CITATION:
R. v. Rudge, 2011 ONCA 791

DATE: 20111215

DOCKET: C52233

COURT OF APPEAL FOR ONTARIO

OConnor
          A.C.J.O., Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dean Rudge

Respondent

James K. Stewart, for the appellant

Ronald N. Brady, for the respondent

Heard: April 28, 2011

On appeal from the acquittal
          entered by Justice Harrison S. Arrell of the Superior Court of Justice,
          sitting without a jury, on May 13, 2010.

Epstein J.A.:

I.         OVERVIEW

[1]

In 2006, the Intelligence Services
    Branch of the Niagara Regional Police Service (the NRPS) learned that the
    Hells Angels motorcycle gang had possession of a confidential police
    document.  The ensuing investigation (the Leak Investigation) disclosed that
    the document had originated from the Port Colborne detachment of the NRPS,
    where the respondent, Dean Rudge, was then a serving officer.  The
    investigators obtained information that caused them to suspect Rudge as the
    source of the leak.

[2]

Concurrent with the Leak
    Investigation, the provinces Biker Enforcement Unit (BEU) was running a multi-force
    investigation (Project Tandem) targeting the Ontario Hells Angels.

[3]

On September 28, 2006, as part of Project
    Tandem, the police executed search warrants at various locations connected to
    the Hells Angels and seized additional documents that could be linked to Rudge.

[4]

On April 4, 2007, Rudge was
    arrested and charged with breach of trust by a public official contrary to s.
    122 of the
Criminal Code
.   The police obtained a production order for
    Rudges cell phone records.  These records showed a series of conversations
    between Rudge and Sandra Taylor, the common-law spouse of Ken Wagner, the
    president of the Niagara chapter of the Hells Angels.

[5]

In the ensuing 11-day judge-alone
    trial, the Crown presented substantial circumstantial evidence to show that
    Rudge, in connection with his duties as a police officer, had provided
    confidential police documents to a criminal organization, thereby betraying the
    trust reposed in him by the public as a police officer.  This evidence fell
    into two categories  the seized documents and their connection with Rudge and records
    of phone calls between Rudge and Sandra Taylor.

[6]

Rudge denied the allegations
    against him and adduced evidence in response to the inferences the Crown argued
    should be drawn from the combined effect of the documents and the cell phone
    records. With respect to the leaked documents, Rudge called evidence concerning
    certain weaknesses in the Port Colborne police detachments buildings security
    system.  This was to support his theory that the documents had been obtained by
    the Hells Angels from an unknown person who had broken into (or otherwise
    gained access to) the building, had taken them and had provided them to the
    Hells Angels. With respect to the cell phone calls, Rudge offered evidence in
    support of an innocent explanation  that they were related to his efforts to
    assist Sandra Taylors daughter, Miranda Taylor, with problems that included substance
    abuse.

[7]

In brief reasons, the trial judge concluded
    that he was left with a reasonable doubt as to Rudges guilt.  Rudge was
    therefore acquitted.

[8]

As I will explain, I would allow
    the Crowns appeal from acquittal and order a new trial on the grounds that the
    trial judge (1) failed to examine the evidence as whole in relation to the
    ultimate question of guilt, and (2) failed to factor into his analysis
    important evidence relevant to a key issue.  In my opinion, the combination of
    these errors invalidates the acquittal and a new trial is called for.

II.        FACTUAL BACKGROUND

[9]

On the evidence, the trial judge found
    the following facts, none of which are in dispute.

[10]

The Leak Investigation was
    triggered by a document that contained information that the Outlaws, a rival
    motorcycle gang, intended to re-open its St. Catharines chapter.  The
    information included names, photographs and current places of residence of
    Outlaws members.

[11]

The document originated from the
    Port Colborne police detachment where a monitor had secretly been installed on the
    printer used by the officers. Logs, produced by the monitor revealed that five
    confidential police documents relating to biker gangs had been printed.  The officer
    who printed one of the documents provided it to the investigators together with
    an acceptable explanation as to why he had printed it.  Rudge printed the four remaining
    documents.

[12]

Subsequent to this discovery, on
    September 28, 2006, the police involved in Project Tandem executed several
    search warrants at premises under the control of the Hells Angels or their
    members, including the Cedar Bay Inn in Port Colborne, the Hells Angels
    Clubhouse in Welland, the home of Ken Wagner and Sandra Taylor in Port Colborne,
    and the home of Gerald Ward, a full patch member of the Hells Angels in Welland.

[13]

These searches produced most of
    the documents upon which the Crowns case depended.

The Confidential Documents

[14]

A brief description of the
    documents found in each location, and the evidence upon which the Crown relied to
    connect Rudge to the documents, follows.

[15]

The Cedar Bay Inn was a facility
    owned by Ken Wagner and operated by Sandra Taylor.  In their search of the Inn,
    the police discovered the following two documents in the office from which
    Sandra Taylor managed the Inn:

a)

A calendar indicating Rudges work shifts for the year 2006

The Crown relied on the fact that Rudges fingerprints
    were found on the calendar and evidence that Rudge had visited Taylor at the
    Inn.

b)

A photocopy of a police memorandum containing information about the
    Hells Angels presence at the Inn, and about various investigative approaches

The Crown relied on the fact that the original
    memorandum had been read to officers on duty and then stored in an unmarked
    binder kept on a shelf in the briefing room behind the sergeants desk in the
    Port Colborne police detachment.  The document had not been distributed.

[16]

The execution of the search
    warrant at the home of Ken Wagner and Sandra Taylor produced the following four
    documents:

a)

A copy of a confidential BEU booklet on Ontario motorcycle gangs that
    included security information

The Crown relied on evidence that the booklet,
    distributed to police two years earlier, had Rudges fingerprints on it.

b)

A copy of a General Occurrence Report concerning Domenic Mercuri (the
    Mercuri document)

The Crown called evidence that the document could
    only have been acquired by someone with access to the Welland detachment.  Rudge
    had such access.  The detachment was staffed 24 hours a day.

c)

A copy of a General Occurrence Report concerning Mr. Wagner, discovered together
    with the Mercuri document

The Crown relied on the fact that the original document
    was stored in a filing cabinet in the Port Colborne police detachment where
    Rudge worked.

d)

A copy of a BEU Outlaw Bulletin, found in a truck in front of the Wagner/Taylor
    home (the Outlaws bulletin)

The Crown relied on the fact that Rudges
    fingerprints were found on the Outlaws bulletin and that the printer log
    indicated that he had printed it on May 2, 2006.  Furthermore, the document
    contained, in Sandra Taylors handwriting, information about where some of the Outlaws
    lived.  This information was only available to those who could retrieve it from
    a password-protected program on a police computer.  Rudge initially denied
    having received the training necessary for him to access this information, but
    later admitted to having received the training.

[17]

The execution of the search
    warrant on the Hells Angels Clubhouse in Welland yielded an additional
    document:

a)

A copy of a BEU Hells Angels Bulletin containing, among other things,
    pictures of gang members

The Crown relied on the fact that Rudges
    fingerprints were on the document.  The printer logs indicated that on April
    16, 2006, Rudge had printed two copies of the Bulletin.  The other copy was
    located in Rudges locker.

[18]

In the course of the search of Mr.
    Wards home in Welland, the police found the following document:

a)

A colour copy of the Outlaws bulletin that was found in the truck in
    front of the Wagner/Taylor home

As with the original version of this document, the
    copy contained information in Sandra Taylors handwriting that could only be
    accessed from the police computer.

[19]

There were two other documents that
    formed the basis of the charge against Rudge:

a)

In June 2006, an informant observed John Clute in possession of an
    intelligence bulletin (the Clute document).  The Clute document indicated
    that a certain informant had provided police with information about Clutes
    involvement with the Niagara Hells Angels.  The police recovered the Clute
    document from Clute on July 26.

The Crown relied on the printer logs to show that
    Rudge was the only person who printed the Clute document and that he had done
    so on May 2, 2006.

b)

Some time prior to June 9, 2006, another confidential intelligence
    bulletin indicating that John Cane, a known biker, and Jason Meyer had opened
    an establishment in Beamsville called the Dark Side Tattoo, was seen in Canes possession.

While this document was never recovered, the Crown again
    relied on the printer logs to demonstrate that this document had been printed only
    by Rudge and that he had printed it on May 4, 2006.

The Cell Phone Records

[20]

The cell phone records turned over
    as a result of the production order disclosed extensive contact between Rudge
    and Sandra Taylor.  That contact took place both while Rudge was on duty and
    while he was off duty. The majority of the contact corresponded temporally with
    activity material to the two investigations.

[21]

Rudge and Sandra Taylor spoke to
    each other by cell phone the day after she had complained about Mirandas being
    picked up in a police car after being found by Rudge standing on the street,
    malnourished and in a drug-induced haze.  An eight-month gap in communication
    followed.  Cell phone contact between Rudge and Sandra Taylor resumed in January
    2006 and the records show a cluster of calls in the months of March, April, and
    May 2006.  According to the Crown, this timing was significant as Rudge printed
    one of the four confidential documents in issue in April and the other three in
    May. The last recorded call during this period took place on June 10, 2006.

[22]

Another eight-month gap ensued.
    The records demonstrate that telephone communication between Rudge and Sandra
    Taylor resumed two days before the judicial pre-trial on charges involving
    incarcerated Welland Hells Angels members.

Rudges Response to the
    Evidence concerning Confidential Documents

[23]

While Rudge admitted that he had
    printed the documents indicated by the monitor on the printer and otherwise had
    access to the documents upon which the Crown relied, he took the position at
    trial that the documents had been stolen from the Port Colborne police
    detachment by someone else who then provided them to the Hells Angels (the
    third-party-theft-theory).

