COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cisar, 2014 ONCA 151

DATE: 20140228

DOCKET: C55375 & C57565

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roman Cisar

Appellant

Roman Cisar, appearing in person

Louis P. Strezos, Duty Counsel

Tracy Kozlowski, for the respondent

Heard: September 10, 2013

On appeal from the conviction entered on February 2, 2012
    and the sentence imposed on April 20, 2012 by Justice Colin R. Westman of the Ontario
    Court of Justice.

Rosenberg J.A.:

[1]

The appellant appeals from his conviction and sentence by Westman J. on
    charges of fraudulently obtaining computer services, fraudulent use of a
    computer system, theft and possession of stolen goods. The charges refer to
    IMAGENATION computer software. The trial judge sentenced the appellant to 30
    months imprisonment. For the following reasons, I would dismiss the appeal.

THE FACTS

[2]

The charges against the appellant relate to computer software developed
    by the Spicer Corporation. Steve Spicer was the CEO of Spicer Corporation and
    at the relevant times owned 70 percent of the companys stock. The appellant
    was employed by Spicer Corporation for seven years until July 1996. During this
    time he was in charge of marketing for the company. While he was at the company,
    the appellant obtained his MBA and had hoped to obtain a more senior position.
    In 1995, he was disciplined for taking unscheduled vacation and for improper
    use of company resources, and he was advised that any future deviation from the
    companys policies on vacation would result in a 5 percent pay reduction. In
    March 1996, the appellant handed in his resignation but gave a long (3-month)
    notice period. He hoped that the company would try to retain him in a more
    senior position. The company did not and in July 1996 the appellant left the
    company. Before doing so, he took with him on a number of discs the source code
    for the Imagenation computer software.

[3]

The appellant eventually went to the Czech Republic where he set up
    Parallax69 Software International and produced Eroiica 4.2 software. This
    software, and a successor version Eroiica 4.3, were derived directly from the
    source code he had taken from Spicer Corporation. The appellant testified and
    offered a two-fold defence. He claimed that Steve Spicer had given him the
    source code to assist in promoting a project that came out of the appellants
    MBA studies. The project was to use programmers in the Czech Republic, which
    would be less expensive than using Canadian programmers, to continue
    development of Spicer Corporations software. Thus, the appellant claimed a
    colour of right to take and use the source code. His second defence was that the
    charges all related to the Imagenation software, whereas he had only taken the
    source code, which was valueless. The trial judge rejected these defences.

[4]

The trial judge also rejected the appellants submissions that he should
    have obtained a stay of proceedings because his rights under ss. 11(a), (b) and
    (d) and 7 of the
Charter of Rights and Freedoms
were infringed.

[5]

The appellant was unrepresented during the trial and on this appeal.
    However, the appellant was very ably assisted on the appeal by Louis Strezos
    acting as duty counsel. On the appeal, the appellant again put forward his
    substantive defences and the
Charter
arguments. With the assistance of
    Mr. Strezos, the appellant particularly relied upon the alleged violation of
    his rights under s. 11(a) of the
Charter
. I will begin with the
Charter
arguments.

ANALYSIS

(1)

Charter
Grounds of Appeal

(i)

Introduction

[6]

The various
Charter
grounds largely rest on the delay in first
    notifying the appellant of the charges against him and then bringing him to
    trial. Following is a brief chronology of the events leading to the trial. The
    appellant handed in his resignation in March of 1996. His last day of work was
    July 24, 1996. In his last few days of work, he trained his replacement, Carola
    Donsig. She saw that during this time he was downloading something from his
    computer onto a series of new discs. The appellant admitted at trial that he
    was copying the source code onto these discs. The appellant left the country
    and travelled for some time, eventually moving to the Czech Republic. I will
    deal further with the events in the Czech Republic later. The appellant began
    selling his version of the software sometime after June 1997. He claimed that
    by the end of 1999 he had given up on the venture and he put all of his records
    in storage in the Czech Republic. He returned to Canada in 2000. Although he
    claimed to have had some kind of business arrangement with Mr. Spicer, the
    appellant had no contact with Mr. Spicer when he returned. He lived north of
    Toronto in a residence in his wifes name. He and his children used his wifes
    maiden name and he used out-of-town post office boxes for his mailing address.

[7]

Meanwhile, in July 1998, Spicer Corporation began to suspect that the
    appellant had stolen the source code. The company confirmed this when they
    obtained a copy of the software that the appellant was selling on the Internet.
    In August 1998, Spicer Corporation was speaking to civil counsel and trying to
    find the appellant and stop his distribution of the Eroiica software. In
    January 1999, Spicer Corporation contacted the police. Police officers met with
    Crown counsel in April and on April 30, 1999, the information was sworn
    charging the appellant. A Canada-wide warrant was issued on May 18, 1999,
    apparently after Mr. Spicer wrote to Crown counsel confirming that Spicer
    Corporation would cover the expenses incurred by executing the Canada-wide
    warrant outside the Regional Municipality of Waterloo. The trial judge found
    that thereafter the investigating officers did nothing to try and locate the
    appellant even though employees of Spicer Corporation provided information to
    the police about the appellants probable whereabouts. For example, an employee
    of Spicer Corporation provided the police with the appellants telephone number
    in October 2001 and other information showing that the appellant was living in
    Kincardine.  Although the information was passed to the police, neither the
    police nor Spicer Corporation seems to have done anything with the information.

[8]

In April 2005, the appellant was interviewed by the police as a result
    of the death of his child. A Spicer employee learned of the death and it seems
    likely provided the information to the investigating officers.  Again nothing
    more was done by either the police or Spicer Corporation in furtherance of the
    execution of the warrant.

[9]

In late 2005, the appellant travelled to the Czech Republic using his
    Canadian passport. He returned to Canada without incident. On July 5, 2007,
    Steve Spicer unexpectedly died. On August 24, 2007, the appellant was finally
    arrested on the outstanding warrant when he was stopped during a routine
    traffic stop. On July 1, 2008, Open Text Corporation bought the assets of Spicer
    Corporation for approximately $12.4 million.

[10]

After
    he was charged and released on bail, the appellant retained counsel. There was
    a considerable delay before the matter came to trial. Much of the delay was
    because the appellant was trying to resolve the civil proceedings with Spicer
    Corporation and Open Text. It was suggested that resolution of the civil
    proceedings would have affected the criminal proceedings. In December 2009, the
    appellant dismissed his civil counsel and in early 2010 he dismissed his
    criminal counsel. While the criminal defence counsel removed himself from the
    record, he was still assisting the appellant. The criminal trial began on April
    26, 2010. On November 1, 2010, in the course of the trial, the appellant filed
    an application for a stay of proceedings because of breach of his s. 11(b)
    rights. The trial eventually stretched over approximately 20 days concluding on
    November 29, 2011. The trial judge delivered his reasons convicting the
    appellant and dismissing the various
Charter
motions on February 2, 2012.
    The trial judge sentenced the appellant on April 20, 2012.

(ii)

Section 11(a)

[11]

Section
    11(a) of the
Charter
guarantees a person charged with an offence the
    right to be informed without unreasonable delay of the specific offence. The
    provision thus provides two forms of constitutional protection. The primary protection
    is notice of the specific offence. Without notice of the specific offence an
    accused may be deprived of the ability to make full answer and defence. Accused
    have the right to know with what they are charged so they can make decisions
    about their defence, assemble evidence and prepare to meet the prosecution
    case. This element of s. 11(a) is largely codified in s. 581 of the
Criminal
    Code
, which sets out the minimum requirements for sufficiency of an
    information:
R. v. Cancor Software Corp.
(1990), 74 O.R. (2d) 65
    (C.A.) and
R. v. Lucas
(1983), 57 N.S.R. (2d) 159 (S.C. App. Div.). In
    the latter case, Jones J.A. referred to this courts pre-
Charter
decision in
R. v. Toth
, [1959] O.R. 137 (C.A.), which described as a fundamental
    principle of our law that an indictment must charge an offence in such a manner
    as clearly to bring home to an accused an accurate knowledge of the offence
    with which he is charged. In
Cancor
, this court also referred to an
    article by E. Ratushny -- "The Role of the Accused in the Criminal
    Process"  in W.S. Tarnopolsky & G.A. Beaudoin, eds.,
The Canadian
    Charter of Rights and Freedoms: Commentary
(Toronto: Carswell, 1982), at
    352, which identifies another reason for this s. 11(a) guarantee. It supports
    the important element of the rule of law that an accused can only be charged
    with an offence known to law:

A specific accusation presupposes a specific offence in law.
    It, therefore, provides an opportunity at the outset for the accused to
    challenge the authority of the officials of the state to subject him to the
    criminal process. If no offence exists in law, the accusation can be attacked and
    quashed, thereby terminating the proceeding.

