WARNING

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

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

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    that could identify the complainant or a witness shall not be published in any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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. C.B., 2017 ONCA 862

DATE: 20171109

DOCKET: C62072

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.B.

Appellant

C.B., appearing in person

Howard Krongold, as duty counsel

Michael Bernstein, for the respondent

Heard: July 12, 2017

On appeal from the conviction entered on December 4, 2015
    by Justice William M. Le May of the Superior Court of Justice, with reasons
    reported at

R. v. C.B
.
, 2015 ONSC 7554.

Simmons J.A.:

A.

introduction

[1]

The appellant was charged with two counts of sexual interference and two
    counts of sexual assault arising from two incidents that occurred during the
    summer of 2009. The complainant is the appellants half-sisters daughter. The
    appellant was living with the complainant and her mother, C.S., during the
    period in which the alleged sexual assaults occurred. The appellant was 33 at
    the time; the complainant was 14.

[2]

Concerning the first incident, the complainant alleged that the
    appellant got on a bed she was sleeping in and digitally penetrated her during
    the second night of a two-night family stay in a hotel in Sault Ste. Marie (the
    hotel incident).

[3]

The appellant testified at trial and denied any sexual misconduct with
    the complainant. The trial judge acquitted the appellant of the two charges
    relating to the hotel incident. He said he did not believe the appellants
    evidence due to credibility problems in the appellants evidence as a whole.
    Nonetheless, the trial judge concluded that the appellants evidence together
    with the whole of the evidence gave rise to a reasonable doubt in relation to
    these charges.

[4]

The complainant alleged that the second incident occurred soon after
    their return from Sault Ste. Marie. On an occasion when the appellant was in
    the basement doing his laundry, she told the appellant that she was thinking
    about boys and sex, and stated that she was horny. The appellant told her to
    finger herself. Then, at her invitation, the appellant digitally penetrated her
    and performed oral sex on her until she told him to stop (the laundry room
    incident).

[5]

Although the appellant denied any sexual misconduct with the complainant,
    he acknowledged telling the complainant to finger herself after she told him
    she was horny (the laundry room conversation). During cross-examination, the
    appellant asserted that he did not tell C.S. about the laundry room
    conversation because he was concerned that a big commotion might ensue,
    similar to a previous argument following which the complainant threatened to
    kill herself and harm other people.

[6]

The trial judge found the appellant guilty of
    sexual assault and sexual interference in relation to the laundry room
    incident.
[1]
Among other things, he concluded that if there was any truth to the appellants
    assertions that he did not commit these offences or that the laundry room conversation
    was awkward, the appellant would have at least considered one of three courses
    of action, including telling C.S. about his conversation with the complainant.

[7]

On behalf of the appellant, duty counsel argued
    that the trial judge erred in his credibility analysis by failing to advert to
    material evidence when assessing the appellants credibility. In particular, he
    submits that the trial judge failed to advert to the appellants plausible
    explanation concerning why he did not tell C.S. about the laundry room conversation.

[8]

For the reasons that follow, I would allow the
    appeal, set aside the conviction and order a new trial.  Given this
    disposition of the appeal, it is unnecessary that I address the oral arguments
    advanced by the appellant.

B.

background

[9]

To provide context for my review of the trial
    judges reasons, I will briefly set out some of the evidence he reviewed concerning
    the parties living arrangements, the appellant, the complainant, the two
    incidents and a Facebook conversation between the complainant and the appellant
    that preceded the charges. Although the appellant was acquitted of the hotel
    incident, the trial judges analysis of the hotel evidence is a component of
    his overall credibility analysis. I will also review the appellants evidence
    concerning why he did not tell C.S. about the laundry room conversation.

(1)

The parties living arrangements

[10]

In March 2009, C.S. invited the appellant to
    move into a house with her, another of her brothers and the complainant. The
    appellant, C.S. and C.S.s other brother all had upstairs bedrooms; the
    complainant had a curtained-off bedroom in the basement near the laundry room.

(2)

The appellant

[11]

The appellant was working for a trucking company
    when he moved in with C.S. and the complainant. He was fired from that job in
    August 2009 and remained unemployed for a few weeks. In December 2009, the
    appellant moved to Ottawa abruptly without giving notice that he was leaving. Following
    the appellants departure, C.S. cashed one of his cheques from his employer.
    Although she left the appellant a note, he called the police. The police
    investigated but did not lay charges. The appellant eventually recovered the
    amount of the cheque from his employer by telling his employer the cheque had
    been stolen.

(3)

The complainant

[12]

The complainant turned 14 at the end of July
    2009. She suffered from depression as a child and, prior to the incidents at
    issue, was diagnosed with bi-polar disorder and anti-social personality
    disorder.

[13]

Shortly before the hotel incident, the
    complainant began taking a new medication that made her drowsy. During
    cross-examination, she acknowledged that if she did not take her medication,
    her judgment could become impaired, she could become hyperactive and could possibly
    experience hallucinations.

(4)

The hotel incident

[14]

In July 2009, the appellant, C.S. and the
    complainant went on a road trip to Sault Ste. Marie. They stopped on the way
    and picked up C.S.s nephew, D. The foursome stayed in Sault Ste. Marie in one
    hotel room for two nights. The complainant described the hotel room as
    containing a bathroom to the right of  the entrance and then two double beds on
    the right side of the room. The complainant and her cousin planned to share one
    bed, with the appellant and C.S. sharing the other. However, the sleeping
    arrangements did not proceed as planned.

[15]

At trial, C.S., the complainant, and the
    appellant provided conflicting accounts of the sleeping arrangements. C.S.
    testified that the appellant slept on the floor both nights. The complainant
    testified that on the second night, her mother moved from the first bed next to
    the bathroom to the second bed, and the appellant fell onto the floor between
    the first bed and the bathroom wall. The complainant moved to the now-empty
    first bed. The appellant testified that on the first night, he slept on the
    floor between the bed and the bathroom wall. On the second night he slept in a
    bed with C.S.

[16]

The complainant asserted that the appellant
    sexually assaulted her during the second night of the trip. According to her,
    during the night the appellant began to play with her hand. Then he got up on
    the bed and inserted his finger into her vagina. The appellant denied that any
    sexual misconduct occurred. When the complainant got into the bed next to him,
    he attempted to annoy her by making various noises and she attempted to hit him
    on the head.

(5)

The laundry room incident

[17]

The complainant and the appellant both testified
    that on an occasion when the appellant was picking up his laundry the
    complainant told the appellant that she was thinking about boys and sex. She
    told the appellant that she horny. Both also said the appellant told the
    complainant to finger herself. The complainant testified that she began to
    finger herself and asked the appellant if he wanted to help. She said he
    inserted his finger into her vagina and performed oral sex on her. When she
    asked him to stop, he stopped. The appellant denied touching the complainant.

(6)

The Facebook exchange that preceded the charges

[18]

Between December 2009 and July 2010, the
    appellant and the complainant were in contact on Facebook. In July 2010, they
    had a Facebook exchange about sex. Following that exchange, the complainant
    contacted the police and alleged that the appellant had sexually assaulted her
    on two occasions in 2009.

(7)

The appellants explanation concerning why he
    did not tell C.S. about the laundry room conversation

[19]

During cross-examination, the Crown challenged
    the appellant over his failure to inform
C.S. about the laundry room
    conversation. The appellant explained that he was concerned that telling C.S
    would cause a big commotion, similar to a previous argument in which the
    complainant threatened to kill herself and harm other people:

Q.      You never say to [C.S.], you know, your daughter [N.S.]
    said this really inappropriate thing to me yesterday before?

A.      No, I, I didnt.

Q.      Now, you talked to [C.S.] about other sexual stuff. You
    told us yesterday all sorts of sexual things that you talked to [C.S.] about [N.S.],
    but this was not the thing that you thought you should mention to [C.S.]?

A.      Well, [C.S.] said it to me that getting her a dildo.

Q.      But never in your concern for [N.S.]s well-being do
    you  Im assuming you had concern for her well-being. Am I right to assume
    that?

