CITATION:
R. v. Parker, 2011 ONCA 819

DATE: 201111222

DOCKET: C51187

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent (Respondent)

and

Terrance Parker

Applicant (Appellant)

Terrance Parker, in person

Jonathan Dawe, amicus curiae

James Gorham, for the respondent

Heard: November 7, 2011

On appeal from the judgment of Justice Michael Tulloch of the
          Superior Court of Justice dated September 30, 2009.

By The Court:

[1]

This appeal involves the dismissal of an application for return of seized
    marihuana pursuant to s. 24 of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. The appellants s. 24
CDSA
application was originally
    dismissed on December 7, 2007 by Clements J. of the Ontario Court of Justice. The
    appellant appealed Clements J.s decision to the Superior Court of Justice. Tulloch
    J. ruled that he had jurisdiction under s. 40 of the
Courts of Justice Act
to
    hear the appeal.  He subsequently dismissed the appeal on September 30, 2009. The
    appellant now appeals from the decision of Tulloch J.

[2]

The appellant argues that Clements J. erred in law for two reasons:

1.         The
    offences of production and possession of marihuana set out in ss. 7 and 4 of
    the
CDSA
were struck down in
R. v. Krieger
, 2000 ABQB 1012 and
R.
    v. Parker
(2000), 49 O.R. (3d) 481 [
Parker
(2000)], respectively.
    Parliament has not re-enacted these prohibitions.

2.         The
    decisions in
Sfetkopoulos v. Canada (A.G.)
, 2008 FC 33,
Sfetkopoulos
    v. Canada (A.G.)
,

2008 FCA 328

and
R. v. Beren
, 2009
    BCSC 429, invalidated the marihuana prohibitions retroactive to at least
    December 3, 2003.

[3]

The court also heard submissions as to whether the appellant had a right
    of appeal from the decision of Clements J. under s. 40 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43
.
For the following reasons,
    we are satisfied that the appellant did have a right of appeal, although not
    under the
Courts of Justice Act
.  We are also satisfied that Clements J.
    correctly determined that the appellant was not lawfully entitled to possess
    marihuana and that Tulloch J. correctly dismissed the appeal.

FACTS

Background

[4]

This appeal and the companion appeals that were argued at the same time
R.
    v. McCrady et al.
and
R. v. Maloney
, arise out of the continuing
    quest by this appellant and others to access marihuana for medicinal purposes.
    In
Parker
(2000)
,
at para. 3,

the court briefly described
    this appellants plight in 2000:

The respondent Terrance Parker has suffered from a
    very severe form of epilepsy since he was a young child. For close to 40 years
    he has experienced frequent serious and potentially life-threatening seizures.
    He has attempted to control these seizures through surgery and conventional
    medication. The surgery was a failure and the conventional medication only
    moderately successful. He has found that by smoking marijuana he can
    substantially reduce the incidence of seizures. Since he has no legal source of
    marijuana, he has been growing it himself. On two occasions, the police
    searched his home and seized the marijuana. He was first charged with
    cultivating marijuana under the
Narcotic Control Act
. By the time of the
    second investigation, that Act had been repealed and he was charged with
    possession of marijuana under the new
Controlled Drugs and Substances Act.

[5]

At his trial in 1997, Parker defended the charges brought against him by
    arguing that the prohibition against marihuana in the former
Narcotic
    Control Act
, R.S.C. 1985, c. N-1 and the
CDSA
, infringed his rights
    to fundamental justice under s. 7 of the
Canadian Charter of Rights and
    Freedoms
. Both the trial court in reasons reported at (1997), 12 C.R. (5th)
    251, 48 C.R.R. (2d) 352, and this court, concluded that Parker requires marihuana
    to control his epilepsy and that the prohibition against marihuana infringed
    his rights under s. 7 of the
Charter
. At the time, there was no lawful
    means by which Parker could obtain and possess marihuana except pursuant to a special
    exemption under s. 56 of the
CDSA.

[6]

In
Parker
(2000), the court explained why the availability of
    such an exemption at the sole discretion of the Minister of Health was not an
    adequate response to Mr. Parkers circumstances. Pursuant to s. 52 of the
Constitution Act, 1982
, this court declared the prohibition against
    possession of marihuana in s. 4 of the
CDSA
to be invalid. The court
    suspended the declaration of invalidity for 12 months to allow time for
    Parliament to craft a legislative response. The court also granted Mr. Parker a
    personal remedy under s. 24 of the
Charter
temporarily exempting him
    from the possession prohibition for the period of suspended invalidity so that
    he could legally possess marihuana for his medical needs. For reasons set out
    in
Parker
(2000), this court did not deal with the production provision
    of the
CDSA.

[7]

In response to
Parker
(2000), the federal government enacted the
Medical
    Marihuana Access Regulations
, S.O.R./2001-227, which came into force on
    July 30, 2001, one day before the suspension of invalidity expired. The
MMAR
created a process for gaining authorization to possess marihuana (ATP) for
    a medical purpose and a process for ATP holders to obtain a license to produce
    for personal use or to permit a designated person to grow marihuana on their behalf.

[8]

At the same time that the
Parker
(2000) case was working its way
    through the courts of this province, a similar case was being heard in Alberta.
    In
Krieger
, the accused challenged both the production prohibition under
    the
CDSA
and the prohibition against possession for the purpose of
    trafficking. In December 2000, Acton J. struck down the production prohibition
    in s. 7 of the
CDSA
as it applied to marihuana.  He did not strike down
    the possession for the purpose prohibition.  Acton J. stayed his declaration of
    invalidity for one year, just as this court had in
Parker
(2000). In
    November 2001, the Alberta Court of Appeal extended the stay until further
    order of that court. In March 2003, the Alberta Court of Appeal dismissed the
    Crown appeal from the order of Acton J., in reasons reported at 2003 ABCA 85. So
    far as we are aware, that court has never made a further order respecting the
    stay originally imposed by Acton J.

[9]

To return to Mr. Parkers interaction with the government and medicinal
    use of marihuana. The personal exemption granted to Mr. Parker by this court from
    the possession of marihuana offence expired July 31, 2001. On August 8, 2001, he
    requested a temporary exemption from Health Canada to allow him time to comply
    with the
MMAR
by applying for an ATP. Health Canada initially granted
    the appellant a six-month temporary exemption on September 14, 2001. When the
    appellants first exemption expired Health Canada granted him a series of
    subsequent exemptions, the last of which expired May 31, 2004.

[10]

On March 12, 2002, Mr. Parker brought an application to the Superior
    Court of Justice seeking an order granting him an ongoing personal exemption
    from the prohibition against possession of marihuana. At the core of this new
    litigation was the allegation that the
MMAR
fail to provide individuals
    who have a serious medical need to use marijuana with a legal source and safe
    supply of their medicine. Lederman J. heard the appellants application
    together with applications in the matter of
Hitzig v. Canada
. On January
    9, 2003, in reasons reported at 171 C.C.C. (3d) 18, Lederman J. declared that
    the
MMAR
were constitutionally invalid and of no force and effect. He
    declined to attempt to fix the constitutional problem by reading in to the
MMAR
a legal means of accessing marihuana for those who required marihuana for
    medical purposes. Justice Lederman suspended his declaration of invalidity for
    6 months. He did not declare the marihuana prohibition in the
CDSA
to be
    unconstitutional.

[11]

On appeal, this court determined that the
MMAR
were
    constitutionally defective insofar as they did not provide for reasonable
    access to a legal source of supply of marihuana for medical purposes. This
    court brought the
MMAR
into compliance with the
Charter
by
    striking down s. 41(b) (which prohibited a licensed producer from growing for
    more than one authorized-to-possess holder) and s. 54 (which prohibited more
    than three licensed producers from producing in common). The
MMAR
were then
    declared constitutional and s. 4 of the
CDSA
was declared to be
    constitutional as well. As this court said in one of the companion cases to
Hitzig
,
R. v. J.P.
(2003), 67 O.R. (3d) 321, at para. 33:

There was no need to amend or re-enact s. 4 of the
CDSA
to address the constitutional problem in
Parker
. That problem arose from
    the absence of a constitutionally adequate medical exemption. As our order in
Hitzig
demonstrates, the prohibition against possession of marihuana in s. 4 is in
    force when there is a constitutionally acceptable medical exemption in force.