[12]

The
    second right protected by s. 11(a) and the right in issue in this appeal is the
    right to be informed without unreasonable delay. The content of this right must
    be considered in the context in which it is found. In my view, like the right
    to be informed of the specific offence, the object of the protection against
    unreasonable delay is also primarily to protect the right to make full answer
    and defence. This understanding of the objective of s. 11(a) is also consistent
    with the context provided by other parts of s. 11 of the
Charter
,
particularly the related right to trial
    within a reasonable time in s. 11(b). The extensive case law considering s.
    11(b) has identified the rights protected by that provision as (1) the right to
    security of the person; (2) the right to liberty, and (3) the right to a fair
    trial. In
R. v. Morin
, [1992] 1 S.C.R. 771, at p. 786, the court
    explained how those rights are protected:

The right to security of the person is protected in s. 11(b) by
    seeking to minimize the anxiety, concern and stigma of exposure to criminal
    proceedings. The right to liberty is protected by seeking to minimize exposure
    to the restrictions on liberty which result from pre-trial incarceration and
    restrictive bail conditions. The right to a fair trial is protected by
    attempting to ensure that proceedings take place while evidence is available
    and fresh.

[13]

Until
    an accused has been informed of the charge, it is only the right to a fair
    trial that is impacted by delay. If accused are not aware of the charge, they
    are not subject to the anxiety, concern and stigma of exposure to criminal
    proceedings and their liberty is not impacted.

[14]

The
    Supreme Court of Canada in
R. v. Delaronde
, [1997] 1 S.C.R. 213,
    appears to have approved of a form of analysis of s. 11(a) that is similar to s.
    11(b) analysis.
Delaronde
was an appeal from a decision of the Quebec
    Court of Appeal reported at [1996] R.J.Q. 591. An English translation of the
    Court of Appeals decision is reported at 115 C.C.C. (3d) 355. The Supreme
    Court of Canada in oral reasons dismissed the accuseds appeal for the reasons
    of Otis J.A. in the Court of Appeal. Later, Lamer C.J.C. in a short addendum
    left open the possibility that s. 11(a) may also protect against prejudice to
    economic interests for which s. 24(1) might provide remedies. As he said at
    para. 5: Having charges pending against one can affect decisions one must make
    in ones life that are unrelated to the preparation of a defence. This aspect
    of s. 11(a) is not an issue in this case, except as a factor the trial judge
    took into consideration at sentencing.

[15]

In
    her reasons in
Delaronde
, Otis J.A. held that delay under s. 11(a)
    should be analyzed using the same factors as under s. 11(b), namely: the length
    of the delay, waiver of time periods, the reasons for the delay and prejudice
    to the accused. The findings of fact by the trial judge in this case have
    simplified the analysis. The delay runs from the date the charge was laid until
    the appellant was arrested and informed of the charge; that is, from April 30,
    1999 to August 24, 2007, over eight years. The trial judge found that while the
    appellant may have been aware of possible civil proceedings by Spicer
    Corporation, and may have been taking steps to avoid having to deal with
    Spicer, he was not aware of the criminal charges until his arrest. The trial
    judge also found that the delay in informing the appellant of the charges was
    the responsibility of the authorities. The trial judge also found that there
    was no waiver of any s. 11(a) time periods by the appellant. The trial judge
    held that the authorities had caused the delay. As he said, the bottom line is
    that the investigation was so inadequate I am not going to hold [the appellant]
    responsible for it and I do hold the authorities responsible. This finding is
    fully supported by the evidence. Given the information provided by Spicer
    Corporation, even a modest effort by the police would have resulted in the
    appellant being found and informed of the charges after he returned to Canada
    in 2000.

[16]

The
    significant issue in this case is whether the appellant was prejudiced by the
    delay. In my view, prejudice in this respect relates to prejudice to the right
    to a fair trial. A subsidiary issue is whether there must be actual prejudice
    or whether prejudice can be inferred. This second issue is important in this
    case because the trial judge found that there was no actual prejudice. I will
    briefly consider the question of actual prejudice and then turn to the question
    of inferred prejudice.

[17]

There
    were two primary sources of prejudice from the delay. The first was the death
    of Mr. Spicer on July 5, 2007, just over a month before the appellant was
    arrested. The second was the loss of the appellants records from the storage
    locker in the Czech Republic and other records such as emails between the
    appellant and Mr. Spicer. I agree with the trial judge that the appellant did
    not establish any actual prejudice from either source. The appellant claims
    that with the death of Mr. Spicer and the loss of his records he was unable to
    confirm his defence of colour of right because his agreement was solely with
    Mr. Spicer. There was no evidence to support the view that had Mr. Spicer been
    alive and able to testify he would have confirmed the appellants defence. The
    evidence was overwhelming that Mr. Spicer did not and would not have given the
    appellant a copy of the source code to take to the Czech Republic. The source
    code represented Spicer Corporations main asset. All other agreements respecting
    the use of the companys software were in writing. Yet, according to the
    appellant he was given a copy of the source code solely on the basis of an oral
    agreement. The evidence also established why the company would not have
    employed programmers outside of Canada to work on the source code. In
    particular, the company would have been concerned that if legal problems arose,
    it would have difficulty enforcing its rights. There was also considerable
    evidence of Mr. Spicers reaction when he found out about the Eroiica software
    that made it highly unlikely that he had any agreement with the appellant.
    Further, an essential element of the appellants defence showing he had an
    agreement with Mr. Spicer was that sometime after he arrived in the Czech Republic
    he realized he did not have the full source code. He claimed that he contacted
    Mr. Spicer who sent him the full source code. However, the only evidence is
    that the Eroiica software was based solely on the July 1996 version of the
    source code.

[18]

Evidence
    that was fatal to the appellants claim of prejudice arises from his own
    testimony. He admitted that whatever agreement he had with Mr. Spicer fell
    through in 1998, yet the Eroiica software was still being sold as late as 2008.
    He claimed that his agreement with Mr. Spicer was that he would have 51 percent
    of the project and Mr. Spicer would have 49 percent. Yet the appellant admitted
    that he never sent any of the proceeds to Mr. Spicer.

[19]

The
    appellant claimed that his agreement with Mr. Spicer was to evaluate the
    viability of a future venture using programmers in the Czech Republic. On his
    own evidence, there was no agreement with Mr. Spicer that would allow him to
    sell a version of the software in Europe and keep the majority of the profits.
    That there was any such agreement was highly unlikely given that almost half of
    Spicer Corporations profits came from the sale of its own Imagenation software
    in Europe.

[20]

Finally,
    there was simply no evidence that any records ever existed that would have
    confirmed the appellants version of events. The appellant accepted that any of
    the emails he claimed to have received from Mr. Spicer no longer existed in
    February 2000, because of the manner in which he dealt with email providers.
    The delay in informing the appellant of the charges in no way affected his
    right to defend himself. At its highest, the appellants inability to
    cross-examine Mr. Spicer may have impacted on his claim that the police should
    have been able to notify him of the charges much earlier. However, the trial
    judge accepted that the appellant was not responsible for any of the s. 11(a)
    delay. The problem with that claim was that there was no prejudice to his fair
    trial rights, not that the state was responsible for the delay.

[21]

There
    are elements of the chronology, particularly the events of October 2001 and May
    2005, that are troubling. At these times, Spicer Corporation and the police for
    unexplained reasons did not follow up on information that would have led to the
    appellants arrest. The difficulty facing the appellant is leveraging that
    suspicion into a likelihood Steve Spicer could have provided any evidence to
    support the appellants story. In the absence of anything to support that
    theory, I would defer to the trial judges conclusion that the delay did not
    prejudice the appellant.

[22]

Since
    there was no actual prejudice to the appellant, the appellant could succeed on
    his application under s. 11(a) only if it is open to the court to infer
    prejudice. In considering unreasonable delay under s. 11(b), the court will
    infer prejudice from a lengthy delay in bringing an accused to trial. Inferred
    prejudice primarily arises from the impact of delay on the accuseds security
    and liberty interests. In
Delaronde
, Otis J.A. appeared to find that
    only actual prejudice is relevant under s. 11(a). As she stated in the final
    two paragraphs of her reasons:

Like the
CIP Inc.
case but for different reasons, the
    right to a fair trial constitutes the sole basis of prejudice alleged by the
    respondent. No evidence going to establish "
an actual impairment of its
    ability to make full answer and defence
" was called by the respondent
    (
R. v. CIP Inc., supra
, p. 863). Although the issue of prejudice was
    at the centre of the hearing at first instance, the respondent chose not to
    call any evidence in this regard and the whole of the evidence called by the
    parties does not permit one to find any impairment of the right to a fair
    trial.

