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    that could identify the complainant or a witness shall not be published in any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. P.G., 2017 ONCA 351

DATE: 20170503

DOCKET: C62007

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

Mark C. Halfyard and Breana Vandebeek for the Appellant

Jennifer McKee for the Respondent

Heard: March 2, 2017

On appeal from the order of Justice Bruce Durno of the
    Superior Court of Justice, dated April 11, 2016, dismissing an appeal from the
    conviction entered on April 2, 2014 by Justice Stephen D. Brown of the Ontario
    Court of Justice.

J. MacFarland J.A.
:

[1]

The appellant was convicted of three counts of sexual assault by Stephen
    D. Brown of the Ontario Court of Justice on April 2, 2014. His appeal to the
    summary conviction appeal court was dismissed by Durno J. on April 11, 2016.
    The appellant seeks leave to appeal his conviction to this court pursuant to s.
    839 of the
Criminal Code,
R.S.C., 1985, c. C-46. In R. v R.(R.), 2008
    ONCA 497, 90 O.R. [3d] 564. Doherty J.A. provided guidance as to when it will
    be appropriate to grant leave to appeal:

37: In summary leave to appeal pursuant to s. 839 should be
    granted sparingly. There is no single litmus test that can identify all cases
    in which leave should be granted. There are, however, two key variables - the
    significance of the legal issues raised to the general administration of
    criminal justice, and the merits of the proposed grounds of appeal. On the one
    hand, if the issues have significance to the administration of justice beyond
    the particular case, then leave may be granted even if the merits are not
    particularly strong, though the grounds must at least be arguable. On the other
    hand, where the merits appear very strong, leave to Appeal may be granted even
    if the issues have no general importance, especially if the convictions in
    issue are serious and the !applicant is facing a significant deprivation of his
    or her Liberty.

In my view, the issues here raised meet both
    requirements.

[2]

In this court, the appellant proposes two grounds of appeal:

1.

The summary conviction appeal judge (the SCAC judge) erred in applying
  the
proviso
(s. 686 (1)(b)(iii) of
  the Code)
proprio motu
where its application was not raised by the
  Crown and in circumstances where its application was inappropriate in any
  event; and
2.

He erred in failing to find a reasonable apprehension of bias on the
  part of the trial judge, particularly in view of the difficulties that the SCAC
  judge found in the trial judges reasons for judgment.
A.

BACKGROUND
[3]

The appellant was charged with three counts of sexual assault against
    his girlfriends daughter, T.B., who was 15 years old at the time of the
    alleged assaults (August 2010). The appellant resided at that time with the
    complainant and her mother, K.J., while K.J. was the appellants girlfriend.
[4]

The case hinged entirely on the trial judges credibility assessment.
    There were serious difficulties with the complainants evidence, one of the
    most significant of which was that the complainant had recanted the allegations
    under oath in an affidavit after having received independent legal advice, and
    then had recanted
the recantation
at trial. At paras. 127 through 138
    of his reasons, the trial judge listed what he described as hard questions in
    relation to the complainants evidence.
[5]

The defence position was that the complainant had fabricated the
    allegations, which she first raised with her mother while they were arguing
    about another topic, in order to deflect the subject matter of the argument.
    This conversation occurred very soon after her mother and the appellant had
    ended their relationship and the appellant had returned home to Australia. The
    appellant ultimately returned to Canada to deal with the charges. Despite the
    difficulties with the complainants evidence, the trial judge convicted the
    appellant.
[6]

At trial, the Crowns case was based entirely on the complainants
    evidence. The appellant and K.J. testified for the defence. The appellant was
    convicted on all counts on April 2, 2014, judgment having been reserved for
    three months. On September 12, 2014, he was sentenced to six months custody
    and related orders were imposed.
[7]

On September 2, 2015, the appellants summary conviction appeal was
    heard. After reserving its decision for seven months, on April 11, 2016 the
    court released its decision dismissing the appellants appeal.
[8]

Before the summary conviction appeal court the appellant raised four
    grounds of appeal:
1.

The verdict was unreasonable and not supported by the evidence.
2.

The trial judge erred in improperly curtailing the cross-examination of
  the complainant in relation to her understanding of her psychiatric diagnosis.
3.

The reasons for judgment reflected a reasonable apprehension of bias on
  the part of the trial judge.
4.

The trial judge misapprehended evidence, which he labelled as the
  trials most distasteful part, concerning the complainants purported suicide
  attempts.
[9]

In detailed reasons, the SCAJ judge rejected grounds 1, 3 and 4. The
    appellant does not seek leave to appeal to this court from his determination of
    grounds 1 and 4, only grounds 2 and 3 as noted above are before this court.
B.

ISSUES - ANALYSIS
(1)

Issue #1: The
Curative Proviso
(
Criminal Code
, s.
    686(1)(b)(iii))
[10]

As to the second ground the SCAC judge's analysis begins at para 80 of
    his reasons.
[11]

He disagreed with the trial judge's conclusion that the appellant's
    counsel was, by his question, seeking to elicit hearsay evidence. He concluded
    his analysis at para 84 as follows:
In these circumstances, I am inclined to the view that in these
    circumstances the trial judge erred in preventing counsel from cross-examining
    on the question he said he wanted to ask in the second portion of the admissibility
    argument. However, I also find that the error occasioned no substantial wrong
    or miscarriage of justice: s. 686(1)(b)(iii).
And further that although the evidence in the case was
    far from overwhelming, the error was a minor one that could not have impacted
    on the verdict.
[12]

Defence counsel had asked the complainant what she understood her
    psychiatric diagnoses to be - and not what her psychiatric diagnoses were in
    fact. The point of the question related to certain evidence that the Defence
    had obtained from the complainant's social media accounts.
[13]

In my view, the summary conviction appeal judge erred when he resorted
    to the
proviso
to, in effect, excuse the trial judges error in
    curtailing defence counsels cross-examination. The law is clear that it is not
    open to an appellate court to apply the
curative proviso
on its own
    motion:
R v. Bisson,
2010 ONCA 556, 258 C.C.C. (3d) 338, at para. 2.
    As noted in
Bisson
, the Supreme Court has stated clearly that the
proviso
should be applied only upon submission from a party:
R v. Pétel,
[1994] 1 S.C.R 3, at p. 18. A review of the transcript of the appeal
    proceedings demonstrates that the Crown at no time relied on the
proviso
.
[14]

