COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ghotra, 2020 ONCA 373

DATE: 20200612

DOCKET: C64911

Hourigan, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Akash Ghotra

Appellant

Alan D. Gold and Laura J. Metcalfe, for
    the appellant

Katie Doherty, for the respondent

Heard: February 18, 2020

On appeal from the conviction entered on
    May 3, 2016 by Justice Bruce Durno of the Superior Court of Justice, sitting
    without a jury, with reasons reported at [2016] O.J. No. 7161, and from the
    dismissal of an application for a stay of conviction on September 13, 2016,
    with reasons reported at 2016 ONSC 5675, 342 C.C.C. (3d) 128.

B.W. Miller J.A.:

[1]

The appellant, a 26-year-old medical student, started
    a conversation in an internet chat room with mia_aqt98 in November 2012. He asked
    for her age, sex, and location. Mia answered that she was a 14-year-old girl.
    Within minutes, the appellant turned the conversation explicitly sexual. They
    chatted on and off over four days, culminating in his proposal they meet up for
    sex. In reality, Mia was an online persona created by a Peel Regional Police
    officer as part of an investigation by the Internet Child Exploitation Unit (ICE)
    into online child luring. When the appellant attended at an agreed meeting
    place, he was arrested. He gave a police statement shortly after speaking with
    duty counsel.

[2]

The appellant was convicted of internet child
    luring, contrary to s. 172.1(1)(b) of the
Criminal Code
. He received a
    six-month custodial sentence. At the close of the trial, the appellant brought
    an application for a stay on the basis of entrapment. The application was
    denied: 2016 ONSC 5675, 342 C.C.C. (3d) 128 (Entrapment Ruling). He appeals
    against conviction on the bases of entrapment and a violation of his right to
    counsel under s. 10(b) of the
Charter of Rights and Freedoms
.

[3]

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

A.

Background

[4]

Police Constable Hutchinson worked in the ICE
    Unit of Peel Regional Police. Her responsibilities included investigating the
    exploitation of children on the internet. Her method of investigation was to adopt
    the persona of a child and engage in chats with unknown persons online.

[5]

PC Hutchinson created a Yahoo Messenger account with
    the username mia_aqt98. She testified that she chose Mia to indicate that
    she was female, that the abbreviation aqt meant a cutie, and that 98 suggested
    a year of birth of 1998, which at the time of the offence would have indicated an
    age of 14 years. The public profile she created, which was visible to other
    users, displayed her name as Mia Andrews, age 19, with date of birth November
    10, 1993. One of Yahoos conditions of use was that participants attest to
    being 18 years of age or older.

[6]

On November 27, 2012, when PC Hutchinson logged
    into a chat room called Toronto Global Chat 1, the appellant was already logged
    in. Like any other user logged in at that time, he received an automatic
    notification that mia_aqt98 had logged in and was now present in the chat room.

[7]

The appellant initiated a private conversation,
    outside the chat room, with hi and asl?, meaning age, sex, and location. Mia_aqt98
    answered, 14, f and brampton, meaning 14 years old, female, and living in
    Brampton.

[8]

The appellant asked if Mia wanted to go to a
    movie, and Mia declined, saying i dont even kno u and i nvr chilled wit an
    older boy b4. The appellant volunteered that he was a medical student, with his
    own car, and living on his own. Mia asked the appellant if he saw that she was
    14. He replied yeah yeah. thats cool and we can be friends.

[9]

The appellant then asked Mia why she didnt have
    a boyfriend, whether she liked anyone from school. He then turned the
    conversation explicitly sexual, asking about her sexual experience, whether she
    masturbated. Over the next few days, he returned to the themes of masturbation
    and pornography, offered to coach her on how to masturbate, and described what
    he would like to do with her sexually. He sent her a link to a pornographic
    video of a couple engaged in intercourse, assured Mia that the woman in the
    video was loving it, and that in any event they would not start off with intercourse
    right away. When she expressed reticence because of her young age, he was reassuring:
    u want for ur first time sex to be with someone older than u/ who knows what
    he is doing. When he asked if she had told anyone about him, she said no. When
    she asked if the appellant had told anyone about her, he replied not yet.. they
    will be all lik u r dating such a yound girl.

[10]

On November 29, 2012, the appellant asked to
    meet Mia, and she agreed to skip school and meet him at her apartment the next
    day. On November 30, 2012, the two had further text communications. Mia asked
    the appellant to meet at her apartment. He told her he would meet her in the
    lobby. When he texted from the lobby, police officers arrested him.

[11]

After speaking with duty counsel, the appellant
    gave a police statement in which he discussed his chat conversations with Mia. In
    a pre-trial
voir dire
, the trial judge found the police statement to
    be admissible under s. 24(2) of the
Charter
, dismissing almost all of
    the appellants arguments that the statement was involuntary or proffered in
    breach of his rights under
Charter
ss. 10(a) and (b): [2015] O.J. No.
    7328 (S.C.) (Statement Ruling).

[12]

At trial, the appellant acknowledged his
    participation in the chats, but claimed that he believed he was communicating
    with an adult engaged in role-playing. He testified that he had no intention of
    engaging in sexual activity with someone underage.

[13]

The trial judge rejected the appellants
    evidence. He was satisfied beyond a reasonable doubt that the appellant
    believed he was communicating with an underage person, and that the communication
    was for the purpose of committing sexual touching.

B.

The Entrapment Application

[14]

Upon conviction, the appellant brought an
    entrapment application to stay proceedings. He argued that PC Hutchinson lacked
    the requisite grounds to offer an opportunity to commit an offence by posing
    as a 14-year-old girl. The trial judge dismissed the application on the basis
    that (1) PC Hutchinson did not offer an opportunity for the appellant to
    commit the offence, and (2) if there was an opportunity offered, it was made in
    the course of a
bona fide
investigation.

[15]

For the reasons given below, I would dismiss the
    appeal on the basis that the trial judge did not err in concluding that the
    officer did not provide an opportunity to commit an offence. It is therefore
    unnecessary to address the issue of whether there was a
bona fide
investigation.

[16]

The defence of entrapment flows from the doctrine
    of abuse of process. It is not a substantive defence to allegations of criminal
    wrongdoing, but instead allows for a conviction to be stayed where the investigative
    conduct of the police was exploitative or corrupting. As the Supreme Court
    explained in
R. v. Mack
, [1988] 2 S.C.R. 903, [i]n certain cases the
    police conduct will be offensive because it exploits human characteristics that
    as a society we feel should be respected: at p. 963. The court provided the
    following example of police conduct that would constitute entrapment, at p.
    963:

[I]f the law enforcement officer or agent appeals
    to a persons instincts of compassion, sympathy and friendship and uses these
    qualities of a person to effect the commission of a crime, we may say this is
    not permissible conduct because it violates individual privacy and the dignity
    of interpersonal relationships, and condemns behaviour that we want to
    encourage.

[17]

This court recently summarized the branches of
    the entrapment doctrine in
R. v. Ahmad
, 2018 ONCA 534, 141 O.R. (3d)
    241, at para. 32, revd in part but not on this point, 2020 SCC 11:

In
Mack
, at pp. 964-65, the Supreme Court set out the two principal
    categories of entrapment. The defence is available when either:

1) the authorities provide a person with an
    opportunity to commit an offence without acting on a reasonable suspicion that
    this person is already engaged in criminal activity or pursuant to a
bona fide
inquiry; or

2) although having such a reasonable suspicion
    or acting in the course of a
bona fide
inquiry, they go beyond providing an opportunity and induce the
    commission of an offence.

[18]

At para. 31 of
Ahmad
, this court
    explained the onus on the accused in an entrapment application:

[G]iven the serious nature of an entrapment
    allegation and the substantial leeway given to the state to develop techniques
    to fight crime, a finding of entrapment and a stay of proceedings should be
    granted only in the clearest of cases:
Mack
, at pp. 975-76. The
    accused must establish the defence on a balance of probabilities:
Mack
,
    at p. 975.