[12]

In response to
Hitzig
,

the federal government passed the
Regulations
    Amending the Marihuana Medical Access Regulations
,

SOR/2003-387. A
    new provision was added to Part IV of the
MMAR
which enabled the
    Governments supply of dried marihuana to be shipped directly to ATP holders. Sections
    41(b) and 54 were re-enacted in their original form as sections 41(b.1) and
    54.1. As is apparent, the government believed that the way to remedy the
    constitutional deficiency identified by this court in
Hitzig
was not to
    make it easier for individuals to grow marihuana, but rather to make available
    a government supply of marihuana to persons found to be eligible under the
MMAR
programme. Whether or not this was an adequate response has been a source of
    litigation since 2003.

[13]

It is apparent from his submissions in this court, that the appellant
    views the
MMAR
programme as inadequate and views medical practitioners
    with suspicion. Medical practitioners have a crucial role under the
MMAR
.
    Following
Hitzig
,

the appellant made minimal efforts to comply with
    the
MMAR
. The appellant admitted that he has not been examined by a
    medical specialist since 1997. The appellant was aware that his exemption from
    the possession prohibition would expire in May 2004. In February 2004 he called
    Health Canada and said that he refused to seek a doctor to sign his ATP
    application. The appellant expressed a fear of medical mistreatment and
    objected to the
MMAR
requirement that he provide medical authorization:
    Well I am upset...As you see, Ive been kicked out of school, college, jobs,
    got these seizures, and now, Ive got to go back to these  these monsters for
    doctors and get permission that they wont provide me. I mean Im sorry, but
    this is disgusting.

The seizure of Marihuana

[14]

In April, 2006 the appellant was notified that a package of marihuana
    addressed to him had been seized by Canada Post and turned over to Peel
    Regional Police. By notice of application dated June 2, 2006 he applied to the
    Ontario Court of Justice in Brampton for an order under s. 24 of the
CDSA
directing
    the return of this seized marihuana. It appears that the police did not lay any
    charges against the appellant as a result of the marihuana seizure.

The decision of Clements J.  Ontario Court of Justice

[15]

The sole issue before Clements J. was whether the appellant was lawfully
    entitled to possess the marihuana seized by Canada Post. The appellant argued
    that he was lawfully entitled to possess because the constitutional exemption
    granted in
Parker
(2000) was still valid, thus compliance with the
MMAR
was not required. In addition, the combined effect of
Parker
(2000),
Hitzig
, and
Krieger
was that the prohibition against possession
    of marihuana had been repealed.

[16]

Clements J. ruled that the appellant was not lawfully entitled to
    possess marihuana. The
MMAR
and s. 4 of the
CDSA
were
    constitutionally valid. The appellant was not exempt from the application of
    the
MMAR
or compliance with the
CDSA
. Thus, in the absence of an
    ATP the appellant was not lawfully entitled to possess. Clements J. found the
    record insufficient to determine whether physician co-operation with the
MMAR
had dropped to the point that the scheme was ineffective. The s. 24
CDSA
application for return of a controlled substance was dismissed.

The decision of Tulloch J.  Superior Court of Justice

[17]

The appellant served a notice of application on March 20, 2008,
    returnable March 28, 2008. The application sought to overturn the order made by
    Clements J. Tulloch J. ruled that the Superior Court had jurisdiction to hear
    the matter, pursuant to the summary conviction appeal provisions in the
Courts
    of Justice Act
, s. 40.  Tulloch J. ruled that Clements J. correctly held
    that the case law relied on by the appellant did not demonstrate that he was
    exempt from compliance with the
MMAR
. It was also not an error to refuse
    to consider the appellants claim of lack of physician co-operation. The appeal
    was dismissed on September 30, 2009.

THE ISSUES ON APPEAL

[18]

There are two questions before the court on this appeal. The first
    concerns the proper route of appeal from an order made under s. 24
CDSA
.
     In our view, no appeal lies under the
Courts of Justice Act
. The
    appellant did, however, have a right to review the decision of Clements J. by
    way of
certiorari.
The second question considers whether or not the
    appellant is legally entitled to possess marihuana. The short answer to the
    second question is no. Clements J. correctly determined that the appellant was
    not lawfully entitled to possess marihuana and Tulloch J. correctly
    dismissed the appeal.

The Right of Appeal/Review of a s. 24 Order

[19]

The court received helpful submissions from both Crown counsel and Mr. Dawe
    who was appointed as
amicus
counsel to argue the jurisdiction question. Tulloch
    J. held that the Superior Court had jurisdiction to hear the matter, pursuant
    to the summary conviction appeal provisions in the
Courts of Justice Act
,
    s. 40.
Amicus
counsel and Crown counsel agree that Tulloch J. erred in
    reaching this conclusion, but that the error has no effect on this courts
    jurisdiction to hear the appeal. We agree with counsel that the
Courts of
    Justice Act
had no application. While the interplay between federal and
    provincial jurisdictions in drug cases can be problematic, we are satisfied
    that the correct characterization of a s. 24 application is that it flows out
    of Parliaments criminal law power. Accordingly, provincial rights of appeal
    have no application: see
R. v. Malmo-Levine
(2003), 2003 SCC 74, [2003]
    3 S.C.R. 571;
Kourtessis v. Minister of National Revenue
, [1993] 2
    S.C.R. 53,
R. v. Meltzer
, [1989] 1 S.C.R. 1764 and
Knox Contracting
    Ltd. v. Canada
, [1990] 2 S.C.R. 338.

[20]

Amicus
 principal position is that an application under s. 24 of
    the
CDSA
can be appealed to the Superior Court of Justice under s. 830
    of the
Criminal Code.
Alternatively, he argues that
certiorari
is available to review the decision. The Crown argues that s. 24 of the
CDSA
may not be appealed under the summary conviction provisions in Part XXVII
    of the
Criminal Code,
and that the proper route of review is through an
    application for
certiorari.
If the route of review is under s. 830, a
    further appeal lies to this court, with leave, under s. 839 of the
Criminal
    Code.
If the route of review is through
certiorari
, the route to
    this court is by way of appeal as of right under s. 784(1) of the
Criminal
    Code
.

[21]

In one sense, determination of the appropriate outcome for review has no
    practical implication for the party seeking to review the s. 24 decision.
    Section 830 provides for an appeal from, among other things, a conviction,
    judgment, or other final order or determination of a summary conviction court
    on questions of law or jurisdiction. The same grounds for review would be
    available on an application for
certiorari.
On the other hand, we think
    that the right of review should be clarified so that litigants know how to
    proceed in the future.

[22]

Despite Mr. Dawes very persuasive submissions, we are satisfied that
    the right of review is through
certiorari.
While s. 830 appears to have
    a wide reach because of the broad definition of proceedings in s. 785, when that
    section and s. 830 are considered in context of the other provisions of Part
    XXVII, it is apparent that the s. 830 appeal is directed to orders made by a
    judge or justice acting as a summary conviction court. A judge or justice
    acting under s. 24 of the
CDSA
is not acting as a summary conviction
    court.  There is little, if any, disadvantage to a party seeking to review a s.
    24 order having to apply for
certiorari
rather than proceeding by way of
    appeal.  In this province, the reviewing court is the same, the Superior Court
    of Justice. The grounds of review are also the same and, one advantage to a
    party is that an appeal lies to this court as of right. Finally, while hardly
    conclusive of the jurisdiction issue, we note that similar orders under the
    former
Narcotic Control Act
were reviewed by way of
certiorari
,
    not by way of appeal: see
R. v. Largie
(1981), 63 C.C.C. (2d) 508 (Ont.
    C.A.) and
R. v. Gombosh Estate
(1982), 1 C.C.C. (3d) 323 (Ont. H.C.J.),
    [affirmed (1983), 3 C.C.C. (3d) 575, reversed [1986] 1 S.C.R. 415, without
    reference to the jurisdiction issue].

