding
    that the appellant had failed to take reasonable steps to ascertain whether the
    complainant was consenting, as required by s. 273.2(b) of the
Criminal
    Code
.

[5]

In her Victim Impact Statement, the complainant said
    that she felt that the appellant took advantage of her that night. She reported
    feeling pain after the fact. The trial judge held that, while the offence was
    significant, the impact on the complainant fell lower down on the scale than
    in many other cases.

C.

The Circumstances of the Appellant

[6]

The appellant was 35 at the time of sentencing. He was born in Jamaica
    and came to Canada when he was about 20. His is a permanent resident.

[7]

The appellant has worked regularly since his arrival. At the time of
    sentencing, he worked in a factory that makes fibreglass pallets. He also owns a
    barbershop and beauty supply store, employing others.

[8]

The appellant is the father of two children born in Canada, who were 10
    and 3 at the time of sentencing. He remains in a stable relationship with the
    mother of his youngest child. He provides financial and emotional support to both
    children, and sends money to his mother in Jamaica.

[9]

A Pre-Sentence Report (PSR) was prepared. The trial judge observed at
    para. 25: overall, the pre-sentence report is positive. After considering the
    input of the appellants friends and family, who consider the appellant to be
    an upstanding individual, the author of the PSR said:

The subject continues to maintain his innocence, which could
    indicate a lack of insight into his offence behaviour. He admits to having
    sexual intercourse with the victim, however maintains that the act was
    consensual. He stated that he is sorry for his actions (referring to his
    infidelity), as it has triggered trust issues in his current relationship.

. . .

He admitted to engaging in sexual behaviour with the victim but
    denied it was done in a forceful manner; noting that there was consent from the
    victim. Minimization of the subjects actions was present throughout the
    interview, as he alluded to the victim being flirtatious with him.

. . .

Victim awareness by the subject is non-existent as he [is] not
    of the belief that he did anything illegal; only unfaithful.

[10]

The
    trial judge said, at para. 24, that this attitude reflected a lack of remorse,
    to which he ascribed no weight as an aggravating factor.

D.

The TRIAL Judges Reasons

[11]

The
    trial judge provided thorough Reasons for Sentence. After referring to the
    relevant sections in Part XXIII (Sentencing) of the
Criminal Code
, he
    characterized the offence as a significant sexual assault, recognizing that
    the principles of denunciation and general and specific deterrence must be
    given significant weight. The trial judge observed at para. 31: while the
    complainant was not a minor, I note that there was a considerable age difference
    between the accused and the complainant. He accepted that the offence was out
    of character and that the appellant had excellent prospects for
    rehabilitation.

[12]

The
    trial judge reviewed the authorities provided by the Crown, in support of its
    submission that a period of imprisonment between two to four years should be
    imposed. He found that the misconduct sanctioned in those cases was more
    serious than the appellants behaviour. The defence submitted that the
    appellant receive a sentence of six months less a day. However, the trial judge
    noted (at para. 27) that he had not been referred to any case which would take
    the range of sentence for an offence similar to this one down to the area of
    six months.

[13]

Ultimately,
    the trial judge concluded that nine months imprisonment was at the bottom of
    the range that would be appropriate in this case. He then turned his attention
    to the immigration consequences at stake for the appellant at para. 52:

After anxious consideration, I have come to the conclusion that
    to impose a sentence of six months less a day, as sought by the accused, would
    be to impose a sentence that is demonstrably unfit having regard to the degree
    of violation to the sexual integrity of the complainant. I wish to add,
    however, that should I be found to have been in error in this regard, I would
    have imposed a sentence if I felt it was within an appropriate range of
    sentence due to the impact deportation will have on the accused.

E.

The Positions of the Parties

[14]

The
    appellant argues that the trial judge made two errors. First, he misconstrued
    the facts in
R. v. Dahouky
, [2008] O.J. No. 1665 (S.C.J.), affd 2009
    ONCA 453, 83 W.C.B. (2d) 311, and then placed too much reliance upon it,
    essentially creating an artificial nine-month floor for offences of this
    nature. Secondly, the appellant contends that the trial judge erred in his
    approach to the immigration consequences triggered by the sentence he imposed.

[15]

The
    respondent agrees that the sentencing judge misapprehended the facts in
Dahouky
,
    but that the misapprehension was inconsequential. The respondent further
    submits that the trial judge did not use this decision to create an artificial
    floor of nine months imprisonment. Lastly, the respondent submits that the
    sentencing judge did not err in his consideration of the immigration consequences
    and that the sentence he imposed was fit.

F.

Analysis

(1)

Establishing an Artificial Sentencing Floor

[16]

I
    agree that the trial judge misapprehended the facts in
Dahouky
, but
    only to a limited degree. He erred when he said that Dahouky and the complainant
    were in a relationship. Moreover, the trial judge failed to realize the
    considerable delay between the consensual and non-consensual activity between
    the accused and the complainant. Arguably, the circumstances of the offence in
Dahouky
were more serious than the trial judge appreciated.

[17]

However,
    the trial judges reliance on
Dahouky
is problematic for a different
    reason, one that was not raised on appeal. Referring to that case, the trial
    judge said at para. 43: [a]n appeal by the accused, seeking a conditional
    sentence was dismissed. The Court of Appeal made no adverse comment about the
    length of the custodial sentence imposed at trial. However, despite reference
    in this courts endorsement to an appeal from both conviction and sentence, an
    examination of the court file reveals that the sentence appeal had been
    abandoned in advance of the hearing of the appeal. Consequently, this courts
    endorsement has no precedential value on the sentencing issue.

[18]

I
    disagree with the appellants submission that the trial judge concluded that
Dahouky
created a sentencing floor and felt that he had no choice but to impose a
    nine-month sentence. However, I cannot say that the trial judges reliance on
    this case had no impact on his analysis. At one point in his reasons, he said
    at para. 43: [b]ased on
Dahouky
, I conclude a sentence of nine months
    is within the range of sentence that is appropriate on these facts. Shortly
    afterwards, he said at para. 45: it seems to me that nine months represents
    the bottom of the range of sentence that would be appropriate in this case
    based on all of the facts.

[19]

In my opinion, however, despite the trial judges misplaced reliance
    on this courts endorsement in
Dahouky
, the
    sentence imposed was still fit in all of the circumstances.

Dahouky
was just one of the numerous cases the
    trial judge relied upon to craft the sentence he ultimately imposed. While this
    court did not affirm the sentence imposed by the trial judge in
Dahouky
,
    the trial judge was entitled to rely upon the trial judges reasons in
Dahouky
,
    along with other trial and appellate decisions, in determining the appropriate
    range of sentence.

[20]

Relying
    on other decisions from this court (
R. v. Garrett
, 2014 ONCA 734, 117
    W.C.B. (2d) 562;
R. v. Rand
, 2012 ONCA 731, 104 W.C.B. (2d) 10; and
R.
    v. Thurairajah
, 2008 ONCA 91, 89 O.R. (3d) 99), the Crown at trial requested
    a penitentiary sentence. The trial judge was not persuaded that the
    significant sexual assault committed by the appellant was as serious as the
    misconduct in those cases. He said that (at para. 37), had there been a fully
    completed act of vaginal or anal intercourse with the complainant in the face
    of her saying No, no, no, then three years imprisonment would have been entirely
    appropriate. However, given that there was only partial penetration, and in
    light of the activity that preceded the assault, the case was somewhat less
    serious than the assaults in the cases referred to by the Crown.

[21]

The
    mitigating value attributed to these offence features (
i.e.
, partial
    penetration and prior consensual behaviour) is doubtful, especially when the
    assault only came to an end when someone knocked on the bathroom door. Having
    expressed a different view in his Reasons for Judgment (
i.e.
, the
    appellant did not stop because the complainant said no), in his Reasons for
    Sentence the trial judge said at para. 10, I am not certain the encounter
    would have continued if that knocking had not occurred. I mention these aspects
    of the trial judges reasons to demonstrate that every possible benefit was
    extended to the appellant in terms of the manner in which his offending was
    characterized.

[22]

Ultimately,
    it must be determined whether the sentence imposed upon the appellant was demonstrably
    unfit: see
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 51 to 53. The sexual offence was serious, one involving anal penetration,
    which is generally treated as an aggravating circumstance: see
R. v. R.
    (M.)
, 2014 ONCA 484, 114 W.C.B. (2d) 471, at para. 6. Given the
    superficial relationship between the appellant and the complainant, their age
    difference, the complainants alcohol consumption, the circumstances in which
    the sexual assault took place, and the impact on the complainant, the trial
    judge was right to characterize this sexual assault as significant. Leaving
    aside immigration consequences for the moment, which I will return to below,
    many aspects of the appellants background and life circumstances were
    positive, and the trial judge did take them into account. However, these had to
    be balanced against the appellants troubling lack of insight into his own
    behaviour, and the harm he caused the complainant.

