WARNING

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

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

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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)      any of the following
    offences;

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

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

(iii)    REPEALED: S.C. 2014,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

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

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

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

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

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    identify the victim shall not be published in any document or broadcast or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S., 2016 ONCA 655

DATE: 20160907

DOCKET: C59275

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Ian Carter, for the appellant

Roger Pinnock, for the respondent

Heard:  August 18, 2016

On appeal from convictions entered on January 20, 2014 by
    Justice Laliberté of the Superior Court of Justice at Cornwall, Ontario.

Doherty J.A.:

I

overview

[1]

The appellant was charged with:

·

assaulting
    his stepson, M.L. (count 1);

·

touching
    his daughter, M.S., for a sexual purpose (count 2);

·

inviting
    M.S. to touch him for a sexual purpose (count 3);

·

incest
    with M.S. (count 4); and

·

sexually
    assaulting M.S. (count 5).

[2]

The trial judge found the appellant guilty on all five charges, but
    stayed the conviction on count 5 on the basis of the rule in
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.  The trial judge imposed sentences
    totalling five years, three months.

[3]

The appellant appealed his convictions.  He submitted that counsels
    conduct of his defence was so deficient as to render the verdicts a miscarriage
    of justice.  Following this courts Protocol governing ineffective assistance
    of counsel claims, the appellant and trial counsel filed affidavits for the
    purpose of the appeal and were cross-examined on those affidavits.

[4]

Based primarily on the cross-examination of trial counsel, Crown counsel
    on appeal conceded that trial counsel had not provided competent assistance to
    the appellant at trial.  The Crown conceded that the ineffective assistance of
    counsel rendered the convictions in respect of the appellants daughter (counts
    2 to 5) unreliable, necessitating a new trial.  Crown counsel argued, however,
    that the appellants conviction on the charge of assaulting his stepson (count
    1) should stand.  He submitted that counsels incompetence did not undermine
    the reliability of that verdict.

[5]

Counsel for the appellant argued that trial counsels incompetence was pervasive
    and tainted the entire trial proceeding.  He submitted that trial counsels
    incompetence compromised the fairness of the trial and necessitated the
    quashing of all convictions.

[6]

At the end of oral argument, the court allowed the appeal and ordered a
    new trial on all counts.  These are the reasons for that disposition.

II

evidence

[7]

The appellant and D.V. lived together between 1991 and 2003.  M.L., the
    complainant in count 1, was D.V.s son.  He was born in 1990.  M.S., the
    complainant in counts 2 to 5, was the daughter of the appellant and D.V.  She
    was born in 1996.

[8]

M.L. testified that when he was about five or six years of age, he was
    living with the appellant and his mother.  The appellant was disciplining him
    for misconduct at school.  M.L., in an attempt to get away from the appellant,
    ran outside toward his mother who was in the family vehicle.  The appellant
    caught him, slapped him, knocked him to the ground, and kicked him.  According
    to M.L., he suffered bruised ribs and a contusion on his lip.  He went to live
    with his father the next day.

[9]

D.V. testified and described an incident when M.L. was about five or six
    years old.  She saw him running toward her in the van with the appellant in
    pursuit.  She did not see how the appellant caught up to M.L. and she did not
    see the appellant actually punch him.  D.V. saw the appellant making a motion
    as if he wanted to punch M.L. as he lay on the ground.  She intervened and got
    between the two of them.  D.V. put her son in the van and drove away.  Shortly
    afterward, he moved in with his father.

[10]

M.S. described two incidents when she was five or six years old.  The
    first incident occurred at the family home in Alexandria.  She was playing in
    the playroom when the appellant came into the room and told her to follow him.
    Her mother was not home.  M.S. followed the appellant into a bedroom.  He
    touched her vagina and inserted his fingers into her vagina.  He removed her
    clothing, assuring her that everything would be alright.  He also removed some
    of his clothing.  He instructed her to place her hand on his penis.  She followed
    his instructions.  At one point, there was a noise in the kitchen and the
    appellant went to see what it was.  He returned indicating everything was
    okay.  She put her clothes back on.  M.S. could not say at what time of the
    year this incident occurred or how long it went on.

[11]

The second incident occurred in the same house.  The appellant came into
    the room where M.S. was playing and told her to follow him.  They went into the
    bedroom.  He removed her clothing and his clothing.  He touched her inside and
    outside of her vagina and partially inserted his penis into her vagina.  He
    continually assured her that everything would be okay.  Just as in the first
    incident, he instructed his daughter to place her hand on his penis.  According
    to M.S., this incident ended when her mother arrived home.  The appellant told
    her to hurry up and get dressed and explained to her mother that he was helping
    M.S. get dressed.  M.S. could not say how long the assault took.

[12]

D.V. testified that she was unaware of any sexual misconduct toward any
    of the girls by the appellant.

[13]

M.S. and her sisters were apprehended by the Childrens Aid Society in
    December 2003, after M.S.s teacher noticed bruising on her face and notified
    the authorities.  Over the next six months, M.S. and her sisters made
    allegations that both the appellant and D.V. physically assaulted and threatened
    them on a regular basis.  M.S. did not allege any sexual misconduct by the
    appellant until 2010.  M.S. initially told social workers that her stepbrother,
    M.L., had sexually assaulted her.  When she was interviewed by the police about
    that assault, she told them that the appellant had also sexually assaulted
    her.  At trial, she testified that she did not disclose the appellants sexual
    abuse earlier because she was afraid of him.

[14]

The appellant did not testify.

The Reasons for Judgment

[15]

The trial judge gave detailed reasons.  He accepted M.L.s description
    of the assault and found that it was confirmed in material particulars by the
    evidence of his mother, D.V.  The trial judge reviewed the defence arguments
    and rejected several as speculative and unsupported by any evidence.

[16]

The trial judge found M.S. to be a credible and reliable witness.  He
    gave many reasons for accepting M.S.s evidence.  He also identified and
    addressed the arguments made on behalf of the appellant.  In his reasons, the
    trial judge found that although M.S. had given a videotaped statement to the
    police and testified at the preliminary inquiry, there was no indication she
    contradicted herself in any significant way.  Her consistency was one of the
    factors relied on by the trial judge in his assessment of M.S.s credibility
    and reliability.

III

the ineffective assistance claim

[17]

An accused is constitutionally entitled to effective representation.  Effective
    representation means reasonably competent representation.  Counsels
    performance is measured without the benefit of hindsight and bearing in mind
    that the reasonable exercise of professional judgment will in many instances allow
    for different tactical decisions:
R. v. G.D.B.
, [2000] 1 S.C.R. 520,
    at paras. 27-28.

[18]

Trial counsels performance fell far below the reasonableness standard.
    I will organize his multiple deficiencies into four categories.  Trial counsel
    failed to adequately prepare for trial; he failed to adequately cross-examine
    the complainant M.S.; he failed to bring a s. 276 application or otherwise
    address the allegation that the stepson, M.L., had sexually assaulted M.S.; and
    he failed to prepare for, or properly respond to, the Crowns application to
    introduce evidence of the appellants discreditable conduct.

(i)

Inadequate trial preparation

[19]

The appellant denied sexually assaulting M.S. from the outset of his
    relationship with trial counsel.  Trial counsel knew that cross-examination of
    the complainants would be crucial to the appellants defence.  However, he did
    not order a transcript of their preliminary inquiry testimony.  He could offer
    no explanation for his failure to take this most rudimentary step in the
    preparation for trial.

[20]

Trial counsel was provided with a CD of M.S.s statement to the police.
    He watched the CD, but did not have a transcript of her statement prepared or make
    notes that would allow him to locate any particular part of the statement
    should the need arise during the trial.  Counsel acknowledged in his
    cross-examination that he was not in a position to put any part of M.S.s
    statement to her at trial should the need arise.  Counsels inadequate
    preparation effectively rendered M.S.s statement to the police useless as a
    tool in her cross-examination.  There were material inconsistencies between
    that statement and M.S.s testimony.