[19]

In
R. v. Barnes
, [1991] 1 S.C.R. 449,

the Supreme Court affirmed the basic rule articulated in
Mack
,
    that the police may only present the opportunity to commit a particular crime to
    an individual who arouses a suspicion that he or she is already engaged in the
    particular criminal activity: at p. 463. It also affirmed an exception to this
    rule where police are undertaking a
bona fide
investigation directed
    at an area where it is reasonably suspected that criminal activity is
    occurring: at p. 463. Where police neither have reasonable suspicion of an individual
    already engaged in crime, nor are investigating a location that is reasonably
    suspected of being a hub of criminal activity, presenting an opportunity to
    commit a particular crime amounts to random virtue testing, and is not
    permitted. The Supreme Court most recently affirmed these principles in
Ahmad
,
    in which a majority of the court held that the entrapment framework from
Mack
has stood the test of time and applies with full force to contexts such as
    child luring: at para. 23.

[20]

In this appeal, there was no allegation that the
    police acted in a way to induce the appellant to commit an offence. The
    application turned solely on the first branch: whether the police provided the
    appellant with an opportunity to commit an offence, and if so, whether the
    police were undertaking a
bona fide
investigation in an area where
    they had a reasonable suspicion that crime was occurring. It is common ground
    that the police had no individualized reasonable suspicion that the appellant himself
    was engaged in criminal activity when PC Hutchinson responded to his question
    asl?.

[21]

Much of the entrapment case law focuses on the
    distinction between presenting an individual with an opportunity to commit an
    offence, and merely taking a step in investigating criminal activity. The
    former is entrapment unless the police first have reasonable suspicion. The
    latter is permissible police conduct.

[22]

The case law has struggled to articulate the basis
    for the distinction, preferring to make concrete factual findings about what
    has constituted an opportunity and what has not. This court recognized that the
    distinction will sometimes be difficult to draw:
R. v. Bayat
, 2011
    ONCA 778, 108 O.R. (3d) 420, at para. 19. One source of the difficulty is that,
    conceptually, providing an individual with an opportunity to commit an offence is,
    in a literal sense, a step in investigating criminal activity. If such a broad
    conception of providing an opportunity were to be adopted, the distinction
    would collapse. As one commentator has pointed out, the mere presence of a
    plainclothes officer creates an opportunity, loosely defined, for someone to
    offer them illegal drugs and thereby commit an offence: Brent Kettles, The
    Entrapment Defence in Internet Child Luring Cases (2011) 16 Can. Crim. L. Rev.
    89, at p. 91.

[23]

The case law, however, has specified a narrow
    conception of providing an opportunity, with the analysis often focusing on
    whether the police or the accused took the initiative in the interaction and
    when:
Bayat
;
R. v. Imoro
, 2010 ONCA 122, 251 C.C.C. (3d) 131;
R. v. Swan
, 2009 BCCA 142, 244 C.C.C. (3d) 198. The narrow conception
    of providing an opportunity excludes investigative techniques where the originating
    criminal spark comes from the accused.

[24]

The trial judge held that the police did not
    provide an opportunity to commit the offence. At paras. 51-55 of the Entrapment
    Ruling, he pointed to several facts in support of this conclusion, including:

(1)

it was the appellant who initiated the conversation
    with Mia;

(2)

it was the appellant who asked Mias age; and

(3)

it was the appellant who, being repeatedly told
    Mia was 14, turned the conversation to sexual inquiries.

[25]

The trial judge drew support from
Bayat
for the proposition that where it is the accused who takes the lead in
    conversation and turns it toward the commission of an offence, the police have
    not provided the accused with an opportunity to commit the offence: Entrapment
    Ruling, at para. 54;
Bayat
, at para. 21.

[26]

The appellant argues that the trial judge used
    an inappropriately narrow conception of providing an opportunity. The appellant
    argues that the conception of an opportunity to commit an offence from
Mack
is the mere
chance
to commit an offence, such that
    the moment the appellant was confronted with a 14-year-old girl in a place
    where he had no reason to expect to meet a 14-year-old girl, he was provided
    with an opportunity to commit an offence. But for the presence of a 14-year-old
    girl in an adult chat room, he argues, he would not have had an opportunity to commit
    the offence of luring a 14-year-old girl.

[27]

In support of the argument for this broad
    conception of providing an opportunity, the appellant argues that on the narrower
    conception, the category of taking an investigative step would expand and the
    category of providing an opportunity would effectively disappear. The entrapment
    doctrine would collapse into inducing the offence, which is always prohibited, and
    taking an investigative step, which is generally permitted even without
    reasonable suspicion.

[28]

The broad conception of providing an
    opportunity advanced by the appellant is a lonely one, unsupported by the case
    law and conflicting with binding authority. On this basis alone, the appeal must
    fail.

[29]

Providing an opportunity is not established by but-for
    causation  that but for the presence of the investigating officer posing as a
    14-year-old girl, the appellant would not have had the opportunity to commit
    the offence. In
Ahmad
, this court cautioned against an overly
    technical approach to the entrapment doctrine that detaches the doctrine from
    its purpose of preventing police investigations that offend against decency and
    fair play: at para. 39.

[30]

In
Ahmad
, the Supreme Court held that in
    order to allow the police flexibility to investigate crime, an officers actions
    must be sufficiently proximate to conduct that would satisfy the elements of
    the offence in order to constitute an opportunity: at para. 64. In this case,
    the offence was not in talking with a 14-year-old girl. The offence was communicating
    with a child for the purposes of committing an offence, such as sexual
    touching. The appellants argument could only succeed, it seems to me, in a
    world where any 14-year-old girl who agrees to chat on-line with an adult male in
    a general interest chat room thereby communicates that she is potentially receptive
    to a sexual encounter. That is not our world.

[31]

Accordingly, I do not agree that the trial judge
    committed any error. Where, as here, the police conduct is nothing other than placing
    a potential victim in an accuseds line of vision, and where the accused is
    given no reason to believe that the victim would be a willing participant in
    the offence committed, the police have not provided an opportunity to commit an
    offence. It was the appellant who initiated contact with the undercover officer
    masquerading as a 14-year-old girl. It was the appellant who sought to
    ascertain her age. Having learned that she was underage, it was the appellant
    who ventured into sexual topics and suggested an in-person meeting. Throughout
    these interactions, the undercover officer repeatedly raised the issue of the
    fictional victims youth, but the appellant persisted.

[32]

I would dismiss this ground of appeal.

C.

Section 10(b) Right to Counsel

[33]

Section 10(b) of the
Charter
provides a
    detained person with the right to retain and instruct counsel without delay
    and to be informed of that right. In
R. v. Bartle
, [1994] 3 S.C.R.
    173, the Supreme Court specified that this right imposes the following requirements:
    (1) informational: to advise the detainee of the right to retain and instruct a
    lawyer without delay, and of the existence and availability of legal aid and
    duty counsel; (2) implementational: where the detainee indicates a desire to
    exercise the right, to provide a reasonable opportunity; and (3) forbearance: to
    refrain from eliciting evidence from the detainee until the detainee has had a reasonable
    opportunity to exercise the right.

[34]

The purpose of the s. 10(b) right is to guard
    against the risk of involuntary self-incrimination and ensure that a choice to
    speak to police is free and informed:
R. v. Taylor
, 2014 SCC 50,
    [2014] 2 S.C.R. 495, at para. 21.

[35]

The appellant argues that the trial judge erred
    in finding that the police did not infringe the appellants s. 10(b) rights. The
    arresting officer initially provided the appellant with an abbreviated instruction
    on his s. 10(b) rights because the appellant was in a highly emotional state
    and the officer was concerned that he would not be able to track the standard
    caution. The officer advised the appellant that if he did not have his own
    lawyer (which he did not), the police would call duty counsel for him. Minutes
    later, another officer read the standard caution to the appellant, which
    informed the appellant that he could speak with any lawyer of his choosing. The
    appellant then spoke with duty counsel.