[24]

The evidence Rudge relied upon in
    support of this theory was his own testimony that, after briefings with other
    police officers, he commonly left such documents in his mail slot. He also
    called evidence to show that the building housing the Port Colborne detachment
    was easily accessible: it was regularly unoccupied and the key-code lock controlling
    the back door of the building had never been changed.

[25]

There was, however, evidence that significantly
    undermined Rudges explanation.

[26]

As I will later explain, the Mercuri
    document and the Outlaws bulletin were the two most compelling pieces of
    evidence that was completely incompatible with the third-party-theft theory.

[27]

In addition, the Crown challenged
    the portion of Rudges theory that said that during briefings with his
    platoon-mates, Rudge regularly distributed documents such as those that formed
    the basis of the Crowns case, and that after these meetings he often left the
    documents in his mail slot.  A number of Rudges platoon-mates testified that
    he had never handed out intelligence information at briefings, and that he did
    not keep such documents in his mail slot.

[28]

Furthermore, the evidence was
    clear that Rudge never reported the disappearance of any document even though
    those he alleged must have been taken from him included his calendar, his OMG
    booklet, his Outlaws bulletin, his Hells Angels Bulletin, his Clute memorandum,
    and his Dark Side Tattoo memorandum.

Rudges Response to the Cell
    Phone Records

[29]

As previously indicated, Rudge
    explained the phone calls disclosed by the cell phone records as evidence of nothing
    more than his efforts to help Miranda Taylor with her problems. He testified that
    throughout the two years after he found Miranda
in extremis
on the
    street, he tried to help her.  He described assisting her in resolving conflicts
    with numerous local businesses over her alleged shoplifting activities and, on
    one occasion, bringing her to be seen by an employee of a resource centre.
    Rudges assistance to Miranda was supported by the testimony of several defence
    witnesses.

[30]

However, other evidence upon which
    Rudge relied, such as the testimony of the intake worker at the resource centre,
    a soup kitchen worker, and a pharmacist, did not support a conclusion that he
    was as heavily involved in helping Miranda as he tried to make out.  Indeed, Rudge
    himself admitted that his involvement was fleeting.

III.      THE REASONS OF THE
    TRIAL JUDGE

[31]

Though I later detail the trial
    judges reasons more fully, a short summary provides the necessary context at
    this stage.

[32]

In succinct reasons, the trial
    judge summarized the evidence, made certain findings, set out the positions of
    the Crown and the defence, and identified the only issue in dispute as whether
    the Crown has proved beyond a reasonable doubt that Mr. Rudge did indeed commit
    the breach of trust by passing on confidential police documents to the Hells
    Angels.

[33]

In the Analysis portion of his
    reasons, the trial judge briefly reviewed Rudges relationship with Sandra Taylor
    and the timing of their telephone contact, the documents discovered at Hells
    Angels locations and their connection with Rudge, and Rudges contact with
    known criminals.  The trial judge then concluded that, after applying the analysis
    set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, he was left with a
    reasonable doubt as to Rudges guilt.

IV.      ISSUES

[34]

The Crown raises the following
    issues on appeal:

a)

whether the trial judge erred in his treatment of the evidence;

b)

whether the trial judge relied in part on speculation or conjecture as
    the basis for reasonable doubt; and

c)

whether the trial judge erred in drawing an adverse inference from the
    Crowns failure to call certain witnesses.

V.        ANALYSIS

Jurisdiction on a Crown
    appeal from acquittal

[35]

That this courts jurisdiction in
    this case is extremely limited is not contested.  Under s. 676(1)(a) of the
Criminal
    Code
, the Attorney General has the right to appeal against an acquittal on
    any ground of appeal that involves a question of law alone. The Supreme Court has,
    on a number of occasions, provided assistance in relation to the narrow limits
    of the appellate jurisdiction granted by this provision.  The point
    consistently made is that the Crown is not entitled to contest an acquittal on
    the basis of an error of fact or of mixed fact and law. This limitation has
    been interpreted to preclude the Crown from arguing that an acquittal was
    unreasonable or, provided the trial judge took a legally correct approach to
    the evidence, that the verdict was not supported by the evidence: see:
R. v.
    B.(G.)
, [1990] 2 S.C.R. 57, at

pp. 70-71; and
R. v. Morin
,
    [1992] 3 S.C.R. 286, at pp. 294-295.

[36]

To succeed on this appeal from an
    acquittal, the Crown is also required to demonstrate with a reasonable degree
    of certainty, that the verdict would not necessarily have been the same had the
    error not been made: see
R. v. Morin
, [1988] 2 S.C.R. 345, at p. 374;
R.
    v. Graveline,
[2006] 1 S.C.R. 609, at para. 16; and
R. v. Sutton,
[2000]
    2 S.C.R. 595, at para. 2. An appeal by the Attorney General cannot succeed on a
    purely hypothetical possibility that the accused would not have been acquitted
    but for the error of law.

[37]

It is through the lens of this
    limited right of appeal that I examine the Crowns arguments.

Issue one: mistreatment of
    the evidence

[38]

In its factum, the appellant
    submits that the trial judge erred in law through his treatment of the evidence
    by:

a)

failing to consider or address relevant evidence on issues of
    significance;

b)

failing to consider the totality of the evidence; and

c)

subjecting individual items of evidence to the criminal standard of
    proof.

[39]

In cases such as this,
    where the Crown appeals from an acquittal on the ground that the trial judge
    erred in his or her approach to the evidence, the focus has been on what does
    and does not constitute an error of law alone: see
R. v. Harper,

[1982] 1 S.C.R. 2
;
R. v. Schuldt
,
[1985] 2
    S.C.R. 592
;
R. v. Morin
(1988);
R. v. B.(G.)
;
R. v. Morin
(1992). The
    distinction is crucial because, as the appellant properly observes in its
    factum, the Crown has no right of appeal against an

unreasonable
    acquittal.

[40]

Recently, in
R. v. J.M.H.
¸
    2011 SCC 45
,
the Supreme Court was presented with another opportunity to
    consider an appeal from an acquittal where the Crowns argument was based on
    the trial judges treatment of the evidence.  Cromwell J., speaking for a unanimous
    Court, referred to the issue as vexed.  But he then proceeded to identify and
    succinctly describe, at paras. 25-32, a non-exhaustive list of four situations
    that have been recognized as giving an appellate court jurisdiction in a Crown appeal
    from an acquittal where the appeal is based on an erroneous approach to the
    evidence:

a)

it is an error of law to make a finding of fact
    for which there is no evidence  however, a conclusion that the trier of fact
    has a reasonable doubt is not a finding of fact for the purposes of this rule;

b)

the legal effect of findings of fact or of
    undisputed facts raises a question of law;

c)

an assessment of the evidence based on a wrong legal
    principle is an error of law; and

d)

the trial judges failure to consider all of the
    evidence in relation to the ultimate issue of guilt or innocence is an error of
    law.

[41]

An assessment of whether the trial
    judges approach to the evidence amounts to the commission of one or more of
    these errors involves careful consideration of the reasons and the extent to
    which they are responsive to the live issues in the case. If it is determined
    that the reasons do disclose an error arising out of the trial judges
    treatment of the evidence, the question then becomes whether the Crown has
    satisfied the onus necessary for this court to set aside the acquittal and order
    a new trial.

i.

The nature of the Crowns case

[42]

According to the Crown, the fabric
    of its case consisted of two distinct threads of circumstantial evidence that, when
    woven together, firmly connect Rudge to the provision of confidential police
    information to the Hells Angels.  Specifically, the Crown argues that the clear
    inference arising from the combined effect of the links between Rudge and Sandra
    Taylor and the circumstances of the documents and their discovery is that Rudge
    obtained the documents or made copies of them and, through Taylor, provided them
    to the Hells Angels.  In fact, says the Crown, this is the
only
available inference when all of the evidence is considered and considered as a
    whole.

ii.

The trial judges reasons

[43]

The Analysis portion of the
    trial judges reasons consists of 11 brief paragraphs. Four contain the summary
    of the trial judges analysis of the major aspects of the case for the
    prosecution  the pattern of phone calls between Rudge and Taylor, and the fact
    that each of the confidential police documents found in the possession of the
    Hells Angels could, in some fashion, be linked to Rudge.

[44]

The trial judge dealt with the
    phone communications at para. 43 of his reasons:

43.       Mr. Rudge was vigorously cross-examined
    by the Crown and for the most part his story remained unchallenged. I accept
    that he was helping Miranda Taylor overcome her drug, boyfriend and education
    problems. I accept as well that this necessitated him being in contact with her
    mother Sandra Taylor either by phone or in person and these conversations were
    personal and logically would be done privately. Although some calls were
    clustered in months which had key dates in the prosecution of suspects in
    Project Tandem, many other calls were clustered at no specific time.

[45]

The trial judges analysis of the
    prosecution evidence relating to the documents and their connection with Rudge
    and Taylor essentially consumed the remainder of his analysis.  The key paragraphs
    are as follows.

45.       I find that some of the documents found
    in Hells Angels locations were printed by Mr. Rudge and therefore handled by
    him. I also find that he, like most of what I heard about protocols at the Port
    Colborne detachment, was less than perfect about securing these documents. They
    appear to have been accessible to potentially many people.

46.       I have considered at length the evidence
    of Mr. Rudge regarding his explanation about losing track of his work calendar
    for 2006 and it ending up at the Cedar Bay Inn when he had initially prepared
    it for his girlfriend; his assertions that he regularly handed out documents to
    fellow officers at briefings which was denied by several officers; his innocent
    explanation about obtaining a police profile for Diane Gales brother; the
    cluster of some calls to Sandra Taylor during key times in the Project Tandem
    investigation. Indeed some of these explanations raise suspicion.

. . .

48.       I also accept as logical Mr. Rudges
    statement that when he was a very young officer he printed a confidential
    police document for a woman to warn her that her then boyfriend had a criminal
    record. He was caught and disciplined and says he thereby learned his lesson.