THE SUBSTANTIVE ARGUMENTS

1.         The prohibition against possession of marihuana
    has not been repealed

[23]

The appellant argues that the combined effect of
Parker
(2000)

and
Hitzig
is that all marihuana offences have been completely
    repealed. This argument is based on a misreading of the law. The critical
    passage of this courts decision in
Hitzig v. Canada
, 177 C.C.C. (3d)
    449

states, at para. 170:

In
R. v. Parker, supra,
this court declared
    the prohibition invalid as of July 31, 2001 if by that date the Government had
    not enacted a constitutionally sound medical exemption. Our decision in this
    case confirms that it did not do so. Hence the marihuana prohibition in s. 4
    has been of no force or effect since July 31, 2001. Since the July 8, 2003
    regulation did not address the eligibility deficiency, that alone could not
    have cured the problem. However, our order has the result of
    constitutionalizing the medical exemption created by the Government. As a result,
the marihuana prohibition in s. 4 is no longer inconsistent with the
    provisions of the Constitution.
Although Parliament may subsequently choose
    to change it,
that prohibition is now no longer invalid, but is of full
    force and effect
. Those who establish medical need are simply exempted from
    it. This consequence removes the cloud of uncertainty from the marihuana
    prohibition in s. 4 of the
CDSA
 a cloud which we were told in argument
    has created very considerable confusion for courts and law enforcement agencies
    alike... [Emphasis added.]

[24]

In
R. v. Turmel
(2003), 231 D.L.R. (4th) 190, released
    concurrently with
Hitzig
and
J.P.
,

this court held that
Parker
(2000) did not have the effect of deleting marihuana from Schedule II of the
CDSA
,
    at para. 6:

The declaration of invalidity made by this court in
Parker, supra
, does not delete marihuana from Schedule II of the
CDSA
.
    It simply declares that the reference to marihuana in Schedule II is of no
    force or effect for the purposes of the possession charge in s. 4 of the
CDSA
.
    The declaration does not extend to any other section of the
CDSA
. In
    particular, it does not diminish the effect of the listing of marihuana in
    Schedule II for the purposes of s. 5(2) of the
CDSA
.

[25]

Following
Hitzig
and
Turmel
(2003), this court has
    repeatedly confirmed that the marihuana offences in the
CDSA
remain in
    full force. See for example
R. v. Turmel
, 2007 ONCA 133, at para. 2;
R.
    v. Real Martin
(2010, unreported, Ont. C.A. Docket C50273), at paras. 6-8;
    and
R. v. Ethier
, 2011 ONCA 588, at paras. 3-4.

[26]

Clements J. properly rejected the appellants argument as a reason why
    he should be considered lawfully entitled to possess marihuana. Tulloch J. was
    correct to find that Clements J. made no error of law in this respect.

The order of Pitt J. does not assist the appellant

[27]

On March 15, 2002, Pitt J. of the Superior Court of Justice ordered that
    the constitutional exemption granted to the appellant following
Parker
(2000)

be extended until such time as the government has complied with the Courts
    ruling. The appellant argues that this order entitles him to lawfully possess marihuana.
    However, Chapnik J. set aside Pitt J.s order on April 19, 2002(see [2002] O.J.
    No. 1503). The appellant appealed Chapnik J.s decision and this court found
    that she made no error when she set aside the order of Pitt J (see [2003] O.J.
    No. 3874). Thus, the March 15, 2002 order of Pitt J. is of no assistance to the
    appellant.

Sfetkopoulos
and
Beren
do
    not assist the appellant

[28]

Sfetkopolous
was a civil application for declaratory relief in
    the Federal Court. Strayer J. found that the
MMAR
still did not
    adequately address the issue of lawful supply first canvassed in
Hitzig
.
    He declared s. 41(b.1) of the
MMAR
(which prohibited the holder of a
    production license from growing for more than one ATP-holder) to be invalid.

[29]

R. v. Beren
involved a prosecution for production and trafficking
    in marihuana. Koenigsberg J. of the British Columbia Supreme Court relied on
Sfetkopolous
and held that ss. 41(b.1) and 54.1 of the
MMAR
infringed s. 7 of the
Charter
.
    However, the defendants were found guilty as the individuals they grew for, and
    sold to, did not hold ATPs. As she said at para. 136:

In relation to the charges against Mr. Beren, the
    Crown, having proved beyond a reasonable doubt that Mr. Beren was producing and
    trafficking in marihuana for the purpose of supplying a compassion club, which
    in turn was selling the marihuana to most of its members who did not have ATPs,
    and thus were not licensed to possess,
which parts of the MMAR I have found
    to be valid
,
is guilty on both counts. [Emphasis added.]

[30]

The appellant argues that by analogy to
Hitzig
and
J.P.
,
Sfetkopolous
and
Beren
have the effect of invalidating all marihuana offences
    retroactively from December 3, 2003, when ss. 41(b.1) and 54.1 of the
MMAR
were
    enacted, to March 31, 2010 when section 41(b.1) was amended and s. 54.1 was
    repealed. This argument fails for two reasons.

[31]

First, no provision of the
CDSA
was found to be invalid in
Beren
or
Sfetkopolous
. Without a finding of invalidity the marihuana
    offences remain in force. It was the combination of the declaration of the
    invalidity of s. 4 of the
CDSA
in
Parker
(2000),

and the
    finding of constitutional invalidity of the
MMAR
in
Hitzig
,

that
    resulted in the period of invalidity of the possession offence between July 31,
    2001 and October 7, 2003. When the constitutional deficiencies in the
MMAR
were
    remedied by this court the declaration of invalidity in
Parker
(2000)

no longer had any effect. The fact that the government re-enacted ss. 41(b)
    and 54, when it revised the
MMAR
in response to
Hitzig
, did not
    retroactively resurrect the effect of the
Parker
(2000) decision
    striking down the prohibition.

[32]

The declaration of invalidity in
Parker
(2000)

does not
    survive indefinitely, waiting to be invoked whenever problems are identified
    with the constitutional validity of a provision of the
MMAR
.  A finding
    of invalidity would depend on a fresh finding of invalidity with respect to the
    marihuana offences in the
CDSA
.

This was not the conclusion in
    either
Beren
or
Sfetkopolous
. Rather,
Beren
upheld the
    production and trafficking offences as they relate to persons who do not have
    ATPs under the
MMAR
. The appellant is similarly without an ATP. Thus, at
    the time the appellant brought his application under s. 24, he was not lawfully
    entitled to possess marihuana. There is also no evidence put before this court
    that the appellant is entitled, at present, to lawfully possess marihuana.

2.         There is no evidence regarding physician
    participation under the
MMAR

[33]

The appellant asserts that only one in 60 Ontario doctors participate in
    the medical marihuana regime, making the possibility of obtaining an exemption
    under the
MMAR
illusory. A similar argument challenging the
    constitutionality of the
MMAR
based on a lack of physician co-operation
    was raised in oral submissions before Clements J. Clements J. dismissed the
    argument on the grounds that there was no evidentiary record before him to
    support the appellants claim.

[34]

No court can determine whether or not this argument has merit in the
    absence of relevant information. Clements J. was correct to refuse to consider
    the appellants constitutional challenge in the absence of a proper evidentiary
    record. Tulloch J. properly concluded that Clements J. did not err with respect
    to this issue.  We note that this issue was decided by Taliano J. in
R. v.
    Mernagh
, 2011 ONSC 2121, on an extensive factual record, but his order has
    been stayed pending appeal.

DISPOSITION

[35]

The appellant has not demonstrated that he was lawfully entitled to
    possess marihuana. The merit of the physician participation argument cannot be
    properly assessed on the record. Clements J. did not err in law and Tulloch J.
    correctly dismissed the appeal.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011


CITATION:
R. v. Persaud, 2011 ONCA 787

DATE: 20111214

DOCKET: C53498

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondents

and

Gary Persaud

Appellant

Robert B. Carew, for the appellant

Matthew Asma, for the respondent

Heard and released orally:
December 12, 2011

On appeal from the conviction entered on May 9, 2010, and the
          sentence imposed on May 10, 2010, by Justice Michael Block of the Ontario
          Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of a variety of credit card offences,
    obstruction of a peace officer and breach of probation.  He received a global
    sentence of five years and four months imprisonment, less one year and 20 days
    of pre-trial custody credited on a 2:1 basis.  The appellant appeals his
    convictions for the credit card offences and the sentence.

