COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ghadban, 2015 ONCA 760

DATE: 20151109

DOCKET: C58474

Sharpe, Hourigan, Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmoud Ghadban

Appellant

Mahmoud Ghadban, in person

Jill Presser, duty counsel

John Neander, for the respondent

Heard: October 7, 2015

On appeal from the conviction imposed on April 3, 2012
    and the sentence imposed on June 26, 2012 by Justice David Paciocco of the Ontario
    Court of Justice.

Sharpe J.A.:

[1]

The appellant was convicted of robbery and conspiracy to commit robbery
    and sentenced to concurrent sentences of two years imprisonment and three
    years probation on each count. At the outset of oral argument, he abandoned
    his conviction appeal, indicating that he wished to accept responsibility for
    the offence and to express his remorse.

[2]

His sentence appeal is based upon fresh evidence indicating that he has
    made significant progress towards rehabilitation since the sentence was
    imposed.

The offence

[3]

The trial judge found that the appellant was a party to a home invasion
    robbery. The appellant knew the intended victim who was an alleged drug dealer.
    The appellant went to the victims apartment in the company of two other men,
    described in these proceedings as the Jamaicans.  The appellant knocked on
    the victims door, identified himself and thereby induced the victim to open
    the door. As soon as he did so, the Jamaicans forced their way into the
    apartment. The appellant left and the Jamaicans ransacked the apartment looking
    for money. The victim was ordered to remain seated while they did so. The
    appellant was arrested waiting next to the car used by the perpetrators. The
    Jamaicans were not apprehended. The trial judge rejected the appellants
    evidence that he did not know that the other two men planned to commit robbery.

The sentence

[4]

The trial judge found that as the victim was robbed in his home and
    subjected to a strongly implied threat of physical harm, a stern approach was
    called for. He noted, however, that no weapons were used and that there was no
    actual violence or injuries inflicted and the perpetrators were not disguised.
    He described the offence as being not one of the more aggravated home invasions
    that has plagued our community.

[5]

The trial judge found that appellants role, while limited, was
    indispensable to gaining entry into the apartment.

[6]

The appellant was 27 years old at the time of sentencing and 25 at the
    time of the offence. He has a prior youth court conviction for robbery (2002),
    another youth court conviction for assault causing bodily harm (2003), an adult
    conviction for assault and failure to comply with a probation order (2006).

[7]

The trial judge noted that there was no expression of remorse and that
    the sentence must be structured to emphasize specific deterrence, that is, to
    tell the appellant that he must accept responsibility for his actions. The
    trial judge observed that the appellant was immature and irresponsible but that
    he had a supportive family and opportunities to change. He found that
    rehabilitation was an important factor. He stated: Mr. Ghadban is at the
    crossroads. The next few years will determine whether he becomes a productive
    citizen and family man or whether he becomes a career criminal.

The fresh evidence

[8]

The appellant was incarcerated at Millhaven Institution for 7 weeks and
    2 days following his conviction. During that time, Millhaven was in transition
    from an assessment to a maximum security facility and the appellant was placed
    in 23-hour confinement.

[9]

The appellant was released on bail pending his trial seven days after
    his arrest and he has been on bail pending appeal since August, 2012. As a
    result, apart from a short period of pretrial custody and the 7 weeks he spent
    in Millhaven following his conviction, he has now been in the community on a
    recognizance for almost five years. The conditions of his bail pending appeal
    imposed a 10 pm to 6 am curfew and required him to reside with his parents.

[10]

With
    the help of his family, he retained counsel to launch an appeal. The Crown
    consented to bail pending appeal on August 16, 2012. No progress was made in
    perfecting the appeal, in part because counsel suffered an injury and in part
    because the appellant was in arrears paying the full retainer. Bail pending
    appeal was extended on April 19, 2013. A second counsel was retained. That
    counsel filed a factum that was plainly inadequate and there were ongoing
    issues regarding full payment of the retainer. Counsel asked to be removed from
    the record. On April 9, 2015, the court ordered that counsel be removed from
    the record if he did not file a revised factum by May 11, 2015. No revised
    factum was filed and on May 13, 2015, it was ordered that this appeal proceed
    as an inmate appeal.

[11]

Since
    the time of sentencing, the appellant has taken significant steps towards
    rehabilitation. He enjoys the strong support of his parents and siblings. He
    has married and has two children, one aged two years and the other nine months.
    He has also assumed parental responsibilities for his wifes older child. He is
    gainfully employed and is the sole source of support for his wife and children.
    His employer describes him as good employee who has a good attendance record
    and great working relationships with his fellow employees. He has volunteered
    for a political campaign and for the United Way. The United Way Donor Relations
    Officer

describes him as an incredible ambassador and as both
    reliable and passionate about people in the Ottawa community.

Issue

[12]

The
    appellant argues that in view of the fresh evidence, the sentence imposed by
    the trial judge is no longer fit and should be reduced or stayed.

Analysis

[13]

It
    is not disputed that the sentence was fit when imposed.  The question is
    whether it should be reduced or stayed in the light of the fresh evidence. The
    Crown does not oppose the admission of the fresh evidence.

[14]

It
    is well-established that if there is fresh evidence to show a change of
    circumstances after a fit sentence was imposed, an appellate court may
    exercise its discretion and act on it pursuant to the obligation to assess the
    fitness of the sentence at the time when the appeal is heard: Ruby,
Sentencing
(4
th
ed.)  at p. 462;
R. v. Johnson
, [2006] O.J. No.
    2182 at para. 11.

[15]

In
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423,at para. 30, the Supreme
    Court of Canada explained the balance that needs to be struck between arriving
    at sentences that are fit and just for offenders in the light of the
    circumstances at the time of the appeal and respecting the need for finality
    and to avoid undermining the sentencing process by undue emphasis on
    after-the-fact-developments:

Fresh evidence addressing
    events that have occurred between the time of sentencing and the time of the
    appeal may raise difficult issues which bring competing values into sharp
    relief. On one hand, we must recognize, as Doherty J.A. put it in
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1, at para. 166, that [a]ppeals
    take time. Lives go on. Things change. These human realities cannot be ignored
    when the Court of Appeal is called upon to impose sentences well after the
    event.  However, we must equally pay attention to the institutional
    limitations of appellate courts and the important value of finality. Routinely
    deciding sentence appeals on the basis of after-the-fact developments could
    both jeopardize the integrity of the criminal process by undermining its
    finality and surpass the appropriate bounds of appellate review:
Lévesque
,
    at para. 20;
R. v. Smith
(2005), 376 A.R. 389 (C.A.), at
    paras. 21-25.

[16]

The
    fresh evidence demonstrates that the appellant has made very significant
    changes in his life in the three years since the sentence was imposed. He has
    undertaken, assumed and fulfilled the responsibilities of a husband and a
    father. He has become a trusted and productive employee. He has been active as
    a community volunteer. He now accepts responsibility for his crime. He has complied
    with his conditions of release and there has been no recurrence of criminal
    behaviour in the five years since this offence was committed.

[17]

While
    the appellant was able to achieve something of a turn-around in his life as a
    result of being on bail pending appeal, and while the delay in getting the
    appeal heard was caused in part by his inability to come up with the funds
    required to retain counsel, there is no suggestion that he artificially
    manipulated or gamed the situation.

[18]

The
    trial judge quite properly emphasized the need for a sentence that reflected
    the needs of specific deterrence and rehabilitation in the circumstances of
    this case. It would appear that those needs have now been met and that neither
    factor would be fostered by maintaining the original sentence. In his
    submission to us, the appellant stated that the words of the trial judge had a
    profound effect upon him, that he has taken what the trial judge had said to
    heart and made a determined effort to turn his life around. Simply put, the
    appellant took the right path at the crossroads described by the trial judge
    and has become a productive citizen and a family man as the trial judge hoped
    he would.

[19]

I
    agree with the respondent Crown that a stay of the remaining custodial portion
    of the sentence would not be an appropriate remedy. Stays of sentence are
    sometimes granted in successful Crown sentence appeals. If the court finds that
    the sentence imposed at trial was unfit, it imposes what it considers a fit
    sentence, but then exercises its discretion to avoid the injustice that would
    result from re-incarcerating the offender who has served the original sentence
    and has gotten on with his or her life.

[20]

Here
    the situation is different. The sentence imposed at trial was fit and it is the
    offender who appeals. The court is not asked to increase a sentence that has
    already been served and we do not have before us someone who has done his
    time only to be faced with further punishment on account of a Crown appeal.

[21]

On
    this appeal we must directly confront the different question of whether the fit
    sentence that was imposed should be reduced because of the progress the
    offender has made while awaiting the hearing of this appeal.

[22]

The
    answer to that question is not easy. This was a serious offence that ordinarily,
    would clearly call for more than seven weeks imprisonment. On the other hand,
    we are dealing with a case in which, however inadvertently, the criminal
    process and the sanction that was imposed have actually worked. The two
    sentencing objectives emphasized by the trial judge, specific deterrence and
    rehabilitation, have now been satisfied.

[23]

The
    only justification for requiring this offender to return to prison at this
    point would be to satisfy the need for general deterrence and denunciation. In
    my view, any gain in general deterrence would be minimal and would be offset by
    the negative effect on the appellants ongoing rehabilitation. I would maintain
    that the two year sentence was fit when imposed and it is only because of the
    very unusual significant strides taken by the appellant since sentence was
    imposed that I would alter the sentence. To the extent sentences imposed by the
    courts send a message, the message sent by reducing the sentence would be
    that where an offender takes unusual steps to turn his life around, those steps
    will be recognized by the court. In my view, the gain achieved by way of
    encouraging social peace and harmony from that message would greatly exceed any
    gain achieved by way of general deterrence and denunciation if he were required
    to serve the full term of his sentence at this stage.