I do not accept the Crown's position that such reliance was implicit. To
    do so in this case would mean in effect, that the Crown could rely on the
proviso
in every case without the necessity of making an explicit argument that it was
    relying on the proviso. In
R v. McMaster
, [1996] 1 S.C.R. 740, at para.
    37, Lamer C.J. noted:
The respondent has not raised s. 686(1)(b)(iii) of the Code in
    argument. As I held
R v. Petel
[1994] 1 S.C.R. 3 at p.17, "[t]he
    Crown has the burden of showing that this provision is applicable...This
    court cannot apply it
proprio motu
.
[15]

Were I to accept the Crowns position on this point, I would, in effect,
    be relieving the Crown of the burden that the Supreme Court has said that it
    bears.
[16]

Therefore, it was an error of law for the SCAC judge to rely on the
proviso
.
[17]

This was not an overwhelming case; there were serious issues with the
    complainants evidence  not the least of which was her affidavit sworn in 2012
    to the effect that the allegations she had made against the appellant were
    untrue. This affidavit had been prepared with the assistance of a lawyer
    retained to provide independent advice to her. She then recanted the content of
    that affidavit in her evidence at trial.
[18]

The thrust of the defence position was that the complainant fabricated
    the allegations. Her credibility was the key issue. To preclude proper
    cross-examination in a key area was a serious error on the trial judges part.
    The error impeded the appellants ability to make a full answer and defence.
    Even if the Crown had raised the proviso in argument, this would not have been
    an appropriate case for its application. The error was not a minor one.
(2)

Issue #2: Reasonable Apprehension of Judicial Bias
[19]

The second ground of appeal raised in this court is that the SCAC judge
    erred by failing to find that the trial judge's reasons for judgment disclosed
    a reasonable apprehension of bias that tainted the proceedings and rendered the
    appellant's trial unfair.
(a)

Legal Principles
[20]

Our Supreme Court has held that an allegation of judicial bias raises
    such serious and sensitive issues that the basic interests of justice require
    appellate courts to retain some scope to review that determination:
R. v.
    R.D.S.
, [1997] 3 S.C.R. 484, at para. 102.
[21]

In
R.D.S
., the issue of reasonable apprehension of bias arose,
    like here, as the result of statements made in the reasons for judgment
    released by the trial judge. The first level of appeal was to the Supreme Court
    of Nova Scotia (Trial Division). There the court concluded that the reasons for
    judgment did disclose a reasonable apprehension of bias and that, as a result,
    a new trial was warranted. That decision was, in turn, appealed to the Nova
    Scotia Court of Appeal where the decision of the summary conviction appeal
    judge was upheld in a 2 to 1 decision. In the Supreme Court of Canada there was
    but one issue:
Did the comments made by
    Judge Sparks in her reasons give rise to a reasonable apprehension of bias?
[22]

In the Court of Appeal and in the Supreme Court of Canada the issue of
    deference was raised. It was argued that the summary conviction appeal judge
    had inappropriately re-examined and re-determined issues of credibility. The
    Court of Appeal held that, since the summary conviction appeal judges decision
    was based on the finding of a reasonable apprehension of bias, she did not err
    in law in declining to defer to the trial judges findings. In response to the
    same argument in the Supreme Court of Canada, the court noted:
98. Before dealing with the issue of apprehended bias, it is
    necessary to address an argument raised by the appellant and the interveners
    African Canadian Legal Clinic et al. They stressed that this appeal turns
    entirely on findings of credibility. There were only two witnesses, and their
    evidence was contradictory. Judge Sparks role was therefore simply to determine
    the issue of credibility. The appellant and the interveners argued that it is a
    well-established principle of law that appellate courts should defer to such
    findings, and that Glube C.J.S.C. improperly reviewed Judge Sparks findings of
    credibility. In my view, these submissions are not entirely correct.
99. If actual or apprehended bias arises from a judges words
    or conduct, then the judge has exceeded his or her jurisdiction. See
Curragh
,
supra
, at para. 5;
Gushman
,
supra
, at para 28. This
    excess of jurisdiction can be remedied by an application to the presiding judge
    for disqualification if the proceedings are still underway, or by appellate
    review of the judges decision. In the context of appellate review, it has recently
    been held that a properly drawn conclusion that there is a reasonable
    apprehension of bias will ordinarily lead inexorably to the decision that a new
    trial must be held:
Curragh
,
supra
, at para. 5.
101.  it is somewhat misleading to characterize the issue in
    this appeal as one of credibility alone. If Judge Sparks findings of
    credibility were tainted by bias, real or apprehended, they would be made
    without jurisdiction, and would not warrant appellate deference.
102.  A judicial determination at first instance that real or
    apprehended bias exists may itself be worthy of some deference by appellate
    courts:
Huerto v. College of Physicians and Surgeons
(1996), 133 D. L.
    R. (4th) 100 (Sask. C.A.), at p. 105. However, an allegation of judicial bias
    raises such serious and sensitive issues that the basic interests of justice
    require appellate courts to retain some scope to review that determination.
[23]

In
R.D.S.
,
both
    the Nova Scotia Court of Appeal and the Supreme Court reviewed the reasons of
    the trial judge
de novo
. I infer from their decisions that because of
    the importance of the issue and the fact that it raises a question of law, this
    court must review the reasons of the trial judge anew and no deference is owed
    to the determination of the SCAC judge on this issue.
[24]

The threshold for finding real or perceived bias is high. At para. 113
    in
R.D.S.
,
the court
    noted that an allegation of reasonable apprehension of bias calls into
    question not simply the personal integrity of the judge, but the integrity of
    the entire administration of justice.
[25]

The test for finding a reasonable apprehension of bias is a matter of
    well-settled law: what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through  conclude:
Committee for Justice and Liberty v. National Energy Board
, [1978] 1
    S.C.R. 369, at p. 394.
(b)

Relevant Facts
[26]

This was a hard-fought trial and it was not an overwhelming one for the
    Crown. Some background is necessary to understand the dynamic underlying the
    trial.
[27]

