COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Forrester, 2019 ONCA 255

DATE: 20190403

DOCKET: C63047

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Forrester

Appellant

Stacey Alexander Taraniuk, for the appellant

Brian G. Puddington, for the respondent

Heard: March 4, 2019

On appeal from the conviction entered by Justice Gregory
    M. Mulligan of the Superior Court of Justice on September 29, 2016, with
    reasons reported at 2016 ONSC 8209.

By the Court:

[1]

The
    appellant was convicted on three counts of trafficking in fentanyl, contrary to
    s. 5(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19,
    and three counts of knowingly using a forged document, contrary to s. 368(1)(a)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He appeals his
    convictions, asserting principally that the trial judge failed to assist him in
    his defence and misapprehended aspects of the evidence. For the reasons that
    follow, we allow the appeal from the conviction for trafficking on October 30,
    2013 and dismiss the remainder of the appeal. In oral argument, the appellant placed
    greater weight on some of the submissions made in his factum, rather than
    others. We will only address the principal submissions.

Background

[2]

The
    charges related to the appellants alleged participation in a scheme to obtain
    and use forged prescriptions for fentanyl patches. The prescriptions were
    filled at several pharmacies in Barrie, Ontario. One such prescription was
    issued in the name of the appellant, Sean Forrester.

[3]

The architects
    of the scheme were Grenville Sinclair, who was a friend of the appellant, and
    Raymond Godreau. They were assisted by Julie Baks, a medical assistant in a
    doctors office in Barrie, with whom Sinclair had a romantic relationship. The
    doctor himself was not involved in the scheme.

[4]

The scheme
    involved Godreau recruiting patients, who provided him with their health card
    numbers and other personal information, such as birth dates, addresses, and
    phone numbers. He typically passed this information to Sinclair who, in turn,
    gave it to Baks. Sometimes Godreau passed the information directly to Baks. Baks
    created a patient profile on the doctors computer system, issued an
    electronic prescription for fentanyl in the name of the phoney patient, and
    forged the doctors initials on the prescription. Having done so, she erased
    the patient profile. Baks then gave the forged electronic prescription to
    Sinclair.

[5]

Sinclair,
    in turn, gave the forged prescription to Godreau, who gave the prescription to
    the patient named on it, who then had it filled at a pharmacy and delivered
    the drugs to Godreau in exchange for cash. Godreau made the patches available
    for illicit sale on the street. Each prescription was for the maximum dosage a
    doctor could prescribe  three batches of 15 patches over a three-month period.

[6]

Approximately
    19 fraudulent prescriptions were issued under this scheme. Baks, Sinclair, and
    Godreau were eventually arrested, tried, and convicted for their involvement. Sinclair
    was sentenced to a nine-year penitentiary term.

[7]

Baks
    was fired by the doctor for stealing petty cash from the office, an allegation unrelated
    to the false prescription scheme. On her last day of work on August 30, 2013,
    she issued a prescription in the name of Sinclairs friend, the appellant Sean
    Forrester.

[8]

The
    prescription was filled at a Shoppers Drug Mart in Barrie on August 30, September
    30, and October 30, 2013.

[9]

The
    key issue at trial was identity  namely, whether the appellant himself had
    attended at the pharmacy to have the prescription filled, or whether someone
    falsely presented himself as Sean Forrester in order to do so. Sinclair, who
    by the time of trial had pleaded guilty to his involvement in the scheme,
    testified that he had recruited the appellant to participate in the scheme,
    obtained his health card information, gave it to Baks, obtained the prescription
    and drove the appellant to the pharmacy on August 30, 2013 to have the first
    instalment of the prescription filled. Baks testified that she had prepared the
    prescription in the appellants name at Sinclairs request. The pharmacist and
    his assistant testified as to their general protocols for filling prescriptions
    and identifying patients. Neither had any specific recollection of dealing with
    the appellant, but their records indicated that an individual representing
    himself to be Sean Forrester attended at the pharmacy with the prescription.

[10]

Sinclair gave two
    statements to the police. He admitted to lying in the first, but claimed that
    the second was truthful. Sinclair testified at trial that on August 30, 2013, he
    asked the appellant if the appellant would like to participate in the scheme,
    and the appellant said yes. Sinclair obtained the appellants health card
    information and personal information directly from him. They drove that same
    day to the doctors office, Sinclair got the prescription from Baks, and they
    drove to the pharmacy. The appellant had the prescription filled, paying for it
    with cash provided by Sinclair, and then Sinclair paid the appellant approximately
    $500 to $700 in cash in exchange for the drugs. Sinclair testified that he did
    not recall paying the appellant when the prescription was filled a second time
    on September 30, 2013. He also did not recall receiving the third batch on
    October 30, 2013.

[11]

The appellant
    testified in his defence. He maintained that he did not participate in the
    scheme, and claimed that Sinclair must have used his health card or health card
    information. He could not recall where he was on the various dates the
    prescriptions were filled. He claimed that his health card had been lost, or
    stolen, possibly by Sinclair.

