COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bennett, 2013 ONCA 471

DATE: 20130709

DOCKET: C54496

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Horaine Bennett

Applicant/Appellant

Catriona Verner, for the applicant/appellant

Joan Barrett, for the respondent

Heard: July 4, 2013

On appeal from the sentence imposed by Justice John C. Murray
    of the Superior Court of Justice on March 10, 2011, with reasons reported at
    2011 ONSC 1413.

ENDORSEMENT

[1]

During an eight-day period, the appellant committed three home invasions
    at gunpoint. In the course of committing these robberies, he physically
    assaulted several of the residents and, in two of the home invasions, he forced
    the young adult daughters who were in the home to fellate him at gunpoint and
    within earshot   and in one case, in sight  of their parents. Following his
    conviction for these offences, he was declared a dangerous offender and the
    trial judge sentenced him to an indeterminate sentence.

[2]

The appellant appeals on the basis that the trial judge materially
    misapprehended the expert evidence as it related to his level of risk and his amenability
    to treatment. Absent these errors, the appellant argues, the trial judge would
    not have concluded that the appellant met the test for a dangerous offender
    designation and would not have imposed an indeterminate sentence.

[3]

The appellant further submits that the trial judge erred in sentencing
    him under the
Criminal Code
regime that existed prior to the July 2008
    amendments.

[4]

Finally, the appellant seeks to admit fresh evidence and argues that it
    supports his claim that he is a suitable candidate for a long-term offender
    designation.

[5]

We would not allow the appeal.

[6]

The trial judge did not, as the appellant alleges, misapprehend the
    evidence of the Crowns expert Dr. Hucker. In his summary of the evidence, the
    trial judge accurately noted that Dr. Huckers overall opinion was that the
    appellant posed a moderate to high risk of sexual or violent recidivism. The
    trial judge also correctly observed that the actuarial risk assessment
    instruments used by both Dr. Hucker and the appellants expert, Dr. Gojer, indicated
    that the appellant presented a high risk to reoffend violently and/or sexually.
    In fact, one of the risk assessment instruments, the SORAG, placed the
    appellant in a group where 100% of the individuals in the sample group reoffended
    violently within ten years.

[7]

The fact that, in some parts of his reasons, the trial judge refers to
    Dr. Hucker as having found that the appellant poses a high risk of reoffending
    is of no moment. When the reasons are read as a whole, it is apparent that the
    trial judge did not misapprehend Dr. Huckers evidence. On this record, there
    was ample basis for finding that the appellant was a dangerous offender.

[8]

We are also of the view that the trial judge did not misapprehend the
    evidence related to the appellants amenability to treatment. Although Dr.
    Gojer opined that the appellant showed potential to engage in and respond to
    treatment, this was, as found by the trial judge, no more than an indication of
    potential. The trial judge carefully considered whether there was a reasonable
    possibility of eventual control of the appellants risk in the community, as
    required for a long-term offender designation. His finding that the evidence fell
    far short of supporting this conclusion was well grounded, and his decision not
    to make a long-term offender order is entitled to deference.

[9]

The appellant then argues that the trial judge erred in sentencing him
    under the dangerous offender regime in place before July 2008. The appellant
    explains that, in the particular circumstances of this case, applying the new
    regime may have been beneficial to him, as it may have led the trial judge to use
    his discretion to impose a less severe sentence than an indeterminate term.

[10]

We
    disagree. The appellants trial counsel requested that he be sentenced under
    the former regime, as that regime was more beneficial. This is what the trial
    judge did. In any event, assuming without deciding that both regimes ought to
    have been considered and applied, the result would have been the same.

[11]

Although
    the tests are undoubtedly different, in the instant case, there is no
    meaningful distinction between the trial judges application of the test for
    finding that an offender is a long-term offender under the old regime (i.e.
    that there is a reasonable possibility of eventual control of the risk in the
    community) and the test for imposing a determinate sentence under the new
    dangerous offender regime (i.e. that there is a reasonable expectation that a
    lesser measure  will adequately protect the public against the commission by
    the offender of murder or a serious personal injury offence). The appellant
    meets neither standard, and the trial judge therefore correctly found that he
    was not entitled to a long-term offender designation; concomitantly, he is also
    not entitled to a determinate sentence. In the circumstances of this case,
    there is no meaningful distinction between the need to guard against the threat
    of harm in the old regime, as opposed to guarding against murder or a serious
    personal injury offence as per the new regime. This is because the trial judge
    found beyond a reasonable doubt that the appellant was likely to cause death
    or injury or severe psychological damage through failure in the future to
    restrain his behaviour. Given the seriousness of the predicate offences, the
    appellants history, and the expert evidence, there can be no doubt that there
    is both a reasonable expectation and a reasonable possibility of harm and that
    that harm falls within the broad definition of a serious personal injury offence.

[12]

We
    turn lastly to the fresh evidence. At best, that evidence suggests that Dr.
    Gojer believes that there exists a potential for treatment. In our view, the
    evidence does not go so far as to show that the appellant can be rehabilitated
    within a fixed period of time, let alone the period required for a long-term
    offender designation. As a result, even if the fresh evidence were admitted, it
    would not have affected the result.

[13]

For
    these reasons, the application for leave to file fresh evidence is denied and
    the appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boston, 2013 ONCA 498

DATE: 20130729

DOCKET: C51713

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renagi Boston

Appellant

Russell Silverstein, for the appellant

Michael Medeiros, for the respondent

Heard: May 16, 2013

On appeal from the convictions entered by Justice S. Gail
    Dobney of the Ontario Court of Justice on July 22, 2009.

Tulloch J.A.:

A.

OVERVIEW

[1]

Following a chase by police, the appellant was arrested on an
    outstanding warrant. During the officers attempt to effect the arrest, a
    scuffle ensued and injuries were occasioned to one of the officers, PC
    Steffler. The appellant also suffered significant injuries including a broken
    nose and a hematoma in his scrotal area.

[2]

The appellant was charged with assault causing bodily harm to PC
    Steffler and assault of PC Steffler with the intent to resist arrest. At trial,
    the appellant brought a
Charter
application for a stay of proceedings and
    alleged that his s. 7 rights were infringed because of the excessive force used
    by police during his arrest.

[3]

In her reasons for judgment, the trial judge preferred the version of
    the events given by the officers, dismissed the appellants
Charter
application,
    and convicted the appellant of both offences.

[4]

The appellant appeals from his convictions. Although the appellant
    raises a number of issues in his factum, the appellants principal submission
    is that the trial judge erred by misconstruing the burdens on the
Charter
application
    and the trial proper.

[5]

For the reasons that follow, I have concluded that the convictions
    should be set aside and a new trial ordered on the basis of the appellants
    principal submission. In these circumstances, it is not necessary that I
    address the balance of the issues raised by the appellant.

B.

BACKGROUND

(1)

Ms. Braithwaites
    version of events

[6]

The trial proceeded as a blended
voir dire
and trial. The
    testimony from the officers, and the evidence from the defence witness, Ms.
    Braithwaite, was largely uniform. In essence, the appellant fled from the
    police, was tackled by one officer and then tasered as he attempted to scale a
    fence. Ms. Braithwaites account of what happened after the police subdued the
    appellant differed from the officers accounts. Ms. Braithwaite testified that,
    after the police had subdued the appellant, she observed an officer elbow the
    appellant repeatedly in the face and kick him in the groin. Immediately after,
    Ms. Braithwaite heard the appellant yell, he kicked me in my balls.

(2)

The officers version
    of events

[7]

PC Steffler and two other officers testified that on July 3, 2008, they
    were on uniformed bike patrol and were looking for the appellant to arrest him
    on an outstanding warrant for assault.

[8]

The officers testified that after they approached the appellant and
    touched his forearm, he fled on foot. They gave chase on bicycles, eventually
    tackling the appellant to the ground.