[21]

Counsel was also aware from materials supplied by the Crown disclosure that
    M.S. had made conflicting statements describing the appellants sexual
    misconduct to one of her foster mothers.  Those statements not only
    contradicted M.S.s testimony, but also described conduct that was arguably so
    bizarre as to render the credibility of the allegation questionable.  Trial
    counsel made no effort to interview the foster mother, or to prepare any
    cross-examination of M.S. based on the alleged statements she had made to her
    foster mother.

[22]

The appellant also provided trial counsel with information indicating
    that a clinical psychologist had prepared a report in 2005 in which he indicated
    that the children, including M.S., had made numerous conflicting statements
    about alleged sexual misconduct.  Trial counsel made no effort to obtain a copy
    of that report or to interview the clinical psychologist.  Had he done so, he
    would have found that the clinical psychologist reported that M.S. had made,
    but then retracted, allegations of sexual abuse at the hands of the appellant.
    This information may have proved most useful at trial when M.S. testified that
    she first made the allegations of sexual abuse against the appellant in 2010
    because, on her evidence, she was too afraid to make the allegations earlier.

[23]

In the cross-examination on his affidavit, trial counsel acknowledged
    that he had fully anticipated that the appellant would testify.  He counted on that
    testimony to supply a motive for the false allegations.  The appellant had told
    counsel that he believed that the allegations were motivated by his former
    wifes anger in 2010 over the appellants new relationship and the child that
    he and his new partner had.  The appellant decided late in the trial that he
    would not testify.

[24]

The cross-examination of trial counsel demonstrates that he did very
    little to prepare the appellant to testify at his trial.  Trial counsel also
    did nothing to impress upon the appellant the negative consequences of the appellants
    eleventh hour decision not to testify despite the fact that, according to trial
    counsels strategy, the defence was based on the assumption the appellant would
    testify.

[25]

Counsel could offer no explanation for his failures to adequately
    prepare for trial.  Counsels inadequate preparation became apparent in the
    course of the trial.  I turn now to those features of the ineffective
    assistance claim.

(ii)

The inadequate cross-examination of M.S.

[26]

Trial counsel did not suggest to M.S. during her testimony that any
    part of her evidence was inconsistent with her statement to the police or her
    preliminary inquiry evidence.  Appellate counsel assembled an impressive
    catalogue of inconsistencies upon which M.S. could have been cross-examined.  Perhaps
    the most striking comes from M.S.s statement to the police.  In that
    statement, she indicated that her mother came into the room and caught the
    appellant in the act of sexually assaulting M.S.  M.S. told the police that her
    mother had required the appellant to leave the home for two months.  In her
    testimony, M.S. said nothing about her mother coming into the room during the
    assault and nothing about the appellant being forced to leave the home.  Her
    mother, D.V., testified that she knew nothing of the sexual abuse until many years
    later.  Counsel never confronted M.S. with this potentially powerful
    inconsistency.  He had no explanation for failing to do so.

[27]

There were other material inconsistencies.  For example, at trial, M.S.
    testified that the appellant put his penis into her vagina during the second
    sexual assault.  In her statement, she indicated she could not recall whether
    he did so.  Once again, trial counsel had no explanation for failing to
    cross-examine M.S. on those inconsistencies.  On the record before this court,
    it is clear that because of his inadequate preparation, trial counsel was not
    in a position to readily locate the relevant parts of M.S.s statement to the
    police so that he could effectively use them in cross-examination.

[28]

M.S.s statement to the police and her evidence at the preliminary
    inquiry were not the only potential sources of prior inconsistent statements
    which could have been used in the cross-examination of M.S.  As indicated
    above, M.S. told her foster mother that the appellant had sexually assaulted
    her.  She described assaults that were, however, very different from the
    assaults she described in her testimony.  Trial counsel made no effort to
    confront M.S. with those different and somewhat bizarre allegations she had
    made to her foster mother.

[29]

Trial counsel was also in possession of a series of instant messages that
    had been sent by M.S. to her cousin in 2011, about six months after M.S.s
    initial disclosure to the police.  In those statements, M.S. denied that the
    appellant put his penis in her vagina.  At trial, she insisted that he did.  Trial
    counsel could offer no explanation for failing to put this inconsistency to M.S.

[30]

Cross-examination of complainants in sexual assault cases on prior
    inconsistent statements, especially in cases involving allegations of
    historical sexual assaults, calls for the exercise of professional judgment.
    Different counsel may have different views of how and when to cross-examine a
    complainant on a prior inconsistent statement.  Trial counsels failure to
    cross-examine M.S., however, was not the product of any judgment he made.  As
    he repeatedly acknowledged in his cross-examination, his failure to challenge
    M.S. on her prior statements was a result of his oversight of the existence
    of the relevant inconsistencies.

(iii)

The failure to bring a s. 276 application

[31]

Trial counsel knew from the disclosure that M.S. had initially alleged
    that her stepbrother, M.L., had sexually assaulted her.  She did not mention
    the appellant in her initial disclosure.  It was only when she was giving her
    statement to the police about her stepbrothers abuse that she told the police
    that the appellant had also sexually assaulted her.

[32]

Trial counsel also knew from the copies of the instant messages between
    M.S. and her cousin that M.S. had initially told her cousin in 2011 that her
    stepbrother had put his penis in her vagina, but her father had not.

[33]

The material provided to trial counsel forged a clear link between
    M.S.s allegation against the appellant and her statements that she was abused
    by her stepbrother.  Some of the details of the two allegations seemed
    interchangeable in M.S.s different statements.  Clearly, a proper defence of
    the appellant required an inquiry into M.S.s statements about her
    stepbrothers assaults on her.

[34]

Trial counsel seemed to appreciate the need to question M.S. about the
    allegations she made against her stepbrother.  At the preliminary inquiry, he
    attempted to cross-examine her about her activities with her stepbrother.  The
    Crown objected to the question on the basis that no application under s. 276 of
    the
Criminal Code
had been made on behalf of the accused.  Section 276
    requires that before evidence can be adduced of sexual activity other than the
    activity alleged in the charge, counsel must apply for and obtain an order
    permitting the eliciting of that evidence.  Immediately after the Crown made its
    objection, trial counsel abandoned this line of questioning without making any
    submissions as to the applicability of s. 276.

[35]

The applicability of s. 276 arose again in the pretrial conference.  The
    notes of that conference indicate that although the defence was alleging sexual
    abuse by the stepbrother, trial counsel did not contemplate a s. 276 motion.
    According to the pretrial notes, trial counsel thought that he could cover the
    matter in cross-examination of M.S.

[36]

At trial, counsel attempted to cross-examine M.S. about the sexual
    activity with her stepbrother.  Once again, the Crown objected on the basis
    that no s. 276 application had been made.  Trial counsel made no argument to
    support the position that he could cross-examine M.S. despite not having
    brought a s. 276 application.  Instead, as he had done at the preliminary
    inquiry, trial counsel abandoned that line of questioning.  M.S. was never
    questioned about the allegations involving her stepbrother.

[37]

In his cross-examination, trial counsel could offer no explanation for his
    failure to bring a s. 276 application.  Initially, he said he did not think he
    needed to bring one, but he could offer no explanation for simply abandoning
    the line of questioning when the Crown objected, instead of arguing that he was
    not obligated to bring the application.

[38]

Trial counsel had nothing in his file relating to the operation of s.
    276 and had never brought a s. 276 application before.  There is good reason to
    believe that trial counsel did not understand how the section worked and
    believed that it did not apply to cross-examination of the complainant.

(iv)

The failure to challenge the Crowns application to adduce evidence of
    other discreditable conduct

[39]

Prior to trial, the Crown served notice that it proposed to introduce
    evidence that the appellant and his wife had assaulted and threatened their
    children, including M.S., while they were living together as a family.  The
    Crown offered the evidence, both to show animus toward M.S. and to offer an
    explanation for her failure to complain about the appellants alleged sexual
    abuse until many years later.