[24]

The
    appellants life would be devastated if he were to be sent back to jail at this
    point. His family would be seriously disrupted and he would be diverted from
    the strong direction he has taken towards rehabilitation. To return him to jail
    would, as in
R. v. Porter
(1980), 26 Nlfd. & P.E.I.R. 26 Nfld. (Nfld.
    C.A.), at para. 11, have the effect of sacrificing the principle of
    rehabilitation for the principles for punishment and deterrence. See also
R.
    v. Sinclair
, 2012 MBCA 24 at para. 24: [I]t would be counter-productive
    to sacrifice the gains that have been achieved in terms of rehabilitation to
    foster the principles of denunciation and general deterrence by means of
    incarceration (citing Gilles Renaud,
The
Sentencing Code of Canada: Principles and Objectives
(Markham:
    LexisNexis Canada Inc., 2009) at para. 5.97).

[25]

In
    my view, this is a very unusual case. To ignore the

efforts of the
    appellant and the consequent human realties (
R. v. Hamilton
) of the
    case would be contrary to sound sentencing policy and the interests of justice.

Disposition

[26]

For
    these reasons, I would grant leave to appeal sentence and reduce the custodial
    portion of the sentence to time served. In all other respects, the sentence is
    maintained. The conviction appeal is dismissed as abandoned.

Released: November 9, 2015

Robert J. Sharpe
    J.A.

I agree C.W.
    Hourigan J.A.

I agree M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gomes, 2015 ONCA 763

DATE: 20151109

DOCKET: C58366

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Gomes

Appellant

Jason Rabinovitch, for the appellant

Brock Jones, for the respondent

Heard:  November 9, 2015

On appeal from the sentence imposed by Justice McMahon of
    the Superior Court of Justice on February 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge appreciated that he should follow the joint submission
    unless he was satisfied that it was clearly not in the public interest to do
    so.  He advised counsel of his concerns and properly gave counsel an
    opportunity to address his concerns.

[2]

Counsel on appeal accepts that the trial judge set out the proper test
    to be applied in jumping a joint submission.  He argues, however, that the
    trial judge looked to inapplicable case law in concluding that the offence
    required the imposition of a custodial sentence.

[3]

We disagree.  The trial judge referred to cases from this court which
    have emphasized the need for denunciatory sentences when accused are found in
    possession, particularly in public, of deadly firearms.  This accused was in
    possession of a sawed off shotgun on a public street.

[4]

It is true that the cases referred to by the trial judge dealt with
    possession of loaded deadly firearms, an obviously aggravating feature absent
    in this case.  However, the principle remains applicable  possession of deadly
    prohibited firearms requires a denunciatory sentence.

[5]

In our view, it was reasonably open to the trial judge to conclude that
    the proposed sentence (a conditional sentence) was woefully inadequate and
    failed to reflect the required general deterrence.  We would defer to that
    assessment.

[6]

Crown counsel points out that the s. 109 prohibition order imposed at
    trial is incomplete.  It should be varied to clarify that the appellant is
    prohibited for life from possessing any prohibited firearm, restricted
    firearm, prohibited weapon, prohibited device or prohibited ammunition.

[7]

The appeal is allowed to vary the terms of the prohibition order.
    Otherwise, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gravesande, 2015 ONCA 774

DATE: 20151113

DOCKET: C58782

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Deryk Gravesande

Appellant

Marie Henein, Scott Hutchison and Matthew Gourlay, for
    the appellant

Luc Boucher and Jim Marshall, for the respondent

Heard: October 8, 2015

On appeal from the conviction entered by Justice Wayne G.
    Rabley of the Ontario Court of Justice on February 13, 2014.

Pardu J.A.:

[1]

The appellant, an experienced defence lawyer, was convicted of smuggling
    drugs into the Toronto Jail for a former client in the course of a professional
    visit.

[2]

A correctional officer, Darryl Beaulieu, found the drugs on the
    appellants former client, Joacquin Rowe. Beaulieu claimed that he searched
    Rowe before and after the appellants visit. He claimed that he did not find
    any drugs on Rowe during the first search; however, that first search did not
    comply with the prisons protocols and, significantly, Beaulieu did not conduct
    a full strip search. During the second search, drugs were found in a sock
    hidden in Rowes underwear.

[3]

The Crown alleged that the appellant was the one who provided the drugs
    to Rowe. The appellant denied the charge. Rowe did not testify nor did he
    provide any information about how he acquired the drugs.

[4]

The Crowns case against the appellant was circumstantial. Beaulieu and
    Nicu Sava, another correctional officer on duty on the night of the appellants
    visit, were the Crowns most significant witnesses. Ultimately, the trial judge
    accepted the evidence of the Crown, including that of Beaulieu and Sava. Consequently,
    the trial judge rejected the appellants evidence, and convicted him.

[5]

For the reasons that follow, I conclude that the trial judges verdict
    must be set aside. I come to that conclusion for two reasons. First, a review
    of the trial judges reasons demonstrates that he applied a stricter level of
    scrutiny to the appellants evidence than to the prosecution witnesses. Second,
    the trial judge erred in concluding that certain third-party records requested
    by the appellant were not likely relevant to an issue in the trial and, on that
    basis, refusing to review documents that had already been produced.

A.

background in brief

[6]

The appellant had represented Rowe in a trial which ended with Rowe
    being found guilty. Rowe had asked the appellant to represent him on a retrial
    for the same charges. According to the appellant, he was visiting Rowe to let
    him know that the appellant would not be able to represent him.

[7]

The appellant arrived at the Toronto Jail around 7:10 p.m. He passed
    through security. The two guards on duty at the front desk spent about two
    minutes with him, but noticed nothing unusual  in particular, no unusual smell
    despite one of them being within 10 feet of the appellant.

[8]

After passing through security, the appellant proceeded to the second
    floor where he was met by Beaulieu. At trial, Beaulieu testified that he
    immediately noticed a strong smell of cologne and what I thought was marijuana
    mixed in with that smell. Sava also testified that he noticed an odour of
    marijuana when the appellant arrived on the second floor  despite the fact
    that he was not in the hallway but at a table reserved for guards located at
    least 10 or 20 feet away.

[9]

After directing the appellant to an interview room, Beaulieu contacted
    his supervisor, conveyed his suspicion that the appellant was carrying drugs,
    and asked for instructions. Beaulieus supervisor told him to follow the
    Standing Orders. The Standing Orders required a strip search of the inmate and
    a search of the interview room, before and after every professional visit. As
    will be discussed in greater detail later on, the correctional officers on duty
    did not comply with the Standing Orders.

[10]

Beaulieu
    retrieved Rowe and took him to a room out of range of surveillance cameras in
    order to search him. Beaulieu had asked another correctional officer, William
    Greene, to be present for the search. However, Greene left shortly after the
    search began. Video surveillance played at trial showed Beaulieu briefly
    handling Rowes orange jumpsuit. Beaulieu gave the jumpsuit back to Rowe within
    three or four seconds of receiving it. Rowe was in the room for 75 seconds.

[11]

During
    his examination-in-chief at trial, Sava testified that the interview room had
    been searched. However, when confronted with evidence to the contrary, he
    admitted that he had not searched the interview room.

[12]

The
    appellant spent about 35 minutes in the interview room with Rowe. Following the
    meeting, Rowe was searched again and a black sock containing eight cellophane
    wrapped packages of marijuana, a package of lidocaine, some rolled marijuana
    cigarettes, and a piece of cellophane with lubricant on it was found in his underwear.

B.

proceedings below

[13]

The
    appellant was charged with one count of trafficking.

[14]

Before
    his trial had begun, the appellant applied for production of certain
    third-party records that, broadly speaking, related to the frequency,
    prevalence, and nature of drug smuggling at the Toronto Jail. With the
    exception of some records not at issue on appeal, the trial judge dismissed the
    application. The application and the trial judges decision are discussed at
    greater length later on in these reasons.

[15]

At
    trial, the Crown called a number of employees working at the Toronto Jail, the
    investigating officer, and an expert witness who testified about the value of
    the drugs found on Rowe. The appellant testified on his own behalf and also
    called a character witness.

[16]

Ultimately,
    the trial judge decided that the appellant had smuggled the drugs found on
    Rowe. In coming to that decision, the trial judge reached the following
    conclusions as well:

·

The smell of marijuana identified by Beaulieu and Sava arrived
    with the appellant, and that there was no innocent explanation for it.

·

Rowe did not have the drugs on his person when he entered the
    interview room.

·

Rowe did not have the black sock hidden in his jumpsuit before
    the interview and Beaulieu had searched his underwear to make sure nothing was
    hidden there.

[17]

The
    trial judge stated that the appellant was a reasonable witness. However, the
    trial judge noted some weaknesses in his testimony and stated that the
    appellant was not compelling enough to leave the trial judge in a state of
    reasonable doubt. Ultimately, the trial judge accepted the Crowns evidence,
    rejected that of the defence, and convicted the appellant.

C.

