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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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.C.J., 2013
    ONCA 205

DATE: 20130403

DOCKET: C54565

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. C. J.

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: March 13, 2013

On appeal from the convictions entered on August 22, 2011
    by Justice Alan D. Cooper of the Ontario Court of Justice.

By the
    Court:

[1]

The appellant appeals from his convictions for a series of sexual
    offences allegedly committed against two nieces, L.J. and L.H., and a
    great-niece, K.J.

[2]

The alleged offences involving L.J. spanned a time-frame from 1987 to
    1992. The incidents involving L.H. allegedly occurred in 1998 and 2005, and the
    incidents involving K.J. allegedly occurred sometime between 2004 and 2007. All
    of the allegations were reported in 2009.

[3]

The convictions were entered following a trial before a judge sitting
    alone. At trial, defence counsel challenged the credibility and reliability of
    the complainants allegations based on: i) the complainants delay in reporting
    their allegations; ii) developments in the complainants allegations between
    the time they were first reported and trial; and iii) alleged vagaries,
    inconsistencies and improbabilities in the complainants evidence. In addition,
    the defence called three witnesses, all family members, who testified about
    their observations of the appellants interactions with the complainants and about
    their own interactions with the appellant. The appellant did not testify.

[4]

On appeal to this court, the appellant alleges numerous errors in the
    trial judges assessment of the complainants evidence and also challenges the
    adequacy of the reasons for judgment.

[5]

In our view, the appeal turns primarily on the emphasized portion of the
    following extract from the trial judges reasons. This extract appears at the outset
    of the trial judges analysis of the charges involving the complainant, L.J.,
    which were the first set of charges he analyzed:

The defence called [J.G.] as a witness, and it was her opinion
    that the complaints by [L.J.] and [L.H.] stemmed from their desire to seek
    attention. Implicit in this evidence is that the allegations are untrue.

This court had the opportunity to see first hand these two
    witnesses as they testified. Both had great difficulty recounting their
    complaints, especially [L.H.], who at times seemed to be emotionally paralyzed
    by the ordeal.

All three complainants had to testify about a family member,
which
    in my view makes their allegations more credible than a complaint against a
    non-family member
. Sexual allegations in a family context are explosive
    and threaten to destroy the entire fabric of the relationship. Such complaints
    often divide families, and that is what happened in this case. [Emphasis
    added.]

[6]

The appellant submits that the impugned passage reflects an improper
    approach to the assessment of the complainants credibility, as it relies on
    the complainants relationship to the appellant as a general factor supporting
    their credibility. The Crown responds that the impugned passage must be read in
    context. According to the Crown, when that is done, the passage reflects
    nothing more than an experienced trial judge commenting on the lack of motive
    to fabricate, rather than a statement of a general principle.

[7]

Although we agree that the passage must be read in context, we are
    unable to accept the Crowns submission.

[8]

We begin by noting that it was unnecessary for the trial judge to
    formulate a response to J.G.s evidence, because J.G.s bare opinion about
    whether any of the complainants had a motive to lie was inadmissible and
    therefore irrelevant to the issues before the court.

[9]

More importantly however, on its face, the impugned passage expresses
    the view that, because of the difficulties in family relationships that sexual
    allegations often create, allegations of sexual misconduct made against a
    family member are inherently more credible than allegations of sexual
    misconduct made against a non-family member.

[10]

As
    such, the passage establishes a starting point  or analytical framework  for
    assessing the credibility of the complainants allegations premised on the
    notion that, because of the family context in which the allegations were made,
    they were
more credible
than similar allegations made against a
    non-family member would be. Such an approach is clearly improper and, standing
    alone, requires that we set aside the convictions and order a new trial.

[11]

In
    reaching this conclusion, we acknowledge that it would have been open to the
    trial judge to consider whether the family relationship and family dynamics particular
    to this case made it difficult for any of the complainants to testify and to
    take that into account in assessing a particular complainants credibility.
[1]

[12]

However,
    that is not what the trial judge said. Instead, after referring to the fact
    that all three complainants had to testify against a family member, he stated
    that allegations of sexual misconduct made in that context are
more
credible than allegations of sexual misconduct made against a non-family
    member. A conviction premised on this analytical framework simply cannot be
    allowed to stand.

[13]

At
    the outset of our reasons, we said this appeal turns primarily on the impugned
    passage. We wish to observe as well that, although the Crowns case at trial
    stood largely unchallenged by defence evidence, there were nonetheless problems
    with the complainants evidence mandating a careful examination of each
    complainants reliability and credibility.

[14]

For
    example, although L.H. maintained that, on one occasion, the appellant had
    touched her leg with his penis from behind her as she climbed some stairs, she
    acknowledged she did not see his penis and was unable to explain why she
    believed that it was the appellants penis that had touched her. In closing
    submissions, the trial Crown effectively acknowledged that this evidence may not
    have been sufficiently reliable to support a conviction for sexual assault (as
    opposed to simple assault). Despite the trial Crowns submissions, the trial
    judge accepted this allegation without comment or explanation.

[15]

As
    another example, there were developments in the allegations of all three
    complainants between their statements to the police and their trial evidence
    all three complainants remembered additional incidents after giving their
    statements to the police.
[2]
The trial judge referred to and accepted the evidence regarding two of these
    incidents, largely because of the particular complainants demeanour.

[16]

Assuming
    a proper approach to the assessment of each complainants credibility, we agree
    that these problems with the Crowns evidence were matters uniquely for
    determination by the trial judge. We refer to these problems simply to observe
    that this is not a case in which we can overlook deficiencies in the trial
    judges reasons based on the strength of the Crowns case or based on our own
    review of the record.

[17]

Based
    on the foregoing reasons, the appeal is allowed, the convictions are set aside
    and a new trial is ordered.

Released: STG April 3, 2013

S.T.
    Goudge J.A.

Janet Simmons J.A.

M.
    Tulloch J.A.

[1]

We acknowledge that the trial judge did so in relation to
    K.J.s evidence when, in considering the issue of delayed reporting at para. 66
    of his reasons, he referred to the fact that K.J.s cousin did not believe
    K.J.s allegation.

[2]
After their respective police statements, L.J. remembered there had been
    digital penetration during her alleged sexual assault; L.H. remembered the
    appellant had touched her breasts while she was sleeping; K.J. remembered the
    appellant had rubbed up against her while she was sitting on a Sea-Doo.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2013
    ONCA 210

DATE: 20130403

DOCKET: C52253

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Etienne Martin

Appellant

Peter Copeland and Erin Dann, for the appellant

Roger A. Pinnock, for the respondent

Heard: March 13, 2013

On appeal from the conviction entered on April 8, 2008 by
    Justice OConnor of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

[1]

On April 8, 2008 the appellant was convicted of the second degree murder
    of Lamar Philip.  He appeals to this court.