[2]

The core of the conviction appeal is that the trial judge misapprehended
    some of the evidence and made unreasonable findings on the evidence.

[3]

We do not accept these submissions.  His submissions focus on isolated
    pieces of evidence, ignoring the overall context.  On each count, the trial
    judge carefully reviewed the relevant evidence and reached entirely reasonable
    conclusions.  The reality is that the circumstantial evidence relating to the
    credit cards found by the police was overwhelming.

[4]

In our view, the sentence was fit.  The appellant had a criminal record
    stretching back 23 years.  Most of the record related to credit card offences.
    As the trial judge put it, he is an intelligent, sophisticated, and determined
    recidivist.  We see no error in the trial judges global sentence nor in his
    reasoning on consecutive and concurrent periods in arriving at the global
    sentence.

[5]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


CITATION:
R. v. Reid, 2011 ONCA 824

DATE: 20111223

DOCKET: C54574

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Reid

Appellant

Erin Dann, for the appellant

Scott Latimer, for the respondent

Heard: December 13, 2011

On appeal from the sentence imposed
          on June 30, 2011 by Justice Donald G. Fraser of the Ontario Court of Justice.

Hoy J.A.:

[1]

The appellant, Robert Reid, pleaded guilty to one count of dangerous
    driving and one count of failing to stop for police, contrary to s. 249 (1)(a)
    and s. 249.1(1) of the
Criminal Code
.  He appeals the sentence imposed
    on two grounds:

1.         The
    sentencing judge erred in rejecting the joint recommendation on sentencing put
    before him by the Crown and defence; and

2.         The
    sentencing judge erred in principle in failing to give the appellant credit for
    time spent in pre-sentence custody.

[2]

I would allow the appeal on the first ground and reduce the sentence by
    84 days.  As I would dispose of this appeal on the first ground, I need not
    address the second ground of appeal.

Background

[3]

In 2003, the appellant was convicted of criminal negligence causing
    bodily harm in a driving context.

[4]

On April 6, 2011, the appellant was allegedly involved in a fail to
    remain accident.  Later in the day, he was observed driving at a very high rate
    of speed on a loose gravel road in an area with numerous houses.  The police
    constable activated the cruisers emergency lights and sirens, pursued the
    appellant and attempted to stop him.  The appellant barely missed a male pedestrian
    at the crest of a hill and later appeared to be throwing empty cans out of the
    vehicle.  The police deployed a spike-belt.  The appellants vehicle hit the
    belt, and continued  smoking, and with tires disintegrating.  The police
    pulled up beside him and motioned for him to stop.  He saw the police cruiser
    and, while travelling at about 70 kilometres per hour, swerved to strike its
    passenger side.  The appellant was at this point entering a densely populated
    area of the city.  He was swerving and taking up both lanes.  Ultimately, the
    police succeeded in pinning the appellants vehicle to the side of a curb.

[5]

On May 5, 2011, the Crown and defence counsel jointly recommended a
    sentence of nine months custody on top of time-served.  At the time of the
    recommendation, the appellant had spent almost a month in custody.  If
    accepted, the sentence would have expired on or about February 5, 2012.

[6]

The sentencing judge observed that the facts were outrageous and the
    case against the appellant was overwhelming.  The sentencing judge signalled
    that he was looking at a significantly higher sentence and ordered a
    pre-sentence report.  Crown counsel confessed that, I had taken the initial
    position I think two days into the file and we just sort of, you know frankly I
    had to struggle with it since.

[7]

The matter was put over until June 30, 2011.

[8]

The pre-sentence report indicated that the appellants erratic behaviour
    was likely because of some underlying mental health issues, and that part of
    the difficulty was the appellants denial that he had any mental health issues.
     The appellant is suspected of suffering from an untreated, underlying
    biological, cyclic mood disorder, possibly Bipolar.  The Crown had been unaware
    of these issues.

[9]

On June 30, 2011, the defence counsel continued to recommend a 10-month
    sentence less the time in custody.  As, at this point the time in custody was 84
    days, this would have resulted in the appellants sentence expiring on or about
    February 6, 2012.  Crown counsel supported this, stating that it was within
    the range given what we know about Mr. Reid.

[10]

The sentencing judge indicated as follows:

Counsel agree the range is at the low end and it is
    for that type of behaviour and your record.  But with this additional
    information from the Pre-Sentence Report Im now prepared to accept it.  Im
    not giving you credit for the time youve spent in pre-sentence detention
    because in my view that pre-sentence detention time produced the material that
    allowed me to accept the joint submission.

The other concern I have is that I want you in
    custody long enough to give you an opportunity to participate in some
    rehabilitation programming at the Thunder Bay Correctional Centre.  I think you
    could make a contribution there; youre intelligent, youre articulate.

You have 84 days of pre-sentence detention which I
    credit but at the same time, in my view, the total sentence should still be 10
    months from today.

[11]

The appellants sentence will end April 30, 2012, 84 days later than if
    the sentencing judge had credited pre-sentence detention in the manner proposed
    in the joint submission.

[12]

The appellant remains in custody at the Thunder Bay Correctional Centre.
     While reported to be well behaved, he has not taken any of the rehabilitative
    programs available.

Analysis

[13]

It was accepted by the sentencing judge and the parties on this appeal
    that the sentencing judge was faced with a joint submission, although
    re-phrased on June 30, 2011 to give effect to the passage of time since May 5,
    2011 and recognize the longer period of pre-sentence detention.

[14]

It is well settled that a sentencing judge should not reject a joint
    submission unless the joint submission is contrary to the public interest and
    the sentence would bring the administration of justice into disrepute:
R. v.
    Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.).

[15]

On the facts before him on May 5, 2011, the sentencing judge properly
    expressed concern about the sentence proposed.  He was also properly
    deferential: he ordered a pre-sentence report and afforded counsel the
    opportunity to make further submissions.

[16]

The pre-sentence report, which cast the appellants moral culpability in
    a different light, permitted the sentencing judge to conclude that the sentence
    proposed was in the range, having regard to the behaviour and record of the
    appellant.

[17]

While the sentencing judge indicated that he accepted the joint
    submission, in our view, in not allowing the appellant credit for pre-sentence
    detention in the manner proposed, he, in fact, imposed a longer sentence and
    rejected the joint submission.  Recognition of pre-sentence detention was an
    integral element of the joint submission.

[18]

Having taken the position that he was accepting the joint submission,
    the sentencing judge did not proceed to explain in what way the joint
    submission was contrary to the public interest and would bring the
    administration of justice into disrepute.

[19]

The sentence imposed by the sentencing judge is not markedly longer than
    that proposed in the joint submission.  He accepted that the joint submission
    was within the range.  He did not conclude, and the 84-day difference is not a
    basis for inferring, that a shorter sentence would bring the administration of
    justice into disrepute.

[20]

The sentencing judge did explain that he believed the additional period
    would give the appellant an opportunity to participate in rehabilitative
    programming.  Rehabilitation of offenders is an important sentencing objective
    and in the public interest. It is unclear however, given the suspected nature
    of the appellants mental health challenges, the role that medication plays in
    treating such problems, and the optional nature of the rehabilitative
    programming, why a sentence that was 84 days shorter would materially affect
    the appellants rehabilitation and was contrary to the public interest and
    would bring the administration of justice into disrepute.  The report of
    Thunder Bay Correctional Centre regrettably indicates that the appellant has
    not availed himself of the opportunity to participate in any of the available
    rehabilitative programs.

[21]

In the result, I would allow the appeal.

RELEASED:  Dec 23, 2011                                                            Alexander
    Hoy J.A.

J.S.                                                                                I
    agree J. Simmons J.A.

I
    agree R.A. Blair J.A.


CITATION:
R. v. Rowe, 2011 ONCA
          753

DATE:  20111201

DOCKET: C51150

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joacquin Rowe

Appellant

Joseph Wilkinson and Bradley Greenshields, for the appellant

Andreea Baiasu, for the respondent

Heard:  October 19, 2011

On appeal from the conviction
          entered by a jury, presided over by Justice Horkins of the Superior Court of
          Justice, dated August 8, 2008 and the sentence imposed on March 17, 2009.