Different Standards of scrutiny

[18]

This
    court has repeatedly stated that it is an error of law for a trial judge to
    apply a higher or stricter level of scrutiny to the evidence of the defence
    than to the evidence of the Crown:
R. v. Owen
(2001), 150 O.A.C. 378,
    at para. 3;
R. v. H.C.
, 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62;
R. v. Phan,
2013 ONCA 787, 313 O.A.C. 352 at para. 30. However, as
    noted by Laskin J.A. in
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at
    para. 39:

The "different standards of scrutiny" argument is a
    difficult argument to succeed on in an appellate court. It is difficult for two
    related reasons: credibility findings are the province of the trial judge and
    attract a very high degree of deference on appeal; and appellate courts
    invariably view this argument with skepticism, seeing it as a veiled invitation
    to reassess the trial judge's credibility determinations.

[19]

For
    an appellant to successfully advance this ground of appeal, she must identify
    something clear in the trial judges reasons or the record indicating that a
    different standard of scrutiny was applied and something sufficiently
    significant to displace the deference due to a trial judges credibility
    assessments:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 at para. 59 (Ont.
    C.A.);
R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.

[20]

In
    this case, the appellant succeeds on this ground of appeal. The trial judges
    reasons demonstrate that he rejected the appellants testimony for speculative
    reasons, while failing to apply similar scrutiny to the evidence of the Crown.

(1)

Evidence of the appellant

[21]

The
    trial judge summarized the appellants evidence in his reasons convicting the
    appellant as follows:

[The appellant] testified on his own behalf. [The appellant] was
    at the time of the trial 61 years of age and had practised as a lawyer for 22
    years. He explained that he did not and would never have brought drugs into the
    Toronto Jail. He testified that every seasoned criminal lawyer knew that
    inmates were strip searched before and after visits with lawyers. According to
    Mr. Paul Copeland, [the appellant] is a lawyer who is a man of good reputation
    in the community as well as within the legal fraternity. Why, the question must
    be asked, would a lawyer who is in good standing, be so foolish as to take the
    chance to bring drugs into a jail and give them to a former client?

[22]

The
    trial judge indicated that he could not point to an area of [the appellants] examination
    in chief or cross-examination where I would say that his evidence was
    implausible or unbelievable. However, he continued [that] does not mean I
    found his evidence compelling enough to say I believed him or that it left me
    in a state of reasonable doubt.

[23]

The
    trial judge went on to note what he described as weaknesses in the appellants
    evidence. He identified the following weaknesses:

·

The appellant was suffering from depression and taking medication
    for his depression at the time of the visit.

·

The appellant could not remember his exact income when
    cross-examined on the issue. In respect of this issue, the trial judge stated
    that a sole practitioner not only runs a law practise, he runs a business. It
    is hard to believe that he has no idea of what his bottom line was.

·

The trial judge found the appellants explanation for the visit, specifically
    that he went to inform Rowe that he could not represent him, hard to accept. The
    trial judge stated that [on] its face, [the appellants] income seems to
    suggest that he might have room for other clients and that the appellant could
    have done the necessary steps to do a pre-trial and then set the matter once
    again for trial. The trial judge stated that the appellant would have had
    ample time to do the actual preparation given that the trial would likely be a
    number of months after the homicide case had been completed.

·

The trial judge also held against the appellant the fact that he
    was carrying a slender file. The trial judge stated that it is curious that [the
    appellant] would be working on a factum with respect to a serious fraud and
    have such a thin file with him. If he had said that he grabbed a piece of the
    file and put it into a file folder that would have made more sense.

[24]

With
    respect, it is difficult to see how any of the issues identified by the trial
    judge constitute weaknesses in the appellants testimony. The fact that, at
    the time of the visit, the appellant was suffering from depression does not
    make it more likely that he committed a criminal offence or was less credible
    at trial. The trial judges conclusions about a sole practitioners knowledge
    about his business, the appellants schedule, or the size of his file are all
    based on speculation.

[25]

The
    trial judge described the deficiencies in the appellants evidence as small
    weaknesses. He said he would not reject his evidence on the basis of these
    small issues but indicated they are a bit troublesome and cause me some
    concern. In respect of the size of the file brought to the jail, the trial
    judge stated that [again], this is a small issue and the explanation could be
    true, but it didnt give me the sense that I was hearing the actual facts when
    I was listening to [the appellant]. Reading the trial judges reasons as a
    whole, it is inescapable that he took these matters into consideration in
    evaluating the appellants credibility.

[26]

In
    addition to identifying the weaknesses noted above, the trial judge rejected
    the proposition that Rowe had the drugs secreted on his person and that
    Beaulieu did not see them, saying I agree with the defence proposition there
    are drugs in the Toronto Jail. In my mind that is not the issue and it is
    certainly not the relevant issue for me to determine.

[27]

The
    trial judge rejected the proposition that Rowe could have gotten the drugs from
    someone else based on his observations of the drugs which he described as
    somewhat smaller than eight golf balls. He said he looked closely at the
    photographs and concluded that there was no evidence that there are feces on
    them. There was no expert evidence that the packages would necessarily have
    been contaminated, or that such contamination would be visible in pictures. The
    trial judges observations were, once again, based on speculation and went
    beyond the acceptable scope of judicial notice.

(2)

Evidence of Beaulieu
    and Sava

[28]

As
    noted, Beaulieu met the appellant on the second floor after he was allowed into
    the Toronto Jail. Beaulieu testified that he immediately noticed a strong
    smell of cologne and what I thought was marijuana mixed in with that smell. Sava,
    who was assigned to the same floor, also testified that he noticed a smell of
    marijuana when the appellant arrived on the second floor.

[29]

However,
    when the appellant initially arrived at the Toronto Jail, he had to pass
    through security. There were two officers on duty at the front desk, and the
    appellant was within 10 feet of one of them. Neither noticed anything unusual,
    and in particular neither noticed any smell about the appellant.

[30]

Moreover,
    on cross-examination, Sava admitted that he was not in the hallway, but at a
    table reserved for guards some distance away. Sava continued maintaining that
    he could smell marijuana emanating from the interview room where the appellant
    was sitting waiting for Rowe.

[31]

Beaulieu
    contacted his supervisor for instructions, because he suspected that the
    appellant was carrying drugs. Beaulieus supervisor instructed him to follow
    the Standing Orders. The Standing Orders required a strip search of an inmate
    before and after every professional visit. The Standing Orders also required
    that the strip search be conducted in the presence of two officers, and required
    that the inmate undress completely and bend over to allow a visual
    inspection of the external surface areas of body cavities.

[32]

After
    Beaulieu retrieved Rowe, they proceeded to an interview room out of range of
    surveillance cameras for the search. Beaulieu had asked Greene to be present
    for the search. However, at trial, Greene admitted that he was not present for
    much of the search and did not remember how far the search got. Video
    surveillance recorded activity in the hallway, outside of the room where the
    search occurred. Greene did not go in that room. After Rowe entered the room, Beaulieu
    remained standing in the doorway and briefly handled Rowes orange jumpsuit. At
    this time, Greene wandered down the hallway and does not observe the rest of
    the search. Beaulieu gives the jumpsuit back to Rowe within three or four
    seconds and Rowe comes out of the room fully dressed.

[33]

At
    trial, Beaulieu initially claimed that he had conducted a strip search of
    Rowe. However, he conceded that the search was not in accordance with the
    standing orders. Beaulieu testified as follows about his usual manner of
    conducting a strip search:

I just want to make sure that I am satisfied that there is no
    weapons or contraband on them so I make sure that I have them take off their
    jumper, I have them take off their shoes, their T-shirt, their socks. I usually
    leave them in their boxers to keep dignity intact, and I always have them run
    their thumbs along the rim of their boxers, pull up boxers and run their thumb
    along, so if they are concealing anything I will be able to see it or it will
    fall out onto the floor.

Q. And is that what you did that day?

A. I
believe
so, yes. [Emphasis added.]

[34]

According
    to the video surveillance played at trial, this part of the search occupied
    three or four seconds. Rowe spent a total of 75 seconds in the room where the
    search occurred.

[35]

Sava,
    during his examination-in-chief, claimed that he searched the interview room
    before and after the visit. However, and only when confronted with the fact
    that both the logbook for recording searches and video recording of the room
    demonstrated the contrary, he admitted that he had not searched the room but
    just assumed that others had.

[36]

The
    trial judge noted that there were some issues with the evidence of both Sava
    and Beaulieu. The trial judge found that Sava shaped his evidence to make it
    seem as if he and his colleagues had followed the required protocols, and that
    he did so to protect his job. Moreover, the trial judge found that the
    correctional officers had not acted in accordance with all of the procedures
    that they were obligated to follow.

(3)

The trial judge
    applied uneven scrutiny

[37]

In
    spite of the problems the trial judge himself identified, and in sharp contrast
    to his focus on small weaknesses in the appellants evidence, the trial judge
    accepted the evidence of both Sava and Beaulieu. Even though he concluded that
    Sava had been shaping his evidence, the trial judge states that he was also
    telling the truth about the events that unfolded when [the appellant] arrived.
    As noted, Sava was forced to admit that he had not searched the interview room
    after he was confronted with evidence to the contrary. The trial judge
    characterized this retreat as follows: Once he realized that detail was
    important, Sava made realistic concessions.

[38]

In
    respect of Beaulieu, the trial judge noted that, it is difficult not to be a
    little critical of the failure of a correctional officer to follow procedures
    and that this error was further magnified by the fact that the correctional
    officers direct supervisor had instructed him to follow the standard procedures.
    However, the trial judge essentially dismissed these concerns, and stated that
    in fairness to [Beaulieu] this was a challenging situation that he could not
    have contemplated in advance and that [to] err is human.