[2]

Lamar Philip was stabbed to death in the stairwell of an apartment
    building in Mississauga on July 13, 2005.  In early August 2005, the appellant
    and Lionel Brown were arrested and charged with Philips murder.  The question
    was which of them did the stabbing?  The Crowns theory was that the appellant
    and Brown hatched a plot to rob Philip by luring him into the stairwell under
    the pretext of doing a drug deal but that the appellant inflicted the fatal
    wound.

[3]

Brown pleaded guilty to manslaughter and was an important Crown witness
    at the appellants trial. Brown testified that the appellant, who was armed
    with a knife, accompanied him to the stairwell.  Brown said that while he was
    engaged in the drug transaction with Philip, Philip and the appellant got into
    a struggle, at which point the stabbing took place.  Brown testified that the
    appellant later told him that he stabbed Philip because Philip pulled down his
    bandana mask thus revealing his face.

[4]

Christopher Spencer was a second important witness for the Crown.
    Spencer provided a statement to the police which at least in part implicated
    the appellant in the stabbing.  In his statement, Spencer said that prior to
    being arrested, Brown told him essentially what Brown told the court in his testimony.
    At trial, Spencer recanted, saying his statement to the police was a lie.  As a
    result, Spencers police statement was admitted for the truth of its contents.

[5]

The Crowns case also relied on the appellants conduct after the
    stabbing. There was evidence that Brown and the appellant fled the apartment
    building to a nearby tennis club, called the taxi, went to Browns house and
    then took another cab to the appellants home where he changed his bloodied
    shirt.  In addition, the appellants own evidence was that he did not call 911
    afterwards, that he had lied to his brother about the killing, and that he told
    no one the version of events that he testified to at trial.

[6]

The appellant also testified about the stabbing. He said that he merely
    accompanied Brown to the stairwell, that it was Brown who had a knife, and that
    it was Brown who threatened Philip.  When Philip resisted, Brown stabbed him
    and then fled with the appellant.

[7]

In this court, the appellant challenges a number of aspects of the trial
    judges instructions to the jury.  I propose to deal with only two of them
    because, in an otherwise impeccable charge, both constitute legal errors that,
    taken together, require a new trial.

[8]

The first concerns Spencers police statement, and in particular that
    part in which Spencer related his conversation with Brown that took place a few
    weeks after the incident.  Spencer said Brown told him that he did not do the
    killing but only wanted to rob Philip.  Brown told Spencer that when Philip
    refused to cooperate, the appellant got into a struggle with Philip.  When
    Philip pulled down his bandana mask, the appellant stabbed him, apparently
    because Philip had seen his face.

[9]

When the Crown sought to tender Spencers police statement, the defence
    objected to the hearsay part of it.  The trial judge expressed the same concern.
    The trial judge described this hearsay as very strong evidence, undoubtedly
    because it supported Browns testimony which was central to the Crowns case.

[10]

Ultimately,
    Spencers statement, including the hearsay, was admitted.  In admitting the
    statement, the trial judge made clear to counsel that the hearsay portion of
    the statement should not be used for the truth of its contents, and that he
    would give the jury a limiting instruction to this effect as part of his
    charge.

[11]

Unfortunately,
    he did not do so. He did give the jury a short general instruction that they
    could not use a hearsay statement to prove the truth of its contents.  However,
    when he dealt specifically with Spencers police statement, the trial judge
    clearly told the jury that they could use the full statement as evidence of what
    happened.  Shortly thereafter he again charged them they could use Spencers
    police statement for the truth of its contents.  On neither occasion did he
    exclude from this instruction what Spencer said Brown told him about the
    stabbing.  Given the centrality to the Crowns case of Browns version of
    events, the failure to provide a limiting charge on the hearsay portion of
    Spencers statement is an important error of law.

[12]

The
    second issue is the instruction concerning the evidence of the appellants
    conduct after the stabbing.  While the trial judge does not say so explicitly, I
    think it is implicit in the structure of his charge that much of what he told
    the jury about the use they could make of this evidence relates to the question
    of whether the appellant caused the death of Philip, that is to the
actus
    reus
of the offence.

[13]

However,
    in dealing with the appellants state of mind, the trial judge clearly told the
    jury that they could consider evidence of his post-offence conduct.  On the
    facts of this case, that was an error of law, as the Crown acknowledged in
    argument.  Assuming the appellant inflicted the fatal wound, his after-the-fact
    conduct could not assist the jury in determining whether he did so with the
    intention required for murder or manslaughter. See
R. v. White
, [2011]
    1 S.C.R. 433 at para. 40.  This too is an important error of law.

[14]

In
    summary, although the charge was otherwise beyond criticism, I conclude that
    the cumulative effect of these two errors is sufficient to require a new trial.

[15]

The
    appeal must be allowed.  The conviction is set aside and a new trial ordered.

Released: April 3, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree. Janet Simmons J.A.

I agree. M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monether, 2013
    ONCA 197

DATE: 20130402

DOCKET: C56504

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Leslie Monether

Appellant

Heather Pringle, for the appellant

Randy Schwartz, for the respondent

Heard: March 27, 2013

On appeal from the conviction entered on November 3, 2009
    and the sentence imposed on November 3, 2009 by Justice John D. G. Waugh of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty and was convicted of the offences of
    robbery with a firearm contrary to s. 344(a) of the
Criminal Code
and
    use of a firearm during the commission of an offence contrary to s. 85(1) of
    the
Code
.  On a joint submission, he was sentenced to eight years
    imprisonment concurrent for both offences.

[2]

The appellant contends that the conviction for the s. 85(1)(a) offence
    was statute barred by its wording which specifically excludes from its coverage
    a s. 344 offence. The Crown agrees with this submission. So do we. The
    conviction for the s. 85(1)(a) offence is set aside and an acquittal is
    entered.

[3]

The appellant submits that an eight year concurrent sentence for the
    s. 85(1)(a) offence was an illegal sentence because s. 85(3)(a) and (4) of
    the
Code
require a minimum sentence of one year to be served
    consecutively to any punishment imposed for other offences arising out of the
    same event.  We agree.

[4]

However, that leaves a valid conviction for robbery with a firearm and
    an eight year sentence for that offence based on a joint submission.  We agree
    with the Crown. We see no basis for interfering with the joint submission. The
    fresh evidence, although impressive in relation to the appellants progress in
    the prison, does not change this conclusion. Accordingly, the sentence appeal
    is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.


COURT OF APPEAL
FOR ONTARIO

CITATION: R. v. Morris, 2013 ONCA 223

DATE: 20130409

DOCKET: C55438

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kwesi Morris

Appellant

Paul Aubin, for the
appellant

Robert Gattrell, for the
respondent

Heard: March 22, 2013

On appeal from the conviction
entered by Justice Alison Harvison Young of the Superior Court of Justice on
June 10, 2011, and from the sentence imposed on September 6, 2011, with reasons
for sentence reported at 2011 ONSC 5206, 97 W.C.B. (2d) 643.

