COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Bedzra, 2014 ONCA 408

DATE: 20140516

DOCKET: M43776

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Evans Bedzra

Applicant

John H. Hale, for the applicant

Susan Magotiaux, for the respondent

Heard: May 9, 2014

On application for an extension of time to file an appeal, and on application
    for judicial interim release pending appeal from the convictions entered on
    September 10, 2013 and the sentence imposed on December 20, 2013 by Justice
    R.N. Fournier of the Ontario Court of Justice, sitting without a jury.

Lauwers J.A.:

[1]

The applicant was convicted of 36 counts in connection with two complainants:
    assault with a weapon (6 counts); assault (9 counts); breach of probation (13
    counts); criminal harassment (6 counts); assault causing bodily harm (1 count);
    and mischief under $5,000 (1 count), under ss. 267(a), 266, 733.1(1), 264(3),
    267(b) and 430(4) of the
Criminal Code
, respectively.

[2]

The sentence imposed was a global sentence of three years in custody
    less credit of one year for 133 days in pre-trial custody, for a balance of two
    years less a day. The trial judge also ordered 3 years of probation, a DNA
    order, and a lifetime s. 109 weapons prohibition.

[3]

The applicant seeks an extension of time to file an appeal, and bail
    pending his appeal of conviction and sentence.

A.

The Governing Principles on Bail Pending Appeal

[4]

Watt J.A. laid out the governing principles in
R. v. Manasseri
,
    2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the
Criminal Code
, an
    applicant who seeks release pending the determination of an appeal from conviction
    must establish to the satisfaction of the chambers judge:

i.

that the appeal is not frivolous;

ii.

that the applicant will surrender into custody in accordance with the
    terms of the release order; and

iii.

that the applicants detention is not necessary in the public interest.

An appeal is not frivolous if the proposed grounds of appeal
    raise arguable issues.  An applicant need not establish a likelihood, much less
    a certainty of success on appeal, but must be able to point to a viable ground
    of appeal that would warrant appellate intervention if established.

The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments, on the other:
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced.  The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at state [sic]:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4th) 169 (Nfld. C.A.), at
    pp. 186-187.

[5]

The Crown concedes that the applicant would surrender himself into
    custody in accordance with the terms of any bail order, and I am satisfied that
    he would do so. I now turn to the other two issues under s. 679 of the
Criminal
    Code:
whether
the appeal
    has sufficient merit that, in the circumstances, it would cause unnecessary
    hardship if the applicant were detained in custody; and whether his detention
    is not necessary in the public interest.

B.

The Evidence

[6]

The trial judge reviewed the facts in lengthy oral reasons.  In short,
    the accused was charged with assaulting and otherwise abusing two women with
    whom he had been involved in relationships. The applicants defence was a
    blanket denial.

[7]

The first complainant, Melanie Groulx, testified that she met the
    applicant on August 14, 2011. They lived together from October 2011 until early
    July 2012. Ms. Groulx testified that she was assaulted by the applicant on a
    number of occasions. One included a kick to the stomach and resulted in a
    miscarriage. On another occasion, the applicant hit her in the face,
    dislocating her jaw.

[8]

The second complainant was Lisa Labelle, with whom the applicant had a
    child. Ms. Labelle met the applicant in October 2008. Their relationship was
    on and off until July 2012. She testified that, during this period, the
    applicant assaulted her on several occasions. On one occasion, as the trial
    judge noted, the applicant hit Ms. Labelle in the eye with a beer can while she
    was driving.  In cross-examination, the applicant, in the trial judges words:
    claimed that she backhanded him and that his was an instinctive reaction. In
    short, while he was prepared to admit striking her in the eye with this can, he
    denied that it was intentional and alleged that he apologized subsequently.

[9]

The evidence of the complainants was corroborated in part by the
    testimony of their mothers. The trial judge also referred to a number of text
    messages, Facebook entries and a handwritten note in which the applicant showed
    a degree of remorse for his conduct.

[10]

The
    trial judge recorded the way in which, as the cross-examination continued, the
    applicant backed away from responsibility for the content of his electronic
    communications. The trial judge used this cross-examination in assessing the
    applicants credibility as a witness, apart from its corroborative effects
    around certain incidents. The trial judge concluded that the applicant had
    become the author of his own destruction as a credible witness.

C.

The Merits

[11]

In
    the appeal against conviction, the applicant submits that this case is a
Sheppard
[R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869] appeal regarding the
    insufficiency of the judges reasons for a conviction. He argues that the
    trial judge: committed reversible error by making a blanket finding of guilt
    on all counts based on this credibility finding without going through the
    evidence as it relates to each count and finding that each is proven beyond a
    reasonable doubt.

[12]

Counsel
    submits that the trial judge did not review the elements of the various
    offences or state what specific evidence he accepted as supporting convictions
    on each of the specific offences.

[13]

In
    oral argument, counsel referred specifically to the six counts of criminal
    harassment. He noted that the elements of that offence were not laid out by the
    trial judge, with the possible exception of one count dealing with criminal
    harassment around July 9. In respect of that count, the trial judge noted:
    this was towards the end of the relationship where he was really imposing
    himself, Im indicating three months of time served.

[14]

Counsels
    complaint, as I understand it, is that the trial judge used up six months of
    time served on two of the criminal harassment counts (three months on count 17
    and three months on count 44); this time served would otherwise have been
    available to credit against other counts properly considered by the trial
    judge. There is little, if any, merit in this submission. Section 264 of the
    Code sets out the elements of criminal harassment, including engaging in
    threatening conduct. It was open to the trial judge, having thoroughly
    reviewed the evidence, to find that the elements of criminal harassment were
    satisfied. I also note that the credit at issue was effectively credit of
    3-to-1, a product of the trial judge having been very generous.  In my view,
    his focus was on the global sentence, so that even if there were no criminal
    harassment convictions, there would not have been any impact on the overall
    sentence.

[15]

Counsel
    also submits that the applicant was found guilty of 13 breaches of probation in
    the absence of a fulsome review and consideration of these counts by the trial
    judge. In my view, those breaches were directly related to the assaults that the
    applicant committed while he was required to keep the peace, and did not call
    for further analysis by the trial judge. Moreover, all of the breach of
    probation counts were concurrent and, in the words of the trial judge, did not
    affect the bottom line.

[16]

Similarly,
    the lack of legal analysis on the components of the other offences does not
    persuade me that the trial judge made a legal error. His thorough descriptions
    of the assaults clearly cover the necessary elements of the offences.

[17]

With
    respect to the appeal against sentence, counsel makes the following
    submissions:

Mr. Bedzra spent 133 days in pre-trial custody before being
    released at a bail review hearing in the Superior Court of Justice. At the bail
    review, Justice Ratushny indicated that had all the facts been presented
    properly at the original bail hearing, Mr. Bedzra would likely not have been
    detained.

Defence argued that this error in detaining him was a breach of
    Mr. Bedzras
Charter
rights, specifically s. 11(e), and argued
    that the remedy should be enhanced credit for that pre-sentence custody,
    somewhere in the range of 3-for-1 credit. The Crown opposed anything above the
    standard 1 for 1 credit.  The trial judge agreed that Mr. Bedzras
Charter
right not to be denied reasonable bail had been breached and ordered what he
    referred to as 2-for-1 credit (133 days times 2 being 266 days) rounded up to
    credit for 1 year pre-trial custody. Mr. Bedzra was ultimately sentenced to 3
    years less pre-trial custody.

[18]

The
    Crown has appealed the sentence on the basis that it is demonstrably unfit. The
    Crown asked for a sentence of 4.5 years less pre-sentence custody at 1-for-1,
    amounting to a sentence of about 4 years. If the Crown appeal is successful, the
    applicant could end up serving an additional 2 years in custody.

D.

Mootness of the Appeal

[19]

The
    practical issue for this bail application is that, by the time of the appeal,
    the applicant will have served a substantial proportion of his sentence if he
    is not released. Refusing this bail application might render his appeals moot,
    which would thereby cause him unnecessary hardship. The appeal has not yet been
    perfected, so it cannot be expedited.

E.

The Public Interest Ground

[20]

The
    applicant argues that the
Farinacci
factors that favour enforcement of
    the judgment should only apply where the sentence imposed is lengthy. The
    applicant points out that, even if the Crown is successful on the sentence
    appeal and obtains a 4.5-year sentence, as was the submission at trial, this
    still falls well below the range contemplated in
Farinacci
.  He notes
    that the sentence of two years less a day is much less than the sentence under
    appeal in
R. v. H.B.
, 2014 ONCA 334 (Lauwers J.A.),  in which the
    sentence imposed was eight years for child sexual abuse, and the 10-year
    sentence for sexual assault imposed in
R. v. Doodnaught
, 2014 ONCA 172
    (LaForme J.A.). In both cases, the chambers judges refused bail pending appeal.