[39]

In
    addition, and once again in sharp contrast to his approach towards the
    appellants case, the trial judge did not focus on or consider weaknesses in
    the Crowns case. For instance, the trial judge accepted Beaulieus evidence
    that he believed he had performed the kind of search he would usually have
    conducted, including making sure that Rowe was not hiding anything in his
    underwear. Beaulieu did not unequivocally say he conducted a search of Rowes underwear.
    However, in coming to this conclusion, the trial judge never considered the
    fact that Beaulieu spent a very small amount of time searching Rowe. He did not
    turn his mind to the fact that Greene, who was required to observe the search,
    just happened to be absent at the critical time. The trial judge never
    considered that Beaulieu may have done nothing to search Rowes underwear,
    despite his repeated failures to follow the Standing Orders and his
    supervisors instructions.

[40]

Similarly,
    the trial judge accepted and placed a great deal of emphasis on Beaulieu and
    Savas evidence that they noticed an odour of marijuana as soon as the
    appellant arrived. The trial judge never considered the fact that smell
    evidence can be highly subjective and suspect:
R. v. Polashek
(1999),
    134 C.C.C. (3d) 187 (Ont. C.A.). Nor did he ever turn his mind to the fact that
    the two guards who had interacted with the appellant moments ago, when he was
    passing through security, did not notice any such smell.

[41]

Finally,
    the trial judge concluded that Sava was a credible witness on at least some
    issue, even though he had been shaping his evidence. At the same time, he
    rejected the appellants otherwise credible evidence on the basis of weaknesses
    which even the trial judge admitted were small and insignificant. In the
    context of this case, the trial judges decision to accept the evidence of Sava
    while rejecting the evidence of the appellant as not compelling enough to say
    that I believed him is deeply incongruous.

[42]

When
    read as a whole, the trial judges reasons demonstrate a degree of scrutiny of
    the prosecution evidence that was tolerant and relaxed as compared to the
    irrelevant, tenuous and speculative observations largely about collateral matters
    applied to unfairly discount the appellants evidence.

[43]

Even
    if the evidence was capable of supporting a conviction, where the trial judge
    has applied different standards to the assessment of prosecution and defence
    evidence the appellant has not received a fair trial, and thus has been the
    victim of a miscarriage of justice:
R. v. T.T.
, 2009 ONCA 613, 68 C.R.
    (6th) 1, at para. 74.

[44]

I
    would allow the appeal and order a new trial on this ground.

D.

Third-Party records

[45]

The
    appellant also submits that the trial judge erred in refusing to inspect third
    party records to assess whether they should be produced to the defence.

(1)

Dismissal of third-party
    records application

[46]

The
    appellant brought a written application for the production of a number of
    third-party records in the possession of the Ministry of Community Safety and
    Correctional Services, the Ministrys Correctional Investigation and Security
    Unit, the Toronto Jail, and the Toronto Police Service, for a period roughly
    five years before the date of the alleged offence, January 20, 2012. The
    documents requested included the following:

·

Prison records for each incident in which a Toronto Jail employee
    was suspected,
investigated or convicted of
    smuggling contraband into the jail between January 1, 2007 and January 20,
    2012.

·

Internal correspondence, memoranda, emails and similar
    communication between
the Toronto Jail staff and
    the Correctional Investigation and Security Unit concerning smuggling activity
    by inmates, prison staff, custodians and visitors between January 1, 2007 and
    January 20, 2012.

·

Investigation files and reports for any staff working at the
    Toronto Jail in January 2012 who have been investigated or disciplined for
    smuggling contraband into jails.

·

Statistical documents or reports showing the number of
    investigations into drug smuggling by Toronto Jail staff for the years 2007 to
    2012.

[47]

As
    noted by the trial judge, the appellant was seeking production of these
    documents in order to assist him to test the reliability of the Crowns
    circumstantial case, and to develop evidence of pervasive drug smuggling at the
    Toronto Jail.

[48]

The
    appellant had served a subpoena
duces tecum
upon the custodian of the
    records. The records noted above had been assembled and were in two binders in
    the courtroom.

[49]

In
    his reasons dismissing the appellants application, the trial judge was clearly
    concerned about the efficient use of judicial resources and ensuring that the
    court remained focus on the issue before him. He concluded that:

It is important that Courts remain focussed on the issues at
    hand. The documents sought by the defence in these paragraphs relate to a wider
    issue and that is the smuggling of drugs into jails and more particularly, the
    Toronto Jail. The Crown concedes that drugs are smuggled into the Toronto Jail
    and it is obvious from the extensive case law relative to smuggling contraband
    into penal institutions that this is an issue of concern in many jurisdictions.
    In my view, this fact is not relevant as to whether or not Mr. Gravesande
    smuggled contraband into the Toronto Jail on the day in question. I would
    therefore dismiss this part of the Application.

(2)

Test for third-party
    records and likely relevance standard

[50]

The
    procedure for production of third party records was set out in
R. v.
    OConnor,
[1995] 4 S.C.R. 411, at para. 20:

·

The accused must bring a written application supported by an
    affidavit setting out a basis to believe that the records are likely relevant
[1]
.

·

Notice must be given to the custodian of the records and, if
    known, to persons who have a privacy interest in the records.

·

The accused must ensure that the custodian and the records are
    subpoenaed to ensure their attendance in court.

·

The application should be heard well in advance of the trial so
    that the trial is not disrupted.

[51]

If
    the record holder or some other interested party opposes the application, then
    the trial judge must determine whether production should be compelled in accordance
    with the two-stage test established in
OConnor
. At the first stage,
    the trial judge must determine if the records are likely relevant to the
    proceedings and if they should be produced for the courts inspection. At the
    second stage, the trial judge examines the documents to determine whether, and
    to what extent, production to the accused should be ordered:
R. v. McNeil
,
    2009 SCC 3, [2009] 1 S.C.R. 66, at para. 27.

[52]

Likely
    relevance in this context means a reasonable possibility that the information
    is logically probative to an issue at trial:
OConnor
, at para. 22. An
    issue at trial includes not only material issues concerning the unfolding of
    the events which form the subject matter of the proceedings, but also evidence
    relating to the credibility of witnesses and to the reliability of other
    evidence in the case:
McNeil
, at para. 33.

[53]

Likely
    relevant is not to be interpreted as an onerous burden on the accused.
    Considerations of privacy and admissibility are not relevant at this stage:
OConnor
,
    at para. 24. As indicated in
OConnor
, at para. 24: A relevance
    threshold, at this stage, is simply a requirement to prevent the defence from
    engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and
    time‑consuming requests for production.

(3)

The records requested
    were likely relevant

[54]

The
    appellants application, in this case, could not be characterized as a fishing
    expedition or unmeritorious request.

[55]

The
    application was brought in a timely fashion, and was not a last-minute request.
    This application was brought well in advance of the trial date. The application
    was heard on September 11, 2013 and reasons were delivered on October 21, 2013.
    Evidence on the trial proper did not begin until December 9, 2013.

[56]

The
    application was amply supported by an affidavit. The affidavit also indicated
    that the information was unlikely to be available pursuant to the
Freedom
    of Information and Protection of Privacy Act
, R.S.O 1990, c. F-31 because
    of concerns that divulgation could impair jail security. The affidavit filed in
    support of the application cited a 2003 University of Toronto study indicating
    that 45% of inmates housed within a provincial institution in Ontario had used
    drugs in the preceding year. The affidavit also referred to a June 11, 2013
    Ombudsmans report about the code of silence that exists among correctional
    officers:

The Applicant is unlikely to obtain information by speaking to
    current or former jail staff. In a June 11, 2013 report entitled The Code,
    Ontario Ombudsman André Marin detailed the code of silence that exists among
    correctional officers in Ontario. It is essentially an unwritten social
    incentive for staff to conceal information that might have negative
    consequences for a co-worker. Correctional officers who break the code are
    shunned, threatened, and risk personal harm for ratting on their colleagues.
    The Ombudsman spoke to one jail superintendent who is aware of cases where
    threats of death and physical violence have been made against those who told
    the truth in the face of the code. [Footnote omitted.]

[57]

Furthermore,
    and contrary to the trial judges conclusion, the source of the drugs on Rowes
    person was highly relevant to the issues at trial. If, for example, drugs were
    rampant in the Toronto Jail, this might have affected the assessment of the
    probability that Rowe was carrying them when he came to the interview room. The
    information requested might have shed light on methods used by inmates to
    smuggle drugs, and participation by staff and visitors in these activities. The
    slender concession by the Crown, that there were drugs in the jail, in all
    probability did not convey the extent of the problem.

[58]

There
    is a reasonable possibility that the information was logically relevant to an
    issue at trial: did the appellant bring drugs to Rowe, knowing that Rowe would
    be searched before and after the visit or was Rowe carrying those drugs on his
    person when he came to the interview room. The trial judge could have narrowed
    the time period to some extent. A criminal trial is not a public inquiry into jail
    management. A more focused time range, of say two or three years around the
    date of the offence could well have been sufficient. The trial judges failure
    to conclude that the records were likely relevant was clearly wrong. This error
    is sufficient to require a new trial.

E.

Disposition

[59]

In
    light of these two errors, both of which justify a new trial, it is not
    necessary to address whether another group of documents sought by the appellant
    should or should not have been ordered produced for inspection by the trial
    judge.