As a result of the preceding, although the delay in the case at
    bar was much longer that it should have been, I consider that the respondent
    has not shown that the protection of his interests has been affected because
    the record does not indicate any unfavourable effect on his right to a fair
    trial. Given the absence of evidence of prejudice by the respondent, the public
    interest in trying an accused must take precedence over the accused's interest
    in obtaining a stay of the proceedings based on the mere passage of time. In
    addition, I consider that there has not been a violation of the respondent's
    rights protected by s. 11(a) and as a result, it would be appropriate to grant
    the appeal and to overturn the judgment ordering the stay of the proceedings.

[23]

Justice
    Otis also referred with approval to the decision of MacDonnell Prov. Div. J. in
R. v. 741290 Ontario Inc.
(1991), 2 O.R. (3d) 336, at p. 353:

The most compelling argument which has been mounted for a
    presumption of prejudice has been with respect to the effects of delay on
    security of the person. Once concern about that factor is nullified, as it is
    when dealing with a corporation, the greatest part of the basis for a presumption
    of prejudice collapses.

[24]

The
    appellant, however, relies upon
R. v. Godin,
2009 SCC 26, [2009] 2
    S.C.R. 3, which he submits establishes that prejudice to fair trial rights may
    be presumed or inferred from delay. I agree that the risk of prejudice to fair
    trial rights can be inferred from lengthy delay. That is, there is no burden on
    the accused to prove actual prejudice. This seems clear from para. 37 of
    Cromwell J.s reasons:

It is difficult to assess the risk of prejudice to the
    appellants ability to make full answer and defence, but it is also important
    to bear in mind that the risk arises from delay to which the appellant made
    virtually no contribution. Missing from the analysis of the majority of the
    Court of Appeal, in my respectful view, is an adequate appreciation of the
    length of the delay in getting this relatively straightforward case to trial.
    As noted already, prejudice may be inferred from the length of the delay.

[25]

In
Godin
, at para. 36, Cromwell J. also noted that it was possible to
    identify a risk of prejudice because of the issues in that case: charges of
    sexual assault, unlawful confinement and threatening where credibility was an
    issue. He agreed with the reasons of the dissenting judge in this court that
    the extra passage of time made it more likely that the ability of the appellant
    to cross-examine effectively had been diminished.

[26]

Thus,
Godin
was a case where there was actual risk of prejudice to fair
    trial rights and where prejudice could be inferred. However, there is nothing
    in
Godin
which undermines earlier decisions of the Supreme Court of
    Canada and especially
Morin
, which in my view hold that it is open to
    the prosecution to establish there is no prejudice to rights protected by s.
    11(b) including fair trial rights. As Sopinka J. said for the majority at pp.
    801-03:

Accordingly, in an individual case, prejudice may be inferred
    from the length of the delay. The longer the delay the more likely that such an
    inference will be drawn.
In circumstances in which prejudice is not
    inferred and is not otherwise proved, the basis for the enforcement of the
    individual right is seriously undermined
.

Apart, however, from inferred prejudice, either party may
    rely on evidence to either show prejudice or dispel such a finding
. For
    example, the accused may rely on evidence tending to show prejudice to his or
    her liberty interest as a result of pre-trial incarceration or restrictive bail
    conditions. Prejudice to the accused's security interest can be shown by
    evidence of the ongoing stress or damage to reputation as a result of overlong
    exposure to "the vexations and vicissitudes of a pending criminal
    accusation", to use the words adopted by Lamer J. in
Mills, supra,
at p. 538. The fact that the accused sought an early trial date will also be
    relevant. Evidence may also be adduced to show that delay has prejudiced the
    accused's ability to make full answer and defence.

Conversely, the prosecution may establish by evidence that the
    accused is in the majority group who do not want an early trial and that the
    delay benefited rather than prejudiced the accused. Conduct of the accused
    falling short of waiver may be relied upon to negative prejudice.  [Emphasis
    added.]

[27]

If
    it is true, for s. 11(b), that inferred prejudice can be rebutted, it must also
    be true for s. 11(a), especially in light of the Supreme Courts earlier
    adoption of the reasons of Otis J.A. in
Delaronde.
In my view, any
    risk of prejudice to the appellants fair trial rights from delay that might
    have been inferred from the very lengthy delay has been rebutted. This is not
    the kind of case where issues of credibility or the ability to cross-examine could
    be inferred simply from the delay. In my view, the appellant did not show a
    violation of his s. 11(a) rights.

(iii)

Section 11(b)

[28]

In
    my view, analysis of the violation of the appellants rights under s. 11(b)
    requires consideration of two time periods. The s. 11(b) time runs from the
    date the charge was laid in April 1999 to the end of the trial in April 2012.
    The first period to consider is from April 1999 to the arrest in August 2007.
    While s. 11(b) protects an accuseds liberty, security of the person and fair
    trial rights, it is only the fair trial rights that are implicated during this
    first period. Since the accused did not know of the charges, the usual concerns
    such as stress or damage to reputation or interference with liberty had no
    application. I have already considered the appellants fair trial rights under
    the s. 11(a) analysis. Since none of the rights which s. 11(b) is designed to
    protect were implicated during this first period, this first very lengthy
    period of time did not result in any violation of the appellants s. 11(b)
    rights.

[29]

The
    period from August 2007 to April 2012 although lengthy also did not result in
    violation of the appellants rights. There was some initial delay due to
    disclosure requirements. However, by May 2008, the initial disclosure issues
    had been resolved and the matter was ready for a judicial pre-trial. From that
    time until April 2010 virtually all of the delay was caused by the appellant
    seeking adjournments while he attempted to resolve concurrent civil
    proceedings. The appellant expressly waived his s. 11(b) rights from December
    16, 2008 to September 28, 2009. While the appellant no longer had counsel, the
    record shows that the appellant was still being assisted by his former counsel.
    On September 28, 2009, the appellant requested a great deal more disclosure.
    Most of this disclosure was records held by third parties, namely Spicer
    Corporation and Open Text. Thus, there was further delay when the appellant
    brought an application for third-party production of records. In April 2010,
    some further disclosure was provided by the Crown from the police, but this did
    not delay the proceedings. The trial began on April 26, 2010 and continued on
    April 27, 28 and May 17-20. It was still not completed and the trial was
    adjourned to November and December 2010. The appellant rejected earlier trial
    dates in August. Attempts by the Crown to find other earlier dates to continue
    the trial were frustrated because the appellant, who was unrepresented, was
    attempting to retain counsel.

[30]

Given
    this chronology, the most important factors in resolving this aspect of the s.
    11(b) issue are the appellants waiver of his s. 11(b) rights and the actions
    of the accused in explaining the delay. In my view, the appellant has failed to
    establish that his s. 11(b) rights were infringed. The delay from when the
    charges were laid until the sentencing is extraordinary, but is explained. As I
    have said, the first period of delay did not prejudice any of the rights that
    s. 11(b) is designed to protect. The second period is explained by the
    appellants express waiver of time period and his own actions. Once the
    appellant became aware of the charges, his conduct shows that he was not
    seeking an early criminal trial. I would not give effect to this ground of
    appeal.

(iv)

The Delay in Bringing the s. 11(b) Application

[31]

The
    appellant also argues that the trial judge erred in the manner in which he
    conducted the s. 11(a) and (b) motions. Ordinarily an application for a stay of
    proceedings for violation of s. 11(b) is dealt with prior to the trial
    commencing. In this case, the trial began in April 2010. The appellant filed
    his application for a stay of proceedings for breach of his s. 11(b) rights on
    November 1, 2010. Prior to this time, there was sporadic mention of delay, the
    trial judge raising the issue on several occasions with Crown counsel.

[32]

In
    my view, the appellant was not prejudiced by the manner in which the delay
    motions were conducted. While a s. 11(b) motion will ordinarily be dealt with
    as a pre-trial motion, the context is important. First, this is not a case where
    the trial judge failed to raise an obvious
Charter
issue where the
    accused is unrepresented. The trial judge did raise the delay issue and sought
    submissions from the parties. In the end, the court dealt with the s. 11(b)
    motion. Second, there are circumstances where allegations of infringement to an
    accuseds
Charter
rights are more properly dealt with at the
    conclusion of the trial. Justice Doherty made this clear in
R. v. Bero
(2000), 151 C.C.C. (3d) 545 (Ont. C.A.),
a case involving an application for a stay of proceedings based on lost
    evidence. As he said at para. 18:

The trial judge should not have ruled on the motion at the
    outset of the trial. This Court has repeatedly indicated that except where the
    appropriateness of a stay is manifest at the outset of proceedings, a trial
    judge should reserve on motions such as the motion brought in this case until
    after the evidence has been heard.
The trial judge can more effectively
    assess issues such as the degree of prejudice caused to an accused by the
    destruction of evidence at the end of the trial
:
R. v. B.(D.J.)
(1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.);
R. v. A.(S.)
(1992), 60
    O.A.C. 324 at 325 (C.A.). The approach favoured by this Court was approved in
R.
    v. La
(1997), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.). [Emphasis added]

[33]

Whether
    a stay was appropriate in this case, especially as a result of an alleged
    violation of s. 11(a) turned on prejudice to the appellants fair trial rights.
    That issue could best be determined at the conclusion of the case. This was an
    unusual case where despite the very lengthy delay the appropriateness of a stay
    was not manifest at the outset of the proceedings.