A.      Yes.

Q.      You never turned to [C.S.] and said, you know, Your 13
    year old child just essentially propositioned me sexually?

A.      I did not think of it at that time, because if I would
    have said something, big argument and who, who knows what [N.S.] would have
    done to herself.

Q.      So you kept it a secret for [N.S.]s benefit?

A.      Well, theres  yes, because Because there were times
    where something will  like, for instance, with the naked pictures on Facebook,
    that apparently someone else posted of [N.S.].

Q.      So thats something were never heard about.

A.      But, you see, like I said, at that time when that
    happened there was a big argument and big commotion between [C.S.] and [N.S.],
    and [N.S.] was, like, you know, shes going to go kill herself and harm other
    people. So, like, this would have been even worse.

Q.      So you decide youre going to keep it a secret?

A.      From [C.S.], yes.

C.

the trial judges
    reasons

[20]

After reviewing the evidence, the trial judge
    turned to his analysis. He noted this was a credibility case and that the
    principles in
R. v. W.(D.)
[2]
apply. He set out his findings concerning each incident separately.

[21]

Concerning the hotel incident, at para. 97 of
    his reasons, the trial judge said he did not find the [appellants] evidence
    to be believable as there [were] credibility problems in [the appellants]
    evidence as a whole. However, although he was satisfied there were some form
    of interplay between the appellant and the complainant during the night, at
    para. 98 of his reasons, he concluded that both [the appellants] evidence and
    the evidence taken as a whole raise[d] a reasonable doubt as to whether the
    interactions between the complainant and [the appellant] included a sexual
    assault or sexual touching.

[22]

The trial judge gave four reasons for this
    conclusion:

·

the evidence of the sleeping arrangements in the
    hotel room was unclear;

·

the complainants explanation for why the
    appellant stopped the assault was not clear and consistent;

·

it was possible that the new medication that the
    complainant had started was affecting her memory;

·

overall the details were not clear concerning
    what happened and when on the trip to Sault Ste. Marie.

[23]

Concerning the laundry room incident, at para.
    102 of his reasons, the trial judge said he did not believe the appellants
    evidence and that it did not raise a reasonable doubt for the following reasons:

·

the appellants description of his relationship
    with the complainant was internally inconsistent: on some occasions he said he
    wanted to be an inspiration to her while on other occasions he sought to
    minimize the amount of time he spent with her;

·

the appellants evidence about his employment
    situation was not completely candid  this, too, was an attempt to minimize the
    amount of time he spent with the complainant;

·

in general, the appellant attempted, in his
    evidence, to make things sound more favourable to him than they actually were;
    and

·

the appellant gave evidence about the
    complainant and her cousin passing notes in the car on the way home from Sault
    Ste. Marie, which the complainant and C.S. denied, in an attempt to demonstrate
    that the complainant was involved with her cousin.

[24]

At para. 103 of his reasons, the trial judge
    said there were other aspects of the appellants testimony that supported his rejection
    of the appellants evidence. However, as they also involved the complainants
    testimony, they were best dealt with in his analysis of whether the evidence,
    taken as a whole, raised a reasonable doubt.

[25]

The trial judge then turned to this question whether
    the evidence, when considered as a whole, raised a reasonable doubt. He began
    by observing, at para. 105, that the complainants credibility was enhanced by
    her evidence about the Facebook exchange whereas the appellants credibility
    was weakened. This was because the complainant acknowledged that the printed
    copy of the Facebook exchange adduced at trial was incomplete whereas the
    appellant initially attempted to avoid acknowledging he was involved in the
    exchange.

[26]

With respect to the specifics of the laundry
    room incident, the trial judge observed at para. 106, that the complainant and
    the appellant agreed on many aspects of the event. It was insignificant that
    the complainant and appellant described the timing of the laundry room incident
    differently. While they pointed to different months, both described the
    incident as occurring at the end of the summer, in either August, according to the
    complainant, or September, according to the appellant.

[27]

At paras. 107  108, the trial judge set out a
    specific basis for rejecting the appellants evidence concerning the laundry
    room incident and for accepting the complainants evidence beyond a reasonable
    doubt:

On cross-examination, [the appellant] stated
    that having a conversation with the Complainant about the fact that she was
    horny would have been awkward. However he did not take any steps to try and
    deal with this conversation. Specifically, he did not:

a)

Tell C.S. about the conversation, in spite of the fact that he had a
    relationship with C.S. in which he would discuss issues that C.S. was having
    with her daughter.

b)

Stop having contact with the Complainant because of the awkwardness
    of this conversation.

c)

Tell her that her comments [were] inappropriate because he is her
    uncle and she is only 14 years old.

If there was any semblance of reality to [the
    appellants] statement that he did not perform digital penetration or oral sex
    on the Complainant or that he found a conversation with the Complainant about
    sex awkward, then it is likely he would have at least thought about taking
    one of the steps. When these facts are considered against the backdrop of the
    evidence as a whole, I am of the view that the fact that the assault took place
    in the laundry room is proven beyond a reasonable doubt.

[28]

The trial judge then went on, at para. 109 of
    his reasons, to identify an aspect of the complainants evidence that
    reinforced his finding of guilt:

My conclusion is enhanced by the exchange that
    [the appellants] counsel had with the Complainant near the end of her second
    cross-examination. In that exchange, the Complainant candidly acknowledges
    that she was trying to get [the appellant] to participate in sexual activities
    with her, and that she succeeded in doing so.

D.

the positions of the
    parties on appeal

(1)     The appellant

[29]

On behalf of the appellant, duty counsel argued
    that lynchpin of the trial judges reasons for rejecting the appellants
    evidence concerning the laundry room incident is found at paras. 107 and 108 of
    his reasons.

[30]

As set out above, in those paragraphs, the trial
    judge noted that the appellant testified that having a conversation with the
    complainant in which she said she was horny was awkward. Nonetheless, the
    appellant failed to do anything about the conversation, including telling the
    complainants mother about it, breaking off contact with the complainant or
    telling the complainant her comments were inappropriate. The trial judge concluded
    that if there was any truth to the appellants assertion that he did not engage
    in sexual misconduct with the complainant or that he found their laundry room
    conversation awkward, the appellant would have at least considered one of those
    three courses of action.

[31]

Duty counsel submits that in reaching this
    conclusion, the trial judge failed to consider the whole of the evidence and
    therefore materially misapprehended the evidence. In particular, the trial
    judge failed to advert to the appellants explanation that he did not tell C.S.
    about the conversation because he was concerned that a big commotion would
    ensue and that the complainant might harm herself or others as a result.  Given
    the complainants history of mental illness and her evidence about being
    bullied, duty counsel submitted that the appellants explanation was plausible.
    Moreover, the trial judges failure to advert to, or make any findings
    concerning, the appellants explanation undermines what was the fundamental
    basis for rejecting the appellants evidence concerning the laundry room
    incident. Although the trial judge gave other reasons for rejecting the
    appellants evidence, paras. 107 to 108 were clearly the lynchpin of his
    credibility analysis concerning the laundry room incident.

(2)     The Crown

[32]

The Crown disputes duty counsels assertions
    that paras. 107 to 108 formed the lynchpin of the trial judges credibility findings
    concerning the laundry room incident. The trial judge gave many reasons for not
    accepting the appellants evidence and had already made it clear, at paras. 102
    and 103 of his reasons, that he rejected the appellants evidence.

[33]

In any event, the Crown submits that any failure
    to advert to the appellants explanation concerning why he did not tell C.S.
    about the laundry room conversation does not amount to a misapprehension of the
    evidence constituting reversible error. When making credibility findings, a
    trial judge need only explain the basis of his or her findings. Trial judges
    are not obliged to refer to every explanation advanced by an accused person
    when making findings of credibility.

E.

Discussion

[34]

I agree that paras. 107 to 108 of the trial
    judges reasons were the lynchpin of his credibility findings concerning the
    laundry room incident. I also agree that by making those findings without
    referring to the appellants explanation for not telling C.S. about the
    incident, the trial judge erred by failing to consider the whole of the
    evidence and materially misapprehending the evidence.