[21]

The
    Crown responds that domestic violence is a very serious matter. Domestic
    violence is the kind of crime that is hard to detect, quite often because the
    victims hide the effects of the crimes, downplay them, and recant when they do
    complain.  All of these dynamics are present in this case.

[22]

I
    agree. The applicant committed these acts of domestic violence while he was on
    probation for a conviction on the same ground.  He committed a number of acts
    of violence against two women over a lengthy period of time.  He appears to
    constitute a continued risk, since, according to the pre-sentence report, he
    has no insight into his personal deficiencies.  His tendency, as the trial
    judge noted, is to minimize the seriousness of his actions and to blame others.
    This is exactly the same blame the victim attitude that is shared by one of his
    proposed sureties, so it is highly doubtful that his sureties will adequately
    supervise him. The victim impact statements demonstrate the trauma that the
    applicant has caused and record plainly the fear that the complainants continue
    to experience.

[23]

The
    Crown also argues that the release plan is unrealistic in its expectation that
    the applicant will find employment. The applicants pattern, as detailed by the
    trial judge, is that he does not work, and if he does it is only for short
    periods of time. The applicant prefers to live off others, particularly the
    women that he takes up with. The Crown identifies the applicant as being at a
    very high risk to re-offend.

[24]

In
    my view, the convictions constitute serious crimes against the person. Home
    invasions accompanied by violence are especially unnerving for communities and
    traumatic for victims. The grounds for the conviction appeal are barely
    arguable. I find that the public interest balance required by
Farinacci
favours continued enforcement of the sentence rather than judicial interim
    release. The appeal can be scheduled quickly on an expedited basis once perfected.

[25]

For
    these reasons, the application for judicial interim release is dismissed.

[26]

The
    Crown consents to the extension of time to file the notice of appeal, and it is
    so ordered.

Released:    May 16, 2014                                     P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boughan, 2014 ONCA 360

DATE: 20140505

DOCKET: C55543

Hoy A .C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sukhjit Boughan

Appellant

Ravin Pillay for the appellant

Robin Flumerfelt for the respondent

Heard:  May 1, 2014

On appeal from the sentence imposed on May 8, 2012 by
    Justice N. Backhouse of the Superior Court of Justice.

ENDORSEMENT

[1]

Mr. Boughan was convicted by a jury on a charge of aggravated assault.
    He was subsequently sentenced to 12 months imprisonment. He has abandoned his
    appeal against conviction, but seeks to appeal his sentence.

[2]

The conviction arose out of an incident where a group of five people,
    including the appellant, attacked the victim, Mr. Keer, and left him with
    serious injuries.

[3]

The appellant argues that the sentencing judge erred in finding that he
    was a participant in the assault when the jury had convicted him on the basis
    that he was only a party. The sentencing judge relied on his participation as
    an aggravating factor.

[4]

We do not agree.

[5]

It is true that the appellant was acquitted by the jury on other charges
    that required his direct participation  mischief to Mr. Keers car; weapon
    dangerous (based on the use of a particular bracelet he was wearing); and
    assault of Mr. Keer with a weapon (the bracelet). These were all charges
    where it would have been necessary for the appellant to have been a principal
    to be convicted.  However, it does not follow that the jurors necessarily
    convicted him on the aggravated assault charge in question on the basis that he
    was only a party and not as a participant in the assault.  He could have been
    convicted on either basis.

[6]

A sentencing judge is bound by the express and implied factual findings
    in a jury verdict. Where the factual basis is ambiguous, however, the
    sentencing judge is entitled to arrive at her own independent determination of
    the relevant facts: Criminal Code, s. 724(2);
R v. Brown
(1991), 53
    C.C.C. (3d) 521 (S.C.C.).  Here, that is what the trial judge did and we see no
    basis for interfering with those findings.

[7]

In any event, it doesnt really matter on what basis the jury arrived
    at its decision, in our view, because a sentence of 12 months imprisonment was
    entirely proper in the circumstances.

[8]

While there is a debate about whether the appellant actually
    administered any of the beating sustained by Mr. Keer, there is no doubt that
    he was actively engaged in the preparation for the assault, which the
    sentencing judge found to be a planned and organized attack. Arguably, he was
    the driving force behind it.  The appellant brought the group to Toronto, armed
    with golf clubs, in order to facilitate the attack on Mr. Keer. He had an
    opportunity to call off the confrontation, but declined to do so. Defence
    counsel admitted that he participated in the melee.

[9]

This was a case of group swarming.  Although there had been an earlier
    incidence of violence, instigated by Mr. Keer, Mr. Keer was unarmed and
    defenceless at the time of the attack.  He was seriously injured.

[10]

The
    sentence was well within the range of appropriate sentences for this type of
    offence involving this type of offender. We see no basis for interfering with
    it.

[11]

Leave
    to appeal sentence is granted, but the appeal against sentence is dismissed.

Alexandra
    Hoy A.C.J.O.

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carson,
    2014 ONCA 368

DATE: 20140507

DOCKET: C57403

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacob Carson

Appellant

Alan B. Richter, for the appellant

Michael Fawcett, for the respondent

Heard: May 6, 2014

On appeal from the conviction entered on May 7, 2013 by
    Justice L.E. Chester of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the conclusion by the trial judge that he was
    the person who threw a flaming object on top of a shopping mall roof was
    unreasonable.

[2]

There was an ample basis for the trial judges conclusion.

[3]

There is no basis for this court to re-weigh the evidence.  It was open
    to the trial judge to conclude that the third party evidence did not raise a
    reasonable doubt.

[4]

Appeal dismissed.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall, 2014 ONCA 348

DATE: 20140501

DOCKET: C53038

Goudge, Cronk and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Edward Hall

Applicant/Appellant

Robert Sheppard, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: April 16, 2014

On appeal from the sentence imposed on January 4, 2011 by
    Justice
Kelly A.

Gorman of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

In our view, the trial judge was fully aware of the sentence recently
    imposed on the appellant for the G.S. offences and properly took it into
    account in addressing the predicate offences that were before her.  Equally she
    considered the appellants lack of insight into his crimes but did not
    over-emphasize it.

[2]

In the end, the offences on which the trial judge imposed sentence
    involved a number of innocent children.  They were seriously scarred as a
    consequence of the appellants wrongful conduct.  While the offences are
    historical, they involve a sexual predator abusing young innocent victims, the
    prototype described in
R. v. D. (D.)
(2002), 58 O.R. (3d) 788 (C.A.)
.
In these circumstances, we view as fit the six-year global sentence for all the
    predicate offences, taken together.

[3]

The parties agree that in allocating this sentence to the various
    offences, the convictions for gross indecency and assault with intent should be
    allocated five years each in recognition of the maximum sentence provided by
    the
Code
.  The allocation to the indecent assault convictions remains
    at six years each.  All sentences to be concurrent.  The parties also agree
    that the global sentence of six years be reduced by 42 days to reflect credit
    for pre-trial custody which was overlooked at trial.  Otherwise the sentence
    appeal must be dismissed.

S.T. Goudge J.A.

E.A. Cronk J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ibrahim, 2014 ONCA 355

DATE:  20140502

DOCKET: C54017

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maher Ibrahim

Appellant

Diane Condo, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally:  April 28, 2014

On appeal from the decision entered by Justice McNamara
    of the Summary Conviction Appeal Court, dated July 14, 2011.

By the Court:

[1]

The appellant seeks leave to appeal from the July 14, 2011 order of the
    Summary Conviction Appeal Judge dismissing his appeal against the convictions
    imposed by the trial judge and reducing the global sentence imposed by the
    trial judge to nine months in jail.  The appellant also brings an application
    to introduce fresh evidence pursuant to s. 683 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[2]

Section 839 of the
Criminal Code
provides that an
    appeal against a decision of a Summary Conviction Appeal Judge may, with leave
    of this court, be taken on any ground that involves a question of law alone.
    Leave is, however, granted sparingly.  The court may grant leave: 1) where the
    merits of the proposed question of law are arguable and it has significance to
    the administration of justice beyond the specifics of the case; or 2) where
    there appears to be a clear error of law and the interests of justice require
    that this court review the decision:
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641
.

[3]

The appellant argues that
    this appeal falls within the second category of cases where leave may be
    granted.  The appellant submits that the Summary Conviction Appeal Judge made
    two clear errors of law.  First, he erred in concluding that the trial judge
    had not properly applied
R. v. W.(D.)
, [1991] 1 S.C.R. 742.  Second, he applied the wrong
    test in considering whether the trial judge erred in finding that there was
    evidence adduced with respect to each of the essential elements of the offences
    of criminal harassment.

[4]

We are not persuaded that
    the Summary Conviction Appeal Judge erred in either respect.  We agree with the
    Summary Conviction Appeal Judge that there was no merit to the appellants
    argument that the trial judge failed to apply the principles in
W.(D.).
Further, the Summary Conviction Appeal Court Judge
    properly undertook an unreasonable verdict analysis in response to the
    appellants argument that the trial judge erred in finding that there was
    insufficient evidence to prove beyond a reasonable doubt that the complainants
    were criminally harassed.