[9]

The appellant freed himself and continued running. When he tried to get
    over a fence, an officer fired a taser gun at him. The officers pulled the
    appellant to the ground, but he continued to struggle and thrash and tried to
    slip his lower body under the fence.

[10]

One
    of the officers, Sgt. Tobin, observed the other officers punching the appellant
    while he was on the ground. Another officer again fired the taser gun and the
    officers eventually subdued the appellant and handcuffed him.

(3)

The trial judges
    reasons

[11]

The
    trial judge identified at the outset of her reasons that two of the major
    issues before her were whether the appellants
Charter
rights had been
    breached and whether the offences were proven beyond a reasonable doubt. The
    issue of excessive police force was relevant to both these inquiries.

[12]

The
    trial judge noted that as between the testimony of the officers and that of Ms.
    Braithwaite, there was a live controversy about the use of force applied in
    effecting the arrest of the appellant.

[13]

In
    making her credibility findings, the trial judge reasoned that any
    inconsistencies in the officers testimony could be explained by the fact that their
    observations were made in the context of an intense physical struggle. The
    trial judge concluded that Ms. Braithwaite, on the other hand, had been less
    than candid with the court. Accordingly, the trial judge preferred the evidence
    of the officers and, where there was any inconsistency between the officers
    evidence and Ms. Braithwaites, she preferred the former.

[14]

As
    a result, the trial judge rejected the assertion that the officers kicked the
    appellant in the testicles while he was handcuffed on the ground. Instead, she
    found that the injury to the appellants testicle was consistent with being
    pulled off the fence. The trial judge concluded that the appellant deliberately
    grabbed PC Stefflers finger and snapped it back, thereby assaulting him with
    the intent to resist arrest and causing the officer bodily harm. She further
    found that the appellant bit PC Stefflers finger, causing the officer to
    reflexively strike back in self-defence by hitting the appellant in the head.
    In the circumstances, the trial judge found that the appellants s. 7
Charter
rights were not breached.

[15]

Turning
    to the charges themselves, the trial judge then stated:

Since I do not find a
Charter
breach, and pursuant to
    the findings of fact that I made above, it follows that I find the accused
    guilty of both charges as laid.

(4)

Submissions of the
    parties

[16]

The
    appellant submits first, that the trial judge treated the defence witness Ms. Braithwaites
    evidence as unworthy of belief simply because it differed from that of the
    police officers. The appellant points to specific instances to demonstrate that
    the trial judge misapprehended or, at the very least, did not take a robust or
    thoughtful approach to considering Ms. Braithwaites evidence.

[17]

The
    appellants second and principal submission is that the trial judge
    misconstrued the burdens of proof applicable to her conclusions on the
Charter
application and the findings of guilt on the offences for which the
    appellant was tried.

[18]

The
    respondent, on the other hand, argues that the appellant has not demonstrated
    that the trial judge misapprehended any of Ms. Braithwaites evidence to such
    an extent that would warrant appellate intervention.

[19]

With
    respect to the issue of misconstruing the burdens in the blended
voir dire
and
    trial, the respondent notes that the trial judge heard the submissions of
    counsel on both the
Charter
application and the trial at the same
    time. Accordingly, her reasons must be read as a whole and in the context of
    the entire record. In the Crowns submission, the trial judges reasons
    demonstrate that she knew exactly how and to what standard the Crown would have
    to prove its case.

C.

ANALYSIS

(1)

The
    applicable burdens of proof

[20]

As
    I indicated earlier in these reasons, the trial proceeded as a blended
voir
    dire
and trial. Accordingly, the Crown and defence made submissions on
    both the
Charter
application and the trial proper contemporaneously.

[21]

The
    trial judge rejected Ms. Braithwaites evidence and reached her ultimate
    conclusion on the guilt of the appellant in one paragraph:

Since I do not find a
Charter
breach, and pursuant to
    the findings of fact that I made above, it follows that I find the accused
    guilty of both charges as laid.

[22]

In
    my view, the trial judge erred by finding the guilt of the appellant in this
    manner. The trial judges ultimate conclusion gives no indication that she
    applied the proper standard of proof.

[23]

In
    a
Charter
application, the burden of proof is on the defence to
    establish a breach on a balance of probabilities.  In a criminal trial, the
    burden of proof is on the Crown to establish the guilt of the accused beyond a
    reasonable doubt.

[24]

In
    a trial with a blended
voir dire
, the trial judge is still required to
    separate the burdens and apply the appropriate onus in disposing of both the
Charter
application and the trial proper.

[25]

To
    determine whether the appellants guilt had been established, the trial judge
    was still required to consider whether, on all of the evidence, the elements of
    the offences charged had been proven beyond a reasonable doubt. From the
    paragraph quoted above and the balance of her reasons, I am not satisfied that
    this is the approach the trial judge took. As this court stated in
R. v.
    Bucik
, 2011 ONCA 546, 87 C.R. (6th) 309, at para. 33: [t]he lesson from
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742, is that assessments of the credibility or
    reliability of exculpatory evidence in a criminal case do not raise either/or
    choices, but
must reflect the application of the burden of proof placed on
    the Crown to prove its case beyond a reasonable doubt
 (emphasis added).

[26]

Even
    though she completely rejected Ms. Braithwaites evidence on the
voir dire
,
    the trial judge should have made it clear that, at the
voir dire
stage
    of the proceedings, the defence had not discharged its onus in establishing a
Charter
breach.

[27]

Having
    found that there was no
Charter
breach, in applying the evidence from
    the
voir dire
to the trial proper, the trial judge was then required
    to ask herself whether, on all the evidence, she was satisfied that the Crown
    had discharged its onus in establishing the guilt of the accused on the
    offences charged, beyond a reasonable doubt. In failing to do so, the trial
    judge committed a legal error.

[28]

I
    cannot conclude from her reasons that she properly undertook this exercise and
    applied the correct burden of proof in order to convict the appellant of the
    offences charged.

[29]

Accordingly,
    the appellants convictions cannot stand. I would allow the appeal, set aside
    the convictions and order a new trial.

Released: DW  July 29, 2013

M.H. Tulloch J.A.

I agree. D. Watt J.A.

I agree. P.D. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2013 ONCA 467

DATE: 20130709

DOCKET: C47282

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Cook

Appellant

William Cook, in person

Breese Davies, duty counsel

Elise Nakelsky, for the respondent

Heard: July 4, 2013

On appeal from the convictions entered by Justice Paul U.
    Rivard of the Superior Court of Justice, sitting with a jury, on May 13, 2005,
    and the sentence imposed by Justice Rivard, on November 22, 2006.

By the Court:

[1]

The appellant was convicted of two counts of criminal harassment and one
    count of threatening death pertaining to Bernard Lenouvel, the appellants
    mothers common law spouse, and Laura Cook, the appellants sister, as well as
    one count of failing to comply with a probation order that required the
    appellant to keep the peace and be of good behaviour.  He was acquitted of
    additional counts of criminal harassment and threatening death in respect of his
    mother, Susan Cook.

[2]

On sentencing, the Crown applied under s. 753.1 of the
Criminal Code
to have the appellant designated a long term offender.  The trial judge granted
    the Crowns application, declared the appellant to be a long term offender and,
    after credit for 26 months and 10 days pre-sentence custody, imposed a
    suspended sentence and a 10-year community supervision order.

[3]

The appellant appeals from his convictions and sentence.

A.      Conviction Appeal

[4]

The appellant raises three grounds in support of his conviction appeal.

(1)

Evidence of Bad Character

[5]

The appellant argues that the trial judge erred by permitting the jury
    to consider evidence of his prior misconduct, adduced during the complainants
    testimony.

[6]

We would not give effect to this argument in this case for several reasons.
    First, the appellant acknowledges that certain of the evidence at trial
    relating to his prior misconduct was both admissible and inevitable.  We agree.