[35]

As a starting point, I reject the Crowns
    submission that, before reaching paras. 107 to 108, the trial judge had already
    rejected the appellants evidence at paras. 102 and 103. Viewed in isolation,
    paras. 102 and 103 may appear to reflect a rejection of the appellants
    evidence. However, unlike paras. 107 to 108, the reasons given at that stage
    for purportedly rejecting the appellants evidence were general in nature and
    seem to apply to the appellants evidence as a whole rather than to either of
    the specific incidents.

[36]

More importantly, in the opening section of
    para. 98 of his reasons, the trial judge stated that the [appellants]
    evidence and the evidence taken as a whole raised a reasonable doubt
    concerning whether the interplay between the complainant and the appellant
    during the hotel incident included a sexual assault or sexual touching. In
    itemizing his reasons for this finding, the trial judge noted that the evidence
    concerning the sleeping arrangements in the hotel room was sufficiently
    unclear that he could not determine with any level of certainty who was
    sleeping where on each of the two nights. Given that C.S.s evidence supported
    the complainants assertion that the appellant slept on the floor the second
    night, the trial judge must have relied, at least in part, on the appellants
    evidence. Had the trial judge rejected all of the appellants evidence, then
    there would be no dispute as to the sleeping arrangements.

[37]

Thus, although the trial judge may not have
    believed the appellants evidence, at para. 98 of his reasons, he acknowledged
    that, at least in relation to the hotel incident, the appellants evidence
    contributed to reasonable doubt.

[38]

In these circumstances, the trial judges
    general credibility findings, set out at paras. 102 and 103 of his reasons,
    cannot be read as a rejection of the whole of the appellants evidence. As I
    have said, at para. 98 of his reasons, the trial judge relied on at least part
    of the appellants evidence to find reasonable doubt.

[39]

Two additional considerations suggest that
    paras. 107 to 108 are the lynchpin of the trial judges credibility findings
    concerning the laundry room incident. First, the facial inconsistency between
    paras. 102 and 103 and para. 98 of the trial judges reasons undermines the
    force of the statements made at paras. 102 and 103. Second, in contrast to the
    general findings made at paras. 102 and 103, paras. 107 to 108 relate
    specifically to the laundry room incident.

[40]

I turn now to the significance of the trial
    judges failure to refer to the appellants evidence concerning why he did not
    tell C.S. about the laundry room incident.

[41]

Where a verdict is not unreasonable, an appeal
court must next
    determine whether an alleged misapprehension of evidence occasioned a
    miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal Code
.
    To constitute a miscarriage of justice, the trial judge must have misapprehended
    evidence going to the substance of the evidence material to the trial judges
    reasoning process that resulted in conviction:
R. v. Lohrer
,

2004
    SCC 80, [2004] 3 S.C.R. 732, at para. 4.

[42]

To
    succeed on an appeal alleging misapprehension of evidence, the appellant must
    show two things.

[43]

First,
    the appellant must show that the trial judge did in fact misapprehend the
    evidence in that he or she: (1) failed to consider evidence relevant to a
    material issue; (2) was mistaken as to the substance of the evidence; or (3)
    failed to give proper effect to the evidence:
R. v. Morrissey
(1995),
    22 O.R. (3d) 514 (Ont. C.A.), at pp. 538-540.

[44]

Second,
    the appellant must show that the trial judges misapprehension of the evidence was
    central to the trial judges reasoning. The misapprehension must be
    substantial, material, and play an essential role in the decision to convict:
Morrissey
,
    at pp. 538-540.  This can include evidence that goes to elements of the crime
    charged
[3]
,
    assessments of credibility
[4]
,
    and proof beyond a reasonable doubt, so long as the misapprehension was
    essential to the conviction.

[45]

With
    regard to credibility assessments, only where the assessment is central to the
    decision to convict and only where an alleged misapprehension is central to
    that credibility assessment can there a case for miscarriage of justice.
[5]

[46]

Where
    such an alleged misapprehension involves a failure to allude to specific
    evidence, the claim can only succeed if the failure to allude to evidence
    demonstrates that the trial was unfair and the verdict was not a true verdict:
Morrissey
, at pp. 538-540.

[47]

In
    this case, the central issue in relation to the laundry room incident was
    credibility. And while the trial judge gave several reasons for at least
    purportedly rejecting the appellants evidence, and therefore concluding it did
    not raise a reasonable doubt, for the reasons I have explained, paras. 107 to
    108 of his decision are the lynchpin of his credibility assessment in relation
    to that incident.

[48]

In
    those paragraphs, the trial judge said that had there been any air of reality
    to the appellants evidence that he did not engage in sexual misconduct or that
    he found the laundry room conversation awkward, the appellant would have at
    least considered taking one of three steps. Those steps were telling C.S. about
    the conversation, ceasing conduct with the complainant or telling her that her
    comments were inappropriate.

[49]

As
    a starting point, the appellant never specifically described the conversation
    as awkward. More importantly, in reaching this conclusion the trial judge did
    not refer to the appellants explanation that he did not tell C.S. about the
    laundry room conversation out of concern that it would have led to a
    commotion between the complainant and her mother, which could have, in turn,
    caused harm to the complainant. Having regard to the complainants own evidence
    about her mental health, the appellants explanation was not implausible on its
    face. However, nowhere in his reasons did the trial judge refer to the
    appellants explanation. And although the explanation was given in response to
    a specific question concerning why the appellant did not speak to C.S., it was
    also capable of explaining why the appellant may not have adopted the other
    courses of action to which the trial judge referred.

[50]

The trial judge gave lengthy reasons in which he summarized and
    analyzed the relevant evidence. Considered in this light, and given the facial
    plausibility of the appellants explanation, in my view, the failure of the
    trial judge to refer to this evidence constitutes a misapprehension of the
    evidence giving rise to a miscarriage of justice. The fact that the trial judge
    gave additional reasons at paras. 105 and 109 explaining why he found the
    complainant credible, and concluded at para. 105 that the appellants
    credibility was weakened by the Facebook evidence does not detract from this
    conclusion. Paragraphs 107 to 108 were the lynchpin of the trial judges
    reasons for rejecting the appellants evidence. The trial judges failure to
    refer to the appellants evidence explaining why he did not act in the manner
    the trial judge would have anticipated undermines the logic and cogency of the
    trial judges reasoning.

F.

disposition

[51]

Based on the foregoing reasons, I would
    allow the appeal, set aside the conviction and order a new trial.

Released:

AH                                         Janet
    Simmons J.A.

NOV -9 2017                          I agree Alexandra
    Hoy A.C.J.O.

I agree
    David Brown J.A.

[1]

In his sentencing reasons, the trial judge stayed the sexual
    assault charge arising from the laundry room incident under the principles of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.  The trial judge
    convicted the appellant of sexual interference in relation to that incident.

[2]

[1991] 1 S.C.R. 742.

[3]
See e.g.
R. v. Harding
, 2009 BCCA 74, 2009 CarswellBC
    347 at paras. 17-18.

[4]

See e.g.
R v. Bailey

(2009), 4
    W.C.B. (2d) 496 at paras. 37-41.

[5]

See e.g.

Bailey

at
    paras. 37-41.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fourtounes, 2017 ONCA 898

DATE: 20171122

DOCKET: C62216 & C63838

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jory Fourtounes and Clifford Lewis

Appellants

James Carlisle, for the appellant Jory Fourtounes

Harry J. Doan, for the appellant Clifford Lewis

David Finley, for the respondent

Heard and released orally: November 16, 2017

On appeal from the sentence imposed on November 10, 2015
    by Justice James W. Sloan of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

This is a sentence appeal by two co-accused. The appellants were charged
    with various offences including breaking and entering into a dwelling house,
    using a firearm in the commission of that offence, breaches of weapons
    prohibitions and drug offences. Before trial commenced, they pled guilty to the
    break and enter charge. Following a jury trial, they were convicted of the
    firearm charges and the drug offences. After the conviction, the appellants
    accepted the jury verdict and invited the trial judge to find them guilty of
    the numerous breaches of court orders.