[23]

Every
    case is unique. Despite the existence of sentencing ranges for particular types
    of offending, [t]he determination of a just and appropriate sentence is a
    highly individualized exercise that goes beyond a purely mathematical
    calculation: see
Lacasse
, at para. 58. The trial judge undertook this
    analysis and imposed a sentence that is supported by other decisions of this court:
    see
Garrett
, at paras. 15-23;
R. v. Crespo
, 2016 ONCA 454,
    337 C.C.C. (3d) 439; and
R. v. R. (C.)
, 2010 ONCA 176, 260 O.A.C. 52.

(2)

Immigration Consequences: Applying
Pham

[24]

The
    immigration consequences of the appellants offending are extremely serious.
    Under s. 36(1)(
a
) of the
IRPA
, a permanent resident is
    inadmissible on grounds of serious criminality. When
R. v. Pham
,
    2013 SCC 15, [2013] 1 S.C.R. 739 was decided, s. 64(2) provided that a removal
    order based on inadmissibility due to serious criminality could not be
    appealed to the Immigration Appeal Division (IAD)
with
    respect to a crime that was punished in Canada by a term of imprisonment of at
    least two years. Upon appeal, the IAD can stay a removal order if it is
    satisfied that sufficient humanitarian and compassionate considerations
    warrant special relief in all of the circumstances of the case:
IRPA
,
    s. 68(1). This provision has since been amended by
s. 24 of the
Faster
    Removal of Foreign Criminals Act
, S.C. 2013, c. 16, which
    ousts the right to appeal with respect to a crime that was punished in Canada
    by a term of imprisonment of at least six months or that is described in
    paragraph 36(1)(b) or (c).

[25]

The
    appellant submits that the trial judge erred in the manner in which he
    approached this issue. He contends that the trial judge ought to have
    considered the immigration consequences that he faced along with all of the
    other personal factors in determining the appropriate sentence. Instead, the
    trial judge, wrongly in the appellants submission, determined what the appropriate
    sentence should be, and then considered whether it would be appropriate to
    reduce the sentence to avoid the impact of the
IRPA
. The appellant
    argues that the erroneous two-step approach employed by the trial judge resulted
    in a sentence that was manifestly unfit. I disagree.

[26]

In
Pham
,
Wagner J., writing for the court, discussed the
    interaction of immigration consequences with the principles of sentencing set
    out in ss. 718, 718.1 and 718.2 of the
Criminal Code
. Referring to proportionality,
    parity, rehabilitation and denunciation, Wagner J. held at paras. 11, 14 and 16:

In light of these principles, the collateral consequences of a
    sentence are any consequences for the impact of the sentence on the particular
    offender. They may be taken into account in sentencing as personal
    circumstances of the offender. However, they are not, strictly speaking,
    aggravating or mitigating factors, since such factors are by definition related
    only to the gravity of the offence or to the degree of responsibility of the
    offender (s. 718.2(1)(
a
) of the
Criminal Code
). Their relevance
    flows from the application of the principles of individualization and parity. The
    relevance of collateral consequences may also flow from the sentencing
    objective of assisting in rehabilitating offenders (s. 718(
d
) of
    the
Criminal Code
). Thus, when two possible sentences are both
    appropriate as regards the gravity of the offence and the responsibility of the
    offenders, the most suitable one may be the one that better contributes to the
    offenders rehabilitation.

. . .

The general rule continues to be that a sentence must be fit in
    having regard to the particular crime and the particular offender. In other
    words, a sentencing judge may exercise his or he discretion to take collateral
    immigration consequences into account, provided that the sentence that is
    ultimately imposed is proportionate to the gravity of the offence and the
    degree of responsibility of the offender.

. . .

These consequences must not be allowed to dominate the exercise
    or skew the process either in favour of or against deportation. Moreover, it
    must not lead to a separate sentencing scheme with a
de facto
if not a
de jure
special range of sentencing options where deportation is a
    risk.

[27]

In
    linking immigration consequences to the principles of sentencing, Wagner J. did
    not prescribe a preferred methodology for determining this issue.

[28]

The
    appellant places great reliance on
R. v. Nassri
, 2015 ONCA 316, 125
    O.R. (3d) 578, a decision referred to by the trial judge. That decision
    concerned an appeal from a sentence of nine months imprisonment imposed for
    robbery and possession of a weapon for a dangerous purpose. Nassris situation
    under the
IRPA
was the same as the appellants in this case. However,
    the trial judge in
Nassri
was not apprised of Nassris status. On
    appeal, this court received fresh evidence concerning his immigration
    circumstances.

[29]

Writing
    for this court, Sharpe J.A. referred to para. 14 from
Pham
, quoted
    above, and held: Wagner J. explained, at para. 14, a sentencing judge should
    therefore first determine whether the sentence that avoids the collateral consequences
    is even a possibility (at para. 28). Ultimately, this court reduced Nassris
    sentence of imprisonment to six months less fifteen days.

[30]

I
    do not read
Nassri
or
Pham
as requiring a specific
    methodology for dealing with the potential immigration consequences of an
    offenders sentence. I acknowledge that there is language in
Pham
that
    supports the appellants preferred approach  considering immigration status as
    a personal circumstance of the offender (paras. 11 and 20). However,
Pham
also
    contains language that supports an approach whereby potential immigration
    consequences are factored into the equation once the sentencing judge has made a
    determination of what would otherwise be an appropriate sentence. Wagner J.
    uses the following terms or expressions, all of which signal movement from such
    a fixed point: varied sentence (para. 18); reduced sentence (para. 18);
    reduction (para. 20); and adjust (para. 20).

[31]

There
    are merits in both approaches. The approach employed by the trial judge avoids
    the need to deal with immigration consequences in circumstances when it is
    unnecessary. For example, where an otherwise fit sentence falls below the
    current
IRPA
threshold, an offenders immigration status is irrelevant
    for sentencing purposes. Similarly, where a sentencing judge determines that a
    substantial penitentiary term is warranted, there is little point in
    considering the offenders immigration status in the manner contemplated in
Pham
,
    at least based on the current
IRPA

threshold.

[32]

Moreover,
    the appellants suggested approach may create difficulties for judges applying
    sentencing ranges. The immigration status of an offender, a highly
    individualized circumstance, is not embedded or reflected in the sentencing
    ranges for various offences that have developed in this province over time. As
    Wagner J. noted in the passage quoted above (in para. 26 of these reasons),
    immigration consequences of a given sentence are neither aggravating nor
    mitigating factors. As such, immigration consequences are unlike other
    individualized factors that are generally considered when applying sentencing
    ranges. Viewed in this light, immigration consequences might best be addressed
    separately, and only if necessary.

[33]

In
Lacasse
, the court discussed the nature of sentencing ranges. Writing
    for the majority, Wagner J. wrote the following, at paras. 57 and 58:

Sentencing ranges are nothing more than summaries of the
    minimum and maximum sentences imposed in the past, which serve in any given
    case as guides for the application of all the relevant principles and
    objectives. However, they should not be considered averages, let alone
    straightjackets, but should instead be seen as historical portraits for the use
    of sentencing judges, who must still exercise their discretion in each case

There will always be situations that call for a sentence
    outside a particular range: although ensuring parity in sentencing is itself a
    desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded. The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical equation. It involves a variety
    of facts that are difficult to define with precision. This is why it may happen
    that a sentence that, on itself face, falls outside a particular range, and
    that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit. Once again, everything depends on the gravity of the
    offence, the offenders degree of responsibility and the specific
    circumstances.

[34]

Returning
    to the immigration context, in his earlier decision in
Pham
, Wagner J.
    warned (at para. 16) that the consideration of immigration consequences must
    not lead to a separate sentencing scheme with a
de facto
if not a
de
    jure
special range of sentencing options where deportation is a risk. The
    appellants approach risks doing just that.

[35]

Finally,
    I am not persuaded that the competing approaches to addressing immigration
    consequences will make any difference at the end of the day. What is important
    is that, whatever mode of analysis is utilized, sentencing judges give the
    issue serious consideration in determining a fit sentence.

[36]

Returning
    to the facts of this case, the trial judge did give serious consideration to
    the appellants immigration situation. He thoroughly considered the issue and,
    after anxious consideration, concluded that it would not be appropriate to
    impose a sentence of imprisonment that was less than six months. Indeed, he
    could find no jurisprudential support for such a lenient sentence in the
    circumstances of this case, nor could counsel on appeal point us to any
    authority. To have imposed a sentence of less than six months imprisonment would
    have involved reducing the sentence solely for the purpose of avoiding the
    impact of the
IRPA
, something that the court in
Pham
, para.
    15, held inappropriate. See also
R. v. Badhwar
, 2011 ONCA 266, 270
    C.C.C. (3d) 129, at paras. 42 to 45;

R. v. Freckleton
, 2016
    ONCA 130, 128 W.C.B. (2d) 434, at para. 2; and
R. v. Mohammed
,
2016 ONCA 678
, 132 W.C.B. (2d) 383, at para. 3. It would have
    resulted in a demonstrably unfit sentence for a significant sexual assault
    involving anal penetration.

