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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. L.O., 2015 ONCA 394

DATE: 20150604

DOCKET: C54459

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L. O.

Appellant

Paul J.I. Alexander, for the appellant

Alex Hrybinsky, for the respondent

Heard: March 30, 2015

On appeal from the convictions entered on October 29,
    2010 and the sentence imposed on March 7, 2011, by Justice Jane A. Milanetti of
    the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant was convicted by a jury of sexual assault (count 1), sexual
    interference (count 2), invitation to touch for a sexual purpose (count 3), and
    possession of child pornography (count 4). The first three counts alleged that
    the appellant sexually abused L.F., his five-year old great-niece. The fourth
    count alleged that the appellant was in possession of child pornography found
    on two computers and several CDs seized from his apartment.

[2]

The trial judge imposed sentences of five years concurrent on counts 1-3.
    She determined that a one-year consecutive sentence was appropriate on the
    child pornography charge (count 4) and credited the appellant with 270 days for
    his presentence custody, resulting in a sentence of 95 days consecutive to the
    five years imposed on counts 1-3.

[3]

The appellant appeals his convictions and sentence.

[4]

On the conviction appeal, counsel alleges several errors in the jury instructions.
    All but one relate to the instructions concerning the use the jury could make
    of L.F.s prior consistent statements. In the remaining ground, counsel submits
    that the trial judge failed to instruct the jury that evidence of the appellants
    possession of child pornography could not be used in determining his guilt on
    the sexual abuse charges. Counsel submits that if any of these grounds succeed,
    the convictions on counts 1-3 must be quashed and a new trial ordered on those
    counts. Counsel also advances an ineffective assistance of counsel claim. He
    submits that if this argument succeeds, all the convictions must be quashed and
    a new trial ordered.  Lastly, counsel argues that even if the convictions
    should all stand, the rule against multiple convictions in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729 precludes convictions on counts 1, 2 and 3.

[5]

On the sentence appeal, counsel submits that the trial judge did not
    give the appellant adequate credit for his presentence incarceration.

[6]

I would allow the conviction appeal on the ground that the trial judge
    erred in failing to expressly instruct the jury that evidence of the
    appellants possession of child pornography was inadmissible on counts 1-3 and could
    not be considered by the jury in determining its verdicts on those counts. A
    clear, strong caution against the use of that evidence was essential to a fair
    trial on counts 1-3. I would quash the convictions on those counts and order a
    new trial.

[7]

There is no merit to the other grounds raised on the conviction appeal. The
    failure to caution the jury against the use of the appellants possession of
    child pornography on the sexual abuse charges does not affect his conviction on
    count 4, the charge of possession of child pornography. I would dismiss the
    appeal from that conviction.  As I would order a new trial on the sexual abuse
    charges, I need not consider the potential application of the
Kienapple
principle to multiple convictions on those counts.

[8]

On the appeal from the sentence imposed on the possession of child
    pornography conviction, I agree with the Crowns concession that in light of
R.
    v. Summers
,
2014 SCC 26,
    [2014] 1 S.C.R. 575, released after the trial judge sentenced the appellant,
    the trial judge erred in giving the appellant only 1:1 credit for the 128 days he
    was in custody between conviction and sentence. She should have given 2:1
    credit.  I would vary the sentence imposed to give the appellant an additional
    128 days credit on the sentence imposed for possession of child pornography. Taking
    the additional credit into account, I would allow the sentence appeal on that
    count and vary the sentence to time served.

II

THE EVIDENCE

(i)

The sexual abuse charges (counts 1-3)

[9]

L.F. lived with her mother (B.O.) and step-father (R.R.). In the summer
    of 2007, the appellant babysat L.F. from time to time. She stayed overnight at
    the appellants apartment a few times, including on the Labour Day weekend.

[10]

On
    the Monday of the Labour Day weekend, L.F. returned home from the appellants
    apartment. She seemed normal and in good spirits. Sometime after L.F. returned
    home, R.R. went into her bedroom to check on her. He found L.F. touching her
    genitals. He asked her what she was doing. L.F. replied that she was doing what
    her uncle L.O. (the appellant) had done to her.

[11]

R.R.
    immediately spoke to her mother, who spoke to L.F. According to her mother, after
    some hesitation, L.F. confirmed what she had told R.R. and added details about
    the nature of the abuse. L.F.s mother checked her vaginal area for signs of
    injury but found none.

[12]

L.Fs
    mother and step-father took her to St. Josephs Health Centre and later that
    evening to McMaster Childrens Hospital. Medical staff at both hospitals
    examined L.F. She eventually told the doctors what the appellant had done to
    her. L.F. also spoke to the police while she was at McMaster Childrens Hospital
    and told them about the abuse.

[13]

On
    September 6
th
, three days after L.F. first reported the abuse, she
    gave a police statement that was video-recorded. That statement was admitted at
    trial pursuant to s. 715.1 of the
Criminal Code
, R.S.C. 1990, c. C-46
.

[14]

In
    her video statement, L.F. said that the appellant had performed various sexual
    acts on her and made her perform fellatio. L.F. described gooey stuff that
    came out of the appellants penis. She said she had spit it into the toilet. L.F.
    also described an incident in which the appellant had penetrated her vagina
    with a screwdriver. L.F. ultimately adopted the contents of the video statement
    she had made on September 6
th
as true, at trial. She also gave additional
    evidence concerning the allegations.

[15]

There
    was no physical evidence supporting the sexual abuse allegations.  One witness
    testified that L.F. did not stay at the appellants apartment on the Labour Day
    weekend.  Her evidence, however, was contradicted by all the other witnesses.

[16]

The
    defence cross-examined L.F. at length on several statements she had made about
    the allegations to various people. She was cross-examined about statements she
    made to her mother, step-father, medical staff at both hospitals, the police,
    on her video-recorded statement, and on her preliminary inquiry testimony. The
    cross-examination revealed several inconsistencies, including the following:

·

At the preliminary inquiry, L.F. testified that the appellants
    niece, Rachel, was present when L.F. was assaulted with the screwdriver and had
    come to L.F.s assistance, taking the screwdriver away from the appellant. In
    her video statement, she said no one else was present.

·

L.F. gave various accounts of the number of times that she had
    been assaulted by the appellant, ranging from lots of times to a couple
    times.

[17]

The
    appellant did not testify. It was the position of the defence at trial that
    L.F. was not credible and her evidence was not reliable. Counsel argued to the
    jury that L.F. had imagined the abuse. The defence relied heavily on what
    counsel claimed were the many material inconsistencies among the various
    statements made by L.F.

(ii)

The possession of child pornography charge (count 4)

[18]

Shortly
    after L.F. made her statement to the police, the police executed a search
    warrant at the appellants apartment. They seized two computers and 11 CDs
    found in the living room. Police found images of child pornography and video
    files containing child pornography on the computers. They also found child
    pornography on several of the CDs.

[19]

The
    defence did not contest that the material found and seized by the police
    constituted child pornography. The defence maintained, however, that the
    appellant had not downloaded the material or viewed it, and was therefore not
    in possession of that material. The defence called a witness who testified that
    he saw the appellants niece downloading child pornography onto the appellants
    computer. According to this witness, the appellant angrily told his niece to
    remove the material from the computer. The appellants niece, called as a Crown
    witness, admitted that she and her boyfriend used the computer, but denied
    downloading child pornography.

III

THE CONVICTION APPEAL

(i)

The ineffective assistance of counsel claim

[20]

The material filed by the appellant to support the claim of ineffective
    assistance of counsel consists entirely of an affidavit from appellate counsels
    legal assistant and preliminary inquiry extracts. Various witness statements,
    presumably provided as part of the trial disclosure, are attached as exhibits
    to the affidavit. There is nothing else. There is no affidavit from the
    appellant. There is no affidavit from trial counsel. There is no affidavit from
    anyone who has firsthand knowledge of any of the relevant events. Nor did appellate
    counsel seek to cross-examine trial counsel on the allegations he now makes
    against trial counsel. Based on this record, it is difficult to give any
    credence to the arguments advanced in support of this ground of appeal.

[21]

Counsel
    submits that trial counsels decision not to re-call L.F. for further
    cross-examination at trial amounted to ineffective representation. During the
    trial, counsel sought a mistrial based on the mid-trial disclosure that L.F.
    had told her mother that she lied during her testimony. After hearing argument,
    the trial judge declined to declare a mistrial, but ruled that counsel could re-call
    L.F. for a limited cross-examination on the statement she made to her mother. Counsel
    declined to re-call L.F., indicating that he was acting on the instructions of
    the appellant.

[22]

There
    is nothing in the fresh evidence to contradict trial counsels statement on the
    trial record. I cannot accept counsels allegation of ineffective assistance
    arising out of a tactical decision made on the express instructions of the client.
    This submission is undercut by the absence of any evidence from the appellant
    suggesting that trial counsel misrepresented his instruction, or that there was
    some reason why the appellant should now be allowed to resile from that
    instruction.

[23]

Counsels
    next argument is premised on the assumption that the material attached to the
    legal assistants affidavit provides evidence that L.F. was abused by a third
    party at some time before the alleged abuse by the appellant. There is no such
    evidence in the attachments to the affidavit. Assertions contained in a witness
    statement attached to the legal assistants affidavit are not admissible for
    the truth of their contents. Nor do the extracts from the preliminary inquiry,
    which refer to allegations of prior abuse, provide any evidence that L.F. was actually
    abused.