[2]

In his reasons for sentence, the sentencing judge characterized the
    appellants actions as a home invasion, which he found to be an aggravating
    factor. Mr. Fourtounes received a global sentence of nine years minus credit
    for pre-sentence custody. Mr. Lewis received a global sentence of seven years
    minus credit for pre-sentence custody.

[3]

The appellants principal submission on appeal is that the sentencing
    judge erred in characterizing the offence as a home invasion. They argue that
    this led the sentencing judge to impose a sentence that was too high and did
    not respect the totality principle. In the appellants submission, the
    sentencing judge ought to have found that the appellants were careful to ensure
    that no one would be home at the time the offence was committed.

[4]

In our view, the sentencing judge was entitled to find that the
    appellants were reckless as to whether anyone was home at the time of the
    break-in. The sentencing judge found that the appellants came to the home with
    a gun and zip-tie handcuffs. These findings are consistent with the evidence
    and are entitled to significant deference. Having found that the appellants
    brought the gun and handcuffs to the house, the sentencing judge reasonably
    inferred that they were prepared to use them, if given the opportunity.

[5]

In our view, whether or not this case constitutes a home invasion, the
    appellants sentences should not be disturbed. This was, at a minimum, an
    aggravated case of residential break-in. The sentencing judge reasonably found
    that the appellants created a risk of harm to the occupants of the house and
    other residents of the neighbourhood. The appellants knew that Mr. Santizos
    house was not abandoned. They carried out the robbery while conscious of the
    risk that the residents may be present or might return while they were in the
    home. That risk in fact materialized. Mr. Santizo returned home while the
    appellants were still present. Mr. Santizo was confronted by one of the
    appellants. Although it is unclear whether either of the accused pointed the
    gun directly at Mr. Santizo, the jurys finding of guilt on the charge of using
    a firearm in the commission of an indictable offence makes it clear that the
    gun was used to intimidate Mr. Santizo.

[6]

Additional aggravating factors were present. Those include the fact that
    the co-accused had significant criminal records and had breached court orders
    in committing the offence. The offences had been premeditated, took place in
    broad daylight and were committed in a residential area within a four kilometre
    radius of four schools. Stiff penitentiary sentences were appropriate. They
    were fit and did not offend the totality principle.

[7]

With one exception, we also see no merit in the other grounds listed in
    the appellants facta. These were not pressed in oral submissions. The one
    exception is the credit to be given to Mr. Fourtounes for pre-trial
    custody. The Crown concedes that additional credit for pre-trial custody of 227
    days should be awarded. We agree.

[8]

In summary, leave to appeal is granted, Mr. Lewis appeal is dismissed
    and the appeal of Mr. Fourtounes is allowed but only to vary the sentence,
    reducing it by 227 days.

Paul Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gough, 2017 ONCA 865

DATE: 20171109

DOCKET: C57386

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Stewart Gough

Appellant

Howard L. Krongold, for the appellant

Jennifer McKee, for the respondent

Heard: November 8, 2017

On appeal from the conviction entered on October 3, 2012
    and the sentence imposed on March 5, 2012 by Justice Wolfram Tausendfreund of
    the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge clearly and correctly summarized the evidence and
    considered the applicable legal principles. We do not accept the appellants
    argument that the trial judge reversed the burden of proof requiring him to
    prove the identity of an alternative suspect.

[2]

The trial judges question if it was not the accused who fired the gun,
    who did? was simply rhetorical, asking himself whether the evidence was
    reasonably capable of supporting an inference other than the guilt of the
    appellant.

[3]

He found that there was no evidence before him to support such an
    inference. He concluded that the circumstantial evidence that he identified was
    sufficient to establish, beyond a reasonable doubt, that the appellant had
    possession of a firearm which he used to fire a shot into the complainants
    car.

[4]

In our view, there was ample evidence, identified by the trial judge, to
    support this conclusion.

[5]

The appeal is dismissed.


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. Johnson, 2017 ONCA 904

DATE: 20171123

DOCKET: C62844

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin John Johnson

Appellant

Alexander Ostroff, for the appellant

Rebecca DeFilippis, for the respondent

Heard and released orally: November 21, 2017

On appeal from the conviction entered on September 1,
    2016 by Justice Kirk W. Munroe of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction of sexual assault entered by a
    trial judge at the conclusion of a trial without a jury.  The argument advanced
    in this court is that conviction is unreasonable and founded on
    misapprehensions of the evidence adduced at trial.

[2]

The trial judge provided lengthy and thoughtful reasons for judgment. He
    found that the complainant, by virtue of her intoxication, lacked the capacity
    to consent to the sexual activity in issue.

[3]

He rejected, as unworthy of belief, the appellants testimony that the
    complainant was fine and had initiated some sexual conduct.

[4]

The appellant denied having had sexual intercourse with the complainant,
    as she testified. In this respect, his evidence was contradicted by forensic
    evidence.

[5]

In claiming that a verdict is unreasonable, an appellant must
    demonstrate that the verdict is one that no trier of fact could reasonably have
    rendered in the circumstances, or that the trial judge made findings of fact or
    drew inferences that were plainly contradicted by the evidence relied upon to
    ground the finding, or that are incompatible with evidence that had not been
    contradicted or rejected.

[6]

In our view, there was ample evidence upon which the trial judge could
    conclude that the Crown had proven the essential elements of the offence
    charged beyond a reasonable doubt, in particular, that the complainant lacked
    the capacity to consent to the sexual activity in issue. Nor are we at all
    persuaded that the trial judge misapprehended any evidence that was material to
    his conclusion, that the appellants guilt had been proven beyond a reasonable
    doubt.

[7]

The appeal is dismissed.

David Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Kelly, 2017 ONCA 920

DATED: 20171129

DOCKET: C60668

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Kmar Kelly

Respondent

Matthew Asma, for the appellant

Delmar Doucette, for the respondent

Heard: November 7, 2017

On appeal from the directed verdict of acquittal entered
    by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a
    jury, on June 2, 2015.

C
rown appeal - appeal from
    directed verdict of not guilty in a jury trial - charge of manslaughter as
    party to a robbery

Doherty J.A.:

I

overview

[1]

The respondent was tried by a court composed of a judge and jury on a charge
    of manslaughter. At the close of the Crowns case, counsel for the respondent
    successfully brought a directed verdict application. The trial judge instructed
    the jury to acquit. The Crown appeals from that acquittal.

[2]

I would allow the appeal and direct a new trial.

II

facts

[3]

On April 16, 2011, two men with guns attempted to rob an illegal poker tournament
    operating out of a banquet hall.
A scuffle between one of the
    robbers and the organizer of the tournament ensued at the entrance to the
    banquet hall and the robber fired his gun.  The bullet hit the ceiling.  The
    other robber opened fire. A man who had come to the aid of the organizer was
    shot and killed. The robber who had been struggling with the organizer was
    accidentally shot in the same volley. Both robbers fled on foot.

[4]

Mark Cousins, a truck driver, saw two men running from
    the banquet hall. One was carrying a gun. He watched them get into the front
    seats of a dark-coloured Honda. A short time later, while stopped at a red
    light, he saw the Honda again. He could see into the vehicle from his vantage
    point in the drivers seat of the truck. According to Mr. Cousins, there were
    only two people in the car and both were in the front seats.

[5]

By the end of the Crowns case, it was clear that the
    two men Cousins saw were the robbers who had fled the banquet hall and that the
    car he saw them in was a Honda Civic that had been rented by the respondent.

[6]

Mr. Cousins evidence was important because it was the
    Crowns theory that the respondent was the getaway driver of the vehicle. On
    Cousins evidence, there was no getaway driver, only the two robbers.

[7]

About 25 minutes after the robbers fled the banquet hall, one of them
    showed up at a hospital seeking treatment for a gunshot wound. The hospital was
    a 20- to 25-minute drive from the banquet hall.