As indicated above, K.J. Is the complainant's mother. The appellant was
    her live-in partner at the time the sexual assaults were alleged to have
    occurred. When the allegations of sexual assault came to light, a month or two
    after they were alleged to have occurred, K.J.'s relationship with the
    appellant had ended and he had returned home to Australia. The complainant was
    15 years old at the time and the three alleged assaults all occurred between
    August 16, 2010 and September 6, 2010.
[28]

At this time, K.J. lived with her two daughters, the complainant and her
    younger sister, as well as the appellant, whom she had met in October or
    November 2007. The appellant moved in with K.J. and her daughters in March
    2008.
[29]

K.J. and her husband had separated in January 2007 and the split appears
    to have been acrimonious, as was the relationship between K.J. and her older
    daughter, the complainant, from time to time.
[30]

The complainants statement to the police was video-recorded on October
    27, 2010; the appellant had returned to Australia on October 20, 2010.
[31]

K.J. had doubts about her daughters allegations against the appellant
    within a day or two. It was her evidence that in August 2011, the complainant
    told her that she wanted to go to the police and tell them that she had lied.
    K.J. also reported that on occasions prior to this, in the course of arguments
    with her mother, the complainant would yell, Well, then fine, Mom, I will go
    to the police and tell them I lied. Will that make you happy?
[32]

In October 2011, on K.J.s evidence, she thought that her relationship
    with the appellant was over. She contacted and retained Philip Benayon, a
    lawyer, to assist the complainant with recanting her allegations to the police.
    Most of the communication between Benayon and the complainant was by telephone
    or by e-mail. The first and only time when Benayon met the complainant in
    person was on April 4, 2012, when he visited her home, spoke with her in
    private about the affidavit that he had prepared in which she would recant the
    allegations that she had made against the appellant in her October 27, 2010
    police statement, and then attested to her signature of the affidavit. The
    complainant said that she signed that affidavit only because of the unrelenting
    pressure put on her by her mother to do so. In May 2012, the complainant left
    her mothers home and moved in with her father and his wife. On the
    complainants evidence, from that time until the time of the trial she rarely
    saw her mother. The appellant returned to Canada in August 2012 to face the
    allegations and to resume his relationship with K.J.
[33]

In May 2013, the complainant advised her lawyer that the affidavit she
    had sworn was false and that the allegations she made against the appellant
    were true.
[34]

The three alleged incidents of sexual assault involved touching of the
    complainants breasts, leg, buttocks and vaginal areas, all over her clothing.
    On one occasion, the appellant allegedly kissed her on her lips. She stated
    that, on each occasion, she told him to stop or pushed him away.
[35]

With this background in mind, I turn to the reasons for judgment and the
    impugned parts thereof.
(c)

Cross-Examination of the Complainant
[36]

At para. 35 of his reasons, the trial judge wrote of the complainant:
    T.B. was cross-examined over a two-day period in a vigorous and somewhat
    brutal fashion and, at para. 39, Mr. Bayless virtually scoffed at her
    testimony that she had tried to kill herself..., and, at para. 42, the trial
    judge described the complainants cross-examination as a prolonged and brutal
    attack on her character.
[37]

The highly critical characterization of defense counsel's
    cross-examination in his reasons for conviction contrasted with the trial
    judge's failure to intervene in that cross-examination while it was occurring, clearly
    troubled the SCAC judge.
[38]

And in the course of counsel for the appellants submissions on the
    summary conviction appeal, after highlighting some of the language used by the
    trial judge to describe the defence counsels cross-examination, such as brutal,
    no holds barred, distasteful, a full scale attack on a disturbed and
    vulnerable teenage and that the cross-examiner had mocked and belittled the
    complainant  the SCAC judge intervened and asked:
The Court: Look, doesnt he have an obligation during the trial
    to raise those issues?
The, its strange but its in the preliminary inquiry section,
    that a judge has an obligation to interject and Im certain there is case law
    with respect to trials that seems to me that if youve got that obligation
to say nothing?
Until the reasons and then, subject to the Crowns argument
. as all of which it would be close to a strongly worded
    judgment as Ive ever seen.
[39]

Yet, in his reasons delivered several months later, after having
    described some of the trial judges comments in relation to defence counsels
    cross-examination as ill-advised and clearly unjustified and improper
    (para. 173), he concluded:
[181] While His Honour should have intervened in the
    cross-examination on his analysis of it and he should have given counsel the
    opportunity to address his concerns in submissions, I am not persuaded that
    either results in or contributed to a reasonable apprehension of bias.
(d)

Attack on Defence Witnesses
[40]

The trial judges disdain for the appellant is palpable in reading the
    reasons for judgment. He stated at the very outset of his analysis:
[45] [The appellant], although quick to describe himself as an
    Olympic coach, was simply a coach that was qualified to coach competitive
    swimming athletes up to and including Olympic swimming. There is a dearth of
    evidence to support him being actively involved in high level swimming coaching
    despite his eagerness to be classified as such.
[41]

The appellants occupation was irrelevant to the issues, but was a
    prelude to what would follow.
[42]

In considering the appellants evidence in relation to the events that
    gave rise to the second alleged incident of sexual assault, he said that the
    appellant recalled with vivid exactitude and precision details that can only
    be illustrated by reproducing in its entirety this feat of amazing memory
    (para. 53).
[43]

There follows about four pages of transcript from the trial proceedings
    and then, at paras. 55-57:
In cross-examination the defendant went into more florid detail
    as to where people were standing and seated and other details of this event
    that were exceptional in their ordinariness.
P.G. gave similarly detailed evidence that explained in a
    calculated and exculpatory way the complainants allegations of him pushing
    her
This remarkable clarity of memory was shaken to its
    foundations, however, when he was confronted with his lie that he had not
    communicated with the lawyer of T.B. when he was in the process of drafting an
    affidavit that recanted her allegations.
[44]

The trial judge reproduced a further six pages of transcript to detail
    the exchange between the appellant, defence counsel and the Crown in relation
    to a telephone call the appellant is said to have made to Mr. Benayon, the
    complainants lawyer. The trial judge noted that the evidence should be
    reproduced in its entirety, as it is essential to [the appellants]
    credibility.
[45]