(v)

Violations of ss. 7 and 11(d) of the
Charter

[34]

The
    arguments under ss. 7 and 11(d) of the
Charter
were based on the
    appellants allegation that the evidence of three of the Crown witnesses was
    tainted because they had seen the appellants statement of defence in the civil
    case and because they had a motive to fabricate based on their association with
    Spicer Corporation and Open Text. There is no merit to these submissions. There
    was no evidence that the evidence of these witnesses was tainted. There was no
    mystery to the appellants defence. It had been laid out in a statement he gave
    to the police following his arrest before the defence in the civil case was
    served and filed. The evidence of the three witnesses about whom the appellant
    complained was confirmed by the agreed statement of facts and other witnesses
    whose evidence could not have been tainted. It was nothing but bald speculation
    that the witnesses had a motive to falsely implicate the appellant.

[35]

The
    appellant seeks to rely on the fact that a relatively small amount of the
    purchase price, $250,000 on a $12.4 million sale, was held back by Open Text
    pending resolution of the civil case with the appellant. There was nothing to
    show that the appellants criminal case had any impact at all on the
    transaction with Open Text or the financial interests of the three Crown
    witnesses. As Crown counsel points out in her submissions, any costs that might
    have been incurred were those of Spicer Corporation and would be covered by the
    hold back.

[36]

The
    appellant also claimed that the companys civil counsel had somehow interfered
    with the criminal case by interfering with or counselling witnesses. There was
    no evidence to support this allegation.

[37]

I would not give effect to the appellants arguments under
    ss. 7 and 11(d) of the
Charter.

(2)

Value of the of the source code

[38]

The
    appellant submits that the copy of the source code had no value and therefore
    he committed no offences. He also points out that the charges refer to the
    IMAGENATION computer software, which he says is quite different from the
    source code. There is no merit to this ground of appeal. The evidence was
    overwhelming that the source code had a great deal of value. While it was being
    continuously changed at Spicer Corporation, the copy that the appellant stole
    in July 1996 had value. That the appellant was able to use it to produce his
    own software, which he sold on the Internet, is some evidence of its value.

[39]

It
    was an admitted fact that: The Eroiica 4.2 software program was derived
    directly from the source code of the Imagenation software program. The
    appellants argument turns on the misapprehension that because only the
    Imagenation software was actually sold to users, it alone had value. The Crown
    did not have to put an exact value on the source code in order to obtain
    convictions. For the theft charge, for example, it was sufficient that the
    source code was worth more than $5,000. The Crown met this burden.

[40]

I
    am also satisfied that the wording of the information did not prejudice the
    appellant or mean that the offences were not made out. The appellants argument
    is that because the information refers to the Imagenation computer software and
    he only stole and used the source code that was used to produce the software
    sold to the public, no offences were made out. The charge that makes the
    appellants case clearest is the theft charge: that the appellant on or about
    July 22, 1996 did steal the IMAGENATION computer software, the property of
    Spicer Corporation, of a value exceeding five thousand dollars, contrary to
    Section 334(a) of the
Criminal Code
of Canada.

[41]

There
    are two answers to this submission. First, on the evidence, the description
    IMAGENATION computer software was broad enough to include the source code,
    which was simply a version of the software used to compile the version sold to
    the public. It was simply the software in a different language.

[42]

Second,
    the appellants argument is really one of notice. The charges, including the
    theft charge gave the appellant sufficient notice of the offences with which he
    was charged so that he could defend himself. Section 583(g) of the
Criminal
    Code
provides that an information is not insufficient by reason only that
    it does not name or describe with precision any person, place or thing.

[43]

I
    would not give effect to these grounds of appeal.

(3)

The Sentence Appeal

[44]

The
    trial judge imposed a sentence of 30 months imprisonment. One of the most
    important issues in the sentencing was the harm caused by the appellants
    conduct in stealing the source code and then using it to sell his own version
    of the software that had been developed at great cost by Spicer Corporation.
    The trial judge concluded that the evidence did not permit him to put a value
    on the harm caused to the company. He accepted that the source code had a value
    of $12 million because that is what Open Text paid for Spicer Corporations
    assets.

[45]

The
    trial judge also took into account the delay in proceeding with the charges.
    Even though he did not find a violation of s. 11(a) that would lead to a stay
    of proceedings, he considered that the appellant was entitled to some reduction
    in the sentence because of the delay, in accordance with the decision of the
    Supreme Court of Canada in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, and Lamer C.J.C.s addendum in
Delaronde
. The trial judge
    stated that he would have imposed 33 months imprisonment but that the delay
    should result in a reduction to 30 months.

[46]

Other
    factors that the trial judge took into account were that the offences were not
    particularly sophisticated and that the appellant operated in the open, selling
    his version of the software on the Internet.

[47]

I
    have not been persuaded that the sentence imposed is unfit or that there is a
    basis for interfering with the sentence on the basis of any error in principle.
    The reduction in sentence due to delay is a matter within the trial judges
    discretion. The trial judge recognized that valuing the damage done by the
    appellant was difficult. It was open to him to take into account the $12
    million that Open Text paid for Spicer Corporations assets as one indication
    of the value of the software.  But for the appellants fraud, which impacted
    the value of the software, Open Text may well have paid significantly more and
    there was other evidence adduced at trial that could have been used to set an
    even higher value. For example, some of the evidence from the Spicer
    Corporation employees suggested that the company had lost revenue of as much as
    $28 million because of the appellants sale of his version of the software.  This
    was a serious and massive fraud, resulting in considerable damage to a company,
    its owners and employees.

[48]

Accordingly,
    while I would grant leave to appeal the sentence I would dismiss the appeal.

Released: February 28, 2014

M.R.
    M. Rosenberg J.A.

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

I agree Robert J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dixon, 2014
    ONCA 162

DATE: 20140228

DOCKET: C55154

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Daniel Dixon

Appellant

Brian Snell, for the appellant

Benita Wassenaar, for the respondent

Heard: February 25, 2014

On appeal from the conviction entered on October 26, 2011
    by Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appeal against sentence is dismissed as abandoned.

[2]

We are satisfied that a properly instructed jury acting judicially could
    have been satisfied upon considering the cumulative effect of all the evidence
    that the only reasonable inference was the appellants guilt.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellis, 2014 ONCA 119

DATE: 20140213

DOCKET: C56124

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Ellis

Appellant

R. Craig Bottomley and Chris Sewrattan, for the appellant

A. Rubaszek, for the respondent

Heard and released orally:  February 11, 2014

On appeal from the conviction entered by Justice G.
    DiTomaso of the Superior Court of Justice, dated December 16, 2011.

ENDORSEMENT

[1]

The trial judge gave detailed reasons which reveal a full appreciation
    of the evidence, the requirement that the Crown prove its case beyond a
    reasonable doubt, and the guiding principles as enunciated in
R. v. W.D.

[2]

We do not agree that he reversed the onus or reached a verdict by
    choosing between the competing versions of the relevant events.  The trial
    judge gave detailed, fully supportable reasons for rejecting the appellants
    evidence as incapable of raising a reasonable doubt.  He considered the appellants
    evidence in the context of the other evidence in arriving at that conclusion.
    After engaging in what are commonly referred to as steps one and two of
W.D.
,
    the trial judge moved to step three.  He provided an equally detailed and
    equally supportable explanation for accepting the complainants evidence and
    concluding that her evidence, combined with the supporting evidence which he
    also accepted, satisfied him beyond a reasonable doubt that the appellant had
    sexually assaulted the victim.  In our view, the reasons do not reveal the
    errors alleged by the appellant.

[3]

The trial judges finding that the forensic evidence was neutral was a
    finding that the evidence did not assist in determining whether the victim had
    been sexually assaulted.  On the evidence of the expert, Exhibit 5 at trial, the
    trial judge was entitled to take that view of the evidence and conclude,
    therefore, that it could not leave him with a reasonable doubt as to the
    appellants guilt.

[4]

The conviction appeal is dismissed.

Doherty J.A.

