WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

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

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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.S., 2015 ONCA 767

DATE: 20151110

DOCKET: C59211

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S., a young person

Appellant

Vincenzo Rondinelli, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally:  November 5, 2015

On appeal from the convictions entered by Justice Heather
    Katarynych of the Ontario Court of Justice, dated August 20, 2013.

ENDORSEMENT

The Sexual Assault Conviction (Count 3)

[1]

The appellant was convicted as an aider and abetter on the basis that he
    assisted his two friends in the very serious sexual assault of the victim
    committed by them in the bedroom.

[2]

Counsel submits that the trial judge convicted on the basis that the
    appellant was a party to a plan with his two friends from the outset of the
    evenings activities to sexually assault the victim.  Counsel argues that the
    factual inferences drawn by the trial judge to justify that finding are
    unreasonable.

[3]

In our review of the reasons, it is unclear whether the trial judge
    found that the appellant knew from the outset that his two friends intended to
    sexually assault the victim and that the appellant intended to assist in that
    sexual assault.  However, we think it is irrelevant to the validity of the
    verdict on this count whether the trial judge made that finding.

[4]

It is clear from the evidence that the trial judge did make the
    following factual findings:

·

the appellant and his two friends carried the victim up the
    stairs to the bedroom where the assaults occurred.  She was intoxicated and
    unable to stand;

·

while the appellant and his friends were carrying the victim up
    the stairs, one of the two friends was attempting to pull the victims pants
    down;

·

the appellant and his two friends took the victim into the
    bedroom and closed (and perhaps locked) the bedroom door;

·

the appellants two friends immediately and repeatedly attacked
    and raped the victim over a period of about one-half hour;

·

the appellant sat and watched this activity;

·

the appellant chatted with each of his friends as they took a
    break from their attacks on the victim; and

·

the appellants friends stopped the attacks only when the
    appellant told them to do so.

[5]

These facts admitted of only one reasonable inference.  The appellant
    knew when he was taking the victim up the stairs that his friends intended to
    sexually assault her in the bedroom.  In taking her up the stairs, he intended
    to assist his friends in the commission of that sexual assault.

[6]

The verdict on this count was entirely justified on those findings
    regardless of any findings in relation to the earlier activities.

The Unlawful Confinement Count
    (Count 6)

[7]

Counsel for the appellant concedes, properly in our view, that if the
    sexual assault in relation to the attack in the bedroom stands, he cannot
    successfully challenge the conviction on the unlawful confinement count.  That
    charge relates to the confinement of the victim during the sexual assault in
    the bedroom.  The conviction on that count stands.

The Conviction in Relation to the
    Tickling Incident (Sexual Assault Count 1, Touching for a Sexual Purpose Count
    2)

[8]

In the course of her reasons, the trial judge found that the appellant
    did not touch the victim during the sexual assaults.  The trial judge convicted
    on this count on the basis that the appellant aided and abetted his friends who
    did touch the victim in the course of what is referred to as the tickling
    incident.

[9]

The trial judge did not analyze the evidence on this count in her
    reasons.  There is no question that the appellant was present when his friends
    sexually assaulted the victim by touching her breasts and inner thigh area.
    There is evidence from which one could infer that he encouraged his friends to
    do so by his conduct.  However, without any analysis, we cannot identify the
    basis upon which the trial judge reached the conclusion that the appellant
    aided and abetted his friends.  Certainly, it cannot be said that a finding
    that the appellant aided or abetted his friends in this assault was inevitable
    on the evidence.

[10]

We would quash the conviction on count 2 and set aside the
Kienapple

    stay on count 1. The Crown is entitled to a new trial on counts 1 and 2, if so
    inclined.  We note, however, that the sentence has been served.

[11]

The appeal on counts 1 and 2 is allowed, the convictions are quashed, and
    a new trial is ordered.  The appeal is otherwise dismissed.

Doherty J.A.

S.E. Pepall J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keating, 2015 ONCA 825

DATE: 20151127

DOCKET: C58810

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Keating

Appellant

Michael Pasquale, for the appellant

Jason A. Gorda, for the respondent

Heard: November 26, 2015

On appeal from the conviction entered on April 17, 2014 by
    Justice Lucia Favret of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in this appeal.  The trial judge thoroughly reviewed the
    principles relating to admissibility of the 911 recordings and the
    complainants signed statement to police as recorded in the investigating
    officers notebook under the principled exception to the hearsay rule.  The
    appellant has demonstrated no error in the trial judges admissibility ruling.

[2]

Moreover, we reject the appellants argument that the statements are
    entitled to little or no weight at the trial.  The appellants arguments in
    this regard were considered and rejected by the trial judge.  We see no error
    in her conclusion.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Liew, 2015 ONCA 734

DATE: 20151102

DOCKET: C55450

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Soon Fat Liew and
Wen Tung
    Yu

Respondent

Kevin Wilson, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent Wen
    Tung Yu

Heard: April 7, 2015

On appeal from the acquittals entered by Justice R. Cary
    Boswell of the Superior Court of Justice, sitting without a jury, on April 19,
    2012.

Tulloch J.A.:

A.

Overview

[1]

The respondent, Wen Tung Yu, was acquitted of importing cocaine and
    possession of cocaine for the purpose of trafficking following a blended
voir
    dire
and trial. His co-accused, Soon Fat Liew, was acquitted of possession
    of cocaine for the purpose of trafficking. The Crown abandoned the appeal
    against Liew, but maintained the appeal against the respondent.

[2]

The respondent and Liew brought pre-trial motions that attacked the
    admissibility of much of the Crowns evidence. The Crown had sought to lead
    evidence discovered during a search of the respondents home. The respondent argued
    that the warrant should not have been issued for two reasons. First, the
    affidavit sworn to obtain it contained evidence of calls between Liew and the
    respondent gathered during an unconstitutional search of Liews cell phone upon
    his arrest. Second, the affiant failed to make full and frank disclosure about
    Wendy Yus connection to the residence. Wendy Yu is the respondents aunt. The
    Crown had also sought to use statements made by the respondent and Liew to the
    RCMP to challenge the credibility of both accused should they testify at trial.
    The respondent and Liew alleged that the RCMP breached their right to counsel
    under s. 10(b) of the
Canadian Charter of Rights and Freedoms
.

[3]

The trial judge found that the investigating RCMP officers committed
    numerous breaches of the respondent and Liews ss. 8 and 10(b)
Charter
rights in his ruling on the pre-trial motions, dated March 27, 2012, with
    reasons reported at 2012 ONSC 1826. He then excluded the videotaped statements,
    the evidence derived from the warrantless search of Liews cell phone, and the
    evidence flowing from the search of the respondents residence in a brief endorsement
    on April 17, 2012, with written reasons following on May 25, 2012 and reported
    at 2012 ONSC 2990, 289 C.C.C. (3d) 228. Without this evidence, the Crown
    invited acquittals on all charges.

[4]

The Crown
    now appeals from the respondents acquittal, and makes the following related
    arguments:

1.       In light of the Supreme Courts decision in
R. v.
    Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 631, the trial judge erred in holding
    the search of Liews cell phone incident to arrest was unconstitutional;

2.       As the evidence from the search of Liews cell phone
    was constitutionally obtained, the trial judge erred in excising it from the
    information to obtain (ITO) the warrant to search the respondents home;

3.       Once the evidence from the cell phone search is
    included in the ITO, it supports the issuance of the warrant to search the
    respondents home;

4.       The evidence obtained from the search of the
    respondents home should be admitted; and

5.       The trial judge erred in some of his findings of s.
    10(b) violations and in excluding the respondent and Liews statements.

[5]

As a preliminary matter, I will briefly address the search of Liews
    cell phone incident to his arrest. The trial judge determined that the
    arresting officer, Cst. Gallop, was entitled to seize Liews cell phone
    incident to arrest because he had an objectively reasonable basis for believing
    it would afford evidence of the offence, such as evidence of other suspects.
    However, he was not entitled to search the cell phone incident to arrest absent
    exigent circumstances or a warrant. He had neither. The trial judge held that
    even if a cursory search were permissible, the search performed by Cst. Gallop
    exceeded that limit.

[6]

The trial judges decision on the cell phone evidence was made before
    the Supreme Court provided guidance on this issue in
Fearon
. In
Fearon
,
    at paras. 69-71, the majority of the Supreme Court rejected the approach taken
    by Boswell J. in the present case and concluded that a search of a cell phone
    may be conducted incident to arrest even if there are no exigent circumstances,
    provided certain criteria are met.