[7]

The appellants mother, Susan Cook, has been in a common law
    relationship with Bernard Lenouvel for more than 20 years.  During the summer
    of 2004, one of the appellants sisters, the complainant Laura Cook, lived with
    her child at Susan and Bernards home.

[8]

The evidence revealed that the appellant had a long history of
    tumultuous and acrimonious behaviour in respect of his family members,
    including Bernard and Laura, both of whom testified at trial, and Susan, who
    did not testify at trial.  In particular, Bernard and Laura testified that in
    the spring and summer of 2004, the appellant continually harassed, threatened
    and badgered them, together with Susan, by incessant telephone calls, sometimes
    numbering 20 to 30 calls per day.  They said that if his mother answered the
    telephone, the appellant yelled at her and made demands.  If Laura or Bernard
    picked up the telephone, the appellant frequently threatened them, called them
    derogatory names, and generally engaged in abusive behaviour.

[9]

On August 24 and 25, 2004, the appellants behaviour took a serious turn
    for the worse.  Laura testified that on August 24, the appellant telephoned the
    family home 30 or 40 times.  She said that during one of these telephone calls,
    the appellant threatened to kill her and assault their mother.  Bernard went to
    the police station to obtain police assistance to escort Susan out of the house
    because it was feared that the appellant was coming to the house.  While he was
    at the police station, the appellant arrived at the family house.  Laura was
    home with her daughter.  The appellant banged on the door and rang the doorbell
    for approximately 30 minutes.  Laura, fearful of the appellant, hid in the
    basement with her daughter and called Bernard on his cell phone.  The police
    were dispatched to the house, but the appellant had left by the time they
    arrived.

[10]

The
    following day, the appellant repeatedly telephoned the Lenouvel residence.
    Bernard testified that during a telephone call that day, the appellant
    threatened to slit Bernards throat.  The appellant was arrested a few days
    later.  He continued to call the family frequently from jail, until a few days
    before his trial.

[11]

In
    the context of this alleged behaviour, the evidence of the appellants
animus
and pattern of abusive conduct towards his family members was properly admitted
    as part of the narrative concerning his antagonistic history and relationships
    with Bernard, Laura and Susan.  It formed the backdrop for the events of August
    24 and 25, 2004, which gave rise to the offences charged.  No objection was
    taken by the defence to the admission of this evidence at trial.

[12]

Second,
    much of the complainants evidence, now described by the appellant as bad
    character evidence that should not have been left with the jury, was
    acknowledged by the appellant during his own trial testimony, including
    evidence bearing directly on the essential elements of the offences charged.

[13]

In
    his testimony, the appellant acknowledged that he persistently called Susan and
    Bernards residence on the dates in question.  He admitted that he became
    angry, went to his familys house, banged on the door and used the doorbell for
    a lengthy time.  Although he denied threatening Bernard and Laura, he conceded
    his animosity towards them and his use of obscenities when referring to or
    speaking with them.  He also admitted that when he spoke by telephone with Bernard
    on August 25, he might have said anything about his family.

[14]

Third,
    at its core, the appellants complaint is that the evidence of his prior
    misconduct went too far, impermissibly straying into non-essential and
    prejudicial areas.  This claim is belied by the theory and conduct of the
    appellants defence at trial.

[15]

During
    cross-examination, defence counsel mounted a vigorous attack on the
    complainants credibility and reliability.  In so doing, she raised numerous
    prior family incidents, including many involving past misconduct by the
    appellant, with the apparent objective of demonstrating that the appellants
    family was attempting to keep him away from his mother.  The transcript of the
    complainants cross-examinations is replete with questions by defence counsel
    that elicited responses tending to establish prior discreditable conduct by the
    appellant.  Thus, much of the impugned evidence was elicited by the defence for
    its own purposes.

[16]

In
    these circumstances, we agree with the Crowns submission that, having embarked
    on this defence strategy and having developed it at trial in a way that
    elicited evidence of bad character, the appellant cannot now complain that the elicited
    evidence should not have been admitted.

[17]

We
    also note that on at least one occasion during Bernards testimony, the trial
    judge delivered a blunt mid-trial instruction, telling the jury to disregard
    Bernards hearsay evidence that the appellant had reportedly broken one of his
    sisters car windows.  The trial judges instruction clearly identified the
    evidence in question and properly explained both the permissible and
    impermissible uses of the evidence to the jury.

[18]

We
    appreciate that the appellant complains, particularly, about Lauras testimony that
    she had been sexually abused by him as a child.  This evidence must be viewed
    in context.  Laura testified that she took the appellants threats seriously,
    that she was afraid of him and that she believed that he was capable of harming
    her and her mother.  When asked about the basis for this belief, Laura
    indicated that Since I was a child Ive been physically abused by that man,
    and sexually.

[19]

Defence
    counsel did not object to this evidence.  Instead, during her cross-examination
    of Laura, counsel pursued Lauras claim of childhood abuse.  When the
Crown
    objected
, the trial judge stated, The issue here is not whether or not
    this witness has been molested.  The issue here is criminal harassment, threats
    and breach of probation.  Whether or not she was sexually abused at a young age
    is not relevant in this action.  He then instructed defence counsel to move on
    in her questioning.

[20]

In
    all these circumstances, the admission of the challenged bad character evidence
    does not constitute reversible error.  Much of the impugned evidence was
    necessary narrative evidence of the appellants relationship and dealings with
    his family; other aspects of the evidence were conceded by the appellant
    himself; and much of the evidence was elicited or developed for the purpose of
    the appellants own defence.

(2)

Instructions Regarding Bad Character Evidence

[21]

The
    appellant next argues that the trial judge erred by failing to properly
    instruct the jury on the permissible inferences that could be drawn from the
    evidence of his prior misconduct.  Again, on the particular facts of this case,
    we disagree.

[22]

It
    is true that the charge contains no formal limiting instruction on the
    permissible and impermissible uses of bad character evidence.  However, a
    formal limiting instruction is not required in every case where evidence of
    prior misconduct by an accused has been led.  In our view, it was unnecessary
    here for several reasons.

[23]

In
    addition to the trial judges mid-trial instruction, described above, the trial
    judge cautioned the jury:

William Cook is charged with criminal harassment and
    threatening death.  You are trying him for those offences.  The real issue for
    you to decide in this case is whether the offences charged ever actually took
    place.  You have heard evidence that Mr. Cook has done other things that may be
    similar to those for which he is being charged in this case.  You are not trying
    Mr. Cook for that conduct; be careful not to jump to the conclusion that just
    because the acts appear similar, the offences charged must have taken place.
    Whether or not you use the evidence of the other conduct to help you decide
    this case, you must not find Mr. Cook guilty of an offence unless Crown counsel
    has satisfied you of all the essential elements of that offence beyond a
    reasonable doubt.

This caution alerted the jury to the proper focus of its
    task.

[24]

The
    appellant has a history of violence and a lengthy criminal record, including
    other convictions for criminal harassment and threatening death, evidence of
    which was adduced during the appellants testimony.  Further, as we have said,
    the appellant himself testified about other aspects of his prior misconduct.
    The impugned bad character evidence was part of the contextual narrative
    concerning the relationships within the appellants family and the volatility
    of those relationships, much of which was adduced by the defence.

[25]

In
    these circumstances, in our opinion, there was no realistic possibility that
    the challenged evidence would be used improperly by the jury to reason that the
    appellant was guilty of the offences charged.  Indeed, given the way in which
    this trial unfolded, a formal instruction on the permissible and impermissible
    uses of bad character evidence might well have unnecessarily emphasized the
    evidence of the appellants discreditable conduct, to his potential detriment.
    See
R. v. Beausoleil
, [2011] O.J. No. 2819 (C.A.).