S.T. Goudge J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hunter, 2014 ONCA 154

DATE: 20140226

DOCKET: C57892

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Hunter

Appellant

Albert Hunter, appellant appearing in person

Emily Morton, duty counsel

Michael Fawcett, counsel for the respondent

Heard: February 18, 2014

On appeal from the sentence imposed on April 18, 2013 by
    Justice Peter H. Wilkie of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that the recent decision of this court in
R.
    v. Nur
, 2013 ONCA 677, permits the court to reconsider the global sentence
    in this case.  We have done that and think that the four year sentence is still
    fit.  The combination of gun and drug offences poses a pernicious and
    persisting threat to public safety and the welfare of the community: see
R.
    v. Wong
, 2012 ONCA 767 at para. 11.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2014 ONCA 157

DATE: 20140228

DOCKET: C54280

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yusuf Ibrahim

Appellant

Jill R. Presser, for the appellant

Tracy Kozlowski, for the respondent

Heard: December 3, 2013

On appeal from the convictions entered by Justice Hugh L.
    Fraser of the Ontario Court of Justice on August 20, 2008.

Cronk J.A.:

A.      Introduction

[1]

Following a trial by judge alone, the appellant, Yusuf Ibrahim, was
    convicted of robbery while using an imitation firearm, disguise with intent and
    possession of a weapon for a purpose dangerous to the public peace.  He was sentenced
    to six and one-half years imprisonment in the penitentiary.

[2]

The appellant appeals from his convictions.
[1]
For the reasons that follow, I would dismiss the appeal.

B.      Background

(1)

The Robbery

[3]

During the late afternoon on March 2, 2007, two men robbed an Ottawa
    branch of the Canadian Imperial Bank of Commerce of approximately $4,500.  Both
    men were wearing black balaclavas.  One of the men was also wearing black
    gloves and brandishing a gun.

[4]

The assailants confronted a bank teller, demanding money.  One of them
    jumped over the counter and grabbed cash from the teller.  The other man stood
    at the wicket, pointing a gun at the teller.  The gun was partially covered by
    a white cloth.  The two men then fled through the Bank to the adjacent parking
    lot, running in the direction of a nearby transit station.  The entire incident
    lasted about 30 seconds.

[5]

The operations manager of the shopping mall where the Bank branch was
    located saw two men run past his office window, towards the transit station.
    He noticed that one of the men was wearing a black balaclava and both men were
    being pursued by a third man.  Suspecting a robbery, the mall manager also gave
    chase.  He followed the suspects until they entered the transit station, where he
    lost sight of them.

(2)

The DNA Evidence

[6]

Within 45 minutes of the robbery, a police officer discovered a toy gun
    with a white cloth over it and a black balaclava on top of the trash in a
    garbage bin at the nearby transit station.  The officer seized the items and
    put them in his pocket.

[7]

Subsequent testing of the retrieved items revealed DNA deposits on: (1)
    the inside back surface of the balaclava; (2) the front face section of the
    inside of the balaclava, in an area of visible staining; and (3) the grip and edge
    of the trigger of the toy gun.  At trial, the Crown led expert evidence of the
    following DNA test results:

Item

Sample
          Location

Observations
          of Sample Area

Major
          Contributor

Minor
          Contributors

1.
          Balaclava

Inside
          front, about 5 cm. below eye opening

Staining

Appellant

None

2.
          Balaclava

Inside
          back

White
          particles

Appellant

Two
           unknown identities

3.
          Toy gun

Grip
          and trigger

N/A

Appellant

Two
           unknown identities

(3)

The Trial

[8]

The sole issue at trial was identity.  The Crowns case against the appellant
    was entirely circumstantial.  There was no eyewitness identification of the
    appellant.
[2]

[9]

The appellant did not testify.  Nor did he call any evidence in his own
    defence.

(4)

Trial Judges Decision

[10]

Given
    the circumstantial nature of the Crowns case against the appellant, the
    parties agreed, and the trial judge accepted, that the central issue at trial
    was: what reasonable inferences can be drawn from the evidence presented by
    the Crown?

[11]

In
    his reasons, the trial judge reviewed the evidence adduced at trial, the
    respective positions of the defence and the Crown, and the various authorities
    furnished by them.  Having done so, the trial judge concluded that the only
    reasonable inference available on the evidence was that the appellant was the
    masked assailant who robbed the Bank teller while pointing an imitation firearm
    (the toy gun) at her.

[12]

Accordingly,
    the trial judge convicted the appellant of all three charges against him.

C.      Issues

[13]

The
    appellant raises the following five grounds of appeal:

(1)

Are the
    verdicts unreasonable?

(2)

Did the
    trial judge err:

(a) by
    failing to consider the whole of the evidence?

(b) by
    requiring the appellant to testify or otherwise proffer evidence of an innocent
    explanation for the presence of his DNA on the tested items, thereby reversing
    the burden of proof?

(c) by
    failing to consider, in accordance with
R. v. Lifchus
, [1997] 3 S.C.R.
    320, whether the absence of evidence concerning aspects of the DNA deposits
    gave rise to a reasonable doubt regarding the appellants guilt?

(3)

Are the
    trial judges reasons fatally deficient because they fail to permit meaningful
    appellate review?

[14]

At
    the conclusion of oral argument, the court found it necessary to hear from the
    Crown only in respect of the appellants first ground of appeal, namely, the
    reasonableness of the verdicts.  I therefore find it convenient to address the
    appellants other grounds of appeal first.

D.      Analysis

(1)

Trial Judges Review of the Evidence

[15]

The
    appellants attack on the sufficiency of the trial judges review of the
    evidence is centred on the trial judges assessment of the DNA evidence.

[16]

The
    appellant argues that the trial judges analysis of the DNA evidence was flawed
    because the trial judge failed to consider that DNA from at least two persons
    other than the appellant was detected on the balaclava and the toy gun.  The
    existence of two other DNA profiles on these items, the appellant says, was
    relevant to the critical question whether it was the appellant, and not someone
    else, who came into contact with these items at the time of the robbery.  The
    trial judges error in failing to consider the exculpatory implications of the
    other DNA profiles, the appellant maintains, was exacerbated by his additional
    failure to consider that it was impossible to know when the DNA was transferred
    to the items in question or how long it had been there.

[17]

In
    a related argument, the appellant also submits that the trial judge erred by
    failing to address the absence of evidence relating to the DNA deposits on the
    tested items: for example, the absence of evidence establishing which parts of
    the balaclava came into contact with the garbage in the bin where the balaclava
    was found; whether the balaclava was found inside-out or right-side-in; and
    whether the evidence allowed for the exclusion of the possibility of secondary
    transfer of the appellants DNA to these objects.

[18]

I
    would not give effect to these arguments.

[19]

The
    trial judges reasons confirm that he was alert to the presence of DNA profiles
    other than that of the appellant and to the suggested limitations of the DNA
    evidence, as advanced by the appellant at trial.  Early in his reasons, when
    describing the results of the DNA testing on the items recovered from the
    garbage bin near the transit station, the trial judge stated:

It was also noted that additional sources of DNA, at least two,
    were detected from item 1-2, being the balaclava, and item 2-3, the toy gun.
    Those minor DNA profiles were not suitable for comparison due to the uncertainty
    with respect to the total number of contributors and the low amount of DNA that
    was detected.

[20]

The
    trial judge later summarized the defence position at trial concerning the DNA
    evidence in this fashion:

[C]ounsel for the defendant argues that no inferences of guilt
    can be drawn because even if the Court is satisfied that the defendants DNA is
    present on the items recovered from the garbage disposal, the Court does not
    know when that DNA was deposited on the items or for how long it had been
    there.

Furthermore, the defence submits that the Court is missing the
    additional evidence required to create the link between the DNA evidence given
    by the expert witness and the conclusion that those findings place the accused
    in the bank at the relevant time.

[21]

Thus,
    the trial judge was mindful of the evidence of multiple DNA profiles on the
    balaclava and toy gun and of the defence contention that the DNA evidence
    failed to link the appellant to the robbery and the toy gun used during the
    robbery.

[22]

This
    was not a complicated or lengthy trial.  The trial judges reasons are
    relatively brief (18 double-spaced pages).  In the first part of his reasons,
    the trial judge acknowledged the evidence of two minor DNA profiles on the
    balaclava and the toy gun.  He later set out the evidentiary issues raised by
    the defence regarding both those profiles and the timing and means of the
    placement of the appellants DNA on the objects in question.  In my opinion, having
    already identified these issues, it is inconceivable that the trial judge then ignored
    or forgot them when, in the second part of his reasons, he undertook an
    analysis of the evidence bearing on the appellants guilt or innocence.

[23]

It
    is important to emphasize with respect to this ground of appeal that the trial
    judge considered, and accurately described in his reasons, all the pertinent
    DNA test results.  Those results established that the appellant was the major
    or sole contributor of all the DNA detected on the balaclava
and
on
    the toy gun found in the garbage bin.  Importantly, he was the
only
    contributor
to the DNA contained in the visible staining area located in
    the vicinity of the nose and mouth area on the inside of the balaclava.