BY
THE COURT:

[1]

The appellant was convicted of several firearms-related offences and
breach of a s. 109 order not to possess firearms and sentenced to 50 months imprisonment.
He appeals his convictions and seeks leave to appeal his sentence.

Conviction Appeal

[2]

The sole issue at trial and the sole issue on the conviction appeal
relates to the search of the appellants vehicle and the seizure of weapons and
drugs. The trial judge found, following a
Charter voir dire
, that
there was no breach of the appellants ss. 8 or 9
Charter
rights, that
there was a relatively minor violation of his s. 10(b) right, and that the
seized items should not be excluded from evidence pursuant to s. 24(2): see
R.
v. Morris
, 2011 ONSC 5142, 87 C.R. (6th) 362.

[3]

The appellant submits that the trial judge erred in fact and in law in
finding that police officers involved in the search had a valid s. 216(1)
Highway
Traffic Act
, R.S.O. 1990, c. H.8 (
HTA
) reason to stop the
appellants car. He also challenges the finding that the search of the vehicle
was conducted after the police had reasonable and probable grounds to believe
that the appellant was in possession of marijuana. The appellants central
submission is that the
HTA
was merely a pretext for an unauthorized
stop and search for evidence of criminal activity.

[4]

We are unable to accept that submission.

[5]

In her careful reasons, the trial judge found as a fact that the police
officers had a dual purpose in stopping the appellants vehicle. They candidly
admitted that the reason they stopped the appellant was that a CPIC check of
the licence plate number produced a caution in relation to the registered
owner, followed by armed and dangerous, violent, and domestic violence.
The lead officer testified that he wanted to verify the drivers documentation
pursuant to the
HTA
. Both officers testified that they understood that
they were under constraints in conducting such a stop and that if the
HTA
documents were in order, they would have to allow the appellant to go on his
way.

[6]

The trial judge accepted that evidence. She concluded that the officers
had a valid
HTA
-related reason for stopping the car, that their
intention was to check the drivers licence, ownership and insurance
documentation, and that at the time they stopped the car they did not intend to
search it or do anything beyond what was permitted by the
HTA
. The
trial judge further found that this remained their intention until the point at
which they detected the odour of fresh marijuana emanating from the car. That,
she found, was sufficient to give rise to reasonable and probable grounds to
arrest the appellant and search him and the vehicle as an incident of the
arrest.

[7]

In our view, those factual findings were open to the trial judge on this
record. As the trial judge concluded, those findings bring this case within the
principle established in
Brown v. Durham Regional Police Force
(1998),
43 O.R. (3d) 223 (C.A.), at p. 236, where Doherty J.A. stated with respect to a
stop pursuant to s. 216(1) of the
HTA
:

It may be, as in this case, that the police are interested in
knowing the identity of all those who are connected with what they believe to be
organized criminal activity. The gathering the police intelligence is well
within the ongoing police duty to investigate criminal activity. As long as the
additional police purpose is not improper and does not entail an infringement on
the liberty or security of the detained person beyond that contemplated by the
purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a
legitimate police interest beyond highway safety concerns should taint the
lawfulness of the stops and detention.

[8]

We do not accept the submission that it was not open to the trial judge
to find reasonable and probable grounds for arrest on the basis of the officers
evidence that they detected the smell of marijuana. While previous cases have
cautioned against placing undue reliance upon smell evidence, there is no
legal barrier to the use of such evidence and we are not persuaded that on this
record the trial judges finding is susceptible to appellate review.

[9]

Finally, we agree with the trial judges treatment of s. 24(2). This
followed her finding of a s. 10(b) breach that arose when the police failed to
advise the appellant of his right to counsel and asked the appellant questions
before his arrest, but after the point at which they had reasonable and
probable grounds for arrest. We agree with her assessment that the breach of s.
10(b) was relatively minor and that there was no nexus between the breach and
the discovery of the evidence. The Crown did not rely on anything said by the
appellant to justify the search. The trial judge properly considered the
Grant
factors in concluding that the evidence should be admitted notwithstanding the
s. 10(b) breach: see
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[10]

Accordingly,
we dismiss the conviction appeal.

Sentence Appeal

[11]

At
the time of sentencing, the appellant had been in custody for 17 months.

[12]

The
appellant was sentenced before this court released its decision in
R. v.
Summers
, 2013 ONCA 147. Without the benefit of
Summers
, the trial
judge considered the interplay of ss. 719(3) and (3.1) of the
Criminal Code
and concluded that lack of earned remission for pre-sentence custody was not a
circumstance justifying credit of more than 1:1 for time spent in pre-sentence
custody.

[13]

In
Summers
, at para. 117, this court concluded that where there is some
basis in the evidence or the information before the sentencing judge to support
the conclusion that, in the particular case, lack of remission warrants
enhanced credit, a sentencing judge may credit pre-sentence custody up to a
maximum of 1.5:1 for each day spent in pre-sentence custody. It is conceded
that the trial judge erred in her interpretation of s. 719(3.1) of the
Criminal
Code,
and that the deference customarily afforded on appeal to a sentence
imposed by a trial judge is accordingly displaced.

[14]

The
appellant does not take issue with the total sentence of 50 months imposed by
the trial judge; but for the lack of enhanced credit for pre-trial custody, it
was essentially that proposed by appellants trial counsel. The only question is
whether, in this case, the appellant should be entitled to enhanced custody to
compensate for lack of remission and parole eligibility for the 17 months that
he spent in custody prior to sentencing.

[15]

While
the trial judge concluded that lack of remission on pre-sentencing custody is
not of itself a factor warranting enhanced credit, she also reasoned, at para.
54, that while the appellant was not detained in custody under ss. 524(4) or
(8), the conduct of the accused while on bail prior to revocation, if
applicable, may be a relevant factor in determining whether to grant enhanced
credit. She concluded that, in this case, the circumstances were analogous to
ss. 524(4) and (8), and therefore did not justify enhanced credit.

[16]

We
agree.

[17]

Pursuant
to s. 719(3.1), if the circumstances justify it, a court may credit a person
convicted of an offence with more than one day for each day spent in custody to
a maximum of one and one-half days for each day, unless the reason for
detaining the accused in custody on arrest was stated in the record under s. 515(9.1),
or the accused was detained in custody under ss. 524(4) or (8).

[18]

Subsections
524(4) and (8) provide, in part, that where an accused has contravened or was
about to contravene an undertaking or recognizance, or there are reasonable
grounds to believe that the accused has committed an indictable offence after
an undertaking or recognizance was entered into by him, the undertaking or
recognizance shall be cancelled and the accused shall be detained in custody,
unless the accused, having been given a reasonable opportunity to do so, shows
cause why his detention in custody is not justified within the meaning of
subsection 515(10).