[46]

At para. 53 of his reasons, the
    trial judge concluded, I must be sure Mr. Rudge is guilty of the charge laid
    against him. For all the reasons given I am not sure and therefore he must be
    acquitted.

iii.       Analysis

[47]

It is for the Crown to establish
    beyond a reasonable doubt that the accused committed the offence with which he
    or she has been charged.  That said, the prosecution is entitled to a legally
    correct approach to the evidence that bears upon the determination of whether
    the onus has been met  a contextual approach based on a full evidentiary
    footing in which the proper standard of proof is applied.

[48]

In the context of this case, the
    trial judge was obligated to consider the combined effect of all of the
    evidence relevant to the issue of whether it was Rudge who leaked the documents.
    This included the obligation to take into account the evidence relevant to whether
    the confidential police documents, each of which could be connected to Rudge,
    came into the possession of the Hells Angels from someone other than Rudge taking
    them from the Port Colborne detachment.  And then, if so, the unlikely
    coincidence that the thief provided them to Sandra Taylor
at around the same
    time
as Rudge was having extensive phone contact with her, much of which
    took place while he was off-duty and coincided with activity associated with
    the two investigations.

[49]

A review of the trial judges reasons
    makes it clear that he failed to consider the evidence as he should have.

[50]

While the trial judge did outline
    much of the evidence that pertained to each of the two components of the
    Crowns case  the documents and the phone calls  his reasons demonstrate that
    he considered the evidence relevant to each component separately and that he failed
    to factor into his analysis important evidence that severely undermined the
    theory of the defence.

[51]

In explaining, at para. 43 of his
    reasons, why he accepted Rudges position that his cell phone contact with
    Sandra Taylor was personal and innocent, there is no indication that the trial
    judge considered the communications in the context of the other evidence.  While
    the trial judge does note that some of the phone calls were clustered in months
    that had key dates in the prosecution of Project Tandem, he dismissed the
    balance of the calls as being clustered at no specific time.  This was a significant
    misapprehension of the evidence.  In fact, a large number of calls were also
    clustered around the very times during which the documents were being copied by
    Rudge.  The trial judge did not address the phone calls in the context of this
    important connection.  In short, he failed to examine the relevance of the
    phone calls in the light of the extensive evidence about the circumstances
    surrounding the discovery of the documents and their connection with both Rudge
    and Taylor.

[52]

In the circumstances of this case,
    the impact of this isolated analysis of the cell phone records goes further.  It
    also contaminated the trial judges analysis of the evidence involving the
    confidential police documents, evidence that led to his acceptance of the
    possibility that someone else wrongly acquired them and provided them to the
    Hells Angels, through Sandra Taylor.  In his examination of the document evidence,
    the trial judge does refer, at para. 46, to the cluster of some calls to
    Sandra Taylor during key times in the Project Tandem investigation.  However,
    once again, this mention falls short of a consideration of the evidence as a
    whole.  Moreover, by that point in his reasoning the trial judge had, through his
    piecemeal approach to the evidence, already accepted a benign explanation for
    the calls. This is precisely the kind of analytical distortion to which a
    piecemeal approach to the evidence gives rise.

[53]

I am not persuaded that this brief
    reference to the phone calls during the trial judges analysis of Rudges explanation
    relating to the documents, even coupled with the comment that some of these
    explanations raise some suspicion, is sufficiently responsive to the Crowns
    key arguments and the live issue: whether a reasonable doubt arose from the suggestion
    that another individual stole confidential police documents  all linked to
    Rudge  and provided them to Sandra Taylor while Rudge was contemporaneously
    engaging in extensive phone contact with her.

[54]

This takes me to the Crowns
    argument that the trial judge also failed to factor material evidence into his
    analysis of the ultimate question of guilt  a valid point, in my view.

[55]

In addition to erroneously
    scrutinizing the two portions of the Crowns case  the confidential documents
    and the phone communication  separately, at the cost of assessing the evidence
    in context as a whole, it is evident from the trial judges reasons that he
    also failed to take into account several key individual pieces of evidence in
    his analysis of whether the prosecution had established, beyond a reasonable
    doubt, that it was Rudge who provided the confidential police documents to the Hells
    Angels.

[56]

I acknowledge that a trial judge
    is not required to record an assessment of every piece of evidence in his or
    her reasons: see
J.M.H.
at paras. 31-32. However, the reasons must be
    responsive to the cases live issues and the parties key arguments: see
R.
    v. Walker
, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20;
J.M.H.
, at
    para. 32.

[57]

This, in my view, the trial judge,
    did not do.

[58]

As I have said, the
    third-party-theft-theory was a key argument.  It was also a key part of the
    trial judge analysis of whether the Crown had met its burden.

[59]

In relation to this theory, it was
    highly relevant that the Mercuri document found in the home of Sandra Taylor
    and Ken Wagner was kept in a filing cabinet in the Welland detachment, to which
    Rudge had access.  This document had no connection with the Port Colborne
    detachment building and therefore its discovery in the possession of the Hells
    Angels could not be explained by any theft that may have occurred in Port Colborne.

[60]

Circumstances surrounding the Outlaws
    bulletin found in the vehicle in front of the home of Sandra Taylor and Ken
    Wagner, were equally relevant.  Rudges fingerprints were on the document.  He
    had printed the bulletin during one of the periods when he was having extensive
    contact with Taylor.  And, the document had information on it, hand-written by Taylor,
    that could only have been obtained from a password-protected police computer on
    which Rudge had been trained.  The characteristics of this document also belied
    the theft theory.

[61]

The third piece of evidence the
    trial judge failed to consider in his reasons related to a copy of the police
    memorandum containing information
about the Hells
    Angels presence.  This document was discovered at the Cedar Inn.  While not
    impervious to the third-party-theft theory, that theory is considerably more
    unlikely with respect to this document.  It had been read to officers on duty,
    but had not been distributed to them.  It was stored in an unmarked binder
    behind the sergeants desk and could not have been taken from Rudges mail slot
    (the focal point of the third-party-theft theory).

[62]

The trial judges reasons simply
    do not demonstrate that he took stock of the uncontroverted evidence about
    these documents - significant evidence, given its potential to undermine the defence
    position  in conjunction with all of the other proof, in his evaluation of
    whether the evidence gave rise to a reasonable doubt.

[63]

By assessing the strength of the
    Crowns case and the plausibility of Rudges responses to the Crowns case on a
    piecemeal basis and overlooking important evidence material to the issue to be
    determined, the trial judges approach to the evidence was seriously flawed
    such that it amounts to a misdirection constituting an error of law and
    bringing the matter within the jurisdiction of this court:
R v. B.(G.)
,
    at paras. 31-39.

[64]

It is important to emphasize that
    the errors I have identified do not concern the weight that the trial judge may
    or may not have assigned to the evidence, or whether the evidence, properly
    considered, should have persuaded the trial judge beyond a reasonable doubt of
    Rudges guilt. It is not for this court to substitute its own weighing of the prosecution
    evidence or its own determination on the ultimate question of guilt. As
    mentioned earlier, the Crown has no appeal on the basis of an unreasonable
    acquittal.

[65]

Rather, the errors here arise from
    the trial judges departure from the legally correct approach to the evidence
    that bears upon the ultimate question of guilt:
J.M.H., at para. 31; B.(G.)
,
    at paras. 31-39.   The strength of the Crowns case lay in the persuasive
    effect of the totality of the evidence, but the trial judge never considered
    whether the doubt he amassed, looking separately at Rudges response to each
    part of the Crowns case, would survive an examination of those explanations
    considered in the context of the Crowns case as a whole.

[66]

It is therefore apparent that the
    doubt the trial judge refers to at the close of his reasons was drawn from his
    consideration of each component of the Crowns case without the support of the
    other evidence, including evidence that presented a serious threat to the
    position of the defence. Simply put, the persuasive effect of the totality of
    the evidence  the strength of the Crowns case  was taken out of play.

[67]

I return to Cromwell J.s four
    categories of legal error arising from a trial judges approach to the evidence
    that he identified in
J.M.H.
Para. 31 contains a detailed description
    of the fourth category - the failure to consider all of the evidence in
    relation to the ultimate issue of guilt:

The underlying legal principle is
    set out in another decision called
R. v. Morin
, [1988] 2 S.C.R.
    345.   The principle is that it is an error of law to subject
    individual pieces of evidence to the standard of proof beyond a reasonable
    doubt; the evidence must be looked at as a whole: see e.g.,
B. (G.)
, at
    pp. 75-77 and 79
.
However, Sopinka J. sounded an important warning
    about how this error may be identified.  It is a misapplication

of
    the
Morin
principle to apply it whenever a trial judge fails to deal
    with each

piece of evidence or record each piece of evidence and his or
    her assessment of it. As noted in
Morin
(1992), at p. 296, A trial
    judge must consider all of the evidence in relation to the ultimate issue but
    unless the reasons demonstrate that this was not done, the failure to record
    the fact of it having been done is not a proper basis for concluding that there
    was an error of law in this respect.

[68]

It is readily apparent that this
    description could easily be said to apply to the errors I have identified in
    this case.  The evidence was not looked at as a whole, an error that invites the
    corresponding error of the application of the criminal standard of proof to
    individual items of evidence.  In addition, not all of the evidence was
    considered in relation to the ultimate issue.

[69]

For these reasons I am of the
    opinion that the trial judges approach to the evidence amounted to an error of
    law.

Issue 2:
reliance in
    part on speculation or conjecture as the basis for reasonable doubt

[70]

The Crown also submits that the
    trial judge erred in concluding that there was a reasonable doubt as to Rudges
    guilt based on the mere possibility of an alternative explanation.