[8]

Forensic examination of the Civic revealed blood from the wounded robber
    soaked into the back cushion on the back seat on the drivers side of the
    vehicle. No blood was found anywhere else in the vehicle.

[9]

There was a great deal of evidence about the use and location of various
    cell phones at different times. One cell phone (#8019) was significant to the
    Crowns case against the respondent. The evidence connecting that phone to the
    robbery included the following:

·

The #8019 phone was pinging off the tower nearest the banquet hall
    the day before the robbery when, on the evidence, some of the persons involved
    in the robbery plot were scouting out the scene;

·

The inside man involved in the robbery, who was in the poker tournament,
    was in constant communication with the #8019 phone in the minutes leading up to
    the robbery;

·

The #8019 phone was pinging off the closest tower to the banquet
    hall in the hour before the robbery and at the time of the robbery; and

·

The #8019 phone was pinging off the tower closest to the hospital shortly
    after the wounded robber arrived at the hospital to get medical attention for
    his bullet wound.

[10]

The evidence connecting the respondent to the #8019 phone consisted of
    the following:

·

The
    respondent provided the #8019 number as his contact information to a man
    associated with the other robbery participants three days after the robbery;

·

10
    days after the robbery, the respondent was driving in the Civic in Hamilton,
    Ontario and the #8019 phone was pinging off a tower in that area; and

·

One of the robbers showed #8019 as belonging to K in the contact
    list on his phone.

[11]

The respondent was also connected to the Civic used
    by the robbers to flee the scene. He rented the car a few days before the
    robbery and kept and used it until April 29, some two weeks after the robbery.

III

arguments and ruling at
    trial

[12]

On the directed verdict motion, the defence
    argued that the Crown had from the outset alleged that the respondent was the
    getaway driver. Counsel submitted that the Crown had taken that position
    knowing full well the evidence to be adduced, including the evidence from Mr.
    Cousins. The defence contended that the Crown could not change its theory of
    liability at the end of the Crowns case. Accordingly, unless the Crown could
    show that a reasonable jury, properly instructed, could find that the
    respondent was the driver of the getaway car, the respondent was entitled to a
    directed verdict. The defence argued that Mr. Cousins evidence precluded any
    finding that the respondent was driving the getaway car.

[13]

The defence also argued that even if the Crown was
    not limited to the claim that the respondent was the getaway driver, there was
    no basis in the evidence upon which a reasonable jury could convict the
    respondent of manslaughter on any theory of liability. The defence pointed out
    that there was no direct evidence as to who was using the #8019 phone on the
    day of the robbery.

[14]

The Crown argued that the trial judge was
    obligated to take the evidence at its highest from the Crowns perspective in
    deciding whether to direct a verdict of acquittal. The Crown further submitted
    that the trial judge was not required to accept Mr. Cousins evidence, but was
    required to consider the entirety of the evidence, including Mr. Cousins
    testimony, in deciding what inferences could reasonably be drawn. On the
    Crowns argument, Mr. Cousins evidence, which the jury may or may not accept,
    did not preclude the jury from drawing the inferences necessary for a finding
    of guilt. The Crown further argued that it was not limited to the getaway
    driver theory, but could rely on all legal bases for liability available on
    the evidence. It argued that even if the respondent was not the getaway driver,
    a route to conviction was available on the theory that the respondent, through
    the #8019 phone, was acting as the conduit of information from the inside man
    to the robbers.

[15]

The Crown acknowledged that it was its theory
    that the respondent was the driver, but argued:

[O]ur case, the factual basis has never
    changed. Whether we highlighted the fact that Mr. Kelly is the getaway driver
    or not, weve always said he was the getaway driver. Weve always said he was
    in communication with that 8019 number from the scene with the inside man. This
    has not changed. This is - theres not some new approach or new theory, if you
    want to call it that. Its simply the application of the law and what makes out
    manslaughter out of the same set of facts

Your Honour has to tell the jury any mode of
    liability that arises out of the facts. And I dont see any issue of fairness
    thats arising here.

[16]

In granting the motion for a directed verdict,
    the trial judge arrived at two important conclusions. First, he held that in determining
    whether to direct a verdict of acquittal, he was obligated to accept the
    evidence of Mr. Cousins as credible and reliable and determine what
    inferences could be drawn in light of the acceptance of Mr. Cousins evidence (para.
    56).

[17]

Second, the trial judge held that as the Crown
    had maintained throughout its case that the respondent was the getaway driver,
    fairness to the respondent dictated that the Crown was limited to that factual
    theory of liability in seeking to establish the respondents culpability for
    manslaughter (paras. 73-81). The trial judge went on to hold that, given the
    factual theory the Crown advanced, the Crown is limited to proving the guilt
    of Mr. Kelly as an aiding party, as the getaway driver, in accordance with section
    21(1)(b) of the
Criminal Code
 (para. 83).

[18]

With respect, the trial judge erred in both
    conclusions outlined above.

IV

analysis

A: The Test on
    Motion for a Directed Verdict

[19]

When the defence moves for a directed verdict of
    acquittal at the end of the Crowns case, the trial judge must decide whether
    there is a basis in the evidence upon which a reasonable jury, properly
    instructed, could convict. In performing that task, the trial judge does not
    make findings of fact or credibility, but considers whether a reasonable jury,
    properly instructed, could, on the entirety of the evidence, favourable and
    unfavourable to the accused, conclude that the Crown has established guilt. The
    trial judge must view the evidence in the reasonable light that is the most
    favourable to the Crown:
R. v. Arcuri
, 2001
    SCC 54, [2001] 2 S.C.R. 828, at paras. 21, 29-32;
R. v. Jackson
, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 6-9.

[20]

The trial judge erred in approaching his task by
    asking what inferences could be drawn on the assumption that the jury accepted
    Mr. Cousins evidence as accurate. He should have asked whether having regard
    to all of the evidence, including Mr. Cousins evidence, there was a legal
    basis upon which a reasonable jury could find the respondent guilty of
    manslaughter. This analysis required a consideration of the possibilities that
    the jury, having regard to the blood in the back seat of the Civic, would not
    accept Mr. Cousins evidence as accurate, or that despite Mr. Cousins
    evidence, would conclude that the respondent was guilty of manslaughter.

[21]

The trial judges error as to the legal test to
    be applied on a motion for a directed verdict does not mean that this appeal
    must succeed. The Crown must show that on an application of the proper legal
    test for a directed verdict, the trial judge should not have directed a verdict
    of acquittal. To determine whether a directed verdict was warranted, this court
    must consider whether, on a proper application of the law applicable to party
    liability to the evidence, a reasonable jury could convict the respondent. This
    court must also consider the respondents argument that in the circumstances of
    this case, the Crown was limited to proving the respondents culpability by
    establishing that he was the getaway driver.

B: On What
    Legal Basis Could the Respondent be Found to be a Party to the Offence of
    Manslaughter?

[22]

In its argument on the directed verdict
    application, the trial Crown relied on s. 21(1)(b) of the
Criminal Code
,
    the aiding provision, and s. 21(2), the common purpose section. The trial judge
    held that as the Crown was restricted to arguing that the respondent was the
    getaway driver, it followed that the respondent could only be liable as an
    aider under s. 21(1)(b).

[23]

With respect, even if the trial judge was right
    in restricting the Crown to the argument that the respondent was the getaway
    driver, his potential liability for manslaughter still flowed exclusively from
    s. 21(2) of the
Criminal Code
.

[24]

As my colleague, Watt J.A., has explained with
    admirable clarity in
R. v. Simon
, 2010 ONCA
    754, 104 O.R. (3d) 340, at paras. 39-43, s. 21(1) refers to parties who
    participate in the offence charged as perpetrators, aiders, or abettors. To aid
    in the commission of an offence, an accused must do something for the purpose
    of aiding another in the commission of that offence. Liability under s. 21(2)
    rests on an entirely different basis. Section 21(2) imposes party liability for
    offences that are incidental to the carrying out of a common unlawful design. Liability
    under s. 21(2) requires the Crown to prove that an accused formed an intention with
    others to engage in an unlawful purpose and that one or more of the others, in
    carrying out that unlawful purpose, committed a different offence that the
    accused knew or ought to have known was a probable consequence of carrying out
    the common unlawful purpose.