[36]

Subsequently, in an interview with police, the
    appellant returned to the issue of consulting counsel. He relayed information
    he received from duty counsel that if he wanted to, he was entitled to look in
    a directory and choose his own lawyer. He asked if he was entitled to make more
    than one call, which set up the following exchange:

Cst. Ullock: Youre, youre entitled to speak
    to a lawyer okay, if there is a specific lawyer that you want to talk to

Appellant: I have, I dont have any.

Cst. Ullock: Yeah like if you say here is the
    name of a lawyer I want to talk to him.

Appellant: Okay.

Cst. Ullock:  then you can you know.

[37]

On a
voir dire
, the trial judge agreed
    that the initial advice that the appellant received was incorrect, in that it
    omitted that in addition to accessing duty counsel, he also had the option to search
    for a lawyer of his own choosing: Statement Ruling, at para. 76. He found,
    however, that the advice the appellant received minutes later from another
    officer remedied the defect and properly conveyed to the appellant that he
    could contact any lawyer: at paras. 83-84.

[38]

The appellant argues that the trial judge erred
    in finding that the police had satisfied the informational component of the s.
    10(b) right. He argues that he ought to have been told that he had the option
    of looking up a lawyer for himself, and the police ought to have facilitated the
    exercise of this right by providing him with a directory. He only discovered he
    had the right to choose his own lawyer when so advised by duty counsel, but was
    then rebuffed by Cst. Ullock when he tried to make this request.

[39]

The trial judge was satisfied that when the
    totality of the circumstances were considered  including the appellants initial
    emotional state, the fact that the information he received was initially
    incomplete, and that he was subsequently provided with a standard caution and
    spoke to duty counsel  the appellant had not misunderstood his rights.

[40]

This finding by the trial judge, that the
    appellant had not misunderstood his rights and chose to speak with duty
    counsel, was open to him. The onus was on the appellant to establish that he
    misunderstood his rights such that s. 10(b) was infringed. He did not testify
    on the
voir dire
. The trial judge found that he did not, in his
    conversations with Cst. Ullock, convey dissatisfaction with the advice he had
    received from duty counsel or confusion about his right to counsel: [2015] O.J.
    No. 7328, at paras. 82, 95.

[41]

The appellant did not request access to a directory
    or phone book in which to search for counsel. In the circumstances, as he had
    already spoken to duty counsel and understood that he was free to find a lawyer
    of his choosing, I am not persuaded that the police breached the appellants
    rights in not offering him a directory.

[42]

I would not give effect to this ground of
    appeal.

D.

Disposition

[43]

I would dismiss the appeal.

B.W. Miller J.A.

I agree. C.W. Hourigan J.A.

Nordheimer J.A.
(dissenting)

[44]

I have reviewed my colleagues reasons. I agree
    with his analysis and conclusion regarding the s. 10(b) issue. However, I
    disagree with his conclusion on the entrapment issue. Consequently, I would
    allow the appeal, set aside the conviction, and enter a stay of proceedings.

[45]

My colleague has set out the background facts,
    so I do not need to repeat them.

[46]

There is agreement on which of the branches of
    entrapment laid out in
R. v. Mack
, [1988] 2 S.C.R. 903,

is at
    issue in this case. It is the first branch, which Lamer J. stated in the
    following terms, at p. 964:

the authorities provide a person with an
    opportunity to commit an offence without acting on a reasonable suspicion that
    this person is already engaged in criminal activity or pursuant to a
bona
    fide
inquiry[.]

Opportunity to commit an offence

[47]

The first question then is whether the officer
    provided the appellant with an opportunity to commit an offence. As this court
    recognized in
R. v. Bayat
, 2011 ONCA 778, 108 O.R. (3d) 420, at para.
    19:

The issue is a difficult one and the line
    between simple investigation and offering an opportunity to commit an offence
    will sometimes be difficult to draw.

[48]

My colleague concludes that that line was not
    crossed. I disagree. In my view, the officer did provide an opportunity to
    commit an offence. After all, that was the raison dêtre for her presence in
    the chat room. The officer was looking for people who might approach her,
    knowing that she was underage. In considering this issue, my colleague does not
    address, nor did the trial judge, the fact of the persona that the officer
    created and presented to others in the chat room. In particular, the officer
    gave evidence that she adopted the user name mia_aqt98 for the purpose of
    communicating to others in the chat room that she was female, that she was a
    cutie, and that she was 14 years old.

[49]

In my view, the adoption of this username, for
    the reasons that the officer did, was an invitation or enticement to improper
    conduct. It was the digital equivalent of an undercover officer standing on a
    street corner with a sign saying drug user. In that situation, the undercover
    officer would be advertising to any drug dealer that she was a potential
    customer. It would clearly be offering an opportunity for a drug dealer to
    approach her for the purpose of selling her drugs. Whether one characterizes it
    as an invitation to commit an offence or an opportunity to commit an offence,
    the result is the same. It is that fact that distinguishes this case from some
    others, such as
Bayat
and
R. v. Imoro,
2010 ONCA 122, 251
    C.C.C. (3d) 131, affd 2010 SCC 50, [2010] 3 S.C.R. 62.

[50]

The officer did not simply go into the chat room
    as an adult, in the normal course of her duties, with no intention to
    investigate or create a specific offence. In other words, the officer was not
    simply walking her beat in the chat room. If that had been the case, there
    would be no offering of an opportunity just as there would be no opportunity
    offered if a plain clothes officer was simply standing on a sidewalk and a
    person approached and offered to sell her drugs.

[51]

The officers own evidence reinforces my view of
    her actions. Her whole purpose in going into the chat room was to try and find
    potential offenders. She did not suggest otherwise. She was clearly trying to
    entice some contact of the very type that the appellant provided. To conclude
    that the officer was not providing an opportunity to commit an offence is
    inconsistent with her presence in the chat room and the adoption of the persona
    that she did, which she then advertised to the other participants in the chat room.
    Keep in mind, on this point, that this was not a chat room for teenagers, nor
    was it the type of chat room that teenagers would be expected to frequent. It
    was an adult-only chat room. It was also not a chat room devoted to sexual
    interests or sexual activities.

[52]

In my view, the officer in this case created a
    situation that is no different in kind than the example of offering a wallet,
    used by Lamer J. in
Mack
, at p. 957. In this case, the officer was the
    wallet. She acted as a lure. She wanted to see if someone would take the bait
    and the appellant did. She provided the opportunity. Any other conclusion does
    not align with the reality of the situation.

Bona fide
inquiry

[53]

Having concluded that the opportunity to commit
    an offence was provided, it then becomes necessary to determine if the officer
    had a reasonable suspicion that the appellant was already engaged in criminal
    activity, or that she was acting pursuant to a
bona fide
investigation. No one suggests that the officer had any suspicion about the
    appellant. It is the
bona fide
investigation aspect that is relied
    upon.

[54]

However, as the Supreme Court of Canada has made
    clear recently in
R. v. Ahmad
, 2020 SCC 11, the
bona fide
investigation aspect of the entrapment doctrine still requires the police to
    have a reasonable suspicion. If the police do not have a reasonable suspicion
    about the individual, then they must have a reasonable suspicion about the
    location. As Karakatsanis, Brown and Martin JJ. said, at para. 20:

A
bona fide
investigation is not a
    separate and freestanding way for police to entrap an individual, but a means
    of expressing the threshold of reasonable suspicion in a location.

[55]

For the police to be engaged in a
bona fide
investigation that is directed towards a location, as opposed to an individual,
    the police must have a reasonable suspicion that the location is a source of
    criminal activity. Lamer C.J. stated the requirement this way in
R. v. Barnes
, [1991] 1 S.C.R. 449
, at p. 463:

The basic rule articulated in
Mack
is
    that the police may only present the opportunity to commit a particular crime
    to an individual who arouses a suspicion that he or she is already engaged in
    the particular criminal activity. An exception to this rule arises when the
    police undertake a
bona fide
investigation directed at an area where
    it is reasonably suspected that criminal activity is occurring.

