COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Athwal, 2017 ONCA 222

DATE: 20170321

DOCKET: C56612

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gurvinder Singh Athwal

Appellant

Gurvinder Athwal, acting in person

Brian H. Snell, appearing as duty counsel

Rick Visca, for the respondent

Heard: February 7 and 10, 2017

On appeal from the conviction entered on October 12, 2012
    and the sentence imposed on January 21, 2013 by Justice Nancy M. Mossip of the
    Superior Court of Justice, sitting with a jury.

Juriansz J.A.:

[1]

The appellant appeals his conviction on one count of conspiracy to
    possess heroin for the purposes of trafficking. He also appeals the sentence
    imposed of 12 years imprisonment.

A.

Conviction Appeal

(1)

Erroneous instruction on the conspiracy count

[2]

Duty counsel, on behalf of the appellant, points out an error in the
    trial judges instruction to the jury on the first question they should
    consider in analysing the conspiracy count, i.e. that the trier of fact must be
    satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed,
    irrespective of membership:
R. v. Carter
, [1982] 1 S.C.R. 938, at p.
    947. While that aspect of the trial judges charge is erroneous, when the
    charge is read as a whole, it is evident the trial judge simply misspoke while
    giving this instruction. The error does not make a new trial necessary as the
    first question in the conspiracy analysis was not at issue at trial; defence
    counsel conceded there was an agreement to possess heroin for the purpose of
    trafficking. After giving the erroneous instruction, the trial judge went on to
    tell the jury, Further, defence counsel do not really take issue with the
    legal finding by you that there was an agreement between persons to possess a
    controlled substance for the purpose of trafficking in it.

[3]

The appellants defence at trial, like that of his co-accused, was he
    was not a member of the conspiracy. The trial judges instructions made it amply
    clear to the jury they had to be satisfied beyond a reasonable doubt that the
    appellant was a member of the conspiracy, and if they were not, they had to
    find him not guilty. The trial judge gave this instruction repeatedly and,
    under the heading Real Issue, she closed her charge on conspiracy by saying,
    Once again, members of the jury, the real issue for you to decide with respect
    to this count is whether you are satisfied beyond a reasonable doubt with
    respect to each accused separately, that they were a member of the
    conspiracy.

[4]

I do not give effect to this ground of appeal.

(2)

Erroneous
Vetrovec
instruction and prior inconsistent statements

[5]

Duty counsel also submits the trial judge erred in her
Vetrovec
caution
    regarding Harvinder Singh, who testified under an immunity agreement. In a
    related argument, he submits that the trial judge failed to provide the jury
    with adequate guidance as to how to assess Harvinder Singhs inconsistent
    statements under oath. These arguments were also advanced by the appellants co-accused
    Harsharn Deol, whose appeal on these issues was heard at the same time.

[6]

As I explained in my reasons in
R. v. Deol
, 2017 ONCA 221, the
    trial judges
Vetrovec
instruction was satisfactory as were her
    instructions regarding Singhs inconsistent statements. With particular regard
    to the appellant, the trial judge told the jury that telephone logs, police
    surveillance, and video surveillance supported the evidence of Singh that he
    received a call from the appellant asking to meet him at the Real Canadian
    Superstore at Steeles Avenue and Hurontario Street on December 23, 2009. Duty
    counsel points out that this is inconsistent with Singhs evidence in
    cross-examination in which he said he called the appellant and asked him to
    come to the Superstore. That may be so, but later the trial judge noted this
    inconsistency, telling the jury through cross-examination of Mr. Singh, the
    evidence at trial was that Mr. Athwal went to the [Superstore] at the request
    of Mr. Singh to help him.

[7]

In regard to duty counsels final submission that the trial judge failed
    to adequately highlight Singhs inconsistent statements under oath prior to
    trial and at trial, I note that the trial judges charge followed most
    strenuous attacks on Singhs credibility by counsel for the appellants
    co-accused. The trial judge did review some of Singhs inconsistencies and told
    them they could consider all of his prior testimony to have been given under
    oath or solemn affirmation. She told the jury that it should consider the
    fact, nature and extent of any differences in deciding the importance of
    inconsistent statements and in deciding whether they would believe and rely
    upon the witnesss testimony. The jury was also instructed to consider any
    explanation the witness gave for the difference.

[8]

Duty counsel submits the fact that the jury acquitted two of the appellants
    co-accused does not demonstrate the jury approached Singhs testimony with the
    appropriate caution. The Crowns case against the co-accused Lally depended
    entirely on the testimony of Singh, and the jury decided to acquit him. On the
    other hand, the Crowns case against the appellant did not depend entirely on
    Singhs evidence. The testimony of the police surveillance officers and the
    evidence of the whereabouts of the two cell phones that Singh testified
    belonged to the appellant provided some circumstantial support for Singhs
    testimony incriminating the appellant. I accept the acquittal of Lally shows
    the jury was cautious in assessing Singhs testimony.

[9]

Finally, I note that the appellants trial counsel was given the
    opportunity to review the trial judges proposed charge and suggested no
    modification of the charge in these regards.

[10]

The
    conviction appeal is dismissed.

B.

Sentence Appeal

[11]

On
    the appellants sentence appeal, duty counsel submits the sentence should have
    fallen at the low end of the range as the appellant was a 36 year-old
    first-time offender with six young children who played a minor role in the
    crime and has good prospects for rehabilitation. Defence counsel at sentencing
    stressed the appellants exceptional personal and family circumstances in that
    he was a hard-working family man and that imprisonment would be difficult for
    his family, both financially and emotionally. The trial judge took these into
    consideration and imposed a sentence well within the range. There is no basis
    upon which I would interfere.

[12]

The
    appeal from sentence is dismissed.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A."

"I agree J.C. MacPherson J.A."

"I agree. Paul Rouleau J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Atwal, 2017 ONCA 228

DATE: 20170320

DOCKET: C62337

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sukhraj Atwal

Appellant

Raymond Boggs, for the appellant

Susan Ficek, for the respondent

Heard and released orally: March 16, 2017

On appeal from the conviction entered on July 9, 2015 and
    the sentence imposed on June 2, 2016 by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals her conviction for fraud and forgery. She argues
    two grounds: (1) unreasonable verdict; and (2) that the Crown had the onus to disprove
    the defence of complicity by the complainant, whose company was the target of
    the fraud, once an air of reality of that defence was raised by the evidence.

[2]

We reject both grounds of appeal. The basis of both grounds is the
    complainants evidence at one point that he agreed that he signed some cheques
    to the fraudulent payees during the period when the forged cheques were all
    signed. The appellant submits that the trial judge was not entitled to discount
    this evidence and explain away why he did not accept it, but was required to
    treat it as raising a reasonable doubt and to require the Crown to rebut the
    defence of complicity.

[3]

We reject this submission based on the reasons for judgment given by
    Hill J., where he thoroughly reviewed the evidence and analyzed in particular the
    credibility of the appellant in light of this testimony. He concluded at para.
    115 of the reasons that this evidence, seen in light of the rest of his
    evidence and the whole of the evidence, could be explained by the passage of
    time, the witness anger at being defrauded and language difficulties. We see
    no error in the trial judges approach. He was entitled to accept all, or just
    some of the witness evidence. He gave clear reasons for his conclusions. His
    findings are accorded the deference of this court. There is no basis to set
    aside the verdict.

[4]

The appellant also seeks leave to appeal her sentence and submits that
    because of the delay in both the trial and sentencing proceedings, she should
    have been given time served. The same argument was made before Hill J., who considered
    it and gave cogent reasons for rejecting it at para. 48. He noted that delay
    will be a relevant factor when the appellants parole eligibility is
    considered.

[5]

In the result the appeal against conviction is dismissed. Leave to
    appeal sentence is granted but the appeal is dismissed.

K.
    Feldman J.A.

K. van
    Rensburg J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2017 ONCA 211

DATE: 20170310

DOCKET: C62540

Feldman, Rouleau and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tetomar Alanzo Brown

Appellant

Mitchell Chernovsky, for the appellant

Brett Cohen, for the respondent

Heard: March 9, 2017

On appeal from the sentence imposed on March 8, 2013 by
    Justice
Jane E.
Kelly of the Superior Court of Justice,
    sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown agrees that the appeal be allowed in respect of the error
    in credit accorded for pre-sentence custody. Leave to appeal sentence is
    granted, the appeal is allowed, pre-sentence custody is to be accorded credit
    of 1.5 to 1 resulting in a reduction of the sentence from 10 years 290 days to
    9 years 251 days crediting pre-trial custody of 3 years, 114 days instead of 2
    years 75 days.


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. Campbell, 2017 ONCA 209
DATE: 20170310

DOCKET: C61996

Laskin, Hourigan, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Campbell

Appellant

W. Alejandro Munoz, for the Appellant

Amy Alyea, for the Respondent

Heard: February 14, 2017

On appeal from the conviction entered on June 29, 2015 by
    Justice K.N. Barnes of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant appeals his convictions for historical
    sexual assault and sexual exploitation against the complainant, D.I. These
    offences occurred from 1988 to 1991, when D.I. was between 13 and 16 years old,
    and the appellant was his Big Brother. In particular, among other incidents, the
    trial judge found that the appellant had sexually assaulted and exploited D.I. when
    he brought him to the house of the appellants sister.