[7]

The trial judge erred in his approach to the cell phone evidence. However,
    for purposes of this appeal it is not necessary to determine whether the search
    complied with s. 8 under the principles set out by Justice Cromwell, writing
    for the majority, at para. 83 of
Fearon.
This is because I have
    concluded that even if this evidence were included in the ITO, the ITO could
    not support issuance of a warrant to search the respondents residence. The search
    of the respondents residence was therefore warrantless, and the evidence
    obtained from that search must be excluded.

[8]

This conclusion is dispositive of the appeal, as the Crown fairly
    conceded in oral argument that without the evidence obtained from the search of
    the house, the Crown has no case against the respondent. It is therefore not
    necessary to address whether the trial judge erred in his treatment of the
    statements.

B.

Facts

[9]

In January 2010, Canada Border Service Agency officers found over 30 kilograms
    of cocaine hidden in a shipment of wood. The wood was supposed to be delivered
    to the Sunny Trading Company in Markham, Ontario. RCMP officers removed the
    cocaine from the wood and replaced it with a benign substance. They tracked the
    shipment to its destination, a commercial complex on Yorktech Drive with a
    number of different units. The shipment was to be delivered to Unit 4, though the
    complex does not have a Unit 4.

[10]

On
    February 4, 2010, RCMP officers waited at the Yorktech complex and watched as
    the shipment arrived shortly after 1:15 p.m. Two men, Liew and Jim La, exited a
    vehicle parked nearby. As La and Liew unloaded the wood from the truck, RCMP
    officers intervened and arrested them. Upon Liews arrest, Cst. Gallop searched
    his cell phone. The call history revealed that at 1:25 p.m., someone named
    Dono had called Liews cell phone from the number 416-738-8172. Liews cell phone
    also showed an outgoing call to Dono at 2:02 p.m. The respondent is also
    known as Donald Yu and is connected to the above phone number.

[11]

The
    RCMP continued their investigation into the persons suspected of being involved
    in the shipment. A search warrant for 18 Eden Avenue was sought and obtained on
    the basis of an ITO sworn by Cst. Cobey on February 26, 2010. The ITO was
    justified on the grounds that Wendy Yu and the respondent lived at that
    address.

[12]

The
    ITO set out compelling evidence that connected Wendy Yu to the cocaine
    shipment. She was named as the contact person for the shipment and her social
    insurance number was given to the shipping company. She was also the named
    contact on a wood shipment intercepted by the United States Border Patrol in
    2009 that contained 142 kilograms of cocaine.

[13]

In
    order to link Wendy Yu to 18 Eden Avenue, the affiant explained that Wendy Yus
    passport application referred to a drivers licence to support her identity.
    That drivers licence was registered to her alias and provided 18 Eden Avenue
    as her address. Further, an RCMP officer had positively identified Wendy Yu
    leaving 18 Eden Avenue on February 24, 2010. At approximately 12:09 p.m., an
    officer saw an unknown female depart from the residence driving a silver
    Mercedes. A second officer, Cst. Verma, later identified this woman as Wendy
    Yu.

[14]

The
    affidavit sworn in support of the ITO did not mention the serious difficulties
    in connecting Wendy Yu to 18 Eden Avenue. The passport application was made in
    2006 and also contained a different address for her in Ottawa, not Markham. Her
    SIN number was affiliated with yet another address in Toronto. The phone number
    associated with her information on the shipping documents was registered to a
    fourth address. In February 2010, officers searched all the usual sources to
    find Wendy Yus current address but were unable to find it. None of this was
    mentioned in the ITO.

[15]

The
    frailties in the late February identification were also omitted. Cst. Verma
    tailed the Mercedes, pulled up beside it, and identified the driver as Wendy
    Yu. He had seen one photograph of Wendy Yu before this identification. The officer
    took no notes on the details of the identification or the physical description
    of the driver. The circumstances of the identification were not set out in the
    ITO.

[16]

The
    respondents connection with 18 Eden Avenue was clear: he owned and resided at that
    property. However, the evidence connecting him to the shipment was limited. Surveillance
    established that the respondents minivan was parked at the Yorktech complex on
    the day of the delivery, beginning at 11:40 a.m. The affiant acknowledged in
    the ITO that the respondent operates a legitimate business out of two units in
    the complex. The respondent was also identified as Dono and had exchanged
    phone calls with Liew after Liew and La began to unload the shipment on
    February 4, 2010. To further establish the respondents involvement in the
    offence, the ITO claimed that the respondent lived at the same address as Wendy
    Yu, whose SIN number was associated with both cocaine shipments.

[17]

On
    the basis of the above information, the police claimed to have established
    reasonable grounds to believe that an offence had been committed and that
    evidence of that offence would be found at 18 Eden Avenue. A warrant was
    issued. The RCMP executed the warrant on March 1, 2010, and arrested the
    respondent at the scene.

C.

Decisions Below

[18]

The
    trial judge concluded that evidence of the calls between Liew and the
    respondent was obtained in violation of Liews s. 8 rights. That evidence was
    excluded under s. 24(2) and excised from the ITO to search 18 Eden Avenue.

[19]

He
    held that the evidence in the ITO, as revised on review, was insufficient to
    establish reasonable grounds to believe that evidence of an offence would be
    found at 18 Eden Avenue.

[20]

The
    trial judge reviewed the content of the ITO in light of the evidence presented
    during the
voir dire
, including the cross-examination of the affiant, Cst.
    Cobey. Certain aspects of the ITO were challenged as being erroneous,
    misleading, or insufficient in terms of the obligation on the police to make
    full and frank disclosure. In addition to the challenge to the cell phone
    evidence, the respondent attacked the evidence about Wendy Yus address. First,
    he argued that the police had evidence connecting his aunt to several different
    addresses, but only referred to the 18 Eden Avenue address in the ITO. Second,
    the affiant stated that Cst. Verma had identified a female driver that left the
    residence as Wendy Yu. However, this driver was likely the respondents wife
    and the issuing justice would have been unable to assess the frailties of the identification
    because the circumstances in which it was made were not explained in the ITO.

[21]

The
    trial judge found that Cst. Cobey failed to make full and frank disclosure in
    the ITO of the following material facts: i) An RCMP officer searched all the
    usual sources the police would normally check for a persons address and could
    not locate an address for Wendy Yu; ii) Her passport application in February
    2006 indicated an address in Ottawa; iii) A search of her SIN disclosed a
    different address in Toronto; iv) Constable Verma had never met Wendy Yu before
    he identified her and his identification was based on a comparison of a woman
    he saw driving an SUV to one photograph; and v) Constable Verma only glimpsed a
    female driver in traffic and could not otherwise describe any of the
    surrounding conditions at the time he made his identification. He took no notes
    of those circumstances.

[22]

Therefore,
    while there was reliable evidence that Wendy Yu was involved in the offence,
    there was insufficient reliable evidence on which to conclude she resided at 18
    Eden Avenue when the warrant was sought. The police failed to make full and
    frank disclosure about Wendy Yus connection to 18 Eden Avenue. They failed to
    disclose the difficulty they had in determining Wendy Yus address and the
    frailties in the officers identification. The trial judge determined that, in
    all likelihood, the woman identified by the officer as Wendy Yu was not Wendy
    Yu.

[23]

On
    the other hand, while there was reliable evidence that the respondent lived at
    18 Eden Avenue, absent the evidence of the calls with Liew, there was
    insufficient evidence connecting him to the offence. After holding that the
    warrant could not stand and the search of the respondents home was therefore
    warrantless, the trial judge excluded the evidence obtained from the search of
    the respondents home.

D.

Analysis

[24]

In
    my view, while the trial judge erred in his approach to whether the search of
    the cell phone incident to arrest violated s. 8, this error did not have a
    material bearing on the acquittal. Whether or not the evidence of the phone
    calls between the respondent and Liew was included, the ITO, as altered on
    review with respect to other issues, could not have supported the warrant to
    search the respondents home.

(1)

The Burden on the Crown on an Appeal from an Acquittal

[25]

Section
    676(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, provides that the
    Attorney General may appeal against a judgment or verdict of acquittal on any
    ground of appeal that involves a question of law alone.