[56]

The trial judges approach to this requirement
    was to conclude, in essence, that any chat room on the Internet is a place
    where criminal activity is likely occurring. He said, specifically, that [t]he
    internet chat room was a place where internet luring was likely occurring:
    2016 ONSC 5675, 342 C.C.C. (3d) 128, at para. 58. The trial judge does not
    refer to any evidence in support of this conclusion and none is to be found in
    the record. Contrary to the submissions of Crown counsel at trial, the fact is
    that the officer did not offer any evidence that this chat room was a location
    suspected of child luring. It appears that the officer essentially chose this
    particular chat room at random, the only criteria being that it had to be a
    chat room where the participants were likely to be within her geographic
    jurisdiction.

[57]

The trial judge relied on the decision in
R.
    v. Levigne
, 2010 SCC 25, [2010] 2 S.C.R. 3, to support his conclusion on
    this point. I am unable to see how that decision assists on this issue. As
    noted by the trial judge,
Levigne
addresses the reasons behind the
    enactment of the child luring provision in the
Criminal Code
, R.S.C.,
    1985, c. C-46. While the decision does say that the provision was put in place
    to facilitate the investigation of such offences, it does not say why the
    officer was in the particular chat room in that case nor does it say, or
    suggest, that the entire Internet is so rife with criminal activity of this
    type that it provides reasonable suspicion for an investigation in every
    contour of its existence.

[58]

On this point, there is a clear distinction
    between an Internet chat room of the type involved here, and sites such as
    Craigslist, which have featured in other decisions involving this issue (see,
    for example,
R. v. Argent
, 2016 ONCA 129). The sexual nature of
    activities on certain portions of Craigslist is well-known. The police often
    get complaints about them. Such information can provide the reasonable
    suspicion necessary for a
bona fide
investigation. But those
    situations are different in kind than what was involved in this case.

[59]

The police were required to have a reasonable
    suspicion that child luring would be occurring within this chat room, in order
    to establish that any investigation was a
bona fide
one. This
    requirement is confirmed in
Ahmad
, where
Karakatsanis,
    Brown and Martin JJ. said, at para. 24:

This standard requires the police to disclose
    the basis for their belief and to show that they had legitimate reasons related
    to criminality for targeting an individual or the people associated with a
    location. [Citations omitted.]

[60]

The fact is that the police did not offer that
    evidence. Indeed, the Crown on appeal does not even suggest that the police had
    any such evidence.

[61]

Rather, the Crown proposes, and the trial judge
    appears to have accepted, that Internet chat rooms generally are locations
    where a reasonable suspicion exists with respect to the prospect of child
    luring. That broad-based approach to reasonable suspicion was rejected in
Barnes
and rejected again in
Ahmad
. Indeed, the application of the reasonable
    suspicion standard to virtual spaces was directly addressed in
Ahmad
,
    where
Karakatsanis, Brown and Martin JJ. said, at para.
    41:

We emphasize that the virtual space in
    question must be defined with sufficient precision in order to ground
    reasonable suspicion. Reviewing courts must scrutinize the evidence that
    prompted the inquiry to ensure the police have narrowed their scope so that the
    purview of their inquiry is no broader than the evidence allows.

And further, at para. 43:

In our view, entire websites or social media
    platforms will rarely, if ever, be sufficiently particularized to support
    reasonable suspicion.

[62]

It is clear, in my view, that the officer in
    this case was engaged in random virtue testing, as that concept is properly
    understood. It is akin to the situation referred to in
Barnes
, where
    Lamer C.J. said, at p. 462:

I note that in many cases, the size of the
    area itself may indicate that the investigation is not
bona fide
. This
    will be so particularly when there are grounds for believing that the criminal
    activity being investigated is concentrated in part of a larger area targeted
    by the police.

[63]

While the situation in
Barnes
dealt
    with a geographic area in the City of Vancouver, it serves up the same problem
    if one considers the Internet as a geographic area. Just because criminal
    activity may occur in one part of the Internet does not justify the police
    entering any area to conduct an investigation, just as the fact that drug
    activity took place in the Granville Mall area of Vancouver would not have
    justified an investigation outside of that specific area. The police must have
    evidence specific to the area that they are going to investigate.

[64]

As I have already pointed out, there are parts
    of the Internet that are reasonably suspected of being misused for criminal
    purposes. Craigslist is the example to which I referred, but there are others. The
    police did not offer any evidence that it is problematic to separately deal
    with the component parts of the Internet for investigative purposes. Yet their
    approach in this case relies on a blanket of suspicion over the entire
    Internet.

[65]

It is not the role of the police to randomly
    offer members of the public the chance to commit an offence and then see who
    does. The problem with random virtue testing, as identified in
Mack,
presents
    itself in this very case. It was described by Lamer J., at p. 965:

The absence of a reasonable suspicion or a
bona
    fide
inquiry is significant in assessing the police conduct because of the
    risk that the police will attract people who would not otherwise have any
    involvement in a crime and because it is not a proper use of the police power
    to simply go out and test the virtue of people on a random basis.

[66]

One has to wonder whether there is any reason to
    believe that the appellant would have become involved in this crime, but for
    the officers actions in this case. It is this reality that provides the reason
    why the police are prohibited from engaging in random virtue testing because
    it prey[s] on the weakness of human nature to entice individuals into
    offending:
Ahmad
, at para. 28.

[67]

In that regard, one must not lose sight of the
    fact that the Internet now provides a place for social exchange and interaction
    that might previously have been provided only by bars, social clubs, or other
    physical events and locations. As McLachlin C.J. observed in
R. v. Marakah
,
    2017 SCC 59, [2017] 2 S.C.R. 608, at para. 28:

The millions of us who text friends, family,
    and acquaintances may each be viewed as having appropriated a corner of this
    electronic space for our own purposes. There, we seclude ourselves and convey
    our private messages, just as we might use a room in a home or an office to
    talk behind closed doors. The phrase chat room to describe an Internet site
    through which people communicate is not merely a metaphor.

[68]

As this observation makes clear, the actions of
    the police in a chat room engage privacy concerns. People who participate in
    private conversations on the Internet are entitled to expect that the police
    will not be surveilling their conversations, including instigating or
    participating in them for investigative purposes not based on a reasonable
    suspicion of criminal activity. This point was also made in
Ahmad
where
    Karakatsanis, Brown and Martin JJ. said, at para. 38:

Section 8 jurisprudence recognizes that at the
    heart of liberty in a modern state is the need to set a premium on the
    ability of its citizens to carve out spaces in their lives, sanctuaries where they
    may interact freely, unhindered by the possibility of encounters with the state.
    [Citations omitted.]

[69]

Finally, one must guard against allowing the
    nature of the offence to distort the application of the entrapment doctrine.
    Its application does not depend on the nature of the offence, or its
    seriousness, or the fact that the offence may be difficult to investigate. The
    fact that the appellant engaged in the conduct at issue cannot impact the
    conclusion regarding the application of the entrapment doctrine. As Lamer J.
    made clear in
Mack
, at p. 951, culpability is not the basis for the
    application of the doctrine. In considering entrapment, we look at the actions
    of the police, not of the accused.

Conclusion

[70]

I would allow the appeal, set aside the conviction,
    and enter a stay of proceedings.