[5]

Leave to appeal
    conviction is accordingly denied.

[6]

In our view, the reduced
    sentence imposed by the Summary Conviction Appeal Court Judge was fit and
    disclosed no error of law and therefore leave to appeal sentence must also be
    refused.

[7]

Nor are we satisfied that the proposed fresh evidence could reasonably
    be expected to change the verdict, and is admissible under the test set out in
R.
    v. Palmer
,
[1980] 1 S.C.R.
    759.

[8]

The appellant was convicted of criminal harassment of Elie Abourgeili
    and his wife Antoinette Abourgeili; uttering a threat to cause death to Elie
    Abourgeili; causing Antoinette Abourgeili to receive a threat to cause death to
    Elie Abourgeili; and failure to comply with a recognizance. The harassment
    occurred from the fall of 2007 to the end of March 2008. The appellant
    suspected that Elie Abourgeili was conducting an affair with the appellants
    estranged wife. The trial judge wrote, Whether or not [Elie Abourgeili and the
    appellants estranged spouse] were engaged in an extra marital affair is in my
    view irrelevant to the issues before the court.

[9]

The proposed fresh evidence consists of affidavits of the appellants
    daughter and the appellant. The appellants daughter recounts that Antoinette
    Abourgeili subsequently told her she had discovered that Elie Abourgeili and
    the appellants estranged wife were in fact engaged in an extra marital affair.
    The appellant attaches a copy of Telus Account Information showing that the
    cell phone number 613-875-9099 registered to Elie Abourgeili was cancelled
    February 17, 2008, and cell phone number 613-889-0889 registered to Elie
    Abourgeili was cancelled only on June 11, 2009.

[10]

The
    evidence of the appellants daughter only goes to why the appellant was
    harassing the complainants.  It is, as the trial judge wrote, irrelevant to the
    issue of whether the appellant harassed the complainants. It does not bear upon
    a decisive issue at trial, namely whether the appellant engaged in the
    harassment alleged.  Antoinette Abourgeili did not tell the appellants
    daughter that she had lied at the trial when testifying to persistent and
    unwanted communications from the appellant.

[11]

The
    appellant adduces the Telus records to discredit Antoinette Abourgeili. At
    trial, Ms. Abourgeili testified that she changed her cellular phone number
    three times to discourage the appellant from calling her, but that the calls
    continued. The appellant argues that the account information that he now seeks
    to adduce establishes that she changed her cell phone number once.

[12]

We
    are not persuaded that this evidence calls Ms. Abourgeilis credibility into
    question such that it could reasonably be expected to change the verdict. It in
    fact confirms Ms. Abourgeilis evidence that she changed her phone number
    because of the appellants continued calls.  And the timing of the cancellation
    follows what Ms. Abourgeili testified was a particularly upsetting call on
    Valentines Day, during which the appellant threatened the life of her husband.
    Further, the evidence also contradicts the appellants own evidence at trial
    that the only number that he had ever used to reach Ms. Abourgeili had never
    been changed.

[13]

The
    appellants application for the admission of fresh evidence is accordingly also
    dismissed.

RELEASED:  AH  MAY 2 2014

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaguyutan, 2014 ONCA 384

DATE: 20140512

DOCKET: M43762 C58710

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Alan Kaguyutan

Applicant

Alex Trica, for the applicant

Philippe Cowle, for the Crown

Heard:  May 7, 2014

Application for release pending the appeal from
    convictions entered on January 24, 2014 by Justice Gisele M. Miller of the
    Superior Court of Justice, sitting without a jury.

Lauwers J.A.:

[1]

The applicant was convicted of one count of break and enter and commit
    robbery, and one count of robbery, and received a custodial sentence of 3 years.
    The applicant has appealed his conviction and seeks bail pending appeal.

A.

The Governing Principles on Bail Pending Appeal

[2]

Watt J.A. laid out the governing principles for bail pending appeal in
R.
    v. Manasseri
, 2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the
Criminal Code
, an
    applicant who seeks release pending the determination of an appeal from
    conviction must establish to the satisfaction of the chambers judge:

i.

that the appeal is not frivolous;

ii.

that the applicant will surrender into custody in accordance with the
    terms of the release order; and

iii.

that the applicants detention is not necessary in the public interest.

An appeal is not frivolous if the proposed grounds of appeal
    raise arguable issues.  An applicant need not establish a likelihood, much less
    a certainty of success on appeal, but must be able to point to a viable ground
    of appeal that would warrant appellate intervention if established.

The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments, on the other:
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced. The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at state [sic]:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4th) 169 (Nfld. C.A.), at
    pp. 186-187.

[3]

I am satisfied that the applicant would surrender himself into custody
    in accordance with the terms of any bail order. I now turn to the other two
    issues under s. 679 of the
Criminal Code:
whether
the appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if the applicant were
    detained in custody; and whether the applicants detention is necessary in the
    public interest.

B.

The Facts

[4]

On June 27, 2010, the complainant observed a white SUV pulling into the
    driveway of his home. Two men, one white and one Asian, exited the vehicle on
    opposite sides. They entered the complainants home looking for Oxycodone or
    Oxycontin left over from his late fathers bout with cancer. The Asian man
    bound the complainants hands with duct tape, punched him in the head a few
    times and struck him once or twice across the bridge of his nose with a blue
    coloured metal weapon, causing scarring.

[5]

The police were able to stop the assailants vehicle a short time later.
    There is no doubt that the one white man in the car, Greg Williams, was one of
    the assailants. There were three Asian men in the car stopped by the police. As
    the trial judge put it, at para. 6, the question is whether the Crown has
    proven beyond a reasonable doubt that Mr. Kaguyutan was the Asian man who also
    participated.

[6]

The case against the applicant rested largely on the testimony of
    Michael Silva, who was the owner and driver of the vehicle.  Silva identified
    the applicant as the one who accompanied Williams into the house. The trial
    judge recognized that Silva had a strong motive to identify someone other than
    himself as the person who accompanied Williams, because a conviction on more
    serious charges would have resulted in Silvas deportation. The trial judge treated
    Silva as a witness whose evidence should be approached with caution because of
    his motives, his testimony and the opportunity he had to communicate with
    Williams while they were housed together for 5 days at Maplehurst. She noted
    that Silva denied spending time in the same cell as Williams despite being
    confronted with Maplehurst records to the contrary. She also rejected his
    evidence that he did not notice what the assailants were carrying when they
    entered the house.

[7]

The trial judge found that she could not convict the appellant on the
    complainants evidence alone, given the frailties of in-dock identification and
    his agitated mental state during the home invasion. But she found, at para. 84,
    that certain portions of his evidence in combination with the evidence of
    Michael Silva, give me confidence that Richard Kaguyutan was correctly
    identified as the individual who entered Mr. Grattos home, together with Greg
    Williams, to effect a robbery.

C.

The Merits of the Appeal

[8]

The conviction appeal rests on two grounds. The applicant argues: first,
    that the trial judge failed to confront exculpatory evidence in her reasons for
    judgment; and, second, that she erred in her consideration of confirmatory
    evidence.

(1)

The Trial Judge Failed to Confront Exculpatory Evidence

[9]

The complainants testimony, which the trial judge accepted, was that his
    assailants exited from opposite sides of the car. Silvas testimony was that
    the applicant was sitting in the rear of the car on the passenger side when the
    assailants left the car. Since it was agreed that Williams, who was seated in
    the front passenger seat, was one of the assailants, this aspect of Silvas
    testimony suggested that the applicant was not one of the assailants and that
    either Ricardo, the other occupant of the car, or Silva himself, entered the
    home with Williams. The applicant submits that the trial judge was obliged to
    deal with this discrepancy in the evidence and failed to do so.

[10]

The
    trial judge noted the discrepancy in the evidence, at para. 78. The case law is
    clear that a trial judge is not obliged to reconcile every piece of discrepant
    evidence. Viewing the trial judges reasons as a whole, it is plain that she
    accepted very little of Silvas evidence. In this instance the fair inference
    is that she did not accept Silvas evidence when they arrived at the
    complainants home.

[11]

The
    applicant also argues that the trial judge referred to, but did not address,
    the difference between the complainants description of the Asian assailants shirt
    as dark, and her finding that the applicants shirt was light grey. This, says
    the applicant, was exculpatory evidence which suggests that he was not the assailant.

[12]

This
    submission does not, in my view, withstand scrutiny. The trial judge referred
    to the evidence about clothing at paras. 25 and 70:

Mr. Silva described himself as wearing a black leather jacket
    and jeans; he was unsure if he was wearing sunglasses. Mr. Silva described Mr.
    Williams as wearing a sports jersey and jeans and Mr. Kaguyutan was wearing a
    light coloured T-shirt and shorts. He thought Mr.  Kaguyutan was wearing
    sunglasses.