[19]

The
absence of an order cancelling the prior forms of release did not operate as an
absolute bar to the appellants request for enhanced credit under
s. 719(3.1). In determining whether to award enhanced credit, however, the
trial judge was required to take into account all the circumstances. Among those
circumstances was the fact that the appellant was on bail and  bound by a
weapons prohibition when he was arrested on the offences for which he was
convicted. The trial judge was entitled to take these circumstances into
account in deciding whether enhanced credit was justified. We agree with her
conclusion that it was not.

[20]

In
the result, we would grant leave to appeal sentence but dismiss the sentence
appeal.

Disposition

[21]

The
conviction appeal is accordingly dismissed, leave to appeal sentence is granted
and the sentence appeal is dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.

Released:
April 9, 2013


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nartey, 2013 ONCA 215

DATE: 20130408

DOCKET: C55721

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jesse Nartey

Respondent

Jennifer Mannen, for the appellant

Timothy E. Breen, for the respondent

Heard: March 21, 2013

On appeal from the acquittal entered on June 12, 2012 by
    Justice Donald A. Ebbs of the Ontario Court of Justice.

ENDORSEMENT

[1]

This Crown appeal arises out of the trial judges ruling pursuant to s.
    24(2) of the
Charter
, excluding the evidence obtained on a warrantless
    search of a driver and his vehicle following a
Highway Traffic Act
stop.

[2]

The Crown argues that: (1) the trial judge erred in law by making a
    finding of fact for which there was no evidence and that tainted his entire
Charter
analysis: and (2) the nature and extent of the trial judges questioning of the
    police witnesses gave rise to the appearance that he had pre-judged their
    evidence and demonstrated a reasonable apprehension of bias.

[3]

We are not persuaded by either argument and accordingly dismiss this
    appeal.

Background

[4]

Some background is necessary.

[5]

Only police officers testified at the
voir

dire
. Their
    testimony was, in substance, as follows.

[6]

Shortly after midnight, two police officers observed a vehicle exit the
    parking lot of a notorious strip bar and then fail to come to a complete stop
    before making a turn at a red light. On the basis of this
Highway Traffic
    Act
violation, the officers pulled the vehicle over some distance after
    the red light and asked the driver for his licence, registration and insurance.
    The officers returned to their cruiser and the senior officer prepared to write
    up a Provincial Offence Act notice. He then received information, via the
    computer in the cruiser, that the driver had been convicted of possession for
    the purpose of trafficking, was subject to two firearm prohibitions, and had a
    street gang association. The officers observed motion in the drivers car. The
    senior officer described the driver as reaching into the back seat, grabbing a
    small black duffle bag, placing it in the front passenger seat and then
    appearing to rifle through the bag. When the driver tossed the bag into the
    back seat, it looked less full and less heavy. This movement, combined with the
    fact that the driver was a patron of the strip bar and the drivers record,
    caused the senior officer to have concern for their safety.

[7]

On the senior officers direction, both officers immediately got out of
    their cruiser and approached the drivers vehicle. The senior officer asked the
    driver to step out of his vehicle and undergo a pat-down search to make sure he
    was not in possession of a weapon. The driver was cooperative. The pat-down
    search did not disclose a weapon but the senior officer felt what he believed
    to be a large wad of cash in the drivers pocket. He did not search the pocket.

[8]

In order to ensure officer safety, and despite feeling that he was in
    somewhat uncharted territory in doing so, the senior officer then decided to
    search the vehicle. He noticed Bounce dryer sheets sticking out of the vents
    and four air fresheners hanging in the vehicle, and smelled fresh, unburnt
    marijuana. On the basis of that evidence, and the wad of cash he believed he
    had felt when he conducted the pat down search, he proceeded to arrest the
    driver for violation of s. 4(1) of the
Controlled Drugs and Substance Act
.
    The senior officer then continued the search of the drivers vehicle and found what
    looked to him to be about one- half pound of marijuana and two loaded guns in
    the locked glove compartment.

[9]

Two bags of crack cocaine were later discovered on the drivers person.

[10]

The
    black bag referred to in the senior officers testimony was not in the photos
    of the drivers vehicle or its contents taken after his arrest, and was not an
    exhibit at trial.

The trial judges ruling

[11]

The
    trial judge concluded that once the police officers obtained information via
    the computer with respect to the driver, the
Highway Traffic Act
stop turned
    into an unjustified investigative detention. For several reasons, including
    that he did not accept the senior officers testimony regarding the black bag,
    the trial judge rejected the senior officers evidence that the pat down search
    and subsequent search of the vehicle were motivated by concerns for the
    officers safety.  The trial judge found that the officers were on a fishing
    trip.

[12]

As
    a result, the pat down search and the subsequent search of the vehicle were
    unlawful.

[13]

In
    his s. 24(2) analysis, the trial judge characterized the senior officer as
    having attempted to tailor his evidence to fit a pattern which is allowed by
    the courts. On the basis of this misconduct, he concluded that the drugs and
    weapons found as a result of the searches had to be excluded as evidence in
    order to avoid bringing the administration of justice into disrepute. In the
    course of his s. 24(2) analysis, the trial judge also commented that he was not
    persuaded that the driver had in fact made a rolling stop.

Finding of fact for which there was no evidence

[14]

The
    onus was on the driver to establish that his detention was unlawful.

[15]

The
    Crown argues that the trial judge made a finding that the driver had not made a
    rolling stop, when the only evidence before him was that of the police officers
    that the driver had done so, and that this legal error tainted the trial
    judges subsequent
Charter
analysis.

[16]

We
    do not agree.

[17]

The
    presence or absence of a rolling stop did not underpin the trial judges
    conclusion that there was an improper investigative detention. As indicated
    above, he concluded that the
Highway Traffic Act
stop, even if valid,
    became an improper investigative detention once the officers received the
    information with respect to the driver on their computer. That conclusion is
    not challenged on this appeal.

[18]

A
    review of the record together with the trial judges reasons makes it clear
    that the focus on the
voir dire
was on whether the warrantless
    searches of the driver and his vehicle following the
Highway Traffic Act
stop were justified on the ground of officer safety. The onus was on the Crown
    to justify these warrantless searches, and the trial judge concluded that the
    Crown had not met that onus. The credibility findings made by the trial judge
    in assessing the officers evidence in relation to the grounds for the searches
    led him to doubt all of their evidence, including their evidence that the
    driver had made a rolling stop at a red light. The trial judge stopped short of
    making a finding of fact that the rolling stop had not occurred. We see no
    error of law within s. 676(1)(a) of the
Criminal Code
upon which the
    Crowns appeal against the respondents acquittal can succeed.

Reasonable apprehension of bias

[19]

While
    the extent of the questioning engaged in by the trial judge was unwise, we are
    not persuaded that it would cause an informed person, viewing the matter
    realistically and practically, and having thought the matter through, to
    conclude that the trial judge, consciously or unconsciously, would not decide
    the matter fairly: see
Committee for Justice and Liberty v. Canada
    (National Energy Board)
, [1978] 1 S.C.R. 369, at pp. 394-95.