[2]

The appellant advances two main grounds of appeal:

i.

The trial judge erred in admitting records from the Big
    Brothers organization concerning his relationship with D.I., for the truth of their
    contents, and in allowing the Crown to split its case by filing them in reply after
    the close of the appellants defence.

ii.

The trial judges reasons were inadequate because he
    failed to explain why he rejected the corroborating evidence of the appellants
    sister, which should have left the trial judge with a reasonable doubt as to
    the appellants guilt.

Admission of Big Brothers Records

[3]

Following the parties agreement, the trial judge admitted the Big
    Brothers records as
prima facie
evidence of the truth of their
    contents and allowed the Crown to file them in reply. In particular, the trial
    judge accepted the dates in the records as to when the relationship between the
    appellant and D.I. began and ended, in preference to the appellants evidence
    and in corroboration of D.I.s evidence. For the reasons that follow, we see no
    error in the trial judges admission and reliance on the records for this
    purpose.

[4]

As a statutory exception to the hearsay rule, s. 30 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, allows business records to be admitted
    into evidence, upon the satisfaction of the formal criteria, including notice,
    as set out in that section of the Act. Subsection 30(1) of the Act provides as
    follows:

Where oral evidence in respect of a matter would be admissible
    in a legal proceeding, a record made in the usual and ordinary course of
    business that contains information in respect of that matter is admissible in
    evidence under this section in the legal proceeding on production of the record.

[5]

The Crown gave timely notice under s. 30 of the Act

that it intended
    to produce the Big Brothers records. It filed an affidavit, to which the
    records were attached as an exhibit, to satisfy the formal requirements under
    the Act concerning the authenticity of the records, indicating that they were
    made in the usual and ordinary course of business.

[6]

There was no dispute that the records were authentic business records.
    Moreover, the factual information about the dates of the relationship between
    the appellant and D.I. as contained in the records would have been admissible
    if given in oral evidence by the author of the records. Most importantly, the
    parties consented to the admission of the records as an exhibit at trial, as
prima
    facie
evidence, according to defence counsel.

[7]

The Crown having met the formal prerequisites under s. 30 of the Act,
    the records were therefore admissible as business records as
prima facie
proof of the truth of their contents:
R. v. Smith
, 2011 ABCA 136, 510
    A.R. 37, at para. 46.

[8]

The
    admission of the records into evidence did not preclude other evidence or
    available inference raising a doubt about the reliability of their contents:
Smith
, at para. 33.

The trial judge was
    entitled to accept or reject the evidence provided by the records, just as if
    it had come from a witness during the trial:
Smith
, at para. 35.
How
    the trial judge weighed the evidence proffered by the records, in light of the
    whole of the evidence, was a matter of his discretion.

[9]

In the course of oral argument, it became clear that the appellant did
    not dispute that the Big Brothers records would have been admissible under s.
    30 of the Act as
prima facie
proof of the truth of their contents if
    they had been filed as part of the Crowns case in chief. However, the
    appellant submits that the trial judge could not rely on them as evidence of
    the truth of their contents for the reasons that they were not filed by the
    Crown as part of its case in chief and that the appellant did not agree that
    they could be relied upon as such in reply.

[10]

We do not agree. The trial judge had expressly canvassed the issue of
    the records admissibility with counsel, specifically asked them to consider
    whether or not the documents could be considered for the truth of their
    contents, and invited them to come to an agreement if possible, failing which
    he would hear a motion and make a ruling. This proved unnecessary because after
    the close of the defence, the parties advised the court that they had reached
    an agreement that the records could be marked as a numbered exhibit and be
    filed without objection as part of the Crowns case in reply, without the
    necessity of further proof. As the appellants counsel reiterated during his
    closing submissions: I want to address therefore that we all understand that
    by admitting these records in that what were establishing by virtue of the
    notice given and the consent given, the records are themselves
prima facie
evidence (Trial Transcript, vol. 13, at p. 2).

[11]

The admission of the records created no unfairness to the appellant and came
    as no surprise. Indeed, it was the appellants counsel who first referred to
    the Big Brothers records during the cross-examination of D.I. and sought to
    rely on portions of the records that assisted the appellants position, for the
    truth of their contents. The fact that the records also supported the Crowns
    case by providing a basis to challenge the credibility of the appellant in
    relation to the length of his Big Brother relationship with D.I. does not
    affect their admissibility. In any event, the trial judge stated that he was
    satisfied of the appellants guilt of the offences beyond a reasonable doubt,
    even without reliance on the records.

[12]

The Big Brothers records were admissible into evidence. Thereafter, the
    weight that the trial judge gave to the records was an exercise of his
    discretion that is subject to deference absent error. In either case, we see no
    basis to interfere.

Adequacy of the Trial Judges reasons

[13]

The appellant submits that the trial judge erred in not explicitly
    setting out why he did not accept the sisters evidence that she had never come
    home to find the appellant and D.I. in her home, as D.I. had alleged, or why
    that evidence did not leave him with a reasonable doubt as to the appellants
    guilt, since it corroborated the appellants denial that the incident had ever
    taken place.

[14]

We do not accept this submission.

[15]

It is well-established that a trial judge need not detail his findings
    on each piece of evidence or controverted fact, so long as the findings linking
    the evidence to the verdict can be logically understood:
R. v. R.E.M.
,
    2008 SCC 51,
[2008] 3 S.C.R. 3
, at para.
    20. It is also necessary to read a trial judges reasons as a whole, in the
    context of the evidence, issues, and submissions at trial, together with an
    appreciation of the purposes or functions for which they are delivered:
R.
    v. Villaroman
, 2016 SCC 33, 338 C.C.C. (3d) 1, at para. 15;
R.E.M.
,
    at para. 16.

[16]

The trial judge reviewed the evidence of D.I., the appellant, and the
    appellants sister in relation to the allegations that the appellant had taken
    D.I. to his sisters house and sexually abused him. He heard the submissions of
    Crown counsel as to why he should accept the evidence of D.I. and why the
    evidence of the sister and the appellant concerning the incident in her home
    should be rejected.  Similarly, he considered the submissions of the appellants
    counsel as to why he should accept the evidence of the appellant and his
    sister. The trial judge explained why he accepted that D.I. was in the sisters
    home. In particular, he noted D.I.s specific details about the unusual layout
    of the house, which the sister confirmed in her testimony. And he stated why he
    did not accept the appellants evidence, which necessarily included the
    sisters evidence.

[17]

While it would have been helpful if the trial judge had explicitly set
    out his analysis of all of the evidence, including the sisters evidence, the
    absence of additional reasons does not preclude meaningful appellate review. Viewed
    in the context of the entire trial, the trial judges reasons demonstrate how and
    why he reached his verdict.

[18]

The trial judges findings were open to him on the record and are
    entitled to deference absent error. He was alert to the necessity of not simply
    choosing between D.I.s evidence and that proffered by the defence, and considered
    the evidence as a whole. He gave detailed reasons for accepting D.I.s evidence
    and for finding the appellants evidence to be unworthy of belief. There is no
    basis to interfere.

[19]

For these reasons, the appeal is dismissed.

Released: March 10, 2017

John Laskin J.A.

C.W. Hourigan
    J.A.

L.B. Roberts
    J.A.


>

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2017 ONCA 242

DATE: 20170323

DOCKET: C62975

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamar Chambers

Appellant

Paul Calarco, for the appellant

Wendy Levant, for the respondent

Heard:  March 22, 2017

On appeal from the sentence imposed by Justice D.P. Cole
    of the Ontario Court of Justice on June 15, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We received fresh evidence on consent to clarify the position defence
    counsel took on sentence at trial.

[2]

We agree that the trial judge misunderstood the position and
    consequently imposed a sentence that was longer than the sentence requested by
    Crown or defence.

[3]

Both counsel invite us to adjust the sentence to reflect the actual
    defence position, although they disagree on the appropriate sentence.

[4]

Given the very serious nature of the offences and the appellants two
    breaches of his bail, we agree with the Crown that an effective sentence of
    three years is appropriate.  The appellant is entitled to 533 days credit for
    presentence custody (355 x 1.5), leaving 562 days.

[5]

We would impose the following sentence:

·

Possession of a loaded prohibited firearm  562 days;

·

Possession of a firearm  one year concurrent;

·

Possession of cocaine for the purpose of trafficking  six months
    concurrent;

·

Possession of marihuana for the purposes of trafficking  six
    months concurrent; and

·

Possession of the proceeds of crime  six months concurrent.

[6]

The probation term remains in place as do the ancillary orders.

[7]

The sentence is varied accordingly.  The sentence we impose is a
    reformatory sentence, i.e. less than two years.  The appellant is in the
    penitentiary in British Columbia.  Arrangements should be made forthwith to
    return him to the reformatory system in Ontario.


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. D.P., 2017 ONCA 263

DATE: 20170330

DOCKET: C60798

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.P.