[24]

In
    my opinion, the appellants attack on the trial judges review of the DNA
    evidence is simply an attempt to reargue his submissions at trial concerning
    the available inferences that ought to have been drawn from that evidence.  The
    trial judge was clearly aware of the scope and limitations of the DNA evidence,
    having thoroughly reviewed the expert DNA evidence and the defence position on that
    evidence in his reasons.  There is no reason, in my view, to conclude that he
    failed to consider the entirety of the relevant evidence or the frailties in
    the DNA evidence posited by the appellant.

(2)

Alleged Reversal of Burden of Proof

[25]

The
    appellant next contends that the trial judge, in effect, required him to
    testify or otherwise proffer evidence of an exculpatory explanation for the
    presence of his DNA on the articles discovered in the garbage bin.  In so
    doing, the appellant submits, the trial judge erred by misapplying the decision
    of the Supreme Court in
R. v. Noble
, [1997] 1 S.C.R. 874, and impermissibly
    reversing the burden of proof.

[26]

On
    this point, the appellant repeats his contention that the trial judge did not consider
    that a lack of evidence about the DNA deposits could be fatal to the Crowns
    case.  He asserts that the trial judge erred by failing to assess whether the
    Crowns evidence itself gave rise to a reasonable doubt, in accordance with the
    principles identified in
Lifchus
.

[27]

I
    would also reject these arguments, for several reasons.

[28]

First,
    as I have already said, the trial judge appreciated and took account of the
    alleged failure of the Crowns evidence to establish the requisite link between
    the presence of the appellants DNA on the items found in the garbage bin and
    his involvement in the robbery as the assailant who brandished the imitation
    firearm.  His reasons leave no uncertainty that he understood the defence reliance
    on the limitations of the DNA evidence, including the evidentiary gaps posited by
    the defence in connection with the DNA deposits, in support of the defence
    claim that the Crown had failed to meet its burden to establish the appellants
    guilt beyond a reasonable doubt.

[29]

That
    the trial judge was alive to the limitations on the probative value of the DNA
    evidence is evident from his review, in some detail, of this courts decision
    in
R. v. Mars
(2006), 205 C.C.C. (3d) 376, 206 O.A.C. 387.  In
Mars
,
    at paras. 19 and 24, this court indicated with respect to the probative value
    of fingerprint evidence:

[T]he ability of the fingerprint evidence to connect an accused
    to the crime charged will depend on
whether there is other evidence capable
    of establishing that the accused touched the object at the relevant time and
    place so as to connect the accused to the crime
.

.

The trial judges finding that the fingerprint evidence could
    bear the full weight of the Crowns burden flowed at least in part from his
    erroneous premise that the fingerprint evidence was highly inculpatory
    evidence.
The trial judge should have started from the premise that the
    probative value of the fingerprint evidence depended upon whether there was
    other evidence capable of permitting a reasonable inference as to when the fingerprint
    was placed on the pizza box
.  [Emphasis added.]

[30]

The
    trial judge quoted these passages from
Mars
.  It follows that he
    understood that an inference of the appellants guilt could not be drawn solely
    from the DNA evidence.  Rather, the probative value of the DNA evidence
    depended on whether there was other evidence capable of permitting a reasonable
    inference as to when the appellants DNA was deposited on the objects retrieved
    from the garbage bin.

[31]

Second,
    I do not agree that the trial judge misapplied
Noble
and effectively
    required the appellant to testify and assert his innocence or otherwise proffer
    exculpatory evidence to explain the presence of his DNA on the retrieved items.

[32]

The
    trial judge referred to
Noble
as an authority concerning the circumstances
    in which inferences of an accuseds guilt may be drawn from his or her failure
    to testify at trial.  The trial judge quoted that part of the Supreme Courts reasons
    in
Noble
, at para. 79, in which the majority described three scenarios
    relevant to when the trier of fact may take account of the testimonial silence
    of an accused:

[T]here are three ways in which the silence of the accused
    might be considered by the trier of fact:

(1)   Once the
    Crown has proffered a case to meet, the silence of the accused can be used in
    determining whether an accused is guilty beyond a reasonable doubt.

(2)   Inferences
    of guilt may be drawn from the accuseds silence only where a case to meet has
    been put forth and the accused is enveloped in a ‛cogent network of
    inculpatory facts.

(3)   The
    silence of the accused means that the evidence of the Crown is uncontradicted
    and therefore must be evaluated on this basis without regard for any
    explanation of those facts that does not arise from the facts themselves.

[33]

Later
    in its reasons, the majority of the Supreme Court held that an inference of
    guilt arising from the accuseds testimonial silence could not be drawn in the
    first two scenarios described above.  In the majoritys view, to draw such an
    inference based on these scenarios would violate both the accuseds right to
    silence and the presumption of innocence.

[34]

The
    appellant submits that by referring to all three scenarios described in
Noble
,
    without qualification or any express recognition that the Supreme Court rejected
    the first two scenarios as affording a permissible basis for an inference of
    guilt, the trial judge failed to appreciate the actual holding in
Noble
and, acting on that misapprehension, improperly relied on the appellants
    testimonial silence as a marker of his guilt.

[35]

I
    disagree.  In my view, this submission misinterprets the trial judges reasons
    and his reliance on
Noble
.

[36]

I
    recognize that the trial judge did quote, without express qualification, all
    three scenarios described by the Supreme Court in
Noble
, at para. 79,
    in his reasons.  To repeat, the third scenario is as follows:

(3)   The
    silence of the accused means that the evidence of the Crown is uncontradicted
    and therefore must be evaluated on this basis without regard for any
    explanation of those facts that does not arise from the facts themselves.

[37]

However,
    with respect to this third scenario, the trial judge also referenced the following
    comments of Sopinka J., writing for the majority of the Supreme Court, at para.
    82 of
Noble
:

The third position
, which I have attempted to explain
    in my reasons,
simply recognizes the fact that the evidence of the Crown
    stands alone.  It must be evaluated on this basis.  Contradictions that have
    not been offered cannot be supplied.  No inference of guilt is drawn from the
    silence of the accused
.  Rather, the silence of the accused fails to
    provide any basis for concluding otherwise once the uncontradicted evidence
    points to guilt beyond a reasonable doubt.  [Emphasis added.]

[38]

After
    quoting these comments, the trial judge immediately stated his view that the
    third scenario described in
Noble
most closely reflects the present
    situation.

[39]

The
    trial judge then briefly reviewed what he regarded as the uncontradicted
    evidence pointing to the appellants guilt on the offences charged.  This
    evidence included the following:

·

the Bank teller was robbed by a male wearing a balaclava, who
    brandished a gun with a white cloth around it;

·

the teller observed the two robbers leave the Bank and turn in
    the direction of the transit station;

·

the mall manager saw a man, wearing a balaclava, run by his
    office accompanied by a second man; he chased the two men into the transit
    station;

·

the police arrived at the scene shortly after the robbery;

·

just 45 minutes after the robbery, the police discovered the toy gun,
    with a white cloth, and a balaclava in the garbage disposal at the transit
    station, in close proximity to the Bank; and

·

the items retrieved from the garbage bin bore the appellants
    DNA.

[40]

After
    detailing this evidence, the trial judge explicitly directed himself, in
    accordance with the principles in
Noble
to which he had already
    referred, that: no inference of guilt can be drawn from the silence of the
    accused.

[41]

Read
    in this fashion, the trial judges reasons do not support the claim that he erred
    in his appreciation and application of
Noble
.  To the contrary, the
    trial judge recognized two critical holdings in
Noble
: (1) the testimonial
    silence of an accused cannot ground an inference of guilt; and (2) the
    testimonial silence of an accused simply means that the Crowns case stands
    uncontradicted, and is to be assessed on that basis.

[42]

It
    may have been preferable if the trial judge had confined his references to
Noble
to those parts of that decision that address situations where, due to the
    accuseds failure to testify or to offer evidence contrary to that of the Crown,
    the Crowns case is uncontradicted.  Nonetheless, the trial judges reasons
    confirm that he relied on
Noble
only for the guidance it provides on
    the manner in which the Crowns case is to be evaluated in the face of an
    accuseds testimonial silence and for the important principle that an inference
    of guilt cannot be drawn from an accuseds silence at trial.

[43]

In
    particular, the trial judge, in effect, twice directed himself that no
    inference of guilt could be drawn from the appellants failure to testify (once
    by quoting this principle from
Noble
and, again, by explicitly
    reiterating this principle).  He referred to the undisputed evidence that he
    viewed as connecting the appellant to the robbery at the relevant time and
    place.  Having found that this evidence convinced him of the appellants guilt
    beyond a reasonable doubt, he then noted the absence of any basis for
    concluding otherwise.

[44]

This
    reasoning, in my view, reflects no legal error.  To the contrary, it accords
    with the principles outlined by the
Noble
court.  Nor is this
    reasoning tantamount to a reversal of the burden of proof.  It simply articulates
    and explains the trial judges conclusion that the Crown had met its burden of
    proof and his ensuing observation, to paraphrase Sopinka J. in
Noble
,
    at para. 82, that an accuseds testimonial silence means that the evidence of
    the Crown stands alone and must be evaluated on this basis.

