COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Darteh, 2016 ONCA 141

DATE: 20160222

DOCKET: C59386

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ohene Sekeyere Darteh

Appellant

Janani Shanmuganathan, for the appellant

Michael Medeiros, for the respondent

Heard: February 19, 2016

On
    appeal from the convictions entered by Justice Michael Code of the Superior
    Court of Justice on February 7, 2014, with reasons reported at 2014 ONSC 895, 302
    C.R.R. (2d) 283.

ENDORSEMENT

[1]

The appellant was detained by the police in
    front of his residence for investigation of trespass and liquor-related
    provincial offences. An altercation ensued in which the appellant shoved and
    kicked the officers and ran into the residence. The police arrested the
    appellant and a subsequent search of his backpack revealed a handgun
.

[2]

At trial, the appellant alleged numerous
    infringements of his
Charter
rights. He brought an application to exclude
    from evidence the handgun and for a stay of proceedings. The trial judge
    dismissed the application. Among other things, he found that the appellant had
    been lawfully detained for a brief investigation for offences under the
Trespass to Property Act
,
    R.S.O. 1990, c. T-21,

and the
Liquor
    License Act
, R.S.O. 1990, c. L-19. The appellant was convicted of
    various firearms and weapons offences and of assaulting the police.

[3]

On appeal, appellants counsel clearly and
    concisely submits that his detention was arbitrary and contrary to s. 9 of the
Charter
. She argues that because
    the appellants detention was arbitrary, the convictions for assaulting the
    police should be overturned and the handgun should have been excluded from
    evidence. She requests that this court replace the appellants convictions with
    acquittals or order a new trial. The trial judges findings of fact and his
    conclusions regarding the credibility of witnesses are not challenged.

[4]

The police may detain a person for investigative
    purposes if they have reasonable grounds to suspect that the person is
    connected to particular criminal activity and that such a detention is
    reasonably necessary in the circumstances:
R.
    v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. The standard
    reasonable grounds to suspect requires that the police have a reasonable
    suspicion or a suspicion that is grounded in objectively discernible facts,
    which could then be subjected to independent judicial scrutiny:
R. v. Williams
, 2013 ONCA
    772, 313 O.A.C. 195, at paras. 22-23.

[5]

Appellants counsel submits that the police
    relied on the following facts when detaining him: he was acting nervously, he
    walked away quickly when he saw the police, and he stopped at the first
    available apartment for which he did not have a key. Appellants counsel argues
    that these facts cannot ground a reasonable suspicion that he was engaged in
    either a liquor-related or trespass offence.

[6]

The trial judge agreed that the appellants
    decision to walk away from the police could not ground a reasonable suspicion
    that he was involved in an offence. Nevertheless, he concluded that the information
    and facts available to the police at the time of the detention, when considered
    in their totality, were objectively capable of supporting reasonable suspicion.
These included:

·

The
    manner in which the appellant had turned to the first available doorway and
    urgently tried to gain entry by turning the door handle and knocking.

·

The
    appellant did not have a key to the unit that he was trying to enter.

·

The
    appellant was carrying a partially consumed bottle of liquor, smelled of
    alcohol, and had blood shot eyes such that it could be inferred that he had
    been drinking in the courtyard.

·

The
    appellants very nervous demeanour, including a trembling hand when he produced
    his health card and his manner of standing with his backpack up against the
    wall.

·

The
    complaint from the property manager that there were trespassers in the
    courtyard area, particularly during the evenings after 8:00 p.m., and that
    someone appeared to be letting them in.

[7]

The actions noted above may have been lawful and
    each of the facts, if considered in isolation, may have been insufficient.
    However, when the totality of facts is viewed together, they are capable of
    grounding a reasonable suspicion that the appellant may be engaged in trespass
    or liquor-related offences. Reasonable suspicion may be grounded in a
    constellation of factors, even if any one of those factors on its own would not
    have been sufficient:
R. v.
    Nesbeth
, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 1-2 and
    17-18.

[8]

The trial judges assessment of the evidence
    supported his conclusion that the police had a reasonable basis to suspect that
    the appellant was a trespasser committing a provincial offence. His findings
    are entitled to deference from this court. As we have concluded that the
    appellants s. 9 rights were not infringed, there is no need to address the
    appellants s. 24(2)
Charter

arguments. The appeal is dismissed.

Doherty J.A.

E.A. Cronk J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DiBenedetto, 2016 ONCA 116

DATE: 20160210

DOCKET: C58036

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Michael DiBenedetto

Respondent

Howard Piafsky, for the appellant

Mark Evans and Jeffrey Root, for the respondent

Heard: February 5, 2016

On appeal from the sentence imposed on October 28, 2013
    by Justice Tory Colvin of the Ontario Court of Justice.

ENDORSEMENT

[1]

Police found $7600 in cash and 409.89 grams of heroin, with a street
    value of approximately $204,490, in the home and garage of Michael DiBenedetto
    (the respondent).  He was convicted of possession of heroin for the purposes
    of trafficking and possession of proceeds of crime in excess of $5,000.

[2]

At the sentencing hearing, the Crown sought a penitentiary sentence in
    the range of six to eight years.  It pointed to the large quantity of heroin,
    the seriousness of the offence, and the fact that the appellant, who is not a
    drug addict, had possession of the drug for commercial gain.

[3]

The defence sought a conditional sentence of two years less a day based
    on the favourable pre-sentence report, the fact that the appellant is employed
    and a responsible father to his two children, and is in a new, stable
    relationship.

[4]

A sentence of three years imprisonment, concurrent on each count, was
    imposed.

[5]

The Crown appeals against sentence.  It submits that the sentence: (i)
    fails to take proper account of the purpose of principles and sentencing as set
    out in the
Criminal Code
, and (ii) is demonstrably unfit.

[6]

The respondent points to
R. v. Lacasse
, 2015 SCC 64, and
argues that
while the
    sentence does not fall within the range established by this court for offences
    of this sort, in itself that does not justify appellate intervention.

[7]

We accept the Crowns position on this matter.

[8]

The respondent had a large commercial quantity of heroin, one of the
    most sinister of drugs.  Given the nature of the drug and its quantity, as well
    as the substantial amount of money which was found to be the proceeds of crime,
    the sentence is demonstrably unfit.  It also failed to meet the need for
    general deterrence and denunciation, the predominant sentencing objectives for
    offences of this sort.

[9]

The case law
establishes a range of sentence
    from 6 to 12 years for offences involving trafficking of between approximately
    0.5 to 1 kilograms of heroin: see
R. v. Pannu
, 2015 ONCA 677.  The
    quantity in this case is approximately a half kilogram or one pound.  While the
    trial judge referred to the respondents relatively young age, positive
    personal background, potential for rehabilitation, and unrelated criminal
    record, those considerations do not amount to circumstances justifying such a significant
    departure from the range.  Rather, they support a sentence at the lower end of
    the range.

[10]

The
    respondent asks that if the appeal is allowed and the custodial sentence increased,
    that the court stay the execution of that sentence.  While we acknowledge that
    the respondent has served the sentence that was imposed and a significant
    period of time has elapsed since his release, in our view the seriousness of
    the offence militates against a stay.

DISPOSITION

[11]

Accordingly,
    leave to appeal sentence is granted, the appeal is allowed, the sentence
    imposed at trial is set aside, and in its place a sentence of six years
    imprisonment is imposed.  The respondent shall have forty-eight hours from the
    release of this endorsement and the order that gives effect to it, to surrender
    into custody, failing which a warrant shall issue for his apprehension.

E.E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edgar, 2016 ONCA 120

DATE: 20160211

DOCKET: C58012

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Edgar

Appellant

Constance Baran-Gerez, for the appellant

Andreea Baiasu, for the respondent

Heard: January 14, 2016

On appeal from the convictions entered on May 9, 2013 and
    the sentence imposed on October 6, 2014 by Justice K. Pedlar of the Superior
    Court of Justice, sitting without a jury.