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Katherine Beaudoin, for the respondent

Heard:  March 22, 2017

On appeal from the conviction entered by Justice Haines
    of the Superior Court of Justice, dated June 16, 2015.

By
    the Court:

[1]

The appellant was convicted of three counts of sexual
    assault and related charges involving the alleged sexual abuse of his stepson,
    J.E.  The charges arose out of three incidents that, according to J.E.,
    occurred when he was nine or ten years old.  J.E. reported the allegations to
    the police about eight years later in July 2013.

[2]

The appellant testified.  He had a turbulent
    relationship with J.E.s mother.  He described J.E. as a very difficult child
    who had severe emotional and behavioural problems.  According to the appellant,
    J.E. often engaged in aggressive and dangerous conduct directed at his two
    younger brothers.  The appellant conceded that on occasion he became very angry
    with J.E. and hit him.  The appellant admitted using his belt to discipline
    J.E. on two occasions when, in the appellants opinion, J.E.s conduct toward
    his younger brothers was particularly egregious.

[3]

The appellant appeals his convictions only.

Were the verdicts unreasonable?

[4]

As often occurs in cases involving allegations of this
    kind, the outcome turned on the trial judges assessment of the credibility of
    J.E. and the appellant and his application of the reasonable doubt standard to
    those assessments.

[5]

There were many reasons to be concerned about J.E.s
    credibility, including a long criminal history, including offences involving
    dishonesty, drug abuse and a longstanding penchant for lying to authorities.  Despite
    these many problems, the trial judge ultimately believed J.E.

[6]

When an appellant alleges that a verdict based on a
    credibility assessment is unreasonable, this court must, to a limited extent, make
    its own assessment of the complainants credibility.  This court does so,
    however, bearing in mind the many advantages enjoyed by the trial judge when it
    comes to assessing credibility.

[7]

We cannot say that the verdicts are unreasonable in
    that no reasonable trier of fact would have believed J.E.s evidence.  Nothing
    in his description of the relevant events is inherently incredible.  His
    criminal background, drug abuse, and mendacity were obviously relevant to his
    credibility.  In considering what to make of the negative features of J.E.s
    background, however, the trial judge had to have regard to the evidence that J.E.s
    anti-social behaviour was potentially explained in part by his most unfortunate
    childhood.  On his evidence, his mistreatment at the hands of the appellant was
    central to that unfortunate childhood.

[8]

A trier of fact, in deciding what impact J.E.s prior
    conduct should have on his credibility, would have to consider the extent to
    which that behaviour may have been the product of mistreatment at the hands of
    the appellant.  We cannot say that a proper appreciation of J.E.s background
    would inevitably lead a reasonable trier of fact to conclude that the
    allegations of sexual abuse made by J.E. were not credible.

[9]

In any event, J.E.s evidence did not stand alone.  Two
    witnesses described the relationship between the appellant and J.E.  Both testified
    that when J.E. misbehaved, the appellant reacted very angrily, if not
    irrationally.  He often resorted to physical violence against J.E.  Both
    witnesses indicated that J.E. was singled out for particularly harsh treatment
    by the appellant.  Furthermore, on the evidence of these two witnesses, the appellant
    not only physically abused J.E., he emotionally abused him by denigrating and
    humiliating him.

[10]

The evidence from these two witnesses did not offer
    direct support for J.E.s allegations of sexual abuse.  Their evidence did,
    however, confirm J.E.s evidence in the sense that it described a relationship
    between J.E. and the appellant and an extreme animus toward J.E. by the
    appellant that was entirely consistent with J.E.s descriptions of the
    appellants assaults.

[11]

It cannot be said that no reasonable
    trier of fact, acting judicially, would have convicted the appellant on the
    evidence adduced at trial.  The argument that the verdicts are unreasonable
    fails.

The reasons for judgment

[12]

The remaining arguments target specific aspects of the trial judges
    reasons that are relevant to his ultimate credibility assessments.  The
    appellant alleges a variety of errors.  In addressing these arguments, it is
    helpful, before turning to a close review of specific passages in the reasons
    said to reveal error, to step back and examine the reasons as a whole.  Reasons
    that reveal a full appreciation of the evidentiary record, the positions of the
    parties, and the issues to be determined, are much more likely to survive
    appellate review targeting alleged inadequacies in a specific sentence or
    passage than are reasons that are conclusory or perfunctory.

[13]

The reasons for judgment in this case offer a detailed review of the evidence,
    and a full examination of the arguments presented at trial.  Considered in the
    context of a case that turned entirely on credibility, the reasons offer a
    clear explanation for the verdicts arrived at by the trial judge.

[14]

The appellant submits the trial judge erred in failing to treat certain
    inconsistencies in J.E.s evidence as material to his credibility, but instead wrongly
    dismissed those inconsistencies as peripheral.  The trial judge considered
    several inconsistencies in J.E.s testimony.  He also outlined the defence
    arguments based on those inconsistencies and summarized the applicable law.  It
    was opened to the trial judge to conclude that many of the inconsistencies relied
    on by the defence were peripheral to the main allegations.  For example, the
    trial judge did not regard inconsistencies in J.E.s testimony concerning the presence
    of his mother in the home at the time of one or more of the assaults, as a significant
    inconsistency.  It was for the trial judge to assess the significance of that
    inconsistency.  We see nothing unreasonable in his characterization of the
    inconsistency as peripheral.

[15]

Counsel for the appellant emphasized two inconsistencies.  He argues
    that the trial judge did not adequately deal with J.E.s evidence that he, not
    only did not complain about the appellants conduct to his doctor or the CAS
    workers who questioned him about abuse, but instead reported a positive
    relationship with the appellant.

[16]

In his evidence, J.E. explained that he lied to the doctor and the CAS
    workers about the appellants abuse because he had been coached by the
    appellant about what he should say to the authorities and he feared retribution
    if he did not follow the appellants instructions.  It was open to the trial
    judge to accept this explanation for J.E.s statements to the doctor and the
    CAS workers.  The explanation rings trues in the face of the appellants
    admitted physical abuse of J.E., and the evidence of the independent witnesses describing
    the appellants violent temper and mistreatment of J.E.

[17]

Counsel attempted to persuade the court that the trial judge erred in
    accepting J.E.s explanation for lying to the CAS and the doctor about the
    abuse by referring the court to a passage from J.E.s cross-examination in
    which he stated that he was not as afraid of the appellant after the appellant
    and J.E.s mother were separated and J.E. was not living in the house.  Reference
    to this single passage does not support a claim that the trial judge failed to
    consider the evidence of J.E.s lies to the CAS and his doctor when assessing
    J.E.s credibility.  This passage, even if generously read, cannot negate
    J.E.s unequivocal assertion that he was afraid of the appellant and lied to
    the authorities to avoid the wrath of the appellant.

[18]

Counsel also argued that the trial judge failed to consider a significant
    inconsistency in J.E.s description of the assault involving the forced
    fellatio in his bedroom.  At the preliminary inquiry, J.E. had indicated that
    the appellant kicked and hit him before forcing him to engage in fellatio.  In
    his examination-in-chief at trial, J.E. made no mention of the kicking and
    hitting.  When confronted with the inconsistency in his cross-examination, J.E.
    adopted his preliminary inquiry statement, indicating that he had forgot to
    mention the physical violence in his evidence in-chief.

[19]

The trial judge accurately reviewed this part of the evidence.  He
    referred to J.E.s explanation and to the defence position.  He did not
    specifically indicate that he accepted J.E.s explanation for the inconsistency.
    However, a fair reading of the reasons leaves no doubt that he accepted the
    explanation.

[20]

In considering the potential negative impact of this inconsistency on
    J.E.s credibility, one must bear in mind that J.E.s initial trial evidence
    was less damaging to the appellant than his statement under oath at the
    preliminary inquiry. This was not a case of a complainant adding damaging
    evidence each time he repeated the allegation.

[21]

The inconsistency between J.E.s evidence in-chief and his preliminary
    inquiry evidence was brought out during cross-examination.  J.E. adopted the
    more damaging evidence he had given at the preliminary inquiry.  The act of
    fellatio was obviously the focus of this particular allegation.  The trial
    judges finding that J.E. inadvertently left certain details out of his initial
    account at trial, although those details were included in a prior account given
    under oath, was not an unreasonable assessment.

[22]

The trial judge did not err in his treatment of the inconsistencies in
    J.E.s testimony.

Did the trial judge place undue reliance on
R. v.
    J.J.R.D.
?

[23]

The trial judge was alive to the Crowns burden of proof and the
    application of that burden in cases in which a complainant and an accused give
    diametrically opposed evidence of the relevant events.  The trial judge
    specifically referred to
R. v. W.(D.)
, [1991] 1 S.C.R. 742.  He
    appreciated that mere belief of J.E.s evidence, combined with a rejection of
    the appellants evidence, could not constitute proof beyond a reasonable doubt.