Reasons of the trial judge

[12]

The trial judge identified
    the central issue as whether there was reasonable doubt that the appellant went
    to the pharmacy on August 30, September 30, and October 30, 2013 to have the
    prescription filled. He instructed himself on the principles in
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742, in applying the presumption of innocence and
    the burden of proof and those in
Vetrovec v. The Queen
, [1982] 1
    S.C.R. 811, in relation to the assessment of Sinclairs evidence. He accepted
    Sinclairs evidence as truthful and supported by his long friendship with the
    appellant. Sinclairs evidence was also supported by the manner in which the
    scheme was carried out, and by the procedures followed by the pharmacy to confirm
    patient identity.

[13]

The trial judge
    rejected the appellants evidence, finding that he had a motive of financial
    gain, given his economic circumstances, and an opportunity in light of the
    evidence that he was off work on each of the three days. Despite his claim that
    he had lost his health card, there was no notation on the Ministry of Health
    and Long-Term Cares records that his card had been reported lost or stolen and
    he never replaced the card. The trial judge accepted Sinclairs evidence and
    found that the evidence as a whole left him with no reasonable doubt. He
    convicted the appellant on all counts.

Analysis

(a)

Failure to assist self-represented accused

[14]

The appellant claims
    that the trial judge failed to ensure that he had an opportunity to bring forward
    his defence and claims that the trial judge either misinformed him or failed to
    inform him about important aspects of his defence.

[15]

A trial judge has a
    duty to assist a self-represented accused and to guide him or her throughout
    the trial so that his or her defence is brought out with its full force and
    effect:
R. v. Richards
, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para.
    110;
R. v. Chemama
, 2016 ONCA 579, 351 O.A.C. 381, at para. 13;
R.
    v. Tran
(2001), 55 O.R. (3d) 161 (C.A.), at pp. 170-72; and
R. v.
    McGibbon
(1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347. The scope of
    the duty depends on the particular circumstances of the case and is
    circumscribed by what is reasonable:
Richards
, at para. 111;
Chemama
,
    at para. 14; and
R. v. Taubler
(1987), 20 O.A.C. 64 (C.A.), at para.
    30.

[16]

A trial judge, of
    course, has other duties, one of which is to ensure that the trial is
    effective, efficient and fair to both sides:
R. v. John
, 2017 ONCA 622,
    350 C.C.C. (3d) 397, at para. 47; and
R. v. Snow
(2004), 73 O.R. (3d)
    40 (C.A.), at para. 24. This includes ensuring that the trial does not become
    mired in irrelevant evidence and that the rules of evidence are applied fairly
    to both parties.

[17]

Failure to assist a self-represented
    accused is not an independent ground of appeal, but raises the possibility of
    an unfair trial or miscarriage of justice that may attract appellate
    intervention under s. 686(1)(a)(iii) of the
Criminal Code
: see
R.
    v. Dixon
, 2018 BCCA 181, at para. 44;
R. v. West
, 2010 NSCA 16, 288
    N.S.R. (2d) 293, at para. 72; and
R. v. Assoun
, 2006 NSCA 47, 244
    N.S.R. (2d) 96, at para. 264, leave to appeal to S.C.C. refused, [2006]
    S.C.C.A. No. 233. Not every breach of a trial judges obligation to a self-represented
    accused will render a trial unfair or result in a miscarriage of justice. The
    Court of Appeal of Manitoba noted in
R. v. Olenick
, 2010 MBCA 107, 262
    Man. R. (2d) 15, at para. 8, that it is the
cumulative
    effect
of any errors that the court needs to consider:

The determination of whether the trial judges assistance was
    inadequate and compromised the accuseds ability to bring out his defence is
    arrived at by considering a number of factors. To begin with, the court takes
    into account the totality of the circumstances, including the sophistication of
    the accused, the seriousness of the offence and the nature of the defence. The
    entire trial record is reviewed, including, in this case, the many pre-trial
    conferences that occurred.
It is the cumulative effect of
    the errors that is looked at in order to determine whether the self-represented
    accuseds ability to properly defend his case resulted in a miscarriage of
    justice.
[Emphasis added.]

[18]

The court must
    determine whether at the end of the day, the accused had a fair trial or
    whether, on the contrary, a miscarriage of justice has occurred. In this case,
    having reviewed the trial record and the appellants arguments, we are
    satisfied that the trial was fair.