In his evidence, the appellant had denied ever having a conversation
    with Mr. Benayon. There was a notation in Mr. Benayons file, however, in which
    he indicated that he had spoken to the appellant on October 11, 2011; Mr.
    Benayon was not called as a witness. The appellant testified that while he had
    no memory of ever communicating with Mr. Benayon by phone, email or text
    message, but that it was possible that he had communicated with the lawyer. He
    explained that he was under a great deal of stress because of these
    allegations. He also acknowledged providing information to K.J. to be passed on
    to Mr. Benayon.
[46]

This incident played a big part in the trial judges analysis of the
    appellants credibility.
[47]

After having described the trial as
a full-scale attack on the
    credibility of a disturbed and vulnerable teenager who has endured many
    hardships in her life and yet continues to move ahead in an admirable manner

    (para. 121, emphasis added), he described the appellants testimony as follows:
[143] The defendant testified like a video recorder, knowing
    and relating every miniscule detail of what were mundane events with a
    precision that was surreal and at the same time contrived. He had obviously put
    considerable effort in an attempt to mislead this Court.
[144] He intentionally lied under oath when he was asked
    whether he had in anyway communicated with Mr. Benayon and stated positively
    that he had not. When he was confronted with the evidence that he had called
    his accusers lawyer from Australia, his attempt to wiggle out of that lie was
    pathetic and enlightening to me.
[145] He went from a precise witness who would remember every
    mundane detail of events that occurred years ago to someone who was trying to
    salvage his credibility by saying that he recently forgot his keys in his car
    because of the trauma that these accusations have caused him. He even went so
    far as to suggest that his doctor said that he got throat cancer caused by this
    stress.
[146] He cried at one point when discussing that he coached a
    girl in Australia that had been raped and then committed suicide. This excerpt
    is found at page 114 of the August 30
th
transcript. This response
    was, in my view, made to solely elicit sympathy. It was staged and dramatic and
    insecure. I viewed his crying as being nothing more than crocodile tears. They
    have large crocodiles in Australia.
[48]

It is one thing to make negative credibility findings against a witness,
    but the language used by the trial judge is intemperate, condescending and
    sarcastic in the extreme. His extreme dislike of the appellant is apparent; he
    lacks impartiality. As the SCAC judge noted in his analysis of the trial
    judges reasons:
[159] First, the trial judges comments about the appellant
    being Australian, crocodiles and tears were most inappropriate and totally
    unjustified.
[166]  His Honours way of expressing his opinion that the
    appellant was trying to create sympathy by crying about a swimmers suicide was
    most inappropriate
[49]

The trial judge next turned to the evidence of K.J., where his
    commentary was also particularly inappropriate. He first noted the discrepancy
    between K.J.s evidence and that of the appellant about when they met, noting
    that her evidence was contrary to the defendants exquisitely detailed account
    of how they met on Halloween in 2007 (para. 65). On the appellants evidence
    they would have met in early November of 2007, whereas on her evidence it was
    mid-November. He justified his attention to this discrepancy as follows:
It
    is a small point, but it is one worth mentioning because of the defendants
    habit of giving his evidence with absolute certainty that I found off-putting
    on more than one occasion
 (para. 66, emphasis added).
[50]

First, whether they met first in early November or mid-November of 2007
    is, in this case, an insignificant difference and was utterly irrelevant to the
    issues raised. A trial judges duty is to try the case impartially  without
    favour or prejudice. His personal feelings about the appellant were irrelevant
    and ought not to have played any role in his decision.
[51]

The trial judge noted early in his consideration of K.J.s evidence that
    she has an abiding hatred for her ex-husband that is evident throughout her
    testimony and that her evidence veered off topic so she could get a dig in at
    her ex-husband (para. 72).
[52]

In relation to the retainer of Mr. Benayon, he noted, at para. 92:
The trail of emails between K.J. and Mr. Benayon clearly
    indicates the clear bias that this witness shows to her daughter. They also, in
    my view, show how actively the defendant was in marshalling a defence to the
    accusations in conjunction with K.J..
[53]

The trial judge took particular exception to the email sent by K.J. to
    the appellant, about one week after the complainant had revealed that he had
    touched her, wherein K.J. said, I have been told that it is a lie, that you
    didnt touch my girl. I still love you even if you did. Please tell me you
    still love me. He opined, [
W
]
hat
    sort of person would write that she would still love him even if he did touch
    her daughter? That to me is clear evidence as to what type of mother this
    witness was to her daughter
 (para.
    96, emphasis added).
And, after having referenced another email
    communication between the two:
[98] These series of emails contained in these exhibits show
    nothing other than a mother intent on discrediting her daughter in an effort to
    resume her flawed relationship with this defendant.
Later, he concluded:
[106] The rest of this witness evidence in cross-examination
    was replete with inconsistencies and evidence that showed her undying willingness
    to put this flawed love affair with this man above the best interests of her
    daughters.
[54]

Subsequently, in the trial judges Analysis section, he summarized the
    appellants testimony in four paragraphs and K.J.s in three, while spending
    some 18 paragraphs on the complainants.
[55]

Of K.J. he said:
[147] K.J. was such a biased and unbelievable and unpleasant
    witness that she ranks in my top ten of witnesses in my entire career both as a
    lawyer and as a judge that I can say that I do not believe a word that she
    says.
[148] She relentlessly pressured her daughter to recant her
    allegations until she was successful in that quest. She constantly said to her
    I know you are lying. She hired a lawyer and fed him all sorts of
    information, in conjunction with her scheming with the defendant, that would
    paint her daughter in the worst possible light, all in an effort to resume a
    flawed and poisonous relationship that allowed her to pick up this relationship
    with her hero while throwing her own daughters welfare to the wind.
[149] She would say anything to paint her boyfriend in a
    positive light and her daughter in a negative one. She was utterly despicable
    in my view and a totally unbelievable witness.
[56]

In considering the complainants evidence, he responded as follows to
    the defence assertion that it was difficult to understand why the complainant
    would sit on the appellants lap and give him a hug shortly after he allegedly
    had assaulted her:
[153] To answer the more difficult question as to why she would
    go and sit on the defendants lap and give him a hug when he had recently
    sexually assaulted her, I agree that this is facially illogical.
[154] However, when taken in the context of the life that she
    had at that time it does become understandable. This was a child who was a
    victim of a vicious separation and divorce, an uncaring and somewhat deranged
    mother who constantly yelled, screamed and caused havoc in the household
[57]