Richard Grattos description of clothing worn by his Asian
    attacker is different from what Mr. Kaguyutan was wearing according to Mr.
    Silva.  Mr. Grattos description of what the white man was wearing also differs
    from what Mr. Silva says Mr. Williams was wearing.  None of the arresting
    police officers gave evidence as to what any of the vehicle occupants was
    wearing. Video evidence was admitted showing what each of the occupants of the
    vehicle was wearing on arrest, except for Mr. Williams.

[13]

Silvas
    description of what people were wearing did not match the video evidence, to which
    the trial judge referred at para. 53:

The videos reveal that Mr. Silva was wearing jeans and a white
    hoody with a black short-sleeved t-shirt over top; Mr. Ricardo jeans and a
    white short-sleeved T-shirt; and Mr. Kaguyutan a grey long-sleeved shirt with a
    ¼ zip front, the sleeves rolled partway up his forearms, and shorts with a
    green camouflage pattern.

[14]

The
    trial judge compared the complainants recollection of the Asian assailants
    shirt with the applicants clothing as shown in the video, and concluded that
    the two were consistent. She found, at para. 79: The grey shirt worn by Mr.
    Kaguyutan in the video is also consistent with Mr. Grattos recollection that
    the Asian man was wearing a dark shirt, although I would describe Mr.
    Kaguyutans shirt as light grey. The trial judge was alive to the discrepancy
    between the complainants description of the Asian assailants shirt as dark,
    and her own description of the applicants shirt as it appeared in the video as
    light grey, and still concluded that the applicant matched the complainants
    description. I have trouble finding this to be a fatal inconsistency, since
    colour description is surely relative in this context.

[15]

The
    applicant also argues that the trial judge failed to consider the exculpatory
    implication of her finding that the video showed Silva to have a medium
    build, which matched the complainants description of the assailant.  The
    applicant was more heavy set than the others. This submission ignores the
    evidence tending to exculpate Silva. The trial judge noted both Silvas
    distinct style of dress as recorded on the video, and his testimony that he
    turned the car around on the driveway while the assailants were inside the
    home. Although the trial judge did not point to these facts as exculpatory in
    relation to Silva, they undermine the significance placed by the applicant on
    the trial judges description of Silva as medium build. In light of the
    evidence exculpatory of Silva, it is immaterial that the trial judges
    reference to Silvas build matches the complainants description of the
    assailant.

(2)

The Trial Judge Erred in her Consideration of Confirmatory Evidence

[16]

The
    applicant argues that the trial judge relied on some items of evidence as
    confirmatory of Silvas testimony that were not in fact confirmatory. The
    applicant also argues that since the trial judge found that Silva was not
    credible on certain matters, she was obliged to be more definitive about the
    evidence on which she relied as confirmatory of his testimony.

[17]

More
    specifically, the applicant argues that Silvas testimony that the applicant
    was wearing a light-coloured shirt was not confirmatory, but was, in fact,
    exculpatory. I have addressed this above.

[18]

Further,
    the trial judge noted that Silvas testimony on the applicants position in the
    vehicle was confirmed by the evidence of the arresting officers. But this,
    argues the applicant, was also exculpatory. If the applicant was in the rear
    passenger seat, it was unlikely that he was one of the assailants. The
    arresting officers evidence, however, relates only to the occupants positions
    in the vehicle when it was stopped by the police, not when they arrived at the
    complainants home. Considered in context, the officers evidence was not
    exculpatory. Although there is some merit to the applicants submission that
    the trial judges examples of confirmatory evidence were not especially
    relevant to Silvas credibility, this ground of appeal must be considered in
    light of the other evidence supporting the applicants conviction, including
    the trial judges finding that the complainants description of the assailant
    was consistent with the applicant as he appeared in the video.

D.

The Mootness Issue

[19]

The
    practical issue that arises on this application is that by the time the appeal is
    heard and determined, the applicant will have served a substantial proportion
    of his sentence. Refusing this bail application might render his appeal moot,
    which would thereby cause him unnecessary hardship. The appeal has not yet been
    perfected, so it cannot be expedited.

E.

The Public Interest Ground

[20]

In
    my view, the convictions constitute serious crimes against the person. Home
    invasions accompanied by violence are especially unnerving for victims and
    communities. The grounds for the conviction appeal are only marginally arguable.
    In this case, notwithstanding the mootness concern described above, the public
    interest balance required by
Farinacci
favours continued enforcement of
    the sentence, not judicial interim release. The appeal can be scheduled quickly
    on an expedited basis once perfected.

[21]

For
    these reasons, the application is dismissed.

Released: May 12, 2014

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kelly, 2014 ONCA 380

DATE: 20140513

DOCKET: C54557

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gerald Raymond Kelly

Appellant

Breana Vandebeek, for the appellant

Jocelyn Speyer, for the respondent

Heard: May 5, 2014

On appeal from the conviction entered on August 31, 2011
    by Justice Patrick A. Sheppard of the Ontario Court of Justice.

By the Court:

[1]

The appellant was convicted of a home invasion robbery.  The sole issue
    at trial was identity.  The Crowns case rested entirely on a K.G.B. statement
    given by the appellants accomplice, who then recanted his statement at trial.
    The trial judge found that the statement was reliable and admitted it for the
    truth of its contents.  The appellant did not testify.

[2]

The appellant advances three grounds of appeal:

(1)

The trial judge erred in drawing
    an adverse inference from the late disclosure of the recantation;

(2)

The trial judge erred by relying
    on the K.G.B. witnesss guilty plea for the truth of its contents; and

(3)

The trial judge erred in admitting
    the K.G.B. statement for the truth of its contents;

[3]

The appellant also brings a motion to introduce fresh evidence
    concerning a discussion in the trial judges chambers before the trial started.

[4]

We did not call on the Crown on either the third ground of appeal or on
    the fresh evidence motion.

[5]

In our view, the trial judge did not err in relying on the K.G.B.
    statement for the truth of its contents.  The circumstances of the taking of
    the statement established its threshold reliability.  Although not under oath,
    the statement was videotaped in its entirety.  The witness was cautioned and
    the statement was voluntary.  Most important, the witness testified at trial
    and thus defence counsel had a full opportunity to cross-examine him, though counsel
    chose not to do so.

[6]

We dismiss the appellants motion to introduce fresh evidence.  The discussion
    in the trial judges chambers did not prejudice the defence and was irrelevant
    to the fairness of the appellants trial.

[7]

We turn now to the two grounds of appeal on which we asked the Crown to
    respond.

(1)

Adverse Inference

[8]

The witness sought to recant his K.G.B. statement.  He did so in a brief
    letter, which was written in March 2011 and delivered by defence counsel to the
    Crown on the first day of trial in July 2011.  The witness then testified
    consistently with his recantation.

[9]

In convicting the appellant, the trial judge drew an adverse inference
    from the late disclosure of the recantation.  The trial judge said:

Once Mr. Scully receives the letter and we do not know the
    precise date that that happened except that it is sometime after it was given
    in the second week of March, 2011, the letter is retained by counsel and
    produced for the Crown on the trial date of July 12
th
, 2011 and not
    before.

Whether or not an alibi case is truly analogous is not
    something the Court need decide today but, I do draw an adverse inference from the
    fact that the recanting of Mr. McIntosh as to the second person present with
    him at the time of the home invasion was never conveyed to Crown counsel who
    could then cause a proper investigation of it to be made and, any investigation
    that was ultimately made by the Kingston Police had to be made by virtue of the
    fact this trial continued in August from its initial trial date of July the 12
th
.

[10]

The
    appellant submits that it was an error of law for the trial judge to draw this
    adverse inference because it undermined the presumption of innocence and the
    appellants right to remain silent.  We agree with this submission.

[11]

Ordinarily
    accuseds have no obligation to disclose their defence.  This principle has
    exceptions that would justify the drawing of an adverse inference for late
    disclosure.  The requirement for the timely disclosure of an alibi defence is
    one such exception.  However, no exception applies to this case, and thus the
    trial judge erred in law in drawing an adverse inference.

[12]

The
    Crowns answer to the appellants submission is that the adverse inference for
    late disclosure of the recantation was drawn not against the appellant but
    against the witness.  Thus, according to the Crown, the adverse inference did
    not undermine the appellants right to remain silent, but simply undermined the
    witnesss credibility.

[13]

We
    disagree.  It is evident from the passage of his reasons we have quoted above
    that the trial judge drew an adverse inference against the appellant.  He was
    wrong to do so.  Moreover, he then used the late disclosure of the recantation
    to support his finding of guilt.  The trial judge said:

The passage of this time plus the failure to disclose the
    recanted identity plus the Court[s] own observations of the demeanour of Mr.
    McIntosh on the tape have all satisfied me to the level of beyond a reasonable
    doubt that Mr. Kelly was the second person in possession of the two knives at
    the home invasion on December the 6
th
, 2009, that was described in
    detail by Mr. McIntosh in his video statement of April the 8
th
,
    2010.