[40]

The parties agreed that argument on the admissibility of the evidence
    would be made in writing prior to trial.  The trial judge fixed a schedule for
    the filing of the relevant material.  The Crown filed its application, factum
    and case law according to the schedule set by the trial judge.  Trial counsel
    did not file any responding material by the date set for the filing of that
    material.

[41]

At the hearing of the motion to admit the evidence, trial counsel told
    the court that he had failed to properly diarize the date for the filing of
    material and had only realized about a week earlier that he had missed the deadline.
    Trial counsel had no explanation for failing to file anything in the
    intervening week.  The trial judge allowed counsel to make oral submissions in
    response to the Crowns motion.  Those submissions lacked both focus and
    cogency.

[42]

On his cross-examination, trial counsel once again admitted that his
    failure to file any material on the Crowns motion was an oversight.  He had
    intended to oppose the application.  He also acknowledged that he had nothing
    in his file to suggest he had done anything by way of preparation for his oral
    submissions in response to the Crowns motion.

[43]

Trial counsels abject failure to adequately represent his clients
    interests on the Crowns motion to lead evidence of discreditable conduct is
    mitigated somewhat by the fact that there was in all likelihood little that any
    counsel could have done to exclude the proffered evidence.  The evidence had
    significant probative value.  What is important, however, for the purposes of
    this appeal is that counsels conduct was not the product of any consideration
    of the merits of the Crowns motion.  Trial counsel did not file material
    because he determined that the Crowns motion would inevitably succeed.  Trial
    counsel simply failed to take any steps to protect or present his clients position
    on the motion despite his belief that the motion should be opposed.

What order should the court make?

[44]

If an accused who receives ineffective representation at trial is
    convicted, the conviction must be quashed if the result is properly
    characterized as a miscarriage of justice.  A miscarriage of justice occurs if
    the ineffective representation sufficiently undermines the reliability of the verdict,
    or results in an unfair trial.  The reliability of a verdict is sufficiently undermined
    if the appeal court concludes that there is a reasonable probability that the
    verdict would have been different had the appellant received adequate legal
    representation:  see
R. v. Prebtani
, 2008 ONCA 735, at para. 4;
R.
    v. Joanisse
, [1995] O.J. No. 2883, at paras. 74-80 (C.A.), leave to appeal
    to SCC refused, [1996] S.C.C.A. No. 347.

[45]

Mr. Pinnock conceded on the appeal that there was a reasonable
    probability that the verdicts on the charges involving M.S. would have been
    different had the appellant received proper legal representation.  The record
    fully justifies, indeed compels, the concession made by the Crown.  The
    potential negative impact of trial counsels inadequate representation of the
    appellant on the reliability of the convictions involving M.S. is
    self-evident.  In light of Crown counsels concession, I need say no more about
    the convictions on those counts.

[46]

Crown counsel submits, however, that it cannot be said that counsels
    ineffective representation probably affected the outcome on the assault charge
    involving the stepson, M.L.  I agree with Crown counsel that many of trial counsels
    deficiencies had a more direct and significant impact on the defence of the
    charges involving M.S. than on the defence of the charge involving M.L.  I also
    agree with Crown counsel that M.L.s allegation was confirmed to a significant
    degree by the evidence of his mother, D.V.  In that sense, the Crowns case on
    the charge involving M.L. was stronger than its case on the charges involving
    M.S.

[47]

However, while I acknowledge the merits of the Crowns attempt to
    distinguish among the charges, I ultimately agree with Mr. Carters cogent submission
    that trial counsels ineffective representation taints all of the convictions.
    Mr. Carter characterizes the effect of counsels ineffective representation as
    pervasive.  I agree with that description, which I think is particularly apt
    in respect of trial counsels purported preparation for trial.

[48]

For all practical purposes, the appellant was without the assistance of
    counsel at trial.  The miscarriage of justice occasioned by the ineffective
    representation lies not only in its impact on the reliability of the verdicts,
    but also in its negative effect on the appearance of the fairness of the
    trial.  The latter concern can be adequately vindicated only by an order quashing
    all of the convictions.

IV

conclusion

[49]

The appeal is allowed, the convictions are quashed and a new trial is
    ordered on all counts, including the count on which the conviction was stayed
    under the rule in
Kienapple
.

Released: DD  SEP 07 2016

Doherty J.A.

I agree K. van
    Rensburg J.A.

I agree L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sarrazin, 2016 ONCA 714

DATE: 20160929

DOCKET: C57000

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Sarrazin

Appellant

Russell Silverstein and Ingrid Grant, for the appellant

Michael Bernstein, for the respondent

Heard: September 12, 2016

On appeal from the conviction entered on February 22,
    2013, by Justice Hugh R. McLean of the Superior Court of Justice, sitting with
    a jury.

Gillese J.A.:

[1]

On February 22, 2013, following a trial by jury, Robert Sarrazin (the
    appellant) was convicted of second degree murder for having killed Apaid
    Noël.  He was sentenced to life in prison with no parole eligibility for 18
    years.

[2]

This was the appellants third trial for Apaid Noëls murder.  He had been
    convicted in both of the two prior trials but had successfully appealed those convictions.
[1]

[3]

He appeals against conviction and asks for a stay of proceedings, on the
    basis that a fourth trial would constitute an abuse of process and violate s. 7
    of the
Charter
.

[4]

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

BACKGROUND IN BRIEF

[5]

Apaid Noël was 21 years old on February 19, 1998.  In the early morning
    hours, he was with his brother Aschley Noël.
[2]
Aschley was five years older than Apaid and lived in Montreal but had gone to
    Ottawa to help his brother promote an upcoming March break party.

[6]

The two brothers were standing outside an Ottawa night club distributing
    flyers advertising the party.  The appellant, Darlind Jean and Wolfson Cétoute (together,
    the three men) were in the nightclub.

[7]

The appellant and Mr. Jean were long-time friends and members of CDP, a
    Haitian street gang in Montreal.  There was evidence at trial suggesting that
    Apaid was a member of a rival Montreal street gang.  There was a history of bad
    blood between the two gangs.

[8]

At about 2:45 a.m., the three men left the club and ran into Apaid and
    Aschley.  Aschley recognized Mr. Jean because they had been at high school together
    in Montreal.  There were discussions between the two groups and the situation
    escalated.  The three men left the area but soon returned and continued the
    confrontation.

[9]

According to Aschley, the appellant  who was holding a 12-gauge
    sawed-off shotgun  stepped forward and fired at Apaid, then advanced further
    and fired the shotgun again, at close range, into Apaids abdomen.  After a
    struggle, Aschley managed to get control of the shotgun.  He swung the shotgun
    at the three men.  Before the three men fled, Mr. Jean pleaded with Aschley not
    to turn him in to the police.

[10]

Aschley
    provided a description of the shooter at the scene, at the hospital, and at the
    police station. While at the hospital, he also identified the appellant in a
    photo lineup.

[11]

Apaid
    was discharged from hospital on March 13, 1998, but died 5 days later.  Dr.
    Johnston, a forensic pathologist, performed the autopsy and testified that the
    cause of death was a blood clot blocking the flow of blood to the lungs, likely
    brought on by complications arising after surgery.  Dr. Pollanen, a forensic
    pathologist, and Dr. Rodger, an expert in hematology and epidemiology,
    testified in support of Dr. Johnstons conclusion on the cause of Apaids
    death.

[12]

The
    appellant turned himself in to police on February 25, 1998.  Mr. Jean
    considered fleeing the country but the appellant convinced him otherwise,
    promising to plead guilty in exchange for Mr. Jeans freedom.  Mr. Jean turned
    himself in to police on March 3, 1998.  Both men were charged with attempted
    murder.

[13]

After
    Apaid died and the charges were upgraded from attempted murder to murder, the
    appellant changed his mind and pleaded not guilty.  Both he and Mr. Jean were
    convicted of second degree murder at the first trial.  They successfully appealed
    those convictions.