[24]

Counsel
    further contends that even if there was no evidence of sexual abuse by a third
    party, trial counsels failure to investigate that possibility amounted to
    ineffective representation. Nothing in the material filed by the appellant
    offers any support for this claim. The extent to which counsel may have
    investigated the possibility of third party abuse, and his reasons for not
    advancing that claim at trial, are not addressed in the fresh evidence.

[25]

The
    appellant has the burden of showing facts said to support the ineffective
    representation claim:
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont.
    C.A.), at p. 48, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347;
R.
    v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 119.  He does
    not meet that burden by asserting facts for which there is no evidence, nor by
    asking the court, in the absence of evidence, to draw inferences against trial
    counsels conduct of the defence.

[26]

Counsel
    next submits that trial counsel provided ineffective assistance by failing to
    pursue the argument that the adult language used by L.F. demonstrated that
    her allegations had been tainted by suggestive questioning. In support of
    this argument, counsel refers to extracts from the various statements made by
    L.F. that were adduced into evidence at the trial.

[27]

In
    almost every trial, there are several possible arguments that could be made. Counsel
    must decide what arguments to put forward. That decision involves the exercise
    of professional judgment. Allegations of ineffective assistance are not a forum
    for second guessing judgment calls made at trial. The argument appellate
    counsel now says should have been made, was in fact made to some extent by
    trial counsel. Perhaps it could have been given more emphasis, although the
    cogency of the argument is debatable. Whatever the merits of this argument, trial
    counsels decision to press other arguments does not amount to ineffective
    assistance.

[28]

Counsels
    fourth argument in support of the claim of ineffective assistance is not really
    an argument of ineffective assistance at all, but rather an argument that the
    trial judge misdirected the jury on the reasonable doubt standard. Counsel
    submits that in his jury address, trial counsel understated the reasonable
    doubt standard. He submits that the trial judge failed to correct counsels
    misstatement in her instructions.

[29]

Trial
    counsels explanation of the reasonable doubt standard to the jury may or may
    not have understated that standard. The trial judges instruction correctly
    described the standard in language that has been the accepted reasonable doubt instruction
    for over 15 years: see
R. v. Lifchus
, [1997] 3 S.C.R. 320, at para. 39. The
    trial judge told the jury to take their legal instructions from her and defence
    counsel qualified his description of the law with the same caution. I have no
    doubt the jury would have acted on the trial judges explanation of reasonable
    doubt. That explanation would not have misled the jury.

[30]

The
    appellant has not established ineffective assistance of counsel. I would reject
    this ground of appeal.

(ii)

The instructions on L.F.s prior statements

[31]

The
    evidence at trial was replete with references to prior statements L.F. made to many
    people, beginning with her initial disclosure and carrying through to her video-recorded
    statement to the police made about three days later. L.F. was also cross-examined
    on her preliminary inquiry testimony. The appellants trial counsel introduced
    the content of most of the statements during his cross-examination of L.F. and
    other Crown witnesses. As outlined above, it was the core of the defence that L.F.s
    prior statements revealed numerous inconsistencies that rendered her evidence at
    trial unreliable.

[32]

Counsel
    for the appellant submits that the trial judge should have told the jury that to
    the extent that L.F.s prior statements were consistent with her testimony,
    those prior statements could not be used to bolster her credibility. An
    instruction in those absolute terms would have been misleading. The manner in
    which a child discloses allegations of abuse, including the language used in
    making that disclosure, may assist a jury in assessing the reliability of the
    childs testimony. The potential significance of that evidence to the
    reliability of the childs testimony flows not from the mere consistency
    between the out-of-court statements and the testimony, but from the manner in
    which the abuse is revealed by the child: see
R. v. F. (J.E.)
(1993),
    85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476;
R. v. G.C.
, 2006 CanLII
    18984, at paras. 20-22. As explained in
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 39:

The complainants prior consistent statements were not
    admissible under any of the traditional hearsay exceptions. Thus, the
    statements could not be used to confirm her in-court testimony. However, in
    light of the
evidence that the complainant had difficulty situating events in
    time, was easily confused, and lied on occasion, the spontaneous nature of the
    initial complaint and the complainants repetition of the essential elements of
    the allegations provide important context for assessing her credibility.
[Emphasis added.]

[33]

The
    trial judge instructed the jury in accordance with the authorities referred to
    above, indicating:

You have also heard details of [L.F.s] utterances to others,
    things she said to such as Dr. Hallett, Dr. Chu, her mother [B.O.], her
    stepfather [R.R.]. The fact that such utterances were made is admissible to
    assist you as to the sequence of events from the alleged offence to the
    prosecution, that you understand the conduct of the complainant, [L.F.], and
    assess her truthfulness or reliability. However, I must instruct you not to
    look to the content of the statements as proof that a crime has been committed.

[34]

L.F.s
    prior consistent statements were also relevant to the jurys assessment of the
    reliability of her evidence in a second, less direct way. Consistencies in her
    statements provided important context to assess the defence attack on L.F.s
    reliability based on alleged inconsistencies.

[35]

The
    trial judge correctly told the jury that prior inconsistencies were relevant to
    the reliability of L.F.s testimony and to her credibility. She also told the
    jury, again correctly, that the significance of inconsistencies in the
    assessment of L.F.s reliability and credibility could only be determined after
    an examination of the nature and extent of those inconsistencies. An isolated,
    minor inconsistency in a sea of otherwise consistent descriptions of the
    relevant events would have far less impact on L.F.s credibility and
    reliability than would several material inconsistencies going to the heart of her
    allegations.

[36]

The
    jury had to consider the entirety of the evidence relating to L.F.s various
    statements, including the consistencies in those statements, in deciding the impact
    of any inconsistencies in those statements on her credibility and reliability. To
    the extent that L.F.s statements were consistent, especially on the central
    features of the allegations, that consistency could counter, or at least
    mitigate, the defence claim that L.F. was not credible or reliable because of
    her many prior inconsistent statements: see D.M. Paciocco, The Perils and
    Potential of Prior Consistent Statements: Lets get it Right (2013) 17 Can.
    Crim. L. Rev. 188, at p. 199.

[37]

The
    appellant also alleges non-direction amounting to misdirection. Counsel argues
    that the trial judge erred in law in failing to tell the jury that it could not
    infer the truth of the allegations from L.F.s repetition of those allegations,
    and that it could not use the prior consistent statements to confirm or
    corroborate her testimony.

[38]

The
    trial judge did not give either instruction in her charge. Neither was requested.
    Certainly, the instructions could have been given and, in a perfect jury
    charge, would have been given: e.g. see
R. v. Austin
(2006), 214
    C.C.C. (3d) 38 (Ont. C.A.), at paras. 32-34. However, perfection is not the
    standard:
R. v. Ellard
,
2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 41-42. I am satisfied that the
    failure to give these instructions in this case did not constitute a legal
    error.

[39]

The
    Crown did not rely on L.F.s out-of-court statements (except the video
    statement admitted under s. 715.1) for the truth of the contents of those
    statements. It was no part of the Crowns case that the jury should believe
    L.F. because she had repeated the allegations several times to several
    different people. It was the defence that introduced the vast majority of
    L.F.s prior statements in an effort to show the many inconsistencies among
    those statements. The defence argued that L.F.s prior inconsistent statements
    rendered her trial testimony unreliable. The Crown responded to that argument with
    the claim that the consistencies were insignificant when placed in the context
    of the entirety of L.F.s statements and the central allegations made by her.

[40]

The
    defence, as it was entitled to do, vigorously attacked L.F.s credibility and reliability
    using her prior statements. The Crown, as it was equally entitled to do, attempted
    to rebut those attacks with the contention that the statements were not inconsistent
    on material matters. The trial judges instructions on the prior statements
    reflected the manner in which those statements had been placed before the jury
    by the parties. Considered in that light, the trial judges instructions, even
    absent the alleged non-directions, adequately prepared the jury to properly
    assess L.F.s evidence. Counsels failure to object at trial supports my
    conclusion that the trial judges instructions properly captured the
    significance of the prior statements to the case put before the jury by the
    parties: see
R. v. Araya
, 2015 SCC 11, 17 C.R. (7th) 252, at para. 51;
Ellard
,
at para. 47.

[41]

The
    appellants next submission targets L.F.s video-recorded statement to the
    police. That statement was admitted under s. 715.1 of the
Criminal Code
.
    Counsel does not challenge the admissibility of the statement. Rather, he
    submits that the trial judge erred in instructing the jury that, in assessing
    the reliability of the video-recorded statement, the jury could consider:

The similarities and differences between the videotape and
    [L.F.s] evidence at trial. Were they similar or different, in important or
    minor details? Is there an explanation?

[42]

Counsel
    acknowledges that the instruction tracks the specimen instruction provided in D.
    Watt,
Watts Manual of Criminal Jury Instructions
(2
nd
ed), Final 29-C

(Toronto: Thomson Carswell, 2015), at p. 373. He
argues
    that the instruction invites the jury to infer the truth of the allegations in
    the video-recorded statement from their consistency with the rest of L.F.s
    testimony.