[24]

The trial judge ultimately concluded that the appellants evidence did
    not leave him with a reasonable doubt on the charges.  In coming to that
    conclusion, the trial judge acknowledged that there was no specific feature of
    the appellants evidence that caused him to reject his evidence.  Rather, his
    rejection was based on a considered and reasoned acceptance beyond a reasonable
    doubt of the truth of the conflicting credible evidence given by J.E. as
    supported by the evidence of the other two Crown witnesses.  The trial judge
    referred to
R. v. J.J.R.D.
, [2006] O.J. No. 4749.

[25]

Given the trial judges assessment of the evidence, the passage he quoted
    from
R. v. J.J.R.D
. had application to this case.  The trial judge
    made no error in convicting based on his considered and reasoned acceptance
    beyond a reasonable doubt of the evidence of J.E., despite his inability to
    point to any specific part of the appellants evidence that caused him to
    disbelieve the appellant.

Did the trial judge place undue reliance on demeanour
    evidence in accepting J.E.s testimony?

[26]

A witnesss demeanour is an appropriate consideration when assessing
    credibility.  Demeanour can, however, be misleading and should be factored into
    the credibility assessment with care.  There is always a danger that demeanour
    can be overemphasized by a trial judge or a jury.

[27]

This trial judge made a single reference to J.E.s demeanour, indicating
    that he did not detect any deceit or dishonesty in J.E.s demeanour during his
    testimony.  There is no suggestion in the reasons that the trial judge used
    J.E.s demeanour as a positive factor in assessing J.E.s credibility.  He
    merely referred to the absence of any appearance of deceit or dishonesty.  Even
    if the trial judge did use J.E.s demeanour to some extent in assessing credibility,
    there is no basis upon which to find that he put undue emphasis on J.E.s demeanour
    when assessing his credibility.

Did the trial judge err in equating J.E.s selective
    disclosure with delayed disclosure of the abuse?

[28]

J.E. did not complain to the police for many years about the appellants
    assaults.  When he went to the police, he first revealed two of the assaults
    and a few months later revealed the third.

[29]

The defence argued J.E.s selective disclosure provided yet another
    basis upon which to reject his evidence as incredible.  The trial judge
    referred to that argument and to
R. v. D.D.
, 2000 SCC 43, a case
    dealing with the significance of delayed disclosure in assessing credibility in
    sexual assault cases.

[30]

The trial judge concluded that J.E.s explanation for his delayed
    disclosure and for his failure to disclose all of the assaults in his first
    interview with the police was perfectly plausible.  The trial judge observed:

The decision to disclose is a difficult one that can be very
    painful for victims.  It cannot be surprising that it would take [J.E.] more
    than one occasion to shed a burden that had been weighing on him for years.

[31]

We see no error in the trial judges assessment of the impact of J.E.s
    delayed and bifurcated disclosure on his credibility.  Nor do we accept the
    argument that there is a fundamental difference between delayed disclosure and
    piecemeal disclosure of prior sexual abuse.  The comments in
R. v. D.D.
are potentially applicable to both, depending of course on the circumstances
    revealed by the evidence in any particular case.

Conclusion

[32]

The appeal is dismissed.

Released:  DD  MAR 30 2017

Doherty J.A.
Grant Huscroft J.A.
Bradley W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davidson, 2017 ONCA 257

DATE: 20170329

DOCKET: C60117

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harley Davidson

Appellant

R. Craig Bottomley and Sherif M. Foda, for the appellant

Vanita Goela, for the respondent

Heard: September 27, 2016

On appeal from the conviction entered by Justice John R.
    McIsaac of the Superior Court of Justice on December 20, 2014.

Laskin J.A.:

A.

Overview

[1]

In
R. v. Godoy
, [1999] 1. S.C.R. 311, the Supreme Court of
    Canada held that the police can enter a home without a warrant if they have
    reasonable grounds to believe it is necessary to do so to protect a persons
    life or safety. The principal question raised on this appeal is whether the
    trial judge wrongly extended
Godoy
beyond its limited scope.

[2]

At 10:00 am one June morning, a four year old boy, clad only in a
    diaper, was seen standing alone at a busy intersection in Barrie, Ontario. A
    passing motorist called 911. By the time the police arrived, the boy was safely
    in his mothers arms, wrapped in a blanket. The appellant, Harley Davidson, the
    boys father, arrived soon after. He explained to the police that his son is
    autistic and has a tendency to wander away from the family home, which was 50
    metres away. Davidson said he had installed a special lock high up on the door
    to the house but that his son had managed to open it and get out.

[3]

The police insisted on examining the lock, and Davidson agreed they
    could do so. Although satisfied with the lock, the police then insisted on
    looking inside the house. They had no warrant but claimed they were entitled to
    look around the house to check on the boys well-being  to ensure he was safe
    and properly nourished.

[4]

Three police officers entered the Davidson home. On first entering the
    house, the lead investigator smelled marijuana. He conducted a brief search of
    the upstairs of the house, checking the kitchen cupboards and the refrigerator
    for food. He then went down to the basement, where the smell of marijuana
    became overwhelming. The smell came from behind a closed and locked door. When
    the police asked for the key, Davidson kicked the door open, revealing numerous
    marijuana plants. He was arrested and charged with production of marijuana, possession
    of marijuana, and possession of marijuana for the purpose of trafficking.

[5]

At the beginning of the trial, Davidson brought an application to
    exclude the evidence of the marijuana because of numerous breaches of the
Canadian
    Charter of Rights and Freedoms
. The trial judge found that the police had
    committed three breaches of the
Charter
:

·

They failed to advise Davidson of his right to counsel contrary
    to s. 10(b) of the
Charter
after they smelled the marijuana, even
    though by then Davidson was effectively detained;

·

They again failed to advise Davidson of his right to counsel before
    questioning him about the marijuana;

·

They breached Davidsons right to be secure against unreasonable
    search, contrary to s. 8 of the
Charter
, by discovering the
    marijuana without a warrant.

[6]

But the trial judge rejected Davidsons main claim: that the police
    breached his s. 8 rights when they initially entered his home. The trial judge
    ruled that
Godoy
entitled the police to do a protective sweep of the
    house because of their child protection concerns.

[7]

The trial judge then held that the evidence of the marijuana was
    admissible under s. 24(2) of the
Charter
. The Crown withdrew the
    possession of marijuana charge, and the trial judge convicted Davidson of production
    of marijuana and possession of marijuana for the purpose of trafficking and
    sentenced him to 18 months in custody.

[8]

Davidson appeals his convictions. He argues three issues:

1.

Did the trial
    judge err by ruling that the polices initial entry into the Davidson home did not
    breach s. 8 of the
Charter
?

2.

Did the trial
    judge err by ruling that the evidence of the marijuana was admissible under s.
    24(2) of the
Charter
?

3.

In preferring
    the evidence of the police to that of Davidson, did the trial judge apply a
    stricter standard of scrutiny to his evidence?

[9]

I would answer yes on the first two issues. It is therefore
    unnecessary to address the third issue. I would allow the appeal, set aside
    Davidsons two convictions and enter acquittals.

B.

The Issues

(1)

Did the trial judge err by ruling that the polices initial entry to the
    Davidson home did not breach s. 8 of the
Charter
?

(a)

The trial judges finding on the purpose of the search of the home

[10]

Some of the evidence of the lead police investigator, Sergeant
    Henderson, suggests he was not just concerned about the boys safety; he was
    looking for drugs. For example, in his examination-in-chief, Henderson
    testified:

And I didnt know Mr. Davidson, I had never met him before,
    that I recollect, I wanted to ensure that the house was actually safe. Very
    often with drug users andchildren arent looked after because the parents are
    passed out, the parents are high, the parents are whatever the situation may
    be. Theyre more concerned about getting crack cocaine than they are about
    taking care of their children. I wanted to ensure that that wasnt the case
    here.

[11]

Henderson continued in the same vein:

I was concerned  I wasnt thinking grow-op at all. I was more
    thinking cocaine, crack cocaine, heroin, those kinds of things that the people
    that are involved with those heavier drugs quite often are very neglectful parents
    and I wanted to ensure that that wasnt the case here.

[12]

And:

Im looking for initially what he advised were there, the
    measures to keep the child in the house, and also that theres not needles,
    crack pipes, theres food in the house, that the children are coming from a
    house where its safe for them to be.

[13]

Despite this evidence, the trial judge found that the primary
    motivation of this police intervention was the welfare of this youngster. He
    rejected any suggestion that the police were using the opportunity of this
    apparently abandoned child as a ruse or pretext to insinuate themselves into a
    suspected drug operation. The trial judge did acknowledge that the polices
    initial intervention had a secondary criminal law aspect but found that this
    aspect of the polices entry never overcame [their] primary child protection
    concerns.

[14]

The trial judge then held that the principles underlying
Godoy
were sufficiently malleable to justify the polices entry into the Davidson
    home. They were lawfully entitled to go into the home to assess the degree of
    risk to the young boy and his two siblings. Thus the polices initial entry
    into the home did not amount to a breach of s. 8.

[15]

Although I have some concerns about the trial judges assessment of the
    evidence, for my analysis I will accept his finding on the polices purpose in searching
    the home.