L.B. Roberts J.A.
:

Overview

[1]

The appellant pleaded guilty to the
    offences of dangerous driving, flight from police, breaking and entering and
    forcible confinement. He was found guilty of the offence of sexual assault, to which
    he did not plead guilty. He appeals only from that conviction. If his
    conviction appeal is allowed, he seeks leave to appeal his sentence on all his
    convictions.

[2]

The appellant argues on the conviction
    appeal that the trial judge erred in finding him guilty of sexual assault
    because there was no overt interference with the complainants sexual or bodily
    integrity. The Crown submits that the totality of the appellants actions
    created a violent and sexualized atmosphere that gave rise to a threat of
    sexual assault against the complainant.

[3]

For the reasons that follow, I agree
    with the Crowns submission. Accordingly, I would dismiss the appeal.

Surrounding circumstances

[4]

The appellants trial proceeded on the
    basis of an uncontested statement of fact, which can be summarized briefly.

[5]

On November 8, 2011, the appellant
    accosted the complainant, a stranger, outside her apartment door. He forced his
    way into the complainants apartment by using a chokehold around her neck. He
    ordered her, Dont fn scream, open your door, I need to use your phone. Once
    inside, he released her and locked the door. He started telling her about a
    police chase and drugs. He was red and sweaty. He ranted about his mistreatment
    by others. He made several telephone calls. When not on the telephone, he was
    pacing angrily and erratically between the complainant and her front door. She
    thought he was high on drugs. She was terrified. Other than the balcony, there
    was no other place for the complainant to go. The complainant sought the
    appellants permission to smoke cigarettes and drink tea on her balcony, which
    he allowed her to do after she brought him a drink of water.

[6]

As the complainant was drinking her
    second cup of tea on the balcony, the appellant knocked on the balcony door and
    said to her, Before I go, we have to have an agreement, but first I need you
    to come in and watch me masturbate.  The complainant complied and sat down on
    the couch near the appellant while he masturbated by putting his hands down his
    pants. He did not expose his penis or touch the complainant. After a few
    minutes, the appellant asked the complainant when her husband was going to be
    home. She told him soon. By this time, the appellant had been in the
    complainants apartment for about an hour. The complainant feared that she
    would be raped or killed. The complainant ran out on the balcony and dove over
    the rail, falling 12 feet to the ground and breaking both her ankles.  She
    screamed for help and tried to run away.

Analysis

[7]

The issue on the conviction appeal is
    whether the appellants action of masturbation, which he forced the complainant
    to watch in close proximity, amounts to a threat of sexual assault.

[8]

The defence submits that the appellants
    act of masturbation does not amount to a threat of sexual assault because the
    appellant did not touch or move towards the complainant, nor was his act
    accompanied by any threatening words. The defence concedes that the appellants
    actions in the complainants apartment created a terrifying and sexualized
    atmosphere that understandably terrorized the complainant. However, his
    isolated act of masturbation cannot amount to a sexual assault because it did
    not overtly threaten the complainants sexual or bodily integrity.

[9]

I disagree.

[10]

To commit a sexual assault, it was not
    necessary for the appellant to touch or even verbally threaten the complainant.
    A persons act or gesture, without words, force or any physical contact, can
    constitute a threat to apply force of a sexual nature, if it intentionally creates
    in another person an apprehension of imminent harm or offensive contact that
    affronts the persons sexual integrity.  Coupled with a present ability to
    carry out the threat, this can amount to a sexual assault. See
Criminal
    Code
, R.S.C. 1985, c. C-46, ss. 265(1)(b) and
    (2);
R. v. Cadden
(1989), 48 C.C.C.
    (3d) 122 (B.C.C.A.); and
R. v. Johnson
, 2006 CanLII 37519 (Ont. S.C.).

[11]

Defence counsel argues that
Cadden
and
Johnson
are
    distinguishable in that the offences in those cases involved overt acts
    combined with verbal demands made of the victims, which are absent in the
    present case:  in
Cadden
, a teacher
    motioned to young children to come under his desk and then told them to fellate
    or touch his penis; in
Johnson
, the
    offender exposed his penis and, while holding a gun, ordered his victim to
    fellate him.

[12]

I would not give
Cadden
and
Johnson
this
    narrow interpretation.

[13]

What elevates the appellants act of
    masturbation from an indecent act to a sexual assault are the surrounding
    circumstances of sexualized violence, control, and confinement that the
    appellant created, and to which he deliberately subjected the complainant. Those
    are the same kind of circumstances that led the courts in
Cadden
and
Johnson
to
    hold that the offenders actions constituted sexual assaults: see
Cadden
, at p. 128; and
Johnson
, at para. 152.

[14]

On the undisputed facts of this case,
    the appellant was a violent intruder who forcibly confined the complainant to
    the restricted space of her apartment.  Over 6 feet tall and about 300 pounds,
    the appellant easily overpowered the complainant to force entry into her
    apartment. His appearance and movements were highly erratic and volatile. For
    about an hour, he controlled and dictated the complainants movements within
    her own apartment, physically blocking her exit.

[15]

Finally, the appellant commanded the
    complainant to enter into an agreement with him before he would leave her
    apartment, which included, but was not necessarily limited to, her watching him
    commit a sexual act in close proximity. The already terrifying atmosphere
    produced by the appellant was intensified by his asking her when her husband
    would be home. The complainant was so fearful of being immediately raped or
    killed that she risked very serious injury by diving over the railing of her
    apartment balcony to escape from the appellant.

[16]

It must be remembered that sexual
    assault is an act of power, aggression and control, and that a threat to invade
    the bodily or sexual integrity of another person or to otherwise apply force is
    itself a hostile act:
Cadden
, at p. 128.
    The appellant intentionally terrorized the complainant for a prolonged period, in
    violent and sexualized circumstances, causing her to reasonably believe that he
    had the present ability to rape or kill her.

[17]

Viewed in the context of the entire
    circumstances, the appellants acts constituted a threat of sexual assault.

Disposition

[18]

For these reasons, I would dismiss the
    conviction appeal. As the appellants proposed sentence appeal is predicated on
    his success on the conviction appeal, I would deny leave to appeal sentence.

Released: February 11, 2016

L.B. Roberts J.A.

I agree K. Feldman J.A.

I agree E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fitzsimmons, 2016 ONCA 107

DATE: 20160205

DOCKET: C57970

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amy Fitzsimmons

Appellant

James E. Dean, for the appellant

Ruth McGuirl, for the respondent

Heard: January 25, 2016

On appeal from the conviction entered on June 21, 2013
    and the sentence imposed on August 14, 2013 by Justice W.G. Rabley of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of Oxycodone for the purpose
    of trafficking and was sentenced to two years imprisonment. She appeals
    conviction and seeks leave to appeal sentence.

[2]

The facts surrounding the conviction are as follows. The appellant was
    serving an intermittent sentence at the Elgin Middlesex Detention Centre
    (E.M.D.C.), which commenced on February 18, 2012. On six occasions, she was
    caught bringing prescription drugs into the jail. On each occasion she was and
    had been given misconducts by the staff.

[3]

On February 28, 2012, the appellant brought 213 OxyNeo and 7 Cesamet
    pills into the E.M.D.C. The first 94 OxyNeo pills were found in two cylinder
    containers, which were hidden in the collar of the appellants coat. The
    remaining 119 OxyNeos and 7 Cesamet pills were located in the appellants
    underwear following a strip search.

[4]

At trial there was no issue that the appellant possessed a controlled
    substance. The only question for determination was whether the Crown proved
    beyond a reasonable doubt that she possessed the Oxycodone for the purpose of
    trafficking.

[5]

The appellant submits that the trial judge erred in finding that she had
    the requisite intent. In particular, she argues that the verdict was
    speculative and unreasonable, that the trial judge failed to properly apply the
    principles in
R. v. W. (D.)
, [1994] 3 S.C.R. 521,

and that
    he reversed the burden of proof.

[6]

We would not give effect to these arguments.

[7]

It was open to the trial judge to reject the appellants evidence based
    upon the conflicting testimony she gave on her bail hearing. There was also
    other evidence, including the quantity of pills and the way they were packaged,
    which supported a conviction. In these circumstances, the verdict was not
    unreasonable.