[43]

This
    submission misunderstands the effect of s. 715.1. When a childs video-recorded
    statement is admitted under s. 715.1, the statement becomes part of the childs
    in-court testimony as if the child were giving the statements on the videotape
    in open court:
R. v. F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 45. It
    falls to the jury to assess the entirety of the childs evidence, which
    includes the video-recorded statement and her in-court testimony. In making
    that assessment, the jury will have regard to a variety of factors, including
    internal consistencies and inconsistencies in the childs testimony.

[44]

Juries
    are routinely told to consider the entirety of a witnesss testimony when
    assessing the reliability of that witnesss evidence. Consistencies and
    inconsistencies in a witnesss testimony are relevant to that assessment. In
    this case, L.F.s video statement became part of her testimony. Consequently,
    as with any witness, the jury had to look at the entirety of her testimony,
    including the video-recorded statement and the in-court testimony, and consider
    whether any consistencies or inconsistencies within the entirety of her
    testimony shed light on the reliability of that testimony. To treat the video
    statement solely as a prior statement distinct from her testimony would defeat
    the purpose of s. 715.1.

[45]

The
    trial judges instructions parallel the analysis made by the trial judge in
F.
    (C.C.)
, [1993] O.J. No. 4241 (C.J.)
    and approved by the Supreme Court
. The instructions in this case,
    like the trial judges reasons in
F. (C.C.)
, identify both
consistencies and inconsistencies between
    the video-recorded statement and the trial testimony. Both factored into the
    assessment of the overall reliability of the childs evidence. The trial judge
    made no error in her s. 715.1 instruction.

[46]

The
    final submission relating to the prior statements of L.F. arises out of the
    trial judges failure, when reviewing the evidence relevant to each count, to
    repeat for a third time her instruction that the out-of-court statements of
    L.F. were not admissible for their truth. The trial judge had first told the
    jury that an out-of-court statement by L.F. was not admissible for its truth
    during L.F.s cross-examination, telling the jury:

[T]hose kinds of statements arent usually admissible and they
    cannot be used as proof of the offences that are before you. All that extra
    statement can be used for is as a tool for you to assess [L.F.s] credibility. So
    its not proof of the offence having occurred, its merely a tool for you to
    assess her credibility ultimately.

[47]

The
    trial judge gave a similar direction in her final instructions to the jury. When
    instructing the jury on prior inconsistent statements generally, the trial
    judge told the jury that it could use the out-of-court statements as evidence
    of what actually happened only if the witness adopted the out-of-court
    statement as true during his or her testimony. The trial judge also addressed
    L.F.s prior statements and specifically told the jury:

I must instruct you not to look to the content of the
    statements as proof that a crime has been committed.

[48]

The
    trial judge did not repeat this instruction when reviewing the evidence
    relevant to each count. No one asked her to do so. I am not satisfied that a
    further repetition of the instruction was essential to an adequate jury charge.
    L.F.s prior statements were repeatedly presented to the jury by counsel and
    the trial judge as central to the assessment of the reliability of her in-court
    testimony. No one suggested the statements provided proof of the alleged
    offences. The two limiting instructions given by the trial judge were
    sufficient to avoid the risk that the jury would misuse the prior out-of-court
    statements made by L.F.

(iii)

The instruction on the evidence of the appellants possession of child
    pornography

[49]

At
    trial, the Crown proposed to show the jury the various images and videos found
    on the appellants computers and the CDs seized from his apartment that the
    Crown alleged constituted child pornography. The Crown estimated that viewing
    the material would take between 1 and 1½ hours. The children shown in some of
    the material were very young, the material was sexually graphic and, as the
    Crown acknowledged, disturbing.

[50]

The
    trial Crown contended that the jury should view the material because the nature
    of the content of that material was an essential element of the charge of
    possession of child pornography (count 4). The Crown further submitted that the
    relevance of the evidence was not diminished even if the appellant was prepared
    to concede through counsel that the material met the definition of child
    pornography. The Crown argued that the actual content of the material and its
    close proximity on the CDs to music and other material that the Crown claimed could
    be shown to have been used by the appellant could assist the jury in deciding
    who among the people with access to the computer had downloaded and viewed the
    child pornography. On appeal, the Crown also argued that the amount of the
    material on the computer and CDs said to constitute child pornography was
    relevant to whether the appellant was knowingly in possession of that material.

[51]

The
    trial Crown did not suggest that viewing the images could support any aspect of
    L.F.s testimony.
[1]
As to the relevance of the child pornography to counts 1-3, the Crown said:

[J]ust so Im clear, Im not seeking to tender the child
    pornography evidence in regards to counts one, two and three. Actually, lets
    put it this way. I shouldnt, I shouldnt say that. It is possible.
Im not
    determined on the admissibility of the child pornography evidence vis-à-vis
    counts one, two and three. Potentially, there is an argument that it would
    demonstrate motive, that if the jury were satisfied that [the appellant] possessed
    the child pornography, it could be viewed as motive to molest a child in a
    similar fashion.
But parking that issue for the time being, without
    question, I mean, theres no severance here and these counts are together so
    were left to deal with it as is, clearly, the primary admissibility of the
    evidence is in respect of count four, which is to prove the offence. [Emphasis
    added.]

[52]

The
    defence submitted that the jury should not view the material. The defence
    argued that the actual viewing of the material could not assist the Crown in
    proving that the appellant had the requisite control and knowledge of the
    material to establish his possession. The defence indicated that the nature of
    the material was not in issue and that if a Crown expert opined that the
    material constituted child pornography, the defence would not challenge that
    assertion. Defence counsel argued that requiring the jury to look at over an
    hour of graphic child pornography would irreversibly inflame the jury against
    the appellant, were the jury to decide that it was his pornography. Defence
    counsel did not specifically address the relevance of the child pornography to
    counts 1-3.

[53]

In
    her ruling, the trial judge acknowledged the relevance of the content of the
    material to count 4. She also referred to the Crowns argument of the potential
    relevance of the evidence to counts 1 to 3. She then observed:

I do not think that the prejudice of viewing such inflammatory
    material does outweigh the probative value. I am concerned that the jury will
    improperly use this evidence as evidence of [the appellants] guilt on the
    first three counts.

[54]

The
    trial judge, in an effort to mitigate the prejudice she had identified, ruled that
    the jury would not be allowed to see the material, but that the investigating
    officer could testify and describe the contents of the material containing the
    child pornography. The investigating officer described the material in considerable
    detail. She referred to the titles, some very graphic, and described the
    physical activities, some of which involved sexual acts, including intercourse
    and fellatio between adults and very young children. The investigating officer
    also described the reactions of the children who were being subjected to the sexual
    abuse.

[55]

The
    officers description of the explicit sexual activities involving adults and very
    young children could well upset even the most reasonable and dispassionate of
    people. Her description of the reaction of one of the children who was being
    subjected to sexual abuse can only be described as heartbreaking.

[56]

Neither
    the Crown nor the defence offered any submissions as to the relevance of the child
    pornography to counts 1-3 before the trial judges charge. The Crown did not argue
    in its closing submissions that the evidence of the appellants possession of
    child pornography was relevant to counts 1-3.

[57]

In
    her instructions, the trial judge told the jury:

You must not use the evidence that relates only to one charge
    in making your decision on any other charge. You must not use evidence from one
    charge that the accused was the sort of person who would commit the offences and
    the other charges and on that basis infer that [the appellant] is in fact
    guilty.

[58]

The
    trial judge told the jury that she would go through each of the four counts individually
    and explain the law and the issues arising on each count. She also told the
    jury she would summarize some of the evidence as she went through each count.

[59]

The
    trial judge began her instructions with the essential elements of count 1 (sexual
    assault). She reviewed at length the evidence relevant to count 1. The trial
    judge made no reference to the appellants alleged possession of the child
    pornography in this part of her summary of the evidence. The trial judge repeated
    the process in respect of counts 2 and 3, although she did not review any of
    the evidence as it was the same evidence that she had reviewed on count 1.

[60]

The
    trial judge next turned to count 4, the charge of possession of child
    pornography. As with counts 1-3, she set out the essential elements of the
    offence and then reviewed the evidence that, pertained particularly to this
    count. The trial judge summarized the evidence relating to the seizure of the
    material, but did not repeat the detailed description of the contents of the material.
    She reminded the jury of the defence evidence that the appellants niece had
    downloaded the child pornography onto the computer.

[61]

The
    trial judge did not expressly instruct the jury that evidence that the
    appellant was in possession of child pornography could not be used by the jury
    in considering their verdicts on counts 1-3. She was not asked to give any
    limiting instruction beyond the instruction described above.

[62]

As
    I read the trial record, the trial judge intended that the evidence of the
    appellants possession of child pornography should be considered by the jury
    only in respect of count 4, the possession charge. The crucial question is
    whether her instructions achieved that intended purpose. However, before
    addressing that question, I will consider the Crowns contention on appeal, that
    the evidence of the appellants possession of child pornography was in fact admissible
    on the sexual abuse charges in counts 1-3.