(b)

The
    positions of the parties

[16]

Davidson submits that the trial judge erred in law by misapplying
Godoy
.
    He contends that the polices initial entry into the home without a warrant was
    unreasonable and breached s. 8 of the
Charter
. The Crown contends that
    the principles underlying
Godoy
are sufficiently flexible to support
    the trial judges ruling.

[17]

Alternatively, the Crown seeks to support the trial judges ruling on
    either of two other bases: Davidson consented to the search; or the provisions
    of the
Child and Family Services Act
(the CFSA), R.S.O. 1990, c. C.11
    justified the search of the home without a warrant. In response, Davidson
    argues he did not consent to the search and the trial judge did not find that
    he did; and the criteria under the CFSA for a warrantless entry into a home
    were not met.

[18]

Thus the first issue raises three specific questions:

1.

Did the trial judge misapply
Godoy
?

2.

Did Davidson consent to the search?

3.

Does the CFSA authorise the warrantless search?

[19]

My answer to these three questions are yes, no and no. I would
    hold that the polices initial entry into the home breached Davidsons s. 8
    rights.

(c)

Did
    the trial judge misapply
Godoy
?

[20]

The s. 8 right to be secure against unreasonable searches protects a
    persons expectation of privacy from state intrusion. Nowhere is that
    expectation of privacy higher than in ones home. To enter a home, police ordinarily
    need previous authorization: a warrant. Warrantless entries of a home are
    presumed to be unreasonable and in breach of s. 8. See
R. v. Silveira
,
    [1995] 2 S.C.R. 297, at para. 162.

[21]

But exceptions exist, both by statute and at common law. For example,
    under s. 529.3 of the
Criminal Code
,
    R.S.C. 1985, c. C-46,
the police may enter a home without a warrant
    to arrest or apprehend a person if the conditions for obtaining a warrant exist
    but exigent circumstances  that is, urgent or pressing circumstances  make
    it impractical to obtain one. The
Code
includes among exigent
    circumstances those where the police have reasonable grounds to suspect entry
    into the home is necessary to protect a persons imminent harm or death, or to
    prevent the imminent loss or destruction of evidence.

[22]

A common law exception to the presumed unreasonableness of warrantless
    entries into a home is at issue in this appeal.
Godoy
affirms the
    principle that the police have a common law duty to protect a persons life or
    safety and that duty may, depending on the circumstances, justify a forced,
    warrantless entry into a home.

[23]

Godoy
arose in the context of the polices response to a 911
    call from Mr. Godoys apartment. The line was disconnected before the caller
    spoke. The police went to the apartment and asked to investigate the call. Mr. Godoy,
    however, told them there was no problem, did not explain the call and tried
    to close the door. The police then forced their way inside and found a woman
    curled up and crying. She said Godoy had hit her. He was arrested and charged
    with assault, but eventually acquitted because the trial judge held the
    polices entry into the home was not authorised.

[24]

On summary conviction appeal, the acquittal was set aside and a new
    trial was ordered. This court upheld that result. The Supreme Court then
    ultimately upheld the polices warrantless entry into the home on the basis of
    their common law duty to protect a persons life or safety.

[25]

Chief Justice Lamer, writing for the court, held that when the police
    receive a 911 call they have authority to investigate the call. A 911 call is a
    call for help. The call may be triggered by criminal activity but it may not
    be. A person having a heart attack may call 911 for assistance but be unable to
    speak.
Godoy
confirms that the police have the duty, and thus the
    authority, to investigate all 911 calls.

[26]

But
Godoy
also narrowly limits when the police can enter a
    persons home without a warrant in response to a 911 call. The police must
    reasonably believe that the life or safety of a person inside the home is in
    danger. And once inside the home, their authority is limited to ascertaining
    the reason for the call and providing any needed assistance. They do not have
    any further authority to search the home or intrude on a residents privacy or
    property.

[27]

In
Godoy
itself, these limits were easily met. Much like what
    is now codified under s. 529.3 of the
Criminal Code
, the police were
    facing exigent circumstances, an unknown emergency. They had good reason to
    believe the life or safety of a person inside the home was at risk and their
    only course of action to immediately find out about the 911 callers health or
    safety was to force their way into the home. Thus the warrantless entry was
    justified.

[28]

In the case before us, as in
Godoy
, the police responded to a
    911 call. But there the similarity ends. In
Godoy
, when the police
    arrived at the apartment, the emergency was not resolved  the police did not
    know whether the 911 caller was still in danger. Here, by the time the police
    arrived at the intersection, any emergency that had existed had ended since the
    boy was safely in his mothers arms. In
Godoy
, the victim was inside
    the home; here the boy was outside the home, 50 metres away.

[29]

In summary, in the case before us by the time the police arrived at the
    intersection, no exigent circumstances existed. There was no reason to believe
    the life or safety of any person inside the Davidson home was at risk. They
    could see for themselves that the boy was safe and not in any immediate danger.
    Moreover, after the police had ascertained the reason for the 911 call, they
    were not entitled to search the Davidson house.

[30]

In his evidence, Sergeant Henderson conceded he did not believe the life
    or safety of a child inside the home was in danger:

I dont have a  I dont hear screaming or anything like that
    that leads me to believe that something is going on, aside from this child is
    clearly not supervised properly and there is other children in the house. I
    dont know whether they were being supervised properly. I dont have enough
    information yet. So, no, I dont have anything that says kick this door in,
    theres a kid in there who is bleeding and needs help. I dont  I dont have
    that.

[31]

And Henderson conceded he would have had no grounds to obtain a search
    warrant for the search he wanted to conduct:

No, because I couldnt get a search warrant  with a search
    warrant you need specific things that youre searching for. There was nothing
    specific I was searching for. I was going in to ensure that these children have
    food. You cant get a search warrant to go check somebodys cupboards to make
    sure that theres food in the cupboard, so no.

[32]

Godoy
does not give the police sweeping authority to enter a
    home without a warrant to investigate whether a childs mother and father are
    good parents. In the present case, at most the police were entitled to inspect
    the lock, which they could do without going inside the home.
Godoy
did
    not support their warrantless entry and the trial judge erred in holding that
    it did.

(d)

Did
    Davidson consent to the search?

[33]

The trial judge made no finding on whether Davidson consented to the
    search of his home. Indeed, the trial Crown had conceded a s. 8 breach, only to
    resile from that concession in closing argument when the trial judge urged the
    Crown to rely on
Godoy
.

[34]

I agree with counsel for Davidson that even accepting the polices
    evidence, at most it showed Davidson acquiesced to the polices inevitable
    intrusion into his home, but not that he consented. Three aspects of Sergeant
    Hendersons evidence bear on the question of consent.

[35]

First, Henderson never told Davidson of his right to refuse the polices
    entry into the home because Henderson believed that Davidson did not have the
    right to do so. Second, Henderson acknowledged that Davidson did not expressly
    consent to the search of his home:

Q:       Im going to suggest to you that Mr. Davidson did not
    ask you to come in and check the residence.

A:       He didnt. No, he didnt ask us to come in.

Q:      Okay. Mr. Davidson did not consent to you entering his
    residence?

A:       I dont believe he ever verbally said I consent, but
    he didnt object at all. He came into the house with us. He took us into the
    house.

[36]

And third, Henderson agreed that his police force has a form they ask a
    homeowner to sign before doing a consent search of a home and that he never
    asked Davidson to sign this form:

Q:      The Barrie Police Force has a consent form that they
    read to a person and have them sign before they perform a consent search of a
    residence?

A:       Yes.

Q:      Youre a Sergeant with the Barrie Police Force?

A:       Yes.

Q:      Youve been with this police force for 14 years?

A:       Yes.

Q:      You did not provide one of those consent forms to Mr.
    Davidson?

A:       No, those consent forms are if were going in to
    search for something, like stolen property, drugs, something offence related. I
    wasnt going in offence related at all. That wasnt on my mind even a little
    bit. I was going in to ensure that these kids were safe.

[37]

Overall the evidence shows that the police thought they had the right to
    enter Davidsons home without his consent. The warrantless search of his home
    cannot therefore be justified on the basis of his consent.

(e)

Does
    the CFSA authorize the warrantless search?

[38]

The provisions of the CFSA relevant to this question are ss. 40(2), (7),
    (11) and (13). Under s. 40(2), a child protection worker may obtain a warrant
    to seize a child from a home if reasonable and probable grounds exist to show
    the child is in need of protection and a less restrictive course of action will
    not protect the child adequately.

[39]

Section 40(7) authorizes a child protection worker to enter a home
    without a warrant to bring a child to a place of safety, but only if two
    conditions are met. The child protection worker must believe on reasonable and
    probable grounds that:

·

The child is in need of protection; and

·

There would be a substantial risk to the childs health or safety
    during the time needed to obtain a warrant or to bring the matter on for a hearing.

[40]

Section 40(11) supplements s. 40(7) and provides that if necessary the
    child protection worker can enter a home by force to search for and remove a
    child. Section 40(13) provides that a police officer has the same powers as
    does a child protection worker under s. 40(2), (7) and (11).