[8]

We find no error in the
W. (D.)
analysis
.
The trial
    judge specifically considered the principles of
W. (D.)
and applied
    the three-step test. He rejected the appellants evidence, did not have a reasonable
    doubt as a result of it, and concluded based on the relevant evidence at trial
    that the Crown had proved its case beyond a reasonable doubt.

[9]

There was also no reversal of the burden of proof. The trial judge
    simply found that the there was no credible evidence to support the defences
    theory that the pills were for the appellants personal use.

[10]

With respect to the sentence appeal,
trial
    judge committed no error in principle. The sentence is not demonstrably unfit.
    The trial judge considered the correct principles and the circumstances of the
    offence and the offender. The sentence falls within the appropriate range.

[11]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Freckleton, 2016 ONCA 130

DATE: 20160216

DOCKET: C59759 & C60388

Laskin, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Freckleton and Denziel Jones

Applicants (Appellants)

John Norris and Meara Conway, for the appellants

Carolyn Otter, for the respondent

Heard: February 10, 2016

On appeal from the sentence imposed on June 4, 2012 by
    Justice Gary T. Trotter of the Superior Court of Justice, sitting without a
    jury and on appeal from the sentence imposed on February 19, 2013 by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

These two cases were heard together. In
    each case, the appellant seeks to reduce his sentence to avoid the prospect of
    deportation resulting from the retrospective application of the
Faster Removal of Foreign Criminals Act,
S.C.
    2013, c. 16. Section 24 of that Act amended s. 64 (2) of the
Immigration
    and Refugee Protection Act,
S.C. 2001, c. 27,
to
    allow a person found inadmissible for serious criminality to appeal to the
    Immigration Appeal Division only if he or she had been punished by a term of
    imprisonment of less than six months. Prior to the amendment, anyone receiving
    a sentence of less than two years had a right of appeal to the Immigration
    Appeal Division. Both appellants were sentenced before the amendment and would
    have had a right to appeal but for the subsequent retrospective amendment.

[2]

In sentencing, an offenders individual
    circumstances must be taken into account. Thus, the fact that the offender
    faces the collateral consequence of deportation is a relevant factor: see
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), at
    para. 158. An appellate court may intervene to vary a sentence that falls
    within the range of fit sentences if the sentencing judge did not take into
    account that the sentence could result in the deportation of the offender.
    However, the sentence ultimately imposed must still be proportionate to the
    gravity of the offence and the degree of the responsibility of the offender:
R.
    v. Pham,
2013 SCC 15, [2013] 1 S.C.R. 739, at
    para. 14. The Court also cautioned that the flexibility of the sentencing
    process should not be misused to impose an inappropriate and artificial
    sentence to circumvent Parliaments will:
Pham,
at para. 15.

[3]

The appellants seek to introduce fresh
    evidence i
n relation to the immigration consequences. The Crown does not
    oppose the application. We therefore admit the fresh evidence.

WINSTON FRECKLETON

[4]

Mr. Freckleton pleaded guilty on June
    4, 2012 to trafficking cocaine and received a seven month conditional sentence
    on a joint submission. He sold about 0.05 g of crack cocaine for $30 after
    being prompted to do so by a woman. The Crown concedes the one-month reduction
    in that sentence he now seeks would not render the sentence demonstrably unfit
    having regard to all the circumstances of the offence and the offender.

[5]

With the Crowns consent, his appeal is
    allowed and his sentence is varied to six months less a day of imprisonment.

DENZIEL JONES

[6]

The result of Mr. Jones appeal must be
    different. On February 19, 2013, he pleaded guilty to possession for the
    purposes of trafficking cocaine and sentenced on a joint submission to one day of
    imprisonment, plus credit for 11 months and one week of pre-trial custody,
    followed by six months of probation. An offenders pre-trial custody is
    considered to be part of the sentence for immigration purposes: see
Brown
    v. Canada (Minister of Public Safety and Emergency Preparedness)
, 2009 FC 660, 81 Imm. L.R. (3d) 90, at para. 23. The
    result of this is that Mr. Jones cannot appeal a finding of inadmissibility to
    the Immigration Appeal Division. Pointing out that he actually spent over 11
    months in prison, his counsel requests a theoretical variation of his
    sentence to one day with the accompanying stipulation that his sentence should
    be deemed to be six months less a day.

[7]

An effective sentence of six months
    would not be fit for Mr. Jones in all the circumstances. He came to Canada in
    June 2007 at the age of 17. He is now 25 years of age. He was convicted for two
    assaults in October 2010 for which he was sentenced to 47 days of
    incarceration, in addition to 43 days of pre-trial custody, plus probation for
    two years. In January 2011 he was arrested on the charges that give rise to
    this appeal. In July 2011, while on bail for these charges, he was arrested on
    charges of possession of cocaine, obstruct police and failing to comply with
    probation. He was convicted of these subsequent charges in October 2012 and
    sentenced to 30 days of pre-trial custody and six months of probation. The
    circumstances of the charge on appeal suggest that he is a mid-level commercial
    street supplier of crack cocaine and not a user addict. He supplied 3.3 g of
    crack cocaine to an undercover officer, and possessed an additional 6.76 g of
    crack cocaine and $330 of police buy money. The seriously aggravating factors
    in this case outweighed the mitigating effect of his youth and guilty plea.

[8]

Parliaments clear intent in enacting
    s. 24 of the
Faster Removal of Foreign Criminals Act
is that persons subjected to a fit sentence of at least
    six months of imprisonment may not appeal a finding that they are inadmissible
    to Canada
because of serious criminality to the Immigration Appeal Division.
    The
substantial reduction Mr. Jones
    seeks in his effective sentence would circumvent this clear parliamentary intent.
    His sentence appeal is dismissed.

John Laskin J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Halich, 2016 ONCA 102

DATE: 20160203

DOSSIER: C59983

La juge en chef adjointe Hoy,
    les juges Pardu et Roberts

ENTRE

Sa Majesté la Reine

Intimée

et

Khalid Halich

Appelant

Khalid Halich, en personne

Cameron Fiske,
amicus curiae

Michael
    Fawcett et Philippe Cowle, pour lintimée

Date de laudience : le 3
    février 2016

En appel de la décision du juge D.A.
    Harris de la Cour de justice de lOntario en date du 14 juillet 2014 rejetant
    lappel de la décision rendue le 22 novembre 2012 par la juge de paix C.
    Chernish  de la Cour de justice de lOntario.

INSCRIPTION SUR CAHIER DAPPEL

[1]

Lappelant fait valoir que lagent de son
    parajuriste qui a enregistré son plaidoyer de culpabilité navait pas suivi ses
    consignes. Lintimée concède que le plaidoyer était invalide et que nous
    devrions accueillir lappel et ordonner un nouveau procès. Ainsi, nous accueillons
    lappel et nous ordonnons un nouveau procès.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v.
    Hawley, 2016 ONCA 143

DATE: 20160222

DOCKET: C58928

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerry Hawley

Appellant

Sam Scratch, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally:  February 17, 2016

On appeal from the sentence imposed by Justice L.
    Ratushny, of the Superior Court of Justice, dated August 30, 2013.

ENDORSEMENT

[1]

The appellant was charged with the second degree murder of his older
    brother.  The victim was severely disabled and functioned at the mental age of a
    five to seven year old.  He was completely dependent on his brother for all
    facets of his care and wellbeing.  The jury convicted the appellant of
    manslaughter.  He appeals the 20-year sentence imposed by the trial judge.

[2]

The facts of the case are horrific.  The trial judge referred to them at
    some length in her reasons for sentence.  No summary could do the facts
    justice.  An appreciation of the heinousness of this crime and the suffering of
    the victim can be gained by a review of the trial judges reasons.  We adopt
    her description of the relevant evidence.

[3]

There are three alleged errors:

1.

Did the trial
    judge improperly treat the absence of remorse as an aggravating factor?