The use of this intemperate and insulting language was inappropriate and
    uncalled for and demonstrates a clear lack of impartiality. The trial judges
    task is to impartially assess the witnesss credibility. It is not part of his
    role to denigrate her character. It is unnecessary in making a finding of
    credibility to launch a personal attack of this nature. The judges personal
    opinions about the witness have no role in that task. We instruct jurors every
    day that they are to judge cases with neither sympathy nor prejudice. Here it
    is apparent that this trial judge let his personal feelings about the appellant
    and his witness overtake his objectivity.
[58]

The detailed scrutiny given to minor discrepancies in the appellants
    evidence, such as forgetting a telephone conversation that apparently took
    place two years earlier, and the inconsistency between the appellants
    testimony and K.J.s on when they met for the first time, stands in stark
    contrast to the scrutiny given to the complainants evidence. She had sworn an
    affidavit wherein she had recanted the allegations she made in relation to the
    appellant approximately 17 months after she had made them. The entire issue is
    resolved in three short paragraphs, 161-163. She gave her evidence
in an
    honest and straightforward and believable manner. She went along with her
    mothers overwhelming persistent and unrelenting pressure to recant

    (para. 161, emphasis added).
[59]

The trial judge concluded that K.J. was the driving force behind the
    recantation, having intended to exonerate her boyfriend and clear the path
    for his return (para. 162).
[60]

The complainants evidence was that the first time she saw her affidavit
    was when Mr. Benayon appeared with it at her home and she signed it. On
    cross-examination, a series of emails was put to her that made it clear she had
    seen an electronic draft or drafts of the affidavit several weeks before she
    signed it and had had input into the content of it by suggesting changes that
    were made to it.
[61]

The complainant was 15 years old at the time of the alleged assaults, 17
    when she signed the affidavit and 18 when she testified. She was not a child,
    and Mr. Benayon was retained to independently advise her  although his
    financial retainer was covered by K.J., the record discloses that he met and
    consulted with the complainant independently, as he was obliged to do.
[62]

Yet the trial judge simply accepted that the affidavit was signed
    because of the persistence of K.J. and he found no intent to deceive on the
    complainants part when initially she said she hadnt seen the affidavit until
    the day she signed it.
[63]

The appellant was written off as a liar and all his evidence discredited
    when he did not recall a telephone conversation with Mr. Benayon.
[64]

It is difficult on this record, in view of the intemperate and
    inappropriate language used in relation to the appellant and K.J., not to conclude
    that their evidence was treated differently and was subjected to much greater
    scrutiny than was that of the complainant.
[65]

In my view, a reasonable person, properly informed, viewing the matter
    realistically and practically and having thought the matter through, would
    inevitably conclude that this matter was not decided fairly.
C.

DISPOSITION
[66]

I would grant leave to appeal and allow the appeal, set aside the
    conviction and related orders and order a new trial.
Released:
GP MAY 03
    2017

J. MacFarland J.A.
I agree. G. Pardu
    J.A.
I agree. G.T.
    Trotter J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.W., 2017 ONCA 363

DATE: 20170505

DOCKET: C61023

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.W.

Appellant

Erin Dann, for the appellant

Andrew Cappell, for the respondent

Heard: April 18, 2017

On appeal from the conviction entered on July 13, 2015 by
    Justice June Maresca of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant and the complainant are half-siblings. The complainant
    alleged a protracted period of sexual abuse. The events happened in the
    complainants bedroom, the appellants bed and a basement room. The appellant
    denied the allegations.

[2]

The trial judge found that it would be dangerous to convict the
    appellant on the basis of the complainants evidence about the abuse, with the
    exception of one incident (the basement incident) which the complainant was
    able to describe in detail and which the complainants parents observed. The
    trial judge found that the parents evidence confirmed the complainants
    evidence about this particular incident. The trial judge found the appellant
    guilty with respect to the basement incident.

[3]

The appellant appeals on two grounds.

[4]

First, the appellant contends that the trial judge erred by concluding
    that the parents evidence confirmed the complainants account of the basement
    incident. Indeed, says the appellant, there were important inconsistencies
    between the parents and the complainants description of this incident.

[5]

We do not accept this submission. Eight years had passed by the time the
    various witnesses testified. The trial judge was aware that the evidence from
    the respective witnesses did not perfectly align. The trial judge was entitled
    to conclude that both parents were immediately concerned by what they had seen
    through a window and that the father took immediate and forceful steps to stop
    the activity. In addition, the trial judge explicitly accepted the
    complainants account of the basement incident.

[6]

Second, the appellant submits that the finding of guilt was unreasonable
    in light of the inconsistencies among the witnesses testimony and within the
    complainants own testimony.

[7]

We disagree. In essence, this ground of appeal covers the same terrain
    as the first ground of appeal. In our view, the trial judge did not
    misapprehend any evidence, was entitled to believe the complainants detailed
    description of the basement incident, and dealt appropriately with the parents
    evidence about how they perceived the basement incident. The trial judges
    finding of guilt on the count relating to the basement incident was reasonable.

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearson, 2017 ONCA 389

DATE: 20170516

DOCKET: C55787 and C55788

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damion Dicketta Pearson

Appellant

Mark Halfyard and Breana Vandebeek for the appellant

Benita Wassenaar and Howard Leibovich for the respondent

Heard: March 30, 2017

On appeal from the convictions entered on June 4, 2011
    and December 6, 2011 by Justice Bruce A. Glass of the Superior Court of Justice,
    sitting with a jury.

Pardu J.A.:

[1]

The appellant was convicted by two different
    juries of the two separate murders of Khristian Ottley and Jeffrey Warne, which
    were committed two weeks apart in January 2008. Although the murder trials were
    severed, the trial judge made certain pre-trial rulings related to the
    admissibility of evidence that applied to both proceedings.

[2]

The appellant submits that the trial judge made
    the following errors in his pre-trial rulings:

1.

The
    appellants statements to police on April 15 and 16, 2008 should not have been
    admitted because they were not voluntarily made.

2.

Shotgun
    shells found in the appellants car during a traffic stop on January 15, 2008 should
    have been excluded because the search of the appellants car was not incidental
    to his arrest for impaired driving.

3.