[26]

Finally,
    we note that defence counsel did not request a formal limiting instruction.
    Nor did she object to the charge on this issue.  This supports the conclusion
    that the instruction contended for on appeal was unnecessary in the
    circumstances of this case.

(3)

Alleged Instruction Regarding Similar Act Evidence

[27]

The
    appellants final ground of appeal is that the trial judge erred by permitting
    the jury to use the evidence on the counts on the indictment as similar act
    evidence in relation to one another.

[28]

For
    convenience, we repeat what the trial judge told the jury:

William Cook is charged with criminal harassment and
    threatening death.  You are trying him for those offences.  The real issue for
    you to decide in this case is whether the offences charged ever actually took
    place.  You have heard evidence that Mr. Cook has done other things that may be
    similar to those for which he is being charged in this case.  You are not
    trying Mr. Cook for that conduct; be careful not to jump to the conclusion that
    just because the acts appear similar, the offences charged must have taken
    place.
Whether or not you use the evidence of the other conduct to help
    you decide this case, you must not find Mr. Cook guilty of an offence unless
    Crown counsel has satisfied you of all the essential elements of that offence
    beyond a reasonable doubt
.  [Emphasis added.]

[29]

The
    trial judge continued:

Mr. Cook is charged with six offences.
Each charge
    requires its own proof
.  The real issue for you to decide in this case is
    whether the offences alleged by each complainant ever actually took place.  Be
    careful to not jump to the conclusion that if one complainant is telling the
    truth, the others must be telling the truth as well.
Nor should you jump
    to the conclusion that because the complainants alleged similar conduct, they
    all must have occurred if any one of them is proved.  It is up to Crown counsel
    to prove each charge independently of the other.  You may, but do not have to
    find that there is a pattern of similar behaviour that confirmed each
    complainants testimony as to what took place
.  It is for you to say.

In considering this evidence, bear in mind the relationship
    between Mr. Cook and the complainants, as well as the circumstances of each of
    these situations.  Whether or not you
use the evidence of any of the
    complainants to help you decide whether any other complainant is telling the
    truth, you must not find Mr. Cook guilty of any offence unless Crown counsel
    has satisfied [you] beyond a reasonable doubt of all of the essential elements
    of that offence
.  [Emphasis added.]

[30]

The
    appellant argues that these instructions failed to direct the jury as to the
    manner in which similar act evidence may be used.  He says that these
    instructions were deficient because they (1) failed to identify which charges
    could be used as similar act evidence in relation to specific other charges,
    (2) failed to tell the jury the purpose for which the charges could be used as
    evidence, and (3) failed to warn the jury of the dangers of impermissible
    propensity reasoning.

[31]

We
    disagree.  This was not a similar act case.  It did not involve multiple
    offences against multiple victims with the admission of similar act evidence
    outside the scope of the indictment.  The Crown brought no similar act
    application.  Rather, as the Crown contends, the evidence of the appellants
    other misconduct was admissible in its own right for the purposes we have
    already described.  The allegedly similar acts were not extrinsic to the
    offences charged.  Rather, the evidence regarding the appellants prior
    misconduct and his relationships with his family was relevant to all the
    counts.  It was also relevant to demonstrating his
animus
towards the
    complainants.

[32]

Further,
    the trial judge was careful to warn the jury that each charge requires its own
    proof and that the Crown was obliged to prove each charge independently of
    the other.  He also twice told the jury that it must not find the appellant
    guilty of any offence unless Crown counsel has satisfied [you] beyond a
    reasonable doubt of all of the essential elements of that offence.  These were
    proper and, in the circumstances, adequate instructions.

(4)

Fresh Evidence

[33]

The
    Crowns case against the appellant was overwhelming.  As we have said, the
    appellant admitted most of the essential elements of the offences charged
    during his own testimony at trial.  Arguably, even on his own evidence, the
    offence of criminal harassment in respect of both Laura and Bernard was made
    out.  We emphasize that the appellant admitted to speaking with Laura and
    Bernard at the time of the alleged death threats and, further, that at least in
    his discussion with Bernard, he might have said anything about his family.

[34]

The
    fresh evidence sought to be introduced by the appellant on appeal does not
    alter this conclusion.  The fresh evidence does not relate to evidence at trial
    that was critical to the Crowns case.  Indeed, the trial judge made no mention
    in his charge of the trial testimony of the police officer whose
    creditworthiness is now sought to be undermined by the fresh evidence.
    Moreover, the evidence of a second police officer, who heard the appellant
    utter the same statements as the officer whose credibility is now impugned, was
    also led at trial.

B.      Sentence Appeal

[35]

The
    appellant challenges his long term offender designation, particularly the
    10-year community supervision order imposed by the trial judge.  He submits that
    he was denied the right to make submissions on whether the requirements of the
    long term offender provisions of the
Code
had been met, specifically,
    whether the offence of criminal harassment constitutes a serious personal
    injury offence as defined under s. 752 of the
Criminal

Code
.
    As a result, the appellant contends, he was denied procedural fairness at his
    sentencing hearing.

[36]

We
    accept this submission.  The record reveals that from the outset of the Crowns
    long term offender application, defence counsel signalled her intention to
    argue that none of the offences charged constituted a serious personal injury
    offence.  While other issues were addressed throughout the ensuing multiple
    court appearances before argument of the Crowns application, argument of this
    threshold issue did not take place.  Yet, the transcript reveals that when the
    trial judge eventually delivered his ruling, after a two-month adjournment of
    the proceedings, on whether the criminal harassment convictions constituted
    serious personal injury offences, he mistakenly believed that defence counsel
    had already made her submissions on this issue.  He therefore denied her request
    for an opportunity to address the issue.

[37]

With
    respect, this was an error.  Neither the Crown nor the defence had made
    submissions on this issue before the trial judges ruling.  The appellants
    right to hearing fairness was thereby fatally compromised.  Consequently, the
    sentence imposed as a result of the flawed sentencing hearing, including the
    appellants long term offender designation and community supervision order,
    cannot stand.

[38]

The
    Crown and duty counsel acknowledge that there is a full record before this
    court regarding the Crowns long term offender application.  They also agree
    that, in the somewhat unusual circumstances of this case, this court is positioned
    to determine whether the offences charged meet the statutory definition of a
    serious personal injury offence and, if so, to rule on the Crowns long term
    offender application and impose a fit sentence.

[39]

The
    sentencing judge ruled that the criminal harassment charges of which the
    appellant was convicted are serious personal injury offence[s] within the
    meaning of s. 752 of the
Code
.

[40]

We
    agree.  Under s. 752, the phrase serious personal injury offence is defined
    to include an indictable offence, other than certain specified offences that do
    not apply here, involving conduct endangering or likely to endanger the life
    or safety of another person or inflicting or likely to inflict severe
    psychological damage upon another person, for which the offender may be
    sentenced to imprisonment for ten years or more.

[41]

The
    evidentiary record confirms that the appellants conduct, in the context of his
    criminal harassment convictions, involved conduct likely to inflict severe
    psychological damage upon another person, within the meaning of the statutory
    definition of serious personal injury offence.  The pertinent evidence
    demonstrated that:

(1)

the
    appellant abused his family for many years, necessitating repeated involvement
    of the police;

(2)

Laura
    feared the appellant and, on August 24, was sufficiently frightened of him that
    she hid from him, with her daughter, in the basement of the family home;

(3)

the
    appellant used obscene, menacing and aggressive language in his calls with
    Laura, including on the dates relevant to the indictment, going so far as to
    threaten her death and the assault of their mother;

(4)

as a
    result of the appellants conduct, Laura was scared of him, anxious, and
    believed that he was capable of harming her and their mother;

(5)

the
    aggressiveness of the appellants threats progressed over time; and

(6)

the
    appellant threatened to slit Bernards throat.