[4]

The trial judge rejected the appellants protestations of remorse.  In
    the course of considering the aggravating factors on sentence, she said:

19) I do not assess the expressions of remorse from the accused
    as genuine and neither do I assess him as having any insight into the gravity
    of his actions against Jamie;

20) Because of the accuseds lack of insight into the gravity
    of his actions, I am unable to access the level of risk he poses to the safety
    of the community as being other than high.  The accused was able to act with
    inhumanity and cruelty towards his incapacitated brother so as to have an extra
    thousand dollars a month.  Even if this kind of situation is one unlikely to
    ever be available to the accused again, the evidence of his indifference to
    Jamies obvious suffering for the pursuit of his own financial gain is an
    attitude that risks the safety of the community and particularly so when he has
    so little insight into his actions;

[5]

Counsel for the appellant submits that in para. 19, the trial judge used
    the lack of remorse as an aggravating factor.  In our view, the two paragraphs
    must be read together.  Read together, they indicate that the trial judge
    regarded the appellants lack of insight into the seriousness of his crime, as
    evinced by the absence of remorse, as an aggravating factor because of its
    impact on the appellants potential danger to the community.  We see no error
    in this analysis.

2.

Did the trial
    judge err in imposing a sentence that was well beyond the established range?

[6]

Counsel for the appellant submits that the appropriate range for this
    kind of manslaughter is between 7 and 16 years.  He does not suggest that this
    case should not be placed at the upper end of the range. He does, however, skillfully
    and forcefully argue that as egregious as the facts of this case are, they do
    not warrant a sentence that is four years beyond the range.

[7]

Thankfully, there are relatively few manslaughter cases that involve the
    ongoing horrendous and fatal abuse of persons by individuals responsible for
    their care.  The cases have attracted a wide variety of sentences, including,
    in one case, a sentence of 16 years.  In that sense, it is fair to say that 16
    years is the upper end of any established range.

[8]

Parity in the sentencing of similar offenders who have committed similar
    offences is a recognized principle of sentencing:
Criminal Code
s.
    718.2(b).  Over time, the operation of the parity principle gives rise to ranges
    of sentences for similar offences committed by similar offenders.  In
R. v.
    Lacasse
, 2015 SCC 64, at para. 58, the court explained the relationship
    between parity as a principle of sentencing and the fitness of a specific
    sentence that is beyond the existing range:

There will always be situations that call for a sentence
    outside a particular range:  although ensuring parity in sentencing is in
    itself a desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded.  The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical calculation.  It involves a
    variety of factors that are difficult to define with precision.  This is why it
    may happen that a sentence that, on its face, falls outside a particular range,
    and that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit.  Once again, everything depends on the gravity of the
    offence, the offenders degree of responsibility and the specific circumstances
    of each case.

[9]

In our view, the aggravating circumstances of this case clearly called
    for a sentence outside of the existing range.

[10]

It
    is difficult to know where to start when describing the aggravating features of
    this case.  The trial judges reasons provide a full and powerful catalogue of
    them.  We would stress the following:

·

The appellant sought out and took the victim from a setting in
    which he was happy and well cared for and loved by the staff at Kingston
    Community Living (KCL). The appellant removed him to circumstances in which
    the victim received no care, no love and was treated in an appallingly inhumane
    and abusive manner.  The appellants motive was simple.  He wanted to get his
    hands on the victims monthly disability cheque.  To the appellant, the victim
    was a paycheque and nothing more;

·

The neglect and abuse of the victim began as soon as the
    appellant removed him from the care of KCL.  That abuse and neglect continued
    for eight years until the victim finally died from the combined effect of
    starvation, pneumonia and over 30 infected massive bedsores, some of which had
    gone right to the victims bones;

·

The victim, who was 41 when he died, weighed 57 pounds.  The
    Crown expert testified that it would be hard to find a worse case of
    malnutrition;

·

The appellant had such total disregard for his brothers
    wellbeing that he could not even be bothered to access resources that were
    available to him free of charge which could have provided things that would
    have significantly improved the victims quality of life; and

·

The victim endured month after month of ever-increasing pain and
    isolation as a result of the appellants conduct.  He must have suffered a
    great deal before he finally succumbed.

[11]

Having
    determined that a proper sentence called for a prison term beyond the current
    range of sentencing for this kind of offence, we cannot say that the sentence
    arrived at by the trial judge was too far beyond that range.  The sentence was
    long, but it was not clearly unreasonable.

3.

Credit for
    pre-sentence custody

[12]

The
    parties agree that in light of the decision in
R. v. Summers
, 2014 SCC
    26, [2014] 1 S.C.R. 575, released after the trial judges reasons, the trial
    judge should have given the appellant 1.5 days credit for each day he was in
    custody prior to sentencing.  On that calculation, he is entitled to an
    additional 619 days and a total credit for presentence custody of five years,
    one month.

Disposition

[13]

In
    our view, the 20-year sentence imposed by the trial judge was appropriate.
    Having regard to credit for presentence custody, that should be reduced by five
    years and one month, yielding a sentence of 14 years and 11 months.  The appeal
    is allowed and the sentence is varied to that extent.

Doherty J.A.

E.A. Cronk J.A.

H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hromek, 2016 ONCA 109

DATE: 20160205

DOCKET: C57778

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jana Hromek

Appellant

Robert M. Isles, for the appellant

David Friesen, for the respondent

Heard: February 1, 2016

On appeal from the conviction entered on May 10, 2013 and
    the sentence imposed on September 25, 2013 by Justice Alexander Sosna of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals her convictions of fraud and uttering after a
    trial before a judge sitting without a jury. She also seeks leave to appeal
    sentence.

[2]

On the appeal from conviction, the appellant does not advance any ground
    of appeal that asserts any error of law on the part of the trial judge, or for
    that matter, any error of mixed fact and law. Rather, the appellants complaint
    is with the findings of fact made by the trial judge.

[3]

The evidence before the trial judge about the relevant transactions was
    conflicting. It was for the trial judge to determine and to say whom he
    believed and to what extent, if at all, he found their evidence reliable. The
    trial judge reviewed the salient features of the evidence at some length. He
    made his findings of fact based on that evidence and drew reasonable inferences
    from it. He explained his findings of fact, including why he believed the
    witnesses called by the Crown and rejected the appellants testimony and that
    of her husband and son.

[4]

The findings of fact made by the trial judge are entitled to deference
    in this court. They do not reveal any misapprehension of evidence or any
    palpable and overriding error. The trial judge properly instructed himself on
    the essential elements of the offences charged and the burden and standard of
    proof. His conclusions are firmly grounded in the evidence adduced at trial and
    untainted by legal error.

[5]

The appeal from conviction is dismissed.

[6]

As to sentence, the appellant has served the carceral portion of the sentence
    imposed at trial. In his factum, counsel seeks to have the term of probation
    imposed by the trial judge deleted. He advances no reasons in support of the
    claim.

[7]

We see no reason to delete the probation order, to vary any of its
    optional conditions or to reduce its term. We also note that the appellant did
    not apply to the sentencing judge under s. 732.2(3) of the
Criminal Code
for the relief she now seeks. While we cannot say that the failure to do so
    disentitles an appellant, as a matter of law, to the same relief on an appeal
    from sentence in this court, the failure to apply under s. 732.2(3) is a factor
    this court will consider on the appeal from sentence.

[8]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

Eileen
    E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


WARNING

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

An order
    restricting publication in this proceeding under ss. 486(1), (1.1), (2),
    or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against
    an accused shall be held in open court, but the presiding judge or justice may,
    on application of the prosecutor or a witness or own his or her own motion,
    order the exclusion of all or any members of the public from the court room for
    all or part of the proceedings, or order that the witness testify behind a
    screen or other device that would allow the witness not to be seen by members
    of the public, if the judge or justice is of the opinion that such an order is
    in the interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during
    the proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of
    witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a
    full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to the
    making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects
    of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45,
    s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41,
    ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s.
    4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackman, 2016 ONCA 121

DATE: 20160211

DOCKET: C57678

Hoy A.C.J.O., Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sarah Jackman

Appellant

Charles Granek, for the appellant

Ian Bell, for the respondent

Heard:  October 28, 2015

On appeal from the conviction entered on March 8, 2013
    and the sentence imposed on July 15, 2013 by Justice G. Lemon of the Superior
    Court of Justice, sitting with a jury.