[19]

The appellants arguments
    must be considered in the context of the trial as a whole. The record discloses
    that the appellant is intelligent and articulate and had a good understanding
    of trial procedure and of the issues that had to be addressed. There were three
    days devoted to preliminary matters, six days of evidence and one day of
    closing submissions. At the outset of the trial, six days before the appellant was
    arraigned, the trial judge provided him with a detailed 22-page memorandum concerning
    trial procedures, important principles of criminal law, the essential elements
    of the offences with which he was charged, his right to examine witnesses and
    to call evidence, and certain rules of evidence, among other things. The trial
    judge read the memorandum into the record. The memorandum noted that if the
    appellant had questions during the course of the trial, he could raise them at
    any time. Significantly, in light of the arguments made by the appellant in
    this court, the memorandum highlighted in two places the need to challenge the
    evidence of a Crown witness whose evidence the appellant intended to contradict
     i.e., the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L. (Eng.)).

[20]

The record shows that
    the trial judges assistance continued throughout the trial, including giving
    the appellant appropriate opportunities to prepare for the examination of witnesses
    and for his own evidence. The record indicates that the appellant was actively
    involved in his trial, cross-examining and examining witnesses, raising
    evidentiary issues, and making focused and informed submissions in the course
    of the trial and in his closing argument.

[21]

Finally, the record
    demonstrates that the appellant was aware that the key issues at trial were the
    veracity of Sinclairs claim that the appellant participated in the offences,
    and whether Sinclair or some person other than the appellant had the
    prescription filled at the pharmacy. Central to the resolution of these issues
    was the appellants whereabouts on the days of the offences and how Sinclair
    obtained the appellants health card information.

[22]

In this context, the
    appellant makes three principal arguments: (i) the trial judge refused to
    permit him to refresh his memory concerning his whereabouts on the dates
    referred to in the indictment; (ii) the trial judge misinformed him about his
    ability to adduce alibi evidence; and (iii) the trial judge invoked the rule
    in
Browne v. Dunn
, and drew an adverse inference from the appellants
    failure to confront Sinclair, a Crown witness, with contradictory evidence
    during cross-examination.

(i)

Refreshing memory

[23]

The appellant claims
    that the trial judge failed to correct his misapprehension that he was not
    entitled to refer to his text messages to determine his whereabouts on August
    30, September 30 and October 30, 2013 when he was alleged to have had the
    fentanyl prescription filled at the pharmacy.

[24]

We do not accept this
    submission. Based on the pre-trial conference, the information supplied to him
    by the trial judge, and the manner in which the evidence was developed at trial,
    the appellant understood that his opportunity to commit the offences was an
    important evidentiary issue. The Crown had led evidence to show that he was not
    at work on the dates in question and had the opportunity to commit the
    offences. He knew that he was entitled to call evidence to establish that he was
    in some other place at the time of the alleged offences. The appellant was not
    deprived of an opportunity to present evidence of his whereabouts at the time
    of the offences. He has not established that his defence would have been
    assisted by reference to his text messages, which he could obviously have
    reviewed in preparing to give his evidence.

(ii)

Alibi

[25]

The appellant says
    that the trial judges explanation of alibi evidence was misleading and may
    have caused him to refrain from crucial lines of cross-examination, because he
    mistakenly believed that he was required to give prior notice of an alibi to
    the Crown. Specifically, the trial judge stated an alibi is basically
    indicating that you could not do it because you  were not there, or someone
    else did it or something like that. It is showing that you were incapable of
    committing the offence because of whatever circumstances.

[26]

In addition to this
    instruction, the trial judge gave the appellant a standard form of jury
    instruction on the meaning of an alibi.

[27]

We do not accept the
    appellants submission. There is no indication that he was unaware of his
    entitlement to show that he could not have committed the offences because he
    was in some other location at the material times. Nor is there any indication
    that he somehow curtailed his cross-examination of Sinclair. He had, in fact,
    given notice of a potential alibi from a woman who he claimed was with him at
    the time of the alleged offence on August 30, 2013. The police interviewed her
    and took her statement  a statement that did not particularly assist the
    appellant. The appellant was aware that he could call the woman as a witness
    and there was some discussion that he might do so, but it never happened.

[28]

The appellant
    conducted the trial and made submissions to demonstrate that Sinclair was
    responsible for the offences and he was not. The trial judges description of
    the meaning of alibi did not affect the appellants right to a fair trial.

(iii)

The rule in
Browne v. Dunn

[29]

The appellant submits
    that the trial judge breached his obligation to assist him and erred in law in
    applying the rule in
Browne v. Dunn
by drawing an adverse inference as
    a result of his failure to cross-examine Sinclair concerning the discovery of
    the missing wallet.

[30]

The issue arose in the
    following manner. The appellant testified in-chief that in May 2013 he lost his
    wallet while out with Sinclair and others. His wallet had contained his
    non-photo bearing red and white health card, and other identification. He
    reported the wallet missing to police in Barrie and Elora. He testified that
    when replacing his drivers licence, he told a clerk at Service Ontario that he
    also lost his health card, but did not take the necessary steps to replace his
    health card. He did not report the missing health card to the Ministry of
    Health and Long-Term Care, and it was not flagged as lost or stolen in the
    Ministrys records. The Ministrys records adduced at trial indicated that the
    card had not been used during the period in question.