[42]

We
    have no hesitation in concluding that the appellants harassing conduct
    involved conduct likely to inflict severe psychological damage on Laura.
    Indeed, it would be astounding if it did not.  There is ample evidence on this
    record to support the conclusion that the criminal harassment of which the
    appellant was convicted in respect of Laura constituted a serious personal
    injury offence.  The appellants persistent and threatening conduct was
    neither trivial nor
de minimis
.  To the contrary, it demonstrated a
    likelihood of the appellant inflicting severe psychological harm, if not
    physical violence, on Laura.  This meets the statutory definition of serious
    personal injury offence.

[43]

The
    issue, therefore, is what sentence should appropriately be imposed at this
    juncture.  We are satisfied that a sentence identical to that imposed by the
    trial judge is fit, given the appellants circumstances and the circumstances
    of these offences.

[44]

Accordingly,
    we would grant leave to appeal sentence and allow the sentence appeal.  We
    would not interfere with the suspended sentence imposed, or the appellants
    long term offender designation.  However, as part of the 10-year community
    supervision order imposed by the trial judge has now run its course, we would
    impose a community supervision order for that number of years remaining on the
    original 10-year community supervision order imposed by the trial judge.  If
    the Crown and duty counsel are unable to agree on the unexpired term of that
    original order, the parties may request an opportunity, through the Registrar
    of this court, to make further brief, written submissions on that issue.

C.      Disposition

[45]

Accordingly,
    the conviction appeal is dismissed.   The sentence appeal is allowed in
    accordance with these reasons.

Released:

JCM                                                          J.C.
    MacPherson J.A.

JUL -9 2013                                     E.A.
    Cronk J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edwards, 2013 ONCA 460

DATE: 20130705

DOCKET: C53820

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Treena Edwards

Appellant

Andrew Furgiuele, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: June 21, 2013

On appeal from the conviction entered on April 6, 2010 by
    Justice W.L. Whalen of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant, Treena Edwards, was convicted of assault causing bodily
    harm, criminal negligence causing bodily harm, failing to provide the
    necessaries of life, and failing to comply with a probation order.  The victim
    was her two-and-a-half month old son.  During a long interview at the police
    station, the appellant eventually made several inculpatory statements.  She
    admitted that she shook her son and punched him twice in the back of the head.

[2]

The admissibility of the appellants statements was a key issue at
    trial.  She sought to exclude them on the ground that they were not made
    voluntarily and were obtained in breach of her right to counsel under s. 10(b)
    of the
Charter
.  In thorough and detailed reasons, the trial judge
    ruled that the appellants statements were voluntary and that she was not
    detained when she made them.

[3]

On appeal, the appellant does not challenge the trial judges ruling on
    voluntariness.  She challenges only his s. 10(b) determination.  She submits
    that he erred in finding that she was not detained when she made her
    inculpatory statements.

[4]

The police interviewed the appellant on October 26, 2005, from 11:20
    a.m. to 4:57 p.m.  She was interviewed by three police officers  West,
    Sparling and Zambusi.  She made her inculpatory statements when Zambusi
    interviewed her between 4:29 and 4:41 p.m.  She accepts that she was not
    detained up until the time Zambusi began his interview of her.  However, she submits
    that her status changed either at the outset of Zambusis interview or when he
    said to her before you and I leave one another were both gonna have the
    truth.  She argues that as Zambusi did not advise her of her right to counsel
    before she made her inculpatory statements, her s. 10(b) rights were infringed
    and her statements ought to have been excluded.

[5]

We do not accept the appellants submission.  In our view, the trial
    judge did not err in finding that the appellant was not detained when she spoke
    to Zambusi.  To make out a detention, the appellant had to show that she
    submitted or acquiesced in the deprivation of her liberty and reasonably
    believed that the choice to do otherwise did not exist.  See
R. v. Grant
,
    [2009] 2 S.C.R. 353, at para. 28.

[6]

The appellant did not meet this test.  The circumstances leading up to her
    interview with Zambusi do not support her claim that she was detained when she
    made her admissions.  These circumstances include the following:

·

The appellant and her husband had brought their son to the
    hospital early that morning.  At 9:20 a.m. Sparling advised them that the
    police were investigating an aggravated assault and that as parents they may be
    responsible.  Sparling then gave the appellant her s. 10(b) right to counsel
    and cautioned her.  She said that she understood her right. She was then left
    alone at the hospital.

·

The appellant went to the police station voluntarily.

·

At the beginning of her interview, West cautioned the appellant
    again and reminded her of her
Charter
rights.  She acknowledged her
    right to speak to a lawyer but said that she did not wish to do so.

·

During her interview by Sparling and West, the appellant was left
    alone several times for lengthy periods, made telephone calls to her mother and
    to the hospital, and never suggested that she was detained.

·

At 4:22 p.m.  seven minutes before Zambusi entered the interview
    room  the appellant tried to call a lawyer (though the number was busy).  West
    then told her expressly that she was free to leave if she wished.  She decided
    to stay, not because she felt compelled to do so, but because she wanted to see
    her husband.

·

Thus, even though the appellant was not detained before Zambusi
    entered the interview room, she had twice been given her right to counsel, had
    tried to exercise that right, and had been told she could leave the police station.

·

The appellants previous criminal record showed that she had some
    knowledge of the criminal justice system and of her
Charter
rights
    when speaking to the police.

[7]

In the light of these considerations, we are not persuaded that the
    appellants status changed when Zambusi began his interview.  She was not
    detained beforehand, and nothing occurred at the outset of his interview of her
    to suggest that she reasonably believed she was detained.

[8]

Nor are we persuaded that Zambusis words in the course of the interview
     before you and I leave one another were both gonna have the truth  gave
    rise to a detention.  Standing alone these words might suggest that the
    appellant was no longer free to leave.  But, viewed in the context of the
    appellants entire encounter with the police, these words do not support a
    detention.  These words were simply Zambusis way of trying to get the
    appellant to be truthful about how her sons injuries came about, and we are
    satisfied that is how the appellant understood them.

[9]

Accordingly, the appellant has not shown that the trial judge erred in
    his s. 10(b) ruling.  Finally, we note that though the trial judge relied on
    the appellants inculpatory statements to convict her of assault causing bodily
    harm, he did not rely on those statements to convict her of negligence causing
    bodily harm or failing to provide the necessaries of life.

[10]

The
    appeal is dismissed.

John Laskin J.A.

M.H. Tulloch J.A.

G.R. Strathy J.A.

Released: July 05, 2013


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hasan, 2013 ONCA 487

DATE: 20130719

DOCKET: C53698

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohd Omar Hasan

Appellant

Howard L. Krongold, for the appellant

Robert W. Hubbard, for the respondent

Heard and released orally: June 19, 2013

On appeal from the conviction entered on February 4, 2011
    and the sentence imposed on April 26, 2011 by Justice Celynne Dorval of the Ontario
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

As to conviction we have not been persuaded that the trial judge erred.
    This was a confusing encounter involving many persons.

[2]

The trial judge did an admirable job in sorting through the evidence.
    She was well aware of the dangers of eye-witness identification. Her reasons
    are fully supported by the evidence; accordingly the conviction appeal is
    dismissed.

[3]

As to sentence, in our view, the trial judge erred in principle in
    finding that the appellant was a danger to the community. This is not supported
    by the evidence. Whatever the case right after the offence, four years later
    when the appellant came to be sentenced the record shows that the appellant was
    rehabilitated. He had found a new community of friends. The fact that he
    pleaded not guilty and maintained his innocence was not and does not show that
    he was dangerous.  His comment of being in the wrong place at the wrong time
    was no more than an expression of his defence that while he was at the
    location, he was not the one who assaulted the victims.