Hoy A.C.J.O.:

1.

OVERVIEW

[1]

Approximately four kilograms of cocaine were found in the lining of the
    appellants luggage after a sniffer-dog alerted on her at Torontos Pearson
    International Airport. She was subsequently charged with importing cocaine into
    Canada, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19.

[2]

The appellant brought a pre-trial application to exclude the evidence
    against her under s. 24(2) of the
Charter
, on the basis of several
    alleged
Charter

breaches. The application judge excluded some,
    but not all, of the challenged evidence. After a trial by a different judge and
    jury, the appellant was convicted and sentenced to five years and nine months
    imprisonment, less two months credit for pre-trial custody.

[3]

The appellant appeals her conviction and seeks leave to appeal sentence.
    She alleges that the application and trial judges made multiple errors and
    requests that the finding of guilt be quashed and an acquittal entered or, in
    the alternative, that a new trial be ordered. For the reasons that follow, I
    would dismiss the conviction appeal, grant leave to appeal sentence, but
    dismiss the sentence appeal.

2.

BACKGROUND

[4]

The appellant arrived at Torontos Pearson International Airport on a
    flight from Guyana. A border services officer (BSO) was roaming with his
    sniffer-dog in the pre-primary inspection area line up. The dog was trained to
    detect the odour of firearms and a number of illegal drugs, including marijuana.
    The BSO walked the dog by all of the passengers arriving on the flight from
    Guyana to Toronto because it was a flight known to carry drugs.

[5]

Unknown to the appellant, the dog alerted on her by sitting down. As a
    result, a BSO working in the post-primary inspection area spoke to the
    appellant and coded her customs declaration card so that she would be referred
    for a secondary customs inspection once she retrieved her checked baggage. In
    the course of the secondary customs inspection, her suitcase was x-rayed and a
    BSO saw that something was hidden inside the lining. Approximately four
    kilograms of cocaine were found inside.

[6]

At that point, a BSO advised the appellant that she was under arrest.
    The BSO administered a form of caution to the effect that the appellant was not
    obligated to say anything and that, if she did, her statements could be used in
    evidence, and advised the appellant of her right to counsel. The appellant made
    several post-arrest statements to the BSO before speaking to counsel.

[7]

The appellant brought a pre-trial application, seeking exclusion of the
    cocaine and all other evidence against her on the basis of a number of alleged
Charter
violations and common law principles.

[8]

In a careful and detailed ruling, described below, the application judge,
    Dawson J., rejected the appellants arguments that the use of the sniffer-dog
    constituted an unreasonable search in violation of s. 8 of the
Charter
and that she was detained from the time of the dog alert:
R. v. Jackman
,
    2012 ONSC 3557. The application judge accepted that the appellants s. 10(b)
    right to counsel had been violated because of an approximately one hour and
    forty minute delay in the implementation of that right following the appellants
    arrest. He also found that a BSO violated the appellants s. 8 rights when she
    conducted a post-arrest strip search as a matter of routine policy and without
    consideration of whether there were sufficient grounds to do so in this particular
    case. However, he concluded, a second strip search conducted by the RCMP after
    the appellant was transported to the cells at the Toronto Airport detachment
    did not violate her s. 8 rights.

[9]

The application judge then conducted a s. 24(2)
Charter

analysis
    to determine whether the evidence against the appellant should be excluded.
    Except for one statement made very close to the time of her arrest that he
    characterized as spontaneous, he excluded all other statements made by the
    appellant between the time of her arrest and the time she was re-arrested and
    given her rights again by the RCMP.

[10]

The
    application judge then considered whether the Crown had proven that the remaining
    pre- and post-arrest statements  that is, those not excluded pursuant to s.
    24(2)  were voluntary. He was ultimately satisfied beyond a reasonable doubt
    that most of the statements were voluntary and therefore admissible.

[11]

At
    trial, the appellant testified that someone had given her a new suitcase in
    Guyana, which she accepted because her old bag was damaged. She said that she
    did not know or suspect that cocaine was concealed in the suitcase and believed
    she had been set up.

[12]

The
    jury returned a verdict of guilty and a conviction was entered.

3.

THE ISSUES ON APPEAL

[13]

This
    appeal raises the following issues:

1.

Did the application judge err in concluding that the dog sniff was not a
    search because it occurred in the context of a border crossing and, in any
    event, did not violate s. 8 of the
Charter
?

2.

Did the application judge err in concluding that the appellant was not detained
    from the time of the dog alert?

3.

Did the application judge err in concluding that the second strip search
    did not violate the appellants s. 8
Charter

rights?

4.

Did the application judge err in concluding that the appellants
    pre-arrest utterances were voluntary and admissible?

5.

Did the trial judge err in qualifying the Crowns expert (Sergeant
    Napper) to provide evidence of the value of the cocaine seized?

6.

Did the trial judge err by failing to correct his jury charge to clarify
    a point of evidence?

7.

In imposing sentence, did the trial judge fail to consider the
    appellants challenging personal circumstances?

4.

ANALYSIS

4.1.

Did the application judge err in concluding that the dog sniff was not a
    search because it occurred in the context of a border crossing and, in any
    event, did not violate s. 8 of the
Charter
?

4.1.1.

The Application Judges Reasons

[14]

The
    application judge found that it is clear from the cases relied on by the
    appellant
R. v. Kang-Brown
,
2008 SCC 18, [2008] 1 S.C.R. 456 (the use of a sniffer-dog in a Calgary bus
    terminal) and
R. v. A.M.
, 2008 SCC 19, [2008] 1 S.C.R. 569 (the use of
    a sniffer-dog in an Ontario high school)  that,
within
Canada, a
    sniff by a detector dog constitutes a search within the meaning of s. 8 of the
Charter
because it impinges on a persons
    reasonable expectation of privacy
.

[15]

However,
    relying on
R. v. Simmons
, [1988] 2 S.C.R. 495;
Dehghani v. Canada
    (Minister of Employment and Immigration)
, [1993] 1 S.C.R. 1053;
R. v.
    Jacques
, [1996] 3 S.C.R. 312;
R. v. Monney
, [1999] 1 S.C.R. 652;
R.
    v. Hudson
(2005), 77 O.R. (3d) 561 (C.A.); and
R. v. Jones
(2006), 81 O.R. (3d) 481 (C.A.), the application judge concluded that a dog
    sniff when a person is crossing an international border to enter Canada does not
    constitute a search for the purposes of s. 8 because there is no interference
    with a reasonable expectation of privacy in those circumstances. He held that, in
    a border crossing context,
Kang-Brown

and
A.M.
do not
    apply: persons crossing borders expect to be subject to such scrutiny. Indeed,
    he wrote, the appellant testified that she expected to be questioned and to
    perhaps have her luggage searched, as it had been in the past.

[16]

The
    application judge cited the following paragraph from
Simmons
, at pp.
    516-17, where Chief Justice Dickson, writing for the majority, categorized
    three types of searches that take place at the border, according to their level
    of intrusiveness:

It is, I think, of importance that the cases and the literature
    seem to recognize three distinct types of border search. First is the routine
    of questioning which every traveller undergoes at a port of entry, accompanied
    in some cases by a search of baggage and perhaps a pat or frisk of outer
    clothing.
No stigma is attached to being one of the
    thousands of travellers who are daily routinely checked in that manner upon
    entry to Canada and no constitutional issues are raised
.
It would be
    absurd to suggest that a person in such circumstances is detained in a
    constitutional sense and therefore entitled to be advised of his her right to
    counsel. The second type of border search is the strip or skin search of the
    nature of that to which the present appellant was subjected, conducted in a
    private room, after a secondary examination and with the permission of a
    customs officer in authority. The third and most highly intrusive type of
    search is that sometimes referred to as the body cavity search, in which
    customs officers have recourse to medical doctors, to X-rays, to emetics, and
    to other highly invasive means. [Emphasis added.]