[63]

The
    Crown contends that evidence that the appellant was in possession of child
    pornography at the same time as he was allegedly abusing L.F. provided evidence
    of motive. The Crown uses the word motive in the Wigmorian sense, as evidence
    of a prior emotion that precipitates the conduct which is the subject of the
    allegation: J.H. Wigmore,
Evidence in Trials at Common Law
, vol. IA
    (Boston: Little, Brown & Co., 1983), at paras. 117-18;
R. v. Malone
(1984), 11 C.C.C. (3d) 34 (Ont. C.A.), at p. 43, leave to appeal to SCC refused,
    [1984] S.C.C.A. No. 272;
R. v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d)
    373, at paras. 64-66.

[64]

On
    the Crowns argument, proof of the appellants conduct  his possession of
    child pornography  permits the inference that the appellant had an interest in
    sexual activity with children  a motive. The existence of the motive is a
    piece of circumstantial evidence which, taken with the rest of the evidence,
    can support the contention that the appellant sexually abused L.F.

[65]

Motive
    is a kind of circumstantial evidence. Motive is relevant if, considered in the
    context of the rest of the evidence, the alleged motive has a logical tendency
    to contribute to a finding about the material fact: D.M. Paciocco & L.
    Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law Inc., 2015),
    at p. 32. The Crowns argument that the appellants possession of child
    pornography is relevant and therefore
prima facie
admissible on counts
    1-3 can succeed only if three inferences are reasonably available on the
    totality of the evidence.

Inference #1:

It can be inferred from the
    appellants possession of child pornography that the appellant had an interest
    in watching sexual activity involving adults and young children.

Inference #2:

It can be inferred from the appellants interest in watching
    sexual activity involving children and adults that he had an interest in
    engaging in sexual activity with young children.

Inference #3:

It can be inferred from the appellants interest in engaging in
    sexual activity with young children that he sexually abused L.F., as alleged in
    counts 1-3.

[66]

The
    first inference does not present any difficulty. While possession of child
    pornography may not conclusively establish that the possessor has an interest
    in watching sexual activity involving children, it provides a reasonable basis
    for the inference that he has that interest.

[67]

The
    second inference assumes a correlation between sexual activities that a person
    is interested in watching and sexual activities that the same person is
    interested in doing. It may be that the correlation exists. However, I think
    the existence of the correlation, and its nature, if one exists, is beyond the
    experience and knowledge of the normal judge or juror. Evidence of the relationship
    between an interest in watching sexual activity with children and an interest
    in engaging in that activity falls within the expertise of the social scientists.
    The second inference is the kind of inference that can only be drawn with the
    assistance of a qualified expert. If the Crown wanted to rely on that
    inference, it was incumbent on the Crown to lead proper expert evidence to
    support the availability of the inference: see
R. v. Mohan
, [1994] 2
    S.C.R. 9, at pp. 20-25;
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] S.C.J. No. 23, at paras. 19-23.

[68]

My
    conclusion that the second of the three inferences outlined above cannot be
    drawn renders the evidence of the appellants possession of child pornography inadmissible
    on counts 1-3. However, for the sake of completeness, I will consider the
    availability of the third inference, assuming the second inference can be
    drawn.

[69]

When
    one speaks of motive in the sense of an emotion that compels an act, one can
    use the word to refer to a very specific emotion, e.g. the anger a person feels
    towards a spouse at the moment he learns of the spouses infidelity, or to a
    much more general emotion, e.g. a persons dislike of persons in authority. The
    former kind of motive can be very probative of the accuseds conduct toward the
    target of his anger at the point in time close to the event giving rise to the
    anger. The latter kind of motive, because of its generality, says little about
    the conduct of an accused toward a specific person at a specific time. Motive
    used in this latter sense is essentially indistinguishable from evidence of
    disposition and should, for the purpose of admissibility, be analyzed as
    evidence of disposition: see
Morris v. The Queen
, [1983] 2 S.C.R. 190
, per Lamer J.
    (dissenting in the result, but for the court on this issue), at pp. 202-204;
Cloutier
    v. The Queen
, [1979] 2 S.C.R. 709, at pp. 735-36; see also
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 87-89.

[70]

Evidence of an accuseds disposition, particularly if that
    evidence consists, as it usually does, of discreditable conduct, is generally
    inadmissible against an accused. Its exclusion is justified either because it
    is irrelevant to a fact in issue, or even if relevant, its potential
    prejudicial effect outweighs the potential probative value:
Handy
, at paras. 31-40;
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras.
81-89
.

[71]

In
Handy
, the accused was charged with sexual assault causing bodily
    harm. The Crown sought to lead evidence from the accuseds former wife of seven
    incidents in which he had allegedly physically and sexually abused her. The
    Crown argued that the evidence was admissible to show that the accused took
    pleasure from sex that was painful to his partner and would not take no for an
    answer from that partner. The Crown in this case would describe this sexual
    proclivity as the accuseds motive.

[72]

With
    his customary clarity, Binnie J. explained why the assaults on the ex-wife were
    not relevant to the charge before the court, at para. 86:

At a more specific level, it is alleged here that the
    propensity to violence emerges in this respondent in a desire for hurtful sex.
This
    formulation provides more context, but the definition of so general a
    propensity is still of little real use, particularly when it is sought to use
    propensity not to predict future conduct in a general way, but to conclude
    that the respondent is guilty of acting in a specific way under the specific
    circumstances on December 6, 1996 alleged by this complainant.
[Emphasis added.]

[73]

Justice
    Binnie has put his finger directly on the reason the evidence of the
    appellants possession of child pornography is not relevant to the charges in
    counts 1-3. Even if that evidence shows a general propensity to engage in
    sexual activity with children such that one could say that it supports the
    inference that the appellant has at some time, or will at some time, engage in sexual
    activity with children, the evidence of his possession of the child pornography
    does not say anything about what the appellant did on the specific occasions referred
    to by L.F. Indeed, the argument for admissibility was stronger in
Handy
,
    given that the evidence was based on actual prior assaultive behaviour, as
    opposed to the evidence of the appellants possession of child pornography
    which potentially shows only an interest in engaging in sexually assaultive
    behaviour: see also
R. v. W.B.
(2000), 145 C.C.C. (3d) 449 (C.A.), at
    paras. 97-101;
R. v. C.J.
, 2011 NSCA 77, 276 C.C.C. (3d) 454, at
    paras. 35-39.

[74]

In
    coming to the conclusion that evidence of the appellants possession of child
    pornography was not relevant on counts 1-3, I stress the absence of any
    evidence linking that possession to the allegations in those counts. For
    example, unlike the evidence in
C.J.
, there was no suggestion that the
    appellant showed L.F. child pornography or somehow used it as a prelude to the
    assaults: see also
R. v. Thompson
,
[1918] A.C. 221 (H.L), per Lord Sumner, at pp. 233-35. I would add that even if
    there was evidence connecting the appellants possession of child pornography
    to the alleged abuse of L.F. that connection would establish relevance, but
    would not necessarily make the evidence admissible. A trial judge would still
    have to decide whether the probative value of that evidence outweighed its
    obvious prejudicial effect: see
C.J.
,
    at paras. 32-46.

[75]

The
    admission of the evidence of the child pornography through the detailed
    descriptions provided by the investigating officer posed two significant
    dangers to the appellants right to a fair trial on counts 1-3. First is moral
    prejudice. If the jury was satisfied the appellant was in possession of the material
    described by the officer, the jury would no doubt infer that the appellant watched
    the material and enjoyed watching it. Those inferences would inevitably lead
    the jury to view the appellant as a despicable and potentially dangerous
    person. Viewing the appellant through this moral and emotional lens, a jury might
    not be inclined to vigorously apply concepts like the presumption of innocence that
    are intended to protect the appellant.

[76]

On
    top of the moral prejudice flowing from the nature of the material, there was a
    real risk of reasoning prejudice. Specifically, that the jury would use
    evidence of the appellants possession of child pornography as evidence that he
    had committed the acts alleged in counts 1-3. Disposition based reasoning,
    while generally not permitted to establish criminal liability, is hardly foreign
    to the reasoning processes that jurors use in their day-to-day lives. Again, I
    borrow the words of Binnie J. from
Handy
, at para. 39
:

It is, of course, common human experience that people generally
    act consistently with their known character. We make everyday judgments about
    the reliability or honesty of particular individuals based on what we know of
    their track record. If the jurors in this case had been the respondents
    inquisitive neighbours, instead of sitting in judgment in a court of law, they
    would undoubtedly have wanted to know everything about his character and
    related activities. His ex-wifes anecdotal evidence [the disposition evidence]
    would have been of great interest. Perhaps too great

[77]

The
    potential prejudice to the appellant on counts 1-3 of the evidence of his
    possession of child pornography was, in my view, very real and potentially
    insurmountable. It probably would have been better had count 4 been severed
    from counts 1-3. There was no severance application and the trial judge cannot
    be criticized for failing to sever on her own initiative.

[78]

The
    trial judge was faced with a single trial on all four counts. The appellants
    possession of child pornography was central to the verdict on count 4. In that
    circumstance, only a clear, sharp and emphatic instruction to the jury that it
    could not use the evidence of the appellants possession of child pornography in
    any way in determining culpability on counts 1-3 could have overcome the
    potential prejudice of that evidence to the appellant on counts 1-3. The trial
    judge had to expressly tell the jury that if they found that the appellant was
    in possession of the child pornography, that finding was not evidence in
    relation to counts 1-3 and could play no role of any kind in the jurys
    determination whether the Crown had established the appellants guilt on counts
    1-3. The trial judges instruction to the jury to consider each count separately,
    and her subsequent instructions that followed that approach did not provide an adequate
    safeguard against the potential misuse on counts 1-3 of the evidence that the
    appellant was in possession of child pornography. The convictions on counts 1-3
    cannot stand.