[14]

A
    second jury trial was conducted.  Again, both the appellant and Mr. Jean were
    convicted of second degree murder.  And, again, both successfully appealed
    against conviction.

[15]

Before
    the third trial, Mr. Jean pleaded guilty to manslaughter and was sentenced to
    time served.  He was released from prison after having served 15 years.

[16]

There
    were two main evidentiary issues at the appellants third trial:

(1)

Was the appellant the
    shooter?

(2)

Did the shooting cause
    Apaids death, which occurred over a month later?

[17]

At
    the third trial, both Aschley and Mr. Jean testified on behalf of the Crown.  Eight
    other independent witnesses also testified for the Crown.  Their evidence
    confirmed that of Aschley and Mr. Jean in a number of material respects, although
    none of the eight positively identified the appellant as the shooter.

Jury question

[18]

On
    the 14th day of trial at about 3:52 p.m., the trial judge received a note from
    the jury (the first note).  The first note consisted of three paragraphs,
    each of which was written in different handwriting.  The jury was excused and
    the first note was shown to counsel.

[19]

The
    first paragraph of the first note was a single sentence that read:

This is a shared concern for all jury members, to varying
    degrees & for different reasons.

[20]

The
    second paragraph gave some personal information about one of the jurors and
    asked what dangers there were to his/her life and his/her familys life from
    the CDP gang.  The third paragraph gave some personal information about one
    juror and said that he/she and his/her family felt vulnerable.

[21]

The
    trial judge was concerned because the second and third paragraphs in the first
    note revealed personal details about some of the jurors.  With the consent of
    the parties, the first note was ordered sealed.

[22]

When
    the jury returned to the courtroom, the trial judge told them that the first note
    had been sealed because it had information about some of the jurors personal
    lives and he was concerned about the personal information becoming a part of
    the public record.  The trial judge went on to say:

So, what I suggest that you do, if theres [
sic
]
    continuing concerns along that line, that you reformulate your comments but
    take out anything whatsoever that would identify you in any way whatsoever.
    So, Ill let you retire and think about things and see what you want to do at
    this point.  All right?  Thank you.

[23]

At
    about 4:30 p.m. that same day, the trial judge was given another note from the
    jury (the second note).  The second note read as follows:

The jury does not require a response and withdraws the request.

[24]

Upon
    receiving the second note, the trial judge acknowledged that the jury had
    indicated that it did not need a response and had withdrawn its question.
    However, before dismissing the jury for the day, he reiterated his willingness
    to consider any concern that they might have.  He said:

If theres anything that youre concerned about or theres any
    questions you have for me, please put them in writing, but my concern, as I
    said to you before, is just dont put  a jury is a group.  An individual thing
    should be  I dont think you need to quote, unless theyre absolutely
    necessary.  In certain circumstances, obviously, you have to do that kind of
    thing, but I just  certainly if theres any request you have for me or for
    anybody or that youre concerned about, please put them in writing and Ill
    deal with them when I receive them.  All right?  Thank you.  Good night.

[25]

The
    following day, defence counsel asked the trial judge to start an inquiry under
    s. 644 of the
Criminal
Code
to determine whether any of the jurors should be discharged because of the
    first note.  He contended that an inquiry under s. 644 of the
Criminal Code
was
    required to determine whether the jurys concern (as expressed in the first
    note) arose from evidence at trial or external information, and whether concern
    for their own safety might prevent jurors from discharging their duty according
    to their oath.

[26]

Crown
    counsel told the trial judge that his initial response was that the jurors had
    sworn oaths of impartiality and could be expected to follow their oaths.
    However, he now thought that the way to proceed would be to tell the jury that
    at no time over the past 14 years has there been any complaint of any
    approach, threat or harm to any juror in this case followed by each juror
    being asked individually are you still able to render a true and fair verdict
    based on the evidence you have heard?  Each juror would then be told to leave
    the courtroom and individually indicate, in writing, yes or no to the
    question.

[27]

After
    further discussions with counsel about the way in which such an inquiry could
    be conducted, the trial judge decided against conducting an inquiry. He referred
    to the jurys sworn oath of impartiality and the presumption in law that jurors
    would abide by the oath.  He said that there was nothing in the first note to indicate
    that the jury would do anything other than abide by the oath of impartiality.
    The trial judge concluded by saying that because the jury, on further
    consideration of the matter, had withdrawn its request, he did not see how he
    could make such an inquiry without entering into the jurys deliberations or
    asking the jurors to reveal their discussion in the jury room that had led to
    the withdrawal.

[28]

Out
    of an abundance of caution, the trial judge then reiterated to the jury the
    instructions he had given them the previous afternoon to the effect that if the
    jurors had any further cause for concern, they were to express those concerns in
    writing and he would do his best to answer them.

The Identification Evidence

[29]

Aschleys
    account of the shooting and that given by Mr. Jean were very similar.  Both
    testified that there was an argument between the three men and two brothers
    that became heated.  Both confirmed that the appellant disappeared and returned
    with a sawed-off shotgun that he used to shoot Apaid at close range.

[30]

The
    evidence of these two witnesses was confirmed in a variety of material ways by
    the other witnesses.  Two women who worked at the nightclub in question, and
    knew the appellant because he was a frequent patron, testified that they saw
    the appellant in the nightclub that night.  The bouncer at the nightclub
    testified that he had seen Mr. Jean at the nightclub on the night in question
    with two other men, one of whom was around the same size as Mr. Jean and the
    other who was smaller.  Two witnesses who were on the street during the
    incident confirmed other aspects of their testimony.  One described seeing a
    man with a gun standing over the victim, pointing down at him and then she saw
    him shoot the victim a second time.  The other heard an argument followed by
    two shots.  When she saw a body on the ground she went to help.  As she
    approached, [e]verybody disappeared except for a distressed young man with a
    gun in his hands.

The Crown Closing

[31]

In
    his closing address to the jury, Crown counsel said the following:

Fifteen years and one day from the date that Apaid Noël was
    shot down, the evidence youve heard in this courtroom is stronger than its
    ever been.  Its unusual, I think, for maybe evidence to get stronger as time goes
    along, but thats whats happened here, and its stronger because youve heard
    from Darlind Jean, who recently made the momentous decision to leave the gang
    behind and testify here in court and because youve heard from two experts, who
    have international recognition about the cause of the clot that killed Apaid Noël,
    how the shots from Robert Sarrazin led directly and inexorably to the clot that
    killed him.

[32]

Defence
    counsel unsuccessfully requested a mistrial as a result of these comments (the
    impugned comments).

THE ISSUES

[33]

The
    appellant submits that the trial judge:

1.

erred by failing
    to inquire into juror bias following the first note;

2.

gave inadequate
    and erroneous instructions on the issues of eye-witness and in-dock
    identification; and

3.

erred by failing
    to grant a mistrial after the Crown made the impugned comments in its closing
    address.

[34]

If
    the appeal is allowed, the appellant raises a fourth issue, namely, whether this
    court should order a stay of proceedings.  He argues that, in the
    circumstances, ordering a fourth trial would constitute an abuse of process and
    a violation of s. 7 of the
Charter
.

ISSUE #1              THE FIRST NOTE

[35]

The
    appellant submits that the trial judge erred in failing to inquire into jury
    bias following the jurys first note.  He maintains that the first note showed
    that the jury was afraid of the appellant and the gang to which he belonged and
    showed bias or raised a reasonable apprehension of bias.  He says that the fact
    that the jury withdrew the first note is of no import, given the jurors serious
    expression of fear for their safety and that of their families, contained in
    the first note.

[36]

I
    do not accept this submission.

[37]

The
    appellants position rests on the assumption that the first note showed that
    the jurors were afraid of the appellant and the gang to which he belonged and consequently
    had lost their impartiality.