[25]

On the Crowns case, the respondent was an aider
    in the robbery and a party to the common unlawful purpose of committing a robbery.
    There was no evidence that he did anything for the purpose of aiding the
    robbers in harming any of the victims of the robbery. The respondents role in
    planning or executing the robbery could not make him an aider in the homicide
    that occurred during the robbery.

[26]

I think this was quintessentially a case for the
    application of s. 21(2). The respondent, having allegedly agreed to the
    commission of one crime, the robbery, was alleged by the Crown to be
    responsible for the commission of a second crime committed by one of the
    parties to the robbery in the course of carrying out the common unlawful
    purpose. Section 21(2) addresses exactly that kind of criminal culpability.

[27]

The Crown alleged that the respondent and
    others, including the two robbers, had entered into a common design to rob people
    attending the poker tournament (the common unlawful purpose). The Crown further
    alleged that one of the robbers, in the course of carrying out that common
    unlawful purpose, had shot and killed the victim. If the Crown could prove that
    the respondent, as a party to the common unlawful purpose to rob, knew or ought
    to have known that one of the robbers would probably cause harm of more than a trivial
    nature to someone in the course of committing the robbery, the respondent was
    guilty of manslaughter pursuant to s. 21(2), if that harm actually caused death:
    see
R. v. Jackson
, [1993] 4 S.C.R. 573, at
    586-87;
R. v. Modeste
, 2015 ONCA 398, 326
    C.C.C. (3d) 93, per Strathy C.J.O., in dissent on another issue, at para. 103. The
    respondents potential liability under s. 21(2) did not turn on the specific
    role he played in the robbery plan.

[28]

Setting aside for the moment the trial judges
    finding that the Crown could only rely on the allegation that the respondent
    was the getaway driver, there was ample evidence upon which a reasonable jury
    could find that the respondent formed a common intention to rob the poker tournament.
    The evidence connecting the #8019 cell phone to the robbery and to the
    respondent, combined with the evidence connecting the respondent to the getaway
    car, provided a basis upon which a reasonable jury could infer that he was a party
    to the plan to rob the poker tournament.

[29]

Given the nature of the robbery planned, and the
    number of people in attendance at the tournament, it would be reasonable for a
    jury to infer that the respondent knew that the robbers would be armed and
    prepared to overcome resistance in effecting the robbery. It flows from that
    inference that the jury could infer that the respondent knew or ought to have
    known that it was probable that one of the robbers would cause non-trivial harm
    to someone in the course of committing the robbery.

C: Did the
    Trial Judge Err in Holding that the Crown was Bound by its Theory that the Respondent
    was the Getaway Driver?

[30]

The Crown is not bound to prove its case
    according to any factual or legal theory. Liability for an offence charged is
    determined by an application of the law relating to parties to an offence, found
    primarily in s. 21 of the
Criminal Code
, to
    the facts as found by the jury or trial judge. Culpability depends on the
    evidence and the legal principles applicable to that evidence. The Crown is
    entitled to rely on any route to liability available on the evidence: see
R.
    v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para.
    19;
R. v. Khawaja
, 2010 ONCA 862, 273 C.C.C.
    (3d) 415, at paras. 143-45, approved without reference to this point, 2012 SCC
    69, [2012] 3 S.C.R. 555;
R. v. Ranger
(2003),
    67 O.R. (3d) 1 (C.A.), at 41-42;
R. v. Pawluk
,
    2017 ONCA 863, at para. 29.

[31]

The defence must be taken to know that liability
    depends on an application of the applicable legal principles to the evidence. There
    is nothing
per se
unfair in the Crown relying
    on different or alternate theories of liability, as long as each is rooted in
    the evidence. The argument that the Crown should be bound by the particular
    theory it advances is essentially an argument in favour of a formalistic
    pleadings-type approach to criminal justice, or perhaps a plea for the return
    of the now discredited sporting theory of criminal justice.  The contemporary
    approach favours the adjudication of criminal allegations on their merits.

[32]

The general rule that the Crown can rely on any
    legal basis of culpability available on the evidence is circumscribed by the
    overriding need to ensure trial fairness and, specifically, the accuseds right
    to make full answer and defence:
Ranger
, at
    para. 133. There can be circumstances in which the defence, based on particulars
    provided by the Crown, specific representations made by the Crown, or the
    overall conduct of the trial, is justifiably led to believe that the accuseds
    potential liability is limited to a specific factual or legal theory and
    conducts the defence accordingly. In those circumstances, the defence may be
    able to successfully argue that any departure from the specific basis of
    liability put forward, especially after the evidence is complete, would
    unfairly prejudice the accuseds ability to make full answer and defence:
Pawluk
,
    at para. 30.

[33]

Ranger
provides an example of how a
    very late change in the nature of the case the accused had to meet could
    seriously prejudice the defence. In
Ranger
,
    the defence had every reason to believe, right up to the point of the jury
    instruction, that the jury would be told that liability depended on the Crown
    proving that the accused was in the house when the murders occurred. Both the Crown
    and the trial judge had made comments to the effect that liability depended on
    the Crown proving that fact. However, the trial judge, in his instructions to
    the jury, and on his own initiative, put a second and different theory of
    liability to the jury that did not require that the jury find that the accused was
    in the house. This court concluded that, having regard to the conduct of the
    trial, the introduction of this new theory of liability in the trial judges
    instructions compromised the defence ability to meet the case put against it and
    resulted in a miscarriage of justice.

[34]

In ruling that it would
    be unfair to allow the Crown to advance a theory other than the getaway
    driver theory, the trial judge held that the Crown could alter its theory only
    if it could show that the evidence at trial had unfolded in a manner not
    anticipated by the Crown (para. 78). With respect, this puts the onus in the
    wrong place. As the authorities outlined above at para. 30 indicate, the Crown
    is entitled to rely on any basis of liability that is available on the
    evidence. It is incumbent on the defence to demonstrate prejudice, justifying
    the limiting of the Crowns case to a particular theory.

[35]

The trial judge also erred in holding that the
    defence was entitled to expect that the potential liability of the accused would
    be limited to the specific factual theory advanced by the Crown. The Crown does
    not, by advancing a particular theory, impliedly limit its case to that theory.
    If it is important to the defence that the Crowns case be limited to the
    theory advanced by the Crown, and if the defence intends to rely on that
    limitation in shaping the defence, the defence must take steps to properly
    limit the Crowns case. The defence can request formal particulars, or at least
    seek a clear and unqualified statement from the Crown that it is relying
    exclusively on the factual basis advanced in its theory of the case. The defence
    cannot simply sit back upon hearing the theory of the Crown, and at the end of
    the Crowns case submit that reliance on any other theory of liability automatically
    works an unfairness on the accused. That argument is untenable in the face of
    the well-developed line of authorities referred to at para. 30.

[36]

The trial judge did not point to any specific
    impairment of the defence ability to make full answer and defence flowing from
    the Crowns submission that the respondent could be liable even if he was not
    the getaway driver. On appeal, counsel suggested that the Crown had depended on
    its claim that the respondent was the getaway driver in the resolution of
    certain legal issues. On my reading of the transcript, the Crown did no more
    than allude to its factual theory of the case in making those arguments. The
    Crowns legal position did not depend on the respondent playing the exclusive role
    of the getaway driver in the robbery.

[37]

I am also not persuaded by counsels arguments
    that the defence ability to make full answer and defence was prejudiced by
    certain tactical decisions made by the defence in reliance on the theory of the
    case that the Crown advanced. First of all, the defence was not entitled in law
    to assume that the Crowns case was limited to the factual theory it had advanced.
    Second, if the defence left some stone unturned because of its erroneous
    assumption that the Crown was limited to the getaway driver theory, the defence
    could have applied for an order reopening the Crowns case and allowing the
    defence to conduct additional cross-examination, or make further legal submissions
    on issues that had arisen during the Crowns case.