Doherty J.A.:

I

[1]

The appellant was charged with five offences:

·

robbery while armed with a firearm;

·

assault with a weapon (pepper spray);

·

administering a noxious substance (pepper spray);

·

aggravated assault; and

·

unlawful confinement.

[2]

The jury convicted on all counts.  The trial judge imposed prison
    sentences totalling seven years, but credited the appellant with 490 days based
    on his 245 days in pre-trial custody.  The appellant appeals conviction and
    sentence.

[3]

The Crowns case depended largely on the evidence of two witnesses who
    were facing the same charges as the appellant when they testified for the Crown
    at the appellants preliminary inquiry and again at his trial.  One of those
    witnesses, David Andrade, recanted his preliminary inquiry testimony and testified
    at trial that the appellant had nothing to do with the robbery.  The trial
    judge correctly told the jury that the inculpatory portions of Andrades
    preliminary inquiry testimony could be considered by the jury for the truth of their
    contents.  However, she erred in law in her instructions as to the manner in
    which the jury should assess and potentially use the inculpatory and
    exculpatory portions of Andrades testimony.  Those errors, in the
    circumstances of this case, require that the appeal be allowed, the convictions
    quashed, and a new trial ordered.

II

(a)

The victims evidence

[4]

On November 24, 2006, the victim, Abbas Al-Ali, and David Andrade had a
    telephone conversation about the possible sale to Andrade of two PlayStation
    III videogame consoles.  Andrade wanted Mr. Al-Ali to bring the consoles to his
    apartment.  Mr. Al-Ali was hesitant to do so, but eventually drove to the basement
    apartment on Shaw Street with his brother.

[5]

Mr. Al-Ali and his brother went to the apartment, but returned to the
    car when Andrade was not available.  Andrade came to the car a short time later
    and after a brief discussion he and Mr. Al-Ali went back into the residence.  The
    brother remained in the car with the videogame consoles.

[6]

When Mr. Ali-Ali entered the apartment, he saw an older gentleman lying
    on the couch.  This person was introduced to Mr. Al-Ali as Andrades father.  In
    fact, it was Michael Acker, the tenant of the apartment.  A short time later, a
    black man wearing a bandana over his face and a cap approached Mr. Al-Ali and put
    a gun to his head.  The gunman moved behind Mr. Al-Ali, stuck the gun in his
    back and said, [w]here is the fucking shit mother fucker?

[7]

Mr. Al-Ali tried to leave the apartment but the door was closed.  A
    number of people, at least two in addition to the gunman, attacked him from
    behind.  He was pepper sprayed and temporarily blinded.  Mr. Al-Ali was struck
    several times.  He believed that the gunman hit him across the head with the
    butt of the pistol.  Mr. Al-Ali fell to the floor and pretended to be
    unconscious.  His attackers went through his pockets, stealing some change, his
    cell phone and his drivers licence.

[8]

The attack on Mr. Al-Ali subsided and he ran for the door.  A struggle
    ensued and Mr. Al-Ali was again hit on the head.  He managed to get out of the apartment
    and ran to his car.  He and his brother called the police and went to the
    hospital.  Mr. Al-Ali suffered significant head injuries.

[9]

Mr. Al-Ali could not identify the gunman or the other persons who attacked
    him.

(b)
    Ackers evidence

[10]

The Crown alleged that the appellant was the gunman.  That allegation
    rested entirely on Michael Ackers testimony.

[11]

Acker lived in the apartment on Shaw Street.  He was 60 years old, had a
    lengthy criminal record and was addicted to alcohol and crack cocaine.  Acker
    was charged with robbery and other offences in connection with the attack on Mr.
    Al-Ali.  He was awaiting trial when he testified for the Crown both at the
    preliminary inquiry and at the appellants trial.

[12]

According to Ackers testimony, the appellant, Andrade, and a woman
    showed up unannounced at his apartment on November 24, 2006.  Acker knew the
    appellant because the appellant had visited a former roommate of his on several
    occasions.  Acker did not know Andrade or the woman.  Acker later picked the
    appellant out of a photo line-up.

[13]

When Andrade and the appellant arrived at Ackers apartment, they
    explained that they were interested in buying some videogame consoles and reselling
    them on the Internet.  They wanted to use Ackers apartment to make the
    purchases.  Andrade called a prospective seller (Mr. Al-Ali) from Ackers
    apartment.  The appellant and Andrade asked Acker to speak to the person and
    identify himself as Andrades father.  Andrade and the appellant told Acker
    that the prospective seller would feel more comfortable about coming to the
    apartment if he thought an older person lived there.  Acker did as he was asked.

[14]

Mr. Al-Ali arrived at the apartment shortly after the telephone
    conversation.  He left the apartment, but returned a few moments later.  Acker testified
    that he was lying on the couch and not paying much attention to the
    conversation between Mr. Al-Ali and Andrade.  He had consumed six beers earlier
    in the evening.

[15]

Acker indicated that after Mr. Al-Ali returned to the apartment for a
    second time, the appellant, who was wearing a bandana over his face, put a gun
    to Mr. Al-Alis head.  Acker had seen the appellant showing the gun to his
    female companion in the apartment earlier that evening.

[16]

Acker testified that he became very frightened when he saw the appellant
    point the gun at Mr. Al-Ali.  A struggle ensued involving Mr. Al-Ali, the
    appellant and Andrade.  According to Acker, apart from himself and Mr. Al-Ali,
    the appellant and Andrade were the only other male persons in the apartment.  In
    the ensuing melee, someone used pepper spray.  Acker had difficulty breathing
    and eventually made his way to the kitchen.  He locked the door and remained in
    the kitchen.

(c)
    Andrades evidence

[17]

Like Acker, Andrade, who was 19, was charged with various offences
    arising out of the attack on Mr. Al-Ali and was awaiting trial when he
    testified for the Crown at the preliminary inquiry and at trial.  Andrade also
    had a criminal record.

[18]

At trial, Andrade testified that he decided to rob Mr. Al-Ali.  He planned
    to offer Mr. Al-Ali a small amount of money for the videogame consoles and when
    Mr. Al-Ali rejected the offer, Andrade intended to take them off him.  To
    effect his plan, Andrade needed to get Mr. Al-Ali to come to the apartment.  He
    had Acker pose as his father, believing that this would give Mr. Al-Ali a false
    sense of security in going to the apartment.  Andrade also had the appellant
    accompany him to the apartment.  Andrade believed that if any trouble
    developed, the appellant would be available to help him.

[19]

Andrade denied telling the appellant about his plan to rob Mr. Al-Ali.  He
    testified that the appellant had no idea of what was going to happen at the
    apartment and did not participate in any way in the robbery of Mr. Al-Ali.  According
    to Andrade, he was the only person who attacked Mr. Al-Ali.  He struck Mr.
    Al-Ali on the head with a teapot causing the injuries suffered by Mr. Al-Ali.
    The appellant was standing against a nearby wall as this struggle unfolded.  Andrade
    testified that he did not use or have a firearm when he attacked and robbed Mr.
    Al-Ali.

[20]

Andrades trial testimony was inconsistent in several material respects
    with his preliminary inquiry testimony.  After cross-examining Andrade on those
    inconsistencies pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5, the Crown successfully moved to have parts of Andrades
    preliminary inquiry testimony admitted for the truth of their contents under
    the principled exception to the rule excluding hearsay evidence.

[21]

At the preliminary inquiry Andrade gave several answers that
    incriminated the appellant.  He resiled from that testimony at trial.  The
    potentially incriminatory parts of Andrades preliminary inquiry evidence
    included the following:

·

Andrade told the appellant of his intention to rob Mr. Al-Ali
    before Mr. Al-Ali arrived at the apartment;

·

Andrade told the appellant that he had asked Acker to pretend to
    be his father;

·

Andrade told the appellant he had mace that could be used, if
    necessary;

·

Andrade saw the appellant struggling with Mr. Al-Ali; and

·

After the pepper spray went off, Andrade fled upstairs leaving
    Mr. Al-Ali with the appellant.

[22]

Andrade did, however, testify at the preliminary inquiry, as he did at trial,
    that a gun was not used at any time during the robbery.

(d)
    The live issues at trial

[23]

The appellant did not testify.