[60]

Accordingly,
    for these reasons, I would allow the appeal, set aside the conviction and order
    a new trial.

Released: November 13, 2015

G. Pardu J.A.

I agree Alexandra
    Hoy A.C.J.O

I agree K.M. Weiler
    J.A.

[1]
In exceptional cases, a judge may waive the requirement for written notice.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall,
    2015 ONCA 766

DATE: 20151110

DOCKET: C54843

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Hall

Appellant

Michael Hall, appearing in person

Erika Chozik, appearing as duty counsel

Mabel Lai, for the respondent

Heard and released orally:  November 4, 2015

On appeal from the conviction entered by Justice Archibald
    of the Superior Court of Justice, dated November 20, 2011 and the sentence
    imposed on December 20, 2011.

ENDORSEMENT

The Conviction Appeal

[1]

Duty counsel challenges the instruction on intoxication as it related to
    the intention required to prove second degree murder.  This was the key, if not
    the only, real issue at the appellants trial.

[2]

Duty counsel has helpfully taken us carefully through the relevant parts
    of the charge to the jury.  In our view, the trial judge properly instructed
    the jury on the relevance of evidence of intoxication to the
mens rea
required for murder.  The trial judge also reviewed the evidence, including the
    expert evidence, relevant to that issue.  Finally, the trial judge fully
    summarized the position of the defence on the issue of intoxication.

[3]

We are satisfied that, based on the instruction, the jury would clearly
    understand that it was the defence position that the appellant had no
    recollection of the relevant events because of an alcohol induced blackout and
    that this blackout was indicative of his degree of intoxication which in turn
    supported the defence position that the Crown had failed to prove the required
mens
    rea
.  We are satisfied that the jury went into its deliberations with a
    firm understanding of the position of the defence.  They clearly rejected that position.

[4]

We would dismiss the conviction appeal.

The Sentence Appeal

[5]

This was clearly a proper case for an increase in the appellants period
    of parole ineligibility, as duty counsel frankly acknowledges.  We can see no
    error in the reasons for sentence.  The trial judge appreciated the evidence of
    intoxication, but he was not prepared to give it the degree of mitigating force
    urged by counsel for the appellant at trial.  The trial judge was entitled to
    do so.

[6]

The trial judges collection of the aggravating and mitigating factors
    (paras. 53 and 54 of his reasons) reflects a full understanding of the record
    before him.  He did not err in the exercise of his sentencing discretion, and
    we cannot interfere with the sentence imposed by the trial judge.

[7]

The sentence appeal is dismissed.

Doherty J.A.

S.E. Pepall J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamade, 2015 ONCA 802

DATE: 20151120

DOCKET: C56253

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Hamade

Appellant

Catriona Verner, for the appellant

John Patton, for the respondent

Heard: November 18, 2015

On appeal from the conviction entered by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting with a jury, on March 6, 2012,
    and the sentence imposed on June 25, 2012.

Pardu J.A.:

[1]

The appellant was convicted of second degree murder of his neighbour. He
    appeals from conviction and from the 15 year period of parole ineligibility
    imposed by the trial judge.

[2]

Turning first to the conviction appeal, he submits that the trial judge made
    two errors:

1.

The trial judge
    erred in failing to caution against reasoning by propensity, in failing to give
    a limiting instruction with respect to demeanour evidence, and in inviting the
    jury to rely upon the appellants callousness to find he was the type of person
    to have committed this offence; and

2.

The trial judge
    further erred in refusing to give a no probative value instruction on some of
    the post offence conduct.

[3]

The only substantial issue at trial was the identity of the killer. The
    victim, 81 years old, was murdered in her own apartment on January 6, 2009. She
    was struck 90 times in the head, neck, back and chest with a blunt object,
    scissors and a knife. She bled to death.

[4]

The accused testified that on the morning of January 6, he knocked on
    the victims door. She told him that she was going to take a bath and he told
    her he would come back later. He testified that he knocked on the victims door
    again and had a brief conversation with a woman who told him that the victim
    was busy. He testified that he heard a man say Be quiet. Be quiet.

[5]

According to the accuseds testimony, he went back to his apartment. On
    his way out of the apartment to catch a bus, he found a key and a credit card
    on the floor. He noticed that the victims door was propped open with a
    newspaper. After knocking and hearing no response, he walked in and found the
    victim dead. He checked her pulse, and then washed his hands in the sink. He
    started to call 9-1-1 but stopped out of fear. He left the apartment and tried
    to lock it with the key he found, but it did not lock the door. He went to drop
    off the key and the credit card to the superintendent, but he was not there.
    The credit card and keys belonged to the victim. Later that day, he used the
    credit card to buy groceries.

[6]

He continued to use the credit card over the next few days and spent
    approximately $1,400. The appellant returned to her apartment before her body
    was discovered to retrieve milk he had stored in the refrigerator. On January
    8, the victims son discovered her body in the office in her apartment. The
    appellant gave a statement to the police. He lied about being in the victims
    apartment after she died and did not tell the police about the man and woman he
    heard. The police examined the appellants jacket on consent. It had the
    victims blood on it, as well as white marks that were similar to white marks
    found in the victims apartment, later determined to be a type of cleaner. His
    pants were later tested as well, which had some of the victims blood on the
    knee. The appellants fingerprint was also found on the outside of the victims
    office door, in the victims blood.

A.

The relationship between the appellant and the victim

[7]

I turn first to the evidence of the relationship between the victim and
    the appellant. The Crown introduced evidence suggesting that the appellant was
    a nuisance to the victim and to other neighbours in the building. In contrast,
    the appellant testified that he was like a son to the victim. The victims
    family and other neighbours testified that the appellant was a pest. The victim
    told him not to come knocking at her door. She covered the peephole in the door
    to her apartment so that the appellant could not look through it. She told him
    he could no longer bring his children into her apartment. Several months before
    the homicide, the victim scolded the appellant for taking her newspaper. She
    said she feared he was going to ask her for money and told her son she would
    refuse if asked. The victims granddaughter stayed with her for a time and
    observed the appellants incessant knocking at her grandmothers door.

[8]

The appellant argues that this was prejudicial bad character evidence.

[9]

We agree with the application judges
[1]
observation that:

It is inconceivable to me that a reasonable jury could convict
    a man of murder on the basis that he had been a pest and/or the possibility
    that he might have been inclined to ask the victim to lend him some money. The
    prejudice, if any, from evidence that the deceased thought the accused to be a
    pest is, at the highest, minimal.

It seems fair to say that pestering an elderly lady to the
    point that she feels the need to take the steps Mrs. Lyons apparently took is
    not something that will be apt to endear the accused to the jury. Having said
    that, on a continuum of evidence of prior discreditable conduct, in my opinion,
    the discreditable nature of the evidence proffered in this case is almost de
    minimus.

[10]

The
    application judge ultimately concluded that the probative value of the evidence
    outweighed any prejudice, concluding that without the admission of the
    evidence, the trier would be deprived of potentially significant information as
    to the deceaseds state of mind.

[11]

Trial
    counsel relied on this evidence to suggest that it demonstrated that the
    appellant had no propensity for violence:

So we can understand how [the appellant] can
    be seen as a pest and a nuisance, aggravating and annoying from time to time,
but
    nothing more than that. Nothing worse than that.

No one felt
    threatened or intimidated
by [the appellant]. And that
    includes Marion Lyons. So said her son, Randy Lyons; and her granddaughter,
    Kristie.

So there seems to be, on the evidence we have,
    no evidence, nothing in [the appellants] character or behaviour, or his
    demeanour as we have witnessed it personally, that would indicate a penchant
    for violence.
[2]
[Emphasis added]

[12]

The trial judge instructed the jury as to the
    use it could make of this evidence:

members of the jury, you might wonder what
    use can you make of these particular comments about [the appellant], if you
    find them to be accurately reported or reliable. If you choose, you may use
    them to support other evidence that [the appellant] had some
financial
    difficulties
. You may also use them to shed some
    additional light on the nature of the
relationship
between [the appellant] and Ms. Lyons, and the reason she placed
    tissue in her peephole. But theres one thing you must be careful about. Ms.
    Lyons is reported to have said that she thought [the appellant] was going to
    ask her for money. You
cannot use
this
    particular evidence to reach the conclusion that he actually did ask her for
    money when she returned from having visited her sister in London. Ms. Lyons
    obviously could not have actually known in advance that [the appellant] was
    going to ask her for money when she returned from London.
[3]
[Emphasis added]

[13]

Given the nature of this evidence, it was not
    necessary to caution the jury that they should not infer from the appellants
    behaviour before the killing that he had a propensity to commit murder.

[14]

An accuseds communications with and actions
    towards a deceased person can be relevant to identity, animus, motive and
    intention. Even if this evidence tends to portray the accused in a negative
    way, no limiting caution is necessary about propensity reasoning:
R.
    v. Pasqualino
, 2008 ONCA 554, 233 C.C.C. (3d) 319;
R.
    v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139;
R.
    v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373.

B.

Conduct after the killing

[15]

The appellant acknowledged when he testified
    that he:

1.

failed to contact the police to tell them the victim was dead;

2.

discarded his blood stained shirt;

3.

used the victims credit card for several days; and

4.

returned to her apartment to retrieve milk he had stored in her
    refrigerator.

[16]

The appellant submits that this evidence was
    prejudicial because it tended to show that he was a callous, strange man, and
    because this was equivocal demeanour evidence. The appellant submits that this
    evidence had little to no probative value and that the trial judge ought to
    have warned the jury about the dangers of this kind of evidence.