In reaching this conclusion, the trial judges reliance
    on the late disclosure was wrong.

[14]

As
    the trial judges error cannot be disentangled from his other reasons for
    convicting the appellant, the error deprived the appellant of a fair trial.  On
    this ground alone, the conviction cannot stand.

(2)

The witnesss guilty
    plea

[15]

The
    appellant also submits that the trial judge erred by using the witnesss guilty
    plea and the guilty plea proceedings for the truth of their contents.  We do
    not accept this submission.  The trial judge did not use the guilty plea
    proceedings for a hearsay purpose, which would have been improper.  He used
    these proceedings solely to assess the reliability of the witnesss
    recantation.  This was a proper use of the guilty plea proceedings.  We
    therefore do not give effect to this ground of appeal.

[16]

However,
    because the trial judge erred in drawing an adverse inference from the late
    disclosure of the recantation, the appeal is allowed, the conviction is set
    aside and a new trial is ordered.

Released: May 13, 2014 (J.L.)

John Laskin J.A.

S.E. Pepall J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. LaForme, 2014 ONCA 367

DATE: 20140507

DOCKET: C58092

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Marvin LaForme

Respondent

Michael Perlin, for the appellant

Lauren M. Wilhelm, for the respondent

Heard: May 6, 2014

On appeal from the sentence imposed on November 6, 2013
    by Justice Donald J. Gordon of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The Crown seeks leave to appeal from a conditional sentence
    of imprisonment imposed following the accuseds guilty plea to impaired driving
    causing bodily harm. The defence concedes that the sentence imposed was not
    available because s. 742.1 forecloses the imposition of a conditional sentence
    for a serious personal injury offence, defined in s. 752 of the
Criminal
    Code
as:

1.

An indictable offence

2.

Punishable by a term of imprisonment of ten years or
    more

3.

With conduct endangering the life of safety of
    another person.

[2]

The accused drank 8-10
    beers during the afternoon of February 5, 2011 until he was cut off by the
    bartender. She warned him not to drive, however the accused drove at a high
    rate of speed, swerved in and out of his lane on snow covered roads, lost
    control of his truck and rolled it. A passenger was rendered a quadriplegic as
    a result of the accident. The accuseds blood-alcohol level was more than
    double the legal limit.

[3]

The Crown sought an 18
    month jail sentence following the plea and renews that submission before this
    court. Defence concedes that this is within the range of appropriate sentences
    but suggests that the term of imprisonment should be attenuated by the
    accuseds personal circumstances.

[4]

The accused is 72 years
    old. He has suffered from serious health issues. In November 2011 he was
    diagnosed with two brain aneurysms. One required surgery. The other requires
    monitoring because a rupture could lead to death. On March 13, 2013 he
    underwent a total knee replacement complicated by cellulitis which developed
    after the surgery and which persisted at the time of sentencing.

[5]

The accused is a member
    of the Mississaugas of New Credit First Nation. He grew up on the New Credit
    Reserve. For 22 years he served as elected councillor for the New Credit
    Council.

[6]

The Gladue report
    prepared for the purpose of sentencing indicates that the accuseds own father
    was a drinker and that the accused started drinking at the age of 12 years. He
    was not taught any native language, nor instructed in his aboriginal culture.

[7]

While his counsel
    describes him as an aging aboriginal man who has battled alcohol for most of
    his life, he has made significant contributions to his community. He worked as
    a welder, taught welding at a local college and ran a business for 25 years. He
    is now retired, does volunteer work and is supported by Canada Pension
    payments.

[8]

He is reported to have
    stopped consuming alcohol after this offence. He has five prior driving related
    convictions which are quite dated: dangerous driving in 1968, over 80 operation
    of a vehicle in 1973, failure to provide a breath sample in and impaired
    driving in 1987. He was convicted of assaulting his wife in 1998.

[9]

The accused himself lost
    three siblings as a result of separate incidents of impaired driving.

[10]

Sentences for impaired
    driving causing bodily harm frequently attract custodial sentences.
    Denunciation and general deterrence require emphasis because of the serious
    consequences for other users of the roads. (See
R. v. Junkert
, 2010 ONCA 549). Sentences of four to five years
    have been upheld for impaired driving causing death. (See
R. v.
    Ramage
,
R. v. Niganobe
, 2010 ONCA 508,
R. v. Hall
, (2007),83 O.R. (3d) 641).

[11]

The consequences for the
    accuseds passenger have been catastrophic. Timothy Henry is developmentally
    delayed, but was able to live independently before the accident and participate
    fully in family and community events. Now he is confined to a wheelchair and
    needs help to do all activities. He lives in a nursing home surrounded by
    others much older than he, where, as he says, people passing away on a regular
    basis is part of his daily life.

[12]

Here the sentencing
    judge imposed a conditional sentence because he was concerned that the
    accuseds health problems might go unattended if he were incarcerated. While
    the accused does have health issues, there is no basis to believe that he would
    be any less at risk in the community as opposed to within a custodial institution.

[13]

The accused has now
    served five months and ten days of the conditional sentence of imprisonment,
    under house arrest, and requiring him to perform community service. The
    respondent submits that he should get credit for this time, perhaps on a 1.5 to
    1 basis since parole, statutory remission and early release do not apply to
    conditional sentences, and that the court should consider staying any further
    sentence because of the hardship associated with incarceration at this stage,
    in light of the respondents personal circumstances. On the other hand, house
    arrest has been less restrictive of his liberty than a jail sentence.

[14]

The usual credit in
    these circumstances has been on a one for one basis. (See
R. v.
    G.C.F
. (2004) O.J. No. 3177)

[15]

In our view, given the
    seriousness of the offence, a stay is not appropriate. (See
R.
    v. Veysey
, 2006 N.B.C.A.).

[16]

We see no reason to
    depart from the norm of credit on a one for one basis, rounding the time served
    on the conditional sentence to six months. After credit for this time, the
    accused is sentenced to 12 months.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. LaForme, 2014 ONCA 369

DATE: 20140507

DOCKET: C58092

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Marvin LaForme

Respondent

Michael Perlin, for the appellant

Lauren M. Wilhelm, for the respondent

Heard: May 6, 2014

On appeal from the sentence imposed on November 6, 2013
    by Justice Donald J. Gordon of the Superior Court of Justice, sitting without a
    jury.

ADDENDUM

[1]

For written reasons delivered, appeal allowed, conditional sentence set
    aside, and 12 months incarceration substituted, followed by the two years of
    probation as ordered and on the terms as ordered by the judge of the Superior
    Court.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leduc, 2014 ONCA 379

DATE: 20140512

DOCKET: C57193

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Mallory Leduc

Appellant

Michael Purcell, for the appellant

Molly Flanagan, for the respondent

Heard and released orally: May 6, 2014

On appeal from the conviction entered on August 28, 2012
    and the sentence imposed on August 30, 2012 by Justice Bruce E. MacPhee of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of three burglaries.  The Crowns case
    depended on the evidence of the appellants accomplice, his girlfriend at the
    time.  The trial judge recognized that, in his words, the accomplice was not a
    perfect witness, but nonetheless accepted her evidence.  The appellants sole
    submission on appeal was that though the trial judge dismissed the Crowns
    similar fact application, he then used similar fact reasoning to bolster the
    accomplices credibility.

[2]

The appellant points to two examples in the trial judges reasons: first,
    the trial judges reference to the circumstances of the appellants arrest on
    the fourth burglary and, in particular, the trial judges reliance on the
    appellants possession of a screwdriver on this fourth burglary; and second,
    the trial judges observation of the accomplices overall role in the three
    burglaries for which the appellant was charged.

[3]

We do not accept the appellants submission.  The trial judge was
    entitled to take account of the screwdriver, a common tool used in a burglary,
    as circumstantial evidence supporting the accomplices credibility.  In doing
    so, the trial judge did not engage in propensity reasoning.

[4]

The trial judge was also entitled to rely on the totality of the
    evidence and consider the accomplices role in the three burglaries.  In doing
    so, he did not engage in similar fact reasoning.  The appellant was tried on
    three counts of break and enter, and the three informations were joined on the
    consent of counsel.  It was thus entirely appropriate for the trial judge to
    take account of the accomplices role in the three burglaries.

[5]

Accordingly, the appeal is dismissed.

John Laskin J.A.

S.E. Pepall J.A.

G. Pardu 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), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.Y., 2014 ONCA 438

DATE: 20140529

DOCKET: C53968

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.Y.

Appellant

J. Chahal, for the appellant

C. Tier, for the respondent

Heard: May 22, 2014

On appeal from the conviction entered on June 10, 2011 by
    Justice
Louise L.
Gauthier of the Superior Court of
    Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant tendered fresh evidence by way of an agreed statement of
    fact.  The Crown agrees that the fresh evidence should be admitted, the
    convictions set aside and a new trial ordered.