[20]

Indeed,
    we note that the Crown did not object to the questioning during the course of
    the
voir

dire
. It waited until it received the ruling which
    it now appeals, suggesting that as the
voir

dire
unfolded it
    was unclear to the Crown itself  very much an informed person  that the
    extent of the questioning displayed bias or a reasonable apprehension of bias.

Disposition

[21]

In
    the result, we dismiss this appeal.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Penner, 2013 ONCA 272

DATE: 20130426

DOCKET: C54325

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Clavin Penner

Applicant/Appellant

Christopher D. Hicks, for the appellant

Chris De Sa, for the respondent

Heard: April 25, 2013

On appeal from the conviction entered on March 28, 2011
    and the sentence imposed on August 10, 2011 by Justice Dougald R. McDermid of
    the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises two arguments on the conviction appeal. First, that
    a special instruction was required because the appellants conduct during the
    encounter with the police was post-offence conduct. We do not agree. The possession
    was a continuing offence, and did not simply end when the appellant left the
    vehicle.  In any event, the appellants explanation for his conduct, that he
    was anxious to return the vehicle to his mother, was clearly placed before the
    jury.

[2]

Second, on this record, there were clear concessions that if the
    appellant was in possession, that possession was for the purpose of
    trafficking.  There was no objection of the charge on this basis. The theory
    that somehow the appellant was in possession because he knew his uncle had
    placed the drugs in the vehicle but that he did not intend to traffic was never
    raised at trial and there is no air of reality to that theory.

[3]

The appeal from conviction is dismissed.

[4]

As to sentence, given the fresh information that the appellant is in
    custody, a conditional sentence would not be practical. In any event, we find
    no error in principle by the trial judge in refusing to impose a conditional
    sentence.

[5]

Leave to appeal sentence is refused.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poitras, 2013
    ONCA 281

DATE: 20130430

DOCKET: C55401

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwight Poitras

Appellant

Dwight Poitras, in person

Scott Hutchison, duty counsel

Lucy Cecchetto, for the respondent

Heard and released orally: April 17, 2013

On appeal from the conviction entered on December 5, 2011
    and the sentence imposed on February 1, 2012 by Justice D. Rutherford of the
    Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of uttering threats to cause bodily harm to Susanne
    Poitras and of uttering threats to burn, damage or destroy her property. He was
    sentenced to one month and three years probation.  He appeals his conviction
    and his sentence.

[2]

The evidence of threats came through Mrs. Poitras testimony and was
    supported by extensive audio recordings. We see no merit in the conviction
    appeal.

[3]

The sentence was fit.

[4]

Leave to appeal sentence is refused and the appeal is dismissed.

"R.G. Juriansz J.A."

"J. MacFarland J.A."

"S.E. Pepall J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadiqi, 2013
    ONCA 250

DATE: 20130422

DOCKET: C53524

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Hasibullah Sadiqi

Appellant

Apple Newton-Smith, for the appellant

Christine Tier, for the respondent

Heard and released orally:  April 4, 2013

On appeal from the conviction entered by a jury presided
    over by Justice Rutherford of the Superior Court of Justice, dated May 28, 2009,
    and the sentence imposed on May 28, 2009.

By the Court:

I

[1]

The appellant was convicted of two counts of first degree murder.  He
    appealed from his convictions alleging that:

·

the trial judge improperly admitted certain expert evidence; and

·

the trial judge failed to give a
W.D.
 instruction;

[2]

The court dismissed the appeal after oral argument with reasons to
    follow.

II

[3]

The appellant is the older brother of Khatera Sadiqi, one of the
    victims.  Khatera was engaged to marry Feroz Mangal, the other victim.  The
    appellants family and the Mangal family immigrated to Canada from Afghanistan.

[4]

The defence conceded at trial that the appellant shot both victims.  The
    defence also conceded that the appellant intended to kill both victims.

[5]

The defence contended that the appellant was provoked by insulting
    comments made by Mr. Mangal at the end of an evening during which the appellant
    had attempted, unsuccessfully, to reconcile with his sister.  According to the
    defence, Mr. Mangals insulting comments, which included references to the
    appellants father, caused the appellant to suddenly lose control, go to his
    car, retrieve a loaded handgun that happened to be in his car, return to the victims
    car, shoot his sister who was seated in the drivers seat at close range in the
    head, and then shoot Mr. Mangal who was seated in the front passenger seat.  In
    total, the appellant fired six shots.  There was a time lapse of about 30
    seconds between the fifth and sixth shot.

[6]

The appellant acknowledged in his testimony that his relationship with
    his sister had been strained as a result of her refusal to allow their father
    to be involved in her upcoming wedding and Khateras insistence that she would
    make her own decisions about who she married and where she lived.  On the night
    of the homicides, the appellant had arranged to have dinner with his sister and
    Mr. Mangal.  He hoped to put their relationship on better terms. Things went
    well during the evening until the appellant spoke to Khatera about their
    father.  They began to argue and Mr. Mangal told the appellant to let it be.
    Things became tense and the appellant decided to leave.  As he walked away from
    the vehicle in which his sister and Mr. Mangal were seated, Mr. Mangal said:

Fuck you, fuck your father, fuck your sister.  Ill bring your
    sisters dead body to the wedding before I ever let her talk to your father.
    Fuck you.

[7]

According to the appellant, he exploded.  He professed to have no
    recollection of the subsequent events until he found himself driving away from
    the scene of the double homicide.

[8]

The Crown maintained that the murder was not provoked, but was planned
    and deliberate.  The Crown contended that Khatera and her father had been
    estranged for years.  Khateras mother had fled the marriage and divorced Khateras
    father.  Khatera had completely disassociated herself from her father who she
    alleged was abusive.  She wanted nothing to do with him.  Khatera had become
    engaged to Mr. Mangal and was living with his family.  She had taken these
    steps without consulting her father.  Khatera did not want her father involved
    in the wedding.

[9]

According to the Crowns theory, the appellant strongly believed that
    Khateras conduct disrespected their father and brought shame to their family.
    On the Crowns theory, the appellant decided to vindicate the family honour by
    killing his sister.  Statements made by the appellant prior to the shooting, his
    actions towards his sister before the shooting, the events immediately
    surrounding the shooting, and certain post-shooting conduct by the appellant
    gave credence to the Crowns theory.

III

the admissibility of the experts evidence

[10]

At
    trial, the Crown tendered the evidence of Dr. Mojab, an acknowledged expert in
    the phenomenon of honour killings within the traditional cultures of the Middle
    East, including Afghanistan.  The Crown sought to elicit Dr. Mojabs opinion as
    to the relationship between culture, religion, patriarchy and violence against
    women in the Middle East and diasporas around the world, specifically as those
    issues relate to honour killings.