[71]

For this proposition, the Crown
    relies on, among other cases,
R. v. Wild
, [1971] S.C.R. 101. In
Wild
,
    Martland J, writing for the majority, held at pp. 113-14, that a reasonable doubt
    cannot be based on conjecture, but must be based on a rational conclusion on
    the evidence.  However, in
R. v. Schuldt
, [1985] 2 S.C.R. 592, Lamer J.,
    writing for a unanimous Supreme Court, qualified
Wild
, at p. 604:

I agree with [Martland J.],
    however, that a finding of fact that is made in the absence of any supportive
    evidence is an error of law.  I must say, however, that that will happen as
    regards an acquittal only if there  has been a transfer to the accused by law
    of the burden of proof of a given fact.

[72]

This court considered Lamer J.s
    reasons in
Schuldt
in
R. v. Powell
(2010), 99 O.R. (3d) 671.
    Juriansz J.A., writing for the court, stated at paras. 31-32:

[Lamer J.] concluded that
    the proposition that the total absence of a foundation for a finding of fact is
    an error of law generally has
no application to a trial judges conclusion
    that there is reasonable doubt
.  As the accused does not have to prove the
    existence of reasonable doubt, no particular evidence to support the finding of
    reasonable doubt is necessary and the proposition does not apply.

Lamer J. explained there is
    but one exceptional circumstance where an evidentiary basis is required to
    acquit. That is where the law provides for a presumption and places a burden on
    the accused to displace it.  In such a case it is an error of law to acquit in
    the face of the presumption. [Emphasis added.]

[73]

Cromwell J., in dealing with this
    issue in
J.M.H.
, confirmed, at para. 25, that the error of law in making
    a finding of fact in the absence of evidence has no application to a finding of
    reasonable doubt:

It has long been recognized
    that it is an error of law to make a finding of fact for which there is no
    supporting evidence:
Schuldt v. The Queen
. It does not follow from this
    principle, however, that an acquittal can be set aside on the basis that it is
    not supported by the evidence.  An acquittal (absent some fact or evidence on
    which the accused bears the burden of proof) is not a finding of fact but
    instead a conclusion that the standard of persuasion beyond a reasonable doubt
    has not been met [Citations omitted.]

[74]

Here, the Crown argues that
    Rudges evidence concerning his handling of confidential documents and the poor
    security at the Port Colborne detachment  evidence that might support the third-party-theft
    theory  was not a sufficient basis for a reasonable doubt.  But it is clear
    from the authorities that a lack of evidentiary foundation to support a
    reasonable doubt is not an error in law capable of grounding an appeal from
    acquittal unless the law has shifted the burden of proof to the accused.  There
    has been no such shift in the burden of proof in this case.

[75]

I would not give effect to this
    ground of appeal.

Issue
    3: adverse inference

[76]

In rejecting the Crowns argument
    that Rudges explanation for the cell phone communication with Sandra Taylor
    was not credible, the trial judge stated the following, at para. 44 of his
    reasons:

The Crown elected not to call Sandra Taylor nor her
    daughter Miranda to dispute this evidence, on the basis that Ms. Taylor had
    previously lied at the preliminary hearing. It would have been for the Court to
    determine how much weight to put on any such evidence she might have given.
    This Court often hears from less than credible witnesses and is perfectly
    capable of weighing such evidence. No reason was given why Miranda was not
    called.

[77]

The Crown argues that this
    paragraph indicates that the trial judge drew an adverse inference against the
    prosecution based on its failure to call Sandra Taylor and Miranda Taylor as
    witnesses.

[78]

The Supreme Court of Canada
    addressed the issue of an adverse inference in the context of the Crowns
    failure to call a witness in
R. v. Jolivet
, [2000] 1 S.C.R. 751.  The
    general rule, applicable in both civil and criminal cases, is that all evidence
    is to be weighed according to the proof that one side is capable of producing
    and the other side is capable of contradicting. In the criminal context, the
    general rule is subject to many conditions to account for the peculiar division
    of responsibilities between the Crown and the defence. First, the party against
    whom an adverse inference is sought may provide a satisfactory account for its
    failure to produce a witness (para. 26).  Second, there is a stronger basis for
    the drawing of an adverse interest where one party has special access to the
    potential witness (para. 27). Additionally, attention must be paid to the exact
    nature of the adverse inference sought to be drawn.  Binnie J. stated the
    following, at para. 28:

In
    J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd
    ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call
    evidence may, depending on the circumstances, amount "to an implied
    admission that the evidence of the absent witness would be contrary to the
    party's case,
or at least would not support it
", as stated in the
    civil case of
Murray v. Saskatoon
, [1952] 2 D.L.R. 499 (Sask. C.A.), at
    p. 506. The circumstances in which trial counsel decide not to call a
    particular witness may restrict the nature of the appropriate "adverse
    inference". Experienced trial lawyers will often decide against calling an
    available witness because the point has been adequately covered by another
    witness, or an honest witness has a poor demeanour, or other factors unrelated
    to the truth of the testimony. Other jurisdictions also recognize that in many
    cases the most that can be inferred is that the testimony would not have been
    helpful to a party, not necessarily that it would have been adverse. [Emphasis
    added by Binnie J. Citations omitted].

[79]

The Crown submits that no adverse
    inference was available here as:

1)

the evidence in question was not peculiarly within the power of one
    party to produce, as Rudge could have called the two witnesses;

2)

it would not have been natural for the Crown to produce the two
    witnesses as, to confirm the Crown theory, Ms. Taylor would have been required
    to admit to criminal wrongdoing; and

3)

the Crown offered a reasonable explanation for failing to call Ms.
    Taylor  she was an admitted perjurer.

[80]

The Crown does not go so far as to
    suggest that this error alone is sufficient to require a new trial, but rather
    submits that, when taken together with the erroneous treatment of the evidence
    discussed above, it provides strength to the argument that the acquittal cannot
    stand.

[81]

My difficulty with this ground of
    appeal is that, in my view, the trial judge did not draw an adverse inference
    from the Crowns failure to call either Sandra or Miranda Taylor.  An adverse
    inference occurs when the trier of fact draws a conclusion about what the
    testimony of an uncalled witness would have been, to the extent that the trier
    of fact infers that the evidence would have been detrimental to, or at least
    would not have assisted, the case of the party who fails to call the witness.

[82]

That is not what happened here.  The
    passage from the trial judges reasons quoted above is, in my view, nothing
    more than a negative comment about the Crowns conduct of the case: the trial
    judge simply notes the fact that the Crown failed to adduce evidence to dispute
    this aspect of the defence theory.  The trial judge does not express any
    conclusion as to what the evidence of Sandra or Miranda Taylor would have been
    had either or both of them testified. These are precisely the circumstances found
    in
R. v. Cook
, [1997] 1 S.C.R. 1113,

and
R. v. Yebes
,
    [1987] 2 S.C.R. 168. The Crown failed to call two witnesses and the trial judge
    noted that this failure left a gap in the Crowns case. He drew no adverse
    inference against the Crown.

[83]

Accordingly, I would not give
    effect to this ground of appeal.

VI.      CONCLUSION

[84]

This court does not lightly
    overturn an acquittal.  However, the trial judges approach to the evidence
    must be correct in law so as to ensure that the final step in the process, the
    weighing of the evidence, is not flawed.  Here, the trial judge approached the evidence
    comprising the case for the prosecution in a manner that amounted to an error
    in law. This was the result of misdirection and brings the matter into the
    jurisdiction of this court.

[85]

As previously noted, having
    established an error of law alone, the Crown must demonstrate that the trial
    judge's error might reasonably be thought to have had a material bearing on the
    acquittal.

[86]

The Crown presented a compelling
    evidentiary foundation for conviction. In this case, advanced through circumstantial
    evidence, the trial judge was required to factor all of the material evidence
    into his analysis of the issue of whether the Crown had established that it was
    Rudge who provided the confidential police documents to the Hells Angels.
    This involved a considered assessment of the plausibility of the
    third-party-theft theory in the light of all of the evidence and all of the
    evidence as a whole.

[87]

Given the trial judges failure to
    approach the evidence in this way, I am of the view that it cannot be said that
    the verdict would necessarily have been the same absent these errors.

VII.

DISPOSITION

[88]

For these reasons, I would allow
    the appeal, set aside the acquittal and order a new trial.

RELEASED:

DEC
    15 2011                               G.J. Epstein J.A.

DOC                                               I
    agree Dennis OConnor A.C.J.O.

I
    agree R.A. Blair J.A.


W
    A R N I N G

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. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may,
    if application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he
    or she is discharged; or

(d)

if
    he or she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

(4)

[
Repealed
, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467;
    R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

CITATION:
R. v. Rutigliano, 2011 ONCA 796

DATE: 20111215

DOCKET: C54092

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rutigliano and Barry Pierson

Appellants

Scott C. Hutchison and Fredrick Schumann, for the appellant
          Rutigliano

Joseph Wilkinson, for the appellant Pierson

Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda
          Morgan, for the respondent

Heard and released orally:
December 13, 2011

On appeal from the order made by Justice Joseph M. Fragomeni
          of the Superior Court of Justice dated July 6, 2011 dismissing the
          application for an order in the nature of a writ of
certiorari
quashing the order made by Justice I. André on November 15, 2010, which
          committed the appellants to stand his trial on certain counts in the Information.

ENDORSEMENT

[1]

This is an appeal from the decision of Justice Fragomeni of the Superior
    Court of Justice refusing to quash the appellants committal for trial on
    certain counts.  The appellants argue that the preliminary inquiry justice lost
    jurisdiction when he refused to permit them to call three witnesses who had
    provided information relevant to judicial pre-authorizations that had been
    granted.  The appellants hoped to elicit evidence that would be relevant to
    potential
Charter
breaches that they intend to raise at trial.  At the
    appeal, they restricted their argument to two witnesses who were employees of a
    bank.