[4]

Given the error in principle it falls to this court to impose sentence.
    The exceptional circumstance in this case is the over six years that the
    appellant has been on bail awaiting trial and then appeal without incident.
    This is a significant factor for a relatively young man. Taking into account
    the amount of time the appellant has now served of the original sentence, no
    interest would be served by returning the appellant to custody at this time.
    Accordingly, leave to appeal sentence is granted, the appeal is allowed and the
    sentence reduced to time served plus 18 months probation on the terms imposed
    by the trial judge.

M. Rosenberg J.A.

R.J. Sharpe J.A.

E.E.
    Gillese J.A.


WARNING

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

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

Criminal Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.E.T., 2013 ONCA 492

DATE: 20130723

DOCKET: M42495 (C53171)

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.E.T.

Appellant

David E. Harris, for the appellant

Kim Crosbie, for the respondent

Heard: July 17, 2013

By the Court:

[1]

The appellant was convicted by a jury in October 2010 on eight counts
    relating to sexual offences and assaults committed against six sisters some forty
    years earlier. He was sentenced to a total of ten years imprisonment.

[2]

He died on March 23, 2013, while on bail pending appeal. In the normal
    course, this appeal becomes moot and should abate as a result of the
    appellants death. However, his widow, the applicant, seeks to continue the
    appeal, following the procedure outlined by the Supreme Court of Canada in
R.
    v. Smith
(2004), 181 C.C.C. (3d) 225.

[3]

Under this procedure, there is a discretion to permit the appeal to
    continue where special circumstances make it in the interests of justice to do
    so.  This discretion is to be sparingly exercised in rare and exceptional cases.

[4]

In
Smith
at para. 50, Binnie J. referred to a list of
    non-exhaustive factors that may be present in any particular case, which the
    court may take into account in the exercise of its discretion.  The key factor
    in the present case relates to the primary issue raised on appeal, namely,
    whether it is of general public importance, particularly if it is otherwise
    evasive of appellate review.

[5]

In this regard, the moving party focuses on the ground of appeal related
    to the expert evidence offered by a Crown witness on the memories of victims of
    childhood sexual abuse and matters of recovered memory and repressed
    memory.  He asserts that the trial judge improperly admitted that expert evidence.
    If the appeal proceeds, the moving party will seek leave to adduce fresh
    evidence from an expert who will testify that, based on the current state of
    research, the factual underpinnings for the Crowns expert opinion were
    incorrect.

[6]

The moving party argues that this issue is of broad public importance
    and that it presents this Court with an opportunity to contribute to the law on
    recovered memory. He also says that the impugned expert evidence calls into
    question the integrity of the process by which the appellant was convicted.

[7]

Turning to the factors identified in
Smith
, we are prepared to
    assume that if leave is granted the appeal will proceed in a proper adversarial
    context and that the grounds of appeal, taken together, have some merit. We
    cannot, however, conclude that there are special circumstances that transcend
    the death of the appellant. While the issue of repressed or recovered
    memory is an important one, it was not the sole focus of the evidence of the
    Crowns expert.  Moreover, the issue cannot be described as one that is
    evasive of appellate review. It has been the subject of discussion in a
    number of cases  see for example:
R. v. Markman
, [2002] O.J. No. 4250
    (C.A.);
R. v. B.M.

(1998), 130 C.C.C. (3d) 353 (Ont. C.A.). As
    the respondents counsel puts it, the issue has arisen in the past and will
    again in the future.

[8]

That brings into play the fourth factor mentioned in
Smith
,
    namely, whether the nature of the order that this Court could make justifies
    the expenditure of limited judicial resources to resolve a moot appeal.  If the
    applicant succeeds on the appeal, the court would most likely order a new trial
     something that is not possible in the circumstances of this case: see
R.
    v. Niemi
, [1998] O.J. No. 460 (C.A.), at para. 3. In this case, the
    defence did not adduce expert evidence on the issue of false memories and, as
    the Crown submits, the issue was not litigated at trial in the manner in which
    it is now being argued.   An academic inquiry into the issue, at the appellate
    level, without an underlying
lis
, would be incomplete, would not serve
    the interests of justice in this particular case and would not justify the
    substantial expenditure of limited judicial and court resources.

[9]

We do not overlook another aspect of the special circumstances
    inquiry, that is, the consequences for the applicants family. However, even if
    the appeal were to be allowed, it could not be construed as an exoneration of
    the deceased. Moreover, two of the convictions were based on the evidence of a
    witness who had always remembered the sexual assaults at issue  that is,
    convictions that were not founded on repressed or recovered memory.

[10]

In
    sum, this is not one of those exceptional cases in which leave to continue the
    appeal should be granted. The motion is dismissed and the appeal is dismissed
    as abated.

RELEASED: JUL 23 2013                          John
    Laskin J.A.

JL                                                             E.E.
    Gillese J.A.

G.R.
    Strathy J.A.


WARNING

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

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

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

(a)       any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jorgge, 2013 ONCA 485

DATE: 20130718

DOCKET: C54282

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jimmy Jorgge

Appellant

Joseph Wilkinson, for the appellant

Jennifer Woollcombe, for the respondent

Heard: May 29, 2013

On appeal from the conviction entered on December 22,
    2010 and the sentence imposed on March 30, 2011 by Justice Janet M. Wilson of
    the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.

introduction

[1]

Jimmy Jorgge appeals his convictions for sexual assault and
    administering a stupefying substance with intent to commit sexual assault, and
    his sentence of four years imprisonment.

[2]

The appellant raises several grounds of appeal against his convictions.
    I will deal with only one of them because, in my view, it is decisive of this
    appeal.  This ground concerns one of the reasons why the trial judge found the
    appellants evidence not to be credible. She gave several reasons for rejecting
    his evidence. However, one important reason was that the appellant had
    tailored his trial testimony to fit the arguments raised on a
voir dire
into the admissibility of his statement to the police.  The trial judges
    reliance on this reason was an error because it undermined the appellants
    right to be present at his own trial.  As this error tainted the trial judges
    assessment of the appellants credibility, the appellant is entitled to a new
    trial.

B.

brief background

[3]

The appellant and the complainant met on a dating website.  In July 2008
    they met in person.  They went to a park near Lake Ontario to talk and drink
    wine.  Eventually they went back to the appellants condominium, drank more
    wine and had sexual intercourse.  Their evidence differed on whether their sexual
    activity was consensual.

(i)

The complainants evidence

[4]

The complainant testified that she did not consent to having sexual
    intercourse.  She said that while she was at the appellants condominium she
    began to feel tired, nauseous and paralyzed.  She said that when the appellant
    had intercourse with her she could not move or defend herself.  According to a
    toxicological report she had a date rape drug in her system  a commonly used
    antihistamine found in cold medicines and available over the counter.

(ii)

The
    appellants statement

[5]

The appellant gave a lengthy, videotaped statement to the police.  During
    the first half of his interview, the appellant maintained that the complainant
    consented to the sexual activity, that she was awake and that he did not drug
    her.  As the interview progressed, the police officer suggested that the
    appellant explain things to him so he would think the appellant had simply
    exercised bad judgment on this one occasion, and was not a serial sexual
    predator. In response to the officers comments, the appellant admitted that
    the complainant might have been asleep when he had sex with her, that perhaps
    he took advantage of the situation, and that he had shown poor judgment.  After
    a
voir dire
, the trial judge ruled that the appellants statement was
    voluntary and admitted it into evidence.

(iii)

The appellants evidence at trial

[6]

At trial, the appellant explained that crucial portions of his statement
    were untrue, and that he always thought the complainant had consented to their
    sexual intercourse.  He testified that he said what he did to the police
    officer because he felt pressured and wanted to end the interview.  He did not
    see a way out unless he told the officer something.

[7]

The appellant also denied that he had given the complainant any drugs.
    Moreover, he relied on the toxicologists opinion that the drug found in the
    complainants system, even in combination with alcohol, would not cause the conscious
    paralysis the complainant recounted.