[2]

We agree and order accordingly, pursuant to s. 686(1)(a)(iii).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGee, 2014 ONCA 358

DATE: 20140502

DOCKET: C57632

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David McGee

Applicant/Appellant

Norman Peel, Q.C., for the appellant

Molly Flanagan, for the respondent

Heard and released orally: April 30, 2014

On appeal from the conviction entered on August 20, 2013
    by
Justice R.G.E.

Hunter of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

After an altercation at home in November 2012, the appellant was charged
    with six counts of assault, assault with a weapon, mischief and uttering
    threats.  Some of the counts involved allegations of historical acts of
    domestic violence against his wife and daughter.  Following a half-day trial on
    August 20, 2013, the appellant was convicted on five counts by Justice R.G.
    Hunter of the Ontario Court of Justice.  The appellant appeals his conviction
    on only one count, namely, the conviction for assault with a weapon.

[2]

The information for this count alleged that the appellant assaulted his
    wife with a chair between January 1 and December 31, 1999.  The appellant
    contends that the evidence at trial does not support a conclusion that the
    offence, if committed, was committed at any time in 1999.

[3]

The wifes testimony about this offence, both in chief and on cross, was
    very brief.  However, she said that it may have happened in 1999, but also that
    it happened when she was pregnant with her son who at the time of trial was
    17.  This would mean that the offence would have taken place in 1996.

[4]

Neither counsel at trial explored this potential discrepancy.  On
    appeal, the appellant contends that this discrepancy is serious enough to
    warrant that the appeal be allowed and an acquittal entered.

[5]

The Crown responds with two submissions: (1) in this case, timing is not
    an essential element of the offence; and (2) alternatively, this court,
    pursuant to s. 683(1)(g) of the
Criminal Code
, should amend the
    information to conform with the evidence at trial.

[6]

We agree with the Crowns first submission.  In the normal course, the
    date on which an offence is alleged to have been committed is not an essential
    element of that offence: see s. 601(4.1) of the
Criminal Code
; R. v
B.(G.)
,
    [1990] 2 S.C.R. 30, at paras. 37-38 and 43; and
R. v. S.D.
, 2011 SCC
    14, at paras. 1-2.

[7]

The exception to this general rule arises in a case where the time of
    the offence is critical and the accused may be misled by the variance and
    therefore prejudiced in his or her defence:
B.(G.)
at para. 38.

[8]

In our view, this exception does not come into play in this case.  The
    appellant knew the case he had to meet  did he throw a chair at his wife and
    hit her?  Further, it is clear from the record, including the cross-examination
    of the complainant, that the date of the alleged offence played no part in the
    appellants defence.

[9]

The appeal is dismissed.  We record that the appellant abandoned his
    appeal of the two uttering threat convictions.

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mughal, 2014 ONCA 349

DATE: 20140502

DOCKET: C56565

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Mughal

Appellant

R. Craig Bottomley, for the appellant

Jason Balgopal, for the respondent

Heard: April 15, 2014

On appeal from the convictions entered on November 4,
    2013 by Justice
S. Gail
Dobney of the Ontario Court of
    Justice.

ENDORSEMENT

[1]

The appellant was convicted of 11 offences against his wife and his
    three children.

[2]

He was convicted of assaulting his wife (count 1), and sentenced to 15
    days in jail, concurrent to his other sentences, for this offence.  He was
    acquitted of one count of assault with a weapon on his wife (count 2).

[3]

In relation to each of his three children, Rafay, Maheen and Ali, he was
    convicted of three offences: simple assault (counts 3, 6 and 9), assault by
    threatening to use a knife (counts 4, 7, and 11), and threatening to cause
    serious bodily harm using a knife (counts 5, 8 and 12).  For each of these nine
    offences the trial judge imposed a 30-day sentence.  The sentences relating to
    each child were made concurrent to the sentences for the other two offences
    relating to the same child.  The total sentences relating to each child were
    made consecutive to the sentences relating to the other two children.

[4]

The appellant was also convicted of a separate assault with a knife of
    Ali (count 10) for which he received 30 days, concurrent to the other sentences
    relating to Ali.

[5]

The end result was a 90-day sentence that the trial judge ordered to be
    served intermittently, together with a two-year probation order.

[6]

The appellant takes no issue with his conviction for assaulting his
    wife.

[7]

He does, however, raise three issues on the appeal of his other
    convictions: propensity reasoning; misapprehension of evidence; and the
Kienapple
principle.

[8]

The first of these is enough to dispose of the conviction appeal.  In
    giving his evidence, the appellant made admissions that support his conviction
    for simple assault of Rafay (count 3), his conviction for assaulting Ali by
    threatening to use a knife (count 11), and his conviction for the separate
    assault with a knife of Ali (count 10).  In registering convictions on these
    counts, the trial judge considered the appellants admissions together with the
    evidence of his children to be sufficient.  She did not use propensity
    reasoning to convict and we see no basis to interfere with her conclusion on
    these counts.

[9]

However, the appellant made no such admissions in denying the other
    offences.  With respect to these convictions, we conclude that the trial judge
    rejected the appellants evidence solely on the basis that if the appellant was
    prepared to assault Ali by threatening him with a knife, it is not beyond
    belief that he was the kind of person who would act similarly towards his other
    two children.  Since the Crown made no similar fact application and we cannot
    say that such an application would inevitably have been successful, this error
    requires that the convictions on counts 4, 5, 6, 7, 8, 9 and 12 be set aside
    and new trials on those counts be ordered.

[10]

There
    is no need for us to deal with the misapprehension issue since it deals with
    counts 6 and 9, on which we have ordered new trials, and count 3, on which we
    are satisfied that the appellants admissions at trial support his conviction.

[11]

Nor
    need we deal with the
Kienapple
issue
[1]
.
    It was argued by the appellant to apply where the appellant was convicted of
    assaulting a child by threatening to use a knife and of threatening to cause
    serious bodily harm using a knife in relation to the same child.  No pair of
    the convictions that we have upheld fits this description.

[12]

The
    sentences imposed by the trial judge for the convictions that we have left
    undisturbed are 30 days for count 3, (the simple assault of Rafay); 30 days for
    count 10, (the separate assault on Ali); and 30 days for count 11, (the assault
    of Ali by threatening to use a knife).  The two sentences in relation to Ali
    are concurrent to each other.  The resulting 30-day sentence in respect of the
    offences against Ali is consecutive to the 30 days imposed for the conviction
    on count 3, relating to Rafay.  The 15-day sentence for count 1 is concurrent to
    both these sentences.  The overall result is a 60-day sentence ordered to be
    served intermittently, together with two years probation.

[13]

In
    all the circumstances, we see no basis to interfere with the global sentence
    the trial judge imposed for the convictions we have left undisturbed.  In our
    view, it is not unfit.

[14]

In
    the end, the conviction appeal is allowed to the extent that the convictions on
    the counts specified in these reasons are set aside and a new trial is ordered
    on those counts, should the Crown choose to proceed.  We would not interfere
    with the sentences for the convictions that remain.  Accordingly, while leave
    to appeal sentence is granted, the sentence appeal concerning the remaining
    conviction is dismissed.

S.T.
    Goudge J.A.

E.A. Cronk J.A.

Gloria Epstein J.A.

[1]

R. v. Kienapple
,
[1975] 1 S.C.R. 729.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nevills, 2014 ONCA 340

DATE: 20140501

DOCKET: C56287

Doherty, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Nevills

Appellant

James Nevills, appearing in person

Joseph Di Luca, appearing as duty counsel

Riun Shandler, appearing for the respondent

Heard: April 7, 2014

On appeal from the convictions entered by Justice J.
    McMahon of the Superior Court of Justice on June 29, 2012 and on appeal from
    the sentence imposed on October 31, 2012.

ENDORSEMENT

[1]

The conviction appeal was not pursued in argument and is dismissed.

[2]

The trial judges imposition of a global sentence of 9 years was well
    within the range for these very serious offences committed by a repeat offender
    who was under a variety of weapon prohibition and probation orders.

[3]

The trial judge gave the appellant 1:1 credit for 19 ½ months of
    pretrial custody.  He declined to give him 1.5:1 credit as permitted under s.
    719(3.1).  The trial judge who did not have the benefit of this courts
    judgment in
R. v. Summers
, [2013] O.J. No. 1068, affd 2014 S.C.C. 26
    appears to have held that the loss of earned remission which does not attach to
    pretrial custody was not in and of itself enough to trigger s. 719(3.1).  That
    holding cannot stand in light of this courts pronouncement in
Summers
as affirmed by the Supreme Court of Canada.

[4]

However, s. 719(3.1) requires a consideration of all of the circumstances.
    Certain circumstances specifically exclude the operation of s. 719(3.1) and,
    therefore, the availability of enhanced credit up to 1.5:1.  For example, where
    a person was detained on a bail hearing for the reason identified in s.
    515(9.1), he cannot obtain 1.5:1 credit for pretrial custody.  Section 515(9.1)
    refers to cases where bail is refused primarily because of a previous
    conviction.