[11]

On
    the
voir dire
to determine admissibility, the defence did not
    challenge Dr. Mojabs expertise, did not suggest that her description of honour
    killings was inaccurate in any way, and did not suggest that evidence like that
    proffered by the Crown would not be helpful to the jury.  In fact, the defence readily
    acknowledged that evidence of the Afghan culture and the cultural
    perspective of the parties were relevant to both the issue of provocation and
    the issue of planning and deliberation.  The defence told the trial judge that
    it would be calling expert evidence to give the context of the Islamic
    culture.

[12]

The
    defence resisted the admissibility of Dr. Mojabs evidence on the basis that
    her background as a strong advocate for womens rights made her incapable of
    providing the kind of objective description of the relevant cultural context
    that could assist the jury.  The defence argued that Dr. Mojabs advocacy,
    combined with the inherently prejudicial use of the phrase honour killings, could
    turn the focus of the trial away from whether the Crown had proved the
    appellants culpability, to domestic abuse in general and, in particular, domestic
    abuse fostered by cultural beliefs that are antithetical to the beliefs
    underlying Canadian culture.

[13]

In
    rejecting the defence argument based on Dr. Mojabs bias, the trial judge said,
    at para. 45:

I dont see that Dr. Mojabs objectives in educating people,
    including judges, lawyers and police officers about an odious cultural
    phenomenon affecting women inhumanely and in an effort to bring about change to
    improve the rights of women preclude her from being an acceptable expert
    witness in a case like this one.  No attack has been made on the correctness or
    integrity of her description of the phenomenon of honour killing.

[14]

The
    trial judge next considered whether the potential prejudicial effect of Dr.
    Mojabs evidence outweighed its probative potential.  He observed that Dr.
    Mojab did not know any of the parties and would not testify in any way about any
    of the facts of the case.  Dr. Mojab would not offer any opinion as to whether
    the homicides were honour killings.  Nor would she offer any opinion based on
    any hypothetical fact situation.  Dr. Mojabs evidence would provide context that
    could assist the jury in deciding what inferences to draw as to the appellants
    state of mind from the facts that the jury found the Crown had established.

[15]

After
    noting that the doctors evidence would be straightforward and easy to
    understand, the trial judge concluded his assessment of the potential probative
    value of the expert evidence with this observation:

I am supported in my conclusion by the defence assertion that
    evidence of Afghan culture and of the cultural perspective of the parties is
    relevant and that a defence expert on the subject will be presented as well.  I
    see no significant prejudice that would flow from Dr. Mojabs testimony and
    there is no rule of evidence to hold against its admission.

[16]

We
    see no error in the trial judges analysis.  The necessity for and relevance of
    the proffered expert evidence, although challenged on appeal, are obvious given
    that provocation and planning and deliberation were in issue at the trial.  Both
    the theory of the Crown and the position of the defence made the evidence
    relevant.  The defence at trial conceded the need for and relevance of the
    expert evidence.  Indeed, the defence told the trial judge that it intended to
    call similar expert evidence.  The defence objection at trial targeted the
    witness the Crown wanted to call and not the nature of the evidence the Crown
    intended to elicit.  Indeed, at one point in the submissions, defence counsel
    went so far as to suggest that it would have no objection if the Crown elicited
    its evidence through the expert the defence proposed to call.

[17]

We
    agree with the trial judges finding that Dr. Mojab was an appropriate
    witness.  A review of the evidence she actually gave fully supports the trial
    judges ruling.  Dr. Mojab made it clear that she had no knowledge of this
    specific case and that her evidence about cultural phenomena could not be
    assumed to be applicable to any particular individual within the culture.  As
    she put it:

The immigrant and refugee or any of the ethnic groups within
    Canada are as diverse as the entire Canadian society, and that is very
    important that we do not homogenize the community and actually appreciate the
    diversity within all these communities.

[18]

The
    balanced nature of Dr. Mojabs evidence is perhaps best indicated by the
    defence decision not to call its expert.  Presumably, the defence got the necessary
    cultural context evidence it needed from Dr. Mojab.

[19]

The
    trial judges balancing of the probative value versus the potential prejudicial
    effect of the evidence is entitled to deference in this court.  We see no error
    in principle in his analysis of the relevant considerations; nor was his
    ultimate assessment unreasonable.  Like the trial judge, we think it important
    in assessing the potential prejudicial effect that the expert offered no
    opinion on the facts of the case.  There was no danger that the jury would cede
    its fact finding responsibilities to the expert.

[20]

Lastly,
    we note that the trial judges instructions, both when the expert evidence was
    admitted and at the end of the trial, carefully and accurately described the
    use the jury could make of Dr. Mojabs evidence.  The jury would no doubt have
    understood that the expert evidence was simply part of the evidentiary mosaic
    against which to consider the actions of the appellant as the jury ultimately
    found those actions to be.

IV

the failure to give an explicit
w.d.
instruciton

[21]

After
    hearing extensive submissions from counsel, the trial judge decided not to give
    the usual
W.D.
instruction.  The trial judge was motivated both by the
    defence acknowledgement of liability for manslaughter, and the nature of the
    provocation defence.  Given the objective component of the provocation defence,
    the jury could have accepted the appellants evidence and still have been
    satisfied beyond a reasonable doubt that provocation was unavailable.  The
    traditional
W.D.
formulation did not work in respect of provocation.

[22]

The
    instructions given by the trial judge did, however, make it crystal clear that
    the burden to prove each and every element of the offence and to negate
    provocation never shifted from the Crown.  Nor, in light of the instructions,
    would the jury have approached the case by choosing between alternative
    versions of events.  The trial judge repeatedly told the jury that the onus
    rested on the Crown to prove its case beyond a reasonable doubt.  Having regard
    to the issues raised at trial, the nature of the evidence, and the entirety of
    the reasonable doubt instruction, the failure to give a specific
W.D.
instruction was not an error.

[23]

Counsel
    for the appellant submitted that the failure to give a
W.D.
instruction
    was particularly significant because the case was presented to the jury as one
    in which the jury had to make a choice between the experts testimony and the
    appellants description of his state of mind.  We do not read the charge to the
    jury as setting up a credibility contest between the appellants testimony
    and the experts evidence.  The Crowns case rested on a strong web of
    circumstantial evidence. The Crown argued that the appellant had evinced an
    intention to kill his sister long before he did so.  The Crown argued that when
    the appellant in fact killed his sister, it was fair to infer that he had done
    what he had said sometime earlier he was going to do.  This straightforward and
    powerful logic had nothing to do with Dr. Mojabs evidence and made for a
    strong case of planning and deliberation.

V

[24]

For
    the reasons set out above, the appeal is dismissed.

RELEASED: Apr 22, 2013                                                Doherty
    J.A.

DD                                                                            Paul
    Rouleau J.A.

Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Selvaratnam, 2013 ONCA 221

DATE: 20130408

DOCKET: C53610

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Nanthan Selvaratnam

Appellant

David W. Russell, for the appellant

Michelle Campbell, for the respondent

Heard and released orally:  April 3, 2013

On appeal from the conviction entered by Justice G.S.
    Gage of the Ontario Court of Justice, dated November 12, 2010.

ENDORSEMENT

[1]

The trial judge was entitled to accept the testimony of the two
    independent witnesses that they saw no threatening behaviour by the
    complainant.  In doing so, he did not misapprehend the evidence.  The two
    independent witnesses may not have seen the entire altercation and parts of
    their evidence were inconsistent with each other and probably inaccurate.
    However, their evidence did support the Crowns contention that the complainant
    was in no way the aggressor and did not threaten the appellant immediately
    before the appellant threw the hammer at the complainant causing the relevant
    injury.  The trial judge correctly regarded the evidence of the independent
    witnesses as undermining the appellants self-defence claim.

[2]

The verdict was not unreasonable. The trial judges treatment of the
    evidence that the complainant had a screwdriver in his hand at some point
    during the dispute, but before the assault, was not incompatible with the trial
    judges finding that the appellant had no basis to fear for his safety when he
    assaulted the complainant. The relevant events occurred in the workplace of the
    appellant and the complainant.  The complainant routinely carried and used a
    screwdriver for work purposes.  The trial judge was entitled to take the view
    of the evidence that he did.

[3]

The appeal is dismissed.

Doherty J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2013 ONCA 202

DATE: 20130403

DOCKET: C53009 and C52983

MacPherson, Blair and
    Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dakota Thompson

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Stanley Brown

Appellant

Brian Snell, for the appellant Dakota Thompson

Catriona Verner and Victor Giourgas, for the appellant Stanley
    Brown

Eric Siebenmorgen for the respondent in both appeals

Heard: March 25, 2013

On appeal from the
    sentence imposed by Justice F. Campling of the Ontario Court of Justice on June
    18, 2010.

BY THE COURT:

[1]

In separate but related appeals, Mr. Brown and Ms. Thompson seek to vary
    the sentences imposed on them by Justice F. Campling of the Ontario Court of
    Justice following guilty pleas to charges of aggravated assault and forcible
    confinement.

[2]

In the case of Mr. Brown, the Crown and defence made a joint submission
    proposing a sentence of 7 years and 2 months imprisonment (less 32 months
    credit for pre-trial custody). The sentencing judge imposed a sentence of 13
    years less credit for pre-trial custody. With respect to Ms. Thompson, there
    was no joint submission, but the Crown proposed a sentence of 4 years
    imprisonment in addition to 32 months credit for pre-trial custody, which
    would have amounted to a sentence of 6 years and 8 months less credit for
    pre-trial custody. The sentencing judge imposed 10 years less credit for
    pre-trial custody.

[3]

The principal ground of appeal is that the trial judge erred by
    jumping the joint submission made with respect to Mr. Brown and by jumping
    the Crowns proposal with respect to Ms. Thompson, without providing any
    reasons for doing so, without advising the Crown and defence that he was
    considering such a disposition, and without giving counsel an opportunity to
    make submissions or lead evidence in relation to his intention.

[4]

We agree, and for the reasons that follow, we allow the appeals.

Facts

[5]

All parties acknowledge that the circumstances of these offences were
    extraordinarily egregious.  The appellants and one other adult individual, Mr.
    Jug, lured the victim  a mentally delayed 22-year old man living on social
    assistance  to their apartment on the pretext that they could help him find
    his lost cell phone.  Once at the apartment, they  along with a fourth
    individual, a young offender  confined the victim using force, refusing to
    allow him to leave, and subjecting him to what can only be described as torture
    for a period of 17 consecutive days.  They threatened him.  They punched him,
    kicked him and hit him over the head with a pole.  They burned parts of his
    body with a hair straightener, including his penis and buttocks.  They forced
    him to eat feces and urine.  And when he tried to bathe to clean his wounds,
    they poured cayenne pepper into his bathwater.

[6]

Not content with this cruelty, the appellants and the other offenders
    also robbed the victim of his savings and income by stealing his bank card and
    forcing him to reveal his PIN number, which they then used to drain his account
    of all funds.  They used the monies to purchase marijuana and video games,
    which they consumed and played in front of him.  The victim was at least allowed
    to take his seizure medication.  On one occasion, he escaped, but was quickly caught
    and punished.

[7]

The ordeal only came to an end when, after 17 days, the offenders phoned
    the police because of a dispute with their downstairs neighbours.  When the
    police arrived and asked if anyone else was there, they eventually revealed the
    presence of the victim.

[8]

Somewhat miraculously, the victim has made a relatively full recovery
    from his physical injuries, although he was clearly terrified throughout and
    has permanent scars on his hands, arms, legs and on the top of his foot.

[9]

Turning to consider the offenders in the context of the nature of the
    offence, the appellants and their fellow participants all came from troubled
    backgrounds and suffered from cognitive difficulties themselves.  None worked.
    Mr. Brown, Ms. Thompson and their co-accused Mr. Jug shared the apartment and
    supported themselves on public funds.

[10]

Mr.
    Brown was 30 years old at the time of the offences.  He suffered from fetal
    alcohol and Aspergers syndromes and was clinically assessed to be of
    borderline intelligence.  He had a minor and mostly outdated criminal record
    that did not involve offences of violence.  Ms. Thompson was 21 at the time.
    She and Mr. Brown were in a romantic relationship together.  She had had a
    difficult upbringing, had at one point been suicidal, and by the age of 19 had
    become an addicted drug user.  She had no criminal record.

[11]

Lastly,
    there seems to be no dispute that Mr. Brown and Mr. Jug were the primary
    perpetrators of these crimes  Mr. Jug received the maximum sentence of 14
    years imprisonment  and that Ms. Thompson was the least involved in
    inflicting the violence, although she was a knowing and active participant
    throughout the period of the victims captivity.

Analysis

[12]

The
    sentencing judge quite understandably  and correctly  viewed these offences
    as highly blameworthy.  He considered them worthy of consideration for the
    maximum sentence allowable.  He also correctly concluded that the principles of
    denunciation and deterrence were paramount in the circumstances, but that the
    prospects of rehabilitation required consideration as well.

[13]

Respectfully,
    however, he erred in our view in his decision to jump the joint submission
    (respecting Mr. Brown) and the Crowns submission (respecting Ms. Thompson) by a
    little less than double the amount proposed.  In doing so, he gave no
    meaningful reasons, save for his recognition of the general need to respect
    such submissions and his reference to maximum penalties.  In addition, he gave
    no advance warning to counsel and did not give them the opportunity to make
    submissions or lead further evidence on the issue.