[31]

After he had completed
    his evidence, the trial judge ordered a recess to give the appellant an
    opportunity to decide whether there was anything else he wished to say. After
    the break, the appellant testified, for the first time, that at some time
    Sinclair had telephoned him to say that he (Sinclair) had found the missing
    wallet, but failed to return it to the appellant. This late-breaking evidence
    was clearly designed to show that the appellant could not have committed the
    offences and that Sinclair did.

[32]

The trial judge
    immediately reminded the appellant of his instructions about the rule in
Browne
    v. Dunn
and pointed out that he had not asked Sinclair about the missing
    wallet. The appellant acknowledged that he had not, but pointed out, correctly,
    that the Crown had put the question to Sinclair. The discussion then turned to
    the potential confirmatory evidence of another witness, whom the appellant
    ultimately did not call.

[33]

The appellant says
    that the trial judge should have informed him that although he was entitled to
    draw an adverse inference from the failure to cross-examine Sinclair on the
    point, it was discretionary and there were other alternatives, including
    permitting Sinclair to be re-called so the question could be put to him.

[34]

The rule in
Browne
    v. Dunn
is a rule of trial fairness. It requires a party cross-examining a
    witness to give notice to a witness whose credibility the cross-examiner
    intends to later impeach:
R. v. Dexter
, 2013 ONCA 744, 313 O.A.C. 226,
    at paras. 4, 17-22. The effect to be given to a breach of the rule is in the
    discretion of the trial judge, having regard to all the circumstances. It may
    include permitting counsel to recall the witness whose evidence has been
    impeached without notice. It may also include taking into account the failure to
    cross-examine when assessing the credibility of the party who failed to
    cross-examine:
R. v. Paris
(2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at
    para. 22.

[35]

In his reasons for
    judgment, the trial judge made preliminary references to several legal
    principles, noting that [t]he rule in
Browne v. Dunn
is instructive
    when the cross-examination or lack of cross-examination of a Crown witness, in
    this case, Mr. Sinclair, is considered in the light of subsequent defence
    evidence from Mr. Forrester. He referred to the rule again in his reasons,
    noting that the appellant did not ask Sinclair any questions about whether he
    impersonated the appellant or had possession of the appellants wallet. Still
    later, the trial judge noted that in his own evidence, the appellant claimed
    that Sinclair had told him that he (Sinclair) had found the appellants wallet,
    but that the appellant had never put this evidence to Sinclair during
    cross-examination. The trial judge took into account the appellants failure to
    cross-examine Sinclair as one of a number of reasons for his acceptance of
    Sinclairs testimony and his rejection of the appellants, and why he was not
    left in reasonable doubt by the balance of the evidence.

[36]

We find no error in
    the exercise of the trial judges discretion in drawing an adverse inference
    from the appellants failure to cross-examine Sinclair on the issue of the
    allegedly missing wallet. The appellants defence rested on his theory that
    Sinclair had had the prescription filled and had used his health card without
    his permission. The trial judge clearly brought home to the appellant the
    importance of challenging a witness on evidence he proposed to impeach. Most of
    the appellants cross-examination of Sinclair was peripheral to the theory of
    the defence. He was given a full and fair opportunity to put that theory to
    Sinclair but never did so. Instead, he attempted to impeach Sinclairs
    credibility in other ways. The trial judge was not required to instruct the
    appellant on how to conduct his cross-examination of Sinclair. We dismiss this
    ground of appeal.

(b)

Misapprehension of evidence

[37]

The appellant claims
    that the trial judges misapprehension of certain features of the evidence
    undermined his conclusions and permits appellate intervention. We will address
    only the principal alleged misapprehensions identified in oral argument.

(i)

The health card

[38]

The appellant asserts
    that the trial judge failed to consider the appellants compelling narrative
    of the lost health card, which we outlined above, as raising a reasonable
    doubt about his guilt. In our view, the trial judge did not misapprehend the
    appellants evidence; he simply did not accept it. He referred at length to the
    appellants evidence concerning the loss of his wallet and the health card, as
    well as to the evidence that there was no notation on the Ministry of Health
    and Long-Term Cares records that the card had been reported lost or stolen.

[39]

As we have noted, the
    appellant never cross-examined Sinclair with respect to his assertion that
    Sinclair had possession of his health card. Indeed, he did not cross-examine Sinclair
    on most of his evidence concerning the appellants involvement in the offences.
    This, together with the appellants late-breaking story about Sinclair
    finding the wallet, explains why the trial judge did not find the appellants
    narrative compelling, and why he concluded that it did not raise a reasonable
    doubt.

(ii)

The
modus operandi
of the scheme

[40]

The appellant says
    that the trial judge erred in finding that the execution of the scheme in the
    appellants case was consistent with the execution of the scheme in other cases,
    and supported Sinclairs evidence that the appellant committed the offences. He
    argues that his case was different from the norm because, in all other cases,
    it was
Godreau
who recruited the phoney
    patients, supplied them with the prescription and received the drugs from
    them. This was the only case in which Sinclair recruited the patient and
    received the drugs.