G.

Conclusion

[37]

While
    I would grant leave to appeal sentence, I would dismiss the appeal.

Released:

SEP                                       G.T.
    Trotter J.A.

FEB 15 2017                          I agree K.M.
    Weiler J.A.

I agree
    S.E. Pepall J.A.

[1]

In his Reasons for Judgment, the trial judge said that the
    penetration lasted 20 to 35 seconds. In his Reasons for Sentence, he said it
    continued for 20 to 30 seconds.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Loughlin, 2017 ONCA 89

DATE: 20170201

DOCKET: C61835

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keith William O'Loughlin

Appellant

Keith William O'Loughlin, acting in person

Matthew Gourlay, duty counsel

Dayna Arron, for the Crown

Heard: May 10, 2016

On appeal from the conviction entered on December 18,
    2015 and the sentence imposed on February 11, 2016 by Justice Lynne Leitch of
    the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant appeals his conviction of assault causing bodily harm and
    seeks leave to appeal and, if leave is granted, appeals the sentence imposed
    upon him.

[2]

As these brief reasons explain, we have decided that both appeals fail
    and should be dismissed.

The Background Facts

[3]

A jury found the appellant guilty as a participant in the unlawful
    assault of a fellow inmate at Elgin Middlesex Detention Centre. It was uncontroversial
    at trial that the victim had been unlawfully assaulted and had suffered bodily
    harm (multiple rib fractures, damaged teeth, bruising and cuts). As a result of
    that assault, the critical issue for the jury to decide in connection with the appellant
    was the nature and extent of his participation, if any, in the assault.

[4]

Reduced to its essentials, the case for the Crown consisted of the
    evidence of the victim and a surveillance video seized by police from the
    detention centre. A police officer familiar with the alleged participants and
    the place where the events occurred, narrated the video as it was played for
    the jury. Still photographs taken from the video were also filed as exhibits at
    trial.

[5]

The victim identified two inmates who participated in the assault.
    Joseph Kennedy was the principal assailant. Kennedy punched and beat the
    victim. Donald Schaeffer pushed the victim into the washroom area where the
    assault occurred and kept him confined there as Kennedy repeatedly struck the
    victim. Others were standing around, but the victim could not (or would not)
    identify them.

[6]

The victim did not identify the appellant as a participant in the
    assault.

[7]

The principal evidence against the appellant was the surveillance video
    and accompanying narration. After identifying the various participants, the
    narrator pointed out the appellant who was initially seated at a table playing
    cards, but apparently paying close attention to the other goings-on in the
    immediate vicinity. As the altercation involving Kennedy, Schaeffer and the
    victim took place in the doorway to the washroom area of the detention centre,
    the appellant got up from his seat and walked, with an apparent purpose,
    towards the washroom area.

[8]

At the doorway to the washroom, the appellant peeled away a hand
    grasping the doorframe and entered the washroom. The appellant then appeared to
    move his leg in a manner the narrator described as similar to a "knee
    strike" used by police officers to subdue those who resist arrest.

[9]

The appellant did not testify at his trial. He called as a defence
    witness, Joseph Kennedy, the principal assailant. Kennedy told the jury that
    the appellant played no role in the assault of the victim. Indeed, according to
    Kennedy, the appellant interceded when Kennedy was about to stomp on the
    victim's head, saying "Joe, that's enough, that's enough".

[10]

By the time of the appellant's trial, both Kennedy and Schaeffer had
    pleaded guilty and been convicted for their involvement in the assault on their
    fellow inmate. Schaeffer, but not Kennedy, had been sentenced.

The Charge to the Jury

[11]

Trial counsel were in agreement that the appellant could be found guilty
    of the offence charged either as a joint principal or as an aider in the
    assault by Kennedy. The trial judge charged the jury accordingly, including in
    her charge an instruction, based on
R. v. Thatcher
[1987] 1 S.C.R.
    652, that the jurors need only be unanimous in finding guilt, not as to the
    nature of the appellant's participation.

[12]

The trial judge instructed the jury on the position of the defence in
    accordance with the submission of the appellant's trial counsel. The judge
    explained that the appellant's position was that he went to the washroom area
    to see what was happening there. He did not assault the victim nor help anyone
    else who was participating in that assault. In other words, present but not
    participating.

[13]

Trial counsel did not object to the charge to the jury.

The Appeal from Conviction

[14]

Duty counsel acknowledges that if an evidentiary basis existed for
    leaving participation as a joint principal and/or aider to the jury, the jury
    instructions contain no legal errors.

[15]

In his submissions, the appellant pointed out that the victim did not
    say that he (the appellant) assaulted him and was unclear whether the hand
    holding onto the doorframe was his (the victim's) or somebody else's.  The
    appellant reiterated the position his counsel advanced at trial, that he was
    present but did not participate in the assault.

[16]

We have had and taken the opportunity to review the video of the
    relevant events. We are satisfied that it constitutes a sufficient evidentiary
    basis upon which the trial judge could instruct the jury that they could find
    the appellant guilty of assault causing bodily harm, either as a joint
    principal or an aider of the principal, Kennedy. This is not a case of
    accidental presence, of simply being in the wrong place at the wrong time. The
    appellant's presence was intentional, his involvement active. The appellant's
    position was clearly put to the jury and roundly rejected by them after brief
    deliberations. There is no basis upon which this court can interfere.

[17]

The appeal from conviction is dismissed.

The Appeal from Sentence

[18]

At trial, counsel for the appellant suggested a custodial sentence of
    12-15 months. The trial Crown sought a sentence of 3 years in the penitentiary.
    The parties were
ad idem
that pre-disposition custody should be
    deducted from whatever sentence the trial judge imposed and were also in
    agreement about the quantum of that credit (389 days).

[19]

The trial judge considered that a fit sentence was one of imprisonment
    for 20 months. From that sentence she deducted 409 days for pre-disposition
    custody and imposed an actual sentence of 191 days.

[20]

In imposing sentence, the trial judge considered the appellant was the
    least culpable of the trio of participants  Kennedy, Schaeffer and the
    appellant  and that his participation was that of an aider, not that of a
    joint principal.

[21]

In support of his claim for a reduction in the length of sentence
    imposed, the appellant invokes the principle of parity. He points to the
    sentence imposed on Schaeffer  18 months  and says that parity requires that
    his sentence be less. Schaeffer was sentenced as the least involved, but his
    participation was actually greater than that of the appellant. On this basis,
    the appellant says, his sentence should be reduced to a term of imprisonment of
    less than Schaeffer received.

[22]

Schaeffer was more than four years older than the appellant. He had what
    the sentencing judge in this case described as a significant record, the
    details of which were not provided. Schaeffer pleaded guilty before a judge of
    the Ontario Court of Justice within 8 months of the offence and, more
    importantly, before the surveillance video had been disclosed. Schaeffer
    apologized for his conduct and the sentencing judge found him to be genuinely
    remorseful.

[23]

The judge who sentenced Schaeffer considered him the least involved of
    the three men then charged. However, the judge did not have the advantage of
    the surveillance video, an item of real evidence that better displays
    Schaeffer's actual role.

[24]

The appellant was 38 years old at the time of the offence and 40 when he
    was sentenced. His youth and adult record, which extends for nearly a
    quarter-century, includes property and motor vehicle offences, as well as
    escaping from lawful custody and being unlawfully at large. He has five prior
    convictions for assault and a dozen and a half convictions for failures to
    comply with release terms or sentencing dispositions. He has been recommitted
    twice as a statutory release violator.

[25]

Inherent in the term "parity" and the parity principle in
    sentencing is the notion of comparables. Offenders. Offences. Circumstances.
    The parity principle expressed in s. 718.2(b) of the
Criminal Code
tells us that a sentence should be
similar
to sentences imposed on
    similar
offenders
for similar
offences
committed in similar
circumstances
.

[26]

The appellant holds up the sentence imposed on Schaeffer as a benchmark.
    But its invocation scarcely favours an equivalent or lesser sentence for the
    appellant. Schaeffer pleaded guilty within 8 months of the offence on the basis
    that he was the least involved. There can be no doubt that his guilty plea,
    genuine remorse and the level of participation acknowledged before the
    sentencing judge were substantial mitigating factors. To the extent that his
    minimal level of participation was a mitigating factor in a determination of
    the quantum of sentence, we know from the surveillance video that his
    involvement was not as advertised.