[26]

To obtain a new trial, the
    Crown must satisfy the court that the verdict would not necessarily have been
    the same had the error not been made:
Vézeau v. The Queen
, [1977] 2
    S.C.R. 277, at p. 292. The Supreme Court elaborated at para. 14 in
R. v.
    Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609:

[A]n appeal by the Crown cannot succeed on an abstract or
    purely hypothetical possibility that the accused would have been convicted but
    for the error of law. Something more must be shown. It is the duty of the Crown
     to satisfy the appellate court that the error (or errors) of the trial judge
    might reasonably be thought, in the concrete reality of the case at hand, to
    have had a material bearing on the acquittal.

The burden on the Crown is a heavy one, as acquittals
    are not lightly overturned:
R. v. Sutton
, 2000 SCC 50, [2000] 2 S.C.R.
    595, at para. 2.

(2)

The Validity of the Warrant to Search the Respondents Residence

[27]

The
    conclusion that the trial judge erred in his approach to the cell phone
    evidence in light of
Fearon
is not dispositive of this appeal. The
    Crown must persuade the court that the verdict would not necessarily have been
    the same absent the error.

[28]

Whether
    the Crown can meet its burden turns on whether the evidence gathered during the
    search of 18 Eden Avenue should have been admissible. The issue is whether, even
    assuming the evidence of the calls were included, the ITO was sufficient to
    support the issuance of a warrant to search 18 Eden Avenue. If it was not, the
    evidence from the search of 18 Eden Avenue must be excluded, as the Crown
    concedes, and the Crown cannot meet its burden on an appeal from an acquittal.

[29]

The
    Crown submits that if the evidence of the calls between Liew and the respondent
    is included in the ITO, the evidence in the ITO as a whole supports the
    warrant. On appeal, the Crown does not challenge the trial judges holding that
    the affiant failed to make full and frank disclosure with respect to the issues
    surrounding Wendy Yus address. Nor does it challenge the trial judges
    decision to excise all references to Wendy Yu.

[30]

The
    Crown argues, however, that the remaining evidence provided reasonable grounds
    to believe that evidence of the offence would be found in the respondents
    residence. In support of this submission, the Crown notes that the delivery was
    made to the Yorktech complex where the respondent owns two units, the
    respondents van was seen at Yorktech on the day of the delivery, and Liew and
    the respondent phoned each other around the time of the delivery.

[31]

I
    reject the Crowns arguments. In my view, even with the evidence of the calls
    between Liew and the respondent included in the ITO, there was insufficient
    evidence to provide reasonable grounds to believe that evidence of an offence
    would be found in the respondents residence.

[32]

The
    search warrant was issued under s. 11(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (the CDSA), which provides:

11. (1)

A justice who,
    on
ex parte
application, is satisfied by
    information on oath that there are reasonable grounds to believe that

(
a
) a controlled substance or precursor
    in respect of which this Act has been contravened,

(
b
) anything in which a controlled
    substance or precursor referred to in paragraph (
a
) is contained or
    concealed,

(
c
) offence-related property, or

(
d
) anything that will afford evidence in
    respect of an offence under this Act or an offence, in whole or in part in
    relation to a contravention of this Act, under section 354 or 462.31 of the
Criminal
    Code

is in a place may, at any time, issue a warrant
    authorizing a peace officer, at any time, to search the place for any such
    controlled substance, precursor, property or thing and to seize it.

[33]

In
    other words, in order to obtain a warrant in this case, the RCMP were required to
    have reasonable grounds to believe that an offence under the CDSA had been
    committed and that a search of 18 Eden Avenue would afford evidence of the
    offence: see
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at
    para. 81. The reasonable grounds standard does not require proof beyond a
    reasonable doubt, but rather a credibly based probability that evidence will be
    found in the place sought to be searched:
Sadikov
, at para. 81.

[34]

The
    reviewing judge must ask whether there was reliable
evidence
    that might reasonably be believed on the basis of which the authorization could
    have issued
 (emphasis in original):
R. v. Araujo
, 2000 SCC 65,
    [2000] 2 S.C.R. 962, at para. 54. It is not the role of the reviewing judge to
    decide whether he or she would have issued the warrant. Appellate courts should
    defer to the findings of a reviewing judge [a]bsent an error of law, a
    misapprehension of evidence, or a failure to consider relevant evidence:
Sadikov
,
    at para. 89.

[35]

There
    is no doubt that the RCMP had reasonable grounds to believe that an offence
    under the CDSA had been committed. A substantial shipment of cocaine had been
    intercepted and was to be delivered to the Yorktech complex.

[36]

The
    main issue is whether the RCMP had reasonable grounds to believe that a search
    of 18 Eden Avenue at the relevant time would afford evidence of the offence. I
    conclude that they did not.

[37]

First,
    in my view, the trial judge did not implicitly decide that if the evidence of
    the phone calls were included then the warrant could have issued. The Crown
    relies on para. 167 of the trial judges pre-trial motions reasons to argue
    that he concluded the warrant could be upheld if the evidence of the phone
    calls were included in the ITO. The trial judge stated:

The warrant may be saved if the evidence of the phone call
    between Mr. Liew and Mr. Yu is not excised. There were certainly reasonable
    grounds to believe that Mr. Yu lived at 18 Eden. There were reasonable grounds
    to believe that a person involved in the importation of cocaine would have customs
    records or other documentation connected to the offences charged. But without
    the evidence of the phone call apparently made by Mr. Liew to Mr. Yu at the
    time the shipment was being unloaded, there was insufficient evidence in the
    ITO connecting Mr. Yu to the offence. I have deferred the fate of the phone
    call evidence to the s. 24(2) hearing. Subject to that evidence surviving,
    however, in my view the ITO could not possibly have afforded reasonable grounds
    that evidence of the offences charged in this case could be found at 18 Eden.

[38]

The
    Crown submits this paragraph means the trial judge decided that if the evidence
    of the calls were included, the ITO would provide sufficient evidence to
    support issuance of the warrant.

[39]

I
    do not read this paragraph as the Crown suggests. In my view, the trial judge
    decided only what he was required to decide at the time: that certainly without
    the evidence of the phone calls, the ITO was inadequate. He left open the
    possibility that the ITO could be sufficient if the evidence of the calls were not
    excised. He conducted no analysis of whether the ITO was sufficient with the
    calls included. The trial judge later decided that he was required to excise
    the evidence of the calls from the ITO. He was never called upon to decide the
    sufficiency of the ITO with the cell phone call evidence included, and did not
    do so. As the trial judge did not decide this issue, it is not possible to give
    his decision the deference that it would otherwise be owed.

[40]

Second,
    I reject the Crowns submission that the evidence of the phone calls saves the
    warrant.

[41]

As
    discussed, the trial judge held that there was no reliable evidence on which to
    conclude that Wendy Yu resided at 18 Eden Avenue at the relevant time. The
    Crown does not challenge the decision to excise all references to her in the
    ITO. The validity of the warrant therefore hinges on the evidence of a
    connection between the respondent and the offence. The ITO contained three
    pieces of circumstantial evidence connecting the respondent to the offence:

1.       He owned and operated a legitimate business out of two
    units in the Yorktech complex where the delivery occurred;

2.       His car was seen parked near his business on the day
    the delivery occurred; and

3.       He and Liew phoned each other around the time the
    delivery occurred.

[42]

In
    my view, this circumstantial evidence, considered together, might raise
    suspicion about a potential connection between the respondent and the offence,
    but it is not enough to establish reasonable grounds.

[43]

The
    Crown asks this court to infer that Liew called the respondent to discuss the
    delivery and that the respondent was therefore involved in the offence, and
    that evidence of the offence would therefore be found at his residence. There
    is no evidence in the ITO about the content of the calls. The inferences that
    can be made from the evidence of the calls are speculative and, without more to
    indicate a connection between the respondent and the offence, insufficient to
    meet the threshold of credibly based probability.

[44]

Despite
    a significant investigation, police had uncovered no further evidence pointing
    to the respondents involvement and had considerable evidence about the
    involvement of other individuals in organizing the offence. With the exception
    of the excised information about Wendy Yu, none of these other individuals were
    linked to the respondents residence.

[45]

In
    considering the evidence in the ITO as a whole, the inference that Liew (as
    opposed to La) would have called anyone to arrange a pick-up or drop-off of the
    cocaine is weak. The evidence suggests that Liews involvement in the offence
    was limited and that La had a leadership role. The ITO disclosed that: (1) La
    also made a phone call at the time of the delivery; (2) La may have been
    involved in other aspects of the offence; and (3) La loaded the wood into his
    own vehicle. On the basis of the evidence disclosed in the ITO, Liew may have
    been no more than a hired hand. His limited role diminishes the strength of any
    inference that the phone calls between him and the respondent related to the
    delivery.