[2]

Both the preliminary inquiry justice and the appeal judge regarded the
    proposed witnesses as sub affiants who could only be cross-examined with leave
    of the court.  From that perspective, the appeal judge explained in his careful
    and detailed reasons, that in refusing to grant leave, the preliminary inquiry
    justice made an evidentiary ruling that was within his jurisdiction to make.
    The preliminary inquiry justice had found, and had a basis for finding, that
    his refusal to allow the cross examinations at the preliminary inquiry would
    not impair the appellants right to make full answer and defence.

[3]

The appellants argue that the two proposed witnesses were not sub
    affiants and that the preliminary inquiry justice and the appeal judge should
    have treated their request to call the witnesses as part of their statutory
    right under s. 541(1) of the
Criminal Code
.

[4]

Without deciding whether the issue of the preliminary justices
    jurisdiction remained open after the appellants consented to committal orders,
    we are of the view that the appeal is without merit.

[5]

The witnesses had provided information relevant to the judicial
    pre-authorizations and the appellants wanted to examine them for that reason.
    The witnesses had no relevance to the preliminary inquiry on any other basis.
    The fact that the witnesses were not police officers is no basis for not
    characterizing them as sub affiants.

[6]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


W
    A R N I N G

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. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may,
    if application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he
    or she is discharged; or

(d)

if
    he or she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

(4)

[
Repealed
, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467;
    R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

CITATION:
R. v. Rutigliano, 2011 ONCA 797

DATE: 20111215

DOCKET: C54105 and C54106

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rutigliano

Appellants

Scott C. Hutchison and Fredrick Schumann, for the appellant
          Rutigliano

Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda
          Morgan, for the respondent

Heard and released orally:
December 13, 2011

On appeal from the order made by Justice Joseph M. Fragomeni
          of the Superior Court of Justice dated July 6, 2011 dismissing the application
          for an order in the nature of a writ of
certiorari
quashing the order
          made by Justice I. André on November 15, 2010, which committed the appellants
          to stand his trial on certain counts in the Information.

ENDORSEMENT

[1]

This is an appeal from the decision of Justice Fragomeni of the Superior
    Court of Justice refusing to quash the appellants committal to trial on
    certain counts.  The appellant, a police officer working in court liaison, was
    charged with breach of trust, obstruction of justice, and conspiracy to
    obstruct justice.  The appellant argues that the evidence presented at the
    preliminary inquiry establishes only that he attempted to assist Frank
    DAngelo, a long-time friend charged with sexual assault, navigate the criminal
    justice system and is insufficient to establish the essential elements of the
    offences with which he was charged.  The appellant submits that the conduct
    relied on by the Crown does not make out the offences, but calls for
    speculation rather than legitimate inference drawing.

[2]

We are unable to accept Mr. Hutchisons characterization of the evidence
    of the appellants advice to Frank DAngelo, and of his actions and
    communications with Crown attorneys and court administrators.

[3]

For example, Mr. Hutchison submits that appellants [a portion of this paragraph has been edited to comply with the non publication order of Justice I. André].

[4]

As Justice Fragomeni pointed out, the appellant isolates some conduct of
    the appellant and asks the court to assess that conduct on its own, but that
    the trier of fact is obligated to consider individual pieces of evidence in of
    the context of all the evidence.

[5]

Specifically in relation to the breach of trust charge, the appellant
    submits that the evidence falls short of establishing that [a portion of this paragraph has been edited to comply with the non publication order of Justice I. André].  All of these
    matters considered together are sufficient to justify committal of the
    appellant to stand trial.  Whether they rise to the level of a serious and
    marked departure from the standards expected of an individual in the
    appellants position of public trust is a matter to be determined by the trier
    of fact at trial on the basis of the totality of the evidence.

[6]

All the evidence and the elements of the offences charged were carefully
    reviewed by Justice Fragomeni who concluded that there was evidence before the
    committing judge upon which the justice could form the opinion that there was
    sufficient evidence to put the appellant on trial.

[7]

We agree with Justice Fragomenis careful and complete reasons.

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

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

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

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

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

CITATION:
R. v. S.K., 2011 ONCA 835

DATE: 20111222

DOCKET: C51988

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.K.

Appellant

Candice Suter, for the appellant

Emile Carrington, for the respondent

Heard:
December 21, 2011

On appeal from the finding of guilt
          entered on December 4, 2009 and the disposition imposed on April 19, 2010 by
          Justice James J. Keaney of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

The Conviction Appeal

[1]

There are two grounds of appeal.

(1)

The identification evidence

[2]

The trial judge did not err in his assessment of the identification
    evidence given by the teller.  He was alive to the inherent frailties of that
    evidence.  In any event, the tellers evidence was only a small feature of the
    identification evidence.  This was an overwhelming case.

(2)

The photographs

[3]

In our view, defence counsel did agree that the time and date stamps on
    the schools photographs could be admitted for their truth without formal proof
    of their authenticity.

[4]

The appeal from conviction is dismissed.

The Sentence Appeal

[5]

The trial judges characterization of the case was open to him. On that characterization
    the sentence was reasonable and we see no error in principle.

[6]

The sentence appeal is dismissed.


CITATION:
R. v. Sanko, 2011 ONCA 804

DATE: 20111216

DOCKET: C54241

COURT OF APPEAL FOR ONTARIO

Feldman and Armstrong JJ.A. and Himel J. (
ad hoc
)

BETWEEN

Her Majesty The Queen

Respondent (Appellant)

and

Daniel Sanko

Appellant (Respondent)

Scott Latimer, for the appellant

Danielle Robitaille, duty counsel for the respondent

Daniel Sanko, in person

Heard and released orally: December 8, 2011

On appeal by the appellant from conviction and on appeal by
          the Crown from sentence imposed by Justice William R. Wolski of the Ontario
          Court of Justice, dated August 10, 2011.

ENDORSEMENT

[1]

The appellant was convicted of break and enter a dwelling and possession
    of property obtained by crime, namely a watch. He appeals his conviction for
    break and enter only, and the Crown appeals the sentence of 12 months
    incarceration.

[2]

The break-in occurred at the basement apartment of a Jesuit brother
    living in a Jesuit residence on Isabella Street in Toronto. The resident came
    home on the morning of October 4, 2010 and found two people rummaging through
    his dresser. They immediately left pushing past him. They took a silver watch
    and approximately $70. The next day, on October 5, Mr. Sanko was found nearby
    with a similar watch.

[3]

The appellant says that the trial judge erred by relying on the doctrine
    of recent possession of the watch when he did not reject the evidence of the
    complainant regarding the description of the intruders which was arguably
    inconsistent in some respects with the appellant.

[4]

In our view, the trial judge did not make the submitted error. The
    complainants evidence of the description of the intruders was vague. The trial
    judge neither accepted nor rejected it. Although he did not say so explicitly,
    reading the reasons as a whole, it is clear that he gave no weight to the
    descriptions such as they were. He was therefore entitled to rely on the
    doctrine of recent possession once he concluded that the watch found on the
    appellant was the stolen watch.

[5]

We would therefore dismiss the conviction appeal.

[6]

The Crown seeks leave to appeal the sentence on the basis that it was
    outside the range for home invasion type offences and that the trial judge
    failed to consider psychological harm to the victim in the circumstances.

[7]

We see no error in the approach taken by the trial judge. He was fully
    alive to all of the circumstances of the offence and of the offender, a
    38-year-old homeless man with an unfortunate record for this type of offence.
    No victim impact statement was filed nor did the trial Crown make any submissions
    regarding psychological harm.

[8]

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

Signed:           K. Feldman
    J.A.

Robert
    P. Armstrong J.A.

S.
    Himel J.


CITATION:
R. v. Soto, 2011 ONCA 828

DATE: 20111222

DOCKET: C52582

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Julio Soto

Appellant

Mariya Yakuseva, for the appellant

Randy Schwartz, for the respondent

Heard and released orally:
December 16, 2011

On appeal from the conviction entered on March 12, 2010 by
          Justice Alison Harvison Young of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of four firearms offences.  The firearm that
    led to these convictions was seized pursuant to a search warrant executed on
    March 17, 2009 at the appellants apartment residence.

[2]

At his trial, the appellant made a s. 8
Charter
challenge to the
    warrant that had authorized the search of his residence for drugs.  Justice
    Harvison Young held that the search did not violate s. 8 of the
Charter
.

[3]

The appellant contends that the trial judge erred in law when she held,
    relying upon a tip from a confidential informant that was neither compelling
    nor sufficiently corroborated, that the Information to Obtain a search warrant
    (the
I
TO) for the appellant`s residence established
    reasonable and probable grounds to believe evidence relating to possible drug
    offences would be found at the residence.  Accordingly, the appellant submits,
    the search warrant was invalid, the search violated s. 8 of the
Charter
and the evidence of the loaded firearm seized pursuant to the warrant should be
    excluded pursuant to s. 24(2) of the
Charter
.

[4]

We do not accept this submission.  On her ruling, the trial judge
    reasoned:

While I agree that the high expectation of privacy
    in ones home must always be kept in mind, I disagree with the conclusion that
    there was an insufficient nexus in this case.  Officer Taylors information was
    that Mr. Soto was dealing cocaine.  He saw Mr. Soto leave the building, get
    into the car, and then, as the ITO sets out, he and Officer Fitkin each
    observed what they believed to have been two hand-to-hand drug transactions.
    (That is, they each saw one.)
As Mr. Soto had not stopped anywhere else along
    the way before these transactions, it is reasonable to believe that he would
    have had the drugs on his person when he left the apartment.
[Emphasis
    added.]

[5]

In our view, this reasoning is sound.  In particular, the emphasized
    passage speaks to an obvious nexus among a person, drug and location, namely,
    if a person leaves his residence, then almost immediately engages in two drug
    transactions, it follows that there is a good chance that there are drugs in
    his residence.