[27]

We are satisfied that the sentence imposed on the appellant did not
    violate the parity principle, or for that matter, any other principle or
    objective of sentence. It was a fit sentence for him for what he did.

[28]

For these reasons, we grant leave to appeal sentence, but dismiss the
    appeal from sentence.

CONCLUSION

[29]

The appeals from conviction and sentence are dismissed.

Released: February 1,
    2017 ("DW")

"David Watt
    J.A."

"M. Tulloch
    J.A."

"Grant
    Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paryniuk, 2017 ONCA 87

DATE: 20170201

DOCKET: C57206

Watt, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roman Paryniuk

Appellant

R. Craig Bottomley and Sherif Foda, for the appellant

Croft Michaelson, Q.C., for the respondent

Heard: June 29, 2016

On appeal from the conviction entered by Justice Peter A.
    J. Harris of the Ontario Court of Justice on February 11, 2012.

Watt J.A.:

[1]

Looks can be deceiving. But not always. Sometimes, things are as they
    appear. At least to the practised eye.

[2]

A house on a residential street. 33 Lynngrove. Windows covered.
    Shingles peeling. Bright lights on inside. But not much else. A house that uses
    a lot of electricity. Twice as much as similar houses on the same street.

[3]

To a passing motorist, a house that needs work. To a drug investigator,
    a potential grow-op.

[4]

The drug investigator gets a search warrant. Police enter. Suspicions confirmed.
    A marijuana grow-op. Some other drugs as well. And a handgun. And some
    ammunition.

[5]

Police arrest Roman Paryniuk on several charges based on what they find
    inside the house. At trial, Paryniuk, whom police had observed at the house, challenges
    the search warrant executed there. His challenge fails. He is convicted of
    several offences.

[6]

Roman Paryniuk appeals. He renews his challenge to the validity of the
    warrant that authorized the search of the house. These reasons explain why I,
    too, would reject his claim that the search warrant was invalid and would
    dismiss his appeal and affirm his convictions.

THE BACKGROUND FACTS

[7]

The trial proceeded as a blended
voir dire
and trial. Paryniuk
    invoked the procedural course first charted in
R. v. Garofoli
, [1990]
    2 S.C.R. 1421, and advanced a sub-facial challenge to the validity of the
    search warrant. Trial counsel on both sides agreed that the author of the
    Information to Obtain (the ITO) and a police officer who had provided
    information included in the ITO (the affiant and sub-affiant) could be
    cross-examined on the application.

[8]

The sole ground of appeal advanced is better understood if prefaced by a
    sketch of the contents of the ITO and the rulings of the trial judge.

The ITO

[9]

The affiant was a detective constable, a member of the Toronto Police
    Service attached to the Clandestine Laboratory Team of the Toronto Drug Squad.
    His principal duty was the investigation of marijuana grow-ops.

[10]

The ITO was 45 pages long. It began by setting out the qualifications of
    the civilians and other police officers from whom the affiant had received
    information. The ITO also described the various databases from which the
    affiant had obtained information and the nature of the information recorded in
    each. The affiant then provided a chronology of the steps taken during the
    investigation over a period of about ten days leading up to the application for
    the warrant. Included were observations made during surveillance of the
    premises at different times of the day and night. These observations included
    the general appearance of the house and property, as well as window and door
    coverings, roofing and a view into the interior from the outside.

[11]

A substantial part of the ITO was taken up by information from the local
    utility that showed hydro consumption at the premises at 33 Lynngrove over a 20
    month period. The usage was displayed in several bar graphs which demonstrated
    12 hour cycles typical of a marijuana grow-operation. The consumption was twice
    the amount found for comparable properties in the same area.

[12]

In his description of the investigative steps taken, the affiant
    included information from the police Enterprise Case Occurrence Processing
    System (E-COPS). This database revealed a total of 14 "hits" in
    relation to Paryniuk. The entries included reference to drug and firearm
    offences, as well as driving offences and provision of false identification. In
    many instances, the terms "Involved" and "CHARGED" appear. There
    is no reference to the disposition of any charges.

[13]

Towards the end of the ITO, the affiant set out the grounds for his
    belief that a search warrant should be issued for the premises at 33 Lynngrove.
    Those grounds, in summary form, were:

·

The
    volume and pattern of hydro consumption

·

The
    window and door coverings

·

The
    lack of movement and furniture in the house

·

Registration
    of Paryniuk's vehicle elsewhere than a residential property

·

Paryniuk's
    attendance at the house

·

The
    officers belief that Paryniuk resided elsewhere than 33 Lynngrove

·

The
    link between Paryniuk and the hydro account holder

The Search Warrant

[14]

The search warrant was issued on September 19, 2011. It authorized police
    to search for controlled substances, associated items and documents indicative
    of ownership or occupancy of the house at 33 Lynngrove.

The Rulings of the Trial Judge

[15]

The trial judge made two rulings arising out of the
Garofoli
application advanced at trial.

[16]

In his first ruling, the trial judge excised any of the contents of the
    ITO that he considered irrelevant, improper, inaccurate or misleading. When he
    considered the remaining contents of the ITO, the trial judge was satisfied
    that there remained sufficient, credible and reliable evidence on the basis of
    which the search warrant could have been issued. As a result, the trial judge
    held that the warrant had been properly issued, the search conducted under
    lawful authority and a s. 24(2) analysis unnecessary to determine the
    admissibility of the seized items as evidence.

[17]

At the conclusion of his first ruling, the trial judge invited further
    submissions from counsel on whether "the impropriety of tendering criminal
    allegations in an ITO with their potential to jeopardize fairness and
    justice" should be addressed in some way.

[18]

In his second ruling, the trial judge found he could not conclude that
    what had happened here was such a subversion of the process to obtain warrants
    to search that the warrant should be quashed. In the result, the warrant
    remained valid and the evidence obtained by its execution was admissible at
    trial. By agreement, convictions were entered on several charges.

THE GROUNDS OF APPEAL

[19]

In this court, Roman Paryniuk (the appellant) takes no issue with the
    trial judge's first ruling. He acknowledges that the trial judge was correct:

i.

to excise the irrelevant, improper, inaccurate and misleading references
    from the ITO; and

ii.

to decide that what remained in the ITO afforded reliable evidence that
    might reasonably be believed on the basis of which the search warrant could
    have been granted.

[20]

The appellant's focus here is on the second ruling. His challenge fastens
    on the standard of proof the trial judge applied in deciding whether the
    warrant should be set aside because of a subversion of the authorization
    process. The error, he says, consisted of adopting a "clearest of
    cases" standard, applicable where a stay of proceedings is sought for an
    abuse of process, instead of deciding whether the police conduct in seeking the
    warrant was so subversive of the process that the warrant should be quashed to
    protect the process and the preventative function it serves.

Ground #1: The Applicable Standard of Proof

[21]

The second ruling of the trial judge will provide the backdrop essential
    to an understanding of the argument advanced by the appellant and its
    assessment here.

The Ruling of the Trial Judge

[22]

The trial judge began his second ruling by identifying the issue he was
    required to decide. He said:

So the issue here is has there been an abuse of process that
    has reached the level of being subversive to the extent that the defendant is
    entitled to some other relief under the
Charter
or at common law as a
    result of such a finding.

[23]

The trial judge then identified what he considered erroneous information
    included in the ITO. In doing so, he considered the evidence adduced on the
Garofoli
application through cross-examination of the affiant and sub-affiant. The
    deficiencies included:

i.

the affiant's uncritical acceptance of information from the sub-affiant,
    a fellow police officer, especially that no furniture was visible in the
    premises when the sub-affiant admitted at trial that she could only see two
    feet into the interior of the house from an adjacent property;

ii.

the affiant's lack of understanding of his obligations to make full,
    fair and frank disclosure of all material facts to the issuing justice,
    especially the obligation to be fair;

iii.

the intentional inclusion of the E-COPS information about prior incidents
    in which the appellant had been investigated and charged with cognate drug and
    firearms offences, but never convicted of anything, a fact the affiant knew;
    and

iv.

the affiant's admission that he understood his obligation to make full,
    fair and frank disclosure of all material facts as including the submission of
    information he knew to be false.

[24]

The trial judge then turned to his authority to set aside a warrant
    where the conduct of the police was subversive of the search warrant process.
    He described that authority in this way:

I accept there is a residual discretion sounding in "abuse
    of process" that could result in the quashing of a warrant consistent with
    the law of this province as set out by Justice Rosenberg in
Regina v. Vivar.

Such a result can obtain when the inclusion of information in an ITO is so
    subversive of a search warrant process as to effectively amount to an abuse of
    process and require that the warrant be quashed.