[46]

While
    the circumstantial evidence of the respondents involvement must be considered
    cumulatively, the potential innocent explanation for his connection to the
    Yorktech complex and the presence of his car at the complex on the day in
    question cannot be disregarded. There was no evidence that there was any
    interaction between La and Liew with the respondents vehicle. The surveillance
    of the respondent conducted after the controlled delivery indicated he was often
    at the complex conducting his legitimate business.

[47]

For
    the warrant to be valid there must have been evidence to support a credibly
    based probability that the respondent was involved in the offence and that
    evidence of the offence would be found through a search of his residence. The
    main evidence connecting the respondent to the offence was the phone calls with
    Liew. In my view, the bare fact of the calls is not enough. The additional
    evidence does not help to establish a connection between the respondent and the
    offence that amounts to more than a suspicion. Considering the evidence in the
    ITO as a whole, the credibly based probability standard was not met. A warrant
    based on the ITO, as altered on review, could not have been issued.

[48]

The
    warrant to search the respondents residence was therefore invalid and the
    search was warrantless. The Crown does not argue that the evidence obtained
    from the search should nonetheless be admitted in evidence. Without this
    evidence, the Crown has no case against the respondent, and cannot meet its
    burden.

E.

Disposition

[49]

In
    all the circumstances, it is my view that the Crown has not met its onus on its
    appeal from the respondents acquittal. Accordingly, I would dismiss the
    appeal.

Released: MT NOV 2, 2015

M. Tulloch J.A.

I agree. J. Simmons J.A.

I agree. Grant Huscroft 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. Luceno, 2015 ONCA 759

DATE: 20151106

DOCKET: C59248

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

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Luceno

Appellant

Philip B. Norton, for the appellant

Susan G. Ficek, for the respondent

Heard: October 7, 2015

On appeal from the convictions entered on June 5, 2014 by
    Justice Robert F. Goldstein of the Superior Court of Justice, sitting without a
    jury.

Weiler J.A.:

A.

Overview

[1]

Following an 11-day trial, the appellant was found guilty of sexual
    assault. The complainant, then 13 years old, was not legally capable of
    consenting to sexual activity pursuant to what was then s. 150.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46.
[1]

The appellant's defence was that the sexual act did not occur.

The appellant was also found guilty of sexual interference
    but his conviction was stayed on the basis of
Kienapple v. R.,
[1975]
    1 S.C.R. 729.

[2]

Apart from these offences, the appellant has no prior criminal record.
    He was sentenced to three and a half years imprisonment after credit for
    restrictive bail conditions that included a form of house arrest for three and
    a half years.

[3]

The appellant appeals his conviction only and seeks a new trial. He submits
    that the trial judge erred in his credibility assessments of the appellant and the
    complainant. The alleged errors include the trial judges reasons for rejecting
    the evidence of the appellant, his use of evidence to corroborate the
    complainants allegations, and his finding that the complainant had no motive
    to fabricate her evidence. The appellant submits that the cumulative effect of
    the trial judges errors led to a misapplication of the test for assessing
    credibility, as set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[4]

Despite the appellants able oral argument, we did not call on the Crown
    as we were of the opinion that the trial judge made no palpable and overriding error
    nor did he misapply the test in
W.(D.).
We indicated that the reasons
    for dismissing the appeal would follow shortly. These are those reasons.

B.

Facts

[5]

The appellant and the complainant connected on a dating website in 2008.
    Both had profiles on several social media and dating sites. There was a dispute
    as to whether the complainants dating profile indicated her actual age, 13, or
    18. Whether the appellants profile indicated he was 17 was also in dispute.
    The appellant testified he might have indicated on his profile that he was 18
    or 19 because he was often told he looked younger, even though he was 25, but he
    never posted an age younger than 18.

[6]

The complainant and her female friend R agreed that the appellant
    appeared younger than his actual age. It was conceded that the appellant
    sometimes passed himself off as 17 on the dating site through messages, but the
    appellant denied lying about his age in order to attract younger girls.

[7]

The complainant and the appellant chatted online and via text message. The
    complainant testified that, in the early hours of the morning while the two
    were messaging on MSN, the appellant said he wanted to meet. The complainant snuck
    out of her house and got into the appellants car, where the appellant started
    touching her leg and then had sexual intercourse with her. She believed this happened
    when she was in Grade 8 and before November 2008 when she had a boyfriend.

[8]

The appellant testified that he never met the complainant in the middle
    of the night and denied having sex with her. He said he did not find her
    attractive. Based on the photographs on her profile, he could not tell that she
    was 13. He acknowledged that he made no attempt to ascertain her age.

[9]

The complainant met the appellant on a separate occasion in the park
    near her house with her friend, R, to discuss having a threesome. R testified
    that she was with the complainant when they met the appellant in the park and
    that she was not in agreement with having a threesome. She did not take the
    suggestion seriously. The appellant agreed that he drove from his home in
    Toronto to Brampton to discuss having a threesome. There were other people in
    the general area, one of whom the appellant believed might have been R. He
    testified that he assumed R was around the same age as the complainant, whom he
    believed was 18. After speaking to the complainant for a few minutes, the
    appellant realized that the threesome was not going to happen and left.

[10]

At
    trial, there was a dispute as to whether the idea of a threesome was initiated
    by the complainant or the appellant. The appellant asserted that the meeting in
    the park was the extent of his interaction with the complainant.

[11]

A
    few days after the meeting, the complainant left a message on the appellants
    dating profile to the effect of Really? Seriously? She was upset because they
    had sex then he stopped communicating with her.

[12]

The
    complainant testified that about a month after she had sex with the appellant,
    a woman named Krista contacted her on Facebook when she became aware of the
    complainants Really? Seriously? message. The complainant testified that she
    met Krista online in September 2008. Krista did not testify  all of the
    evidence surrounding her came from the complainant. Krista told the complainant
    she was dating the appellant and was pregnant with his child but the appellant
    had simply stopped talking to her. According to the complainant, the two women
    discovered that they were having sex with the appellant during the same
    timeframe.

[13]

They
    became friends on social media and met in person once in 2010. The police
    recovered some, but not all, of their Facebook conversations. The complainant
    said she deleted her Facebook profile sometime between 2008 and 2011, and she
    assumed that the other messages were deleted along with it.

[14]

In
    2011, Krista contacted the police, alleging she had been sexually assaulted by
    the appellant. No charges were laid. The trial judge inferred that Krista told
    the police that the appellant had sex with the complainant when she was
    underage because the police then went to the complainants house and
    interviewed her.

[15]

The
    complainant testified that she did not know that Krista was going to tell the
    police about her having sex with the appellant when she was 13. There was evidence
    of an angry exchange on Facebook after the police went to the complainants
    house, wherein the complainant told Krista that she did not want to be involved
    with the police or a court case. Nevertheless, the complainant did attend at a
    police station to give a statement to the police in which she acknowledged
    having sex with the appellant in his car when she was 13.

[16]

The
    appellants position at trial was that the complainant and Krista colluded to
    frame him. He also submitted that Rs evidence was tainted because R remained
    in the courtroom for part of the complainants evidence in-chief during the
    preliminary inquiry, in violation of the court order excluding witnesses.

C.

The trial judges reasons

[17]

The
    trial judges reasons followed the three-stage analysis set out in
W.(D.)
,
    at p. 757, for assessing credibility when an accused testifies, namely: (1) if
    the trier of fact believes the evidence of the accused, it must acquit; (2) if
    the trier of fact does not believe the testimony of the accused, but is left in
    reasonable doubt by it, it must acquit; and (3) even if the trier of fact is
    not left in doubt by the evidence of the accused, it must assess whether, on
    the basis of the evidence which it does accept, it is convinced beyond a
    reasonable doubt by that evidence of the guilt of the accused.

(1)

Rejection of the Appellants Evidence

[18]

The
    trial judge gave eight reasons for rejecting the appellants evidence that he
    did not have sex with the complainant and held it did not leave him in a state
    of reasonable doubt, at para. 20:

1.

The appellant was interested in meeting females under the age of 18. The
    appellant agreed that he communicated with females under the age of 18 and indicated
    that his age was 18 or 19 on his dating profile.

2.

The appellant indicated in at least some communications on dating
    websites that he was 17, further support for the conclusion that the appellant
    was interested in girls under the age of 18.

3.

The appellants evidence that the complainant looked the same when she
    testified at trial as she did when he met her at age 13 was contrary to human
    experience and not credible.

4.