C.

discussion

(i)

The trial judges credibility findings

[8]

At the beginning of her reasons for conviction, the trial judge made her
    findings of credibility.  After unhesitatingly accepting the evidence of the
    complainant, she turned to the appellants evidence.  She concluded that where
    his evidence conflicted with that of the complainant, it was a clever web of
    small and big lies attempting to distance himself from the suggestion that it
    was his plan from the beginning to get [the complainant] to go to his apartment
    for the purpose of sex.

[9]

In reaching this conclusion, the trial judge rejected the appellants
    explanation for the admissions he made in his statement to the police.  In
    rejecting that explanation, the trial judge relied on the appellants having
    heard the arguments of counsel on the
voir

dire
before
    testifying at trial.  At para. 10 of her reasons she said:

I accept that Mr. Jorgge found the interview long and
    stressful, but I do not accept his evidence that he believed that he had to
    give some evidence to the police to conclude the interview.  Mr. Jorgge is
    intelligent and manipulative.  He was in control throughout the interview.  Mr.
    Jorgge had the benefit of listening to the various arguments raised by his
    counsel at the
voir

dire
.  He also understands now that
    consent to sexual relations means more than a woman not protesting as sexual
    activity progresses.

[10]

She
    returned to this theme a few paragraphs later, and expressly held that the
    appellant had tailored his evidence to fit the arguments of counsel.  At
    para. 12 she said:

I conclude that this evidence given by Mr. Jorgge at the trial
    when he said that unless I gave him something, I was never going to get out of
    there was evidence carefully tailored to fit the arguments raised by the Crown
    and his counsel during the
voir

dire
.

[11]

Then,
    at paras. 13-14, the trial judge concluded that the appellants statement to
    the police was truthful and that his trial evidence, given after hearing
    counsels submissions, could not be accepted:

I conclude that the evidence given by Mr. Jorgge in his
    statement about the sexual activity that took place on July 18, 2008, and in
    particular whether [the complainant] was moving or was inert as she was
    sleeping or passed out, is truthful.  I conclude that his commentary given at
    the trial is simply an attempt by Mr. Jorgge to distance himself from any
    concessions made in the statement relevant to the issue of consent now that Mr.
    Jorgge has a better understanding of the issues.

I conclude that his evidence given at the trial, when it conflicts
    with his prior statement, is an attempt to challenge the ruling as to the
    voluntariness of his statement after hearing the capable arguments of his
    counsel.  In drawing this conclusion I have considered all of the statement and
    all of Mr. Jorgges evidence at this trial.

(ii)

The
    trial judges reasoning is improper

[12]

There
    is a natural temptation to reason as the trial judge did in this case.  But
    this reasoning was improper because it subverted the appellants right to be
    present at his trial.  Under s. 650(1) of the
Criminal Code
, accused
    persons have a statutory right, indeed an obligation, to be present at their trial.
    Section 650(1) is grounded in an accuseds right to a fair trial and right to
    make full answer and defence, which are now guaranteed by ss. 7 and 11(d) of
    the
Canadian

Charter of Rights and Freedoms:
see
R. v.
    Laws
(1998), 41 O.R. (3d) 499, at p. 521;
R. v. Czuczman
(1986),
    54 O.R. (2d) 574, at pp. 576-577.

[13]

Yet
    in her assessment of the appellants credibility, the trial judge turned the
    appellants right to be present at his trial against him.  The trial judge was
    entitled to consider the inconsistencies between the appellants statement to
    the police and his testimony at trial.  She was not, however, entitled to attribute
    those inconsistencies to his presence at the
voir dire
.

[14]

In
    a series of three cases
R. v. White
(1999), 42 O.R. (3d) 760;
R.
    v. Schell
(2000), 148 C.C.C. (3d) 219; and
R. v. Thain
, 2009 ONCA
    223, 243 C.C.C. (3d) 230  this court has condemned the kind of reasoning used
    by the trial judge to reject the appellants evidence.  In
White
and
Schell,
the court held that it was improper and unfair for the Crown to suggest an
    accuseds evidence was not credible because the accused had testified after
    receiving full disclosure.

[15]

In
White
, Doherty J.A. recognized the logic in the notion that accused
    persons can tailor their evidence to fit the disclosure they have received.
    Nonetheless, he wrote at p. 767-8:

The line of questioning set out above seems calculated to suggest
    to the jury that the appellant's evidence was somehow suspect because he had
    received full disclosure and had not been subject to cross-examination prior to
    choosing to testify at trial.  Not only are the suggestions improper, they are potentially
    prejudicial.  As a matter of common sense, there may be considerable force to
    the suggestion that a person who gets full advance notice of the other side's
    evidence and testifies last is in a position to tailor his or her evidence to
    fit the disclosure. That inference, no matter how logical, cannot be drawn
    without turning fundamental constitutional rights into a trap for accused
    persons.  Where any such suggestion seeps into the cross-examination of an
    accused, it must be eradicated by the trial judge.

[16]

Rosenberg
    J.A. made the same point in
Schell
at paras. 56-57:

It was also an error to permit Crown counsel to cross-examine
    the appellant on his use of disclosure.  The appellant had a constitutional
    right to disclosure of the Crowns case through pre-trial disclosure and he had
    a statutory right to be present for the prosecutions case at the preliminary
    inquiry.  This was not a case where cross-examination on some aspect of the
    disclosure was a legitimate step in a proper cross-examination as in
R. v.
    Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.).  Also see
R. v. White
(1999), 132 C.C.C. (3d) 373 (Ont. C.A.).  Unfortunately, this improper conduct
    did not end with the cross-examination.  Crown counsel also used this evidence
    in his jury address:

Chin [the deceased], as I said, cannot testifythe accused
    can.  He has had a long time to think about it.  He has had full disclosure.
    He is able to have listened to the preliminary hearing and the testimony here.
    And, quite frankly, he is in a position to tailor his evidence and just tell
    you as much as he wants to and as little as he wants to:  and I submit that is
    what he has done.  He has had a convenient memory in certain areas and relies
    on panic in another.  [Emphasis in original omitted.]

It was wrong and unfair for Crown counsel to attempt to exploit
    the appellants exercise of his rights.

[17]

Finally,
    in
Thain
, Sharpe J.A. similarly held that it was improper for the
    trial judge to have taken into account the accuseds receipt of disclosure in
    assessing his credibility.  In that case, the trial judge held that [t]he
    accuseds credibility must be assessed bearing in mind that his explanation
    comes long after disclosure was available to him and having regard to the
    totality of the evidence.  At para. 25 of his reasons for allowing the appeal,
    Sharpe J.A. said: In my view, in the circumstances here, the fact that the
    appellant received disclosure could not properly or fairly be said to bear upon
    the assessment of his credibility.

[18]

The
    context for these three cases differs from the case before us, but the
    underlying principle is the same.  In those other cases, either the Crown or
    the trial judge improperly used an accuseds right to disclosure to discredit
    the accuseds testimony.  In the present case, the trial judge improperly used
    the appellants right to be present at his trial to discredit his testimony.
    She erred in doing so.

[19]

This
    error figured prominently in the trial judges adverse assessment of the
    appellants credibility.  Credibility was the significant issue at trial, in the
    light of the differing versions of events given by the appellant and the
    complainant.  In
Thain
, at para. 38, Sharpe J.A. said

[t]he
    appellant was entitled to have his credibility fairly assessed without being
    trapped by the exercise of his constitutional rights.  Similarly, Mr. Jorgge
    was entitled to have his credibility fairly assessed without being trapped by
    the exercise of his statutory right to be present at his trial.  Thus, his
    convictions cannot stand.  I would allow the appeal and order a new trial.

John Laskin J.A.

I agree S.T. Goudge
    J.A.

I agree David Watt
    J.A.