[6]

The appellant also submits that the trial judge erred by finding that
    the ITO was not drafted in a misleading, deliberately or otherwise, manner.

[7]

The trial judge dealt comprehensively with this issue and concluded that
    the Affiant did not deliberately attempt to mislead the court, nor did he
    display such a cavalier attitude that the Court cannot find that he acted in
    good faith.  In our view, this conclusion was entirely open to the trial judge
    on the record.

[8]

Finally, the appellant asserts that the confidential informants tip was
    not sufficiently compelling to support the ITO.

[9]

We disagree.  The informant was a known credible source, he spoke
    directly to the police officer affiant, and the police sought and obtained
    other information to confirm many of the factual details provided by the
    informant.

[10]

In her reasons, the trial judge said this:

At the end of the day, the point is that there were
    reasonable and probable grounds in the circumstances to think that Mr. Soto had
    drugs on his person when he left 11 Catford Road and got into the Lincoln, and
    a reasonable inference that, as a dealer, he would have a supply in the
    apartment.

In our view, this is succinct and sensible summary of
    the case.

[11]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


CITATION:
R. v. Vellone, 2011 ONCA 785

DATE: 20111214

DOCKET: C50397

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen Ex Rel. The Regional Municipality
          of York

Appellant

and

Angelo Vellone

Respondent

Hans J. Saamen, for the appellant

Angelo Vellone, in person

Jordan Glick,
amicus curiae

David Lepofsky, for the intervener, the Attorney General for Ontario

Heard: November 21, 2011

On appeal from the judgment of Justice Howard I. Chisvin of
          the Ontario Court of Justice dated February 20, 2009, with reasons reported
          at 2009 ONCJ 150, allowing an appeal from the conviction of the respondent by
          Justice of the Peace A. Malik of the Ontario Court of Justice dated August
          25, 2008, with reasons reported at 2008 ONCJ 765, for speeding contrary to s.
          128 of the
Highway Traffic Act
.

MacPherson J.A.:

A.
INTRODUCTION

[1]

The appellant, the Regional Municipality of York (York Region) appeals
    from the decision of Justice H.I Chisvin of the Ontario Court of Justice dated
    February 20, 2009.  In that decision, Chisvin J. allowed an appeal from Justice
    of the Peace A. Maliks August 25, 2008 conviction of the respondent Angelo
    Vellone for speeding.

[2]

The appeal raises two issues: (1) did Mr. Vellone comply with the notice
    requirements of s. 109 of the
Courts of Justice Act
, R.S.O. 1990, c.C-43
    (
CJA
), when he advanced his s. 11(b)
Charter
argument before
    the justice of the peace; and (2) was there a violation of Mr. Vellones s.
    11(b)
Charter
right to be tried within a reasonable time?

[3]

At the appeal hearing, this court heard oral submissions on the first
    issue from the appellant, the respondent in person, the
amicus curiae
appointed by the court, and the intervener Attorney General for Ontario.  At
    the conclusion of these submissions, the court indicated that it would allow
    the appeal on the first issue without addressing the second issue.  The court
    would order a new trial on the speeding charge, but would record the
    undertaking of counsel for York Region to withdraw the charge because of the
    passage of time and the volume of proceedings involving Mr. Vellones
    attendance, thus ending the matter.

[4]

What follows are the reasons for this decision and disposition.

B.
FACTS

(1)
The parties and events

[5]

On June 7, 2007, Mr. Vellone was pulled over for speeding on Highway 400
    northbound.  The police officer measured Mr. Vellones speed at 120 kilometres
    per hour in a posted zone of 100 km/h.  Mr. Vellone was charged with speeding
    contrary to s. 128 of the
Highway Traffic Act
, R.S.O. 1990, c. H-8 (
HTA
).

[6]

On June 20, 2007, Mr. Vellone filed a request for a trial.  On September
    24, 2007, a notice of trial was sent to him by mail providing a trial date of
    April 2, 2008.

[7]

On April 2, 2008, Justice of the Peace Griffith decided to adjourn the
    trial because the temperature in the courtroom was 83.7 degrees.  Mr. Vellone
    did not request this adjournment.  He was asked if he had any difficulty with
    the trial being adjourned because of the temperature.  He indicated that he
    wanted to get his trial over and done with, but would do whatever the court
    wanted.  Crown counsel suggested a return date of August 25, 2008 at 1:30 p.m.
    Mr. Vellone asked if the trial could take place in the morning or at night
    court and was told that these were not possible.  The trial was set for August
    25, 2008.

(2)
The trial

[8]

On August 25, 2008, Mr. Vellone appeared before Justice of the Peace A.
    Malik. Mr. Vellone submitted that the matter should be dismissed for delay.
    Crown counsel disagreed and the trial judge made an immediate ruling.  The
    entire exchange on this issue was as follows:

THE COURT:            Do you want to get some legal
     legal advice or do you want to proceed today?

MR. VELLONE:       If I may, I  under the
Charter
    of Rights
, I  I was under the belief that I  this thing took too long to
    come to trial and I was asking the Courts to be dismissed.

THE COURT:            Sir, did you talk to the
    Prosecutor?

MR. AGOSTINHO:  Your worship, Id indicate first
    and foremost that to do a motion of that nature, it is not proper before you.

THE COURT:            Yes.

MR. AGOSTINHO:  Regulation 200 of the
Courts of
    Justice Act
clearly state that if youre going to make any type of a motion
    such as that, that it must be made it must be served on the Attorney General of
    Ontario, the Attorney General of Canada and the Prosecutors Office fifteen
    days prior to the commencement of trial.  And in this particular matter where
    an adjournment had been made previously before theres a case of
Regina v.
    Franklin
that also indicates and clearly states that transcripts have to be
    submitted to the Court to indicate as to why it was adjourned the last time.
    As a result I respectfully submit that a
viva voce
application such as
    Mr. Vellone is making is not acceptable and it is not proper before you at this
    time.

THE COURT:            Yes  yes sir, your verbal
    motion for this
Charter
right is not acceptable because you should have
    done it fifteen days before in writing to the Ministry of the Attorney General
    with a copy to the Prosecutor and that motion is not properly before me, before
    this Court therefore I cannot accept your submission.

[9]

The trial continued.  The police officer who issued the ticket testified
    and was cross-examined by Mr. Vellone.  Mr. Vellone testified.  The trial judge
    convicted Mr. Vellone of speeding and imposed the statutory fine of $90 plus $5
    for costs.

[10]

Mr. Vellone appealed the conviction.

(2)
The appeal

[11]

On appeal to the provincial court, the Crown conceded that the trial
    Crown and trial judge were wrong to rely on Regulation 200 of the
CJA
,
    R.R.O. 1990, Reg. 200.

[12]

Nevertheless, the Crown contended that there was a notice problem with
    Mr. Vellones position before the trial judge. The Crown argued that Mr.
    Vellone had failed to comply with s. 109 of the
CJA
, which provides:

109(1) Notice of a constitutional question shall be
    served on             the Attorney General of Canada and the Attorney    General
    of Ontario in the following circumstances:

. . .

2.         A remedy is claimed under s. 24(1) of
    the
Canadian    Charter of Rights and Freedoms
in relation to an act or       omission
    of the Government of Canada or the            Government of Ontario.

(2)       If a party fails to give notice in
    accordance with this    section... the remedy shall not be granted....

[13]

The appeal judge rejected the Crowns notice argument.  The core of his
    reasoning is in these passages:

The Provincial Offences Act
, s. 161.1 and
    following provides for agreements between municipalities and the Attorney
    General to be put in place to allow the municipality the function of
    prosecuting offences, in this case, the offence of speeding.

Pursuant to these agreements the municipalities are
    required to provide not only the prosecutors but the court administrators and
    the court facilities.  The only obligation the Attorney General has is
    that it is his responsibility to appoint Justices of the Peace to hear such
    trials.  Beyond that, the prosecutions of these matters essentially would
    be a municipal concern.  The Attorney General of course does maintain an
    overriding right to intervene and supervise the administration of the
    agreements.  Once the municipality has taken on the prosecution of the
    matters, the Attorney General is no longer a party to the prosecution.

The Provincial Offences Act
goes so far as
    to specifically note in s. 169 that a municipality acting under such agreement
    does not act as an agent for the Attorney General of Ontario.

Thus, by agreement, the Attorney General has
    delegated the prosecution of these matters to the municipality, and they are no
    longer prosecuted by the Attorney General.

. . .

In Mr. Vellones matter the remedy being sought is
    not as a result of an act or admission of either the Government of Canada or
    Government of Ontario.  Rather, the remedy is being sought as against the
    Region of York for not dealing with Mr. Vellones matter and bringing it to
    trial within a reasonable period of time.  As a result of the agreement
    that is in place under the provisions of the
Provincial Offences Act
, it
    is the municipality that is required to provide court resources and not the
    Government of Ontario.  Thus, if there has been a violation of s. 11 (b)
    in this matter it is as a result of the conduct of the municipality and not
    that of the Government of Ontario.  As such, it is clear that s. 109 of
    the
Courts of Justice Act
has no application to this proceeding.

Having reached this conclusion then, Mr. Vellone
    did not have to give notice pursuant to s. 109 of the
Courts of Justice Act
and thus should have been allowed to raise the argument in the course of
    trial.  The trial Justice of the Peace was in error in not allowing the
    motion to be dealt with in the absence of compliance with s. 109.

[14]

The appeal judge then went on to consider the
Charter
s. 11(b)
    issue on the merits.  He concluded that Mr. Vellones right to be tried within
    a reasonable time had been violated.  The appeal judge therefore allowed the
    appeal and stayed the speeding charge.