[17]

The
    application judge found that the dog sniff in this case fell within the first
    and least intrusive category of border searches described in
Simmons
,
    where no constitutional issues are raised.

4.1.2.

The Appellants Position

[18]

The
    appellant argues that the application judge erred in distinguishing
Kang-Brown
and
A.M.
, and that the dog sniff in this case constituted a search for
    the purposes of s. 8. She says that, in
R. v. Chehil
, 2013 SCC 49,
    [2013] 3 S.C.R. 220, which the application judge did not advert to, the Supreme
    Court rejected the argument that there is no reasonable expectation of privacy
    in checked luggage in an airport and refused to revisit
Kang-Brown
and
A.M.
She relies on this to assert that, if there is a reasonable
    expectation of privacy in luggage in an airport, and a dog sniff of the luggage
    is therefore a search, a dog sniff of a person in an airport is clearly a
    search. There is an even greater expectation of privacy in the person.

[19]

The
    appellant also argues that the application judge erred in finding that the dog sniff
    in this case was analogous to the first, and least intrusive, of the three
    distinct types of border searches described in
Simmons
. The Supreme Court
    explained that no stigma attaches to this first type of search, and no
    constitutional issues are raised.  The appellant says that a dog sniff is not
    like a search of baggage or pat or frisk of outer clothing, which
Simmons
includes in the first type of border search. She says that stigma attaches to a
    dog sniff because an alert by the dog can tell all watching that the person
    smells of contraband. A dog sniff is therefore more intrusive than a search of
    baggage or pat or frisk of outer clothing. She submitted in oral argument that
    a dog sniff is analogous to a forced drug test or the taking of a bodily
    sample.

4.1.3.

Analysis

[20]

I
    reject the appellants arguments. I agree with the application judge that the
    dog sniff did not violate the appellants s. 8
Charter

rights.

[21]

Section
    8 does not protect against all encroachments on an individuals privacy
    interests:
Chehil
, at para. 22. Only where state examinations
    constitute an intrusion upon some reasonable privacy interest of individuals
    does the government action in question constitute a search within the meaning
    of s. 8:
R. v. Tessling
, 2004 SCC 67,
    [2004] 3 S.C.R. 432, at para. 18
. If there is no reasonable expectation
    of privacy, s. 8 will not be engaged. An individuals reasonable expectation of
    privacy must be assessed contextually, and may vary depending on the nature of
    the circumstances:
Chehil
, at para. 59.

[22]

I
    agree with the application judge that a persons reasonable expectation of
    privacy when entering Canada at an international border crossing is different from
    when travelling within Canada. In my view, the application judge did not err in
    distinguishing
Kang-Brown
and
A.M.

in the
    circumstances of this case
.

[23]

The
    Supreme Court in
Simmon
s and
Monney
and this court in
Hudson
and
Jones
have recognized that border searches should be distinguished
    from searches occurring in other circumstances in which the security of
    Canadas interior is not engaged. As Doherty J.A. explained, at paras. 30 and
    31 of
Jones
:

No one entering Canada reasonably expects to be left alone by
    the state  [T]ravellers reasonably expect that they will be questioned at the
    border and will be expected to answer those questions truthfully. Travellers
    also reasonably expect that Customs authorities will routinely and randomly
    search their luggage.  The state is expected and required to interfere with
    the personal autonomy and privacy of persons seeking entry to Canada. Persons
    seeking entry are expected to submit to and co-operate with that state
    intrusion in exchange for entry into Canada.

Nothing is more fundamental to nationhood and national
    sovereignty than the ability to control national borders. Effective border
    control serves a myriad of crucial social interests ranging from national
    self-defence to public health, to the enforcement of Canadas fiscal policies
    and its penal statutes.

[24]

The
    dog sniff in this case was conducted as part of a routine border inspection,
    intended to prevent and control the importation of illicit substances into the
    country. Such routine border searches, when carried out in a reasonable manner,
    cannot be said to encroach on a travellers reasonable expectation of privacy
    and therefore do not violate s. 8.

[25]

I
    disagree with the appellant that the dog sniff in this case did not constitute
    a routine border search of the first type identified in
Simmons
.

[26]

A
    dog sniff is minimally invasive on an individuals privacy interests:
Chehil
,
    at paras. 1, 24, 57. Here, the dog sniff was deployed by a BSO as part of a
    routine check of passengers entering Canada on a flight known to carry drugs
    and the appellant was not even aware of the dog alert. No stigma attached to
    the search. I agree with the application judge that the dog sniff was even less
    invasive than a search of baggage or pat or frisk of outer clothing included in
    the first type of searches described in
Simmons
. Moreover, there was
    no suggestion that the sniff was not conducted reasonably.

[27]

Chehil
does not assist the appellant. In that case, a drug detector dog was deployed
    in the secure area of the Halifax airport to sniff the checked bag of a
    suspected drug trafficker who had flown to Halifax from Vancouver. Unlike in this
    case, the dog sniff was not part of a routine border inspection. RCMP officers
    had analyzed the passenger manifest for the appellants overnight
    Vancouver-Halifax flight and noticed that the appellant was one of the last
    passengers to purchase a ticket, paid for his ticket in cash and checked one
    bag. The officers testified that, in their experience, those characteristics
    were indicators of the illegal traffic of narcotics. As a result, the drug
    detector dog was deployed to sniff the appellants bag before he collected it.
    The dog indicated that he detected the scent of drugs, and the appellant was
    arrested for possession of a narcotic.
Chehil

is therefore
    distinguishable from this case, where the dog sniff was part of a routine customs
    inspection at an international airport and the appellant was not specifically
    targeted by the police for investigation.

[28]

Based
    on the above, I find that, in the circumstances of this case, the dog sniff did
    not violate the appellants s. 8
Charter
rights.

4.2.

Did the application judge err in concluding that the appellant was not detained
    from the time of the dog alert?

[29]

The
    application judge concluded that the appellant was not detained in a
    constitutional sense until the observation of the x-ray demonstrating that
    something was hidden inside the lining of her suitcase. Until then, he
    reasoned, nothing had occurred that took the appellants case outside the realm
    of the routine in a border crossing situation. He found that the dog alert,
    standing alone, did not provide such a particularized level of suspicion that
    the appellants case ceased to be routine.

[30]

He
    recounted that two involved BSOs testified that, to them, the alert did not
    mean that the appellant was transporting contraband. It simply indicated
    exposure to something that the dog was trained to detect. One BSO explained
    that, in the past, he had searched individuals who were the subject of a dog
    alert and not found contraband. And, the dog was trained to detect odours that
    included firearms and marijuana. The recreational use of firearms and the
    possession and use of small amounts of marijuana are legal in some parts of the
    world from which persons seeking to enter Canada have travelled.

[31]

Consequently,
    the application judge concluded that a dog alert in a border-crossing setting
    is not objectively capable of providing particularized suspicion that the
    subject of the alert is transporting contraband. In this case, while the alert
    may have attracted further scrutiny, it was not enough to support a conclusion
    that the appellant was detained in a constitutional sense.

[32]

The
    appellant disagrees. She argues that she was detained once the sniffer-dog alerted
    on her; thereupon, she should have been advised of her right to remain silent
    and her right to counsel. She asserts that, because she was not so advised, all
    of her subsequent pre-arrest statements should be excluded from evidence.

[33]

I
    note Justice Karakatsanis comment at para. 1 of
Chehil
that a search
    by a properly deployed drug detection dog can be highly accurate. However, I
    am not persuaded that there is any basis to interfere with the application
    judges finding, based on the evidence of the BSOs, that the dog alert,
    standing alone, did not provide such a particularized level of suspicion that
    the appellants case ceased to be routine. Routine border searches of the first
    type described in
Simmons
do not result in a detention and therefore
    do not give rise to any right to counsel or the right to remain silent:
Simmons
,
    at pp. 516-17;
Jones
, at paras. 36-37. Accordingly, the dog alert in
    this case did not result in a detention or engage the appellants ss. 7 or 10(b)
Charter

rights.