There was no evidence the appellant made any inquiries about the
    complainants age. Although the defence of mistake of age did not apply to the
    case, the appellants lack of curiosity about the complainants age was troubling.
    The appellant admitted in cross-examination that he knew that he might well
    have been meeting with someone underage.

5.

The complainants evidence that her profile indicated she was 13 was
    accepted, making it inconceivable that the appellant did not know her age.

6.

The appellant maintained that he did not find the complainant attractive
    from the beginning, yet he continued to contact her via MSN and text.

7.

The trial judge rejected the appellants evidence that the threesome was
    the complainants idea and that he rejected it because he did not find the
    girls attractive. The trial judge stated:

I observed both [the complainant] and her friend [R] during
    their testimony. [The complainant] was consistent throughout that the threesome
    was [the appellant]s idea. [R] corroborated that evidence. [The appellant] testified
    that he was interested in the threesome because [the complainant] had said that
    her friend was hot, gorgeous and would be into it. [The appellant] testified
    that he thought that [the complainant] was unclassy, foul-mouthed, overweight,
    and unattractive. I do not believe that [the appellant] would have relied on the
    say-so of [the complainant] about her friend given his assessment of [the
    complainant]s perceived looks and personality. I find that his evidence is not
    credible on this point.

8.

The trial judge inferred that the police became aware that the appellant
    had sex with the complainant when she was underage because of information
    provided by Krista. Krista knew the complainant was underage from the
    complainants dating profile, the appellant or the complainant  or from all
    three sources. While the trial judge recognized that Kristas knowledge could
    not be imputed to the appellant directly, the trial judge concluded that the circumstantial
    evidence suggested that the appellant must also have known that the complainant
    was underage.

[19]

The
    trial judge recognized that a criminal trial is not a credibility contest. He
    relied on the decision of Doherty J.A. in
R. v. (D) J.J.R.
(2006), 215
    C.C.C. (3d) 252 (Ont. C.A.), at para. 53, to hold that his outright rejection
    of the appellants evidence based on a considered and reasoned acceptance of the
    complainants evidence was an explanation for rejecting the appellants
    evidence and holding that it did not leave him in a state of reasonable doubt.

(2)

On the evidence accepted, the Crown had proven the elements of each
    offence beyond a reasonable doubt

[20]

The
    trial judge held that, despite some problems with the complainants evidence,
    she was credible on the central question of whether she and the appellant had
    sex. Therefore, the Crown met its burden to prove the offences beyond a
    reasonable doubt.

(a)

Credibility of the Complainant Overall

[21]

The
    trial judge found that the complainant was, overall, a credible witness. The
    trial judge rejected the defence theory that the complainant had schemed with
    the appellants ex-girlfriend, Krista, to frame the appellant.

[22]

He
    found the complainant had no motive to fabricate or to lie, pointing to the
    evidence that (1) the complainant had no interest in being a witness in a
    proceeding, let alone a complainant, (2) her anger over being contacted by
    police and charges being laid, (3) her strong animus toward Krista, (4) her
    lack of animosity toward the appellant, and (5) her lack of sophistication to
    participate in the alleged scheme.

(b)

Problems in the Evidence of the Complainant

[23]

The
    complainant was 13 years old when she met the appellant. At the time the police
    interviewed her she was 15, at the time of the preliminary inquiry she was 17,
    and at the time of trial she was 19. The trial judge referred to the decision
    of McLachlin J. in
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at p. 134, in
    which the Supreme Court held that generally, the evidence of an adult witness
    is to be assessed as an adult but inconsistencies, particularly as to
    peripheral matters such as time and location, should be considered in the
    context of the age of the witness at the time of the events to which she is
    testifying.

[24]

The
    trial judge then addressed some of the problems with the complainants evidence.
    The complainant had some difficulty in recalling details of the appellants
    physical appearance such as his hair colour and whether or not he was circumcised.
    The trial judge concluded these gaps in the complainants evidence did not
    significantly impact on her reliability given the limited opportunity the
    complainant had to observe the appellant over one brief sexual encounter at 3
    a.m. in a car.

[25]

The
    trial judge recognized that it was problematic that the complainant could not
    recall whether the appellant had ejaculated into a condom (or whether he had
    worn a condom) or into a Kleenex, however taking into account the complainants
    age and the passage of time, the complainants inability to recall this detail was
    understandable.

[26]

The
    trial judge rejected the appellants submission that the complainant contradicted
    herself significantly as to whether the alleged sexual assault took place in
    April, September or November of 2008. He found that they met online in the
    spring of 2008 and that she consistently maintained that it was warm enough to
    wear a t-shirt when they met in person. In addition to the weather/clothing
    evidence, the trial judge accepted the complainants evidence that she had a
    boyfriend in November 2008 and would not have met the appellant at that time.

[27]

The
    trial judge rejected the appellants position that they must have met in
    December because the complainant said she was wearing red snowmen pyjamas and
    there was a record of a call to the complainants home phone on December 1,
    2008. It is undisputed that the appellant and complainant communicated mostly
    by MSN and text message. The trial judge found that a record of a single call
    of less than one minute on December 1, 2008 did not support an inference that
    this is when the meeting took place.

[28]

Finally,
    the trial judge found the issue of whether the complainants relationship with
    Krista had developed through Facebook notes or messages was a trivial one. The
    evidence ultimately went to the timing of the sexual encounter and whether the
    complainant had colluded with Krista, discussed below.

[29]

In
    coming to his conclusions on some of these points, the trial judge found that
    the complainants evidence was corroborated by her friend R. In particular, the
    trial judge noted the following aspects of Rs evidence which corroborated the
    complainants evidence:

·

Rs evidence that the weather was hot, not cold, when she met the
    complainant and the appellant to discuss a threesome;

·

Rs evidence that the complainant and the appellant communicated
    by cell phone because the complainant never used her home phone.

(c)

Motivation to Fabricate and Collusion - R

[30]

The
    defence alleged at trial that Rs evidence was tainted by the fact that she had
    been in the courtroom during the preliminary hearing and heard the complainants
    evidence. The trial judge found no evidence of collusion between the
    complainant and R, noting that no one, including the complainant, seemed to be
    aware that the preliminary hearing was in fact, about the complainant until
    very shortly before the preliminary hearing. Rs testimony that she did not
    know she would be a witness and came with the complainant to support her had a
    ring of truth to it. Moreover, it was R, or the complainant, who brought Rs
    possible involvement as a witness to the attention of the investigating officer
    after Rs name was mentioned during the complainants examination-in-chief.
    Finally, there was no extrinsic evidence to support the appellants submission
    that R tailored her evidence after hearing the complainants testimony at the
    preliminary inquiry from which witnesses were excluded.

(d)

Motivation to Fabricate and Collusion - Krista

[31]

The
    complainant denied that Krista wanted her to report having underage sex with
    the appellant to the police. She believed the case involved charges against the
    appellant in relation to Krista, and only learned that she was the sole
    complainant shortly before the preliminary inquiry.

[32]

The
    trial judge rejected the appellants submission that the complainant and Krista
    colluded to get the appellant charged. He also rejected the appellants
    argument that the complainant and Kristas Facebook argument was contrived, all
    to advance a fabricated allegation. Nothing in the complainants demeanour suggested
    that she was lying to advance Kristas interests or that she bore animus toward
    the appellant. As noted above, if anything, she was upset to discover that her
    past sexual encounter with the appellant had come to the attention of police
    and unaware until very near the beginning of proceedings that she was the
    complainant in the proceedings.

(e)

Conclusions on the Complainants Credibility

[33]

The
    trial judge concluded the following, at para. 65:

Overall, however, these problems are balanced by much more
    important evidence that buttresses her credibility and reliability:

·

Lack of motive to fabricate;

·

Consistency on the main points of the meeting with [the
    appellant] and the sexual encounter, despite her age;

·

Corroboration by her friend [R], rather than collusion.

D.

Standard of Review

[34]

A
    trial judges assessment of credibility should be afforded great deference.
    Credibility is a question of fact reviewable on the standard of palpable and
    overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at para. 25. However, a legal error made in the assessment of credibility
    may displace the deference usually afforded to a trial judges credibility
    assessment and require appellate intervention:
R. v. A.M.
,

2014
    ONCA 769, 123 O.R. (2d) 536, at para. 19; see also
Housen
, at paras. 8
    and 37.

E.

Issues on appeal

[35]

I
    begin with the issues relating to the trial judges eight reasons for rejecting
    the appellants evidence and for holding that it did not leave him in any
    reasonable doubt.