[17]

The accuseds actions after the killing went
    well beyond equivocal demeanour evidence, or odd statements made in stressful
    circumstances. Identity of the killer was the only real issue at trial. The
    accuseds use of the victims credit card in the days shortly after her killing
    was highly probative of the identity of the killer. The disposal of the blood
    stained shirt suggests an intention to destroy evidence.

[18]

The trial judge carefully instructed the jury
    about the use they could make of the appellants conduct after the killing:

Evidence about what a person said or did after
    an offence was committed may help you decide
whether it was that
    person who committed it
. It may help, or it may not. I
    will refer to this kind of evidence as post-offence conduct.

Sometimes, according to human experience and
    logic, a persons post-offence conduct is consistent with the conduct of a
    person who committed the offence and inconsistent with conduct of someone who
    did not do it. Sometimes, its not. And
sometimes theres another
    explanation
for post-offence conduct,
something
    unconnected with participation
in the offence charged.

you must be
careful not to immediately
    conclude
that he said or did them because he killed Ms.
    Lyons. Before coming to a conclusion about the reason or reasons for what [the
    appellant] said or did,
you must consider other possible
    explanations
.
Of particular importance are [the
    appellants] own explanations
for his conduct. [Emphasis
    added]

[19]

The trial judge reviewed some of the inculpatory
    inferences they could draw from the appellants conduct:

1. First, there is the fact that [the
    appellant], who said that he considered Ms. Lyons to be like a mother to him,
    and who, he said, considered him to be a second son, did not call the police
    and tell them that Ms. Lyons was dead when he said he discovered her dead body
    in her apartment, or at any other time over the next few days before her body
    was discovered by her son. You may consider this to be consistent with the
    actions of a person who killed Ms. Lyons, and wished to avoid detection.

2. There is [the appellants] evidence that he
    discarded the shirt that he was wearing when he discovered Ms. Lyons
    body, and which he knew had Ms. Lyons blood on it, into a remote garbage bin.
    You may consider this to be consistent with the actions of a person who killed
    Ms. Lyons, and wishes to avoid detection.

3. Next, there is [the appellants] use of Ms.
    Lyons Mastercard after her death on January 6 and 7, 2009. You may consider
    this to be consistent with the actions of a man who had no compunctions about
    having killed Ms. Lyons, and was therefore willing to exploit her death for his
    own ends.

4. Next, there is [the appellants] evidence that
    he returned to Ms. Lyons apartment after he knew she was dead to get his milk
    out of the refrigerator. You may consider this to be a callous disregard for
    the death of Ms. Lyons, consistent with the actions of the man who killed her.

5. Next, there is [the appellants] untruthful
    statement to the police that he had not been in Ms. Lyons apartment for a
    year. Once again, you may consider this to be consistent with the actions of a
    person who killed Ms. Lyons, and wishes to avoid detection.

[20]

The trial judge reviewed the appellants own
    explanations for his conduct:

1. First, regarding [the appellants] failure
    to call the police and report Ms. Lyons death, you may think that this might
    be the action of an innocent person who didnt want to get involved in an
    investigation out of fear of becoming a suspect, particularly because he was a
    Muslim who might be seen as a terrorist, or out of fear -- out of fear of the
    real killers, who [the appellant] said knew his identity, or, as he testified,
    because in a hurry to go shopping when he first started to dial 911.

2. Second, regarding [the appellant]
    discarding the shirt with Ms. Lyons blood on it, you may think that this might
    be the action of an innocent person who didnt want to get involved in the
    investigation out of fear of becoming a suspect, particularly because he was a
    Muslim who might be seen as a terrorist, or out of fear of the real killers who
    knew his identity, or, as he testified, because he couldnt risk bringing the
    shirt to the mosque because blood might drip on the floor.

3. Third, with regard to [the appellants]
    using Ms. Lyons Mastercard the day she was killed and the next day, you may
    think this might be the action of a person addicted to shopping who had nothing
    to do with the killing, but was willing to take advantage of it, or you might
    consider, as [the appellant] testified, that these might be the actions of a
    man who thought, well, Ms. Lyons is dead so she wont have to pay for my
    shopping.

4. Fourth, with regard to [the appellants]
    evidence that he returned to Ms. Lyons apartment after he knew she was dead to
    get his milk out of the refrigerator, you may think that this might be the
    action of an innocent man who had an unusual indifference to her death.

5. And fifth, with regard to [the appellants]
    untruthful statement to the police that he had not been in Ms. Lyons
    apartment for a year, you may think that this might be the action of an
    innocent person who didnt want to get involved in the investigation, again,
    out of fear of becoming a suspect, particularly because he was a Muslim who
    might be seen as a terrorist, or out of fear of the real killers who, he said,
    knew his identity, or, as he suggested, to avoid being suspected of using Ms.
    Lyons credit card.

[21]

Finally, the trial judge instructed the jury:

Remember, members of the jury,
you
    must exercise caution
in inferring guilt from
    post-offence conduct, because the conduct
might be explained in an
    alternative manner
. [The appellants] post-offence
    conduct
can only be used by you
to support an
    inference of guilt
if you reject any other innocent explanation
for the conduct. [Emphasis added.]

[22]

In these circumstances, where the identity of
    the killer was in issue, the trial judge was not required to tell the jury
    that, because of the repugnant nature of his conduct after the killing, they
    could not infer that the accused committed the murder. As a matter of logic and
    human experience, a person in a mother and son relationship with a deceased
    might not leave her body for days without saying anything to anyone. A jury
    could legitimately conclude that the accuseds use of the victims credit card
    after the killing established that he had been in her apartment at the time of
    the killing (in addition to the fingerprint he left there in the victims
    blood) and in combination with all of the evidence established that he was the
    killer.

C.

Failure to give a no probative value instruction

[23]

The appellant also argues that the accuseds
    conduct after the killing was equally consistent with guilt of theft of the
    credit card, and that the trial judge ought to have instructed the jury that
    the evidence of his conduct after the killing had no probative value.

[24]

This was not at all a case like
R. v. Arcangioli
, [1994] 1 S.C.R. 129,
    where the accuseds flight was equally consistent with punching or stabbing the
    victim.

[25]

As indicated in
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 22-24, there is no general requirement for a special warning about the
    use of post-offence conduct:

The principle that after-the-fact conduct may constitute
    circumstantial evidence of guilt remains good law. At its heart, the question
    of whether such evidence is admissible is simply a matter of relevance[e]vidence
    of post-offence conduct is not fundamentally different from other kinds of
    circumstantial evidence. In some cases it may be highly incriminating, while in
    others it might play only a minor corroborative role. As with all other
    evidence, the relevance and probative value of post-offence conduct must be
    assessed on a case-by-case basis. Consequently, the formulation of limiting
    instructions with respect to the broad category of post-offence conduct is
    governed by the same principles as for all other circumstantial evidence. Thus,
    while the term consciousness of guilt may have fallen out of use, it is still
    permissible for the prosecution to introduce evidence of after-the-fact conduct
    in support of an inference that the accused had behaved as a person who is
    guilty of the offence alleged  provided that, as with all circumstantial
    evidence, its relevance to that inference can be demonstrated.

That being said, though the use of such evidence has an
    extensive history in our criminal jurisprudence, it has also long been
    recognized that the introduction of post-offence conduct for the purpose of
    establishing the accuseds consciousness of guilt carries with it a
    substantial risk of jury error. Jurors may be tempted to jump too quickly from
    evidence of post-offence conduct to an inference of guilt without giving
    proper consideration to alternate explanations for the conduct in question.

In most cases,
the best way for a trial judge to
    address that danger is simply to make sure that the jury are aware of any other
    explanations for the accuseds actions, and that they know they should reserve
    their final judgment about the meaning of the accuseds conduct until all the
    evidence has been considered in the normal course of their deliberations. Beyond
    such
a cautionary instruction
,
    the members of jury should be left to draw whatever inferences they choose from
    the evidence at the end of the day. [Emphasis added
, citations omitted.
]

[26]

As a general rule, it is for the jury to decide,
    on the basis of the evidence as a whole, whether the evidence of an accuseds
    post-offence conduct is related to the commission of the offence charged rather
    than to something else, and if so, how much, if any weight should be accorded
    to the evidence in the final determination of guilt or innocence: Watt's Manual
    of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at pp. 340-341.

[27]

Here the trial judge carefully reviewed
    competing inferences which could be drawn from the post-killing conduct to
    ensure that the jury did not leap immediately to guilt from the appellants
    admitted conduct. No more was required in this case.

D.

Sentence appeal

[28]

The trial judge concluded that a 15 year period
    of parole ineligibility was appropriate in this case. In coming to this
    conclusion, the trial judge noted the following:

·

The appellant had brutally murdered the victim, an 81 year old
    woman. They had a close relationship that deteriorated over time. The appellant
    asked her for money, she refused, and he killed her in a rage.

·

The appellant covered up the murder, took her credit card, and
    went on a shopping spree.

·

The victims family has suffered and will continue to suffer a
    profound sense of loss.

·

The appellant, at the time of sentencing, was 44 years old with
    three children and had no criminal record. He appeared simple minded on the
    stand and was financially irresponsible.

[29]

At trial, the Crown argued that
parole ineligibility should
    be 18 years. The defence argued that 12 years was appropriate in this case. The
    trial judge noted that it is difficult to identify a range for parole
    ineligibility for sub-categories of second degree murder, and to find guidance
    from cases when there are a myriad of different factors in any one case.