[41]

The Crown relies on s. 40(7) of the CFSA to justify the polices warrantless
    entry into the Davidson home. I do not agree with the Crowns position. Even if
    Davidsons son was in need of protection, as the trial judge seemed to suggest,
    the second condition required for a warrantless entry did not exist. There was
    no evidence of any risk, let alone a substantial risk, to the boys health or
    safety if the police had taken the time to try and obtain a warrant. Also, as I
    have already said, Sergeant Henderson conceded he had no grounds to obtain a
    warrant. Section 40(7) does not assist the Crown. It did not authorize the
    polices warrantless entry into the Davidson home.

[42]

I conclude that the trial judge erred in ruling that the polices
    initial entry into the home did not amount to a s. 8 breach. In my view it did.
    I now turn to whether the trial judge erred in his s. 24(2) ruling.

(2)

Did the trial judge err by ruling that the evidence of the marijuana was
    admissible under s. 24(2) of the
Charter
?

(a)

The trial judges
    ruling

[43]

Section 24(2) of the
Charter
provides that evidence obtained in
    breach of a
Charter
right or guarantee shall be excluded if its
    admission would bring the administration of justice into disrepute. Under the
    Supreme Court of Canadas decision in
R. v. Grant
, 2009 SCC 32, [2009]
    2 S.C.R. 353, to determine whether evidence should be excluded or admitted
    under s. 24(2) a court must balance three considerations: the seriousness of
    the
Charter
breach or breaches; the impact of the breach or breaches
    on the accuseds
Charter
-protected interests; and societys interest
    in an adjudication on the merits.

[44]

The trial judge found three
Charter
breaches and he assessed
    the three considerations mandated by
Grant
. On the seriousness of the
    breaches, the trial judge found that the first s. 10(b) breach (when Davidson
    was initially detained) was not wilful or flagrant; the second 10(b) breach
    (when Davidson was questioned) was disturbing tending to tip the scale towards
    exclusion of the evidence; and the s. 8 breach (when the police discovered
    the marijuana) was at the mid-range of seriousness.

[45]

The trial judge then found that the three
Charter
breaches were
    technical in nature and had a minimal impact on Davidsons interests.
    Finally, in light of the nature of this grow-op, the trial judge found that
    societys interest in an adjudication on the merits strongly favours
    admission of the evidence. He then balanced the three considerations and ruled
    that neither the seriousness of the breaches nor their impact on Davidson should
    foreclose the admission of the extremely cogent and reliable evidence of this grow-op.

(b)

Did the trial
    judge err in his s. 24(2) analysis?

[46]

A trial judges s. 24(2) ruling is entitled to deference from an
    appellate court. But an appellate court is entitled to intervene and reassess
    the s. 24(2) considerations afresh if the trial judges ruling is unreasonable
    or reflects an error in principle. See
Grant
, at paras. 86, 129;
Silveira
,
    at para. 144;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para.
    64.

[47]

Davidson submits that the trial judge made several errors in principle
    in his s. 24(2) ruling, justifying appellate intervention. It is unnecessary to
    consider these submissions. The trial judges error in failing to find that the
    polices initial entry amounted to a s. 8 breach  a serious
Charter
breach  entitles this court to reassess whether the evidence of the marijuana
    should have been admitted at trial.

(i)

Seriousness of the
Charter
breaches

[48]

In my opinion, the
Charter
breaches, cumulatively, are at the
    high end of seriousness because of the following:

·

The police committed not one, but four separate breaches of
    Davidsons
Charter
rights. Multiple
Charter
breaches tend to
    aggravate the overall seriousness of the violations. See
R. v. Calderon
(2004) 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94.

·

The polices initial entry into the home was by itself especially
    serious. As Cory J. said in
Silveira
, at para. 148: The unauthorized
    presence of agents of the state in a home is the ultimate invasion of privacy.
    It is a denial of one of the fundamental rights of individuals living in a free
    and democratic society.

·

The police not only entered Davidsons home without a warrant,
    they conceded they had no grounds to get a warrant. Instead, they relied on
    their misguided belief they could enter the home to find out whether the boys
    parents were good parents.

·

The trial judge made no express finding that the police acted in
    good faith and no such finding can be made when the polices breach of s. 8 was
    committed in ignorance of the scope of their constitutional authority. See
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

·

The police admitted to a systemic practice of warrantless
    searches of homes to check on the well-being of children. Sergeant Henderson
    admitted to conducting four or five of these searches every year  searches
    that the police could not justify by any constitutional authority.

[49]

This consideration therefore strongly favours excluding the evidence.

(ii)

Impact
    of the breaches on Davidsons Charter-protected interests

[50]

Contrary to the trial judges finding, I consider that the impact of the
    breaches on Davidsons
Charter
-protected interests was significant for
    two reasons. First, the police entered an area where Davidson had a high
    expectation of privacy: his home. Second, once inside the home, the police
    engaged in conduct that infringed on Davidsons dignity. They searched his
    cupboards and refrigerator, and then questioned him in front of his family. See
Grant
, at paras. 78, 113.

[51]

This consideration, too, favours exclusion of the evidence.

(iii)

Societys
    interest in an adjudication on the merits

[52]

The marijuana is relevant and reliable evidence, and is important to the
    Crowns case. The public interest in having a trial on the merits favours the
    admission of the evidence on this basis.

(iv)

Balancing

[53]

Balancing the three
Grant
considerations, I would hold that the
    trial judge erred in his s. 24(2) ruling. Although the marijuana evidence is
    reliable, the reliability of evidence should not be permitted to overwhelm the
    s. 24(2) analysis:
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494,
    at para. 40. Indeed, in
McGuffie
, Doherty J.A. recently held that
    where the first and second
Grant
criteria favour exclusion, the third
    factor will seldom, if ever, tip the balance in favour of admissibility: at
    para. 63. See also
R. v. Paterson
, 2017 SCC 15, at paras. 55-56.

[54]

Admitting the evidence of the marijuana would bring the administration
    of justice into disrepute. The seriousness of the breaches, especially the
    initial s. 8 breach, and the significant impact of the breaches on Davidsons
    expectation of privacy and dignity favour exclusion of the evidence, and
    outweigh societys interest in deciding the case on its merits. If there were
    any doubt, the polices utter disregard for constitutional standards would, if
    the evidence were admitted, bring the justice system into disrepute.

C.

Conclusion

[55]

I would allow the appeal and set aside Davidsons convictions. As I
    would exclude the evidence of the marijuana, there is no longer any evidence
    against him to support the charges. I would therefore enter an acquittal on
    each charge.

Released: March 29, 2017 (E.E.G.)

John Laskin J.A.

I agree. Eileen E. Gillese
    J.A.

I agree. David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deol, 2017 ONCA 221

DATE: 20170321

DOCKET: C56636

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harsharn Deol

Appellant

Alan D. Gold, for the appellant

Rick Visca, for the respondent

Heard: February 10, 2017

On appeal from the convictions entered on October 12,
    2012 and the sentence imposed on January 21, 2013 by Justice Nancy M. Mossip of
    Superior Court of Justice, sitting with a jury.

Juriansz J.A.:

[1]

The appellant was convicted at a jury trial of importing and conspiracy
    to import heroin, and of possession of and conspiracy to possess heroin for the
    purposes of trafficking. He appeals his convictions on all four counts alleging
    several errors in the trial judges instructions to the jury. He also appeals
    his sentence.

[2]

For the reasons that follow, I would dismiss the conviction and sentence
    appeals.

A.

Factual Overview

[3]

The allegations at trial were that the appellant, along with three co-accused,
    Godwin Deane, Tajinder Singh Lally and Gurvinder Singh Athwal, had imported approximately
    11.9 kilograms of heroin into Canada on or about December 15, 2009. The RCMP had
    detected the heroin and made a controlled delivery to a body shop at 1094
    Westport, Mississauga. RCMP surveillance officers made observations about the
    arrival of a silver Nissan Sentra that they subsequently followed. The driver
    was later identified as Harvinder Singh. Harvinder Singh was offered an
    immunity agreement in exchange for testifying and the charges against him were stayed.

[4]

The prosecutions case against all accused rested heavily on the
    testimony of Harvinder Singh. The co-accused, Deane, testified in his own
    defence. The other co-accused did not, and no other witnesses on behalf of the
    defence were called. The jury convicted the appellant and Athwal, and acquitted
    Deane and Lally.

[5]

The RCMP intercepted telephone calls made by a Jaswinder Singh to the
    customs broker and to Harvinder Singh, Athwal, Deane and Lally. There were no
    intercepted calls from Jaswinder Singh to the appellant, Deol. The Crowns
    theory was that Jaswinder Singh was in fact the appellant. Three witnesses
    identified the voice of Jaswinder Singh on the intercepted telephone calls as
    that of the appellant. The three witnesses were Harvinder Singh, a cousin and
    former business partner of the appellant named Paramjit Deol, and the co-accused
    Deane, who had received one of the intercepted calls from the telephone number
    associated with Jaswinder Singh.