[41]

The trial judge was
    alive to the fact that this was the only case in which Sinclair was the
    recruiter and in which he provided Baks with information concerning a friend.
    The trial judge mentioned this fact at several points in his reasons. What was
    consistent with the
modus operandi
of the overall scheme was that in
    every case, it involved the health card information of a
real
    person
, a prescription made out to that person using his or her personal
    information, and that same
real person
attending
    at the pharmacy and producing the necessary personal information to obtain the
    drugs. The participation of the real person was necessary in light of the more
    stringent procedures used at the pharmacy for the acquisition of monitored
    narcotic drugs like fentanyl.

[42]

The trial judge did
    not misapprehend the evidence. He understood that while this case was not an
    exact template of the procedure used in other cases, the differences were not
    material. What was important was that the scheme relied on the use of the
    health information of real individuals who could use their own photo identification
    cards (IDs) to obtain the forged prescriptions and have them filled.

[43]

For these reasons, we
    reject this ground of appeal.

(iii)

Procedures at the pharmacy

[44]

The appellant says
    that in finding that he, rather than an imposter, attended at the pharmacy to
    have the prescription filled, the trial judge misunderstood the procedures used
    at the pharmacy for the identification of customers.

[45]

Sinclairs evidence
    was that on the first occasion, August 30, 2013, he himself drove the appellant
    to the pharmacy and the appellant personally acquired the drugs. The appellants
    evidence was that he did not do so, and suggested that either Sinclair or
    someone else must have had the prescription filled.

[46]

The trial judge
    expressly accepted Sinclairs evidence on this issue. He noted, among other
    things, that Sinclair was six feet two inches tall and 33 years old. The
    appellant was five inches shorter, ten years older and had a different build.
    The inference was that Sinclairs own photo ID could not have been used to have
    the prescription filled in the appellants name.

[47]

The pharmacist and his
    assistant could not speak to what actually occurred on August 30, 2013 or on
    the other two dates, but testified that their normal practice was to require
    photo ID. If the person having the prescription filled could not produce photo ID,
    they would normally call the doctors office to confirm the prescription. In
    fact, Sinclair and Baks testified that a forged prescription was always filled
    immediately so that Baks was on hand in the doctors office in case the
    pharmacist called to query it. In this case, there was no notation in the
    pharmacy records to indicate that photo ID had not been produced or that the
    doctors office had been contacted.

[48]

The trial judge was
    entitled to infer from this evidence that photo ID had been used to have the
    prescription filled and that, consistent with the
modus operandi
of
    the scheme, the real person named on the prescription was able to have the
    prescription filled using his or her own photo ID. He was also entitled to find
    that, in this case, the real person was the appellant. The trial judge did not
    misapprehend the evidence.

Disposition

[49]

We accept the
    appellants submission that there was no evidence to support the appellants
    conviction for trafficking on October 30, 2013 given Sinclairs evidence that he
    could not recall having received the third batch of fentanyl patches from the
    appellant. We accordingly allow the appeal with respect to the conviction on
    that count only, quash that conviction, and enter an acquittal in its stead. We
    dismiss the appeal on the other counts. The outcome of this appeal does not
    alter the appellants sentence, including the three years incarceration,
    concurrent on all counts.

Released: GS  APR 03 2019

G.R. Strathy C.J.O.

Paul Rouleau J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2019 ONCA 282

DATE: 20190409

DOCKET: C64306

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Foster

Appellant

Paul Calarco, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: April 3, 2019

On appeal from the conviction entered by Justice Mary E.
    Misener of the Ontario Court of Justice, dated March 28, 2017 and the sentence
    imposed on September 25, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated assault and
    possession of various drugs. He received a sentence of two years, less a day on
    the aggravated assault conviction and short sentences on the drug charges. The
    sentences on the drug charges were concurrent to the sentence on the aggravated
    assault charge. In total, the appellant received a sentence of two years, less
    a day, followed by two years probation.

[2]

The appellant appeals conviction and sentence. The
    conviction appeal is limited to the conviction on the aggravated assault
    charge.

[3]

The aggravated assault charge arose out of an altercation between the
    appellant and John Lavery, during which the appellant slashed Mr. Lavery with
    an X-Acto knife, causing serious injury. The appellant, who testified, advanced
    a self-defence claim.

[4]

In her reasons, the trial judge summarized her findings and conclusions
    as follows:

I accept his testimony that there was a
    confrontation between Mr. Foster and Mr. Lavery that night. Mr. Foster
    approached Mr. Lavery in an attempt to be amicable, offering his hand to shake
    and suggesting that they let bygones be bygones. Mr. Lavery would not accept.
    Within a matter of seconds the two men were involved in a heated verbal
    confrontation. One of them pushed the other in what would have been a
    consensual fight. Mr. Foster became enraged, reached into his pocket, pulled
    out the blade and slashed Mr. Lavery in an act of aggression.