(3)

Sufficiency
    of Reasons

[45]

The
    appellant also submits that the trial judges reasons fail to meet the
    sufficiency of reasons standard set out in
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3;
    and their progeny.  He contends that the reasons do not permit this court to
    determine the basis for the trial judges findings of guilt, apart from the
    presence of the appellants DNA on the tested objects found in the garbage bin.

[46]

In
    my view, this submission must fail.  When the trial judges reasons are read as
    a whole, as they must be, they readily reveal the basis for the verdicts
    against the appellant.  As I read the reasons, the presence of the appellants
    DNA on the tested items was but one factor, albeit a powerful one, that drove
    the trial judges conclusion that the Crown had established the appellants
    culpability for the crimes charged.  I will return to this issue in the
    discussion that follows concerning the reasonableness of the verdicts.

(4)

Reasonableness of the
    Verdicts

[47]

During
    his oral submissions before this court, the appellants argument focused on the
    reasonableness of the verdicts.  He argued that the inference that he
    participated in the robbery and that he was the person who was wearing the
    balaclava and wielding a gun at the time of the robbery is not the only
    rational inference available from the circumstantial evidence as a whole.
    Accordingly, on the authority of
R. v. Yebes
, [1987] 2 S.C.R. 168, 43
    D.L.R. (4th) 424;
R. v. Charemski
, [1998] 1 S.C.R. 679, 157 D.L.R. (4th)
    603;
R. v. Bouzied
, 2013 ONCA 276; and similar cases, the appellant
    maintains the verdicts are unreasonable.  In particular, he contends that to
    draw an inference, based on the mere presence of his DNA on the tested objects,
    that his DNA was transferred
during the course of the robbery
is
    improper on this record and, consequently, that such an inference would be
    insufficient to reasonably found verdicts of guilty.

[48]

In
    my opinion, this argument must also fail.

[49]

The
    trial judges reasons reveal that the verdicts of guilty were not based solely
    on the presence of the appellants DNA on the items retrieved from the garbage
    bin.  Rather, a constellation of facts, including the presence of the
    appellants DNA, supported the inescapable inference of his guilt.  These
    included the following:

(1)

two men
    robbed the Bank;

(2)

both
    robbers wore balaclavas during the robbery;

(3)

one of the
    masked robbers brandished what appeared to be a gun, wrapped in a white cloth;

(4)

the two
    assailants were observed by the teller to flee the Bank, in the direction of
    the transit station;

(5)

the mall
    manager observed two robbers fleeing towards the transit station, one of whom was
    wearing a balaclava;

(6)

within 45
    minutes from the time of the robbery, the police discovered a balaclava, white
    cloth and toy gun sitting at the top of a garbage bin located at the transit
    station where the two robbers had been seen to flee;

(7)

the
    transit station was situated about 90 metres from the Bank;

(8)

the
    balaclava retrieved from the garbage can appeared to be new;

(9)

the
    appellants DNA profile was the
only
profile detected in the area of
    visible staining around the nose and mouth area of the recovered balaclava;

(10)

the
major
DNA
    profiles on both the recovered balaclava and the toy gun were those of the
    appellant; and

(11)

the additional sources of
    DNA on the balaclava and the toy gun were not suitable for comparison due in
    part to the low amount of DNA that was detected.

[50]

These
    findings were amply grounded in the evidentiary record.  Indeed, they were essentially
    uncontradicted.  Contrary to the appellants submission, these facts connected
    the appellant to the Bank robbery at the relevant time and place.  They fully
    supported the trial judges conclusion that the only reasonable inference in
    all the circumstances was that the appellant was the masked robber who
    brandished an imitation firearm during the Bank robbery.

[51]

Moreover,
    there were no reasonable inferences available on the evidence that were
    inconsistent with the appellants guilt.  For example, the suggestion that the
    appellant may have worn the recovered balaclava and handled the toy gun at some
    other time and on another occasion is entirely speculative.  As the trial judge
    pointed out, unlike the facts in
Mars
and other authorities cited by
    the appellant, there was no exculpatory evidence at trial that could anchor a
    conclusion other than that of the appellants guilt.

[52]

In
    these circumstances and on this evidentiary record, I conclude that the
    verdicts are not unreasonable.

E.      Disposition

[53]

For
    the reasons given, I would dismiss the appeal.

Released: February 28, 2014

E.A.C.
    E.A. Cronk J.A.

I
    agree David Watt J.A.

I
    agree K. van Rensburg J.A.

[1]
The appellant abandoned his appeal against sentence.

[2]
The man who pursued the assailants, as observed by the mall manager, was not
    called as a witness or identified by name at trial.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karimi, 2014 ONCA 133

DATE: 20140219

DOCKET: M43100 (C54078)

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Karimi

Applicant (Appellant)

Alan D. Gold and Joel N. Myskiw, for the applicant (appellant)

Tracy Kozlowski, for the respondent

Heard and released orally:  February 14, 2014

ENDORSEMENT

[1]

The applicant seeks an order compelling a witness who testified at the
    trial to attend at the specified place and provide a sample of his voice in
    accordance with the conditions herein.

[2]

The applicant seeks the voice sample to assist an expert retained by the
    defence in formulating an opinion as to whether the voice on a certain taped conversation
    introduced at trial is in fact the voice of the witness.  The defence
    anticipates a fresh evidence application in reference to that issue.

[3]

The applicant relies on s. 683 in support of the motion.  He submits
    that this court has the power to make the order sought assuming it is in the
    interests of justice under either s. 683(1)(a) or s. 683(1)(b).

[4]

We are satisfied there is no power to make the order under s. 683(1)(a).
    That section permits an order with respect to the production of any writing,
    exhibit or other thing connected with the proceedings.

[5]

The provision refers to the production of existing material and not to
    the creation of material that may assist an expert in formulating his or her opinion
    on an issue that may ultimately be germane to the appeal proceedings.  In other
    words, we think s. 683(1)(a) is limited to the production of an existing writing,
    exhibit or other thing connected to the proceeding.

[6]

Section 683(1)(b) provides that the court can order that any person who
    is a compellable witness attend and be examined.  That section refers to an
    order that compels a person to attend
qua
witness for the purpose of
    answering questions or producing other kinds of evidence relevant to the
    proceeding.  The section does not contemplate compelling a person to attend not
    as a witness, but for the purposes of assisting in the creation of material that
    may be used by an expert in the formulation of his or her opinion.

[7]

We are satisfied that we have no power to make the order sought under s.
    683(1).  The motion is dismissed and we need not address the question of
    whether the making of the order would be in the interests of justice if we had
    the power.

[8]

The appeal is set for late March and it is important that the appeal be
    ready for hearing at that time.  The defence should provide whatever material
    it is going to provide in reference to his fresh evidence application to the
    Crown as soon as possible so that the Crown has an opportunity to deal with
    that material and the scheduled date for the hearing of the appeal is not
    compromised.

Doherty J.A.

S.T. Goudge J.A.

C.W. Hourigan J.A.


WARNING

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

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

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

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity is
    protected by the order. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Legare, 2014 ONCA 106

DATE: 20140206

DOCKET: C54453

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy Legare

Applicant/Appellant

Michael Dineen, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: February 4, 2014

On appeal from the conviction entered on October 30, 2010
    by Justice Robert Pelletier of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of first degree murder. On appeal, the
    appellant concedes that a conviction for second degree murder was inevitable.
    The appellant submits, however, that the trial judge erred in his instructions
    to the jury about the evidence as it related to the issue of planning and
    deliberation.

He submits that the trial judge should have instructed the
    jury that none of the conduct as to what took immediately place after the
    murder and before his departure from the scene of the crime had any relevance
    to the issue of planning and deliberation.

[2]

We disagree. It was open to the jury to consider the appellants actions
    to counter the defence suggestion that he was acting in an impulsive
    disorganized fashion.

[3]

The appellant further submits that the psychiatric evidence was not
    properly put to the jury on the issue of planning and deliberation. The
    psychiatric evidence was primarily relevant to the issue of provocation which
    the trial judge properly ruled had no air of reality. To the extent that the
    psychiatric evidence remained relevant the trial judge adequately dealt with
    it.

[4]

We

see no error in the trial judges charge to the jury.
    Accordingly, the appeal is dismissed.

K.M.
    Weiler J.A.

Robert
    J. Sharpe J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lima, 2014 ONCA 155

DATE: 20140227

DOCKET: C52979

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Alberto Lima

Appellant

Robert Sheppard, for the appellant

Alison Wheeler, for the respondent

Heard:  February 25, 2014

On appeal from the conviction entered on February 11,
    2010 and the sentence imposed on February 11, 2010 by Justice Kelly A. Gorman
    of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellants sentence appeal is dismissed as abandoned.