(1)

Did the trial judge make speculative conclusions, not grounded in
    evidence, and impermissibly use hearsay evidence of Krista to impute knowledge
    of the complainants age to the appellant?

[36]

As
    was apparent from the trial judges reasons, the question of whether the
    appellant knew the complainants age was a significant factor in assessing the
    appellants credibility. The trial judge stated in para. 20, reason 5: Given
    my finding that the complainant was telling the truth that she indicated that
    she was 13 on her profile, it is inconceivable that [the appellant] did not
    know that. That throws the entirety of [the appellants] evidence into
    question, although I hasten to add that it is not the only issue bearing on
    [the appellants] credibility.

[37]

The
    appellant submits that the trial judge, in reason 8, improperly imputed
    Kristas knowledge of the complainants age to him. The appellant argues that
    this impermissible imputation of knowledge was decisive to the trial judges
    ruling on the appellants credibility. He submits that, in reason 5, where the
    trial judge indicates his conclusion that he found the complainant to be a
    credible witness on the issue of age, he references reasons that I indicate
    below as the basis for that finding. The appellant asserts that the reasons
    below that the trial judge references are those contained in reason 8 in which
    the trial judge imputes knowledge of the complainants age to the appellant on
    the basis that Krista knew the complainant was underage.

[38]

The
    Crown concedes the trial judge could not infer from Kristas knowledge of the
    complainants age in 2011 that the appellant knew her age in 2008. The Crown
    asserts that the error was not material however, because the trial judge
    indicated well before he made the erroneous inferences in reason 8, that he
    believed the complainants evidence that she stated on her profile that she was
    13.

[39]

I
    do not agree the trial judge qualified his finding in his second sentence in
    reason 5 as suggested by the appellant. Reading the reasons in their entirety,
    the trial judges use of the word below appears to be a shorthand way of
    saying at a later point in these reasons. For example, the trial judge uses
    the same word below at para. 51 of his reasons, wherein he stated, As I note
    below, there was no collusion between [the complainant] and Krista.
    Immediately below, at paras. 52-56, the trial judge does not deal with
    collusion between the complainant and Krista; he deals with collusion between
    the complainant and R. Collusion between the complainant and Krista is dealt
    with at a later part of the reasons under the heading Motive to Fabricate and
    Collusion  Krista, at paras, 57-63. Similarly, I read the second sentence of
    reason 5 as referring to the credibility of the complainant as a whole (not
    only on the issue of age) and the reference to below to refer to the later
    portion of the trial judges reasons entitled, Credibility of [the complainant]
    Overall.

[40]

The
    trial judges acceptance of the complainants evidence that her profile
    indicated she was 13 was independent of any inferences drawn in relation to
    Krista.

(2)

Did the trial judge impermissibly use the evidence of R to corroborate
    the testimony of the complainant?

[41]

The
    appellant makes three submissions in relation to the use of Rs evidence to
    corroborate the complainants evidence. I will address each in turn.

(a)

The Statements

[42]

The
    complainant testified that she messaged the appellant a few days after they had
    sex. She felt used. The appellant replied and asked her what she was doing. She
    told him that she was with her friend. The appellant responded that he was in
    the area and asked if she and her friend were interested in a threesome. The
    complainant told him that her friend wont do it.

[43]

R
    testified that she and the complainant met with the appellant on one occasion. According
    to R, the complainant wanted her to meet someone. She told R she had sex with
    this person once, even though she wasnt expecting to have sex that night. He
    was interested in a threesome. R explained she didnt take the suggestion of a
    threesome, which she understood to come from the appellant, seriously. She was
    not interested and thought her friend was kidding.

[44]

R
    testified that she was with the complainant when she was texting the appellant
    about meeting him in the park. R was not asked whether she read any of the text
    messages. The transcript is silent on this point. R could not remember when
    exactly this happened but described the weather as being decent, neither hot or
    cold.

(b)

Positions of the Parties

[45]

The
    appellant submits that the trial judge improperly used the evidence of R regarding
    the complainants statements, to corroborate the evidence of the complainant that
    she had sex with the appellant and that it was the appellants idea to have a
    threesome. As part of the narrative, Rs evidence was seemingly relevant to
    the fact and timing of the statements, and could be used in the assessment of the
    complainants reliability and credibility. The appellant acknowledges that the
    defence theory and its line of questioning opened the door for the Crown to
    lead evidence to rebut an allegation of recent fabrication.

[46]

The
    Crowns position is that the trial judge was alive to the limited purpose for
    which prior consistent statements can be used. For example, the trial judge
    expressly stated that he was not relying on the complainants prior statement
    to police or testimony except where put to the complainant and adopted at trial.
    He indicated that it was incumbent on [him] as trier of fact to analyze [the
    earlier statements] to determine whether there were contradictions.

[47]

The
    trial judge used Rs evidence to rebut the allegation of collusion between the
    complainant and Krista, which he was entitled to do. Evidence of what the
    complainant said to R was also admissible as part of the narrative to explain
    why the three were meeting.

[48]

Rs
    evidence corroborated the complainants testimony with respect to the timing of
    events and her mode of communication with the appellant, namely, that she used
    her cell phone, not her home phone.

[49]

Finally,
    in closing submissions, defence counsel relied on the complainants prior
    statements to R as prior inconsistent statements that undermined the
    complainants credibility. The trial judges reasons were responsive to the appellants
    position at trial.

(c)

Analysis

Admissibility of Prior Consistent Statements

[50]

Prior
    consistent statements made by a witness out of court are generally inadmissible
    because they are a form of hearsay, they lack probative value, they are
    self-serving, the repetition of a statement by the same person does not make it
    more likely to be true, and they are not corroborative because they lack
    independence:
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    36;
R. v. Stirling,
2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5 and
    7.

[51]

Two
    exceptions to the inadmissibility of prior consistent statements are applicable
    on this appeal  narrative of how the complainants story was initially
    disclosed and rebuttal of an allegation of recent fabrication or collusion.

Permissible use of the Complainants Prior Consistent
    Statements

a.

Narrative

[52]

The
    narrative may assist in determining the fact and timing of the statements which
    may in turn assist the trier of fact in the assessment of the credibility of the
    complainant or with respect to a fact in issue:
Dinardo,
at para. 37;
R.
    v. F. (J.E.)
(1993), 16. O.R. (3d) 1, at pp. 20-21.

[53]

It
    is important to distinguish between using a prior consistent statement to
    establish the context of a complaint to assist in the assessment of the
    credibility of the complainant, and the impermissible use  to confirm the
    truthfulness of the complainants testimony. In this case, the appellant
    rightly conceded that Rs evidence of statements made by the complainant were
    relevant to the fact that the statements were made and when they were made, as
    it goes to the credibility and reliability of the complainant.

b.

Rebutting
    Allegation of Recent Fabrication

[54]

Where
    there is an allegation of recent fabrication, or collusion, by a witness, a
    prior consistent statement is admissible to rebut the alleged recent fabrication
    or collusion. The prior consistent statements have probative value to the
    extent that they show a witnesss story has not changed as a result of a new
    motive to fabricate:
R. v. OConnor
(1995), 25 O.R. (3d) 19 (C.A.). It
    is not admissible for the truth of its contents. Only statements made prior to
    the time when the motivation for the alleged collusion arose are admissible:
Stirling
,
    at paras. 5 and 7;
F. (J.E.)
, at p. 14.

[55]

In
    this case, the complainants statements to R, that she had sex with the
    appellant and that it was his idea to have a threesome, were made prior to the complainant
    becoming aware of Kristas existence, which on the evidence, is the factual
    event which the appellant alleges, gave rise to the motive to fabricate. The
    fact and timing of the statements could be used to assist the trial judge in assessing
    the complainants credibility regarding the two facts in issue to which they
    related.

The Trial Judges use of the Complainants Prior Consistent
    Statements

[56]

The
    appellant submits that the trial judges conclusion, at para. 65, that Rs
    evidence was corroboration not collusion shows he relied on the complainants
    prior consistent statements for the truth of their contents. I do not accept
    that the trial judge used Rs evidence in this manner. The trial judges
    reference to Rs evidence as corroboration not collusion comes at the end of
    an exhaustive analysis of all the evidence. Put in context, it is clear that
    the trial judge meant to convey that Rs evidence corroborated the
    complainants testimony that she made the statements and that those statements
    were made at a time before the motive to fabricate arose, as well as prior to
    any possible collusion with Krista because the complainant did not know of
    Kristas existence then.