[15]

York Region sought leave to appeal, which was granted by order of
    Gillese J.A. dated April 21, 2009.  The Attorney General for Ontario intervened
    in support of York Regions position.  By order of the Chief Justice of Ontario
    dated November 17, 2010, Darrel Hotz was appointed as
amicus curiae
to
    oppose the appeal.  By order of the Deputy Registrar of the Court of Appeal
    dated May 3, 2011, and with the consent of the appellant and the intervener,
    Jordan Glick replaced Darrel Hotz as
amicus curiae
.  In both his factum
    and oral submissions, Mr. Glick performed his role as
amicus curiae
admirably.

C.
ISSUES

[16]

The issues are, as stated by Gillese J.A. in her order granting leave to
    appeal:

(1)

Is notice required pursuant
    to s. 109 of the
Courts of Justice Act
, or otherwise, where an accused
    seeks a remedy for an alleged
Charter
violation, where the act of
    omission complained of is that of a municipality; and

(2)

How is s. 11(b) of the
Charter
to be interpreted in the context of a Part I prosecution under the
Provincial
    Offences Act
?  In particular, what are the guidelines for intake delay and
    institutional delay; does the presumption of prejudice apply to such a
    proceeding; and how is delay caused by an inability to proceed due to
    unexpected courtroom conditions to be treated?

D.
ANALYSIS

(1)
The notice issue

[17]

The starting point on this issue is recognition that by virtue of s.
    95(3) of the
CJA
, the s. 109 requirement that parties give prior notice of
    constitutional questions and remedies applies to proceedings under the
Provincial
    Offences Act
, R.S.O. 1990, c. P-33, (
POA
). The speeding infraction
    in this proceeding is a
POA
offence.  Accordingly, there would appear to
    be a
prima facie
obligation to serve notice of the s. 11(b)
Charter
application on at least the Attorney General of Ontario.

[18]

The appeal judge rejected this obligation because, in his view, Mr.
    Vellones application implicated acts or omissions of only York Region and,
    therefore, did not require notice to the Attorney General of Ontario pursuant
    to s. 109 of the
CJA
.

[19]

With respect, I do not agree with this interpretation.  It misconceives
    the constitutional relationship between provincial and municipal governments,
    misunderstands the contractual relationship between the Government of Ontario
    and York Region in the domain of the prosecution of
POA
offences, and ignores
    the actual interests of the Government of Ontario in the issue of alleged delay
    in this case.  I reach this conclusion for several separate, but overlapping,
    reasons.

[20]

First, the relationship between s. 109 and the
Charter
supports
    an interpretation of s. 109 requiring notice in this case.  The wording of s.
    109 of the
CJA
parallels the wording of s. 32(1) of the
Charter
.
    Section 109 of the
CJA
refers to the Government of Canada and the
    Government of Ontario.  Section 32(1) of the
Charter
provides:

32(1)  This Charter applies

(a)       to
    the Parliament and government of Canada in respect of all matters within the
    authority of Parliament...; and

(b)       to
    the legislature and government of each province in respect of all matters
    within the authority of the legislature of each province.

[21]

The Supreme Court of Canada has consistently held that municipal levels
    of government come within the meaning of government in s. 32(1) of the
Charter
:
    see e.g.
Ramsden v. Peterborough (City)
, [1993] 2 S.C.R. 1084;
Montréal
    (City) v. 2952-1366 Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141; and
Greater
    Vancouver Transportation Authority v. Canadian Federation of Students  British
    Columbia Component
, 2009 SCC 31, [2009] 2 S.C.R. 295 at paras. 18-19.

[22]

Against this backdrop of statutory wording and case law, the term
    Government of Ontario in s. 109 of the
CJA
should be construed to parallel
    s. 32(1)(b) of the
Charter
.  It would not make sense to say that
Charter
s. 32(1) includes municipal action as action of the Government of Ontario but
    s. 109 of the
CJA
does not.

[23]

Second, interpreting s. 109 to require that
POA
Part I

defendants
    notify the Attorney General of Ontario before seeking
Charter
remedies
    serves the purposes of s. 109.  I accept the intervener Attorney General of
    Ontarios argument that there is a nexus between Mr. Vellones speeding ticket
    and the interests of the Government of Ontario.  Mr. Vellone was prosecuted for
    violating a provincial statute, the
HTA
, pursuant to procedures set out
    in another provincial statute, the
POA
.  The
POA
gives the
    Government of Ontario presumptive authority to prosecute contraventions of provincial
    statutes like the
HTA
under Part I of the
POA
.  In some parts of
    Ontario, such as York Region, the Government of Ontario has delegated this
    prosecutorial function to a municipality by a Memorandum of Understanding
    pursuant to Part X of the
POA
.

[24]

In the Memorandum of Understanding relevant in this case, the Government
    of Ontario, with the consent of York Region, sets standards that apply to POA
    Part I prosecutions.  The Government of Ontario maintains overall provincial
    oversight of the prosecutorial function.  Section 162(3) of the
POA
requires municipal partners to maintain the performance standards set by the
    province.  The Memorandum of Understanding requires municipal partners to
    maintain the same level of service delivery that was provided previously by the
    Province and to adhere to rigorous prosecutorial standards.  The Government of
    Ontario retains the right at any time to take over a prosecution, pursuant to
    s. 168 of the
POA
.

[25]

Within this legislative and contractual matrix, the component of s. 109
    of the
CJA
requiring people in the position of Mr. Vellone to notify the
    Attorney General of Ontario of his s. 11(b)
Charter
challenge serves two
    important purposes.  The notice requirement enables the Government of Ontario
    to decide whether to exercise its right to take over a case under the
POA
.
    The notice requirement also furthers the Government of Ontarios important
    interest in monitoring the performance of municipalities under Memoranda of
    Understanding.

[26]

Third, s. 11(b) cases may raise concerns about systemic problems that implicate
    provincial responsibilities.  In this case, and indeed in most s. 11(b) cases,
    the decisions of court administrators (e.g. scheduling) and judges (e.g.
    adjournments) are often central to the claim and the analysis.  The issues
    raised in a particular case might point to systemic issues of personnel and
    resources.  Notice to the Attorney General of Ontario of a s. 11(b) challenge
    or, perhaps, an avalanche of such notices  provides the Government of Ontario
    with important data about key components of the provincial justice system.

[27]

For these reasons, I conclude that the appeal judge erred by holding that
    Mr. Vellone did not need to provide notice of his
Charter
s. 11(b) claim
    to the Attorney General of Ontario pursuant to s. 109 of the
CJA
.

[28]

I briefly address one final matter.  Both York Region and the Attorney
    General of Ontario submitted that Mr. Vellone was required to provide written
    notice of his s. 11(b) claim to the York Region prosecutor.  The basis for this
    submission is either an expansive interpretation of s. 109 of the
CJA
(advanced
    by York Region) or a common law requirement that an accused provide the
    prosecutor with advance notice of a
Charter
claim (advanced by the
    Attorney General of Ontario).

[29]

In light of the resolution of the appeal on the issue of notice to the
    Attorney General of Ontario, it is not necessary, strictly speaking, to
    consider the different issue of notice to the municipal prosecutor.  I would
    decline to do so.  However, I do observe that in its recent study
Modernizing
    the Provincial Offences Act: A New Framework and Other Reforms
(Interim
    Report) (Toronto: Law Commission of Ontario, 2011), the Law Commission of
    Ontario recommended, at p. 165, that:

38.       The Attorney General table amendments to
    section      109(1) of the
Courts of Justice Act
that would:

a.         Require
    service of a Notice of Constitutional Question on prosecutors in all
POA
matters;

b.         Require
    that a Notice of Constitutional Question must be served on a municipal
    prosecutor when a party seeks relief under section 24(1) of the
Charter
relating to an act or omission of a municipality;

(2)
The delay issue

[30]

At the appeal hearing, the court announced that it would not address
    this issue in light of its decision on the first issue.

E.
DISPOSITION

[31]

The appeal is allowed and a new trial is ordered.  Counsel for the
    appellant municipality has undertaken to withdraw the charge.

RELEASED: December 14, 2011 (J.C.M.)

J.C. MacPherson J.A.

I agree Janet Simmons J.A.

I agree R.A. Blair J.A.


CITATION:
R. v. Wong, 2011 ONCA 815

DATE: 20111221

DOCKET: C53488 & C52533

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Wong

Appellant

AND BETWEEN

Her
          Majesty the Queen

Respondent

and

Paulo
          Stein

Appellant

Paul J.I. Alexander, for the appellant, Thomas Wong

Douglas Gosbee, for the appellant, Paulo Stein

Alison Wheeler, for the respondent

Heard and released orally:
December 15, 2011

On appeal from the convictions entered
          on May 25, 2010 by Justice Simon C. Armstrong of the Ontario Court of
          Justice.

ENDORSEMENT

[1]

The appellants appeal their convictions of forcible confinement arising
    out of a home invasion.  The only issue at trial was identity.  They contest
    the trial judges conclusion that they were the perpetrators.  They submit that
    their guilt is not the only reasonable inference from the fact that Wongs DNA
    and Steins fingerprint were found at the scene.  Wongs DNA was found on the
    inside of a construction mask matching the description of the one worn by the
    intruder who was Chinese.  Steins fingerprint was found on the inside of a
    duct tape roll used to bind the victims.

[2]

In advancing their argument, the appellants rely on this courts
    decisions in
R. v. Mars
(2006), 205 C.C.C. (3d) 376 and
R. v. D.D.T.
,
    2009 ONCA 918.   In
Mars
, this court stressed that each case must be
    assessed on its own particular facts.  At para. 5, Doherty J.A. said of
    applying the reasonableness standard to fingerprint cases:

As reasonableness is ultimately a fact-based
    determination, prior decisions, even those made in similar cases, cannot have
    binding authority.