[5]

There is no evidence whether the appellant even applied for bail.  It
    seems clear, however, that his previous convictions would inevitably have
    played a dominant role had he applied for bail.  He has over 70 prior
    convictions and was released from jail only three days before committing these
    offences.

[6]

As explained in
R. v. Morris
, [2013] O.J. No. 1583 at paras.
    17-19, a trial court can consider the entirety of the circumstances.  Where
    those circumstances clearly place the offender within the provisions that
    exclude the potential giving of 1.5:1 credit, the trial judge is entitled to
    take that into account even though the formal order required by these
    provisions was not made.  This offenders previous convictions more than
    justified his detention.  He is caught by the spirit, if not the letter, of s.
    719(3.1).  The trial judge did not err in giving 1:1 credit.

[7]

The appeal is dismissed.

Doherty J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Oraha,
    2014 ONCA 359

DATE: 20140505

DOCKET: C55275

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Selwan Oraha

Appellant

D. Condo, for the appellant

B. Gluckman, for the respondent

Heard: April 28, 2014

On appeal from the sentence imposed on March 2, 2012 by
    Justice Todd L. Archibald of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant Selwan Oraha was convicted of possession of three kinds of
    drugs for the purpose of trafficking (cocaine, methamphetamine and MDMA), as
    well as conspiracy to traffic cocaine.  The trial judge imposed a global
    sentence of nine years in custody less four months credit for pre-sentence
    custody.  The appellant appeals this sentence on three grounds.

[2]

First, the appellant contends that after concluding that the appropriate
    range of sentence for possession of cocaine for the purpose of trafficking was
    six to eight years for a first offender, the trial judge erred by imposing a
    sentence of nine years for this offence.

[3]

We are not persuaded by this submission.  The six to eight year range
    was supported by the relevant case law and the actual nine year sentence was
    justified on the basis of the other offences committed by the appellant and the
    totality principle.

[4]

Second, the appellant asserts that the trial judge erred by not applying
    the parity principle as between the appellant and Mr. Nguyen who received a six
    year sentence.

[5]

We do not accept this submission.  We agree with the trial judge that
    there were important factors that justified a higher sentence for the
    appellant, including the much higher quantum of drugs in his possession and the
    fact that the appellant was a supplier of drugs to Mr. Nguyen.

[6]

Third, the appellant asserts that the trial judge overemphasized the
    principles of denunciation and deterrence and ignored the principle of totality
    and/or proportionality.

[7]

We disagree.  The trial judge considered a broad range of mitigating
    factors and emphasized the strong prospect of the appellants rehabilitation.
    This clearly factored in his global sentence.

[8]

The appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peters, 2014 ONCA 402

DATE: 20140516

DOCKET: C55291

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Richard Peters

Appellant

Frank D. Crewe, for the appellant

Karen Papadopoulos, for the respondent

Heard: May 2, 2014

On appeal from the convictions entered by Justice Paul F.
    Lalonde of the Superior Court of Justice dated February 11, 2011.

MacPherson J.A.:

[1]

The appellant was charged with multiple counts relating to three violent
    incidents at three separate houses in Kingston over a six-day period.  In two
    of the incidents, two armed and masked men broke into two houses and stole
    property.  In the third incident, a man assaulted another man in his home and
    departed.  Several hours later, a man returned to the same home with a shotgun
    and shot the front door as the victim slept.

[2]

At trial, the sole issue was whether the appellant was one of the culprits
    in the first two incidents and the culprit in the third incident.

[3]

The trial judge found that the appellant had committed the offences
    relating to one of the home invasions and the offences relating to the
    assault/firing at the front door incident.  He acquitted the appellant of the
    offences relating to the second home invasion. He also acquitted a co-accused
    of all charges relating to both home invasions.

[4]

The appellant received a global sentence of 12 years imprisonment less
    2½ years for time served.

[5]

The appellant appeals his convictions on three grounds. He initially
    appealed his sentence, but abandoned this component of his appeal.

(1)
The assault offence and
    identification evidence

[6]

The appellant contends that the trial judge misdirected himself with
    respect to the identification evidence of Bianca Thibodeau and the complainant,
    Tyler Roberts, relating to the third violent incident, namely, the assault on
    Tyler Roberts in his home.

[7]

The trial in this case lasted five days. Twelve witnesses testified.
    There were three incidents, two home invasions and an assault in a private
    home.  There were two accused for the two home invasions and the appellant was
    the sole accused in the third incident, the assault on Tyler Roberts.

[8]

Two days after the trial, the trial judge delivered comprehensive
    reasons for judgment. After reviewing the testimony of the twelve witnesses,
    the trial judge analyzed, and reached a decision, on each of the 12 counts in
    the indictment.

[9]

On count 9, which applied only to the appellant, the trial judge
    reasoned:

I find that James Richard Peters is guilty of count number nine
    of assaulting Tyler Roberts contrary to s. 266 of
Criminal Code of Canada
.
I accept without hesitation the evidence of Bianca Thibodeau who knew the
    accused
through Mary Leeder, who hung around Tyler Roberts apartment at
    193 York Street in Kingston.  She adamantly refused defence counsels
    suggestion that the man she saw come in the apartment, hit Mr. Roberts about
    the head and leave could have been someone else other than Mr. Peters.
I
    accept Mr. Roberts evidence
that he was hit six or seven times about his
    head on December 10
th
, 2009 while sitting on a couch in his
    apartment.  He stated during his examination in-Chief that
it was Mr.
    Peters whom he knew that had hit him
, and later in cross-examination said
    that he was not 100 percent sure that it was Mr. Peters that had hit him. Im
    satisfied beyond a reasonable doubt that Mr. Peters is guilty of the assault.
    Tyler Roberts never once looked at the accused. It was apparent to me that his
    fear of Mr. Peters made him less than truthful during his cross-examination.  [Emphasis
    added.]

[10]

The
    appellant contends that the trial judge misapprehended the evidence in two
    important respects in this passage.  The trial judge said that Bianca Thibodeau
    knew the accused and that the accused was a person whom [the complainant]
    knew.  Both of these descriptions, says the appellant, are incorrect.

[11]

I
    agree with this submission.

[12]

Bianca
    Thibodeau was either 15 or 16 years old when she saw the assault on Tyler
    Roberts in his home.  She testified that the culprit arrived with Mary Leeder,
    assaulted Mr. Roberts very soon after his arrival, and then left.  According to
    Ms. Thibodeau, the appellant was in the house probably five minutes at the
    most.  Later in her examination in-chief, Ms. Thibodeau testified:

Q.      Now with respect to Ricky Peters, prior to that day had
    you ever met Ricky Peters before?

A.      No.

Q.      After that day did you see Ricky Peters again?

A.      No.

Q.      Between that day and today have you seen Ricky Peters
    before?

A.      Yeah, in court.

Q.      And that was at the preliminary inquiry?

A.      Yeah.

Q.      Did you identify him then?

A.      I believe so, yeah.

[13]

On
    the cross-examination of Ms. Thibodeau, this exchange took place:

Q.      Okay. And after this happened, when you ended up
    talking to the police you  did you ever go and see a line-up of people and
    identify who was the male that had been there that day?

A.      No.

Q.      And the police never gave you a series of photos, like
    a line-up of photos to take a look at to identify the male who was there that
    day?

A.      No.

[14]

Turning
    to Mr. Roberts, the complainant, he gave this testimony in cross-examination:

Q.      And in fact, when you were introduced to this male it
    was the first time you had met him, correct?

A.      Yeah.

Q.      Okay, and is it fair to say, Sir, that you really
    werent paying a lot of attention to this new male who had just got there?

A.      Yes.

Q.      Okay, and you briefly looked at him but you didnt
    study his face did you?

A.      No.

Q.      And after the fact, Sir, you were never given a photo
    line-up to look at, correct?

A.      Nope.

Q.      Okay.  So he comes in, you dont really pay attention,
    youre playing your game, youre hit by this person, youre not really paying
    attention to his face and then he leaves?

A.      Yeah.

Q.      Is that a correct summation?

A.      Yeah.

[15]

In
    my view, these excerpts from the testimony of Ms. Thibodeau and Mr. Roberts
    undercut the trial judges analysis on count 9.  Central to that analysis was
    the trial judges view that both of these witnesses had known the appellant
    before the night the assault took place.  With respect to both witnesses, it is
    clear that this prior knowledge was an important factor in the trial judges
    decision to credit their testimony.

[16]

In
    fact, neither witness had seen the appellant before that evening, the appellant
    was only in the house for about five minutes, the complainant was not looking
    at his assailants face during the assault, and neither witness was shown a
    photo line-up. In these circumstances, Ms. Thibodeaus in dock identification
    of the appellant as the culprit and Mr. Roberts at best equivocal in dock
    identification are not, with respect, sufficient to ground a safe conviction of
    the appellant on count 9 of the indictment.  Accordingly, I would allow the
    appeal on this ground.