[14]

While
    a sentencing judge is not bound by a joint submission, the jurisprudence is
    clear that he or she should not depart from such a submission unless satisfied
    that the recommended disposition would be contrary to the public interest and
    would bring the administration of justice into disrepute: see
R. v.
    Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.);
R. v. Tsicos
,
    [2006] O.A.C. 104 (C.A.); and
R. v. R.W.E.
, 2007 ONCA 461, 221 C.C.C.
    (3d) 244.  This is because the justice system depends upon judges rarely
    departing from sentences jointly recommended by counsel in order to operate
    effectively.  Finlayson J.A. explained it this way in
Cerasuolo
, at
    pp. 447-448:

This court has repeatedly held that trial judges should not
    reject joint submissions unless the joint submission is contrary to the public
    interest and the sentence would bring the administration of justice into
    disrepute:
e.g. R. v. Dorsey
(1999), 123 O.A.C. 342 at 345.  This is a
    high threshold and is intended to foster confidence in an accused, who has
    given up his right to a trial, that the joint submission he obtained in return
    for a plea of guilty will be respected by the sentencing judge.

The Crown and the defence bar have cooperated in fostering an
    atmosphere where the parties are encouraged to discuss the issues in a criminal
    trial with a view to shortening the trial process.  This includes bringing
    issues to a final resolution through plea bargaining.  This laudable initiative
    cannot succeed unless the accused has some assurance that the trial judge will
    in most instances honour agreements entered into by the Crown.  While we cannot
    overemphasize that these agreements are not to fetter the independent evaluation
    of the sentences proposed, there is no interference with the judicial
    independence of the sentencing judge in requiring him or her to explain in what
    way a particular joint submission is contrary to the public interest and would
    bring the administration of justice into disrepute.

[15]

To
    that, Weiler J.A. added the following in
R.W.E.
, at para. 33:

This courts recent decision in
R. v. Tsicos
mentions a
    number of factors that a sentencing judge should consider in rejecting a joint
    submission.  After explaining why the joint submission is contrary to the
    public interest or how it would bring the administration of justice into
    disrepute, it suggests that a court should acknowledge the high threshold for
    rejecting a joint submission; inform counsel that the court is disinclined to
    accept a joint submission and afford them the opportunity to make submissions
    on the matter; and, if imposing a different sentence, a court must fully
    consider the circumstances of these offences and this offender in determining a
    fit sentence.

[16]

As
    noted above, the sentencing judge conducted no such analysis in any meaningful
    way in his reasons, nor did he forewarn counsel of his intentions or provide
    them with an opportunity to respond.  He therefore erred in principle.

[17]

Because
    of these errors in principle, it is open to this Court to consider what the
    appropriate sentence should be.  For the reasons that follow, we think it
    appropriate to give effect to the joint submission.  As a result, it is
    necessary to reconsider the sentence imposed upon Ms. Thompson as well, given
    the somewhat different roles she and Mr. Brown played in perpetrating the
    crimes.

[18]

While
    in other circumstances, a range of sentence in the general area of that chosen
    by the sentencing judge might be reasonable (around 10 years for someone in the
    role of Ms. Thompson and around 13 years for a participant like Mr. Brown), we
    think the particular circumstances of these appellants operate to lower that
    range.  As one counsel noted, this was not a case of the strong preying on the
    weak, but one of the weak preying on the weak.

[19]

Left
    to our own devices, in the absence of the joint submission regarding Mr. Brown
    and the Crowns recommendation regarding Ms. Thompson, we might have arrived at
    a sentence somewhere between those positions and that adopted by the sentencing
    judge in the circumstances.  However, the guilty pleas were negotiated in the
    context of that joint submission and the Crowns stance regarding Ms.
    Thompson.

[20]

Weighing
    the circumstances of these offenders and notwithstanding the egregious nature
    of the crimes they committed, we cannot say that the joint submission could be
    considered to be contrary to the public interest or that giving effect to it would
    bring the administration of justice into disrepute.  Accordingly, we would give
    effect to it for the purposes of Mr. Browns sentence.

[21]

Ms.
    Thompsons sentence must therefore be re-adjusted as well.  In that regard, we
    think it significant that the Crown requested a sentence of 4 years (in
    addition to time spent in pre-trial custody) for Ms. Thompson.  Given the way
    in which these matters proceeded as a package, and in the context of the joint
    submission in relation to Mr. Brown, which we have now adopted, we cannot say
    that the Crowns proposal was unreasonable, and we would adopt that proposal
    for purposes of Ms. Thompsons sentence.

[22]

Both
    appellants raised an additional ground of appeal, asserting that the sentencing
    judge had not given adequate consideration to their guilty pleas.  In our view
    the sentencing judge did deal with the circumstances surrounding the guilty
    pleas in an adequate fashion.  That said, the fact that the appellants did
    plead guilty is an important factor to be taken into account in arriving at an
    appropriate disposition.

Disposition

[23]

For
    all of the foregoing reasons, we grant leave to the appellants to appeal their
    sentence and allow their appeals.  The sentence imposed by the sentencing judge
    will be varied to provide as follows:

For the appellant Brown  a sentence of 7 years and 2 months
    (less 32 months credit for pre-trial custody)

For the appellant Thompson  a sentence of 6 years and 8 months
    (less 32 months credit for pre-trial custody)

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.

Released: April 03, 2013


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tommasone, 2013 ONCA 234

DATE: 20130412

DOCKET: C54639

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Anthony Tommasone

Appellant

Leo Adler, for the appellant

Philippe G. Cowle, for the respondent

Heard & released orally: April 9, 2013

On appeal from the convictions entered by Justice S. E.
    Foster of the Ontario Court of Justice on September 13, 2011.

ENDORSEMENT

[1]

The appellant appeals his convictions for robbery and disguise with
    intent. The principal ground of appeal presented in oral argument relates to party
    liability. In that regard, there was evidence that:

1.

the appellant
    was involved in planning the robbery;

2.

the appellant
    knew at the relevant time that Virdi was about to rob the victim;

3.

the appellant
    put on a mask and stood with Virdi who was also masked awaiting the victims
    arrival;

4.

the appellant
    remained at the scene in close proximity to the victim while Virdi attacked the
    victim; and

5.

the appellant
    fled the scene with Virdi.

[2]

In our view, it was open to the trial judge on that evidence to convict
    the appellant as a party to the robbery. The trial judge specifically rejected
    the appellants evidence that he had abandoned the robbery before it took
    place.

[3]

It was also open to the trial judge to infer a level of participation
    and encouragement of Virdi, the principal perpetrator, from the evidence that
    the appellant remained at the scene ready to assist Virdi should the need
    arise.

[4]

As for the conduct requirement, the appellants participation went
    beyond mere presence. As for
mens rea
, knowledge that Virdi was going
    to commit a robbery is conceded and the intent to assist can be inferred from the
    actions of the appellant and all of the circumstances as outlined above.

[5]

Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

David Watt J.A.