[57]

Specifically,
    in para. 65, the trial judge states his conclusion about the complainants
    credibility, having previously fleshed out and reconciled points of alleged
    inconsistency. Among those points were areas where Rs evidence corroborated
    that of the complainants (the weather at the time of the meeting and the
    complainants preferred mode of communication with the appellant). He also reviewed
    the various reasons why he rejected the argument of collusion between R and the
    complainant.

[58]

Similarly,
    the trial judges comment, at para. 20, that [the complainant] was consistent
    throughout that the threesome was [the appellant]s idea. [R] corroborated that
    evidence, cannot be read in isolation and divorced from its context. In
    isolation, the statement can be read as the appellant suggests, namely, that
    the trial judge used the complainants prior consistent statements to her
    friend R, for their truth, an impermissible purpose. However, the trial judges
    reasons must be read bearing in mind that the appellant relied on
    inconsistencies in the complainants prior statements to undermine her
    credibility. The trial judges comment that the complainant was consistent on
    the issue of whose idea it was to have a threesome can be read as rejecting the
    defence position that, because her prior statements were inconsistent in some
    respects with her evidence at trial, she ought not to be believed on that point.
    Properly understood, his comment was that he found Rs evidence corroborative
    because the statement as to who initiated the idea of a threesome was made
    prior to the time that the suggestion of collusion between the complainant and
    Krista ever arose.

[59]

The
    appellants submission is partly based on the trial judges failure to discuss
    the proper use of this evidence. However, a trial judge is presumed to know the
    law:
R. v. B. (R.H)
, [1994] 1 S.C.R. 656, at p. 664. If a phrase in a
    trial judges reasons is open to two interpretations, the one consistent with
    the trial judges knowledge of the applicable law must be preferred over the
    one erroneously applying the law:
R. v. Smith
, 1989 ABCA 187, 95 A.R.
    304, affd [1990] 1 S.C.R. 991.

[60]

As
    this was a judge alone trial, the trial judge was not obliged to charge himself
    as he would have charged a jury. The appellant relies on
R. v. R. (A.E.)
(2001),
    156 C.C.C. (3d) 335 (Ont. C.A.), a

decision about a trial judges
    obligation to give a limiting instruction to the jury as to the proper use of a
    prior consistent statement. In that case, the trial judge not only failed to
    provide a limiting instruction, but he also suggested that the jury could use
    the evidence as corroboration of the complainants testimony generally. That is
    not this case.

[61]

Moreover,
    it is apparent from the trial judges reasons that he was alive to the limited
    use to be made of prior statements. He specifically addressed the limited use
    of prior statements in the context of reviewing excerpts of the complainants
    statement to the police and preliminary hearing evidence, both of which were
    being used by the defence to impeach the witness.

[62]

At
    no time in his reasons does the trial judge suggest that Rs evidence corroborated
    the complainants evidence that she had sex with the appellant, or that the
    threesome was the appellants idea. The trial judges conclusory bullet point
    (among two other generalized points which were also fully fleshed out in the
    reasons) that Rs evidence was corroboration not collusion, in light of the
    discussion which preceded it, cannot be said to reflect impermissible use of
    the complainants prior consistent statements for a hearsay purpose.

(3)

Did the trial judge err in admitting the evidence of R because the Crown
    failed to announce it was relying on recent fabrication?

[63]

The
    appellant submits that the prior consistent statements were not properly
    admitted under the exception for rebutting an allegation of recent collusion since
    the Crown did not indicate this was the basis on which it was asking the
    questions. In support of his position, the appellant relies on
R. (A.E.)
,

at para.13, and
F. (J.E
.), at pp.14-15, in which Finlayson J.A.
    stated:

[I]f the Crown is relying upon recent fabrication as the basis
    for the admissibility of prior consistent statements, it must wait until the
    defence has clearly opened this door by making an opening statement, or through
    cross-examination of the complainant or other Crown witnesses orby the
    allegation of fabrication becoming implicit from the defences conduct of the
    caseWhen the justification for the evidence is to rebut an allegation of
    recent fabrication, the Crown should announce to the court that that is the
    reason it is being led so that the trial judge is aware of this problem from
    the outset and defence counsel is firmly on notice.

[64]

Unlike
    in
F. (J.E.)
,

there was no objection by experienced defence
    counsel to the Crown leading evidence in-chief about the complainants
    statements to R that she had sex with the appellant and that he suggested a
    threesome. Defence counsel cross-examined R on the complainants prior
    statements to establish an inconsistency with her testimony at trial; namely,
    that the sexual intercourse was not rape or forced as she had told R, but simply
    unexpected sexual intercourse. That inconsistency was relied on in closing
    submissions.

[65]

Admission
    of a prior consistent statement on the basis of an allegation of recent
    fabrication does not require the allegation be expressly made:
Stirling
,
    at para. 5. Moreover, I do not read the words of Finlayson J.A. as requiring the
    Crown to announce its reason for leading the evidence as a prerequisite for
    admissibility, but as advising an approach that ensures the appellant will not
    be surprised unfairly and will be able to object in a timely manner, if desired.
    Significantly, the appellant does not suggest that he was caught unfairly by
    surprise by the Crown leading this evidence.

(4)

Did the trial judge err in failing to assess the reliability of Rs
    evidence?

[66]

The
    appellant submits that the reliability of Rs evidence was indelibly tainted
    because she gave her statement to the police only after hearing the testimony
    of the complainant. Although the trial judge addressed the issue of fabrication
    and collusion between the complainant and R, he submits that the trial judge
    failed to address the reliability of Rs evidence in a meaningful way.

[67]

The
    Crown submits that defence counsel appears to have discounted the possibility that
    Rs evidence was tainted inadvertently, by arguing at trial that the
    complainant and R couldnt get their story straight. The Crown also submits
    that the trial judge was entitled to rely on Rs testimony as being reliable since
    the appellant confirmed a central aspect of her evidence, the meeting to
    discuss a threesome with the appellant.

[68]

The
    trial judge accepted Rs evidence and found that she had no motive to collude
    or to fabricate, despite R remaining in court during the complainants
    examination-in-chief at the preliminary inquiry. It is apparent from his
    reasons that he believed Rs violation of the court order excluding witnesses
    was not deliberate; she did not appreciate that she was going to be a witness
    at the time.

[69]

When
    a witness has remained in court in violation of a court order, the witness is
    not necessarily disqualified. Depending on the circumstances, the trial judge
    may exclude the witnesss evidence. The effect that remaining in a courtroom in
    contravention of an order has on the weight given to a witnesss evidence is
    for the trier of fact to decide:
R. v. Dobberthien
,

[1974] 2
    S.C.R. 560.

[70]

In
    my opinion, even if R had not remained in the courtroom during the complainants
    examination-in-chief, she would have been familiar with the complainants story
    because she was her best friend. More importantly, the trial judges reasons
    assess whether R colluded with the complainant to fabricate her evidence. In
    doing so, the trial judge was conducting an assessment of the overall reliability
    of Rs evidence. I would not give effect to this ground of appeal.

(5)

Did the trial judge improperly rely on the complainants willingness to
    go through the criminal process to bolster her credibility and to find she had
    no motive to fabricate the allegations against the appellant? Did the trial
    judge reverse the burden of proof?

[71]

The
    appellant submits that the trial judge improperly used the fact that the
    complainant went through the criminal process as lending truth or veracity to
    her complaint and bolstering her overall credibility.

[72]

I
    would not give effect to the appellants argument.

[73]

In
    assessing whether the Crown had proven its case beyond a reasonable doubt, the
    trial judge rejected the appellants contention that the complainant colluded
    with Krista to frame the appellant. He found she had no motive to fabricate or
    lie, reasoning as follows:

[22] [I]t was obvious [the complainant] had no interest in
    being a witness, let alone a complainant in a sexual assault criminal trial. The
    weight of the evidence shows that she was angry that charges were even brought.
    She could have ended the process at any time. She could have told the police
    that she and [the appellant] never had sex at the initial police interview. She
    could have refused to attend the police interview. She could have testified at
    the preliminary inquiry that she and [the appellant] never had sex. At this
    trial she found the cross-examination long, repetitive, bullying and painful, which
    occasionally resulted in flashes of anger and frustration on her part.She
    could easily have changed her story and ended the whole thingShe could have
    also simply failed to attend court, despite the subpoena although in fairness
    she likely thought she had no choice (she said as much)

[62] Furthermore there was nothing in the complainants
    demeanor that would lead me to believe that she wanted to be testifying
    subjecting herself to endless days of repetitive cross-examination as well as
    to the allegation that she was a liar advancing the interest of a different
    scorned woman

[74]

While
    the trial judge noted the complainant was prepared to testify, he also observed
    that she was a reluctant witness who perhaps did not appreciate that she had a
    choice whether to go through the process or not.