The
    appellants statement to the police on February 19, 2008, made while he was
    sitting in the back seat of a police car after police again found shotgun
    shells in his car during a traffic stop, should have been excluded because it
    was obtained in a manner the breached the appellants right to counsel under s.
    10(b) of the
Canadian Charter of Rights and Freedoms
.

4.

Bad character
    evidence that the appellant showed a shotgun to two different friends in
    December 2007, possessed shotgun shells and had plans to rob a drug dealer
    should have been excluded because the probative value of the evidence was
    outweighed by its prejudicial effect.

A.

Khristian Ottley

[3]

The position of the Crown at trial was that the
    appellant and three companions  A., James and Campbell  drove to a secluded
    area near Pickering, Ontario where Ottley met them, driving his own car.
    According to the Crown, the appellant got in the back seat of Ottleys car, fired
    a shotgun through the seat and killed Ottley. This was supported by the
    appellants and Ottleys cell phone records and by the evidence of A. and
    James. The motive for the shooting was a disrespectful remark that Ottley made
    about a nickname for the appellant. The appellant told police he was present at
    the time of the killing but that someone named Crisis was the killer. At
    trial, he said this was untrue and that A. was the killer.

B.

Jeffrey Warne

[4]

Warne was a known drug dealer in Pickering. The
    Crown alleged that the appellant shot Warne or directed the shooting when he
    and two others went to Warnes house to commit a robbery. The appellant
    admitted to police and at trial that he had been casing out Warnes house with
    Campbell with a view to committing the robbery. He told police that he planned
    to commit the robbery and that he broke into the house and saw the shooting. At
    trial, he said he was outside in the car, that he did not go into the house and
    that Campbell and two other males committed the offence. The appellant had
    knowledge that would have only been available to someone who saw or
    participated in the shooting. Warne had complained to police that he thought
    someone was casing his residence and had recorded the licence plate number
    belonging to the appellants car as the suspect vehicle.

C.

The statements of April 15 and 16, 2007

(1)

Factual Background

[5]

During their investigations, police began to uncover
    evidence leading them to suspect that the appellant might be connected to the killings
    of both Ottley and Warne. Cell phone records showed that the appellant was the
    last person to speak to Ottley before he was killed. Warne complained to police
    about the appellants car loitering near his home. Police knew the appellant
    had been found with shotgun shells close in time to the dates of the killings. The
    Centre of Forensic Sciences said the shotgun shells seized from the appellant
    were similar to those used in the Ottley and Warne killings.

[6]

On March 20, 2008, Det. Haight went to the
    appellants home. After learning that the appellant was not there, he left a
    business card asking the appellant to call him. He also spoke to the
    appellants lawyer and indicated that the appellants name had come up in an investigation,
    that the appellant was a friend of Ottley and that police wanted to talk to the
    appellant. The appellant called Haight and left a voicemail message for him.

[7]

On March 24, 2008, Haight met with the appellant
    and drove him to the police station for a recorded interview. The appellant was
    told he did not have to speak to police and that he was neither detained nor
    charged. The appellant told police he had spoken to his lawyer before coming in
    for the interview. He told police he did not kill Warne or Ottley, that he did
    not see Ottley on the night Ottley was killed and that he did not know who
    Warne was or that Warne was killed. He was prepared to submit to a polygraph
    test.

[8]

On April 10, 2008 the appellant called the police.
    He was upset that the police were interviewing his family and friends. He wanted
    to take the polygraph test. He told the police to leave a telephone message
    with his lawyer to advise him of the date and time of the polygraph
    examination. On April 14, 2008, Haight left a message with the lawyer advising
    that the test was scheduled for the next morning.

[9]

On April 15, 2008, the appellant was brought to
    the police station for the polygraph test. In reasons reported at 2011 ONSC
    1485, the trial judge described the unfolding of the events at paras. 34-37:

On April 15, 2008, Detective Haight and Detective Airey picked
    up Mr. Pearson to take him to the Pickering police office for Durham Regional
    Police.
Prior to the polygraph
    examination, Detective Nadeau explained the process and confirmed that Mr. Pearson
    did not have to speak with the police, that he could leave whenever he wished,
    and that the examination was being done with respect to the Jeff Warne
    homicide. Detective Nadeau told Mr. Pearson that the results of a polygraph
    examination could not be used in court, but he explained that comments made by
    Mr. Pearson during the polygraph examination could be used in court. He asked
    Mr. Pearson to explain in his own words what he understood this to mean. By his
    answers, Mr. Pearson understood that he could leave, that he could refuse to
    participate in the questions and answers, and that any comments he made could
    be used in court. Detective Nadeau asked if the defendant wanted to speak to a
    lawyer before starting. He did not want to do so. Detective Nadeau also told
    the defendant that if it were determined that he killed Jeff Warne, he would be
    charged with murder. The accused man understood this.

After reviewing the questions that were to be used for the
    polygraph examination, the test was performed. Detective Nadeau left the room
    to complete his analysis of the test answers and returned to advise Mr. Pearson
    that the result indicated that he was being deceptive.

Detective Nadeau continued to ask questions after reporting the
    results of the polygraph examination. The questions expanded to the Khristian
    Ottley homicide as well.

Then, Detective Haight entered the room and asked questions
    until Mr. Pearson stated that he wanted to talk with his lawyer. He provided
    the name of George Aristos, who had represented him in Youth Court. A message
    was left for Mr. Aristos to call the police station in order that he might talk
    with Damion Pearson. When no call came, Mr. Pearson asked that Mr. Erskine be
    called. A message was left for Mr. Erskine, who did call the police station.
    Mr. Pearson spoke privately with Mr. Erskine. After speaking with his lawyer,
    Mr. Pearson said that he did not want to talk any more.

[10]

During the course of the
    April 15 interview and polygraph test, the appellant admitted to being present
    at the killings of both Ottley and Warne. He said that he was standing outside
    the car in which Ottley was sitting with a passenger in the back seat, heard
    the sound of the gunshot and saw Ottleys body slumped on the steering wheel.
    He said that a person named Crisis was the shooter. The appellant also gave
    several inconsistent statements about his involvement in the Warne shooting. At
    first, he said that he did not know Warne. But he eventually said that he was
    at the scene of the shooting with a number of other assailants who intended to
    rob Warne and saw the shooting occur. He did not know that they had guns.