In my view there is residual discretion and the case law would
    suggest that the residual discretion should only be exercised in the clearest
    of cases.

[25]

Despite the instances of inappropriate police conduct he had earlier
    identified, the trial judge was not prepared to conclude that the search
    warrant process had been subverted. He said:

Now as problematic as these instances of inappropriate police
    conduct are I have come to the conclusion that I cannot make a determination on
    the basis of case authorities that these references amount to a subversion or
    corruption of the process. It shouldnt have happened. I can't put it as high
    as a corruption of the judicial process.

[26]

After referring to the decision of the British Columbia Court of Appeal
    in
R. v. Sismey
(1990), 55 C.C.C. (3d) 281 (B.C.C.A.), and authorities
    subsequent to its release, the trial judge concluded that a nuanced
    consideration of all the circumstances was required, including an assessment of
    "how the warrant looks when one excises these improper references made by
    the affiant". He expressed his conclusion in these terms:

I have come to the conclusion that the Court has to take into
    account all the circumstances, including the balance of the warrant and it
    makes it much more difficult a decision to conclude that there is a
    representation of the clearest of cases of an abuse of process where the
    information to obtain the warrant is substantial enough to adequately support
    reasonable and probable grounds with all of the contentious and problematic
    evidence excised.

It seems to me that not only does the clearest of cases
    analysis refer to the seriousness of the conduct of the police officer, it also
    refers to the overall context  the overall preparation of the warrant, the
    totality of the information contained and the conclusion the Court comes to as
    whether it's constitutionally satisfactory.

I accept here in conclusion that there is a residual power to
    quash for an abuse of process but on balance I can't conclude that this is such
    a subversion of the process as to constitute the clearest of cases and a point
    where the resulting warrant should be quashed.

I am also mindful of the fact that the references complained
    about are problematic references did not find their way into the final
    conclusions of the ITO, particularly the charges that the defendant was facing
    and I am also assuming a level of intelligence on the part of the Justice of
    the Peace officer, the Justice of the Peace who a judicial officer who, in
    today's world, in my view could drill down to the essence of the warrant and
    not be panicked into an authorization by improper and overheated rhetoric in
    the ITO.

The Arguments on Appeal

[27]

The appellant advances several arguments.

[28]

First, the appellant says that the trial judge erred in applying the
    "clearest of cases" as the standard of proof to be met by an accused
    who seeks to set aside a warrant on the basis advanced here. The relevant
    standard, the appellant argues, is whether the investigative conduct in seeking
    the warrant was so subversive of the pre-authorization process that the warrant
    should be set aside to protect that process and the preventative function it
    serves. The "clearest of cases" standard is reserved for stays of
    proceedings sought as a remedy for an abuse of process. What is sought here as
    a remedy is that a search warrant be quashed and thereafter that evidence be excluded
    under s. 24(2) of the
Charter
.

[29]

Second, according to the appellant, the proper standard to apply is
    whether, in all the circumstances, the investigative conduct was so subversive
    of the authorization process that the warrant should be quashed despite
    satisfaction of the conditions precedent for its issuance. To determine the
    extent of any subversion of the pre-authorization process, a judge should
    consider whether the inclusion of erroneous information in the ITO was
    deliberate or inadvertent. While inadvertence may be remedied through
    amplification, deliberate falsehoods justify quashing the warrant.

[30]

Third, the appellant says that the conduct of the affiant, as found by
    the trial judge, was subversive of the pre-authorization process. The
    uncritical acceptance of information from the sub-affiant of the unfurnished
    (thus unoccupied) nature of the house at 33 Lynngrove. The inclusion of
    "spectacularly prejudicial" and misleading information about previous
    charges of related criminal activity and the knowledge that no convictions had
    resulted.

[31]

Unlike the traditional inquiry pursuant to
Garofoli
and
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
which
    looks to the adequacy of the evidentiary predicate before the authorizing
    justice and countenances restorative remedies like amplification, the second
    inquiry has as its exclusive focus the integrity of the pre-authorization
    process. That the evidentiary predicate may be adequate to sustain issuance of
    the warrant has nothing to do with, hence no say in connection with the second
    inquiry. In this case, the second inquiry should have resulted in the warrant
    being set aside.

[32]

In addition, the appellant continues, the second inquiry should not be
    confined to instances of intentional state conduct. Negligent state conduct
    that subverts the pre-authorization process should have an equal place in the
    second inquiry. After all, what should matter is that the integrity of the
    pre-authorization process was subverted, not how or why the subversion occurred.
    This formed no part of the trial judge's analysis or conclusion.

[33]

The respondent contests the availability of the discretion the appellant
    invokes. According to the respondent, there is but a single test applicable to
    a review of an ITO said to contain deliberate or fraudulent misstatements. And
    the test is that of
Garofoli
and
Araujo
, that is to say,
    whether there was sufficient reliable evidence that might reasonably be
    believed on the basis of which the enabling authority could have been issued.

[34]

The respondent says that controlling precedent does not permit of any
    residual discretion to set aside an otherwise properly issued search authority
    because the supportive ITO contains deliberate or fraudulent misstatements. The
Garofoli
analysis protects the integrity of the pre-authorization
    process.

[35]

The
Garofoli
court, the respondent argues, made it clear that
    the sole impact of the existence of fraud, non-disclosure, misleading evidence
    and new evidence is on the determination of whether there continues to be any
    basis for the decision of the authorizing judge. Inadvertent errors or
    omissions may be corrected by amplification. Deliberate or fraudulent
    misstatements require excision, cannot be amplified and form no part of the
    decision on the adequacy of the evidentiary predicate. That
Garofoli
applies to deliberate falsehoods is confirmed in the later decision in
R. v.
    Bisson
, [1994] 3 S.C.R. 1097.

[36]

The respondent acknowledges that some courts, including this court, have
    suggested that a reviewing judge has a residual discretion to quash an
    otherwise valid search authority on the basis that a deliberate misstatement in
    the ITO is so subversive of the pre-authorization process that the order should
    be set aside to protect the integrity of that process. But, the respondent
    continues, these
obiter
suggestions are unsupported by
Araujo
and its misplaced reliance on
R. v. Morris
(1998), 134 C.C.C. (3d) 539
    (N.S.C.A.).

[37]

According to the respondent, the
Araujo
court's reference to
Morris
was in connection with the need to follow a contextual approach, a
    consideration of all the circumstances, in deciding whether, after excision and
    amplification, sufficient reliable information remains to support the issuance
    of the search authority. The existence of a residual discretion, the respondent
    says, is inconsistent with the standard put in place by the decisions in
Garofoli
and
Araujo
and redundant since each of those decisions protects the
    integrity of the authorization process. And what is more, each makes it clear
    that the
sole impact
of fraud, non-disclosure, misleading evidence and
    new evidence is to determine whether there remains a basis for the decision of
    the authorizing judicial officer.

[38]

Further, the respondent submits, the residual discretion could only be
    rooted in the residual category of abuse of process since trial fairness is not
    implicated. But the residual category has a prospective focus. It does not
    redress past wrongs. And that is what the appellant seeks here.

[39]

The respondent advances an alternative argument in the event that we are
    persuaded of the existence of the residual discretion for which the appellant
    contends. Any such discretion must be rooted in the doctrine of abuse of
    process. After all, what is subversion of the process but abuse of process by
    another name? The residual category of abuse of process invokes s. 24(1) of the
Charter
as its remedial wellspring. And where what is sought is a
    remedy that would effectively end the prosecution  the functional equivalent
    of a stay of proceedings  the clearest of cases is the appropriate standard
    and is not met here.

The Governing Principles

[40]

The ground of appeal the appellant advances does not contest the
    correctness of the first ruling by the trial judge. In that ruling, the trial
    judge, after excising parts of the ITO he considered erroneous, concluded that
    there remained sufficient credible and reliable information on the basis of
    which the search warrant could issue.

[41]

The disputed ground has to do with the existence and scope of a residual
    discretion to set aside a validly-issued warrant and the standard to be applied
    in deciding whether any such discretion as may exist should be invoked.

The Garofoli Application

[42]

A trial judge who has to determine whether a search was authorized by
    law must decide whether the conditions precedent to the search authority on
    which reliance is placed have been satisfied. To do this, the trial judge
    conducts a hearing  a
Garofoli
application. At that hearing, the
    judge examines the material before the authorizing judge or justice, material
    which may differ from the original because portions have been redacted, for
    example, to protect confidential informer privilege. Evidence at the
Garofoli
hearing may persuade the trial judge that parts of the original material should
    be excised or amplified. In the end, the record becomes fixed for review
    purposes.