The Conviction
    Appeal

Ground #1  The Crowns cross-examination of
    the appellant

[5]

We agree with counsel for the appellant that the
    Crown improperly cross-examined the appellant on the contents of a statement
    allegedly made to the police by the appellants girlfriend. She was present
    during, and involved to some extent in the altercation that led to the charges.

[6]

We also agree with the Crowns submission that
    the improper questioning did not result in any prejudice to the appellants
    defence. We come to that conclusion for several reasons.

[7]

First, there was no objection to any of the
    questions asked by the Crown, presumably because counsel for the appellant had
    indicated before his client testified that he intended to call the girlfriend
    as a defence witness. Presumably, everyone involved, including the trial judge,
    assumed when the Crown was cross-examining the appellant that the girlfriend
    would be testifying and giving
viva voce
evidence about her involvement
    in the altercation. Had she done so, her evidence would have been admissible
    for and against the appellant. It would have been appropriate for the trial
    judge to compare her trial evidence with that of the appellant in arriving at
    her findings of fact.

[8]

Second, this was a judge-alone trial. The risks
    associated with this kind of improper questioning, particularly the risk that
    the content of the questions would be taken as having some evidentiary value,
    is significantly diminished in a judge- alone trial. The trial judges reasons
    contain only one brief reference to the girlfriends statement. In that
    reference, the trial judge did not misuse the statement by taking its contents
    as evidence of the truth, but instead referred to the cross-examination on the
    statements to make the point that the appellants testimony on various matters
    shifted as he was questioned in cross-examination.

[9]

Third, a review of the transcript demonstrates
    that the cross-examination on the girlfriends alleged statement was not particularly
    effective from the Crowns perspective. The appellant handled those questions
    premised on the alleged contents of the statement effectively.

[10]

The appellant also argues that he was improperly
    cross-examined on his character or propensity for violence, especially when
    drinking. We do not accept this submission. The appellant put his character on
    these matters in issue during examination-in-chief. He testified that he
    generally dealt with confrontation by becoming frightened and running away. The
    Crown was entitled to cross-examine on that assertion. We also note that there
    was no objection to this question and this part of the Crowns
    cross-examination appeared to play no role in the trial judges assessment of
    the appellants evidence.

[11]

This is not one of those cases in which the
    questioning of the appellant was so improper that it can be said that the
    integrity of the criminal process was undermined regardless of the impact on
    the particular accused.

[12]

To succeed on this ground of appeal, the
    appellant had to show prejudice flowing from the improper questioning. He has
    failed to do so.

Ground #2  The splitting of the Crowns case

[13]

The Crown did not call the appellants
    girlfriend as part of its case. As indicated above, defence counsel had told
    the trial judge he intended to call the girlfriend as part of the defence case.
    Ultimately, however, he chose not to call her.

[14]

The Crown then called the girlfriend in reply.
    There was no objection taken by counsel for the defence. Part way through the
    examination-in-chief, the defence did object on the basis that the Crown was
    improperly splitting its case.

[15]

After hearing argument, the trial judge agreed
    with defence counsel and ruled that the girlfriend could not testify in reply.
    Defence counsel specifically told the trial judge that the defence was not seeking
    a mistrial and was entirely satisfied that the trial judge would ignore the
    girlfriends evidence. The trial continued. The trial judge made no reference
    to the girlfriends evidence in her reasons for judgment.

[16]

The Crown should not have been allowed to call
    the girlfriend in reply. However, like defence counsel at trial, we are
    confident that the trial judge was capable of and did ignore the girlfriends
    evidence. The reasons for judgment confirm that assessment. This ground of
    appeal must fail.

Ground #3  The self-instruction on the
    defence of self-defence

[17]

The trial judge, at para. 19 of her reasons,
    correctly identified the three elements of self-defence under s. 34 of the
Criminal
    Code
. Ultimately, after a review of the evidence and a
    reasoned assessment of that evidence, the trial judge concluded that the
    appellant became enraged in the course of an altercation with Mr. Lavery and
    slashed him with the X-Acto blade in an act of aggression. Acts of aggression
    are the antithesis of acts taken for a defensive purpose, one of the elements
    of a s. 34 defence.

[18]

The appellant submits that the trial judge
    failed to consider the appellants subjective perceptions at the time he
    slashed Mr. Lavery. With respect, a finding that the appellant had become enraged
    is a finding of the appellants subjective state of mind. That finding belies
    the appellants claim that he acted in fear, or based on a perceived need to
    protect himself or his girlfriend. The trial judge made no error in her
    consideration of the defence of self-defence.

[19]

The conviction appeal is dismissed.

the sentence
    appeal

[20]

The appellant also seeks leave to appeal, and if
    leave is granted, appeals sentence. He argues that his concurrent sentences for
    the drug offences were unwarranted. In our view, this issue is secondary to the
    determination of the overall fitness of the sentence and we would not interfere
    with the sentence on that basis.