[11]

The April 15 interview ended
    when the appellant asked to speak to a lawyer, received legal advice and
    refused to speak with police any longer. He maintained that position the next
    morning on April 16, 2008.

[12]

The trial judge concluded at
    para. 56 of his reasons that the appellants statements about the Ottley and
    Warne killings had been voluntarily made:

The Crown has proven beyond a reasonable doubt that the
    statements were made voluntarily, that the defendant was not deprived of his
    operating mind, and that his right to silence was not overborne by the police
    during their questioning. Mr. Pearson wanted to make the statements. He
    obviously wanted to get the police off of his back, as he said. He was prepared
    to speak to the police to attempt to do so.

[13]

The trial judge addressed the
    appellants argument that, because police suspected the appellant of the
    murder, had reasonable grounds to believe he had committed the offence and failed
    to caution him again, his statement was made involuntarily. The trial judge
    cited
R. v. Esposito
(1985),
53 O.R.
    (2d) 356 (C.A.)
, for the proposition that the absence of a caution is
    not decisive, but may be a factor in assessing whether or not a statement was
    voluntarily made. He indicated at para. 48 of his reasons that had the
    appellant become a suspect, with the police intending to charge him with
    murder, his jeopardy would have changed dramatically and he would be entitled
    to be advised of that change along with a caution and advice of
Charter
rights to speak with a lawyer. That development did not arise with respect to
    Mr. Pearson.

(2)

Analysis

[14]

Deference is owed a trial
    judges determination of the voluntariness of a statement, provided that the
    correct test is applied and all relevant circumstances are considered:
R.
    v. Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 170.

[15]

Deschamps J. summarized the
    common law confessions rule at para. 12 in
Spencer
:

In
Oickle
, the Court recognized that there are several
    factors to consider in determining whether there is a reasonable doubt as to
    the voluntariness of a statement made to a person in authority, including the
    making of threats or promises, oppression, the operating mind doctrine and
    police trickery. Threats or promises, oppression and the operating mind
    doctrine are to be considered together and should not be understood as a
    discrete inquiry completely divorced from the rest of the confessions rule (
Oickle
,
    at para. 63). On the other hand, the use of police  trickery to obtain a confession
    is a distinct inquiry  [given that] its more specific objective is
    maintaining the integrity of the criminal justice system (para. 65).

[16]

Here there was no question
    of any inducements, threats or police trickery. The argument advanced by the
    appellant is that he was a suspect as early as March 24, 2008, when the first
    recorded interview was conducted. He was not cautioned at that time about his right
    to silence or the consequences of speaking with the police.
He relies on a line of Superior Court jurisprudence suggesting
    that a person being questioned by police should be given an appropriate caution
    if he or she is, from an objective point of view, classified as a suspect rather
    than a mere person of interest: see
R. v. A.D.
, [2003] O.J. No. 4901 (S.C.), at paras. 61-75;
R.
    v. Smyth
, [2006] O.J. No. 5527, at paras.
    81-84; and
R. v. Belbin
, 2015
    ONSC 5346, at paras. 105-111.
Consequently, he says, the fact that he was
    not properly cautioned at the first interview coloured what followed during the
    subsequent April 15 polygraph interview. He submits that the effect was to
    undermine the voluntariness of the statements he gave on that subsequent date.

[17]

I do not accept this argument
    for two reasons.

[18]

Firstly, I would defer to
    the trial judges conclusion that the appellant was not a suspect on March 24,
    2008 and not a suspect until he was detained at the end of the interview on
    April 15, 2008. I agree that, although police had reason to believe that the
    appellant might be linked in some fashion to the killings of Ottley and Warne,
    they did not have grounds to arrest him at that time.

[19]

Secondly, whether or not the appellant was a suspect, the
    applicable appellate authority makes clear that, although the absence of a
    caution is a factor to be considered on the voluntariness inquiry, it is not
    determinative:
R. v. Singh
, 2007
    SCC 48, [2007] 2 S.C.R. 405, at para. 31. This proposition applies regardless
    of whether the police do or ought to regard the person being questioned as a
    suspect. This courts decision in
R. v. Bottineau
, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal
    to S.C.C. refused, [2011] S.C.C.A. No. 455, is instructive. The appellant in
Bottineau
argued that the trial judge erred in ruling that his incriminating
    statements were voluntary because the police failed to provide him with a
    caution when he was by any objective standard  a suspect at the time [the
    police] took his statement rather than a mere person of interest as they
    professed to him he was: para. 85. This court declined to interfere with the
    trial judges ruling. It wrote, at para. 88:

We do not think much turns, in these circumstances, on whether
    N.K. was a suspect or someone more benignly viewed by the police.
Even
    where a person is a suspect, the absence of the standard caution is only one
    factor to be considered in the voluntariness analysis  just as the presence of
    such a caution does not automatically lead to the conclusion that a statement
    is voluntary
. As the trial judge noted, [h]ard and fast rules are
    incapable of accounting for the myriad circumstances that may vitiate
    voluntariness, and all the circumstances must be scrutinized carefully: see
R.
    v. Oickle
, [2000] 2 S.C.R. 3, at paras. 47 and 71. [Emphasis added.]

Thus, the voluntariness inquiry is a contextual one
    that considers all the relevant circumstances and eschews rigid and strict
    rules. See also
R. v. Rowe-Boothe
, 2016 ONCA 987, at paras. 16-21; and
R. v. Pepping
, 2016 ONCA 809, at para. 5.

[20]

In the present case, it was
    abundantly clear that, in his interactions with the police as of March 24, 2008,
    the appellant freely chose to speak to police. At the April 15, 2008 polygraph,
    he explicitly said to the interviewers, No ones going to intimidate me. You
    cant intimidate me. There is no suggestion that his will was overborne by the
    police.

[21]

At the start of the April 15
    interview, police told the appellant he was free to leave, that he could stop
    the polygraph process at any time, that he did not have to speak to police and
    that what he said could be admissible in court. He signed a consent form
    confirming that he did not have to say anything and that anything he said could
    be used in court. He had the benefit of legal advice before both the March 24
    and April 15 interviews.

[22]

There is no basis to
    interfere with the trial judges conclusion that the Crown had proven beyond a
    reasonable doubt that the statements of April 15, 2008 were voluntarily made.