[34]

Furthermore,
    because I have found that the use of a sniffer-dog in this case did not raise
    any constitutional issues, I would not give effect to the argument that the
    appellants pre-arrest statements should have been excluded under s. 24(2).

4.3.

Did the application judge err in concluding that the second strip search
    did not violate the appellants s. 8
Charter

rights?

[35]

The
    appellant argues that the trial judge erred in finding that the second strip
    search, conducted after she was transferred to the RCMP, did not constitute an
    unreasonable search. She asserts that the search was conducted as a matter of
    policy and without reasonable grounds. I reject this argument.

[36]

The
    application judge found that the RCMP officers carefully considered the need
    for a further strip search and formed the subjective view that one should be
    conducted for purposes which I find to be objectively reasonable in the
    circumstances.

[37]

The
    officers reasons included that, when the RCMP assume custody and
    responsibility for a prisoner who has been searched by another agency, they
    need to be satisfied that the prisoner does not have any evidence, weapons or
    means of escape on their person. They knew that the appellant was considered to
    be suicidal and had made statements that she was thinking of hurting herself. Constable
    Sheedy testified that he was aware that the appellant had been in different
    locations while in custody at customs and was concerned that she may have
    picked something up that could be used to harm herself, to open handcuffs or as
    a weapon of opportunity. Corporal Ferguson explained that the appellant would
    be going to a detention facility and that it was therefore important to ensure
    that she did not have anything on her person that would pose a danger in a
    facility where other inmates were present.

[38]

The
    application judge also accepted the evidence of Corporal Ferguson that the
    search was conducted quickly, with sensitivity and in complete privacy. He was
    alert both to the privacy concern about multiple strip searches and to the
    appellants emotional instability.

[39]

I
    see no basis to interfere with the application judges conclusion that, on the
    facts of this case, the second strip search did not violate s. 8.

4.4.

Did the application judge err in concluding that the appellants
    pre-arrest utterances were voluntary and admissible?

[40]

The
    appellant argues that, in the absence of a complete record of the pre-arrest
    exchanges between the appellant and the BSO, the application judge erred in
    concluding that the appellants pre-arrest utterances were voluntary and
    admissible. She further argues that the utterances should have been excluded
    because, in the absence of a complete record providing the necessary context
    for the statements, their prejudicial effect outweighed their probative value.

[41]

The
    BSO made notes of the appellants pre-arrest statements approximately three
    hours after the statements were given. She did not record the statements
    verbatim and acknowledged that she did not write down her own questions
    preceding the statements.

[42]

I
    reject the appellants argument that, because the pre-arrest exchange between
    the BSO and the appellant were not recorded verbatim, the application judge was
    not in a position to determine whether the appellants pre-arrest utterances were
    voluntary. A verbatim recording is not an absolute requirement to demonstrate
    the voluntariness of a statement.

[43]

The
    application judge specifically considered the appellants argument that he
    could not determine voluntariness because the BSOs notes were incomplete. The
    Crown called extensive evidence regarding the circumstances in which the
    pre-arrest utterances were made. The application judge noted that, in the
    circumstances, it would have been practically impossible for the BSOs to have
    made notes of every detail that transpired. In all of the circumstances, the
    application judge was satisfied as to the voluntariness of the pre-arrest
    utterances. The appellant offers no explanation of how the BSOs failure to
    record the conversation verbatim could have affected the application judges
    ability to assess voluntariness. There is no basis to interfere with the
    application judges determination.

[44]

It
    is unclear whether the appellant argued before the application judge that the prejudicial
    effect of the appellants pre-arrest utterances exceeded their probative value
    because of the absence of a complete record of the exchanges. In any event, a
    probative value versus prejudicial effect analysis of a statement made by an accused
    is often made in the absence of complete, written and nearly contemporaneous
    notes of the applicable exchange. While a statement may be excluded if its
    meaning is so speculative  and its probative value so tenuous  that its
    probative value is outweighed by its prejudicial effect, that is not the case
    here. Here, there was no ambiguity with respect to any of the appellants
    utterances to the BSO and the appellant had the opportunity to cross-examine
    the BSO on the context in which all of the utterances were made. Their
    probative value was not outweighed by their prejudicial effect.

4.5.

Did the trial judge err in qualifying the Crowns expert (Sergeant Napper)
    to provide evidence of the value of the cocaine seized?

[45]

The
    appellant argues that the trial judges ruling that Sergeant Napper was
    qualified to give opinion evidence as to the value of the seized cocaine was
    founded on a misapprehension of the evidence. The trial judge wrote that Sergeant
    Nappers opinion in this case was based on his own experience and the RCMP
    2008/2009 illicit drug price lists. He also spoke to one other officer for
    confirmation of his estimate.

[46]

The
    appellant argues that Sergeant Napper did not ascribe his opinion to his own
    experience and, while he testified that it was his practice to consult with
    another expert, he could not recall whether he did so in this case. She asserts
    that the trial judge therefore erred by qualifying Sergeant Napper on the basis
    of incorrect factual findings.

[47]

I
    disagree. In my view, the statement that Sergeant Nappers opinion was based on
    his own experience and the RCMP price list accurately summarized the evidence
    at the
voir dire
. This provided a sufficient basis to qualify Sergeant
    Napper to provide an opinion. As the respondent asserts, while the trial judge
    overstated the evidence in saying that Sergeant Napper had consulted another
    officer in this case, this error is of no consequence.

4.6.

Did the trial judge err by failing to correct his jury charge to clarify
    a point of evidence?

[48]

The
    appellant argues that the trial judge erred by mischaracterizing a point of
    evidence in his charge to the jury. She says this error adversely affected the
    jurys assessment of her credibility and obscured an important piece of
    evidence that should have been put to the jury for consideration.

[49]

The
    appellant testified as follows regarding the point of evidence at issue. Her
    trip to Guyana was funded by her friend, Mike. Upon arrival at the Toronto
    airport, she met with Mikes friend Auntie, with whom she traveled to Guyana.
    Before boarding in Toronto, she saw Auntie with a man who did not join them on
    the flight. Auntie told the appellant that the man was her husband. When the
    appellant arrived at the airport in Guyana, Auntie waited for her outside of
    customs with a different man, whom the appellant thought worked for the airport.
    After she exited customs, the man asked her some questions about her trip.

[50]

At
    the end of her trip, while waiting at the airport in Guyana for her flight back
    to Toronto, the appellant saw Aunties husband. He was sitting with a man she identified
    as the airport employee who spoke to her when she first arrived. She later saw
    Aunties husband on the flight to Toronto.

[51]

In
    summarizing his recollection of the evidence in his charge to the jury, the
    trial judge stated:

[W]hile [the appellant] waited at the airport she saw the same
    man who spoke with her when she arrived in Guyana. He was sitting with aunties
    husband. They were sitting in the café, she was sitting outside and they were
    sitting inside.
She also saw him on [the] flight back to
    Toronto
. [Emphasis added.]

[52]

The
    appellant submits that, although she testified that the man she saw on the
    flight was Aunties husband, the phrasing of the trial judges charge gave the
    impression that she saw the man who was sitting with Aunties husband at the
    airport in Guyana.

[53]

The
    appellant argues that the trial judges failure to correct his charge, despite
    a request by counsel to do so, undermined her credibility. She says the charge
    misled the jury into thinking that the appellant made two conflicting
    statements, stating at one point that she saw Aunties husband on the plane and
    stating at another point that she saw the man who was sitting with Aunties
    husband at the airport in Guyana. She further asserts that the trial judges
    misstatement removed a key part of the appellants evidence from the jurys
    consideration  namely, that the appellant recognized Aunties husband on the
    flight and possibly suspected that he had been in Guyana to keep an eye on her.
     I reject these arguments.