Released: July 18, 2013


WARNING

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

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

Criminal Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2013
    ONCA 493

DATE: 20130723

DOCKET: C55637

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Mark C. Halfyard, for the appellant

Michael Perlin, for the respondent

Heard: June 27, 2013

On appeal from the sentence imposed on June 11, 2012 by
    Justice K.B. Corrick of the Superior Court of Justice.

Strathy
    J.A.:

[1]

The appellant pled guilty to one count of sexual exploitation of the
    complainant, a sixteen-year-old concession stand worker at the movie theatre
    where he was the senior manager. He appeals his sentence of nine months
    imprisonment, followed by two years probation. He submits that a sentence of
    90 days, served intermittently, would be appropriate.

Background

[2]

The complainant had worked in the theatre for nine months. She had a
    dislocated upbringing and home life. She was living in a group home and was a ward
    of the state.

[3]

The appellant was a fitness enthusiast with a muscular physique. The
    complainant had made comments indicating to him that she found his body
    attractive.

[4]

The appellant was 36 years old at the time of the offence. As a senior
    manager, he was in a position of authority over the complainant. The first
    incident occurred when he was alone in his office with her. He asked her for a
    hug. When she complied, he lifted her up and told her she smelled good. He
    kissed her, licked her neck, felt her breasts and digitally penetrated her.
    This encounter lasted several minutes, after which the complainant returned to
    her duties.

[5]

About an hour and a half later, the appellant told the complainants
    supervisor to have her report to him to do a health and safety inspection. She
    complied with this direction, uncertain about whether it was a genuine request
    or an attempt to further engage her sexually. When she came to his office, he
    took her to a secluded room on another floor. On the way, he said to her, trust
    goes a long way. Once in the room, which required a managers access pass to
    enter, he kissed her and touched and kissed her breasts. He pushed her
    shoulders down, trying to get her to perform oral sex on him. She refused. He
    then motioned her to the floor and removed her pants. He put on a condom,
    penetrated her and ejaculated. At the end of the encounter, he said, You want
    to take my number and make this a booty call? Next time Im going to fuck you
    from behind. He told her to go to the washroom before returning to work.

[6]

It was agreed that the complainant did not want any of the sexual
    contact, but neither said so nor protested. In her mind, she was trying to
    articulate her lack of consent, but she was not able to do so. She submitted to
    him because of his position of authority, his size and his age. It was also
    agreed that the appellant believed that she was consenting. There was no
    evidence of what grounds, if any, he had for this belief or what steps, if any,
    he took to ascertain whether she consented.

[7]

Minutes after this incident, the complainant told a co-worker what had
    happened. The next day, she told a teacher and went to the police. She stopped
    coming to work.

Discussion

[8]

The appellant raises three grounds of appeal.

[9]

First, he submits that the trial judge failed to consider factors that
    mitigated the seriousness of the offence. He contends that the trial judge
    should have found that the level of exploitation was minimal.  He says that his
    level of authority over the complainant was low, there was no express use of
    his authority to procure the sexual interaction, and there was no breach of
    trust. He submits that, but for the relationship of authority, the sexual
    contact could have been consensual, as the complainant was over the legal age
    of consent. He also argues that the trial judge placed undue emphasis on the
    nature of the sexual conduct, pointing out that he used a condom, did not
    groom the complainant and respected her decision not to engage in oral sex.

[10]

I
    do not accept these submissions. As the trial judge noted, the offence of
    sexual exploitation recognizes the vulnerability of young people to
    exploitation by people in authority. Consent is irrelevant to the offence. To suggest
    that in other circumstances the conduct would have been consensual and lawful
    is to ignore the very nature, and seriousness, of the offence.

[11]

The
    appellant was the senior manager. He exercised his authority by telling her to
    report to his office. His reference to trust was to procure her cooperation
    and silence. He used his status as a manager to take her to a private and
    secure place. The complainant submitted to his sexual demands as a result of
    his authority over her. While the circumstances were not as bad as they might
    have been, they were physically intrusive, abusive and degrading.

[12]

Second,
    the appellant contends that the trial judge failed to consider the sentencing
    objective of rehabilitation, specifically the principle that a first offender
    should receive the shortest possible jail sentence that meets the principles of
    sentencing.

[13]

At
    the time, the offence carried a mandatory minimum sentence of 45 days
    imprisonment and a maximum sentence of 10 years. The minimum has since been
    increased to 90 days on summary conviction and one year on indictment.

[14]

The
    appellant submitted that a 90-day sentence would have been appropriate, noting
    that he pleaded guilty, this was his first offence, he lost his marriage, his
    home and his job, and he suffered shame and stigmatization as a result of his
    conviction.

[15]

All
    these factors were considered by the trial judge. She accepted that the
    appellant was remorseful and noted that the charge had been hanging over him
    for three years, during which time he had been on interim release without
    incident. She noted, however, that section 718.01 of the
Code

directs
    the court to give primary consideration to the objectives of denunciation and
    deterrence in cases involving the abuse of someone under eighteen years of age.
    She concluded that in view of the intrusive nature of the sexual acts and the
    severe impact of the offence on the complainant, an intermittent sentence would
    not be sufficiently denunciatory.

[16]

The
    appellant submits that in the case of a first offender, the principles of
    sentencing require that a fit sentence be crafted on the basis of the shortest
    possible sentence that will achieve the relevant objectives. This observation
    was made in the context of a youthful first offender:
R. v. Borde
(2003), 63 O.R. (3d) 417 (C.A.); see also
R. v. Priest
(1996), 30 O.R.
    (3d) 538 (C.A.).  While the principle can apply to older offenders, like the
    appellant, the circumstances and the gravity of the offence may be such that a more
    substantial custodial sentence is required:
R. v. Stein
(1974), 15
    C.C.C. (2d) 376 (C.A.).

[17]

The
    trial judge made express reference to the purposes of sentencing set out in s.
    718, including rehabilitation. While she did not expressly refer to the principle
    relied upon by the appellant, she made reference to the fact that he had no
    prior record and it is apparent that she took that factor into account.

[18]

Finally,
    the appellant submits that the trial judge erred in admitting the complainants
    victim impact statement, which was not in the form prescribed by s. 722(2)(a)
    of the
Code
and took the form of an email message. As well, he submits
    that the trial judge erred in finding that the complainant had seizures and
    attempted suicide as a result of the offence.

[19]

Section
    722(3) of the
Code

provides that whether or not a victim impact
    statement in the prescribed form has been filed the court may consider any
    other evidence concerning any victim of the offence for the purpose of
    determining the sentence to be imposed on the offender.  The appellants trial
    counsel expressly did not object to the form of the statement and in fact
    relied on portions of the statement in his submissions.

[20]

While
    the statement was ambiguous about the complainants suicidal thoughts, and the
    trial judge may have erred in stating that the complainant had attempted suicide,
    the complainant did state that she had suffered from insomnia, weight loss and
    depression, had thoughts of suicide and had difficulties in school, work and
    relationships. There was ample support for the trial judges conclusion that
    the complaint had experienced severe physical and psychological effects of
    the offence.

[21]

The
    essence of this offence is that a young person, who is deemed to be vulnerable,
    is exploited for sexual purposes by someone whose position enables them to do
    so. As the trial judge noted, the case law indicates a broad range of sentences
    for this offence, largely because there are infinitely variable ways in which
    the offence can be committed and a wide range of offenders. I am satisfied that
    in this case the trial judge took all relevant considerations into account, committed
    no error in principle and that the sentence falls within the appropriate range.

[22]

I
    would grant the appellants application to introduce fresh evidence concerning
    his personal, work and family circumstances, and additional letters of
    reference, but this evidence would not affect the outcome.

[23]

I
    would therefore dismiss the appeal.

Released: JUL 23 2013                    G.R. Strathy
    J.A.

JL                                                             I
    agree John Laskin J.A.

I
    agree M. Tulloch J.A.