[6]

At trial, both prosecution and defence saw that the central question the
    jury had to decide was whether it was satisfied beyond a reasonable doubt that
    the appellant was Jaswinder Singh. The appellants trial counsel said to the
    jury:

So lets talk about what this case is all about. This is what this
    issue  the real issue here. The real issue for you to determine is whether you
    are satisfied beyond a reasonable doubt that Mr. Deol was indeed Jaswinder
    Singh. Identity is an essential element of all four of the charges the Crown
    must prove. Once you have found that there is a reasonable doubt that Mr. Deol
    was Jaswinder Singh, in other words, okay, you know what, were not sure. Were
    not sure if hes Jaswinder Singh. Ill get to reasonable doubt in a second. It
    is your duty to find him not guilty of all the charges. Thats the defence
    here, and thats what Im asking you. I just boiled it down into a nutshell and
    Im going to get into reasonable doubt.

[7]

The Crown put it this way, [t]his case is about the voice of Harry
    Deol. If I have not satisfied you on that, I have some serious problems.

[8]

The trial judge agreed this was the real issue, saying [t]he real
    issue, members of the jury, is whether you are satisfied beyond a reasonable
    doubt that Mr. Deol is Jaswinder Singh on the intercepts. The trial judge
    explained that this was the real issue because:

The person who identifies himself as Jaswinder Singh on the
    intercepts is clearly involved in the pickup and delivery of the coolers
    containing heroin from the customs broker. That person has arranged for the
    payment of all the fees and the payment for the delivery of the shipment to a
    location provided by them.

B.

Conviction Appeal

[9]

The appellant alleges the trial judge failed to provide proper
    instructions to the jury, and especially failed to caution the jury in response
    to improper submissions made by other counsel. The adequacy of the trial
    judges instructions to the jury must be reviewed in the context of the issues
    joined at trial. The closing addresses of counsel are also relevant in
    considering alleged defects in the trial judges instructions.

(1)

No instruction on the frailties of voice identification

[10]

The
    appellant submits the trial judge erred by failing to instruct the jury on the
    frailties of voice identification. I am not persuaded that such an instruction
    was required in this case. The three witnesses who identified the voice on the
    intercepted communications involving Jaswinder Singh as the appellants were
    each quite familiar with the appellant and his voice. At trial, the defence
    attacked the credibility of these witnesses, and not their ability to reliably
    identify the appellants voice. There was good reason for the defence approach
    as all three witnesses were familiar with the appellant and his voice. The
    witness Deane even testified that he had a telephone conversation with the
    appellant that emanated from the number associated with Jaswinder Singh.

[11]

The
    trial judge instructed the jury that it had to be satisfied beyond a reasonable
    doubt that the voice of Jaswinder Singh on the intercepts was that of the
    appellant, and pointed out that there was no independent evidence to that
    effect.

[12]

The
    record in this case is inadequate to support the broad proposition advanced on
    appeal that a trial judge must always instruct the jury on the frailties of
    voice identification.

[13]

I
    do not give effect to this ground of appeal.

(2)

Erroneous
Vetrovec
instruction and prior inconsistent statements

[14]

The
    appellant submits the trial judges
Vetrovec
instruction pertaining to
    Harvinder Singh was flawed. In a related argument, he submits that the trial
    judge failed to provide the jury with adequate guidance as to how to assess
    Harvinder Singhs inconsistent statements made under oath.

[15]

In
    my view, the instruction was satisfactory. Harvinder Singh was indeed an
    unsavoury witness. Not only had he been granted immunity, there were other
    features of his testimony that were capable of undermining his credibility. The
    trial judge provided careful instructions about his testimony emphasizing the
    serious charges he was facing, and the various inconsistencies in his evidence
    at trial and the previous statements he had made to the police and at the
    preliminary hearing.

[16]

The
    trial judge instructed the jury that it should look for some confirmation of Harvinder
    Singhs evidence from somebody or something other than Harvinder Singh before
    relying on his testimony. The trial judge added that [t]o be confirmatory, the
    testimony of another witness or witnesses or other evidence should help restore
    your faith in relevant parts of Harvinder Singhs evidence. The trial judge
    provided the jury with several illustrations of independent evidence that could
    be seen to confirm aspects of Mr. Singhs testimony. I am not persuaded that
    the illustrations were immaterial.

[17]

I
    note that the trial judges charge followed most strenuous attacks on the
    credibility of Singh by counsel for the appellants co-accused. Still, the
    trial judge reviewed the prior inconsistent statements of Singh, and told them
    they could consider all of his prior testimony to have been given under oath or
    solemn affirmation. She told the jury that it should consider the fact, nature
    and extent of any differences in deciding the importance of inconsistent
    statements and in deciding whether they would believe and rely upon the
    witnesss testimony. The jury was also instructed to consider any explanation
    the witness gave for the difference.

[18]

These
    instructions and the robust attack on Harvinder Singh by all defence counsel ensured
    the jury was well-equipped to evaluate his credibility.

[19]

I
    note that the appellants trial counsel was given the opportunity to review the
    trial judges proposed charge and suggested no modification of the charge in these
    regards.

[20]

It
    is apparent that the jury approached the evidence of Harvinder Singh with the
    requisite caution as it acquitted Lally where the Crowns case against Lally
    depended entirely on the testimony of Harvinder Singh.

[21]

I
    do not give effect to these grounds of appeal.

(3)

Need for a special instruction on applying Deanes evidence to the
    appellant

[22]

The
    appellant submitted that the trial judge erred by failing to give a special
Vetrovec
-type
    instruction on the use of the evidence of Deane as it applied to the appellant.
    Appellants counsel submitted that this court indicated in
R. v. Oliver
,
    (2005), 28 C.R. (6th) 298 (Ont. C.A.), leave to appeal to S.C.C. refused (2006),
    28 C.R. (6th) 298, that such a caution is appropriate where an accused
    incriminates a co-accused in his or her testimony.

[23]

In
    response, the Crown stated that since the appellants trial counsel did not
    request such an instruction, this courts decision in
R. v. Anigwe
,
    2016 ONCA 755, applies. In
Anigwe
, at para. 5, this court held that absent
    any request by appellants counsel for such a special instruction, the trial
    judges failure to give one cannot be characterized as non-direction amounting
    to misdirection. The Crown, however, was mistaken. At the pre-charge
    conference, the appellants trial counsel clearly requested that the trial
    judge provide a
Vetrovec
type instruction  on Deanes evidence.

[24]

That
    said, I am not persuaded that this courts decision in
Oliver
goes as
    far as the appellant contends. In
Oliver
, such a cautionary
    instruction was given at trial, and the appeal was brought by the accused, Mr. Morrison,
    whose testimony was the object of the instruction. The trial judge instructed
    the jury as follows:

I would add this caution. Mr. Morrison has given testimony that
    tends to show that only Mr. Oliver was involved in any assault on Mr. Pace. You
    should consider that testimony with particular care because he may have been
    more concerned about protecting himself than about telling you the truth. Bear
    that in mind when you decide how much or little you can believe of or rely on
    what Mr. Morrison told you about Mr. Oliver's involvement in deciding this
    case.

[25]

Mr.
    Morrisons appeal was unsuccessful, as this court concluded, at para. 57, that
    [t]he impugned instruction achieved the appropriate balance. The trial judge
    told the jury that his caution should be borne in mind when considering
    Morrisons evidence as it applied to Olivers involvement in the homicide. Doherty
    J.A., writing for the court, added the observation, at para. 58, that since
    the caution is justified exclusively as a protection of the co-accuseds
    fair trial rights, trial judges should canvass with counsel for the co-accused
    the need for any caution before instructing the jury. If counsel take the
    position that no caution is warranted, none should be given. Doherty J.A.
    made the additional point, at para. 60, that:

Where a trial judge determines that the fair trial rights of
    a co-accused require a "caution"
with respect to the testimony of
    the other accused, the trial judge should expressly tell the jury that the
    caution applies only to the case against the co-accused and has no application
    when considering the case against the accused who has testified. [Emphasis
    added.]

[26]

As
    I read the decision, Doherty J.A.s suggestion of what a trial judge should
    expressly tell the jury is predicated on the trial judge first determining that
    the fair trial rights of a co-accused require such a caution. This is clear
    because he earlier stated, The need to balance the fair trial rights of co-accused
    is a case-specific exercise.
Oliver
does not mandate or even encourage
    such a caution be routinely given.
Oliver
makes clear that a trial
    judge has the discretion to give such a caution where he or she considers the
    fair trial rights of a co-accused require it.

[27]

The
    case-specific exercise requires the trial judge, who has the best appreciation
    of all the circumstances, to determine whether the giving or refusing of such a
    caution achieves the soundest balance of the competing interests of the two
    co-accused.

[28]

Here,
    the trial judge believed that she could not instruct the jury to consider the
    testimony of an accused person with caution. Counsel for the appellant did not
    provide her with the
Oliver
decision, even though he was given the
    opportunity overnight to find some authority on the point. Though the trial
    judge proceeded on a mistaken view of the law, the trial was not rendered
    unfair. I say that for several reasons.