[38]

With
    respect, this assumption is flawed.  The first note contains the jurys
    expression of concern about safety and feeling vulnerable.  As the trial judge
    observed, in the circumstances of this case, the first note does not give rise
    to a realistic potential for the existence of partiality.  To this I would add simply
    that the first note does not even refer to the appellant.  It refers to the CDP
    gang.

[39]

Further,
    as the trial judge indicated, there is a presumption in law that the jury would
    abide by its sworn oath of impartiality and he found nothing in the first note to
    indicate that the jury would do anything other than abide by that oath.

[40]

Moreover,
    the appellant has failed to appreciate the significance of the jurys
    withdrawal of the first note in two regards.

[41]

First,
    as the trial judge indicated, in light of the jurys withdrawal of the first
    note, an inquiry would have intruded on jury secrecy because the trial judge
    could not have inquired into the substance of the concerns in the first note
    without giving some consideration as to why the jury withdrew it.  That would
    engage the improper revelation of jury deliberations.  As this court emphasized
    in
R. v. Kum
, 2015 ONCA 36, 320 C.C.C. (3d) 190, jury secrecy is to be
    jealously guarded.

[42]

Second,
    the appellants reliance on
R. v. Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641,
    is misplaced.

[43]

In
Ellis
, the police found a bag on the accused that contained crack
    cocaine and money.  The accused denied knowledge of the drugs and said the
    money was collected as part of a partners program with other members of the
    Jamaican community and he was the recipient of the money that week.

[44]

After
    some deliberations, the jury sent the judge a question asking whether it could
    consider, as evidence, the absence of other members of the partners program as
    witnesses.  While the judge was discussing with counsel how best to respond to
    the question, the jury indicated that it had reached a verdict.  Without any
    inquiry of the jury about whether it still required an answer to its question,
    the trial judge accepted the jurys verdicts finding the accused guilty.

[45]

This
    court allowed the appeal from conviction.

[46]

Watt
    J.A., writing for the court, held that, before receiving the jury verdict, the
    trial judge should have confirmed with the jury whether it required an answer
    to the question and given it the opportunity for further discussion before it returned
    its verdict (
Ellis
, at para. 67).  He stated that, for cases in which the
    jurys question reflects a legal misapprehension  or raises the prospect that,
    absent further instruction, the jury may be under a misapprehension about a
    governing legal principle  the trial judge should provide jurors with the
    appropriate corrective instruction and an opportunity to retire, to reconsider
    whether they require further time for deliberations (
Ellis
, at para. 66).

[47]

Unlike
    in
Ellis
, in this case the jury expressly withdrew the question and
    advised the trial judge that it did not need a response to it.  Thus, this was
    not a case where the jury reached a verdict while it had an unanswered
    question.  In this regard, it is worth noting that the trial judge was at pains
    to tell the jury several times that it could put any questions and concerns to
    him.  Furthermore and importantly, the concern expressed by the jury in the
    first note did not reflect a misapprehension of the law or governing legal
    principles.

[48]

Accordingly,
    this ground of appeal must fail.

ISSUE #2              THE IDENTIFICATION INSTRUCTIONS

[49]

The
    appellant submits that the trial judges warning to the jury about the
    frailties of eye-witness and in-dock identification evidence were inadequate.
    He says that:

·

the instructions lacked the
    requisite case-specific content;

·

Aschley did not know the appellant
    so the trial judge ought to have told the jury that Aschleys certainty was not
    probative of accuracy;

·

the trial judges statement that
    in-dock identification really does not help was insufficient and he ought to
    have given the instruction from
R. v. Hibbert
, 2002 SCC 39, [2002] 2
    S.C.R. 445;

·

the trial judge ought to have
    mentioned that the witnesses had previously seen the appellant in the media, in
    police line-ups, and on multiple occasions in the courtroom at two previous
    trials;

·

the trial judge should not have
    suggested that the jurors consider that evidence; and

·

the trial judge ought to have reminded
    the jury that no independent eyewitness identified the appellant in the police
    line-ups.

[50]

In
    my view, when the trial judges instructions are read in the context of the
    charge as a whole, the instructions were appropriate and in accordance with the
    governing principles.  The trial judge generally and specifically cautioned the
    jury regarding the frailties of the identification evidence.  He conveyed to
    the jury all of the appropriate legal principles and reviewed the strengths and
    weakness of the eyewitness evidence.

[51]

The
    trial judge took the jury through each eyewitness evidence and gave
    case-specific commentary about its strengths and weaknesses at each point and
    how to use in-dock identification.  The trial judge gave extensive instructions
    on the dangers of wrongful conviction and the frailties of eyewitness evidence,
    including in-dock identification.

[52]

Moreover,
    this court held on the appellants first appeal that in-dock identification was
    not an issue on the facts of this case and that such a warning was not even
    required:
R. v. Sarrazin

(2005), 75 O.R. (3d) 485, at para.
    113.  The only additional witness in this third trial was a personal associate,
    who knew the appellant well.

[53]

While
    the appellant asserts that Aschley did not know the appellant, this case is not
    comparable to
Hibbert
or
R. v. Jack
, 2013 ONCA 80, 294 C.C.C.
    (3d) 163, because it does not rely entirely on eyewitnesses who were total
    strangers to the accused and who saw him only briefly.

[54]

For
    these reasons, I would dismiss this ground of appeal.

ISSUE #3              THE IMPUGNED COMMENTS

[55]

The
    appellant complains that the impugned comments suggested to the jury that because
    of Mr. Jeans testimony, the evidence against him was stronger than it had been
    in his two previous trials.  Because the evidence at the previous trials was irrelevant
    to the jurys consideration of this case, the appellant says the impugned
    comments were potentially prejudicial and the trial judge erred in refusing to
    declare a mistrial or even instruct the jury to ignore the Crowns comments.

[56]

I
    do not accept this submission.

[57]

The
    essential question raised by this ground of appeal is whether the impugned
    comments prejudiced the appellants right to a fair trial.  The trial judge is
    in the best position to assess the significance of the remarks of counsel, determine
    if the remarks need to be corrected and, if necessary, correct inaccuracies and
    remedy any unfairness that might arise from them:
R. v. Rose
, [1998] 3
    S.C.R. 262, at para. 126.

[58]

The
    trial judge was of the view that the impugned comments did not prejudice the appellants
    right to a fair trial.  I agree, for the reasons given by the trial judge.

[59]

As
    defence counsel conceded in response to the trial judges questions at trial,
    the impugned comments made no direct reference to the earlier trials.  In any
    event, as the trial judge noted, the results of the two previous trials and the
    circumstances surrounding the witnesses evidence were already known to the
    jury.  The impugned comments offered no new information, except the fact that
    the Crown thought that it had a relatively stronger case.  It should be noted
    that the Crowns view was based, in part, on the medical evidence about the
    cause of the blood clot that ultimately led to Apaids death.

[60]

Furthermore,
    as the majority noted at para. 127 of
Rose
, the trial judge was in the
    best position to determine whether remedial steps were necessary.  In this
    case, the trial judge gave an appropriate ameliorative instruction:

Just a note about retrials.  This case has been tried before,
    as we all know.  Do not speculate about what happened during or at the end of
    the trial or why there is another trial.  What happened there has absolutely
    nothing to do with your decision in this trial, absolutely nothing.  You must
    decide this case on the evidence that you have seen and heard given in this
    courtroom during this trial, and according to my legal instructions that you
    are now receiving to govern your deliberations and decision.  Nothing else
    matters, and that includes what happened at any prior trial.  That is the end of
    the story.

[61]

Finally,
    a trial judges decision whether to grant a mistrial is discretionary and
    subject to considerable deference on appeal:
Kum
, at para. 49.  I see no
    basis on which to interfere with the trial judges exercise of discretion to
    refuse to grant a mistrial.

ISSUE #4              A STAY OF PROCEEDINGS

[62]

As
    I would not allow the appeal, it is unnecessary to consider this issue.

DISPOSITION

[63]

For these reasons, I would dismiss the appeal.

Released: September 29, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. Paul Rouleau J.A.

I agree. David Brown J.A.