IV

THE SENTENCE APPEAL

[79]

The
    trial judge gave the appellant 2:1 credit for 71 days served after his arrest
    and before his release on bail (142 days credit). The trial judge, however,
    only gave 1:1 credit for the 128 days the appellant served between his
    conviction and sentence. The reasons for sentence do not address the different
    treatment of these two time periods.

[80]

Counsel for the Crown and the appellant agree that based on
R. v.
    Summers
, the appellant should have been given 2:1 credit for the entire
    period of presentence custody. He is entitled to a further 128 days credit. Giving
    him that credit, I would reduce his sentence on the possession of child
    pornography charge to time served.

V

CONCLUSION

[81]

I
    would allow the conviction appeal on counts 1-3, quash those convictions and
    order a new trial. I would dismiss the conviction appeal on count 4. I would allow
    the sentence appeal on count 4 and vary the sentence to time served.

RELEASED: DD  JUN 04 2015

Doherty J.A.

I agree E.A. Cronk
    J.A.

I agree C.W. Hourigan
    J.A.

[1]
In out-of-court statements, L.F. had referred to the appellant watching adult
    pornography in her presence. She did not give that evidence in her trial
    testimony.


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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.L.,
    2015 ONCA 487

DATE: 20150630

DOCKET: C55930

Cronk, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. L.

Appellant

Michael Davies, for the appellant

Roger Shallow, for the respondent

Heard: April 24, 2015

On appeal from the sentence imposed on May 18, 2011 by
    Justice
Célynne S.
Dorval of the Ontario Court of
    Justice.

Huscroft J.A.:

[1]

The appellant appeals from the sentencing judges decision declaring him
    a dangerous offender and sentencing him to an indeterminate term of
    imprisonment. The appellant conceded on the Crowns application that he meets
    the criteria required to be designated as a dangerous offender and his
    concession was accepted by the sentencing judge. The only issue was whether the
    appellant should be given an indeterminate sentence or a determinate sentence
    followed by a long-term supervision order. The sentencing judge concluded there
    was no reasonable possibility of the eventual control of the appellant in the
    community and sentenced him to an indeterminate sentence.

BACKGROUND

[2]

The appellant is a 36-year-old man with a lengthy record of sexual
    assault and assault dating back to 1993, when he was a young offender. His
    criminal record includes the following convictions (and corresponding
    sentences):

1993  2
    counts of sexual assault (12 months probation concurrent)

1993
    Assault (12 months probation)

1997  2
    counts of sexual assault (4 months imprisonment and 2 years                     probation
    concurrent)

1998  Sexual assault (60 days imprisonment and 20 days
    pre-sentence custody)

1998
    Assault (suspended sentence and 12 months probation)

2001  Assault of peace officer (1 day imprisonment, 36 months
    probation, and 4 months pre-sentence custody)

2002  Sexual
    assault (3 months imprisonment), assault of peace officer (1                       day
    imprisonment and 48 days pre-sentence custody), and assault                     (3
    months imprisonment concurrent)

2005  Sexual assault (2 years less a day imprisonment, 3 years
    probation, and 20 months pre-sentence custody), unlawfully in dwelling house
    (2 years less a day imprisonment, concurrent, and 3 years probation), and
    uttering threats (2 years less a day imprisonment, concurrent, and 3 years
    probation).

[3]

The appellant is deaf and communicates primarily through sign language.

[4]

At trial in 2009, the appellant pleaded guilty to the predicate offences
    (one count of sexual assault and one count of breach of probation). The
    appellant exposed himself to the complainant in the laundry room of the
    apartment building where they both lived. He grabbed her crotch area and tried
    to hold her arms. The complainant pushed the appellant off and he left the
    laundry room. Shortly afterwards, the appellant knocked on the door to the
    complainants apartment and pushed a note under her door. In the note he
    apologized and asked her to have sex with him. He returned to the complainants
    apartment a few minutes later asking that she not get him in trouble. He slid a
    second note under her door again asking her to have sex.

[5]

The matter was adjourned for assessment and associated matters and the
    Crown brought a dangerous offender application in 2011.

TREATMENT HISTORY

[6]

The appellant has a lengthy history of involvement with mental health
    professionals. He has been treated for various sexual and behavioural
    disorders, in one form or another, since at least 1994. His clinical history includes
    the following assessments:

·

1997  Dr. Dickey noted the appellants unwillingness to take
    medication, his impulsivity and lack of appreciation of the consequences of his
    behaviour. The appellants refusal to take medication was also noted by Dr.
    Dickey in 1998. In Dr. Dickeys opinion, the appellant posed a significant risk
    for aggressive behaviour both sexual and otherwise.

·

1997  Dr. Sloman noted the appellants unwillingness to take
    medication on a regular basis and his impulsivity, in addition to his low
    frustration tolerance and distrust of others.

·

2001  Dr. Ward reported some success in treating the appellant
    with antipsychotic drugs. She considered that the appellants hypersexuality
    and psychosis were consistent with bipolar or schizoaffective disorder but did
    not make a definite diagnosis. She confirmed that he suffered from paraphilic
    disorder and polysubstance abuse.

·

2002  Dr. Fedoroff provided an opinion on the use of
    antiandrogens and nonphamaracological measures. Dr. Fedoroff reported that the
    appellant would be willing to try antiandrogen drugs so long as the effects
    were reversible. He recommended increasing the appellants antipsychotic drug
    and adding an antiandrogen drug if the appellants sexual behaviour were not
    controlled.

·

2004  Dr. Ward again assessed the appellant after he was charged
    with sexual assault. The appellant admitted that he was not taking his oral
    medication and that his sex drive decreased after he received intramuscular injections.
    Dr. Ward noted the appellant was difficult to treat because his psychotic
    symptoms interfered with his treatment and he did not fit the criteria for
    schizophrenia or bipolar disorder. His treatment was further complicated by his
    deafness and communications difficulties.

·

2005  Dr. Fedoroff conducted a sexual behaviours assessment. The
    appellant expressed a desire to resume treatment with Dr. Ward and a
    willingness to take medication to reduce his sex drive. Dr. Fedoroff
    recommended antiandrogen medication.

·

2005  Dr. Ward recommended a treatment plan for the appellant
    that included intramuscular forms of antipsychotic and antiandrogen medication,
    along with various forms of counselling and community support, to be continued
    throughout the community supervision portion of his sentence. Dr. Ward
    expressed the view that the appellants risk of reoffending would be reduced to
    a low level with full participation in the program she recommended and that he
    could be managed in the community.

·

2005  Dr. Hector assessed the appellant while he was
    incarcerated at the St. Lawrence Valley Correctional and Treatment Centre. He
    expressed the view that the appellant responded well to medication in an
    institutional setting but was at high risk of recidivism and that compliance
    could not be assured when the appellant returned to the community.

·

2006  Dr. Grey assessed the appellant while he was living at a
    supervised home. The appellant informed him that he did not want to take
    medication and wanted to solve his problems on his own.

EXPERT EVIDENCE AT DANGEROUS OFFENDER HEARING

[7]

The appellant was assessed by two psychiatrists, Dr. Pallandi and
    Dr. Gojer, for the purposes of the dangerous offender hearing. Both
    testified on the appellants long term risk and treatability. In addition, Dr. Ward
    reported to the Court on the question of criminal responsibility. The appellant
    admitted to Dr. Ward that he had stopped taking his medication in 2008.
    Dr. Ward noted that the appellant continued to show poor insight into his
    need to take medication unless he is incarcerated.

[8]

Dr. Pallandi agreed with Dr. Ward that the appellant has a psychotic
    disorder not otherwise specified and that he has difficulty controlling his
    impulses, planning, and using language. He described the appellant as having a
    courtship disorder and suffering from an antisocial personality disorder. He expressed
    the opinion that the various treatments required by the appellant could only be
    provided in a secure setting in order to ensure that they are provided concurrently.

[9]

Dr. Gojer expressed the view that the appellant has a schizoaffective
    disorder that causes him to lose touch with reality. He agreed that this could
    also be diagnosed as a psychotic disorder not otherwise specified and that the
    treatment for both conditions was the same. He agreed that the appellant also
    likely suffers from Fetal Alcohol Syndrome, polysubstance abuse, sexually
    deviant behaviour, and has severe social skills deficits.

[10]

Both
    Dr. Pallandi and Dr. Gojer expressed the view that the appellant poses a high
    risk of reoffending. Dr. Pallandi described the appellant as being at a high
    or even very high risk of recidivism with respect to sexual offences, noting a
    progression in the intrusiveness of the appellants conduct towards women of
    all ages who may come into contact with him. He was not optimistic about
    controlling the risk posed by the appellant. Dr. Gojer described the appellant
    as being at a high risk to reoffend, but expressed the view that there is a
    reasonable possibility of controlling the risk presented by the appellant
    following treatment in a corrections institute, if the appellant is supervised
    and receives the recommended treatments concurrently. He added that the risk
    increased if one component of the treatment was missing.