[30]

Ultimately,
    the trial judge concluded this case involved a serious murder and called for a
    sentence that emphasized denunciation, deterrence and the protection of the
    community. The trial judge concluded that character of the offender was a
    neutral consideration. There was nothing praiseworthy about him, but he had no
    violent or criminal history. Given the nature and circumstances of the offence,
    its brutality and callousness and that it involved an abuse of trust, as well
    as the character of the offender, the trial judge sentenced the appellant to
    life in prison with a minimum period of parole ineligibility of 15 years.

[31]

The appellant does not suggest that the trial judge failed to
    consider any relevant factors, but that he should have weighed them
    differently. He does assert that the trial judge erred by saying: it is hard
    to find guidance from cases where there are a myriad of different factors in
    any one case.

[32]

I do not accept this submission. The trial judge received and
    considered case law from both parties. He was aware of the ranges proposed by
    both parties, including a range of 12-15 years proposed by the defence. Against
    that backdrop, his comments that there are a myriad of different factors in
    any one case is a truism.

[33]

In summary the trial judges sentencing decision is owed
    deference and I see no basis to interfere.

[34]

The conviction and sentence appeal are dismissed.

Released: (J.M.) November 20, 2015

G. Pardu J.A.

I agree J.C.
    MacPherson J.A.

I agree M. Tulloch
    J.A.

[1]
The first trial, presided over by Clark J., ended in a hung jury and a
    mistrial. Justice Clarks pretrial rulings continued in force in the second
    trial before Dambrot J.

[2]
This was repeated by the trial judge in his charge when he related the defence
    position.

[3]
In addition, the trial judge mentioned the relevance of this body of evidence
    to the relationship and the financial difficulties in relation to his charge on
    identification - which he indicated was the central question.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2015 ONCA 754

DATE: 20151106

DOCKET: C56264

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.A.

Appellant

Jill D. Makepeace, for the appellant

Deborah Calderwood, for the respondent

Heard: September 15, 2015

On appeal from the conviction entered on May 25, 2012 by
    Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons
    reported at 2012 ONCJ 317, and from the dismissal of a motion for a mistrial
    dated August 8, 2012, with reasons reported at 2012 ONCJ 526.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, J.A., a young person, was convicted of sexual assault,
    sexual interference, invitation to sexual touching and indecent act (exposure)
    relating to R.G., another young person. He was acquitted of the same four charges
    relating to M.R., also a young person. The appellant appeals against his
    convictions.

[2]

The appellant raises two grounds of appeal:

(i)

The trial judge erred in dismissing the appellants motion for a
    mistrial brought after a finding of guilt, but before sentencing; and

(ii)

The trial judge failed to scrutinize meaningfully the evidence presented
    by the Crown in relation to R.G.s allegations and provided insufficient
    reasons for his assessments of the credibility of the witnesses.

[3]

At the hearing of the appeal, the appellant limited his submissions to the
    mistrial issue.

II.

FACTS

[4]

At trial, evidence was given about four incidents involving R.G. and the
    appellant, who was between 12 and 14 years old at the time of the incidents
    alleged.  R.G. was four years younger than the appellant.  Four videotaped
    statements that R.G. gave to the police were admitted pursuant to s. 715.1 of
    the
Criminal Code
, R.S.C. 1985, c. C-46.

The Mosport Incident

[5]

R.G. was 11 years old at the time of the trial. R.G. stated that when he
    was seven or nine years old, he went with his mother to an event at Mosport
    where he shared a tent with the appellant and another youth, D.H. In a
    videotaped statement to the police, R.G. said he walked into the tent and saw
    the appellant and D.H. masturbating. He refused their invitation to join in the
    activity, and the appellants demand that he engage in oral sex. According to R.G.,
    at that point, the appellant grabbed his head and forced him to perform
    fellatio.

[6]

D.H., who was 15 years old at the time of trial, gave a statement to the
    police about the events at Mosport. D.H. said he saw the appellant and R.G.
    fully naked, with R.G. on top of the appellant, and they were playing with each
    others privates. In his statement, D.H. said the touching of private parts
    between the appellant and R.G. continued the following night. D.H. at first denied
    that he had masturbated with the appellant in the tent, although he eventually
    admitted to doing so. At trial, D.H. testified that the appellant and R.G. only
    engaged in sexual activity on one night.

[7]

The appellant confirmed that he was at Mosport one weekend with R.G., D.H.,
    and others, where he shared a tent with D.H. and R.G. He testified that on the
    first evening R.G. came into the tent and asked if he could jack off with the
    appellant and D.H., at which point R.G. removed his clothes and jumped on top
    of the appellant. According to the appellant, he pushed R.G. away and that was
    the end of the matter.

The Toy Room Incident

[8]

R.G. also gave statements to the police about an incident in a toy room during
    a sleepover at the appellants house. In his first statement, R.G. stated the
    appellant had forced him to perform oral sex. In a second statement, R.G. said
    the appellant made him bend over and he put his dink in my bum. At trial, R.G.
    testified that the forced fellatio had only occurred at Mosport, not in the toy
    room.

[9]

The appellant denied R.G.s allegation.

Incidents Involving Teddy Bears, Dolls and a Latex Glove

[10]

In
    his third statement to the police, R.G. said he made voodoo dolls with the
    appellant by cutting up teddy bears, replacing the stuffing with safety pins
    and other sharp objects, and sewing them back together. Afterwards, the appellant
    told R.G. that he had cut some of his pubic hairs and put them inside the
    bears. R.G. also reported that he saw the appellant take a Barbie doll and rub
    it against his penis.

[11]

In
    his final statement to the police, R.G. stated that the appellant had put a
    latex glove on his hand and then shoved his fingers up my bum and his bum.

[12]

The
    appellant also denied these allegations.

The Fort Incident

[13]

B.P.
    knew both the appellant and R.G. and was 15 years old at the time of the trial.
    B.P. gave evidence about an incident that occurred in a fort in the appellants
    backyard when R.G. was about seven years old. B.P. stated that he was
    masturbating with the appellant when R.G. arrived at the fort. He then saw the
    appellant and R.G. engage in oral and anal sex.

[14]

R.G.
    did not complain about this incident in any statement to the police, nor did he
    testify about it.

[15]

The
    appellant testified that one day R.G. came into his fort while he and B.P. were
    masturbating. According to the appellant, R.G. asked to join in, but the appellant
    said no, as he was finished. The appellant denied forcing R.G. to participate
    in oral or anal sex.

Decision of the Trial Judge

[16]

The
    appellant acknowledged that he had masturbated with R.G., which led the trial
    judge to convict the appellant of the offence of exposing his genital organs to
    a person who was under the age of 16 years, contrary to s. 173(2) of the
Criminal
    Code
. Although the appellant denied all the allegations of oral and anal
    sex involving R.G., the trial judge also found the appellant guilty of sexual
    assault, sexual interference and invitation to sexual touching.

III.

FIRST GROUND OF APPEAL: THE DISMISSAL OF THE DEFENCE MISTRIAL MOTION

[17]

The
    appellants first ground of appeal concerns the trial judges denial of the
    defence request for a mistrial, made after the verdicts were entered but before
    sentencing.

The Reasons of the Trial Judge

[18]

The
    trial judge delivered his reasons for judgment on May 25, 2012. Sentencing was
    scheduled for July 3, 2012.

[19]

On
    June 11, 2012, the trial judge received a letter from R.G.s grandfather. In
    the letter, the grandfather wrote, in part:

The evening following your verdict my grandson told me in
    confidence that what he told Your Honour in court was only a few of the times
    that these things happened and he estimated over 100 times these things have
    happened.

[20]

The
    trial judge provided counsel with the grandfathers letter. The appellant
    thereupon moved for a mistrial, maintaining that the post-conviction statement
    by R.G. set out in his grandfathers letter was capable of undermining R.G.s credibility
    and his version of events given at trial. The appellant sought to examine R.G. on
    the motion to confirm the statement and explain what it meant.

[21]

The
    trial judge denied the mistrial motion and the request to examine R.G. on the
    basis that the proposed fresh evidence (the grandfathers letter) did not meet
    the fourth criterion for admissibility set out in
R. v. Palmer
, [1980]
    1 S.C.R. 759, namely, that the evidence, if believed, could not reasonably be
    expected to have affected the result at trial.

Positions of the Parties

[22]

The
    appellant submits that the statement made by R.G. to his grandfather was a
    game-changer, significantly escalating the number of instances of sexual
    activity with the appellant alleged by R.G. from those he had recounted at
    trial. As a result, the appellant says the statement created a material
    inconsistency in R.G.s account of events, raising concerns about his
    credibility. By failing to allow the appellant to examine R.G. on his statement
    to his grandfather or to declare a mistrial, the trial judge denied the
    appellant the right to make full answer and defence, resulting in a miscarriage
    of justice.

[23]

The
    Crown submits that in refusing to declare a mistrial, the trial judge did not
    err in the exercise of his discretion. The trial judge was in the best position
    to assess the significance of the statement and whether it could have affected
    the result he reached. His decision was not clearly wrong, nor was it based on
    any erroneous principle. Accordingly, it attracts deference from this court.