[1]

See
R. v. Sarrazin
(2005), 75 O.R. (3d) 485 (C.A.); and
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505.

[2]

Because the two brothers have the same last name, to avoid
    confusion, I refer to them by their first names in these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sountas, 2016 ONCA 699

DATE: 20160922

DOCKET: C59305

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Konstantinos Gus Sountas

Appellant

Mark C. Halfyard, for the appellant

Brock Jones, for the respondent

Heard: September 20, 2016

On appeal from the conviction entered by Justice Anne Mullins
    of the Superior Court of Justice, sitting with a jury, dated February 5, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The Crown acknowledged that the reasonableness of the verdict ultimately
    came down to the inference that could be drawn from the finding of the cheques in
    the name of the appellant in the bedroom where the drugs were found.  In our
    view, no reasonable jury could conclude, based on the entirety of the evidence,
    that the appellant was in possession of the drugs.

[2]

The evidence, or more accurately the absence of evidence, left open
    other plausible theories inconsistent with the appellant being in possession
    of the drugs: see
R. v. Villaroman
, 2016 SCC 33, at paras. 37-38.

[3]

The appeal is allowed, the conviction quashed and an acquittal entered.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Suleiman, 2016 ONCA 681

DATE 20160912

DOCKET: C59574

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Magabi Lashury Suleiman

Appellant

Magabi Lashury Suleiman, acting in person

David Smith, duty counsel

Molly Flanagan, for the respondent

Heard: September 9, 2016

On appeal from the conviction entered on September 17,
    2014 and the sentence imposed on October 30, 2014 by Justice Maria Linhares de
    Sousa of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, with the assistance of duty counsel, advances three
    grounds of appeal on his conviction. Two relate to only a single count on a
    multi-count indictment and one relates to several counts.

[2]

The appellant contends that the trial judge made improper use of a prior
    statement by the complainant to a nurse. We disagree. The brief reference to
    this statement was simply part of the narrative of events and was not used to
    bolster the complainants credibility.

[3]

The appellant submits that the trial judge improperly relied on similar
    fact evidence relating to cell phones in her reasons.

[4]

We are not persuaded by this submission. The appellants seizure of cell
    phones from five complainants was an integral part of the offences.

[5]

The appellant contends that the trial judge engaged in inconsistent
    reasoning with respect to count 8 in the indictment. We disagree. The words
    not persuaded by in paragraph 261 of her reasons refer only to confinement in
    the appellants automobile, not to confinement in his apartment.

[6]

The appellant contends that his global sentence of nine years
    imprisonment is excessive. We do not accept this submission. The serious nature
    of the offences, the number of victims, and the many aggravating factors
    justify the global sentence. We note that both trial counsel agreed that the
    appropriate sentencing range was 8 to 10 years.

[7]

The appellant submits, and the Crown accepts, that the actual wording
    employed by the sentencing judge in her reasons did not give effect to her
    stated intention of giving the appellant credit for pre-sentence custody on a
    1.5:1 basis.

[8]

We accept the parties joint submission on this issue. The parties agree
    on the math that will correct this error.

[9]

The conviction appeal is dismissed. The sentence appeal is allowed. The
    appellant is given credit for 1541 days of pre-sentence custody, which reduces
    his sentence to an additional 1744 days to serve.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sutherland, 2016 ONCA 674

DATE: 20160913

DOCKET: C59603

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hopeton Sutherland

Appellant

Hopeton Sutherland, acting in person

Russell Silverstein, duty counsel

Michael Bernstein, for the respondent

Heard: July 14, 2016

On appeal from the convictions entered by Justice Nancy
    Kastner of the Ontario Court of Justice on October 22, 2014, with reasons
    reported at 2014 ONCJ 551, and sentence, dated October 31, 2014.

Tulloch J.A.:

A.

Introduction

[1]

This appeal stems from events occurring around May 3, 2014, when it is
    alleged that the appellant assaulted the complainant and forced her to have
    intercourse with him at knife point. The appellant was convicted of assault
    causing bodily harm, sexual assault with a weapon, theft under $5,000, and
    breach of probation. He was sentenced to six years imprisonment.

[2]

The appellant now appeals against his conviction and sentence. With the
    assistance of duty counsel, he argues that the trial judge misunderstood the
    evidence and erred by taking judicial notice of certain evidence concerning the
    complainants underwear and by misapplying the rule in
Browne v. Dunn
(1893),
    6 R. 67 (U.K. H.L.).

[3]

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

B.

BACKGROUND

(1)

Facts

[4]

At the time of the relevant events, the appellant, Hopeton Sutherland,
    was approximately 45 years old. He was a crack user believed to be running a
    crack house or flop house in the Mississauga area. He abused alcohol and helped
    others get drugs.

[5]

The complainant, R. G., was approximately 36 years old. She was an
    essentially homeless woman as her common law husband had recently been
    imprisoned. She squatted between a couple of crack houses, friends homes, the
    park and a mall. She stayed mostly at a crack house occupied by a man who went
    by the name, The General. Like the appellant, the complainant was also a
    crack user who abused alcohol. She drank several beers each day and would take
    oxycodone by prescription when she was unable to get crack.

[6]

In the winter preceding the relevant events, the complainant visited the
    appellants home with her husband. The appellant lived in a townhouse shared
    with several other men and occupied another mans room on the upstairs level.
    During the visit, the appellant told the complainant and her husband that if
    they had smoke, they could do it at his house.

[7]

By May 2014, the complainant was going to the appellants house every
    day to get crack and to smoke it there. The appellant would call a dealer and
    get the drug.

[8]

On May 2, 2014, the complainant went to the appellants home to smoke
    cigarettes and make some noodles. She decided to leave to get money to purchase
    crack and beer. Sometime between 7:00 p.m. and 9:00 p.m., she returned to the
    home with beer and $40 for the crack. The appellant and two other women were
    also there. The appellant took her money and cell phone to call a dealer and
    then left for about 15 minutes to pick up the drugs. All four smoked their own
    drugs and the complainant drank four or five beers. She was high.

[9]

After the two other women left, the complainant said that she did not
    want to stay and that she was going out for cigarettes. She testified that the
    appellant held her, saying she could not go and locked the door. After that, he
    threw her down.

[10]

According to the complainant, she went outside but the appellant
    followed her. He proceeded to push her again, banging her head against a wall
    or door frame and causing an injury to the side of her head. The injury bled
    and required stitches. Photographs of the injury were also taken and entered
    into evidence at trial.

[11]

The complainant testified that the appellant then took her back inside.
    She was scared and intimidated to return, but no physical force was used. She
    asked him to return her cell phone because she wanted to call the police, but
    he refused.

[12]

Given her fatigue, the injury and the appellants refusal to let her
    leave, the complainant testified that she lay down on couch cushions scattered
    on the floor. It was approximately 2:00 a.m. on May 3, 2014. According to the
    complainant, the appellant proceeded to pick up a knife from the dresser next
    to them. He told her that he wanted to sleep with her and pulled down her
    pants. She said she did not want to sleep with him and pushed him.
    Notwithstanding her objections, however, the appellant proceeded to have
    intercourse with her on the floor of his room, extorting compliance with the
    knife pointed at her throat. He was not wearing a condom and ejaculated after
    four or five minutes. He was very angry, high on crack and drunk.

[13]

According to the complainant, the appellant then proceeded to put the
    knife to the side. She waited until she could sneak out in order to make her
    escape. She eventually fled, but the appellant chased her with a beer bottle as
    she went outside and followed her down to the road. The complainant saw another
    woman and asked her to call the police, but she did not.

[14]

The complainant testified that she ultimately decided to return to the
    home of The General to figure out her next steps. She did not sleep or clean
    up. She also did not change her clothing. She called a friend, Mr. Jervis
    Evans, and asked him to come with her to report the assaults to the police.

[15]

Mr. Evans testified that he received a call from the complainant around
    4:00 a.m. on May 3, 2014. He did not immediately go to see her, but waited
    until sometime later that afternoon.