THE SENTENCING JUDGES REASONS FOR DECISION

[11]

The
    sentencing judge rejected the Crowns position that the appellant bore the
    burden of establishing manageability in the community. She noted that the overall
    objective of the dangerous offender legislation is the prevention of future
    offences and the protection of the public. As a result, the sentencing judge
    stated, at para. 107, that there must be more than an expression of hope
    concerning a reasonable possibility of eventually controlling the offenders
    risk in the community. There must be evidence of treatability indicating that
    the offender can be treated within a definite period of time. She understood
    the reasonable possibility concept as requiring a degree of realism.

[12]

The
    sentencing judge noted the requirement of an evidentiary basis for
    contingencies in a proposed treatment plan, as well as the need to make a
    finding concerning the appellants present and future willingness to take his
    medication. She stated, at para. 112, that eventual control of the risk posed
    by the appellant requires a determination that the risk posed by the offender
    will be controlled not only during the supervision order, but also at the
    conclusion of that order, when the offender is no longer supervised. Citing
    this courts decision in
R. v. D.V.B
., 2010 ONCA 291, 100 O.R. (3d) 736,
    at para. 57, she noted that all that is required is that there be a reasonable
    possibility that such control can be achieved.

[13]

The
    sentencing judge found that Dr. Pallandi and Dr. Gojer identified numerous risk
    factors including the appellants psychotic and sexual deviant disorders; his
    inability to control his impulses; his substance abuse issues; his
    unwillingness to comply with medication; his isolation as a result of his deafness;
    and his deafness. She found that the appellant requires an extensive and varied
    package of treatment, which she summarized as follows, at para. 116:

-

Sex
    offending counselling to deal with: childhood abuse, self-esteem, consensual
    behaviour, respect towards women, and management of sexual impulses;

-

Psychological
    treatment while in custody to deal with: cognitive development, life skills,
    socialization development, empathy development, impulsivity control tools,
    independent living skills, and anger management;

-

Intramuscular
    anti-psychotic and anti-androgen medication;

-

Residence
    in a supervised all-male setting upon release;

-

No
    access to pornography;

-

No
    access to drugs and alcohol;

-

Supervision
    by males; and

-

Supervision
    by staff with training as to signs of relapse.

[14]

The
    sentencing judge noted, at para. 116, Dr. Gojers opinion that the appellant
    requires one-on-one counselling for the first 7-10 years.

[15]

The
    sentencing judge found that although anti-psychotic medication assists the
    appellant in dealing with his psychosis, it does not deal with all of his
    sexual offending and impulsive behaviours, at para. 117. Moreover, she
    concluded that Selective Serotonin Reuptake Inhibitors (SSRIs) were
    ineffective to curb the appellants sexual behaviour and were not injectable in
    any event, at para. 118. The sentencing judge noted, at paras. 119-20, the
    appellants long history of non-compliance with medication, not only because of
    its side effects but also because of his total lack of insight in his mental
    illness and his sexual deviance disorder. She found that the appellant would
    only comply with the requirement to take medication if he is constantly
    supervised to do so and feels forced to do so. Deterrence has had little effect
    on [him] in the past I find that [he] would not consistently take
    anti-psychotic and anti-androgen medication willingly after the maximum period
    of supervision under [a Long Term Offender (LTO) designation], at para 123.

[16]

Concerning
    psychological treatment, the sentencing judge found no evidence that the
    various counselling programs the appellant requires could be offered
    concurrently in the community by male-only counsellors on a one-on-one basis.

[17]

The
    sentencing judge concluded, at para. 127:

My findings that he will continue to resist to take medication
    and that the concurrent counseling he requires cannot be provided in the
    community, lead me to the conclusion that there is no reasonable possibility of
    eventual control over the risk he poses.

ISSUES

[18]

The
    appellant raises three grounds of appeal. First, the appellant submits that the
    sentencing judges decision to impose an indeterminate sentence was
    unreasonable. Second, the appellant says the sentencing judge misapprehended
    the evidence concerning his compliance with medication. Third, the appellant
    submits that the sentencing judge failed to consider the states obligation to
    provide him with sign language interpretation as required by the Supreme
    Courts decision in
Eldridge
v. British Columbia (Attorney General)
,
    [1997] 3 S.C.R. 624.

[19]

I
    address each ground below.

ANALYSIS

Issue One
: Was the
    sentencing judges decision to impose an indeterminate sentence unreasonable?

[20]

The
    sentencing judge conducted a detailed review of the evidence and her findings
    are to be accorded deference:
R.
    v. I.M.C
., 2014 ONCA 312,
    120 O.R. (3d) 1, at para. 70;
R. v. Ramgadoo
, 2012 ONCA
    921, 300 O.A.C. 149, at para. 42.

The question is whether her decision is unreasonable.

[21]

The
    appellant argues that he need not demonstrate either that he can be cured of
    the underlying causes of his criminality or that the risk to the community he
    poses can be reduced to zero. He submits that the sentencing judge had to be
    satisfied only that there was a reasonable possibility that a penitentiary
    sentence followed by a ten-year supervision order would reduce his risk of
    reoffending to an acceptable level.

[22]

I
    note that the reasonable possibility standard was used at the dangerous
    offender hearing by agreement of the parties. The
Criminal Code
,
    R.S.C. 1985, c. C-46 was amended in 2008 and as a result, under s. 753(4)(b) or
    (c), a sentence of detention in a penitentiary for an indeterminate period is
    now required unless there is a reasonable expectation that a lesser measure
    will adequately protect the public.

[23]

This
    court has not determined whether there is any meaningful distinction between
    the reasonable possibility and reasonable expectation standards. However,
    several courts have held that the reasonable expectation standard is more
    exacting than the former reasonable possibility threshold: see
R. v.
    Osborne
, 2014 MBCA 73, 306 Man. R. (2d) 276, at paras. 72-73, and the
    cases cited therein.

[24]

The
    difference between the standards was not argued in this case and it is not
    necessary to determine the matter for purposes of this appeal. The appellant
    did not argue that he had been disadvantaged by application of the reasonable
    possibility standard and there is no reason to assume that he was in fact
    disadvantaged. On the contrary, it is arguable that the reasonable expectation
    standard is
more difficult
to meet than the reasonable possibility
    standard. To the extent that this is so, I agree with the Crowns submission
    that the application of the reasonable possibility standard inured to the
    benefit of the appellant.

[25]

The
    sentencing judge summarized Dr. Gojers opinion regarding the eventual control
    of the appellants risk, as follows, at para. 86:

Dr. Gojer stated that he believed that if [the appellant]
    received treatment in the penitentiary and all of his recommendations were put
    in place upon release, it would be theoretically possible that control would be
    achieved within 10 years.

[26]

She
    also stated, at para 127:

[I]f all [Dr. Gojers] recommendations were put in place it
    would be theoretically possible to achieve control of the risk posed by [the
    appellant] within 10 years.

The sentencing judge added that the Court could not
    deal with theoretical possibilities when the protection of the public is at
    stake.

[27]

The
    appellant takes issue with the sentencing judges characterization of
    Dr. Gojers opinion. Specifically, the appellant states that Dr. Gojer did
    not express the view that reasonable control of his risk in the community was
    only theoretically possible.

[28]

A
    review of Dr. Gojers opinion and testimony confirms that he did not use the
    term theoretically possible. The transcript records the following testimony:

Examination-in-chief

Q: And can you tell the Court what your opinion is with respect
    to the reasonable possibility of managing [the appellant] in the community?

A:  In terms of reasonable possibility, again, these are
    difficult concepts as a psychiatrist to even comment on. All I can say is that
    I know that his major mental illness which has a connection with his sexual
    offending can be treated. Its possible that the antipsychotic drugs will
    contain him. Superimposed on that we have the use of antiandrogens which has
    never been tried on him. There is a reasonable likelihood that the use of
    antiandrogens will contain [the appellant].

If you ask me: how do I add up all these treatments? Would that
    mean theres a reasonable possibility of eventual control? There are two components
    to the reasonable possibility of eventual control. I believe that these
    treatments will work under the supervision of a parole officer, but the second
    component is a more difficult question to answer for you. That question is:
    what would happen to [the appellant] after the long-term offender designation
    is over? Now, thats a very difficult question for me as a psychiatrist to
    answer. I cannot make a prediction. In fact, I am not making any predictions.
    Im using my clinical knowledge to tell you, the Court, how this individual can
    be managed.

I still believe that when I take into consideration the
    treatments, the likelihood of him maturing over a 10-year period, slowing down
    in terms of impulsivity, slowing down in terms of the antisocial behaviours that
    weve talked about, combining with the social network that can be created over
    a 10-year period, that is why in my report I wrote there is a reasonable
    possibility of eventual control. (pp. 833-8)

Cross-examination

Q: Are you prepared to say there is an ascertainable time
    period when he will no longer require those things and he can then live in a
    community on his own and not pose a danger to the public?

A: Im saying that from a clinical perspective, given that
    these other parameters are available, like the
Mental Health Act
, I
    believe that within a 10-year period if he received a period of time
    incarcerated and received that counselling, that clinically its possible.

[29]

It
    is clear that although Dr. Gojer expressed the opinion there was a reasonable possibility
    of eventual control of the appellants risk in the community, he described this
    as a reasonable possibility at a clinical level rather than a theoretical
    possibility.