[3]

The trial judge in this case did not base his conclusion on the DNA and
    fingerprint evidence alone.  His inference linking the DNA and fingerprint to
    the crime was based on other evidence.  He stated he was satisfied that the
    other evidence in the case establishes that Wongs DNA came in contact with the
    mask and Stein touched the duct tape roll at the relevant time and place so as
    to connect them with the crime.

[4]

The other evidence, which he reviewed carefully, included the fact that
    the descriptions of the perpetrators generally conformed to the appearance of
    the appellants; the mask containing Wongs DNA matched the description of the
    mask worn by the Chinese perpetrator; and considered the pristine condition of
    the mask and where it was found in relation to the position of the back door
    and yard gate.   He also considered where the duct tape was found and where the
    fingerprint was located in the context of all the evidence about the duct tape
    and strands of duct tape.

[5]

The facts of this case are quite different to those in
Mars
.
    There is a great difference between a construction mask and the inside
    cardboard of a roll of duct on one hand and a pizza box on the other.  Several
    people sharing a pizza may leave their prints on the pizza box, before two of
    them use it in a home invasion.  The circumstances in which Wongs DNA could
    come to be innocently deposited on the inside of the pristine construction mask
    or Steins fingerprint could be impressed on the inside of a roll of duct tape
    used in the crime, in our view, are in the realm of speculation rather than
    reasonable inference.

[6]

In addition, it is significant in
Mars
that the force of the
    fingerprint evidence was diminished by exculpatory identification evidence.
    Here, we do not accept that the descriptions of the perpetrators were
    exculpatory.  In our view, the trial judges finding of fact that the victims
    descriptions of the perpetrators generally conformed with the appearance of the
    appellants was supported by the evidence
.

[7]

We are satisfied that a reasonable trier of fact could conclude on the
    totality of the evidence that the appellants were guilty of the forcible
    confinement of the victims during the home invasion.

[8]

Both appeals are dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J.
    Epstein J.A.


CITATION:
R. v. Yeck, 2011 ONCA 768

DATE: 20111206

DOCKET: C53539

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Yeck

Applicant/Appellant

Robert C. Sheppard, for the applicant/appellant

Nadia Thomas, for the respondent

Heard and released orally:
November 24, 2011

On appeal from the sentence imposed
          by Justice W. Rabley of the Ontario Court of Justice on January 18, 2011.

ENDORSEMENT

[1]

The appellant appeals his sentence of 30 months imposed after being
    convicted of assault.

[2]

The trial judge commenced his reasons for sentence by identifying the particular
    challenges involved in this sentencing decision.  We quote from page 18 of the
    transcript:

It was a tough situation for a judge to be sending
    a 23 year old young man to the penitentiary.  I have no choice but to do that
    given the circumstances.  I say that because the circumstances of this offence
    are probably the most egregious that I have ever heard throughout my legal career
    for common assault.

[3]

As noted by the trial judge, there were serious aggravating factors.
    The assault was horrendous.  It involved pushing the victim (a much smaller
    man), choking him to the point that he lost consciousness and throwing him
    around the room like a rag doll.  The appellant left his victim unconscious and
    foaming at the mouth.  Furthermore, the appellant has a record of 33 previous
    convictions, many of which are for the crimes involving assault.

[4]

Counsel for the appellant submits that the trial judge erred in
    principle in two ways.

[5]

First, he submits that the trial judge failed appropriately to factor
    the jump principle into his analysis of a fit sentence.

[6]

We disagree.  While the sentence is more severe than sentences
    previously imposed upon the appellant, the trial judge quite properly did not
    allow it to diminish the seriousness of the offence or the concern for the
    protection of the public.

[7]

With respect to rehabilitation, the trial judge did not, as we see it,
    write off the appellant as a candidate for rehabilitation.  Several times in
    his reasons he recognized the appellants youth and in his concluding remarks, specifically
    encouraged him to address his difficulties.

[8]

Finally, with respect to the issue of rehabilitation raised by the appellant,
    we note that he has numerous convictions for previous breaches of probation.
    Therefore the submission that a shorter sentence be imposed with a significant
    probationary period must be rejected.

[9]

In conclusion, this court must yield to the trial judges determination
    as to the appropriate sentence absent an error in principle or a manifestly
    unreasonable decision.  We see neither.

[10]

The appeal is therefore dismissed.

K. Feldman J.A.

Robert Sharpe J.A.

G.J. Epstein J.A.


CITATION:
Rahawanji v. Gwendolyn Shop (1973) Ltd., 2011
          ONCA 771

DATE: 20111207

DOCKET: C54204

COURT OF APPEAL FOR ONTARIO

Blair, Epstein JJ.A. and Pardu J. (
Ad hoc
)

BETWEEN

Souad Mohd Ali Rahawanji and Samer Rahawanji

Applicants (Appellants in appeal)

and

The Gwendolyn Shop (1973) Ltd. and 1659295 Ontario Ltd.

Respondents (Respondents in Appeal)

Alexandra Lev-Farrell, for the applicants (appellant in
          appeal)

R. Barrett, for the respondents

Heard:
December 5, 2011

On appeal from the decision of Justice John C. Murray of the
          Superior Court of Justice dated August 12, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellants seek to set aside the order of Murray J. dismissing their
    application for relief from forfeiture in relation to their tenancies of two
    commercial leases in a small shopping plaza in downtown Oakville.  Ms.
    Lev-Farrell argues strongly on their behalf that the application judge erred in
    failing to take into account that relief from forfeiture is generally granted
    where all that is involved is the question of monetary arrears and in failing
    to address him mind to whether the default could be cured on terms in order to
    avoid the loss of their businesses.

[2]

We do not agree.  Relief from forfeiture is a discretionary remedy and
    is not granted as a matter of course.  As Doherty J.A. noted in
Ontario
    (Attorney General) v. 8477 Darlington Crescent
, 2011 ONCA 363, at para. 93,
    both in civil and criminal cases:

Relief from forfeiture is very much the exception
    and will be granted only where the party seeking that remedy clearly makes the
    case that forfeiture would be an inequitable and unjust order in all the
    circumstances.

[3]

This is particularly so with respect to a commercial lease.  Here, we
    are satisfied that the application judge considered the relevant circumstances
    and he was particularly entitled to take into account the fact that the
    appellants had not proceeded to the hearing of the application in a timely
    fashion and that they had not paid any rent in the meantime in spite of the
    landlords offer to accept payment on a without prejudice basis.  There were
    arrears of seven months rent at the time of the hearing.  In addition, there
    is no evidence of any real prejudice to the appellants if relief from
    forfeiture is not granted in the sense that that, in itself, would result in
    the demise of their businesses.

[4]

Accordingly, we see no error in the exercise of the application judges
    discretion and the appeal is dismissed.

[5]

The appellants have requested time to relocate.  We are advised that
    rent has now been paid to the end of December as one of the terms of the
    appeal.  Provided the rent for the two units for the month of January is paid
    to the landlord by December 17, 2011, the appellants shall be entitled to
    remain in the premises under the terms of the leases until January 31, 2012.
    Failing payment of the January rent on those terms, the appellants must vacate
    by December 31, 2011.

[6]

Costs of the appeal to the respondent, fixed in the amount of $5000 all
    inclusive.  The costs are to be paid by December 17, 2011 as well, as a term of
    the appellants continued occupation until January 31, 2012.


CITATION:
Rashid v. Intact
          Insurance Company, 2011 ONCA 806

DATE:  20111219

DOCKET: C53684

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin J.A. and Pardu J. (
ad hoc
)

BETWEEN

Shnaw Rashid

Appellant (Plaintiff)

and

Intact Insurance Company

Respondent (Defendant)

Maurice Benzaquen, for the appellant (plaintiff)

Michael Burgar respondent (defendant)

Heard and released orally:
December 8, 2011

On appeal from the order of Justice Whitten of the Superior
          Court of Justice dated March 14, 2011.

ENDORSEMENT

[1]

We agree with the motion judge that the respondent does not have a duty
    to defend.

[2]

Whether or not an insurer will have a duty to provide an insured with a
    defence to a particular claim is governed by the causes of action pleaded in
    the statement of claim.

[3]

The landlords statement of claim pleads three causes of action against
    the appellant:

a)

arson,
    related to a fire that occurred in the middle of the night on August 31 and
    September 1, 2009;

b)

breach
    of contract for failing to comply with the terms of the lease and/or the
    general security agreement; and

c)

negligence,
    as an alternative to the breach of contract, in failing to allow the landlord
    to remove chattels from the premises and failing to name the landlord as an
    insured on the insurance policy.

[4]

The insurance policy provided commercial general liability coverage in a
    standard form.  The policy contains an intentional act exclusion and does not
    apply to the landlords claim based on arson.

[5]

The insurance policy also contains an exclusion related to contractual
    liability.  Thus, it does not apply to the claims for breach of contract.

[6]

The claims for negligence are pleaded as an alternative to the claims
    for breach of contract.  In
Scalera
, Justice Iacobucci said:

Therefore, when ascertaining the scope of the duty
    to defend, a court must look beyond the choice of labels and examine the
    substance the allegations contained in the pleadings.  This does not involve
    deciding whether the claims have any merit; all the court must do is decide based
    on the pleadings the true nature of the claims.

[7]

In our view, the claims for negligence in this case are simply labels.
    The substance of the allegations are breaches of contract.  The only duties
    underlying the negligence claims are the duties found in the contracts
    pleaded.  Thus, we agree with the application judge that the insurance policy
    does not cover the claims of negligence.

[8]

In the result, the appeal is dismissed.

[9]

Costs to the respondent are fixed in the amount of $6,915.00, inclusive
    of disbursements and all applicable taxes, payable in 30 days.

D. OConnor A.C.J.O.

John I. Laskin J.A.

G. Pardu J. (
ad hoc
)