[29]

I
    think it likely the trial judge, had she realized she had the necessary
    discretion, would not have considered the caution necessary to protect the fair
    trial rights of the appellant. The transcript indicates she was concerned about
    the fair trial rights of Deane. Counsel for Deane had opposed the appellants
    trial counsels request for a warning asserting it had no validity. And, the
    appellants trial counsel argued vigorously in his closing address that Deane
    should not be believed because he was lying to save himself. He emphasized this
    point over and over again, and closed by exhorting the jury not to believe Deane
    who knew he was facing 12 to 14 years when he lied to the police. Same thing
    when hes lying to you.

[30]

The
    trial judge did specifically review for the jury inconsistencies between what Deane
    said at trial and what he had said in a statement he had given the police at
    the time of his arrest. She prefaced this review by telling the jury, The fact
    that Mr. Deane has previously said something different from what he testified
    here is one of many factors for you to consider when you decide how much or
    little you will believe or rely upon the evidence of Mr. Deane in deciding this
    case. The obvious interest of Deane in self-exculpation would not have been
    lost on the jury.

[31]

In
    my view, at the end of the day, when the jury retired to consider the case, it was
    well equipped to properly assess Deanes evidence as it pertained to the
    appellant. It would have been manifestly clear to the jury that Deane had a
    motivation to lie.

[32]

Consequently,
    I would not give effect to this ground of appeal.

(4)

No remedial instruction on the appellants right not to testify

[33]

In
    this case, trial counsel for Deane told the jury pointedly that the appellant:

had every right to testify and swear under oath that the voice
    of Jaswinder Singh on the recordings was not his. All he had to do was walk
    across the floor and swear on the holy book of his choice or affirm. He chose
    not to make that walk to the witness box.

[34]

The
    appellant argues that the trial judge erred in failing to give a specific
    remedial instruction responding to Deanes counsels remarks, as discussed in
    the Supreme Courts decision in
R. v. Prokofiew
,
2012 SCC 49, [2012] 2 S.C.R. 639
.
    Instead, the appellant submits the trial judge compounded the prejudice by
    summarizing Deanes position to the jury as follows:

The defence submits that there is no doubt that Harry Deol
    assumed the name of Jaswinder Singh. Mr. Deol had every opportunity to step
    into the witness box and say that Jaswinder Singhs voice was not his voice. He
    did not do so.

[35]

Counsel
    for Deane had vetted his proposed remarks with the trial judge beforehand, and
    the appellants trial counsel agreed he could make them. However, this vetting
    took place on October 5, 2012 before the Supreme Court released its judgement
    in
Prokofiew
on October 12, 2012. The trial judge instructed the jury
    on October 11, 2012.

[36]

Prokofiew
was a fraud case with two co-accused. Prokofiew did not testify but his co-accused
    did and incriminated him. In his closing address, the co-accuseds counsel implicitly
    invited the jury to treat Prokofiews silence at trial as evidence of guilt by
    saying Did [Mr. Prokofiew] have something to hide or did he simply have no
    response that could help him since there is no point in trying to contradict
    the truth? Moldaver J., writing for the majority of the Supreme Court,
    observed, at paras. 5-6, that the co-accuseds counsel could have relied on the
    fact that his client had testified to argue that he was innocent and had
    nothing to hide and that his testimony stood uncontradicted. However, the
    co-accuseds counsel could not invite the jury to use Mr. Prokofiews silence
    at trial as evidence, much less evidence of guilt.

[37]

The
    Supreme Court dismissed Prokofiews appeal, ruling that although an explicit
    remedial instruction from the trial judge would have been preferable, his jury
    charge, when considered as a whole, was adequate.

[38]

In
    this case, Deanes counsels remarks to the jury about the appellants failure
    to testify were more pointed and emphatic than the remark in
Prokofiew
.
    On the other hand, the trial judge in this case gave the jury much more extensive
    and explicit instructions about the right to silence and the presumption of
    innocence than did the court in
Prokofiew
. The trial judge told the
    jury the right to remain silent is fundamental, as is the right to choose when
    and how to exercise it. She made clear that:

The right to silence applies to all accused, including the
    three accused who did not testify. It is very important that you remember what
    I said [earlier] about the presumption of innocence and the burden of proof. As
    I said there and I want you to keep this foremost in your minds, accused
    persons do not have to testify or prove anything in a criminal trial. It would
    be wrong for you to consider this fact in your deliberations on the guilt or
    innocence [of the accused].

[39]

Moreover
    in this case, counsel for the three accused who did not testify made strong
    submissions about the right to silence.

[40]

Considering
    the jury charge as a whole and in the context of each counsels closing address,
    I reach the same conclusion as did the court in
Prokofiew
. Although an
    explicit remedial instruction from the trial judge responding to Deanes
    counsels remarks would have been preferable, the instructions that were given
    in the instant case, when considered as a whole, were adequate. The jury would
    have understood the appellant was presumed innocent, had the right not to
    testify, and the Crown bore the burden of proving his guilt beyond a reasonable
    doubt on the evidence called at trial.

[41]

I
    do not give effect to this ground of appeal.

(5)

Deanes counsels closing address and the appellants right to a fair
    trial

[42]

The
    appellant submits that his right to a fair trial was prejudiced by the highly
    emotional and pejorative commentary of the counsel for Deane and the failure of
    the trial judge to issue limiting and corrective instructions.

[43]

Counsel
    for Deane described the appellant as exceedingly devious, absolutely
    ruthless and slithering. The appellant also submits that counsel for Deane
    engaged in a personal attack on the appellants trial counsel, saying:

And not only is he a  ruthless person who will do such a thing
    who will  who will do such a thing, the ruse doesnt stop there. Hes so
    ruthless that his lawyer will then attack the innocent fall guy when the
    innocent fall guy takes the stand. In my respectful submission, he is so
    ruthless that he will do virtually anything to transfer his own blame from
    himself to Mr. Deane.

And, if, in fact, [trial counsel for the appellant] takes the
    position with you that its not his client an empty barrel makes the most
    noise.

[44]

The
    appellant acknowledges that this was a case of a cutthroat defence for the co-accused
    and, as such, finger-pointing among the four accused was expected and
    acceptable. The appellant also recognized that counsel for Deane was expected
    to enthusiastically and forcefully defend his client, including in his closing
    address to the jury. However the appellant submits that the inflammatory
    comments from Deanes counsel crossed into personal attacks that impugned the
    Appellants character and appeared designed to turn the jury against the
    Appellant.

[45]

The
    appellant submits the trial judge should have given a corrective instruction
    for the inflammatory and inappropriate comments of counsel for Deane.

[46]

I
    am not persuaded by this submission. The appellants trial counsel made no
    objection and did not request the trial judge to caution the jury. He, too,
    presented an animated and rhetorical closing address. The trial judge was best
    situated to assess the dynamics of the trial and to determine whether any
    specific instruction was necessary to ensure that no accused was prejudiced by
    the rhetoric of counsel.

(6)

Conclusion on conviction appeal

[47]

I
    would dismiss the appeal from conviction.

C.

Sentence Appeal

[48]

The
    appellant appeals his sentence of 16 years, arguing it was harsh and excessive
    as he was a first time offender. He recognizes that the leading case of
R.
    v. Sidhu
, 2009 ONCA 81, 94 O.R. (3d) 609, at para. 14, sets out that,
    absent exceptional or extenuating circumstances, first offender couriers who
    import large amounts of high grade heroin should expect to receive a sentence
    in the range of 12 to 17 years. In that case, Sidhu had pled guilty and his
    ultimate sentence was 14 years and 9 months. It cannot be said that the
    appellants sentence was outside the range and manifestly unfit.

[49]

As
    a consequence, I would dismiss the sentence appeal.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A."

"I agree. J.C. MacPherson J.A."

"I agree. Paul Rouleau J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dow, 2017 ONCA 233

DATE: 20170321

DOCKET: C62782

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Dow

Appellant

Zachary Kerbel and Saman Wickramasinghe, for the
    appellant

Andreea Baiasu, for the respondent

Heard:  March 20, 2017

On appeal from the conviction entered on April 11, 2016
    by Justice Donohue of the Superior Court of Justice and the sentence imposed on
    September 19, 2016.

APPEAL BOOK ENDORSEMENT

[1]

In reviewing a sentence, the court is concerned with fitness and not the
    accuracy of the range of sentence identified by the trial judge.  The trial
    judges description of the range as three to five years as opposed to the two
    to four years suggested by counsel does not constitute an error in principle.
    Ranges are not airtight compartments.  In fact, we think the range could be
    described as two to five years.

[2]

This was a very serious offence which had very significant impact on the
    victim.  A significant penitentiary term was required despite the appellants
    youth.  We cannot say that 33 months imposed was manifestly unfit.  We will not
    interfere.

[3]

The trial judge imposed a lifetime ban under s. 109(2).  He gave no
    reasons and no submissions were made on the issue.  Counsel agree that we
    should consider the issue
de novo
 given the absence of reasons.

[4]

In light of the appellants youth and the absence of any suggestion that
    he as ever misused firearms in the past (including in connection with this
    offence), we would impose a ten-year ban.

[5]

We have considered the fresh evidence.  It does not affect our
    disposition.

[6]

The sentence is varied accordingly.