(2)
The first home invasion  an
    alternate suspect

[17]

The
    appellant submits that the trial judge erred by not addressing the possibility
    that there was an alternate suspect for the first home invasion. The alternate
    suspect was Gordon Shelley.  Three days after the  home invasion, one of the
    victims of the home invasion, Barry Gleason, told the police that he was 99.9%
    sure that one of the culprits was Gordon Shelley.  In light of this, says the
    appellant, the trial judge had a duty to take the alternate suspect scenario
    more seriously than he did.

[18]

We
    are not persuaded by this submission. The trial judge considered
    Mr. Gleasons testimony:

While testifying Mr. Gleason gave the impression of being an
    angry man. He attempted in vain to pin the home invasion on Gord Shelley who
    had been at Patricia Kellys apartment earlier in the summer of 2009.  His
    bitterness skewed part of his evidence especially on identification.

I see no basis for interfering with this analysis.

[19]

In
    addition, the testimony of Detective Clint Wills, which the trial judge
    described in his reasons for judgment, was strong evidence that Mr. Shelley was
    an implausible, if not impossible, suspect for a violent home invasion
    robbery.  Detective Wills visited Mr. Shelley four days after the robbery and
    described him as a decrepit man he has a lot of medical complications a
    colonoscopy bag a lot of difficulty walking on a lot of pain medication a
    thin man, maybe 120, 130 pounds possibly.  This description could not support
    any realistic possibility that Mr. Shelley was one of the two intruders who
    engaged in the physical and violent activities that were part of the first home
    invasion robbery.

(3)
The
Vetrovec
issue

[20]

The
    appellant asserts that, although the trial judge instructed himself on the
    principles from
R. v. Vetrovec
, [1982] 1 S.C.R. 811, he did not
    sufficiently scrutinize the testimony of three unsavoury witnesses  Victor
    Green, Troy Corkey and Aaron Lee.

[21]

I
    disagree.  The trial judge was not unmindful of the need for caution in
    assessing the credibility of these witnesses and the reliability of their
    evidence.  In the end, he chose to rely on parts of their evidence, especially
    as supported by other confirmatory evidence.  He was entitled to do this.

DISPOSITION

[22]

I
    would allow the appeal and enter a verdict of acquittal on count 9 of the
    indictment.  In all other respects, I would dismiss the appeal.  Since the
    sentence on count 9 was one year concurrent, the global sentence of 12 years
    imprisonment less 2½ years for time served remains the same.

Released: May 16, 2014 (A.H.)

J.C. MacPherson J.A.

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

I agree. R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rathee, 2014 ONCA 341

DATE: 20140501

DOCKET: C55965

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aneal Rathee

Appellant

Mark Halfyard, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally: April 15, 2014

On appeal from the sentence imposed on August 27, 2012 by
    Justice Hugh K. Atwood of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals the sentence of the trial judge alleging two
    errors:  first, in not permitting him to address the court before the sentence
    was imposed; second, in finding that a conditional sentence was not appropriate
    in the circumstances.

[2]

We would not give effect to either ground of appeal.

[3]

The trial judges failure to permit the offender to address the court
    was inadvertent and amounted to a procedural error. In our view, having regard
    to the nature of the information that the accused wanted to bring to the
    courts attention, namely, his remorse, it would not have changed the sentence
    imposed. It is clear on the record that the trial judge was well aware of and
    took into account the offenders remorse.

[4]

In any event, and having regard to the second ground of appeal, we are
    of the view that the sentence was fit in the circumstances, including the
    monetary amount of the fraud, the breach of trust and the lengthy period over
    which the fraud took place.

[5]

The sentence appeal is dismissed.

John Laskin J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sandhu, 2014 ONCA 356

DATE: 20140502

DOCKET: C56274

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Avtar Singh Sandhu

Applicant/Appellant

Paul Burstein, for the appellant

Tom Lemon and Amber Pashuk, for the respondent

Heard: April 29, 2014

On appeal from the conviction entered on September 28,
2012 and the sentence imposed on November 27, 2012 by Justice Gray of the
Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant was convicted of possession of cocaine for the purpose of
trafficking.  He was sentenced to nine years imprisonment.  He appeals the
conviction on two grounds.

[2]

The first ground of appeal relates to three utterances made by the
appellant.  The first was made to Ministry of Transportation Enforcement
Officer Jason Leeman.  When Officer Leeman arrived at the highway spot where
the appellants truck and a silver sedan and their two drivers were pulled
over, he asked the appellant Whats going on?  The appellant responded They
put a gun to my head.  A few minutes later, Constables Paul Kent and Geoff
Clarke arrived on site.  When Constable Kent requested the appellants
registration and permit, the appellant volunteered that two guys had come to
him with a gun and told him to put bags in the back of the truck.  Then as they
walked towards the back of the truck, the appellant repeated his statement.

[3]

At the outset of the trial, a blended
voir dire
was held.  The
principal issue was the admissibility of the cocaine found in the back of the
truck following a warrantless search.  The trial judge wrote extensive reasons
on this issue.  He found that there had been a breach of the appellants s. 8
Charter
rights but he did not exclude the cocaine under s. 24(2).  The appellant does
not appeal this component of the ruling.

[4]

Briefly, and only in his reply submissions, the appellants counsel
raised the issue of admissibility of the three utterances, arguing that the
initial one was compelled under the
Highway Traffic Act
(
HTA
)
and the second and third were obtained in violation of s. 10(b) of the
Charter
.

[5]

The trial judge dealt with this issue in very brief fashion at the end of
his comprehensive ruling:

94. With respect to the utterances of Mr. Sandhu, they were
clearly voluntary.  They were spontaneous utterances and were not preceded by
any promises, threats or attempts at undue influence.  Indeed, they were not
preceded by any police conduct at all, except an inquiry to the effect of
Whats going on?

95. The situation had not developed to the point where Mr.
Sandhu was entitled to be informed of his right to counsel, or given any
caution.  At the time he was asked whats going on?, he was not detained.

[6]

The appellant challenges this component of the trial judges ruling on
several bases: (1) the trial judges reasons for admitting the three utterances
were inadequate and do not afford a meaningful basis for appellate review; (2)
the appellants utterances were compelled by s. 216.1 of the
HTA
and
were, therefore, inadmissible at his criminal trial pursuant to s. 7 of the
Charter
;
(3) the trial judge erred in failing to consider that the appellants statutory
obligation to respond to the demands of Officer Leeman and Constable Kent could
raise a reasonable doubt about the voluntariness of the appellants utterances;
and (4) the appellants two utterances to Constable Kent were tainted by the
appellants interaction with Officer Leeman and/or were obtained in violation
of s. 10(b) of the
Charter
.

[7]

We do not accept these submissions.  In the context of an issue that was
barely raised and briefly argued, the trial judges reasons on this issue are
sufficient for review.  His path to his ruling was simple  the appellant was
not detained.  To contemplate that a regulatory officers common inquiry upon
arriving at a site  Whats going on?  amounts to a detention, thus
triggering a panoply of common law and
Charter
rights, is a stretch
too far.  Moreover, on the detention point, the appellant did not testify on
the
voir dire
, so there is no evidence about how he viewed the
situation when he made his three utterances.

[8]

The appellants argument that his utterances were compelled by s. 216.1
of the
HTA
is premised on the threshold assumption that Officer Leeman
conducted an investigation under that section.  Importantly, the trial judge
found as a fact that Officer Leeman never conducted an investigation under s.
216.1 of the
HTA
; we see no error in this conclusion, and therefore
on this basis alone  no merit in the appellants statutory compulsion argument.

[9]

In addition, the only thing Constable Kent did before the appellant made
the two utterances to him was ask for the appellants permit and registration;
he did not otherwise question the appellant.  Finally, in his very brief oral
submission on this issue, trial counsel said twice that I wouldnt think that
voluntariness is an issue here.  In the end, in response to early and innocuous
questions (scene setting questions), the appellant three times talked about
guns.  When he did this, he was not detained.  We agree with the trial judge on
this point.

[10]

Second,
the appellant contends that the trial judge erred in his jury charge by failing
to explain how the appellants limited facility in English might lend a
non-incriminating inference to the utterances.

[11]

We
are not persuaded by this submission.  The trial judge told the jury that if
they believed the appellants denial that he made the statements or if they had
a reasonable doubt about whether he made them, the statements would not be
evidence about the appellants knowledge.  He also conveyed the thrust of the
appellants argument to the jury, namely, that the appellant had a poor grasp
of the English language and did not mean what the officers thought he meant.
The trial judge also said, in relation to the utterances heard by Constable
Kent:

It is the position of the defence that because of the language
barrier between the officers and Mr. Sandhu, Officer Kent is mistaken in his
belief that Mr. Sandhu told him in English that he had been forced at gunpoint
to put the bags in the back of the truck.

In our view, the trial judge handled the language issue
in a proper fashion.

[12]

The
appeal is dismissed.

Released: May 2, 2014 (A.H.)

Alexandra Hoy
A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.