[43]

What the trial judge is required to decide on the
Garofoli
application is whether, based on the record before the authorizing judge or
    justice, as amplified on the
Garofoli
review, the authorizing judge
could
have granted the enabling order:
Garofoli
, at p. 1452. The judge must
    decide whether, after excision and amplification, there was reliable evidence
    which might reasonably be believed on the basis of which the search authority
    could have been issued:
Araujo
, at paras. 51, 54;
R. v. Campbell
,
    2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14;
R. v. Morelli
, 2010 SCC
    8, [2010] 1 S.C.R. 253, at para. 40. The onus of establishing that the search
    authority was improvidently granted rests upon the accused:
Campbell
,
    at para. 14;
Morelli
, at para. 131;
Quebec (Attorney General) v.
    Laroche
, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68.

[44]

Prior to
Garofoli
, fraud, non-disclosure, misleading evidence
    and new evidence were prerequisites to review of the enabling order:
Garofoli
,
    at p. 1452. But thereafter, the "sole impact" of the same things was
    to determine whether there remained any basis for the decision of the authorizing
    judge or justice:
Garofoli
, at p. 1452. See also
Araujo
, at
    para. 51;
Bisson
, at p. 1098.

[45]

The assessment required by
Garofoli
is contextual. What is
    involved is an analysis to determine whether there remains sufficient reliable
    information upon which the search authority could be grounded. This approach
    appropriately balances the need for judicial finality and the need to protect
    systems of pre-authorization:
Araujo
, at para. 54. In this analysis,
    facts originally omitted are also considered:
Morelli
, at para. 60.

[46]

Essential features of the
Garofoli
application are excision and
    amplification. Erroneous information is excised from the ITO and disregarded in
    determining whether the essential evidentiary predicate remains:
Araujo
,
    at para. 58;
Campbell
, at para. 14;
Morelli
, at para. 41. But
    errors made in good faith may be corrected by amplification through the
    introduction of evidence that was available when the ITO was prepared:
Morelli
,
    at paras. 41-43.

[47]

A final point concerns the standard against which alleged errors or
    omissions in the ITO are tested. The affiant's assertions are tested against
    the affiant's reasonable belief at the time the ITO was composed, not the
    ultimate truth of the facts stated:
World Bank Group v. Wallace
, 2016
    SCC 15, [2016] 1 S.C.R. 207, at para. 122.

The Discretion to Set Aside Otherwise Valid
    Search Authority

[48]

The foundational authority that waded into the procedural quagmire and
    dredged up a single review mechanism
Garofoli
makes no reference
    to any residual discretion to set aside a search authority otherwise found
    valid. Not only does
Garofoli
fail to make a place for such a residual
    discretion, in express terms or by necessary implication, it also tends to
    foreclose such discretion by assigning the
sole impact
of fraud,
    non-disclosure, misleading evidence and new evidence to a determination of
    whether there continues to be any basis for the decision of the authorizing
    judge or justice:
Garofoli
, at p. 1452.

[49]

A decade after
Garofoli
, the standard of review for issuance of
    authorizations to intercept private communications returned to the Supreme
    Court of Canada in
Araujo
.

[50]

In
Araujo
, the trial judge found that investigators had acted
    in bad faith. He also found that the affidavit had failed to establish the
    investigative necessity requirement of s. 186(1)(b) of the
Criminal Code
.
    As a result, he set aside the authorization. The trial judge then went on to
    exclude all the evidence, directly or indirectly originating from the
    authorization, on the ground that the police had acted in bad faith and that
    the courts could not condone such conduct by admitting its evidentiary fruits:
Araujo
,
    at para. 10.

[51]

The British Columbia Court of Appeal unanimously set aside the
    acquittals entered at trial:
R. v. Araujo
(1998), 127 C.C.C. (3d) 315
    (B.C.C.A.). The court rejected the trial judge's application of the standard of
    review to the enabling authorization and of the investigative necessity test.

[52]

The Supreme Court of Canada considered first whether the contents of the
    supportive affidavits, as amplified on the review, satisfied the investigative
    necessity requirement of s. 186(1)(b). The court then turned its attention to
    the standard of review to be applied to wiretap authorizations, including
    amplification. The court reiterated its prior injunction against rehearing and
    emphasized the contextual nature of the inquiry to determine whether, after
    excision and amplification, there remained some evidence that might reasonably
    be believed on the basis of which the authorization could have issued:
Araujo
,
    at para. 51.

[53]

After referring to some authorities that emphasized the need for a
    contextual analysis in authorization review, the court continued at para. 54:

The authorities stress the importance of a contextual analysis.
    The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited
    above, explains this in a judgment dealing with problems arising out of errors
    committed in good faith by the police in the material submitted to the
    authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do
    not automatically invalidate the warrant.

This does not mean that errors, particularly
    deliberate ones, are irrelevant in the review process. While not leading to
    automatic vitiation of the warrant, there remains the need to protect the prior
    authorization process. The cases just referred to do not foreclose a reviewing
    judge, in appropriate circumstances, from concluding on
the
    totality of the circumstances
that the conduct of the police in seeking
    prior authorization was so subversive of that process that the resulting
    warrant must be set aside to protect the process and the preventive function it
    serves.

(
R. v. Morris

(1998),

134 C.C.C. (3d)
    539, at p. 553)

An approach based on looking for sufficient reliable
    information in the totality of the circumstances appropriately balances the
    need for judicial finality and the need to protect prior authorization systems.
    Again, the test is whether there was reliable
evidence
    that might reasonably be believed on the basis of which the authorization could
    have issued
, not whether in the opinion of the reviewing judge, the
    application should have been granted at all by the authorizing judge. [Emphasis
    in original.]

[54]

The appellant invokes "The cases just referred to do not foreclose
    a reviewing judge, in appropriate circumstances, from concluding on
the totality of the circumstances
that the conduct of
    the police in seeking prior authorization was so subversive of that process
    that the resulting warrant must be set aside to protect the process and the
    preventive function it serves" (emphasis in original) as authority for the
    order he seeks. The passage in
Morris
is
obiter
, since the
    court was dealing with errors committed in good faith. And the reference to
Morris
in the Supreme Court of Canada appears to be as illustrative of the need
    for a contextual analysis in authorization review, not as an express adoption
    of the residual discretion to set aside an authorization for conduct subversive
    of the pre-authorization process.

[55]

The authority described in
Morris
appears limited to fraudulent
    and deliberate errors. It requires a contextual analysis, an examination of all
    the circumstances. And a conclusion that the police conduct was so subversive
    of the pre-authorization process that the search authority issued must be set
    aside to protect the process and the preventative function it serves.

[56]

The
Morris
court summarized this principle in this way, at pp.
    568-69:

Fraudulent or deliberately misleading material in the
    Information does not automatically invalidate the warrant. However, it may have
    this effect if the reviewing judge concludes, having regard to the totality of
    the circumstances, that the police approach to the prior authorization process
    was so subversive of it that the warrant should be invalidated. In addition,
    fraudulent and deliberately misleading material should be excised from
    consideration.

[57]

This passage suggests that where the police approach to the prior
    authorization process was so subversive of that process, the warrant should be
    invalidated and the fraudulent and deliberately misleading material excised
    from consideration. Excision seems redundant if the warrant has been
    invalidated because of the subversive nature of the police conduct.

[58]

Despite its reference to the decision in
Morris
, including the
    passage about a residual discretion, the
Araujo
court made it clear
    that an approach based on looking for sufficient reliable information in the
    totality of the circumstances appropriately balances the need for judicial
    finality and the need to
protect

prior authorization systems
:
Araujo
, at para. 54.

[59]

In British Columbia, the courts recognized a similar authority to quash
    a search warrant where the issuing judicial officer had been intentionally
    misled. The search authority is quashed to avoid the corruption of the judicial
    process that would result if deliberate efforts to mislead judicial officers in
    the discharge of their judicial functions could nonetheless lead to valid
    judicial orders: see e.g.
Sismey
, at p. 285.

[60]

In subsequent cases, however, the British Columbia Court of Appeal has
    acknowledged that
Sismey
has been overtaken by
Garofoli
and
Araujo
:
R. v. Bacon
, 2010 BCCA 135, 285 B.C.A.C. 108, leave to appeal refused,
    [2011] 1 S.C.R. v, at para. 23.
[1]
In the result, the
Bacon
court concluded the trial judge's role in
    reviewing the validity of a search warrant is to consider whether the material
    filed in support, as amplified on review, could support the issuance of the
    warrant. Evidence of fraud, material non-disclosure, or misleading information
    are all relevant to this inquiry, but their
sole impact
is to
    determine whether there remains a continuing basis to support the warrant:
Bacon
,
    at para. 25.

[61]

The
Bacon
court did acknowledge that there may be a residual
    discretion to strike down a warrant for abuse of process:
Bacon
, at
    para. 27.