[24]

By the end of the evidence, it was common ground that Andrade had formed
    a plan to rob Mr. Al-Ali when he arrived at the apartment to sell the videogame
    consoles to Andrade.  It was accepted that Mr. Al-Ali was attacked and beaten
    in the apartment.  The defence also acknowledged that the appellant was present
    in the apartment with Andrade prior to and during the attack on Mr. Al-Ali.
    Finally, while not conceded, Mr. Al-Alis evidence that his attackers went
    through his pockets while he was lying on the ground was not seriously
    disputed.  Setting aside the charges arising out of the use of pepper spray (counts
    2 and 3), the jury had two essential issues to consider  did the appellant participate
    in the robbery and, if so, did he have possession of a firearm at that time?

[25]

In his closing submissions, counsel for the appellant argued at length
    that Ackers testimony should be rejected as incredible.  He also argued that
    the jury should not rely on the extracts from Andrades preliminary inquiry
    that implicated the appellant.  Counsel submitted that, prior to the
    preliminary inquiry, Andrade was pressured by the police to implicate the appellant
    and was encouraged to use the disclosure material provided to him to supplement
    his actual recollection of the events.  Counsel also urged the jury to consider
    Andrades express admission in his trial testimony that he alone was
    responsible for the attack on Mr. Al-Ali.

III

[26]

Counsel for the appellant advanced numerous grounds of appeal.  Several
    focussed on the trial judges instructions concerning Andrades evidence.  By
    Andrades evidence, I mean both his trial testimony and the parts of his preliminary
    inquiry testimony admitted at trial for the truth of their contents.

[27]

Counsel for the appellant argued that the trial judge should have drawn
    a clear distinction between the exculpatory portions of Andrades evidence (his
    trial testimony) and the inculpatory portions (his preliminary inquiry
    testimony) when giving the jury a
Vetrovec
 instruction in relation to his
    evidence.  Counsel submitted that instead the trial judge effectively told the
    jury that it should approach all parts of Andrades evidence in the same way,
    and that it must look for confirmatory evidence of both the inculpatory and the
    exculpatory portions of Andrades evidence.

[28]

In a closely related second submission, counsel contended that the trial
    judge failed to relate the presumption of innocence and the reasonable doubt
    standard of proof to Andrades exculpatory trial testimony.  They argued that
    the jury should have been expressly instructed that if Andrades trial evidence
    that he alone was involved in the robbery left the jury with a reasonable doubt
    as to the appellants guilt, the jury must acquit him.

[29]

Counsel further contended that the trial judge erred in effectively
    instructing the jury that it should consider the preliminary inquiry testimony
    of Andrade and his trial testimony on the same footing.  Counsel submitted that
    the jury should have been alerted to the difficulty inherent in assessing the
    credibility of the preliminary inquiry testimony given that the jury did not
    see the witness give that evidence.

[30]

Next, counsel argued that the trial judge unfairly summarized Andrades
    evidence.  They maintained that by focusing almost exclusively on the
    inconsistencies between Andrades trial testimony and his preliminary inquiry
    testimony, and by denigrating Andrades explanation for those inconsistencies,
    the trial judge put the weight of her office on the side of the Crown insofar
    as the assessment of Andrades evidence was concerned.

[31]

Finally, counsel submitted that in setting out the evidence that could potentially
    confirm Andrades evidence, the trial judge left the jury with evidence that was
    peripheral and insignificant and could not, therefore, provide confirmatory
    evidence.  Counsel submitted that this error was compounded when the trial
    judge misstated a significant portion of Andrades testimony in setting out the
    potentially confirmatory evidence.  In her summary of the potentially
    confirmatory evidence, the trial judge told the jury that Andrade had testified
    that he saw a person with a gun.  The Crown concedes that Andrade gave no such
    evidence.  He denied seeing a gun both in his preliminary inquiry evidence and
    in his trial testimony.

IV

[32]

Andrade was clearly an unsavoury witness.  Part of his testimony, specifically
    the excerpts from his preliminary inquiry testimony, implicated the appellant.
    Other parts of his testimony, specifically his evidence at trial, exculpated
    the appellant.  For the purpose of determining whether a
Vetrovec
instruction
    should be given, Andrade was what this court has come to refer to as a a mixed
    witness, that is, an unsavoury witness called by the Crown whose testimony in
    part supports the accuseds defence:  see
R. v. Gelle
, 2009 ONCA 262,
    244 C.C.C. (3d) 129, at para. 16;
R. v. Tran
, 2010 ONCA 471, 103 O.R.
    (3d) 131, at paras. 27-28; and
R. v. Shand
, 2011 ONCA 5, 104 O.R. (3d)
    291, leave to appeal to S.C.C. requested [2011] S.C.C.A.  No. 270, at para.
    215.

[33]

The above-cited cases indicate that a
Vetrovec
caution will often
    be appropriate in respect of the testimony of a mixed witness.  The specifics
    of that caution and the format of the instruction are left very much in the
    discretion of the trial judge.  The jury instruction will be sufficient if, considered
    in its entirety, that instruction makes clear to the jury both that it is dangerous
    to rely on the inculpatory portion of the
Vetrovec
witnesss evidence
    without confirmatory support, and that the jury must acquit if the exculpatory
    portions of that witnesss evidence, alone or taken in combination with the
    rest of the evidence, leave the jury with a reasonable doubt.  In upholding an
    instruction directed at a witness much like Andrade, this court said in
Tran
,
    at para. 28:

The jury would have been aware of the conflicting
    statements made by these witnesses.  The evidence they gave at trial was
    essentially exculpatory while their pre-trial statements implicated the
    accused.
It would have been apparent to the jury that the trial judges
Vetrovec
warning amounted to an instruction to exercise considerable caution before
    convicting the appellants on the basis of the inculpatory evidence given by
    these witnesses and upon which the Crown relied.
The exculpatory evidence
    was simply the flip side of the same coin.  Reading the charge as a
whole, I
    am entirely satisfied that the jury would have understood that if that mixed
    evidence left them with a reasonable doubt they would have to acquit the
    appellants.
[Emphasis added.]

[34]

Where, as in this case, the inculpatory portions of the witnesss
    testimony are easily demarcated from the exculpatory portions, the best course
    is to specifically refer the jury to the exculpatory portions and to instruct
    the jury that with respect to those portions, the question is not whether the
    evidence is confirmed by other evidence, but rather whether the evidence alone
    or in combination with the other evidence heard in the case leaves the jury
    with a reasonable doubt.

[35]

In her instructions, the trial judge did not draw any clear distinction between
    Andrades trial evidence and his testimony at the preliminary hearing.
    Instead, she presented the two as part of a single whole.  For example, in
    explaining the need to treat Andrades evidence with caution, the trial judge
    referred to the fact that he was awaiting trial when he testified.  Andrade was
    awaiting trial both when he testified at the preliminary inquiry and at the
    appellants trial.

[36]

The closest the trial judge came to distinguishing between Andrades
    exculpatory trial evidence and his inculpatory preliminary inquiry evidence for
    the purposes of the
Vetrovec
warning appears in the following extract:

Accordingly, you should look for some confirmation
    of Mr. Andrades evidence from somebody or something other than Mr. Andrade
before
    you rely on his evidence in deciding whether Crown counsel has proven the case
    against Mr. Rowe beyond a reasonable doubt.
[Emphasis added.]

[37]

If this instruction stood alone, it might suffice.  Unfortunately, other
    portions of the
Vetrovec
instruction sent a different message to the
    jury.  Immediately before giving the instruction quoted above, the trial judge
    said:

At the same time, it is important to remember
that
    this caution has no application to the case against Mr. Rowe
and he is
    entitled to the benefit of the presumption of innocence and the right to have
    the Crown prove the case against him beyond a reasonable doubt.  [Emphasis
    added.]

[38]

The trial judges reference to this caution is a reference to the
Vetrovec
instruction.  Contrary to her instruction, the caution applied
only
to
    the case against Mr. Rowe and has no application to the case
for
Mr.
    Rowe.

[39]

The trial judge further blended the inculpatory and exculpatory portions
    of Andrades evidence when she told the jury:

Now, as you search for confirmatory evidence for Mr.
    Andrade, of course, it depends on which evidence you are trying to confirm, the
    preliminary evidence or the trial evidence, because it would make a difference.