Released: CWH JUN 12 2020

I.V.B.
    Nordheimer 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), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hannora, 2020 ONCA 335

DATE: 2020601

DOCKET: C67730

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmoud Hannora

Appellant

Jacob Stilman, for the appellant

Natalya Odorico, for the
    respondent

Heard: in writing

On appeal from the sentence imposed on September
    14, 2018 by Justice Guy P. DiTomaso of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. Hannora appeals the sentence imposed on him
    arising from his conviction on three counts after a trial with a jury. Mr.
    Hannora was sentenced to three years on a count of unauthorized possession of a
    restricted firearm, one year consecutive on a count of possession of a firearm
    while prohibited, and three years consecutive on a count of receive material
    benefit from sexual services, for a total sentence of seven years. Mr. Hannora
    abandoned his conviction appeal.

[2]

The background facts can be stated briefly. The
    complainant was a sex trade worker who entered into a relationship with the
    appellant. The complainant continued to work in the sex trade while she was in
    this relationship with the appellant. The appellant received monies from the
    complainant which he used for his own personal expenses. The complainant also
    moved into a condominium that the appellant owned and paid rent to the
    appellant.

[3]

On occasions during the relationship, the
    appellant was abusive towards the complainant. There were acts of physical
    violence. On one occasion, during an argument, the appellant produced a loaded
    handgun and threatened the complainant with it. It appears that the appellant
    had the handgun with him on other occasions, including when he went out in
    public. The complainant handled the handgun and, at one point, asked if she
    could shoot it.

[4]

The relationship ended after a few months.

[5]

The appellant was 27 years old at the time of
    sentencing. He has a criminal record that includes convictions for theft under,
    mischief, break and enter, possession of a weapon and a number of breaches of
    court orders. It is of some importance that the longest sentence that the
    appellant had received, prior to these convictions, was for a total of 330 days,
    or slightly less than a year.

[6]

There was a pre-sentence report before the
    sentencing judge that spoke positively about the appellant. As the sentencing
    judge observed, the appellant had accepted responsibility for his actions, and
    enjoyed strong family support. The sentencing judge also said, Mr. Hannora has
    been described as a mature young man who had been making efforts to better
    himself, and who now needs to continue to learn from his mistakes.

[7]

In our view, the sentencing judge erred in his
    approach to the sentences he imposed by failing to properly apply the totality
    principle. The only mention of the totality principle made by the sentencing
    judge was with respect to the three year sentence he imposed on the firearms
    conviction, when he reduced what he considered to be an otherwise fit sentence
    on that count from 4 to 3 years.

[8]

The totality principle is properly applied to
    the total sentence imposed on an offender. Its purpose, where consecutive sentences
    are imposed, is to ensure that the total sentence is proportionate to the
    culpability of the offender. As Lamer C.J. said in
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500, at p. 531:

The totality principle, in short, requires a
    sentencing judge who orders an offender to serve consecutive sentences for
    multiple offences to ensure that the cumulative sentence rendered does not
    exceed the overall culpability of the offender.

[9]

Having determined the fit disposition for each
    count, and running the sentences consecutive to one another, the trial judge
    was required to look at the total sentence of 7 years and ask whether it
    exceeded the overall culpability of the appellant. The failure to do so reflects
    an error in principle, one that impacted the sentence imposed:
Lacasse
,
at para. 44. Accordingly, it falls to this court to do so.

[10]

In the circumstances of this case, having regard
    to the circumstances of the offending conduct, a total 7 year sentence for a 27
    year old offender who the trial judge accepted had positive prospects for
    rehabilitation, was genuinely remorseful, and whose previous longest sentence
    was less than a year, outstripped his overall culpability. On the
    rehabilitation aspect, we repeat the observation of Watt J.A. in
R. v.
    Angelis
, 2016 ONCA 675, 133 O.R. (3d) 575 (C.A.), where he said, at para.
    51:

Totality is a principle of sentence the
    purpose of which is to ensure that the total sentence imposed does not
    extinguish the rehabilitative potential of the offender.

[11]

While we do not diminish the seriousness of the
    appellants conduct, the total sentence was excessive given the mitigating
    factors that we have mentioned. The principle of totality should be applied to
    reduce the overall length of time the appellant must serve in custody.

[12]

It is recognized that one way to reconcile the
    overall sentence with the totality principle is to impose concurrent sentences,
    where otherwise the sentences would be consecutive: Clayton C. Ruby, et al.,
Sentencing
,
    9th ed. (Toronto: LexisNexis, 2017), at
§
2.75. This approach has been favoured by this court in a variety of
    decisions, including
R. v. Jewell

(1995), 100 C.C.C. (3d) (Ont.
    C.A.), where Finlayson J.A. said, at p. 279:

In performing this function, the trial judge
    will have to consider not only the appropriate sentence for each offence, but
    whether in light of totality concerns, a particular sentence should be
    consecutive or concurrent to the other sentences imposed.

[13]

Taking into account the mitigating factors that
    we have mentioned above, the appropriate total sentence in this case would have
    been one of four years. That result can be accomplished by making the sentence
    on the receive material benefit count concurrent to the other two counts.

[14]

We would grant leave to appeal sentence, allow
    the appeal, and make the sentence on count #3 concurrent to the sentences on
    counts #1 and #2. We would also set aside the victim fine surcharge.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harrison, 2020 ONCA 393

DATE: 20200618

DOCKET: C67506

Watt, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Harrison

Appellant

Paul Calarco, for the appellant

E. Nicole Rivers, for the respondent

Heard: June 9, 2020 by teleconference

On appeal from the conviction
    entered on March 13, 2019 by Justice Harvey P. Brownstone of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of accessing, possessing, and making child
    pornography available. The trial judge ruled that the search of the appellants
    residence did not infringe s. 8 of the
Charter
. He also found that, if
    the appellants s. 8 rights had been infringed, the evidence should not be
    excluded under s. 24(2). The appellant challenges the correctness of both
    decisions. At the conclusion of the hearing, we dismissed the appeal with
    reasons to follow. These are our reasons.

[2]

By way of brief background, a police investigation revealed that the
    appellant lived in the upper unit of a house. The police suspected that it
    was a rooming house. They were concerned that more than one person could be
    using the internet account assigned to the appellant. The issuing justice was
    apprised of this information and authorized a search of all units in the house.
    When the warrant was executed, the police discovered five separate units or
    dwellings at the address. The appellant occupied a loft on the top level of the
    rooming house. The police seized his computer equipment and a phone on which
    they subsequently discovered images of child pornography. The police also asked
    the other occupants of the rooming house if they could inspect their devices,
    to which they all consented. Nothing sinister was discovered on these devices.

[3]

The appellant attacks the search on three bases. First, he argues that
    the warrant was facially invalid and should not have issued because it was
    overbroad. The appellant looks for support in
R. v. Ting
, 2016 ONCA
    57, 333 C.C.C. (3d) 516, in which, in their search for drugs, the police entered
    and searched the wrong unit in a multi-unit building. This case is different. It
    was reasonable for the police to be concerned that others in the rooming house
    could have had access to the appellants internet account: see
R. v. Ward
,
    2012 ONCA 660, 112 O.R. (3d) 321, at para. 23. Unlike
Ting
, the
    warrant in this case allowed the police to search the entire premises, not just
    one part of it.

[4]

Second, the appellant contends that the warrant was executed in an
    unreasonable manner. He submits that, when the police entered the address and discovered
    that there were five separate units (i.e., more than anticipated), they should
    have stopped and obtained a further warrant before continuing with their
    search.

[5]

This argument was not made before the trial judge; it is raised for the
    first time on appeal. Nonetheless, we are of the view that the submission lacks
    merit. As noted above, the warrant authorized the search of the entire premises
    at the target address. Again, comparison with
Ting
is unhelpful
    because the warrant in that case targeted a particular unit in a multi-dwelling
    structure. Here, the police did what the warrant explicitly allowed them to do.

[6]

Third, relying on
R. v. Vu
, 2013 SCC 60, [2013] 3 S.C.R. 657,
    the appellant submits that, having seized the appellants computer equipment
    and phone, they were required to obtain a further warrant to search those items
    for electronic images. We disagree.