[30]

In
    my view, however, the difference in terminology is insignificant. Neither Dr.
    Pallandi nor Dr. Gojer could predict whether the high to very high degree of
    risk posed by the appellant could be controlled in the community. It was for
    the sentencing judge to determine whether there was a reasonable possibility of
    eventual control and she did not find that there was such a possibility.

[31]

The
    sentencing judges conclusion is supported by Dr. Pallandis assessment of
    the appellants prospects, which was more pessimistic than Dr. Gojers. Having
    regard to the evidence as a whole, it was open to the sentencing judge to
    regard Dr. Gojers evidence as somewhat speculative in light of the complex
    combination of factors involved in treating the appellant. Her use of the term
    theoretically possible can be understood in this context.

[32]

The
    sentencing judge found that although the appellant responds positively to
    medication, he has a long history of non-compliance based not only on the side
    effects of the medication but his lack of insight into his mental illness and
    sexual deviance disorder. The sentencing judge found, further, there was no
    evidence that counselling would change the appellants insight: he would comply
    only if he is constantly supervised to do so and feels forced to do so, and
    that he would not consistently take medication willingly after the maximum
    period of supervision under an LTO designation. She also found that the concurrent
    and varied treatment the appellant requires on all of the issues was available
    only in custody.

[33]

These
    findings are amply supported by the record. Accordingly, in my view, the
    sentencing judges decision to sentence the appellant to an indefinite term of
    imprisonment is not unreasonable.

Issue Two
: Did the
    sentencing judge misapprehend the evidence concerning the appellants
    medication compliance?

[34]

The
    appellant argues that although the sentencing judge was correct to be sceptical
    about his future compliance with medication, a long term supervision order
    would provide oversight for the taking of medication and force compliance, and
    a failure to comply would result in re-incarceration. He also argues that the
    sentencing judge made findings concerning his impulsiveness and difficulty with
    abstract concepts that were not supported by the evidence, and that she failed
    to consider the potential improvement to his condition that 10-15 years of
    therapy prior to termination of the supervision order would yield.

[35]

There
    is no disagreement that the appellant requires anti-psychotic and sex drive-reducing
    medication for the rest of his life. Nor is there any disagreement that the
    appellant has repeatedly failed to take this medication in the past. The
    sentencing judge accepted Dr. Pallandi and Dr. Gojers evidence that the
    appellant has little insight into his mental illness and sexual deviance
    disorder and found that there was no evidence that counselling would improve
    his insight. Her conclusion on medication is set out in this passage at para.
    123:

When he is facing sentencing and is being assessed, he says he
    will consent to medication to lower his sex drive but does not comply when it
    is prescribed. He even told Dr. Pallandi during his assessment that he would
    consent to take the medication until he was better. [The appellant] will only
    comply if he is constantly supervised to do so and feels forced to do so.
    Deterrence has had little effect on [the appellant] in the past. The
    possibility of imprisonment for breach of an LTO order would have little effect
    on a person who acts impulsively and who has difficulty with abstract concepts.
    He had been warned about the inevitability of dangerous offender proceedings
    by his probation officer and psychiatrist, yet re-offended. Even if breach
    charges did weigh sufficiently on his mind to convince him to take medication,
    I find that [the appellant] would not consistently take anti-psychotic and
    anti-androgen medication willingly after the maximum period of supervision
    under LTO.

[36]

In
    my view, the sentencing judge did not misapprehend the evidence. Her finding
    that the appellant would not consistently take his medication willingly is
    supported on the evidence that was before her. Moreover, as the Crown
    submitted, even if the requirement to take medication were a mandatory part of
    a supervision order, the appellants motivation/willingness to take the
    medication would remain relevant, as he could refuse to cooperate in taking it.

[37]

Finally,
    contrary to the appellants submission, the sentencing judges comments
    regarding the appellants impulsivity and difficulty with abstract cognitive
    functioning are well grounded in the record of the appellants clinical course
    and treatment.

[38]

I
    would reject this ground of appeal.

Issue Three
: Did the
    sentencing judge fail to consider the states obligation to provide sign language
    interpretation to the appellant as required by the Supreme Courts decision in
Eldridge
?

[39]

The
    appellant argues that the sentencing judge erred in finding there was no
    evidence that male-only counselling could be offered in the community or that
    sign-language interpretation for such counselling was available, and that these
    findings were based on a misapprehension of the evidence of Dr. Gojer and a
    failure to consider the decision of the Supreme Court of Canada in
Eldridge
concerning the states obligation under the
Canadian Charter of Rights and
    Freedoms

to provide sign language interpretation.

[40]

In
    my view, there is no merit to this ground of appeal.

[41]

Read
    in context, the sentencing judge found it unreasonable to expect that the
    concurrent counselling the appellant requires could be provided by male-only
    counsellors on a one-to-one basis in the community. The sentencing judge
    accepted the testimony from both Dr. Pallandi and Dr. Gojer that the appellant requires
    concurrent treatment for his various conditions and agreed with Dr. Pallandi
    that the array of concurrent treatment he requires could be achieved only in
    custody.

[42]

I
    am satisfied that the sentencing judge did not rule out a long-term supervision
    order on the basis that sign language interpretation was not funded in the
    community. Sign language interpretation is a component of the treatment the
    appellant requires and there is no dispute concerning the states
Charter
obligations to the appellant in this case. The Crown accepts the necessity and
    requirement of sign-language interpretation in the provision of medical and
    other treatments to offenders that are subject to state supervision, regardless
    of the nature of the sentence imposed.

DISPOSITION

[43]

Accordingly,
    I would dismiss the appeal.

Released: June 30, 2015 EEG

Grant
    Huscroft J.A.

I
    agree E.A. Cronk J.A.

I
    agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mahmood, 2015 ONCA 442

DATE: 20150616

DOCKET: M44911 (C59069)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Najam Mahmood

Applicant

Najam Mahmood, acting in person

Erin Carley, for the respondent

Heard: April 8, 2015

Application for appointment of counsel under s. 684 of
    the
Criminal Code
.

Watt J.A.:

[1]

Najam Mahmood had a business. He taught foreign exchange trading. He
    earned a lot of money. About $3,000,000. He also collected GST.

[2]

Mahmood was much better at earning money than at paying his bills. Tax
    bills, in particular. For the taxation years 2003 to 2006, Mahmood did not file
    any income tax returns. He paid no income tax. Nor did he remit the GST
    collected during those same years.

[3]

A jury found Mahmood guilty of eight counts of tax evasion. He has
    appealed his convictions. The Attorney General of Canada has appealed the
    sentence imposed at trial, the carceral portion of which Mahmood has already
    served.

[4]

Mahmood had a lawyer at trial. He is now self-represented. However, he
    wants a lawyer to pursue his appeal from conviction and to respond to the
    Crowns appeal from sentence. He also wants the Attorney General of Canada to
    pay for this lawyer, a request the Attorney General says is undeserving.

[5]

To this end, Mahmood filed an application under s. 684 of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
    In these reasons, I will explain why I reject Mahmoods application.

The Background Facts

[6]

Nothing more than a brief overview of the circumstances underlying
    Mahmoods convictions and the procedural course the proceedings have taken
    since conviction is required.

The Allegations

[7]

During a four year period between 2003 and 2006, Mahmood operated a business
    teaching foreign exchange trading. By his own admission, he earned revenues of
    nearly $3,000,000. He filed no income tax returns, thus paid no income tax for
    any of those taxation years.

[8]

Mahmood also collected GST, which he failed to remit to the Canadian
    Revenue Agency.

[9]

The prosecution alleged that Mahmood evaded payment of nearly $500,000
    in exigible taxes.

The Trial Proceedings

[10]

Mahmood
    was represented by privately-retained counsel at trial. The trial lasted three
    months. The jury found Mahmood guilty of eight counts of tax evasion in respect
    of the 2003 to 2006 taxation years.

[11]

The
    trial judge sentenced Mahmood to a term of imprisonment of 12 months, which the
    judge reduced to 11 months because of time spent in pre-trial custody. He was
    also ordered to pay a fine of $687,000 within ten years.

The Appellate Proceedings

[12]

On
    August 1, 2013 the Attorney General of Canada filed a notice of appeal against
    the sentence imposed at trial. The remedy sought is an increase in the carceral
    portion of the sentence and a reduction in the time within which Mahmood is to
    pay the fine.

[13]

About
    the same time the Attorney General filed the notice of appeal against sentence,
    Mahmood completed an Inmate Notice of Appeal against conviction. For reasons
    that are not readily apparent, that notice of appeal was not recorded as filed
    in this court until almost a year later.

[14]

Mahmood
    has served the carceral portion of his sentence. He has successfully completed
    his period of parole supervision.

The Pursuit of Legal Aid Funding

[15]

Mahmood
    applied for Legal Aid funding to retain counsel to act on his behalf on both
    appeals.

[16]

About
    a month after the notices of appeal had been filed or completed, Legal Aid
    Ontario notified Mahmood that his request for funding had been refused. The
    Area Committee refused the request because members of Mahmoods family, who are
    considered as part of the assessment unit for financial eligibility purposes,
    had not provided the financial information that Legal Aid Ontario had
    requested. The Committee concluded that Mahmood appeared to have access to
    financial resources to retain counsel privately.