[21]

In terms of the aggravated assault count, we
    agree with the trial judges assessment of the seriousness of the offence and
    the injuries suffered by the victim. Denunciation and deterrence are important
    objectives in sentences for aggravated assault. However, these goals could have
    been achieved with a much shorter sentence.

[22]

The assault was not premeditated and was found
    by the trial judge to be, at first, a consensual fight. The appellant is a
    first offender. He has a unique and compellingly sympathetic background. By the
    time he was sentenced, the appellant had taken significant steps to address the
    life challenges that he has faced, including substance abuse and relatedly the
    ongoing psychological impact of his mothers death which happened when he was
    just four years old.

[23]

The appellant has insight into his offending. As
    the trial judge recognized, the appellant has made very important strides in
    his own rehabilitation, and he has a loving and supportive partner and
    extended family and friends who support his efforts at dealing with his
    substance abuse and psychological issues.

[24]

There is no doubt that the appellants conduct
    requires substantial incarceration. However, in the circumstances, we think the
    protection of society is best achieved by a sentence that both reflects the
    seriousness of the crime imposed by imposing a significant jail sentence, but
    also facilitates the appellants continued rehabilitation.

[25]

In our view, the sentence of two years, less a
    day imposed was grossly excessive. We would reduce the sentence to one of 12
    months imprisonment.

[26]

In the circumstances, it is not necessary to
    address the application to admit fresh evidence.

[27]

On consent, we would also vacate the victim
    surcharge imposed in light of the subsequent jurisprudence, holding that the
    relevant provisions are unconstitutional.

[28]

In the result, we reduce the sentence on the
    aggravated assault charge to 12 months imprisonment, and delete the victim
    surcharge.  All other aspects of the appellants sentence remain as imposed.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gadam, 2019 ONCA 345

DATE: 20190429

DOCKET: C62456

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Srinivasan Venkata Gadam

Appellant

Matthew R. Gourlay, for the appellant

Christine Tier and Kevin Rawluk, for the respondent

Heard and released orally: April 25, 2019

On appeal from the conviction entered on May 5, 2016 by Justice
    Brian W. Trafford of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of a single count of sexual assault (
Criminal

Code
, s. 271) involving a number of acts committed over the course
    of five months. He received a sentence of three years imprisonment.

[2]

The appellant challenges his conviction on the basis of a fresh evidence
    application alleging ineffective assistance of trial counsel (not Mr. Gourlay).

[3]

The appellant and the complainant were acquaintances. The appellant
    defended the case by asserting that all sexual contact between the complainant
    and himself was consensual and part of an ongoing extramarital affair. Trial
    counsel confronted the complainant with telephone records purporting to
    establish over 900 telephone calls between them during the relevant time,
    roughly half of which were initiated by the complainant. The complainant denied
    the authenticity of the records put to her.

[4]

The trial judge warned counsel that the records would be inadmissible
    unless authenticated. Trial counsel, however, failed to adduce evidence from
    the service provider. The appellant did not testify and authenticate the records
    himself. The trial judge rightly disregarded the records. He found the evidence
    of the complainant credible and was satisfied of the appellants guilt beyond a
    reasonable doubt.

[5]

In his affidavit filed as part of the fresh evidence, trial counsel
    admitted that he gave no thought to the matter of authentication. In his
    affidavit, the appellant said that he would have testified had he been properly
    advised on the issue.

[6]

Very experienced counsel for the Crown fairly concedes that there must
    be a new trial based on the conduct of trial counsel. We accept this
    concession. We agree that, in failing to address the authentication issue,
    trial counsels performance fell below the standard of reasonable competence.
    His missteps prejudiced the appellant in a manner that might have impacted on
    the verdict.

[7]

We admit the fresh evidence, allow the appeal, set aside the conviction
    and order a new trial.

P. Lauwers J.A.

K. van Rensburg J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gotzamanis, 2019 ONCA 298

DATE: 20190412

DOCKET: C66201

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Gotzamanis

Appellant

Peter Copeland, duty counsel

Steven Gotzamanis, in person

Michael Fawcett, for the Crown

Heard: April 9, 2019

On appeal from the sentence imposed on October 11, 2018
    by Justice Peter Bourque of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant challenges the terms of a probation order prohibiting him
    from contacting his parents. He bases the appeal on the sentencing judges
    change of position from the impression he gave during the J.P.T. He claims this
    prejudiced him because he did not have the opportunity to make submissions.

[2]

We do not accept this argument.

[3]

It was clear during sentencing submissions that probation had not been
    decided and the sentencing judge was considering imposing it.