Analysis

[24]

The
    trial judge correctly identified the legal principles applicable to a motion to
    set aside a finding of guilt and declare a mistrial: a trial judge who has made
    a finding of guilt on disputed facts has the authority to vacate the
    adjudication of guilt at any time before the imposition of sentence or other
    final disposition, but such authority should be exercised only in exceptional
    circumstances and in the clearest of cases:
R. v. Lessard
(1976), 30
    C.C.C. (2d) 70 (Ont. C.A.), at p. 73;
R. v. Kippax
, 2011 ONCA 766, 286
    O.A.C. 144, at para. 62, leave to appeal refused [2012] S.C.C.A. No. 92.

[25]

Mistrials
    are a remedy of last resort and should only be declared to avoid miscarriages
    of justice:
R. v. A.G.
, 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50.
    A trial judge is best positioned to assess whether a mistrial is warranted in
    the circumstances. Consequently, an appellate court owes a trial judge significant
    deference on a determination whether to grant a mistrial, and should only
    interfere with a decision to deny a mistrial if that decision is clearly wrong
    or based on an erroneous principle:
A.G.
, at paras. 51 and 52.

[26]

As
    the trial judge observed, the criteria in
Palmer
provide helpful
    guidance to a trial judge faced with an application to re-open a trial after a
    finding of guilt has been recorded:
Kippax,
at para. 63. In
    considering whether the statement attributed to R.G. in the grandfathers letter
    met the
Palmer
criteria, the trial judges analysis focused on the
    fourth
Palmer
criterion  i.e., whether the evidence, if believed,
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[27]

The
    trial judge concluded that the fourth
Palmer
criterion was not met in
    this case and the circumstances are not such that the extraordinary relief
    sought should be granted. He stated:

Assuming the grandfather accurately reported what RG told him,
    there is no basis upon which to conclude that this could affect my findings of
    credibility or fact. In this regard, I note that as RG is a young boy, his
    reference to over 100s of times should not be taken literally; it is more
    likely a phrase that means much more than I said before. Moreover, it is mere
    speculation to say this is a reference to sexual assaults. Indeed, the contrast
    in the letter between a few times and over 100s of times, as well as the
    evidence at trial suggests otherwise. RG said that he was sexually assaulted by
    the Defendant on two occasions but testified about more instances of other
    sexual activity. If one were to guess at the meaning of the statement, a likely
    explanation is that it refers to the other sexual activity  conduct that other
    witnesses, including the Defendant, in part, confirmed happened on numerous
    occasions.  The initial disclosure by RG was limited; it expanded over time in
    several police interviews and testimony before me. This was the subject of much
    cross-examination at trial. Having regard to all the evidence heard, the
    statement reported by the grandfather adds little to issues already litigated
    and decided.

[28]

The
    appellant submits that the trial judge misapprehended the relevance and
    probative value of R.G.s post-conviction statement and, instead, engaged in a
    highly speculative interpretation of its meaning. While it was inappropriate
    for the trial judge to guess at the meaning of the statement, in my view his
    conclusion that the statement added little to issues already litigated and
    decided was not clearly wrong or based on an erroneous principle.

[29]

Four
    charges alleging sexual offences by the appellant against R.G. were before the trial
    judge for adjudication. The trial judge was in the best position to determine
    whether there was any basis on which to conclude that the statement R.G. made
    to his grandfather, if accepted as true, could have affected his findings of credibility
    or fact in respect of those charges. The trial judge heard all the evidence at
    trial and observed the witnesses who testified, including R.G. Many of them
    were youthful witnesses. The trial judges trial reasons confirm that he was
    alive to the care required to assess the reliability and credibility of their
    evidence as youthful witnesses, including their statements to the police.

[30]

As
    well, this was not a case where the only evidence about the alleged incidents
    came from the complainant and the appellant. On the contrary, both D.H. and B.P.
    gave evidence that they had witnessed sexual activity between the appellant and
    R.G.

[31]

In
    those circumstances, deference is owed to the trial judges conclusion that the
    statement attributed to R. G.  he estimated over 100 times these things have
    happened  would not have affected the findings of credibility or fact he made
    in respect of the incidents that were before him.

[32]

The
    trial judges reasons on the mistrial motion confirm that he appreciated and
    correctly applied the principles governing mistrial applications and the
Palmer
criteria for the admission of fresh evidence in the context of the whole of the
    evidence led at trial. His discretionary decision to dismiss the mistrial motion
    is neither clearly wrong nor based on an erroneous principle. I therefore would
    reject this ground of appeal.

IV.

SECOND GROUND OF APPEAL: CREDIBILITY ASSESSMENTS MADE BY THE TRIAL JUDGE

Positions of the Parties

[33]

The
    second ground of appeal advanced by the appellant concerns the credibility findings
    made by the trial judge. The appellant did not address this ground during oral
    argument, but relied on the submissions contained in his factum. The appellant
    submits that the trial judge failed to scrutinize meaningfully the evidence
    presented by the Crown in relation to R.G.s allegations, despite taking a
    rigorous approach to the evidence of the accused. In making this submission,
    the appellant contends that the trial judge erroneously concluded that R.G.s
    account of events was confirmed by the testimony of two Crown witnesses, B.P.
    and D.H. He also maintains that the trial judge failed to adequately assess inconsistencies
    in R.G.s testimony.  Finally, the appellant challenges the sufficiency of the trial
    judges reasons for his credibility findings and for his conclusion regarding
    the appellants culpability for the offences involving R.G.

[34]

The
    Crown submits that the trial judge did not err in his treatment of the evidence
    and the appellants complaints amount to no more than disagreements with the trial
    judges appreciation of the evidence before him.

Analysis

[35]

The
    appellant acknowledges that in order to establish that the trial judge erred by
    applying different standards of scrutiny to his evidence and that of the Crown,
    he must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied
    different standards in assessing the evidence of the appellant and the
    complainant:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    p. 491.

[36]

To
    make his argument, the appellant focuses on the sufficiency of the trial judges
    findings about the credibility and reliability of the testimony of the
    principal witnesses and the adequacy of the reasons he gave for those findings.

[37]

Where
    a case turns largely on determinations of credibility, the sufficiency of the
    reasons should be considered in light of the deference afforded to trial judges
    on credibility findings. Only rarely will deficiencies in a trial judges
    credibility analysis warrant appellate intervention, although a failure to
    sufficiently articulate how credibility concerns have been resolved may rise to
    the level of reversible error:
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 26;
R. v. T.S.
, 2012 ONCA 289, 284 C.C.C. (3d)
    394, at para. 46.

[38]

In
    this case, the trial judge provided thoughtful and cogent reasons in support of
    his credibility findings. With respect to the Crowns witnesses, he reviewed
    the evidence in some detail, including the evidence that weakened the strength
    of the Crowns case regarding the charges related to R.G. He took specific
    account of inconsistencies in the witnesses testimony, the significance of
    R.G.s incremental disclosure of the appellants sexual acts, and the actions
    and impact of the conduct of the complainants mother on R.G.s statements to
    the police. That the trial judge was careful in his review of the evidence is
    apparent from his self-direction that the testimony of R.G.s mother, for
    reasons the trial judge explained, should be approached with caution.

[39]

Contrary
    to the appellants submission, in my view the trial judges evaluation of the
    appellants evidence was sufficient, intelligible, and even-handed. The trial
    judge provided detailed reasons for rejecting the appellants denial of the
    sexual activities alleged, focusing on both the appellants own testimony and
    that of the Crown witnesses where it contradicted the appellants account of
    events. As he was obliged to do, the trial judge evaluated the appellants
    credibility in the context of the evidence as a whole. I see no imbalance in
    his analysis of the appellants testimony or in his approach to the evidence as
    a whole.

[40]

Nor
    do I accept the appellants contention that the trial judge erred by relying on
    parts of the evidence of B.P. and D.H. as confirmatory of key aspects of R.G.s
    account that he had been forced to engage in oral and anal sex with the
    appellant.

[41]

B.P.
    testified that he witnessed the appellant forcing anal sex on R.G., while D.H.
    testified that he observed R.G. and the appellant naked, with R.G. on top of
    the appellant, and both touching each others private parts. The trial judge
    was alert to the inconsistencies between these witnesses evidence and that of
    R.G., including that R.G. had not mentioned the fort incident in any of his
    statements. It was open to him to accept the core features of their testimony,
    which clearly implicated the appellant in sexual activity with R.G, who,
    because of his age, was incapable of consent. The trial judge provided clear
    and direct explanations of the basis for his findings that the evidence of B.P.
    and D.H. corroborated key aspects of R.G.s testimony.

[42]

R.G.
    was only about seven years of age when the fort incident occurred and
    approximately nine years old at the time of the Mosport incident. He was 11
    years of age at the time of trial. In these circumstances, it was appropriate
    for the trial judge to consider R.G.s age and maturity when evaluating his
    credibility and the reliability of his testimony, especially in light of R.G.s
    reluctance to disclose the appellants acts:
R. v. Barua
, 2014 ONCA
    34, 315 O.A.C. 83, at para. 25.

[43]

Finally,
    the trial judges reasons for convicting the appellant of the charges relating
    to R.G. are firmly anchored in the evidentiary record. They afford ample scope
    for meaningful appellate review. Accordingly, they meet the standard for
    sufficiency of reasons established by
R. v. Sheppard
, 2002 SCC 26, [2002]
    1 S.C.R. 869,
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, and
    related cases.

V.

DISPOSITION

[44]

For
    the reasons given, I would dismiss the appeal.

Release: November 6, 2015 (EAC)

David
    Brown J.A.

I
    agree E.A. Cronk J.A.

I
    agree Gloria Epstein J.A.