[40]

This instruction clearly implied that the jury should search for
    confirmation of both the exculpatory trial evidence and the inculpatory preliminary
    inquiry evidence.  As explained above, when examining Andrades trial evidence
    the jury should have measured that evidence against the Crowns burden of proof
    rather than searching for confirmatory evidence of Andrades trial testimony.

[41]

The shortcomings in the
Vetrovec
instruction were not overcome in
    the other parts of the jury instruction:  see
R. v. Khela
, 2009 SCC 4, [2009]
    1 S.C.R. 104, at paras. 55-56.  This was not a case like
Shand
, at para.
    221, where the trial judge told the jury, as part of the reasonable doubt
    instruction, that it must acquit the accused if the exculpatory statement made
    by the
Vetrovec
witness left the jury with a reasonable doubt.  That
    instruction, tying the Crowns burden of proof directly to the exculpatory
    portion of the
Vetrovec
witnesss testimony, will often overcome a
    failure to expressly distinguish between the inculpatory and exculpatory
    portions of the witnesss testimony as part of the
Vetrovec
instruction.

[42]

The
Vetrovec
instruction with respect to Andrades evidence did
    not make clear that the search for confirmatory evidence was properly directed
    at the inculpatory portions of Andrades testimony and that the appellant
    should be acquitted if Andrades exculpatory evidence, considered in the
    context of the entirety of the evidence, left jurors with a reasonable doubt.
    To the contrary, I read the
Vetrovec
instruction as requiring the jury
    to approach all facets of Andrades evidence with caution and to search for
    confirmatory evidence of Andrades testimony before relying on any part of it.  That
    direction constitutes an error in law.

[43]

Two additional shortcomings in the instructions, while not amounting to
    reversible errors on their own, exacerbate the errors in the
Vetrovec
instruction.  First, the trial judge did not highlight an important distinction
    between the jurys ability to assess Andrades trial testimony and its ability
    to assess the credibility of his preliminary inquiry testimony.  The jury saw
    Andrade give evidence at trial and could use its assessment of his demeanour in
    measuring his credibility.  However, the jury did not see Andrade testify at
    the preliminary inquiry.  Nor was his testimony videotaped.  The jury was left without
    the potentially important insights that the ability to observe the witness when
    testifying can afford to a fact finder in the assessment of that witnesss
    credibility:  see
R. v. B.(K.G.)
, [1993] 1 S.C.R. 740, at pp. 792-93.

[44]

It would have been better had the jury been told that the inability to
    assess Andrades demeanour when he gave his evidence at the preliminary inquiry
    should be considered by the jury when deciding whether it could rely on that
    evidence, particularly in the face of the conflicting evidence given by Andrade
    at trial.
[1]

[45]

Secondly, as conceded by the Crown, the trial judge made a factual error
    in outlining the potentially confirmatory evidence.  She told the jury:

Andrade said that the guy with the gun
had a
    black hat on.  Abbas said he was wearing a black hat.  [Emphasis added.]

[46]

Andrade never testified that anyone had a gun.  In fact, he consistently
    denied that a gun was used both at the preliminary inquiry and at the trial.
    Andrade did describe the appellant as having a black hat on and Mr. Al-Ali had described
    the gunman as wearing a black hat.

[47]

Juries are told to rely on their own recollection of the evidence.  This
    kind of factual error, which the trial judge was not asked to correct, will not
    usually, standing alone, warrant appellate intervention.  It too, however, adds
    some additional weight to the complaints directed at the trial judges
    instructions concerning Andrades evidence.

[48]

The errors described above are sufficiently significant in the
    circumstances to foreclose any application of the
curative proviso
.
    Before leaving the trial judges treatment of Andrades evidence, however, I
    will address the contention that she presented that evidence unfairly to the
    jury.  I disagree with that contention.

[49]

The trial judge assembled Andrades evidence for the jurys
    consideration by reference to seven factual areas where his preliminary inquiry
    testimony was directly inconsistent with his trial testimony.  She gave the jury
    copies of the relevant parts of Andrades trial testimony and his preliminary inquiry
    testimony applicable to each of the seven areas of inconsistency.  The excerpts
    of the trial transcript provided to the jury did not include Andrades
    explanations for some of the inconsistencies between his trial testimony and
    the evidence he gave at the preliminary inquiry.  The trial judge did review
    these explanations in the course of her instructions.

[50]

The trial judge could have included the excerpts from the trial transcript
    that contained the explanations for the inconsistencies in the material she
    gave to the jury.  Her failure to do so, however, was not fatal.  Andrades explanations
    were straightforward and easily understood and recalled by the jury.  Those
    explanations were far from compelling and in some instances nonsensical.  From
    the appellants perspective, the less said about some of the explanations the
    better.

[51]

I would also observe that the trial judge did summarize, albeit briefly,
    Andrades trial testimony apart from the areas where the testimony was
    inconsistent with his preliminary inquiry evidence.  I see no unfairness in the
    way the trial judge assembled and presented Andrades conflicting versions of
    events to the jury.  To the contrary, I think it was helpful.

V

[52]

I would allow the appeal for the reasons set out above.  I will,
    however, consider one further argument made by the appellant because it raises
    an important matter of general concern in the conduct of criminal jury trials.  This
    was a factually and legally straightforward, but by no means easy, case.  The
    jury instructions were lengthy and, according to the trial judge, tedious.
    Counsel for the appellant submitted that the charge was unnecessarily complex
    and contained superfluous instructions that must have confused the jury and
    distracted it from the real issues in the case.  Counsel contended that the
    unnecessary complexity of the jury charge constituted a stand alone basis for
    the reversal of the verdicts:  see
R. v. Hebert
, [1996] 2 S.C.R. 272, at
    para. 13.

[53]

As I would allow the appeal on the grounds set out above, I need not decide
    the ultimate merits of this submission.  However, and with respect to the trial
    judge who clearly worked very hard on her jury instructions, the charge was unnecessarily
    complex and confusing.

[54]

There are two explanations for the confusion and complexity.  First, I
    think the indictment contained counts which, by the end of the trial, were
    unnecessary to a fair and full adjudication of the merits.  There were five
    counts in the indictment.  The trial judge was required to deal with each count
    and with each element of the offence described in each count.  This necessarily
    made the jury instruction longer, more complicated, repetitive and inherently
    confusing.

[55]

I do not fault the Crown for placing the five charges in the indictment,
    or proceeding through the trial with those charges.  In my view, however, the
    Crown should have taken a hard look at the need to instruct the jury on all
    counts and require that it return verdicts on all counts.  Counts two and three
    related to the use of pepper spray against Mr. Al-Ali.  One of the two, either
    one, was redundant.  I see no disadvantage to the Crown had it asked for a
    verdict on only one of those two counts and relieved the trial judge of her
    obligation to address the second.
[2]

[56]

I also see no need from the Crowns perspective for a verdict on the
    unlawful confinement charge.  There was no chance that a reasonable jury would
    convict of unlawful confinement if it did not convict on the robbery charge.
    If the jury convicted of robbery, an additional conviction for unlawful
    confinement, while virtually inevitable, would add nothing to the case.  A
    conviction on the unlawful confinement count was not necessary to accurately reflect
    the nature and extent of the appellants criminal culpability, or to permit the
    imposition of an appropriate penalty.  Apart from adding another line to the
    appellants criminal record, I see no purpose served by the unlawful
    confinement charge.

[57]

I emphasize that I am not suggesting that a trial judge can unilaterally
    decide to take counts in an indictment away from a jury as a means of
    facilitating the jurys deliberations.  Subject to the judges power to order
    severance, and assuming there is an evidentiary basis for the allegation in
    each count in the indictment, it is up to the Crown to decide whether a charge in
    the indictment should go to the jury for a verdict.

[58]

Crown counsel in the exercise of his or her responsibility to further
    the due administration of justice should consider whether multiple count
    indictments can be trimmed before the case goes to the jury without
    compromising the case the Crown seeks to have determined by the jury.  The
    possibility of not requiring verdicts on all counts in a multiple count
    indictment should be canvassed with counsel as part of the pre-charge
    conference.  It is self-evident that the fewer the charges a jury must
    consider, the less likely it is that confusion will intrude upon the jurys
    deliberation, or that the trial judge will fall into legal error.  Jury
    confusion can lead to a hung jury and legal error can necessitate a new trial.
    Neither result serves the Crowns interest in the due administration of
    justice.  A properly trimmed indictment serves everyones interests in the
    criminal process.