[54]

The
    trial judge specifically instructed the jury that, while it was his duty to
    review the evidence, the jury must decide the case based on their recollection
    of the evidence. The appellant stated several times in her trial testimony that
    she had seen Aunties husband on the plane. In the context of the trial as a
    whole, it is unlikely that the jury would have been confused by the trial
    judges charge. In any event, I agree with the respondent that, to the extent
    that the charge was erroneous, as opposed to ambiguous, the error related to a
    peripheral point that would not have affected the jurys assessment of the
    appellants credibility or the ultimate result.

4.7.

In imposing sentence, did the trial judge fail to consider the
    appellants challenging personal circumstances?

[55]

The
    appellants principal argument is that her challenging personal circumstances
    warranted a deviation from the six- to eight-year range of custodial sentences
    for couriers who are first time offenders and smuggle large quantities of
    cocaine into Canada set out in
R. v. Cunningham
(1996), 27 O.R. (3d)
    786 (C.A.).

[56]

The
    trial judge detailed the appellants sympathetic circumstances and background
    in his reasons for sentence and considered them as mitigating factors. He
    considered the applicable authorities. He concluded that, [c]hallenging and
    compelling as [the appellants] circumstances may be, they describe a weak and
    vulnerable individual that is to be dealt with in the range stipulated.

[57]

Taking
    all of the circumstances into account, the trial judge imposed a sentence of five
    years, nine months, less two months credit for pre-trial custody  slightly
    below the range of six to eight years established in
Cunningham
.
I am not persuaded that he committed any error in principle in his approach or
    that the sentence imposed is manifestly unfit.

5.

DISPOSITION

[58]

I
    would dismiss the conviction appeal, grant leave to appeal sentence but dismiss
    the sentence appeal.

Released: AH  FEB 11 2016

Alexandra Hoy
    A.C.J.O.

I agree John I. Laskin
    J.A.

I agree L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jean, 2016 ONCA 137

DATE: 20160222

DOCKET: C58965

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frantzy Jean

Appellant

Frantzy Jean, in person

Delmar Doucette, duty counsel

Robert Hubbard, for the respondent

Heard: February 10, 2016

On appeal from the conviction entered on May 2, 2014 by
Justice Robert Smith of the Superior Court of Justice, sitting with a jury, and
from the sentence imposed on January 20, 2015.

ENDORSEMENT

[1]

The appellant raises two grounds of appeal against his convictions in
connection with the possession of a restricted firearm. First, he argues that
the verdict was unreasonable. Second, with the assistance of duty counsel, he
submits that the trial judge erred in his response to a question from the jury
on the offence of possession of a firearm obtained by the commission of a
crime.

[2]

His appeal against sentence is in two parts. One relates to credit for
pre-sentence custody, the other is dependent upon the result of his conviction appeal.
If the appellant is successful on the issue relating to the jury question, he
submits that his sentence should be reduced.

The Conviction Appeal

[3]

During the execution of a search warrant, police found a 9mm Beretta
semi-automatic handgun under the bed in the master bedroom of an apartment
leased by the appellants former common law spouse. The former spouse and the
appellant were still dating at the time, though he no longer lived in the
apartment. She is also the mother of two of the appellants children.

[4]

The appellant was charged with four counts relating to the possession of
the loaded Beretta handgun for which he had no licence. He was convicted of
three of the four counts.

A.

Unreasonable Verdict

[5]

The evidence of the appellants possession was circumstantial. He
submits that circumstantial evidence cannot form the basis of a conviction and
the trial judge erred when he told the jury otherwise.

[6]

This is incorrect. The trial judges charge to the jury with respect to
circumstantial evidence was correct and the jury was properly instructed.

[7]

There was evidence upon which the jury could conclude that the appellant
was in possession of the Beretta. It was located in a shoebox containing mens
shoes under the bed in a small bedroom. He was at the apartment daily to assist
with the care of his children. He kept clothes there. His expired passport was
found in the dresser in the bedroom along with his possessions.

[8]

This ground of appeal is dismissed.

B.

Answer to the Jury Question

[9]

Count four on the indictment  for which the appellant was convicted
was the possession of a weapon obtained by the commission of an offence,
contrary to s. 96(2) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
appellant submits that the trial judge erred in his answer to a jury question.

[10]

The
trial judge properly instructed the jury with respect to count four when he explained
that the Crown must prove the following beyond a reasonable doubt:

i.

The appellant was in possession of a firearm  namely, a 9mm Beretta
handgun;

ii.

The firearm was obtained by crime; and

iii.

The appellant knew that the firearm had been obtained by crime.

[11]

The
trial judge then correctly instructed the jury as to how to determine if the
appellant knew the firearm had been obtained by crime. First, the Crown could
prove that the appellant had actual knowledge that the handgun had been
acquired directly or indirectly by crime. Alternatively, the Crown could prove
that the appellant was aware of the need to make an inquiry about the origins
of the handgun but deliberately failed to do so because he did not want to know
the truth.

[12]

During
its deliberations, the jury asked the following question:

Does the acquisition of a firearm without a proper licence
constitute the firearm being obtained directly or indirectly by crime with
respect to count number 4?

[13]

Following
a discussion with counsel in the absence of the jury, the trial judge read the
question and answered as follows:

The short answer is yes  The acquisition of a firearm such as
a 9-millimetre Beretta handgun without the purchaser holding a licence or
authorization to possess a restricted firearm constitutes an offence by the
vendor, and results in the firearm being acquired directly or indirectly by a
crime.

[14]

The
answer was incorrect. We adopt the analysis of Then J. in
R. v. Khan
(2007), 217 C.C.C. (3d) 209 (Ont. S.C.), where, at paragraph 26, he said:

It is not sufficient that the accused have knowledge that his
possession is illegal. What is required to establish knowledge on the part of
the accused that he has obtained possession of the firearm by the commission
of an offence is either that the accused himself commit an offence to obtain
the firearm  For example ... by stealing. Alternatively, it will be sufficient
that the accused obtain possession from another knowing that that person
obtained the firearm by the commission of an offence. For example, the accused
purchases the firearm from a person he knows stole the firearm.

[15]

The
key word in s. 96 is obtained. The accused must know that the firearm was
obtained as a result of a crime.

As this
court held in
R. v. Mohamed
, 2014 ONCA 103, [2014] O.J. No. 574, at
para. 1, that an accused committed any number of offences by being in
possession of the firearm does not mean that it was obtained by the
commission of an offence.   The fact that the appellant did not have a licence
for the firearm cannot form the basis for a conviction under this provision.
The conviction on count four is quashed and an acquittal will be entered.

The Sentence Appeal

[16]

The
appellant raises two grounds of appeal with respect to his sentence: 1) the
effect of an acquittal on count four, and 2) the trial judges calculation of
credit for pre-sentence custody.

[17]

The
appellant submits that an acquittal on count four should result in a reduction
of his global sentence of four and a half years. We disagree. All of the counts
on the indictment, and the two resulting convictions, relate to the possession
of the Beretta. The appellant has a long criminal record and the sentence
imposed was well within the appropriate range, regardless of the success of his
appeal on count four.

[18]

Finally,
the trial judge granted the appellant 25.5 months credit for pre-sentence
custody at the rate of 1.5 to 1. However, he reduced the credit by two months
to reflect the appellants bad behaviour. This behaviour resulted in an
assault charge while the appellant was in custody.

[19]

We
accept the submissions of the appellant that the trial judges comments during
the sentencing submissions indicate that he misunderstood the concept of earned
remission. Earned remission applies to the provincial, not federal system. In
the federal system, under which the appellant is currently serving his
sentence, he is entitled to statutory release after a period determined under
s. 127 of the
Corrections and Conditional Release Act
, S.C. 1992, c.
20. The statutory release date is generally the day on which he completes two
thirds of his sentence: s. 127(3) of the
Corrections and Conditional
Release Act
. Consequently, the credit for pre-sentence custody will be
increased by two months.

Disposition

[20]

The
appeals as to conviction and sentence are allowed in part. There will be an
acquittal entered on count four and the credit for pre-sentence custody will be
increased by two months.

J.C. MacPherson
J.A.

M. Tulloch J.A.

M.L. Benotto
J.A.