[4]

There was no procedural unfairness. The appellant has not challenged his
    plea. There is no basis to interfere with the probation order. We note that it
    is open to the parents to consent to contact.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Goulart, 2019 ONCA 308

DATE: 20190416

DOCKET: C63776

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Goulart

Appellant

Andrew Menchynski, for the appellant

Jennifer Conroy and Marina Elias, for the respondent

Heard: April 15, 2019

On appeal from the convictions entered on April 24, 2017 and
    the sentence imposed on October 20, 2017 by Justice John B.  McMahon of the Superior
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his convictions and sentence for possession of
    cocaine for the purposes of trafficking and possession of the proceeds of
    crime.

[2]

On appeal he attacks the issuance of the warrant the execution of which
    resulted in the charges against him.

[3]

The decision of the reviewing judge is deserving of deference. She, like
    us, had the unredacted ITO before her. We note that the sufficiency of the judicial
    summary of the redactions was not attacked.

[4]

In our view the reviewing judge, on the basis of the record before her,
    could reach the conclusion that the issuing justice could issue the warrant.

[5]

The appeal from conviction is dismissed.

[6]

The appellant did not proceed with the sentence appeal indicated in his Notice
    of Appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hadi, 2019 ONCA 322

DATE: 20190423

DOCKET: C63460

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mazin Hadi

Appellant

Matthew Tubie, for the appellant

Roger Pinnock, for the respondent

Heard: April 18, 2019

On appeal from the conviction entered and the sentence
    imposed on January 20, 2017 by Justice Joseph W. Bovard of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was charged with 14 offences and was convicted of four.

[2]

He appeals arguing that the complainant was not a credible witness. The convictions
    on counts 1, 3 and 13 were not based on the complainants testimony alone.

[3]

The trial judge made no finding of guilt on count 5. The conviction on
    count 5 is set aside.

[4]

The appeal is otherwise dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horsford, 2019 ONCA 321

DATE: 20190424

DOCKET: C62648

Feldman, Brown and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Horsford

Appellant

Devon Horsford, in person

Michael Dineen, duty counsel

Marie Comiskey, for the respondent

Heard: April 10, 2019

On appeal from the conviction and sentence imposed on July
    28, 2016 by Justice Peter J.A. Harris of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for
    the purpose of trafficking. The issue before the trial judge was possession.

[2]

Large quantities of drugs and drug paraphernalia
    were seized from a bedroom rented to the appellant. It was referred to as
    bedroom 3. Another bedroom in the same home was rented to a tall skinny guy.

[3]

The landlord testified that he thought there was
    a time when the tall skinny guy went into bedroom 3 but it happened fast.

[4]

In his reasons for conviction the trial judge
    said at page 26:

Based on the
    exclusive possession theory and the inference I draw of knowledge and control
    of the drugs in room three, based on that theory Im satisfied beyond a
    reasonable doubt that [the appellant] was in possession of the drugs in that
    location.

[5]

The appellant submits that the trial judge erred
    in finding exclusive possession in light of the landlords evidence that the
    tall skinny guy went into room 3.

[6]

We do not agree.

[7]

Although the trial judge used the phrase
    exclusive possession he went on to add and the inference I draw of knowledge
    and control. In his analysis at page 14 he set out the elements of possession
    as knowledge and control. The inference of knowledge and control and temporal
    exclusive possession was open to the trial judge on the basis of evidence that:

·

The appellant rented the room.

·

The room was not used as a residence for the
    appellant. He in fact lived a few doors away.

·

There was nothing personal in the room. When the
    police broke down the door the items found were scales, plastic baggies in two
    sizes, large and expensive quantities of drugs including heroin and cocaine.
    Some of it was on top of the bed.

·

The police surveillance officer saw the
    appellant go into the home, come out one minute later and immediately make a
    hand-off. The seizure followed almost immediately.

·

The appellant had a key and kept the door
    locked. Although the landlords son also had a key there is no evidence that he
    was at the home at all around the time of the seizure.

·

There is no evidence that the tall skinny guy
    was around the home at any time near to the seizure.

[8]

The inference drawn by the trial judge was open
    to him.

[9]

The conviction appeal is therefore dismissed.

[10]

The appellant acknowledged that the sentence
    appeal depended upon a successful conviction appeal. The sentence appeal is
    therefore dismissed.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

David
    Brown J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2019 ONCA 323

DATE: 20190424

DOCKET: C64321

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dalton Hudson

Appellant

Breana Vandebeek, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: April 16, 2019

On appeal from the conviction entered on June 17, 2018 by
    Justice Robert Charney of the Superior Court of Justice.

REASONS FOR DECISION

[1]

We are of the view this appeal has no merit.

[2]

We agree with the motion judges analysis and conclusions that the
    police had reasonable and probable grounds to arrest the appellant; that his s.
    10(b) right was not violated; and that the appellants statement en route to
    the cell was voluntary.

[3]

We need not deal with the other issues.

[4]

The appeal is dismissed.

R. G. Juriansz J.A.

David Watt J.A.

A. Harvison Young J.A.