[38]

Finally, this is not a case like
J.S.R.
    v. The Queen
(2008), 237 C.C.C. (3d) 326 (Ont. Sup. Ct.),
    an authority relied on by the trial judge.  In that case, the Crown attempted
    to resile from an agreement it had made with the defence. Pursuant to that
    agreement, the Crown had undertaken to advance a certain factual position and
    the defence had agreed that it would not bring an abuse of process application.
    There was no agreement here. The Crown announced its factual position in its
    opening to the jury and maintained that position. The defence, as it was
    entitled to do, said nothing about its position. In that situation, the general
    rule applies. Liability turns on an application of the party liability
    provisions in the
Criminal Code
to the evidence, and not on the factual theory
    articulated by the Crown.

V

conclusion

[39]

The trial judge applied the wrong test in directing
    a verdict of acquittal. He also erred in holding that the Crown was limited to
    the factual theory it had advanced during the case. The Crown was entitled to
    rely on any theory of liability available on the evidence, absent a
    demonstration by the accused of prejudice to his ability to make full answer
    and defence. The appellant did not demonstrate any prejudice, or at least any
    prejudice that could not be fully cured by requiring the Crown to reopen its
    case so that the defence could, if necessary, address the basis for liability
    argued by the Crown on the motion for a directed verdict. On the evidence,
    there was a basis upon which a reasonable jury, properly instructed, could
    convict the respondent of manslaughter by the operation of s. 21(2).

[40]

I would quash the acquittal and direct a new
    trial on the charge of manslaughter.

[41]

Counsel are agreed that the respondents
    attendance at the new trial can be arranged through the service of a summons on
    counsel for the respondent. There is no need at this time for a warrant. Should
    circumstances change and the issuance of a warrant becomes necessary, the Crown
    may apply for a warrant.

Released: GS  NOV 29 2017

Doherty J.A.

I agree G.R. Strathy C.J.O.

I agree D. McCombs J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lysenchuk, 2017 ONCA 912

DATE: 20171124

DOCKET: C61643

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Lysenchuk

Appellant

Tina Yuen, for the appellant

Jennifer McKee, for the respondent

Heard and released orally: November 21, 2017

On appeal from the convictions entered on March 13, 2015
    by Justice D.C. Shaw of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The issue in this appeal is whether there was a basis for the trial
    judge to find that the appellant had knowledge of the child pornography.

[2]

In our view, there was evidence to support the trial judges conclusion
    that the only rational explanation was that the appellant had knowledge of the
    contents of the computer. The appellant had control of the computer and
    regularly used it. The police very quickly found vast quantities of child
    pornography, namely, thousands of pictures and videos on the hard drive and on
    the external drive.

[3]

The trial judge found that there was no evidence that the home was
    occupied by anyone other than the appellant. It was therefore reasonable for him
    to conclude that the appellant had knowledge of the contents of the computer.

[4]

Consequently, the appeal is dismissed.

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto 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. Marahar, 2017 ONCA 930

DATE: 20171130

DOCKET: C62140

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harpinder Marahar

Appellant

Lawrence Ben-Eliezer, for the appellant

Karen Shai, for the respondent

Heard and released orally: November 23, 2017

On appeal from the conviction entered on January 8, 2016
    by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was tried on an indictment containing ten counts of
    various offences against three persons. One offence was alleged to have
    occurred on a specific date, the balance over periods of 8 to 10 years.

[2]

The case for the Crown consisted of the testimony of the three
    complainants. The defence was that the conduct alleged by the complainants did
    not occur. The appellant testified on his own behalf and called five other
    witnesses.

[3]

On the appeal from conviction, the appellant advances two arguments. He
    says that the trial judge erred:

i.

in subjecting the evidence of the Crowns witnesses to a less vigorous
    or demanding standard of scrutiny than that he accorded to the testimony of the
    appellant and the defence witnesses; and

ii.

in imposing an evidentiary burden on the appellant to advance an
    explanation for the injuries caused to one of the complainants.

Ground #1: Uneven Scrutiny

[4]

The appellant acknowledges the well-established difficulty he encounters
    in advancing his claim of uneven scrutiny.  To succeed, it is not enough for
    him to show that another trial judge could have assessed credibility or
    reliability differently. Or that this judge failed to say something that he
    could have said in his assessment of the credibility of the complainant and the
    appellant or the reliability of their testimony. To achieve success on this
    ground, the appellant must point to something in the trial judges reasons or
    elsewhere in the trial record that makes it clear that the trial judge actually
    applied different standards of scrutiny in assessing the evidence of the
    appellant and the complainant.

[5]

It is equally well settled that a trial judge is entitled to reject an
    accuseds evidence on the basis of the considered and reasoned acceptance of
    conflicting evidence beyond a reasonable doubt.

[6]

The trial judges reasons reflect a cautious and thoughtful approach to
    his assessment of the testimony of all the witnesses and his findings of fact.
    He expressed and explained his significant concerns about the credibility and
    reliability, not only of the appellants testimony, but equally the testimony
    of the complainant. He accepted only those aspects of the complainants
    testimony which were corroborated by the evidence of others whose testimony he
    found credible and reliable. Where the complainants testimony was not
    corroborated, the trial judge entered verdicts of acquittal. Read as a whole,
    the trial judges reasons reflect the antithesis of uneven scrutiny. They
    reveal, in our respectful view, an even-handed, measured approach to the
    assessment of credibility and reliability.

[7]

This ground of appeal fails.

Ground # 2: Shifting the Burden of Proof

[8]

The appellant submits further that the trial judge improperly imposed an
    evidentiary burden on him to explain just how it was that the complainant ended
    up with a bloody face when she and the appellant were alone in his office one
    day.

[9]

The complainant testified that her facial injuries occurred when the
    appellant hit her. The appellant testified that he had no idea how the
    complainant had suffered her injuries. As he left his office to return to a
    nearby classroom, he heard a big bang. On turning around, he saw the
    complainant on the floor, with a bloodied face.

[10]

In
    cross-examination, the trial Crown confronted the appellant with the substance
    of the complainants version, then asked the appellant about any possible
    explanation for the cause of the complainants injuries.  The appellant
    reiterated his claim of ignorance as to their cause.

[11]

Taking
    the reasons of the trial judge as a whole, as we must, we do not read the
    isolated passage on which the appellant focuses as an erroneous shift in the
    onus of proof.  It was, rather, a simple observation on the state of the
    evidence, about the cause of an injury that occurred when only two persons were
    present. The trial judge did not use the absence of an explanation as a makeweight
    to shore up or complete the prosecutions proof. His reasons betray any
    misapprehension about the onus and the standard of proof.

Conclusion

[12]

For
    these reasons, the appeal is dismissed.

David Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2017 ONCA 855

DATE: 20171107

DOCKET: C61733

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cat Tuong Nguyen

Appellant

Colin Wood, for the appellant

Tanit Gilliam, for the respondent

Heard: November 3, 2017

On appeal from the conviction entered on October 2, 2015
    by Justice J. Woollcombe of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Mr. Nguyen appeals from his conviction on various drug offences.  The
    sole issue is whether the trial judge correctly concluded that a search warrant
    obtained by the police, and which led to the discovery of drugs in the appellants
    home, was properly obtained.  At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow.  We now provide those reasons.

[2]

The basic facts are that the police received tips from two confidential
    informants that Vincent Zmija was dealing drugs.  The police commenced an
    investigation.  They quickly linked David Stewart to Mr. Zmija.  The police
    came to believe that Mr. Stewart was supplying drugs to Mr. Zmija.

[3]

The police engaged in surveillance of Mr. Stewart.  After a brief visit
    to Mr. Zmijas home, Mr. Stewart attended at an address on Paulander Drive in
    Kitchener.  Mr. Stewart went into a particular unit at that address.  A vehicle
    registered to the appellant was in the driveway of that unit.