[16]

When Mr. Evans arrived, the complainant made her way to the mall and
    eventually the nearby community police station. At the station, Police
    Constable Tonkin took her report with the assistance of a Punjabi-speaking
    officer. He observed her injury and had officers take her to the hospital.
    Police Constable Tonkin knew the complainant and noted that she was visibly
    upset whereas she was normally personable.

[17]

Police Constable Herren attended at the hospital to take the
    complainants statement. She was tired and upset. Her underwear was seized and
    later found to contain the appellants semen.

[18]

Although the complainant said that she consented to a sexual assault
    kit, she was too tired at the time to have one done. She was asked to go back
    to the hospital the next day to complete the kit, but did not show up at the
    appointed time to get a ride from the police. As a result, no sexual assault
    kit was ever completed.

[19]

After leaving the hospital on May 3, 2014, the complainant went with the
    police to the station to have photographs of her injury taken. The police
    photographs show a new shirt the hospital provided for her.

[20]

Around 9:45 p.m. that same evening, the police attended at the appellants
    residence and arrested him.

(2)

The Trial Proceedings

[21]

The appellant was tried by judge alone and convicted of assault causing
    bodily harm, sexual assault with a weapon, theft under $5,000, and breach of
    probation. He was sentenced to six years imprisonment.

[22]

The trial judge began her detailed reasons for conviction by noting that
    this was a case which turned on the issue of credibility. The appellant did not
    testify. The complainant did. The appellant argued that the complainant was not
    an honest witness and that, even if she were generally credible, the
    contradictions and inconsistencies in her evidence rendered it so unreliable to
    create a reasonable doubt as to his guilt. The trial judge disagreed.

[23]

The trial judge noted that there was no dispute that the complainant had
    an opportunity to make observations on the night of the assault and during the
    early morning hours of May 2 and 3, 2014. That said, the trial judge
    acknowledged that the complainants compromised sobriety required careful
    scrutiny of her evidence. Moreover, she stated that the complainants
    addictions could also affect her memory of the events.

[24]

The trial judge considered several alleged inconsistencies in the
    complainants evidence, noting that some matters alleged to be inconsistent
    were established to be consistent throughout, and that many others were
    inconsequential or had been explained adequately. In the trial judges view,
    the core of the complainants allegations was consistent: she wanted to leave,
    but the appellant would not let her; she attempted to go, but he pushed her
    down and caused her to hit her head; and she said no to sex, but he pointed a
    knife at her throat and forced her to have unprotected vaginal sex.

[25]

In addition, the trial judge made reference to three categories of evidence
    that corroborated the complainants evidence. First, physical evidence observed
    at the hospital and police station corroborated the complainants testimony
    that the appellant had pushed her and injured her head. Photographic exhibits
    also depicted the injury, which looked relatively fresh.

[26]

Second, the appellants semen was found in the complainants underwear
    that was seized by police from her on May 3, 2014. The trial judge noted that
    the complainant testified that she had had consensual sex with the appellant
    six to nine days prior to the incident, but not within the week prior. The
    appellants trial counsel asked the judge to take judicial notice that the
    semen could have been left from this prior sexual contact, but the trial judge
    declined to do so, noting that neither party had asked the complainant whether
    she had changed her underwear since the consensual contact and that such
    reasoning was entirely speculative and without foundation. The trial judge
    further stated that, consistent with
Browne v. Dunn
, the appellant
    should have made this suggestion to the complainant if relying on it for an
    innocent explanation to give her an opportunity to comment. In the trial
    judges view, the presence of the appellants semen in the complainants
    underwear was strongly corroborative of her complaint.

[27]

Finally, the third category of evidence that corroborated the
    complainants evidence was the testimony of Mr. Evans. The trial judge
    explained that Mr. Evans testimony was generally corroborative of the support
    the complainant sought from him in following through with the complaint.

[28]

The trial judge was ultimately satisfied that the Crown had met its
    burden of proof on all the essential elements of each charge. In reaching this
    conclusion, she noted that she subjected the complainants testimony to careful
    scrutiny and found her to be a credible witness. Bearing in mind the totality
    of the evidence, the trial judge was convinced beyond a reasonable doubt that
    the appellant was guilty of all four charged offences. She accordingly
    convicted him and sentenced him to six years imprisonment.

C.

ANALYSIS

[29]

The appellant appeals against his conviction and sentence. Aided by duty
    counsel, he argues that the trial judge misunderstood the evidence. According
    to the appellant, the trial judge, in looking for corroboration of the
    complainants evidence, erred in finding that the presence of the appellants
    semen in the complainants underwear could serve as strong corroboration of the
    complainants story. Given this error, the appellant contends that appellate
    intervention is warranted and a new trial is required.

(1)

The Conviction Appeal

[30]

The appellants conviction appeal centres on the evidence that his semen
    was found in the complainants underwear seized by the police on the day of the
    incident. The appellant argues that this evidence could not act as
    corroboration for the complainants story in the absence of other evidence to
    explain its meaning. More specifically, he contends that the trial judge
    effectively took judicial notice that the complainant would have washed or
    changed her underwear since her last consensual sexual contact with the
    appellant. Furthermore, he submits that the trial judge misapplied the rule in
Browne
    v. Dunn
in her analysis of the underwear evidence. In the appellants
    view, this alleged misunderstanding of the evidence warrants quashing his
    convictions.

[31]

I would reject this submission.

[32]

At the outset, I note that, in determining whether the Crown
    met its burden of proof, all of the evidence must be considered together,
    rather than assessing individual items in isolation:
R. v. Gostick
(1999),
    37 C.C.C. (3d) 53 (Ont. C.A.), at p. 59. Moreover, the trial judges
    appreciation of the evidence, including her assessment of the complainants
    credibility and her use of confirmatory evidence, is entitled to deference on
    review:

see
R. v. A.A.
, 2015 ONCA 558, 327 C.C.C. (3d) 377,
    at para. 121;
R. v. Robinson
, 2009 ONCA 626, 254 O.A.C. 171, at para.
    39.

[33]

In this case, the trial judge was acutely aware of the potential frailties
    in the complainants evidence and the need to subject it to careful scrutiny.
    After considering potential inconsistencies in the evidence, she examined the
    evidence capable of confirming or supporting it. One category of this confirmatory
    evidence was the fact that that the appellants semen was found in the
    complainants underwear that was seized by the police on the day of the
    incident. The parties had filed an agreed statement of fact that the semen was,
    in fact, the appellants. In discussing the evidence, the trial judge wrote:

[81] The complainants evidence is that she
    did not have sex with Mr. Sutherland within the week prior to the incident, or
    on that day, except by force at the time of the alleged offences. Her evidence
    stands, and is not contradicted by any other evidence on this point. Thus,
    the presence of Mr. Sutherlands semen in Ms. R. G.s underwear is some
    evidence capable of corroborating her evidence of sexual contact. The issue of
    proof of lack of consent is separate. However, the fact that the complainant
    previously had sexual contact with the defendant is inadmissible for the
    purpose of supporting the inference that by reason of the sexual nature of that
    activity, the complainant is more likely to have consented to the activity that
    forms the subject-matter of the offence or is less worthy of belief (see
Criminal
    Code
s.276).

[82] Mr. Zbarsky argues that semen has no
    shelf life, and that the Court ought to reject its presence as proof of the
    offence. He posits that it could be left on her underwear from a week before
    and asks the Court to take judicial notice of such. Although the burden rests
    on the Crown, neither party asked the complainant if she changed her underwear
    and such reasoning is entirely speculative in these circumstances and without
    scientific or other foundation. The Crown established the chain of continuity
    of the underwear. In my view, the defence should have made the suggestion to
    the witness if relying on it for an innocent explanation, so that the witness
    would have an opportunity to comment. This is a classic application of the
    principle in
Browne v.

Dunn
. It is a requirement that the
    witness be confronted on an important, significant or essential matter.