[7]

The trial judge concluded that a second warrant was not required because
    the initial warrant implicitly authorized the inspection of any electronic
    devices that were seized. In fact, the warrant explicitly authorized the search
    of these devices. The warrant complied with
Vu
in authorizing the
    search of both the residence in which the devices were located and the
    subsequent examination of the devices:
R. v. Nero
, 2016 ONCA 160, 334 C.C.C.
    (3d) 148, at para. 164;
R. v. McNeill
, 2020 ONCA 313, at paras. 53-59.

[8]

In conclusion, the trial judge made no errors in his s. 8 analysis.
    Consequently, it is not necessary to address the appellants submissions
    concerning s. 24(2) of the
Charter
.

[9]

The appeal is dismissed.

David Watt J.A.

Gary Trotter J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huang, 2020 ONCA 341

DATE: 20200602

DOCKET: C67911

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zi-Yue Huang

Appellant

Marianne Salih, for the appellant

Nicolas de Montigny, for the respondent

Heard: In-writing

On appeal from the sentence imposed on October
    3, 2019 by Justice Frank D. Crewe of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to three counts of
    robbery from two gas stations at night while wearing a mask and brandishing a
    knife. At the time of the offences, the appellant was a 28-year-old first
    offender with serious mental health issues. He was sentenced to 12 months
    imprisonment, followed by three years of probation. He now appeals against his sentence.

[2]

The appellant asserts that the sentencing judge
    erred by: (1) giving him no credit for his pre-sentence custody or time spent
    under house arrest; and (2) relying on his mental health condition as an
    aggravating sentencing factor. He claims that both errors impacted the sentence
    imposed. He submits that the appropriate sentence was 6 months, with a further
    reduction of 113 days for his pre-sentence custody.

[3]

For the reasons that follow, we agree with the
    first ground of appeal as it relates to the treatment of the pre-sentence
    custody but we do not agree with the second ground.
We
    substitute a sentence of 12 months, less credit for 75 days pre-sentence custody
    at a rate of 1.5 to 1, or 113 days credit, resulting in a sentence of 252
    days.

Analysis

(1)

The sentencing judge erred by giving no credit
    for the appellants pre-sentence custody

[4]

The appellants first ground of appeal asserts
    that the sentencing judge erred in law by giving him no credit for his pre-sentence
    custody (about 75 days) or the time he spent under house arrest (about 27
    months). He says this error impacted the sentence imposed.

[5]

The appellant says this ground is supported by
    an exchange between defence counsel, Mr. Motevalli, and the sentencing judge right
    after he imposed a sentence of 12 months imprisonment. Mr. Motevalli had asked
    whether the sentencing judge would provide the appellant credit for his pre-sentence
    custody. The sentencing judge repeated that the sentence was one year and stated
    that he would not address the issue of pre-sentence custody:

MR. MOTEVALLI: Your Honour, if I may, I think
    the only thing left is just the credit for the custody.

THE COURT: It is one year.

MR. MOTEVALLI: One year.

THE COURT: That is the sentence. Yes, that is
    the sentence.

CLERK REGISTRAR: Is there any pre-trial
    custody time.

THE COURT:  I am not addressing the issue of
    pre-trial custody, Madam Registrar.

[6]

The appellant claims that this exchange confirms
    the sentencing judge erred in law by failing to give credit for either the pre-sentence
    custody or the strict bail conditions and that this error impacted the sentence
    imposed.

[7]

The respondent concedes that the sentencing
    judge erred in not providing reasons for refusing to address pre-sentence
    custody, but asserts that this error did not impact the sentence imposed and that
    the sentence remains fit. The respondent also asserts that even if the
    sentencing judge failed to consider the appellants bail conditions, the
    sentence remains fit and should not be disturbed.

[8]

We agree that the sentencing judge erred in law by
    failing to address credit for the appellants pre-sentence custody.

[9]

Section 719(3) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, gives a court discretion to consider pre-sentence custody
    in determining the sentence. Section 719(3.2) requires the court to give
    reasons for any credit granted for pre-sentence custody, while s. 719(3.3)
    requires the court to state the amount of time spent in custody, the term of
    imprisonment that would have been imposed before any credit was granted, the
    amount of time credited, if any, and the sentence imposed. The Supreme Court
    has stated that this is not a particularly onerous requirement, but plays an
    important role in explaining the nature of the sentencing process, and the
    reasons for giving credit, to the public:
R. v. Summers
, 2014 SCC 26,
    [2014] 1 S.C.R. 575, at para. 74. This same obligation to give reasons applies
    when the sentencing judge refuses to give credit for pre-sentence custody: see
R.
    v. Evans
, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 290.

[10]

Here, the sentencing judge refused, without giving reasons, to address the
    issue of pre-sentence custody. Other than repeating that the sentence imposed was
    one year and saying,
I am not addressing the issue
    of pre-trial custody, he did not comply with ss. 719(3.2) or 719(3.3) of the
Criminal
    Code
. This was an error of law.

[11]

This error, on its own, however, does not
    justify this court interfering with the sentence. An appellate court can
    interfere with a sentence in only two situations: (1) where the sentence
    imposed by the sentencing judge is demonstrably unfit; or (2) where the
    sentencing judge commits an error in principle, fails to consider a relevant
    factor, or erroneously considers an aggravating or mitigating factor,
and
such an error impacts the sentence imposed:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R 1089, at paras. 11, 44;
R. v. Suter
, 2018 SCC 34,
    [2018] 2 S.C.R. 496, at para. 24. In both situations, the appellate court can set
    aside the sentence and itself determine the fit sentence in the circumstances.

[12]

The respondent says that the sentencing judges error did not impact
    the sentence imposed. The respondent argues in its factum that [w]hile the
    sentence may have been arrived at through an error in principle, the sentence
    imposed was the one
intended
by the sentencing judge, because the
    quantum of sentence was arrived at with pre-sentence custody in mind (emphasis
    in original). The respondent notes that pre-sentence custody was raised during
    sentencing submissions and again right after the sentencing judge imposed the sentence,
    when the sentencing judge confirmed the sentence of one year and stated he would
    not address the issue of pre-sentence custody.

[13]

In our view, there are three possible interpretations of how the
    sentencing judge treated the pre-sentence custody:

1.

The sentencing judge took the pre-sentence
    custody into account, but did not explain the calculation.

2.

The sentencing judge intended to give no credit
    for the pre-sentence custody.

3.

The sentencing judge failed to take the pre-sentence
    custody into account after determining the fit sentence.

[14]

The respondent argues for the first interpretation; the appellant
    argues for the third interpretation.

[15]

There is no doubt force in the respondents interpretation. The
    sentencing judge knew the appellant had served some time in pre-sentence
    custody, but still imposed a 12-month sentence even when the issue of credit
    for pre-sentence custody was raised with him.

[16]

We have concluded, however, that this is not the correct interpretation
    of the sentencing judges comments, when viewed in the context of the record,
    the issues, and the submissions of counsel. As we will explain, the third
    interpretation  that the
sentencing judge erred by not
    taking the pre-sentence custody into account after determining the fit sentence
     is the only plausible interpretation.

[17]

In essence, the sentencing judge intended to adopt the respondents
    sentencing recommendation of a fit sentence of 12 months,
before
providing credit for pre-sentence custody. Most of the pre-sentence custody
    occurred
after
the Crown first recommended 12 months, a recommendation
    that the Crown later maintained even while the appellant was in custody. The submissions
    of counsel and the sentencing judges comments suggest that the credit for pre-sentence
    custody would be calculated later. But this never happened. The sentencing
    judge simply failed to consider the pre-sentence custody after determining the
    fit sentence.

[18]

The relevant context is as follows.

[19]

The appellant pleaded guilty on September 18, 2018 but sentencing
    submissions did not begin until May 15, 2019. The reason for the delay was that
    defence counsel wanted a psychiatric assessment of the appellant. The Crown
    agreed this would be useful to make a sentence recommendation, since it
    appeared that the appellants mental health issues partly informed his criminal
    behaviour.