[59]

The second source of unnecessary complexity in the jury instruction
    flows from what this court has described as over-charging:  see
R. v.
    Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 493.  In
Pintar
, the
    appellant complained that the self-defence instruction was so complex as to be
    incomprehensible.  Moldaver J.A. said:

Unquestionably, trial judges do encounter
    difficulties in explaining the self-defence provisions to juries for the
    reasons expressed by the Chief Justice.  In my opinion, these difficulties are
    compounded by the standards which appellate courts have imposed, or are perceived
    to have imposed, when assessing the adequacy of self-defence instructions.
    Trial judges are often heard to say that 90 per cent of their legal instruction
    on self-defence is for the Court of Appeal and 10 per cent for the jury.
    Expressed somewhat differently, fear of under-charging has led to over-charging.

Ironically, many trial judges have taken to leaving
    multiple self-defence provisions with the jury as a means of defending
    themselves against appellate assault.  This phenomenon, which I describe as over-charging,
    has itself come under attack....

[60]

My former colleagues comments were directed at the law of self-defence,
    a notoriously complicated area of the criminal law.  His comments, however, have
    more general application.  Like him, I think that fear of appellate reversal is
    one of the causes of over-charging.  Trial judges perceive, correctly I
    think, that legally accurate instructions that are superfluous will seldom lead
    to reversal, while a failure to instruct on an issue that may have been on the
    periphery of the trial, but has become central on the appeal, will lead to
    reversal and a new trial.  Instructions on anything and everything that have
    any possible relevance are seen as the best defence against the hindsight inherent
    in appellate review.

[61]

There is a second cause of over-charging that is the unfortunate by-product
    of a recent and beneficial development in the conduct of criminal jury trials.
    Counsel and trial judges now engage in detailed pre-charge conferences in which
    proposed jury instructions are thoroughly vetted.  That vetting generates a written
    version of the jury instructions that is provided to counsel and to the
    jurors.  The pre-charge discussions often centre around the model jury instructions
    found in
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson
    Carswell, 2005).  Those instructions provide valuable assistance to judges and
    counsel in the formulation of appropriate jury instructions:  see
R. v.
    Banwait
, 2010 ONCA 869, 265 C.C.C. (3d) 201, revd 2011 SCC 55, at para.
    173, MacPherson J.A., dissenting.

[62]

The model instructions are not, however, a one-size-fits-all product
    to be used without modification or variation:  see
R. v. McNeil
(2006), 84
    O.R. (3d) 125 (C.A.), at para. 21.  Watt J.A., author of the model
    instructions, put it this way in
Helping Jurors Understand
(Toronto:
    Thomson Carswell, 2007), at p. 82:

A specimen is a sample.  A specimen instruction is a
    sample instruction about its subject-matter.  Specimen instructions do
not
and cannot be expected to provide legally accurate directions for every set of
    circumstances that fall within their reach.  There are no one-size-fits-all
    jury instructions.  At best, specimen instructions provide the basic building
    blocks for finals and other instructions.  The twists and turns of individual
    cases will dictate the nature and extent of modification required to ensure
    legal accuracy. [Emphasis in original.]

[63]

In keeping with the purpose of the model instructions, it does not
    follow that because an accused is charged with robbery it is either necessary
    or appropriate to read to the jury all of the model instructions referable to
    the offence of robbery.  Certainly, those model instructions will provide a
    valuable starting point for discussions between counsel and the trial judge as
    to the appropriate instructions.  Those discussions should tailor the model
    instructions to the specific circumstances.  Unfortunately in the present case
    that tailoring did not occur.  Large parts of the model instructions were used
    without modification and without regard to the specifics of the case.

[64]

Two examples from the trial judges instructions make the point that the
    model instructions must be tailored to the specifics of the case.  The trial
    judge spent five pages instructing the jury on the law of theft.  She read most
    of the model jury instructions on the crime of theft to the jury.  On the
    evidence, however, the trial judge had only to tell the jury that, as a matter
    of law, a theft occurred if Mr. Al-Alis assailants took anything from his
    pockets.  On the evidence adduced in this case, it was unnecessary to make any
    reference to concepts such as colour of right, and the
mens rea
for
    theft.  None had anything to do with the issues that arose in this case.

[65]

The instructions on the law of assault provide a second example.  Once
    again, the trial judge used the model instructions without regard to the evidence
    or the positions taken at trial.  It will be recalled that it was conceded by
    the defence that Mr. Al-Ali was attacked and assaulted in the apartment.  The
    trial judge had only to tell the jury that if it accepted the unchallenged evidence
    that Mr. Al-Ali was attacked and/or threatened with a weapon, either or both of
    those actions constituted an assault in law.  Instructions about the need for
    the intentional application of force and the absence of consent were unnecessary
    and could only distract the jury.

[66]

As explained in
Pintar
, at pp. 495-96, jury instructions must be
    shaped by trial judges and reviewed by appellate courts having regard to the
    purpose those instructions are intended to serve.  A proper jury instruction is
    one that fully and fairly arms a jury with the information it needs to reach a
    fair and proper verdict in the circumstances of the particular case.  Trial
    judges cannot simply cut and paste their charges together using the model
    instructions in
Watts Manual
.  Nor can appellate courts review the
    adequacy of jury instructions without regard to the positions taken at trial
    and the circumstances of the particular case.

[67]

A functional approach to the jury instructions required for count one
    robbery with a firearm  would produce something like the following:

(i)

You [the jury] should first decide whether you are satisfied beyond a
    reasonable doubt that Mr. Al-Ali was attacked by one or more persons while he
    was in the apartment.  If you are not so satisfied, you should acquit on count
    one.  If you are satisfied, you should continue to the next stage of your
    deliberations on count one.

(ii)

Are you satisfied beyond a reasonable doubt that the accused either alone
    or with others participated in the attack on Mr. Al-Ali by threatening him
    and/or striking him?  If you are not so satisfied, you should acquit the
    accused on count one.  If you are, you should move to the next stage of your
    deliberations on count one.

(iii)

Are you satisfied beyond a reasonable doubt that when the appellant
    participated in the attack on Mr. Al-Ali he intended to and/or did steal
    something from Mr. Al-Ali, or alternatively he knew that others participating
    in the attack intended to and/or did steal something from Mr. Al-Ali?  If you
    are not satisfied, you will acquit the accused on count one and move on to the aggravated
    assault charge in count four.  If you are so satisfied, you will move to the
    next stage in your deliberations on count one.

(iv)

Are you satisfied beyond a reasonable doubt that the accused was armed
    with a firearm (as I will define it) when he participated in the attack on Mr.
    Al-Ali?  If you are so satisfied, you will convict on count one as charged,
    that is, that the accused did rob Mr. Al-Ali while armed with a firearm.  If
    you are not so satisfied, you will convict him of the included offence in count
    one of simply robbing Mr. Al-Ali.

[68]

The approach outlined above would, in my view, avoid references to
    unnecessary legal concepts, focus on the nature of the allegations made against
    the appellant, and direct the jury to the live issues in the case.

VI

[69]

I would allow the appeal, quash the convictions and direct a new trial.

RELEASED:
DD  DEC 01 2011

Doherty J.A.

I agree R.G. Juriansz J.A.

I agree Paul Rouleau J.A.

[1]
The trial judge may not have referred to the jurys disadvantaged position in
    assessing Andrades preliminary inquiry testimony because it would appear that
    the trial judge erroneously considered Andrades preliminary inquiry testimony
    to be automatically admissible because he was an accused.  While Andrade was
    facing the same charges, he was not an accused in this trial.  His preliminary
    inquiry testimony was admissible only if it met the twin criteria of necessity
    and reliability.  The inability to assess the declarants demeanour when the
    hearsay statement was made is relevant when determining reliability for
    admissibility purposes and in assessing ultimate reliability.

[2]
Although not canvassed in argument, I think there are different procedures
    which the Crown could have used to remove some of the counts from the jurys
    consideration.  For example, it could have requested that the trial judge enter
    a stay on those counts.