[83] The presence of Mr. Sutherlands semen
    located on Ms. R. G.s underwear, which she was wearing at the time of the
    assault, is strongly corroborative evidence of her complaint. [Footnotes
    omitted.]

[34]

I see no merit to the appellants argument that the trial judges
    analysis is flawed because, according to him, she took judicial notice that the
    complainant would have washed or changed her underwear since her last consensual
    sexual contact. A fair reading of her reasons reveals that she did not, as the
    appellant contends, take judicial notice of any such fact. Rather, in the
    absence of supporting evidence, she rightly rejected the appellants request to
    take judicial notice that the semen may have been left on her underwear from
    the prior consensual sexual contact the week before.

[35]

The threshold for judicial notice is high. A court can take judicial
    notice of a fact if it is: (1) so notorious or generally accepted that it is not
    the subject of debate among reasonable persons; or (2) capable of immediate
    demonstration by reference to sources of indisputable accuracy:
R. v. Find
,
    2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48;
R. v. Spence
, 2005 SCC
    71, [2005] 3 S.C.R. 458, at para. 53. In this case, that threshold was not met
    and the trial judge accordingly declined the appellants request to take
    judicial notice of his speculative suggestion that his semen may have been left
    on the complainants underwear from their prior consensual sexual contact. The
    rejection of a request to take judicial notice of one thing, however, does not
    amount to taking judicial notice of another.

[36]

In my view, the trial judge rightly considered the evidence of the
    appellants semen on the complainants underwear as relevant and confirmatory
    of her complaint. As this court has observed, an item of evidence is relevant
    if it renders the fact or facts it seeks to establish slightly more or less
    probable than the fact or facts would be without the evidence:
R. v.
    Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. It does not
    become irrelevant simply because it can be interpreted in more than one way or
    because multiple inferences can be drawn from it. Rather, in such
    circumstances, it falls to the trier of fact  in this case, the trial judge
    to decide on the strength or weight the evidence will receive in light of all
    the other evidence: see
R. v. Underwood
, 2002 ABCA 310, 320 A.R. 151,
    at para. 25; see also
Luciano
, at para. 205.

[37]

Here, the trial judge considered the evidence of the appellants semen
    in the complainants underwear and determined that it strongly corroborated her
    complaint. I see no error in this regard and reject the appellants suggestion
    that, in doing so, the trial judge effectively took judicial notice that the
    complainant must have washed or changed her underwear since her last consensual
    sexual contact with the appellant.

[38]

Similarly, I reject the appellants argument that appellate intervention
    is warranted because the trial judge misapplied the rule in
Browne v. Dunn
.
    That rule

establishes that if counsel seeks to challenge the
    credibility of a witness by calling contradictory evidence, the witness must be
    given the opportunity to address such evidence during cross-examination. The
    nature of the contradictory evidence must at least be put to the witness during
    cross-examination by the counsel who plans to lead it. [
R. v. McCaroll
,
    2008 ONCA 715, 238 C.C.C. (3d) 404]

[39]

The rule in
Browne v. Dunn
is one of fairness, aimed at
    preventing witnesses from being ambushed by not giving them an opportunity to
    state their position with respect to later evidence which contradicts them on
    an essential matter:
R. v. Dexter
, 2013 ONCA 744, 313 O.A.C. 226, at
    paras. 17-18;
R. v. Verney
(1997), 87 C.C.C. (3d) 363 (Ont. C.A.), at
    p. 376. The rules application is not fixed, but lies within the sound
    discretion of the trial judge and depends on the circumstances of each case:
R.
    v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, at para.
80;
R. v. Paris
(2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22.
As
    this court explained in
Quansah
, at para
. 101:

Whether the rule in
Browne v. Dunn
is offended by
    failure to cross-examine on a specific matter in a particular case cannot be
    determined in the abstract. Each case is different. The rule is flexible, not
    rigid. It is rooted in fairness.
Reasonable people may
    differ about on which side of the line a failure to cross‑examine on a
    particular point falls. A trial judge should be accorded considerable deference
    on a decision about its application.
A trial judge has a reserved seat
    at trial. We have a printed record. [Emphasis added.]

[40]

In this case, the trial judge concluded that the appellants failure to
    put to the complainant that she may have still been wearing the underwear from
    her prior consensual sexual contact the week before with him fell within the
    ambit of
Browne v. Dunn
. The appellant did not question the
    complainant in this regard, but rather requested that the trial judge take
    judicial notice that his semen may have been left on the seized underwear from
    the prior consensual sexual contact, a fact that would make it less probable that
    the complainant had been sexually assaulted on the day in question and thus
    undermine her credibility. The trial judge denied the appellants request and
    stated that, if the appellant intended to rely on an argument that the
    complainant had not changed her underwear, he should have put it to her so that
    she would have an opportunity to comment.

[41]

In my view, it was within the trial judges discretion to find that the
    rule in
Browne v. Dunn
applied in this case. At no time did the
    appellant put to the complainant the allegation that his semen was left on her
    underwear from their prior consensual sexual contact and that she had not
    changed her underwear since then. As a result, she had no opportunity to
    respond to the allegation in any meaningful way.

[42]

In any event, the trial judge did not make any negative finding against
    the appellant as a result of his failure to put the allegation to the
    complainant. Rather, she found that the evidence of his semen in the underwear
    was relevant and confirmed the complainants evidence. This falls squarely
    within the trial judges function to weigh the evidence, make findings of fact
    and credibility, and decide the case.

[43]

Moreover, the evidence of the appellants semen must be assessed in the
    context of all the other evidence. The complainants
viva voce
testimony
    was confirmed not only by the semen evidence, but also physical and police
    evidence of her injury and the testimony of Mr. Evans. Notably, temporal
    photographs of the complainants head and scalp area taken by the police
    depicted an injury which looked relatively fresh and was consistent with the
    complainants testimony that the appellant had pushed her down and caused her
    to smash her head. Police Constables Tonkin and Herren also contemporaneously
    observed both the complainants head injury, which required three or four
    stiches, and staining on her shirt, which appeared to be blood. In addition,
    Mr. Evans testimony generally confirmed the support she said she sought from
    him in following through with the complaint.

[44]

Simply put, the appellant has failed to show that the trial judge erred
    in any way warranting appellate intervention. The complainant was consistent on
    the essence of the allegations, which were buttressed by confirmatory evidence
    and supported the convictions. I would accordingly dismiss the conviction
    appeal.

(2)

The Sentence Appeal

[45]

Although the appellant indicated in his notice of appeal that he also
    sought to appeal his sentence, the issue was not pressed at the hearing and
    duty counsel conceded that the sentence imposed fell within the appropriate
    range. I agree. The sentence is not demonstrably unfit and reflects no error in
    principle or disproportionate emphasis on any relevant factor.

D.

DISPOSITION

[46]

For these reasons, I would dismiss the appeal.

Released: DW SEP 13 2016

M. Tulloch J.A.

I agree. David Watt J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Petitclerc, 2016 ONCA 716

DATE: 20160928

DOCKET: C61675

Rouleau, Hourigan and Huscroft JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Douglas Karl Petitclerc
and Barbara Fortier

Defendants (
Appellant
)

Allan Herman, for the appellant

Natalie Marconi, for the respondent

Heard: September 23, 2016

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated January 11, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that the motion judge erred in his interpretation
    of the contract and that properly interpreted, the motion judge ought to have
    concluded that he was an authorized user and is not liable for the charges
    made.

[2]

In our view, the motion judges conclusion that the appellant was not an
    authorized user and was bound by the September 2012 agreement with the bank is
    a mixed finding of fact and law and is owed deference in this court. The
    evidence before the motion judge was that the appellant regularly received
    monthly statements, used the card and made payments of outstanding amounts.
    This and other evidence amply supported the motion judges conclusion. For
    these reasons, the appeal is dismissed. The respondent is entitled to its
    costs. These are fixed at $15,000, inclusive of disbursements and applicable
    taxes.