[62]

In this province, courts, including this court, appear to have
    recognized a discretion to set aside a warrant, despite the presence of
    reasonable and probable grounds for its issuance, where non-disclosure was for
    some improper motive or to mislead the issuing judicial officer:
R. v. Colbourne
(2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. Where an affiant has
    been shown to have deliberately provided false material statements, or to have
    deliberately omitted material facts from an ITO, with the intention of
    misleading the issuing judicial officer, the warrant may be set aside. But the
    threshold for setting aside the warrant in these circumstances is high:
Lahaie
    v. Canada (Attorney General)
, 2010 ONCA 516, 101 O.R. (3d) 241, leave to
    appeal refused, [2010] S.C.C.A. No. 371, at para. 40. In at least one brief
    endorsement, this court has described the conduct necessary to engage this
    discretion as "so subversive of the search warrant process as to, in
    effect, amount to an abuse of process and require that the warrant be
    quashed":
R. v. Vivar
, 2009 ONCA 433, at para. 2. See also
R.
    v. Evans
, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

[63]

Two brief points should be made about the remedy the appellant seeks.

[64]

The first has to do with abuse of process. Where state conduct poses no
    threat to trial fairness, but risks undermining the integrity of the judicial
    process, the conduct falls within the residual category of the abuse of process
    doctrine:
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31;
R.
    v. O'Connor
, [1995] 4 S.C.R. 411, at para. 73. The goal of the remedy is
    not to provide redress for a past wrong done to an accused, but to determine
    whether some remedy short of a stay of proceedings will adequately disassociate
    the justice system from the impugned state conduct going forward:
Babos
,
    at para. 39.

[65]

At trial, the appellant framed the remedy he sought as the exclusion of
    evidence under s. 24(2) of the
Charter
for an infringement of s. 8.
    But when he took up the judge's invitation to challenge the warrant on the
    basis of a subversion of the pre-authorization process, the application became
    the functional equivalent of an application to terminate the prosecution for an
    abuse, namely, a subversion of the process. In those circumstances, the
    authorities limiting the availability of a stay of proceedings to the clearest
    of cases may be applicable:
R. v. Jageshur
(2002), 169 C.C.C. (3d) 225
    (Ont. C.A.), at para. 69.

The Principles Applied

[66]

As I will explain, I agree with the appellant that a trial judge has a
    residual discretion to set aside a properly issued search warrant or
    authorization where the judge is satisfied that the conduct of the police has
    been subversive of the pre-authorization process leading to the issuance of the
    search authority. In this case, however, I am satisfied that the circumstances
    do not justify such an order and that the trial judge was right to refuse it.

The Existence of the Authority

[67]

Counsel for the respondent is on firm ground when he says
Garofoli
recognizes no such discretion. But
Garofoli
is not the last word on
    the subject. In
Araujo
, the court followed
Garofoli
but
    emphasized a reliability component in the information provided to the issuing
    judge or justice. When the dust settles after excision and amplification, the
Araujo
court said, there must be a residuum of reliable evidence which might
    reasonably be believed on the basis of which the search authority could have
    been issued.

[68]

The respondent may also be right about the
Araujo
court's use
    of the decision in
Morris
.
Araujo
contains no explicit
    adoption of the residual discretion of which Cromwell J.A. wrote in
Morris
.
    Nor for that matter, a consideration of how such a discretion squares with the
Garofoli
edict that the
sole impact
of fraud and non-disclosure is to determine
    whether there continues to be any basis for the decision of the authorizing
    judge.

[69]

What is clear, however, is that previous authority in this court has
    recognized a residual discretion to set aside a warrant despite the presence of
    a proper evidentiary predicate for its issuance where police conduct has
    subverted the pre-authorization process through deliberate non-disclosure, bad
    faith, deliberate deception, fraudulent misrepresentation or the like:
Colbourne
,
    at para. 40;
R. v.

Kesselring
(2000), 145 C.C.C. 119, at para.
    31;
Lahaie
, at para. 40;
Vivar
, at para. 2.  Courts of appeal
    in other provinces have reached the same conclusion:
Bacon
, at para.
    27;
Evans
, at paras. 17, 19;
R. v. McElroy
, 2009 SKCA 77, 337
    Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30;
Morris
,
    at paras. 90, 92.

[70]

These same authorities, both in Ontario and elsewhere, describe the
    standard to be met to invoke this discretion as high. Indeed, some require that
    the conduct amount to an abuse of process:
Vivar
,

at para. 2;
Bacon
, at para. 27.

The Merits of the Claim

[71]

Several reasons persuade me that what happened here falls short of what
    is required to engage the residual discretion to set aside a search authority
    despite satisfaction of the conditions precedent required for its issuance.

[72]

First, the absence of the required finding. Critical to the application
    of the authority the appellant recruits is a finding that the police conduct
    amounted to a subversion or corruption of the pre-authorization process. Not
    only was there no such finding in this case, but the finding of the trial judge
    was that what occurred did
not
subvert the pre-authorization process.
    Once this indispensable factual predicate falls away, the residual discretion
    is stilled.

[73]

Second, appellate deference. The finding of the trial judge that the
    police conduct did not amount to a subversion of the pre-authorization process
    is largely, albeit not perhaps exclusively, a finding of fact. It is the
    product of a contextual analysis of all the circumstances. The trial judge was
    there. We were elsewhere. This is what trial judges do. And why we defer to
    their findings. As I do here.

[74]

Third, abuse of process. I am not persuaded that the trial judge's
    occasional reference to "abuse of process" is misplaced or reflects
    error in this case. The appellant accepts that he must demonstrate that the
    police conduct
subverted
the pre-authorization process in order to
    bring his case within the sweep of the residual discretion. Subversion connotes
    undermining, corrupting, weakening, destroying or disrupting a system or
    process. In plain terms, an abuse of the pre-authorization process by non-disclosure
    or misleading disclosure or their like. Mere mention of the phrase "abuse
    of process" does not reflect self-misdirection. After all, this court in
Vivar
considered whether irrelevant and improper references in an ITO were "so
    subversive of the search warrant process as to, in effect, amount to an abuse
    of process and require that the warrant be quashed":
Vivar
, at
    para. 2.

[75]

Fourth, a related point about abuse of process. While reasonable people
    may differ about characterizing the argument advanced here as a claim of abuse
    of process, the claim reduces to an assertion that the state conduct risks
    undermining the integrity of the pre-authorization process. Considered in this
    way, the claim evokes the language of the residual category of abuse of
    process.

[76]

Fifth, the conduct in this case. In his ruling, the trial judge focused
    on two aspects of the affiant's conduct:

i.

uncritical acceptance of the observations of a sub-affiant, a fellow
    police officer, about the apparent absence of furniture in the house at 33
    Lynngrove; and

ii.

the affiant's failure to correct the misleading impression left by the
    "14 hits" associated with E-COPS, given that, as the affiant well knew,
    Paryniuk had never been convicted of a criminal offence.

[77]

A sub-facial challenge turns on what an affiant knew or ought to have
    known when the ITO was sworn. The accuracy of the ITO is tested against the
    affiant's reasonable belief at the time, not the ultimate truth of what is
    asserted. In connection with the sub-affiant's observations, it is also debatable
    whether the affiant could be faulted for his "uncritical acceptance"
    of what his police colleague had told him. An ITO, like an affidavit in support
    of an application under Part VI of the
Criminal Code
, may be based on
    hearsay. Although affiants may not ignore signs that fellow officers may be
    misleading them, or omitting material information, in the absence of some
    indication that something is amiss, affiants do not need to conduct their own
    investigation:
World Bank Group
, at para. 123.

[78]

The affiant's failure to plainly say that Paryniuk had never been
    convicted of a criminal offence is a serious deficiency. That said, the
    descriptives "Involved" and "CHARGED" were clearly
    displayed, as well the obvious lack of reference to "CONVICTED" or
    "convictions" could scarcely have gone unnoticed.

[79]

The ITO contained a section describing the various police databases
    referred to by the affiant. The description of the E-COPS system read: The
    E-COPS system is designed to provide an electronic record of incidents and
    occurrences investigated or responded to by a member of the Toronto Police
    Service. On the contrary, the description of the Canadian Police Information
    Centre (CPIC) database noted that information from that system included records
    of Charged Persons  and Criminal Records. That the E-COPS system included
    records arising from mere criminal charges was clear from the summaries.

[80]

Sixth, the ultimate remedy. The appellant's immediate goal on the
Garofoli
application was to set aside the warrant that yielded the evidence that formed
    the case for the Crown. This would provide a pathway to evidentiary exclusion
    which the appellant knew would crater the case for the Crown. In these
    circumstances, the standard "clearest of cases" may not have been
    inappropriate.