[17]

Mahmood
    appealed this decision. Several months later, the decision to deny funding on
    the basis of incomplete financial disclosure was affirmed.

The s. 684 Application

[18]

In
    August of last year, Mahmood filed an application under s. 684 of the
Criminal
    Code
. He sought an order appointing counsel to represent the Cross-Appellant
    and asked that the Attorney General of Ontario [
sic
] be directed to
    pay the fees of that counsel, as well as disbursements including the costs of
    preparing the transcripts of his three-month trial.

[19]

In
    the months that elapsed between the filing of the s. 684 application and the
    hearing, Crown counsel cross-examined Mahmood on the affidavit he filed in
    support of his application. Mahmood had counsel appointed under a limited s.
    684 order to protect his interests at the cross-examination.

The Arguments Advanced

[20]

Mahmood
    says the interests of justice require the appointment of counsel under s. 684.

[21]

Mahmood
    contends that his appeal from conviction has significant merit. The charge to
    the jury, he says, was confusing and cumbered by legal error, both in the
    instructions that were provided and those that were wrongly omitted. The
    convictions are unreasonable. He is entitled to legal assistance and payment of
    the costs associated with it, including payment for the transcripts of the
    entire trial. Although the appeal from sentence has no merit, counsel should be
    appointed to act on his behalf to resist the Crowns submissions that he should
    go back to jail and have less time to pay his fine.

[22]

Mahmood
    submits that he has insufficient means to retain counsel privately. He has not
    fully paid his trial counsel. He is an undischarged bankrupt. He is on social
    assistance and lives with his parents and other family members. While out of
    custody prior to and during trial, he was unable to get a job because his bail
    terms did not permit him to work in his chosen field.

[23]

Mahmood
    adds that he is incapable of presenting his appeal, which involves complex
    legal issues, without professional assistance. For similar reasons, he is
    ill-equipped to respond to the Crowns appeal from sentence, unaware of the
    principles of sentencing or their application to his case.

[24]

The
    respondent resists the application. The conviction appeal has no merit. Mahmood
    has not established that he lacks the financial means to retain counsel as he
    did at trial. As an in-person appellant and as the respondent on the Crown
    sentence appeal, he will have the assistance of experienced duty counsel paid
    for by the state and aided by an adequate evidentiary record.

[25]

The
    respondent says Mahmoods complaints about the correctness and completeness of
    the trial judges final instructions to the jury fall on barren ground.

[26]

The
    trial judge explained the essential elements of tax evasion in accordance with
    the decision of this court in
R. v. Klundert
(2004)
, 187 C.C.C. (3d) 417 (Ont. C.A.). He
    was under no obligation to go further to explain the difference between tax
    evasion and tax avoidance, or between an audit and a prosecution.

[27]

The
    evidentiary issues Mahmood complains about  the introduction of expert
    evidence from a witness not qualified as an expert and the admission of hearsay
     are belied by rulings of the trial judge and the record at trial. The witness
    who is said to have given expert evidence without being qualified to do so gave
    evidence of fact, not of opinion. What is alleged to be hearsay was not
    tendered or admitted for its truth. The evidentiary references provided by the
    trial judge in his final instructions were fair and balanced.

[28]

The
    respondent adds that Mahmood has failed to establish that he is without
    sufficient means to retain counsel privately. Legal Aid Ontario refused to
    provide funding because Mahmoods family members, part of the assessment unit
    for Legal Aid Ontarios purposes, failed to provide the financial information
    requested of them. By his own admission, Mahmood earned nearly $3,000,000
    during the period specified in the indictment. He lived with his parents who
    provided funds to pay for counsel who acted for Mahmood at trial on a private
    retainer. Mahmood himself provided funds for the purchase of a new family home.

[29]

The
    respondent points out that Mahmood has structured his activities to avoid
    holding assets in his own name. He has failed to provide a clear and concise
    statement of his assets and liabilities so that meaningful assessment of his
    financial means can be made. He has failed to provide a credible explanation
    for an alleged depletion of $5,300,000 in gross revenues from 2003 until 2007.
    He continues to be an undischarged bankrupt because the bankruptcy proceedings
    are awaiting the result of these outstanding appeals.

The Governing Principles

[30]

Section
    684(1) of the
Criminal Code

permits, but does not require, a
    single judge or a panel of this court to assign counsel to act on behalf of an
    accused who is a party to an appeal or to proceedings preliminary or incidental
    to an appeal to this court. The judge or panel of judges must be satisfied that
    it appears desirable in the interests of justice that an accused should have
    legal assistance and it appears further that the accused has insufficient means
    to obtain that assistance. The conditions precedent are cumulative.

[31]

Section
    684(2) controls where counsel is assigned and Legal Aid is not granted under
    the prevailing Legal Aid program. Where this occurs, the fees and disbursements
    of appointed counsel are to be paid by the Attorney General who is a party to
    the appellate proceedings.

[32]

Several
    basic principles inform the exercise of discretion under s. 684(1).

[33]

First,
    the phrase the interests of justice appears frequently in the
Criminal
    Code
. It takes its meaning from the context in which it appears and
    signals the existence of a judicial discretion that is to be exercised on a
    case-by-case basis:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont.
    C.A.), at para. 16. The phrase the interests of justice must take cognizance
    of the broad access to appellate review provided in s. 675, as well as the
    expansive remedial authority of an intermediate appellate court under s. 686 of
    the
Criminal Code
:
Bernardo
, at para. 20.

[34]

Second,
    the factors to be considered reflect the operation of two closely related
    principles. Counsel should be appointed where an accused cannot effectively
    present an appeal without a lawyers help. Counsel should also be appointed
    where the court cannot properly decide the appeal without the assistance of
    counsel. Most of the time neither principle or both will operate to require the
    appointment of counsel. But, sometimes, one or the other, on its own, will
    justify the appointment:
Bernardo
, at para. 21.

[35]

Third,
    to determine whether counsel should be appointed, we begin with an inquiry into
    the merits of the appeal. Typically, the merits assessment, as here, is
    hampered by the incompleteness of the record. In the result, the merits inquiry
    extends no further than a determination of whether the appeal raises arguable
    issues:
Bernardo
, at para. 22. Appeals uninhabited by merit cannot be
    repopulated by the appointment of counsel:
Bernardo
, at para. 22.

[36]

Fourth,
    an assessment of the financial resources of an accused to retain counsel, an integral
    component of the inquiry under s. 684(1), is not to become a judicial review of
    decisions made by provincial Legal Aid authorities:
R. v. Peterman
(2004), 70 O.R. (3d) 481 (C.A.), at para. 22; and
R. v. Rushlow
, 2009
    ONCA 461, 96 O.R. (3d) 302, at para. 18.

[37]

Finally,
    the applicant must show that counsel should be appointed under s. 684(1) on a
    balance of probabilities.

The Principles Applied

[38]

Several
    reasons persuade me that this application fails.

[39]

First,
    even making generous allowance for grounds of appeal cast in the language of a
    self-represented litigant without legal training, an arguable ground of appeal
    remains elusive.

[40]

The
    case against Mahmood at trial proceeded on the basis that despite acknowledged
    earnings of nearly $3,000,000 in the relevant taxation years and collection of
    exigible GST, Mahmood neither filed tax returns nor remitted any GST he
    collected. The instructions of the trial judge, provided by the respondent,
    tracked the language used in
Klundert
to describe the essential
    elements of the offence. The omissions alleged by Mahmood lack merit. The same
    may be said of the suggestion of an inadequate or improperly weighted
    evidentiary review.

[41]

Further,
    the complaints of improper admission of expert evidence from a non-expert and
    the reception of inadmissible hearsay fall on barren ground. The trial judges
    ruling clarifies the nature of the evidence admitted and puts paid to any
    suggestion that the evidence was other than a factual recounting of steps taken
    during the investigation. As for the alleged hearsay, the evidence was not
    admitted for a prohibited purpose and the jury instructions did not invite
    improper use.

[42]

Second,
    Mahmoods claim of lack of financial means to retain counsel privately rings
    hollow. He was represented at trial by counsel who was privately retained. The
    trial lasted three months. He acknowledges having earned a total of nearly $5,300,000
    between 2003 and 2007. He offers no credible explanation for its disappearance.
    Certainly none of it made its way to the tax authorities. Other family members
    have declined to provide financial information so that an informed assessment
    may be made about financial means. Mahmoods sense of entitlement to state
    funding from the authority which prosecuted him is misplaced.

[43]

Third,
    dismissal of his application does not mean that Mahmood will be deprived of
    legal assistance or required to make his submissions on the basis of an
    inadequate evidentiary record. As a self-represented party, he is entitled to the
    assistance of duty counsel, an experienced appellate lawyer well qualified to
    assess the adequacy of any record compiled by the Attorney General of Canada
    for the determination of the issues raised on appeal and to make submissions on
    Mahmoods behalf.

[44]

Mahmood
    is obviously an intelligent man. He is out of custody and thus not inhibited in
    access to resources not available to those confined within prison walls.
    Nothing he advances raises any novel issue or inhabits some jurisprudential
    wilderness devoid of guidance. The response to the Crown appeal against
    sentence is straightforward.

Conclusion

[45]

For
    these reasons, the application fails and is dismissed.

David Watt
    J.A.