[2]

On his conviction appeal, the appellant argues that the trial judge made
    two errors in her jury charge:  first, the use of the word some in her charge
    on s. 21(2); and second, the use of the phrase ought to have known in her
    charge on possession under s. 4(3).

[3]

In our view, the phrase some evidence would not have misled the jury
    in the light of the trial judges repeated instructions both general and
    specifically tailored to the facts of this case, that the Crown must prove the
    crimes against the accused beyond a reasonable doubt.

[4]

The Crown acknowledges that ought to have known is not a basis for liability
    as a principal under s. 4(3).  However, we agree with the Crown that the
    curative proviso applies.  In the light of the photographs alone, the case
    against the appellant on the possession charges was overwhelming.

[5]

The conviction appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2014 ONCA 103

DATE: 20140205

DOCKET: C56896

Weiler, Rosenberg and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Mohamed

Appellant

Ian R. Smith, for the appellant

John Pearson, for the respondent

Heard and released orally: February 3, 2014

On appeal from the conviction entered on June 4, 2012 and
    the sentence imposed on August 29, 2012 by Justice C. Kehoe of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

In our view, on the facts of this case, the offence under s. 96(2) was
    not made out.  There was no evidence that the appellant knew the firearm was
    obtained by the commission of an offence.  The fact that the appellant
    committed any number of offences including the s. 117.01 offence by being in
    possession of the firearm does not mean that it was obtained by the
    commission of an offence.

[2]

Accordingly, the appeal from conviction on count number 7 (the s. 96(2)
    offence) is allowed and the conviction is quashed.

[3]

As to sentence, the Crown concedes that the sentence must be reassessed
    in light of this courts decisions in
Nur
and
Smickle
.  The
    allowing of the appeal on the s. 96(2) offence does not change the appellants
    moral culpability especially in view of the appellants prior record.

[4]

Accordingly, we reduce the sentence for the firearm offences, other than
    for count number 4, to three years imprisonment less one year for the
    pre-sentence custody.  For the offence contrary to s. 117.01(3), being count
    number 4, there will be a sentence of eight months imprisonment consecutive.

K.M. Weiler J.A.

M. Rosenberg J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2014 ONCA 129

DATE: 20140218

DOCKET: C55874

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Mohamed

Appellant

Mark Halfyard, for the
    appellant

Shawn Porter, for the
    respondent

Heard and released
    orally: February 7, 2014

On appeal from the
    conviction entered on March 9, 2011 and the sentence imposed on June 29, 2011 by
    Justice Laurence Patillo of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his
    conviction for discharging a firearm with intent to wound and aggravated
    assault.  The jury acquitted him of attempted murder and robbery.  He raises
    two grounds of appeal.

[2]

In relation to the first ground of
    appeal, the appellant submits that the trial judge erred in his charge to the
    jury with respect to the complainants admitted perjury by drawing the jurys
    attention not only to the appellants inconsistent statement to the police but,
    in particular, to what amounted to a prior consistent statement made at his
    preliminary inquiry.  He argued that this amounted to an impermissible
    bolstering of the complainants evidence at trial.

[3]

We do not accept this submission.
    As requested by counsel, the trial judge gave a deliberate lie charge with
    respect to the perjury.  In the impugned portion of the charge, the trial judge
    was merely giving an example of inconsistent statements as part of his
    instructions to the jury about how they could or could not make use of such
    statements.  We do not think that the jury would have been led to the view that
    the judges reference to the prior consistent statement somehow bolstered the
    complainants testimony.

[4]

With respect to the second ground
    of appeal, we do not agree that the jury verdicts are inconsistent.  The
    appellant concedes that the
mens rea
for the different offences is different.  It was open to the jury, in
    resolving the facts, to find that the appellant had the gun and fired it with
    the intent to wound but that he did not have the specific intent to kill
    required for attempted murder.  The jury was also entitled, on the robbery
    charge, to conclude that it was not the appellant who took the mp3 player from
    the complainant.

[5]

For these reasons, we are not
    persuaded that the jury verdicts were inconsistent.

[6]

Accordingly the appeal is
    dismissed.

K.M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monsour, 2014 ONCA 165

DATE: 20140228

DOCKET: C56556

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Monsour

Appellant

Alan D. Gold and Melanie Webb for the appellant

Kevin Wilson, for the respondent

Heard: February 28, 2014

On appeal from the sentence imposed on January 8, 2013 by
    Justice
Jean-Gilles
Lebel of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the trial judge made two errors that entitle this court to
    interfere with the appellants sentence.  First, he mischaracterized the
    appellants role.  Second, even in the light of the very positive presentence
    report, he failed to give any weight to the appellants rehabilitation.

[2]

In all the circumstances, including the fresh evidence, we think a fit
    sentence is 18 months.  Leave to appeal sentence is granted, the appeal is
    allowed and the sentence is reduced to 18 months.

[3]

In the light of his positive PSR and his employment, we recommend
    that the appellant be considered for the temporary absence program.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quazi, 2014 ONCA 94

DATE: 20140203

DOCKET: C55592

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdul Matin Quazi

Appellant

Anida Chiodo, for the appellant

Howard Piafsky, for the respondent

Heard and released orally:  January 30, 2014

On appeal from the convictions entered on March 2, 2012
    by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was convicted by a jury of importing opium and possession
    of opium for the purpose of trafficking.  The circumstances giving rise to the
    charges may be stated briefly.

[2]

The appellant was the consignee of a shipment of ten hydraulic jacks
    that originated in Iran.  Since the shipment originated in a source country,
    investigators took some steps to carefully examine the cargo.  Inside the
    jacks, police found about 114 pounds of opium valued at more than $1,000,000.
    The jacks were repackaged in their original shipping containers after the opium
    had been extracted.

[3]

The appellant appeared at the airport to pick up the shipment.  He paid
    the applicable fees, loaded the several crates into his vehicle and drove back
    to his home in London, Ontario.  He unloaded the crates on the front porch of
    his friends ground floor unit in the same apartment building in which he (the
    appellant) lived.  The shipment remained there covered but untouched,
    unguarded, unsecured and, it would appear, completely accessible to anyone
    walking past the building.

[4]

The appellant was under constant physical surveillance for a week after
    he picked up the crates at the airport.  An authorization was granted to
    intercept his private communications.  He displayed no counter-surveillance tendencies,
    made no effort to pick up, move, or check on the crates.  Nor did anyone else.
    On arrest, he provided a lengthy, exculpatory statement in which he denied any
    knowledge of the contraband secreted in the hydraulic jacks.

[5]

On his appeal from conviction, the appellant raised several grounds of
    appeal.  Among other errors, he alleged that the trial judge:

i.

erred in permitting a police officer, qualified as an expert on the
    subjects of drug importation, jargon, methods of packaging, concealment and
    distribution, to proffer an opinion about the meaning of the word things in
    an intercepted communication - an opinion that went beyond his entitlement and
    usurped the function of the trier of fact; and

ii.

erred in failing to provide a sufficiently detailed instruction on the
    standard of proof in this case that consisted entirely of circumstantial
    evidence.

[6]

Counsel for the respondent acknowledges errors in both of these grounds of
    appeal and concedes that their cumulative effect, in the circumstances of this
    case, requires a new trial.  We agree.  We note that the trial judge did not
    provide any mid-trial or final instructions to the jury to attempt to eradicate
    or, at least, to contain any prejudice caused by the witness inadmissible
    evidence.

[7]

We also observe that the trial judge permitted the jury to hear the
    opinion of another police officer who characterized the appellants demeanour
    during his police interview as indicative of guilt.  Such an opinion was
    irrelevant and should not have been permitted.  Its intrusion into the trial
    record was highly prejudicial and contributed to the overall unfairness of the
    appellants trial.

[8]

For the appellant, Ms. Chiodo advanced argument in support of her further
    claim that the jurys verdict was unreasonable.   We do not agree.

[9]

We note that among other features of this case, trial counsel for the
    appellant (who was not Ms. Chiodo) did not bring an application for a directed
    verdict of acquittal at the conclusion of the case for the Crown.  Further, we point
    out, the appellant did not testify at trial - a factor we are entitled to
    consider when a claim is made that the verdict was unreasonable:
R. v.
    Corbett
(1973), 14 C.C.C. (2d) 385 (SCC).

[10]

In
    our view, the cumulative effect of the circumstantial evidence adduced at trial
    was such that a reasonable jury, properly instructed, could have found the
    requisite knowledge established at the very least on the basis of wilful
    blindness.  Although we do not consider that the case for the Crown was an
    overwhelming one, it was, nonetheless, a case that required determination by a
    properly instructed trier of fact.

[11]

The
    appeal is allowed, the convictions set aside and a new trial ordered.

Robert
    J. Sharpe J.A.

David
    Watt J.A.

M.L.
    Benotto J.A.