[20]

When the parties returned on May 15, 2019, the Crown acknowledged the
    appellants mental health issues
warrant[ed] a more
    merciful sentence than might otherwise be mandated by his offences.
While
    the appellants diagnosis was unclear it was ultimately believed to be
either marijuana-induced schizophrenia or, more likely, bipolar 1
    disorder fueled by marijuana.
The Crown therefore
    suggested a sentence range of 12 to 18 months incarceration, but closer to
    12 than to 18, and then finally recommended something in the area of 12
    months. The defence sought a 90-day sentence to be served intermittently
    followed by probation. The sentencing judge stated that if he was going to consider
    imposing a sentence in line with the defence proposal, he wanted to know if the
    appellant was going to continue to see mental health professionals before he
    passed sentence. He added that the sentencing is too early and that he was
    certainly willing to consider a sentence that is less than that which [the
    Crown] has recommended, provided I can see that there have been results. The
    sentencing hearing was therefore adjourned.

[21]

In the summer of 2019, the appellants bail was revoked, and he was in
    custody for most of the summer and into the early fall. It was during this
    period that the appellant accumulated most of his pre-sentence custody  that
    is,
after
the Crown had recommended a 12-month sentence on May 15, 2019.

[22]

Sentencing submissions resumed on September 20, 2019. Defence counsel
    advised the court that the appellant was now in custody and submitted that his
    environment at home had not been supportive and had stopped him from getting
    the mental health help he needed. The sentencing judge asked defence counsel, How
    long has he been in custody now? Defence counsel at first ball parked around 135
    real days in custody, but then added an exact calculation will need to be
    made. The sentencing judge responded, We can sort that out. Even so, before
    the sentence was imposed there was no further discussion of the actual number
    of days of pre-sentence custody. Counsel on appeal agree that the actual number
    was between 75 and 77 days.

[23]

The sentencing judge then asked defence counsel for his position on
    sentence. Defence counsel now proposed less than 90 days to be served
    intermittently, so that the time that he spent in custody would be marked down
    in a certain manner. The Crowns position remained 12 months.

[24]

The sentencing judge concluded that he was not in a position at this point
    to determine a fit sentence. He stated:

I dont think it is advisable at this stage for
    me to simply say, Okay, Im going to choose a number between that sought by
    the Crown and that sought by the defence and impose that number and minus off
    the dead time.

[25]

He therefore adjourned the sentencing again to allow for the
    preparation of a pre-sentence report. The appellant remained in custody.

[26]

On October 3, 2019, the sentencing submissions continued. Once again, the
    defence sought a 90-day sentence to be served intermittently, mentioning the
    appellants pre-sentence custody without specifying the number of days. The
    sentencing judge advised that this proposal was [n]ot in the cards. He
    explained:

[Crown counsel] had considered a sentence in the
    area of 12 to 18 months, but in view of Mr. Huangs circumstances in the mental
    health issues that were at play, that perhaps I ought to consider a sentence in
    the nature of about 12 months in view of his circumstances, which is a very
    lenient sentence, 12 months. And he hasnt served anywhere approaching that .

[27]

The sentencing judge later added:

But [the appellant has] inched his way back up to
    the bottom of that range that [the Crown recommended]  looking at something in
    the nature of a year, a one-year sentence, but one that could be served in an
    institution where hes going to get some help like Ontario Correctional
    Institute, for instance.

[28]

Following this, the sentencing judge briefly retired, returned, and imposed
    the 12-month sentence.

[29]

In our view, the record as a whole establishes the following:

·

The Crown recommended a 12-month sentence as a fit
    sentence
before
the appellant served most of his pre-sentence custody and
    maintained this recommendation even
after
the appellant was in custody.

·

While the sentencing judge was initially prepared
    to consider a sentence much lower than the Crown proposed, he concluded that
    the appellant had inched his way up to the Crowns recommendation of 12
    months as a fit sentence. He found the Crowns recommendation was very lenient
    and was prepared to adopt it.

·

The sentencing judges reasons never suggested that
    he was imposing a sentence
higher
than the Crowns recommendation of 12
    months, from which he then deducted the pre-sentence custody (a number he was
    not provided) to arrive at a sentence of 12 months after credit.

·

The Crown never urged the court to give the
    appellant no credit for pre-sentence custody. The submissions of counsel and
    the sentencing judges comments suggest that the pre-sentence custody credit
    would be calculated later. But this was never done. Nothing in the record
    suggests the sentencing judge knew or calculated the amount of pre-sentence custody.

[30]

Returning to the three possible interpretations of the sentencing
    judges treatment of the pre-sentence custody in light of the record as a
    whole, we conclude that the only plausible interpretation is that the
    sentencing judge did not take the pre-sentence custody into account.

[31]

This first interpretation  that the sentencing
    judge took pre-sentence custody into account, but did not explain the
    calculation  is not plausible, for two reasons. First, it involves the sentencing
    judge imposing a sentence several months higher than either party proposed, and
    then deducting credit for pre-sentence custody to arrive at 12 months. There
    was no indication the sentencing judge intended to impose a sentence higher
    than what the Crown had proposed on May 15, 2019, before most of the
    pre-sentence custody was served. Second, there was no indication the sentencing
    judge even knew the correct length of the appellants pre-sentence custody.

[32]

The second interpretation  that the sentencing
    judge intended to give no credit for pre-sentence custody  is also not
    plausible, for three reasons. First, the Crown never sought no credit for pre-sentence
    custody. Second, the exchange between defence counsel and the sentencing judge on
    September 20, 2019 suggested that an exact calculation of pre-sentence custody
    would be made and considered later. Third, there was, in any event, no
    principled basis for denying credit in this case.

[33]

As a result, the only explanation that remains
    plausible is the third interpretation  that the sentencing judge simply failed
    to consider the pre-sentence custody when he fixed the sentence at 12 months.

[34]

The sentencing judges failure to consider the pre-sentence custody impacted
    the sentence imposed because the sentence otherwise would have been lower after
    crediting the pre-sentence custody.

[35]

This court can therefore
set aside the sentence
    and determine the fit sentence in the circumstances. In sentencing afresh, this
    court will defer to the sentencing judges findings of fact or identification
    of aggravating and mitigating factors, to the extent that they are not affected
    by an error in principle:
R. v. Friesen
, 2020 SCC 9, at para. 28.

[36]

In determining the fit sentence for the appellant, we recognize that
    this court has upheld significant sentences for convenience store robberies and
    has underscored that [a]rmed robbery of a neighbourhood convenience store is
    an extremely serious offence, and one which is of great concern to the
    community. The merchants who are operating these stores on a basis of long
    hours require protection:
R. v. Brown
, [1982] O.J. No. 74 (C.A.), at
    paras. 8-9 (four-year sentence for two counts of robbery of convenience
    stores);
R. v. Boyle
(1985), 7 O.A.C. 342 (C.A.), [1985] O.J. No. 33,
    at para. 6 (four-year sentences served consecutively on each of two counts of
    robbery of convenience stores) (the operators of convenience stores are
    vulnerable to the offence of robbery and they must be protected by the
    imposition of appropriate sentences).

[37]

Here, however, the Crown acknowledged that the appellant has serious
    mental health issues, and therefore recommended a 12-month sentence. As Crown
    counsel stated at first instance, with which we agree, this case
warrants a more merciful sentence than might otherwise be mandated by
    the appellants offences. We see no basis to depart from the Crowns
    recommendation, a recommendation accepted by the sentencing judge.

[38]

As for the time the appellant spent under house arrest, we acknowledge
    that it can be considered a mitigating sentencing factor (see
R. v. Adamson
, 2018 ONCA 678, at para.
    106). This said, it is apparent to us that the parties recommended sentences
    and the sentencing judges 12-month sentence all took into account the
    predisposition bail conditions. In any event, we consider the 12-month sentence
    to be very lenient and a further reduction on that basis is not warranted.