[81]

In
Jageshur
, at trial the accused successfully sought exclusion
    of evidence under s. 24(2) of the
Charter
in relation to an alleged s.
    7 breach. The excluded evidence formed the core of the Crowns case. In
    reversing the trial decision on appeal, Doherty J.A. noted that "Although
    the remedy was framed in terms of the exclusion of evidence, it was in reality
    an application to terminate the prosecution (at para. 69). In those
    circumstances, he held, the case law limiting the availability of a stay of
    proceedings to the clearest of cases would have had direct application to
    that decision (at para. 69). In this case, the trial judges decision occurred
    in an evidentiary milieu not dissimilar to the one in
Jageshur
. I do
    not think that the trial judges reference to the clearest of cases can be
    said to be reversible error.

[82]

Finally, the "clearest of cases" and remedial choice. While it
    is true that the "clearest of cases" standard refers to the remedial
    aspect of the abuse of process doctrine  whether a stay of proceedings should
    be entered  mention of it by the trial judge caused the appellant no
    prejudice. The trial judge found that the factual predicate for the residual
    discretion to set aside the warrant had not been met. This finding was not
    tainted by any reference to the "clearest of cases". Without it, the
    warrant could not be quashed. The trial judge never reached the issue of
    remedy. Thus he did not invoke the "clearest of cases" standard as a
    basis upon which to refuse the remedy.

CONCLUSION

[83]

For these reasons, I would dismiss the appeal.

Released: February 1, 2017 ("DW")

"David Watt
    J.A."

"I agree. Gloria
    Epstein J.A."

"I agree. K.M.
    van Rensburg J.A."

[1]
Reported as
R. v. Cheng
(2010), 87 W.C.B. (2d) 230 (B.C.C.A.).


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. O'Connor, 2017 ONCA 136

DATE: 20170215

DOCKET: C62432

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Marc OConnor

Appellant

Lisa N. Gunn, for the appellant

Meaghan Hourigan, for the respondent

Heard:  February 14, 2017

On appeal from the sentence imposed on May 10, 2016 by
    Justice M.P. ODea of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We cannot interfere with this sentence.  The trial judge properly
    emphasized denunciation and the harm done by drug trafficking in the
    community.  He also properly gave considerable weight to the fact that the
    appellant had trafficked while on bail for trafficking.

[2]

The sentence imposed did not entirely disregard rehabilitation, although
    it did play a secondary role.

[3]

The sentence was fit.

[4]

Leave to appeal is granted.  The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pierre, 2017 ONCA 140

DATE: 20170217

DOCKET: C54901

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aundre Pierre

Appellant

Erin Dann and Eric Neubauer, for the appellant

Benita Wassenaar, for the respondent

Heard: January 31, 2017

On appeal from the conviction entered on September 2,
    2011 by Justice G. Pardu of the Superior Court of Justice, sitting with a jury.

BY THE
    COURT:

[1]

The appellant was convicted by a jury of second degree murder. He
    appeals his conviction on two grounds:  (i) that the trial judge erred in
    rejecting his request to admit evidence with respect to an alternate suspect;
    and (ii) that the trial judge erred by instructing the jury that participation
    by aiding was a basis for culpability.

[2]

Daniel DaSilva was a drug dealer. He was shot in the front seat of his
    car while parked near Keele and Eglinton in Toronto. DaSilva died of his
    injuries within minutes of the gunshot. Filipe Rasteiro had been in the front
    seat with DaSilva but managed to escape. Rasteiro told police there were two
    male perpetrators. He was able to provide a description of one of the men who
    he said was in the rear passenger seat with a black gun. Rasteiro recognized
    him from the Don Jail and identified him in a photo line-up as the appellant.
    Cell phone records showed telephone communications between the appellant and
    DaSilva in the time period leading up to the shooting.

[3]

The theory of the Crown was that the appellant had arranged a drug deal
    with DaSilva and then entered the back seat of DaSilvas car with an
    unidentified person. After the drugs were handed over, the appellant and the
    other person pulled out guns. Both of them fired shots at DaSilva, intending to
    kill him or cause serious bodily harm knowing it was likely to cause death.

[4]

The gun used to kill DaSilva was found about three months after the
    shooting in the possession of another person in Ajax, Ontario. The appellant
    sought to introduce evidence at trial that the gun had been found in someone
    elses possession. The Crown objected and the appellant brought the alternate
    suspect application.

[5]

Detective Sansom testified at the
voir dire.
He knew of no
    evidence linking the alternate suspect to DaSilva or to the geographical
    location of the crime. He stated that:  the proposed alternate suspect was
    associated with a gang called H Block; the appellant had been associated with a
    gang called Five Point Generals; there were no cell phone records putting the
    alternate suspect near where the killing took place and no cell phone contact
    between the alternate suspect and the deceased.

[6]

Detective Backus was qualified to provide expert evidence about gang
    culture. He testified that it would be extremely rare for a gang member to
    retain a gun that had been used in a crime.

[7]

The appellant submits that the trial judge erred in rejecting the
    application to admit alternate suspect evidence. He submits that there was a
    sufficient connection between the proposed alternate suspect and the commission
    of the offence because of the possession of a murder weapon. Further, he argues
    that the trial judges analysis assumes that the appellant was involved in the
    shooting.

[8]

We disagree.

[9]

The test for admission of alternate suspect evidence was not in
    dispute:  the third person must be sufficiently connected to the crime to give
    the proffered evidence some probative value:
R. v. Grandinetti
, 2005
    SCC 5, [2005] 1 S.C.R. 27, at paras. 46-48. The only evidence linking the
    alternate suspect to the crime was the possession of the gun. It was open to
    the trial judge to conclude on the basis of all of the evidence that the
    possession of the gun three months after the shooting in the context of the
    case had almost no probative value on the issue of the identity of the shooter
    and that admitting the alternative suspect evidence would unnecessarily
    complicate the trial. The context of the case before the trial judge included
    the identification evidence of Rasteiro, the cell phone records and the
    security video. By contrast, absent the gun possession, there was no evidence
    linking the alternate suspect to DaSilva. The trial judge accepted the expert
    evidence regarding the practices of gang members in relation to guns used to
    commit crimes. She was entitled to find that possession of the gun three months
    after the crime was not probative of the alternate suspects connection to the
    crime and that therefore, the proposed alternate suspect evidence failed to
    reach the standard required for admissibility.

[10]

The trial judges reasons do not reflect the assumption that the
    appellant was involved in the killing. On the contrary, her reasons focus on
    the connection between the proposed suspect and the crime.

[11]

The trial judge instructed the jury on party liability including joint
    principals, common purpose and aiding. The appellant submits that the charge on
    aiding should not have been included as there was no evidence that the
    appellant assisted someone in the commission of the offence with the requisite
    knowledge that the shooter intended to commit murder.

[12]

The judges charge to the jury with respect to aiding is set out in more
    than one section of the charge. First, it states:

[I]f [the appellant]:

1. Knew that someone else intended to
    kill Daniel DaSilva; [and]

2. Did something intentionally to help
    the other person kill Daniel DaSilva

[the appellant] is an aider of the
    murder and equally guilty of it.

[13]

Later in the charge when discussing the state of mind required for
    murder, the trial judge described the components of aiding:

For an unlawful killing to be a
    murder, Crown counsel must prove one or more of the following states of mind:

3.   [The appellant] aided the
    commission of the killing as defined in this charge, in that [he] knew that
    someone else intended to kill Daniel DaSilva, and [he] did something with the
    intention of helping that other person kill Daniel DaSilva [or]

4. [The appellant] was a party to a
    joint common purpose as defined in this charge, in that the Crown has proven
    that:

a. [The appellant] and another person
    agreed they would do a drug deal or a robbery and help each other do so,

b. The killing of Daniel DaSilva
    occurred in the course of their drug deal or robbery, and

c. [The appellant] knew that the other
    person would probably kill someone in the course of carrying out their original
    agreement.

[14]

Still later in the charge the trial judge said: To convict someone of
first
degree murder, Crown counsel must prove that that person is an active
    participant in the killing.

[15]

The Decision Tree led the jury on the following path for second degree
    murder:

1.

The appellant
    entered the car;

2.

The appellant
    did some act that contributed to the death;

3.

The appellant
    caused the death unlawfully;

4.

The appellant
    had the state of mind required for murder.

[16]

The jury was told that they had to be satisfied beyond a reasonable
    doubt of these elements for there to be a verdict of second degree murder.

[17]

The jury instructions, together with the Decision Tree, made it clear
    that the appellant had to be a principal or a joint principal with the
    requisite mental state to be convicted of second degree murder. Although the
    references to aiding may have been unnecessary, the jury charge read as a
    whole would not have misled the jury.

[18]

The appeal is therefore dismissed.

Released: February 17, 2017

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.