D.

The search of the appellants car on January 15, 2008

[23]

The appellant concedes that
    the traffic stop of the appellants car on January 15, 2008 was lawful. The
    police officer, Smintich, was concerned about impaired driving, given the
    manner in which the car was operated. When he approached the drivers side of the
    car he noticed unusual redness to the appellants eyes. His pupils were dilated
    and the officer smelled burnt marijuana. The appellant was slow in retrieving
    his papers and failed field sobriety tests. Smintich arrested the appellant for
    impaired driving. He searched the appellants vehicle incident to arrest,
    finding shotgun shells in a knapsack in the trunk.

[24]

The trial judges reasons
    for admitting the shotgun shells into evidence are reported at 2011 ONSC 1913.
    He held at para. 34 that the purpose of the search of the trunk and the
    knapsack was to locate evidence helpful to the impaired driving offence and
    that the search of the car was lawful and incident to his arrest for impaired
    driving.

[25]

The argument on appeal is
    that the search incident to arrest went too far. Searching the trunk, and the
    knapsack found in the trunk, for evidence helpful to the impaired driving
    offence was unreasonable, and the search should have been confined to the area
    close to the drivers seat.

[26]

I do not accept this argument.
    The arrest of the appellant for impaired driving was lawful. The search was
    undertaken to look for marijuana and by a police officer who was not involved
    at all in the homicide investigations. Discovery of marijuana in the trunk of
    the appellants car and in his knapsack would have some probative value on the
    issue of whether his ability to drive was impaired by marijuana.  There was a
    reasonable basis for the officers actions and a reasonable prospect of finding
    evidence of the offence for which the appellant had been arrested: see
R.
    v. Caslake
, [1998] 1 S.C.R. 51, at paras. 20 and 22.

E.

The statement of February 19, 2008

[27]

Police stopped the
    appellants vehicle again on February 19, 2008 in a lawful traffic stop. The
    appellant was driving, and his friend Campbell was also in the vehicle. The
    police officer, Brabant, saw a red shotgun shell in plain view on the back
    seat. Both occupants of the vehicle were arrested for careless storage of
    ammunition. Three more shotgun shells were found in the trunk.

[28]

The appellant was cautioned.
    He asked to speak to his lawyer. Before he could exercise his right to speak to
    counsel, Brabant approached him, holding the shotgun shells in his hand and
    asked: Where did these come from? The appellant said that he had found them
    and intended to use them to make firecrackers.

[29]

While in the back of the
    police car on the way to the police station, the appellant asked Brabant if his
    friend had been arrested. When advised that Campbell had also been charged with
    careless storage of ammunition, the appellant blurted out that the ammunition
    was his. In reasons reported at 2011 ONSC 1912, the trial judge found the
    statement was made spontaneously without prompting by Brabant, who was driving
    at the time.

[30]

On appeal, the appellant
    argues that the statement in the back of the police car was tainted by the
    violation of the appellants
Charter
rights caused by the question
    posed by Brabant before he could consult counsel. The trial judge was aware of
    the earlier
Charter
violation and had excluded the appellants
    response to the question.

[31]

The trial judge did not
    explicitly deal with the contextual, temporal and causal relationship between
    the two statements. However, given his factual findings that the appellants
    statement that the shotgun shells were his own was made spontaneously, out of
    concern for his friend, and that the statement was not prompted by any
    investigative step on the part of police, I am satisfied that the connection
    between the
Charter
breach and the statement made from the back seat
    of the police car was tenuous and remote: see
R. v. Wittwer
, 2008 SCC
    33, [2008] 2 S.C.R. 235, at para. 21. The evidence of the appellants utterance
    was not obtained in a manner that infringed or denied any rights or freedoms
    guaranteed by this
Charter
 within the meaning of s. 24(2).

F.

Bad character evidence

[32]

The appellant submits that
    the trial judge should have excluded the following evidence, referred to at
    trial as bad character evidence, on the ground that its probative value was
    outweighed by its prejudicial effect:

1.

The

testimony of two witnesses, who were both friends of the appellant.
    It was their evidence that in December 2007 the appellant had a shotgun and
    showed it to both of them, on separate occasions.

2.

Evidence that shotgun
    shells were located inside the appellants vehicle on January 15, 2008 and
    February 19, 2008.

3.

The testimony of a
    witness that he spent January 14, 2008 with the appellant and Campbell scoping
    out drug dealers residences for the purpose of robbing them. (This evidence admitted
    only in the trial related to the killing of Warne: 2011 ONSC 2571).

[33]

When considering the
    admissibility of bad character evidence, the trial judges weighing of probative
    value and risk of prejudicial effect is owed deference. As Strathy C.J.O.
    indicated in
R. v. Bent
, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 48:

Absent an error in principle, substantial deference should be
    given to the trial judges balancing of probative value versus prejudicial
    effect. This deference recognizes that the trial judge is best equipped to
    assess the impact of the evidence on the jury, in the context of the issues and
    evidence at trial. [Citations omitted.]

[34]

I agree with the trial
    judges conclusions that the evidence at issue here was admissible.  The
    appellants possession of a shotgun and shells close in time to the two
    homicides under investigation was relevant to the identity of the killers and
    to the assessment of the appellants testimony that A. killed Ottley and that
    someone else shot Warne. A shotgun was the weapon most likely used in the
    killings. The appellants lurking around Warnes house with a view to ripping
    off a drug dealer was likewise an integral part of the circumstances leading up
    to Warnes death and suggested a motive for the killing. The witnesss
    testimony on this point was corroborated by the appellants own statement to
    the police during the April 15, 2008 polygraph interview that he was at Warnes
    home the night Warne was killed with an intent to rob him.

[35]

Prejudice in the context of
    bad character evidence means the risk that a jury would misuse the evidence,
    not the risk that the evidence would be inculpatory:
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at para. 139. The appellants possession of a
    shotgun or shotgun ammunition is not evidence of such a degree of bad character
    as to lead a jury into moral or reasoning prejudice, particularly in the
    context of the other evidence led in this case.

G.

Conclusions

[36]

For these reasons, the appeals are dismissed.

Released: DW MAY 16 2017

G. Pardu J.A.

I agree. David Watt
    J.A.

I agree. K. van
    Rensburg