[39]

We therefore conclude that a sentence of 12
    months was fit but a credit for pre-sentence custody should have been applied.

(2)

The sentencing judge did not view the
    appellants mental illness as an aggravating sentencing factor

[40]

The appellants second ground of appeal is that
    the sentencing judge erred by relying on the appellants mental health
    condition as an aggravating sentencing factor.

[41]

The appellant impugns these comments of the sentencing
    judge:

[I]t is clear that Mr. Huang has mental health
    issues that remain undiagnosed, and to a large extent untreated. He continues
    to use marijuana and he expresses to me the opinion that it has no impact on
    his mental health issues.

I understand the level of frustration that his
    family must feel. He expressed to me that he thinks he can get this situation
    under control if he is released from custody. I am deeply concerned about his
    mental wellbeing. I take the view that he is in desperate need of a sound
    diagnosis and a plan of treatment.

Also I have to consider at this point the
    appropriate sentence for the robberies that he committed, and as a part of that
    I have to consider the safety of the public and whether it is safe to release
    him into the public. In my view, it is not.

In my view, he has to serve a sentence for the
    robberies he committed and, in my view, the appropriate sentence is the lower
    end of the range suggested by [Crown counsel], that of 12 months. That is the
    sentence.

[42]

We do not read these comments as treating the
    appellants mental health condition as an aggravating sentencing factor. The sentencing
    judge was simply concerned for the appellants mental well-being and underscored
    that he needed treatment. There was nothing inappropriate in that.

Disposition

[43]

For these reasons, we grant leave to appeal the
    sentence and allow the sentence appeal. We substitute a sentence of 12 months,
    with credit for 75 days of pre-sentence custody at a rate of 1.5 to 1, or 113
    days credit, thereby reducing the sentence to 252 days. The other conditions
    of the sentence imposed by the sentencing judge remain unchanged.

Paul
    Rouleau J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.M., 2020 ONCA 348

DATE: 20200604

DOCKET: C66062

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

Richard Litkowski, appearing as duty
    counsel

Hannah Freeman, for the respondent

Heard: May 29, 2020 by
    Teleconference

On appeal from the conviction entered on
    June 4, 2018 and the sentence imposed on October 1, 2018 by Justice Allan G. Letourneau
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault
    and failing to comply with a youth court order. The appellant was 16 years of
    age at the time of the incident. His brother and the complainant were 15 years
    of age.

[2]

The complainant and appellant testified at trial.
    There is no dispute that the complainant attended the appellants residence and
    whisky was consumed. Nor is there dispute that sexual activity took place or
    that the appellant had vaginal intercourse with the complainant while his
    brother placed his penis in her mouth. Nor is there dispute that the brothers traded
    positions a couple of times during the encounter in the basement of the
    appellants home. Nor is there dispute that, at some point after the sexual
    activity involving both brothers ended, the complainant and appellant were in
    the shower together and another act of sexual intercourse took place.

[3]

The sole issue at trial was whether the complainant
    consented to the sexual activity. The complainant said that none of it was
    consented to, that she cried through much of it and told them to stop.  The
    appellant maintains that it was all consented to.

[4]

The trial judge gave lengthy reasons for
    judgment, which understandably focused upon questions of credibility and
    reliability. He explained why he rejected the appellants evidence about
    consent and why he believed the complainant on this crucial point.

[5]

The appeal is predicated on three alleged
    errors.

[6]

First, the appellant argues that the trial judge
    misapprehended four points of evidence. With one exception, we do not agree
    that the points raised are properly characterized as misapprehensions of
    evidence.

[7]

For instance, the appellant argues that the
    trial judge misapprehended the evidence when he characterized a text message,
    sent by the appellant to the complainant, as an admission against interest. The
    text message read: shouldnt have tried it the second time but I stopped when
    you told me to. We do not agree that the trial judge misapprehended the
    evidence about the text message. The trial judge simply drew an available
    inference from that evidence, considered in the context of all of the evidence,
    that when the appellant acknowledged that he shouldnt have tried it a second
    time, he was acknowledging that he knew the complainant was not consenting.

[8]

The appellant also takes issue with what he
    calls the trial judges speculation, when he opined that [the complainant] may
    have reasonably thought that screaming for help, or telling the boys mother
    that her sons had just raped her, might endanger her further. This was not
    speculation. There was evidence that the appellant had told the complainant
    that his mother was a psycho. There is no misapprehension of evidence around
    this point. In any event, the impugned sentence was entirely irrelevant to the
    result. Whether the complainant raised a hue and cry during or immediately
    after the assault, was irrelevant to whether she was sexually assaulted.

[9]

The appellant also argues that the trial judge
    improperly speculated about why the appellant had sent a text message to the
    complainant shortly after the offence, suggesting that his brother had not been
    involved in the sexual activity. The appellant testified that he sent that
    message at a time when he could not recall his brothers involvement in the
    sexual activity. According to the appellant, he only recovered that memory at a
    later point in time.

[10]

The trial judge rejected that explanation and concluded
    that the text message was motivated by the appellants desire to see if it
    would cause [the complainant] to question her own recollection of the nights
    events and/or to dissuade her from contacting the police. We see no improper
    speculation in this comment. It was open to the trial judge to reject the
    appellants explanation as to why he had sent the message. It was also open to
    the trial judge to conclude that the message was sent for the exact purpose he
    articulated.

[11]

While we agree that the trial judge
    misapprehended one piece of evidence, regarding the timing of a message sent by
    the complainant to her mother, that misapprehension of evidence is immaterial
    to the verdict.

[12]

Second, the appellant argues that the trial
    judge applied uneven scrutiny to the Crown and defence evidence. We do not
    agree. In our view, the trial judge engaged in a proper individualized
    assessment of the different evidence offered by the different witnesses:
R.
    v. R.R.
,

2020
    ONCA 327, at para. 20.

[13]

One of the factors that the appellant points to
    as revealing uneven scrutiny of the evidence is how the trial judge dealt with
    the complainants evidence as to whether she changed into her shorts in the
    washroom. The appellant argues that she was inconsistent on this point and, if
    the trial judge had applied even scrutiny, this inconsistency would have
    damaged her credibility.

[14]

We do not agree that this point demonstrates
    uneven scrutiny of the evidence. This is a repeat of the argument from trial,
    an argument that the trial judge specifically dealt with and disposed of. He
    simply concluded that there was no inconsistency in the evidence. That was a factual
    conclusion that the record supported and he was entitled to arrive at.

[15]

Finally, the appellant raises other concerns
    about the trial judges credibility assessments. Credibility assessments are
    owed strong deference:
R. v. R.A.
, 2017 ONCA 714, 421 D.L.R. (4th)
    100, at para. 44. We see nothing that would cause us to interfere in those
    findings.

[16]

The appellant maintains that the trial judge
    erred when he concluded that the appellant was upset after the sexual encounter
    because he knew that he had raped the complainant and was deeply troubled
    regarding the prospects of her going to the police and reporting the rape. The
    appellant objects to the trial judges conclusion on this issue. He maintains
    that his upset was caused by the fact that his marijuana was missing and he
    realized that he had just cheated on his girlfriend. That may have been his
    position at trial, but the trial judge acknowledged and rejected it. He was
    entitled to do so and we would not interfere with that finding.

[17]

The appellant also argues that the complainant
    had a strong motive to fabricate the allegations, particularly given that she
    was confronted by the appellants girlfriend about the sexual encounter the
    morning after it occurred and before she had reported anything. Again, the
    trial judge was alive to this defence argument. He specifically addressed it.
    He stated the law on motive to fabricate correctly. He accepted the
    complainants evidence that she did not disclose the offence before her
    communications with the appellants girlfriend because she was still
    processing how to deal with the matter. This was a conclusion available on
    the record and one that is well explained in the reasons.

[18]

The appeal is dismissed.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.