[75]

He
    did not find the complainant had no motive to fabricate because she went
    through the criminal process. Rather, he considered the complainants demeanour,
    her lack of animus towards the appellant and her strong animus towards Krista,
    including their angry Facebook exchange.

[76]

The
    appellant submits that if the trial judge improperly relied on this evidence to
    bolster the complainants credibility, he reversed the burden on the Crown to
    prove that the complainant had no motive to fabricate her evidence and shifted
    the onus onto the appellant to explain why the complainant would lie.

[77]

Having
    regard to the trial judges reasons as a whole, and considering them in the context
    of the entire proceedings, the trial judge did not err by reversing the burden
    of proof.

[78]

He
    expressly instructed himself on the principles of
W.(D.)
, and the
    burden of proof as it related to credibility, at paras. 13 and 15 of his
    reasons. He recognized that a criminal trial is not a credibility contest and during
    the trial proceedings, he reminded defence counsel that the appellant did not
    bear the burden of proving the complainant was lying.

(6)

Other Alleged Errors in Rejecting the Appellants Evidence

[79]

The
    appellant submits that the trial judges reasons provide little basis for
    rejecting the appellants evidence on the main issue whether he had sex with the
    complainant. In reasons 1 and 2, the trial judge engaged in speculation and took
    judicial notice of facts beyond what was reasonable. Moreover, the appellants
    admission that he sometimes passed himself off as 17 through messages is not
    contrary to his testimony that his profile never indicated that he was younger
    than 18.

[80]

Reasons
    are to be read as a whole, not dissected in isolation:
R. c. C. R.
(1993),
    81 C.C.C. (3d) 417 (Que. C.A.), per Rothman J.A. dissenting, at p. 419,
    dissenting reasons adopted by the S.C.C., [1993] 2 S.C.R. 226. Taken together,
    the trial judges reasons are a considered rejection of the appellants
    evidence. It was open to the trial judge to infer that the appellant was
    interested in meeting women under the age of 18 from the fact that he posted
    his age as 18 or 19 and that he sent messages stating he was 17.

[81]

The
    appellant submits that the trial judge engaged in speculation when he rejected
    the appellants evidence that the complainant looked the same as she did when
    she was 13. There was no contradiction of the appellants evidence.

[82]

The
    trier of fact is not bound to accept the evidence of a witness simply because
    there is no contradiction of it. It was open to the trial judge to apply his human
    experience that a person who is 19 will not look the same as she did when she
    was 13 and to reject the appellants evidence. In any event, the trial judge
    indicated this was not a major consideration in his assessment of the
    appellants credibility as looks can be deceiving and subjective and it was
    only one consideration among several reasons he gave.

[83]

In
    relation to reason 4, the appellant submits that the lack of evidence of his inquiry
    into the complainants age is of little import since he believed she was 18 and
    the age of consent was 14 at the time. He points out that contrary to the trial
    judges finding that he knew that he might well have been meeting someone
    underage, the appellant only admitted to communicating with persons under 18. He
    denied he would meet with anyone he knew was under the age of 18.

[84]

The
    appellant testified that he assumed that R was about the same age as the
    complainant, whom he believed was 18. He agreed in cross-examination that there
    was a chance that she could have been younger. Therefore, there was a chance
    the complainant was younger than 18 yet the appellant was prepared to meet with
    her and not ask her age. It was open to the trial judge to find that the
    appellant, an adult of 25, was interested in dating women who were not adults
    and, as he did not make any inquiries to ascertain whether those he met were
    able to consent to a sexual relationship, he might have been meeting someone
    incapable of giving consent.

[85]

I
    have already discussed reason 5 in which the trial judge accepted the evidence
    of the complainant that she stated on her profile that she was 13.

[86]

Reason
    6 refers to the trial judges rejection of the appellants evidence that he
    found the complainant unattractive. The appellant testified that the
    complainant instigated the communications and that his responses were curt. He
    submits that his evidence should have accepted since it was not contradicted.

[87]

This
    aspect of the appellants evidence was contradicted, at least indirectly, by the
    complainants evidence. She explained that she flirted with the appellant and
    he told her he wanted her but that they did not explicitly discuss having
    sexual intercourse before meeting in person. According to the complainant, she
    lifted her top exposing her bra when the appellant asked her to expose her
    breasts on camera. She was also asked to engage in masturbation on camera but
    she refused. The appellant denied using a camera on MSN.

[88]

Although
    the trial judge did not specifically refer to this evidence in rejecting the
    appellants assertion that he found the complainant unattractive, it is part of
    the context for his finding that the appellant would not have continued to
    communicate with the complainant if he found her unattractive.

[89]

In
    reason 7, the trial judge rejected the appellants evidence that it was the
    complainants idea to have a threesome and that it did not happen because he
    did not find the girls attractive. The trial judge misapprehended the
    appellants evidence in making this finding. The appellants evidence was that
    when he met the girls in the park, he knew or had a sense that the threesome
    was not going to happen. Other people were present. He felt he was wasting his
    time so he left.

[90]

The
    trial judge also rejected the appellants evidence since his testimony that he
    was interested in a threesome because the complainant told him her friend was
    hot, gorgeous, and would be into it was incredible. He did not believe the
    appellant would rely on the complainants assessment of her friend despite
    finding the complainant unclassy, foul-mouthed, overweight and unattractive.

[91]

He
    also rejected the appellants evidence on this point because of the timing of
    the complainants prior consistent statement to R, which I have already
    discussed.

[92]

It
    was open to the trial judge to reject the appellants evidence as to whose idea
    it was to have a threesome for the reasons given. His misapprehension of the
    appellants evidence as to why the threesome did not happen did not affect his
    assessment of the evidence as to whose idea it was to have a threesome.

[93]

Accordingly,
    I would dismiss the appellants submission that a new trial is required based
    on these other alleged errors in the trial judges reasons for rejecting the
    appellants evidence.

F.

Disposition

[94]

For
    these reasons the appeal was dismissed.

Released: (K.M.W.) November 6, 2015

Karen
    M. Weiler J.A.

I agree Alexandra Hoy A.C.J.O.

I agree G. Pardu J.A.

[1]
The age of consent was changed from 14 to 16 on May 1, 2008: R.S. 2008, c. 6,
    ss. 13, 54.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mastromattei, 2015 ONCA 745

DATE: 20151104

DOCKET: C58561

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Mastromattei

Appellant

Howard Cohen, for the appellant

Jennifer Mannen, for the respondent

Heard and released orally: October 30, 2015

On appeal from the conviction entered on December 6, 2013
    and the sentence imposed on March 6, 2014 by Justice Scott K. Campbell of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for assault and his sentence. His
    defence at trial was self-defence. He admitted punching the complainant but
    maintains that she was the aggressor and that he was required to defend
    himself. The trial judge rejected this defence and concluded that the
    appellants use of force was excessive.

[2]

The appellant makes two submissions: (1) the trial judge erred in
    finding unconvincing the appellants evidence that the complainant grabbed
    his testicles; and (2) the trial judge ought not to have accepted the
    neighbours evidence because they did not see the entire confrontation.

[3]

We do not accept these submissions. The trial judge was entitled to take
    a dim view of the appellants evidence that the complainant grabbed his
    testicles. More important, even if we were to accept the appellants evidence
    on this point, it does not assist him. The trial judges critical finding is at
    page 30 of his transcribed reasons, where he accepted the neighbours evidence
    and held:

All three witnesses described the female as crying out for
    help. Ms. Chevalier and Mr. Renaud described the complainant as being on the
    ground and in what I would characterize as a defensive position. Ms. Chevalier
    and Mr. Renaud described the accused as punching the complainant, Ms. Chevalier
    more times than Mr. Renaud. Ms. Chevalier and Mr. Charette described the one
    person as dragging the other.

That finding was open to the trial judge even though,
    as he recognized, none of the neighbours saw the beginning of the confrontation.
    And that finding shows that the force used by the appellant was excessive.
    Accordingly, the conviction appeal must fail.

[4]

On sentence the appellant was given exactly what he asked for  a
    suspended sentence. We decline to interfere with this sentence.

[5]

Accordingly, the conviction appeal is dismissed. Leave to appeal
    sentence is refused.

John
    Laskin J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.