[4]

Mr. Stewart left the unit a very short time after he entered.  He had a
    black backpack with him, both when he went into the unit and when he left the
    unit.  He placed the black backpack in his vehicle.  The police followed Mr.
    Stewart.  Based on their accumulated knowledge from the investigation, the
    police stopped Mr. Stewart and arrested him on drug charges.  In the black
    backpack, the police found 1/2 pound of marijuana and one ounce of cocaine.

[5]

The police then sought a search warrant for the Paulander address.  The
    search warrant was granted.  The police executed the search warrant.  They
    found the appellant sleeping in one of the bedrooms in the unit.  The police also
    found a quantity of marijuana along with other drugs, including cocaine, three
    digital scales and four cellular telephones.

[6]

The appellant contends that the search warrant was issued in breach of
    his rights under s. 8 of the
Charter
.  The appellant contends that
    material misstatements and/or omissions were made in the ITO upon which the
    search warrant was obtained.  More specifically, the appellant takes issue with
    the following:

1.

The affiant of
    the ITO did not reveal that the vehicle in the driveway, while registered to
    the appellant, was registered to an address different from the Paulander
    address.

2.

The affiant of
    the ITO did not accurately reflect the contents of the police interview
    conducted of Mr. Stewart, including that Mr. Stewart did not positively
    identify the appellant as the person from whom he had purchased the drugs.

3.

There was no
    evidence that drugs would be found at the Paulander address.

[7]

The trial judge considered each of these issues and concluded, correctly
    in our view, that they did not, either individually or collectively, invalidate
    the search warrant.

[8]

Two basic principles apply to our review of the trial judges decision.
    One is that the trial judges factual conclusions are entitled to deference:
R.
    v. Ebanks
(2009), 97 O.R. (3d) 721 (C.A.).  The other is that the test on
    a challenge to a search warrant is not whether the reviewing judge would have
    granted the warrant but, rather, whether there is any basis upon which the
    search warrant could have been issued:
R. v. Garofoli
, [1990] 2
    S.C.R. 1421.

[9]

We agree, as the trial judge did, that the registered address for the
    appellants vehicle ought to have been included in the ITO.  However, its
    omission is not material to the basis for the issuance of the search warrant.
    As the affiant explained, the search warrant was not directed at the
    appellant.  It was directed at the address where the police drew the reasonable
    inference that Mr. Stewart had obtained his drugs.  That reasonable inference
    also diminishes the importance that the appellant places on the fact that there
    was no evidence that there were drugs at the Paulander address.  Admittedly,
    there was no direct evidence but that does not change the fact that a
    reasonable inference could be drawn that drugs would be found in the residence,
    given what the police had observed and given the drugs found in the possession
    of Mr. Stewart immediately after he left that address.

[10]

We
    also agree with the trial judge that there was no material misrepresentation of
    the contents of the interview that the police conducted with Mr. Stewart. The
    impugned portion of the ITO states: [f]urthermore,
Stewart
acknowledged the fact that he had just purchased the
    aforementioned cocaine and marihuana in Kitchener from his drug dealer just
    before being arrested by police.

[11]

During
    his interview, Mr. Stewart was very careful in the manner in which he answered
    the officers questions.  Thus, while he did not identify the appellant as the
    supplier of his drugs, he did make it clear that he had only one supplier.  The
    specific questions and answers are:

D/Cst  Well you bought off of him the one time.  Well we
    know at least one time today, right:

STEWART  Ive only got one guy.  Thats all I can say.

D/Cst  You only got one guy?

STEWART  Yeah.

D/Cst  And its the guy that you got off today, right?  It
    only makes sense, right?

STEWART  Logically.

[12]

Later
    in the interview, Mr. Stewart said that he got $500 from Mr. Zmija and then I
    went and saw my guy.

[13]

Admittedly,
    Mr. Stewart did not specifically identify the appellant as his drug supplier.  However,
    the interview read fairly and as a whole leads to the reasonable inference that
    Mr. Stewart had obtained his drugs from the Paulander address immediately
    before he was arrested.  The police had followed Mr. Stewart to that address
    and after he left that address.

[14]

In
    the end result, we agree with the trial judges conclusion that there was no
    breach of the appellants s. 8
Charter
rights arising from the
    issuance of the search warrant.  The appeal is consequently dismissed.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nuttall, 2017 ONCA 914

DATE: 20171127

DOCKET: C63168

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Druin Nuttall

Respondent

Kevin Wilson, for the appellant

Anya Shahabi, for the respondent

Heard: November 22, 2017

On appeal from the acquittal entered on December 12, 2016
    by Justice Clayton Conlan of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown seeks to appeal the acquittal of the respondent of possession
    for the purpose of trafficking cocaine. He was convicted only of simple
    possession. The Crown must show an error of law that might reasonably have had
    a material bearing on the acquittal: see
R. v. Graveline
, 2006 SCC 16,
    [2006] 1 S.C.R. 609.

[2]

The errors relied on by the Crown are the trial judges exclusion of the
    expert evidence regarding cocaine trafficking and the finding that the
    respondent was a heavy cocaine user which the Crown says was not based on any
    evidence.

[3]

In our view the trial judge made no error on either count. He was
    entitled to exclude the evidence of the police expert. He applied the correct
    test in law and determined that the evidence would be of no assistance to the
    court. That is the gatekeeper function of the trial judge. He also found there
    was no basis in the evidence for some of the opinion evidence of the expert,
    such as no evidence of the presence of a cutting agent for the cocaine. He was
    entitled to find that it had not been proved, and that the expert evidence
    would not have made a difference.

[4]

The trial judge was also entitled to find that the respondent was a
    cocaine user, possibly a heavy one, based on his lifestyle evidence and the
    trial judges observations of the respondent.

[5]

The appeal is therefore dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Brien, 2017 ONCA 929

DATE: 20171130

DOCKET: C62654

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert OBrien

Appellant

Sam Goldstein, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally: November 24, 2017

On appeal from the conviction entered on August 15, 2016
    and the sentence imposed on August 15, 2016 by Justice Paul F. Monahan of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks to withdraw his guilty pleas to one count of fail to
    remain causing death and one count of fail to remain causing bodily harm, contrary
    to s. 252(1.3) and s. 252(1.2) of the
Criminal Code
, on the ground
    that he did not understand that he was pleading to
Criminal Code
offences where he would have a criminal record and thought he was pleading
    guilty to
Highway Traffic Act
offences.

[2]

The onus is on an appellant seeking to withdraw a guilty plea to show
    that his plea was not voluntary, unequivocal and informed. The appellant has
    not met the onus to demonstrate that his plea was not informed. The highest his
    evidence goes is that he developed a subjective misunderstanding that the
    charges he was pleading to were under the
Highway Traffic Act
.

[3]

However all of the objective evidence of what occurred: (1) during plea
    negotiations in which he was represented by experienced counsel; (2) during the
    plea inquiry by the trial judge; (3) during the plea itself where the charges
    were stated to be under the
Code
; and (4) at the sentencing hearing
    where the
Code
and the criminal record were referred to, was that the
    charges were
Criminal Code
charges.

[4]

In the case of
R. v. Krzehlik
, 2015 ONCA 168 at paras. 37 and
    38, this court addressed a similar issue as follows:

As previously noted, in his affidavit the appellant asserts
    that he understood that if he pleaded guilty, so long as he appealed within 30 days
    of the date of convictions, the pleas would be automatically overturned. Duty
    counsel denies that she would have said this to the appellant. There is no
    evidence to support a finding that the appellants alleged misunderstanding was
    induced by duty counsel or by any action on the part of the state. During the
    plea comprehension inquiry by the trial judge, the appellant stated that he
    understood that he was surrendering his right to a trial and that he would be
    sentenced for a serious crime. And there can be no doubt that the appellant
    knew the charges he was pleading guilty to.

In my view, the appellant has not met the onus of establishing
    that his pleas did not meet the legal threshold for being informed.

[5]

In our view, a similar analysis applies to this case. Based on the
    record, the appellant has not met his onus. The appeal is dismissed.

K. Feldmand J.A.

M. Tulloch J.A.

M.L. Benotto J.A.